Attorney General Of Anambra State V. Attorney General Of The Federation (Reasons) (2007)

LAWGLOBAL HUB Lead Judgment Report

ALOMA MARIAM MUKHTAR, J.S.C.

On 5th April, 2007, I struck out this case for lack of jurisdiction. I indicated that day that I will give my reason for doing so today.

By way of originating summons pursuant to Order 3 rules 1 and 6 Supreme Court Rules 1985 (as amended) the Attorney-General of Anambra State who is plaintiff in this suit sought the following reliefs:

1. A declaration that by virtue of provisions of section 180(1) and (2)(A) Constitution of the Federal Republic of Nigeria 1999, the four year tenure of office of the incumbent Governor of Anambra State of Nigeria is reckoned to begin from 17th March, 2006, being the date he first subscribed to the Oath of Allegiance and Oath of Office in accordance with section 185 Constitution of the Federal Republic of Nigeria 1999.
2. A declaration that the incumbent Governor of Anambra State of Nigeria is Constitutionally entitled to continue in office without fresh elections after 28th May, 2007 when the tenure of other State Governors who subscribed their respective Oaths of Allegiance and Oaths of Office on 29th May, 2003 is deemed to expire; the incumbent Governor of Anambra State of Nigeria having subscribed his Oath of Allegiance and Oath of Office on 17th day of March, 2006 in accordance with sections 180(2)(a) and 185(1) Constitution of the Federal Republic of Nigeria 1999.
3. A declaration that any elections, or preparations for elections including any purported elections on 14th April, 2007 or any other date conducted by the defendant, by itself or through his servants, privies, agents/agencies including the Independent National Electoral Commission; for the purpose of electing any person into the office of Governor of Anambra State of Nigeria before the expiration of the tenure of the incumbent Governor of Anambra State on 16th March, 2010; is unconstitutional, illegal, unlawful, null, void and of no effect whatsoever being contrary to sections 5(1); 180(1)(d), 180(2)(a) and 185(1) Constitution of the Federal Republic of Nigeria 1999.
4. A declaration that the incumbent Governor of Anambra State of Nigeria is Constitutionally entitled to an uninterrupted tenure of office of a period of four years commencing on 17th March, 2006 in accordance with sections 180 and 185 Constitution of the Federal Republic of Nigeria 1999.
5. A Declaration that any purported return into office of Governor of Anambra State and subscription of the Oath of Allegiance as well as Oath of Office as such by any person pursuant to the elections or purported elections of the 14th April, 2007 or of any other date; during the currency of the tenure of the incumbent Governor of Anambra State is unconstitutional, illegal, unlawful, null, void and of no effect whatsoever being contrary to section 180(1)(a) and (d) Constitution of the Federal Republic of Nigeria 1999.
6. An order of injunction restraining the defendant, by itself or through its servants, privies, officers, authorities agents/agencies including the Independent National Electoral Commission from preparing to conduct, conducting or purportedly conducting any election into the office of the Governor of Anambra State of Nigeria on 14th April, 2007 or any other date prior to the expiration of the tenure of office of the incumbent Governor of Anambra State of Nigeria.
7. An order of injunction restraining the defendant, by itself or through its servants, privies, officers, authorities agents/agencies including the Independent National Electoral Commission from returning any person into office as Governor of Anambra State of Nigeria pursuant to any purported election on 14th April, 2007 or any other date prior to the expiration of the tenure of office of the incumbent Governor of Anambra State of Nigeria.”

In support of the originating summons is an affidavit sworn to by the Attorney-General and Commissioner of Justice, Anambra State, Emmanuel Dubem Chukwuma, and the salient depositions read as follows:

“3. On the 15th March, 2006, the Court of Appeal of Nigeria sitting in Enugu (Coram: R. D. Muhammad, Aderemi, Augie, Alagoa and Omokri, JJCA) delivered judgment in appeal numbers CA/E/EPT/5A/2005; CA/E/EPT/5B/2005; CA/E/EPT/5C/2005; CA/E/EPT/5D/2005; and CA/E/EPT/5E/2005 between: Dr. Chris Nwabueze Ngige v. Mr. Peter Obi & 449 Ors, to the effect inter alia that: “Mr. Peter Obi is declared as validly and duly elected and returned as Governor of Anambra State having scored/polled the highest/majority of lawful votes cast on the 19th April, 2003 gubernatorial election.”

4. The said judgment of the Court of Appeal is reported as Dr. Chris Nwebueze Ngige v. Mr Peter Obi & 449 Ors. (2006) 14 NWLR (Pt. 999) 1 – 241, while the part of the judgment referred to in paragraph 3 above is to be found at pages 176 – 177 H – A of the said Nigerian Weekly Law Report.
5. That having been returned as the winner of the election into office as Governor of Anambra State held on 19th April, 2003, the Independent National Electoral Commission issued a certificate of return to the incumbent Governor of Anambra State of Nigeria on account of which the said Governor subscribed to the Oath of Allegiance and Oath of Office pursuant to section 185(1) Constitution of the Federal Republic of Nigeria on 17th March, 2006 are now produced, shown to me and marked exhibit P1 series hereto.
6. I know as a fact that section 180(1) Constitution of the Federal Republic of Nigeria 1999 provides that subject to provisions of the said Constitution the incumbent Governor of Anambra State shall hold the office as such until the occurrence of one of the following events:

(i) when his successor in office takes the oath of that office, or

(ii) he dies whilst holding such office, or

(iii) the date when his resignation from office takes effect; or

(iv) he otherwise ceases to hold office in accordance with the provisions of the Constitution.

7. I also know as a fact that section 180(2)(a) Constitution of the Federal Republic of Nigeria 1999 provides that subject to the provisions of section 180(1) of the same Constitution, the incumbent Governor of Anambra State shall vacate his office at the expiration of a period of four years commencing from the date when the incumbent took the Oath of Allegiance and Oath of Office.
8. I also know as a fact that the last election into office of position of Governor of Anambra State took place on 19th April, 2003; and it was this election that the Court of Appeal pronounced the incumbent Governor of Anambra State the winner by its judgment of 15th March, 2006.
9. I also know that the incumbent Governor of Anambra State who was pronounced and returned as winner of the elections into office of Governor of Anambra State on the 19th April, 2003 polls, assumed the office of Governor on 17th March, 2006 after duly subscribing to the Oath of Allegiance and Oath of Office declaring his assets as required by the aforesaid 1999 Constitution.
10. That despite the fact that the incumbent Governor of Anambra State assumed the office of Governor of Anambra State on 17th March, 2006, the defendant through its servants, privies, agents/agencies (including Independent National Electoral Commission) is making serious preparations for the purpose of conducting elections into the office of Governor of Anambra State on 14th April, 2007.
11. That unless this case is expeditiously determined, the defendant through its servants, privies, agents/agencies:

(a) may continue to make preparations towards holding and/or conducting elections into the office of the Governor of Anambra State on 14th April, 2007 despite the pundency of this suit.

(b) may purport to return another person as duly elected into office of Governor of Anambra State of Nigeria and further purport to have that person subscribe the Oath of Allegiance and Oath of Office.

12. That I also know as a fact that the legitimate expectations of the people of Anambra State who voted the incumbent Governor of Anambra State into office is that his mandate will run for an uninterrupted period of four years in accordance with the provisions of the Constitution of the Federal Republic of Nigeria 1999.
13. That having regard to the peculiar circumstances of Anambra State, an expeditious determination of this suit will avert chaos, confusion and other inimical events that may lead to anarchy in the plaintiff State.”

The questions sought to be determined by the plaintiff in its originating summons are as follows:

“1. A determination of the question whether the four year period/tenure of office for a state Governor contemplated by section 150 Constitution of the Federal Republic of Nigeria 1999 is reckoned from the date in which the incumbent Governor subscribed to the Oath of Allegiance and Oath of office.

2. A determination of the question whether having regard to all the circumstances it is Constitutional for the incumbent Governor of the plaintiff state to continue in office without fresh election after 28th May, 2007 when the tenure of other State Governors (apart from Anambra State of Nigeria) who subscribed their respective Oaths of Allegiance and Oaths of Office on 29th May, 2003, is deemed to expire.
3. A determination of the question whether having regard to Anambra State of Nigeria, it is unconstitutional and illegal to conduct elections into the Office of Governor of Anambra State on 14th April, 2007 when the tenure of office of the incumbent Governor will not expire until 16th March, 2010.
4. A determination of the question whether a democratically elected Governor of Anambra State is by virtue of section 150(2)(a) Constitution of the Federal Republic of Nigeria 1999 entitled to an uninterrupted tenure of four years from the date of subscribing to the Oath of Allegiance and Oath of Office as Governor of a State.
5. A determination of the question whether it is lawful and Constitutional for the defendant, through its servants privies, Agents/agencies (including Independent National Electoral Commission), to conduct elections into the office of Governor of Anambra State on 14th April, 2007 when the incumbent Governor subscribed his Oath of Allegiance and Oath of office on 17th March, 2006.”

When the case came up for hearing on 3rd of April, 2007 this court ordered parties to exchange briefs of argument on the jurisdiction of the court to hear the case. The plaintiff’s brief of argument was filed on 4/4/07, and the defendant filed its own brief of argument on 5/4/07 on the order of the court after a motion for extension of time and deeming of the brief of argument was moved by the Honourable Attorney General, Chief Bayo Ojo himself. On 5/4/07 learned Senior Advocate for the plaintiff adopted their said brief of argument, which has as the only issue raised for determination the following: