Rt. Hon. Goodluck Nana Opiah V. Independent National Electoral Commission & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of F.A. Olubanjo, J. delivered on 26/1/2012 in the Owerri Judicial Division of the Federal High Court.

On the 11th of May 2011, the Appellant as plaintiff before the lower court filed an originating summons whereby he claimed against the 1st Respondent for declaratory and injunctive orders from the court. The 2nd Respondent (herein) was later joined in the suit as 2nd Defendant. By his Amended originating summons filed on 6/6/2011, the Appellant as plaintiff as against the Respondents asked the court to determine the question:

“Whether having regard to Section 68(1)(c) of the Electoral Act, 2010 as amended, the declaration made by the Returning Officer for Ohaji/Egbema State Constituency that the plaintiff scored the highest number of votes at the Imo State House of Assembly election for the said State Constituency held on 26th April 2011 and thereby returned him as the winner and issued him with Form EC8E(i), it is legal and lawful for the defendant to purport to organize or to hold a “supplementary election” or any other election by whatever name so-called for the same state constituency to elect another person as a member of the Imo State House of Assembly on 6th May 2011.”

The Appellant as plaintiff in the Amended Originating Summons claimed the following reliefs:

“1. A declaration that by virtue of Section 68(1)(c) of the Electoral Act 2010, as amended, the Returning Officer for Ohaji/Egbema State Constituency having declared the plaintiff scored the majority of lawful votes at State House of Assembly election for Ohaji/Egbema State Constituency in Imo State held on 26th April 2010 and thereby returned him as the winner and issued him with Form EC8E(i), it is illegal and unlawful for the 1st defendant to purport to organize or to hold a supplementary election” or any other election by whatever name so-called for the same State Constituency on 6th May 2011 to elect another person or the 2nd defendant as a member for the Imo State House of Assembly.

2. A declaration that the 1st defendant has no power under the law to issue a certificate of Return to I any person including the 2nd defendant other than to the plaintiff consequent upon the return of the plaintiff at the Imo State House of Assembly election held on 26th April, 2011 for the said Ohaji/Egbema State Constituency.
3. An ORDER OF MANDATORY INJUNCTION compelling the 1st defendant to issue the plaintiff with a certificate of Return, the plaintiff having been duly returned and elected at the Imo House of Assembly election of Ohaji/Egbema State Constituency of Imo State held on 26th April 2011.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st defendant from in any manner however or whatsoever, issuing any certificate of Return to any other person including the 2nd defendant consequent upon the holding of any purported “supplementary election” or any other House of Assembly election whatsoever for the said Ohaji/Egbema State Constituency purportedly held on 6th May 2011.”

The Appellant’s originating summons in the court below was supported by a 16 paragraph affidavit sworn to by one Mike Onyekachi, Esq, a legal practitioner in the law firm of Livy Uzoukwu, SAN & Co of counsel to the plaintiff and another 16 paragraph Further Affidavit in support of the originating summons by the same Mike Onyekachi, Esq filed on 7/7/2011.

The parties exchanged processes and Written Addresses, but in particular the 2nd respondent filed a Notice of Preliminary Objection dated 13/6/2011 on 16/6/2011. Therein, the 2nd respondent prayed the court below to strike out the Plaintiffs/Appellant suit for incompetence and lack of requisite jurisdiction to hear and determine the Plaintiffs/Appellant suit being an election dispute.

The grounds of objection of the Notice of Preliminary Objection are as follows:

“1. The plaintiffs suit is an election dispute, which the Imo State House of Assembly Election Tribunal has Exclusive jurisdiction, pursuant to Section 285(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), to hear and determine.

2. That the plaintiff can only seek redress in respect of an election dispute or matter, by way of ‘petition proceedings’ as stated in Section 68(1) of the Electoral Act, 2010 (as amended)
3. Pursuant to the Supreme Court decision in Ohakim vs. Agbaso (2011) All, FWLR (Pt. 553) 1806 at 1845.

In a considered Ruling after consideration of Written Addresses delivered on 26/1/2012, the learned trial Judge held that the 2nd defendant’s Notice of Preliminary Objection dated 13/6/2011 succeeds and accordingly struck out the Amended Originating Summons filed on 6th June 2011.

In so doing, the learned trial Judge held inter alia at page 259 of the record that:

“The plaintiff, by this Amended Originating Summons, wants this court to make pronouncements regarding the elections of 26th of April 2011 and the supplementary elections of 6th May 2011 and the status of the persons who scored the highest number of votes in those two elections. This to my mind goes beyond merely interpreting Section 68(1)(c) of the Electoral Act 2010 (as amended) in the light of the plaintiff’s Exhibit ‘A’ i.e. Form EC8E(i).

It goes beyond merely making declaratory or injunctive orders pursuant to the provisions of Section 75(2) of the Electoral Act (supra) as argued by the Learned Senior Advocate.”