Rt. Hon. Michael Balonwu & Ors. V. Governor of Anambra State & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO O. OMAGE, J.C.A.

This is an appeal from the decision of C. O. Nweke Judge of the Anambra State High Court delivered on 17th September 2007 at Awka in the Anambra State of Nigeria. The trial judge in a considered judgment dismissed the appeal which was commenced by the plaintiff by originating summons. The Plaintiff was dissatisfied with the decision of the court below. He has filed this appeal.

In the suit, the plaintiff seeks the following declarations:

“1. That upon the interpretation of Section 105(1) and (3) of the 1999, Nigerian Constitution, the four year terms of the plaintiff commenced upon the proclamation of the holding of first session of the House of Assembly of the State by the person elected as Governor of the State who is His Excellency Mr. Peter Obi on the 20th day of March 2006.

2. A declaration that in keeping with Section 105 (1) and (3) of the Constitution of Nigeria 1999, the first session of Anambra State House of Assembly after the said proclamation by the elected Governor of Anambra State who is Mr. Peter Obi took place on 21st March 2006, and shall end and be dissolved by the Governor of Anambra State on 20/3/2010; after the expiration of four years.
3. A declaration that the proclamation that the 1st session of Anambra State by Dr. Ngige and Dr. Andy Uba who are not elected governors of Anambra State is unconstitutional ultra vires null and void.
4. A declaration that the only persons who shall sit as Honourable members of the Anambra State House of Assembly shall be the Honourable members of the Anambra State House of Assembly duly elected, who upon the proclamation for the holding of the first session of the House of Assembly of the State were entitled to and indeed participated in the first session of Anambra State House of Assembly which took place on 21st March 2006.
5. An order that the four years tenure of the plaintiffs at Anambra State House of Assembly commenced upon the proclamation for the holding of the first session of the House of Assembly of the State by the person elected as Governor of, the State who is His Excellency Mr. Peter Obi on the 20th day of 2006, and in accordance with Section 105(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 the first session of the Third House of Assembly of Anambra State commenced after the said proclamation on the 21st day of March 2006 and their tenure shall terminate on the 20th day of March 2010.
6. An order that the only persons who shall sit as Honourable members of Anambra State House of Assembly shall be persons duly elected, who upon the said proclamation for the holding of the first session of the House of Assembly were entitled to and indeed participated in the first session of the Anambra State House of Assembly which took place on 21st March 2006, being the plaintiff.
7. An order that the defendant shall direct the Anambra State Police Commissioner to ensure that the plaintiff shall continue unabated with their functions as honourable members of Anambra State house of Assembly until 20th March 2010.
8. An order of injunction restraining the defendant from issuing a proclamation for the holding of first session of Anambra State House of Assembly with respect to those persons purportedly elected as members of the House of Assembly on 14th April 2007.
9. An order of injunction restraining those persons who are presently occupying Anambra State House of Assembly who purport to be elected on the 14th April 2007 their servant, agent and otherwise to vacate the premises of Anambra State House of Assembly until after the 20th March 20I0 when the tenure of the plaintiffs shall terminate.”

The defendants in the court below are the current members sitting in the House of Assembly of Anambra State. They applied to be joined and were joined by order of court as the 2nd-30th defendants. The people who contested election in the 14th April 2007 election who did not succeed at the election also sought to be joined as defendants in the suit, and were joined as the 31st-34th defendants. Their only claim to be so joined is that they took part in the 14th April 2007 election and they lost. They are described thus in the suit “For themselves and as representing other candidates who contested 14th April 2007 election for all the 30 seats of Anambra State House of Assembly for the session covering June 2007 to June 2011 excluding those candidates who are not in support”. There is no such thing as session June 2007- June 2011.

In their appeal the appellants who sued the Governor as the 1st defendant and the latter did not file any process in the court below, and did not file any brief for the respondent. The immunity of Governor being acknowledged. The appellants filed six grounds of appeal against the judgment of the lower court which dismissed the entire appeal. The appellants formulated four issues for determination of the appeal. The issues need to be recorded and identified at the onset –

(1) Was the lower court right by not giving Section 105(3) of the Constitution of the Federal Republic of Nigeria 1999 its ordinary meaning when interpreting same despite the fact that the court decided that His Excellency Mr. Peter Obi is the elected Governor of Anambra State.

(2) Are the actions of Dr. Ngige & Dr. Andy Uba saved in law and does the doctrine of necessity and implied mandate validate their proclamation of the first sitting of Anambra State House of Assembly and was the proclamation of Governor Obi issued only out of abundance of caution.

(3) Did the lower court formulate issues not joined by the parties when the court held that “Anambra People knew that Chris Nwabueze Ngige passed through this State as a Governor” and that “It was only when Dr. Chris Ngige left the scene that members of the House started to act like sheep without shepherd. They ended up, impeaching the unimpeachable” formulated from grounds 3.

(4) Did the lower court err in law by wrongly interpreting the phrase “shall have power”, erroneously relying on the decision of Umar v. Governor of Kaduna State & ors. (1981) 2 N.C.L.R 689 and by giving a wrong meaning to Section 10 of the Interpretation Act.”

Parties filed their brief according to the Civil Procedure Rules of Anambra State, after joining issues. Before I state the position of each of the competing party I wish first to state the provision of the 1999 Constitution of the Federal Republic of Nigeria Section 105(1) and (3) relevant to this appeal. It states:

“(1) A House of Assembly shall stand dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House. (2) If the federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections the National Assembly may by resolution extend the period of four years mentioned in sub-section (1) of this Section from time to time but not beyond a period of six months at anyone time. (3) Subject to the provisions of the constitution, the person elected as the Governor of a state shall have power to issue a proclamation for the holding of the first session of the House of Assembly of the state conceived immediately after his being sworn in or for its dissolution as provided in this Section.”

It is well to note that in the sub-section 3 of 105, the power of a governor to make the proclamation, and it is also subject to other provisions of the constitution for example sub section (1) of Section 105 may limit the power of the governor to make proclamation if by operation of the law in sub section (1) the tenure of four years has determined, the tenure of the house. The provisions in 105(2) is a direct order that “the house shall stand dissolved at the expiration of four years”; unless the federation is at war etc. See the provisions in Sub-section 2 of Section 105, though and despite the fact that the person elected as the Governor shall have the power to issue proclamation of the house. He can only issue state proclamation if there was no previous proclamation issued by his predecessor in office.

It is also pertinent to state before commencement of the issues, the provisions of Section 10. The Interpretation Act Cap 123 Laws of the Federation of Nigeria, it provides thus- “Where an enactment confers a power or imposes a duty, the power may be exercised and the duty performed from time to time as the occasion requires”. (2) An enactment which confers power to any act shall be constituted as also conferring power, all such other powers as are occasionally necessary to enable that act to be done or are incidental to do during its tenure.”