National Electoral Commission & Ors. V. Chief Sunday Agboh & Anor. (1992)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

The 3rd appellant and 1st respondent contested for the post of Chairman of Obanliku Local Government on the platform of their respective political party – i.e. the Social Democratic Party and the National Republican Convention. At the end of the election, the National Electoral Commission (NEC – 1st appellant) declared the 3rd appellant elected having scored more votes than the 1st respondent. The 1st respondent was dissatisfied with the result of the election. He accordingly filed an ex-parte motion at the Obudu Judicial Division of the High Court of Cross River State in which he prayed the Court for an order:

“1. Restraining the NEC from presenting or parading the 3rd Defendant/Respondent, David Animpuye as having been duly elected as the council Chairman for Obanliku Local Government Area in the November 23rd 1991 Local Government Bye-election held all over Obanliku Local Government Area.

2. Restraining the Cross River State Military Governor from swearing in the 3rd Defendant/Respondent as the Chairman of Obanliku Local Government Area,”

The motion was supported by a 12 paragraph affidavit sworn to by the 1st respondent. The motion came before Binang, J. on 3rd December 1991 who, after hearing the learned counsel for the applicant, granted all the reliefs as prayed.

Shortly after the order of the Court was served on the appellants, they filed a motion before the same Court in which they prayed the Court “for an order discharging the injunction imposed on the applicant by a motion ex-parte dated 3rd of December 1991.” The applicants supported their motion by a 12 paragraph affidavit sworn to by the 3rd applicant and to which was exhibited the summary of the results of the election from the various wards and the handing over notes given to the 3rd appellant by the previous holder of the office of chairman of the council when he took over as Chairman.

The facts relied upon in the affidavit were that the result of the election was published long before the 1st respondent filed his ex-parte application before the Court; that the 3rd appellant was sworn in as Chairman on 3rd December, 1991 that is, on the day the Court, heard the ex-parte motion. The appellants’ contention therefore was that the acts sought to be restrained had been completed; and that the Court had no original jurisdiction in the matter by virtue of Sections 70 and 75 of the Local Government (Basic Constitutional Provisions) Decree No.15 of 1989.

The court, after hearing counsel for the parties, ruled that it had jurisdiction in the matter. The learned trial Judge said, inter alia, as follows on pages 32-34 of the record;

“I have carefully listened to the argument put forward by both learned counsel. I have considered the legal authorities quoted. Before I go to the merit of this motion, I wish to observe that the powers of the Court to question how acts, deeds or omissions of any legally established body or bodies are carried out remains unfettered by any enactment. Although certain Decrees are designed to restrain the Courts from questioning why certain acts are done, no law or enactment, State or National can restrain the Court from enquiring how such powers are exercised. The 1979 Constitution of the country is the supreme law. Sections 236 and 237 of the 1979 Constitution gives the Courts this power to the exclusion of any other law or enactment

In the absence of any constituted Election Tribunal, the courts can fall back on the special powers conferred on it (sic) by section 236 of the 1979 Constitution and entertain the suit. This was exactly what happened on the 3rd of December 1991 when the plaintiff/respondent came to court with an ex-parte motion for an order of injunction.”

The Court then held that the motion lacked merit. It accordingly dismissed it. The appellants were dissatisfied with the court’s ruling and filed one ground of appeal against it. The ground of appeal (without the particulars) read thus:

“The learned trial Judge erred in law when he ruled that the lower Court had jurisdiction to grant ancilliary reliefs by way of injunction, there not being in existence at the material time, a Local Government Elections Tribunal to hear and determine the substantive suit.”

The appellants filed their brief on 9th January 1992 and relied on it at the hearing in this Court. The respondent did not file any brief. But they filed “a notice of intention to contend that the judgment should be affirmed on grounds other than those relied on by the Court below.” The grounds set out in the notice are that the appellants failed to exhibit with the affidavit accompanying the motion, the order sought to be discharged and that the order to discharge, if granted, would be incapable of enforcement and therefore in vain as the particulars of the order sought to be discharged (like the number of the suit in which it was made and by which Court) were not supplied by the applicant. The respondents and their counsel did not show up at the hearing in this Court.

The appellants formulated the following two issues for determination in the appeal:

“1. Whether the lower Court had jurisdiction to determine the question whether or not the 3rd appellant had been validly elected Chairman of Obanliku Local Government Council.