Oju Local Government & Ors V. Independent National Electoral Commission (2007)

LawGlobal-Hub Lead Judgment Report

ABOKI, J.C.A.

This is an appeal against the decision of Hon. Justice B.F.M. Nyako of the Federal High Court, Abuja delivered on the 22nd day of March, 2006 dismissing the claim of the plaintiffs/appellants.

Leave was granted the plaintiffs on the 9th June, 2005 to amend their originating summons. Their claim is for an interpretation of the provisions of section 91 and 112 of the 1999 Constitution of the Federal Republic of Nigeria for the determination of the following questions:-

“1. Whether upon the coming into effect of the Constitution of the Federal Republic of Nigeria, 1999, the Benue State House of Assembly, constituting of less than three or four times the number of seats the State has in the House of Representatives is properly constituted or composed as envisaged by sections 91 and 112 of the said Constitution.”

2. Whether the defendant properly, fairly and legally excluded the restoration of the suppressed State Constituencies in Oju Local Government Area, Benue State from the list of suppressed State Constituencies it forwarded to the National Assembly for approval for restoration having regards to the provisions of the section 112 of 1999 Constitution of the Federal Republic of Nigeria.

And in consideration of the following reliefs:-

1. A declaration that the Benue State House of Assembly is not properly constituted or composed as required by sections 91 and 112 of the 1999 Constitution of the Federal Republic of Nigeria.
2. A declaration that having regard to the provision of sections 91 and 112 of the 1999 Constitution of the Federal Republic of the defendant acted improperly and unfairly in refusing or failing to include the suppressed Uwokwu State Constituency in Oju Local Government Area among the names of the suppressed State Constituencies it forwarded to the National Assembly for approval for restoration.
3. An order directing the defendant to comply with the provisions of sections 91 and 112 of the Constitution of the Federal Republic of Nigeria 1999 by restoring the suppressed Uwokwu State Constituency in Oju Local Government Area, Benue State to bring the composition of the Constitution.
4. Order of court directing or compelling the defendants to restore the suppressed Uwokwu State Constituency of Oju Local Government Area of Benue State to bring the number of the State Constituencies in Oju Local Government Area to two (2) as existed previously from 1979 elections conducted by the National Electoral Commission under the 1999 Constitution of Nigeria”

The plaintiffs filed five supporting affidavits with four (4) exhibits, among which is the population figure of Benue State obtained from the National Population Commission, exhibit 2. The respondent filed only one counter-affidavit of eight paragraphs with one exhibit, exhibit INEC 1, in response to the first supporting affidavit. There was no counter-affidavit filed in response to any of the other four (4) supporting affidavits.

At the hearing, counsel to the respondent submitted that the combine effect of sections 91 and 112 of the Constitution of Nigeria 1999 allows the respondent a discretion as to which of the two (2) options – x 3 times or x 4 times the number of Federal Constituencies in a State it should adopt. The respondent adopted the x 3 times option in restoring the suppressed State Constituencies and in making proposal to the National Assembly under section 115 of 1999 Constitution.

The learned trial Judge dismissed the plaintiffs’ case on the sole ground that they failed to show any good reason why the discretion of the respondent should be interfered with.

At the hearing of the appeal on 16th October, 2006, learned counsel for the appellants adopted the brief of argument filed on 22nd June, 2006 and the reply brief filed on 1st August, 2006.

Learned counsel for the appellants told the court that five issues have been settled from the five grounds of appeal presented. He maintained that all the parties agreed that population is relevant in this matter. He said that additional population of Benue State is disclosed in exhibit 2 at page 13 of the record of appeal. He maintained that the respondent has challenged exhibit 2 therefore it must be prepared to produce its population figures, which it has not done, because it will be adverse to its case. Learned counsel for the appellant urged the court to make the necessary presumption under section 149 of the Evidence Act.

Learned counsel submitted that the contentions of the respondent that exhibit 2 was not certified pursuant to section 119 of the Evidence Act is pure technicality. He referred the court to the cases of: International Carpet Industries (Nig.) Ltd. v. Savanah Bank (Nig.) Plc. (2006) All FWLR (Pt. 326) page 108 at 148; Adebayo v. Okonkwo (2001) FWLR (Pt.75) page 465; (2002) 8 NWLR (Pt. 768) 1.

Learned counsel for the appellant referred to the submission of the respondent on sections 114-117 of the Constitution of Nigeria 1999 and submitted that the directive principles of State Policies are meant to be obeyed.

Learned counsel for the appellants maintained that the appellants have shown that there are three tribes, Tiv, Idoma and Igede in Benue State and that they (Igede) are the largest tribe after Tiv people. He said that the Ushongo whose suppressed State Constituency was restored by the court are from the Tiv tribe. Learned counsel referred the court to the case of A.-G., Ondo State v. A.-G., Federation (2002) FWLR (Pt.111) page 1972 at 2142-2144, (2002) 9 NWLR (Pt. 772) 222.

Learned counsel argued that the contention of the respondent at page 141 of the record of appeal which suggested that the decision of the lower court in the Ushongo case was a consent judgment is not correct and that assuming it is, the respondent has not shown why it should consent to that judgment and refuse to do same in this case. Learned counsel referred the court to section 151 of the Evidence Act as well as paragraph 4(a) of the respondent’s brief or argument and submitted that the appellants’ case is not a demand for creation of a new State Constituency. Learned counsel maintained that the appellants have made a case so that people of Oju Local Government Area can be properly represented and share from the wealth of the Nation.