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

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

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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.”

  1. 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.
  2. 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.
  3. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

  1. 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.
  2. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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:

“Whether this court in the exercise of its original jurisdiction can hear and determine the reliefs sought by the plaintiff in this suit.”

The Honourable Attorney General also adopted the defendant’s brief of argument which also has in it the following formulated issue for determination:

“Whether this Honourable Court can hear and determine the questions raised by the plaintiff in its originating summons for determination in the exercise of its original jurisdiction.”

In proffering argument on his lone issue, the learned Senior Advocate for the plaintiff referred to cases where this court indicated the circumstances in which its original jurisdiction will be invoked. The cases are Attorney General of Bendel State v. Attorney General of the Federation (1982) 3 NCLR 1; Attorney General of the Federation v. Attorney General of Imo State (1983) 4 NCLR 178; and Attorney General of the Federation v. Attorney General of Abia State (2000) 11 NWLR (Pt. 725) page 689. The learned Senior Advocate contended that the word ‘dispute’ under section 232(1) of the Constitution of the Federal Republic of Nigeria 1999, which is in pari materia with section 212(1) of the 1979 Constitution has been defined as “the act of arguing against, controversy, debate, contention as to rights, claims and the like or on a matter of opinion.” According to the learned Senior Advocate any issue which calls for the interpretation of the Constitution is justifiable unless otherwise provided by the Constitution. The combined provisions of section 6(1) and (6) and 232(1) of the 1999 Constitution show that the Supreme Court has jurisdiction to interpret not only the provisions of section 162(2) of the 1999 Constitution but also all the other provisions of the Constitution whether on appeal or in exercise of its Original jurisdiction under section 232(1) of the 1999 Constitution. For the Supreme Court to exercise its original jurisdiction in a civil case between the Federation and the State(s) or between States the following must be present.

(a) a dispute between the Federation and a State or States or between States and the dispute must involve a question of law or fact or both; and the dispute must pertain to the existence or extent of a legal right. These elements were also stated in the defendant’s brief of argument, as being laid down in the case of Attorney General of the Federation v. Attorney General of Abia State & 35 Ors. (2000) 11 NWLR (Pt. 725) 689; (2001) Vol. 6 MJSC 94. The learned Senior Advocate for the plaintiff further submitted that the position of a Governor of a State in relation to the State is aptly captured by section 5(2)(a) of the 1999 Constitution which provides:

“(2) subject to the provisions of the Constitution, the executive powers of a State –

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(a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and his Commissioners of the Government of that State or officers in the public service of a State.”

Unquestionably the exercise of executive powers of a State vested in the Governor are not exercisable by the Governor as an expression of his personal rights but are exercised by the Governor qua his constitutional position as the Chief Executive of the State, he argued. It therefore stands to reason that the collective interest of Anambra State is the appropriate subject in any question regarding the constitutional manner and or process through which and or under which executive powers in the State is to be exercised.

In the instant case, the crucial question is the legitimate right of Anambra State as a component State within the Federation to have determined whether the continued exercise of the executive powers in the State by its incumbent Chief Executive will terminate or abate by May 29th, 2007 when the other Governors who subscribed the respective Oath of Allegiance and Oath of Office are deemed to become functus officio. It is the contention of the learned Senior Advocate that Anambra State has a right to ensure a legitimate Government pursuant to section 5(2)(a) of the 1999 Constitution, and that a dispute on this subject obviously concerns a question on which the extent of the Constitutional right of the plaintiff depends. It has been settled that a Constitutional right is a legal right within the purview of Section 232(1) of the 1999 Constitution. See Attorney General of Bendel State v. Attorney General of the Federation supra. Whether or not a court has jurisdiction to entertain a matter must be found in the plaintiff’s statement of claim, not in its brief of argument, or in the case of the defendant.

In the brief of argument of the defendant, it was submitted that it is a fundamental principle of law that the issue of jurisdiction is a central point on which the entire case rests, and so the issue of jurisdiction must be tackled first before any step is taken in a matter.

It has been submitted that the conditions reproduced supra have been satisfied by the plaintiff’s claims. The learned Senior Advocate had posited that for the purposes of determining whether or not a dispute exists between the parties in this suit the court must have recourse to the provisions of section 185 of the 1999 Constitution for evidence indicating convincingly that the incumbent Governor of Anambra State subscribed the Oath of Allegiance and Oath of Office as stipulated in section 185(1) of the Constitution on the 17th March, 2006. It was submitted that the subscription to the Oath of office brings a particular Governor within the purview of section 180(2)(a). It was submitted that this court cannot be called upon to invoke its original jurisdiction where any of the elements in the Attorney General of the Federation v. Attorney General of the 36 States’ case already reproduced supra is missing. The defendant in its brief of argument invoked the words of Professor B. O. Nwabueze in his book “Federalism in Nigeria under the Presidential Constitution”, where he tackled the word ‘dispute’ as is contained in section 232 of the Constitution of 1999 as he commented on the said section 232(1) supra thus:

” … The provision leaves no room for doubt that a dispute between the Federation and a State or between two or more States is a condition for the invocation of the jurisdiction i.e. a real dispute involving a question, whether of law or fact, on which the existence or extent of a legal right depends, as distinct from a hypothetical dispute or one that is academic or moot.” It was submitted that the reliefs sought in the originating summons and the facts deposed to in the affidavit in support are all centered around the person of the Governor of Anambra State and by no means the entity called the State. The alleged legal rights which the plaintiff wants remedy on are legal rights which are personal to him and not the legal right of the government and people of Anambra State. It was further submitted that the plaintiff here in its originating summons and supporting affidavit failed to disclose the existence of a dispute between the Federal Government and Anambra State, and that a dispute is synonymous with controversy, quarrel, argument, disagreement and contention. The case of Attorney General of the Federation v. Attorney General of the 36 States was cited. It was again submitted that dispute cannot be a state of complacency or dispassionate view of an opponent’s claims. It certainly, not a situation in which an adverse party has neither by an act or omission accentuated or opposed a plaintiff’s claim as in the present case. It was submitted that the only paragraphs of plaintiff’s affidavit which relate to the facts in issue are paragraphs 8 to 13 of the affidavit in support of plaintiffs originating summons, while paragraphs 4 to 7 are mere legal argument.

The section of the Constitution that confers original jurisdiction on the Supreme Court is section 232 of the Constitution of the Federal Republic of Nigeria 1999 and the provision therein reads:

“232(1) The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute invoke any question (whether of law or fact) on which the existence or extent of a legal right depends.

(2) In addition to the jurisdiction conferred upon it by subsection (1) of this section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly: Provided that no original jurisdiction shall be conferred upon he Supreme Court with respect to any criminal matter.”

The key word in subsection (1) above, which is the applicable section to the instant case, is ‘dispute’. Dispute in Black’s Law Dictionary, 7th Edition is defined as a conflict or controversy, especially, one that has given rise to a particular lawsuit. Then as per Belgore, JSC (as he then was) in the case of Attorney General of the Federation v. Attorney General of 36 States supra, ‘dispute involves acts of argument, controversy, debate, claims as to rights whether in law or fact, varying opinion, whether passive or violent or any disagreement that can lead to public anxiety or disquiet.’ A plethora of authorities have laid down situations and circumstances in which the original jurisdiction of this court will be invoked.

By virtue of the provisions of section 6(a) of the Constitution supra, judicial powers are vested on superior courts stated under subsection (5) of the said section 6(6). I will reproduce the provisions of section 6(a) and (b) supra, hereunder:

6(6) The judicial powers vested in accordance with the foregoing provisions of this section –

(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;

(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;”

No doubt the above provisions vest jurisdiction on the Supreme Court to entertain actions, and when the provisions are read together with that of section 232, the position becomes clearer. But then a legal right must exist, and the matter in controversy must be between the Federation and a State of the Federation. I will now consider the requirement of section 232, to see whether or not a dispute involving any question (whether of law or fact) on which the existence or extent of a legal right depends, exists in the instant case. Towards this end it is imperative that I peruse the depositions in the supporting affidavit of the originating summons. As argued in the defendant’s brief of argument paragraphs 4-7 of the depositions supra, are mere legal arguments. I subscribe to the submission and in fact add that paragraph (3) also falls into that category. A cardinal principle of law is that affidavit evidence i.e. depositions must not contain legal arguments, and where they do they offend the provision of section 87 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. In the event that such situation exists the paragraphs containing the offensive depositions will be struck out, and I so strike out paragraphs 3 – 7 of the supporting affidavit to the originating summons. See Bamaiyi v. State (2001) 8 NWLR (Pt. 715) page 270.

According to the learned Senior Advocate for the plaintiff, by virtue of the provisions of section 14(1) a) of the Constitution, sovereignty belongs to the people of Nigeria from whom Government through this Constitution derives all its powers and authority. In addition to this, our Constitution in section 14(1)(c) provides that the participation by “the people in their Government shall be ensured in accordance with the provisions of this Constitution. By virtue of section 14(1)(c):

“14(1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.

(2) It is hereby accordingly declared that:-

(c) the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.

The provisions of sections 178(2) and (5) of the Constitution supra were also referred to. These provisions read as follows:

“178(2) An election to the office of Governor of a State shall be held on a date not earlier than sixty days and not later than thirty days before the expiration of the term of office.

(5) Every person who is registered to vote at an election of a member of a legislative house shall be entitled to vote at an election to the office of Governor of a State.”

By virtue of section 176 of the said Constitution –

“(1) There shall be for each of the Federation a Governor.

(2) The Governor of a State shall be the Chief Executive of the State.

According to the learned Senior Advocate, the implication of the provisions of section 176 are two fold namely that the Governorship of a State is not a personal estate but an office and indeed an institution and that the Governor is also the Chief Executive of the State. To that extent, any threat to the existence of the office of Governor or to the rights accruing to that office can be vindicated only by the Attorney General of the State concerned, by virtue of section 20 Supreme Court Act. When cognizance is taken of the combined effects of section 14(a) and (c) and section 178 (2) and (5) of the 1999 Constitution it becomes clear and compelling that the people of any State in the Federation must challenge any perceived threat to the continued existence of the office of Governor as such matter directly affects their sovereign vested rights as citizens.

For the purposes of determining whether or not a dispute exists between the parties in this suit the court must have recourse to the provisions of section 185 of the 1999 Constitution for evidence indicating convincingly that the incumbent Governor of Anambra State subscribed the Oath of Allegiance and Oath of Office as stipulated in section 185(1) of the Constitution on the 17th March, 2006. The learned Senior Advocate submitted that subscription to the Oath of Office aforesaid brings a particular Governor within the purview of section 180(2)(a). The cardinal question asked by learned Senior Advocate is, if the Governor of the plaintiff State subscribed

to his Oath of Allegiance and Oath of Office only on the 17th March, 2006 when will the term of office of the Governor of the State expire as contemplated by section 178(2) of the Constitution. This is a question directly affecting the sovereign rights of people of Anambra State, the plaintiff. The duration of the office of a Governor in a single term as provided by the supra Constitution is four years, and the provision reads as follows:

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“180(2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of a period of four years commencing from the date when –

(a) in the case of a person first elected as Governor under this constitution he took Oath of Allegiance and Oath of office; and

(b) the person last elected to take that office took the Oath of Allegiance and Oath of Office or would, but for his death, have taken such Oaths.”

I will now go back to the depositions in the supporting affidavit of the originating summons vis-a-vis the submissions in the defendant’s brief of argument. The argument in the said brief is that paragraphs (8) – (13) do not disclose any argument or controversy whatsoever on the issue of continuation of tenure by the Governor of Anambra State, a matter which Constitutes the gravamen of plaintiff’s contention in this matter. The depositions in paragraphs 8, 10 and 11 relate to the Independent National Electoral Commission’s preparation for the election into the office of Governor of Anambra State. These depositions however do not disclose representations of any alleged right or claim by the plaintiff which were debunked by the Independent National Electoral Commission to suggest a dispute. Further the facts disclosed in the affidavit relate to the Independent National Commission as an agency of Government which indeed the plaintiff himself represented as discharging the responsibility imposed on it by law under paragraph 15 to the 3rd Schedule Part 1 of the 1999 Constitution and under the Electoral Act. Under this paragraph the Independent Electoral Commission is charged with inter alia the following:

(a) organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation;

(b) register political parties in accordance with the provisions of this Constitution and an Act of National Assembly;

(c) monitor the organization and operation of the political parties, including their finances;

(d) arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information;

(e) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution;

(f) monitor political campaigns and provide rules and regulations which shall Govern the political parties;

(g) ensure that all Electoral Commissioners, Electoral and Returning Officers take and subscribe the Oath of Office prescribed by law;

(h) delegate any of its powers to any Resident Electoral Commissioner; and

(i) Carry out such other functions as may be conferred upon it by an Act of the National Assembly.

“A careful perusal of the claims of the plaintiff, most especially claims (2), (3), (5), (6) and (7) indicate that they are directed at what Independent National Electoral Commission should do or not do. The reliefs sought are acts/functions/and or duties incumbent on the said Electoral Commission to wit is specifically (a) supra of the paragraph 15 reproduced above. The claims when read together with paragraphs 8 – 13 of the supporting affidavit clearly, confirms the views expressed supra that the Independent National Commission is responsible or will be responsible for the very act, sought to be stopped. In effect me think the proper body to sue for these claims and reliefs should have been the said Independent National Electoral Commission, which is a statutory body established by section 153 of the 1999 Constitution supra, and which can sue and be sued as provided by the law creating it i.e. Electoral Act, 2006, section 1 of which states:

“1. The Independent National Electoral Commission as established by section 153 of the 1999 Constitution of the Federal Republic of Nigeria shall be a body corporate with perpetual succession and may sue and be sued in its corporate name;” In the very recent case of Attorney General of Kano State v. Attorney General of the Federation (2006) 6 NWLR (Pt. 1029) page 164, at page 192, Kalgo JSC, succinctly put the situation of when the Attorney General of the Federation can be sued in a matter similar to the present case thus:

“The defendant is the Attorney-General of the Federation. It is not in dispute that the Attorney General of the Federation can be sued as a defendant in all civil matters in which a claim can properly be made against the Federal Government or any of its authorized agencies, arising from any act or omission complained of. See Ezomo v. Attorney General, Bendel State (1986) 4 NWLR (Pt. 36) 448. The Inspector General of Police, who is involved in this case, is the head of the Nigeria Police Force in Nigeria. It is a force recognize by the State and Federal Governments of Nigeria and it’s a separate body created by the Constitution with special powers and responsibilities and can properly be sued.”

In the circumstances of this case, this court has no original jurisdiction over the plaintiff’s case. It is agreed that the tenure of an elected Governor of a State is four years as stipulated in section 180(2) of the Constitution, and it is a fact that the Governor of Anambra State declared to be the winner of the Gubernatorial election held in 2003 by a Court of Appeal verdict of (2006), did not spend the total of four years tenure, when the 2007 general election was to hold. It could therefore be said that this Governor became short changed by virtue of the fact that he should have been in office from 2003 when the electorate voted him to power, but then does that fact negatively affect Anambra State as an entity vis-a-vis the provision of section 176 of the Constitution supra I think not, for even the combined effect of the provisions of sections 14(a) and (c) and section 178(2) and (5) of the Constitution does not suggest so. Indeed I would say that the people of Anambra State have not been deprived of the exercise of their rights under the provisions of the Constitution. If anyone is aggrieved or deprived of the exercise of the rights in the provisions or placed in a disadvantaged position, by virtue of the non-compliance or violation of any provision of the Constitution it is at best the Governor of Anambra State Mr. Peter Obi. To further buttress my views, and in a way strengthen the argument of the learned Senior Advocate that the incumbent Governor did not enjoy his full tenure the provision of section 185(1) of the Constitution is of assistance. It reads:

“185(1) A person elected to the office of the Governor of a State shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed in this Constitution and has subsequently taken and subscribed the Oath of Allegiance and Oath of Office prescribed in the Seventh Schedule to this Constitution.”

Indeed, the incumbent Governor of Anambra State did not subscribe to the Oath of Allegiance and Office until 17th of March, 2006, and so in accordance with this provision, he did not start to function as the Governor until that said 17th of March 2006, the lapse of which in fact deprived him of his right to so function from 2003, when the election under which he purportedly came out victorious was held. This situation and unwholesome position affected the incumbent Governor as a person, not Anambra State, for there was no vacuum created by this unfortunate lapse. Right from the 29th of May, 2003 when another Government came into power in Anambra State after the 2003 General Election, a Governor in the person of Dr. Chris Nwabueze Ngige took the Oath of Allegiance and Office, and he commenced and continued to function as the Governor of Anambra State until the incumbent Governor, Mr. Peter Obi took his own Oath of Allegiance on 15th March, 2006, after he had been declared validly and duly elected and returned as Governor of Anambra State by the Court of Appeal. Thus for all intent and purpose there was a Governor governing and functioning in Anambra State. Nothing was amiss and the State was not deprived of a Governor. Anambra State was not deprived of governance (albeit legal or otherwise) or administration (albeit good or bad). The state all along had a Governor in place who discharged his functions and duties, and was occupying the office in accordance with the tenets of the Constitution of the Federal Republic of Nigeria 1999. Why then should Anambra State be aggrieved to the extent of discerning that a dispute exists between it and the Federation of Nigeria within the con of the provision of section 232 of the Constitution of the Federal Republic supra I cannot fathom why in the circumstance of this case. Anambra State definitely has not lost anything to justify a dispute in the real constitutional meaning of it. It should be a suit by Mr. Obi in person, and since the said section 232 of the Constitution talks of dispute between States or State and the Federation, this dispute does not fall within the ambit of the provision, and so this court has no original jurisdiction to hear it. See Governor of Ondo State v. President of the Federation (1985) 6 NCLR 681, Governor of Ogun State v. President of Nigeria (1982) 3 NCLR 538, and Attorney General of Lagos State v. Attorney General of the Federation (2004) 18 NWLR (Pt. 904) 1.

A thorough perusal of all the provisions of the Constitution relied upon by the learned Senior Advocate reveal that none of them have been contravened, misapplied or infringed on. This court has held over and over again that law should be given their correct and grammatical interpretation. The provision of law should be viewed in its simple form and interpreted within its ambit, and no extraneous matters should be introduced to it to give it a meaning different from what the legislator intended it to be. If such happens then the law will be wrongly construed, and its purpose will fall outside the intendment of the legislator. I have produced the various definitions of the word ‘dispute’ above. The authors of Halsburys statutes of England third Edition volume 32 encapsulated the principles of consideration of words in statutes on pages 364 and 365 thus:

“The golden rule is that the words of an Act are prima facie to be given their ordinary and natural meaning, or, as is sometimes said, their popular meaning; see St. John, Hamstood, Vestry v. Coton (886), 12 App. Cas. 1 at page 6 per Lord Halsbury, L.C.; Nokes v. Doncastar Arnalpamated Collieries, Ltd., (1940) A.C. 1014, (1940) 3 All E. R. 549, at page 1022 and page 553, respectively, per Viscount Simon, L.G.; …

The rule has been in existence for many years and the classical statement of it is contained in the judgment of Wensley dale in Grey v. Pearson (1857), where he said:

“In construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency but no further.”

If the words of an Act are clear and explicit, they themselves are the best evidence of the intention of the legislature and no reference may lie made to other sources of information … ”

See also Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) page 517; Lawal v. G. B. Ollivant (1972) 3 SC 124; Ifezue v. Mgadugha (1984) 1 SCNLR 427; and I.B.WA. v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt. 85) page 633.

On the existence or extent of the plaintiff’s legal right, the learned Senior Advocate has argued that the plaintiff’s legal right in the circumstances arises from the sovereignty preserved for the people of the plaintiff State by virtue of the combined effect of sections 14(2)(a) 176, 180 and 185 of the Constitution. According to him it has long been recognized and laid down that as a cardinal principle of interpretation of the Constitution, a document or relevant parts thereof must be read together, broadly and liberally in all circumstances. See Adesanya v. President of the Federal Republic of Nigeria and Anor: (1981) 5 SC page 112; (1981) 2 NCLR 358; Attorney-General, Bendel State v. Attorney-General, Federation (1980) NCLR page 1; and Nafiu Rabiu v. Kano State (1981) 2 NCLR page 293 which he relied upon. He further argued that although section 14 of the Constitution supra is within the ambit of Chapter 11 of the Constitution and so prima facie not justifiable, this court has laid down the rule that where the provisions of Chapter II of the Constitution finds expression in a statute or legislation, including other areas of the Constitution itself, then full effect will be given to it. He placed reliance on the case of Attorney-General, Ondo State v. Attorney General, Federation and 35 Ors. (2002) 9 NWLR (Pt. 772) page 222. He added that section 14(2) of the Constitution allows the people of the State to participate in their Government, and the exercise of sovereignty is guaranteed by the Constitution demonstrated through the right of the people to vote periodically four years (see section 178(2) and (5)). Learned Senior Advocate further argued that the plaintiff as the guardian of public interest contends on behalf of the people of the plaintiff state that the tenure of the person last elected to the office of the Governor is on the facts of this case unexhausted. However, having regard to the circumstances the defendant is of the view that such tenure is at an end. The following posers said to be perhaps germane to a resolution of the question under reference was raised by learned Senior Advocate. They are:

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(i) Is the office of Governor of the plaintiff State an institution

(ii) Are the people of the plaintiff’s State entitled to vote periodically for persons to occupy that office or institution

(iii) Are the people of the plaintiff’s State entitled to a determination of the question whether or not it is time to vote again

He answered the questions in the affirmative, and submitted that the mandate given freely by the people of the plaintiff’s State (which mandate was confirmed by the Court of Appeal) is as yet unexhausted and deserves protection of this court. It may be contended (according to Learned Senior Advocate) that the provision of section 184 of the Constitution is appropriate in the circumstances of this case, but he submitted that the said section 184 is inapplicable for the following reasons:

(i) The said sections make provisions in future having regard to the fact that the National Assembly at this time has not made the provisions contemplated or anticipated by section 184(a) (ii) and (iii).

(ii) In comparison, section 239(1) which makes similar provisions in respect of the office of the President and Vice President makes particular reference to the Court of Appeal qua Court of Appeal and any person who is in doubt with regard to section 239(1)(b) or (c) may approach the Court of Appeal for appropriate relief. In the instant case, since no provisions have been made by the National Assembly, the plaintiff State cannot on the facts of this case approach an Election Tribunal as contemplated by section 184 aforesaid. By way of emphasis, neither the Electoral Act 2002 (which was in operation at the time the incumbent Governor contested elections) nor the extant Electoral Act No.2 of 2006 or by way of any other Act have made provisions in this regard.

(iii) The plaintiff can therefore not take advantage of the provisions of section 144 of the Electoral Act 2006 having regard to the fact that, the section is limited to a candidate at an election or a political party that has sponsored a candidate. See Egolum v. Obasanjo (1999)4 NWLR (Pt. 611) page 423; and Buhari v. Obasanjo (2005) 2 NWLR (Pt. 941) page 1.

The learned Senior Advocate concluded by contending that in the light of the decision of this court, and having regard to the fact that the plaintiff has demonstrated its right to a determination of the question whether the tenure of the incumbent Governor is unexhausted, the plaintiff ought to have a forum to ventilate its grievances. He submitted that the forum is this court and if the plaintiff has a right this court ought to provide an appropriate remedy.

In the defendant’s brief of argument it was submitted that contrary to the submission in the plaintiffs brief of argument that section 5(2)(d) of the 1999 Constitution vests on the Governor of a State the executive powers of the State, the Constitution sets limitations where such power will impede or prejudice the exercise of the executive powers of the Federation or endanger the continuance of Federal Government. It was contended that even if this court accepts that the struggle for a continuation of tenureship is a collective aspiration of a State and not that of Governor as an individual, the resultant disparity in the election programme of the country is likely to undermine the security of the nation. The plaintiff can therefore not rely on his executive powers under section 5(2)(d) of the Constitution in this case. It was further argued that the relevant question is the existence of a legal right of a State not that of a person. It was further submitted that the reliefs sought in the originating summons and the facts deposed to in the affidavit in support are all centered around the person of the Governor of Anambra State not the Government or people of the State. The alleged legal rights which the plaintiff wants remedied are legal rights which are personal to him and not the legal right of the Government and people of Anambra State. It was submitted that section 318 of the Constitution clearly defines the State as separate and distinct from the office of a Governor. This section 318 defines State as follows:

“State’ when used otherwise than in relation to one of the component parts of the Federation, includes Government.”

It was further submitted therefore that the Governor of Anambra State in the circumstance cannot be interpreted to include the Government or people of Anambra State, the reliefs sought not being beneficial to the Government of Anambra State, same being personal to him. Oklahoma Ex Real Johnson v. Cook, 304 U.S. 38 7 (1938) was referred to. Likewise the case of Plateau State of Nigeria v. Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 346; (2006) 1 SCNJ 1 where Kutigi, JSC (as he then was) stated thus:

“The Supreme Court has no original jurisdiction in respect of claims or reliefs for individual person by virtue of the provisions of section 232(1) of the Constitution.”

It was finally submitted that on the general principle of justiability following the authorities of the U.S. Supreme Court and the Nigerian Supreme Court supra, a government can only invoke the original jurisdiction of the Supreme Court, when its rights or constitutional powers as a government are involved. I have already dealt with the provisions of sections 14(2)(a) 176, 180 and 185 of the Constitution above.

Even though by virtue of section 14(2)(a) sovereignty is preserved for the people of the plaintiffs State, the combined effect of the provisions do not on their own confer legal right on the plaintiff in the circumstances, even when read together. The fact that section 14(2) allows the people of the State to participate in their government does not in effect mean that the people can or will constitute themselves as plaintiffs and vest on themselves legal rights in a matter that does not negatively affect or directly concern them. To have such legal rights they must be aggrieved and have recourse to remedy the action complained of or about to be taken and executed.

By virtue of section 5(2)(a) and (3) of the Constitution the following position was stated:

(2) Subject to the provisions of this constitution, the executive powers of a State –

(a) shall be vested in the Governor of that state and may, subject as aforesaid and to the provisions of any Law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the State;

(3) The executive powers vested in a state under subsection (2) of this section shall be so exercised as not to –

(a) impede or prejudice the exercise of the executive powers of the Federation;

(b) endanger any asset or investment of the Government of the Federation in that State; or

(c) endanger the continuance of a Federal Government in Nigeria.”

The above provisions may vest executive powers on the Governor of a State, and that the collective interest of Anambra State is the appropriate subject in any question regarding the Constitutional manner and or process through which his executive power in the State is to be exercised the nature of the present suit does not translate to a collective interest of Anambra State. By the very nature and substance of the claim, there is no way one can divorce the action from the Governor of Anambra State as an individual who is seeking to remedy a wrong that was purportedly done to him, by virtue of not enjoying his full tenure of office as the Governor of Anambra State, having not subscribed his Oath of Allegiance and Office in May 2003, when he should have. Consequently the legal right that exists in this suit that are sought to be remedied are not those of the Government of Anambra State or its people but legal rights that are personal to the incumbent Governor who desires to be given the opportunity to exhaust the four years tenure he believes he is entitled to, by section 180(2) of the Constitution. As I have earlier on expressed Anambra State has right from 29th of May, 2003 been governed by a Governor and that Governor continued to administer the State until the incumbent Governor came on board as the Chief Executive of the State. So what should Anambra State be complaining of, or what is its legal rights to complain It has no reason or legal rights to complain, not even if, as suggested by the learned Senior Advocate that its people were deprived of the governance of the person they voted for in 2003. I think that sentiments will neither hold nor assist in converting the remedy from a personal one. In essence, I fail to fathom how the orders sought in this suit will benefit the Anambra State Government or its people.

The provision of section 232 of the Constitution under which the plaintiff instituted this action is very clear on when the said provision can be invoked. The condition upon which it is invocable is in no uncertain terms specified, and unless those conditions or principles are met a suit so initiated is unsustainable. The original jurisdiction of this court under the said section can be invoked only when there is a dispute between the Federation and a State or between States. In the present case no dispute exists, if it exists it is not between the plaintiff and the defendant, but at most the Independent Electoral Commission, which it is seeking orders against, as can be established from the claims and supporting affidavit. The circumstance of the position thus points the arrow of the appropriate body to sue at Independent National Electoral Commission, and in this wise it is the Federal High Court that is vested with jurisdiction to hear and determine the dispute. Consequently this action is not between a State and the Federation. Secondly, the claims and the depositions in the supporting affidavit do not disclose grievance of Anambra State, but grievance of a person i.e. the incumbent Governor of Anambra State, so in essence it is a claim of an individual, (though christened that of a State) and which no legal right exists. This court, in the circumstance of this case has no original jurisdiction to entertain this suit” as the Anambra State Government’s rights or Constitutional powers as a Government are not involved. I hereby hold that the Supreme Court has no jurisdiction to hear and determine this case, and therefore strike out the claims, as entertaining the suit will lead to a nullity of the proceedings and thus an exercise in futility.

I make no order as to costs.

SC.62/2007(REASONS)

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