Njaba Local Government Council V. Uchendu Vitalis Chigozie & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of A. O. Ukachukwu J. of the Imo State High Court delivered on 18/3/08. The facts that led to this appeal are as follows:

The Plaintiff now (1st Respondent) on appeal commenced a suit dated 6/8/07 by originating summons at the High Court posing the following questions and asking for the following reliefs:

1. Whether by the interpretations of the provisions of Imo State Electoral Law, No. 5 of 2001 as amended and the Imo State Local Government Administration Law, No. 15 of 2000, the Plaintiff is entitled to be accorded the due and full recognition as the democratically elected councilor for Achara Ward of the 3rd Defendant, Njaba Local Government with effect from the date of his return including the taking and subscribing to the oath of allegiance and oath of office.
2. Whether the Plaintiff’s 3-year tenure shall commence immediately upon being sworn-in, in the face of his return as the duly elected councilor for Achara Ward, Njaba Local Government Area of Imo State on the 5th of April, 2007 and the 3rd Defendant’s acknowledgement of same in her Notice of Emergency Meeting of 10/4/2007.
3. Whether by the issuance of a Certificate of Return at election by the 1st Defendant, ISIEC, to the Plaintiff on the 5th of April, 2007, following the various orders of the election Tribunals for a fresh and the subsequent return of the Plaintiff as duly elected, the office of councilor Achara Ward has become vacant as at 13th of April, 2007, when the Plaintiff as the elected councilor of the ward has not been sworn in and has not served his term as statutorily stipulated.
4. Whether by the present state of the law, the 1st Defendant that issued a Certificate of Return on the 5th of April, 2007 to the Plaintiff, can competently and validly conduct another Councillorship election for the same Achara Ward in Njaba Local Government Area in 2007 or any other date when the tenure of the Plaintiff as not commenced or expired.

i. Declaration that in view of the Return of the Plaintiff as the Councillor Achara Ward on 5/4/2007, he is entitled to be accorded full recognition by the Defendants in line with the demands of the office including his being sworn in and receiving all entitlements appurtenant to his office from the date of his Return.

ii. Declaration that by the provisions of the Imo State Local Government Administration Law, No. 15 of 2000, the Plaintiff is entitled to hold the office of councilor for Achara Ward, Njaba Local Government for 3 years commencing from the date of his swearing-in.

iii. Declaration that the 1st Defendant is incompetent to organize or conduct another election over the Councillorship seat of Achara Ward in Njaba Local Government Area in 2007 or any other date before the expiration of the 3 years tenure of the Plaintiff as the democratically elected councilor of Achara Ward.

iv. Declaration that there exists no vacancy in the office of Councillor for Achara Ward, of the 3rd Defendant until the Plaintiff has been accorded his full status and he has served his full tenure of 3 years as the councilor of the Ward commencing from his swearing-in date.

v. An injunction restraining the 1st Defendant by itself, its officers, agents, servants or any person acting for them or through them from organizing, conducting or carrying out any election in 2007 for the office of the Councillor of Achara Ward or on any date before the expiration of the Plaintiff’s tenure of 3 years upon his swearing-in.

vi. An injunction restraining the defendants by themselves, their servants, agents, officers or by any person acting for them or through them from electing, regarding, recognizing or dealing with any other person other than the Plaintiff as the duly elected Councillor of Achara Ward, Njaba Local Government Area until the expiration of the 3 years tenure of the Plaintiff.

vii. An order compelling the Defendants to accord the Plaintiff with his full recognition, entitlements and interest as the democratically elected Councillor of Achara Ward Njaba Local Government Area of Imo State.

viii. An order compelling the 3rd Defendant to allow the Plaintiff subscribe to the Oath of Allegiance and Oath of Office and accord him will all the benefits as a Councillor for the 3 years of his tenure in office in line with law.

Prior to the inception of the suit, the followings were the sequence of events:

Local Government Council elections into the legislative councils in Imo State were held on 27th March, 2004. The 1st Respondent and one Ukajim Hipolytus contested the election in Njaba Local Government Council for the office of Councillor for Achara Ward. Ukajim Hipolytus was returned as duly elected. The 1st Respondent challenged the return at the Imo State Local Government Election Tribunal established by Law No. 5 of 2001. The Imo State Local Government Election Tribunal nullified the election for Achara Ward and ordered fresh election.

Fresh election was conducted in Achara Ward on 29th October, 2005 and Ukajim Hipolytus was returned as elected. Again, the 1st Respondent sued Ukajim Hipolytus and another at the Election Tribunal challenging the return of Ukajim Hipolytus. The petition was heard and on 27th July, 2006, the Tribunal gave its judgment and returned the 1st Respondent as elected.