Inec Vs. Chief Godwin Enasito (2017)

LAWGLOBAL HUB Lead Judgment Report

HON. JUSTICE S. D. BAGE, J.S.C

This appeal is against the judgment of the Court of Appeal, Benin Division delivered on the 28th day of May, 2015 which affirmed the judgment of the Federal High Court Warri suit No. FHC/WR/CS/59/2014, delivered on the 31st day of October, 2014. The Court of Appeal upheld the decision of the trial court and dismissed the appellant’s appeal. The lower court held inter alia, that the trial court had jurisdiction to entertain the suit and that the respondents cause of action was not statute barred, and that there is continuance in the suppression of Ughelli South State Constituency 1.

Aggrieved by the decision of the court below, the appellant filed a notice of appeal dated 14th day of August, 2015 containing (4) four grounds of appeal.

The facts that gave rise to this appeal are that, the respondents commenced the action at the Federal High Court Warri on 12th May, 2014 against the appellant. The respondents raised four (4) questions and claimed the following reliefs:-

“1. A Declaration that by virtue of the mandatory provisions of Sections 6, 36, 91, 112 of the 1999 Constitution and other enabling laws in that behalf, the Delta State House of Assembly presently consisting twenty-nine (29) members which less than three (3) or four (4) times the number of seats which Delta State has in the national Assembly is not properly Constituted or composed.

2. A Declaration that the appellant does not have any power and/or discretion whatsoever to suppress the existing Ughelli- sought State Constituency 1 with Constituency Code No. SC/33/DT in the Delta State House of Assembly lawfully created and approved by the National Assembly (as contained in the National Electoral Commission Delta State Voters and Candidate Education know your Senatorial Districts, Federal and State Constituencies and Electoral Wards in Delta State House of Assembly – 1st Assembly

with specific reference to No. 4 and 23 thereof) by omitting, failing, refusing and/or neglecting to include the Ughelli South State Constituency 1 with Constituency Code No. SC/33/DT in the approved list of state constituencies previously suppressed as attached to the appellant’s letter date of 2nd June, 2004 and addressed to the clerk of the National Assembly, National Assembly Complex, Abuja.

3. A Declaration that the appellant’s omission, failure, refusal and/or neglect to restore and recognize the Ughelii South State Constituency 1 with Constituency code No. SC.33/DT by including it in the approved list of state constituencies previously suppressed as attached to the Appellant’s letter dated 2nd June, 2004 and addressed to clerk of the National Assembly, National Assembly Complex, Abuja is unlawful, illegal, null, void and contrary to the mandatory, clear and express provisions of Sections 91, 112 of the 1999 Constitution; thereby constituting a flagrant violation of the constitutional rights of the good people of Ughievwen clan (that is Jeremi Wards I-V) comprising the Ughelli – South State Constituency 1 with Constituency Code SC/33/DT to be adequately represented in the Delta State House of Assembly.
4. A Declaration that the Appellant is enjoined by the mandatory provisions of Section 6, 36, 91 and 112. Of the 1999 Constitution and other enabling laws in that behalf, to restore forthwith the long – suppressed Ugheli South State Constituency I with Code No. SC.33/DT in the Delta State House of Assembly and Conduct election into the said Ughelli South State Constituency 1 with Constituency code No. SC/33/DT in the Delta State House of Assembly.
5. A declaration that by virtue of the mandatory provisions of Section 6, 36,112 and 1999 Constitution and other enabling laws in that behalf, the constitution/statutory duties of the appellant in restoring the long suppressed Ughelli South State Constituency 1 with constituency code No. SC/33/DT In the approved list of the State Constituencies previously suppressed as attached and to the appellant’s letter dated 2nd June, 2004 and addressed to the clerk of the National Assembly, National Assembly Complex, Abuja is not subject to further review or approval by the National.
6. An order directing and compelling the appellant either by herself, agent, servant, privies, surrogates, staff or any person acting through the appellant and/or on the instruction or directive of the appellant to restore forthwith, the Ugheili South State Constituency 1 with Constituency code No. SC.33/DT in the Delta State House of Assembly in Ughelli south Local Government Area of Delta State of Nigeria Comprising the Ughievwen Clan (that is Jeremi I-V) so as to bring the composition and numbers of the created, delineated and delimited constituencies in the Delta State House of Assembly in compliance with the mandatory provisions of Section 91 and 112 of the 1999 Constitution and other enabling laws in that behalf.
7. An order directing and compelling the appellant either by herself, agent, servants, privies, surrogates, staff or any person acting through the appellant and/or on the instruction or directive of the appellant to conduct election forthwith into the Ughelli South State constituency 1 with constituency code No. SC 33/DT in the Delta House of Assembly for the purpose of electing the he member representing the Ughelli South State constituency 1 with constituency code No. SC/33/DT. In the Delta State House of Assembly and bring the composition and numbers of the created, delineated and delimited constituencies in the Delta State House of Assembly in compliance with the mandatory provisions of Sections 91 and 112 of the 1999 Constitution and other enabling laws in that behalf.
8. A perpetual injunction restraining the appellant either by herself, agent, servants, privies, surrogates, staff or any person acting through the appellant and/or on the instruction or directive of the appellant from suppressing or further suppressing the Ugheli South State Constituency with Constituency code No. SC/33/DT in the Delta State House of Assembly in Ughelli south Local Government Area of Delta State of Nigeria comprising the Ughievwen clan (that is, Jeremi Ward I – V) or doing anything howsoever that will have the adverse effect of suppressing and/or undermining the Ugheiii south Constituency with constituency code No. SC.33/DT with a view to depriving the good people of Ughelli south State Constituency 1, with constituency code No. SC.33/DT adequate representation in the Delta State House of Assembly or any other elections whatsoever in the Federal Republic of Nigeria.”

The originating summons was supported by a 63 Paragraphs affidavit and a number of documents.

The appellant, in reaction to the respondent’s originating processes, filed a notice of preliminary objection wherein it contended that the jurisdiction of the trial court to entertain the suit was statute barred, having not been instituted within three months after the accrual of the cause of action. It is contended, therefore, that the suit was incompetent.

In his consolidated judgment of 31st October, 2010, the learned trial judge dismissed the appellant’s preliminary objection and held that the complaints of the respondents is a continuous act which removes the protection granted by Section 2 (a) of the Public Officers Protection Act. The court further granted all the reliefs except prayer 8 sought by the respondents.

Aggrieved by the judgment of the learned trial judge, the appellant filed a notice of appeal dated 4th December 2014 containing four (4) grounds of appeal.

After hearing the argument from both parties the Court of Appeal delivered it’s judgment on 28th May 2015, wherein it affirmed the decision of the trial court and dismissed the appellant’s appeal.

Dissatisfied, appellant has further appealed to this court vide a notice of appeal dated 14th August, 2015, containing four (4) grounds of appeal.

In his brief of argument, the learned counsel for the appellant formulated the following issues for determination.

ISSUE No. 1