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

LAWGLOBAL HUB Lead Judgment Report

O. ADEREMI, J.S.C

On Thursday, 14th of June, 2007, I delivered my judgment in the open court in this matter sequel to taking the addresses of the respective counsel representing the parties in this appeal and I did say that I would give my reasons for the judgment today. I now proceed to give my reasons.

I start by saying that the appeal here is against the judgment of the Court of Appeal (Enugu Division) delivered on the 22nd of May, 2007 dismissing the appeal of the appellant herein against the judgment of the Federal High Court, Enugu Division delivered on the 30th of March, 2007 in Suit No. FHC/EN/CS/27/2007: Peter Obi v. Independent National Electoral Commission in which the trial court declined jurisdiction to adjudicate in the matter placed before it. Suffice it to say that by Originating Summons dated 12th of February, 2007 and filed the same date, the appellant, who was the plaintiff before that court had claimed 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 the 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.”

Simultaneously, he prayed for the following orders:-

(1) A declaration that the four year tenure of office of the plaintiff as Governor of Anambra State began to run from the date he took the Oath of Allegiance and the Oath of Office being the 17th day of March, 2006.

(2) Whether the Federal Government of Nigeria 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 term of office commencing from when he took the Oath of Allegiance and Oath of Office on 17th March, 2006.

(3) Injunction restraining the defendant by themselves, their agents, servants, assigns and privies or howsoever from in any way, conducting any regular election for the Governorship of Anambra State until the expiration of a period of 4 (four) years from the 17th of March, 2006, when the plaintiff’s tenure of office will expire.”

The Originating Summons was supported by a 15-paragraph affidavit. The defendant entered a conditional appearance. The present 2nd and 3rd respondents filed an application on the 23rd of February, 2007 praying the court for an order joining them as defendants in the suit. The 1st defendant/respondent filed a Notice of Preliminary Objection on the 26th of February, 2007 challenging the jurisdiction of the trial court to entertain the suit. The 4th and 5th respondents also brought an application filed on 2nd March, 2007 praying the trial court to join them as 4th and 5th defendants respectively to the summons. So also the 6th and 7th respondents had applied to be joined in the suit as defendants. The other respondents after being joined as parties, upon their applications, filed written applications, and addresses challenging the competence of the action. In his 15-paragraph affidavit in support of the Originating Summons, the plaintiff/appellant had deposed that sequel to the election for the Governorship of Anambra State on the 19th April, 2003, Dr. Chris Ngige was wrongfully declared the winner by the 1st respondent (Independent National Electoral Commission). Dissatisfied with the said declaration of results, the appellant lodged a petition at the Election Petition Tribunal. The declaration was set aside by the Tribunal and it was held that the appellant, who secured the majority of the lawful votes cast at the election was the candidate duly elected. The appeal lodged by Dr. Chris Ngige to the Court of Appeal (Enugu Division) against the decision of the Election Petition Tribunal was dismissed and the appellate court upheld the decision of the Tribunal, consequent upon which the appellant (Peter Obi) was sworn in as the Governor of Anambra State on the 17th of March, 2006.

The basis of the appellant’s case before the trial court as can be gathered from the questions posed by him for determination by the trial court as set out above by me, is that by the provisions of Section 180 (2) (a) of the Constitution of the Federal Republic of Nigeria, 1999, his four-year tenure of office commenced from the date he was sworn in as the Governor of Anambra State; that is 17th March, 2006 and that election into that Office ought not be proposed for 14th April, 2007 as the 1st respondent planned to do; for by necessary inference, that office would not be vacant on 14th April, 2007.

By a Motion on Notice dated and filed on 28th February, 2007, the plaintiff/appellant prayed the trial court for accelerated hearing of the proceedings/pending applications including the accelerated reference of the questions formulated by him to the Court of Appeal for adjudication. The questions formulated for reference to the Court of Appeal, as set out in the body of the motion are as follows:

“(1) Whether having regard to Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999, the Federal High Court has jurisdiction to entertain the case which in the main, calls for the correct interpretation of Section 180(2) (a) of the Constitution of the Federal Republic of Nigeria, 1999.

(2) Whether the plaintiff is “a person first elected as Governor” within the meaning of Section 180 (2) (a) of the Constitution of the Federal Republic of Nigeria.