Apc & Ors V. Enugu State Independent Electoral Commission & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

The appellants, as plaintiffs instituted an Originating Summons against the respondents at the High Court of Enugu State for the determination of the following questions:

1. Whether upon a proper interpretation of the provisions of Section 7(1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 3(1) and Section 4(3) of the Local Government Law CAP. 109, Revised Laws of Enugu State, 2004; the existence of a democratically elected Government System in the Seventeen Local Government in Enugu State is guaranteed.

​2. Whether the provisions of Section 12(1)(2) of the Local Government Law CAP 109, Revised Law of Enugu State 2004 and Section 6(1) of the Local Government Area (Creation and Transition) Provision Law, C4P 110, Revised Law of Enugu State, 2004 which allows the defendants to appoint a Caretaker Committee or Transition Committee or however called for a defined or undefined period of time to the position of Chairman of each of the Seventeen (17) Local Government Councils in Enugu State are inconsistent with Section 7(1)(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are therefore unconstitutional null and void.

3. Whether by the provisions of the Constitution of Nigeria, 1999, the 1st set of defendants have powers to appoint or select, a transition committee or Caretaker Committee to the position of the Chairmen of each of the Seventeen (17) Local Government Councils in Enugu State without conducting a Local Government election.
4. Whether the defendants have powers to extend and elongate the tenure or term of 9th to 25th democratically elected Seventeen Local Government Council in Enugu State without a law validly passed by the 5th and 6th defendants.
5. Whether the 1st and 2nd defendants are in violation of Section of the Local Government Law (supra) as amended Section 2 of the Local Government Law (amendment No. 5) Law No. 6, Supplement to the Revised Laws of Enugu State, 2010 published in the Enugu State of Nigeria Official Gazette No. 3, Vol. 19, 2010 for failure to appoint a date for Local Government election.
6. Whether the claimants are entitled to an Order of Injunction against the Defendants in this case.
7. Whether the 2nd to 18th claimants are entitled to be issued a Certificate of Return as the deemed elected Candidates at the close of period of nomination for the 2015 Local Government Council election for the Seventeen Local Government Areas in Enugu State.

In the event that the questions were answered in their favour, they sought the following reliefs:

1. A DECLARATION that by virtue of the provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 3(1) and 4(3) and 59 of the Local Government Law CAP. 109, Revised Laws of Enugu State, 2004, the system of Local Government including the 17 (Seventeen) Local Government Councils in Enugu State, by democratically elected Local Government Council is guaranteed.
2. A DECLARATION that the provisions of Section 12(1) (2) of the Local Government Law, CAP. 109, Revised Laws of Enugu State, 2004 and Section 6(1) of the Local Government Area (Creation and Transition) Provisions Law, CAP 110, Revised Laws of Enugu State, 2004 which allows the Defendants to appoint a Caretaker Committee, Transition Committee or however called for an arbitrary period of time, to the position of Chairman of the Seventeen (17) Local Government Councils’ in Enugu State are inconsistent with Section 7(1) (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and are therefore unconstitutional, null and void.
3. A DECLARATION that the defendants’ appointment, and selection, or plans, arrangements to appoint or select a Transition Committee and/or a Caretaker Committee to the position of the Chairman of the Seventeen (17) Local Government Councils in Enugu State is a violation of Section 7(1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 3(1) and 4(3) of the Local Government Law, CAP 109, Revised Laws of Enugu State of Nigeria, 2004.
4. A DECLARATION that by virtue or Section 4(1) (2) and Section 18(3) of the Local Government Law, CAP. 109, Revised Laws of Enugu State of Nigeria, 2004 as amended by Section 2 of Local Government Area (amendment No. 5) Law of Enugu State, 2010 published in Enugu State of Nigeria Official Gazette No. 3 Vol. 19, 2010, the tenure of office of a Local Government Council Chairman is two (2) years commencing from the date of the first siting of the Council.
5. A DECLARATION that the defendants have no power to elongate/extend the tenure or term of Office of the 9th to 25th Defendants being a democratically elected Local Government Chairmen without a law validly passed by the 5th and 6th Defendants.
6. A DECLARATION that the plans, arrangement and preparations to continue in the occupation of the office of the Chairman of the Seventeen (17) Local Governments Councils by the 9th to 25th Defendants after January 4th, 2016 is illegal and a violation of Section 4(1)(2) and 18(3) of the Local Government Law, CAP 109, Revised Law of Enugu State of Nigeria, 2004 as amended by Section 2 of the Local Government Law (amended No. 5) Law No. 6, Supplement to the Revised Laws of Enugu State, 2010 published in Enugu State of Nigeria Official Gazette No. 3 Vol. 19, 2010.
7. A DECLARATION that the 5th and 6th Defendants have no powers to confirm the appointment of Transitional Committees or Caretaker Committee appointed by the 3rd and 4th Defendants for the Seventeen Local Government Councils in Enugu State.
8. AN ORDER OF PERPETUAL INJUNCTION restraining the 9th to 25th Defendants or any other person appointed by the 7th, 8th and 9th Defendants from further occupation of the office of the Chairman of the Seventeen (17) Local Governments after the expiration of their tenure/term of office on 4th January, 2016.
9. A DECLARATION that the failure, refusal and neglect of the 1st and 2nd Defendants to appoint a date for the 2015 Seventeen Local Government election and to conduct the said election is a breach of Section 11(1)(2) of the Local Government Laws, CAP 109, Revised Law of Enugu State, 2004 and Section 1(1)(a)(b)(2) of the Fifth Schedule thereto and Section 2 of the Local Government Law (amendment No. 5) Law No. 6 Supplement to the Revised Laws of Enugu State, 2010 published in Enugu State of Nigeria Official Gazette No. 3 Vol. 19, 2010.
10. A DECLARATION that the 1st and 2nd Defendants have no powers to lawfully conduct the 2015 elections into the Local Government Chairmanship Council of the Seventeen Local Government Councils in Enugu State outside the statutory period provided in Section 11(1) of the Local Government Law, CAP 109, Revised Laws of Enugu State, 2004 and Section 1 of the Fifth Schedule made thereto.
11. AN ORDER OF PERPETUAL INJUNCTION restraining the 3rd, 4th, 5th, 6th, 7th and 8th Defendant (1st Set of Defendants) whether by themselves, their servants, agents, privies, surrogates, staff, appointees, officers of the Peoples Democratic Party and Members thereof or however called or any person acting through the Defendants and/or on the instructions or directives of the Defendants from appointing or selecting any person as Chairman and Members of the purported Transition Committee or Caretaker Committee to occupy the Office of the Chairman of the Seventeen Committee to occupy the office of the Chairman of the Seventeen (17) Local Government Councils in Enugu State.
12. AN ORDER of Court directing and compelling the 1st and 2nd Defendants to issue Certificate of Return to the 2nd to 18th claimants being the deemed elected Candidates at the close of period of nomination for the 2015 Local Governments Area in Enugu State.
13. AN ORDER directing that the 2nd to 18th Claimants tenure/term of office as the deemed elected Candidates at the close of period of nomination for the 2015 Local Government Council election for the Seventeen Local Government Areas in Enugu State shall be two (2) years commencing from the date of the first sitting of the Council in compliance with Section 4(2) of the Local Government Law, CAP. 109, Revised Laws of Enugu State 2004 (as amended) by Section 2 of the Local Government Law (Amendment No. 5) Law No. 6, 2004, Enugu State of Nigeria Official Gazette No. 1 Supplements to the Revised Laws of Enugu State, 2010.
14. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd defendants, whether by themselves, their servants, agents privies, surrogates, staff, appointees, officers, ad hoc staff or however called or any person acting on their behalf on their instructions or directives from conducting any other 2015 Local Government Council election outside the statutory period provided in Section 11(1) of the Local Government Law, CAP 109 Revised Laws of Enugu State, 2004 and Section 1 of the Fifth Schedule made thereof. ”

​After the filing and service of the Originating Summons, there were series of interlocutory applications filed by the parties, including a motion ex-parte for interim injunction and a motion on notice for interlocutory injunction to restrain the 2nd-7th Respondents from appointing the second set of respondents as Caretaker Committee Chairmen in the 17 Local Government Councils (hereinafter referred to as LGCs) in Enugu State. Upon the hearing of the motion ex-parte, the parties were ordered to be put on notice and the motion for interlocutory injunction was adjourned for hearing.

During the pendency of the motion for interlocutory injunction, the 2nd set of respondents (i.e. 8th-24th respondents) were sworn in as Caretaker Committee Chairmen and members for the 17 LGCs. The appellants filed a motion to set aside the appointment.

​The 6th and 7th respondents herein, as 7th and 8th respondents at the trial Court filed a preliminary objection seeking to have their names struck off the suit for failure to disclose a cause of action against them. R.O. Odugu, J. upheld the objection and struck out their names. This led to an appeal filed by the appellants at the lower Court. The appeal was allowed. The ruling striking out the names of the 7th and 8th respondents (now 6th and 7th respondents) was set aside and it was ordered that the suit be remitted to the High Court to be tried de novo by a different Judge of that Court. The 6th and 7th respondents were dissatisfied with the decision and filed an appeal before this Court which was assigned Appeal No. SC.891/2017. The appeal is still pending.

During the period that the suit was awaiting re-assignment by the Hon. Chief Judge, the 1st respondent announced and published a time-table to the effect that it would conduct elections into the 17 LGCs in Enugu State on 4/11/2017. The 6th and 7th Respondents announced dates for the 6th respondent’s primaries in line with the published time-table. It is the appellants’ contention that the steps were taken during the pendency of the application for injunction as well as subsisting judgment of the Court of Appeal in CA/E/558/2016 and the appeal before this Court in SC.891/2017.

The election was held on 4/11/2017. The candidates of the 7th respondent, the PDP i.e. the 6th and 8th-24th respondents were declared winners.

The case was eventually reassigned to F.I.N. Ngwu, J. Upon the reassignment, the two sets of respondents filed their counter-affidavits to the Originating Summons and the appellants filed a further affidavit in support of their Originating Summons. The parties filed written addresses. The written addresses were adopted in open Court and the case adjourned for judgment.

Before the date for the delivery of the judgment, the parties were invited back to address the Court on certain issues it had raised suo motu concerning the jurisdiction of the Court and the competence of the suit. Written addresses were filed and exchanged. The issues raised suo motu were, inter alia: (a) Whether the Originating Summons was competent and the effect of an Originating Summons not properly signed or filed as required by Rule 10 (3) of the Rules of Professional Conduct for Legal Practitioners, 2007; (b) whether, in view of the contentious nature of the dispute, an Originating Summons is the appropriate process for commencing the suit; (c) whether some or all the reliefs sought had become academic as a result of effluxion of time and (d) the right of a National Party to sue in a state where the position of the State Chapter is at variance with the National Party over the subject matter.

​The Court held (a) that the Originating Summons was incompetent, not having been properly signed in compliance with the Rules of Professional Conduct; (b) that Originating Summons is not the appropriate originating process for initiating the suit having regard to the issues in contention therein; (c) that some of the reliefs claimed are no longer viable, having become spent or having lapsed by effluxion of time.

On the substance of the suit, the Court held that even if it were to proceed and find in the appellants’ favour, they could not be placed in the positions they seek, their tenure having already lapsed by effluxion of time. The suit was accordingly dismissed on 24/1/2019.

​The appellants were dissatisfied with the judgment and appealed to the Court below. Briefs of argument were duly filed and exchanged between the parties, except the 6th and 7th respondents who did not file any process. On 10/9/2019, the Court raised suo motu, the issue as to whether the Court still had jurisdiction to hear and determine the appeal relating to the 2015 Enugu State Local Government Election, long after the expiration of the tenure of those elected and invited the parties to address it. By its judgment delivered on 18/9/2020, the Court held as follows: