(2016) LPELR-40926(CA)

Transcription

1 EKEJIUBA v. INEC & ANOR CITATION: TOM SHAIBU YAKUBU RITA NOSAKHARE PEMU In the Court of Appeal In the Enugu Judicial Division Holden at Enugu MISITURA OMODERE BOLAJI-YUSUFF ON THURSDAY, 2ND JUNE, 2016 Suit No: CA/E/170/2014 Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal BARRISTER JEZIE EKEJIUBA - Appellant(s) And 1. INDEPENDENT NATIONAL ELECTORAL COMMISSION 2. ATTORNEY-GENERAL OF THE FEDERATION RATIO DECIDENDI - Respondent(s) 1. CONSTITUTIONAL LAW - SUPREMACY OF THE CONSTITUTION: Effect of any Law or Act that is inconsistent with the Constitution "The law is well settled to the effect that any Act of the National Assembly which is inconsistent with the Constitution is void ab initio. Attor. Gen. Abia State v. Attor. Gen. Federation (2002) 6 NWLR (Pt.763) 264; Attor. Gen. Ondo State v. Attor. Gen. Federation (2002) 9 NWLR (Pt.772) 222; (2002) 6 SCNJ 1. Therefore, since I have found that Section 78(7))(ii) of the Electoral Act, 2010 is in conflict with Section 222 of the Constitution, which is the ground norm and supreme law in Nigeria, the said Section 78(7)(ii) of the Electoral Act, 2010 having met the brick or stone wall and must be broken and struck down. It must always be borne in mind by lawmakers that it is a well settled principle of law that:??????a right conferred or vested by the Constitution cannot be taken away or interfered with by any other legislation or statutory provision except the Constitution itself and any such other law purportedly made abrogating a right conferred by the Constitution will be void to the extent of its inconsistency. See Tukur v. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 at 541; Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508 at 523." Per Iguh, JSC in Adisa v. Oyinwola (2000) LPELR 186 (SC) at pages ; (2000) 10 WRN 125. Further see National Conscience Party (NCP) & Anor v. National Assembly of the Federal Republic of Nigeria & 2 Ors (2016) 1 NWLR (Pt.1492) 1 at 26 (CA)."Per YAKUBU, J.C.A. (Pp , Paras. F-A) - read in context

2 2. ELECTORAL MATTERS - REGISTRATION OF POLITICAL PARTIES : Position of the Constitution on registration of political parties "Unarguably, by virtue of the combined effect of the proviso to Section 40 and paragraph 15(b) of the part 1 of the Third Schedule to the 1999 Constitution (as amended), the 1st respondent is endowed with the power not to accord recognition to any political party, just the same that it has the power to register political parties, to which citizens of Nigeria have the freedom of choice of which of the political parties that the 1st respondent has registered, to belong to for the protection of his interests. Therefore, the 1st respondent possesses enormous powers with respect to the existence of political parties to Nigeria. For, it plays the critical role of determining which political party it would register and also which one it would not accord recognition. To my mind, it is the political association which qualifies to be accorded recognition by the 1st respondent, that it would invariably register. Hence, if a political association does not have what it takes for it to be accorded recognition by the 1st respondent, then it cannot qualify for registration.???therefore, to my mind, according recognition to a political association precedes its registration as a political party by the 1st respondent. The six conditions of registration are well spelt out in the Section 222 of the 1999 Constitution (as amended) thus: "222. No association by whatever name called shall function as a political party, unless - (a) the names and address of its national officers are registered with the Independent National Electoral Commission; (b) the membership of the association is open to every citizen of Nigeria irrespective of his place of origin, circumstances of birth, sex, religion or ethnic grouping; (c) a copy of its constitution is registered in the principal office of the Independent National Electoral Commission in such form as may be prescribed by the Independent National Electoral Commission; (d) any alteration in its registered Constitution is also registered in the principal office of the Independent national Electoral Commission within thirty days of the making of such alteration; (e) the name of the association, its symbol or logo does not contain any ethnic or religious connotation or give the appearance that he activities of the association are confined to a part only of the geographical area of Nigeria; and (f) the headquarters of the association is situated in the Federal Capital Territory, Abuja," In Independent National Electoral Commission (INEC) & Anor v. Alhaji Abdulkadir Balarabe Musa & Ors (2003) 3 NWLR (Pt.806) 72; (2003) 1 S.C. (Pt.1) 106; (2003) LPELR??? 1515 (SC) at p.39, the Supreme Court, per Ayoola, JSC defined the word registration, thus: "Registration is the process of recording the existence of a political party and it provides evidence and certification of compliance with Section 222 of the Constitution. It is evident that a political party cannot be registered as being in existence unless the association has satisfied the conditions of eligibility in Section 222." Then the question is, having been first recognised as a political association and duly registered as a political party, by the 1st respondent, to which citizens of Nigeria, could freely belong in order to protect their interests, all in the exercise of their rights under the 1999 Constitution (as amended), can the same 1st respondent later turn round and de-register such a political party a power which was not provided for under the aforesaid Constitution? For, if the constitution provided for the power to register political parties and not to accord recognition to some other political parties, was it out of place for the same Constitution to have provided that a political party can be deregistered by the 1st respondent, under certain conditions, if that was, the intendment of the framers of the Constitution????I am of the considered opinion that if the framers of the 1999 Constitution, having provided for the recognition of political associations which could metamorphose to political parties through the processes of registration by the 1st respondent pursuant to Section 222 of the Constitution, had the mind that the registered political parties could be deregistered, the conditions for such de-registration would have been spelt out in the Constitution. In order words, since the conditions and processes involved before a political association is registered as a political party by the 1st respondent are clearly spelt out in Section 222 of the Constitution, similarly the processes and conditions for a de-registration of a political party by the 1st respondent, if that was in the mind of the framers of the Constitution, the same would have been clearly set out in the Constitution. I am fortified in my reasoning, having drawn inspiration from the decision of the Supreme Court in INEC v. Musa (supra) at pages thereof, to the effect that: "Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, 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 would not by legislation authorize INEC to do so, unless the Constitution itself has so permitted." per Ayoola, JSC."Per YAKUBU, J.C.A. (Pp , Paras. D- B) - read in context

3 3. EVIDENCE - AFFIDAVIT EVIDENCE: Consequence of uncontroverted affidavit evidence "The law has remained very well settled to the effect that where a party deposes to certain set of facts which the opposing party knows are not true, it is incumbent on the latter to depose to those facts which he knows and says, are true. However, where the opposing party fail or neglect to depose to a counter affidavit and controvert or challenge the facts deposed to in an affidavit in support of an application or an originating summons, as in the instant case, the respondent is deemed to have accepted or admitted the facts deposed to by the deponent in his affidavit. Then the Court will deem such facts as having been duly established. In Re - Amolegbe (2014) 8 NWLR (Pt.1408) 76 at 96 (SC); Federal Airports Authority of Nigeria (FAAN) v. Wammal Express Services (Nig) Ltd (2011) 1 SCNJ 133; Effect v. Independent National Electoral Commission (INEC) & Ors (2011) 1 SCNJ 179; Agbakoba v. Independent National Electoral Commission (INEC) (2008) 18 NWLR (Pt.1119) 489; (2009) 24 WRN 1."Per YAKUBU, J.C.A. (Pp , Paras. F-E) - read in context 4. INTERPRETATION OF STATUTE - LITERAL RULE OF INTERPRETATION: Approach of Court in interpreting the clear and unambiguous words of a statute "The law is no longer recondite, as there are a plethora of authorities by the Supreme Court and this Court, to the effect that the court in interpreting or seeking to know the intention of the legislature as expressed in any statute or the Constitution, must endeavour to give the words used in the Constitution or the Statute, their ordinary and grammatical meaning where the words used in the legislation under consideration by the Court, are plain, clear and unambiguous. Thus, the Courts are not in interpreting or trying to understand the intendment of the legislature in a statute, give meanings to the words used by the legislature which would lead to absurdity, because the interpretation or the meaning so given to the words in the statute were not what was intended by the legislature. Thus, in Ralph Uwazuruike & Ors. v. A-G., Federation (2007) 40 WRN 79; (2007) 2 S.C 169; (2007) All FWLR (Pt.387) 834; (2007) 2 SCNJ 369 at page 378, Ogbuagu, JSC admonished that: "Where the language of a statute is plain, clear and unambiguous, the task of interpretations can hardly arise. It is therefore, the duty of the Courts in such a situation to give the words, their ordinary, natural and grammatical construction unless such interpretation would lead to absurdity or some repugnancy or inconsistency with the rest of the legislation. See the case of Alhaji Adisa v. Oyinwola & Ors. (2000) 10 WRN 125; (2000) FWLR (Pt.8) 1349; (2000) 2 SCNQR (Pt.8) 1349; (2000) 6 S.C (Pt.2) 47; (2000) LRCN; (2000) 10 NWLR (Pt.674) 116; (2000) 6 SCNJ 290." The apex Court, re-echoed the same principle in Calabar Central Co-operative & Ors. v. Bassey Ekpo (2008) 25 WRN 1; (2008) 1-2 S.C. 229; (2008) 6 NWLR (Pt.1083) 362; (2008) 4 SCM 17; (2008) 2 SCNJ 307 at page 328, where Onnoghen, JSC counseled thus:???it is settled law that where the words of a statute or Constitution are clear and unambiguous, they call for no interpretation, the duty of the Court in such a circumstance being to apply the words as used by the legislature." See also, Amalgamated Trustees Ltd v. Association of Discount Houses Ltd (2007) 15 NWLR (pt. 1056) 118 at page 168, Nigerian Army v. Brigadier General Maude Aminu Kanu (2010) 35 WRN 1; (2010) 1 SCNJ 250, Dr. Nwankwo & Ors. v. Alhaji Musa Yar'adua (2010) 45 WRN 1; (2010) 3 SCNJ (Pt.1) 244 at page 392. Furthermore, the Supreme Court, in Amaechi v. Independent National Electoral Commission (2008) 10 WRN 164; (2008) 1 S.C. (Pt.1) 136; (2008) 1 SCNJ 1; (2008) 1 MJSC; (2008) 5 NWLR (pt. 1080) 27 at page 437 stated succinctly that: "The fundamental duty of the Court is to expound the law and not to expand it. It must decide what the law is and not what it ought to be. Where the words used in couching the provisions are clear and unambiguous, they must be given their ordinary and grammatical meanings, no more. And although the judex must always have a resort to the intention of the legislators that intention can only be found in the words used to frame the provisions and nowhere else." And more recently, the same view was re-echoed by Muhammad, JSC in Nigerian Army v. Brig. General Maude Aminu - Kano (2010) 35 WRN 1; (2010) 1 SCNJ 250 at page 276, that: "The provisions of any law made by the legislature are not made for mere fun of it or for the purposes of meeting the whims and caprices of the interpreter. They must be interpreted and applied to meet the circumstances, issues, conditions or situations for which they are made." Further see Jolly Tevoru Nyame v. Federal Republic of Nigeria (2010) 3 SCNJ (pt. 1) 28 at page 66??? 67."Per YAKUBU, J.C.A. (Pp , Paras. C-C) - read in context

4 5. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF CONSTITUTION: Guiding principles in the interpretation of the Constitution "Generally, where a Court is faced with the interpretation of a Constitutional provision or provisions, the entire provisions and any other statutory provision, with respect to the same subject matter must be read together as a whole, so as to clearly determine the real object of the provision and the intendment of the framers of such provisions. This principle was re-stated succinctly in Nigerian Army v. Maude Aminu Kano (supra) at p. 271 per Muhammad, JSC, inter alia: "It is the general practice of the Courts to read statutes on the same subject matter together. Statutes are said to be of the same subject matter where they relate to the same thing or person or they have a common purpose. Such statutes are read, construed or applied together so that the intention of the legislature is discovered from the whole enactments on the same subject matter. In R. v. Lxdale (1755) 1 Burr. 445 at 447, Lord Mansfield stated that where different statutes deal with the same subject matter even when made at different times, expired, or not referring to each other, they shall be taken and construed together, as one system and as explanatory to each other." So also, his Lordship, referred to Attorney-General v. Earnest Augustus (Prince) of Hanover (1957) AC 436 at p. 463 where Viscount Simonds, stated inter alia: "It must often be difficult to say that any terms are clear and unambiguous until they have been read in their context. That is not to Say that the warning is to be disregarded against creating or imagining an ambiguity. It means only that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he had read the whole of it. Until he has done so, he is not entitled to say that it or any part of it is clear or unambiguous."per YAKUBU, J.C.A. (Pp , Paras. C-A) - read in context

5 TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The appellant had approached the Federal High Court of Nigeria, holden at Awka, vide an originating summons, filed on 28th September, 2011, wherein he prayed for the following:- QUESTIONS FOR DETERMINATION 1. Whether or not the provisions of Section 78(7) of the Electoral Act, 2010 (As Amended) are from the date of the commencement of the said Act inconsistent with and violate the provisions of Section 40 of the 1999 Constitution of Nigeria (As amended)? 2. Whether or not the provisions of Section 78(7) of the Electoral Act 2010 (As Amended) enlarged, amended or altered the provisions of Sections 153 and 222 of the 1999 Constitution of Nigeria (As Amended) and curtailed the provisions of Section 40 of the said Constitution? RELIEFS SOUGHT 1. A DECLARATION that the provisions of Section 78(7) of the Electoral Act, 2010 (As Amended) are from the date of the commencement of the said Act inconsistent with and violate the provisions of Section 40 of the 1999 Constitution of Nigeria (As Amended) and are accordingly unconstitutional, null and void and 1

6 inoperative. 2. A DECLARATION that the provisions of Section 78(7) of the Electoral Act, 2010 (As Amended) enlarged, amended or altered the provisions of Sections 153 and 222 of the 1999 Constitution of Nigeria (As Amended) and curtailed the provisions of Section 40 of the said Constitution and are accordingly unconstitutional, null and void and of no effect whatsoever. 3. AN ORDER setting aside, nullifying and or voiding Section 78(7) of the Electoral Act, 2010 (As Amended) pursuant to Section 1(3) of the 1999 Constitution of Nigeria (As Amended). 4. AN ORDER setting aside, nullifying all the steps or actions taken or being taken by the 1st Defendant based or connected with or relating to the exercise of powers under Section 78(7) of Electoral Act, 2010 (As Amended) including the de-registration and withdrawal of Certificate of Registration of Seven (7) recognized political parties in Nigeria namely Democratic Alternative (DA), National Action Council (NAC), National Democratic Liberty Party (NDLP), Masses Movement of Nigeria (MMN), Nigeria Peoples Congress (NPC), Nigeria Elements Progressive Party (NEPP) and National Unity Party (NUP) made on 2

7 18th day of August, 2011 by the 1st Defendant. 5. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st Defendant, Independent National Electoral Commission (INEC) its agents, officers, privies or by any means howsoever from acting or continuing to act on and or putting or continuing to put into effect of the aforesaid provisions of Section 78(7) of Electoral Act, 2010 (As Amended) and or de-register or continue to de-register any of the recognized political parties in Nigeria that have the effect of infringing the Fundamental Human Rights of the Plaintiff and other law abiding members of the recognized political parties in Nigeria. (See pages 1 to 6 of Record). STATEMENT OF RELEVANT FACTS 1. The undisputed facts are that on 18th August, 2011, the 1st Respondent, Independent National Electoral Commission, INEC, de-registered seven (7) recognized political parties in Nigeria. This gave cause for this suit. While this suit was still pending in court to the knowledge of the 1st Respondent, INEC, again on 6th December, 2012, it de-registered another set of Twenty-Eight (28) more recognized political parties in Nigeria bringing the total number of 3

8 political parties de-registered by 1st Respondent's fiat to 35, and continuing unabated in complete contempt of the inherent sanctions and powers of the Court of law. 2. The Plaintiff/Appellant on record filed an originating summons dated 28th September, 2011 with an Affidavit of 26 paragraphs in support deposed to by the Plaintiff/Appellant with 3 Exhibits marked A, B and C and Written Address. (See pages 7 to 30 of Record). A 10 - point Further Affidavit was also filed by the Plaintiff/Appellant on 20/12/12 with 3 Exhibits marked D, E and F. (See pages 31 to 37 of Record). 3. The 1st and 2nd Defendants/Respondents were duly served with all the originating processes but did not file any process in defence. It is on record that on 31st January, 2013, the 2nd Defendant/Respondent was represented in Court as before by N. R. Chude Esq. (Mrs), State Counsel, who confirmed that the 1st Defendant/Respondent was duly served and aware of the pendency of the suit. (See page 72 of Record). 4. The Plaintiff/Appellant on this same day, 31st January, 2013 adopted his written Address as his own argument in the matter and the matter was adjourned to 27th 4

9 February, 2013 for judgment. (See page 73 of Record). 5. However, in the morning of the above date fixed for judgment, the 1st Defendant/Respondent represented by Alhaji S. O. Ibrahim, Chief Legal Officer, filed a Motion for Extension of time to file process in defence. (See pages 38 to 68 of Record). 6. The competence of the said Motion dated 27th February, 2013, which was filed in the morning of the date for judgment at 9.12am and served to the Plaintiff/Appellant in the court-room when parties were awaiting the delivery of the judgment was orally opposed by the Plaintiff/Appellant on record). The Honourable Court after hearing both parties on record held that the 1st Defendant/Respondent cannot be heard to complain about fair hearing and that the Plaintiff/Appellant on the strength of his Affidavit in support of the Originating summons has the locus to institute this action. (See pages 74 to 76 and 85 of Record). 7. The 26-paragraph Affidavit and 10-paragraph Further Affidavit in support of the Originating summons has remained unchallenged and uncontroverted throughout the proceedings at the lower Court. 8. The learned trial judge in 5

10 his judgment dismissed the Appellant's substantive suit. (See pages 77 to 84 of Record). 9. Aggrieved by the said judgment, the Appellant has appealed to this Court. The Appellant shall at the hearing of this Appeal rely on the Notice of Appeal filed on 2nd May, (See pages 92 to 98 of Record). The appellant, in order to prosecute the appeal, prepared by himself, the appellant's brief of argument which was dated and filed on 24rh March, He nominated three issues therein for the determination of the appeal, thus: 1. Whether the learned trial judge was in grave error to have held that the 1st Respondent, INEC, has powers to deregister recognized political parties under the 1999 Constitution of Nigeria as amended? (Issue No. 1 arising from Ground One). 2. Whether the de-registration of recognized political parties in Nigeria by the 1st Respondent, INEC pursuant to Section 78(7) of the Electoral Act, 2010, As amended is inconsistent with and violate the fundamental right to freedom of assembly and association vested in Section 40 of the 1999 Constitution of Nigeria as amended? (Issue No. 2 arising from Ground Two). 3. Whether 6

11 the learned trial judge was in grave error to have dismissed the Appellant's suit? (Issue No. 3 arising from Grounds Three and Four). The 1st respondent's brief of argument, settled by Emmanuel E. Ogbodu, Deputy Director, Legal, INEC, Anambra State, dated and filed on 11th April, 2016 was deemed as properly filed and served, at the hearing of the appeal on 28th April, In it, he identified a sole issue for the determination of the appeal, to wit: Whether the provisions of S.78(7) of the Electoral Act 2010 (as amended) empowering the 1st Respondent to de register political parties infringes on the right to freedom of association of citizens under S. 40 or any other Section of the Constitution of the Federal Republic of Nigeria 1999 (as amended). It is noteworthy that the 2nd Respondent did not file a brief of argument in this appeal. Upon my perusal of the question and reliefs sought in the originating summons; the judgment of the court below; the grounds of appeal and the issues identified by each counsel herein, for the determination of this appeal, I am satisfied with the three issues nominated by the appellant, which are more 7

12 encompassing and I adopt them for the resolution of this appeal. I shall consider and determine them together. Appellant's Arguments" It is the appellant's contention that there is no express provision in Section 153(1)(f) (2) paragraph 15 (a-i) of part 1 of the third schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended); and Section 222 (a-f) of the same 1999 Constitution, that gave the 1st Respondent, INEC, the power to de-register recognized political parties in Nigeria. He also contended that Section 78(7) of the Electoral Act, 2010 (as amended) has the effect of enlarging or altering the provisions of Sections 153 and 222 of the aforementioned 1999 Constitution (as amended), and also taking away, curtailing or limiting the fundamental right conferred by Section 40 of the 1999 Constitution, aforesaid. Furthermore, it is the appellant's contention that the power donated to the 1st Respondent by virtue of Section 228(d) of the same 1999 Constitution (as amended) was only for the purposes of enforcing the due observance and compliance with the provisions of the chapter dealing on political parties and not that the 8

13 1st Respondent can scrap or de-register them. He placed reliance on INEC v. Musa (2003) 3 NWLR (Pt.806) 72, He urged that Section 78(7) of the Electoral Act, 2010 (as amended) be struck down, for it being null, void and inoperative. He referred to Attorney-General, Abia State v. Attorney-General of the Federation (2002) 17 ARN 1 at pages 80 & 143. The appellant insisted that the effect of the de-registration of the political parties, which gave rise to the action that led to this appeal, is that the fundamental rights of the members of such parties, to freedom of assembly and association enshrined in Section 40 of the 1999 Constitution (as amended), became undermined. And that the fact that all the affected deregistered political parties in the instant case had been duly registered by the 1st Respondent was not denied by the 1st respondent. He referred to paragraph 14 of the affidavit and also paragraph 5 of the Further Affidavit, especially Exhibit F, annexed thereto, in support of the originating summons, at pages 10, 31, 32, 35 and 36 respectively, of the record of appeal. He furthermore contended that all the recognized political parties in 9

14 Nigeria, (the de-registered political parties inclusive) are covered and protected by Section 40 of the 1999 Constitution (as amended) against any violation and/or threatened violation of their fundamental rights to freedom of assembly and association. He referred to Sections 40, 46(1) & (2), 6(6)(a) & (b) of the 1999 Constitution (as amended). He referred also to paragraphs 3, 4, 5, 6, 11, 19, 20, 21, 22 and 23 of the affidavit in support of the originating summons. The appellant submitted that the only distinction between the case and the facts in INEC v. Musa (supra) is that whilst the 63 recognized political parties in the present case were already registered and recognized by the 1st Respondent, the 5 political parties in INEC v. Musa (supra) were unregistered and unrecognized political parties or associations and therefore, they were restricted by the proviso to Section 40 of the aforesaid 1999 Constitution (as amended). He furthermore insisted that the right donated in Section 40 of the 1999 Constitution (as amended) cannot be taken away by any other statutory provision, such as Section 78(7) of the Electoral Act, 2010 (as amended). He 10

15 placed reliance on Adisa v. Oyinwola (2000) 10 WRN 125. Therefore, according to him, by virtue of Section 1(1) & (3) of the 1999 Constitution, the said Constitution is supreme and the highest law of the land and that in the exercise of its legislative powers under Section 4(8) of the same 1999 Constitution, no law enacted by the National Assembly must be in conflict with the Constitution. He again referred to Attor. Gen., Abia State v. Attn. Gen. Federation, (supra); Hon. Adeleke v. Oyo State House of Assembly (No.2) (2006) 52 WRN 22. Finally, the appellant contended that since the 26 paragraph affidavit and 10 paragraph further affidavit deposed to by the appellant, in support of the originating summons, were not controverted by the respondents, they should be deemed as unchallenged and admitted. He referred to Agbakoba v. INEC (2009) 24 WRN 1. He urged that since the Court below failed to evaluate the documentary evidence placed before it, this Court by virtue of Section 15 of the Court of Appeal Act, 2004, should exercise its powers and determine the merits of the appellant's originating summons. He called in aid again, Hon. Adeleke v. Oyo State 11

16 House of Assembly (No.2) (supra). The appellant filed a list of additional authority on 13th April, 2016, in reference to National Conscience Party (NCP) & Anor v. National Assembly, FRN & 2 Ors (2016) 1 NWLR (Pt.1492) 1. 1st Respondent's Arguments: The Learned Deputy Director, Legal, for the 1st Respondent submitted that the provisions of Section 78 (7) of the Electoral Act, 2010 (as amended) which empowered the 1st respondent to de-register political parties, are not in conflict with Section 40 of the 1999 Constitution (as amended)' hence it has not infringed on the rights of citizens to associate and form political parties. He also submitted that by virtue of Sections 40, 153 and of the 1999 Constitution (as amended), the 1st Respondent Was donated enormous powers with respect to the registration, existence, functions, management and operations of political parties in Nigeria. And that by the provisions in Sections 153 and 222 of the 1999 Constitution, read together with the express provisions of paragraph 15(b) and (c) of the third schedule to the 1999 Constitution, the 1st respondent was invested with powers to register and 12

17 de-register political parties. He furthermore, submitted that in interpreting the provisions of the Constitution, it must be given a broad and not a narrow interpretation. He referred to Advertising Practitioners Council of Nigeria (APCON) v. The Registered Trustees of International Covenant Ministerial Council (ICMC) (2010) LPELR (CA); Attor. Gen. Ondo State v. Attor. Gen. Federation (2002) 9 NWLR (pt. 772) 222; Aqua Ltd v. Ondo State Sports Council (1989) 2 NWLR (Pt.91) 622; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517. It is the learned Deputy Director's further submission to the effect that since the proviso to Section 40 of the 1999 Constitution (as amended) empowered the 1st respondent not to accord recognition to certain political parties, the only way such political parties are not to be accorded recognition, is through their de-registration by the 1st respondent by virtue of Section 78(7) of the Electoral Act, 2010 (as amended). He insisted that the rights enshrined in Section 40 of the 1999 Constitution, like in other Sections on fundamental rights, are not absolute, hence the promulgation of Section 78(7) of the 13

18 Electoral Act, 2010 (as amended) by the National Assembly by virtue of Section 228 (d) of the 1999 Constitution (as amended). Referring to INEC v. Musa (2003) 3 NWLR (Pt.806) 72, he submitted that the said case emphasized the fact that the National Assembly can legislate to empower the 1st respondent on other areas concerning political parties not already covered under Sections of the 1999 Constitution. Resolution: The law is no longer recondite, as there are a plethora of authorities by the Supreme Court and this Court, to the effect that the court in interpreting or seeking to know the intention of the legislature as expressed in any statute or the Constitution, must endeavour to give the words used in the Constitution or the Statute, their ordinary and grammatical meaning where the words used in the legislation under consideration by the Court, are plain, clear and unambiguous. Thus, the Courts are not in interpreting or trying to understand the intendment of the legislature in a statute, give meanings to the words used by the legislature which would lead to absurdity, because the interpretation or the meaning so given to the 14

19 words in the statute were not what was intended by the legislature. Thus, in Ralph Uwazuruike & Ors. v. A-G., Federation (2007) 40 WRN 79; (2007) 2 S.C 169; (2007) All FWLR (Pt.387) 834; (2007) 2 SCNJ 369 at page 378, Ogbuagu, JSC admonished that: "Where the language of a statute is plain, clear and unambiguous, the task of interpretations can hardly arise. It is therefore, the duty of the Courts in such a situation to give the words, their ordinary, natural and grammatical construction unless such interpretation would lead to absurdity or some repugnancy or inconsistency with the rest of the legislation. See the case of Alhaji Adisa v. Oyinwola & Ors. (2000) 10 WRN 125; (2000) FWLR (Pt.8) 1349; (2000) 2 SCNQR (Pt.8) 1349; (2000) 6 S.C (Pt.2) 47; (2000) LRCN; (2000) 10 NWLR (Pt.674) 116; (2000) 6 SCNJ 290." The apex Court, re-echoed the same principle in Calabar Central Co-operative & Ors. v. Bassey Ekpo (2008) 25 WRN 1; (2008) 1-2 S.C. 229; (2008) 6 NWLR (Pt.1083) 362; (2008) 4 SCM 17; (2008) 2 SCNJ 307 at page 328, where Onnoghen, JSC counseled thus: It is settled law that where the words of a statute or Constitution are 15

20 clear and unambiguous, they call for no interpretation, the duty of the Court in such a circumstance being to apply the words as used by the legislature." See also, Amalgamated Trustees Ltd v. Association of Discount Houses Ltd (2007) 15 NWLR (pt. 1056) 118 at page 168, Nigerian Army v. Brigadier General Maude Aminu Kanu (2010) 35 WRN 1; (2010) 1 SCNJ 250, Dr. Nwankwo & Ors. v. Alhaji Musa Yar'adua (2010) 45 WRN 1; (2010) 3 SCNJ (Pt.1) 244 at page 392. Furthermore, the Supreme Court, in Amaechi v. Independent National Electoral Commission (2008) 10 WRN 164; (2008) 1 S.C. (Pt.1) 136; (2008) 1 SCNJ 1; (2008) 1 MJSC; (2008) 5 NWLR (pt. 1080) 27 at page 437 stated succinctly that: "The fundamental duty of the Court is to expound the law and not to expand it. It must decide what the law is and not what it ought to be. Where the words used in couching the provisions are clear and unambiguous, they must be given their ordinary and grammatical meanings, no more. And although the judex must always have a resort to the intention of the legislators that intention can only be found in the words used to frame the provisions and nowhere else." And 16

21 more recently, the same view was re-echoed by Muhammad, JSC in Nigerian Army v. Brig. General Maude Aminu - Kano (2010) 35 WRN 1; (2010) 1 SCNJ 250 at page 276, that: "The provisions of any law made by the legislature are not made for mere fun of it or for the purposes of meeting the whims and caprices of the interpreter. They must be interpreted and applied to meet the circumstances, issues, conditions or situations for which they are made." Further see Jolly Tevoru Nyame v. Federal Republic of Nigeria (2010) 3 SCNJ (pt. 1) 28 at page Generally, where a Court is faced with the interpretation of a Constitutional provision or provisions, the entire provisions and any other statutory provision, with respect to the same subject matter must be read together as a whole, so as to clearly determine the real object of the provision and the intendment of the framers of such provisions. This principle was re-stated succinctly in Nigerian Army v. Maude Aminu Kano (supra) at p. 271 per Muhammad, JSC, inter alia: "It is the general practice of the Courts to read statutes on the same subject matter together. Statutes are said to be of the 17

22 same subject matter where they relate to the same thing or person or they have a common purpose. Such statutes are read, construed or applied together so that the intention of the legislature is discovered from the whole enactments on the same subject matter. In R. v. Lxdale (1755) 1 Burr. 445 at 447, Lord Mansfield stated that where different statutes deal with the same subject matter even when made at different times, expired, or not referring to each other, they shall be taken and construed together, as one system and as explanatory to each other." So also, his Lordship, referred to Attorney-General v. Earnest Augustus (Prince) of Hanover (1957) AC 436 at p. 463 where Viscount Simonds, stated inter alia: "It must often be difficult to say that any terms are clear and unambiguous until they have been read in their context. That is not to Say that the warning is to be disregarded against creating or imagining an ambiguity. It means only that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he had read the whole of it. Until he has done so, he is not entitled to 18

23 say that it or any part of it is clear or unambiguous." Now, for the purpose of the resolution of this appeal, it is expedient that the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) such as Sections 1(1) & (3); 4(1) & (8), 40; 46(1) & (2); 153(1) & (2); 228(d); paragraph 15 (a) - (i) of Part 1 of the third schedule to the said 1999 Constitution and Section 78(7) of the Electoral Act, 2010 (as amended) be reproduced, for ease of reference and appreciation. SECTION 1.(1) This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (2).. (3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void." 4(1). The legislative powers of the Federal Republic of Nigeria shall be 19

24 vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives. " (8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or House of Assembly shall not enact any law, that outs or purports to oust the jurisdiction of a Court of law or of a judicial tribunal established by law. S. 40 Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests: Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition." S."46 (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be 20

25 contravened in any State in relation to him may apply to a High Court in that State for redress. (2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the Person who makes the application may be entitled under this Chapter." S. 153-(1) There shall be established for the Federation the following bodies namely (1) Independent National Electoral Commission; (2) The composition and powers of each body established by subsection (1) of this section are as contained in Part 1 of the Third Schedule to this Constitution." Paragraph 15(b) & (i) of Part 1 of the Third Schedule to the 1999 Constitution, state, inter alia: "15. The Commission shall have power to (a)... 21

26 (b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly; (i) carry out such other functions as may be conferred upon it by an Act of the National Assembly." Section 78(7)(i) & (ii) of the Electoral Act, 2010 (as amended) provides that: "(7) The Commission shall have power to de-register political parties on the following grounds - (i) breach of any of the requirements for registration; and (ii) for failure to win a seat in the National or State Assembly election." Unarguably, by virtue of the combined effect of the proviso to Section 40 and paragraph 15(b) of the part 1 of the Third Schedule to the 1999 Constitution (as amended), the 1st respondent is endowed with the power not to accord recognition to any political party, just the same that it has the power to register political parties, to which citizens of Nigeria have the freedom of choice of which of the political parties that the 1st 22

27 respondent has registered, to belong to for the protection of his interests. Therefore, the 1st respondent possesses enormous powers with respect to the existence of political parties to Nigeria. For, it plays the critical role of determining which political party it would register and also which one it would not accord recognition. To my mind, it is the political association which qualifies to be accorded recognition by the 1st respondent, that it would invariably register. Hence, if a political association does not have what it takes for it to be accorded recognition by the 1st respondent, then it cannot qualify for registration. Therefore, to my mind, according recognition to a political association precedes its registration as a political party by the 1st respondent. The six conditions of registration are well spelt out in the Section 222 of the 1999 Constitution (as amended) thus: "222. No association by whatever name called shall function as a political party, unless - (a) the names and address of its national officers are registered with the Independent National Electoral Commission; (b) the membership of the association is open to 23

28 every citizen of Nigeria irrespective of his place of origin, circumstances of birth, sex, religion or ethnic grouping; (c) a copy of its constitution is registered in the principal office of the Independent National Electoral Commission in such form as may be prescribed by the Independent National Electoral Commission; (d) any alteration in its registered Constitution is also registered in the principal office of the Independent national Electoral Commission within thirty days of the making of such alteration; (e) the name of the association, its symbol or logo does not contain any ethnic or religious connotation or give the appearance that he activities of the association are confined to a part only of the geographical area of Nigeria; and (f) the headquarters of the association is situated in the Federal Capital Territory, Abuja," In Independent National Electoral Commission (INEC) & Anor v. Alhaji Abdulkadir Balarabe Musa & Ors (2003) 3 NWLR (Pt.806) 72; (2003) 1 S.C. (Pt.1) 106; (2003) LPELR 1515 (SC) at p.39, the Supreme Court, per Ayoola, JSC defined the word registration, thus: "Registration is the process 24

29 of recording the existence of a political party and it provides evidence and certification of compliance with Section 222 of the Constitution. It is evident that a political party cannot be registered as being in existence unless the association has satisfied the conditions of eligibility in Section 222." Then the question is, having been first recognised as a political association and duly registered as a political party, by the 1st respondent, to which citizens of Nigeria, could freely belong in order to protect their interests, all in the exercise of their rights under the 1999 Constitution (as amended), can the same 1st respondent later turn round and de-register such a political party a power which was not provided for under the aforesaid Constitution? For, if the constitution provided for the power to register political parties and not to accord recognition to some other political parties, was it out of place for the same Constitution to have provided that a political party can be de-registered by the 1st respondent, under certain conditions, if that was, the intendment of the framers of the Constitution? I am of the considered opinion that if the 25

30 framers of the 1999 Constitution, having provided for the recognition of political associations which could metamorphose to political parties through the processes of registration by the 1st respondent pursuant to Section 222 of the Constitution, had the mind that the registered political parties could be deregistered, the conditions for such de-registration would have been spelt out in the Constitution. In order words, since the conditions and processes involved before a political association is registered as a political party by the 1st respondent are clearly spelt out in Section 222 of the Constitution, similarly the processes and conditions for a de-registration of a political party by the 1st respondent, if that was in the mind of the framers of the Constitution, the same would have been clearly set out in the Constitution. I am fortified in my reasoning, having drawn inspiration from the decision of the Supreme Court in INEC v. Musa (supra) at pages thereof, to the effect that: "Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the 26

31 Constitution had enacted must show that, and how, 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 would not by legislation authorize INEC to do so, unless the Constitution itself has so permitted." per Ayoola, JSC. It is noteworthy that INEC v. Musa (supra) was premised on the constitutionality of some provisions of the Electoral Act, 2001 as it related to the conditions spelt out by INEC in its guidelines, for the registration of political parties. Hence, INEC v. Musa (supra) did not decide anything with respect to deregistration of political parties by INEC. Unquestionably, the National Assembly by virtue of the combined effect of Sections 4 (1) and 228(d) of the Constitution, has the supreme power to enact laws which would confer power on the 1st respondent in order for the latter to more effectively "ensure that political parties observe the provisions of this part of this 27

32 Chapter", of the Constitution. Therefore, the National Assembly in making laws by which certain powers are to be given to the 1st respondent, with respect to registered political parties, must ensure that such laws do not run at cross purposes with the Constitution. It is against this backdrop that Section 78(7)(ii) of the Electoral Act 2010 (as amended) comes its play. I am of the considered opinion that the framers of the Constitution never contemplated that a registered political party would be deregistered, hence nothing was said at all by the incidents of deregistration of political parties, in the Constitution. Therefore, it appears to me that the enactment of Section 78(7) of the Electoral Act, 2010 by the National Assembly, which empowered the 1st respondent to de-register political parties by virtue of paragraphs (i) & (ii) of Section 78(7) of the Electoral Act, 2010 represents a new idea, but it is inconsistent with Section 222 of the Constitution. The law is well settled to the effect that any Act of the National Assembly which is inconsistent with the Constitution is void ab initio. Attor. Gen. Abia State v. Attor. Gen. Federation (2002) 6 28

33 NWLR (Pt.763) 264; Attor. Gen. Ondo State v. Attor. Gen. Federation (2002) 9 NWLR (Pt.772) 222; (2002) 6 SCNJ 1. Therefore, since I have found that Section 78(7))(ii) of the Electoral Act, 2010 is in conflict with Section 222 of the Constitution, which is the ground norm and supreme law in Nigeria, the said Section 78(7)(ii) of the Electoral Act, 2010 having met the brick or stone wall and must be broken and struck down. It must always be borne in mind by lawmakers that it is a well settled principle of law that: a right conferred or vested by the Constitution cannot be taken away or interfered with by any other legislation or statutory provision except the Constitution itself and any such other law purportedly made abrogating a right conferred by the Constitution will be void to the extent of its inconsistency. See Tukur v. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 at 541; Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508 at 523." Per Iguh, JSC in Adisa v. Oyinwola (2000) LPELR 186 (SC) at pages ; (2000) 10 WRN 125. Further see National Conscience Party (NCP) & Anor v. National Assembly of the Federal Republic of 29

34 Nigeria & 2 Ors (2016) 1 NWLR (Pt.1492) 1 at 26 (CA). It is my firm opinion that the de-registration and withdrawal of Certificates of Registration of the seven (7) recognized and registered political parties, to wit: Democratic Alternative (DA), National Action Council (NAC), National Democratic Liberty Party (NDLP), Masses Movement of Nigeria (MMN), Nigeria Peoples Congress (NPC), Nigeria Elements Progressive Party (NEPP) and National Unity Party (NUP), at the behest of the 1st respondent on l8th August, 2011 was clearly tantamount to denying the aforementioned political parties, their right of existence as political parties, having fulfilled the six conditions stipulated in Section 222 of the Constitution which had enabled them the right to be registered by the 1st respondent. There is no condition spelt out in Section 222 of the Constitution to the effect that whenever any of the political parties which earned their registration, is unable to win a seat in the National or State House of Assembly, such a political party will be sanctioned and deregistered which would culminate in the withdrawal of the affected political party's Certificate of 30

35 Registration. Therefore Section 78(7)(ii) of the Electoral Act, 2010 (as amended) is anti - the provisions of Sections of the Constitution. Hence, the right of the continued existence of the seven political parties, involved in this appeal, cannot be undermined by the 1st respondent. The new idea generated by the lawmakers in the making of Section 78(ii) of the said Electoral Act, 2010 can only be pursued and actualised through an amendment/alteration of the relevant sections of the Constitution discussed above. In sum, I am of the considered and firm opinion that issues 1 and 2 be resolved and they are resolved in favour of the appellant. With respect to the appellant's contention that the facts deposed to by the appellant in the affidavit and further affidavit, filed in support of the originating summons, having not been challenged nor controverted by the respondents, the 1st respondent's learned Deputy Director did not respond to that contention at all. I did not find any counter-affidavit deposed to by the 1st respondent nor by the 2nd respondent. The law has remained very well settled to the effect that where a party deposes to 31