The Court of Appeal on INEC


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October 3, 2007 - December 2, 2007



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The Judgement of The Court of Appeal and the future of Nigeria's democratic process



(Being Text of a Press Conference Addressed by the National Chairman of the National Conscience Party, Chief Gani Fawehinmi, SAN on Thursday, August 1, 2002 in Lagos, Nigeria)






On Friday, 26 July 2002, the Court of Appeal declared unconstitutional, therefore null and void, all the INEC Guidelines and certain sections of the Electoral Act, 2001 that were contested in a legal suit in which the National Conscience Party (NCP) played a leading role.

By virtue of the said judgment of the Court of Appeal, the following are no longer valid requirements for recognition of political associations as political parties by INEC:




submission of names, residential addresses and States of origin of the members of State Executive Committees and the records of proceedings of the meetings where both members of the National and State Executive Committees were elected [Guideline No. 3(a)].




provision of a register showing that membership is open to every citizen of Nigeria [Guideline No. 3(c)]. Rather, a provision in the association's Constitution that its membership policy is non-discriminatory as contained in section 222(b) of the 1999 Constitution is sufficient.




provision showing that association's Constitution and manifesto conform with Electoral Act, 2001 and INEC Guidelines [Guideline No. 3(d)(iv)].




provision of a register showing the names, residential addresses of persons in at least 24 States of the Federation and FCT who are members of the association [Guideline No. 3(e)].




presentation of an affidavit sworn to by the Chairman and Secretary of the association to the effect that no member of the National Executive of the association is a member of any other existing party or existing political association [Guideline No. 3(f)].




presentation of a bank statement indicating the bank account into which all income of the proposed political association has been paid and shall continue to be paid and from which all expenses are paid and shall be paid [Guideline No. 3(g)].




submission of the addresses of its offices, list of its staff, list of its operational equipment and furniture in at least 24 States of the Federation [Guideline No. 3(h)].




submission of a list of staff, list of operational equipment and furniture on the association's national headquarters office at Abuja [Guideline No. 3(h)].




non-registration of public sector workers as members of a political association seeking registration as political parties [Guideline No. 5(b)]. In other words, the judgment of the Court of Appeal restored the right of public sector workers to join or form political parties of their choice as provided in sections 40 and 222(b) of the 1999 Constitution.




submission of twenty (20) copies of the association's Constitution [Guideline No. 2(d)]. In other words, all that is required is submission of only one (1) copy of the association's Constitution as contained in section 222(c) of the 1999 Constitution.




payment of N100,000.00 (One hundred thousand Naira) registration the by an association seeking registration as a political party.


The Appeal Court also declared unconstitutional, therefore null and void, the following sections of the Electoral Act, 2001 upon which some of the INEC Guidelines were based:





Section 74(2)(g), which prescribes requirement for payment of NI 00,000.00 registration fee.



Section 74(2)(h), which prescribes requirement for the addresses of the offices of the political association in at least two-thirds of the States of the Federation 'spread among the six geo-political zones'.




Section 74(6), which prescribes requirement for payment of N100,000.00 administrative and processing fees.




Section 77(b), which prescribes additional requirement of drawing up a party's Constitution in compliance with INEC guidelines, apart from Chapter 11 of the 1999 Constitution.




Section 78(2)(b), which prescribes a requirement that the Constitution and manifesto of a party must at all times be in compliance with electoral laws and INEC guidelines, apart from being in compliance with the Constitution of the Federal Republic of Nigeria, 1999.




Section 79(2)(c), which provides that a member of the Public Service or Civil Service of the Federation, a State or Local Government or Area Council shall not be eligible to be registered as a member of political party.


For the avoidance of doubt, the court ordered as follows:



1. That the appeal is allowed and that part of the judgment of lower court re sing the declarations sought by the appellants are hereby set aside.

2. That the cross-appeal is devoid of any merit and it is hereby dismissed.

3. That the guidelines 3(a), 3(c), 3(d)(iv), 3(e), 3(f), 3(g), 3(h), 2(d) and 5(g), 2(d) and 5(b) are declared unconstitutional, therefore null and void.

4. That sections 74(2)(g) and (h), 74(6), 77(b), 78(2)(h) and s.79(2)(c) of the Electoral Act 2001 are similarly declared unconstitutional, therefore null and void.

5. That INEC, its agents, officers, privies are restrain from basing the registration of political associations as political parties on the aforesaid offending provisions of the guidelines and the Electoral Act, 2001.

6. That no Order as to costs."

Apart from declaring the contested guidelines and sections of Electoral Act, 2001 unconstitutional, the Court of Appeal went ahead to hold unequivocally that associations that satisfy sections 222 and 223 are automatically qualified as political parties under the Constitution. This means that the following tabulated ten (10) conditions are all that any group of Nigerians needs to satisfy to qualify as a party under the 1999 Constitution.








Names and addresses of national officers registered with the Independent National Electoral Commission.




The membership of the association is open to every citizen of Nigeria irrespective of his place of origin, circumstance of birth, sex, religion or ethnic grouping.




A copy of the association's constitution is registered in the principal office of the INEC in such form as may be prescribed by the INEC.




Any alteration in the registered constitution is also registered in the principal office of the INEC within thirty (30) days of the making of such alteration.



The name of the association, its symbol or logo does not contain any ethnic or religious connotation or give the appearance that the activities of the association are confined to a part only of the geographical area of Nigeria. In other words, it is the name, symbol or logo of an association that should not give the appearance that the activities of the association are confined to only a part of Nigeria - not establishment of state branches as erroneously perceived by INEC,




The headquarters of the association is situated in the Federal Capital Territory, Abuja.




A provision in the constitution of the association to the effect that the principal officers and members of the executive committee or other governing body will be elected on a democratic basis periodically.




A provision in the association's constitution to ensure that the members of the executive committee or other governing body of the political party shall reflect the federal character of Nigeria.




A provision in the association's constitution to the effect that election of officers or members of the executive committees shall take place periodically at regular intervals not exceeding four years. In other words, constitutions may provide for yearly, biennial, triennial or quadrennial delegates conferences where members of the executive committees shall be elected.




For the membership of the national executive committee or other governing body of an association to reflect the federal character of Nigeria, the members thereof must belong to different states not being less in number than two-thirds of all the States of the Federation and the Federal Capital Territory, Abuja.




For the avoidance of doubt, the lead judgment as per Dahiru Musdapher, JCA, held as follows:


"Applying all the principles mentioned above, once an association meets the conditions spelt out under section 222 and section 223, such an association automatically transforms and becomes a political party capable of sponsoring candidates and canvassing for votes in any constitutional recognised elective offices throughout Nigeria. [p. 24 of the lead judgment]. "

Muntaka-Coomassie. JCA supported his learned brother in the lead judgment and therefore added:

'We are operating a constitutional democracy therefore any law, Act or guidelines which were made outside the provisions of the Constitution cannot be allowed to stand and must be struck out as inoperative and 1 so hold. The learned judge of the lower court started very well but, fortunately or unfortunately he suddenly became afraid to create precedent. Learned erudite judge could have seized the opportunity offered to declare all the offending guidelines as null and void. We do so here. I think the Appellants as political associations had since complied with the constitutional requirements for recognition. [p. 15 of judgment by Muntaka-Coomassie, JCA] "


The judgment of the Court of Appeal on party registration has fully exposed INEC under the Chairmanship of Dr. Abel Guobadia as a lawless agency that has no regard for the Constitution of Nigeria, the court of law and the due process of the rule of law.

Rather than give effect to the decision of the Court of Appeal, INEC has, up till date, stubbornly refused to recognise the NCP and other political parties that have satisfied sections 222 and 223 of the 1999 Constitution as ordered by the Court of Appeal.

The initial reaction of INEC was that since some INEC guidelines were declared constitutional by Justice Adah of the Federal High Court, Abuja and the Court of Appeal has declared same guidelines as unconstitutional, only the Supreme Court can establish the legal status of INEC guidelines.

This contention of INEC is a pathetic reflection of ignorance as far as the hierarchical structure of our courts is concerned. From the moment the judgment of the Court of Appeal was read, it rendered the decision of the Federal High Court non-existent. Section 287(2) makes the decision of the Court of Appeal binding on subordinate courts such as the Federal High Court.

For the avoidance of doubt, the provision of section 287(2) provides:

"the decisions of the Court of Appeal shall be enforced in any part of the federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Court of Appeal. "

Another argument of INEC developed on Monday, 29 July 2002 was that a court judgment becomes effective only after 30 days of the issuance of the orders. It is unfortunate that journalists published what INEC Commissioner for Information, Okpo Sam Okpo said without asking him for the source of the law, which provides that court orders can only be enforced only after 30 days.

There is nothing in our laws that says court orders cannot be enforced immediately the orders are made. It is a criminal misinformation and miseducation of the public for INEC to peddle falsehood. Court orders are enforceable instantly until reversed by another validly made court order.

However, INEC is merely engaging in mischief and upholding double standards. It should be recalled that recently, on Saturday, July 27, 2002, the national convention of the All Nigeria Peoples Party (ANPP) could not hold based on court injunctions restraining it. Earlier on Tuesday, 23 July 2002, INEC had been served with one of the injunctions stopping the convention. INEC did not plead the non-existent law of 30 days before court order could be enforced. INEC declined to attend the convention.

In the case of the Court of Appeal judgment on registration of parties, which declared INEC's Guidelines unconstitutional, INEC invented a non-existent law of 30 days to delude itself and hoodwink the unwary. The issue of expiration of 30 days before court orders become enforceable is a contrivance by INEC which is non-existent in our laws.

INEC has now filed a notice to appeal the judgment of the Court of Appeal in the Supreme Court. While appeal is a legitimate right of litigants in a dispute, it is ridiculous for INEC to seek to reverse the judgment of the Court of Appeal on registration of parties. For the mass of the Nigerian people, the crucial issues that have been thrown up by the judgment of the Court of Appeal relate to a choice between freedom and enslavement and a choice between inclusive wider participation and exclusion.

While the judgment of the Court of Appeal empowers the people to fully enjoy their freedom of political association, INEC is desperately concerned with enslaving the people by denying them the enjoyment of the freedom to form or Join parties of their choice, to participate in the political process of our nation.

In other words, while the Court of Appeal opens the door of political incarceration, INEC is hell-bent on locking the iron-gate of political imprisonment. The judgment is also akin to the Court of Appeal expanding the scope of democratic space while INEC, by attempting to reverse the judgment, seeks to shrink the scope of democratic political space.

Ordinarily, INEC officials should celebrate the judgment of the Court of Appeal. But INEC mourns while the people rejoice. It therefore raises the question: whose interest does INEC serve - the interest of the people or the interest of power-wielders who are bent on preventing the emergence of credible and formidable opposition political parties in the contest for power? Who is complaining that his/her rights have been infringed by the judgment of the Court of Appeal? Who gains and who loses by the judgment of the Court of Appeal? The people have gained because they now enjoy the full freedom to form or join political parties of their choice while existing parties and public officials controlling power at different levels at the present time are the aggrieved because the judgment of the Court of Appeal will facilitate emergence of credible political parties that are reflective of the aspirations and interests of the downtrodden and a wider spectrum.

INEC must therefore be told that the game is up! Our people can no longer be deceived and denigrated with impunity. Guobadia and his colleagues who are pre-occupied with conspiring to enslave the Nigerian people must come to terms with reality. It is too late in the history of Nigeria for anybody or institution to want to play games with the interest and stability of the country without paying dearly for it.


It is now common knowledge that of the three arms that make up government in a democracy, it is the Judiciary that is saddled with the duty of resolving disputes. This is so, whether the dispute is between two individuals or an individual against any agency of government or between different arms or levels of government.

Furthermore, the cornerstone and fundamental anchor of the rule of law is that parties to a dispute which has been submitted to court for adjudication must abide by whatever order or orders that the court makes during the pendency of the suit, and the final decision or judgment of the court at the end of the case.

In the case of Mobil Oil (Nig.) Ltd v. Assan (1995) 8 NWLR (Pt.412) 129 the Supreme Court of Nigeria as per Honourable Justice Muhammadu Lawal Uwais, JSC (as he then was) bad this to say at page 148:

"It is the plain and unqualified obligation of every person, against or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged or set aside on appeal. This extends even to cases where the person affected by an order believes it to be irregular or even void. "

Consequently, any litigant who refuses to obey the orders of the court or its final decision or judgment, is challenging the Constitution of the land, the State as a whole, all its institutions and the entirety of the populace. This forms the basis of section 287 of the Constitution of the Federal Republic of Nigeria, 1999, the contents of which are a re-enactment of identical provisions in earlier versions of the Constitution. In the case of the judgment of the Court of Appeal under reference, section 287(2) provides as follows:

"the decisions of the Court of Appeal shall be enforced in any part of the federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Court of Appeal. "

It is worthy of note that in declaring the INEC guidelines and specific sections of the Electoral Act as unconstitutional, null and void, the Court of Appeal made a number of orders. As per Honourable Justice Dahiru Musdapher, JCA at page 28 of his judgment:

"I accordingly declare guidelines 3(a), 3(c), 3(d)(iv), 3(e), 3(f), 3 (g), 3(h), 2(d) and 5(g) and ... 5 (b) unconstitutional, therefore null and void. Similarly I declare sections 72(2) (g) and (h), 74(6), 77(g), 78(h) and 79(2)(c) of the Electoral Act, 2001 as unconstitutional, therefore null and void.

I also restrain the INEC, its agents, officers, privies from basing the registration of Political Associations as Political Parties on the aforesaid offending provisions of the guidelines and the Electoral Act 2001. "

As per Honourable Justice M. S. Muntaka-Coomassie, JCA at page 15 of his judgment, His Lordship had this to say:

'I think the Appellant as Political Associations had since complied with the constitutional requirements for recognition. "

On Monday, 29 July 2002, we of the NCP brought the existence of the judgment and the enrolled order of the court to the attention of Dr. Abel Guobadia, INEC Chairman. The situation as it is today is that the continued refusal of INEC to issue a public statement, that it now recognises the NCP as a political party and to issue a certificate of registration to that effect, is a perpetuation of INEC's retention of its guidelines, which the Court of Appeal has held to be illegal, unconstitutional, null and void.

The intransigence of INEC is not helped by the notice of appeal already filed by INEC. This is so, because it is elementary that until the Supreme Court actually holds or orders otherwise, the subsisting judgment of the Court of Appeal represents the law which INEC is duty bound to obey and uphold. Anything to the contrary means a governmental agency is inviting anarchy into our national life.

As Honourable Justice Chukwudifu Oputa, JSC (as he then was) had cause to warn in the celebrated case of Governor of Lagos State V. Ojukwu (1986) 1 NWLR (Pt. 18) 621 at 64 1:

"The Court system cannot be maintained without the willingness of parties to abide by the findings and orders of a competent court until reversed on appeal. This presupposes that no party... can say 'I do not like the order made and I will not obey it'... that posture has to be condemned in the strongest of terms if we are not to say goodbye to the rule of law. "

As Honourable Justice Muhammadu Lawal Uwais, JSC (as he then was) pronounced in the same case at page 639:

"If governments treat court orders with levity and contempt, the confidence of the citizen in the courts will seriously eroded and the effect of that will be the beginning of anarchy in replacement of the rule of law. If anyone should be wary of orders of court, it is the authorities, for they more than anyone else, need the application of the rule of law in order to govern properly and effectively. "

Ten years later, in the case of Ibrahim v. Mari (1996) 2 NWLR (Pt.430) Honourable Justice Ibrahim Tanko Muhammed of the Kaduna the Court of Appeal had this to say:

"I am of the firm view that for a nation such as ours to have stability and respect for democracy, obviously (the) rule of law must be allowed to follow its normal course unencumbered. If for any reason the Executive arm of government refuses to comply with court orders, 1 am afraid that arm is promoting anarchy and executive indiscipline capable Of wrecking the organic framework of the society .... "

Ladies and Gentlemen of the Press, fellow countrymen and women, this is at stake over INEC's brazenly recalcitrant attitude to the judgment of the Court of Appeal over the registration of the NCP and the other parties.


The NCP opposes the proposed Local Government Election on August because 10, 2002 because it will not only disenfranchise millions of eligible voters, it will also amount to an unconstitutional and illegal act.

Unconstitutionality and Illegality


Item 15(e), Part 1 of the Third Schedule to the Constitution requires the revised register of voters ‘for the purpose of any election under this Constitution'. The local government election is an election under the 1999 Constitution. In fact, Item 3(b), Part 11 of the Third Schedule to the Constitution asserts that the register of voters 'Is applicable to local government elections in the State' and that the State Independent Electoral Commission has a duty to 'render such advice as it may consider necessary to the Independent National Electoral Commission on the compilation of the register of voters.

From the foregoing, a fundamental condition precedent to holding a constitutionally valid election is the revision of voters' register. The controversial Electoral Act, 2001, in the sections that have not been struck out by either the Supreme Court or the Court of Appeal, provides that:

"At least 30 days before the commencement of the general registration exercise aforesaid, the Commission shall issue to all the political parties a booklet containing the full list of all the Registration Centre in the Country. (section 1(6) of the Electoral Act, 2001)

As a constitutionally qualified and registered political party, the NCP has not received the list of all the Registration Centres from INEC. In other words, under the laws governing our constitutional democracy, revision of voters register cannot be carried out secretly without the involvement of the registered political parties, because according to section 1(7) of the Electoral Act, 2001:

"Every political party shall have the right to send up to two representatives or agents to each Registration Centre to observe the registration exercises. "

It is also provided that for any election to be constitutionally valid, among other conditions:

"The registration of voters and or the up-dating of the register of voters under this section shall stop not later less than 60 days before any election covered by this Act. (section 1 (5) of the Electoral Act, 2 001)

In a democracy based on a Constitution, deviation from the constitutional provisions is nothing but an invitation to chaos and political instability. In a situation where government acts outside constitutional provisions, what obtains in such a society is not democracy but dictatorship. It offends our own sensibility that some people who find themselves in position of power can contemplate ruling our society based on their own whims and caprices rather than the predetermined rules codified in the Constitution.

We recognise that the Federal Government, in collaboration with INEC is playing dirty politics with the delay in revising the voters' register. But the State governments' resort to unconstitutionality cannot solve the problem. The responsibility of all well-meaning Nigerians, the press and the judiciary is to insist that the organs of government, government agencies and public officials at all levels carry out their constitutional responsibilities within the armbit of the Jaw.


Section 153(1)(f) of the 1999 Constitution establishes INEC. Section 153(2) provides for the powers of INEC as contained in Part 1 of the Third Schedule to the Constitution.

According to Item 15, Part 1 of the Third Schedule to the Constitution, INEC is empowered to carry out three principal functions:


(i) organise, undertake and supervise all elections provided for in the Constitution [item 15(a)].

(ii) register political parties in accordance with the provisions of the Constitution and an Act of the National Assembly [item 15(b)].

(iii) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under the Constitution [item 15(e)].


Since 1999, despite the huge sum of money it has received, INEC has been unable to carry out any of the constitutional principal responsibilities lawfully. What it has done so far has been in breach of the clear constitutional provisions. By-elections had been conducted without revising the voters register, thereby disenfranchising millions of eligible voters and providing room for rigging and election of public officers by a minority of the electorate.

On June 221 2002, three new parties were registered and 30 others were denied registration based on unconstitutional grounds, which the Court of Appeal has declared null and void. Voters register has not been revised on the excuse that money was not released early enough for the purpose. When money was released, INEC gave another excuse that the required equipment could not be delivered by the contractors. A financial scandal, involving either N124million or N395million in the process of awarding the contract for the supply and computerisation of the voters' registration exercise has just been exposed.

Everything is wrong with INEC. To make matters worse, INEC has refused to obey court orders in respect of the judgment of the Court of Appeal. Going by its abysmal record, the capacity of INEC as presently constituted to conduct a free and fair election is questionable.

Apart from the foregoing, the horrifying pronouncements of key officials of INEC portray them, not as disinterested neutral umpires but partisan politicians whose only interest is to clear the way for incumbent parties and elected public officials. In this regard, we recall the statements by the Chairman of INEC, Dr. Abel Guobadia who described new parties as ‘small', 'unserious', lacking in 'big size of bank accounts'.

The INEC Commissioner for Information, Mr. Okpo Sam Okpo has followed in the footsteps of Dr. Abel Guobadia. At an AIT programme on Wednesday, 31 July 2002, he described the leadership of NCP as mere noise-makers. He went to the extent of lying that the NCP did not have a headquarters office in Abuja, FCT and that all we have in Gwagwalada is the law-firm of Chief Gani Fawehinmi.


The claims of Mr. Okpo Sam Okpo are contrary to the complimentary comments of INEC officials who visited NCP headquarters during the verification exercise. Mr. Okpo Sam Okpo also denied the presence of NCP office in Edo State - despite the letter of protest sent by Dr. Osagie Obayuwana, the Deputy National Chairman (South-South) and the Edo State Chairman of NCP that the NCP Edo State office at 94, Uselu - Lagos Road, Benin City was not visited by INEC's so called verification team. Even the Lagos State NCP office where this conference is taking place was also not visited by INEC's so called verification team.

We wish to call on journalists to watch video clips of INEC's visit to NCP National headquarters office in Gwagwalada to enable them assess the character of Mr. Okpo Sam Okpo.

What the foregoing shows clearly is that INEC has lost all bases for public confidence in it. As presently composed, Nigerians cannot leave the 2003 elections in the hands of Guobadia and co. and expect peace and order. INEC has to be disbanded. Characters like Guobadia and Okpo Sam Okpo must be removed. INEC needs to be re-constituted.


The task of building a new society in Nigeria which we all can be proud of, one founded on the rule of law and an ordered way of doing things, is long overdue.

For our nation to move closer to the realisation of our collective yearnings, more than anything else, stability is needed, and this can never be attained in the absence of standards, carefully defined and clearly set out in law, which laws are strictly enforced, without discrimination, fear, favour or ill-will.

The history of the frustration of our collective hopes in this country has been characterised and hinged upon arbitrariness on the part of those who find themselves in positions of authority, who have generally managed or mismanaged our public affairs as their whims and caprices dictate. The multiple contradictions, abundant pain, suffering, deprivation, want and oppression prevalent in all aspects of our national life, are collectively traceable to the sad reality that public office holders in Nigeria have tended to carry on as if there are no rules and no binding standards. They have, at our collective expense, turned our country into one where anything goes. Our experience teaches us that this is what explains why there appears to be no sense of priority in national development and no sense of direction; this is why corruption of horrifying proportion continues to be our lot.

The greatest source of encouragement of lawlessness for all and sundry in our land therefore comes from public office holders, for as they continue to get away with their atrocities, all other persons, individuals, organisations and groups are invited to follow their example with the predictable result that our country is shamelessly turned in to a land where nothing works. This is why amenities long taken for granted even in other African countries continue to elude us.

This is precisely why at this point in our nation's history, we of the NCP have resolved to partake in electoral contest, to salvage our land, because we know it is possible and realisable within our life time. We have in the past championed the struggle for the rule of law and accountability on the part of public office holders, using the law courts. In this regard, many a time our efforts have been victorious, but quite often the powers that be have used their influence over the process to question our locus standi, concluding that we were dabbling into affairs that didn't concern us, but we have never been deterred.

We have also had cause to rouse and inspire the mass of our people to demand for change. This effort has sadly, too often, been met with bestial viciousness, with innocent lives taken and the liberties of decent citizens monstrously suppressed.

This time around, we have resolved to offer ourselves to serve. We believe we have a well thought out and cohesive vision, which tallies with the best interests of our long suffering people. We are certainly not lacking in the courage to implement that vision that will transform the lives of the least in our society and this is the basis of our call on our people for electoral support for the National Conscience Party.

The historic judgment of the Court of Appeal says that the Constitution guarantees us the right and opportunity to present ourselves to the Nigerian electorate, but Dr. Abel Guobadia and his house of corruption called INEC, without any basis in law say NO!

We call on the Nigerian people and all decent people world-wide to call Dr. Abel Guobadia and his INEC helmsmen to order. We call on all who love Nigeria, who want to see the entrenchment in Nigeria of the rule of law and accountability in governance to utilise all lawful means to get the INEC bureaucrats to appreciate that what is at stake is bigger than their bloated ego and the selfish interest of their paymasters.

We call on Nigerian, young and old and all decent persons world-wide not to allow Dr. Abel Guobadia's INEC to remain a harbinger of anarchy and an obstacle to progress in Nigeria.


Read the text of the Court of Appeal Judgement.



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