Rt. Hon. Michael Balonwu & Ors. V. Governor Of Anambra State & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C

The Appellants in this appeal as Plaintiffs had commenced their action by Originating Summons at the High Court of Justice of Anambra State sitting in Awka claiming a number of declaratory reliefs, the principal of which reliefs is on their tenure of office as members of the Anambra State House of Assembly who were elected in the general election conducted for all the Houses of Assembly in Nigeria in May, 2003. The Appellants action was against the Governor of Anambra State and the members of the Anambra State House of Assembly who were elected in the general election conducted for Houses of Assembly in the States of the Federation of Nigeria on 14th April, 2007. The reliefs claimed by the Appellants were based on the undisputed facts or factors surrounding the success of the Anambra State Governor Peter Obi in the election petition dispute between him and Governor Dr. Chris Ngige in the election to the office of the Governor of Anambra State held in 2003. The main ground of the Appellants’ claims however was hinged on the interpretation of Section 105(1) and (3) of the 1999 Constitution prescribing the tenure of office of the members of the State House of Assembly.

At the conclusion of the hearing of the action by the trial Court, on the application of the law to the undisputed facts arising from the affidavit in support of the Originating Summons and the counter-affidavit opposing the same, the learned trial Judge in his judgment delivered on 17th September, 2007, refused all the reliefs claimed by the Appellants and dismissed their action.

Dissatisfied with the decision of the trial Court, the Appellants appealed to the Enugu Division of the Court of Appeal which also in a unanimous decision given on 26th June, 2008, dismissed the appeal, hence the present appeal by the Appellants to this Court.

The circumstances that gave rise to the dispute between the parties in this appeal are very clearly stated in the affidavit in support of the Originating.

Meanwhile, on the approach of the date of the election in April, 2007, Governor Peter Obi went back to the Courts to ascertain the tenure of the office which he occupied on 20th March, 2006 though he was actually elected since May, 2003. He was successful at the Supreme Court which upheld his claim that his tenure of four years would not expire until March, 2010. Consequently, Governor Andy Uba who was declared the winner of the election conducted in April, 2007, was asked to vacate the seat for Governor Peter Obi to complete his tenure. The current members of the Anambra State House of Assembly who are the present 2nd to 30th Respondents held their first session in June, 2007 after the proclamation issued by Governor Andy Uba after taking his oaths of allegiance and office as the Governor of Anambra State. In their action at the trial Court which culminated in this appeal, the Appellants are in all in earnest challenging the tenure of office of the 2nd – 30th Respondents who were elected and came into office and started their tenure in June, 2007.

Before the appeal came up for hearing, in compliance with the rules of this Court, the Appellants’ brief of argument, the 1st Respondents’ brief of argument, the 2nd – 30th Respondents’ brief of argument and the Appellants’ Reply briefs to the 1st Respondent and 2nd – 30th Respondents briefs of argument, Summons and the counter-affidavit of the Respondents. The Appellants were elected into the House of Assembly of Anambra State in May, 2003 to serve a four year term. Dr. Chris Nwabueze Ngige who was declared by the National Electoral Commission as the winner of the election to occupy the seat of the Governor of Anambra State in 2003, was duly sworn in as the Governor of the State. As required under Section 105(3) of the 1999 Constitution, the Governor duly issued a proclamation on 5th June, 2003 and the State House of Assembly held its first session on 9th June, 2003. After electing its officers and subscribing to the appropriate oaths of allegiance and oaths of office, the house continued to function in accordance with the Constitution until the vacation of office of the Governor of the State by Dr. Ngige following the judgment of the Court of Appeal declaring Mr. Peter Obi as the winner of the election and his subsequent swearing in as the Governor of Anambra State on 20th March, 2006.

Although the House of Assembly comprising the Appellants had been functioning for nearly three years, all the same, the newly sworn in Governor Obi issued another proclamation under Section 105(3) of the Constitution on 20th March, 2006. The following day 21st March, 2006, the Appellants as members of the House of Assembly elected since May, 2003, held what they described as their first session.

Meanwhile, on the approach of the date of the election in April, 2007, Governor Peter Obi went back to the Courts to ascertain the tenure of the office which he occupied on 20th March, 2006 though he was actually elected since May, 2003. He was successful at the Supreme Court which upheld his claim that his tenure of four years would not expire until March, 2010. Consequently, Governor Andy Uba who was declared the winner of the election conducted in April, 2007, was asked to vacate the seat for Governor Peter Obi to complete his tenure. The current members of the Anambra State House of Assembly who are the present 2nd to 30th Respondents held their first session in June, 2007 after the proclamation issued by Governor Andy Uba after taking his oaths of allegiance and office as the Governor of Anambra State. In their action at the trial Court which culminated in this appeal, the Appellants are in all in earnest challenging the tenure of office of the 2nd – 30th Respondents who were elected and came into office and started their tenure in June, 2007.

Before the appeal came up for hearing, in compliance with the rules of this Court, the Appellants’ brief of argument, the 1st Respondents’ brief of argument, the 2nd – 30th Respondents’ brief of argument and the Appellants’ Reply briefs to the 1st Respondent and 2nd – 30th Respondents briefs of argument, were duly filed and served by the parties. In the Appellants brief of argument the following three issues was raised –

“1. Did the Appellant’s Counsel misquote Justices of the Supreme Court, was he dishonest, and was the decision of of Omage J.C.A in that respect cause a miscarriage of justice (Formulated from ground 1)

2. Was the lower Court right by not giving Section 105(3) of the Constitution of the Federal Republic of Nigeria, 1999 its ordinary meaning and by not giving effect to the word “Shall have power” when interpreting same, despite the fact that His Excellency Mr. Peter Obi is the elected Governor of Anambra State who made the Constitutional proclamation (Formulated from grounds 2, 4 and 5)
3. Are actions of Dr. Chris Ngige and Mr. Andy Uba saved in law contrary to the decision of the Supreme Court of Nigeria in Adefulu v. Okulaja (1996) 9 N.W.L.R. Part 475 Pg. 668 @ 693 D – E (Formulated from ground 3)”

In the 1st Respondent’s brief of argument, in addition to a Preliminary Objection raised to ground one of the Appellants’ ground of appeal, the following three issues were also identified from the five grounds of appeal filed by the Appellants:

“1. Assuming but without conceding that ground 1 of the Notice of Appeal is competent, whether

the Court of Appeal judgment can be faulted on ground of wrong citation of authorities or wrong citation of names of justices that decided a case, when such alleged wrong citation of authorities and names of Justices of Supreme Court or Court Appeal did not affect the correctness of the decision of the Court (ground 1 of the Notice of Appeal).