Abia State Independent Electoral Commission V. Chief Okechi Kanu & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

On the 14th day of May, 2007 the Respondents as plaintiffs commenced the suit subject matter of this appeal at the Federal High Court, Abuja claiming the reliefs contained in their writ of summons and paragraph 15 of their Statement of Claim thus:-

(i) A declaration that by virtue of Section 7(4) of the 1999 Constitution; section 10(1); (2); (3); (4) of the Electoral Act 2006; Section 11(4) of the Electoral Act 2006; and Section 16 of the Electoral Act,.2006; Abia State Independent Electoral Commission has no power to conduct elections for local Government Councils on the 19th day of May, 2007 the absence of voters register.

(ii) A declaration that any purported method for the conduct of the forthcoming local government elections which runs contrary to the provisions of the Electoral Act, 2006 and the 1999 Constitution is unconstitutional null and void.

(iii) An order of mandatory injunction restraining Abia State Independent National Electoral Commission (ABSIEC) from holding and or conducting local government elections in Abia State on the 19th day of May, 2007 or any other date until the voters register is duly (sic) corrected, updated and issued by the Independent National Electoral Commission

(iv) In the Alternative, an order mandating Independent National Electoral Commission to forthwith release and make available to the Abia State Independent Electoral Commission voters’ register in compliance with section 16 of the Electoral Act; 2006.

On the 17th May, 2007 the lower court made interim orders against the Appellant thus:-

“IT IS HEREBY ORDERED AS FOLLOWS:-

1. That the 1st defendant is RESTRAINED in the interim from conducting the Local Government Election for Abia State of Nigeria which has been slated for 19th May, 2007 pending the determination of the Motion on Notice.
2. That this cases adjourned to 25/05/07 to enable the 1st defendant present its case in respect of the Motion on Notice. ISSUED AT ABUJA the seal of the Court and the Hand of the Presiding Judge this 17th day of May, 2007”.

On the 21st day of May 2007 the Appellant entered a conditional appearance to Respondents suit on the 22nd day of May, 2007 the Appellant filed a motion on Notice challenging the jurisdiction of the lower court to entertain the Respondent’s suit.

On the 1st day of June, 2007 the lower court entertained arguments on Appellant’s preliminary objection and on the 4th day of July, 2007 the court dismissed the Appellant’s preliminary objection in its entirety. Dissatisfied the Appellant appealed to this court.

As a recap the Respondents as plaintiff had commenced their suit at the court below to prevent the Appellant from conducting the local government elections in Abia State on the 19th day of May, 2007 or any other date on the ground that the National Electoral Commission had not released the Voters Register to the Appellant at the time the Appellant was poised to conduct the elections without the Voters Register.

It is to be noted that Section 182(1)(d)(i) of the Abia State of Nigeria Local Government Law No.2 of 2006 provides:-

“Where INEC or any other authority is unable to provide ABSIEC with Voters Register, it (ABSIEC) shall conduct the Local Government elections using the open secret ballot system (Option A4)”.

ISSUES FOR DETERMINATION