(2018) LPELR-43885(SC)

Transcription

1 INEC & ANOR v. ASUQUO & ORS CITATION: In the Supreme Court of Nigeria ON FRIDAY, 23RD FEBRUARY, 2018 Suit No: SC.311/2014 MUSA DATTIJO MUHAMMAD KUMAI BAYANG AKA'AHS JOHN INYANG OKORO AMINA ADAMU AUGIE EJEMBI EKO PAUL ADAMU GALINJE SIDI DAUDA BAGE Before Their Lordships: Between 1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 2. THE RESIDENT ELECTORAL COMMISSIONER, CROSS RIVER STATE Justice of the Supreme Court Justice of the Supreme Court Justice of the Supreme Court Justice of the Supreme Court Justice of the Supreme Court Justice of the Supreme Court Justice of the Supreme Court And 1. MURI EDET ETIM ASUQUO 2. CHIEF ANTIGITA A. COBHAM 3. CHIEF BASSEY EKPEYONG ETIM 4. CHIEF EFFIONG BASSEY IMAN (For themselves and on behalf of the people of Ikang Clan, Esighi Clan, Antigha Ene Eyo Clan of Bakassi Local Government Area) RATIO DECIDENDI - Appellant(s) - Respondent(s)

2 1. EVIDENCE - JUDICIAL NOTICE: Whether judicial notice must be taken of all laws and enactments "By Section 122 (2) of the Evidence Act 2011 it is provided that: - "122 (2) the Court shall take judicial notice of - (a) All laws or enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria." The above provision, to my mind, is straight forward and unambiguous. The law is trite that where the words of a statute are clear and unambiguous, the Courts are enjoined to give them their ordinary meaning. It does not require any canon of interpretation. See Skye Bank v. Iwu (2017) LPELR (SC), Saraki v. Federal Republic of Nigeria (2016) LPELR (SC), Board of Customs & Excise v. Barau (1982) 10 SC P. 48. In Onochie v. Odogwu (2006) 6 NWLR (pt. 975) 65 at 89-90, a case cited by the learned counsel for the Appellants herein, it was held by this Court that: - "The use of the word "shall" in a Statute or Rules of Court makes it mandatory that the rule or provision must be obeyed. "Shall is used to express a command or exhortation or what is legally mandatory." It is settled that the word "Shall" when used in a statutory provision imports that a thing must be done. It is a form of command or mandatoriness. It is not permissive. The word is normally given a compulsory meaning as it is intended to denote obligation. See Nwankwo & Ors v. Yar'adua & Ors (2010) 12 NWLR (pt. 1209) 518, Ifezue v. Mbadugha & Anor (1984) LPELR (SC) (1984) 1 SCNLR 427, Chukwuka v. Ezulike (1986) 5 NWLR (pt. 45) 892, Ngige v. Obi (2006) 14 NWLR (pt. 991) P. 1. It follows that the word "Shall" as used in Section 122 (2) of the Evidence Act makes it mandatory for Courts of law to take judicial notice of all laws or enactments and subsidiary legislations made under them and having the force of law in Nigeria. It was therefore mandatory for the Court below to consider and apply Sections 91, 112, 113 and 114 of the Constitution of the Federal Republic of Nigeria in the proceedings before it whether or not they were cited to it by the parties. See Eagle Super Pack Nig. Ltd. v. African Continental Bank Plc (2006) 19 NWLR (pt. 1013) 30, Ado Ibrahim & Co. Ltd. v. Bendel Cement Co. Ltd. (2007) 15 NWLR (pt. 1058) 538."Per OKORO, J.S.C. (Pp , Paras. B-A) - read in context 2. EVIDENCE - JUDICIAL NOTICE: Whether judicial notice must be taken of all laws and enactments "On whether; it is mandatory that the lower Court should have, by virtue of Section 122(2) of the Evidence Act, 2011, taken judicial notice of all provisions of the Constitution material to the extant dispute, the answer is explicit in Section 122(2) of the Evidence Act. It provides inter alia: 122.(2) The Court shall take judicial notice of- (a) all laws or enactments any subsidiary legislation made under them having the force of law now or previously inforce in any part of Nigeria. (b) all Public Acts or Laws passed or to be passed by the National Assembly or a State House of Assembly, as the case may be, and all subsidiary legislations made under them and all local and personal Acts or Laws directed by the National or a State House of Assembly to be judicially noticed: - (c) - (d) - "All Laws or enactment" include the Constitution and other Statutes. There is no ambiguity about the directive of Section 122(2) of the Evidence Act, particularly Paragraphs (a) & (b) thereof. It was mandatory for the lower Court to have considered Sections 91, 112, 113 & 114 of the Constitution viz-a-viz the provisions of the Law No. 7 Cross River State before pronouncing that the Law No. 7 "delineated wards for ease of voters registration for general elections" and that the Law No.7 adjusted "the boundaries of Akpabuyo Local Government Area to accommodate the New Bakassi Local Government Area and by implication the two (sic: State) Constituencies."Per EKO, J.S.C. (Pp , Paras. F-B) - read in context

3 3. LEGISLATION - CROSS RIVER STATE LAW NO 7, 2007: Whether the Cross River State Law No 7, 2007 intends to delineate constituencies for voters registration and conduct of election "As was rightly pointed out by the learned counsel for Appellants in their brief, the crux of the matter in this appeal is the determination of what law governs the registration of voters and the delineation of State Constituencies for the conduct of elections by the Independent National Electoral Commission. And the question which needs an answer here and now is whether the Houses of Assembly of the various States of the Federation (Cross River State House of Assembly in Particular) are empowered to make laws delineating State Constituencies for voter registration and conduct of elections that are binding on the Independent National Electoral Commission. The submission, of the learned counsel for the Respondents in paragraph 3.7 of their brief of argument on page 9 therein is of significant importance. It states: - "The complaint of INEC in pursuing this Appeal is that the Cross River State House of Assembly in enacting law No 7 set out to delineate wards, create State Constituencies and registration of voters in Bakassi and Akpabuyo Local Government Area as presently constituted. This is far from the intendment of the legislators as shown in the long title of Law No 7 of 2007 which reads: - "A law to make provision for the adjustment of the boundaries of Akpabuyo Local Government Area and Bakassi Local Government Area and for other matters connected therewith." Accordingly, as much as the Cross River State House of Assembly did not set out to delineate wards but to adjust boundaries of Bakassi and Akpabuyo in the face of the present day reality, INEC on its part cannot create Local government or even adjust boundaries which the Cross River State House of Assembly is empowered to do by the Constitution." Underlining's mine. I agree with the learned counsel for the Respondents that Cross River State Law No 7 neither set out to, nor create or delineate constituencies or their boundaries. What the Law set out to do and what it actually did was to adjust the boundaries of Akpabuyo and Bakassi Local Government Areas. The learned counsel for the Appellants agrees with this position when he stated clearly in paragraph 4.28 of their brief of argument that: - "... a State House of Assembly cannot make laws with regards to any aspects of an election, be it the delineation of wards, creation of State Constituencies or registration of voters except for Local Government council elections, even so, if the National Assembly has legislated on the local government election, then any State House of Assembly law in that regard to be valid must not be inconsistent with that of the National Assembly."?In other words, both parties agree that Cross River State Law No 7 did not create State Constituencies or anything having to do with elections conducted by the first Appellant. The law is short, about four paragraphs. I shall reproduce it in this judgment for ease of reference. It states: - "CROSS RIVER STATE OF NIGERIA Law No. 7 (2007) A Law to make provisions for the adjustment of the boundaries of Akpabuyo Local Government Area and Bakassi Local Government Area and for other matters connected therewith. BE IT ENACTED by the Cross River State House of Assembly as follows: 1. The boundaries of Akpabuyo Local Government Area and Bakassi Local Government Area are hereby adjusted as follows: (a) Ikang North Ward in Apkabuyo Local Government Area shall be a ward in Bakassi Local Government Area. (b) Ikang Central Ward in Akpabuyo Local Government Area shall be a Ward in Bakassi Local Government Area. (c) Ikang South Ward in Akpabuyo Local Government Area shall be a ward in Bakassi Local Government Area. 2. The Wards named in Section 1 of this Law and all other wards in Bakassi Local Government Area shall be identified numerically. 3. [1] All elected office holders who hold office in the wards mentioned in Section 1 at the commencement of this Law shall continue to hold offices as such until the expiration of their current terms. (2) Assets and liabilities of authorities in the wards named in Section 1 herein shall continue and remain in those wards. (3) Notwithstanding the adjustment in Section 1, the members of staff of Akpabuyo Local Government Council from or deployed to the Wards named in Section 1 shall retain their employment rights, privileges, obligations and seniority in Bakassi Local Government Councilor [sic] in such other Council of the unified Local Government service to which they may untimely be transferred. 4. This Law may be cited as the Akpabuyo and Bakassi Local Government Areas Boundary (Adjustment) Law 2006 and shall be deemed to have come into force on the..., Day of " From the four sections of the entire Law No. 7 of Cross River State, reproduced above, none has alluded to the issue of creation of Constituencies. Rather, the Law, as its long title indicates adjusts the boundary of Akpabuyo Local Government Area by carving out three wards of Ikang North, Ikang Central and Ikang South of Akpabuyo Local Government Area into Bakassi Local Government Area. The Cross River State House of Assembly is empowered to adjust existing Local Government Area boundaries under Section 8 (4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The Section states: "8 (4) - A bill for a law of the House of assembly for the purpose of boundary adjustment of an existing local government area shall only be passed if (a) A request for the boundary adjustment is supported by two thirds majority of members (representing the area demanding and the area affected by the boundary adjustment in each of the following: - (i) The House of Assembly in respect of the area, and (ii) The local government council in respect of the area, is received by the House of Assembly, and (b) A proposal for the boundary adjustment is approved by a simple majority of members of the House of Assembly in respect of the area concerned." A corollary to the above provision is Section 4 (7) of the 1999 Constitution (supra) which grants a House of Assembly power to make laws for the peace, order and good government of the State or any part thereof. No party has challenged the power of the Cross River State House of Assembly to have made law No. 7. There is equally no challenge to the content of that law. What seems to be the problem stems from the perception of the people of Bakassi to the intendment of that law and the interpretation given to it by the Court below, affirming the equally flawed position of the learned trial Judge. The offending portion of the judgment of the lower Court which has triggered this appeal is contained on page 160 of the record of appeal which states: - "Law No. 7 also delineated wards for ease of voter's registration for the general elections. It is also about boundary adjustment of the boundaries of Akpabuyo Local Government Area to accommodate the New Bakassi Local Government Area and by direct implication the two State Constituencies." "Law No. 7 of Cross River State 2007 does not require any further National Assembly enactment for it to be enforceable in law." (underlining mine) By the above decision the Court below is of the opinion that the Appellants must register voters and conduct its elections based on the new wards delineated and the two new State Constituencies of Akpabuyo and Bakassi created by the said Cross River State Law No. 7 of I have read the said piece of legislation over and over again but I am unable to see where it created State Constituencies other than the adjustment of the boundaries of the two Local Government Areas of Akpabuyo and Bakassi. It is trite that in interpreting statutes, Courts are urged to apply the ordinary meaning of words used in the statute. The Court cannot infer an intention which does not appear in the words of the enactment. Neither is a Court allowed to read into an enactment words or sections which the legislature did not state as part of the statute. See Ogbonna v. Attorney General of Imo State (1992) 1 NWLR (pt. 220) 647, Oyeyemi v. Commissioner for Local Government & Ors (1992) 2 NWLR (pt. 226) 661, (1992) LPELR (SC).?Although the short title of an enactment does not necessarily control or limit the contents of the legislation, the contents of Law No. 7 of Cross River State, 2007 are in line with its title already stated in the course of this judgment i.e. the adjustment of the boundaries of the two Local Government areas of Akpabuyo and Bakassi. It is well settled that the history of the circumstances which led to the enactment is generally allowed in the construction of the meaning, aims and scope of the enactment. Such historical factors enable the interpreter or Court to determine whether the statute or where it is an amendment, was intended to alter the law or leave it where it stood before. See Ogbonna v. Attorney General of Imo State (supra), Lami Koro Ojokolobo & Ors v. Lapade Alamu & Anor (1987) 3 NWLR (pt. 61) 377, Uwaifo v. Attorney General Bendel State (1982) 7 SC 1 24, Bronik Motors v. Wema Bank (1983) 1 SCNLR, 296 at 328. The history behind the enactment of Law No. 7 of Cross River State 2007 stems from the ceding of part of Bakassi to Cameroun. There was the need to resettle the displaced people of Bakassi. Thus the enactment of the said law sought to and actually adjusted the boundary of Akpabuyo Local Government Area to make room for the returnees. Nothing in that Law suggests the position of the lower Court that it created or delineated constituencies. The power to create and/or delineate constituencies lies elsewhere as I shall expose anon. Let me now examine the powers of the 1st Appellant - INEC to create and/or review State Constituencies. This power is provided for under Sections 112, 113 and 114 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). These Sections provide: - "112. Subject to the provisions of Sections 91 and 113 of this Constitution, the Independent National Electoral Commission shall divide every State in the Federation into such number of State Constituencies as is equal to three or four times the number of Federal Constituencies within that State The boundaries of each State Constituency shall be such that the number of inhabitants thereof is as nearly equal to the population quota as is reasonably practicable (1) The Independent National Electoral Commission shall review the division of every State into Constituencies at intervals of not less than ten years, and may alter such Constituencies in accordance with the provisions of this section to such extent as it may consider desirable in the light of the review. (2) The Independent National Electoral Commission may at any time carry out such a review and alter the Constituencies in accordance with the provisions of this Section to such extent as it considers necessary in consequence of any alteration of the boundaries of the State or by reason of the holding of a census of the population of Nigeria in pursuance of an Act of the National Assembly." The above provisions are clear and unambiguous and require no canon of interpretation. It is trite that in the interpretation of statutes, the Court is concerned with the intendment of the statute. In this regard, a provision in an enactment must be examined as a whole with a view to determining the object it was intended to serve. It should not be interpreted piecemeal. Such a piecemeal approach is bound to lead to absurd conclusions. And more importantly, it must be interpreted broadly in order not to defeat the intention of its framers. See NURTW & Anor vs RTEAN & Ors (2012) 10 NWLR (pt. 1307) 170, Elabanjo & Anor v. Dawodu (2006) 15 NWLR (pt. 1001) 76, Onyema & Ors v. Oputa & Anor (1987) LPELR (SC). A community reading of Sections 112, 113 and 114 of the 1999 Constitution (supra) clearly show that the power to create, review and/or alter State constituencies for purposes of election to be conducted by the 1st Appellant i.e. INEC resides with the Independent National Electoral Commission. There is no doubt about this even as both parties to this appeal agree that this is the position of the Law. In a sister case, decided by the same panel of the Court below in Appeal No. CA/C/79/2012, INEC & Anor v. Barr. Joe Etene, delivered on 6th December, 2013 (unreported), it was held that: - "...the power to divide every State in the Federation into State Constituencies and review or alter such division from time to time as may be desirable or necessary, by the 1st Appellant is not subject to any State Law however, by the above provisions. It should be realized that these provisions deal with the division of States into State Constituencies for the purposes of elections to be conducted by the 1st Appellant and the adjustment review or alteration of such Constituencies as may be considered desirable or necessary by the 1st Appellant. These provisions have absolutely nothing to do with the issues of creation of Local Government Area in the States or the adjustment of the physical boundaries of such Local Government areas in the States which are primarily conducted for development and not for the conduct of elections for which the divisions, delineations or creation of State Constituencies under the above provisions, are primarily and specifically provided. The Law No. 7 which adjusted the boundaries of Akpabuyo and Bakassi Local Government Areas of Cross River State by naming Ikang North, Central and South wards of Akpabuyo Local Government Area to be in Bakassi Local Government Area did not change, alter or review the division of Cross River State into State Constituencies done or created, marked or delineated by the 1st Appellant in exercise of the power vested in it by the above provisions of Sections 112 and 114 of the Constitution. Law No. 7 was not a must consideration, a limitation or a condition precedent in the exercise of the powers vested in the 1st Appellant by the constitutional provisions above which are not subject to it."?my worry is that the same panel which handed down the above decision also decided the subject matter of this appeal. More worrisome is the fact that the two judgments were delivered on the same date, 6th December, Had the Court below taken time to harmonize their position in the two appeals, they would have avoided the embarrassment which the two conflicting decisions has thrown the parties into. The above decision which I have quoted in extenso, captures the real position of the law in the matter, which is that the power and authority to create, review and/or alter State Constituencies under Sections 112, 113 and, 114 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) are vested and reside in the Independent National Electoral Commission. A State House of Assembly has no power under the Constitution to create, review or alter State Constituencies for the purposes of elections to be conducted by the 1st Appellant in Nigeria. My Lords, what I have been endeavouring to say above is that although the Cross River State House of Assembly is empowered under Sections 4 (7) and 8 (4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to enact Law No. 7 of 2007, it should be restricted to the adjustment of the boundaries between Akpabuyo Local Government Area and Bakassi Local Government Area. That power does not include or extend to creation or alteration or review of State Constituencies for which the 1st Appellant would be mandated to obey. Far from it. The power and authority to create, alter or review State Constituencies in this country is vested in the 1st Appellant by virtue of Sections 112, 113 and 114 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). I have also held that Law No. 7 of 2007 did not create State Constituencies. It only adjusted the boundaries of Akpabuyo and Bakassi Local Government Areas."Per OKORO, J.S.C. (Pp , Paras. E-C) - read in context

4 4. LEGISLATION - CROSS RIVER STATE LAW NO 7, 2007: Whether the Cross River State Law No 7, 2007 intends to delineate constituencies for voters registration and conduct of election "Section 4(7)(a) (b) and (c) of the 1999 Constitution (as amended) invest the National Assembly and the State House of Assembly with legislative powers over the Exclusive and Residual Legislative Lists respectively. The said Section 4(2) and (7)(a) provides as follows: - "4(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in part II of the Second Schedule to this Constitution. (7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say- (a) any matter not included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution. (b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution". The Second Schedule Part 1 to the Constitution lists the items on the Exclusive Legislative List over which the National Assembly consisting of the Senate and House of Representatives exercise their legislative powers while part II contains the concurrent Legislative List. Under this list both the National and State House of Assembly have competence to legislate with the former having an upper hand in areas where there is conflict. Item 22 in the Exclusive Legislative List relates to election to the offices of President and Vice-President or Governor and Deputy Governor and any other office to which a person may be elected under the Constitution and excludes election to a Local Government council or any office in such council. Part II Second Schedule deals with the concurrent Legislative List and items 11 and 12 thereof give the National Assembly and the State House of Assembly power to make laws with respect to the registration of voters and the procedure regulating elections to a Local Government Council. The items are set out as follows: - "11. The National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating election to a Local Government Council. 12. Nothing in paragraph 11 hereof shall preclude a House of Assembly from making laws with respect to election to a Local Government Council in addition to but not inconsistent with any law made by the National Assembly". The Independent National Electoral Commission (INEC), one of the Federal Executive Bodies established under Section 153(1) of the Constitution and listed in Part I - F of the Third Schedule is vested with power under Section 114 of the Constitution to carry out periodic review the division of every State into Constituencies at intervals of not less than ten years, and may alter such Constituencies to such extent as it may consider desirable in the right of the review. Sections 114(2) and 115 of the Constitution go further to state: - "114(2) The Independent National Electoral Commission may at any time carry out such a review and alter the Constituencies in accordance with the provisions of this Section to such extent as it considers necessary in consequence of any alteration of the boundaries of the State or by reason of the holding of a census of the population of Nigeria in pursuance of an Act of the National Assembly Where the boundaries of any State Constituency established under Section 112 of this Constitution are altered in accordance with the provision of Section 114 of this Constitution, that alteration shall come into effect after it has been approved by each House of the National Assembly and after the current life of the House of Assembly". The argument made by the learned counsel for the appellant in paragraph 4.28 of their brief that "... a State House of Assembly cannot make laws with regards to any aspects of an election, be it the delineation of wards, creation of State Constituencies or registration of voters except for Local Government elections underscores the intendment of Section 114(2) of the Constitution. What necessitated the enactment by the Cross River State Law No. 7 of 2007 was to adjust the boundaries of Akpabuyo and Bakassi Local Government Areas following the ceding of part of Bakassi to Cameroun. Learned counsel for the Respondent rightly pointed out that the Cross River State Law No. 7 neither set out to, nor create or delineate constituencies or their boundaries. The Court below was in error when it stated that Law No. 7 also delineated wards for ease of voters' registration for the general elections. However, the Independent National Electoral Commission may be guided but not bound by the Cross River State Law No. 7 in the delineation of Constituencies in Akpabuyo and Bakassi Local Government Areas. The clear intention of the Cross River State House of Assembly in enacting law No. 7 of 2007 is manifested in Section 1 which delineates the boundaries of Akpabuyo Local Government Area and Bakassi Local Government Area."Per AKA'AHS, J.S.C. (Pp , Paras. A-D) - read in context 5. LEGISLATION - CROSS RIVER STATE LAW NO 7, 2007: Whether the Cross River State Law No 7, 2007 intends to delineate constituencies for voters registration and conduct of election "The House of Assembly of Cross River State had enacted the Cross-River State Law No. 7 of 2007, the long title of which is - A law to make provisions for the adjustment of the boundaries of Akpabuyo Local Government Area and Bakassi Local Government Area and other matters connected therewith.?the Law No. 7 provides specifically: i. The boundaries of Akpabuyo Local Government Area and Bakassi Local Government Area are hereby adjusted as follows (a) Ikang North Ward in Akpabuyo Local Government Area shall be a Ward in Bakassi Local Government Area. (b) Ikang Central Ward in Akpabuyo Local Government Area shall be a Ward in Bakassi Local Government Area.?(c) Ikang South Ward in Akpabuyo Local Government Area shall be a Ward in Bakassi Local Government Area. By this boundary adjustment; three Wards in Akpabuyo Local Government, that is: Ikang North Ward, Ikang Central Ward and Ikang South Ward, have been moved from Akpabuyo LGA into Bakassi LGA to form part of Bakassi Local Government Area. The parties herein have not challenged the legislative powers of the Cross River State House of Assembly to enact a law, as it did in the Law No. 7, adjusting boundaries of Local Government Area in the State. The Cross River State House of Assembly draws its legislative powers to undertake the adjustment of the boundaries of the Local Government Areas within the State from Section 8(4) of the 1999 Constitution. The lower Court, while resolving the issue: whether the Law No. 7 enacted by the Cross River House of Assembly required to be further ratified by an Act of the "National Assembly for it to crystallize into an enforceable/operative Law" under the Constitution, had stated at page 160 of the Record, that Law No. 7 did not create or purport to create new Local Government Areas beyond just adjusting the boundaries of two Local Government Areas by moving three Wards from Akpabuyo LGA and merging the said three wards with "the remaining parts of Old Bakassi" Local Government Area. The Law No. 7 does not need or require approval or ratification of the National Assembly for its validity and enforceability. The lower Court further stated: - There was no increase in the number of Local Government Areas already existing in Cross River State. Law No. 7 also delineated Wards for ease of voters registration for the general elections. It is also about boundary adjustment of the boundaries of Akpabuyo Local Government Area to accommodate the New Bakassi Local Government Area and by direct implication the two State Constituencies. The underlined portions of the statement of the lower Court would appear a seeming obiter dictum. The opinion expressed ex gratia had in fact, however, crossed the red line. It was not necessary for the resolution of the issue at hand. At page 161 of the Record the Judgment appealed acknowledged that the Appellants, INEC for short - are empowered to delineate electoral wards and adjust them where appropriate for their own administrative purposes without reference to the 1999 Constitution. This power INEC has "to delineate electoral wards and adjust them where appropriate", is expressly donated by Sections 91, 112, 113 and 114 of the 1999 Constitution, the provisions which I reproduce hereunder, to wit: Subject to the provisions of this Constitution, a House of Assembly of a State shall consist of three or four times the number of seats that State has in the House of Representatives divided in a way to reflect, as far as possible, nearly equal population. Provided a House of Assembly of a State shall consist of not less than twenty-four and not more than forty members Subject to the provisions of Sections 91 and 113 of this Constitution, the Independent National Electoral Commission shall divide every State in the Federation into such number of State Constituencies as is equal to three or four times the number of Federal Constituencies within that State The boundaries of each State Constituency shall be such that the number of inhabitants thereof is as nearly equal to the population quota as is reasonably practicable (1) The Independent National Electoral Commission shall review the division of every State into Constituencies at intervals of not less than ten years, and may alter such Constituencies in accordance with the provisions of this Section to such extent as it may consider desirable in the light of the review. (2) The Independent National Electoral Commission may at any time carry out such a review and alter the Constituencies in accordance with the provisions of this Section to such extent as it considers necessary in consequence of any alteration of the boundaries of the State or by reason of the holding a census of the population of Nigeria in pursuance of an Act of National Assembly. The provisions of the Constitution, particularly Sections 112 & 114 thereof above reproduced; are very clear. They are simply unambiguous in what they provide. That is, that it is the function of INEC to "divide every State in the Federation into such number of State Constituencies as is equal to three or four times the number of Federal Constituencies within the State''. The function includes INEC periodically reviewing "the division of every State into Constituencies at intervals of not less than ten years", and altering "such Constituencies to such extent as it may consider desirable in the light of the review", or "in consequence of any alteration of the boundaries of the State or by reason of the holding of a census of population of Nigeria". I need to reiterate my earlier statement. The Law No.7 of 2007 enacted by the House of Assembly of Cross River State did not create State Electoral Constituencies. The Law also did not pretend to so create electoral Constituencies. That would be ultra vires its powers under Section 8 of the Constitution. It is the function of INEC, however, by virtue of Sections 91, 112, 113 & 114 of the Constitution to divide every State in the Federation into State Constituencies for electoral purpose. Accordingly, my answer to the question, under Issue 1 argued in this appeal, is that in the light of the Constitutional provisions, the Appellants (INEC) cannot be compelled to obey the Law No.7 of Cross-River State in discharge of their legitimate functions of voters registration and the conduct of election in the State Constituencies in Cross River."Per EKO, J.S.C. (Pp , Paras. C-F) - read in context 6. LEGISLATION - CROSS RIVER STATE LAW NO 7, 2007: Whether the Cross River State Law No 7, 2007 intends to delineate constituencies for voters registration and conduct of election "Section 8(a) of the 1999 Constitution of the Federal Republic of Nigeria is very clear. It gives power to the State Houses of Assembly to adjust boundaries of existing Local Government Areas through the procedure laid down in Paragraphs (a) Sub-paragraphs (i)(ii) and Sub-paragraph B of Section 8 (4) of the Constitution. It is plain on the face of law no 7 of Cross River State that the Cross River State House of Assembly did not go beyond its constitutional mandate. Sections 112, 113 and 114 of the Constitution have vested in the Appellant the power and authority to create, alter or review States Constituencies in the country, as such the appellant cannot be compelled to obey any law enacted by the States Houses of Assembly which purports to create, alter or review States Constituencies since such law would be a nullity. Since the Cross River State Law no. 7 adjusted only the boundaries, all authorities including the Appellant shall recognize it to the extent that the law has adjusted the boundaries between Akpabuyo and Bakassi Local Government Areas only."per GALINJE, J.S.C. (Pp , Paras. A-A) - read in context

5 JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Calabar Division delivered on the 6th day of December, 2013 in Appeal No. CAC/C/NAEA/102/12 wherein the lower Court dismissed the appeal of the Appellants herein. The relevant facts leading to this appeal as can be garnered from the record of appeal may be stated as hereunder. The Appellants, upon the ceding of parts of Bakassi Local Government Area of Cross River State to the Republic of Cameroun re-delineated the Bakassi State Constituency to encompass the unceded parts of Bakassi Local Government Area and the Resettlement Areas of Daysprings 1 and 2. That thereafter, the Appellants carried out voter registration and conducted all their elections based on the said re-delineated Bakassi State Constituency. In 2007, the Cross River State Government enacted Cross River State Law No. 7 which carved out three (3) wards of Ikang in Akpabuyo Local Government Area and made them part of Bakassi Local Government Area, which it then referred to as "New Bakassi Local Government Area''. The Respondents and 1

6 some other parties thereafter requested that the Appellants recognize the provisions of the said Cross River State Law No. 7 so as to register voters and conduct all its subsequent elections based on the constituency delineation in the said Cross River State Law No. 7. That some other indigenes of Bakassi Local Government Area also insisted that the Appellants continue to carry out its activities based on the constituency re-delineation it carried out after the said ceding of parts of Bakassi to Cameroun. The Respondents then filed a suit under the originating summons procedure urging the Court to compel the Appellants to obey Cross River State Law No. 7 in the conduct of its 2011 elections. Two questions were posed by the Respondents for the trial Court to answer. These questions are: - 1. Whether the conduct of February 2012 Elections in Bakassi and subsequent ones should be based on ward delineation based on current Bakassi Local Government Area created pursuant to Law No 7 or should be based on ward delineation based on Bakassi Local Government Area as existed before the ceding of Bakassi to the cameroun. 2. Whether given the decision of 2

7 this Honourable Court in suit No. FHC/CA/CS/41/2011 delivered on the 8th July, 2011, INEC can derecognize the three wards of Ikang as Bakassi Local Government Area or do anything contrary to the Orders of the said judgment. Upon the determination of the above questions, the plaintiffs then sought the following declarations or reliefs: - (i) A Declaration that the Defendants conduct the upcoming February 25, 2012 Elections in Bakassi Local Government Area of Cross River State and subsequent ones in accordance with ward delineation based on the current Bakassi Local Government created pursuant to Law No 7 of Cross River State House of Assembly and not based on the ward delineation as existed before the ceding of Bakassi to the Cameroun. (ii) A Declaration that given the decision of this Honourable Court in suit No FHC/CA/CS47/2011 delivered on the 8th July, 2011, the Defendants cannot disregard the three wards of Ikang as the current Bakassi Local Government Area or do anything contrary to the Orders of the said judgment. Another suit (suit No. FHC/CA/CS/21/2012) was also filed by other parties on similar facts also urging the Court to 3

8 compel the Appellants to obey the said Cross River State Law No.7. The Federal High Court delivered judgment in both matters in favour of the Respondents herein. The Appellants appealed both judgments to the Court of Appeal which resulted in two conflicting decisions of the Court below. Appeal No CA/C/79/2012 was resolved in favour of the Appellants upholding their contention that the Appellants cannot be compelled to obey Cross River State Law No.7 of 2007, whereas Appeal No. CA/C/NAEA/102/2012 upheld the decision of the Federal High Court to the effect that Cross River State Law No 7 of 2012 ought to be obeyed by the Appellants. Not being satisfied with the decision of the lower Court in Appeal No CA/C/NAEA/2012 delivered on 6th December, 2013, the Appellants have further appealed to this Court. The Appellants filed Notice of appeal containing one ground on 5th March, 2014 and an amended notice of appeal on two additional grounds of appeal by order of this Court made on 10th December, The Amended Notice of Appeal is dated 30th January, 2015 and filed on same date. From the three grounds of appeal, the appellants have distilled two issues 4

9 for the determination of this appeal as follows: - 1. Whether in the light of Constitutional Provisions, the Appellants can be compelled to obey Cross River State Law No 7 of 2007 so as to register voters and conduct elections based on State Constituencies created by the said Law same being a Law made by a State House of Assembly. 2. Whether it is mandatory by virtue of the provisions of the Evidence Act for a Court of Law to take Judicial Notice of the provision of the Constitution and other statutes before arriving at its decisions. The above issues are contained in Appellants' brief filed on 6th February, 2015 by Victor O. Odjemu Esq, counsel for the appellants who also adopted the said brief on 22nd January, 2018 when this appeal was heard. In the brief of argument filed on 23rd March, 2015 by W. S. Ogar Esq on behalf of the Respondents, the two issues formulated by the appellants are adopted by the respondents. This appeal shall therefore be determined based on these two issues. In the Appellants brief of argument filed on 6th February, 2015 by Victor O. Odjemu Esq, of counsel, it is submitted that the crux of the matter in this 5

10 case is the determination of what law governs the registration of voters and the delineation of State Constituencies for the conduct of elections by the Independent National Electoral Commission. Referring to the judgment of the Court below in CA/C/NAEA/102/2012, learned counsel faults the decision of the lower Court that the Appellants must register voters and conduct its elections based on the new wards delineated and the two new State Constituencies of Akpabuyo and Bakassi by the said Cross River State Law No 7 of According to him, the decision is not supported by any law and that the Court below failed to consider relevant sections of the Constitution before coming to that conclusion. Learned counsel submitted that by virtue of the combined effect of Sections 4 (7) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and item 22, 67 and 68 of the Exclusive Legislative List contained in Part 1 of the Second Schedule to the Constitution, the Cross River State House of Assembly cannot make laws with regards to elections into any office or any matter pertaining to elections except elections into a Local Government 6

11 council. Learned counsel also made reference to items 11- and 12 of the Concurrent Legislative List of the Constitution. It is the final argument of the learned counsel for the appellants that by a community reading of Sections 91, 112, 113, 114 and 115 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the registration of voters and delineation of State Constituencies for elections to be conducted by the Independent National Electoral Commission are issues within the exclusive preserve of the 1st Appellant arid no State House of Assembly can legislate on same or compel the Appellants to comply with any law made by it regarding the subject matter in question. He then urged this Court to hold that the Appellants cannot be compelled to obey Cross River State Law No 7 of 2007 so as to register voters and conduct elections based on State Constituencies delineated by the said law. Learned counsel further urged this Court to resolve this issue in favour of the Appellants. Learned counsel for the Respondents, W. S. Ogar Esq. who also settled the Respondents' brief filed on 23rd March, 2015 and adopted on 22nd January, 2018, the date 7

12 this matter was heard, responded to the above arguments. In a preliminary statement, he opined that the question which calls for an answer is whether the making of law No 7 of 2007 and its purpose overlap the functions of the Appellants to justify their disobedience to the said law. He observed that the Appellants in the exercise of their duty of registration of voters in Bakassi Local Government Area, recognized only the area called Day Spring 1, 2 and the Qua Island and tagged same "The unceded Part of Bakassi" and clothed the said area with Bakassi Local Government Status, registered voters in those areas under Bakassi and all the votes registered in the three (3) wards of Ikang were counted under Akpabuyo, a different Local Government Area entirely. He submitted that the object, the making and the actual result of Law No.7 do not overlap the function of the Appellant and cannot be said to mean merely a law for ward delineation. According to him, the reference to Sections 112, 113, 114 and 115 of the Constitution in preference to Sections 8 (4) and 4 (7) of the Constitution by the Appellants is misconceived. Learned counsel argued that the 8

13 wordings of Sections 112, 113, 114 and 115 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are crystal clear as against Sections 8 (4) and 4 (7) of the same Constitution. That the Constitutional role of the Cross River State House of Assembly expressed in Law No 7 under reference is provided for under Sections 4 (7) and 8 (4) of the Constitution and cannot be confused with the unrelated provisions of Sections 112, 113, 114 and 115 thereof. Learned counsel opined that after the adjustment of the boundaries of Akpabuyo and Bakassi Local Government Areas, which were constitutionally and properly made and which now gave rise to Bakassi as a Local Government, it will not only be absurd but also amounts to an exercise in futility to register voters in the said Bakassi and count the votes for a candidate in Akpabuyo, a different Local Government Area entirely. He concluded that it is not the correct position of the law that mandating the 1st Appellant to count the votes registered in Ikang North, Ikang Central and Ikang South (which now constitute Bakassi Local Government Area) under Bakassi would amount to compelling her to act on a new 9

14 State Constituency created by a State House of Assembly as none has been so created. He urged the Court to resolve this issue in favour of the Respondents. Before resolving this issue, let me quickly state that the Respondents herein had filed Notice of preliminary objection to the hearing of this appeal as contained on pages three (3) to six (6) of the Respondent s brief including arguments thereof. However, at the hearing of this appeal on 22nd January, 2018, the said Notice of preliminary objection was withdrawn by the learned counsel for the Respondents, W. S. Ogar Esq. Consequently, the Notice of preliminary objection, including arguments thereof as contained on pages three to six of the Respondents brief is hereby struck out, having been abandoned. As was rightly pointed out by the learned counsel for Appellants in their brief, the crux of the matter in this appeal is the determination of what law governs the registration of voters and the delineation of State Constituencies for the conduct of elections by the Independent National Electoral Commission. And the question which needs an answer here and now is whether the Houses of Assembly 10

15 of the various States of the Federation (Cross River State House of Assembly in Particular) are empowered to make laws delineating State Constituencies for voter registration and conduct of elections that are binding on the Independent National Electoral Commission. The submission, of the learned counsel for the Respondents in paragraph 3.7 of their brief of argument on page 9 therein is of significant importance. It states: - "The complaint of INEC in pursuing this Appeal is that the Cross River State House of Assembly in enacting law No 7 set out to delineate wards, create State Constituencies and registration of voters in Bakassi and Akpabuyo Local Government Area as presently constituted. This is far from the intendment of the legislators as shown in the long title of Law No 7 of 2007 which reads: - "A law to make provision for the adjustment of the boundaries of Akpabuyo Local Government Area and Bakassi Local Government Area and for other matters connected therewith." Accordingly, as much as the Cross River State House of Assembly did not set out to delineate wards but to adjust boundaries of Bakassi and Akpabuyo in the face of the 11

16 present day reality, INEC on its part cannot create Local government or even adjust boundaries which the Cross River State House of Assembly is empowered to do by the Constitution." Underlining s mine. I agree with the learned counsel for the Respondents that Cross River State Law No 7 neither set out to, nor create or delineate constituencies or their boundaries. What the Law set out to do and what it actually did was to adjust the boundaries of Akpabuyo and Bakassi Local Government Areas. The learned counsel for the Appellants agrees with this position when he stated clearly in paragraph 4.28 of their brief of argument that: - "... a State House of Assembly cannot make laws with regards to any aspects of an election, be it the delineation of wards, creation of State Constituencies or registration of voters except for Local Government council elections, even so, if the National Assembly has legislated on the local government election, then any State House of Assembly law in that regard to be valid must not be inconsistent with that of the National Assembly." In other words, both parties agree that Cross River State Law No 7 did not 12

17 create State Constituencies or anything having to do with elections conducted by the first Appellant. The law is short, about four paragraphs. I shall reproduce it in this judgment for ease of reference. It states: - "CROSS RIVER STATE OF NIGERIA Law No. 7 (2007) A Law to make provisions for the adjustment of the boundaries of Akpabuyo Local Government Area and Bakassi Local Government Area and for other matters connected therewith. BE IT ENACTED by the Cross River State House of Assembly as follows: 1. The boundaries of Akpabuyo Local Government Area and Bakassi Local Government Area are hereby adjusted as follows: (a) Ikang North Ward in Apkabuyo Local Government Area shall be a ward in Bakassi Local Government Area. (b) Ikang Central Ward in Akpabuyo Local Government Area shall be a Ward in Bakassi Local Government Area. (c) Ikang South Ward in Akpabuyo Local Government Area shall be a ward in Bakassi Local Government Area. 2. The Wards named in Section 1 of this Law and all other wards in Bakassi Local Government Area shall be identified numerically. 3. [1] All elected office holders who hold office in the 13

18 wards mentioned in Section 1 at the commencement of this Law shall continue to hold offices as such until the expiration of their current terms. (2) Assets and liabilities of authorities in the wards named in Section 1 herein shall continue and remain in those wards. (3) Notwithstanding the adjustment in Section 1, the members of staff of Akpabuyo Local Government Council from or deployed to the Wards named in Section 1 shall retain their employment rights, privileges, obligations and seniority in Bakassi Local Government Councilor [sic] in such other Council of the unified Local Government service to which they may untimely be transferred. 4. This Law may be cited as the Akpabuyo and Bakassi Local Government Areas Boundary (Adjustment) Law 2006 and shall be deemed to have come into force on the..., Day of 2007." From the four sections of the entire Law No. 7 of Cross River State, reproduced above, none has alluded to the issue of creation of Constituencies. Rather, the Law, as its long title indicates adjusts the boundary of Akpabuyo Local Government Area by carving out three wards of Ikang North, Ikang Central and Ikang South of 14