INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ANOR v. HON. (BARR) JOE ETENE (2013)

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ANOR v. HON. (BARR) JOE ETENE

(2013)LCN/6608(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of December, 2013

CA/C/79/2012

RATIO

WHETHER A PRE-ELECTION DISPUTE MAY BE DEEMED A POST-ELECTION DISPUTE BY THE HOLDING OF THE ACTUAL ELECTION IT FORESHADOWED

In every day terms, pre-election matters are complaints in respect issues which arise before and therefore precede the holding or conduct of an election. Post election matters on their part, are matters which arise from or relate directly to the actual holding or conduct of an election about which candidates and political parties who contested the election are dissatisfied with on any of the cognizable grounds stipulated in the Electoral Act.

DUTY OF COURT: MATTERS OF WHICH A COURT OF LAW MUST TAKE JUDICIAL NOTICE OF IN PROCEEDINGS BEFORE IT

Not much needs be said on the issue because the Evidence Act has spelt out matters which a court of law shall take judicial notice of in proceedings before it. Section 122(2) of the Act, cited by the learned counsel for the Appellants has the following provisions:-
“(2) The court shall take judicial notice of-
a) all laws or enactments and any subsidiary legislation made under then having force of law now or previously in force in any part of Nigeria.”
These provisions are simple and straight forward and by the use of the word “shall”, mean that a legal duty or obligation is imposed of the court in the conduct of its proceedings, to note, consider and give effect to all relevant enactments or laws and subsidiary legislations made thereunder that are extant or in force. In the case of Onochie v Odogwu (2006) 2 SCNJ, 96 at 114, (06) 6 NWLR (975) 65 at 89-90, it was held by the Supreme Court that:-
“The use of the word “shall” in a statute or Rules of Court makes it mandatory that the rule or provision must be obeyed. Shall is used to express a command or exhortation, or what is legally mandatory.”
See also Ifezue v Mbadugha (1984) SCNLR, 84; Omokeodo v Inspector General of Police (1999) 6 NWLR (607), 467; Agip Nig. Ltd v Agip Pet. Int’l (2010) 5 NWLR (1189) 348 at 419.

On the state of the law, the Federal High Court had the duty to take judicial notice of, consider and apply all relevant and extant statues, including the constitution, in the proceedings before it whether or not they were alluded to by the parties to the case. Whether the failure to do so, simpliciter, would occasion a miscarriage of justice in a case would depend on the peculiar facts and circumstances of the case. Simply put, miscarriage of justice has been defined, judicially, to mean a decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantial rights of a party. As it is used in constitutional standard of reversible error, it means a reasonable probability of more favourable outcome for the defendant or the party appealing. See Jimadu v Esurombi-Aro (2005) 14 NWLR (944) 142 at 184, (05) 12 SC (Pt. 1) 93; Larmie v D.P.M.S. Ltd.; Nnajifor v Ukwu (1986) 4 NWLR (36) 505. PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. THE RESIDENTIAL ELECTORAL COMMISSIONER, CROSS RIVER STATE Appellant(s)

AND

HON. (BARR) JOE ETENE Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By the originating summons dated and filed on the 24/3/2011 at the Registry of the Federal High Court, sitting at Calabar, the Respondent had submitted the following questions for determination by that court:-

“1) Whether Law No.7 of 2007 passed by the Cross River State House of Assembly pursuant to Section 4(7) and Section 8(4) of the 1999 Constitution and the inherent legislative power of the Cross River State House of Assembly which came into force on the 12th April, 2007 was validly passed.
2) Whether the defendants have the power to declare any part of Akpabuyo or Bakassi Local Government Area as “unceded part” of Bakassi peninsular and so carry out registration of voters only in those areas as the new Bakassi Local Government without regard to Law No. 7 of 2007 of the Cross River State House of Assembly.
3) Whether the defendants can be compelled to conduct elections in the 3 wards of Ikang in Bakassi Local Government Area which inhabit the displaced people of Bakassi and count the votes under Bakassi Local Government.
4) Whether the defendants can validly register voters in the 3 ward of Ikang in Bakassi Local Government and then count the votes under Akpabuyo or divide the votes between Akpabuyo and Bakassi when Ikang is not under Akpabuyo as currently constituted by Law No. 7 of 2007.

Upon the determination of these questions, the Respondent claimed reliefs on the summons as follows:-

(1) A declaration that Law No.7 of 2007 passed by the Cross River State House of Assembly pursuant to Section 8(4) and Section 4(7) of the 1999 Constitution and the inherent legislative power of the Cross River State House of Assembly which came into force on the 12th April, 2007 was validly passed.
(2) A declaration that the defendants do not have the power to declare any part of Akpabuyo or Bakassi as the “unceded” part of Bakassi Peninsular and carry out Registration of voters only in those areas as the new Bakassi Local Government Area without regard to Law No. 7 of 2007 of the Cross River State House of Assembly.
(3) A declaration that the registration of voters by the defendants in the three wards of Ikang and counting them under Akpabuyo or dividing same between Akpabuyo and Bakassi is unconstitutional, null and void and same should be counted for Bakassi only.
(4) A declaration that the defendants should conduct elections in the 3 wards of Ikang in Bakassi which inhabit the resettled people of Bakassi and count the votes under Bakassi Local Government Area as Ikang is not under Akpabuyo Local Government Area.

After the filing and exchange of affidavit and addresses by the learned counsel for the parties, the Federal High Court on the 8/7/2011 entered judgment in favour of the Respondent and granted all the four (4) reliefs above.
Being dissatisfied with that judgment, the Appellants filed a notice of appeal against it on the 5/8/2011 on three (3) grounds from which three (3) issues were formulated for determination in the Appellant’s brief filed on the 1/6/12. The issues are thus:

ISSUE 1:
3.1: Whether a State House of Assembly can make a law for the delineation of constituencies for an election to be conducted by the Independent National Election Commission.

ISSUE 2
3.2: Whether it is mandatory by virtue of the provisions of the Evidence Act for a court of law to take judicial notice of the provisions of the Constitution and Statutes of the National Assembly.

ISSUE 3
3.3 Whether the Federal High Court has jurisdiction to Order a fresh election where such an election has already been conducted, returns made and winner declared.

In the Respondent’s brief filed on 8/8/12 but deemed on the 2/12/13, the date of the oral hearing of the appeal, three (3) issues are set out for determination in the following terms:-

“3.01. Whether the Court below was right in holding that Law No. 7 of 2007 passed by the Cross River State House of Assembly pursuant to Section 8(4) and Section 4(7) of the amended constitution and the inherent legislative power of the Cross River State House of Assembly which came into force on the 12th of April, 2007 was validly passed to warrant the delineation of wards based on it.
3.02. Whether the making of Law No. 7 of 2007 by the Cross River State House of Assembly amounts to delineation of constituencies thereby usurping the functions of INEC, the Appellants in this appeal.
3.03. Whether the issues for determination before the court below are the pre-election matters and if the answer to the above question is in the affirmative, whether the order of a fresh election by the court below was right and proper in the circumstance in which it was made.
The above issues formulated by the learned counsel for the parties are in tones which favour the parties, which they are entitled to do within the confines of the grounds of the appeal. The issues submitted by the Appellants are more concise and succinctly, derivable from the grounds of the appeal. I would use the issues in the determination of the appeal.

ISSUE 1
The learned counsel for the Appellants, had argued under the issue that under the provisions of Sections 91, 112, 113 and 114 of the 1999 Constitution (as amended) it is clear that only the 1st Appellant is empowered to delineate constituencies in a State of the Federation for the purpose of an election to be conducted by it and not a State House of Assembly. Section 114 of the Constitution was set out in the brief and it was submitted that the Federal High Court erred in its decision when it failed to take cognizance of the constitutional provisions. We are urged to resolve the issue in favour of the Appellants.

The learned counsel for the Respondent had responded to the issue in his own Issue ‘1’ under which he submitted that by the provisions of Section 4(7) of the Constitution, the Cross River State House of Assembly has the power to make laws for the State, and under Section 8(4), has the power to adjust boundaries of Local Governments in the State, pursuant to which it passed or enacted the Law No. 7 of 2007 which adjusted the boundaries between Bakassi and Akpabuyo Local Government Areas of the State which came into effect on the 12/4/2007. He said the ward delineation which the Appellants used for the registration of voters and the election was the one applicable prior to the ceding of Bakassi Pennisula to Cameroun by which most of the areas therein had been ceded and no longer exist as part of the local government. It was the contention of learned counsel that the Appellants ought to have come out with a new Ward delineation which would reflect the present Bakassi by virtue of Law No. 7 in accordance with which the election was said to have been conducted by them. That the Cross River Independent Electoral Commission (CROSIEC) used the same law for elections conducted into the Local Government Councils in 2007 and 2010.
In further submissions, learned counsel said that since Law No. 7 was validly passed, the Federal High Court was right to hold that registration process and the election by the 1st Appellant in the Bakassi Local Government, should be based on it. We are urged to resolve the issue in favour of the Respondent.

I would determine the issue before the consideration of the others. I would start by saying that the complaint of the Appellants in both ground 1 of the appeal and the Issue 1 is not as to whether the Cross River State House of Assembly has the constitutional powers to either make laws for the State or adjust the physical boundaries of the Local Government Areas in the State. Because the case of the Respondent before the Federal High Court, from the questions raised and the reliefs sought for in the originating summons, related to the exercise of the powers of the 1st Appellant under the Constitution to conduct voters registration all over the country for the purpose and the actual conduct of elections for the elective offices provided under the Constitution, the relevant and crucial issue in the case and which requires decision here is whether the 1st Appellant in the exercise of its powers under the constitution is bound by the provisions of Law No. 7. More specifically, whether in exercise of the power under the provisions of Sections 112, 113 and 114 of the 1999 Constitution, the 1st Appellant is bound to divide State Constituencies in accordance with the provisions of Law No. 7. The provisions of sections 112, 113 and 114 of the constitution are as follows:-

“112- Subject to the provisions of section 91 and 113 of this Constitution, the Independent National Electoral Commission shall divide every State in the Federation into such number of State constituencies as is equal to three or four times the number of Federal Constituencies as is equal to three or four times the number of Federal constituencies within that State.
113- The boundaries of each constituency shall be such that the number of inhabitants thereof is as nearly equal to the population quota as is reasonably practicable.
114- (1) The Independent National Electoral Commission shall review the division of every State into constituencies at intervals of not less than ten years, and may alter such constituencies in accordance with the provisions of this section to such extent as it may consider desirable in the light of the review.
(2)- The Independent National Electoral Commission may be at any time carry out such a review and alter the constituencies in accordance with the provisions of this section to such extent as it considers necessary in consequence of any alteration of the boundaries of the State or by reason of the holding of a census of the population of Nigeria in pursuance of an Act of the National Assembly.

I am in agreement with the learned counsel for the Appellants when he said in his brief of argument, that these provisions are clear and unambiguous such that they require no interpretation. The only expected duty of the court in applying the provisions to cases before them in which they are relevant, is to give and ascribe ordinary meaning to the plain and clear words employed therein by the legislature. As such, no glosses or interpolations are expected from the court in the application of the very clear, plain and unambiguous provisions of the constitution or indeed, any statute.
It is “clear as crystal” that the power to divide every state in the Federation, into State Constituencies and review or alter such in the Federation, into State Constituencies and review or alter such divisions from time to time as may be desirable or necessary, by the 1st Appellant is not subject to any State law however, by the above provisions. It should be realized that these provisions deal with the division of States into State Constituencies for the purposes of elections to be conducted by the 1st Appellant and the adjustment, review or alteration of such constituencies as may be considered desirable or necessary by the 1st Appellant. These provisions have absolutely nothing to do with the issues of creation of Local Government Areas in the States or the adjustments of the physical boundaries of such local government areas in the States which are primarily conducted for development and not for the conduct of elections for which the divisions, delineation or creation of State Constituencies under the above provisions, are primarily and specifically provided. The law No. 7 which adjusted the boundaries of Akpabuyo and Bakassi Local Government Areas of Cross River State by naming Ikang North, Central and South Wards of Akpabuyo Local Government Area to be in Bakassi Local Government Area did not change, alter or review the division of Cross River State into State Constituencies done or created, marked or delineated by the 1st Appellant in exercise of the powers vested in it by the above provisions of Sections 112 and 114 of the Constitution. Law No. 7 was not a must consideration, a limitation or a condition precedent in the exercise of the powers vested in the 1st Appellant by the constitutional provisions above which are not subject to it. The power and authority to create by division of states into, review and alter state constituencies under the above provisions of the Grund Norm of the land, are vested and reside with the 1st Appellant. Such powers are not and cannot be fettered by or subjected to any Law enacted by a State House of Assembly in Nigeria, including the Law No. 7. State Houses of Assembly do not have the power and authority under the constitution to create, review or alter State Constituencies for the purposes of elections to be conducted by the 1st Appellant in the country. However, being a State Executive Body created or established under the provisions of Section 197(1) of the Constitution with powers to organize, undertake and supervise all elections to local government councils within a State under Part 11(b), 4(a) of the Third Schedule to the constitution, a State Independent Electoral Commission, is bound by a law enacted by the State House of Assembly pursuant to Part II, Paragraphs 12 of the Second Schedule to the Constitution, in the conduct of elections into local government elective offices.

For our purpose in this appeal, the CROSIEC, was bound in the conduct of elections for the offices of the Chairmen and Councilors for the Local Government Areas of the State, by the Law No. 7, which adjusted the boundaries of Akpabuyo and Bakassi Local Government Areas. Simply because the local government elections conducted by CROSIEC in 2007 and 2010 were in accordance with the law No. 7, does not make that law authority for the division of Cross River State into State Constituencies under the provisions of the Constitution set out earlier. Once more, the unfettered power and authority to divide States into State Constituencies, thus creating, making and/or delineating such constituencies for the purposes of the elections to be conducted by the 1st Appellant, are exclusively, vested and reside with it under the said constitutional provisions. Let me however say that the Cross River State House of Assembly has the power and authority to adjust the boundaries of local government areas in Cross River State by virtue of Section 8(4) of the Constitution which provides thus:-

“8(4)- A bill for a Law of a House of Assembly for the purpose of boundary adjustment of any existing local government area shall only be passed if:

a) a request for the boundary adjustment is supported by two-thirds majority of members (representing the area demanding and the area affected by the boundary adjustment) in each of the following, namely-

i) the House of Assembly in respect of the area, and
ii) the local government council in respect of the area, is received by the House of Assembly; and

b) a proposal for the boundary adjustment is approved by a simple majority of members of the House of Assembly in respect of the area concerned.

By the clear provisions in section 8(4)(b) above, the proposal for the boundary adjustment of any existing local government area in Cross River State, which meets or satisfies the requirements stipulated in 8(4)(a) is approved by a simple majority of members of the State House of Assembly in respect of the area concerned. There is no provision for a further or other approval of whatever nature from any authority or body for the adjustment of the boundaries of an existing Local Government Area in the State to take effect or come into force after the approval by the simple majority of members of the State Assembly provided for in the above provisions. Consequently, the Cross River State House of Assembly is empowered and authorized by the said provisions to adjust the boundaries of existing Local Government Areas in the State without reference to any other body or authority as long as the provisions were complied with in the process.

Adjustment of the boundaries of existing local government areas in a State is distinct and different from the creation of new local government areas in a State which was provided for under Section 8(3) of the Constitution (as altered) which may necessitate the approval of the National Assembly for purposes of amending the Constitution to include the names of the newly created local government areas in the schedule thereto. Adjustment of boundaries of existing Local Government Areas in a State is an affair or an issue or process that is started from the Local Government Areas concerned and ended in the State House of Assembly with the approval by a simple majority of the members in respect of the area concerned. The adjustment of such boundaries come in to effect when the approval by the named majority members of the Assembly, by way of a bill passed, is assented by the Governor of the State or on the date named therein. A bill passed by the State Assembly for the adjustment of the boundaries of existing Local Government Areas of the State becomes a Law enacted for the state by the Assembly when it was duly assented by the Governor of the State.

In the present appeal, the Law No. 7, by its title, is clearly one meant, intended and actually adjusted boundaries between Akpabuyo and Bakassi Local Government Areas, which are existing local government areas in Cross River State. The fact that in the adjustments, places affected thereby were described or called “Wards” does not detract from the unambiguous, express and clear intention of the law to adjust the boundaries of the named Local Government Areas. The mere use or employment of the words does not take the law out of purview or con of the provisions of Section 8(4) above into the creation or delineation of wards or State Constituencies for the purposes of elections conducted by the 1st Appellant.
For the above reasons, I agree with the learned counsel for the Respondent when he said that Law No. 7 was a law duly passed by the Cross River State House of Assembly and came into force on the date named thereon, however not for the purpose of adjusting State Constituencies or wards created or demarcated by the 1st Appellant for the election it has the responsibility to conduct in the areas affected. The law is purely for the adjustment of the boundaries of the named existing Local Government Areas of the Cross River State.
In these premises, I answer the Appellants’ issue ‘1’ in the negative; i.e. a State House of Assembly has no power and authority to create, alter or review State Constituencies into which a State was divided by the 1st Appellant for the purposes of any election to be conducted by it. The issue is resolved in favour of the Appellant.

ISSUE 2
Whether a court of law has the duty under the Evidence Act, to take judicial notice of the provisions of the Constitution.

Learned counsel for the Appellants had submitted on the issue that by virtue of Section 221(1) of the Evidence Act 2011, a court is bound to take judicial notice of all laws and enactment in force in the country, relying on the case of Lakanmi v Adene (2003) FWLR (163) 24 at 41, (03) NWLR (828) 353 at 374. He said the Federal High Court ought to have taken notice of and considered the provisions of sections 91, 112, 113, 114 and 115 of the Constitution before reaching its decision in the Respondent’s case and that failure to do so has occasioned a miscarriage of justice. We are urged to resolve the issue in the affirmative.

The learned counsel for the Respondent did not answer the issue but has under his own Issue 2 argued that Law No. 7 is not on delineation of wards and did not overlap the function “of the respondents”, he means to say the 1st Appellant. The provisions of sections 112, 113, 114 and 115 of the constitution were set out in the brief by counsel who said by anology, division of a local government into wards must be within “the Area which is adjudged” which he said law No. 7 did. The case of Balonwu v. Anambra State (2010) ALL FWLR (503) 1206 at 1220 was cited on the interpretation of clear and unambiguous words of a statute and it was argued that the provisions of sections 4(7) and 8(4) on the one hand, and 112, 113, 114 and 115 of the constitution cannot be confused because they are unrelated. We are urged by learned counsel to resolve the issue in favour of the Respondent.

I have read the decision of the Federal High Court which is at pages 255-264 of the record of appeal and observed that the provisions of the constitutions above were not alluded to and considered therein. Under issue 1, I have found that the said provisions are the source of the 1st Appellant’s power and authority to divide, create, demarcate or delineate State Constituencies for the purposes of elections to be conducted by it and that they are not subjected to the Law No. 7, the law considered and applied by that court in its decision. As a result, if the provisions had been dutifully taken judicial notice of as required by section 122(a) of the Evidence Act above, and considered and applied judiciously, a more favourable outcome or decision in the case would have been expected for the Appellants as Defendants before that court. By the above definition of miscarriage of justice, the failure to take the judicial notice, consider and apply the constitutional provisions above, has undoubtedly, occasioned it to the Appellants. For that reason, I find merit in the Appellants’ issue 2 which is resolved in their favour.

ISSUE 3
The issue questions whether the Federal High Court has the jurisdiction to order fresh election when an election had been conducted, results declared and winner returned therefor. The submissions by the counsel for the Appellants are to the effects that the Federal High Court has no jurisdiction to make the order for fresh election, citing the provisions of sections 285(2) of the constitution as well as 68(1)(1) and 133(l),(2), (9)(b) of the Electoral Act, 2010. He said an order for fresh election in the three (3) Wards of Ikang under Bakassi Local Government Area and not Akpabuyo Local Government Area has the effect of invalidating the victory of the winner of the election held in April, 2011 by the 1st Appellant contrary to the provisions and so wrong, placing reliance on Odedo v INEC (2008) 17 NWLR (1117) 554 at 616 and section 68(1)(c) of the Electoral Act. It was the contention of counsel that the results of an election which had been conducted by the 1st Appellant can only be challenged or questioned before an Election Tribunal and not before the Federal High Court which therefore lacks the jurisdiction to make the order sought for in Respondent’s relief 4. The case of APGA v Ohakum (2009) 4 NWLR (1130) 116 at 153 – 4 was referred to as authority for the submission and we are urged to resolve the issue in the negative and hold that the Federal High Court lacks the jurisdiction to grant relief 4.

For the Respondent, it was submitted on the issue that the matter before the Federal High Court, was a pre-election and not post-election matter over which an Election Tribunal has exclusive jurisdiction and so not covered by Section 285(2) of the constitution. Learned counsel for the Respondent had pointed out that the case before the Federal High Court was filed on 24/3/2011 which was before the conduct of the elections by the 1st Appellant in April, 2011 and before the Election Tribunals began sitting. Relying on Ohia v Omegura (2010) ALL FWLR (519) 1171 and 1187; Argungu v Argungu (2010) ALL FWLR (510) 681 at 686 & 698 and Arabi v Gbabijo (2000) ALL FWLR (527) 710 at 722 &. 741 – 2, it was submitted by counsel that Elections Tribunals have no jurisdiction over pre-election matters under the constitution and because the Respondent questioned the activities of the 1st Appellant before the election, his case was a pre-election matter and the order for fresh election made by the Federal High Court was proper since the activities were a nullity as such there was nothing for the election to stand on. All the authorities cited by the counsel for the Appellants under the issue as well as the provisions of the constitution and the Electoral Act, are said not to be applicable in the Respondent’s case and do not help the Appellants. We are urged to resolve the issue in favour of the Respondent and to dismiss the appeal.

With my findings and resolutions of the Appellants’ issues 1 and 2 above, this issue would appear to have been subsumed therein and overtaken thereby. Perhaps I should say that both learned counsel are right in their respective re-statement of the law on jurisdiction over pre-election matters and post-election matters. On the authorities cited by them; constitutional, statutory and judicial, jurisdiction in respect of or over pre-election matters is vested in the regular superior courts while jurisdiction in respect of or over post-election matters, is conferred on the relevant Election Tribunals. See AC v INEC (2007) 18 NWLR (1065) 50; Amaechi v INEC (2008) 5 NWLR (1080) 227; Agbakoba v INEC (2008) 18 NWLR (1119) 489; PDP v Onwe (1174) NWLR 166.

See Agbakoba v INEC (2008) 18 NWLR (1119) 489 at 536 which is also authority for the principle that a pre-election dispute does not necessarily metamorphose into a post-election dispute by the holding of the actual election it fore-shadowed or in respect of which it was initiated.
However, the fact that an action was initiated before the holding of an election does not also automatically become a pre-election dispute particularly if it does not relate directly to the holding of the election or nominations of the candidates to contest the election by the political parties. Pre-election disputes in the words of the Supreme Court in the Agbakoba v INEC above “encompass the stage of conducting party primaries to holding of actual elections.”
Although the Respondent’s action was initiated before the actual conduct of the April, 2011 election in the State Constituencies created, demarcated or delineated by the 1st Appellant, the order granted by the Federal High Court in terms of relief 4 sought for by the Respondent in the case, as rightly stated by the learned counsel for the Appellants, has the effect of nullifying the election conducted, the results declared and returned in the constituency created by the 1st Appellant for the purpose of that election. Let me point out that the division, creation, demarcation or delineation on the one hand or review or alteration of State Constituencies by the 1st Appellant pursuant to the provisions of Sections 112 and 114 respectively, does not amount to the creation of a local government area, or alteration of the boundaries of local government areas in a State. Furthermore, the 1st Appellant is not bound to create State Constituencies in line with along or within the limits of the boundaries of a local government area for the purpose of the election it conducts. The 1st Appellant can create State Constituencies which comprises wards delineated by it, across the boundaries of Local Government Areas for the purpose of the election it conducts.
For the 1st Appellant to be ordered by the Federal High Court to conduct elections in wards in a State Constituency which it had created and demarcated for and where it had conducted election already, appears to me in the above premises, to be beyond the valid jurisdiction of that court on the facts and in the circumstances of the Respondent’s case. That order was made without the requisite jurisdiction and so incompetent. On that ground, I resolve the issue in favour of the Appellant.

In the final result, with the resolutions of the three (3) issues formulated for the Appellants in their favour. I find merit in the appeal and allow it.
As a consequence, the orders 2, 3 and 4 made by the Federal High Court in the judgment in suit No. FHC/CA/CS/41/2011 delivered on 8/7/2011 are hereby set aside. For the avoidance of doubt the orders are:

“2. A declaration is made that the Defendants do not have the power to declare any part of Akpabuyo or Bakassi as the “unceded” part of Bakassi Pennisular and can carry out registration of voters only in those areas as the new Bakassi Local Government Area without regard to Law No. 7 of 2007 of the Cross River State House of Assembly.
3. A declaration is made that the registration of voters by the Defendants in the three wards of Ikang and counting them under Akpabuyo or dividing same between Akpabuyo and Bakassi is unconstitutional, null and void and ought to have been counted for Bakassi only.
4. An order is made that the Defendants conduct elections in the wards of Ikang in Bakassi which inhabit the resettled people of Bakassi and count the votes under Bakassi Local Government Area as Ikang and not under Akpabuyo Local Government Area, thirty days from the date of this judgment.

Order 1 granted by the Federal High Court that Law No. 7 was validly passed by the Cross River State House of Assembly, is hereby affirmed.
Parties shall bear their respective costs of the appeal.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. The reasoning and conclusions reached therein are perfect. I have nothing more to add. The three issues articulated by the Appellants have been resolved on their behalf. This appeal is therefore allowed by me also. I also endorse all the other consequential orders in the lead judgment.

A. OTISI, J.C.A.: I had the privilege of reading, in advance, the Judgment delivered by my learned Brother, Mohammed Lawal Garba JCA. The issues raised in this appeal have been comprehensively addressed by my learned brother, and, I am in agreement with his reasoning and conclusion.
I abide by the Orders made in the Lead Judgment.

Appearances

Chief Uting Eteng Holding the brief of Victor OdjemuFor Appellant

AND

V. C. MbaFor Respondent