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In The Supreme Court
of
On Friday, the 13th day of July
2007
Before Their
Lordships
S.C. 123/2007
Between
And
Reasons for Judgement of the Court
Delivered by
Pius
Olayiwola Aderemi
J.S.C
On Thursday 14th
of June 2007, I delivered my judgment in the open court in this matter
sequel to taking the addresses of the respective counsel representing the
parties in this appeal and I did say that I would give my reasons for the
judgment today. I now proceed to give my reasons.
I start by saying that the
appeal here is against the judgment of the Court of Appeal [Enugu division]
delivered on the 22nd of May 2007 dismissing the appeal of the
appellant herein against the judgment of the Federal High Court, Enugu
division delivered on
the 30th of March 2007 in Suit No.
FHC/EN/CS/27/2007:
Peter Obi v Independent National
Electoral Commission
in which the trial court declined jurisdiction to adjudicate in the
matter placed before it. Suffice it to say that by originating summons dated
12th of February 2007 and filed the same date, the appellant, who
was the plaintiff before that court had claimed for the determination of the
following questions: -
"(1)
Whether having regard to
Section 180 (2) (a) of the 1999 Constitution, the tenure of office of a
governor first elected as governor begins to run when he took the oath of
allegiance and the oath of office.
(2)
Whether the Federal government of Nigeria through the defendant being
its agent can conduct any governorship election in
Anambra State in 2007 when the incumbent governor took oath of
allegiance and oath of office on 17th March 2006 and has not
served his four-year tenure as provided under
Section 180 (2) (a) of the 1999
Constitution."
Simultaneously, he prayed for
the following orders:
"(1)
A declaration that the four year tenure of office of the plaintiff as
governor of Anambra State began to run from the
date he took the oath of allegiance and the oath of office being the 17th
day of March 2006.
(2)
A declaration that the Federal government through the defendant being
its agent cannot lawfully conduct any governorship election in
Anambra State in 2007 in so far, as the
plaintiff as the incumbent governor has not served his four-year term of
office commencing from when he took the oath of allegiance and oath of
office on 17th March, 2006.
(3)
Injunction restraining the defendant by themselves, their agents,
servants, assign and privies or howsoever from in any way, conducting any
regular election for the governorship of Anambra
State until the expiration of a period of 4 (four) years from the 17th
of March, 2006, when the plaintiffs tenure of office will expire."
The originating summons was
supported by a 15 paragraph affidavit. The
defendant entered a conditional appearance. The present 2nd and 3rd
respondents filed an application on the 23rd of February 2007
praying the court for an order joining them as defendants in the suit. The 1st
defendant/respondent filed a notice of preliminary objection on the 26th
of February 2007 challenging the jurisdiction of the trial court to
entertain the suit. The 4th and 5th respondents also
brought an application filed on 2nd March 2007 praying the trial
court to join them as 4th and 5th defendants
respectively to the summons. So also the 6th and 7th
respondents had applied to be joined in the suit as defendants. The other
respondents after being joined as parties, upon their applications, filed
written applications, and addresses challenging the competence of the
action. In his 15-paragraph affidavit in support of the originating summons,
the plamtiff7appellant had deposed that sequel to the election for the
governorship of Anambra State on the 19th
April 2003, Dr. Chris Ngige was wrongfully
declared the winner by the 1st respondent (Independent National
Electoral Commission). Dissatisfied with the said declaration of results,
the appellant lodged a petition at the Election petition tribunal. The
declaration was set aside by the tribunal and it was held that the
appellant, who secured the majority of the lawful votes cast at the election
was the candidate duly elected. The appeal lodged by Dr. Chris
Ngige to the Court of Appeal (
By a motion on notice dated
and filed on 28th February 2007, the plaintiff/appellant prayed
the trial court for accelerated hearing of the proceedings/pending
applications including the accelerated reference of the questions formulated
by him to the Court of Appeal for adjudication. The questions formulated for
reference to the Court of Appeal as set out in the body of the motion are as
follows: -
"(1)
Whether having regard to Section 251
(1) of the Constitution of the Federal Republic of Nigeria, 1999, the
Federal High Court has jurisdiction to entertain the case which in the main,
calls for the correct interpretation of
Section 180 (2) (a) of the
Constitution of the Federal Republic of Nigeria, 1999.
(2)
Whether the plaintiff is "a person first elected as
governor" within the
meaning of Section 180 (2) (a) of the
Constitution of the
(3)
In view of Section 180 (2) (a)
of the Constitution of the Federal Republic of Nigeria 1999, when did
the tenure of office of the plaintiff begin to run having regard to the fact
as admitted by both parties, that the plaintiff took the oath of allegiance
and oath of office as governor of Anambra State
on 17th March, 2006?
(4)
Having regard to the fact that the plaintiff took the oath of
allegiance and oath of office on 17th March 2006, is the
plaintiff not entitled to enjoy the full tenure of 4 years for the office of
governor as prescribed by Section 180
(2) (a) of the Constitution of the Federal Republic of Nigeria, 1999?
(5)
Can the defendant lawfully abridge the tenure of
4 years prescribed by
the Constitution of the Federal Republic of Nigeria 1999 for a person such
as the plaintiff elected as governor of a State by holding election for the
office of governor for a State in the middle of plaintiffs tenure, in other
words, can the defendant lawfully conduct a governorship election in
Anambra State in April 2007 notwithstanding the
fact that the plaintiff took the oath of allegiance and oath of office only
on the 17th March 2006?
(6)
On a proper interpretation of
Section 180 of the
1999 Constitution of
the Federal Republic of Nigeria
particularly Section 180 (2) (a),
must election be held in all the 36 States of the Federal Republic of
Nigeria on the same date or at the same period irrespective of the date the
governor of a State was sworn and regardless of the provisions of
Section 180 (2) (a) of the 1999
Constitution of Nigeria.
(7)
Has the plaintiff waived his right to continue to remain in office as
the Governor of Anambra State for the full
tenure of four years when the plaintiff is not a candidate recognised by the
defendant in the 2007 general elections into the gubernatorial election in
After taking arguments of all
counsel on the motions and the preliminary objection as to jurisdiction; in
a considered ruling delivered on the 30th of March 2007, the
learned trial judge held that questions 2-7 do not constitute materials for
reference to the Court of Appeal and he consequently dismissed the motion
for reference. On the most important issue which is issue No l
relating to matter of jurisdiction, the learned trial judge declined
jurisdiction to entertain the summons, he therefore struck out the summons.
The appellant, being dissatisfied with the decision, lodged an appeal to the
court below (Court of Appeal). Following the exchange of briefs among the
counsel and taking of their respective arguments on the said briefs filed,
the court below, in a reserved judgment delivered on the 22nd of
May 2007, dismissed the appeal in toto. In so
doing, it held, inter alia, that the reliefs sought by the appellant were
mainly election matters which according to it, were within the exclusive
jurisdiction of the election tribunal and therefore the Federal High Court
lacked the jurisdiction to entertain same and that by extension, following
its holding that it was the election tribunal that was vested with
jurisdictional power in the matter, the court below (the Court of Appeal)
could not invoke the provisions of
Section 16 of the Court of Appeal Act and adjudicate in the substantive
matter. The court below also upheld the preliminary objection raised by the
1st respondent against ground 4 of the grounds of appeal and
issue No 4 in the appellant's brief to the effect that the trial
court having refused to make a reference, should have proceeded to pronounce
on the merits of the case for reason that it was not raised before the trial
court. Again, being dissatisfied with the decision of the court below, the
appellant appealed to this court by a notice of appeal dated 22nd
May 2007 which has incorporated into it four grounds. Distilled from the
said grounds of appeal and incorporated into the appellant's brief of
argument, for determination, are three issues which are in the following
terms: -
"(1)
Whether the learned justices of the Court of Appeal were correct when they
upheld the decision of the Federal High Court declining jurisdiction and
held that the prayers in the appellant's originating summons were election
matters within the exclusive jurisdiction of the election tribunal.
(2)
Whether the Court of Appeal was right in striking out ground IV of
the appellant's ground of appeal and issue IV distilled there from.
(3)
Whether having regard to the proper appreciation of the appellant's
prayers in the originating summons the Court of Appeal was right in not
invoking the powers under Section 16
of the Court of Appeal Act."
The 1st respondent
(Independent National Electoral Commission) identified four issues for
determination; and as contained in its brief of argument, they are as
follows: -
"(1)
Whether the Court of Appeal was right in upholding the preliminary
objection to ground 4 and issue developed there from.
(2)
Whether the Court of Appeal were correct when they upheld the
decision of the learned judge to decline jurisdiction over the subject
matter of the plaintiff/ appellant's originating summons and in particular:
(i)
whether the subject matter in the appellant's claim did not border on
tenure of office for which the 1999
Constitution of the Federal Republic of Nigeria (hereafter the
Constitution or CFRN), Cap C23, Laws
of the Federation of Nigeria, 2004 has exclusively, vested special
jurisdiction on a specialised court, to wit election tribunal by virtue of
Sections 285 (2) and 184.
(ii)
Whether the lower court was correct in following judicial precedents
of the Supreme Court with respect to the ouster of the court's jurisdiction
bordering on electoral and tenure matters provided for in
Sections 285 and 184 of the 1999
Constitution, having regard to the subject-matter disclosed by the
appellant's originating summons.
(3)
Whether the lower court was right in holding that the matter sought
to be referred to the (sic) it as a
(4)
Whether this was an appropriate case for the exercise of the general
powers of the Court of Appeal under
Section 16 of the Court of Appeal
Act and if so whether the reliefs sought in the originating summons of
the appellant ought to be granted having regard to the clear provisions,
frame work and in tend men t of the
1999 Constitution."
For their part, the 2nd
respondent (All Nigeria People’s Party) raised three issues for
determination, as contained in their brief of argument. They are as follows:
-
"(i)
Whether the learned justices of the Court of Appeal were correct when
they upheld the decision of the Federal High Court declining jurisdiction
and held that the prayers in the appellant's originating summons were
election matters within the exclusive jurisdiction of the election tribunal.
(ii)
Whether the Court of Appeal was right in striking out ground IV of
the appellant's ground of appeal and issue IV distilled there from.
(iii)
Whether having regard to the proper appreciation of the appellant's
prayers in the originating summons the Court of Appeal was right in not
invoking the powers under Section 16
of the Court of Appeal Act"
The 3rd respondent
(Prince Nicholas Ukachukwu) also raised three
issues for determination by this court, and as could be gathered from his
brief; they are as follows: -
"(1)
Whether the Court of Appeal was right in upholding the decision of
the learned trial judge declining jurisdiction on the ground that the
reliefs in the originating summons, are within the exclusive jurisdiction of
the election tribunal as they are related to a determination of the tenure
of the governor of Anambra State.
(2)
Whether the Court of Appeal was right when it declined to invoke its
powers under Section 16 of the Court
of Appeal Act to hear and determine the substantive case as per the
originating summons.
(3)
Whether the Court of Appeal was right to have struck out the ground
IV of the appellant's ground of appeal as well as the issue distilled there
from."
The 4th and 5th
respondents (Peoples Democratic Party and Dr.Andy
Uba)
on their
own identified
three issues
for determination through their joint brief and they are as follows:
"(1)
Whether the Court of Appeal
was right in upholding the preliminary objection to ground 4 of the
appellant's ground of appeal and issue No.4 distilled there from.
(2)
Whether the Court of Appeal
were correct when they upheld the decision of the Federal High Court Enugu
division declining jurisdiction over the subject-matter of the
plaintiff/appellant's originating summons.
(3)
Whether this was an appropriate case for the exercise of the general
powers of the Court of Appeal under
Section 16 of the Court of Appeal Act and accordingly whether the Court
of Appeal was right in refusing to do so."
The 6 and 7 respondents
(peoples mandate party and Arthur Obiefuna
Nwandu) through their joint brief of argument
raised for determination by this court, two issues which as could be gleaned
from the said briefs; are in the following terms: -
"(1)
Whether the questions sought to be determined and reliefs sought are
election matters within the exclusive jurisdiction of the election petition
tribunal as decided by the court below or constitutional interpretation
within the jurisdiction of Federal High Court.
(2)
If the answer to question one is that it is within the jurisdiction
of the Federal High Court, then whether the plaintiff/appellant has made out
a case on the merit in the originating summons to have the case determined
in his favour by the Court of Appeal pursuant to its power under
Section 16 of the Court of Appeal Act."
When this appeal came before
us for argument on the 14th of June 2007, senior learned counsel
and learned counsel representing the parties in this appeal referred
to, adopted and relied on the respective briefs
filed on behalf of their respective clients. Dr.
Ikpeazu, learned senior counsel for the appellant after relying on
the appellant's brief of argument filed on
24/5/07 and the reply brief filed on 11/06/07 in response to the 2nd
respondent's brief of argument (the two reply briefs filed on 1st
June 2007 and 11th June 2007 respectively in reply to the 1st
respondent's brief of argument having been withdrawn and consequently struck
out) and submitted, that going by the reliefs sought, they were not within
the realm of election matters; for according to him, through the brief of
argument of the appellant, none of the parties challenged the returns made
at any election or a determination made by the election tribunal or the
Court of Appeal (the court below). It was the appellant's further submission
that by virtue of the provisions of
Section 251 (1) (r) and (q) of the 1999 Constitution, the Federal High
Court had the jurisdiction to entertain the suit. On issue II the appellant
submitted that it was wrong for the court below to have struck out ground 4
of the grounds of appeal when, according to him, the purpose of that ground
was to show that the trial court had jurisdiction to hear the suit and a
fortiori, the court below could then invoke the provisions of
Section 16 of the Court of Appeal Act.
And since the substantive appeal against the ruling of the trial court that
it had no jurisdiction had not been determined by the court below, it was
wrong of that court (the Court of -Appeal) to hold that the aforesaid ground
of appeal presumed that the trial court had jurisdiction. That ground, it
was further submitted, was competent and not being a fresh issue, it did not
require any leave' of court to file same. On issue No 3 it was
submitted that the essence of Section
16 of the Court of Appeal Act was to enable the court below, to which
that section applies, have wide latitude of power to deal with any case
before it from a trial court as if that case was originally initiated before
it; provided all the material necessary
was present before it, it was his final submission on this point that all
the material necessary were present before the trial court. The court below
therefore erred in law for not invoking the provisions of
Section 16 of the Court of Appeal Act.
He urged this court to invoke the provisions of
Section 22 of the Supreme Court Act
which are in
pari materia and assume full
jurisdiction over the entire substantive matter in this case while finally
submitting that based on the interpretation of the provisions of
Sections 180 (2) (a) and 185 of the
Constitution of the Federal Republic of Nigeria 1999, an order should be
proclaimed by this court, that the appellant, as the governor of
Anambra State is entitled to serve a four-year
term from the date he took the oath of allegiance and oath of office, that
being 17th day of March 2006. He urged that the appeal be
allowed.
Chief Anthony
Idigbe, learned senior counsel representing the
1st respondent, in highlighting the submissions contained in the
brief of his client Independent National Electoral Commission submitted that
from the reliefs sought by the appellant before the trial court, it was
clear that the term of the office of the governor of
Anambra State was what the appellant was praying the trial court to
determine; and that, according to him was a matter for an election tribunal:
praying in aid of this submission the decision of this court in
A.N.P.P. v Returning Officer
S.C.78/2005 delivered on 22nd February 2007. The appellant,
he submitted, was in the wrong court when he initiated his action in the
Federal High Court; the proper venue, according to him, would be the
election tribunal. Continuing, he said the trial court was right in holding
that the constitution did not confer any jurisdiction on the Federal
High.Court to entertain this suit; and the court
below was right in upholding that decision; he prayed in aid, the decisions
in
Ishola
v Ajiboye (pt.352)
506 at 619 and
Madukolu
v Nkemdilim (1962) 2 S.C.N.L.R. 341.
On the issue of the propriety of the trial court's decision on refusal to
make reference, it was submitted that the trial court was right in so
refusing, having regard to its decision that it lacked jurisdiction to
entertain the suit; and the court below, it was further submitted, was right
in upholding that decision, reliance was placed on the decision in
Ifegwu
v FRN (2003) 15 NWLR (pt.842)
150 and Bamayi v A-G Federation (2001) 12
N.W.L.R. (pt.727) 468 at 475. On its issue No 3 on whether
the lower court ought to have invoked the provisions of
Section 16 of the Court of Appeal Act;
it was submitted that the trial court having declined to have jurisdiction
to entertain the suit, there was nothing left to be done; that finding,
according to it, is what distinguishes the present case from the decision in
Inaloju
v Adeleke (2007) 4 N.W.L.R. (pt.1025) 423
in which the court below invoked the aforesaid provisions. The
learned senior counsel finally urged that the appeal should be dismissed.
Mr.
Okafor, learned counsel for the 2nd respondent, through
the brief of argument of his client filed on 4th June 2007,
submitted that the court below was correct in upholding the decision of the
trial court that it lacked the jurisdiction to hear the suit. He went
further to submit that from the reliefs sought which, according to him was
to determine the jurisdiction of the court, it was clear that the issue of
tenure of office of the appellant within the interpretation of the
provisions of Sections 184 and 285
(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999
was what called for determination; and by the aforesaid provisions, it is
only the electoral tribunal that can entertain the suit. Referring to the
provisions of Section 251(1) (r) and
(q) of the Constitution he submitted that they did not confer
adjudicatory powers on the Federal High Court as, it was further submitted,
the issue in this case is covered absolutely by the provisions of
Section 285 of the Constitution.
On its issue No 3 as to the propriety of the court below not invoking
the provisions of Section 16 of the
Court of Appeal Act and then proceed to entertain the claim, the learned
counsel, through the brief of his client aligned himself with the
submissions of Chief Idigbe
S.A.N. learned senior counsel for the 1st respondent which
is to the effect that based on all the provisions of the
constitution and the
Electoral Act
referred to,
the nullification of Ngige's election
(the Governor before Obi, the appellant) did not treat the period he (Ngige)
served as a non-event. Therefore, Ngige having
taken the oath of allegiance and oath of office on the 29th May
2003, the four-year mandate given by the electorate would start
running from that
day; and to hold otherwise would be to undermine and subvert the right of
the people (electorate);
more importantly, is the fact, according to him, that the matter in
controversy is purely an electoral matter
which must be within
the exclusive jurisdiction of the electoral tribunal and not the Federal
High Court. The trial court, having lacked jurisdiction to entertain the
substantive suit, the court below could not invoke the provisions of Section
16 aforesaid. Learned counsel finally urged us to dismiss the appeal.
Mr.
Ezechukwu, learned counsel for the 3rd respondent on going
through the written brief of his client filed on 4th June 2007
for the purpose of highlighting salient points of argument said nothing new
outside the briefs of the 1st and 2nd respondents.
Suffice it to say that I have read all the briefs filed very carefully
therefore, I do not consider it expedient to repeat all what others have
said. Perhaps, I should say that he submitted, through the written brief,
that ground 4 of the appellant's notice of appeal raised fresh issue for
which the leave of the court was required and since none was sought and
obtained, the court below was right in striking out the issue founded upon
it. It was his final submission that the decision of the court below be
affirmed and the main suit struck out.
Mr.
Udenze, learned counsel for the 4th and 5th
respondents, in presenting his arguments as set out in the joint brief of
his clients (the 4th and 5th respondents) said nothing
new from the arguments of counsel for the 1st, 2nd and
3rd respondents which 1 have reproduced supra. I consider it
unnecessary repeating what has been earlier said. Suffice it to say that he
also urged this court to dismiss the appeal in toto.
The 6th and 7th
respondents did not file any cross-appeal therefore, their joint brief shall
not be considered as the law frowns at such brief that lacks foundation in a
cross-appeal or an appeal.
I shall start the
consideration of this appeal by first treating the substance of the notice
of preliminary objection of the 1st respondent that ground 3 of
the grounds of appeal is incompetent
for the reason that the particulars thereto refer
to the error of the Federal High Court and not the Court of Appeal and that
this court (Supreme Court) has no legal power to hear appeals directly from
the High Court; referring to the particulars of ground III, it was submitted
that they are not a complaint against anything done by the court below
(Court of Appeal) but that of the trial court (Federal High Court). Ground
III he further submitted, was incompetent and issue II arising there from
was not properly formulated; we were therefore, urged to strike out ground
III of the notice of appeal and issue No II arising there from.
Ground 4 and issue No.4 arising there from should also be struck out.
In reply to the preliminary objection, the appellant in his reply brief
submitted that ground 3 and its particulars demonstrate a complaint against
the decision of the court below and not the trial court (Federal High
Court). The substratum of the complaint according to him, was the decision
on the preliminary objection that he made before the court below (Court of
Appeal) that that court (Court of Appeal) failed to hold that the basis of
ground 4 of the grounds of appeal was the failure of the trial judge to make
a determination on the merits of the case when copious arguments had been
advanced on the substantive case; adding that ground 3 herein only
challenged the
success of the
preliminary objection
and no
complain.
What so ever was made with
respect to the decision of the trial court. It is
imperative that I reproduce grounds 3 and 4 of the grounds of appeal; and as
set out on the records of proceedings, they are as
follows: -
Grounds 3
"The learned justices of the Court of Appeal erred in law when they upheld
the preliminary objection and struck out ground 4 of the grounds of appeal
on the ground that it dwelt on matters which did not arise from the decision
of the trial judge.
Particulars of error
(i)
The trial judge in his judgment clearly found that all materials and
argument had been advanced on the merits of the originating summons. Such
materials were indeed at all material times before the Court of Appeal."
Ground 4
"The learned justices of the
Court of Appeal erred in law when they held that the learned trial judge
correctly refused to refer the question of law raised by the appellant for
the determination of the Court of Appeal.
Particulars of error
(1)
The Court of Appeal justified the non-reference to the Court of
Appeal of the issue of reference on the ground that the trial court has no
jurisdiction.
(2)
The refusal of the trial court to make the reference was not because
the trial court had no jurisdiction to entertain the suit.
(3)
The court had jurisdiction to entertain the suit and make the
reference under Section 295 of the
1999 Constitution of the
(4)
Interpretation of Sections
251(1), 180(2) (a), 178,184,185 and 285 of the 1999 Constitution of the
The ground 4 of the
appellant's grounds of appeal placed before the court below (the Court of
Appeal) was to the effect that the learned trial judge who had the
jurisdiction to entertain the originating summons erred in law in not
determining the originating summons after dismissing the application for
reference. The issue 4 distilled from that ground 4 and also placed before
the court below (Court of Appeal) for determination reads thus: -
"Whether the appellant who is
the governor of Anambra State shall hold office
for four years from the date he took the oath of allegiance and oath of
office having regard to Sections 180
(2) (a) and 185 of the 1999 Constitution of the Federal Republic of Nigeria."
Looking at the whole gamut of
the case presented before the trial court, the cognisable aspects of the
appellant's case pronounced upon by the trial court and decided by it are
two and they are as follows: -
"(1)
Whether the Federal High Court had jurisdiction
to entertain the appellant's originating summons.
(2)
Whether the Federal High Court (the trial court) should refer
questions to the court below (Court of Appeal)."
A careful reading of ground 4
reproduced above presupposes that the trial court had jurisdiction to
entertain the suit but refused to hear and determine the substantive suit.
But, the truth of the matter is that the trial court had ruled that it
lacked jurisdiction to adjudicate in the matter before it. That decision was
final and binding until it was set aside. Let me quickly say here that once
a court declines jurisdiction to entertain a suit, the only other step it
could take in the matter is to make an order striking out the suit. Any
other order or pronouncement made by the court after declaring that it lacks
jurisdiction to entertain a suit, is null and void and of no effect. A
careful reading of the particulars to ground 4 shows that the appellant
wanted the trial court to have made a reference to the court below, on the
assumption by the appellant, that the court below had the legal power to
enter into adjudication on the matter. I am in a serious difficulty to see
on what basis the trial court could have proceeded to do that having, in
unmistaken terms said it lacked the legal power to adjudicate in the case
before it. I pause here to say that before a proper reference known to and
sanctioned by the law could be made, the court making it must have made some
findings upon the materials placed before it and in so doing; the trial
court must be convinced
that it had jurisdiction to hear the matter. In
the instant case, I repeat, the trial court had said in clear terms that it
lacked the power to hear the matter. If anything would form the basis of any
complaint against the verdict of the trial court, it is that, it said it
lacked jurisdiction and no more. Whether that verdict by the trial court on
jurisdiction is sustainable in law, is another matter. But, until it is set
aside by due process of law, it is binding. The court below did not set it
aside. Issue touching on jurisdiction is a matter of law. And that is what
is before us now. The grounds of appeal could therefore not be reasonably
said to have flowed from the judgment of the trial court. The court below
is, in my humble view, right in the order made striking out the said two
grounds of appeal which are unrelated to the decision of the trial court and
of course, the issues erroneously formulated there from have no legal
foundation, their being struck out is justifiable.
I therefore uphold the
preliminary objection of the 1st respondent and all issues in any
of the briefs before us relating to the preliminary objection are hereby
resolved against the appellant. Issue No 2 on the appellant's brief
of argument is, consequently answered in the affirmative; and from what I
have been saying,
Issues No l and 3 on
the 1st respondent's brief;
Issue No 2 on the 2nd
respondent's brief,
Issue No 3 on the 3rd
respondent's brief and
Issue No l on the joint
brief of the 4th and 5th respondents; all of which are
in pari
materia with issue No 2 on the
appellant's brief are similarly answered in the affirmative.
"I have carefully read all the
briefs of argument of the parties, 'having earlier disposed of issue No
2 in the appellant's brief, issues No l and 3 contained in the 1st
respondent's brief; issue No 2 in the 2nd respondent's
brief; issue No 3 on the 3rd respondent's brief and issue
No l on the joint brief of the 4th and 5th
respondents; the remaining issues in the written briefs of the parties
squarely deal with:
(a)
jurisdiction of the trial court to enter
into adjudication and
(b)
the invocation of the provisions of
Section 16 of the Court of Appeal Act
which would have enabled the court below to adjudicate on the substantive
matter. I shall therefore take all together.
Issue No l on the
appellant's brief;
Issue No 2 on the 1st
respondent's brief;
Issue No l on the 2nd
respondent's brief;
Issue No l on the 3rd
respondent's brief;
Issue No 2 on the joint
written brief of 4th and 5th respondents and
Issue No l on the joint
written brief of the 6th and 7th respondents; all
relating to matter of jurisdiction of the trial court to enter into
adjudication.
Thereafter, I shall take
together Issue No 3 on the appellant's brief;
Issue No 4 on the 1st
respondent's brief;
Issue No 3 on the 2nd
respondent's brief;
Issue No 2 on the 3rd
respondent's brief;
Issue No 3 on the joint
written brief of the 4th and 5th respondents and
Issue No
2 on the joint written brief of the 6th and 7th
respondents; all of which relate to the invocation by the court below of the
provisions of Section 16 of the Court
of Appeal Act which would have enabled the court below to adjudicate on
the substantive matter.
Jurisdiction - Issues relating thereto
Jurisdiction is the legal
power or legal authority that enables a judge to enter into adjudication in
a matter before him. It should
however be noted that the jurisdiction should be
examined not when it is invoked but when the cause of action arose. I wish
further to say that a court is said to have original jurisdiction in a
particular matter when that matter can be initiated before it and as a
corollary, a court is said to have appellate jurisdiction when it can only
go into the matter on appeal after it had been adjudicated on by a court of
first instance. It follows, therefore, that where a court takes upon itself
to exercise power under jurisdiction which it does not possess; its decision
is tantamount to nothing. Let it be noted that an action of a judge which
relates not to his office, is of no force; there can never be obedience to
any order he may make. The question may then be asked: what determines the
jurisdiction of a court? The answer is this: generally, it is the claim of
the plaintiff which determines the jurisdiction of a court entertaining the
same see
Adeyemi
& Ors. v Opeyori
(1976) 9 & 10 S.C. 31.
For a proper understanding of
this judgment in the light of the dictates of the law, I shall again,
reproduce the claims formulated by the appellant before the Federal High
Court as the plaintiff before that court; they are in the following terms:
"(1) A
declaration that the four-year tenure of
office of the
plaintiff as governor of Anambra State began to
run from the date he took the oath of allegiance and oath of office being
the 17th day of March 2006.
(2)
A declaration that the Federal government through the defendant being
its agent cannot lawfully conduct any governorship election in
Anambra State in 2007 in so far as the plaintiff
as the incumbent governor has not served his four-year tenure of office
commencing from when he took the oath of allegiance and oath of office on
the 17th day of March 2006. 2
(3)
Injunction restraining the defendant by
themselves, their
agents, servants, assigns and privies or howsoever from in any way
conducting any regular election for the governorship of
Anambra State until the expiration of a period of 4 (four) years from
the 17th day of March, 2006 when the plaintiffs tenure of office
will expire."
A critical examination of the
three reliefs that I have reproduced supra convinces me beyond any doubt
that the first two are declaratory in nature and the third one is injunctive
in nature. The first two reliefs are only an invitation to the court to
declare what the law on this issue is; that is, whether having regard to the
provisions of any law including the constitution, the four year tenure of
office of the plaintiff/appellant as governor of
Anambra State would begin to run from the 17th of March
2006 when he first took oath of office and oath of allegiance. I must
quickly remind myself that a declaratory judgment such as what was sought by
the plaintiff/appellant is discretionary. It is the form of judgment which
should be granted only when the court is of the opinion that the party
seeking it, is, when all facts are taken into consideration, fully entitled
to the exercise of the court's discretion in his favour. See
Odofin
v Ayoola (1984)
11 S.C. 72. I make bold
to say that from the claims formulated in the originating summons, a
substantial question of law has arisen in which the plaintiff/appellant has
a real interest to raise and the respondents to oppose. Perhaps, I should
also say that judicial authorities are
ad idem in saying that courts
must act judicially and judiciously when awarding declaratory judgment.
Courts all over the world, in areas where the rule of law is prevalent, have
come to recognise as veritable, declaratory judgments. This form of
judgment started forcefully to receive
acclamation when in the case of
Hamson
v Radcliffe
"The power of the court to make a declaration where it is a question of
defining rights of two parties is almost unlimited; I might say only limited
by its own discretion. The discretion should of course be exercised
judicially, but it seems to me that the discretion is very wide."
The dictum of Lord
Sterndale supra was quoted with approval by the
Privy Council (
"If a substantial question exists to which one person has a real interest to
raise, and the other to oppose, then the court has discretion to resolve it
by a declaration which it will exercise if there is a good reason for so
doing."
I wish to go further by saying
that to be able to claim declaratory reliefs, a
plaintiff must have the necessary standing to sue. He does not need to have
a subsisting cause of action or a right to some other relief, but some legal
right of his own must be in issue, actually or contingently. Unless this is
the case, there is nothing relating to his legal position which the court
can declare. This statement of mine was amplified by Lord
Diplock when in
Gouriet
v Union of Post Office Workers (1978) 23
A.C. 435 he reasoned thus at page 501
and I quote:
"But the jurisdiction of the court is not to declare the law generally or to
give advisory opinion; it is confined to declaring contested legal rights,
subsisting or future of the parties represented in the litigation before it
and not those of any one else."
Going by our jurisprudential
stand, I know that the decisions of foreign courts are no longer binding on
our courts. But they remain persuasive. Since the decisions I have referred
to above constitute an exposition of good law, I am persuaded by them. And I
shall follow them. As I have said, a declaratory order or judgment merely
declares a right or an entitlement or the position of the law. Therefore, a
plaintiff who intends to have an enforceable legal right from a declaratory
judgment or order that inures in his favour must also seek injunctive order
and damages. That is what the plaintift/appellant
has done in the instant case, of course, less claim for damages. I have said
earlier in this judgment that the main claims are an invitation to the court
to make a pronouncement as to the position of the law, and that going by the
decisions I have cited supra, a High Court or any court of record can
entertain it. However, the 1st to 5th respondents
have, through their various written briefs argued strenuously that the
reliefs sought relate to electoral matters and that the Federal High Court
does not have the jurisdiction to entertain them adding that the only body
that can entertain this suit is election petition tribunal. They placed
reliance for this content of the provisions of
Sections 178 (1) and (2); 184,251
(1), (p), (q) and (r) and 285 (1) and (2) of the Constitution of the
(pt.166) 166 when at
page 225, he opined
thus:
"The jurisdiction of our courts is derived from the constitution. Hence,
where the constitution has declared that the courts cannot exercise
jurisdiction, any provision, in any law to the contrary will be inconsistent
with the provision of the constitution and void. The exercise of a
jurisdiction to make a declaratory relief is not an exception to this
general principle."
I shall hereunder reproduce
the provisions of the sections of the constitution stated supra and examine
them critically to see whether they oust the jurisdiction of the Federal
High Court in entertaining this suit:
Sec 178(1)
"An election to the office of governor of a State shall be held on a date to
be appointed by the Independent National Electoral Commission."
Section 178 (2)
"An election to the office of governor of a State shall be held on a date
not earlier than sixty days and not later than thirty days before the
expiration of the term of office of the last holder of that office."
The above quoted provisions of
the constitution confer the right or authority on the Independent National
Electoral Commission to appoint a date for the election to the office of
governor of a State with a proviso that such a date shall not be earlier
than sixty days and not later than thirty days before the
expiration of the term of office of the last
holder of that office. But, has the term of office of the
plaintiff/appellant expired bearing in mind that he took his oath of
allegiance and oath of office on the 17th day of March 2006? It
is common ground that the tenure of office of a governor, by the force of
the constitution, is four years. However, I shall answer that question anon.
Section 184 of the Constitution
which deals with certain questions relating to elections
provides:
Section 184
"The National Assembly shall make provisions in respect of
(a)
persons who may apply to an election
tribunal
for the determination
of any question as to whether –
(i)
any person has been validly elected to the
office of governor or
deputy governor
(ii)
the term of office of a governor or deputy
governor has ceased
or
(iii)
the office of governor or deputy governor
has become vacant."
It is my view that
Section 184 (a) supra does not
apply to the appellant who has, through legal process, got himself declared
as the person who had the highest lawful votes in the gubernatorial election
of April 2003 - the court's verdict so declaring him was given on the 16th
of March 2006. By the judgment of the Court of Appeal given on 16th
March 2006 returning the appellant to the seat of governorship of
Anambra State, it implies and rightly of course,
that Dr. Chris Ngige was not in lawful
occupation of the seat of governor of Anambra
State from April 2003 when he was unlawfully declared the winner of the
election at that time. His (Ngige) return by
Independent National Electoral Commission had been voided. The present
appellant was denied by the Independent National Electoral Commission
mandate of the people to be their governor
from 2003. Dissatisfied with the verdict of the Independent National
Electoral Commission, the appellant, in a way pursuant to the provisions of
Section 184 (a) (1) of the
Constitution, challenged the validity of the election of
Ngige, a case, as I have said, he finally won on
16th March 2006. It was after his being sworn in as the governor
of Anambra State on 17th March 2006
that the foundation of his cause of action arose; the preparation by the
Independent National Electoral Commission to conduct an election on 14th
May 2007 fully created a cause of action; that is, a judicial declaration as
to the tenure of his office as governor. All his rights under the Electoral
Act which might be justiciable in an election
petition tribunal ended with the judgment of Court of Appeal (
I shall now examine the
provisions of Section 251 of the
Constitution. Section 251 (1), (p), (q) and (r) of the Constitution
which defines the jurisdiction of the Federal High Court, provides;
Section 251 (1), (p), (q) and
(r):
“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 to
the exclusion of any other court in civil causes and matters:-
(a)
....................................................
(b)
....................................................
(c)
....................................................
(d)
....................................................
(e)
....................................................
(f)
....................................................
(g)
....................................................
(h)
....................................................
(i)
....................................................
(j)
....................................................
(k)
....................................................
(l)
....................................................
(m)
....................................................
(n)
....................................................
(o)
....................................................
(P)
the administration or the management and
control of the Federal Government
or any of its
agencies
(q)
subject to the provisions of this
Constitution,
the operation and
interpretation of this
Constitution in so
far as it affects the Federal
government or any of
its agencies
(r)
any action or proceeding for a declaration
or injunction of any executive or administrative
action or decision by
the Federal Government
or any of its
agencies."
It is clear that by
Section 251 (1) (q) supra, the
interpretation of the provisions of the 1999 Constitution is vested in the
Federal High Court in so far as it affects the Federal Government or any of
its agencies. To be specific, Section
251 (1), (q) and (r) puts it beyond any doubt that the Federal High
Court has the power to enter into adjudication on any action or proceeding
seeking declaratory and injunctive reliefs.
Indeed, this section defines
the jurisdiction of the Federal High Court. Even though
Section 251 of
the Constitution
starts with the words
"notwithstanding any thing contrary contained in this constitution", I fail
to see how the provisions of Section
184 quoted supra fetters Section
251 (1); more importantly Section
184 does not contain any "exclusion or ouster clause". The word
"Notwithstanding" was judicially considered by this court
in
NDIC
v
Okem Ltd & Anor
(2004) 10 NWLR (pt.880)
107 when at pages 182/183
it reasoned thus: -
"As
has been observed
Section 251 (1) of the 1999
Constitution begins with the term "notwithstanding" anything contrary to
this constitution. When the term 'notwithstanding' is used in a section of a
statute it is meant to exclude an impending effect of any other provision of
the statute or other subordinate legislation so that the said section may
fulfill itself. It follows that as used in
Section 251 (1) of the 1999
Constitution no provision of the constitution shall be capable of
undermining the said section."
I adopt and hold myself bound
by the above dictum. I shall not want to end this discourse at this stage
without having final recourse to
Section 285 (1) and (2) of the 1999 Constitution which provides thus:
Section 285(1)
“There shall be established for the Federation one or more election
tribunals to be known as the National Assembly Election Tribunals which
shall, to the exclusion of any other court or tribunal, have original
jurisdiction to hear and determine petitions as to whether:
(a)
any person has been validly elected as a
member of the National Assembly
(b)
the term of office of any person under
this constitution has ceased
(c)
the seat of a member of the Senate or
a member of the House
of Representatives has become vacant; and
(d)
a question or petition brought before the
election tribunal has been properly or improperly brought.”
Section 285 (2)
"There shall be established in each state of the Federation one or more
election tribunals to be known as the governorship and legislative houses
election tribunals which shall to the exclusion of any court or tribunal,
have original jurisdiction to hear and determine petitions as
to whether any
person has been validly elected to the office of governor or deputy governor
or as a member of any legislative house."
The above section of the
constitution pre-supposes that an election has been held and a petition has
been presented. The only adjudicating body that has exclusive jurisdiction
to hear and determine such petition is the election petition tribunal. The
present action pre-dates the election held on the 14th of April
2007. And, as I have said, all the plaintiff/appellant is seeking is a legal
pronouncement or a declaration in law, as to when his tenure as the governor
of
I shall now proceed to treat
the issues relating to the request for invocation of the provisions of
Section 16 of the Court of Appeal Act
and, a fortiori, the invocation
of Section 22 of the Supreme Court
Act. These issues are No 3 on the appellant's brief, No 4
on the 1st respondent's brief, No 3 on the 2nd
respondent's brief, No 2 on the 3rd respondent's brief, No
3 on the joint brief of the 4th and 5th respondents
and No 2 on the 6th and 7th respondent's brief.
For a proper appreciation of this all-important point, I consider it
necessary to reproduce the provisions of
Section 16 of the Court of Appeal
Act, Cap 75, Laws of the Federation of
"The Court of Appeal may, from time to time, make any order necessary for
determining the real question in controversy in the appeal, and may amend
any defect or error in the record of appeal, and may direct the court below
to inquire into and certify its findings on any question which the Court of
Appeal thinks fit to determine before final judgment in the appeal and may
make an interim order or grant any injunction which the court below is
authorised to make or grant and may direct any necessary inquiries or
accounts to be
made or taken and generally shall
have full jurisdiction over the whole proceedings as if the proceedings had
been instituted in the Court of Appeal as court of first instance and may
re-hear the case in whole or in part or may remit it to the court below for
the purpose of re-hearing or may give such other directions as to the manner
in which the court below shall deal with the case in accordance with the
powers of that court, or, in the case of an appeal from the court below in
that court's appellate jurisdiction, order the case to be re-heard by a
court of competent jurisdiction."
Broadly speaking, the
provisions of Section 16 of the Court
of Appeal Act confer legal power on the Court of Appeal to make any
order which the court below it could have made in the interest of justice.
This presupposes that the court below, the Court of Appeal, must have got
jurisdiction to entertain the suit and the court below it also had
jurisdiction in the matter but failed to exercise it. The provisions do not
confer on the Court of Appeal the power to make an order which the trial
court could not have made in resolving the dispute between the parties in
the suit before it. The purpose of
Section 16 aforesaid is in my view, to obviate delayed justice. It
follows from what I have been saying above, that certain conditions must be
present before the provisions of this section can be invoked; and they are:
-
"(1) the
lower court or trial court must have the legal power to adjudicate in the
matter before the appellate court can entertain it.
(2)
the real issue raised up by the claim of
the appellant at the lower court or trial court must be seen to be capable
of being distilled from the grounds of appeal.
(3)
all necessary materials must be available
to the court for consideration,
(4)
the need for expeditious disposal of the
case or suit to meet the ends of justice must be apparent on the face of the
materials presented
(5)
the injustice or hardship that will follow
if the case is remitted to the court below, must clearly manifest itself,"
See
Faleye
& Ors v Otapo & Ors (1995) 3
NWLR (pt.381 1;
Inakoju
v Adeleke (2007) 4 NWLR (pt.1025)
423 and Dapialong & Ors v
Dariye (2007)
8 NWLR
(pt.1036) 239.
I have taken a critical
examination of the contents of the originating summons used in initiating
the case; everything needed to enable the court below (Court of Appeal) to
invoke the provisions of the aforesaid
Section 16 and to proceed to
determine the main issue in the case was present. The court below
erroneously failed to take the advantage of the aforesaid provisions of the
Court of Appeal Act. Would this then be the end of the road for a citizen
who has approached the citadel of justice seeking remedies for wrong done to
him? I think not. The law must not and cannot be wanting in dispensing
justice. And since justice according to law is the pre-occupation of a
judex, a court must always rise up to such an
occasion. It is to meet this exigency that
Section 22 of the Supreme Court Act,
Cap 424, Laws of the Federation of Nigeria 1999, was enacted to confer
general powers on this court to do all such things that will bring about
unalloyed justice. I pause to say that the
conditionalities which I have stated above that must be in place for
the invocation of the provisions of
Section 16 of the Court of Appeal Act aforesaid are also the condition
precedent for the invocation of the provisions of
Section 22 of the Supreme Court Act
which provisions are as follows:
"The Supreme Court may, from time to time, make any order necessary for
determining the real question in controversy in the appeal, and may amend
any defect or error in the record of appeal, and may direct the court below
to inquire into and certify
its findings on any
question which the Supreme Court thinks fit to determine before final
judgment in the appeal and may make any interim order or grant any
injunction which the court below is authorised to make or grant and may
direct any necessary inquiries or accounts to be made or taken and generally
shall have full jurisdiction over the whole proceedings as if the
proceedings had been instituted and prosecuted in the Supreme Court as a
court of first instance and may rehear the case in whole or in part or may
remit it to the court below for the purpose of such rehearing or may give
such other directions as to the matter in which the court below shall deal
with the case in accordance with the powers of that court."
The provisions of
Section 22 of the Supreme Court Act
quoted above are, in
pari
materia, with the provisions of
Section 16 of the Court of Appeal Act.
The present suit was begun by originating summons, a process often used when
the facts of a case are not in controversy. As expected, the summons was
accompanied by affidavit in support authenticating the plaintiff/appellant's
case. Upon the service of the plaintiff/appellant's process, the
defendants/respondents who wished to file counter-affidavit did so.
Therefore, all that is required for this court to determine the real issue
in controversy in this appeal are present before us. The interest of justice
now demands that I should invoke the provisions of
Section 22 of the Supreme Court Act
and address the real question in controversy. Consequently, issue No
3 on the appellant's brief is answered in the affirmative; similarly, issues
No.4 on the 1st respondent's brief, issue No 3 on the
joint brief of the 4th and 5th respondents are
answered in the affirmative and issue No 3 on the brief of the 2nd
respondent is answered in the negative.
The substance of the case
which the plaintiff/appellant brought for adjudication is, whether having
regard to Section 180 (2) (a) of the
1999 Constitution of the Federal Republic of Nigeria, the tenure of
office of a person first elected as governor begins to run when he took the
oath of allegiance and oath of office. And flowing from this question,
whether the Federal government of Nigeria, through the 1st
respondent (Independent National Electoral Commission) being its agent, can
conduct any governorship election in Anambra
State in 2007 when the incumbent governor took oath of allegiance and oath
of office on the 17th of March 2006 and has not served his
four-year tenure as provided under
Section 180 (2) (a) of the 1999 Constitution.
It is commonly agreed that the
resolution of this matter cannot be achieved without considering the effect
of the provisions of Section 180 of
the 1999 Constitution; particularly
Section 180 (2) (a) of the 1999
Constitution which is the foundation of the first question posed by the
plaintiff/appellant in his summons. It has been argued that a community
reading of Sections 184 and 285 (1)
of the 1999 Constitution alongside with
Sections 251 (1), (q) and (r) and 180
(2) (a) of the 1999 Constitution makes it abundantly clear that the
matter involved here, according to the 1st, 2nd, 3rd,
4th and 5th respondents through their briefs of
argument being an electoral matter, it is only the election petition
tribunal that has an exclusive and original jurisdiction to entertain it.
What is now called for is the interpretation of the provisions of the
constitution. I have earlier in this judgment said that
Sections 178 (1) and (2), 184 and 285
of the 1999 Constitution relate to electoral matters, but the suit of
the appellant is far from being an electoral matter; it
is one inviting the court to declare, by
examining the provisions of Section
180 (2) of the 1999 Constitution, when the tenure of the office of the
appellant as governor of Anambra State will come
to an end having regard to the fact that he took his oath of allegiance and
oath of office on the 17th of March 2006.
Section 180 deals specifically
with the tenure of the office of a governor; it envisages that the elections
are over and it now defines the period the successful candidate for the post
of governor will stay in office. That section is self-explanatory; it has
nothing to do with electoral matters. I shall therefore not subscribe to a
community reading of the afore-mentioned sections of the constitution as
urged. They are irrelevant here. Suffice it to say that I have held that the
present suit is not an electoral matter; and that by virtue of
Section 251 (1), (q) and (r) of the
1999 Constitution, the Federal High Court has the jurisdiction to
entertain the suit by making an order declaring the legal rights of the
parties before it thus ensuring the rule of law.
Section 180 (1) and (2) of the 1999
Constitution provides:
Section 180 (1)
"Subject to the provisions of this Constitution, a person shall hold the
office of Governor of a State until
(a)
when his successor in office takes the
oath of that office;
or
(b)
he dies whilst holding such office; or
(c)
the date when his resignation from office
takes effect; or
(d)
he otherwise ceases to hold office in
accordance with the
provisions of
this constitution."
Section 180 (2)
"Subject to the provisions of sub-section (1) of this section, the governor
shall vacate his office at the expiration of a period of four years
commencing from the date when:
(a)
in the case of a person first elected as
governor under this
constitution, he took the oath of allegiance and the oath of office; and
(b)
the person last elected to that office
took the oath of allegiance and oath of office or would, but for his death,
have taken such oaths."
As I have said, the next issue
is one that calls for interpretation of the provisions of the constitution.
The power of interpretation must be lodged somewhere and the custom of the
constitution has lodged it in the judges. If they are to fulfil their
functions as judges that power could hardly be lodged elsewhere. But,
justice according to law which any good judge must ensure he dispenses at
all times, demands that even when he (the judge) is seen to be free by the
enormity of the power conferred on him, he is still not wholly free. He is
not to innovate at pleasure. He is not a knight-errant roaming at will in
pursuit of his own ideal of beauty or goodness or what colouration a piece
of law should take. The judge must always draw his inspiration from
consecrated principles. The next question that follows, is, what are these
principles? Judges, in the exercise of their interpretative jurisdiction,
must only interpret the words of a statute or constitutional provision,
where they are as clear as crystal, according to their ordinary and
grammatical meanings without any colouration. It is true that courts are
always enjoined, in the course of interpreting the provisions, to find out
the intention of the legislature, but there is no magical wand in this
counselling.
The intention of the
legislature, or put bluntly, the intention of National Assembly at the
Federal level or the State House of Assembly at the State level, is not to
be judged by what is in its mind but by its expression of that mind couched
in the words of the Statute. If at the end of the interpretative exercise
carried out on the provisions of statute or constitution, a
judex's personal conviction as to where the
justice and tightness of the matter lies is returned, that would make the
judiciary lose its credibility, authority and its legitimacy. That will not
be healthy for the development of law and its administration. I pause here
to apply these principles to the interpretation of
Section 180 (2) (a) supra. The
appellant has argued that as a person first elected as Governor of
Anambra State, he took his Oath of Allegiance
and Oath of Office on the 17th of March 2006 and that his
four-year term would continue to run from that date. By mathematical
calculation, it will end on the 17th of March 2010, it was
further argued. The submission was countered by his opponents who submitted
that while conceding that he won his election case against Dr. Chris
Ngige, the former Governor of
Anambra State who was unlawfully sworn in as
Governor of that State on the 29th of May 2003, his four-year
term must start to run from the date Dr. Ngige
was sworn in. The argument of the respondents here is very tenuous. When the
verdict of the Court of Appeal (Enugu division) declaring the present
appellant as the rightful person to have been declared as having won the
gubernatorial election of April 2003, was handed down, the effect is that
the return of Dr. Chris Ngige as the person who
won the election was null and void and of no legal consequence. So,
Ngige's oath taking at that time cannot be a
point of reference for calculating the four-year term of the
appellant. Ngige was
and cannot be a person first elected as Governor under this Constitution;
his election having been declared null and void. It was after the judgment
of the Court of Appeal on the 16th of March 2006, and by force of
law, that the appellant (Peter Obi) took his oath of allegiance and oath of
office on the 17th of March 2006. Applying the provisions of
Section 180 (2) (a) of the
Constitution to facts of this case, which are not in dispute, the
four-year term of office of Peter Obi, as governor of
Anambra State would start running from the 17th of March
2006 only to terminate on the 17th of March 2010. To interpret
the provisions of Section 180 (2) (a)
otherwise will be to read into that sub-section what the legislators never
intended. The duty of a judex is to expound the
law and not to expand it.
It was argued that if
Section 180 (2) (a) is accorded
the interpretation I have given it supra, it
would truncate the election timetable in this country. I do not buy that
argument. In the first place, there is nothing in our
1999 Constitution which says all
elections into political offices in this country at the Federal and State
levels, should be held at the same time. If there was a provision to that
effect, that would negate the concept of federalism which we have freely
chosen to practice. In the second place, a judge has a standing and abiding
duty to do no more than to accord a very clear provision of
Section 180 (2) (a) of the 1999
Constitution under discussion, their ordinary, natural and grammatical
meanings. I hold the strong view that "law making", in the strict sense of
that term, is not the function of the judiciary but that of the legislature.
Let there be no incursion by one arm of
government into that of the other. That will be
an invidious trespass. Let me point out that no constitution fashioned out
by the people, through their elected representatives for themselves, is ever
perfect in the sense that it provides a clear-cut and/or permanent or
everlasting solution to all societal problems that may rear their heads from
time to time. As society grows or develops, so also must its constitution,
written or unwritten. Our problems as judges should not and must not be to
consider what social or political problems of today require; that is to
confuse the task of a judge with that of a legislator. More often than not,
the law, as passed by the legislators, may have produced a result or results
which do not accord with the wishes of the people or do not meet the
requirements of today. Let that defective law be put right by new
legislations but we must not expect the
judex, in addition to all
his other problems to decide what the law ought to be. In my humble view, he
(judex)
is far better employed if he puts himself to the much simpler task of
deciding what the law IS.
I only need to add that as at
14th April 2007 when the 1st respondent (Independent
National Electoral Commission) was conducting gubernatorial election in
In the final analysis, for all
I have been saying, which explains the reasons for my decision on the 14th
of June 2007, it is my judgment that this appeal is meritorious. It must be
allowed, and I hereby allow the appeal. I set aside the judgments of the two
courts below. In their place, I make the following declarations and orders
which the justice of this case demands; they are:
(1)
That the office of governor of
(2)
That the tenure of office of the appellant (Peter Obi) as governor of
Anambra State which is for four years certain
will not expire until 17th March, 2010 for the reason of the fact
that he being a person first elected as governor under the 1999 Constitution
took oath of allegiance and oath of office on the 17th March
2006.
(3)
It is hereby ordered that the 5th Respondent (Dr. Andy
Uba) should vacate the office of the governor of
For the avoidance of any
doubt, this judgment affects the office of the governor of
There shall be no order as to
costs.
Reasons for Judgment delivered
by
Katsina-Alu
J.S.C
On Thursday 14 June 2007, I
allowed the appeal and I did indicate that I
would give my reasons for the judgment today. I
do now give my reasons.
I have had the advantage of
reading in draft reasons for judgment given by my learned brother
Aderemi J.S.C. I
agree entirely with the reasons he has given. My learned brother set out in
detail the facts of the case. I need not repeat them here.
This appeal is from the
judgment of the Court of Appeal (Enugu division) delivered on 22 May 2007
dismissing the appeal of the appellant herein against the judgment of the
trial Federal High Court, Enugu division delivered on 30 March 2007.
By an originating summons
dated 12 February 2007 and filed the same date, the appellant, who was the
plaintiff before that court, had prayed that court for the determination of
the following questions:
"1.
A declaration that the four year tenure of office of the plaintiff as
the governor of Anambra State began to run from
the date he took the oath of allegiance and oath of office being the
17th
day of March, 2006.
2.
A
declaration that the Federal government through the defendant being its
agent cannot lawfully conduct any governorship election in
Anambra State in 2007 in so far as the incumbent
governor has not served his four year tenure of office commencing from when
he took the oath of allegiance and oath of office on 17th March,
2006."
Whereupon the appellant prayed
the Federal High Court for the following orders, namely:
" 1.
A declaration that the four year tenure of office of the plaintiff as
the governor of Anambra State began to run from
the date he took the oath of allegiance and oath of office being the
17th
day of March, 2006.
2.
A
declaration that the Federal government through the defendant being its
agent cannot lawfully conduct any governorship election in
Anambra State in 2007 in so far as the plaintiff
as the incumbent governor has not served his four year tenure of office
commencing from when he took the oath of allegiance and oath of office on 17th
March, 2006.
3.
Injunction restraining the defendant by themselves, their agents,
servants assigns and privies, or howsoever from in anyway conducting any
regular election for the governorship of
The case of the appellant is
simple. His case as can be gleaned from the question posed by him for
determination by the trial court is that by the provisions of
Section 180(2)(a) of the Constitution
of the Federal Republic of Nigeria 1999, his four year tenure of office
commenced from the date he took his oath of allegiance and oath of office as
the governor of Anambra State, that is, 17 March
2006 and that election into that office ought not and must not be held on 14
April 2007 ostensibly because that office was not vacant by 14 April 2007.
However the 1st respondent in spite of its awareness that the
case was still pending in court went on to conduct the elections into that
office.
It was contended for the
appellant that by the provisions of
Section 180(2) (a) of the Constitution of the Federal Republic of Nigeria
1999, his four year tenure of office commenced from 17 March 2007 the
date he was sworn in as govenor of
Anambra State.
It was also submitted that by
virtue, of Section 251 (l) (q) and
(r) of the 1999 Constitution, the Federal High Court had the
jurisdiction to entertain the suit. It should be recalled that the trial
Federal High Court held that it had no jurisdiction to hear the matter. It
reasoned that the case was an election matter and the proper venue was the
election petition tribunal. The Court of Appeal affirmed the decision of the
trial court.
The crux of the respondents'
case was that the relief sought by the appellant was a matter for an
election tribunal. It was said that the appellant initiated his action in
the wrong court. It was further said that the constitution did not confer
any jurisdiction on the Federal High Court to entertain the suit and the
Court of Appeal was right in upholding that decision. It was contended by
the respondents that Section 251(l)(q)
and (r) of the 1999 Constitution did not confer jurisdiction on the
trial court. If
was their submission that this case is fully covered by
Sections 184 and 285(1) (2) and
by the provisions of these sections, it is only the election tribunal that
can entertain the suit.
This case is not as
complicated as the parties have made it out. The plaintiff/appellant had in
his claim before the High Court sought both declaratory and injunctive
reliefs directed at protecting his four year term of office. It is not in
dispute indeed it is common ground that the tenure of office of a governor,
under the constitution, is four years. It is pertinent at this stage to
consider the sections of the constitution relied upon by the parties.
Section 184
"The National Assembly shall
make provisions in respect
of
(a)
persons who may apply to an election
tribunal
for the determination of any question or to whether -
(i)
any person has been validly elected to the
office of governor or deputy governor
(ii)
the term of office of a governor or deputy
governor has ceased, or
(iii)
the office of governor or deputy governor
has become vacant."
Section 285(1)
“There shall be established
for the Federation one or more election tribunals to be known as the
National Assembly tribunals which shall, to the exclusion of any other court
or tribunal, have original jurisdiction to hear and determine petitions as
to whether:
(a)
any person has been validly elected as a
member of the National Assembly
(b)
the term of office of any person under
this constitution has ceased
(c)
the seat of a member or the senate or a
member of the House of Representatives has become vacant, and
(d)
a question or petition brought before the
election tribunal has been properly or improperly brought.”
Section 285(2)
"There shall be established in
each state of the Federation one or more election tribunals to be known as
the governorship and Legislative Houses election tribunals which shall to
the exclusion of any court or tribunal, have original jurisdiction to hear
and determine petitions as to whether any person has been validly elected to
the office of governor or deputy governor or as a member of any legislative
house."
The appellant was the governor
of
"189. (1)
The governor or deputy governor of a state
shall cease to hold office if-
(a)
by a resolution passed by two-thirds
majority of all members of the executive council of the state, it is
declared that the governor or deputy governor is incapable of discharging
the functions of his office; and
(b)
the declaration in paragraph (a) of this
subsection is verified, after such medical examination as may be necessary,
by a medical panel established under subsection
(4)
of this section in its report to the
Speaker of the House of Assembly.
(2)
Where the medical panel certifies in its report that in its opinion
the governor or deputy governor is suffering from such infirmity of body or
mind as renders him permanently incapable of discharging the functions of
his office, a notice thereof signed by the speaker of the House of Assembly
shall be published in the official gazette of government of the State.
(2)
The governor or deputy governor shall cease to hold office as from
the date of publication of the notice of the medical report pursuant to
subsection (2) of this section.
(2)
The medical panel to which this section relates shall be appointed by
the speaker of the House of Assembly of the state, and shall comprise five
medical practitioners in
(a)
one of whom shall be the personal
physician of the holder of the office concerned; and
(b)
four other medical practitioners who have, in the opinion of the
speaker of the House of Assembly, attained a high degree of eminence in the
field of medicine relative to the nature of the examination to be conducted
in accordance with the foregoing provisions of this section.
(5)
In this section, the reference to
"executive council of the state"
is a reference to the body of commissioners of the government of the
state, however called, established by the governor and charged with such
responsibilities for the functions of government as the governor may
direct."
The provisions of
Section 189 are clear and
unambiguous. The governor or deputy governor shall "cease" to hold office
only where two-thirds of all the members of the executive council of the
State declare that the governor or deputy governor is incapable of
discharging the functions of his office.
I have earlier on in this
judgment set out the questions and the claims of the plaintiff/appellant.
However for ease of reference I shall read it again:
"1.
A declaration that the four year tenure of office of the plaintiff as
the governor of Anambra state began to run from
the date he took the oath of allegiance and oath of Office being the
17th day of March 2006.
(2) A declaration that the
Federal government through defendant being its agent cannot lawfully conduct
any governorship election in Anambra state in
2007 in so far as the incumbent governor has not served his four year tenure
of office commencing from when he took the oath of allegiance and oath of
office on 17th March, 2006."
Whereupon the Appellant prayed
the Federal High court for the following orders, namely:
"1.
A declaration that the four year tenure of office of the plaintiff as
the governor of Anambra state began to run from
the date he took the oath of allegiance and oath of office being the 17th
Day of March. 2006.
2.
A declaration that the Federal government through the defendant being
its agent cannot lawfully conduct any governorship election in
Anambra state in 2007 in so far as the plaintiff
as the incumbent governor has not served his four year tenure of office
commencing from when he took the oath of allegiance and oath of office on 17th
March, 2006.
3.
Injunction restraining the defendant by themselves, their agents,
servants assigns and privies or howsoever from in anyway conducting any
regular election for the governorship of Anambra
state until the expiration of a period of 4 (four) years from the 17th
day of March, 2006 when the plaintiffs tenure of office will expire."
It will be seen clearly that
the above questions and claims have nothing to do with the ability or
capacity of the plaintiff/appellant to perform the duties of his office as
governor. His claim clearly does not fall within the jurisdiction of the
National Assembly tribunal.
Under sub-section (2) the
tribunal created is the governorship and Legislative Houses election
tribunal, which has the exclusive jurisdiction to hear and determine
petitions as to whether any person has been validly elected to the office of
governor or deputy governor or as a member of any Legislative House.
This tribunal clearly does not
have the jurisdiction to determine whether the term of office of any person
elected to the office of governor has ceased. Its duty is to determine
whether the person was validly elected into that office. That however is not
the case of the plaintiff/appellant. The issue of whether he was validly
elected was laid to rest by the decision of the Court of Appeal given on 16th
March 2006. His claim which pre-dates the election held on 14th
June 2007 was whether the
Independent National Electoral Commission could validly
conduct an election for the office of governor of
Anambra state which was not vacant, having regard to the fact that he
was sworn in as governor on 17th March 2006. His cause of action
arose when the 1st respondent the Independent National Electoral
Commission proposed and scheduled an election for 2007 for the office of
governor of Anambra state.
As I have already indicated,
the Federal High Court declined to entertain the matter on the ground that
it was an election petition which should be heard and determined by an
election petition tribunal. On appeal, the Court of Appeal unanimously
agreed with the decision of the trial court and dismissed the appeal. Both
courts were in grave error. It is trite law that the jurisdiction of the
court is determined by reference to the claim of the plaintiff. See
Adeyemi v.
Opeyori (1976) FNLR 149:
Yahaya Adigun & ors. v
I am in complete agreement
with the submission by learned senior counsel for the appellant that the
Federal High Court has the jurisdiction to entertain the
plaintiff/appellant's claim by virtue of
Section 251(l)(q) and (r) of the 1999
Constitution which provides as follows:
"251(1)
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:
(a)
……………………………………………………
(b) ……………………………………………………
(c) ……………………………………………………
(d) ……………………………………………………
(e) ……………………………………………………
(f) ……………………………………………………
(g) ……………………………………………………
(h) ……………………………………………………
(1) ……………………………………………………
(j) ……………………………………………………
(k) ……………………………………………………
(l) ……………………………………………………
(m) ……………………………………………………
(n) ……………………………………………………
(o) ……………………………………………………
(P) ……………………………………………………
(q) ……………………………………………………
(r)
Subject to the provisions of this constitution, the operation and
interpretation of this constitution in so far as it affects the Federal
Government or any of its agencies, 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."
One clearly does not need a
magnifying glass to see that by
Section 251(l) (q) and (r) quoted above, the interpretation of the
provisions of the constitution is vested in the Federal High Court; and that
court has the jurisdiction to entertain any action seeking
declaratory and injunctive
reliefs. It was for these reasons that I allowed the appeal on
jurisdiction.
The interest of justice
demands that I should invoke the provisions of
Section 22 of the Supreme Court Act
and deal or address the real question in controversy. The trial High
Court was called upon to interprete
Section 180 of the 1999 Constitution
as it affects the plaintiffs tenure of office.
Section 180(1) and (2) of the 1999
Constitution
provides:-
"180(1)
Subject to the provisions of the constitution, a person shall hold
the office of governor of a state until:
(a)
when his successor in office takes the
oath of that office, or
(b)
he dies whilst holding such office; or
(c)
that date when his resignation from office
takes effect; or
(c)
he otherwise ceases to hold office in
accordance with the provisions of this
constitution.
(2)
Subject to the provisions of subsection (1) of this section, the
governor shall vacate his office at the expiration of a period of four years
commencing from the date when .
(a)
in the case of a person first elected as
governor under this constitution, he took the oath of allegiance and oath of
office; and
(b)
the person last elected to that office;
took the oath of allegiance and oath of office or would, but for his death,
have taken such oaths."
The provision of
Section 180(2)(a)
is very plain. It is unambiguous. It must be given its natural meaning. Now
Mr. Peter Obi was sworn in as governor of Anambra
state on 17 March 2006. Applying
Section 180(2) (a) to the fact of this case, which is not in dispute,
the four year term of Mr. Peter Obi would expire on 17th
March 2010. It was for the above reasons that I allowed the appeal on
14th June 2007 and made the following declaration and order:
1
That the office of governor of Anambra
state was not vacant as at 29th
May
2007.
2.
It is ordered that the
5th
respondent Dr. Andy
Uba should vacate the office of the governor of
Anambra state with immediate effect to enable
the plaintiff/appellant Mr. Peter Obi to exhaust his term of office.
For the avoidance of doubt
this judgment relates only to the office of the governor of
Anambra state.
Reasons for Judgment delivered
by
George
Adesola Oguntade
J.S.C
On 14-06-07, I allowed this
appeal. I said then that I would give my reasons for that decision today. I
now do so.
The appellant, Mr. Peter Obi
was the governor of Anambra state. On 12-2-07,
by an originating summons, the appellant as plaintiff commenced his suit
seeking the determination of the following questions:-
"1.
Whether having regard to
Section 180(2) (a) of the 1999 Constitution, the tenure of office of a
governor first elected as governor begins to run when he took the oath of
allegiance and oath of office.
2.
Whether the Federal government of Nigeria through the defendant being
its agent can conduct any governorship election in
Anambra state in 2007 when the incumbent governor took oath of
allegiance and oath of office on 17th March, 2006 and has not
served his four year tenure as provided under
Section 180(2) (a) of the 1999
Constitution."
Depending on the answers given
to the two questions above, the reliefs which the plaintiff sought are
these:
"1.
A declaration that the four year tenure of office of the plaintiff as
governor of Anambra state began to run from the
date he took the oath of allegiance and oath of office being the 17th
of March, 2006.
2.
A declaration that the Federal government .through the defendant
being its agent cannot lawfully conduct any governorship election in
Anambra state in 2007 in as far as the plaintiff
as the incumbent governor has not served his four year term of office
commencing from when he took the oath of allegiance and oaths of office on
17th March, 2006.
3.
Injunction restraining the defendant by themselves, their agents,
servants, assign and privies or howsoever from in any way conducting any
regular election for the governorship of Anambra
state until the expiration of a period of 4 (four) years from 17th
day of March, 2006 when the plaintiffs tenure of office will expire."
It is worthy of note that the
plaintiff commenced his suit against only the 1st respondent i.e.
the Independent National Electoral Commission .The 2nd to 8th
respondents in this appeal later applied to be made parties to the suit.
This explains how the Peoples Democratic Party and Dr. Andy
Uba became parties to the suit as 4th
and 5th defendants/respondents respectively. The suit came before
Faji J. at the Federal High Court,
"4.
That the tenure in respect of which the plaintiff was sworn in as
governor of Anambra state is the tenure from
2003 to 2007.
5.
That the plaintiff had filled a nomination form and sworn to a
requisite affidavit to contest for re-election in 2007.
6.
That several candidates have filed for nomination by their respective
political parties for the gubernatorial election for the seat of the
governor of Anambra state which seat shall
become vacant in May 2007.
7.
That it will lead to chaos for every one of the 36 states of the
Federation to have a different term or tenure of office or electoral
calendar for governors depending upon when the election petition of such
state is concluded.
8.
That I am advised by my said principal and I verily believe him that
the judgments given in favour of the plaintiff by the election tribunal and
the Court of Appeal were in respect of the residue of the tenure of four
years granted by the general elections of 2003.
The 1st defendant
then filed a notice of preliminary objection against
plaintiffs suit. The substance of the preliminary objection as
paraphrased by the trial court in its ruling on 30-03-07 at pages 287-288 of
the record of proceedings reads:
"1.
There is no reasonable cause of action disclosed or identified by the
summons. And the action is incompetent.
2.
The action is purely speculative and an academic exercise, and
inconsistent. The plaintiff and his sponsored political party have already
filled and presented nomination form and sworn to an affidavit to seek
re-election in 2007.
3.
The tenure of the plaintiff as governor of
Anambra state of
4.
The Electoral law made pursuant to the constitution had provided for
returned candidates to remain in office pending determination of appeal.
5.
There is no constitutional or statutory provision for extension of
tenure of office of governor of a state to accommodate inability to take
oath of allegiance and oath of office due to pending election appeal.
6.
Documents referred to and relied upon by plaintiff in supporting
affidavit are not annexed are (sic) required by Rules of this Honourable
Court.
7.
The Honourable Court lacks the jurisdiction to entertain and/or
determine questions as to whether the term of office of a governor or deputy
governor has ceased or when it will cease."
The parties by their counsel
argued for and against the notice of preliminary objection. The trial court
in its ruling on 30-03-07 struck out the plaintiffs
suit. In doing so, the trial court reasoned thus at pages 372-373 of the
record:
"The subject-matter of a claim
is material in determining the jurisdiction of the court. See
Onuorah v F.R.P.C,
(supra) the subject-matter of the instant case is an electoral matter
regardless of the guise under which plaintiff has couched his claim. It is
not a matter for any High Court whatsoever. The issue is: What is the effect
of the judgment of tribunal? Yes, it is that plaintiff is governor of
Anambra state but in the circumstances of this
matter - from when? This matter should have been put before the tribunal as
an ancillary relief and in the exercise of its inherent jurisdiction to
grant orders that will give effect to its judgment. I would venture to ask:
If the election petition had dragged on beyond 29/5/2007 - and this was a
possibility, the petition having dragged on for 3 years - would the
plaintiff not have taken steps to protect his mandate at the tribunal before
29/5/2007 - or would he have been able to make the instant claim post -
2007? I am of the view that the jurisdiction to determine who occupies
the seat of governor must in the present circumstances - to be meaningful -
include jurisdiction to determine when such an order takes effect. This is
an order which the tribunal ought to have been moved to make but which
unfortunately it was not so moved. I therefore with due
respect place reliance on the Supreme Court decision in ANPP v. Returning
officer Abia state (Supra).
I find that this court lacks jurisdiction. The
appropriate order is to strike out this action and I so order."
The plaintiff was dissatisfied
with the ruling of the trial court. He brought an appeal before the Court of
Appeal,
"A thorough and community
reading of Sections 184 and 285(1) &
(2) of the 1999 Constitution makes it clear that the election tribunal
has an exclusive and original jurisdiction on issues bordering on electoral
matters. By virtue of Section 285(2)
of the 1999 Constitution, one or more election tribunal is established
in each of the states of the Federation to adjudicate on electoral matters.
Refer to Ogboru v.
Ibori (2005) 13
NWLR (Ft. 942) 319 at 360-
I must note it here that
Section 251(1) of the Constitution
gives the Federal High Court exclusive jurisdiction, in respect of the
matters listed therein. But it does not cater expressly for jurisdiction of
the Federal High Court on electoral matters. The law is expression
unius exclusio
alerius
the express mention of a
thing excludes the others.
See Major & Co. Ltd. v. Schroeder (1992) 2
NWLR (PL 101)1.
It is clear to me that the
lawmaker has, without any reservation, assigned to the election tribunal
exclusive jurisdiction on fallouts of election and tenure matters and
therefore no other court can entertain same. The Federal High Court has its
own exclusive jurisdiction in
matters covered by Section
251(1) of the Constitution. It is like what I may refer to as division
of labour. And where as in this case
Section 285(1) and (2) give
exclusive jurisdiction to election tribunal over electoral matters, the
Federal High Court has no jurisdiction. The learned trial judge was
right in the position taken by him. I respectfully call to mind my stand in
the case of Nabaruma v.
Ofodile (2004) 13 NWLR
(Ft. 891) 599 at 623.
See also Enagi v.
Inuwa (1992) 3
NWLR (Pt. 231)584 at 565.
Let me further state here that
Section 251(1) of the 1999
Constitution cannot be read literally as doing so may subvert the
express and special jurisdiction granted by the makers of the constitution
to the election tribunal on matters touching on electoral matters generally.
Such will go against well established cannons of statute interpretation such
as ‘liberalism’ 'harmonious construction' or ‘whole statute’
rule. See
A.G. Abia State v
A.G. Federation (2006) 16 NWLR (Pt. 1005) 265; A.G.
Bendel State v A.G. Federation (1982) 3 NCLR 1.
It must be stated here that no
one is trying to gag the appellant from pursuing his cause. The point being
made is that he should initiate his process in the right tribunal. As aptly
put by the Supreme Court in the case of
A. G. Federation v.
Still dissatisfied, the
plaintiff has brought a final appeal before this court. In the appellant's
brief filed, the issues for determination in the appeal are these:
"(i)
Whether the learned justices of the Court of Appeal were correct when
they upheld the decision of the Federal High Court declining jurisdiction
and held that the prayers in the appellant's originating summons we election
matters within the exclusive jurisdiction of the election tribunal (ground
1).
(ii)
Whether the Court of Appeal was right in striking out ground IV of
the appellant's Ground of Appeal and issue IV distilled there from (ground
III).
(iii)
Whether having regard to the proper appreciation of the appellant's
prayers in the originating summons the Court of Appeal was right in not
invoking the powers under Section 16
of the Court of Appeal Act (ground II)."
The 1st
respondent's issues for determination are these:
"3.1
Whether the Court of Appeal was right in
upholding the preliminary objection to ground IV
and issue developed there from.
3.2
Whether the Court of Appeal were correct when they upheld the
decision of the learned judge to decline jurisdiction over the subject
matter of the plaintiff/appellant's originating summons
and in particular:
i.
Whether the subject matter in the appellant's claim did not border on
tenure of office for which the 1999
Constitution of the
ii.
Whether the lower court was
correct in following judicial precedents of the Supreme Court with respect
to the ouster of the court's jurisdiction bordering on electoral and tenure
matters provided for in Sections 285
and 184 of the 1999 Constitution, having regard to the subject matter
disclosed by the appellant's originating processes.
3.3
Whether the lower court was right in holding that the matters sought
to be referred to the it (sic) as a Higher Court were not proper subjects
for reference in view of the recent Supreme Court case of
Alhaji Atiku
Abubakar v Attorney-General of the Federation
[2007] 3 NWLR (Pt. 1022) p.601 and a host of other cases on the issue of
constitutional reference.
3.4
Whether this was an appropriate case for the exercise of the general
powers of the Court of Appeal under
Section 16 of the Court of Appeal Act and if so whether the reliefs
sought in the originating summons of the appellant ought to be granted
having regard to the clear provisions, framework and intendment of the 1999
Constitution."
The 1st respondent
in its brief also raised a preliminary objection as to the validity of the
appellant's third ground of appeal. It was argued under this notice of
objection that the matter raised in appellant's 3rd ground of
appeal did not arise in the proceedings before the court below but rather in
the proceedings before the High Court. It was further argued that this court
was without the jurisdiction to hear an appeal directly from a decision of
the High Court.
The other respondents filed
their briefs of argument. The issues raised by these other respondents are
amply accommodated under the issues of the appellant and 1st
respondent. Given the history of this appeal and in particular, the
arguments of counsel in their respective briefs, it seems to me that the
major issues for determination are these:
(1)
whether
or not the Federal High
Court has the jurisdiction
to entertain the appellant's suit.
(2)
whether the Court of Appeal ought to have
considered appellant's claim on its merit under
its powers in Section 16 of the Court
of Appeal Act. A further derivative from this issue is whether or not
this court, in the event it
holds
that the High Court has jurisdiction to entertain appellant's suit, ought to
proceed to hear the merit of the case under
Section 22 of the Supreme Court Act.
In my view, the overriding
nature of the two issues above has dwarfed or reduced into insignificance
the preliminary objection of the 1st
respondent. This
is so because even if I uphold the same, it would not remove the necessity
to consider the two major issues.
I intend to deal first with
the question of jurisdiction. It was the argument of some of the respondents
that pursuant to Sections 184 and 285
of the 1999 Constitution, only the National Assembly election tribunal
has the jurisdiction to entertain plaintiff/appellant's suit. The two courts
below by their judgments upheld this argument. Were they right in their
decision? the
appellant's counsel on the other hand contended that he had brought the suit
before the Federal High Court under
Section 251(1)(q) and(r) for an interpretation of
Section 180(2)(a) of the 1999
Constitution of Nigeria.
Sections
180 and 285 of the 1999 Constitution
provide:
"184. The National Assembly
shall make provisions in respect of -
(a)
Persons who may apply to an election tribunal for the determination
of any question as to whether -
(i)
any person has been validly elected to the
office of governor or deputy governor,
(ii)
the term of office of a governor or deputy
governor has ceased, or
(iii)
the office of governor or deputy governor
has become vacant;
(b)
circumstances and manner in which and the
conditions 'upon which such application may be made; and
(c)
powers practice and procedure of the election tribunal in relation to
any such application.
285(1)There
shall be established for the Federation one or more election tribunals to be
known as the National Assembly election tribunals which
shall to the exclusion of
any court or tribunal have
original jurisdiction to hear and determine petitions as to
whether:
(a)
any person has been validly elected as a
member of the National Assembly;
(b)
the term of office of any person
under this constitution has ceased.
(c )
the seat of a member of the senate or a member of the House of
Representatives has become vacant; and
(d)
a question or petition brought before the
election tribunal has been properly or improperly brought.
(2)
There shall be established in each state of the
Federation
one or wore election
tribunals to be known as the governorship and Legislative
Houses election tribunals which shall, to the exclusion of any court or
tribunal, have original jurisdiction to hear and determine petitions as to
whether any person has been validly elected to the office of governor or
deputy governor or as a member of any legislative house.
(3)
The composition of the National Assembly election tribunals,
governorship and Legislative Houses election tribunals shall be as set out
in the sixth schedule to this constitution.
(4)
The quorum of an election tribunal established under
this section shall be
the
chairman and two other members."
(underlining
mine)
Let me emphasize here at the
beginning of the discourse that
Section 184 of the 1999 Constitution reproduced above is not a provision
dealing with any question as to the jurisdictions of the election tribunals
or court. Rather, it vests power in the National Assembly to make laws in
respect of the matters listed there under. It is important to bear in mind
Section 184(a) only enables the
National Assembly to make laws in respect of "persons who may apply to an
election tribunal ....” In other words, the National Assembly is vested with
power to make laws concerning persons who may apply to the election
tribunals for the determination of the questions listed under
Section 184.
Let me also emphasise here
that Section 184 has an important
significance in the distinction or dichotomy it makes in 184(a)(ii)
and (iii) between the -questions
(1)
whether the term of office of a governor
or deputy governor has ceased; and
(2)
whether the office of governor or deputy
governor has become vacant.
This, it must be stressed, is
not an accidental occurrence because a similar provision in respect of the
offices of president and vice-president is to be found in
Section 139 of the 1999 Constitution
which gives power to the National Assembly to make laws as to who may
apply to the Court of Appeal in such matters.
I now proceed to consider
Section 285 of the Constitution
in order to see what the impact the dichotomy highlighted in relation to
Section 184 above has on
Section 285.
Section 285 of the Constitution
creates two election tribunals – one is the National Assembly election
tribunal under Section 285(1) and the other is the governorship and
legislative houses election tribunal under
Section 285(2). Under
Section 285(2) above, the
governorship and legislative houses election tribunal is granted the
exclusive original jurisdiction to determine petitions as to whether any
person has been validly elected to the office of governor or deputy governor
or as a member of any legislative house.
I reproduced earlier in this
judgment the questions which the plaintiff/appellant asked the Federal High
Court to answer and the claims he made on the basis of the answer given, It
is manifest from the claim that the plaintiff/appellant was not asking for a
determination of whether any person has been validly elected to the office
of governor or deputy governor, He therefore had no business to transact
with the governorship and legislative houses election tribunal created under
Section 285(2) of the 1999
Constitution.
Now under
Section 285(l) (b), the National
Assembly election tribunal has the exclusive jurisdiction to hear and
determine petitions as to whether the term of office of any person under
this constitution has ceased. Dr. Onyechi
Ikpeazu S.A.N has
argued that the National Assembly election tribunal could only be conferred
with jurisdiction in matters concerning the elections to the National
Assembly and that the jurisdiction to governorship maters could only be
given to the governorship and legislative houses election tribunals under
Section 285(2). I would myself
have thought so. There is quite some strength in counsel's submission but I
am unable to uphold same. But that is not the essence of the appeal before
us on jurisdiction. The simple question is whether or not the Federal High
Court had the jurisdiction to entertain plaintiff/appellant's case.
In interpreting
Section 285(l) (b), it must be
borne in mind that the guiding principle in such a duty is to read together
the related provisions of the constitution. In other words, the provisions
of the constitution ought to be interpreted as one whole scheme. In
Obanyuwawa v. Governor [1982] 12
SC.147 at 211, this Court per Nnamani
J.S.C observed:
“It is an accepted principle
of the interpretation of constitutions (or indeed any statute) that the
provisions should be taken as a whole. It cannot be presumed that any
clause in the constitution is intended to be without effect. See
Marbury v
Madision 5 US 337, 1
Cranch 137, 2L.Ed.
60.”
See also
Bronik Motors v Wema Bank
[1983] 1 SCNLR 296 at 342 and Senator Abraham
Adesanya v The President of the
Now
Section 285(l) (b) which is the
provision under consideration here provides;
"the
term f office of any person under this constitution has ceased."
The word 'office' under
Section 318 of the Constitution
is defined
thus:
"office"
when used with reference to the validity of an election means any office the
appointment of which is by election under this constitution."
The elective offices under the
1999 Constitution are:
1.
President/Vice President
2.
Governor/Deputy Governor
3.
Members of the Senate
4.
Members of the House of Representatives
5.
Members of the State Houses of Assembly.
With respect to these offices,
Sections 144 and 189 specifically
provide how the president/vice-president and governor/deputy governor
respectively shall cease to hold office. On the other hand the only
procedure by which the tenure of office of a member of the National Assembly
may be prematurely cut short is as provided in
Sections 68 and 69 of the
Constitution. Similar provisions are made for members of a State House
of Assembly in Sections 109 and 110
of the Constitution.
The plaintiff/appellant in
this appeal was the governor of Anambra state at
the time he initiated his suit on 12-2-07. That being the position, whether
or not his suit falls within the jurisdiction committed under
Section 285(l)(b) of the Constitution
to the National Assembly election tribunal falls to be considered under
the provisions of Section 189 of the
Constitution which
deal with when a governor or deputy governor
shall 'cease' to hold office. The said section provides:
"189 (1)
The governor or deputy governor of a state
shall cease to hold office if
(a)
by a resolution passed by two-thirds
majority of all members of the executive council of the state, it is
declared that the governor or deputy governor is incapable of discharging
the functions of his office; and
(b)
the declaration in paragraph (a) of this
subsections is verified, after such medical examination as may be necessary,
by a medical panel established under subsection (4) of this section in its
report to the speaker of the house of assembly.
(2)
Where the medical panel certifies in its report that in its opinion
the governor or deputy governor is suffering from such infirmity of body or
mind as renders him permanently incapable of discharging the functions of
his office, a notice thereof signed by the speaker of the house of assembly
shall be published in the official
gazette of the government of the state.
(3)
The governor or deputy governor shall cease to hold office as from
the date of publication of the notice of the medical report pursuant to
subsection (2) of this section.
(4)
The medical panel to which this section relates shall be appointed by
the Speaker of the House of Assembly of the
State, and shall comprise five medical practitioners in
(a)
one of whom shall be the personal
physician of the holder of the office concerned; and
(b)
four other medical practitioners who have, in the opinion of the
speaker of the House of Assembly, attained a high degree of eminence in the
field of medicine relative to the nature of the examination to be conducted
in accordance with the foregoing provisions of this section.
(5)
In this section, the reference to executive council of the state is a
reference to the body of commissioners of the government of the state,
howsoever called, established by the governor and charged with such
responsibilities for the functions of government as the governor may
direct."
It is apparent from the above
provisions of Section 189 that
the question whether or not a governor has 'ceased' to hold office can only
arise
two-thirds of all members of the executive council of the state declare that
the governor or deputy governor of a state is incapable of discharging the
functions of his office. It is a dispute arising from such resolution of the
executive of a state in respect of a governor or deputy governor that is
under Sections 285(l)(b)
of the Constitution committed to the jurisdiction of the National
Assembly Election Tribunal.
It is settled law that in deciding whether
or not a court has the jurisdiction to hear and determine a case, it is the
claim of the plaintiff as put before the court that ought to be considered.
See Adeyemi v.
Opeyori [1976] 9-10 S.C 31; and
Tukur v. Government of
"1.
Whether having regard to
Section 180(2)(a) of the 1999 Constitution, the tenure of office of a
governor first elected as governor begins to run when he took the oath of
allegiance and oath of office.
2.
Whether the Federal Government of Nigeria through the defendant being
its agent can conduct any governorship election in
Anambra State in 2007 when the incumbent governor took oath of
allegiance and oath of office on 17th March, 2006 and has not
served his four year tenure as provided under
Section 180(2)(a) of the 1999
Constitution."
The claims made by
plaintiff/appellant read:
" 1.
A declaration that the four year tenure of office of the plaintiff as
governor of Anambra State began to run from the
date he took the oath of allegiance and oath of office being the 17lh
of March, 2006.
2.
A declaration that the Federal Government through the defendant being
its agent cannot lawfully conduct any governorship election in
Anambra State in 2007 in as far as the plaintiff
as the incumbent governor has not-served his four year term of office
commencing from when he took the oath of allegiance and oaths of office on
17th March, 2006.
3.
Injunction restraining the defendant by them-.selves, their agents,
servants, assign and privies or howsoever from in any way conducting any
regular election for the governorship of Anambra
State until the expiration of a period of 4 (four) years from 17th
day of March, 2006 when the plaintiffs tenure of office will expire."
It is apparent that the above
questions and claims have nothing to do with the capacity of the
plaintiff/appellant to perform the duties of his office as governor. His
case quite clearly therefore did not fall within jurisdictions committed to
the National Assembly Election tribunal under
Section 285(l) (b).
I think that the error of the
two courts below was the result of a failure to ascertain the meaning of the
word 'cease' as used in Section
285(l) (b). The trial court took the view that the plaintiff/appellant
ought to have raised his claim before the election tribunal which heard his
case against the declaration of Dr. Peter Ngige
as to the winner of the 2003 election by the 1st respondent. This
is an incorrect proposition. How could a petitioner before an election
tribunal who had not yet been adjudged a winner by the tribunal raise a
claim bordering on his tenure in office? I think the trial court failed to
avert its mind to the nature of the plaintiff/appellant's case. It was the
attempt made by the 1st respondent to arrange a governorship
election in 2007 that gave the plaintiff/appellant a cause of action which
he could not have had in 2003 before the election tribunal.
The court below at page 23 of
its judgment reasoned thus;
"By parity of reasoning,
Section 285 provides that the
election tribunal shall have exclusive original jurisdiction to determine;
(l) (b) whether the term of office of any person under this constitution has
cased. The appellant, being the governor of
With respect to the court
below, I think it failed to pay attention to the fact that
Section 184 is not a provision
dealing with the jurisdiction of the election tribunal. Further the court
below failed to appreciate that
Section 184(a)(ii) and (iii) deliberately makes a distinction between
the words 'cease' and 'vacant'. In 184(a) (ii), it says "the term of office
of governor or deputy governor has ceased while in 184(a)(iii)
the term of office of governor or deputy governor has become vacant."
Under
Section 285, only the dispute
concerning when term of a governor has ceased is committed to the
jurisdiction of the National Assembly Election Tribunal whilst the
jurisdiction as to when the office of a governor has become vacant is not
committed to any election tribunal. Clearly the two words 'cease' and
'vacant' are not meant by the constitution to mean the same thing.
In any case, at the time the
plaintiff/appellant sued, he was the incumbent governor of
My learned brother,
Aderemi J.S.C, has
in his lead judgment discussed the nature of the declaratory jurisdiction of
the court. I do not wish to embellish further his lucid exposition of the
law on the point. But I wish to emphasize on the indispensability of the
jurisdiction of the court to give declaratory judgments in
a democratic governance. The jurisdiction to
interpret the provisions of the constitution and all statutes generally
enables the constituent organs of the state to function smoothly. It is
particularly invaluable to citizens whose constitutional rights are
threatened with invasion. It seems to me that all the anxieties arising from
litigating on a simple case as this over the interpretation of a simple
provision of the constitution, which provision is not in the least
secondite, and which has culminated in this
appeal would have been removed if the interpretative jurisdiction conferred
by Section 251(i)
(q) and (r) had been fully recognized by all the parties.
It seems to me also that the
jurisdiction of a court or a tribunal ought to be conferred in a very clear
and unambiguous language which does not admit of any controversy. The
jurisdiction of a court or tribunal is not something you employ a
searchlight to discover. It ought to be plain for all to see. I am
particularly disturbed that, in an important constitutional matter as this,
bordering on the tenure in office of a governor, the two courts below have
had to squeeze to the marrow, the provisions of
Sections 184 and 285 of the
Constitution in order to arrive at the conclusion that the appropriate
venue for plaintiff/appellant's case is the election tribunal.
The next issue is whether or
not I should invoke the jurisdiction of this court under
Section 22 of the Supreme Court Act
to hear the simple issue arising for determination in the
plaintiff/appellant's case. I observed earlier in this judgment that this
suit was commenced by an originating summons at the Federal high Court. This
procedure enabled the parties to bring before that court the relevant
affidavit evidence. That simple evidence relates to the date when the
plaintiff/appellant was sworn in as the governor of
Section 180 of the 1999
provides:
"180.
(1) Subject to the provisions of this constitution, a person shall
hold the office of governor of a state until -
(a)
when his successor in office takes the
oath of that office, or
(b)
he dies whilst holding such office; or
(c)
the date when his resignation from office
takes effect; or
(d)
He otherwise ceases to hold office in accordance with the provisions
of this constitution.
(2)
Subject to the provisions of subsection (1) of this section, the
governor shall vacate his office at the expiration of a period of four years
commencing from the date when -
(a)
in the case of a person first elected as
governor under this constitution, he took the oath of allegiance and oath of
office; and
(b)
the person last elected to that office
took the oath
of allegiance and oath of office or would, but for his death, have taken
such oaths.
(3)
If the Federation is at war in which the territory of Nigeria is
physically involved and the president considers that it is not practicable
to hold elections, the National Assembly may by resolution extend the period
of four years mentioned in subsection (2) of this section from time to time;
but no such extension shall exceed a period of six months at any one time."
Section 180(2)
above is to be read subject to the provisions of
Section 180(1) which itself is to
be read subject to the other provisions of the
1999 Constitution. There is no
doubt that the intendment of the constitution is to grant
a tenure of 4 years to all the elective offices
under the constitution. However,
a few occurrences may prematurely terminate the tenure. These include the
death while in office of an office holder, resignation, or if the holder
ceases to hold office as provided under the constitution. These are matters
which may affect the tenure of an office under the
1999 Constitution; I need to say
here again that a governor may cease to be so if he is removed pursuant to
Section 189 of the Constitution.
These are the matters which Section
180(1) of the Constitution directs attention to under
Section 180(2). It may also
happen that a governor may stay in office beyond 4 years if for instance the
Federation is at war and it becomes impracticable to hold an election.
(See Section
180(3)). In that case it will only be possible for a successor to
the office to take the oath of that office at the delayed date. See
Section 180(1).
Now coming to
Section 180(2) (a) which
provides:
"(2)
Subject to the provisions of subsection (1) of this section, the
governor shall vacate his office at the expiration of a period of four years
commencing from the date when -
(a)
in the case of a person first elected as
governor under this constitution, he took the oath of allegiance and oath of
office; and
(b)
the person last elected to that office
took the oath of allegiance and oath of office or would, but for his death,
have taken such oaths.
It is very easy to interpret
Section 180(2)(a) above given the
fact that the predecessor-in-office of a new governor coming into the office
for the first time would himself have stayed four years in compliance with
the 4 years term of office under the constitution. If it happens that the
previous holder stays beyond 4 years arising from the provisions of
Section 180(3), the term of the
new holder begin when he takes his oath of allegiance and oath of office. It
is easily seen that the provisions are in a sense schematic with a view to
ensuring continuity of office, and removing the possibility of a vacuum in
governance.
As I stated earlier, the
plaintiff/appellant was on the undisputed evidence sworn into office on
17-03-06. His four year tenure will in accordance with
Section 180(2) above begin to run
from that date. This requires any serious interpretation. It is only
necessary to apply the vision taking into consideration the impact which
Section 180(1) will have on it.
It is however necessary to bear in mind that succession to the office of
governor can only be through an election conducted in compliance with the
provisions of the constitution.
In the judgment of this court
delivered on 14-06-07, 1 ordered that the 5th respondent should
vacate the office of governor to enable the plaintiff/appellant exhaust his
four year term of office. I now explain why I did so.
The 1st respondent
the Independent National Electoral Commission knew or ought to know that the
plaintiff/appellant's case from its nature postulated that the 2007
governorship elections in
In the final- conclusion, I
agree with the lead judgment of my brother Aderemi
J.S.C.
I also make the same orders as in the lead judgment. I subscribe to
the order on costs.
Reasons for Judgment delivered
by
Mahmud Mohammed J.S.C
On 14th June, 2007
when this appeal was heard, I pronounced my decision allowing the
appellant's appeal and granted the relief sought by him. My reasons for the
judgment which I promised to give today are as stated below:
I have had the privilege of
reading in draft, reasons for judgment given by my learned brother
Aderemi, J.S.C in
which the facts of the case are fully stated and all the issues raised in
the appellant's brief
of argument and' the respective briefs of
argument filed by all the respondents in this appeal, are well set out and
extensively discussed.
entirely
agree with the reasoning and conclusion reached therein.
However, I wish to throw more light on one or two
matters already discussed.
It is observed that, apart
from the appellant who filed his notice
and grounds of appeal from which the three issues
raised in the appellant's brief of
argument were distilled, no cross- appeal or respondent's
notice was filed by any of the seven respondents in
this appeal. However, the 6th and 7th
respondents in their joint respondent's brief of argument identified only
two issues for determination. They are:
“i.
Whether the questions sought to be determined and reliefs sought are
election matters within the exclusive jurisdiction
of the Election
Petition Tribunal as decided by the court below or constitutional
interpretation within jurisdiction of Federal High Court
ii.
If the answer to question one is that it is within jurisdiction of
the Federal High Court, then whether the plaintiff/ appellant has made out a
case on the merit in the originating summons to have the case determined in
his favour by the Court of Appeal pursuant to its power
under Section 16 of the
Court of Appeal Act."
Although the stand of these
two respondents on the merit of the
appeal at the court below was that the Federal
High Court has no jurisdiction to entertain the case of the appellant as
conceived in the originating summons
thereby completely agreeing with the decision
of the court below in resolving the above two
issues on the appellant's appeal in this
court in their joint brief of argument, the
learned counsel for the 6th and 7th
respondents made a complete somersault to
support the case of the appellant while still remaining
in their position as respondents in the appeal.
The question is whether these respondents
can be allowed to do so. The answer of course is in the negative.
This is because this court has stated in so
many of its decisions that the traditional role
of a respondent to an appeal is to defend
the judgment appealed against.
If any respondent wants to depart from this traditional role by attacking
the judgment appealed against in any manner, that respondent is obliged by
the rules of court to file a cross-appeal.
On the main issue of
jurisdiction, it is whether the questions sought to be determined and the
reliefs sought by the appellant/plaintiff at the trial Federal High Court,
are truly election matters within the exclusive jurisdiction of the Election
Petition Tribunal as found by the Court of Appeal in its judgment at pages
763 - 764 of the record where the Court said -
“After a careful reading of
the reliefs claimed by the appellant at the lower court, it goes without
saying that the issue of when the tenure of the appellant as
governor , of
There is no doubt whatsoever
that the court below was quite
right in its judgment that a careful reading of
the reliefs claimed by the appellant in
his originating summons at the trial Federal High
Court shows that the issue of when the tenure of
the appellant as the governor of
Anambra State of Nigeria will cease, was what
the trial court was called to determine.
With the greatest respect, that fact in
itself does not make those reliefs election
matters subject to the exclusive
jurisdiction of the Election Petition Tribunal by virtue of
Sections
184 and 285(1) and (2) the 1999 Constitution.
This is because although the
provisions of Section 285(l) (b) of
the 1999
Constitution
which said -
“285(1) There shall be established for the
federation one or more election tribunals to be known as the National
Assembly Election Tribunals which shall, to the exclusion of any court or
Tribunal, have original jurisdiction to hear and determine petitions as to
whether -
"(a)
………………………….
(b)
the term of office of any person under
this constitution has ceased;
(c)
………………………….
(d)
…………………………..
might
have influenced the decision of the court below that the reliefs
claimed by the appellant at the trial court are
election matters, there is nothing in
those releifs to bring them within
Sections 184 and 285(1) and (2) of
the Constitution as found by that court. No where in the reliefs claimed
by the appellant any question or allegation that the term of office of the
appellant as the governor of
Close examination of the
questions for determination and
reliefs sought in the originating summons and the
affidavit in support of the appellant's
case reveals that no where did the issue that the tenure of office of the
appellant had ceased or that the appellant had vacated his office was raised
for determination by the trial court to pull out the appellant's case out of
the jurisdiction of the trial Federal High Court under
Section 251(l)(q) and (r) of the 1999
Constitution as examined by the court
below.
It
has to be born in mind also that the Appellant's action at the
trial court was rooted in the governorship
election conducted in
It should be also noted that
the trial court and the Court of
Appeal were in gross
error in expecting the appellant to have
included the reliefs sought at the trial Federal
High Court in the reliefs he sought in his
Election Petition in 2003 at the Election
Tribunal for determination, merely in anticipation of victory at the
tribunal. It is surprising that both trial court
and Court of Appeal failed to realise that such reliefs even if they were
claimed would have been purely speculative which the tribunal or any court
of law for that matter has no power to determine. See
Chinweze
& Anor. v.
Masi
& Anor. (1989) 1
N.W.L.R. (Pt. 97)
254.
This is because the reliefs the
appellant sought at the trial court did not accrue to
him after the declaration of the result of the
election in April, 2003 which he
challenged before the tribunal. These reliefs or right of action only
accrued to the appellant after his success at the tribunal and the Court of
Appeal where he was declared the winner of the governorship election in
These are therefore my reasons
for holding the view that the
questions for determination and the declaratory
and injunctive reliefs sought by the appellant/plaintiff in his originating
summons are indeed within the exclusive
original jurisdiction of the trial Federal
High Court.
See
Adeyemi
v
Opeyori (1976) 9-10 S.C. 31;
Yahaya
Adegun & Ors. v
As
for the
remaining issue for determination, from
the
undisputed facts
of
this case,
particularly the
status of
the appellant/plaintiff as elected governor of
Anambra State of Nigeria who took
his oath to assume the responsibilities of that office under the
1999 Constitution for four years
beginning from 17th March, 2006, the appellant/plaintiff has
clearly made out a case on the merit in
his originating summons to have had the case determined in his
favour.
Since both the trial Federal High Court and the Court of Appeal
have refused
to determine
the case
and grant
the appellant/plaintiffs relief,
this court in exercise of its powers under
Section 22
of the Supreme Court Act, rightly
proceeded to hear, determine
and grant
the appropriate
reliefs to
the aggrieved
appellant/plaintiff with no order on costs in the judgment delivered
on 14th June, 2007.
Reasons for judgment delivered
Francis
Fedode Tabai J.S.C
On the 14th of June
2007 this appeal was heard and later on that day I also announced my
decision allowing the appeal and indicated there that I would give my
reasons for the judgment today the 13th of July 2007. Before
today I have had the benefit of reading, in draft, the leading judgment of
my learned brother Aderemi
J.S.C. I agree
entirely
with the reasoning and conclusions in the said judgment. In the said
judgment he restated the facts which are essentially not in dispute,
reproduced relevant provisions of the constitution and statutes and
recapitulated the issues and addresses of counsel for the parties. While I
concur with my learned brother, I shall also make a brief discussion
hereunder on the key issues of jurisdiction and the term of the appellant
presented for determination.
In the originating summons
dated and issued at the Federal High Court Enugu on the 12/2/07 the
plaintiff who is the appellant submitted for determination the following two
questions:
1.
Whether having regard to Section 180(2) (a) of the 1999
Constitution the tenure of office of a governor first elected as
governor begins to run when he took the oath of allegiance and oath of
office.
2.
Whether the Federal government of Nigeria through the defendant being
its agent can conduct any governorship election in
Anambra state in 2007 when the incumbent governor took oath of
allegiance and oath of office on the 17th March 2006 and has not
served his four years tenure as provided under Section 180(2)(a) of the
1999 Constitution.
And based or these questions
he sought the following reliefs:
"(1) A
declaration that the four year tenure of office of the plaintiff as governor
of Anambra state began to run from the day he
took the oath of allegiance and the oath office being the
17th day of March 2006.
(2)
A declaration that the
Federal government through the defendant being its agent cannot lawfully
conduct any governorship election in Anambra
state in 2007 in so far as
the plaintiff as the incumbent governor has not served his four year term of
office commencing from when he took the oath of allegiance and oath of
office on 17th
March 2006.
(3)
Injunction restraining the
defendant by themselves, their agents, servants, assigns and privies or
howsoever from in any way, conducting any regular election for the
governorship of Anambra state until the
expiration of a period of 4(four) years from the 17th
of March 2006, when the plaintiffs
tenure of office will expire."
When the action was filed on
the 12/2/07 the 1st respondent was the sole defendant. By the
leave of court the other defendants/respondents were subsequently joined. A
number of notices of preliminary objection were filed by the respondents,
challenging the jurisdiction of the Federal High Court to entertain the
suit. In its ruling on the 30/3/07 the suit was struck out for the court's
lack of jurisdiction. The appeal to the court below was dismissed. It
affirmed the decision of the trial Federal High Court.
The plaintiff/appellant has
now come on appeal to this court. As I had earlier stated the issues raised
and the arguments of counsel are recapitulated in the leading judgment. I
shall not repeat them.
The first issue I like to
comment upon is that of jurisdiction. Had the appellant the right to
approach the Federal High Court for a determination of the two questions
presented and the three reliefs sought. The word jurisdiction has been
accorded nearly as many definitions as there are jurists and authors who
have attempted to define it. Black's
Law Dictionary 6th Edition adopts a number of definitions one
of which is "the power of the court to decide a matter in controversy and
presupposes the existence of a duly constituted court with control over the
subject matter and the parties."
In its judgment the court
below restated some principles governing the interpretation of statutes and
the constitution and examined, in particular,
Sections 184, 251(l)(p)(q) and (r)
285(1) (a)-(d) (2) (3) and (4) of the 1999 Constitution and stated:
"After a careful reading of the reliefs claimed by the appellant at the
lower court, its goes without saying the issue of tenure of the appellant as
governor of Anambra state of
(See page 763 of the record)
And at pages 765-766 the court
added:
"By parity of reasoning Section 285 provides that the election
tribunal shall have exclusive original jurisdiction to determine (l) (b)
whether the term of office of any person under this constitution has ceased.
The appellant being the governor of Anambra
state is a person under the constitution who desired to know when his term
of office will cease. Section 184 mandates the National Assembly to
make provisions in respect of (a) persons who may apply to an election
tribunal for the determination as to whether (ii) the term of office of
governor or deputy governor has
ceased...."
The court opined that although
the reliefs claimed are declaratory and injunctive, they are in reality
claims for the determination of his tenure of office. The court invoked in
particular the provisions Section
285(1) (a)-(d) and (2) of the 1999 Constitution. The relevant
provisions of the said
Section 285 provides:
"Section
285(1) There shall be established for the federation one or more
election tribunals to be known as the National Assembly election tribunals
which shall, to the exclusion of any court or tribunal, have original
jurisdiction to hear and determine petitions as to whether -
(a)
any person has been validly elected as a
member of the National Assembly;
(b)
the term of office of any person under the
constitution has ceased;
(c)
the seat of a member of the senate or a
member of the House of Representatives has become vacant; and
(d)
a question or petition brought before the
election tribunal has been properly or improperly brought.
(2)
There shall be established in each state of the Federation one or
more election tribunals to be known as the governorship and the Legislative
Houses election tribunals which shall, to the exclusion of any court or
tribunal, have original jurisdiction to hear and determine petitions as to
whether any person has been validly elected to the office of governor or
deputy governor or as a member of any legislative house."
Clearly, there is no
controversy about the purport of
Section 285(2) of the Constitution. It is the authority on the basis of
which the appellant herein successfully challenged the respondent's wrongful
and malicious declaration of Dr. Chris Ngige as
the elected governor of Anambra state in 2003.
The controversy is only as to
the provision of Section 285(1) (b)
of the Constitution on which the Court of Appeal relied to justify the
trial court's decision that it is the election tribunal that has the
original jurisdiction to entertain the claim. According to the court below,
"the
appellant being the governor of Anambra state is
a person under the constitution who desired to know whether his term of
office has ceased." In its view the appellant being the
governor of Anambra state falls within the
meaning of
"any
person under the constitution" in
Section 285(l)(b) of the 1999
Constitution. The court, in its wisdom, adopted the literal mode of
interpretation and accorded the term "any person under the constitution" its
ordinary grammatical meaning without reference to the object or subject
matter of the enactment. And it is the same literal mode of interpretation
that is being urged by the respondents.
In my respectful view, that is
interpretation in the abstract. In the abstract the text
"any
person under the constitution" would include every person
under the constitution whether or not the complaint by or against or in
respect of that person has anything to do with a particular election or
matters related thereto. It would mean, for instance, that it is the
election tribunals that would have exclusive original jurisdiction to
determine whether the term of office of the vice-chancellor of a University,
the chairman and members of the Civil Service Commission, Police Service
Commission or any other commission, the permanent secretary, any civil
servant or any other person enjoying a tenured appointment, has ceased,
since they also came within the meaning "any person under the constitution."
The number of persons over whose tenure the election tribunals would
exercise exclusive original jurisdiction would be infinite and too numerous.
In my view such a result could
not have been the intention of the framers of the constitution. The head
note of Section 285 itself says
"election
tribunals." It is clearly indicative of the subject matter of
the enactment. And the side note (or marginal note) which is in the nature
of the precise of the provision states
"establishment and jurisdiction of election tribunals,"
It is self-explanatory. The provision of
Section 285 is therefore narrow
in scope, restricted to election matters and the courts have a duty to
interpret its provisions in a sense harmonious with that clear objective or
subject-matter. While advocating this mode of interpretation Maxwell on
Interpretation of Statutes at page 55 says:
"It is therefore a canon of
interpretation that all words if they be general and not express or precise
are to be restricted to the fitness of the matter.
They are to be construed as particular if the intention be
particular; that is, they must be understood as used in reference to the
subject-matter in the mind of the legislature and to it only."
I adopt the above opinion in
its entirety. If the literal mode of construction adopted by the court below
and urged by the respondents is applied to the term
"any
person" in Section
285(1) (b) of the Constitution then an election tribunal would exercise
exclusive jurisdiction on tenure related matters practically over every
person with a tenured appointment. That would do violence to the clear
restrictive objective of the enactment. The clear provision is that the
person whose tenure comes within the exclusive jurisdiction of an election
tribunal is that person whose tenure becomes an election issue in a petition
presented before the election tribunal, and in respect of a particular
election.
When the appellant took his
oath of allegiance and oath of office as governor of
Anambra state on the 17th of March 2006, he had no reason
to believe that his four year term as stipulated in
Section 180(2) (a) of the
Constitution would be interrupted. He had no reason then to seek redress
in a court of law. It was when the 1st respondent started
preparations for election to the office of governor of
Anambra state that he got the real threat to the invasion of his
rights as the incumbent governor. It was then and only then that a cause of
action accrued to him. In reaction thereto, he filed this pre-emptive action
at the Federal High Court on the 12/2/07.
The question is, was the
appellant right to initiate the action at the Federal High Court?
Section 251(l) (q) and (r) are
relevant here. By Section 251(l)(q)
of the Constitution the Federal High Court enjoys jurisdiction in
civil causes and matters relating to
constitution in so far as it affects the Federal Government or any of its
agencies.
The 1st
defendant/respondent "the Independent National Electoral Commission” is one
of the agencies of
the Federal Government. And the action is one for
declarations and injunction affecting the validity of the then intended
executive or administrative action or decision by the Federal Government or
one of its agencies within the meaning of
Section 251(l)(r)
of the Constitution. The questions presented and reliefs claimed have
nothing to do with the appellant's participation or anticipated
participation at the 2007 governorship election in
Anambra state. Nor had they anything to do with the 2003 governorship
election for Anambra state. The simple question
is when having regard to the fact that he took his oath of allegiance and
oath
of
office on the 17/3/2006 and the provisions of
Section 180(2)(a) of the Constitution,
his term of office as governor of Anambra state
ceases.
In view of the foregoing
consideration, I hold that the Federal High Court has the jurisdiction to
entertain the action. The decision of the trial court
declining jurisdiction
and that of the Court of Appeal affirming same are both set side
accordingly.
In his leading judgment my
learned brother Aderemi
J.S.C very ably articulated the reasons which warranted this court
recourse to Section 22 of the Supreme
Court Act to hear the substantive case. I need not repeat them.
Let me now consider the two
questions submitted for determination and the reliefs claimed. They are both
predicated on Section 180(2) of the
1999 Constitution. Section 180
subsections (1) and (2) provide as follows:
"180 (1)
subject to the provisions of this constitution, a person shall hold
the office of governor of a state until -
(a)
when his successor in office take the oath
of that office; or
(b)
he dies while holding such office; or
(c)
the date when his resignation from office
takes effect; or
(d)
he otherwise ceases to hold office in
accordance with the provisions of this constitution.
(2)
Subject to the provisions of subsection (1) of this section, the
governor shall vacate his office at the
expiration of a period of four years commencing from the date when -
(a)
in the case of a person first elected as
governor
under this constitution he took the oath of allegiance and oath of office;
and
(b)
the person last
elected to that office took the
oath of allegiance and oath of office or would, but for his death, have
taken such oaths."
The appellant specifically
sought the interpretation and application of
Section 180(2) (a) of the
Constitution. The appellant's submission is that he is a person first
elected as governor of Anambra state within the
meaning of Section 180(2)(a) of the
Constitution and that since he took his oath of allegiance and oath of
office on the 17/3/2006 his four year terms ends on the 17/3/2010. The
respondents on the other hand argued that although the appellant was
ultimately declared the duly elected candidate and was sworn in as governor
of Anambra state on the 17/3/06, Dr. Chris
Ngige (though wrongly declared) had earlier
taken the oath of office of governor of Anambra
state on the 29/5/2003 and therefore that the appellant would be deemed to
have taken his oath on the 29/5/2003 there being no vacuum in the governance
of Anambra State. I am not persuaded by the
submission of the respondents. The oath taken by Dr. Chris
Ngige cannot in any conceivable sense be taken
to be that of the Appellant. Dr Chris Ngige's
election as governor of Anambra state was
nullified by the election petition tribunal in August 2005. This
nullification was upheld by the Court of Appeal Enugu division on the
15/3/2006. The effect of this nullification is that Dr. Chris
Ngige was never elected and sworn in as governor
of Anambra state. He cannot therefore be
"a
person first elected as governor" within the meaning of
Section 180(2)(a)
of the Constitution. In my respectful view, it is the appellant that
comes within that provision. The consequence is that the appellant as a
person first elected as governor of Anambra
state only vacates his office at the expiration of four years from the
17/3/2006 when he took his oath of allegiance and oath of office. That is to
say, the appellant's four year term as governor of
Anambra state which commenced on the 17/3/2006 ends on the 17/3/2010.
With respect to
Section 180(l)(a)
of the Constitution, the uncontested facts are that this originating
summons was filed on the 12/2/2007. The 1st respondent was the
sole defendant. The other respondents were subsequently joined on their own
applications to be so joined. They all contested it at every stage of the
proceedings. I do not think any one of them was in any doubt about the
implications of this pending suit. The 1st respondent in
particular and indeed all other respondents knew that the conduct of the
governorship election in Anambra state and the
eventual inauguration of the 5th respondent as governor of
Anambra state were all subject to the ultimate
decision in this pending suit. The decision that the appellant Mr. Peter Obi
is still the governor and remains so until the 17/3/2010
supercedes, cancels and nullifies the purported
election and inauguration of the 5th respondent as the governor
of Anambra state. The
5th respondent was therefore not the
appellant's successor in office to have taken any oath of office within the
meaning of Section 180(l)(a)
of the Constitution.
It is for the foregoing
reasons and the fuller reasons in the judgment of
Aderemi J.S.C that I also allow the
appeal. I also grant the reliefs and the consequential order as contained in
the leading judgment.
Reasons for Judgment delivered
by
Ibrahin
Tanko Mohammed J.S.C
On the 14th day of
June, 2007, I allowed the appeal on jurisdiction and adjourned giving my
reasons to today. I have had the advantage of reading the reasons proffered
by my learned brother, Aderemi,
J.S.C with whom I am
in complete agreement. I adopt same as mine. I do not think there is any
need for me to over flog any of the issues ably treated by my learned
brother, Aderemi, J.S.C.
I make no order as to costs.
Reasons for Judgment delivered
by
Christopher M.
Chukwuma-Eneh J.S.C.
On 14/6/2007, I allowed this
appeal and said on that occasion that I would give my reasons for the
decision today.
In regard
to the statement of facts and arguments of counsel on both sides of the
matter, so comprehensively stated in the lead judgment of my learned brother
Aderemi J.S.C.
I have adopted the same as mine for purposes of my short contribution in
this matter.
However, for purposes of this
resume, I have, all the same, to highlight some critical facts upon which to
premise my observation. It is a notorious fact that the appellant - Peter
Obi contested the governorship seat for Anambra
State In the April 2003 general election and lost to Dr.
Ngige who was declared by the 1st
respondent as duly elected and sworn-in as governor of
Hence, he (the appellant)
commenced the instant action at the Federal High Court,
"(1)
Whether having regard to
Section 180(2) (a) of
the 1999 Constitution,
the tenure of office of a governor
first elected as governor begins to run
when he took the oath of allegiance and oath of
office.
(2)
Whether the Federal Government of Nigeria through
aie defendant being its agent can conduct any
governorship election in Anambra State in 2007
when the incumbent governor took oath of allegiance and oath of office on 17th
March, 2006 and has not served his four-year tenure as provided under
Section 180(2)(a) of the 1999
Constitution."
The appellant accordingly
prayed for the following orders:
"(1)
A declaration that the four year tenure of office of the plaintiff as
governor of Anambra State began to run from the
date he took the oath of allegiance and oath of office being the 17th
of March, 2006.
(2)
A declaration that the Federal Government through the defendant being
its agent cannot lawfully conduct any governorship election in
Anambra State in 2007 in as far as the plaintiff
as the incumbent governor has not served his four year term of office
commencing from when he took the oath of allegiance and oaths of office on
17th March, 2006.
(3)
Injunction restraining the defendant by themselves, their agents,
servants, assign and privies or howsoever from in any way conducting any
regular election for the governorship of Anambra
State until the expiration of a period of 4 (four) years from 17th
day of March, 2006 when the plaintiffs tenure of office will expire."
The appellant filed an
affidavit of 15 paragraphs, in support of the originating summons.
I see the need to further
buttress the ground for the
lis
by specific reference
to paragraphs 8, 9, 11 and 12 of the affidavit in support of the originating
summons in this action and I quote:
"8
I am aware that presently all the persons elected governors in other
States of the Federation under the 2003 general election are about
completing their four years tenure of office and the defendant is making
efforts towards conducting the 2007 general elections for the office of
governor in Anambra State.
9.
Despite the fact that my tenure as governor of
11.
The submission of my name by my political party as the party's
candidate for the 2007 governorship election in Anambra
State is without prejudice to my constitutional right to enjoy the full
tenure of 4 (four) years as governor of Anambra
State, which cannot be waived.
12.
As informed by Dr.
Onyechi Ikpeazu SAN as aforesaid the suit
concerns principally the construction, of
Section 180(2) (a) of the 1999
Constitution and there is no likelihood that any or substantial dispute
of facts will arise."
The reason for instituting the
instant action is clearly borne out; from the foregoing depositions. The
appellant's term of office as governor
of
The rest of the parties i.e. 2nd
to 7th respondents sought to be
joined as parties in this matter and were duly so
joined by order of the trial court. The 1st respondent apart from
filing a counter affidavit to the originating summons filed also a notice of
preliminary objection challenging the jurisdiction of the trial court to
entertain the matter. It is noteworthy that there is no rebuttal of the
appellant's assertion that the facts in the matter are net in issue so the
legal implication is settled, even then, I cite the case of Long John v
Blakk (1998) 6 NWLR
(pt.555) 524 at 532. The other parties also have severally by
applications sought to challenge the competency of the action and filed
their affidavit.
The
two issues
that have
stood out
prominently for
determination in this matter are as follows:
"(1)
Whether the questions sought to be determined and reliefs sought are
election matters within the exclusive jurisdiction of the Election Petition
Tribunal as decided by the court below or constitutional interpretation
within jurisdiction of Federal High Court.
(2)
If the answer to question one is that it is within jurisdiction of
the Federal High Court, then whether the plaintiff/appellant has made out a
case on the merit in the originating summons to have the case determined in
his favour by the Court of Appeal pursuant to its power under
Section 16 of the Court of Appeal Act."
The question of jurisdiction
has become the fulcrum of the' respondents' case in this matter and the
issue has however, been dealt with exhaustively in the lead judgment of my
learned brother Aderemi
J.S.C. I just want to underscore some salient points in this
discourse sequel to the pendency of this matter at all material times
vis-a-vis
the order I made as regards the 5th respondent to the effect that
he vacates the office of governor of Anambra
State with
immediate effect as the office of governor of Anambra
State has neither ceased nor become vacant as at 29/5/2007 when Dr. Andy
Uba, the 5th respondent has
purportedly been sworn in as the governor of Anambra
State. The appellant has not by then exhausted his term of office of 4 years
certain from the date he took his oath of .allegiance and oath of office
that is to say 17/3/2006.
The issue of jurisdiction is
at the root of this matter. The gist of the case of the respondents at the
Federal High court and the Court of Appeal put in a nutshell is that the two
lower courts have no power to entertain the appellant's suit in that his
case fall squarely within exclusive jurisdiction of the election tribunal
i.e. the National Election Tribunal by virtue of
Section 285(l) (b) of the 1999
Constitution. This argument went down well with both lower courts which
upheld the same and struck out the appellant's case hence this appeal. To
this argument to be precise the Court of Appeal has reacted particularly
thus:
"After a careful reading of
the reliefs claimed by the appellant at the lower court, it goes without
saying that the issue of when the tenure of the appellant as governor of
It is clear to me that the
lawmaker has, without any reservation, assigned to the election tribunal
exclusive jurisdiction on fallouts of election and tenure matters and
therefore no other court can entertain same."
Respectfully, I think the
court below floundered in its reasoning and conclusion as per the above
abstract from its judgment and so, it has come to a faulty conclusion; hence
I held in my judgment of 14/6/2007 that in as much as the appellant by his
reliefs has only sought from the two courts the interpretation of
Section 180(2)(a) of the 1999
Constitution as regards when his term of office will end that the
Federal High Court (a fortiori the court below) has by virtue of
Section 25I(l)(q)(r) of 1999
Constitution the
power to
interpret any
provisions of
the constitution
or the law and should have gone ahead to do so in this
instance particularly as the act complained of
has been done by pursuance of "executive or administrative action or
decision" of the 1st respondent.
This apparent default in
dealing with this matter has arisen from the misconstruction of
Section 285 of the 1999 Constitution
and I go on to show that this is clearly so. The two lower courts, if I may
recap, have relied on Section 285 of
the 1999 Constitution to deny the Federal High Courts jurisdiction over
this matter which they have construed as within the exclusive jurisdiction
of the election tribunal. I respectfully beg to disagree with the pronounced
views of the two lower courts in this matter.
Section 285 of the 1999
Constitution
provides as follows:
285(1)
There shall be established for the
Federation one or more
..... as to whether
(a)
any person has been validly elected as a
member of the National Assembly;
(b)
the term of office of any person under
this constitution has ceased,
(c)
the seat of a member of the senate or
member of the House of Representatives has become vacant, and
(d)
a question or petition brought before the
election tribunal
has been
properly improperly brought or
(2)
There shall be established in each state of the Federation one or
more election tribunals to be known as the governorship and Legislative
Houses election tribunals which shall, to the exclusion of any court or
tribunal, have original jurisdiction to hear and determine petitions as to
whether any person has been validly elected to the office of the governor or
deputy governor or as a member of any legislative house.
(3)
The composition of the National Assembly, election tribunals’
governorship and Legislative Houses election tribunals shall be as set out
in the sixth schedule to this constitution.
(4)
The quorum of an election tribunal established under this section
shall be the chairman and two other members."
At this stage it is important
to reiterate the basic principle of statutory interpretation to the effect
that the provisions of a statute must be construed as a whole, that is, not
isolation if the true
intendment of the lawmakers is to be ascertained.
See S.P.D.C.
v Isaiah (1997) 6 NWLR
(pt.565) 236.
And more importantly in order
to determine the meaning of any expression or phrase in an enactment, the
basic question is what is the natural, ordinary or grammatical meaning of
the words used in the enactment in the context in the statute and it is only
when the ordinary meaning of those words leads to some cannot reasonably be
supposed to have been the intention of the lawmakers that it becomes proper
to look for some other possible meaning of the words concerned. See
Uwaifo v
The provisions of Section 285 of the 1999 Con |