S. O. Ukpai V. U. O. Okoro & Ors (1983)

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ESO, J.S.C.

The point, which has been taken in this appeal, is of considerable constitutional importance. It raises the issue of the jurisdiction of the State High Court in dealing with matters of election petition having regard to the provisions of the Constitution and the Electoral Act 1982. The facts of the case in so far as they are relevant to the point in issue are as follows:

Three persons, Shedrack Orji Ukpai, a member of the Nigerian Peoples Party (N.P.P.), Udo Oji Okoro of the National Party of Nigeria (N.P.N.), and T. C. Okogere of the Unity Party of Nigeria (U.P.N.), were candidates for the election for the Afikpo Federal constituency to the House of Representatives. The election was held on 27th August, 1983 when the returning officer, one Ewa Edu, declared Udo Oji Okoro of the N.P.N. as being the duly elected member for the constituency.

Shedrack Orji Ukpai was dissatisfied with this return made by the returning officer and he filed a petition in the High Court registry of Imo State, at Umuahia in the Umuahia Judicial Division. This was on 9th September, 1983. However, on 14th September, the returning officer, who was the 3rd respondent to the petition, filed a motion seeking an order of the court to strike out or dismiss the petition on the ground among others, that- The petition was not properly before the court “as the same was filed in contravention of section 119(2)(c) of the Electoral Act which provided that (sic) ‘c’ in any case involving the membership of or the seat of a person in a legislative house, the High Court of the State where the Senatorial district, Federal constituency or State constituency of that member or person is located.”

The returning officer claimed that in this case the Afikpo Judicial Division of the High Court of Imo State and not the Umuahia Judicial Division was the proper forum or to use the exact wording of the motion, “the proper court.”

Also, in the reply filed by Udo Oji Okoro, the 1st respondent to the petition, he said

“7. The 1st respondent avers and shall contend at the trial that this petition was wrongly instituted before the High Court having jurisdiction in the Federal constituency for which the candidate, ‘to wit the 1st respondent’ was elected.”

Now, the court dismissed the motion filed by the returning officer seeking a striking off of the petition, on the ground of noncompliance, by the applicant, with Order 35 rule 4 of the High Court Rules of Imo State. In other words the motion was not determined on its merit. However, as the same issue had been raised in the reply filed by the 1st respondent to the petition, the court considered this-issue of jurisdiction and after the court had examined the provisions of s. 119 (2)(c) and s.119 (4)(c) of the Electoral Act 1982, it held-

“In our view, this [that is, s. 119(2)(c) and (4)(c) of the Electoral Act] does not mean that the petition would be filed in the judicial division of the High Court of Imo State in which the petitioner is located. In view of the definition of the competent High Court in section 119(2)(b) it is our view that what section 119(2)(c) simply means is that the petition may be filed in the High Court of the State as it has jurisdiction in the Senatorial district, Federal constituency or State constituency in which the member or person is located. This interpretation in our view applies so s. 119(4)( c) because s. 119(4) again talks about the competent High Court. Whether the petition involves the membership of the Senate, or House of Representatives or State House of Assembly, we hold the view that the competent High Court is the High Court of Imo State. The fact that there are judicial divisions of the said High Court of Imo State does not in any way affect the exercise of its jurisdiction throughout the State.”

The High Court then concluded this aspect of the case that is, jurisdiction, by reference to s. 238 of the Constitution of the Federal Republic of Nigeria and s. 42 of the High Court Law and held that the three Judges constituting the panel had jurisdiction to hear and determine the petition. This is the entire finding that is relevant to the issue, which is now before this Court. However, I think it is pertinent for one to make mention of how the court finally disposed of this case. Having held that they had jurisdiction, the learned Judges went by the pleadings before ‘the court, held that though the 1st respondent to the petition filed a reply but as the allegations of the petition were principally against the 2nd and 3rd respondents who actually conducted the election and neither the 2nd nor the 3rd respondents filed a reply they were to be presumed to have admitted the allegations contained in the petition “they were out of the case and the petitioner is entitled to judgment in terms of his prayer.”

Incidentally this part of the judgment is not being supported by Chief F.R.A. Williams, S.A.N. learned counsel for the appellant and he said so. I think Chief Williams is right by not supporting this decision. It offends against section 33 of the Constitution, which provides for fair hearing of a case by a tribunal established by law and constituted in such manner as to secure its independence and impartiality. A tribunal that does not hear the other side or in fact any side at all, has not given the litigants a fair hearing. See also Isiyaku Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 424; 426, Ariori v. Elemo 1983 1 S.C. 13, at page 24 per Obaseki, J.S.C. and Kayode Eso, op.cit.p.59.

What happened in the instant case was a curious manner of trying a case; but as I have said, the point has not really arisen as a matter in controversy in this appeal as learned counsel for the appellant does not support it. The only relevance of this mode of trial is that whatever decision I would have come to on the issue of jurisdiction, I would have had to send the case back to the High Court for a proper trial.

But be that as it may, the respondents to the petition Udo Oji Okoro of the N.P.N., the electoral officer Afikpo Federal constituency and the returning officer appealed to the Federal Court of Appeal. And having heard arguments of learned counsel, the Federal Court of Appeal, as per Aseme J.C.A., on the issue of jurisdiction, held

“It is important to note that both learned counsel agreed that there is Imo State High Court in Afikpo Town . . .