RT. HON. MICHAEL BALONWU & ORS. v. GOVERNOR OF ANAMBRA STATE & ORS.
(2008)LCN/2834(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of June, 2008
CA/E/319/2007
RATIO
WHETHER A GROUND OF APPEAL MUST DERIVE DIRECTLY FROM THE ISSUES DETERMINED IN THE JUDGMENT OF THE COURT BELOW
A ground of appeal must be directly relevant and must derive directly from the issues determined in the judgment of the court below. See Shuaba v. Union Bank of Nigeria Plc. (2001) 1 SCNJ. An appellate court limits itself only to issues determined by the court below. See ANLA v. AYANBOLA (1977) 4 SC. 63. An appeal is not a new action, it is a continuation of the issues and matters argued in the court below, on which the court below has made a ruling. Eyofordomi v. Okonkwo (1982) 11 SC; Ogundari v. Araba (1978) SC.6-7. See also Ogolo v. Fubara (2003) 1 NWLR (Pt.83I) p. 231 at 237. Consequently a ground of appeal on which an issue is formulated which does not derive from the ratio decidendi of the judgment of the court below is incompetent. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172. PER VICTOR AIMEPOMO O. OMAGE, J.C.A
JOINDER OF PARTIES: CIRCUMSTANCE IN WHICH A PARTY MAY BE JOINED IN A SUIT
It is settled law that a party maybe joined in a suit if he has shown how his interest will be or is affected by the decision of the court, as at the time the appeal in the court below was filed and pending no interest of the 31st-34th respondents has been shown, and no claim has been made in the suit in the interest of the 31st-34th respondents. See Aromire & ors. v. J. J. Awoyemi (1972) 1 All N.L.R. (Pt.1) at 101. PER VICTOR AIMEPOMO O. OMAGE, J.C.A
JUSTICES
VICTOR AIMEPOMO O. OMAGE Justice of The Court of Appeal of Nigeria
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
1. RT. HON. MICHAEL BALONWU
2. HON. BEN CHUKS NWOSU
3. HON. UCHENNA OKONKWO OKOM
4. HON. OSITA CHINWUBA
5. HON. DR. BEN OBIDIGBO
6. HON. EMMA ILOEGBUNAM
(For themselves and on behalf of Honourable Members of Anambra State House of Assembly who held the first session of the House of Assembly of the State upon the proclamation for the holding of the first session by His Excellency Mr. Peter Obi (excluding those Honourable Members of Anambra State House of Assembly who do not support this suit.) Appellant(s)
AND
1. GOVERNOR OF ANAMBRA STATE
2. HON. ANAYO NNEBE (SPEAKER)
3. HON. DISMAS B. A. OBI (DEPUTY SPEAKER)
4. HON. NJIDEKA EZEIGWE (MAJORITY LEADER)
5. HON. NKIRU UGOCHUKWU (DEPUTY LEADER)
6. HON. BARRI GABRIEL ONYENWIFE (CHIEF WHIP)
7. HON. IFEANYI IGWE (DEPUTY CHIEF WHIP)
8. HON. EGBOKA TIMOTHY
9. HON. PRINCE EBERE EZECHUKWU
10. HON. MACHAEL O. OFFOR
II. HON. CHIEF JOE ISAGU
12. HON. SYLVESTER OKEKE
13. HON. JOSEPH DIMOBI
14. HON. BONIFACE A. OKONKWO
15. HON. CYPRAIN O. UGHAMADU
16. HON. UCHENNA S. UMERIE
17. HON. SIMON OHAJIANYA
18. HON SIMON U. OKPALEKE
19. HON. ANTHONY NWOYE EZECHI
20. HON. JOSEPH C. OKEKE
21. HON. AMECHI M. IKENNA
22. HON. BRIDGET C. CHUKWUKA
23. HON. LILIAN OKOSI
24. HON. CHINWE C. NWAEBILI
25. HON. CHINEDU MOKUME
26. HON. OBIORA CHUKWUKA
27. HON. EJIOFOR F. A. EGWUATU
28. HON. EMEKA G. IDU
29. HON. UCHE OGBONNA
30. HON. PAULINUS OBICHUKWU
31. HON. SOLOMON ANUSIKE
32. HON. SHEDRACK N. ANAKWUE
33. CHIEF JOHN MUORAH
34. HON.GOODY EJIAMIKE
(For themselves and as representing other candidates who contested April 14, 2007 election for all the 30 seats of Anambra State House of Assembly for the session covering June 2007 – June 2011 excluding those candidates who are not in support) Respondent(s)
VICTOR AIMEPOMO O. OMAGE, J.C.A.: (Delivering the Leading Judgment): 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.”
In the cause of the determination of the issues to be stated below, I will need to make references to the provisions of the statutes above. In this case the appellants appeal against the judgment of the court below is founded on the four issues formulated by the appellants which I have already stated above, the facts of the appellants claim in the court below are as follows: these are contained on page 229 and 230 of the printed record as congealed by the learned trial judge. That the plaintiffs were elected into the office of membership of the Anambra State House of Assembly in the year 2003. On 5th June 2003, the then Governor issued an order of proclamation, which he made on the sitting members of the house on 9th June 2003. The elected Governor in 2003 was Dr. Chris Nwabueze Ngige. The members of the house took the oath of office, and oath of allegiance; and the house sat for several months before the Court of Appeal Nigeria declared in the appeal that reported in (2006) 14 NWLR p.1, the election of Dr. Chris N. Ngige is nullified. Dr. Ngige then vacated the office. Mr. Peter Obi was then sworn in as the next governor of Anambra State, initially, but without specifically so stating, for the unexpended tenure remaining for a governor of the state. On being sworn in, Mr. Peter Obi, as the new elected Governor issued an order of proclamation in accordance with sub-section 3 of Section 105 of the Nigeria Constitution 1999, though the Governor needed not to have done so. He nonetheless issued an order for proclamation to sitting members who have expended part of their four years tenure. The second proclamation of the Anambra State House of Assembly by His Excellency Mr. Peter Obi was issued on 21st March 2006. His Excellency Mr. Peter Obi thereafter proceeded to court to retrieve and claim the period of years beginning from 29th May 2003 when he should have been sitting as the Governor of Anambra State. The Supreme Court obliged Mr. Peter Obi, in its judgment reported in the 2007 issue of Nigeria Weekly Law Report, Vol. II at page 4. The lead judgment of Katsina Alu JSC, in summary reads, (1) That the office of the Governor of Anambra State was not vacant as at 29th May 2007 (2) It is ordered that the 5th respondent Dr. Andy Uba should vacate the office of the Governor of Anambra State with immediate effect to enable the plaintiff/appellant Mr. Peter Obi exhaust his term of office. The court puts a rider as follows- “for the avoidance of doubt this judgment relates only to the office of the Governor of Anambra State”. The order of the Supreme Court in holdings 1 & 2 above was necessary because when the claim of Mr. Peter Obi was still going through the court to retrieve the period of Governorship of Anambra State unexpended by Mr. Obi, the INEC without regard to the pending proceedings in court against INEC. The INEC proceeded to conduct another election for Governorship of Anambra State, and returned as Governor of Anambra State Dr. Andy Uba. This I view is why the Supreme Court issued orders 1 & 2 in the judgment. Meanwhile, when Dr. Andy Uba was elected and sworn in as the Governor of Anambra State, Dr. Andy Uba also needlessly proceeded to issue a proclamation on the Anambra State House of Assembly.
The members of the Anambra State House of Assembly now issued a writ by originating summons for a declaration that on the proper interpretation of sub-section 3 of Section 105 of the 1999 Constitution, (1) which proclamation they asked, of which governor is binding on them; (2) If the court rules that the proclamation issued by His Excellency Peter Obi, then by the proclamation of 17th March 2006, their tenure would not have begun on 9th June 2003 when they were sworn in, but on 17th March 2006, when Mr. Peter Obi issued a proclamation order; to enable the term of the members of the Anambra State House of Assembly to terminate on 17th march 2010, when the term of Mr. Obi would expire. The reasoning of the appellants is contained in the following submissions made by them- (1) That because the election of Dr. Ngige was nullified, the order of proclamation issued by Dr. Ngige was also nullified (2) That the order of nullification issued by Dr. Uba was also nullified since Dr. Andy Uba was chased out of the seat of Governor of Anambra State by the Supreme Court. That it is only the order of proclamation issued by Mr. Peter Obi that is not nullified, and that it binds the appellants and they reasoned and submitted that the order of proclamation by itself contains within it an implication for extension of the tenure of the period of the membership of the Anambra State House of Assembly. My lords, an order of proclamation does not contain such benefit to the increase of the duration of the house, since to imply so is to defeat the clear provisions of sub-section (1) of Section 105 of the 1999 Constitution which is a peremptory order for the determination of the life of the membership of the Anambra State House of Assembly. But I am ahead of the issues. My lords, the respondents adopted the same issues formulated by the appellants. By respondents, I refer to the 1st set of respondents 1st-30th. The 2nd set of Respondents should not be in this court, perhaps I should now determine the participation of the 31st-34th respondents in this proceeding before I go on to consider the issues of the real parties in this appeal.
It is the appropriate time to do so. The second set of respondents are described as acting “for themselves and as representing other candidates who contested April 14th 2007 election for all the 30 seats of Anambra State House of Assembly for the session covering June 2007 to June 2011 excluding those candidate who are not in support” the refusal of those not in support to join in the case should be commended. The issues for determination in this appeal concerns only elected members to the house of assembly not candidate in the April 14 2006 election. There is no interest in court for the June 2007 – June 2011 as claimed by the 31st – 34th alleged respondents. In one of its relief claimed by the appellants in his originating summons relief No.7, the appellants identified the interests of the class of people for whom he seeks relief. It does not include relief for non elected members of the Anambra State House of Assembly. The 31st – 34th respondents are not members of the elected Anambra State House of Assembly. So there is no identification of interest of 31st-34th respondents with the plaintiff/appellant and no fresh claim by 31st – 34th respondents was before the court below. How is the 31st-34th respondents affected by the judgment of the lower court, when the 31st-34th respondents are not sued by the appellants or as plaintiffs in the court below.
It is not specified in the appeal joined to by the 31st-34th respondents and it is not apparent on the record. My lords by the provisions of Section 242 of the 1999 Constitution the Court of Appeal may entertain an appeal from the High Court at the instance of any person having an interest in the subject matter of the appeal. There is no interest in the appeal shown by the 31st – 34th respondents.
It is settled law that a party maybe joined in a suit if he has shown how his interest will be or is affected by the decision of the court, as at the time the appeal in the court below was filed and pending no interest of the 31st-34th respondents has been shown, and no claim has been made in the suit in the interest of the 31st-34th respondents. See Aromire & ors. v. J. J. Awoyemi (1972) 1 All N.L.R. (Pt.1) at 101; The suit and the appeal is not for future interest but for a live established interest. The joinder in the appeal of 31st-34th respondent is incompetent, and the participation in the appeal of 31st-34th respondents is refused. The brief filed by the so called second set of respondents is incompetent; it is struck out with the cross appeal filed by 31st-34th respondents.
My lords I wish next to deal with the preliminary objection filed by the 2nd-30th respondents namely that ground 3 of the grounds of appeal filed by the appellant is incompetent as the expression of the learned trial judge did not embody the resolution of the court, (and) cannot be an issue on appeal”. The respondent urged that the ground 3 of the appellants and the issue formulated therein be struck out. The issue 3 reads- “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 Governor and that it was only when Dr. Chris Ngige left the office that members of the house started to act like sheep without shepherd. They ended up impeaching the unimpeachable” which affected the courts judgment. The respondent, not only filed a motion objecting to the inclusion of the verbiage allegedly credited by the appellant to the trial court, the counsel for respondent included his opposition to Issue 3, founded on the grounds of appeal made by the appellant. Even by the appellants’ admission, the issue did not arise from and does not become part of the ratio decidendi of the judgment of the court only on which the appeal should be founded. The appellant in his reply brief imputed that the objection of the respondent to the inclusion of the statement as a ground of appeal strengthens his conviction that the alleged statement constitute a formulation of the statement as a ground of appeal. In my view the appellants counsel forgot that the said ground 3 was not a subject of contest by the parties in the court below.
A ground of appeal must be directly relevant and must derive directly from the issues determined in the judgment of the court below. See Shuaba v. Union Bank of Nigeria Plc. (2001) 1 SCNJ. An appellate court limits itself only to issues determined by the court below. See ANLA v. AYANBOLA (1977) 4 SC. 63. An appeal is not a new action, it is a continuation of the issues and matters argued in the court below, on which the court below has made a ruling. Eyofordomi v. Okonkwo (1982) 11 SC; Ogundari v. Araba (1978) SC.6-7. See also Ogolo v. Fubara (2003) 1 NWLR (Pt.83I) p. 231 at 237. Consequently a ground of appeal on which an issue is formulated which does not derive from the ratio decidendi of the judgment of the court below is incompetent. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172.
The comments of the trial court however founded, which is not contained in the basis of the judgment and decision of the court below is a mere observation and cannot form a ground of appeal.
The trial court is not a litigant in the pending case and the statement is not a subject of contest in the court which is argued by the counsel in the court below. Ground 3 and the issue formulated on it is incompetent, it is struck out of the proceedings.
My lords, I will now deal with Issues 1, 2, and 4 in the appellants’ brief to which the respondents have filed brief in absolute apposition to the arguments of the appellants. I wish to commence the treatment of this segment of the appeal by expressing the opinion of this court as contained in my judgment on the issue 4 in the appellants brief to which the 2-30 respondents also responded in the brief of Arthur Obi Okafor Esq. for the respondent. The question is whether the lower court erred in law in wrongly interpreting the phrase “shall have power”, etc. The trial court had ruled in his judgment before the court, that the phrase “shall have power” merely inform the donee of the power his ability in relation to the issue in contest and under Section 10 of the interpretation Act, the powers is exercisable as and when due or necessary. The phrase is not mandatory. The respondents counsel in the submission in his brief agrees with such definition.
It is therefore correct to cite in support of the submission as authority the decision of the court as in Umar v. Governor of Kaduna State & ors. Reported (1981) 2 NCL 689. The word “shall” used without more may be one or all of these mandatory directives, or persuasive, it would depend on the circumstance in which it is used. See Ishola v. Ajiboye (1994) 7-8 SCNJ 1 per Iguh JSC. For instance in the 1979 Constitution, it was ruled by the Supreme Court that Section 238 thereon was used not in a mandatory or directory manner, but in a persuasive sense.
See Karto v. Central Bank (1991) 12 SCNJ. In sub-section (1) of Section 105 of the 1999 Constitution which subscribe thus: “A house of Assembly shall stand dissolved “at the expiration of four years” etc. The word shall therein used is mandatory. It allows for no alternative. The various houses of assembly in Nigeria shall necessarily stand dissolved when four years have been concluded and their tenure ends. What is left uncertain is the date of the first sitting of the house. However when in sub-section 3 of Section 105 of the 1999 Constitution subscribes thus: “Subject to the provisions of this Constitution the governor of a State shall have power to issue a proclamation for the holding of the 1st session of the house of assembly of the state house concerned immediately after his being sworn in or for its dissolution” etc. The phrase “shall have power” therein used is only to inform the elected Governor of the power he possess as a governor, an attribute of his gubernatorial power and position. There is no compulsion to use the power other than as it is necessary. The word shall therein used is not compulsory; it is only directory when it needs to be used. Shall have therein used is already confined and qualified by two conditions, “subject to the other provisions of the same constitution”, after he is sworn in, not compulsorily when he is sworn in as Governor, unless he may find the need to exercise the power to make proclamation for the dissolution of the house. For example should a need to dissolve the house of assembly if political exigency demands such exigency. By the phrase “shall have power” used in the circumstance after his being sworn in, show that a Governor who has not being sworn in as Governor may not issue a proclamation to the house. The phrase shall have power in the event does not impute that the Governor must issue a proclamation once he takes his oath of office if there exists a functioning house of assembly which a previous governor has proclaimed into life.
In an ideal situation, the membership of the house of assembly would not have had any sitting at the time a Governor takes his own oath of office. The House of Assembly may have congregated in the house, and await the taking of oath of the Governor Section 105(3) would then be properly applied and the Governor may now make a proclamation of the first sitting of the house of assembly now inaugurated by the proclamation of the Governor. My lords, in my view, once such a proclamation has been made by a governor to bring into life first sitting of house of assembly, the relevant house of assembly has begun, there would be no need for further proclamation for another first sitting; as the sitting of the house has already commenced. The situation advocated by the appellant of having another first sitting after the House of Assembly of Anambra State had been sitting for over two years makes a ridicule of the respected procedure in an honourable house. It is not feasible. All the house need to do is to disable the ruling governor, then the house will have an endless session when a new governor is unable to proclaim a new fresh session. The word proclamation therein simply announces the first assemblage of the house of Assembly; not otherwise it is not intended for use, when the house had previously been proclaimed by a Governor. For the several reasons stated above, the appellant is in error and has misconceived the purport and meaning of the phrase shall have power when the counsel submitted that the phrase is directory, it is not.
I resolve the issue against the appellant.
Issues 1 and 2 in the appellants’ brief ask whether the lower court gave proper interpretation to the provisions of Section 105(3) of the 1999 Constitution, on whether the action of Dr. Ngige and Dr. Andy Uba are saved in law.
The objective of the two questions contained in the issues of the appellant is to create opportunity for the appellant to justify his submissions that it is the second coming of His Excellency Mr. Peter Obi which initiated the commencement of sitting of the Anambra State House of Assembly. The respondent have denied this and submitted that at most, assuming that the tenure not the election of Dr. Uba, and Dr. Ngige are called in question by a nullification by the court of Appeal, the action taken by the two governors remain effective in law, at the court the actions of the two governors at different times are saved by the doctrine of regularity and are de facto effective since the said Dr. Ngige and Dr. A. Uba were infact before the annulment of their election regarded as de jure Governors. If not so, at least defacto by virtue of the fact, that the two were sworn in as Governors.
This is also the decision of the court below with which the appellant was dissatisfied. In this appeal on this issue, Dr. C. Ngige was returned as the lawful Governor of Anambra State at the time before the Court’s decision nullified his election following the findings of the Governorship Election Tribunal. Governor Ngige took on his initial appointment an oath of office which Mr. Obi took; Governor Ngige exercised for two years all the functions of a Governor. Nothing in law has nullified those actions, though his appointment has been nullified. All the acts performed by him in that period as Governor are legally performed. The nullification of his election has made him to cease the performance of those functions as a Governor, the actions made by him at a time before his nullification remains valid and enforceable at law. To hold otherwise will engender chaos. In (2006) 14 NWLR, in the appeal filed by Dr. Ngige against the nullification of his election as Governor of Anambra State by the Governorship Election Tribunal, the issue of the performance and tenure of Governor Ngige was not a subject or issue for determination. What came for determination was the propriety or at worse legality of Dr. Ngige remaining in office, this why Dr. Ngige remained in office despite the decision of the Tribunal until an appellate court decided and determined the election of Dr. Ngige. The judgment was considered in the lead judgment of R. D. Mohammed, J.C.A. The various and several legislations made by the House of Assembly which were assented to by the Governor as an issue from the house of Assembly remain valid, legal and binding and are not set aside or rendered null and void. The reasons are many; the laws were not made by Dr. Ngige alone. In accordance with parliamentary practice many of the Legislation affecting Anambra State originated from the Anambra State House of Assembly. No matter what procedure was used in Anambra State, the Legislations originated from the house in Anambra State, the Governor merely assented to each of them to make it law. There are also various appointments made in the over two years spent when or Ngige was Governor, all these remain legally made and binding, though the Governor has ceased to be one, The same principle applies in the case of Dr. Andy Uba. The respondents brief shows that Dr. Ngige made an order for proclamation of the house of Assembly after he took his oath of office, that proclamation created the commencement of the first sitting of the Anambra State House of Assembly, Thereafter Governor Ngige made the appropriation law which remain in force and enabled the public servants of Anambra State to be paid their salary, These legislations are still in operation in Anambra State, it leaves little to imagination why the former members’ of the House of Assembly are saying and submitting that only the proclamation made by Dr. Ngige as governor is null and void, The proclamation order issued at the commencement of his tenure by Dr. Ngige for the first sitting of the house is valid; and the subsequent order issued by Mr. Peter Obi is needless, because the member of House of Assembly was already sitting. A new proclamation made by Mr. Peter Obi to the house does not at all affect the tenure of the Anambra State House of Assembly which should terminate at the expiration of four years from the date of its first sitting in 2003. The enlargement of time given by the Supreme Court to Mr. Peter Obi in (2007) 11 NWLR 654 as specifically stated applies to Mr. Peter Obi alone. The judgment expressed it in these words “for the avoidance of doubt this judgment relates only to the office of the Governor of Anambra State”.
The appellant has made reference to obiter dictum made in the judgment on the interpretation to be given to the decision in the case of Ngige v. Obi (2006) 14 NWLR. These statements are not contained in the judgment that determined the election of Dr. Ngige. The statements are not contained in the appeal (2006) 14 NWLR, they are taken out of con and they are not relevant to the issue before the Court of Appeal in that decision which determined the election of Dr. Ngige. The phrase null and void on determination of Dr. Ngige appeal was not used whatsoever concerning the tenure and acts of Dr. Ngige when he was Governor of Anambra State. As in the example of omitting the proviso of Katsina Alu, JSC. that the enlargement of terms granted to Mr. Obi applies only to the Governorship position of Anambra State. My lord Justice Aderemi who made contribution to the judgment (2006) 14 NWLR did not make any reference to the acts of Dr. Ngige as null and void and Justice Tabai JSC did not participate in the judgment. I find such practice by appellants’ counsel dishonest, particularly when statements of Supreme Court Justices are quoted out of con. However, I am unable to agree with the submission of the appellant that the trial court in this case in the court below failed to give a correct interpretation to the provisions of sub-section (3) of Section 105 of the Constitution.
I have arrived at the conclusions above because I have read the decision in Ngige v. Obi. I have seen nowhere therein where the tenure of Dr. Ngige as Governor was declared null and void; the decision only concerns the nullification of the election of Dr. Ngige as Governor of Anambra State after over two years of the Governorship of Dr. Ngige whereas the binding force in the judgment is the issue determined in the judgment, there is no pronouncement of on the actions, decisions and tenure of Dr. Ngige. See Anambra State Government v. Marcel Nwankwo (1995) 9 NWLR (Pt4I8) at 247; also Oyewumi v. Ogunisan (1990) 3 NWLR (Pt.137).
It will be unwise and unsafe to declare null and void, the decision and actions taken and performed as Governor in the tenure of Dr. Ngige and Mr. Obi in those years of their governorship because to do so will cause a distrust of subsequent decisions of the government functionaries and create a lawless society, to do so will certainly open a floodgate of fruitless litigation. A government is a continuing, whether or not its officers are legally appointed. The trial court in its judgment has formulated a way out to declaration of its validity validly when he proposed that at worst the decision of the Governor while in government before he was removed be treated as action done when the Governor was a defacto Governor; and submits that it should make the action legal. It is indeed a statement of fact; the only constant to the proposition is that the time Dr. Ngige was exercising the power of a Governor, there was no opposition to the exercise of his power; after all before the nullification, the Governor was lawfully sworn in. The acts performed as the Governor by Dr. Ngige, was legal and enforceable at law. In sum, I resolve issues 1 & 2 against the appellants and dismiss the appeal.
I award in favour of the Respondents the sum of ten thousand Naira (N10,000.00) as costs.
STANLEY SHENKO ALAGOA, J.C.A.: I have read before now the Judgment just delivered by my brother Victor Aimepomo Oyeleye Omage (JCA) and I am in agreement with his reasoning and the conclusion reached. I however wish to chip in this little bit of mine by way of contribution to the commendable work of my brother. Ironically my first reference is to the very last of the parties to this appeal – the 31st – 34th Respondents who are described as persons still contesting that they were not elected to the Anambra State House of Assembly in the 14th April 2007 election and applied to be joined on that score so that the suit will not be unduly delayed. On record they are “for themselves and as representing other candidates who contested April 14, 2007 election for all the 30 seats of Anambra State House of Assembly for the session covering June 2007 – June 2011 excluding those not in support.” I can only describe them in the mildest possible terms as strangers to issues which concern only elected members of the Anambra State House of Assembly and not candidates in the 14th April 2004 election. Reference to the period June 2007 – June 2011 is preposterous and alien to the appeal. I fail to see how the outcome of the Judgment of the High Court below affects them as they do not appear to have any interest in the appeal. I think it is right to say that their involvement in this appeal is a misnomer. By the same token their cross appeal has no basis and I wish to concern myself with what is the core of the appeal proper.
Section 105 (1) and (3) of the Constitution of the Federal Republic of Nigeria 1999 are germane to this appeal and provide as follows – Section 105(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.”
Section 105 (3) – “Subject to the provisions of this 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 concerned Immediately after his being sworn in or for its dissolution as provided In this section.”
Three proclamations have been issued by three persons who have sat at the helm of affairs in the Anambra State Government House. These persons are Dr. Chris Ngige, Dr. Andy Uba and Mr. Peter Obi. Which or whose proclamation binds the Appellants? The Appellants who were duly elected as Honourable members of Anambra State House of Assembly in 2003 are contending that simply put, their four year tenure in office as Assembly members as provided by Section 105(1) of the 1999 Constitution should not commence from 2003 because Dr. Chris Ngige who issued the proclamation for the commencement of the holding of the first session of the Anambra State House of Assembly that year that is 2003 was never a Governor within the contemplation of Section 105 (3) of the Constitution, his election having been annulled by the Court of Appeal and that by a proper interpretation of Section 105 (3) of the Constitution, their four year tenure should commence on the 17th March 2006 when Mr. Peter Obi the duly elected Governor of Anambra State issued a proclamation for the holding of the first session of the House of Assembly and expire on the 17th March 2010. The Appellants are in short contending that whatever proclamation was issued by Dr. Chris Ngige and Dr. Andy Uba for the holding of the first session of the House of Assembly could not be said to be operative, their election as Governors having been annulled. This is an implied extension of the tenure of membership of the Anambra State House of Assembly. But does Section 105 (1) of the Constitution contemplate such extension? Citing ADEFULU v. OKULAJA (1996) 9 NWLR(PART475) page 668, the Appellants have contended that whatever act was carried out by these persons as Governors whose elections were nullified were as if the actions were never carried out in the first place and that their proclamations were inoperative. Simply put they were never Governors and could not have or purport to have the powers under Section 105 (3) of the Constitution to issue proclamation for the holding of the first session of the House of Assembly. This argument of the Appellant loses sight of the fact that under the Electoral Act 2006 it is the duty of the Independent National Electoral Commission (INEC) to say who has won a Governorship election and when once he is so declared as having been duly elected to the office of Governor, all acts performed by him after he has subscribed to his oath of office as Governor are valid, legitimate and subsisting until the appropriate tribunal or court adjudicating upon any complaint with respect to his election as Governor pronounces otherwise. For example Section 70 of the Electoral Act 2006 provides that, “In an election to the office of the President or Governor…the candidate that receives the highest number of votes shall be declared elected by the appropriate Returning Officer,” while Section 69 (c) before it provides that,
“The decision of the Returning Officer on any question arising from or related to declaration of scores of candidates and the return of a candidate shall be final subject to review by a tribunal or court in an election petition proceeding under this Act.
(underlining mine for emphasis).
The purport of this provision is that INEC having declared a Governorship candidate duly elected as Governor, all actions carried out by him are validated. See HON. PRINCECHINEDU EMEKA v. Chief (MRS) JOY EMODI & ORS. (2004) 16 NWLR 4 (PART 900) page 433 at pages 451 – 452 ratios H – D where section 59 (1) of the Electoral Act 2002 which has identical provisions with section 69 (c) of the Electoral Act 2006 was judicially interpreted and expounded upon. It would be surprising even absurd if the position were otherwise and all the actions undertaken by the person declared duly elected by INEC as Governor prior to the nullification of his election as Governor were jettisoned. There would be mayhem and a spate of litigations from every segment of the society whose positions would be seriously jeopardised having been appointed or sworn in by the Governor prior to his nullification. Thus the proclamation issued by Dr. Chris Nwabueze Ngige for the holding of the first session of the House of Assembly in Anambra State in 2003 is valid and the 4 year tenure of the Appellants as members of the Anambra State House of Assembly took effect from the year 2003 expiring in 2007.
Subsequent proclamations issued by Dr. Uba and Mr. Peter Obi can best be described as a surplusage. The conception of the Appellants that their tenure would run pari pasu with that of Mr. Peter Obi. commencing from March 2003 and terminating in March 2010 is hinged on the Supreme Court decision in OBI v. INEC (2007) 11 NWLR 9 PART 1046) page 565 to the effect that Mr. Peter Obi’s tenure as Governor of Anambra State is from March 2006 for a four year term terminating in March 2010, but it is important to note that the Supreme Court had said in that judgment that “for the avoidance of doubt this judgment relates only to the office of the Governor of Anambra State.” The tenure of the members of the Anambra State House of Assembly elected in 2003 and who had their first sitting in 2003 under the proclamation issued by Dr. Chris Ngige that year (2003) did not by any stretch of the imagination extend beyond their four year term in office stipulated in Section 105 (1) of the Constitution commencing in 2003 and terminating in the year 2007, Having said that let me now move on to another point which is not unrelated to the one that has just been dealt with. Heavy weather appears to have been made by the Appellants of the word “SHALL” and reliance placed on the cases of ANDREW AJAYI v. THE MILITARY ADMINISTRATOR OF ONDO STATE (1997) 5 NWLR (PART 504) page 271 and ACHINEKU v. ISAGBA (1988) 4 NWLR (PART 89), page 411 at 420 as connoting a command. There is absolutely no doubt that the word ‘SHALL’ connotes a command. It imposes an obligation to do something. In the con of Section 105 (3) of the Constitution of the Federal Republic of Nigeria, it is not simply the word “SHALL” but “SHALL HAVE POWER” that is employed.
In the particular con in which it is used under Section 105 (3) of the Constitution, it is more of a reminder or an information to the Governor what his powers are should he decide to exercise the powers. It is for these and the fuller reasons contained in the lead judgment of my brother that I also am of the view that the Appeal should fail. It fails and is accordingly dismissed. I abide by any order or orders contained in the lead judgment including order on costs.
MOHAMMED. L. TSAMIYA, J.C.A.: When this appeal was heard on 4/6/2008 we adjourned for judgment.
I have read in draft the reasons for judgment by my learned brother V. A. O OMAGE, JCA. As it was for the same reasons that I agreed that the appeal should be dismissed. I adopt his reasons as mine and I have nothing to add.
OLUKAYODE ARIWOOLA, J.C.A.: I have had the advantage of reading in advance the judgment of my learned brother, OMAGE, JCA just delivered. I agree with the reasoning and conclusion in the said lead judgment.
Section 105(3) of the 1999 Constitution of the Federal Republic of Nigeria provides as follows:-
“Subject to the provisions of this 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 concerned immediately after his being sworn in, or for its dissolution as provided in this section.”
It is to be noted that the members of the Anambra State House of Assembly upon their being elected into the House were sworn in duly on 9th June, 2003 and then the elected Governor as at that time – Dr. Chris Nwabueze Ngige duly issued an order of proclamation in accordance with the Constitution on the silting members of the House. The members of the House duly took their oath of office and oath of allegiance and sitting commenced.
I am of the view that after the election of Dr. Ngige was nullified by the Court and Mr. Peter Obi was declared as the new elected Governor there ought not to be a fresh proclamation order by the new Governor. The election of a new Governor during the un-expired tenure of yet another distinct arm of the Government has no effect on the status of the members of the House of Assembly. There is no vacuum in Government. It should be borne in mind that the period Dr. Ngige served as Governor of Anambra State was not and could not have been declared illegal. Therefore, government activities and functions being a continuous process, all the official duties of the Governor carried out from the time Dr. Ngige was legally sworn in as Governor and the time the Court of Appeal, being the final Court on the matter ordered that he should vacate the sit would be considered as official duties of Governor of Anambra State. Those official duties already carried out, inclusive of proclamation order on members of the State House of Assembly, etc. remain legal, valid and irreversible. He only ceased to be Governor when the court said so. In other words, the term of four years of the other arm of Government, that is, the Legislature, is not affected, bearing in mind the Constitutional limitation of the term. Section 105(1) of the 1999 Constitution under which the members of the House of Assembly took oath states thus;-
“105(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.”
(Underlining mine.)
There is no doubt that the first sitting of the House of Assembly of Anambra State commenced with the proclamation order by Dr. Ngige and it shall expire after four years thereafter.
Proclamation is a formal public announcement made by the government. The proclamation order issued by Dr. Ngige was therefore duly and legally issued by the government of Anambra State to enable the House of Assembly have their first silting. In other words, the proclamation made again by Mr. Obi is rather unnecessary, to say the least. The tenure of the members of the House of Assembly expired after four years.
For the above reasons and the fuller reasons stated in the lead judgment of my learned brother, OMAGE, JCA I also hold that the appeal lacks merit and should be dismissed. Accordingly it is hereby dismissed by me.
I abide by all consequential orders contained in the said lead judgment including the order on costs.
SIDI DAUDA BAGE, J.C.A.: I have read before now in draft the Judgment of my learned brother VICTOR AIMEPOMO O. OMAGE, (JCA). I agree that the appeal lacks merit and should be dismissed. I need to briefly advance some reasons anon.
Who declares results of Elections?
In INEC V. Ray (2004) 14 NWLR (pt. 892) 92, it was held that by virtue of 1999 Constitution and the Electoral Act, 2002, the INEC was the competent authority to conduct and issue results.
The Power of INEC to declare Election result is by virtue of Section 69 (c) of the Electoral Act, 2006 vested in Returning officer Section 69(c) states that the decision of Returning Officer on any question arising from or relating to declaration of scores of Candidates and return of a Candidate is final, subject only to review by a tribunal or Court in an Election Petition Proceedings under the Act. See: Emeka v. Emodi (2004) 16 NWLR (pt 900) 433 at 452.
The Import of the Law cited above, clearly validates all actions taken by Candidates so declared by INEC, subject however to the subsequent decision of the Court or tribunal in Election Petition Proceedings. Our Law therefore left no vacuum between the candidate so declared by INEC, to what so ever overriding decisions of tribunals or Court.
Our Courts have practice validating Orders taken, even if Ultra Vires, or frivolous by lower courts until such Orders are either vacated upon an application before such courts, or set aside by an appellate court. The fact about it is that, the interim period remains valid until either vacated or set aside. See: Peters v. Ashamu (1995) 4 NWLR (pt. 388) 206. NDIC v. Savanah Bank Nig. Plc (2002) 51 WRN 19. Eran Shipping Company Ltd & Ors v. Hong Kong and Shangai Banking Corporation Ltd. (2003) UKHL 30.Kotoye v. CBN (2001) 16 WRN 71 Okoya v. Santilli (1994) 4 NWLR (pt. 336) 256.
A decision or Judgment of a Court of competent Jurisdiction subsist until set aside by the Court itself or by a higher court on appeal. See: Babatunde v. Olatunji (2000) 2 NWLR (pt. 646) 557
The application of the interim valid period can be counted in respect of the declaration of Dr. Ngige by INEC, as the Democratically Elected Governor of Anambra State in the 2003 General Elections. The proclamation made by him in 2003 which constituted the first session of Anambra State House of Assembly remains valid by the effect of Section 105 (1)(3) of the Constitution of the Federal Republic of Nigeria. The subsequent nullification of the Election of Dr. Ngige, 35 month after the proclamation of the Anambra State House of Assembly, cannot be affected because, at the time the action was taken, it was valid in law. The subsequent Proclamation of the Anambra State House of Assembly on the 21st of March 2006 by Mr. Peter Obi, after his victory at Election Tribunal, in my own opinion was, a mere supplusage. The House validly had spent 35 months exercising Lawful Legislative duties. The life of the Anambra State House of Assembly Proclaimed in 2003 which spent 4 years of Legislative business as envisaged by section 105(1) and (3) of the Constitution of the Federal Republic of Nigeria must come to an end after the expiration of that period, and no more.
I agree with the findings of my learned brother, OMAGE (JCA) at page 22 of the lead Judgment wherein he held that:
“In (2006) 14 NWLR, in appeal filed by Dr. Ngige against the nullification of his election as Governor of Anambra State by Governorship Election Tribunal the issue of the performance and tenure of Governor Ngige was not a subject or issue for determination. What came for determination was the propriety or at worse legality of Dr. Ngige remaining in office, this is why Dr. Ngige remained in office despite the decision of the Tribunal until an appellate Trial Court decided and determined the election of Dr. Ngige. The Judgment was considered in the lead Judgement of RD MOHAMMED (JCA). The various and several legislation made by the House of Assembly which were assented to by the Governor an issue from the House of Assembly remain valid, legal and binding and are not set aside or rendered null and void”
It is again my own opinion that, the validity rule stated above, in respect of the tenure of Dr. Ngige, applies Mutatis Mutandis to the tenure of Dr. Andy Uba, in the year 2007. The Proclamation of which constituted the 1st session of the present Anambra State House of Assembly by Dr. Andy Uba in 2007 then as the Governor returned by INEC remains valid. The Supreme Court decision which determined after that, the actual tenure of Mr. Peter Obi, came in after the proclamation of the Assembly which remains valid.
For the reasons and those set out in the lead Judgment, I find the appeal without merit. I too dismiss it. I endorse the Order relating to cost contained in the lead Judgment.
Appearances
Nnamdi Ibegbu, SAN with Onyechi OnonyeFor Appellant
AND
Arthur Obi Okafor Esq, with Fidelis Aniukwu,Esq.; Martins Okeke, Esq.; J. O. Nwankiti, Esq.; Chugbo Enwezor, Esq.; Okey Ubah, Esq.For Respondent
