Austin Osarenkhoe, a lawyer examines Section 87(II) of the Electoral Act 2010 and argues that the law is inconsistent with Section 9(6) (a) of the constitution and therefore void as a result of the inconsistency.

Section 87 subsection [11] of Electoral Act 2010 provides: Nothing in this section shall empower the courts to stop the holding of primaries or general election under this Act pending the determination of the suit.

Before Section 87[11], there is Section 87[10] of the Electoral Act 2010 which provides:

Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State for redress.

I submit that Section 87[11] of the Electoral Act 2010 is inconsistent with Sections 4[8], 6[3], 6[6][a], 251[1][r][s], 252[1], [2], 272[1] of the 1999 Constitution, which severally provide:

Section 4[8] of the Constitution provides: 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 ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law. Section 6[3] of the Constitution also provides:

The courts to which this section relates, established by this Constitution for the federation and for the states, specified in subsection [5] [a] to [i] of this section shall be the only superior courts of record in Nigeria;and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record.

Section 6[6][a] of the Constitution provides:

The judicial powers vested in accordance with the foregoing provisions of this section –
[a] shall extend, notwithstanding anything to the contrary in the Constitution, to all inherent powers and sanctions of a court of law.

Sections 251[1] [r] and [s] of the Constitution provide:
Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –[r] any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and [s] such other jurisdiction civil or criminal and whether to the exclusion of any other court or not as may be conferred upon it by an Act of the National Assembly;

Provided that nothing in the provisions of paragraphs [p],[q] and [r] of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity. Sections 252[1] and [2] of the Constitution provide:

For the purpose of exercising any jurisdiction conferred upon it by this Constitution or may be conferred by an Act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a State. Notwithstanding subsection [1] of this section, the National Assembly may by law make provisions conferring upon the federal high court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court more effectively to exercise its jurisdiction.

Section 272[1] of the Constitution provides: Subject to the provisions of section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

By the express provisions of Sections 251[1][r][s] and the proviso thereto of the Constitution, the Federal High Court has jurisdiction to entertain and issue interlocutory injunction pending the determination of the substantive suit over any executive or administrative action or decision of the Federal Government or its agencies, where the action is based on any enactment, law or equity, which Section 87[11] of the Electoral Act 2010 now seeks to prohibit. The words ‘enactment’, ‘law’, etc., used in the proviso thereto relate to and include the Electoral Act 2010 and the Constitution or Guidelines of a political party. Thus, where any provision in such enactment or law, as Section 87[11] of the Electoral Act 2010, prohibits what the Constitution allows, such as interlocutory injunction in this case, such provision in that enactment or law shall be void: See Sections 1[3] and 4[8] of the Constitution.

I submit that the federal or state high court does not derive its power to issue injunction in any matter, including electoral or statutory matters, from the Electoral Act 2010 but from the Constitution which is supreme over the Electoral Act. So, for the National Assembly to enact in Section 87[11] as they did that “Nothing in this section shall empower the courts to stop the holding of primaries or general election under this Act pending the determination of the suit is to bring Section 87[11] of the Electoral Act in contemptuous conflict with Sections 4[8], 6[3], 6[6][a], 251[1][r][s], 252[1] and [2], 272[1] of the Constitution and Section 87[11] of the Electoral Act 2010 must die by voiding under the weight of Sections 1[1] and 3 of the Constitution for daring to be inconsistent with such constitutional provisions which are supreme over it.

INEC is an agency of the Federal Government. I submit also that it is provable that by virtue of the pertinent provisions of the relevant laws in that regard, political parties in Nigeria can be said to be agencies of the Federal Government. These are active gladiators in the political arena.

The Electoral Act 2010 is an Act of the National Assembly. The National Assembly does not have the legislative competence and the constitutional authority to enact a law or make a provision in a law which is inconsistent with any of the provisions of the Constitution as they appear to have done under Section 87[11] of the Electoral Act 2010 against Section 251[1] [r] and [s] of the 1999 Constitution as amended: See Sections 1[3], 4[8] of the Constitution; INEC Vs. MUSA [2003] 10 WRN 1 at 89; AG Abia State VS. AG Federation [2002] 17 WRN 1; AG Ondo State VS. AG Federation [2002] 27 WRN 1

I submit that the National Assembly has no jurisdictional legislative competence to diminish or curtail the jurisdiction of the federal high court as it did under Section 87[11] of the Electoral Act 2010. The legislative jurisdiction the National Assembly has is to increase or confer additional jurisdiction on the federal high court and not to reduce it: See Sections 251[1] and 252[2] of the Constitution; AG Abia State vs. AG Federation [2002] 17 WRN 1 AT 80.

I submit that Section 87[11] of the Electoral Act is also inconsistent with and contradictory of the preceding Section 87[10] of the Electoral Act. Section 87[10] of the Electoral Act having made the issues of nomination or election of aspirants of political parties justiciable and vested in the aspirants the right of access to court for redress, such aspirant is entitled to the fullness of the relief or redress the court has to offer under Sections 6[3], 6[6][a], 252[1], 272[1] of the Constitution. The National Assembly cannot give with one hand and take with the other or subtract from the fullness of what the law or Constitution has given.

I submit that Section 87[11] of the Electoral Act 2010 is an ouster clause and must be strictly construed against the National Assembly as being inconsistent with Section 6[6][a] of the Constitution and therefore void by virtue of Section 1[3] of the Constitution. I submit that the National Assembly lacks the legislative competence, power and jurisdiction to enact or make provision for a clause ousting or purporting to oust the jurisdiction of courts properly vested with such jurisdiction by the Constitution over a particular subject matter: See Section 4[8] of the Constitution; Dada Vs. Gov Kwara State [2005] 4 WRN 168 AT 187-188; Ikime Vs. Edjerode [2002] 10 WRN 46; Nandigbo Vs. Okafor [2003] 52 WRN 1 AT 24-25; AG Abia State Vs. AG Federation[2002] 17 WRN 1.

I submit that what Section 87[11] of the Electoral Act 2010 deals with is interlocutory injunction which is granted or refused after arguments on a motion on notice filed and served by an applicant on a respondent and not interim injunction which is predicated on a motion ex parte without service on a respondent. Thus, the opportunity for the enjoyment of the right to fair hearing of the respondent is afforded to the respondent before the court comes to a discretionary decision whether to grant the injunction or not. Interlocutory Injunction is not automatic. Merely filing it is not a guarantee that it would be granted. But to enact by a legislative fiat or judgment that the court cannot grant it at all in electoral matters even before having the opportunity to consider such application on its merits is to curtail the discretionary jurisdiction of the courts and is therefore inconsistent with the spirit of the relevant provisions of the Constitution hereinbefore stated.

Section 87[11] of the Electoral Act 2010 is inconsistent with the said provisions of the Constitution and the courts should declare it void as such. If not so declared, Section 87[11] of the said Electoral Act 2010 would be abused and employed by a host of unscrupulous politicians and political parties as an instrument of injustice and to perpetrate illegality against perceived political enemies or opponents. This is not good for the health of our nascent democracy. Stop it now before it stops our democracy. I beg to move.

AUSTIN OSARENKHOE wrote in from Benin City.
Phones: 08035302022; 08053311022.