INDEPENDENT NATIONAL ELECTORAL COMMISSION AND ANOTHER v MUSA AND 4 OTHERS (SC 228/2002) [2003] NGSC 17 (24 January 2003)

ISSUES

What is the extent to which the National Assembly may legislate to regulate political parties or by legislation authorise the Independent National Electoral Commission to do so?

Whether the National Assembly was constitutionally empowered to set additional conditions of eligibility for political associations to function as political parties?

Whether guidelines made by the Independent National Electoral Commission were constitutional in the light of Section 222 of the Constitution?

FACTS

The respondents were associations which were seeking registration as political parties. They each applied to the first appellant for such registration. In May 2002, the first appellant released a set of guidelines for the registration of political parties. The respondents sought for a declaration that the said guidelines were inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, and that they should not be made to comply with the guidelines.

The trial Judge granted some of the reliefs sought by the respondent and refused to grant some. Aggrieved by the decision, the respondents appealed to the Court of Appeal and the first appellant cross appealed. The Court of Appeal allowed the main appeal, set aside the trial court's judgment and dismissed in its entirety the cross appeal. The appellants appealed to the Supreme Court.

HELD

1.      On the functions of the Independent National Electoral Commission

The Independent National Electoral Commission is a Federal Executive Body established by Section 153(1) of the Constitution of the Federal Republic of Nigeria, 1999. Section 153(2) empowers it to register political parties in accordance with the provisions of the Constitution. It also has the power to monitor the organisation and operation of the political parties, including their finances and to carry out such other functions as may be conferred upon it by an Act of the National Assembly. Per Ayoola, JSC at 327.

2.      On the regulation of political parties

Although Section 40 of the Constitution entrenches the right of every person to form or belong to a political party, it is clear from the proviso to that Section and several other provisions of the Constitution that the makers of the Constitution did not intend to leave political parties unregulated by the State. Regulation of political parties by the State comes in two forms. It can either occur as regulation directly by the Constitution; and regulation authorised by the legislature or other agency of the State as may be permitted by the Constitution. Any attempt to regulate political parties not by the Constitution itself or by its authority is invalid. Per Ayoola, JSC, at 327.

3.      On the supremacy of the Constitution

Section 1(3) of the Constitution provides that if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail, and the other law shall to the extent of the inconsistency be invalid. Per Ayoola, JSC at 327.

4.      On the limitations on the National Assembly's legislative authority

Where the Constitution has provided exhaustively on a subject, a legislative authority that claims to legislate in addition to what the Constitution has enacted must show that it has derived its legislative authority to do so from the Constitution itself. In this case, Section 222 of the Constitution having set out the conditions upon which an association can function as a political party, the National Assembly could not validly by legislation alter those conditions by addition or subtraction and could not by legislation authorise the first appellant to do so, unless the Constitution itself has so permitted. Per Ayoola, JSC at 327.

5.      On the constitutional validity of the impugned provisions of the Electoral Act 2001

Where the requirements for registration stated in any guideline or in the Act are not purely administrative or procedural or evidential, but are substantive conditions for eligibility beyond the conditions prescribed by Section 222 of the Constitution, such guidelines or provisions would have enlarged the conditions of eligibility in Section 222 and be consequently void, notwithstanding that they may have been described as requirements for registration. The court applied this test to decide on the validity of each of the statutory provisions being challenged by the respondents. Per Ayoola, JSC at 327.

6.      On the scope of Section 222 of the Constitution

A crucial question for determination was whether Section 222 of the Constitution was exhaustive of all situations in respect of recognising political associations as political parties. The court found that it was not. Per Tobi, JSC at page 362.

7.      On the interpretation of the Constitution

The appellants contended for a liberal interpretation of the Constitution, so as to accommodate the guidelines released by the first appellant. The court pointed out that a liberal interpretation of the Constitution is not permissible where the provisions of the Constitution are clear and the intention of the makers of the Constitution are obvious. The golden rule of the interpretation of statutes, including the Constitution, is the intention of the law-maker. Once the intention of the law-maker is clear, resort cannot be had to any liberal interpretation of the Constitution. That is because a liberal interpretation of the Constitution beyond and above the intention of the law-maker will amount to the Judge making law. Per Tobi, JSC at 362.

A.O. Eghobamien, (with him, D.O. Okoh, O.O. Uzzi, N.I. Oghuma (Mrs) A.O. Okeaya-Inneh, F.B. Abdullahi (Miss). H.O. Mark (Miss), I.J. Obasuyi (Miss) and O. Abanum), for the first defendant/appellant.

R. Jacobs, (with him G. Esegine), for the second defendant/appellant.

Chief Gani Fawehimi, SAN, (with him, Alhaji Aliyu Umar, Mohammed Fawehinmi and A. Ugwuzor), for the plaintiffs/respondents.

The following cases were referred to in this judgment:

Nigeria

Adesanya v President of the Federal Republic of Nigeria (1981) 2 NCLR 158

A-G, Abia State v A-G, Federation (2002) 3 SC 106; (2002) 6 NWLR (Part 763) 264

A-G, Bendel State v A-G, Federation (1982) 3 NCLR 1

A-G, Ogun State v A-G Federation (1982) NSCC 1

A-G, Ogun State v A-G, Federation (1982) 3 NCLR 166

A-G, Ondo State v A-G, Federation (2002) 6 SC (Part 1) 1; (2002) 9 NWLR (Part 772) 222

Akagbejo v Ataga (1988) 1 NWLG (Part 534) 459

Aqua Ltd v Ondo State Sports Council (1988) 10-11 SC 31; (1998) 4 NWLR (Part 117) 517

Buhari v Takuma (1994) 2 NWLR (Part 325) 183

C.C.B. (Nig.) Plc. v Samed Investment Co Ltd (2004) 4 NWLR (Part 651) 19

Director SS v Agbakoba (1999) 3 SC 59; (1999) 3 NWLR (Part 595) 314

Ishola v Ajiboye (1994) 6 NWLR (Part 352) 506

Kalu v Odili (1992) 5 NWLR (Part 240)

Lakanmi v A-G, Western State (1971) 1 UILR 201

Madukulu v Nkemdilim (1962) 1 All NLR (Part 4)

Mogaji v Cadbury Nigeria Ltd (1985) 2 NWLR (Part 7) 393

Nigerian Bottling Company Ltd v Ngonadi (1985) 1 NWLR (Part 4) 739

Ogunbanjo v Owoyemi (1993) 1 NWLR (Part 271) 517

Onyema v Oputa (1987) 3 NWLR (Part 60) 259

Oshatoba v Ohijitan (2000) 5 NWLR (Part 655) 159

Oyebode v Ajayi (1993) 1 NWLR (Part 269) 313

Petrojessica Enterprises Ltd v Leventis Trading Co Ltd (1992) 5 NWLR (Part 244) 675

Rabiu v The State (1980) 8-11 SC 130

Salami v Mohammed (2002) 9 NWLR (Part 673) 469

Sken Consult v Ukey (1981) 1 SC

Ude v A-G, Rivers Stat (2002) 4 NWLR (Part 756)

Foreign

A-G, Province of Ontario v A-G, Dominion of Canada (1912) AC 571

Bank of the New South Wales v The Commonwealth (1947-1948) 76 CLR

New South Wales v Brewery Employees Union of South Wales (1908) 6 CLR 469

The following statutes were referred to in this judgment:

Nigeria

Electoral Act 2001: Ss 74(1), (2)(e), (f ), (g), (h), (4), (6); 77(b); 78(2)(b); 79(2)(c); 74(2)(g); 74(h), 2(c), 2(d); 3(a), (c), (d), (iv), (e), (f ), (g), (h); 5(b); 77(b); 78(2)(b); 79(2)(a), (b), (c), (d), (e); 162; 75(2)(c); 162; (5); (7); (8); 72(2) (a),(f )

Constitution of the Federal Republic of Nigeria 1999: Ss 1(3); 4; 4(1); 9(3); 14(1); 15(b); 15(2)(d), (3); 40; 45; 45(1); 45(1)(a); 53; 53(1), (2); 74(2); 153; 221; 222; 222 (a), (b), (c); 223; 224; 225; 226; 227; 228; 229; 228(b), (d);

Exclusive Legislative List: Ss 4(2); 4(4); 15(2); 15(3); 40; 45(1)(a); 56; 67; 69; 153(1); 228(d)

The following Decree was referred to in this judgment:

Decree No 51 of 1966

The following rule was referred to in this judgment:

Nigeria

Court of Appeal Rules 1981: Order 6 rule 4(1)

Ayoola, JSC (Delivered the Leading Judgment):- The respondents in this appeal were the plaintiffs in the Federal High Court Abuja Division, (Adah J). In the Originating Summons commencing the action, the plaintiffs asked for the following reliefs:-

"1.     A declaration that the registration of political parties in Nigeria is governed by the provisions of the Constitution of the Federal Republic of Nigeria, 1999.

2.      A declaration that the first defendant, Independent National Electoral Commission (INEC), cannot prescribe guidelines for the registration of political parties outside the conditions stipulated by the Constitution of the Federal Republic of Nigeria, 1999.

3.      A declaration that Guideline No 3(a) contained in the first defendant's 'Guidelines for the Registration of Political Parties' dated 15 May 2002, issued by the first defendants, Independent National Electoral Commission (INEC) but released to the public on 17 May 2002, which prescribes that an association seeking registration as a political party must submit "the names, residential addresses and states of origin respectively of the members of its National and State Executive Committees and the records of proceedings of the meeting where these officers were elected" is unconstitutional, and therefore null and void in so far as it enjoins such association to submit the names, residential addresses and States of origin respectively of the members of its State Executive Committees, and the records of proceedings of the meetings where both members of its National and State Executive Committees were elected.

4.      A declaration that Guideline No 3(c) contained in the first defendant's 'Guidelines for the Registration of Political Parties' dated 15 May 2002, issued by the first defendant, Independent National Electoral Commission (INEC) but released to the public on 17 May 2002, which prescribes that an association seeking registration as a political party must present "a register showing that its membership is open to every citizen of Nigeria" is unconstitutional and therefore null and void.

5.      A declaration that Guidelines No 3(d)(iv) contained in the first defendant's 'Guidelines for the Registration of Political Parties' dated 15 May 2002, issued by the first defendant, Independent National Electoral Commission (INEC) but released to the public on 17 May 2002, which prescribes that an association seeking registration as a political party must show "a provision that its Constitution and Manifesto conform with the provisions of the 1999 Constitution, the Electoral Act of 2001 and these guidelines" is unconstitutional and therefore null and void in so far as the guideline relates to "the Electoral Act 2001 and these guidelines."

6.      A declaration that Guideline No 3(e) contained in the first defendant's 'Guidelines for the Registration of Political Parties' dated 15 May 2002, issued by the first defendant, Independent National Electoral Commission (INEC) but released to the public on 17 May 2002, which prescribes that an association seeking registration as a political party must have "a register showing the names, residential addresses of persons in at least 24 States of the Federation and FCT who are members of the association" is unconstitutional and therefore null and void.

7.      A declaration that Guideline No 3(f ) contained in the first defendant's 'Guidelines for the Registration of Political Parties' dated 15 May 2002, issued by the first defendant, Independent National Electoral Commission (INEC) but released to the public on 17 May 2002, which prescribes that an association seeking registration as a political party must present "an affidavit sworn to by the Chairman and Secretary of the association to the effect that no member of the National Executive of the association is a member of any other existing party or existing political Association" is unconstitutional and therefore null and void.

8.      A declaration that Guideline No 3(g) contained in the first defendant's 'Guidelines for the Registration of Political Parties' dated 15 May 2002, issued by the first defendant, Independent National Electoral Commission (INEC) but released to the public on 17 May 2002, which prescribes that an association seeking registration as a political party must present "a bank statement indicating the bank account into which all income of the proposed political association has been paid and shall continue to be paid and from which all expenses are paid and shall be paid" is unconstitutional and therefore null and void.

9.      A declaration that Guideline No 3(h) contained in the first defendant's 'Guidelines for the Registration of Political Parties' dated 15 May 2002, issued by the first defendant. Independent National Electoral Commission (INEC) but released to the public on 17 May 2002, which prescribes that an association seeking registration as a political party must submit "the addresses of its offices, list of its staff, list of its operational equipment and furniture in at least 24 States of the Federation" is unconstitutional and therefore null and void.

10.     A declaration that Guideline No 3(h) contained in the first defendant's 'Guidelines for the Registration of Political Parties' dated 15 May 2002, issued by the first defendant, Independent National Electoral Commission (INEC) but released to the public on 17 May 2002, in so far as it prescribes that a party seeking registration must submit a list of its staff, list of its operational equipment and furniture in its headquarters office at Abuja is unconstitutional and therefore null and void.

11.     A declaration that Guideline No 5(b) contained in the first defendant's 'Guidelines for the Registration of Political Parties' dated 15 May 2002, issued by the first defendant, Independent National Electoral Commission (INEC) but released to the public on 17 May 2002, which prescribes that "a person shall not be eligible to be registered as a member of political association seeking to be registered as a political party if he/she is in the civil service of the Federation or of a State" is unconstitutional and therefore null and void.

12.     A declaration that Guideline No 2(d) contained in the first defendant's 'Guidelines for the Registration of Political Parties' dated 15 May 2002, issued by the first defendant, Independent National Electoral Commission (INEC) but released to the public on 17 May 2002, which prescribes that each association seeking registration as a political party must accompany its application with twenty (20) copies of the Association's Constitution is unconstitutional and therefore null and void.

13.     A declaration that Guideline No 2(c) contained in the first defendant's 'Guidelines for the Registration of Political Parties' dated 15 May 2002, issued by the first defendant, Independent National Electoral Commission (INEC) but released to the public on 17 May 2002, which prescribes payment of N100,000 (One Hundred Thousand Naira) by an association, that applies for registration is unconstitutional and therefore null and void.

14.     A declaration that Sections 74(2)(g) and (h), 74(6), 77(b) and 78(2)(b) of the Electoral Act, 2001 which enlarges and 79(2)(c) of the said Act which curtails the provisions of the 1999 Constitution on the registration of political parties are unconstitutional and therefore null and void and of no effect whatsoever.

15.     A perpetual injunction restraining the first defendant, Independent National Electoral Commission (INEC), its agents, officers, privies from basing the registration of political parties either in whole or in part on Guidelines nos. 3(a), 3(c), 3(d)(iv), 3(e), 3(f ), 3(g), 3(h), 5(b), 2(c) and 2(d) or from acting on the said