Abia State Independent Electoral Commission & Ors. V. Deacon Chijioke Onyeabor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment)

This is a consolidated appeal arising from the judgment of Onuoha A. K. Ogwe .J. delivered on 20th April, 2009 in Suit No. HOS/137/2008 at Umuahia in the Umuahia Judicial Division of the High Court of Abia State.

Deacon Chijioke Onyeabor, the respondent in Appeal No. CA/PH/39/2009 and the 1st set of respondent in CA/OW/112/2010 was the Chairmanship candidate for the Progressive Peoples Alliance (PPA) in the Local Government Chairmanship and councillorship Election for Isuikwuato Local Government Area of Abia State While the local Government Elections were successfully held in 16 out of the 17 Local Government Areas of Abia State, the Election in Isuikwuato Local Government was cancelled by the Abia State Independent Electoral Commission (ABSIEC) and her officials on account of disruption and violence ABSIEC and her officials are the appellants in Appeal No. CA/PH/39/2009 and the 2nd set of respondents in CA/OW/112/2010. Dissatisfied by the cancellation of the Local Government Elections in Isuikwuato Local government by ABSIEC, Deacon Chijioke Onyeabor and ten councillorship candidates at the election individually filed petitions at the Abia State Local Government Council Election Tribunal holden at Umuahia praying that they be returned as the Chairman and Councillors respectively of the said Isuikwuato Local Government on the ground that they were the sole Chairmanship and Councillorship candidates nominated for the said election and that they ought to be returned unopposed.

In a considered judgment delivered by the said Abia State Local Government Council Election Tribunal on the 4th day of October 2008, Deacon Onyeabor’s petition as well as that of the councillorship candidates were dismissed on the ground that the jurisdiction of the Election Tribunal does not extend to the claims and reliefs therein sought by the petitioners.

Thereafter, Deacon Chijioke Onyeabor and the ten councilors proceeded again to separately file Originating summons before the Abia State High Court.

Hon. Deacon Chijioke Onyeabor as plaintiff in suit No. HOS/37/2008 which led to the consolidated appeals submitted the following questions for determination.

1. Whether upon a proper interpretation of Paragraph 11 of the 5th Schedule to the Abia State of Nigeria Local Government Law, Law No. 2 of 2006, the plaintiff who was the only nominated Chairmanship candidate for the 19th of January 2008 Local Government Elections in respect of Isuikwuato Local Government Council after the latest time of the delivery of nomination forms and or for withdrawal of candidates for an Election, ought not to be declared elected by the defendants.
2. Whether upon a proper interpretation of paragraph 11 of the 5th Schedule to the Abia State of Nigeria Local Government Law, Law No. 2 of 2006, the purported cancellation of the Isuikwuato Local Government Council Election on the 20th day of January 2008 by the defendants when the plaintiff was the only nominated Chairmanship candidate for the 19th day of January 2008 Local Government Elections in respect of Isuikwuato Local Government Council after the latest time for the delivery of nomination forms and or for withdrawal of candidates for an Election, and ought to have been declared elected by the defendants, was proper in law.

The 1st respondent (Deacon Onyeabor) sought the following reliefs

(a) A declaration that upon a proper interpretation of paragraph 11 of the 5th Schedule to the Abia State of Nigeria Local Government Law, Law No. 2 of 2006, the plaintiff who was the only nominated Chairmanship candidate for the 19th day of January 2008 Local Government Elections in respect of Isuikwuato Local Government Council after the latest time for the delivery of nomination forms and or for withdrawal of candidates for an Election, ought to have been declared elected by the defendants.

(b) A declaration that upon a proper interpretation of paragraph 11 of the 5th Schedule of Abia State of Nigeria Local Government Law, Law No. 2 of 2006, the purported cancellation of the Isuikwuato Local Government Council Election on the 20th day of January 2008 by the defendants when the plaintiff was the only nominated Chairmanship candidate for the 19th day of January 2008 Local Government Council Elections in respect of Isuikwuato Local Government Council after the latest time for the delivery of nomination forms and or for withdrawal of candidates for an election, and ought to have been declared elected by the defendants, was not proper in law.

(c) An Order nullifying the purported cancellation of the said Isuikwuato Local Government Council Chairmanship Election of the 19th day of January 2008 for being contrary to the Provisions of Paragraph 11 of the 5th Schedule to the Abia State of Nigeria Local Government Law, Law No. 2 of 2006

(d) An Order compelling the defendants to declare the plaintiff as the elected Chairman for the Isuikwuato Local Government Council in respect of the election held on the 19th day of January 2008.

(e) An Order compelling the defendants to issue the plaintiff with the Sealed Certificate of Return as the duly elected Chairman of the Isuikwuato Local Government Council held on the 19th day of January 2008.”

In his judgment delivered on 20/1/2009, the learned trial Judge (Onuoha A. K. Ogwe, J) granted respondent’s reliefs Nos. (a) and (d) but found it unnecessary to grant reliefs (b), (c) and (d), on account of his “earlier view” that holding the election was unnecessary having regard to the provisions of the said Local Government Law.

At pages 61 -62 of the printed record, the learned trial Judge continued in his judgment as follows: