Obih V Chief S. O. Mbakwe (1984) LLJR-SC

Obih V Chief S. O. Mbakwe (1984)

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The 1st respondent was the incumbentGovernor of Imo State. He stood for re-election to the office on 13th August,1983 and won. The petitioner, who was one of the defeated candidates, filed anelection petition in the High Court of Imo State on 26th August 1983 againstthe 1st respondent and 2 others complaining against the return of the 1strespondent. Both the High Court and the Federal Court of Appeal dismissed hispetition.

At the hearing of his appeal before us on 26th October 1983, apreliminary objection was taken on behalf of the 1st respondent that being theincumbent Governor of Imo State at the material time, the 1st respondent wasimmuned from legal proceedings by section 267 of the Constitution, which provided:

PAGE| 2 ‘267. (1) Notwithstandinganything to the contrary in this Constitution, but subject to subsection (2) ofthis section- (a) no civil or criminal proceedingsshall be instituted or continued against a person to whom this section appliesduring his period of office; (b) a person to whom this sectionapplies shall not be arrested or imprisoned during that period either inpursuance of the process of any court or otherwise, and (c) no process of any court requiringor compelling the appearance of such a person shall be applied for or issued: Provided that in ascertaining whetherany period of limitation has expired for the purposes of any proceedingsagainst a person to whom this section applies no account shall be taken of hisperiod of office.

(2) The provisions of subsection (1)of this section shall not apply to civil proceedings against a person to whomthis section applies in his official capacity or to civil or criminalproceedings in which such a person is only a nominal party. (3) This section applies to a personholding the office of President or Vice-President, Governor or Deputy Governor;and the reference in this section to ‘period of office’ is a reference to theperiod during which the person holding such office is required to perform thefunctions of the office.’ We over-ruled the preliminaryobjection and heard the appeal on the merits.

We reserved our reasons for doingso to be given today. The only issue for determination waswhether an election petition was ‘civil proceedings’ within thepurview of section 267 and other related sections of the Constitution. ChiefWilliams for the 1st respondent contended in the affirmative while Dr. Odje forthe appellant in reply submitted that an election petition was not ‘civilproceedings’ and was not covered by the immunity accorded to a Governor bysection 267. In the course of their submissions,learned counsel referred us to Onitiri v. Benson (1960) 5 FSC 150 at 153wherein the Federal Supreme Court in considering the jurisdiction of the HighCourt of a region to adjudicate on election petitions under the Nigeria(Constitution) Orders in Council 1954 to 1959 stated that the jurisdiction ofany tribunal to deal with such matters as election petitions was a jurisdictionof a very special nature which did not carry with it the ordinary incidents ofappeal in an ordinary civil case.

In Oyekan v. Akinjide (1965) NMLR 381at 383 this court expressed the view that under the 1963 RepublicanConstitution, the proceedings on an election petition were special proceedingsfor which special provisions were made under that Constitution. In the same vein as in the formerConstitutions, the 1979 Constitution made special provisions for thejurisdictions of the courts to hear and determine election petitions at thefirst instance and on appeal. Section 236 of the Constitution conferred on theHigh Court of a state, unlimited jurisdiction to hear and determine any civilor criminal proceedings subject to the provisions of the Constitution. PAGE| 3 Section 237 then conferredjurisdiction on the competent High Court to deal with election petitions. Thesame distinction was manifested in the appellate jurisdictions of the FederalCourt of Appeal and of this court. While appeals as of right were covered bysection 220(1) (a) to (e) and section 213(2)(a) to (d) in the Federal Court ofAppeal and in this court respectively, section 220(1) (f) and section 213(2)(e)conferred the right of appeal to the Federal Court of Appeal and to this courtin respect of election petitions. From the provisions of theConstitution referred to above, I am of the opinion that election petitionswere special proceedings completely divorced and separated from civilproceedings within the context of section 267 of the Constitution andconsequently a Governor was not immuned from legal proceedings against him inrespect of an election petition. SOWEMIMO, CJN.: I have had the opportunity of reading in draft thejudgment of my brother Bello, JSC and I agree with him.

The question of immunity was raisedon the basis that the first respondent had since 1st October, 1983 been swornin as the new Governor. The swearing in was not done because he had succeededin the election for the post. He was only an incumbent Governor until asuccessor was appointed. In the circumstances therefore, the point raisedhaving been fully discussed by my brother Bello, JSC, does not warrant anyfurther consideration. The point is therefore unavailable to debar this courtfrom sending this election petition for retrial on the merits.  

IRIKEFE, JSC.: The preliminary objection raised in this matter wasoverruled by us on 26th October, 1983. Thereafter, the appeal itself wasfinally disposed of. The issues canvassed in regard to the said preliminaryobjection are now matters already overtaken by events and as such furtherreasons are no longer called for. OBASEKI, JSC.: At the hearing of this appeal on the 26th day of October,1983, Chief F.R.A. Williams, SAN, counsel for the 1st respondent raised thepreliminary objection notice of which he had given in writing, to thejurisdiction of the Supreme Court to grant the relief claimed in the notice ofappeal. The objection in full reads:

‘The petition which is thesubject matter of the appeal and the proceedings in respect of the same wereunconstitutionally commenced or continued against the 1st respondent.Accordingly, the relief claimed in the notice of appeal is one which theSupreme Court has no jurisdiction to grant.’ The grounds on which the objection isfounded are threefold and are as follows: ‘1. The proceedings in respectof the aforesaid petition were instituted and continued against the 1strespondent in contravention of the provisions of section 267(1)(a) of theConstitution of the Federal Republic of Nigeria.

PAGE| 4 2. The said petition was presented to the court and served on the 1strespondent in contravention of the provisions of section 267(1)(c) of the Constitutionof the Federal Republic of Nigeria. 3. Further and in the alternative,the 1st respondent having been declared elected and sworn in as Governor of ImoState for a second term of office (1983 – 1987) he is entitled to theimmunities from legal process, proceedings conferred on the holder ofsuch office under section 267(1) of the Constitution of the Federal Republic ofNigeria.’ The 1st respondent was electedGovernor of Imo State in 1979 for a period of 4 years from 1979 October 1 to1983 September 30th. Pursuant to the provisions of the Constitution of theFederal Republic of Nigeria 1979 hereinafter referred to as the 1979Constitution, the 1st respondent was nominated by his party the NPP to contestthe election to the office of Governor of Imo State for the period October 1,1983 to September 30, 1987.

The petitioner/appellant wasnominated by his party the NPN to contest the said election against the 1strespondent and other candidates. The election was held on 13th August,1983 and the 3rd respondent declared the 1st respondent duly elected orreturned. The petitioner was dissatisfied withthe conduct of the election and in exercise of the right conferred on him underthe 1979 Constitution and the Electoral Act, 1982, he presented a petition tothe High Court of Imo State praying that ‘it may be determined that theelection is void and that fresh election be ordered.’ The petition was filed on the 25thday of August, 1983.

A similar objection was raised before the High Court bymotion filed on the 14th day of September, 1983. As the petition was not heard beforethe 30 days time bar placed on the conclusion of the hearing and determinationof election petitions by section 140(2) of the Electoral Act 1982 expired, theHigh Court of Imo State on the 17th day of September, 1983 declared thepetition null and void and dismissed it. That section together with section129(3) of the Electoral Act 1982 were declared unconstitutional, null and voidby this court on the 30th day of September, 1983 and reasons for the judgmentgiven on the 25th day of November, 1983 in the case of Paul I. Unongo v.Aper Aku & Ors. SC.95/1983. Before then the appellant hadunsuccessfully appealed to the Federal Court of Appeal. Against the dismissalof his appeal by the Federal Court of Appeal, the petitioner/appellant hasbrought this appeal. The relief the appellant sought from the Supreme Court was ‘to reverse and set aside thedecision of the Federal Court of Appeal and to remit the case to the High Courtfor continuation of hearing by the Election Court.’

PAGE| 5 After hearing counsel on theobjection, I overruled and dismissed the objection reserving my reasons tilltoday. We then proceeded to hear the appeal. As the appeal had substantialmerit in it, we allowed the appeal and granted the relief sought. I now proceed to give my reasons foroverruling and dismissing the preliminary objection. Section 267(1), (2) and(3) of the Constitution on which the objection is founded reads:- ‘(1) Notwithstanding anything tothe contrary in this Constitution, but subject to subsection (2) of thissection-  (a) no civil or criminal proceedings shall be institutedor continued against a person to whom this section applies during the period ofhis office;

(b) a person to whom this sectionapplies shall not be arrested or imprisoned during that period in pursuance ofthe process of any court or otherwise, and (c) no process of any court requiringor compelling the appearance of such a person shall be applied for or issued. Provided that in ascertaining whetherany period of limitation has expired for the purposes of any proceedingsagainst a person to whom this section applies no account shall be taken of hisperiod of office. (2) The provisions of subsection (1)of this section shall not apply to civil proceedings against a person to whomthis section applies in his official capacity or to civil or criminalproceedings in which such a person is only a nominal party.

(3) This section applies to a personholding the office of President or Vice-President, Governor or Deputy Governorand the reference in this section to ‘period of office’ is a reference to the periodduring which the person holding such office is required to perform thefunctions of the office.’ Chief F.R.A. Williams, SAN, submitted that election petition is in the nature of acivil proceeding, the institution, service, hearing and determination of whichare regulated and governed by the High Court Civil Procedure Rules and theprovisions of the Electoral Act, 1982.

Being a civil proceeding, itsinstitution against the 1st respondent is barred by section 267(1)(a) of the1979 Constitution. Counsel further submitted that if a person holding theoffice of Governor contests and loses, he is entitled to institute and presentan election petition even though he still holds the office of Governor but ifhe is declared duly elected or returned, an election petition cannot beinstituted against him. Dr. Mudiaga Odje, SAN, counsel forthe respondent disagreed with and rejected the submission of Chief Williams. Inreply, he submitted that the immunities granted an incumbent Governor bysection 267(1)(a) of the 1979 Constitution does not extend to election petitioncases which challenge his right to hold and stay in that office for the periodin respect of which the election was held.

PAGE| 6 Ex facie the submission of Chief Williams appears formidable butconsidered in the light of the fact that the office of Governor is an electiveoffice and that where an election or return is questioned in the competent HighCourt, the person declared duly elected or returned cannot take office untilthe completion of the hearing and determination of the question whether anyperson has been validly elected to the office, the strength of the submissiondisappears. Chapter II of the 1979 Constitutionparticularly section 14(2)(a) offers a proper guide to the properinterpretation of the Constitution.

Section 14(1) and (2) (a), (b) and (c)reads: ‘(1) The Federal Republic ofNigeria shall be a state based on the principle of democracy and socialjustice. (2) It is hereby, accordingly,declared that (a) sovereignty belongs to thepeople of Nigeria from whom government through this Constitution derives allits powers and authority; (b) the security and welfare of thepeople shall be the primary purpose of government; (c) the participation by the peoplein their government shall be ensured in accordance with the provisions of thisConstitution. (Italics supplied). The office of a Governor of a stateis an elective office which, in this case, can only be held by any personelected in accordance with the provision of section 164(7) of the Constitution.The election or return can be questioned in the High Court of the state towhich section 237(1) of the 1979 Constitution gave the special jurisdiction.The question to be enquired into by the court is clearly expressed in theprovision of the section which reads: ‘Without prejudice to thegenerality of the provisions of section 236 of this Constitution, the competentHigh Court shall, to the exclusion of any other court, have originaljurisdiction to hear and determine any question whether any person has beenvalidly elected to any office or to the membership of any legislative house, orwhether the term of office of any person has ceased or the seat of a personin a legislative house has become vacant.’ It can therefore be seen that thecrucial test of the qualification to hold the office is the validity of theelection.

Where the question is raised, until its determination by thecompetent High Court, no person can validly hold the office. The election canonly be questioned by petition to the High Court. See section 119 of theElectoral Act 1982. Section 121(1) and (2)(a) and (b) of the Electoral Actspecifies the persons entitled to present election petition and those whoshould be respondents. The section reads: ‘A person shall not be entitledto present an election petition under this Act unless – (a) he is a person claiming to havehad a right to be returned at the election; or (b) he is a person alleging himselfto have been a candidate at the election; or PAGE| 7 (c) his name is on the register ofvoters for that constituency. 2. In any petition, the respondent to such petition shall be- (a) the successful candidate; and (b) ………………………; or (c) the Chief Federal ElectoralOfficer of the state where the election relates to the election of the Governoror Deputy Governor of that state; or (d) …………………………………………… and where apetition complains of the conduct of a returning officer, he shall for allpurposes be deemed to be a respondent.’ It is clear from this section 121(2)of the Electoral Act, 1983 that the 1st respondent being the successfulcandidate is not the only statutory respondent. The Chief Electoral Officer andthe Returning Officer are also statutory respondents.

As he is not the onlyparty to the election petition, if his name is struck out of the petitionenquiry, hearing of the question can still proceed but as his right to hold theoffice is questioned, will it not offend against the rules of natural justiceto dispose of the question without giving him an opportunity of being heard? Ithink it will. The effect of the submission of Chief Williams being upheld isthat section 121(2)(a) will be held to be in conflict with section 267(1)(a) ofthe Constitution and therefore void in so far as incumbent Governors whosere-elections are questioned are concerned. I am of the firm opinion that it isnot the intention of the 1979 Constitution to deprive an incumbent Governor ofthe right of being heard in matters affecting his right to continue in officefor a second term.

The attitude of this court towardsthe proper interpretation of the 1979 Constitution was set in properperspective in the case of Rabiu v. Kano State (1980) 8 – 11 S.C 130 bySir Udo Udoma at pages 148 to 149 in the following words: ‘The function of theConstitution is to establish a framework and principles of government, broadand general in terms intended to apply to the varying conditions which thedevelopment of our several communities must involve, ours being a plural,dynamic society, and therefore, mere technical rules of interpretation ofstatutes are to some extent inadmissible in a way as to defeat theprinciples of government enshrined in the Constitution.

And where the question is whether theConstitution has used an expression in the wider or in the narrower sense, inmy view, this court should whenever possible, and in response to the demands ofjustice, lean to the broader interpretation, unless, there is something in thetext or in the rest of the Constitution to indicate that the narrowerinterpretation will best carry out the objects and purposes of theConstitution.’ (Italics supplied) I would also bring to mind theprinciples of interpretation which should guide the courts in theinterpretation of our 1979 Constitution which I set out in my judgment in thecase of Attorney General of Bendel State v. Attorney General of Federationand 22 others (1982) 3 NCLR 1.

PAGE| 8 I would refer in particular to page13 of the above report which reads: ‘In the interpretation andconstruction of our 1979 Constitution, I must bear the following principles ofconstruction in mind: 1. …………………………………………………… 2. A construction nullifying aspecific clause will not be given to the Constitution unless absolutelyrequired by the context. 3. A constitutional power cannot beused by way of a condition to attain unconstitutional result. 4. …………………………………………………… 5. The Constitution of the FederalRepublic of Nigeria is an organic scheme of government to be dealt with as anentirety; a particular provision cannot be dissevered (sic) from the rest ofthe Constitution. 6. …………………………………………………… 7. …………………………………………………… 8. …………………………………………………… 9. …………………………………………………… 10. …………………………………………………… 11. The principles upon which theConstitution was established rather than the direct operation or literalmeaning of the words used, measure the purpose and scope of the provision. 12. Words of the Constitution aretherefore not to be read within stultifying narrowness.’ It is the declared aim and purpose ofthe 1979 Constitution that every state in the Federation shall have a Governoras Chief Executive who is democratically elected. It is also the declaredpurpose of the Constitution that the validity of the election to the officeshall be clear and transparent to all and if questioned the validity is to befinally determined by the competent High Court. Section 1(2) of the 1979Constitution forbids the governance of the Federal Republic of Nigeria or anystate thereof by any person not validly elected.

It reads: ‘The Federal Republic of Nigeriashall not be governed nor shall any person or group of persons take control ofthe government of Nigeria or any part thereof except in accordance with theprovisions of this Constitution.’ PAGE| 9 The scope of the provisions ofsection 267(1)(a) of the Constitution is, in my view, measured by theprinciples upon which the 1979 Constitution was established. This scope isparticularly reflected in section 1(2) of the 1979 Constitution. If no personis allowed to be a Governor of a state except in accordance with the provisionsof this 1979 Constitution, the 1st respondent cannot bar the competent HighCourt from inquiring or hearing and determining the question whether he hasbeen validly elected to the office of Governor of Imo State or not by claimingimmunity under the provisions of section 267(1)(a) and (c) of the Constitution.

I will not engage myself in theexercise of considering the nature of the proceeding initiated by an electionpetition, i.e. whether it is a civil proceeding or not. I am of the firm viewthat it is a civil proceeding. It is not a criminal proceeding. Proceedingsbefore courts of law fall broadly into two classes viz: (1) civil proceedingsand (2) criminal proceedings. Civil stands for the opposite of criminal, ofecclesiastical, of military or of political (see Mozley and Whiteley’s LawDictionary).  The section of the 1979 Constitution that hasto be satisfied by the petitioner to succeed is section 164(7). Section 164(7)of the 1979 Constitution reads: ‘A candidate for an election tothe office of Governor of a state shall be deemed to have been duly electedwhere there being 2 or more candidates- (a)      he has the highest number of votes castat the election; and (b)      he has not less than one-quarter of allvotes cast in each of at least two-thirds of all the Local Government Areas inthe state.’

It was for the above reasons that Ioverrule and dismissed the preliminary objection raised by counsel for the 1strespondent on the 26th day of October, 1983. ESO, JSC

Other Citation: (1984) LCN/2239(SC)

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