Mr. Peter Obi V. Independent National Electoral Commission (Inec) & Ors (2007)

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JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the decision of the Federal High Court, Enugu Division as contained in the judgment of Faji, J. delivered on 30th March, 2007. The learned trial judge held that he had no jurisdiction to adjudicate on the Originating Summons filed by the Appellant. After declining jurisdiction, the learned trial judge proceeded to dismiss the application initiated by the Appellant pursuant to section 295(2) of the 1999 Constitution seeking reference of certain questions to the Court of Appeal.

In view of the findings of the learned trial judge on the issue of jurisdiction as stated above, the matter was struck out.

For a proper appraisal of the issues canvassed in this appeal, it is apt to recapitulate, albeit briefly, the facts which are relevant and of moment. Vide the Originating Summons dated and filed on 12th February, 2007 the Appellant prayed the Lower Court for the determination of the following questions:-

“1. Whether having regard to section 180(2) (a) of the 1999 Constitution the tenure of office of a Governor first elected as Governor begins to run when he took the Oath of Allegiance and Oath of Office.

2. Whether the Federal Government of Nigeria through the Defendant being its agent can conduct any Governorship election in Anambra State in 2007 when the incumbent Governor took Oath of Allegiance and Oath of Office on 17th March, 2006 and has not served his four year tenure as provided under section 180(2)(a) of the 1999 Constitution.”

The appellant prayed the Federal High Court for the following orders, to wit:-

“1. A declaration that the four year tenure of office of the plaintiff as the Governor of Anambra State

began to run from the date he took the Oath of Allegiance and Oath of Office being the 17th day of March, 2006.

2. A declaration that the Federal Government through the defendant being its agent cannot lawfully conduct any Governorship Election in Anambra State in 2007 in so far as the plaintiff as the incumbent Governor has not served his four year tenure of office commencing from when he took the Oath of Allegiance and Oath of Office on 17th March, 2006.
3. Injunction restraining the Defendants by themselves, their agents, Servants, assigns and privies or howsoever from in anyway conducting any regular election for the Governorship of Anambra State until the expiration of a period of 4 (four) years from the 17th day of March, 2006 when the Plaintiffs tenure of office will expire.”

The Originating Summons was supported by an affidavit of 15 paragraphs. The appellant contended that following the Governorship election on 19th April, 2003 one Dr. Chris Ngige was wrongfully declared the winner by the 1st Respondent (INEC). The appellant herein felt dissatisfied and filed a petition at the election Petition Tribunal which set aside the declaration made by INEC and held that it was the appellant who secured the majority of lawful votes cast at the election. Dr. Chris Ngige lodged an appeal in this Court. The decision of the Election Tribunal was sustained. The appellant was thereafter sworn in as the Governor of Anambra State by the Chief Judge of the State on 17th March, 2006. The certified true copy of the Oath of Allegiance and Oath of Office sworn to by the appellant at Awka on 17th March, 2006 came in via a further affidavit and marked Exhibit A.

The original sole defendant, now, 1st respondent herein, filed a Memorandum of Conditional Appearance which was accompanied by a Notice of Preliminary Objection and also filed a counter-affidavit to oppose the Originating Summons. The appellant, vide a motion on notice dated 28th February, 2007 prayed the lower court to refer certain questions to the Court of Appeal vide section 295(2) of the 1999 Constitution. During the course of hearing, the 2nd-8th respondents were, upon application, joined as defendants at the lower court.

The learned trial judge was ably addressed by counsel to the appellant and 1st-7th Respondents. The 8th respondent also put in some comments in opposition to the Originating Summons.

The learned trial judge, in his reserved and considered ruling handed out on 30th March 2007, found that he had no jurisdiction to adjudicate on the Originating Summons filed by the appellant. He proceeded to consider the application for reference of certain formulated questions for answers by this Court. He dismissed the application for reference filed pursuant to section 295(2) of the 1999 Constitution. In view of the learned trial judge’s standpoint on issue of jurisdiction, the matter was struck out.

The appellant felt unhappy with the stance of the learned trial judge.

A Notice of Appeal dated 3rd April, 2007 was filed on the same date at the Lower Court’s Registry. A second Notice of Appeal dated 18-4-07 was filed in this Court on the same date on behalf of the appellant. The latter Notice of Appeal relied upon by the appellant carries four (4) grounds of appeal.