DOZIE OBIONWU & ORS v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
(2013)LCN/6568(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of December, 2013
CA/E/303/2011
RATIO
WHETHER ISSUES FOR DETERMINATION MUST DEAL WITH CONTROVERSIAL ISSUES IN A JUDGMENT
The grounds of an appeal against the judgment of a court, must contain only complains against what the court decided, found or held. Any ground of appeal that complains against what was not decided by the lower court is incompetent. Any ground of appeal that alleges events that are not supported by the record of appeal is not valid for consideration. Per EMMANUEL AKOMAYE AGIM, J.C.A.
It is trite law that just as the grounds of an appeal must deal with what was decided in the judgment, an issue for determination which must derive from one or more of the grounds of an appeal must deal with and be restricted only to the matters decided in the judgment. It must deal with the real issues in controversy decided in the judgment. See MAGIT V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2005) 19 NWLR (PT 959) 211 AND IKPUKU & ORS V. IKPUKU & ORS (1991) 5 NWLR (PT 193) 571 AT 588.. Per EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ADZIRA G. MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. DOZIE OBIONWU
2. NDUBUISI OKOYE
3. EMEKA OKOYE
4. GABRIEL EJIKEKE
5. KENE IKEANYIOKWU (For themselves and on behalf of the Indigenes of Idemili North Local Government Area of Anambra State) Appellant(s)
AND
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 17th of December 2010 the appellants herein, as plaintiffs commenced Suit No. FHC/AWK/CS/276/2010 by filing an originating summons claiming for:-
(a) A declaration that Anambra State House of Assembly is improperly constituted per the current number of thirty state legislators, in contravention of Sections 75, 91, 112, 113 and 114 of the 1999 Constitution.
(b) A declaration that Anambra State House of Assembly as presently constituted cannot effectively legislate for the good governance of the State.
(c) An order of court directing the defendant to immediately reflect the correct number of state legislators by increasing same from thirty to thirty-three, having regard to the provisions of Sections 75, 91, 112, 113 and 114 of the 1999 constitution.
(d) An order of court directing the defendant to increase the number of the members of Anambra State House of Assembly from Idemili North Local Government Area to reflect the population of same as per the figures of 2006 census final result, and in compliance with Sections 75, 91, 112, 113 and 114 of the 1999 Constitution.
(e) Injunction restraining the defendant from conducting election into the Anambra state House of Assembly pending the determination of this suit.
The originating summons also asked for the determination of the following questions:-
1. Whether having regard to Sections 75, 91, 112, 113 and 114 of the 1999 Constitution, the Anambra State House of Assembly as presently constituted, with regard to the number of thirty state legislators, is constitutional.
2. Whether having regard to the express provisions of Sections 75, 91, 112, 113 and 114 of the 1999 Constitution the minimum number of state legislators of Anambra State House of Assembly should be thirty-three members as against the present thirty members.
3. Whether the defendant’s failure to constitutionally reflect the appropriate number of members of the Anambra State House of Assembly (33 members) in the conduct of the forthcoming election is constitutional, having regard to Sections 75, 91, 112, 113 and 114 of the 1999 constitution.
4. Whether given the population of Idemili North Local Government Area of Anambra State as reflected in the 2006 census final results and in conjunction with the provisions of Sections 75, 91, 112, 113 and 114 of the 1999 Constitution the plaintiffs are adequately represented in the Anambra State House of Assembly by only one member.
The origination summons is supported by an affidavit of 7 paragraphs with documentary exhibits attached thereto and the appellants’ written address. The respondent, as the defendant filed a counter affidavit of 12 paragraphs with one documentary an exhibit and the respondent’s written address in opposition to the originating summons. The trial court considered the evidence in the affidavits and the written address of Counsel to both parties and rendered judgment on 27th October 2011 dismissing the claim of the appellants.
Dissatisfied with this decision of the trial court the appellants on the 25th November 2011 commenced this appeal No. CA/E/303/2011 by filing a notice of appeal containing 4 grounds of appeal.
Both parties to this appeal have filed, exchanged and adopted their briefs of argument. The briefs of argument of the parties are the appellant’s brief of argument, the respondent’s brief and the appellants’ reply on points of law.
The appellants’ brief of argument raised two issues for determination as follows-
1. Whether the lower court abandoned its judicial function by failing to make a pronouncement on an issue based on the interpretation of the constitution as clearly submitted to it by the appellant. Ground 1, and 4.
2. Whether mandamus is the proper method of commencing an action with respect to the interpretation of the provisions of the 1999 Constitution. Ground 2 and 3.
The Respondent’s brief of argument raised three issues for determination as follows –
1. Was the learned trial Judge correct when he held that the gravamen of the case of the Appellant is that they, inter alia, want the Court to direct the Respondent to increase the number of the legislators in the State House of Assembly from 30 to 33 and an order of Court to increase the number of representatives from Idemili North Local Government Area.
2. Was the learned trial Judge correct when he held that the case evidently was for an order to compel the Respondent, a public body to perform its constitutional duty and that the Appellants did not establish a refusal on the part of the Respondent to perform the act.
3. Did the learned trial Judge “completely abandon” the claim of the Appellants to set up an entirely new claim for the Appellants.
The Respondent’s brief of argument contains a notice of preliminary objection to the appeal and arguments of the preliminary objection. The notice of preliminary objection in the respondent’s brief is the same with the separate notice of preliminary objection filed by the respondent on 18th October 2013, 14 days after it filed its brief. The appellants responded to the respondent’s arguments of the preliminary objection in their brief titled “Appellants Reply on Points of Law.” Counsel to both sides have adopted their respective arguments in respect of the preliminary objection.
Since the preliminary objection challenges the competence of some or all of the grounds of appeal and the issues for determination raised by the appellant, I will consider it first, before determining the merit of the appeal if need be.
The grounds of the preliminary objection stated in the notice and the respondent’s brief are as follows –
1. Ground 3 of the Grounds of Appeal is incompetent and ought to be struck out in that it has not complained against a decision of the learned trial Judge, but the complaint is an extract from a quotation placed before the High Court by the Appellants from the learned authors of De Smiths Judicial Review of Administrative Action 4th Edition.
2. Issue 2 as formulated by the Appellants does not arise from the decision of Court, as well as the Grounds of Appeal especially Grounds 2 and 3 from which the issue was expressed to be distilled.
(i) For the reason that no issue or issues were distilled from Grounds 2 and 3 the Grounds are deemed abandoned and ought to be struck out.
(ii) The entire argument of the Appellants advanced in support of issue 2 ought to be struck out not being founded on competent grounds and issue for determination.
3. Ground 4 of the Grounds of Appeal does not arise from the decision of the Federal High Court appealed against.
(i) Issue t as formulated which is expressed to arise from Ground 4 of the Grounds of Appeal, does not arise from Ground 4 and ought to be struck out.
(ii) The entire argument of the Appellants in support of issue 1 ought to be struck out for being founded on the incompetent Ground 4.
4. For the reason that the objections raised transcend the entire appeal, the Court of Appeal will be urged to strike out the appeal in its entirety.
I will determine the grounds seriatim. So I will start with the first ground. The first ground of objection is that the third ground of appeal is not a complain against any part of the decision of the trial court. It becomes necessary therefore for ease of reference and for a better understanding of the determination of this ground of objection that the said ground 3 of this appeal be reproduced here. It states thus –
“GROUND 3
Misdirection:
The Learned trial court misdirected itself in law, and thereby occasioned grave miscarriage of justice in holding that:
“Mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. The applicant might show that he has demanded performance of the duty and that performance has been refused by the authority obliged to discharge it”
Particulars of Misdirection:
(i) The suit as constituted in relief (a) calls for interpretation of the 1999 Constitution, particularly Sections 75, 91, 112, 113 and 114.
(ii) There is no principal relief based on mandamus.
(iii) An order of mandamus is not a means of interpretation of the provisions of the 1999 constitution.
(iv) The order directing the Defendant/Respondent is entirely predicted on the interpretation of Sections 75, 91, 112, 113 and 114 of the 1999 Constitution.”
Learned Senior Advocate for the respondent argued that the statement alleged by the said ground 3 of this appeal to have been made by the trial court was not made by the said court and so it was not the holding of the trial court. According to the Learned Senior Advocate the statement was that of the Learned authors of De Smith’s Judicial Review of Administrative Action (4th edition) quoted by Learned Counsel for the appellant in his written address at the trial court and the trial court merely relied on it in its decision. Learned Counsel for the appellant in responding to this argument did not deny that the statement was not that of the court. He did not dispute that it is not the holding of the trial court. He did not dispute that it was a statement of the Learned authors he quoted in his written address at the court a quo. All that the Learned Counsel for the appellants said in response to the above argument of the Learned Senior Advocate is as follows- “Finally, on the submission that ground 4 stems from the quote adopted by the lower court in its judgment the complaint by the appellants is that it is that part of the judgment which formed the basis or rationale of the judgment.”
I have carefully perused the judgment of the trial court as well as ground 3 of this appeal. It is glaring that the said statement was not made by the trial court. It was not the holding of that court. It is the statement of the Learned authors of De Smiths Judicial Review of Administrative Action 4th Edition. It was quoted in the written address of Learned Counsel for the appellants at the trial court. In its judgment, the trial court referred to and reproduced the said statement of the Learned authors immediately after it had held that “The case as could be seen is an order to compel, the defendant, a public body to perform its constitutional duty. Without much ado however I could see that the plaintiffs have not established that the defendant has refused to perform the act. Exhibit ‘F’ annexed to the originating summons of the plaintiffs is the letter the plaintiffs sent to the defendant to reflect the 2006 census figure for Obosi Community in the number of seats allocated to the Community in the House of Assembly, Exhibit G is the letter from the defendant to the plaintiffs’ Community that it recognizes the need for the defendant to review the electoral constituencies nationwide and therefore invited the plaintiffs to attend four sessions of interactive meeting with all stakeholders. In my opinion this cannot be construed to mean a refusal by the defendant to carry out the public duty.”
It is clear from the above quoted part of the judgment of the trial court that the holding is that since the respondent had set in motion the process of complying with the request of the appellants in exhibit F that the electoral constituencies be reviewed to reflect the 2006 census figures for Obosi Community, it has not refused to carry out its public duty to periodically review electoral constituencies to accord with the 2006 population census figures for the said community. It is noteworthy that there is no ground of appeal against this holding of the trial court. The legal consequence of the absence of an appeal against this holding is that the parties to the case are satisfied with it. An appeal, is the only process by which any of the parties can express its disagreement with the regularly and duly made decision of the High Court. If a party has not appealed against a decision or any part of it, he will be deemed to have accepted it as correct, valid and binding on him. Such a holding unless set aside on an appeal against it, remains valid, subsisting and binding on the parties to the case.
The trial court referred to the statement of law by the Learned authors to support its view that an order to compel or direct a public body to perform its public duty cannot lie where the public body, has, in compliance with a demand for it to perform that duty, set in motion a process to perform the said duty. There is no ground of appeal complaining that the trial court wrongly referred to and relied on the said statement of legal principle. I agree with the Learned Senior Advocate for the respondents that if the appellants disagree with the Court’s use of that ual authority, the proper thing to have done was to complain in a ground of appeal that the reliance on the statement of legal principle was wrong in a particular respect. The appellants did not do this.
What the appellants have done in ground 3 of this appeal is that they declared the said statement of law as the holding of the court. This in my view is not correct. There is a clear distinction between the decision, finding, holding of a court and the authorities cited or relied on by the court for its decisions. Where a court quotes a passage from a judicial or ual authority to support a decision or holding it has already made, such a quotation cannot be regarded as the holding of the court. A quotation of a passage in a judicial or ual authority to illustrate the correctness of the holding of a court cannot be described or treated as the holding of that court.
The grounds of an appeal against the judgment of a court, must contain only complains against what the court decided, found or held. Any ground of appeal that complains against what was not decided by the lower court is incompetent. Any ground of appeal that alleges events that are not supported by the record of appeal is not valid for consideration. Ground 3 of this appeal is based on allegation that the trial court made a particular holding. It is now obvious that it did not make such a holding. Therefore the said Ground 3 is incompetent as it is not valid for consideration. Accordingly, it is hereby struck out.
In the light of the foregoing, I hold that the first ground of the preliminary objection succeeds. Ground 3 of this appeal is incompetent and is accordingly hereby struck out.
I will now consider the 2nd ground of the preliminary objection. The respondent under this ground contends that the 2nd issue for determination raised in the appellant’s brief of argument and grounds 2 and 3 of this appeal do not deal with or attack any point decided in the judgment of the trial court. Since the subject of this ground of objection is the appellants’ 2nd issue for determination, I will start the determination of this ground by reproducing here the said second issue for determination for ease of reference. It states thus – “Whether mandamus is the proper method of commencing an action with respect to the interpretation of the provisions of the 1999 Constitution”.
The Learned Senior Advocate for the respondent has argued that the judgment of the trial court did not decide that the action was improperly initiated by an application for an order of mandamus. It is noteworthy that Learned Counsel for the respondent did not reply to this submission. This absence of a reply notwithstanding, I will still consider the merit of the argument of the Learned Senior Advocate for the appellants.
It is obvious that the said issue No 2 as framed presupposes that the trial court had decided that the writ of mandamus was the proper method of commencing the action at the trial court. I have calmly and carefully read the judgment of the trial court to find out if it contains any decision or holding on the commencement of the suit by the prerogative writ of mandamus. I am unable to find any such decision or holding. The obvious position is that the second of the appellants’ issue for determination does not deal with any matter decided in the judgment of the trial court appealed against. It is trite law that just as the grounds of an appeal must deal with what was decided in the judgment, an issue for determination which must derive from one or more of the grounds of an appeal must deal with and be restricted only to the matters decided in the judgment. It must deal with the real issues in controversy decided in the judgment. See MAGIT V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2005) 19 NWLR (PT 959) 211 AND IKPUKU & ORS V. IKPUKU & ORS (1991) 5 NWLR (PT 193) 571 AT 588.
An issue raised to determine a point not decided in the judgment appealed against amounts to a hypothetical or academic question. Such a question serves no practical purpose. It is also trite law that such questions are not valid or competent for the court’s consideration.
Furthermore there is no ground of appeal complaining that the trial court decided that the writ of mandamus is the proper method of commencing the suit or that the suit was improperly commenced for any reason. So the issue is not derived from any ground of this appeal. An issue for determination in an appeal must derive from one or more of the grounds of the appeal. An issue raised for determination in an appeal which is not derived from any ground of the appeal is incompetent and cannot be valid for the court’s consideration. See OJE & ANOR V. BABALOLA & ORS (1991) 5 SCNJ 110.
In the light of the foregoing, I hold that the 2nd issue for determination in the appellant’s brief is incompetent.
The legal consequence of the incompetence of this second issue is that it cannot be the basis of any argument in the appeal. So that all arguments in the appellants’ brief that are made on the basis of that issue become equally incompetent. See OJE & ANOR V. BABALOLA & ORS (supra).
Furthermore the arguments under issue No 2 in the appellants’ brief is inconsistent with the 2nd issue as framed. Whereas the issue as couched is whether mandamus is the proper method of commencing an action with respect to the interpretation of the provisions of the constitution, the argument thereunder is that while the claim of the appellant invited the trial court to interpret certain provisions of the 1999 Constitution and issue orders as a result of such determination, the trial court, rather held that the respondent having accepted to perform the public duty to review state constituencies, had not refused the demand for it to do its duty and therefore there was no need for an order compelling it to perform the said duty.
The argument of an issue raised for determination in an appeal must be consistent with the issue being argued. It must be an amplification of the issue being determined. If the argument on the basis of an issue raised for determination deals with an issue different from the issue that formed the plank on which the argument was made, then the argument and the issue for determination are not congruent. Two consequences flow from this situation. One is that the issue raised for determination has not been argued and is abandoned. The other is that the argument is not derived from the issues raised for determination and therefore cannot stand.
I do not agree with the Learned Senior Advocate that the ground 2 of the notice of this appeal do not deal with the judgment of the trial court. The said ground 2 complained about the holding of the trial court that “the case as could be seen is an order to compel the defendant, a public body to perform its constitutional duty. Without much ado however I could see that the plaintiffs have not established that the defendants has refused to perform the Act.” This ground of appeal clearly attacks this part of the judgment of the trial court. I hold therefore that ground 2 of this appeal is competent.
I also do not agree with the contention of the Learned Senior Advocate that ground 2 of this appeal should be treated as abandoned because no issue for determination has been distilled from it. It is my view that the first issue for determination in the appellant’s brief covers the complain in ground 1, 2 and 4 of this appeal.
I will now deal with the last ground of the preliminary objection that ground 4 of this appeal is not an attack or complain against any part of the judgment of the trial court. The complain in this ground is stated thus- “the Learned trial court completely abandoned the claim of the plaintiffs and set up an entirely new claim for the plaintiffs, thereby occasioned a grave miscarriage of justice.”
PARTICULARS OF ERROR
(i) “There was no judicial pronouncement on whether the number of state legislators in Anambra State House of Assembly is in compliance with the clear and express provisions of Sections 75, 91, 112, 113 and 114 of the 1999 constitution as raised by the plaintiffs in their originating process.
(ii) The non-determination of this principal issue amounted to abandonment of the determination of the suit by the lower court thereby occasioned a grave miscarriage of justice.”
It is obvious that this ground of appeal complains about the failure of the trial court to specifically pronounce upon some of the reliefs and questions in the originating summons. It is beyond argument that this kind of complain can be made in a ground of appeal against the judgment of a trial court, where the judgment of the court does not reflect a consideration or determination of all the matters brought or put before it. This can be a ground for an appeal against the judgment. See the cases of BOB V. AKPAN (2010) ALL FWLR (PT 501) 896 AND OGBUEFI V. ASEC (2011) ALL FWLR (PT 603) 873 cited by Learned Counsel for the appellants.
The argument of the Learned Senior Advocate for the respondent that the trial court did not completely abandon the claims for relief (a) and (b) and that it implicitly decided those claims and expressly decided the claims for reliefs (c) and (d) turn on the merit of the said ground of appeal. The question of whether the trial court determined all the questions raised and the reliefs sought for in the originating summons cannot be argued as a basis for a preliminary objection to the competence of the ground raising such a question. The question deals with the merit of the appeal on that ground. For this reason I hold that the third ground of the preliminary objection is premature.
Learned Senior Advocate for the respondent also argued that issue No 1 in the appellants’ brief does not arise from ground 4 or any ground of this appeal and therefore should be struck out. I disagree with this submission. As already held herein, issue No. 1 in the appellants brief is derived from grounds 1, 2 and 4 of this appeal. Therefore, I hold that issue No 1 in the appellants’ is competent.
Having determined the respondent’s preliminary objection, for avoidance of doubt, it is necessary to state clearly which grounds of appeal and the appellants’ issue for determination survived the objection. The remaining and valid grounds of this appeal are 1, 2 and 4. Out of the two issues for determination raised by the appellant only issue No. 1 and the argument thereunder is remaining as valid. This appeal will therefore be determined on the basis of the above remaining grounds and issue.
Considering the judgment of the trial court, the grounds of this appeal, the issues for determination raised by both sides in their respect briefs and the arguments thereon, I will prefer to couch the issues that have arisen for determination as follows
1. Whether the trial court decided or pronounced on all the questions raised and reliefs sought for by the appellants in the originating summons.
2. Whether the Anambra State House of Assembly is constituted in accordance with Ss. 91 and 112 of the 1999 Constitution.
Let me start with the first issue of whether the trial court decided or pronounced on all the questions and reliefs in the originating summons.
The judgment of the trial court, the subject of this appeal is contained in three pages. The fourth page contains only the signature of the trial judge and names of Counsel. The actual decision in the judgment is contained in 1(1/2) pages of the judgment. I observe that this is an unusually terse judgment considering the nature of the issues presented by the case. The actual decision in the judgment states thus- “The gravermen of the case of the plaintiffs is that they inter alia want the court to direct the defendant to increase the number of the legislators in the Anambra State House of Assembly from 30 to 33 and an order of court to increase the number of representatives from Idemili North Local Government Area. The plaintiffs want these changes to reflect the present population of Anambra state having regard to the 2006 population Exercise in the country. The case as could be seen is an order to compel, the defendant, a public body to perform its constitutional duty. Without much ado however I could see that the plaintiffs have not established that the defendant has refused to perform the act. Exhibit ‘F’ annexed to the originating summons of the plaintiffs is the letter the plaintiffs sent to the defendant to reflect the 2006 census figure for Obosi Community in the number of seats allocated to the community in the House of Assembly, Exhibit G is the letter from the defendant to the plaintiffs’ community that it recognizes the need for the defendant to review the electoral constituencies nationwide and therefore invited the plaintiffs to attend four sessions of interactive meeting with all stakeholders. In my opinion this cannot be construed to mean a refusal by the defendant to carry out the public duty. The learned author of De Smith Judicial Review of Administrative Action 4th edition writes as follows:-
“Mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. The applicant might show that he has demanded performance of the duty and that performance has been refused by the authority obliged to discharge it.”
Having regard to the above this application cannot succeed and it is dismissed accordingly.”
Learned counsel for the respondent contends that this decision did not consider and pronounce upon the questions and the reliefs contained in the originating summons and rather made a different case for the parties. Learned Senior Advocate for the respondent has argued replicando that all the questions and reliefs were considered and decided by the trial court.
I will now proceed to find out if all the reliefs and questions in the originating summons were considered and decided by the trial court. The reliefs sought for are already reproduced at pages 2 and 3 of this judgment.
The claim for relief (e) and question three on the originating summons had been determined by the ruling of the trial court on 8th April 2011. The trial court in that ruling stated that-
“I have perused the submissions of both counsel. I could see that in paragraph (e) of the reliefs sought, the plaintiffs asked for an injunction restraining the defendant from conducting election into the Anambra State House of Assembly pending the determination of the suit. The said election is about 2 weeks from now. It is my opinion that granting such an injunction would not be in the public interest either for Anambra State or the Country as a whole. That prayer for injunction is therefore refused. The other issues raised in the originating summons, in my opinion are live issues which could be properly taken in respect of other elections in the state after the present April elections, the ruling is therefore put in abeyance until after the present elections. That is my decision.”
It is noteworthy that there is no appeal against this ruling. The parties herein are deemed to have accepted it as correct and binding upon them. Following this ruling, only reliefs a, b, c and d remained to be considered.
The claim for these reliefs was predicated on the determination of the questions raised in the originating summons. Therefore the grant or refusal of the reliefs must follow or derive from the determination of these questions. It is obvious from the judgment of the trial court that these questions were ignored and not determined. The trial court without determining these questions decided that there was no basis for an order compelling the respondent to review its current divisions of state constituencies for Idemili North Local Government. The trial court considered that the respondent had recognized the need for it to review the electoral constituencies nationwide and as a result invited the appellants to interactive meetings for that purpose and held that the respondent had not refused to review the current division of Anambra state into state constituencies and dismissed the appellants suit without any reference to the other reliefs and questions in the originating summons. It appears the trial court saw no need to deal with those other reliefs and questions in view of its above holding, because it understood those reliefs to be dependent on a successful determination of the claim for relief d. So it determined only the fourth question and the claim for relief d in the originating summons. Learned Counsel for the appellants contends that this holding did not determine the claims for reliefs a, b and c and questions 1 and 2 on the originating summons.
Learned Senior Advocate for the respondent has argued that the trial court by its holding that the respondent “recognized the need to review the electoral constituencies” had adjudged that the provisions of the Constitution relied on by the appellants in claiming for reliefs (a) and (b) indeed supported their case for increased membership of the Anambra State House of Assembly. It is also one of his submissions that the provisions of the Constitution were invoked to demonstrate the need for the respondent to review the current division of State Constituencies and increase the State Constituencies and the trial court adopted the approach of directly holding that there was such need without going through an analysis of the said constitutional provisions to show the existence of the need for such review. According to the Learned Senior Advocate, the purpose of all the reliefs and questions is to show that the respondent had the constitutional responsibility to carry out a review of the current divisions of State constituencies; to show that the need for it to carry out the review exist and to show that it has refused to carry out its responsibility. This purpose was achieved as the holding of the trial court showed. According to the Learned Senior Advocate, there is no specific style or format prescribed by law for writing judgments and that once the essential features of the case are duly reflected in the judgment, the style or format adopted by the court is immaterial.
I agree with the Learned Senior Advocate that the above holding of the trial court determined the question of the need for the respondent to review the current divisions of the state constituencies and alleged refusal of the respondent to carry out the said review. I also agree with the Learned Senior Advocate that Ss. 75, 92, 112, 113 and 114 of the 1999 Constitution relied on by the appellants show the need for the respondent to review current divisions of State Constituencies and that the trial court by the above holding had adjudged that these provisions support the case of the appellants for an increase in the membership of Anambra State House of Assembly.
I agree with the submission of Learned Counsel for the appellants that the Judgment of the trial Court determined the fourth question for determination on the originating summons and the claim for relief d. It did not determine the first and second questions and the claims for reliefs a, b, and c.
I think that the trial court had a duty to make some pronouncement concerning the said questions and reliefs. If it decided that because of its holding, considering them had become unnecessary it should have expressly said so. This duty arises in two ways. It arises as a legal requirement that a court has a mandatory duty to consider, pronounce upon or determine every issue raised by either party or both parties in the case before it. See BAYOL v. AHEMBA (1999) 7 SC (PT. 1) 92.
Secondly, it arises as a necessary implication of the trial court’s holding that there is need for the respondent to review the current division of State Constituencies, which need the respondent has recognized and in pursuance of which it has taken steps.
The holding of the trial court that there was need for the respondent to review the current divisions of State Constituencies in Anambra State and that the respondent had not refused to do so, made it very necessary that the first and 2nd questions and the claims for reliefs a, b and c be determined. This is because the implication of this holding is that following the 2006 population census results for Anambra State there was need to increase the State Constituencies and therefore the membership of Anambra State House of Assembly to reflect the increase in the population of the state in keeping with the provisions of Ss 75, 91, 112, 113 and 114 of the 1999 Constitution. Therefore it becomes necessary to determine, whether now that such an increase has not been effected and pending when this current process by the respondent to review the current divisions of state constituencies results in such an increase, is the State House of Assembly properly constituted as required by the above mentioned provisions of the 1999 Constitution. Furthermore, it is obvious from the tenor of reliefs a, b and c and questions 1, 2 and 3 that the appellants are contending that as at now the Anambra State House of Assembly is improperly constituted. This contention is clearly independent of the matter decided by the trial court. It was not answered by or determined by the trial court’s holding. It has nothing to do with the consequences of the 2006 population census results. It postulates that a State House of Assembly must be constituted as required by S. 91 and 112 of the constitution irrespective of the population of the state.
The failure of a court to consider and determine all the issues raised and canvassed before it by the parties can be a ground to remit the case back to that court if to consider and determine the questions and claims it failed to determine. See BAYOL V. AHEMBA (supra). Learned Counsel for the appellant has prayed this court not to remit the case to the trial court for retrial and that this court should exercise its general power under S.15 of the court of Appeal Act to determine the said question and reliefs that the trial court failed to determine. The Learned senior Advocate did not appose this application and went ahead to argue the merit of the said questions and claim for reliefs a, b and c. It is obvious that the trial court had the jurisdiction to determine the said questions and claims, the grounds 1, 2 and 4 of this appeal raise those questions and issues, there are sufficient materials in the record of this appeal to enable a complete determination of the questions and issues and further delay of the determination of these questions and claims will be avoided if this court determines them in this appeal. This is clearly an appropriate situation for this court to invoke its power under S.15 Court of Appeal Act to do what the trial court failed to do in the interest of substantial justice. See OBI V. INEC (2007) 11 NWLR (PT.1046) 565. I will therefore proceed to determine those questions and claims in exercise of the general power of this court under S.15 Court of Appeal Act.
It is conceded by both sides in their respective affidavits that the Anambra State House of Assembly is currently constituted by a total of 30 members and that Anambra State has a total of 11 seats at the House of Representatives. The appellants contend that the said Assembly is currently not properly constituted with those 30 members and that the Assembly can only be properly constituted if it has a membership of not less than 33 members.
According to the appellants, S. 91 of the 1999 Constitution requires that the total numbers of members that should constitute the House of Assembly should be three or four times the number of seats the state has in the House of Representatives. According to the appellants, since three or four times the 11 House of Representatives seats will be 33 or 44, the House of Assembly can only be constituted in accordance with S.91 of the Constitution if it has a membership of not less than 33 members.
In paragraphs 8, 9, 10 of the counter-affidavit on behalf of the respondent, it is stated that-
1. the Anambra State House of Assembly is duly constituted as it has not less than 24 members and not more than 40 members.
2. the respondent has made numerous efforts to review the constituencies since its last exercise in 2003 as is legally required and has been impeded by numerous factors including the dispute over the census figures and “parochial sentiments from numerous communities in Anambra State and that the respondent has not refused to act as is erroneously presented by the appellants.
I will now consider if Anambra State House of Assembly is improperly constituted. It is correct that S. 91 of the 1999 Constitution prescribes what shall constitute the proper composition of the membership of a House of Assembly. I will reproduce the exact provisions here for ease of reference. It states that-
“Subject to the provisions of this Constitution, a House of Assembly of a State shall consist of three or four times the number of seats that State has in the House of Representatives divided in a way to reflect, as far as possible, nearly equal population.”
It is obvious that it requires that a state House of Assembly shall consist of three or four time the number of the House of Representatives seats the state has. It is agreed by all that Anambra State has 11 of such seats. To arrive at the number of members that can validly constitute the State House of Assembly, the number of Federal House of Representatives seats shall be multiplied by 3 or 4. This will give you 33 if multiplied by 3 and 44 if multiplied by four. By this requirement, the total number of members should not be less than 33 to constitute the State House of Assembly.
But as is obvious from the opening words of the said S. 91 of the Constitution, the above composition of the House of Assembly is subject to the provisions of the Constitution. I agree with the Learned Senior Advocate that the words “subject to the provisions of this Constitution” in S. 91 makes the words “shall consist of three or four times the number of seats the state has in the House of Representatives” subordinate to other provisions of the constitution including other provisions in the same S. 91 of the Constitution. The legal consequence of the words “subject to” has been restated in a long line of decisions including YUSUFU & ANOR V. OBASANKO (2003) 16 NWLR (PT.847) 554, TUKUR V. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT.117) 592, AQUA LTD. V. ONDO SPORTS COUNCIL (1988) 4 NWLR ((Pt.91) 622, NDIC V. OKEM ENT. LTD. (2004) 10 NWLR (PT.880) 107 AT 183 (PARA C -D) AND OKE V. OKE (1974) 1 ALL NLR (PART 1) 443 AT 450. The legal consequence of a provision being subject to another is that the one it is made subject to will override the said provision. So that in our present case the other provisions of the 1999 Constitution will override the provision that “the House shall consist of members 3 or four time the number of seats the State has in the House of Representatives.”
S. 91 did not only subject the provision on how to determine the composition of the House to the other provisions of the Constitution, it added a proviso that the House of Assembly shall consist of not less than 24 and not more than 40 members. By this proviso S. 91 went further to emphasis that the provision on how to constitute the State House of Assembly is not absolute.
It is settled by a long line of judicial decisions that a proviso in a statutory provision qualifies or modifies and limits the application of the part of the provision before it or preceding it. It is an exception to the main part of the enactment. See ABABI V. STATE (1992) NWLR (PT. 260) 383, FORTUNE INTERNATIONAL BANK PLC V. PEGASUS TRADING OFFICE (GMBH) & ORS (2004) 15 C (PT.11) 164. The effect of the proviso in S.91 is that in spite of the requirement in the main provision that a House of Assembly shall consist of members that are in number 3 or 4 times the number of seats the State has in the House of Representatives, the House shall be properly constituted if it consists of not less than 24 members and not more than 40 members.
It is obvious from the provisions of S.112 of the 1999 Constitution that the constitution intends that the number of State Constituencies must accord with the requirements of S. 91 of the Constitution as to the number of members that should constitute the House of Assembly. So that the respondent in dividing the state into State Constituencies shall ensure that the Constituencies are not less than 24 and not more than 40. This is because S. 112 expressly made itself subject to Ss. 91 and 113 of the constitution. For ease of reference I will reproduce it here. It states that “subject to the provisions of sections 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 within that state.” It is clear from this provisions, particularly the words “subject to” that Sections 91 and 113 override S.112 of the Constitution.
In the light of the foregoing, I agree with the submission of the Learned Senior Advocate for the appellants that the Anambra state House of Assembly as presently consisted of 30 members is constituted in accordance with Ss.91 and 112 of the 1999 Constitution and is therefore properly constituted.
I therefore hold in answer to the first and 2nd questions on the originating summons, that by virtue of Ss 91 and 112 of the 1999 Constitution, the minimum number of members required to constitute a State House of Assembly is 24, and that Anambra State House of Assembly as presently constituted by 30 members is constituted in accordance with the said provisions of the Constitution and is therefore properly constituted. Having held that the Anambra State House of Assembly is properly constituted, the claims for reliefs a, b and c fail and are hereby dismissed.
The holding of the trial court determining the fourth question and refusing the claim for relief d is not challenged by any of the ground of this appeal. There is no ground of appeal complaining that the trial court was wrong to have held that the respondent had not refused to review the current divisions of state constituencies, in that it has started the process of carrying out such a review. Ground 2 of this appeal that quoted the passage of the judgment wherein the trial court stated that the appellants have not established that the respondent refused to carry out the review, was not complaining that the holding was wrong. As the particulars of the ground show, it was rather complaining that the case the appellants presented was for interpretation of Ss. 75, 91, 112, 113 and 114 of the 1999 Constitution and that the trial court failed to interpret the provisions and instead took the view that the case they presented was for an order to compel the respondent to perform its constitutional duty. There is nothing in that ground complaining that the holding that the respondent had not refused to review the constituencies is wrong. The absence of an appeal against this holding implies that the parties have accepted it as correct. It therefore remains valid and subsisting.
In the light of the foregoing, issue No. 1 is resolved in favour of the appellant and issue No. 2 is resolved in favour of the respondent. It is obvious that the determination of issue No. 1 in favour of the appellants has not affected the judgment of the trial court in any way. An appeal can only be held to be successful on the basis of a resolution of an issue for determination in favour of the appellant, if the issue is such a proposition of law or of fact or both that is so cogent, weighty and compelling that it affects or changes in some aspect or entirely the judgment appealed against. See KALU V. ODILI (1992) 6 SCNJ 76.
On the whole, the appeal fails and is hereby dismissed.
I make no order as to costs.
ADZIRA GANA MSHELIA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, Agim JCA, and I entirely agree with his reasoning and conclusion that this appeal lacks merit and should be dismissed.
The lower court has a bounden duty to consider all issues that have been joined by the parties and raised before it for determination. In Okonji v. Njokanma (1991) 7 NWLR (Pt. 201) 131 Uwais C.J.N. stated the position of the law clearly on the point:
“it is the duty of a court, whether at first instance or appellate to consider all the issues that they been joined by parties and raised before it for determination. If the court failed to do so, without a valid reason, then it has certainly failed in its duty for in our judicial system, it is a fundamental principle of administration of justice that every court has a duty to hear, determine and resolve such questions.”
It is clear from the judgment of the trial court that the live issues were ignored and not determined. Where a lower court fails to advert its mind and treat all issues in controversy fully and there are materials before the appellate court for the resolution of the matter, an order of retrial will not be made. This court can exercise its general powers under S.15 of the Court of Appeal Act to determine the said question and reliefs that the trial court failed to determine.
In the case at hand, the materials available in the record are sufficient. This court can in the circumstances invoke S.15 of the Court of Appeal Act to do what the trial court failed to do. See Obi v. INEC (2007) 11 NWLR (Pt. 1046) 565.
For the reasons given above and for the fuller reasons in the lead judgment, I too will dismiss the appeal and same is hereby dismissed. I make no order as to costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have read the leading judgment of my Learned and erudite brother E.A. AGIM, JCA and I agree that the appeal lacks merit and should be dismissed.
I have nothing else to add.
Appearances
G.E. Ezeuko Jnr. Esq, with A.C. Ezeodili Esq.For Appellant
AND
Dr. Onyechi Ikpeazu SAN with Ben Osaka Esq. and E.A. Nzegwu Esq.For Respondent
