Mr. Peter Obi V. Independent National Electoral Commission & Ors (2007) LLJR-SC
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.
(3) In view of Section 180(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, when did the tenure of office of the plaintiff begin to run having regard to the fact as admitted by both parties, that the plaintiff took the Oath of Allegiance and Oath of Office as Governor of Anambra State on 17th March, 2006
(4) Having regard to the fact that the plaintiff took the Oath of Allegiance and Oath of Office on 17th March, 2006, is the plaintiff not entitled to enjoy the full tenure of 4 years for the office of Governor as prescribed by Section 180(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999
(5) Can the defendant lawfully abridge the tenure of 4 years prescribed by the Constitution of the Federal Republic of Nigeria, 1999 for a person such as the plaintiff elected as Governor of a State by holding election for the office of Governor for a State in the middle of plaintiff’s tenure, in other words, can the defendant lawfully conduct a Governorship Election in Anambra State in April 2007 notwithstanding the fact that the plaintiff took the Oath of Allegiance and Oath of Office only on the 17th March, 2006
(6) On a proper interpretation of Section 180 of the 1999 Constitution of the Federal Republic of Nigeria particularly Section 180(2)(a), must election be held in all the 36 States of the Federal Republic of Nigeria on the same date or at the same period irrespective of the date the Governor of a State was sworn and regardless of the provisions of Section 180(2)(a) of the 1999 Constitution of Nigeria.
(7) Has the plaintiff waived his right to continue to remain in office as the Governor of Anambra State for the full tenure of four years when the plaintiff is not a candidate recognised by the defendant in the 2007 general elections into the gubernatorial election in Anambra State”
After taking arguments of all counsel on the motions and the preliminary objection as to jurisdiction; in a considered ruling delivered on the 30th of March, 2007, the learned trial Judge held that questions 2-7 do not constitute materials for reference to the Court of Appeal and he consequently dismissed the motion for reference. On the most important issue which is Issue No. 1 relating to matter of jurisdiction, the learned trial Judge declined jurisdiction to entertain the summons, he therefore struck out the summons. The appellant, being satisfied with the decision, lodged an appeal to the court below (Court of Appeal). Following the exchange of Briefs among the counsel and taking of their respective arguments on the said Briefs filed, the court below, in a reserved judgment delivered on the 22nd of May, 2007, dismissed the appeal in toto. In so doing, it held, inter alia, that the reliefs sought by the appellant were mainly election matters which according to it, were within the exclusive jurisdiction of the Election Tribunal and therefore the Federal High Court lacked the jurisdiction to entertain same and that by extension, following its holding that it was Election Tribunal that was vested with jurisdictional power in the matter, the court below (the Court of Appeal) could not invoke the provisions of Section 16 of the Court of Appeal Act and adjudicate in the substantive matter. The court below also upheld the preliminary objection raised by the 1st respondent against ground 4 of the grounds of appeal and issue No.4 in the appellant’s Brief to the effect that the trial court having refused to make a reference, should have proceeded to pronounce on the merits of the case for reason that it was not raised before the trial court. Again, being dissatisfied with the decision of the Court below, the appellant appealed to this court by a Notice of Appeal dated 22nd May, 2007 which has incorporated into it four grounds. Distilled from the grounds of appeal and incorporated into the appellant’s Brief of Argument, for determination, are three issues which are in the following terms:
“(1) Whether the learned Justices of the Court of Appeal were correct when they upheld the decision of the Federal High Court declining jurisdiction and held that the prayers in the appellant’s originating summons were election matters within the exclusive jurisdiction of the Election Tribunal.
(2) Whether the Court of Appeal was right in striking out Ground IV of the appellant’s ground of appeal and issue IV distilled therefrom.
(3) Whether having regard to the proper appreciation of the appellant’s prayers in the Originating Summons, the Court of Appeal was right in not invoking the powers under Section 16 of the Court of Appeal Act.”
The 1st respondent (INEC) identified four issues for determination; and as contained in its Brief of Argument, they are as follows:-
“(1) Whether the Court of Appeal was right in upholding the preliminary objection to ground 4 and issue developed therefrom.
(2) Whether the Court of Appeal were correct when they upheld the decision of the learned Judge to decline jurisdiction over the subject matter of the plaintiff/appellant’s originating summons and in particular:
(i) whether the subject matter in the appellant’s claim did not border on tenure of office for which the 1999 Constitution of the Federal Republic of Nigeria (hereafter the Constitution or CFRN), Cap C23, Laws of the Federation of Nigeria, 2004 has exclusively, vested special jurisdiction on a specialised court, to wit Election Tribunal by virtue of Sections 285(2) and 184.
(ii) Whether the lower court was correct in following judicial precedents of the Supreme Court with respect to the ouster of the court’s jurisdiction bordering on electoral and tenure matters provided for in Sections 285 and 184 of the 1999 Constitution, having regard to the subject-matter disclosed by the appellant’s Originating Summons.
(3) Whether the lower court was right in holding that the matter sought to be referred to the (sic) it as a Higher Court were not proper subjects for reference in view of the recent Supreme Court case of Alhaji Atiku Abubakar v. A-G. of the Federation (2007) 4 S.C. (Pt. II) 62; (2007) 3 NWLR (Pt. 1022) page 601, and a host of other cases on the issue of constitutional reference.
(4) Whether this was an appropriate case for the exercise of the general powers of the Court of Appeal under Section 16 of the Court of Appeal Act and if so whether the reliefs sought in the originating summons of the appellant ought to be granted having regard to the clear provisions, frame work and intendment of the 1999 Constitution.”
For their part, the 2nd respondent (All Nigeria People’s Party) raised three issues for determination, as contained in their Brief of Argument. They are as follows:-
“(i) Whether the learned Justices of the Court of Appeal were correct when they upheld the decision of the Federal High Court declining jurisdiction and held that the prayers in the appellant’s originating summons were election matters within the exclusive jurisdiction of the Election Tribunal.
(ii) Whether the Court of Appeal was right in striking out Ground IV of the appellant’s ground of appeal and Issue IV distilled therefrom.
(iii) Whether having regard to the proper appreciation of the appellant’s prayers in the Originating Summons, the Court of Appeal was right in not invoking the powers under Section 16 of the Court of Appeal Act.”
The 3rd respondent (Prince Nicholas Ukachukwu) also raised three issues for determination by this court, and as could be gathered from his Brief; they are as follows:-
“(1) Whether the Court of Appeal was right in upholding the decision of the learned trial Judge declining jurisdiction on the ground that the reliefs in the originating summons, are within the exclusive jurisdiction of the Election Tribunal as they are related to a determination of the tenure of the Governor of Anambra State.
(2) Whether the Court of Appeal was right when it declined to invoke its powers under Section 16 of the Court of Appeal Act to hear and determine the substantive case as per the Originating Summons.
(3) Whether the Court of Appeal was right to have struck out the ground IV of the appellant’s ground of appeal as well as the issue distilled therefrom.”
The 4th and 5th respondents (Peoples Democratic Party and Dr. Andy Uba) on their own identified three issues for determination through their joint Brief and they are as follows:-
“(1) Whether the Court of Appeal was right in upholding the preliminary objection to ground 4 of the appellant’s ground of appeal and issue No. 4 distilled therefrom.
(2) Whether the Court of Appeal were correct when they upheld the decision of the Federal High Court Enugu Division declining jurisdiction over the subject-matter of the plaintiff/appellant’s Originating Summons.
(3) Whether this was an appropriate case for the exercise of the general powers of the Court of Appeal under Section 16 of the Court of Appeal Act and accordingly whether the Court of Appeal was right in refusing to do so.”
The 6th and 7th respondents (Peoples Mandate Party and Arthur Obiefuna Nwandu) through their joint Brief of Argument raised for determination by this court, two issues which as could be gleaned from the said Briefs are in the following terms:-
“(1) Whether the questions sought to be determined and reliefs sought are election matters within the exclusive jurisdiction of the Election Petition Tribunal as decided by the court below or constitutional interpretation within the jurisdiction of Federal High Court.
If the answer to question one is that it is within the jurisdiction of the Federal High Court, then whether the plaintiff/appellant has made out a case on the merit in the originating summons to have the case determined in his favour by the Court of Appeal pursuant to its power under Section 16 of the Court of Appeal Act.”
When this appeal came before us for argument on the 14th of June, 2007, senior learned counsel and learned counsel representing the parties in this appeal referred to, adopted and relied on the respective Briefs filed on behalf of their respective clients. Dr. Ikpeazu, learned senior counsel for the appellant after relying on the appellant’s Brief of Argument filed on 24/5/07 and the Reply Brief filed on 11/06/07 in response to the 2nd respondent’s Brief of Argument (the two reply briefs filed on 1st June, 2007 and 11th June, 2007 respectively in reply to the 1st respondent’s Brief of Argument having been withdrawn and consequently struck out) and submitted, that going by the reliefs sought, they were not within the realm of election matters; for according to him, through the Brief of Argument of the appellant, none of the parties challenged the returns made at any election or a determination made by the Election Tribunal or the Court of Appeal (the court below). It was the appellant’s further submission that by virtue of the provision of Section 251(1)(r) and (q) of the 1999 Constitution, the Federal High Court had the jurisdiction to entertain the suit. On Issue II, the appellant submitted that it was wrong for the court below to have struck out ground 4 of the grounds of appeal when, according to him, the purpose of that ground was to show that the trial court had jurisdiction to hear the suit and a fortiori, the court below could then invoke the provisions of Section 16 of the Court of Appeal Act. And since the substantive appeal against the ruling of the trial court that it had no jurisdiction had not been determined by the court below, it was wrong of that court (the Court of Appeal) to hold that the aforesaid ground of appeal presumed that the trial court had jurisdiction. That ground, it was further submitted, was competent and not being a fresh issue, it did not require any leave of court to file same. On issue No.3, it was submitted that the essence of Section 16 of the Court of Appeal Act was to enable the court below, to which that section applies, have wide latitude of power to deal with any case before it from a trial court as if that case was originally initiated before it; provided all the material necessary was present before it, it was his final submission on this point that all the material necessary were present before the trial court. The court below therefore erred in law for not invoking the provisions of Section 16 of the Court of Appeal Act. He urged this court to invoke the provisions of Section 22 of the Supreme Court Act which are in pari materia and assume full jurisdiction over the entire substantive matter in this case while finally submitting that based on the interpretation of the provisions of Sections 180(2)(a) and 185 of the Constitution of the Federal Republic of Nigeria, 1999, an order should be proclaimed by this court, that the appellant, as the Governor of Anambra State is entitled to serve a four-year term from the date he took the Oath of Allegiance and Oath of Office, that being 17th day of March, 2006. He urged that the appeal be allowed.
Chief Anthony Idigbe, learned senior counsel representing the 1st respondent, in highlighting the submissions contained in the Brief of his client (INEC) submitted that from the reliefs sought by the appellant before the trial court, it was clear that the term of the office of the Governor of Anambra State was what the appellant was praying the trial court to determine; and that, according to him was a matter for an Election Tribunal: praying in aid of this submission the decision of this court in A.N.P.P. v. Returning Officer S.C. 78/2005 delivered on 22nd February, 2007. The appellant, he submitted, was in the wrong court when he initiated his action in the Federal High Court; the proper venue, according to him, would be the Election Tribunal. Continuing, he said the trial court was right in holding that the Constitution did not confer any jurisdiction on the Federal High Court to entertain this suit; and the court below was right in upholding that decision; he prayed in aid, the decisions in Ishola v. Ajiboye (Pt. 352) 506 at 619 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341. On the issue of the propriety of the trial court’s decision on refusal to make reference, it was submitted that the trial court was right in so refusing, having regard to its decision that it lacked jurisdiction to entertain the suit; and the court below, it was further submitted, was right in upholding that decision, reliance was placed on the decision in Ifegwu v. FRN (2003) 15 NWLR (Pt. 842) 150 and Bamaiyi v. A-G. Fed (2001) 7 S.C. (Pt. II) 62; (2001) 12 NWLR (Pt. 727) 468 at 475. On its issue No. 3 on whether the lower court ought to have invoked the provisions of Section 16 of the Court of Appeal Act; it was submitted that the trial court having declined to have jurisdiction to entertain the suit, there was nothing left to be done; that finding, according to it, is what distinguishes the present case from the decision in Inakoju v. Adeleke (2007) 1 S.C. (Pt. I) 1; (2007) 4 NWLR (Pt. 1025) 425 in which the court below invoked the aforesaid provisions. The learned senior counsel finally urged that the appeal should be dismissed.
Mr. Okafor, learned counsel for the 2nd respondent, through the Brief of Argument of his client filed on 4th June, 2007, submitted that the court below was correct in upholding the decision of the trial court that it lacked the jurisdiction to hear the suit. He went further to submit that from the reliefs sought which, according to him was to determine the jurisdiction of the court, it was clear that the issue of tenure of office of the appellant within the interpretation of the provisions of Sections 184 and 285(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 was what called for determination; and by the aforesaid provisions, it is only the Electoral Tribunal that can entertain the suit. Referring to the provisions of Section 251(1)(r) and (q) of the Constitution, he submitted that they did not confer adjudicatory powers on the Federal High Court as, it was further submitted, the issue in this case is covered absolutely by the provisions of Section 285 of the Constitution. On its issue No. 3 as to the propriety of the court below not invoking the provisions of Section 16 of the Court of Appeal Act and then proceed to entertain the claim, the learned counsel, through the Brief of his client aligned himself with the submissions of Chief Idigbe, SAN., learned senior counsel for the 1st respondent which is to the effect that based on all the provisions of the Constitution and the Electoral Act referred to, the nullification of Ngige’s election (the Governor before Obi, the appellant) did not treat the period he (Ngige) served as a non-event. Therefore, Ngige having taken the Oath of Allegiance and Oath of Office on the 29th May, 2003, the four-year mandate given by the electorate would start running from that day; and to hold otherwise would be to undermine and subvert the right of the people (electorate); more importantly, is the fact, according to him, that the matter in controversy is purely an electoral matter which must be within the exclusive jurisdiction of the Electoral Tribunal and not the Federal High Court. The trial court, having lacked jurisdiction to entertain the substantive suit, the court below could not invoke the provisions of Section 16 aforesaid. Learned counsel finally urged us to dismiss the appeal.
Mr. Ezechukwu, learned counsel for the 3rd respondent on going through the written Brief of his client first on 4th June, 2007 for the purpose of highlighting salient points of argument said nothing new outside the Briefs of the 1st and 2nd respondents. Suffice it to say that I have read all the Briefs filed very carefully therefore, I do not consider it expedient to repeat all what others have said. Perhaps, I should say that he submitted, through the written Brief, that ground 4 of the appellant’s Notice of Appeal raised fresh issue for which the leave of the court was required and since none was sought and obtained, the court below was right in striking out the issue founded upon it. It was his final submission that the decision of the court below be affirmed and the main suit struck out.
Mr. Udenze, learned counsel for the 4th and 5th respondents, in presenting his arguments as set out in the joint Brief of his clients (the 4th and 5th respondents) said nothing new from the arguments of counsel for the 1st, 2nd and 3rd respondents which I have reproduced supra. I consider it unnecessary repeating what has been earlier said. Suffice it to say that he also urged this court to dismiss the appeal in toto.
The 6th and 7th respondents did not file any cross-appeal therefore, their joint Brief shall not be considered as the law frowns at such Brief that lacks foundation in a cross-appeal or an appeal.
I shall start the consideration of this appeal by first treating the substance of the Notice of Preliminary Objection of the 1st respondent that ground 3 of the grounds of appeal is incompetent for the reason that the particulars thereto refer to the error of the Federal High Court and not the Court of Appeal and that this court (Supreme Court) has no legal power to hear appeals directly from the High Court; referring to the particulars of ground III, it was submitted that they are not a complaint against anything done by the court below (Court of Appeal) but that of the trial court (Federal High Court). Ground III he further submitted, was incompetent and issue II arising therefrom was not properly formulated; we were therefore, urged to strike out ground III of the Notice of Appeal and issue No. II arising therefrom. Ground 4 and issue No. 4 arising therefrom should also be struck out. In reply to the preliminary objection, the appellant in his Reply Brief submitted that ground 3 and its particulars demonstrate a complaint against the decision of the court below and not the trial court (Federal High Court). The substratum of the complaint according to him, was the decision on the preliminary objection that he made before the court below (Court of Appeal) that that court (Court of Appeal) failed to hold that the basis of ground 4 of the grounds of appeal was the failure of the trial Judge to make a determination on the merits of the case when copious arguments had been advanced on the substantive case; adding that ground 3 herein only challenged the success of the preliminary objection and no complaint whatsoever was made with respect to the decision of the trial court. It is imperative that I reproduce grounds 3 and 4 of the grounds of appeal; and as set out on the records of proceedings, they are as follows:-
GROUND 3
“The learned justices of the Court of Appeal erred in law when they upheld the preliminary objection and struck out ground 4 of the ground of appeal on the ground that it dwelt on matters which did not arise from the decision of the trial Judge.
PARTICULARS OF ERROR
(i) The trial Judge in his judgment clearly found that all materials and argument had been advanced on the merits of the originating summons. Such materials were indeed at all material times before the Court of Appeal.
GROUND 4
“The learned Justices of the Court of Appeal erred in law when they held that the learned trial Judge correctly refused to refer the question of law raised by the appellant for the determination of the Court of Appeal.
PARTICULARS OF ERROR
(1) The Court of Appeal justified the non-reference to the Court of Appeal of the issue of reference on the ground that the trial court has no jurisdiction.
(2) The refusal of the trial court to make the reference was not because the trial court had no jurisdiction to entertain the suit.
(3) The court had jurisdiction to entertain the suit and make the reference under Section 295 of the 1999 Constitution of the Federal Republic of Nigeria.
(4) Interpretation of Sections 251(1), 180(2)(a), 178, 184, 185 and 285 of the 1999 Constitution of the Federal Republic of Nigeria is substantial.”
The ground 4 of the appellant’s grounds of appeal placed before the court below (the Court of Appeal) was to the effect the learned trial Judge who had the jurisdiction to entertain the originating summons erred in law in not determining the originating summons after dismissing the application for reference. The issue 4 distilled from that ground 4 and also placed before the court below (Court of Appeal ) for determination reads thus:-
“Whether the appellant who is the Governor of Anambra State shall hold office for four years from the date he took the Oath of Allegiance and Oath of Office having regard to Sections 180 (2) (a) and 185 of the 1999 Constitution of the Federal Republic of Nigeria.”
Looking at the whole gamut of the case presented before the trial court, the cognisable aspects of the appellant’s case pronounced upon by the trial court and decided by it are two and they are as follows:-
“(1) Whether the Federal High Court had jurisdiction to entertain the appellant’s Originating Summons.
(2) Whether the Federal High Court (the trial court) should refer questions to the court below (Court of Appeal).”
A careful reading of ground 4 reproduced above pre-supposes that the trial court had jurisdiction to entertain the suit but refused to hear and determine the substantive suit. But, the truth of the matter is that the trial court had ruled that it lacked jurisdiction to adjudicate in the matter before it. That decision was final and binding until it was set aside. Let me quickly say here that once a court declines jurisdiction to entertain a suit, the only other step it could take in the matter is to make an order striking out the suit. Any other order or pronouncement made by the court after declaring that it lacks jurisdiction to entertain a suit, is null and void and of no effect. A careful reading of the particulars to ground 4 shows that the appellant wanted the trial court to have made a reference to the court below, on the assumption by the appellant, that the court below had the legal power to enter into adjudication on the matter. I am in a serious difficulty to see on what basis the trial court could have proceeded to do that having, in unmistaken terms said it lacked the legal power to adjudicate in the case before it. I pause here to say that before a proper reference known to and sanctioned by the law could be made, the court making it must have made some findings upon the materials placed before it and in so doing, the trial court must be convinced that it had jurisdiction to hear the matter. 2 In the instant case, I repeat, the trial court had said in clear terms that it lacked the power to hear the matter. If anything would form the basis of any complaint against the verdict of the trial court, it is that, it said it lacked jurisdiction and no more. Whether that verdict by the trial court on jurisdiction is sustainable in law, is another matter. But, until it is set aside by due process of law, it is binding. The court below did not set it aside. Issue touching on jurisdiction is a matter of law. And that is what is before us now. The grounds of appeal could therefore not be reasonably said to have flowed from the judgment of the trial court. The court below is, in my humble view, right in the order made striking out the said two grounds of appeal which are unrelated to the decision of the trial court and of course, the issues erroneously formulated therefrom, have no legal foundation, their being struck out is justifiable. 3
I therefore uphold the preliminary objection of the 1st respondent and all issues in any of the Briefs before us relating to the preliminary objection are hereby resolved against the appellant. Issue No. 2 on the appellant’s Brief of Argument is, consequently answered in the affirmative; and from what I have been saying, Issues No. 1 and 3 on the 1st respondent’s Brief; Issue No. 2 on the 2nd respondent’s Brief, Issue No. 3 on the 3rd respondent’s Brief and Issue No. 1 on the joint Brief of the 4th and 5th respondents; all of which are in pari materia with Issue No. 2 on the appellant’s Brief are similarly answered in the affirmative.
I have carefully read all the Briefs of Argument of the parties, having earlier disposed of Issue No. 2 in the appellant’s Brief, Issues Nos. 1 and 3 contained in the 1st respondent’s Brief; Issue No. 2 in the 2nd respondent’s Brief; Issue No. 3 on the 3rd respondent’s Brief and Issue No. 1 on the joint Brief of the 4th and 5th respondents; the remaining issues in the written Briefs of the parties squarely deal with (a) jurisdiction of the trial court to enter into adjudication and (b) the invocation of the provisions of Section 16 of the Court of Appeal Act which would have enabled the court below to adjudicate on the substantive matter. I shall therefore take all together. Issue No. 1 on the appellant’s Brief; Issue No. 2 on the 1st respondent’s Brief; Issue No. 1 on the 2nd respondent’s Brief; Issue No. 1 on the 3rd respondent’s Brief; Issue No. 2 on the joint written Brief of 4th and 5th respondents and Issue No. 1 on the joint written Brief of the 6th and 7th respondents; all relating to matter of jurisdiction of the trial court to enter into adjudication. Thereafter, I shall take together Issue No. 3 on the appellant’s Brief; Issue No. 4 on the 1st respondent’s Brief; Issue No. 3 on the 2nd respondent’s Brief; Issue No. 2 on the 3rd respondent’s Brief; Issue No. 2 on the joint written Brief of the 6th and 7th respondents; all of which relate to the invocation by the court below of the provisions of Section 16 of the Court of Appeal Act which would have enabled the court below to adjudicate on the substantive matter.
Jurisdiction is the legal power or legal authority that enables a Judge to enter into adjudication in a matter before him. It should however be noted that the jurisdiction should be examined not when it is invoked but when the cause of action arose. I wish further to say that a court is said to have original jurisdiction in a particular matter when that matter can be initiated before it and as a corollary, a court is said to have appellate jurisdiction when it can only go into the matter on appeal after it had been adjudicated on by a court of first instance. It follows, therefore, that where a court takes upon itself to exercise power under jurisdiction which it does not possess; its decision is tantamount to nothing. Let it be noted that an action of a Judge which relates not to his office, is of no force; there can never be obedience to any order he may make. The question may then be asked: what determines the jurisdiction of a court The answer is this: generally, it is the claim of the plaintiff which determines the jurisdiction of a court entertaining the same see Adeyemi & Ors. v. Opeyori (1976) 9 & 10 S.C. 31; (1976) 9-10 S.C (Reprint) 18. 4
For a proper understanding of this judgment in the light of the dictates of the law, I shall again, reproduce the claims formulated by the appellant before the Federal High Court as the plaintiff before that court; they are in the following terms:-
“(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 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 the 17th day of 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 day of March, 2006 when the plaintiff’s tenure of office will expire.”
A critical examination of the three reliefs that I have reproduced supra convinces me beyond any doubt that the first two are declaratory in nature and the third one is injunctive in nature. The first two reliefs are only an invitation to the court to declare what the law on this issue is; that is, whether having regard to the provisions of any law including the Constitution, the four year tenure of office of the plaintiff/appellant as Governor of Anambra State would begin to run from the 17th of March, 2006 when he first took Oath of Office and Oath of Allegiance. I must quickly remind myself that a declaratory judgment such as what was sought by the plaintiff/appellant is discretionary. It is the form of judgment which should be granted only when the court is of the opinion that the party seeking it, is, when all facts are taken into consideration, fully entitled to the exercise of the court’s discretion in his favour. See Odofin v. Ayoola (1984) 11 S.C. 72. 5 I make bold to say that from the claims formulated in the originating summons, a substantial question of law has arisen in which the plaintiff/appellant has a real interest to raise and the respondents to oppose. Perhaps, I should also say that judicial authorities are ad idem in saying that courts must act judicially and judiciously when awarding declaratory judgment. Courts all over the world, in areas where the rule of law is prevalent, have come to recognise as veritable, declaratory judgments. This form of judgment started forcefully to receive acclamation when in the case of Hamson v. Radcliffe Urban District Council (1922) 2 CH 490, Lord Sterndale MR. opined at page 507 and I quote:-
“The power of the court to make a declaration where it is a question of defining rights of two parties is almost unlimited; I might say only limited by its own discretion. The discretion should of course be exercised judicially, but it seems to me that the discretion is very wide.”
The dictum of Lord Sterndale (supra) was quoted with approval by the Privy Council (England) in Ibeneweka v. Egbuna & Ors. (1964) 1 WLR 210. The need for this class of relief, in the interest of justice was pushed forward by Lord Denning M.R. in the case of PYX Granite Co. Ltd. v. Min. of Housing & Local Govt. (1958) 1 QB 554 when, at page 571, he reasoned:-
“If a substantial question exists to which one person has a real interest to raise, and the other to oppose, then the court has a discretion to resolve it by a declaration which it will exercise if there is a good reason for so doing.”
I wish to go further by saying that to be able to claim declaratory reliefs, a plaintiff must have the necessary standing to sue. He does not need to have a subsisting cause of action or a right to some other relief, but some legal right of his won must be in issue, actually or contingently. Unless this is the case, there is nothing relating to his legal position which the court can declare. This statement of mine was amplified by Lord Diplock when in Gouriet v. Union of Post Office Workers (1978) A.C. 435, he reasoned thus at page 501 and I quote:-
“But the jurisdiction of the court is not to declare the law generally or to give advisory opinion; it is confined to declaring contested legal rights, subsisting or future of the parties represented in the litigation before it and not those of any one else.”
Going by our jurisprudential stand, I know that the decisions of foreign courts are no longer binding on our courts. But they remain persuasive. Since the decisions I have referred to above constitute an exposition of good law, I am persuaded by them. And I shall follow them. As I have said, a declaratory order or judgment merely declares a right or an entitlement or the position of the law. Therefore, a plaintiff who intends to have an enforceable legal right from a declaratory judgment or order that inures in his favour must also seek injunctive order and damages. That is what the plaintiff/appellant has done in the instant case, of course, less claim for damages. I have said earlier in this judgment that the main claims are an invitation to the court to make a pronouncement as to the position of the law, and that going bythe decisions I have cited supra, a High Court or any court of record can entertain it. However, the 1st to 5th respondents have, through their various written briefs argued strenuously that the reliefs sought relate to electoral matters and that the Federal High Court does not have the jurisdiction to entertain them adding that the only body that can entertain this suit is Election Petition Tribunal. They placed reliance for this content of the provisions of Sections 178(1) and (2); 184, 251(1), (p), (q) and (r) and 285 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999. The stand point of the aforesaid respondents has made me to bear in mind that the exercise of a jurisdiction to make a declaratory relief is not an exception to the general principle that where the Constitution has declared that the courts cannot exercise jurisdiction, any provision in any law to the contrary is null and void and of no effect. This point was lucidly explained by Karibi-Whyte, JSC. in Utih v. Ononyivwe (1991) 1 S.C. (Pt. I) 61; (1991) 1 NWLR (Pt.166) 166 when at page 225, he opined thus:-
“The jurisdiction of our courts is derived from the Constitution. Hence, where the Constitution has declared that the courts cannot exercise jurisdiction, any provision, in any law to the contrary will be inconsistent with the provision of the Constitution and void. The exercise of a jurisdiction to make a declaratory relief is not an exception to this general principle.”
I shall hereunder reproduce the provisions of the sections of the Constitution stated supra and examine them critically to see whether they oust the jurisdiction of the Federal High Court in entertaining this suit:
Section 178 (1)
“An election to the office of Governor of a State shall be held on a date to be appointed by the Independent National Electoral Commission.”
Section 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 of the last holder of that office.”
The above quoted provisions of the Constitution confer the right or authority on the Independent National Electoral Commission to appoint a date for the election to the office of Governor of a State with a proviso that such a date shall not be earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office. But, has the term of office of the plaintiff/appellant expired bearing in mind that he took his Oath of Allegiance and Oath of Office on the 17th day of March, 2006 It is common ground that the tenure of office of a Governor, by the force of the Constitution, is four years. However, I shall answer that question ANON. Section 184 of the Constitution which deals with certain questions relating to elections provides:-
Section 184
“The National Assembly shall make provisions in respect of
(a) persons who may apply to an election tribunal for the determination of any question as to whether –
(i) any person has been validly elected to the office of Governor or Deputy Governor;
(ii) the term of office of a Governor or Deputy Governor has ceased, or
(iii) the office of Governor or Deputy Governor has become vacant.”
It is my view that Section 184(a) supra does not apply to the appellant who has, through legal process, got himself declared as the person who had the highest lawful votes in the gubernatorial election of April 2003 – the court’s verdict so declaring him was given on the 16th of March, 2006. By the judgment of the Court of Appeal given on 16th March , 2006 returning the appellant to the seat of Governorship of Anambra State from April 2003 when he was unlawfully declared the winner of the election at that time. His (Ngige) return by INEC had been voided. The present appellant was denied by INEC the mandate of the people to be their Governor from 2003. Dissatisfied with the verdict of INEC, the appellant, in a way pursuant to the provisions of Section 184(a) (1) of the Constitution, challenged the validity of the election of Ngige, a case, as I have said, he finally won on 16th March 2006. It was after his being sworn in as the Governor of Anambra State on 17th March, 2006 that the foundation of his cause of action arose; the preparation by INEC to conduct an election on 14th May, 2007 fully created a cause of action; that is, a judicial declaration as to the tenure of his office as Governor. All his rights under the Electoral Act which might be justiciable in an Election Petition Tribunal ended with the judgment of Court of Appeal (Enugu Division) on the 16th of March 2006. It must always be remembered that an Election Petition Tribunal is not an all-purposes court that can entertain all sorts of claims or reliefs. It is created for election matters alone. The appellant had exhausted all the legal avenues opened to him to get himself restored to the seat of Governor of Anambra State sequel to the 2003 election. What he is now seeking is legal pronouncement as to when his four-year term would end as Governor having regard to the fact that he first took his Oath of Allegiance and Oath of Office on the 17th of March, 2006. The provisions of Section 184 supra will not avail him as by its provisions, Election Petition Tribunal is no longer the proper seat of justice to approach.
I shall now examine the provisions of Section 251 of the Constitution. Section 251 (1), (p), (q) and (r) of the Constitution which defines the jurisdiction of the Federal High Court, provides:
Section 251 (1), (p), (q) and (r):-
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise to the exclusion of any other court in civil causes and matters:-
(a)………..
(b)…………
(c)………..
(d)………..
(e)…………
(f)…………
(g)………..
(h)………..
(i)…………
(j)………….
(k)………….
(I) ………..
(m)……….
(n)…………
(o)………..
(p)the administration or the management and control of the Federal Government or any of its agencies.
(q)subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal government or any of its agencies.
(r) any action or proceeding for a declaration or injunction of any executive or administrative action or decision by the Federal Government or any of its agencies.”
It is clear that by Section 251 (1) (a) supra, the interpretation of the provisions of the 1999 Constitution is vested in the Federal High Court in so far as it affects the Federal Government or any of its agencies. To be specific, Section 251 (1), (q) and (r) puts it beyond any doubt that the Federal High Court has the power to enter into adjudication on any action or proceeding seeking declaratory and injunctive reliefs. Indeed, this section defines the jurisdiction of the Federal High Court. Even though Section 251 of the Constitution starts with the words “NOTWITHSTANDING ANY THING CONTRARY CONTAINED IN THIS CONSTITUTION”, I fail to see how the provisions of Section 184 does not contain any “exclusion or ouster clause”. The word “NOTWITHSTANDING” was judicially considered by this court in NDIC v. Okem Ltd. & Anor (2004) 4 S.C. (Pt. II) 77; (2004) 10 NWLR (Pt. 880) 107 when at pages 182/183 it reasoned thus:-
“As has been observed, Section 251(1) of the 1999 Constitution begins with the term “notwithstanding” anything contrary to this Constitution. When the term ‘notwithstanding’ is used in a section of a statute it is meant to exclude an impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfil itself. It follows that as used in Section 251 (1) of the 1999 Constitution , no provision of the Constitution shall be capable of undermining the said section.”
I adopt and hold myself bound by the above dictum. I shall not want to end this discourse at this stage without having final recourse to Section 285(1) and (2) of the 1999 Constitution which provides thus:-
Section 285(1)
“There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any other court or Tribunal, have original jurisdiction to hear and determine petitions as to whether:-
(a)any person has been validly elected as a member of the National Assembly ;
(b)the term of office of any person under this Constitution has ceased;
(c)the seat of a member of the Senate or a member of the House of Representative has become vacant; and
(d)a question or petition brought before the election tribunal has been properly or improperly brought.”
Section 285(2)
“There shall be established in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative House.”
The above section of the Constitution pre-supposes that an election has been held and a petition has been presented. The only adjudicating body that has exclusive jurisdiction to hear and determine such petition is the Election Petition Tribunal. The present action pre-dates the election held on the 14th of April, 2007. And, as I have said, all the plaintiff/appellant is seeking is a legal pronouncement or a declaration in law, as to when his tenure as the Governor of Anambra State would come to an end as dictated by the Constitution. Drawing from the decisions I have reviewed supra, the Federal High Court has an unfettered jurisdiction to make such declaration in respect of the contested rights of parties, whether subsisting or future. Again, I have not seen anything in Section 285(1) and (2) of the Constitution which fetters the right of the Federal High Court as conferred on it by the provision of Section 251 (1), (q) and (r) to adjudicate in this matter. Indeed, going by the decision of this court in the OKEM case supra, nothing can supplant the provisions of Section 251 (1), (q) and (r). The irresistible conclusion that I must reach, based on the judicial authorities that I have reviewed supra and the relevant provisions of the Constitution which I have considered, and which I now reach is that the Federal High Court has the jurisdiction – the legal power to entertain the suit of the plaintiff/appellant as presented before it. Having so held, I hereby set aside the decision of the two courts below declining jurisdiction. Consequently, issue No. 1 on the appellant’s Brief, issue No. 2 on the 1st respondent’s Brief, issue No. 1 on the 2nd respondent’s Brief, issue No. 1 on the 3rd respondent’s Brief, issue No. 2 on the joint Brief of the 4th and 5th respondents’ Brief are all resolved in favour of the appellant but against the 1st, 2nd and 3rd and 4th and 5th respondents. The 6th and 7th respondents have no cross-appeal.
I shall now proceed to treat the issue relating to the request for invocation of the provisions of Section 16 of the Court of Appeal Act and, a fortiori, the invocation of Section 22 of the Supreme Court Act. These issues are No. 3 on the appellant’s brief, No. 4 on the 1st respondent’s Brief, No. 3 on the joint Brief of the 4th and 5th respondents and No. 2 on the 6th and 7th respondents’ Brief. For a proper appreciation of this all-important point, I consider it necessary to reproduce the provisions of Section 16 of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria which reads thus:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
Broadly speaking, the provisions of Section 16 of the Court of Appeal Act confer legal power on the Court of Appeal to make any order which the court below it could have made in the interest of justice. This presupposes that the court below, the Court of Appeal, must have got jurisdiction to entertain the suit and the court below it also had jurisdiction in the matter it failed to exercise it. The provisions do not confer on the Court of Appeal the power to make an order which the trial court could not have made in resolving the dispute between the parties in the suit before it. The purpose of Section 16 aforesaid, is in my view, to obviate delayed justice. It follows from what I have been saying above, that certain conditionalities must be present before the provisions of this section can be invoked; and they are:-
“(1) the lower court or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it;
(2)the real issue raised up by the claim of the appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal;
(3)all necessary materials must be available to the court for consideration;
(4)the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented;
and
(5)the injustice or hardship that will follow is the case is remitted to the court below, must clearly manifest itself.”
See Faleye & Ors. v. Otapo & Ors. (1995) 3 NWLR (Pt. 381) 1; Inakoju v. Adeleke (2007) 1 S.C. (Pt.I) 1; (2007) 4 NWLR (Pt. 1025) 423 and Dapianlong & Ors. v. Dariye (2007) 4 S.C. (Pt.III) 118; (2007) 8 NWLR (Pt. 1036) 239. I have taken a critical examination of the contents of the Originating Summons used in initiating the case; everything needed to enable the court below (Court of Appeal) to invoke the provisions of the aforesaid Section 16 and to proceed to determine the main issue in the case was present. The court below erroneously failed to take the advantage of the aforesaid provisions of the Court of Appeal Act. Would this then be the end of the road for a citizen who has approached the citadel of justice seeking remedies for wrong done to him I think not. The law, must not and cannot be wanting in dispensing justice. And since justice according to law is the pre-occupation of a judex, a court must always rise up to such an occasion. It is to meet this exigency that Section 22 of the Supreme Court Act, Cap 424, Laws of the Federation of Nigeria, 1999, was enacted to confer general powers on this court to do all such things that will bring about unalloyed justice. I pause to say that the conditionalities which I have stated above that must be in place for the invocation of the provisions of Section 16 of the Court of Appeal Act aforesaid are also the condition precedent for the invocation of the provisions of Section 22 of the Supreme Court Act which provisions are as follows:-
“The Supreme Court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment in the appeal and may make any interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court.”
The provisions of Section 22 of the Supreme Court Act quoted above are, in pari materia, with the provisions of Section 16 of the Court of Appeal Act. The present suit was begun by Originating Summons, a process often used when the facts of a case are not in controversy. As expected, the summons was accompanied by affidavit in support authenticating the plaintiff/appellant’s case. Upon the service of the plaintiff/appellant’s process, the defendants/respondents who wished to file counter-affidavit did so. Therefore, all that is required for this court to determine the real issue in controversy in this appeal are present before us. The interest of justice now demands that I should invoke the provisions of Section 22 of the Supreme Court Act and address the real question in controversy. 8 Consequently, issue No. 3 on the appellant’s Brief is answered in the affirmative; similarly, issue No.4 on the 1st respondent’s Brief, issue No. 3 on the joint Brief of the 4th and 5th respondents are answered in the affirmative and issue No.3 on the Brief of the 2nd respondent is answered in the negative.
The substance of the case which the plaintiff/appellant brought for adjudication is, whether having regard to Section 180(2)(a) of the 1999 Constitution of the Federal Republic of Nigeria, the tenure of office of a person first elected as Governor begins to run when he took the Oath of Allegiance and Oath of Office. And flowing from this question, whether the Federal Government of Nigeria, through the 1st respondent (INEC) 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 the 17th of March, 2006 and has not served his four-year tenure as provided under Section 180(2)(a) of the 1999 Constitution.
It is commonly agreed that the resolution of this matter cannot be achieved without considering the effect of the provisions of Section 180 of the 1999 Constitution; particularly Section 180 (2)(a) of the 1999 Constitution which is the foundation of the first question posed by the plaintiff/appellant in his summons. It has been argued that a community reading of Sections 184 and 285(1) of the 1999 Constitution alongside with Sections 251 (1), (q) and (r) and 180 (2) (a) of 1999 Constitution makes it abundantly clear that the matter involved here, according to the 1st, 2nd, 3rd, 4th and 5th respondents through their Briefs of Argument being an electoral matter, it is only the Election Petition Tribunal that has an exclusive and original jurisdiction to entertain it. What is now called for is the interpretation of the provisions of the Constitution. I have earlier in this judgment said that Sections 178(1) and (2), 184 and 285 of the 1999 Constitution relate to electoral matters, but the suit of the appellant is far from being an electoral matter; it is one inviting the court to declare, by examining the provisions of Section 180(2) of the 1999 Constitution, when the tenure of the office of the appellant as Governor of Anambra State will come to an end having regard to the fact that he took his Oath of Allegiance and Oath of Office on the 17th of March, 2006. Section 180 deals specifically with the tenure of the Office of a Governor; it envisages that the elections are over and it now defines the period the successful candidate for the post of Governor will stay in office. That section is self-explanatory; it has nothing to do with electoral matters. I shall therefore not subscribe to a community reading of the afore-mentioned sections of the Constitution as urged. They are irrelevant here. Suffice it to say that I have held that the present suit is not an electoral matter; and that by virtue of Section 251 (1), (q) and (r) of the 1999 Constitution, the Federal High Court has the jurisdiction to entertain the suit by making an order declaring the legal rights of the parties before it thus ensuring the rule of law. Section 180 (1) and (2) of the 1999 Constitution provides:-
Section 180 (1)
“Subject to the provisions of this Constitution, a person shall hold the office of Governor of a State until –
(a)when his successor in office takes the Oath of that office; or
(b)he dies whilst holding such office; or
(c)the date when his resignation from office takes effect; or
(d)he otherwise ceases to hold office in accordance with the provisions of this Constitution.”
Section 180 (2)
“Subject to the provisions of sub-section (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 the Oath of Allegiance and the Oath of Office; and
(b) the person last elected to that office took the Oath of Allegiance and Oath of Office or would, but for his death, have taken such oaths.”
As I have said, the next issue is one that calls for interpretation of the provisions of the Constitution. The power of interpretation must be lodged somewhere and the custom of the Constitution has lodged it in the judges. If they are to fulfil their functions as judges, that power could hardly be lodged elsewhere. But, justice according to law which any good judge must ensure he dispenses at all times, demands that even when he (the judge) is seen to be free by the enormity of the power conferred on him, he is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or goodness or what colouration a piece of law should take. The judge must always draw his inspiration from consecrated principles. The next question that follows, is, what are these principles Judges, in the exercise of their interpretative jurisdiction, must only interpret the words of a statute or constitutional provision, where they are as clear as crystal, according to their ordinary and grammatical meanings without any colouration. It is true that courts are always enjoined, in the course of interpreting the provisions, to find out the intention of the legislature, but there is no magical wand in this counselling.
The intention of the legislature, or put bluntly, the intention of National Assembly at the Federal level or the State House of Assembly at the State level, is not to be judged by what is in its mind but by its expression of that mind couched in the words of the Statute. If at the end of the interpretative exercise carried out on the provisions of Statute or Constitution, a judex’s personal conviction as to where the justice and rightness of the matter lies is returned, that would make the judiciary lose its credibility, authority and its legitimacy. That will not be healthy for the development of law and its administration. I pause here to apply these principles to the interpretation of Section 180(2) (a) supra. The appellant has argued that as a person first elected as Governor of Anambra State, he took his Oath of Allegiance and Oath of Office on the 17th of March, 2006 and that his four-year term would continue to run from that date. By mathematical calculation, it will end on the 17th March, 2010, it was further argued. The submission was countered by his opponents who submitted that while conceding that he won his election case against Dr. Chris Ngige, the former Governor of Anambra State who was unlawfully sworn in as Governor of that State on the 29th of May, 2003, his four-year term must start to run from the date Dr. Ngige was sworn in. The argument of the respondents here is very tenuous. When the verdict of the Court of Appeal (Enugu Division) declaring the present appellant as the rightful person to have been declared as having won the gubernatorial election of April 2003, was handed down, the effect is that the return of Dr. Chris Ngige as the person who won the election was null and void and of no legal consequence. So, Ngige’s oath taking at that time cannot be a point of reference for calculating the four-year term of the appellant. Ngige was and cannot be a person first elected as Governor under this Constitution; his election having been declared null and void. It was after the judgment of the Court of Appeal on the 16th of March, 2006, and by force of law, that the appellant (Peter Obi) took his Oath of Allegiance and Oath of Office on the 17th of March, 2006. Applying the provisions of Section 180(2)(a) of the Constitution to facts of this case, which are not in dispute, the four-year term of office of Peter Obi, as Governor of Anambra State would start running from the 17th of March, 2006 only to terminate on the 17th of March, 2010. To interpret the provisions of Section 180 (2) (a) otherwise will be to read into that sub-section what the legislators never intended. The duty of a judex is to expound the law and not to expand it.
It was argued that if Section 180 (2)(a) is accorded the interpretation I have given it supra, it would truncate the election timetable in this country. I do not buy that argument. In the first place, there is nothing in our 1999 Constitution which says all elections into political offices in this country at the Federal and State levels, should be held at the same time. If there was a provision to that effect, that would negate the concept of federalism which we have freely chosen to practice. In the second place, a Judge has a standing and abiding duty to do no more than to accord a very clear provision of Section 180(2)(a) of the 1999 Constitution under discussion, their ordinary, natural and grammatical meanings. I hold the strong view that “law making”, in the strict sense of that term, is not the function of the judiciary but that of the legislature. Let there be no incursion by one arm of the government into that of the other. That will be an invidious trespass. Let me point out that no Constitution fashioned out by the people, through their elected representatives for themselves, is ever perfect in the sense that it provides a clear-cut and/or permanent or everlasting solution to all societal problems that may rear their heads from time to time. As society grows or develops, so also must its Constitution, written or unwritten. Our problems as Judges should not and must not be to consider what social or political problems of today require; that is to confuse the task of a Judge with that of a legislator. More often than not, the law, as passed by the legislators, may have produced a result or results which do not accord with the wishes of the people or do not meet the requirements of today. Let that defective law be put right by new legislations but we must not expect the judex, in addition to all his other problems to decide what the law ought to be. In my humble view, he (judex) is far better employed if he puts himself to the much simpler task of deciding what the law is.I only need to add that as at 14th April, 2007 when the 1st respondent (INEC) was conducting gubernatorial election in Anambra State, the seat of the Governor of that State was not vacant. That election was a wasteful and unnecessary exercise. The 1st respondent was aware at that time that the appellant was in court pursuing his legal rights. A body that has respect for rule of law, which INEC ought to be, would have waited for the outcome of the court proceedings; particularly when it was aware of it. 11
In the final analysis, for all I have been saying, which explains the reasons for my decision on the 14th of June, 2007, it is my judgment that this appeal is meritorious. It must be allowed, and I hereby allow the appeal. I set aside the judgments of the two courts below. In their place, I make the following declarations and orders which the justice of this case demands; they are:-
(1)That the office of Governor of Anambra State was not vacant as at 29th May, 2007.
(2)That the tenure of office of the appellant (Peter Obi) as Governor of Anambra State which is for four years certain will not expire until 17th March, 2010 for the reason of the fact that he being a person first elected as Governor under the 1999 Constitution took Oath of Allegiance and Oath of Office on the 17th March, 2006.
(3)It is hereby ordered that the 5th Respondent (Dr. Andy Uba) should vacate the office of the Governor of Anambra State with immediate effect to enable the plaintiff/appellant (Mr. Peter Obi) to exhaust his term of office.
For the avoidance of any doubt, this judgment affects the office of the Governor of Anambra State alone.
There shall be no order as to costs.
SC.123/2007