The Nigerian Constitutional democracy is primarily governed by The Constitution of the Federal Republic of Nigeria, The Electoral Act, 2011 ( as amended) and perhaps the internal bye-laws of the various political parties.
Nigerian democracy sometime in 2013 experienced what could be described as the biggest coalition of political parties submerging into one entity by way of a merger in accordance with Section 84 f the Electoral Act. The Congress for progressive Change (predominant in the North) , The Action Congress of Nigeria ( predominant in the Southwest) The All Nigerian Peoples Party (with great influence in the Northeast) and a fraction of the Action for Progressive Change APGA (which is predominant in the Southeast)
The word merger literally means the combination of two things coming into one.
Section 84 of the Electoral Act 2011 as amended provides for merger of two or more registered political parties on approval by the independent National Electoral Commission (INEC).
The effect of a merger pursuant to Section 84(5) of the Electoral Act is that where the request of the merger is approved by INEC, the commission shall forthwith withdraw and cancel the certificates of registration of all the political parties opting for the merger; and substitute same with a single certificate of registration in the name of the party resulting from the merger.
In corporate restructuring when two or more companies merge to form an entity, the old entity or entities ceases to exist while it right, liabilities and obligations will be subsumed in the new entity. This to my mind is the case in mergers of political parties as well. Although Section 84 of the Electoral Act did not expressly make for such provisions, but Section 97 of the Act provides thus:
“ where a political party ceases to exist in accordance with the constitution and this Act, a person elected on the platform of the political party in an election under this Act shall remain validly elected, complete his tenure, and for the purposes of identification, be regarded as a member of the political party under which he was elected”
It therefore follows technically that the old entity ceases to exist. This issue has resulted in a wide range of topical discussion and arguments leading to decisions of the courts.
The question one needs to ask is whether the old political parties which cease to exist by virtue of the merger and regarded as a dead party can sustain actions carried out during the lifetime of their existence, more so whether the new political party by virtue of the merger can now assume the duties, obligations and sustain the actions of the dead political party or parties?
The Supreme Court in NZOM v JUNADU per Oputa J.S.C held inter-alia “ the dissolution of a legal person is analogous to the death of an ordinary human person…dead men are no longer legal persons in the eye of the law as they have laid down their legal personality with their lives at death. Being destitute of rights or interest they can neither sue nor be sued of”.
In other words, a dead political party cannot survive action instituted by them prior to the death and the new political parties cannot inherit their rights and liabilities. This issue came up for the first time before the Supreme Court in AKEREDULU v MIMIKO (2013), where counsel for the appellant sought to substitute the name of Action Congress of Nigeria with that of new political party which they are now part of, upon objection of the respective counsel of all sets of respondent, the court in refusing the application held that as regards to paragraph 14(1) and 4(1) of the 1st schedule to the Electoral Act, 2010 as amended it has no jurisdiction to grant the application. The reasoning behind that decision to my mind is that it is too late in the process for such substitution to be effected which technical amounted to an amendment, particularly to do so it would be contrary to the provisions of paragraphs 4(1) of the said 1st schedule.
Several decisions by the appellate courts have followed the AKEREDULU’S case to the effect that a political party is regarded as dead upon the withdrawal of it certificate even if it was sequel to a merger See PDP v CONGRESS FOR PROGRESSIVE CHANGE (2013), MUSA DIKKO v INEC (2014) .
The critical question now is that , when is a political party that merges with other parties deemed to be dead? Is it when the certificate of registration is withdrawn in accordance with Section 84(5) of the Electoral Act or upon the issuance of the new certificate of the new political party born out of the merger to substitute that of the old parties as these two events happens at different stages of the process leading to the merger.
This issue came before the Supreme Court recently in the Case of APC v INEC & 7 ors ( SC.477/2013) delivered on the 28th day of November 2014.
In this case the APC sought to substitute the name of CPC, for itself on the grounds that sequel to the merger which was finalized upon issuance of the certificate of merger by the commission on the 8th day of August 2014, by virtue of the coalition of CPC, ACN and ANPP, it automatically inherits all pending actions instituted in the name of any of those parties in their individual entities prior to the merger. In refusing the application the Apex Court distinguished when a political party is dead and when a merger is said to come into force. It was established from the records that the judgment sought to be appealed was delivered in the 10th of July 2013, certificates were withdrawn on the 31st of July 2013, and the Notice of appeal was filed on the 7th of August 2013, at the point the CPC was deemed to be dead in the eyes of the law. Meanwhile the merger giving rise to APC the political party which CPC metamorphosed into was approved on a latter date ( 8th day of August 2013), hence it cannot substitute for a dead political party, as the time of death and birth of the two parties were material, this was the reasoning of the court. My Lord Justice I.T Mohammed in the lead Judgment at page 24 had this to say:
“ from the date ( 10th of July 2013) to the 31st of July 2013, CPC was still alive but it did not file the said appeal within that time (as there is no evidence to that effect). On the 31st July, 2013, INEC passed “ death sentence” on the CPC which was to take effect from that date. Thus, anything done by CPC , any day after the 31st of July 2013, was done by a dead person whether in the grave or in the mortuary . The position of the law on the status of a dead person has been severally stated by this court and other courts’’
The appellant counsel pressed the point strenuously that in some circumstances an appeal can survive the person that initiated it, irrespective of his death. That contention is correct but subject to the condition that the person filing or initiating such an appeal, from the outset, imbued with competence to do so. Equally the subject matter of the appeal itself must pass the test of validity. Where such conditions are lacking, even if the appeal process or the suit is commenced, it will have to abate once the militating facts have been brought to the attention of the court.
Consequently, it therefore follows with logical reasoning that effective of the 31st day of July 2013 when the 3 political parties sought to metamorphose into APC which signaled the final death of each of the parties, the parties from that date are no more in existence in the eyes of the law and lacked the capacity to carry out legal business transaction filing appeals. Macfoy v UAC is very instructive in this regards.
Finally, Suffice it to preface my conclusion by saying that, a political party unlike a company, with assets, liabilities, creditors , debenture holders, shareholders and all of that, which the liquidation process will cater for the respective rights accordingly, a political party is an interest group with less features of a corporate entity, although Section 80 of the Electoral Act describes it as a body corporate with succession and a common seal and may sue and be sued in its corporate name, in reality there are dissimilarities as we have seen in the recent merger. For instance a company is said to have died finally and beyond resurrection when it is finally wound-up. Mere withdrawal, cancellation or recall of its certificate of registration does not bring its corporate existence to an end. See ABETHE v NDIC (1995).