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AFRICAN PEOPLES ALLIANCE v. INEC & ORS (2022)

AFRICAN PEOPLES ALLIANCE v. INEC & ORS

(2022)LCN/16076(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, May 18, 2022

CA/ABJ/CV/335/2021

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

AFRICAN PEOPLES ALLIANCE APPELANT(S)

And

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 2. ATTORNEY GENERAL OF THE FEDERATION 3. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION 4. ATTORNEY GENERAL ENUGU STATE OF NIGERIA RESPONDENT(S)

 

RATIO

CLASSIFICATION OF PARTIES TO AN ACTION

Parties to an action have been classified into three namely: (1) proper parties (2) desirable parties and (3) necessary parties. Necessary parties are those who, though not interested in the subject matter of the proceedings but also a party in whose absence the proceedings could not be fairly dealt with. Consequently, without his been joined as a party, the Court may not effectually and completely adjudicate upon and settle all questions involved in the suit. See Green v Green (1989) 3 NWLR pt.61 pg.480 (SC); Ojo v. Ogbe (2007) 9 NWLR pt.1040 pg.542. It is my finding that the sole issue for determination in this case can be determined without joining the 2nd, 3rd and 4th Defendants. I so hold. Whatever the decision of the Court against the 1st defendant herein automatically be obeyed especially by the 3rd defendant without much ado, in view of the fact that the 1st defendant alone has the power to deregister any political party.” PER GAFAI, J.C.A.

WHETHER OR NOT THE ATTORNEY GENERAL OF THE FEDERATION CAN BE SUED AS A DEFENDANT IN A CIVIL MATTERS

Secondly, although it is beyond argument that the 2nd Respondent as the Chief Law Officer of the Federation can, in that capacity, be sued in suits involving the Federal Government or its agencies such as the 1st Respondent in this appeal, this general right of a Plaintiff, in this case, the Appellant, is, just like all defined rights, not limitless. This is the purport of the decision by the Supreme Court in A.G. Kano State vs. A. G. Federation (2007) LPELR— 618 where the Apex Court clarified the position thus:
“It is not in dispute that the Attorney General of the Federation can be sued as a Defendant in all civil matters in which a claim can properly be made against the Federal Government or any of its authorized agencies, arising from any act or omission complained of. See Ezomo vs. A. G. Bendel State (1986) 4 NWLR (Pt.36) 448. The Inspector General of Police, is involved in this case is the head of the Nigeria Police Force in Nigeria. It is a force recognized by the State and Federal Government of Nigeria and it is a separate body created by the Constitution with special powers and responsibilities and can be properly sued. See Section 214–216 of 1999 Constitution and Police Act Cap. 359 Laws of the Federation, 1990.
As stated earlier, Attorney General of a State or the Federation can be sued any civil claim or complaint against the Government of a State or the Federation as the case may be, but this can only properly happen where the claim or complaint is directly against the State or Federal Government concerned. In this case, the Federal Government was not directly concerned and no relief was sought against it by the Plaintiff in the action. The provisions of Section 232 of the 1999 Constitution under which the action is purported to be instituted cannot therefore in my view be applicable here.”

WHETHER OR NOT THE INDEPENDENT NATIONAL ELECTORAL COMMISSSION HAS THE POWERS TO DEREGISTER A POLITICAL PARTY
Now, by Section 225A of the Constitution of Nigeria 1999 (as amended), it is provided as follows:
“The Independent National Electoral Commission shall have power to deregister a political party for:
a. Breach of any of the requirements for registration:
b. Failure to win at least twenty-five percent of voter cast in –
i. One State of the Federation in a Presidential election; or
ii. One Local Government of the State in a Governorship election,
c. failure to win at least –
i. one ward in the Chairmanship election;
ii. one seat in the National or State House of Assembly elections or;
iii. One seat in the Councillorship election”
​Going by the succinct provisions of the above Section of the Constitution of Nigeria 1999 (as amended), it would appear that the right of INEC to deregister a Registered political party is neither absolute nor left at the whims and caprices of INEC. It is a power which must be exercised in line with the provisions of the said Section to be valid. Thus, where the exercise of this power by INEC lacks compliance with the provisions of the said Section it would be unconstitutional and therefore, invalid. Such an invalid exercise of power by INEC is one which would be subject to the powers of the Court, which if and when properly invoked would result into the nullification of the invalid exercise of that power by INEC. Such circumstances may include a precipitous and contemptuous exercise of that power by INEC against a valid and subsisting order of Court retraining it from so doing. See ACD & Ors V. AGF & Ors (2020) LPELR-51052 (CA).
PER GEORGEWILL, J.C.A.

BATURE ISAH GAFAI, J.C.A.:(Delivering the Leading Judgment): This appeal questions the judgment of the Federal High Court Abuja Judicial Division delivered on the 24th of February, 2021 corarn Taiwo, J. in suit No FHC/EN1/CS/21/2020 in which the Appellant’s suit was dismissed for lacking in merit.

Aggrieved by the decision, the Appellant lodged this appeal vide a Notice of Appeal filed on the 2nd of March, 2021 complaining against the judgment on six Grounds reproduced here thus:
“GROUND 1
The learned trial Court erred in law, when the trial Court relied on the decision reached by the Honourable Court of Appeal in the case of National Unity Party v. Independent National Electoral Commission CA/ABJ/CV/426/2020 in dismissing the case of the Appellant.
GROUND 2
The learned trial Court erred in law when the lower Court held that the decision reached by the Honourable Court of Appeal in the case of Advanced Congress of Democrats & Ors v Attorney General of the Federation & Ors., Appeal Number CA/ABJ/CV/507/2020 does not apply to the case of the Appellant,
GROUND 3
​The learned trial Court erred in law, when the trial Court held that the 2nd, 3rd, and 4th Respondents are not parties to this suite
GROUND 4
The learned trial Court erred in law when the trial Court dismissed the case of the Appellant, on the ground that Section 225A of the Constitution of the Federal Republic of Nigeria did not impose a duty on the 1st Respondent, riot to deregister a political party at a time wherein the political party is participating in an election in Nigeria.
GROUND 5
The learned trial Court erred in law and fact when the Honourable Court below held that the Appellant did not lead any evidence to show that the 3rd Respondent was aware that the 3rd Respondent has fixed the 29th day of February 2020 as the day in which the 3rd Respondent was to conduct the local government council election of Enugu State.
GROUND 6
The judgment is against the weight of evidence.”

The respective Particulars enumerated under these Grounds are noted. See pages 228-236 of the Record of Appeal.

In this appeal, the Appellant relied on the Record of Appeal transmitted on the 18th of June 2021 and the Appellant’s Brief of Argument filed on the 23rd of June 2021. First to respond is the 2nd Respondent vide the 2nd Respondent’s Brief of Argument filed on the 14th of September, 2021 and later the 3rd and 4th Respondents followed suit with their Brief of Argument filed on the 5th of January 2022. The Record of Appeal was deemed properly transmitted and the four Briefs of the parties deemed property filed on the 3rd of March 2022. At the hearing of the appeal on that date, all the parties relied on the Record of Appeal and their respective Briefs of Arguments and urged this Court to proceed accordingly.

​The Appellant’s arguments as per its Brief, are presented under three Issues for determination; on:
“Whether the 1st Respondent Independent National Electoral Commission was right to have deregistered the Appellant at a time when the Appellant had candidates who were vying elective positions in a local government council election in Nigeria,”
“Whether the lower Court was wrong not to have followed the decision of the Court of Appeal in the case of Advanced Congress of Democrats & Ors v Attorney General of the Federation & Ors Appeal Number CA/ABJ/CV/507/2020 in finding that the 1st Respondent acted rightly by deregistering the Appellant from being a political party?”
“Whether or not the Appellant was wrong to have made the 2nd, 3rd and 4th Respondents parties to this case?”

The 1st Respondent formulated a lone Issue on:
“Whether the trial Court correctly construed the provisions of Section 225A, (b) and (c) of the Constitution the Federal Republic of Nigeria 1999 (as amended) and held that the 1st Respondent has powers to deregister the Appellant for non-compliance with the said provisions AND whether the 1st Respondent is encumbered exercising its constitutional powers due to a pending local government council election.”

In his own view however, the 2nd Respondent sees the whole appeal, as it relates to it, determinable on the sole issue of:
“Whether considering the facts of this case, any cause of action, whether circumstantially or otherwise has been disclosed against the 2nd Defendants?”

​For the 3rd and 4th Respondents, twin Issues are formulated; on
“1. Whether the trial Court was right in its finding that INEC properly exercised its powers under 225a in de-registering the appellant. (distilled from grounds 1,2, 4 & 5).
2. Whether the lower Court rightly evaluated the evidence adduced in proof of the appellant’s entitlement to the relief sought in her originating summons (distilled from ground 6).”

As can be seen, except the Appellant’s third Issue and the 2nd Respondent’s sole Issue both of which argued on the trial Court’s views on the joinder of the 2nd Respondent in particular, all the other Issues for the parties are on the core subject matter of the Appellant’s suit and the main Grounds of Appeal. Thus, for whatever it may be worth to both the Appellant and the 2nd Respondent, that Issue will be resolved first.

Interestingly, all the other three Respondents have simply ignored the Appellant’s third Issue, apparently viewing same as a non-issue.

To begin with, I must state that the failure of the Appellant to refer this Court to specific portion(s) or pages of the trial Court’s judgment in the Record made it difficult for the Court to identify precisely which specific view(s) expressed by the trial Court on the Issue are the subject of the Appellant’s Ground 3 of the Notice of Appeal and its third Issue for determination. This Court is not asking to be spoon-fed but simply to be properly and clearly informed on the specific aspect(s) of the judgment that is being challenged. Notwithstanding, the Court has traversed the entire judgment in the context of the Appellant’s third Issue and humbly thinks that the Appellant might likely be referring to the trial Court’s views found at pages 219-221 of the Record as follows:
“I have gone through the entire affidavit in support of the originating summons and I cannot but agree with the learned counsel for the 2nd defendant that there is no allegation against him and also there is no relief being claimed against him. It is also apparent that the only averments against the 3rd and 4th defendants in the Plaintiff’s affidavit is that the 3rd defendant had set a date for the local elections in Enugu State and nothing more. The only relief against the 3rd and 4th defendants is relief 3 and this is a consequence of the action of the 1st defendant in deregistering the plaintiff and nothing more. From the affidavit in support of the originating summons, I see no reasonable cause of action against the 3rd and 4th defendants because any action they may have taken is sequel to the deregistration of the plaintiff by the 1st defendant. This leads me to whether the 2nd, 3rd and 4th defendants are necessary parties. The 2nd defendant is the Honorable Attorney General of the Federation. He represents the Federal Government and its agencies in suit filed against the Federal Government or any of these agencies. However, it is not in all cases that the Federal Attorney General or the Attorney General of a State can be sued with the agencies of the Federal Government. Agencies who are statutory in nature and which can sue and be sued are exempted unless there is a relief against the office of the Attorney General or the Federal Government of Nigeria. On this issue, I will only cite one case out of a plethora of cases. The case is Attorney General Kano State v Attorney General of the Federation (2007) LPELR-618 (SC). It was held in that case per Kalgo JSC at page 26 para E-F thus: … Attorney-General of a State or the Federation can be sued in any civil claim or complaint against the Government of a State or the Federation as the case may be, but this can only properly happen where the claim complaint against is directly against the State or Federal Government concerned.”
Are these set of defendants necessary parties in this action especially where there is no relief sought against one of them and where the relief sought against the others stems from the action of the 1st defendant? Parties to an action have been classified into three namely: (1) proper parties (2) desirable parties and (3) necessary parties. Necessary parties are those who, though not interested in the subject matter of the proceedings but also a party in whose absence the proceedings could not be fairly dealt with. Consequently, without his been joined as a party, the Court may not effectually and completely adjudicate upon and settle all questions involved in the suit. See Green v Green (1989) 3 NWLR pt.61 pg.480 (SC); Ojo v. Ogbe (2007) 9 NWLR pt.1040 pg.542. It is my finding that the sole issue for determination in this case can be determined without joining the 2nd, 3rd and 4th Defendants. I so hold. Whatever the decision of the Court against the 1st defendant herein automatically be obeyed especially by the 3rd defendant without much ado, in view of the fact that the 1st defendant alone has the power to deregister any political party.”

I have gone to great length to reproduce what I have been able to identify as the relevant main portion in the judgment relating to the Appellant’s third Issue (supra) in order to show the detailed reasoning of the trial Court on same.

This lead me to the 2nd Respondent’s sole Issue by which he seeks that his name be struck out in view of the findings of trial Court that it was needless to have joined him (the 2nd Respondent) in the suit in the first place.

Firstly, in my humble view, where Court finds from the material before it that there was no reason to join party to the suit, the Court should do two things; namely discontinue the proceedings against such party and more importantly strike out his/her name from the suit. The finding of the trial Court on the misjoinder of the 2nd Respondent is, on the facts and the Reliefs sought in the Appellant’s suit and the decisions of the Supreme Court applied on same, well founded. I am in agreement with the trial Court that the appeal could easily be determined without joining the 2nd Respondent.

However, having held that the 2nd Respondent was wrongly joined in the suit, the Court was duty bound to strike out his name from the suit. Sadly, the trial Court omitted to do so. This is the underlying meaning of the 2nd Respondent’s sole Issue.

Secondly, although it is beyond argument that the 2nd Respondent as the Chief Law Officer of the Federation can, in that capacity, be sued in suits involving the Federal Government or its agencies such as the 1st Respondent in this appeal, this general right of a Plaintiff, in this case, the Appellant, is, just like all defined rights, not limitless. This is the purport of the decision by the Supreme Court in A.G. Kano State vs. A. G. Federation (2007) LPELR— 618 where the Apex Court clarified the position thus:
“It is not in dispute that the Attorney General of the Federation can be sued as a Defendant in all civil matters in which a claim can properly be made against the Federal Government or any of its authorized agencies, arising from any act or omission complained of. See Ezomo vs. A. G. Bendel State (1986) 4 NWLR (Pt.36) 448. The Inspector General of Police, is involved in this case is the head of the Nigeria Police Force in Nigeria. It is a force recognized by the State and Federal Government of Nigeria and it is a separate body created by the Constitution with special powers and responsibilities and can be properly sued. See Section 214–216 of 1999 Constitution and Police Act Cap. 359 Laws of the Federation, 1990.
As stated earlier, Attorney General of a State or the Federation can be sued any civil claim or complaint against the Government of a State or the Federation as the case may be, but this can only properly happen where the claim or complaint is directly against the State or Federal Government concerned. In this case, the Federal Government was not directly concerned and no relief was sought against it by the Plaintiff in the action. The provisions of Section 232 of the 1999 Constitution under which the action is purported to be instituted cannot therefore in my view be applicable here.”

​In my considered view, the above decision is unambiguously applicable to the Appellant’s suit as well as the arguments under his Issue 3. In effect, the 2nd Respondent was in context, improperly joined in the suit at the Court and has thus no business defending this appeal as well.

Thirdly, as stated earlier, the trial Court clearly omitted to apply the necessary consequence of its findings that the 2nd Respondent was not properly joined in the suit, which as explained earlier, is to strike out the 2nd Respondent’s name from the suit. By Section 15 of the Court of Appeal Act 1976, this Court is empowered to make any Order necessary for determining the real question in controversy in the appeal. Accordingly, the name of the 2nd Respondent is struck out from this appeal. The Appellant’s Issue 3, as it relates to the 2nd Respondent, is thus resolved against the Appellant.

What appears to be the Appellant’s main worry are as argued under its first and second Issues (supra) which as may be recalled, are on whether the 1st Respondent was right to have deregistered it at a time when it had candidates for elective positions and secondly whether the lower Court was right in following the decision in CA/ABJ/CV/507/2020 ACD & Ors vs. AGF & Ors in its decision that the 1st Respondent acted rightly when it deregistered the Appellant as a political party. After reading the entire arguments canvassed under both Issues, both are easily understood to be inextricably interwoven; such that both can be more appropriately treated together. It is also what the 1st Respondent’s first Issue (supra) and the 3rd and 4th Respondents’ first Issue (supra) are all about. Unarguably, that is what the appeal is all about. Thus, the four Issues will be treated and determined together herein, without forsaking the worth of any.

The pain of the Appellant from those key decisions in the judgment of the lower Court is unmistakable. Owing to the clarity of their presentation, I will not summarise but reproduce their highlight’s here thus:
“1. We respectfully submit that the Supreme Court of Nigeria on the 7th day of May 2021, upheld the judgment of the Court of Appeal which affirmed the power of the 1st Respondent Independent National Electoral Commission (INEC) to deregister political parties, the Appellant inclusive, in the case of National Unity Party v. Independent National Electoral Commission CA/ABJ/CV/426/2020. We respectfully wish to submit that much reliance shall be placed on the judgment of the Court Appeal on the power of INEC to deregister a political party, as opposed to the judgment of the Supreme Court affirming the decision of the Court of Appeal in the appeal with number CA/ABJ/CV/426/2020, in view of the fact that at the material time the Appellant filed its Notice of Appeals, it was the judgment of the Court of Appeal in the case of National Unity Party v. Independent National Electoral Commission CA/ABJ/CV/426/2020 that the Appellant made reference to.
2. It is our respectful submission that the Appellant is not contending the fact that INEC has the powers to deregister a political party. The provision of Section 225A of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is clear to the effect that the INEC has powers to deregister a political party. The bone of contention of the Appellant in the suit that gave rise to this appeal is whether INEC has the powers to deregister the Appellant at a point in time when the Appellant had already fielded candidates who were participating in a local government council election in Enugu State, for it to be known whether any of the concerned candidates of the Appellant can at least a councillorship ‘or chairmanship seat in the 2020 local government council election of Enugu State as envisaged by Section 225A(c)(i) and (iii) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). We respectfully refer my Lord to pages 2 to 3 of the Record for the question reliefs by the Appellant for the determination or the lower Court and the sought thereto.”
See pages 4 to 5 of the Appellant’s Brief.

As I stated earlier, the Appellant’s Issues 1 and 2 are interwoven; because what I find as the main thrust of the arguments under its Issue 2 are thus:
“1. We respectfully submit that the Honourable Court of Appeal in the case of Advanced Congress of Democrats & Ors v Attorney General of the Federation & Ors, Appeal Number CA/ABJ/CV/507/2020 held that the action of the 1st Respondent in deregistering the Appellants as political parties on the 6th day of February 2020 without following due process of law, amounts to the violation of the fundamental right to the freedom of association of the Appellant as guaranteed under Section 40 of the Nigerian Constitution.
2. The deregistration of the Appellants in the case of Advanced Congress of Democrats & Ors v. Attorney General of the Federation & Ors., Appeal Number CA/ABJ/CV/507/2020 was also carried out concurrently with the deregistration of the Appellant herein on the 6th day February 2020 by the 1st Respondent and the circumstances surrounding the appellants in the case of Advanced Congress Democrats & Ors v. Attorney General of the Federation & Ors (Supra), are same with the circumstances that heralded the deregistration of the Appellant herein, It is immaterial that the appellants in the case of Advanced Congress of Democrats & Ors v. Attorney General of the Federation & Ors (Supra), approached the Court to seek redress before they were formally deregistered unlike the case of the Appellant that approached the Court below to seek redress after being deregistered by the 1st Respondent.”

Naturally, the 1st Respondent disagreed; arguing in the contrary thus:
“4.5 My Lords, it is pertinent to state that the conduct or non-conduct of a local government election in Enugu State does not in any form or manner estop the 1st Respondent from exercising its Constitutional given duties. Section 225A clearly stipulates the conditions for the deregistration of a political party, no more, no less, a violation of one condition would warrant the exercise of the powers of the 1st Respondent in which cases the Appellant has to just breach any the sub-provisions before the 1st Respondent can validly exercise any powers vested on it.
4.6. My Lords, the Appellant have contended and argued strenuously in their Argument albeit wrongly that the sponsoring of candidates to contest elective positions in the local government council election of Enugu is enough to stop the 1st Respondent from deregistering them as there is hope that they might be able to fulfil any or one of the requirements of the Constitution. It is important to state that local government elections are the prerogatives of State Electoral bodies whose elections are not unanimous as they are conducted at different times by these bodies and INEC cannot be held back from performing its constitutional duty due to a supposed pendency of a local council election. There is no clear ‘best suitable time for fulfilling all requirements of Section 225A of the 1999 Constitution apart from the General Elections and the Area Council elections in the Federal Capital Territory. More so, it is vital to reiterate that the exposition of the trial Court page 226 of the record is salient and unassailable, this and nothing more is the law, it is reproduced below for ease of reference:
“I am of the well-considered view that Section 225A of the Constitution did not state that the 1st Defendant cannot carry out the exercise where an election is pending and where the party has nominated its candidates. It is trite law that what is not in the constitution should not be read into it”

Down the line, it is further argued for the 1st Respondent that:
– “Firstly, the case of ACD & Ors. vs AGF & INEC, appeal number CA/ABJ/CV/507/2020 are not same with the facts and circumstances of this case.
– Secondly, the Court of Appeal in the said case restated the powers of the 1st Respondent to deregister political parties that did not meet the constitutional requirements as already affirmed by the Supreme Court in NUP vs INEC (supra),
– Thirdly the Court of Appeal nullified the deregistration of the appellants in the ACD & 21 Ors. vs AGF & INEC due to the pendency of the suit prior to the deregistration and not the right to freedom association as wrongly quoted by the Appellant herein in line 3, paragraph b, page 14 (this matter is currently before the Supreme Court),
– Fourthly, the lower Court is not bound to follow the decision of the honourable Court in ACD & 21 Ors, vs AGF & INEC as they are completely different.”
See page 17 of the 1st Respondent’s Brief.

For the 3rd and 4th Respondents, their learned counsel Ikechukwu Onuoma Esq. argued in two limbs; firstly justifying the deregistration of the Appellant and strongly supporting the judgment of the trial Court and secondly, by conducting a critical appraisal of the two judgments by this Court in CA/ABJ/CV/42C/2020 – NUP vs INEC and CA/ABJ/CV/07/2020 ACD vs AGF & Ors and perhaps more instructively distinguishing the latter from the facts and circumstances leading the suit before the trial Court, culminating in the judgment that forms the basis for the appeal.

After highlighting the theme of the Appellant’s case in NUP vs. INEC (supra), he argued thus:
“Without wanting to sound prolix the complaints of the Appellant as summarized above like the case of the Appellant in the decided case of NATIONAL UNITY PARTY V. INEC IN CA/ABJ/CV/426/2020- is ESSENTIALLY SIMILAR. In both cases the complaints entered by the Appellant herein and by the Appellant in the NUP V. INEC were:
i. Not complaints maintainable by law within the meaning of our adjectival laws under reference.
ii. Their complaints and the facts which they were predicated were such that cannot ground the consequential reliefs to set aside the alleged illegal acts of INEC as sought.
iii. None of the grounds on which their application was predicated could ground upon proof, a vitiating compliance against INEC for failing to fulfill the requisite for the exercise of her executive powers as an executive regulatory apparatus.
iv. Predicated on conjectures or rather acts which are not in themselves activities which constitutes/culminates compliance with Section 225A but acts carried out in the of fulfilling the requirement of statute.
For in the instant appeal the Appellant Exhibit A-D holds out herself as having presented candidates for yet to hold Council Election in Enugu State while in the Court of Appeal decision under reference the Appellant thereat also expressed prospects to participate in and maybe have their candidates returned as elected although she failed to present Exhibits in proof of this.”

In distinguishing the decision in ACD vs. INEC (supra), he argued inter alia thus:
“Having given a background of the appeal we consider it pertinent to show how by the findings and deductions in the lead judgment, the appeal in ACD V. INEC (Supra) is different from the instant appeal.
INEC in the case of ACD V. INEC (Supra) upon allegations as contained in paragraphs 4, 5, 6, 22 & 23 of the Appellant’s Amended originating summons; which allegation may be summarized as follows it would be deduced amongst other things that:
i. As at 30/10/2019 there was a pending amended originating summons and application for injunctive reliefs against the INEC not to deregister ACD even before the 6/2/2020 when INEC de-registered them.
ii. The processes referred to above were duly served on the 1st Respondent- INEC on 31/10/2019 INEC disregarded the process referred to above and the ruling of the Court on the application already slated for 17/02/2021 and deregistered the Appellant.
iii. Thereafter the Appellant applied for mandatory injunction for the restoration of their name.
iv. That the action of INEC in de-registering the parties when matter is sub judice constitute gross contempt of Court.
In discharge of the burden of proof reposed on INEC as a statutory body following the allegations of the Appellants as above, she failed to enter a rebuttal by demonstrating that as against those allegations that she did comply with all statutory requisite for deregistration. The forgoing is dissimilar with the circumstances in the instant appeal.”

He argued further:
Yet another point that distinguished the instant appeal from the appeal in ACD V. INEC (Supra) is that the grounds of the complaints in both appeals are not the same. Whereas in the case of ACD v. INEC (Supra) the grounds of the Appellant’s complaints and on which the reliefs they sought were predicated upon was that INEC cannot exercise powers to de-register given the;
a. inconclusive elections within all the constituencies in the Federation
b. fact that since INEC cannot determine the winners in council elections within the Local governments it cannot de-register political parties who failed to win election into such seats.
c. Notoriety of the irregularities and cancellation of election results INEC ought not de-register political parties who could have won elections if election result was not cancelled.
The above is contained in originating summons and in the consequential reliefs reproduced at pages 11-14 of the judgment of the Court in ACD. V. INEC & Ors. (Supra). While the peculiar circumstances of the appeal the instant appeal is that the Appellant complaint against INEC is to the effect that she cannot exercise power pursuant to S, 225A against the Appellant when the Appellant has nominated candidate to vie a forthcoming election.”
See pages 13 and 15 of the 3rd and 4th Respondents’ Brief.

The foregoing is not the only but the main arguments for the parties on the Issues combined here.

From the entire arguments for the parties, it would seem that their only point of agreement is the dominant relevance of the provisions of Section 225A of the Constitution FRN 1999 as amended which the 1st Respondent asserted, rightly or wrongly, in deregistering the Appellant as a political party. Although this Court has decided other previous appeals that were rooted in the same provisions, the Appellant and the Respondents however have disagreed sharply on the relevance of one or the other of those decisions to the present appeal. In particular, while the Appellant argues that it is only the decision in CA/ABJ/CV/507/2020 – Advanced Congress Democrats & Ors v. Attorney General of the Federation & Ors that is relevant and applicable to the present appeal due to the similarity of the facts and legal issues in both, the Respondents have argued in the urging this Court to disregard the Appellant’s referred decision and instead apply yet another the decision of this Court in CA/ABJ/CV/426/2020 – National Unity Party vs. INEC which in the Respondents’ considered view also is the decision that is in all fours with the present appeal. The reasons for their sharp divergence on this point have all been laid bare, albeit in their highlights. The prime reason of the Appellant in both previous appeals for registering their grievance in the Courts below in those cases was their disagreement with the same 1st Respondent (INEC) in deregistering them; just as was the Appellant’s case in this appeal. In effect, both two previous suits and the appeals therefrom that culminated in the two decisions of this Court inNUP vs. INEC and ACD & Ors vs. AGF & Orsas well and the present appeal and the suit leading to it all have one common denominator or feature; being complaint against the 1st Respondent’s power to deregister the Appellants in the respective circumstances they were deregistered. In all, and more particularly in this appeal, the 1st Respondent has referred to and relied mainly on the provisions of Section 225A of the Constitution FRN 1999, as amended as its basis and justification.

​Now, the said provisions of Section 225A provide as follows:
“225A: The Independent National Electoral Commission shall have power to de-register a political party for:
a. Breach of any of the requirements for registration;
b. Failure to win at least twenty-five percent of votes cast in –
i. One state of the Federation in a Presidential election; or
ii. one local government of the State in a Governorship election,
c. failure to win at least:
i. one ward in the Chairmanship election.
ii. one seat in the National or State House of Assembly election; or
iii. One seat in the Counsellorship election”

The sole question submitted before the trial Court by the Appellant was on:
” WHETHER by a holistic interpretation of the provision of Sections 221 and 225A of the Constitution of the Federal Republic of Nigeria 1999, the 1st Defendant has the powers to deregister a political party at a time when the concerned political party has nominated candidates to vie for elective position by a State Independent Electoral Commission in Nigeria?”
by which it sought more significantly for:
“A declaration that the action taken by the 1st Defendant in deregistering the Plaintiff as political party on the 6th day of February 2020, even when the Plaintiff has nominated candidates to vie for political positions in the local government council election of Enugu State scheduled to hold on the 29th day of February 2020, amounts to the violation of the right of the plaintiff to exist as a political association.”
See page 2 of the Record.

In its judgment, the trial Court held inter alia thus:
“Section 225A of the Constitution of the Federal Republic of Nigeria and the power of the 1st defendant to de-register any political party has been judicially affirmed in the case of National Unity Party v INEC (supra). The plaintiff recognized this power and is not in disagreement with the decision of the Court of Appeal on this issue. the plaintiff’s issue for determination is that the 1st defendant does not have the powers to deregister a political party at a time when the concerned political party had nominated candidates to vie for elective positions in the local government council election in Enugu State. The learned counsel for the plaintiff forwarded the decision of the Court of Appeal, Abuja division in the case of Advance Congress of Democrats & Ors v Attorney General of the Federation & Anor (supra) and made submissions on same. With due respect to the learned counsel for the plaintiff, the Court of Appeal sustained the appeal of the Appellants in the case of Advance Congress of Democrats because on the facts, the appellants were already in Court of Appeal affirmed its decision in the case of NUP v. INEC.”
See paces 223 to 224 of the Record of Appeal.

It was on this premise and other allied reasonings by the trial Court that it dismissed the Appellant’s suit. The arguments and submissions for the Appellant before the trial Court which I read in the Written Address at pages 26 to 29 of the Record are in sync with those under the Appellant’s Issues 1 and 2 herein.

As deducible from the entire arguments in the Briefs of the parties, the defining core feature of this appeal lies a lot more in the contested relevance and application of either the two decisions of this Court (supra) than with the interpretation of the constitutional provisions submitted; notwithstanding the inextricable connection of the latter giving rise to the former. Both sides are in agreement that the constitutional provisions submitted have been interpreted previously by this Court in the two decisions referred; each side however disagreeing on which of the two decisions is relevant and applicable to this appeal.

​As reproduced copiously herein earlier, the Appellant’s main argument is that the facts in one of the two decisions namely NUP vs. INEC (supra) differ from those presented in the Appellant’s case because, as the learned counsel for the Appellant argued at page 11 of the Appellant’s Brief, the Appellant herein already had candidates vying for elective positions at the time it was deregistered; unlike the facts in the NUP vs. INEC decision which showed the Appellant therein as merely hoping to win elective positions in election to be held in future. In other words, the Appellant found comfort instead in the other decision in ACD & Ors vs. AGF & (supra) which as argued for the Appellant, is similar in its facts with those in the present appeal; more particularly as both the Appellant therein and the present Appellant were deregistered together under the same circumstances and for the same reasons by the same Respondent.

As reproduced earlier also, the 3rd and 4th Respondents’ main arguments are that the facts in NUP vs INEC are directly similar to those presented by the Appellant in that both the Appellant therein and the present Appellant hinged their cause of action on their conjecture of prospects in a yet to be held election which cannot be maintainable complaints or answer regarding their non-compliance with the provisions of Section 225A of the Constitution (supra). The 3rd and 4th Respondents’ arguments against the relevance and application of the decision in ACD vs. AGF & Ors (supra) is that the said decision is premised largely on the unpardonable acts of contempt by INEC in its disobedience to the Orders of Court and Court process therein; which is not the case in the present appeal.

As said earlier, I have carefully read both decisions that are now the subject of divergent views between the Appellant and the 3rd and 4th Respondents. The more I read the judgment of the trial Court in this appeal, the more I ponder over the Appellants’ twin main Grounds of Appeal (supra) along with the Particulars highlighted thereunder all in the context of the respective arguments canvassed for the parties herein, the more I find myself persuaded in and inclined to the arguments of the learned counsel for the 3rd and 4th Respondents that the Appellant’s facts and case before the trial Court and the Issues presented therefrom for the determination of this Court are all fundamentally similar to those in the decision in NUP vs. INEC (supra). To argue as the Appellant did that the difference between the facts in NUP vs INEC and those in this appeal is that the Appellant herein had candidates vying or rather campaigning for elective position while the Appellant in the NUP vs INEC was also said to be actively engaged in vying for elective positions with the date of such election yet to be ascertained, is with respects, a distinction without a difference. Even if different, at least theoretically, neither of the two scenarios went a step anywhere near complying with the provisions of Section 225 A (b) and (c) of the Constitution (supra). That, in my respectful view, is the core issue as well as the striking similarity of this appeal and the decision in NUP vs. INEC (supra); which, like all its previous decisions, this Court must be bound by.

That is however not the end of it. As commendably confirmed by the learned counsel for the Appellant, the said decision of this Court in NUP vs. INEC (supra) has since been affirmed by the Supreme Court. Having held that the facts forming the decision of this Court in NUP vs. INEC are similar to those in this appeal, the decision of the Supreme Court on same must therefore also be fully applied to the appeal at hand.

Thus, the Appellant’s compassionate prayer that:
“We respectfully submit and pray the Honourable Court not to follow the decision of the Honcurable Court of Appeal that has been upheld by the Supreme Court of Nigeria in the case of National Unity Party vs. Independent National Electoral Commission (supra) in deciding the present appeal…”
can neither be welcomed by nor attract the sympathy of this Court. The trial Court was eminently entitled to distinguish the Appellant’s preferred decision of this Court in ACD & Orc vs. AGF & Ors (supra) from the facts before it and properly applied the decision in NUP vs. INEC (supra); which this Court too now hereby applies in view of the Supreme Court’s affirmation of same.

In effect, just like the Appellant’s third Issue, its main Issues i.e. the first and second Issues are similarly resolved against the Appellant. All the three Issues having thus been resolved, this appeal ends as one without any merit, liable to be and is accordingly dismissed. The judgment of the trial Court in FHC/EN/CS/21/2020 delivered on the 24th of February 2021 is hereby affirmed. Parties shall bear their respective costs on this appeal.

PETER OLABISI IGE, J.C.A.: I had the opportunity of reading in advance, the draft judgment of my Learned Brother GAFAI, JCA.

I agree with his reasoning and conclusion contained in the leading judgment that the judgment in this appeal lacks merit. The judgment of the trial Court in Suit No. FCT/EN/CS/21/2020 delivered on the 24th day of February, 2021 Coram: TAIWO – J is hereby affirmed.
Parties shall bear their respective Costs.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My learned brother, Isah Bature Gafai JCA., had kindly made available to me in advance a draft copy of the leading judgment just delivered. In it, all the issues arising for determination have been admirably put into their proper perspective and brilliantly considered and impeccably resolved against the Appellant in favour of the Respondents.

​My lords, I will just say a word or two by way of my contribution to the rich analysis in the leading judgment. My lords, this appeal, like some few others before it, raises the monumental issue of when can the Independent National Electoral Commission be said to have validly exercised its power to deregister a registered political party in Nigeria pursuant to Section 225A of the Constitution of Nigeria 1999 (as amended)?

Now, by Section 225A of the Constitution of Nigeria 1999 (as amended), it is provided as follows:
“The Independent National Electoral Commission shall have power to deregister a political party for:
a. Breach of any of the requirements for registration:
b. Failure to win at least twenty-five percent of voter cast in –
i. One State of the Federation in a Presidential election; or
ii. One Local Government of the State in a Governorship election,
c. failure to win at least –
i. one ward in the Chairmanship election;
ii. one seat in the National or State House of Assembly elections or;
iii. One seat in the Councillorship election”
​Going by the succinct provisions of the above Section of the Constitution of Nigeria 1999 (as amended), it would appear that the right of INEC to deregister a Registered political party is neither absolute nor left at the whims and caprices of INEC. It is a power which must be exercised in line with the provisions of the said Section to be valid. Thus, where the exercise of this power by INEC lacks compliance with the provisions of the said Section it would be unconstitutional and therefore, invalid. Such an invalid exercise of power by INEC is one which would be subject to the powers of the Court, which if and when properly invoked would result into the nullification of the invalid exercise of that power by INEC. Such circumstances may include a precipitous and contemptuous exercise of that power by INEC against a valid and subsisting order of Court retraining it from so doing. See ACD & Ors V. AGF & Ors (2020) LPELR-51052 (CA).
However, where the power is exercised in strict compliance with the provisions of this said Section, then such an exercise would not only be constitutional and therefore, valid, but even the Court would lack the vires to set aside and nullify the valid exercise of that power by INEC. See National Unity Party V. INEC (2020) LPELR-51135 (CA). See also INEC V. Youth Party (2021) LPELR – 54802 (CA).
In considering whether Section 225A of the Constitution of Nigeria 1999 (as amended) has been complied with or not by INEC. I think futuristic steps or dreams and aspirations of a political party should not and ought not to be reckoned with as sought to be done by the Appellant, that it was planning and hopes to participate in the Local Government Council Elections in Enugu State to be conducted by the 3rd Respondent, the Enugu State Independent Electoral Commission.

On the facts of this appeal as revealed in the Record of Appeal, it was obvious that the Appellant had failed to sustain its registration as a political party in Nigeria in line with the requirement of the law. Thus, having fallen short of the mandatory requirements of Section 225A of the Constitution of Nigeria 1999 (as amended), the Appellant, was in my view and I so firmly hold, subject to the valid exercise of the powers of deregistration as vested in INEC, and having been so deregistered, that is or should be the end of the matter. I see it as a closed chapter! The lower Court was therefore right when It affirmed it as a closed chapter. We here, sitting on appeal, having not seen any reason to interfere, would also lack the power to reopen a validly closed chapter on the existence of the Appellant as a registered political party in Nigeria. The Appellant had ceased to be a registered political party in Nigeria – QED!

However, I am not unaware that the power of deregistration conferred on INEC under Section 225A of the Constitution of Nigeria (as amended) is quite enormous, and must therefore, be exercised responsibly in line with the clear dictates and intention of the makers of the law. It must never be exercised maliciously or mala fide or even capriciously outside the purview of the said Section of the Constitution. But, once this power of deregistration has been exercised bona fide, that is in compliance with the enabling provisions of Section 225A of the Constitution of Nigeria 1999 (as amended), the Court would not interfere with the valid exercise of that power, no matter how enormous, by INEC.

I thought I should pause here to state that the Courts do not supervise INEC in the due exercise of its powers conferred on it by the Constitution and other enabling laws in the land, except as may have been circumscribed by law. Thus, so long as INEC acts within the purview and/or confines of the dictates of the law in exercising this power against a political party, by deregistering it according to law, there is nothing the Courts would do about the valid exercise of this enormous power by INEC the power to bring to an end the life and existence of a hitherto duly registered political party in Nigeria on any of the grounds and/or reasons as set out in Section 225A of the Constitution of Nigeria 1999 (as amended).

​It is for the above few words of mine but for the fuller reasons adroitly marshalled out in the leading judgment that I too hold that the appeal lacks merit and is liable to be dismissed. I too join my noble brother in the leading judgment to strike out this appeal. I shall abide by the consequential order made in the leading judgment, including the order as to no Cost.

Appearances:

C. D. OGBE For Appellant(s)

I. S. MUHAMMAD ESQ for the 1st Respondent.

MAIMUNA LAMI SHIRU (MRS) for the 2nd Respondent.

IKECHUKWU ONUOMA ESQ for the 3rd and 4th Respondents. For Respondent(s)