MR. OBIORA NNAIKE v. ATTORNEY GENERAL, ENUGU STATE & ORS
(2017)LCN/10431(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of December, 2017
CA/E/180/2016
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
MR. OBIORA NNAIKE
(Suing for himself and on behalf of Nigerian Youth who have attained the age of Eighteen) Appellant(s)
AND
1. ATTORNEY GENERAL, ENUGU STATE
2. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION
3. ENUGU STATE HOUSE OF ASSEMBLY Respondent(s)
RATIO
WORDS AND PHRASES – NOTWITHSTANDING: MEANING OF NOTWITHSTANDING WHEN USED IN A STATUTE
The Supreme Court in myriads of cases has consistently held that the word “notwithstanding” when used in a section of a statute is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfil itself. That is, whenever the word is used in a section of a statute, the said section takes priority over any other section or statute therein referred to.
In Adedayo v. PDP (2013) 17 NWLR Pt. 1382 Pg. 1, the Supreme Court held that in the interpretation of the Constitution of the PDP, the use of the word “notwithstanding” in Article 17.2 makes the article self-fulfilling and as such no other provision in the Constitution shall be capable of subjugating or rank pariparsu with the said Article 17. In Ladoja v. I.N.E.C. (2007) All FWLR (Pt. 377) 934, it was held that the word “notwithstanding” used in Section 251(1) of the 1999 Constitution means that no provision of the Constitution shall be capable of undermining the said section. In NNPC v. Orhiowasele (2013) 13 NWLR Pt. 1371 Pg. 211, the Supreme Court also held that the word “notwithstanding” is a term of exclusion.
Also in Olatunbosun v. NISER Council (1988) 3 NWLR Pt. 80 Pg. 25, the Supreme Court in explaining the inclusion of the term “notwithstanding” in the Nigerian Institute of Social and Economic Research Council Decree of 1977 and its implication held as follows:
“The expression ‘notwithstanding’ is a term of exclusion. As used in Section 4 of Schedule 2 to Act No. 70 of 1977, it means that no provision of the University of Ibadan Act No. 37 of 1962, or any statute made under it, or any provisions of the Decree itself shall be allowed to prevail over the provisions of Section 4 of Schedule 2 above. These other provisions shall be no impediment to the measures outlined in the said Section 4 of Schedule 2. The only thing allowed to interfere with deeming services in the Old Institute to have been transferred to the New Institute is such directions as may be issued by the Council.”
There is simply no doubt as to the position of the Supreme Court on the interpretation of the word “notwithstanding” whenever it is used in a statute. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
INTERPRETATION OF STATUTE: THE PRINCIPLE GUIDING THE INTERPRETATION OF THE PROVISION OF A STATUTE
It is an important principle for the construction of the provision of a statute that where the words are clear and unambiguous, they must be given their ordinary meaning. The object of interpretation is to discover the intention of the law maker from the language used in the legislation. Hence, once the words are clear and unambiguous, effect must be given to them. See Uwazurike v. Att.Gen Fed. (2007) 8 NWLR Pt. 1035 Pg. 1, Nyame v. Federal Republic of Nigeria (2010) 3 SCNJ 28. In essence, unless it would be absurd and lead to inconsistency with the provisions of the statute as a whole, the literal construction must be followed in the interpretation of a statute. See Nnonye v. Anyichie (2005) 2 NWLR Pt. 929 Pg. 117. It is the law however that when the literal meaning results in uncertainty, ambiguity or injustice, a Judge may seek internal aid within the body of the statute itself or external aid from statutes in parimateria in order to resolve the ambiguity or avoid doing injustice.See Mobil Oil (Nig.) Ltd. v. FBIR (1977) 3 SC 53. This is an exception to the rule rather than the rule. It is not the duty of the Judge to usurp the powers of the legislature, as such, if the language used by the legislature is clear and explicit, the Judge must give effect to it because the words of the statute speak the intention of the legislature. See Sunday Gbagbarigha v. Adikumo Toruemi & Anor (2012) 12 SCNJ 502.PER HELEN MORONKEJI OGUNWUMIJU,J.C.A.
INTERPRETATION OF STATUTE: THE INTERPRETATION OF SECTION 7(4) OF THE 1999 CONSTITUTION
Section 7(4) of the 1999 Constitution provides as follows:
(4). The Government of a State shall ensure that every person who is entitled to vote or be voted for at an election to House of Assembly shall have the right to vote or be voted for at an election to a local government council
In interpreting the Constitution or any statute, a provision must not be read in isolation but other provisions or the whole statute as much as possible must be read to not only reach the proper legislative intent, but to also make a consistent meaning of the whole statute.
In the preceding issue, the right to be voted for was dealt with. Now to the right to vote. Section 7(4) of the Constitution provides that a person who is entitled to vote at an election to House of Assembly shall have the right to vote at an election to a local government council. What are the qualifications for eligibility to vote in elections to the local government council and the House of Assembly Section 151 of the Local Government Law of Enugu State provides as follows:
151.(1) A person shall be eligible to vote in any local government election if-
(a) he is a citizen of Nigeria and has attained the minimum age of eighteen years
(b) he is ordinarily resident in the ward or Local Government Area where he intends to vote or is an indigene thereof; and
(c) he is registered as a voter in the ward or constituency where he intends to vote and has obtained a registration card to be presented at the polling station on the day of the elections.
(2) Notwithstanding the provisions of Subsections (1) of this section, the following persons shall not be qualified to vote at an election, that is to say-
(a) the Chairman and members of the Commission
(b) the Secretary of the Commission
(c) The Electoral Officers and Assistant Returning Officers for each constituency;
(d) the Presiding Officer of each Polling Station; and
(e) all other officers charged with the conduct of elections in the field.
(3) Notwithstanding the provisions of Subsection (1) and (2) of this section, a person shall be eligible to vote in any Local Government elections if he is qualified to vote at an election to the State House of Assembly.
This is a clear provision as to the qualifications to vote at an election to the local government council. However, by virtue of Subsection 3, we are in familiar waters. What are the qualifications to vote at an election to the State House of Assembly A recourse to the Constitution again. Section 117(2) of the 1999 Constitution provides as follows:
117.(2) Every citizen of Nigeria who has attained the age of eighteen years, residing in Nigeria at the time of the registration of voters for purposes of election to any legislative house, shall be entitled to be registered as a voter for that election.
In essence, Section 117(2) of the Constitution, though similar to the provisions of Section 151(1) of the Local Government Law of Enugu State, takes precedence over the requirements of the Enugu State Law by virtue of the word “Notwithstanding”. This provision is clear. Qualification to vote in any election to the State House of Assembly qualifies a person to vote in any election to the local government council irrespective of any provision of the Enugu State Local Government Law to the contrary, just the same way qualification to contest any election to the State House of Assembly qualifies a person to contest any local government council election. There is simply no ambiguity in the provision of the law and I cannot see the supposed intention of the 1999 Constitution to the effect that a citizen of eighteen years can be voted for to occupy any office in the country. This issue is resolved against the Appellant. PER HELEN MORONKEJI OGUNWUMIJU. J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Enugu State delivered by Hon. Justice R. N. Onuorah on 18/1/2016.
The Appellant is a member of the African Peoples Party (APA). In 2015, he was 28 years old and wanted to contest for the chairmanship position of Ezeagu East Local Government Council of Enugu State. The Enugu State Local Government Law stipulates a minimum age of 30years for eligible candidates to contest in the election and also make a financial deposit to the 2nd Respondent.
The Appellant approached the lower Court and claimed via an Originating Summons the following reliefs:-
1. A declaration that Sections 152(1) (f) and (g) of the Enugu State Local Government Law, 2004 is inconsistent with Article 13(1) of the African Charter on Human and Peoples? Right Act, Cap. A9 Vol.1 Laws of the Federation 2004.
2. A declaration that the provisions of Sections 8(b) and 21(b) of the Enugu State Local Government Law, 2004 are inconsistent with Section 7(4) and Section 42 (1) (a) and (b) of the 1999 Constitution of the
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Federal Republic of Nigeria and Article 13(1) of the African Charter on Human and Peoples? Right Act, Cap. A9 Vol.1 Laws of the Federation 2004.
3. A declaration that there is a single age to be attained before one can vie for elections into Local Government Council in Nigeria and that eighteen years is the constitutionally stipulated age.
4. An order of Court restraining the 2nd Respondent from disqualifying the Applicant or any other Nigerian citizen willing to take part in the forthcoming 2015 Local Government Council election in Enugu State or any other time whatsoever on the ground of Section 152(1) (f) and (g) of the Enugu State Local Government Law, 2004.
5. An order of Court restraining the 2nd Respondent from disqualifying the Applicant or any other Nigerian citizen willing to take part in the forthcoming 2015 Local Government Council election in Enugu State or any other time whatsoever and who has attained the age of eighteen years from participating in the said local government election on the ground of Sections 8(b) and 21(b), the Enugu State Local Government Law, 2004.
6. An order awarding cost in favour of the Applicant
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to the tune of N5,000,000.00 (Five million naira) against the Respondent, being the cost of prosecuting this suit.
The learned trial judge dismissed the suit.
Dissatisfied with the decision of the trial Court, the Appellant filed a Notice of Appeal on 1/3/16. The record of appeal was transmitted on 11/5/16. The Appellant?s brief was filed on 7/6/16, and was settled by Mr. Chukwunoso Daniel Ogbe. The Appellant?s reply brief was filed on 10/10/16. 1st and 3rd Respondents? brief was filed on 20/10/16, was settled by Chief M.E. Eze and Victor Abochi. The 2nd Respondent?s brief was filed on 22/7/16, and was settled by G. Ofodile Okafor SAN, B.C Oguine Esq., O.N. Adese (Mrs), Philemon Tunyang Esq., Ezinwanne Okafor (Miss).
The Appellant identified three issues for determination as follows:-
1. Whether the learned trial judge was not in error, when he held that the provisions of Section 8(b) and 21(b) of the Local Government Law of Enugu State of 2004 are not inconsistent with the provisions of Section 7(4) of the Nigeria Constitution of 1999(sic) as amended, and Article 13(1) of the African Charter on Human and Peoples Rights
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(Ratification and Enforcement) Act, 2004.
2. Whether the learned trial judge was not in error, when he held that Section 7(4) of the Constitution of the Federal Republic of Nigeria of 1999 as amended is not ambiguous.
3. Whether the learned trial judge was not in error, when he held that the provisions of Section 152(1) (f) and (g) of the Enugu State Local Government Law, 2004 are not in conflict with the provisions of Article 13 (1) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 2004.
The 1st and 3rd Respondents identified three issues for determination as follows:-
1. Whether the learned trial judge erred in Law when he held that Sections 8(b) and 21(b) of the Local Government Law of Enugu State Cap 109 Revised Law of Enugu State of Nigeria, 2004 are not inconsistent with Section 7(4) of the Nigerian Constitution, 1999 (as amended) and Article 13(1) of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act, 2004?
2. Whether the learned trial judge erred in law when he held that Section 7(4) of the Constitution of the Federal Republic of Nigeria, 1999(as
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amended) is not ambiguous?
3. Whether the learned trial judge erred in Law when he held that the provisions 152(1) (f) and (g) of the Enugu State Local Government Law Cap 109 Revised Law of Enugu State of Nigeria, 2004 are not in conflict with the provisions of Article 13(1) of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act, 2004?
The 2nd Respondent adopted the three issues for determination as formulated by the Appellant.
I will determine this appeal based on the following issues for determination as formulated by counsel on both sides:-
1. Whether the learned trial judge erred in Law when he held that the provisions 152(1) (f) and (g) of the Enugu State Local Government Law Cap 109 Revised Law of Enugu State of Nigeria, 2004 are not in conflict with the provisions of Article 13(1) of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act, 2004.
2. Whether the learned trial judge erred in Law when he held that Sections 8(b) and 21(b) of the Local Government Law of Enugu State Cap 109 Revised Law of Enugu State of Nigeria, 2004 are not inconsistent with
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Section 7(4) of the 1999 Constitution (as amended) and Article 13(1) of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act, 2004.
3. Whether the learned trial judge erred in law when he held that Section 7(4) of the Constitution of the Federal Republic of Nigeria, 1999(as amended) is not ambiguous.
ISSUE ONE
Whether the learned trial judge erred in Law when he held that the provisions 152(1) (f) and (g) of the Enugu State Local Government Law Cap 109 Revised Law of Enugu State of Nigeria, 2004 are not in conflict with the provisions of Article 13(1) of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act, 2004.
?Appellant?s counsel argued that the learned trial judge erred in law in his interpretation of the provisions of Article 13 (1) of the African Charter. Counsel further argued that the conduct of local government council election is not done freely in Enugu State, and the Appellant was compelled to make financial deposits with the Respondents before he can participate in governance at local government council level, which contradict the word
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?freely? in Article 13(1) of the African Charter. Counsel cited IGP vs. ANPP (2007) 18 NWLR Pt. 1066 Pg. 457.
Appellant?s counsel argued that the provisions of Sections 152 (1)(f) and (g) of the Enugu State Local Government Law 2004, is inconsistent with the letters and spirit of provisions of Article 13(1) of the African Charter on Human and Peoples? Right (Ratification and Enforcement) Act 2004 which is the Act of the National Assembly, and the provisions of Sections 152 (1)(f) and (g) of the Enugu State Local Government Law 2004 should be declared void to the extent of its inconsistency with the provisions of Article 13(1) of the African Charter.
Appellant?s counsel argued that the learned trial judge failed to appreciate the fact that there is a difference between a citizen complying with the requirements of the law before such citizen can participate in a local government election, and the state, under the guise of enacting a law regulating the conduct of election, seeks to prohibit a citizen from participating freely in the government of his country.
?Appellant?s counsel argued that the provisions of
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Sections 152 (1)(f) and (g) of the Enugu State Local Government Law 2004, will encourage the perpetration of corrupt practices at the local government tier of government.
The Hon. Attorney General of Enugu State argued on behalf of the 1st and 3rd Respondents that Section 152(1) (f) and (g) of the Enugu State Local Government Law 2004 were made pursuant to powers granted by Section 4(6) and (7) of the Nigerian Constitution 1999. Counsel further argued that the words of Section 4 of the Nigerian Constitution 1999 and Section 152(1) (f) and (g) of the Enugu State Local Government Law are clear and not in conflict with the words used in Article 13(1) of the African Charter on Human and Peoples? Right (Ratification and Enforcement) Act Cap A9, vol. 1 LFN 2004
The learned Attorney General argued that Section 152(1) (f) and (g) of the Enugu State Local Government Law that provides for pecuniary deposit for those intending to contest for local government election does not contradict the African Charter or the Nigerian Constitution. Counsel cited Jegede vs. Akande (2014) 16 NWLR Pt. 1432 Pg. 43; Ladoja vs. INEC (2007) 12 NWLR Pt. 1047 Pg. 115.<br< p=””
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Senior counsel for the 2nd Respondent argued that in every country, there is always a law guiding free and fair election, and those willing to take advantage of the provisions are bound to comply with the requirement of the law. Counsel argued that the word ?freely? as used in Article 13(1) of the African Charter on Human and Peoples? Right does not exonerate a citizen from his legal obligation.
2nd Respondent?s senior counsel argued that it is upon meeting of the requirement of Section 117(2) of the Nigerian Constitution that a citizen can have the right to participate freely in an election through a chosen representative. Counsel argued that Section 152(1) (f) and (g) of the Enugu State Local Government Law 2004, provides for a pecuniary deposit before a person can be qualified to contest as a chairman or Councillor in the local government council election.
Senior counsel argued that the entire paragraphs of the Appellant?s affidavit in support of his Originating Summons at the lower Court did not state that he or any other person was barred from contesting election in the Enugu State local government council for
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non-payment of the pecuniary deposit. Senior counsel argued that the Court do not act on sentiments, but on facts placed before it. Senior counsel citedIlori vs. Tella (2006) 18 NWLR Pt. 1011 Pg. 267 at 289 Paras B-C.
2nd Respondent?s senior counsel argued that the Appellant did not proffer any argument in support of his ground four of the notice of appeal, and it is therefore deemed abandoned. Counsel cited Ifegwu vs. UBN Plc (2011) 16 NWLR Pt. 1274 Pg. 555; Iyoho vs. Effiong (2007) 11 NWLR Pt. 1044 Pg. 31 at 49 Paras. C-D.
OPINION
Article 13 of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act, 2004provide as follows:
ARTICLE 13
1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with provisions of the law.
2. Every citizen shall have the right of equal access to the public service of his country.
?3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.
The summary of the
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Appellant?s grouse in this appeal is that Section 152(1) paragraphs f & g of the Local Government Law of Enugu State which prescribes payment of pecuniary deposit by aspirants is in conflict with the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act which is an Act of the National Assembly and same must be declared null and void.
The African Charter is part and parcel of the domestic laws of this country. See Abacha vs. Fawehinmi (2000) 6 NWLR Pt. 660 Pg. 228, (2000) 4 SCNJ 400. Article 13 of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act provides that every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. The learned trial judge rightly laid emphasis on the phrase ?in accordance with the provisions of the law?. Let us look at the provisions of the law referred to therein.
The Local Government is a creation of the 1999 Constitution. Section 7(1) provides as follows:
The system of local government by
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democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall, subject to Section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.
In addition, Section 4(6) & (7) of the Constitution provide as follows:
(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say-
?(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
(b) any matter included in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this
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Constitution.
In the exercise of this power granted to the State Houses of Assembly, the Enugu State House of Assembly enacted the Local Government Law of Enugu State. Section 152(1) of which is under scrutiny in this appeal. It provides as follows:
152 (1). A person shall not be qualified as a candidate to contest any Local Government election unless-
(a) He is sponsored by a registered political party;
(b) He is ordinarily resident in the ward or constituency in which he is contesting an election or he is an indigene thereof;
(c) He is not otherwise disqualified from holding public office under this Law or any other enactment;
(d) He produces evidence of tax payments as and when due for a period of three years immediately preceding the year of the elections;
(e) He has been nominated by ten registered voters in his ward or constituency and in the case of a Chairman, he has been nominated by 20 registered voters coming from at least two-thirds of all the wards in the Local Government area;
(f) In the case of a candidate contesting as a Chairman of the Local Government Council, he has made a pecuniary deposit as fixed by
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the Commission; and
(g) In the case of candidate contesting as a Councillor, he has made a pecuniary deposit as fixed by the Commission.
It is important to note that Subsection 2 of the said Section 152 provides as follows:
2. Notwithstanding the provisions of Subsection (1) of this Section, a person shall be qualified as a candidate to contest an election if he is qualified to contest at an election to the State House of Assembly.
Let us look at the interpretation of the word ?notwithstanding? as used in this provision. Statutory language must be read within the con of the statute so as to discover the legislative intent and the interpretative jurisdiction of the Court should not be expanded beyond the intention of the lawmaker so as to cover situations not provided for in law. The basic canon of interpretation is that a statute must be interpreted as a whole and no provision of a statute can be read in isolation.
?The Supreme Court in myriads of cases has consistently held that the word ?notwithstanding? when used in a section of a statute is meant to exclude an impinging or impeding effect of any other
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provision of the statute or other subordinate legislation so that the said section may fulfil itself. That is, whenever the word is used in a section of a statute, the said section takes priority over any other section or statute therein referred to.
In Adedayo v. PDP (2013) 17 NWLR Pt. 1382 Pg. 1, the Supreme Court held that in the interpretation of the Constitution of the PDP, the use of the word ?notwithstanding? in Article 17.2 makes the article self-fulfilling and as such no other provision in the Constitution shall be capable of subjugating or rank pariparsu with the said Article 17. In Ladoja v. I.N.E.C. (2007) All FWLR (Pt. 377) 934, it was held that the word ?notwithstanding? used in Section 251(1) of the 1999 Constitution means that no provision of the Constitution shall be capable of undermining the said section. In NNPC v. Orhiowasele (2013) 13 NWLR Pt. 1371 Pg. 211, the Supreme Court also held that the word ?notwithstanding? is a term of exclusion.
Also in Olatunbosun v. NISER Council (1988) 3 NWLR Pt. 80 Pg. 25, the Supreme Court in explaining the inclusion of the term ?notwithstanding? in
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the Nigerian Institute of Social and Economic Research Council Decree of 1977 and its implication held as follows:
?The expression ?notwithstanding? is a term of exclusion. As used in Section 4 of Schedule 2 to Act No. 70 of 1977, it means that no provision of the University of Ibadan Act No. 37 of 1962, or any statute made under it, or any provisions of the Decree itself shall be allowed to prevail over the provisions of Section 4 of Schedule 2 above. These other provisions shall be no impediment to the measures outlined in the said Section 4 of Schedule 2. The only thing allowed to interfere with ?deeming services in the Old Institute to have been transferred to the New Institute? is such directions as may be issued by the Council.?
There is simply no doubt as to the position of the Supreme Court on the interpretation of the word ?notwithstanding? whenever it is used in a statute.
In this appeal, the provision of Section 152 (2) of the Enugu State Local Government Law clearly states that the provisions of Subsection 1 notwithstanding, any person who is qualified to contest at an election into the
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House of Assembly shall be qualified to contest any Local Government Election. What therefore are the requirements for qualification to contest at an election to the State House of Assembly? We can only find our answer in Sections 106 & 107 of the 1999 Constitution (as amended). They provide as follows:
106. Subject to the provisions of Section 107 of this Constitution, a person shall be qualified for election as a member of a House of Assembly if-
a) he is a citizen of Nigeria;
b) he has attained the age of thirty years;
c) he has been educated up to at least the School Certificate level or its equivalent; and
d) he is a member of a political party and is sponsored by that party.
Section 107 is as follows:
1) No person shall be qualified for election to a House of Assembly if –
a) subject to the provisions of Section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such a country;
b) under any law in force in any part of Nigeria, he is adjudged to be
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a lunatic or otherwise declared to be of unsound mind;
c) he is under a sentence of death imposed on him by any competent Court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by such a Court or tribunal substituted by a competent authority for any other sentence imposed on him by such a Court or tribunal;
d) within a period of less than ten years before the date of an election to the House of Assembly, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct;
e) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in any part of Nigeria;
f) he is a person employed in the public service of the Federation or of any State and he has not resigned, withdrawn or retired from such employment thirty days before the date of election;
g) he is a member of any secret society;
i) he has presented a forged certificate to the Independent National Electoral Commission.
2) Where
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in respect of any person who has been –
a) adjudged to be a lunatic;
b) declared to be of unsound mind;
c) sentenced to death or imprisonment; or
d) adjudged or declared bankrupt,
any appeal against the decision is pending in any Court of law in accordance with any law in force in Nigeria, Subsection (1) of this Section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier.
3) For the purposes of Subsection (2) of this Section, an “appeal” includes any application for an injunction or an order of certiorari, mandamus, prohibition or habeas corpus, or any appeal from any such application
The natural interpretation of Section 152(2) would be that a person who is qualified under Sections 106 & 107 of the 1999 Constitution (as amended) is by the provision of Section 152(2) of the Enugu State Independent Electoral Commission Law qualified to contest any Local Government Election, irrespective of the provisions of Section 152(1) of the Law.
?It is an
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important principle for the construction of the provision of a statute that where the words are clear and unambiguous, they must be given their ordinary meaning. The object of interpretation is to discover the intention of the law maker from the language used in the legislation. Hence, once the words are clear and unambiguous, effect must be given to them. See Uwazurike v. Att.Gen Fed. (2007) 8 NWLR Pt. 1035 Pg. 1, Nyame v. Federal Republic of Nigeria (2010) 3 SCNJ 28
In essence, unless it would be absurd and lead to inconsistency with the provisions of the statute as a whole, the literal construction must be followed in the interpretation of a statute. See Nnonye v. Anyichie (2005) 2 NWLR Pt. 929 Pg. 117.
It is the law however that when the literal meaning results in uncertainty, ambiguity or injustice, a Judge may seek internal aid within the body of the statute itself or external aid from statutes in parimateria in order to resolve the ambiguity or avoid doing injustice.See Mobil Oil (Nig.) Ltd. v. FBIR (1977) 3 SC 53. This is an exception to the rule rather than the rule. It is not the duty of the Judge to usurp the powers of the legislature, as
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such, if the language used by the legislature is clear and explicit, the Judge must give effect to it because the words of the statute speak the intention of the legislature. See Sunday Gbagbarigha v. Adikumo Toruemi & Anor (2012) 12 SCNJ 502.
A community reading of Section 152(2) of the Enugu State Independent Electoral Commission Law and Sections 106 & 107 of the Constitution makes it abundantly clear and leaves no one in doubt that the Law provides that any person who is qualified to contest an election into the House of Assembly shall be qualified to contest any Local Government Election notwithstanding the provisions of Section 152 (1).
In the peculiar circumstances of this case, the Enugu State Local Government Law in Section 152(2) having deliberately imported the provisions of Section 106 and 107 of the 1999 Constitution, it is only bound by the said provisions and cannot go outside the said provisions. The provisions of Section 152(1) detail the different instances that could lead to the disqualification of a candidate one of which as provided in Section 152(1)(f) where the candidate has failed to make a pecuniary deposit as fixed by
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the Commission. As stated by me earlier, the provisions of Section 152(2) are superior to that of Section 152(1) because Section 152(2) has in effect imported or transplanted the qualifications and disqualifications contained in Sections 106 and 107 of the Constitution into the Enugu State Local Government Law. The term of exclusion contained in Section 152(2) can only mean that the provisions of Section 152(1) have been excluded to give way to the provisions of Section 152(2) which in effect incorporates Sections 106 & 107 of the Constitution as the only binding provisions to determine the qualification of a candidate for election into the Local Government in Enugu State.
The provisions on pecuniary deposits in the Enugu State Local Government Law will only ensure that only the rich and wealthy will participate in any election into a Local Government Council in the State. This is contrary to the ideals of freedom, equality and justice enshrined under Section 17(1) and 2(a) of the Constitution. This will also contravene the provisions of Section 7(4) of the Constitution which provides that the Government of a State shall ensure that every person who
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is entitled to vote or be voted for at an election to a House of Assembly shall have the right to vote or be voted for at an election to a Local Government Council.
In my humble opinion, the provisions of Section 152(1)(f) and (g) of the Local Government Law cannot stand. At the risk of repetition, the poor in a Local Government Area in Enugu State may not have the means or resources to contest or to be voted into any elective office in any Local Government Council. Voting will be restricted to only the rich and the wealthy in the Local Government Area who are able to pay the fees. The Appellant has the right to freely participate in the local government election upon satisfying the conditions precedent set out in the Local Government Law of Enugu State that are not inconsistent with the provisions of the Constitution. That right cannot be inhibited through payment of non-refundable deposits of money or pecuniary deposits as fixed by the Enugu State Local Government Law. The importance of local government in fostering a democratic way of life, in promoting good government, and in sustaining the state and federal governments, cannot be over-emphasized. It
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is imperative, therefore, that it should be democratized. This issue is resolved in favour of the Appellant.
ISSUE TWO
Whether the learned trial judge erred in Law when he held that Sections 8(b) and 21(b) of the Local Government Law of Enugu State Cap 109 Revised Law of Enugu State of Nigeria, 2004 are not inconsistent with Section 7(4) of the 1999 Constitution (as amended) and Article 13(1) of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act, 2004.
Appellant?s counsel argued that the provisions of Section 8(b) and 21(b) of the Local Government Law of Enugu State 2004, which empowers Nigerian citizens who are up to 25 years of age to vie for councillorship positions in the local government council election of Enugu state, are at variance and in conflict with the provisions of Sections7(4) and 106(b) of the Constitution of the Federal Republic of Nigeria 1999, which does not admit any Nigerian citizen below the age of 30 years to vie for election into a House of Assembly of a State.
?Appellant?s counsel argued that Article 13(1) of the African Charter empowers the Appellant and other
24
Nigerian citizens to participate freely in the government of their country either directly or through freely chosen representatives in accordance with the provisions of the law.
On this issue, the Hon. Attorney General argued on behalf of the 1st & 3rd Respondents that Sections 8(b) and 21(b) of the Local Government Law of Enugu State 2004 were made in accordance with Section 4(6) and Section 4(7) of the Nigerian Constitution 1999, and it was made for order and good governance of the state.
1st and 3rd Respondents? counsel argued that Article 13 of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act LFN 2004 envisaged that any citizen who wishes to participate in the governance of his country shall do so in accordance with the provisions of the law. Counsel further argued that the African Charter did not provide for an unregulated participation in Local Government elections.
?1st and 3rd Respondents? counsel argued that the word ?freely? as used in Article 13(1) of the African Charter does not imply freedom from the fulfilment of the law, but implies that a citizen of Nigeria can
25
participate freely in governance after fulfilment of necessary legal requirements.
1st and 3rd Respondents? counsel argued that Courts will employ a holistic approach to interpretation of statutes, and will rarely declare statutes to be inconsistent with one another, except in exceptional circumstances. Counsel cited Nigercare Dev. Co. Ltd v. A.S.W.B(2008) 9 NWLR Pt. 1093 Pg. 498.
1st and 3rd Respondents? counsel argued that the age prescription in Section 106(b) of the Nigerian Constitution 1999 is the same age referred to in Section 7(4) of the Nigerian Constitution, and laid down in the Local Government Law of Enugu State. Counsel submitted that the duty of the Court is to interpret the statutes as it is and not to assume the functions of the legislature. Counsel cited Marwa vs. Nyako (2012) 6 NWLR Pt. 1296 Pg. 199 at 235.
On his part, senior counsel for the 2nd Respondent submitted that question 2 and reliefs 4 and 5 of the Appellant?s originating summons is hypothetical, academic or futuristic, for which the Court is not allowed to indulge in. Senior counsel cited Adeogun vs Fashogbon (2008) 17 NWLR Pt. 1115 Pg. 149 at 180 to
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1818 Paras. B-A.
2nd Respondent?s senior counsel argued that Section 4(6) of the Nigerian Constitution vests the legislative powers of State of the Federation in the States Houses of Assembly. Senior counsel argued that Enugu State House of Assembly in its powers enacted the Local Government Law of Enugu State for establishment, structure, composition, finance and functions of such councils in accordance with the provisions of Section 7(1) of the 1999 Constitution. Senior counsel cited Att. Gen. Abia vs. Att. Gen. Fed.(2006) 16 NWLR Pt. 1004 Pg. 264 at 386.
2nd Respondent?s senior counsel argued that Section 7(1) of the Nigerian Constitution 1999 states that the system of local govt shall be by way of democratic election and Section 8(b) and 21(b) stipulates criteria to qualify a person as chairman or councillor in a local government.
2nd Respondent?s senior counsel argued that the primary duty of the Court is to interpret and apply the law as it is, and to avoid negative interpretation of the law. Senior counsel argued that whenever a Court is faced with the interpretation of a constitutional provision, the Constitution must
27
be read as a whole in determining the object of the particular provision. Senior counsel cited SPDCN Ltd vs. Sam Royal Hotel (Nig) (2016) 8 NWLR Pt. 1514 Pg. 318 at 334 Paras. H; Akintokun vs. LPDC (2014) 13 NWLR Pt. 1423 Pg. 1 at 74-75 Paras.E-G; Att. Gen. Lagos State vs. Att. Gen. Fed (2014) 9 NWLR Pt. 1412 Pg.217 at 255-256 Paras.C-A.
Senior counsel argued that since there is a provision of age for those to be voted in an election into local government council, the appropriate age should be 30years in the case of Council chairman and 25 years in the case of councillor. Senior counsel relied on Sections 8 (b) and 21 (b) of Local Government Law of Enugu State 2004.
2nd Respondent?s senior counsel argued that while Sections 8(b) and 21(b) of Local Government Law of Enugu State stipulates age limit to vie for chairmanship and councillorship positions, Section 7(4) of the Nigerian Constitution 1999 and Article 13(1) of the African Charter, does not provide for any age qualification. Senior counsel argued that Article 13(1) of African Charter refers to extant law in relation to enjoyment of a particular aspect of governance, and the Enugu State
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Local Government Law deals with participation in governance at the local government level.
?2nd Respondent?s senior counsel argued that the grouse of the Appellant is the purported inconsistency of Sections 8(b) and 21(b) with only Section 7(4) of the Nigerian Constitution 1999. Senior counsel argued that the Court is to confine itself to the case as presented by the Appellant, and ignore any reference to Section 106(b) of the Nigerian Constitution. Senior counsel cited Orji vs. Orji (2011) 17 NWLR Pt. 1275 Pg. 113 at 128 Paras F-G; Ojoh vs Kamalu (2005) 18 NWLR Pt. 958 Pg. 523 at 556 Paras D-E.
Appellant?s counsel in his reply brief in response to the 2nd Respondent submitted that the Appellant?s appeal is a fundamental rights application. Counsel further argued that Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 envisages that futuristic suits can be brought, once same falls under the ambit of fundamental rights application. Counsel submitted that the envisaged violation of right which caused the Appellant to initiate the present appeal is not in any way academic.
?Appellant?s counsel submitted
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that the 2nd Respondent did not file a cross-appeal to raise the issue of the Appellant?s appeal being hypothetical, futuristic or academic in nature. Counsel further submitted that the appellate Court is not in the position to determine the correctness or otherwise of an issue not raised or determined at the Court below. Counsel cited Adun v. Obayuwana (2016) All FWLR (Pt. 819) 1135.
Appellant?s counsel submitted that the court below in accordance with Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, found the fundamental right enforcement suit initiated by the Appellant to have being properly brought by way of Originating Summons. Counsel further submitted that the suit at the lower Court was initiated in the form of public interest litigation, which can be brought by any citizen who seeks to protect the common interest.
?OPINION
By the ratification of the African Charter, it became part and parcel of the domestic laws of this country and thus enforceable in any Court in the country. The Fundamental Rights Enforcement Procedure Rules 2009 made by the Chief Justice of the Federation pursuant to the powers
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conferred upon him by Section 46 (3) of the 1999 Constitution defines ?Fundamental right? in Order 1 Rule 2 as:
?any of the rights provided for in Chapter IV of the Constitution, and includes any of the rights stipulated in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
Order 2 Rule 1 of the Fundamental Rights Enforcement Procedure Rules 2009 provides as follows:
(1) Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress?(Underlining mine)
Section 46(1) of the Constitution also provides as follows:
46. (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.(Underling mine)
The effect of the above is that where a Fundamental Right as
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defined by Order 1 Rule 2 of the Fundamental Rights Enforcement Procedure Rules 2009 is about to be breached, an application for the enforcement of such right may be made to the Court preventing the said breach. I agree with the Appellant?s counsel that the envisaged violation of the Appellant?s Fundamental Right which caused the Appellant to initiate the suit leading to this appeal is not academic.
The legislations in issue here are Article 13(1) of the African Charter, Sections 8(b) and 21(b) of the Local Government Law of Enugu State and Section 7(b) of the 1999 Constitution.
Article 13(1) of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act provides as follows:
1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with provisions of the law.
The right to participate freely in the government as provided in the African Charter is the right to vote or be voted for and same shall be exercised in accordance with provisions of the law. The relevant provisions of the law will be
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considered presently.
As I said earlier in this judgment, the Local Government is a creation of the 1999 Constitution and by virtue of Section 7(1), 4(6) & (7) of the 1999 Constitution, the State House of Assembly has the powers to make laws in relation to the Local Government Council.
In the exercise of this power, the Enugu State House of Assembly enacted the Local Government Law of Enugu State. Sections 8(b) and 21(b) of which provide as follows:
8. A person shall be qualified for election to the office of Chairman if-
(a) He is a citizen of Nigeria
(b) He has attained the age of 30 years
(c) He has been educated up to at least the School Certificate level or its equivalent.
21. Subject to the provisions of Section 22 of this law, a person shall be qualified for election as a Councillor if he –
(a) He is a citizen of Nigeria
(b) He has attained the age of 25 years; and
(c) He has been educated up to at least the School Certificate level or its equivalent.
Section 7(4) of the 1999 Constitution is as follows:
(4). The Government of a State shall ensure that every person who is entitled to vote
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or be voted for at an election to House of Assembly shall have the right to vote or be voted for at an election to a local government council.
What is the contention of the Appellant in this issue? The Appellant contends that Sections 8(b) and 21(b) of the Local Government Law of Enugu State are inconsistent with Section 7(4) of the 1999 Constitution (as amended) and Article 13(1) of the African Charter.
This issue is not as problematic as counsel has appeared to make it. I will, in the simplest of words, practically demonstrate it anon without unnecessary legalese. As I have held in issue 1, a person who is qualified for election into the State House of Assembly is by virtue of the provisions of Section 152(2) of the Local Government Law, qualified for elections into the Local Government Council.
Sections 8(b) and 21(b) of the Local Government Law of Enugu State provides for the minimum ages that candidates must have attained to contest elections into the local government council as Chairmen and Councillors respectively. Section 7(4) of the 1999 Constitution echoes the provision of 152(2) of the Local Government Law of Enugu State which states
34
that every person who is entitled to vote or be voted for at an election to House of Assembly shall have the right to vote or be voted for at an election to a local government council (with particular emphasis on the right to be voted for in this instance). What is the minimum age requirement to contest an election into the State House of Assembly? Section 106 of the Constitution provides as follows:
106. Subject to the provisions of Section 107 of this Constitution, a person shall be qualified for election as a member of a House of Assembly if-
a) he is a citizen of Nigeria;
b) he has attained the age of thirty years;
c) he has been educated up to at least the School Certificate level or its equivalent; and
d) he is a member of a political party and is sponsored by that party. In other words, a person who is qualified to contest election into the House of Assembly of Enugu State must have attained the age of 30 which is above the requirement of 25 for Councillorship and equivalent of 30 for Chairmanship. There is simply no inconsistency.
If the age requirement for elections into the House of Assembly as provided by the
35
Constitution was less than the age required for elections into the local government council, then there can be issues pertaining to inconsistency which would, in the circumstance, override the Enugu State Law and/or render it void to the extent of its inconsistency. In this case however, there is no inconsistency. The provisions of Section 7(4) of the 1999 Constitution is not in any way in conflict with the provisions of Section 8(b) and 21(b) of the Enugu State Local Government Law. This issue is resolved against the Appellant.
ISSUE THREE
Whether the learned trial judge erred in law when he held that Section 7(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is not ambiguous.
Appellant?s counsel argued that the provisions of Section 7(4) of the 1999 Constitution is ambiguous because the age for one to vote in a House of Assembly election in Nigeria is the age of eighteen (18) years as provided for in Section 117(2) of the 1999 Constitution, whereas the age for a Nigerian citizen to be voted for at an election into a House of Assembly of a State in Nigeria is thirty (30) years as provided in Section 106(b) of the
36
1999 Constitution.
Appellant?s counsel argued that those who are eligible to vote in accordance with the 1999 Constitution are citizens who have attained the age of eighteen (18) while those to be voted for should have attained the age of thirty (30). Counsel further argued that the problem of age requirement resides in the intention of the draftsman of the 1999 Constitution, which must be known, when the provision of Section 7(4) of the 1999 Constitution was enacted. Counsel cited Obi vs. INEC (2007) 11 NWLR Pt. 1046 Pg. 565.
Appellant?s counsel argued that the word ?or? as used in Section 7(4), 1999 Constitution, shows that the age requirement for one to vie for election into a local government council in Nigeria are disjunctive, thereby leading to ambiguity. Counsel cited Buhari vs. INEC (2008) 18 NWLR Pt. 1120 Pg. 246; Global Excellence Comm. Ltd & Ors vs. Duke (2007) 16 NWLR Pt. 1059 Pg. 22.
Appellant?s counsel argued that Sections 117(1)&(2) of the 1999 Constitution when read with the provisions of Section 7(4)of the 1999 Constitution shows the link between being disqualified to vote at an election into a
37
House of Assembly and such a voter being disqualified to contest election in a local government council.
Appellant?s counsel argued that eighteen years is the age of maturity and that anyone who has attained the age of maturity is presumed to be able to take part at the local government level of governance which is the lowest tier of government. Counsel further argued that statutes are interpreted to ensure the smooth running of the system, even where there are alternative interpretations open to be given to such statutes. Counsel cited Tukur vs. Gongola State (1989) 4 NWLR Pt. 117 Pg. 517; Nafiu Rabiu vs. The State (1981) 2 NCLR Pg. 293.
Appellant?s counsel submitted that the intention of the draftsmen of Section 7(4) of the 1999 Constitution is that age 18 should be the uniform age for a Nigerian citizen to be entitled to vote and be voted for in a local government election in Nigeria. Counsel submitted that this would give anyone who has attained such age to participate freely in governance, as stipulated under Article 13(1) of the African Charter.
?The Hon. Attorney General submitted on behalf of the 1st and 3rd Respondents that
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Section 117(2) of the 1999 Constitution defines those eligible to vote, and it said nothing about those eligible to be voted for and that Section 106 of the 1999 Constitution was made to complement Section 7(4).
1st and 3rd Respondents? counsel argued that the 1999 Constitution provided for a stipulated age of 18years which a citizen must attain to qualify to vote, and then the Constitution made specific provisions regarding various offices. Counsel further argued that a general rule of interpretation does not override a specific provision, rather, specific provisions override general provisions in a Constitution or Statute. Counsel cited Abubakar vs. Nasamu (No.1) (2012) 17 NWLR Pt. 1330 Pg. 407.
1st and 3rd Respondents? counsel argued that where the words of any statute are clear and unambiguous, they must be given their ordinary and natural meaning. Counsel cited Shettima vs. Goni (2011) 18 NWLR Pt. 1279 Pg. 413 at 421; Obiuweubi vs. CBN (2011) 7 NWLR Pt. 1247 Pg. 465 at 483.
1st and 3rd Respondents? counsel argued that the word ?or? as used in Section 7(4) of the 1999 Constitution is conjunctive so as to give
39
meaning to the enactment and avoid absurdity. Counsel argued that the intention of the law makers is to join the two qualifications ?vote or be voted for?, i.e. a person should qualify to vote and be voted for during a House of Assembly election, in order to have the right to ?vote or to be voted for? during election to a local government council. Counsel cited Olaleye-Ote vs. Babalola (2012) 6 NWLR Pt. 1297 Pg. 574 at 581.
1st and 3rd Respondents? counsel argued that holistic interpretation of Section 7(4) of the 1999 Constitution will avoid absurdity and the true intention of the framers of the Constitution will become obvious. Counsel argued that the Courts have a duty to find out what the framers of the Constitution intended and give effect to it by using interpretative skill and tools. Counsel cited Inakoju vs. Adeleke (2007) 4 NWLR Pt. 1025 Pg. 423 at 463.
1st and 3rd Respondents? counsel submitted that the age of 18 as prescribed by the 1999 Constitution is the minimum age limit to vote. Counsel argued that the 1999 Constitution does not intend that a citizen of eighteen years who can vote, as well can at
40
the same age be voted for to occupy every office as this would amount to the Court annulling the 1999 Constitution. Counsel cited Sections 65, 117(2) and 131 of the 1999 Constitution.
On this issue, senior counsel for the 2nd Respondent argued that the combined reading of Section 7(4) and Section 117(2) of the 1999 Constitution provides for persons who are entitled to vote in an election to a House of Assembly, and persons who have the right to vote at a local government election to have attained the age of 18. Senior counsel further argued that a combined reading of Sections 7(4) and 106 (6) of the 1999 Constitution provides for persons who can be voted for to have attained the minimum age of thirty years. Senior counsel cited Inakoju vs. Adeleke (2007) 4 NWLR Pt.1025 Pg. 427 at 612 Paras. B-D.
2nd Respondent?s senior counsel argued that the word ?or? used in Section 7(4) of the 1999 Constitution is clear and unambiguous and that when the words in a statute are clear and unambiguous, they should be given their literal meaning. Senior counsel cited FRN vs. Dariye (2011) 13 NWLR Pt. 1265 Pg. 521 at 549 to 550 Paras. G-E; Shettima vs.
41
Goni (2011) 18 NWLR Pt. 1297 Pg. 413; Akintokun vs. LPDC (2014) 13 NWLR Pt. 1423 Pg. 1 at 74 to 75 Paras.G-A.
OPINION
Section 7(4) of the 1999 Constitution provides as follows:
(4). The Government of a State shall ensure that every person who is entitled to vote or be voted for at an election to House of Assembly shall have the right to vote or be voted for at an election to a local government council
In interpreting the Constitution or any statute, a provision must not be read in isolation but other provisions or the whole statute as much as possible must be read to not only reach the proper legislative intent, but to also make a consistent meaning of the whole statute.
In the preceding issue, the right to be voted for was dealt with. Now to the right to vote. Section 7(4) of the Constitution provides that a person who is entitled to vote at an election to House of Assembly shall have the right to vote at an election to a local government council. What are the qualifications for eligibility to vote in elections to the local government council and the House of Assembly? Section 151 of the Local Government Law of Enugu State provides as
42
follows:
151.(1) A person shall be eligible to vote in any local government election if-
(a) he is a citizen of Nigeria and has attained the minimum age of eighteen years
(b) he is ordinarily resident in the ward or Local Government Area where he intends to vote or is an indigene thereof; and
(c) he is registered as a voter in the ward or constituency where he intends to vote and has obtained a registration card to be presented at the polling station on the day of the elections.
(2) Notwithstanding the provisions of Subsections (1) of this section, the following persons shall not be qualified to vote at an election, that is to say-
(a) the Chairman and members of the Commission
(b) the Secretary of the Commission
(c) The Electoral Officers and Assistant Returning Officers for each constituency;
(d) the Presiding Officer of each Polling Station; and
(e) all other officers charged with the conduct of elections in the field.
(3) Notwithstanding the provisions of Subsection (1) and (2) of this section, a person shall be eligible to vote in any Local Government elections if he is qualified to vote at an
43
election to the State House of Assembly.
This is a clear provision as to the qualifications to vote at an election to the local government council. However, by virtue of Subsection 3, we are in familiar waters. What are the qualifications to vote at an election to the State House of Assembly? A recourse to the Constitution again. Section 117(2) of the 1999 Constitution provides as follows:
117.(2) Every citizen of Nigeria who has attained the age of eighteen years, residing in Nigeria at the time of the registration of voters for purposes of election to any legislative house, shall be entitled to be registered as a voter for that election.
In essence, Section 117(2) of the Constitution, though similar to the provisions of Section 151(1) of the Local Government Law of Enugu State, takes precedence over the requirements of the Enugu State Law by virtue of the word ?Notwithstanding?. This provision is clear. Qualification to vote in any election to the State House of Assembly qualifies a person to vote in any election to the local government council irrespective of any provision of the Enugu State Local Government Law to the contrary,
44
just the same way qualification to contest any election to the State House of Assembly qualifies a person to contest any local government council election. There is simply no ambiguity in the provision of the law and I cannot see the supposed intention of the 1999 Constitution to the effect that a citizen of eighteen years can be voted for to occupy any office in the country. This issue is resolved against the Appellant.
Having resolved issue 1 in favour of the Appellant, this appeal succeeds in part. Parties to bear their own costs.
Appeal allowed in part.
IGNATUS IGWE AGUBE, J.C.A.: I agree
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I was privileged to read in draft the judgment of my learned brother, HON. JUSTICE HELEN MORONKEJI OGUNWUMIJU, JCA. I agree with the reasoning and conclusion therein. I too allow the appeal in part. I abide by the consequential orders made therein.
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Appearances:
C.D. Ogbe with him, D.O. OdumosuFor Appellant(s)
Chief M.E. Eze (Attorney General, Enugu State) for the 1st & 3rd Respondents.
G. Ofodile-Okafor, SAN with him, C.D. Okoro for the 2nd Respondent.For Respondent(s)
Appearances
C.D. Ogbe with him, D.O. OdumosuFor Appellant
AND
Chief M.E. Eze (Attorney General, Enugu State) for the 1st & 3rd Respondents.
G. Ofodile-Okafor, SAN with him, C.D. Okoro for the 2nd Respondent.For Respondent
