Dozie Obionwu & Ors V. Independent National Electoral Commission (INEC) (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On the 17th of December 2010 the appellants herein, as plaintiffs commenced Suit No. FHC/AWK/CS/276/2010 by filing an originating summons claiming for:-

(a) A declaration that Anambra State House of Assembly is improperly constituted per the current number of thirty state legislators, in contravention of Sections 75, 91, 112, 113 and 114 of the 1999 Constitution.

(b) A declaration that Anambra State House of Assembly as presently constituted cannot effectively legislate for the good governance of the State.

(c) An order of court directing the defendant to immediately reflect the correct number of state legislators by increasing same from thirty to thirty-three, having regard to the provisions of Sections 75, 91, 112, 113 and 114 of the 1999 constitution.

(d) An order of court directing the defendant to increase the number of the members of Anambra State House of Assembly from Idemili North Local Government Area to reflect the population of same as per the figures of 2006 census final result, and in compliance with Sections 75, 91, 112, 113 and 114 of the 1999 Constitution.

(e) Injunction restraining the defendant from conducting election into the Anambra state House of Assembly pending the determination of this suit.

The originating summons also asked for the determination of the following questions:-

1. Whether having regard to Sections 75, 91, 112, 113 and 114 of the 1999 Constitution, the Anambra State House of Assembly as presently constituted, with regard to the number of thirty state legislators, is constitutional.
2. Whether having regard to the express provisions of Sections 75, 91, 112, 113 and 114 of the 1999 Constitution the minimum number of state legislators of Anambra State House of Assembly should be thirty-three members as against the present thirty members.
3. Whether the defendant’s failure to constitutionally reflect the appropriate number of members of the Anambra State House of Assembly (33 members) in the conduct of the forthcoming election is constitutional, having regard to Sections 75, 91, 112, 113 and 114 of the 1999 constitution.
4. Whether given the population of Idemili North Local Government Area of Anambra State as reflected in the 2006 census final results and in conjunction with the provisions of Sections 75, 91, 112, 113 and 114 of the 1999 Constitution the plaintiffs are adequately represented in the Anambra State House of Assembly by only one member.

The origination summons is supported by an affidavit of 7 paragraphs with documentary exhibits attached thereto and the appellants’ written address. The respondent, as the defendant filed a counter affidavit of 12 paragraphs with one documentary an exhibit and the respondent’s written address in opposition to the originating summons. The trial court considered the evidence in the affidavits and the written address of Counsel to both parties and rendered judgment on 27th October 2011 dismissing the claim of the appellants.

Dissatisfied with this decision of the trial court the appellants on the 25th November 2011 commenced this appeal No. CA/E/303/2011 by filing a notice of appeal containing 4 grounds of appeal.

Both parties to this appeal have filed, exchanged and adopted their briefs of argument. The briefs of argument of the parties are the appellant’s brief of argument, the respondent’s brief and the appellants’ reply on points of law.

The appellants’ brief of argument raised two issues for determination as follows-

1. Whether the lower court abandoned its judicial function by failing to make a pronouncement on an issue based on the interpretation of the constitution as clearly submitted to it by the appellant. Ground 1, and 4.
2. Whether mandamus is the proper method of commencing an action with respect to the interpretation of the provisions of the 1999 Constitution. Ground 2 and 3.

The Respondent’s brief of argument raised three issues for determination as follows –

1. Was the learned trial Judge correct when he held that the gravamen of the case of the Appellant is that they, inter alia, want the Court to direct the Respondent to increase the number of the legislators in the State House of Assembly from 30 to 33 and an order of Court to increase the number of representatives from Idemili North Local Government Area.
2. Was the learned trial Judge correct when he held that the case evidently was for an order to compel the Respondent, a public body to perform its constitutional duty and that the Appellants did not establish a refusal on the part of the Respondent to perform the act.
3. Did the learned trial Judge “completely abandon” the claim of the Appellants to set up an entirely new claim for the Appellants.

The Respondent’s brief of argument contains a notice of preliminary objection to the appeal and arguments of the preliminary objection. The notice of preliminary objection in the respondent’s brief is the same with the separate notice of preliminary objection filed by the respondent on 18th October 2013, 14 days after it filed its brief. The appellants responded to the respondent’s arguments of the preliminary objection in their brief titled “Appellants Reply on Points of Law.” Counsel to both sides have adopted their respective arguments in respect of the preliminary objection.