NJABA LOCAL GOVERNMENT COUNCIL v. UCHENDU VITALIS CHIGOZIE & ORS. (2010)

NJABA LOCAL GOVERNMENT COUNCIL v. UCHENDU VITALIS CHIGOZIE & ORS.

(2010)LCN/3966(CA)

In The Court of Appeal of Nigeria

On Monday, the 12th day of July, 2010

CA/PH/LGE/396/2008

RATIO

PERFORMANCE OF AN OBLIGATION: WHETHER WHERE THE PERFORMANCE OF AN OBLIGATION DEPENDS ON THE CONTINUED EXISTENCE OF A GIVEN THING, A CONDITION IS IMPLIED THAT THE IMPOSSIBILITY OF PERFORMANCE ARISING FROM THE PERISHING OF THE THING SHALL EXCUSE SUCH PERFORMANCE

I agree with the learned Appellant’s counsel and I am also of the view that the law is well settled that in circumstances in which the performance of an obligation depends on the continued existence of a given thing, (in this case, the 2004/2007 session of council), a condition is implied that the impossibility of performance arising from the perishing of the thing shall excuse such performance. See TAYLOR v. CALDWELL (1863) 3 B & S 826 at 827-834. In other words, the courts have through a long line of cases recognized that supervening impossibility will discharge the Appellant from the liability to swear in the 1st Respondent as an elected councilor, now that the legislative session (2004/2007) for which he contested the election had expired and the council dissolved before his adjudged victory could be executed. Thus, where the subject matter, as in this case, is destroyed under circumstances beyond the control of the parties, and thereby rendering the performance impossible, the Appellant is excused from the implied obligation to swear in the 1st Respondent as an elected Councillor. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

DUTY OF THE COURT NOT TO DEAL WITH ISSUES OR ARGUMENTS NOT RAISED BY THE PARTIES

The law is that a court should not embark in our adversarial jurisprudence in dealing with issues or arguments not raised by the parties. The court also cannot grant reliefs not claimed by the parties in the pleadings. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF SECTION 23 OF THE IMO STATE LOCAL GOVERNMENT LAW NO.15 OF 2000 AS TO THE TERM OF OFFICE OF A CHAIRMAN, VICE CHAIRMAN AND MEMBERS OF COUNCIL OF A LOCAL GOVERNMENT

S.23 of the Imo State Local Government Law No. 15 of 2000 provides as follows: 1. The term of office of the Chairman, Vice Chairman and members of Council of a Local Government shall be three years from the date the Chairman, Vice Chairman or members of Council take the Oath of Office. 2. Without prejudice to subsection (1) above, where prior to the commencement of this law a Chairman, Vice Chairman and members of council of a Local Government have taken Oath of Office, the term of office of such Chairman or Vice Chairman or members of council shall take effect from the date the Chairman took Oath of Office. 3. Where a vacancy occurs in the office of a Chairman, Vice Chairman or Councillor the term of office of a person who fills the vacancy shall terminate on the date upon which the term of office of the person whose place he took would ordinarily have ended. A close look at S.23(1) shows that the words Chairman, Vice Chairman and members are conjunctive and not disjunctive. In my humble view and I agree with the learned Appellant’s counsel that subsection 1 makes the Chairman, Vice Chairman and Councillors swim or sink together. They are joined together. In fact, subsection 2 puts the matter with more clarity. The subsection subjects the tenure of the Vice Chairman and members to a common term governed by the tenure of the Chairman. Councillors take their oath of office and run their term of three years commencing from the day the Chairman takes his oath of office. Subsection 3 is even more germain and its effect is that where a member takes his oath of office lets say a year after the Chairman, may be due to litigation over his seat, the member’s term still runs from the time the Chairman took oath of office and ends when the Chairman’s term expires. If a member is unable to take oath of office during the tenure of the Chairman, his tenure has in my humble opinion lapsed. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

RULES OF INTERPRETATION OF STATUTE: WHETHER IT IS ALWAYS BEST IN INTERPRETING LEGISLATION TO TAKE A HOLISTIC VIEW OF SUCH LEGISLATION AND NOT TAKE A NARROW VIEW OF ONLY THE SECTIONS UNDER SCRUTINY

It is always best in interpreting legislation to take a holistic view of such legislation and not take a narrow view of only the sections under scrutiny. See OBAYUWANA v. GOVERNOR (1982) 12 SC 147 at 211 where Nnamani JSC observed: “It is an accepted principle of the interpretation of Constitutions (or indeed any statute) that the provisions should be taken as a whole. It cannot be presumed that any clause in the Constitution is intended to be without effect. See MARBURY v. MADISON 5 U.S. 337 1 CRAUCH 137, 2 L Ed 60.? See also BRONICK MOTORS v. WEMA BANK (1983) 1 SCNLJ 296 at 342; and SENATOR ABRAHAM ADESANYA v. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR. (1981) 5 SC 112 at 137; (1981) 2 NCLR 358.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

NJABA LOCAL GOVERNMENT COUNCIL Appellant(s)

AND

1. UCHENDU VITALIS CHIGOZIE
2. IMO STATE INDEPENDENT ELECTORAL COMMISSION
3. ATTORNEY GENERAL OF IMO STATE Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of A. O. Ukachukwu J. of the Imo State High Court delivered on 18/3/08. The facts that led to this appeal are as follows:
The Plaintiff now (1st Respondent) on appeal commenced a suit dated 6/8/07 by originating summons at the High Court posing the following questions and asking for the following reliefs:
1. Whether by the interpretations of the provisions of Imo State Electoral Law, No. 5 of 2001 as amended and the Imo State Local Government Administration Law, No. 15 of 2000, the Plaintiff is entitled to be accorded the due and full recognition as the democratically elected councilor for Achara Ward of the 3rd Defendant, Njaba Local Government with effect from the date of his return including the taking and subscribing to the oath of allegiance and oath of office.
2. Whether the Plaintiff’s 3-year tenure shall commence immediately upon being sworn-in, in the face of his return as the duly elected councilor for Achara Ward, Njaba Local Government Area of Imo State on the 5th of April, 2007 and the 3rd Defendant’s acknowledgement of same in her Notice of Emergency Meeting of 10/4/2007.
3. Whether by the issuance of a Certificate of Return at election by the 1st Defendant, ISIEC, to the Plaintiff on the 5th of April, 2007, following the various orders of the election Tribunals for a fresh and the subsequent return of the Plaintiff as duly elected, the office of councilor Achara Ward has become vacant as at 13th of April, 2007, when the Plaintiff as the elected councilor of the ward has not been sworn in and has not served his term as statutorily stipulated.
4. Whether by the present state of the law, the 1st Defendant that issued a Certificate of Return on the 5th of April, 2007 to the Plaintiff, can competently and validly conduct another Councillorship election for the same Achara Ward in Njaba Local Government Area in 2007 or any other date when the tenure of the Plaintiff as not commenced or expired.
i. Declaration that in view of the Return of the Plaintiff as the Councillor Achara Ward on 5/4/2007, he is entitled to be accorded full recognition by the Defendants in line with the demands of the office including his being sworn in and receiving all entitlements appurtenant to his office from the date of his Return.
ii. Declaration that by the provisions of the Imo State Local Government Administration Law, No. 15 of 2000, the Plaintiff is entitled to hold the office of councilor for Achara Ward, Njaba Local Government for 3 years commencing from the date of his swearing-in.
iii. Declaration that the 1st Defendant is incompetent to organize or conduct another election over the Councillorship seat of Achara Ward in Njaba Local Government Area in 2007 or any other date before the expiration of the 3 years tenure of the Plaintiff as the democratically elected councilor of Achara Ward.
iv. Declaration that there exists no vacancy in the office of Councillor for Achara Ward, of the 3rd Defendant until the Plaintiff has been accorded his full status and he has served his full tenure of 3 years as the councilor of the Ward commencing from his swearing-in date.
v. An injunction restraining the 1st Defendant by itself, its officers, agents, servants or any person acting for them or through them from organizing, conducting or carrying out any election in 2007 for the office of the Councillor of Achara Ward or on any date before the expiration of the Plaintiff’s tenure of 3 years upon his swearing-in.
vi. An injunction restraining the defendants by themselves, their servants, agents, officers or by any person acting for them or through them from electing, regarding, recognizing or dealing with any other person other than the Plaintiff as the duly elected Councillor of Achara Ward, Njaba Local Government Area until the expiration of the 3 years tenure of the Plaintiff.
vii. An order compelling the Defendants to accord the Plaintiff with his full recognition, entitlements and interest as the democratically elected Councillor of Achara Ward Njaba Local Government Area of Imo State.
viii. An order compelling the 3rd Defendant to allow the Plaintiff subscribe to the Oath of Allegiance and Oath of Office and accord him will all the benefits as a Councillor for the 3 years of his tenure in office in line with law.
Prior to the inception of the suit, the followings were the sequence of events:
Local Government Council elections into the legislative councils in Imo State were held on 27th March, 2004. The 1st Respondent and one Ukajim Hipolytus contested the election in Njaba Local Government Council for the office of Councillor for Achara Ward. Ukajim Hipolytus was returned as duly elected. The 1st Respondent challenged the return at the Imo State Local Government Election Tribunal established by Law No. 5 of 2001. The Imo State Local Government Election Tribunal nullified the election for Achara Ward and ordered fresh election.
Fresh election was conducted in Achara Ward on 29th October, 2005 and Ukajim Hipolytus was returned as elected. Again, the 1st Respondent sued Ukajim Hipolytus and another at the Election Tribunal challenging the return of Ukajim Hipolytus. The petition was heard and on 27th July, 2006, the Tribunal gave its judgment and returned the 1st Respondent as elected.
Ukajim Hipolytus appealed to the Election Appeal Tribunal and on 5th April, 2007 the Election Appeal Tribunal struck out the appeal.
The 2nd Respondent on the same date (5th April, 2007) issued Certificate of Return to the 1st Respondent in obedience to the order of court. However, Ukajim Hipolytus filed a motion for an order of injunction restraining the 1st Respondent (Uchendu Vitalis Chigozie) from being sworn-in as a Councillor into the Njaba Legislative Council and motion for an order relisting the appeal, (see pages 53-62 of the Records), which were fixed for hearing on 19th April, 2007. The motions and appeal were struck out finally on 19th April, 2007. (See pages 63-64 of the record), after the councils’ tenure had expired.
Achara Ward in Njaba Local Government Council was represented by a Councillor throughout the 3 year period. By the time the appeal was finally disposed of by the election Appeal Tribunal, the Councillors had served out their term and their tenure had ended. The Councils were dissolved on the 13th day of April, 2007.
The 1st Respondent brought the suit (subject of this Appeal) in the lower court to determine questions of law and interpret relevant provisions of the Imo State Electoral Law (Law No. 5 of 2001) and Imo State Local Government Administration Law (Law No. 15 of 2000).    The trial judge granted all the reliefs and went further to order that the 1st Respondent be sworn in during the next legislative session of the Appellant Council. Hence this appeal.
The Appellant filed the amended Appellant’s brief dated 17/2/09 filed on 2/3/09. A reply brief to the 1st Respondent’s brief joining the issues raised in the preliminary objection was filed on 11/5/10. The 1st Respondent’s amended brief is dated 24/3/10 filed on 25/3/10. Therein the preliminary objection filed on 12/2/09 was argued. The 2nd and 3rd Respondents’ amended brief is dated 5/3/10 filed on 22/3/10.
The Appellant identified three issues for determination set out below:
1. Whether a Certificate of Return without more can entitle the 1st Respondent automatically to the membership and benefits as an elected councilor for the Appellant’s Council, having regard to Sections 24(3) of Law No. 15 of 2000 and S.31 of Law No. 5 of 2001, of Imo State?
2. Whether the learned trial judge was right in granting to the 1st Respondent a relief he did not claim, when he ordered as follows:
“An order compelling the 3rd Defendant (Appellant) to accord due recognition to the Certificate of Return issued to the Plaintiff on 5th April, 2007, and so to swear him as Councillor for Achara Ward for the next legislative session.”
3. Whether the disputed mandate of the 1st Respondent which only got judicial confirmation on 19/4/2007 after the expiration and dissolution of the Council on 13/4/2007, was not frustrated?
The 1st Respondent identified a sole issue for determination as follows:
“Whether by the entire circumstances of this matter the 1st Respondent having been returned by the 2nd Respondent can be sworn in to serve his tenure even in the next legislative session.”
The 2nd and 3rd Respondents identified two issues for determination as follows:
1. “Whether the Plaintiff/1st Respondent has a tenure as a councilor and entitled to any benefit from Njaba Local Government Council?
2. Whether the trial court has the power to amend the relief claimed by a party in a suit.”
I will first of all deal with the preliminary objection. The 1st Respondent objected to the appeal on the basis that this court lacks the jurisdiction to adjudicate on the appeal. The learned counsel for the 1st Respondent, Mr. I. F. Akponye submitted that this appeal flows from and seeks to interpret the decision of the Local Government Appeal Tribunal and that hearing this appeal will amount to revisiting the decisions of the Local Government Appeal Tribunals and interpretation of the consequence of the decisions of the Appeal Tribunal which this court is not permitted to do.
He submitted that no appeal can lie from the judgment of the Imo State Local Government Council Election Appeal Tribunal which is the creation of a State Law. He cited OGOKO v. LOCAL GOVERNMENT ELECTION APPEAL TRIBUNAL, OWERRI (unreported) judgment of the Court of appeal (Port Harcourt Division) delivered on 31/8/2006 in Appeal No. CA/PH/LGE/28M/2006. Counsel submitted that no court can assume jurisdiction that is undefined or unprovided by statute or the Constitution. He cited ADEYEMI (ALAFIN OF OYO) v. ATTORNEY GENERAL OF OYO STATE (1984) NSCC 397 at 419-420; EHUWA v. ONDO STATE INEC & ORS. (2007) 149 LRCH 1543 at 1555-1556.
Counsel further submitted that the Imo State Laws cannot confer appellate jurisdiction on the Court of Appeal being State legislations and that only the National Assembly can make enactments conferring jurisdiction on the Court of Appeal. He argued that S.19(1) and (2) of the Imo State Local Government Administration Law No. 15 of 2000 makes the High Court the final court in determination of the question which may arise as to whether the seat of an elected member of a council has become vacant. He submitted that by specifying the High Court as the final court, the law has specifically excluded the Court of Appeal. That is having excluded appeal it cannot be imported and that the legal maxim expressio unius est exclusio alterius is applicable to this case. He cited EHUWA v. ONDO STATE INEC (supra) at pages 1557JJ-1558A; MILITARY GOVERNOR OF ONDO v. EDEWUNMI (1988) 3 NWLR Pt. 82 Pg. 280; A.G. BENDEL v. AIDEYAN (1989) 4 NWLR Pt. 118) Pg. 646.
The 2nd leg of the preliminary objection is that the 1st Respondent complained that the appeal is incompetent since the Appellant has no special interest and has not shown how is it aggrieved on the issue of who becomes elected into the council. Learned 1st Respondent’s counsel argued that the Appellant cannot be an aggrieved or offended interested person within the meaning of S.243(a) of the 1999 Constitution as the council was a nominal party at the trial court. He argued that the right of appeal cannot be extended to the Appellant since no grievance would be suffered by it in its obedience of the orders of the High Court. He cited UGWU v. ALAEBO (2006) ALL FWLR Pt.309 Pg. 1474 at 1479E; BAKARE v. APENA (1986) 4 NWLR Pt. 33 Pg. 1 at 25-26.
Another leg of the objection raised by the 1st Respondent is that the grounds of appeal are incompetent because the Appellant’s refusal to swear in the 1st Respondent in the first instance caused the present action which led to this appeal. Counsel argued that it is unconscionable for the Appellant a government body to question the decision of the High Court ordering him to be sworn in.
Counsel also argued that all the grounds of appeal are incompetent. The main reason adduced by the learned counsel is that the issues formulated by the Appellant are more than the grounds of appeal and that the issues must be discountenanced for that reason. He cited DPC CO. LTD. v. B.P.C. LTD (2008) 159 LRCN 61 at 79; OYEKAN v. AKINRINWA (1996) 1 NWLR Pt. 459 128; ANGARA v. CHRISMATEL SHIPPING CO. LTD. (2001) 8 NWLR Pt. 716 Pg. 685; CHIME v. CHIME (2001) 3 NLWR Pt. 701 Pg. 527: SALAMI v. MOHAMMED (2000) 9 NWLR Pt. 673 Pg. 469.
Counsel argued that Order 6 rule 2(3) of the Court of Appeal Rules have been breached as the grounds are repetitive, argumentative and narrative. He cited TIZA v. BEGHA (2005) 129 LRCN Pg. 1833 at 1865; NKPUMA v. STATE (1995) 9 NWLR Pt. 421 Pg. 505 at 507.
Chief Edozie Uche Uwugo who settled the Appellant’s brief, in his reply brief urged this court to dismiss the foregoing objections. Counsel argued on the 1st leg of objection that the 1st Respondent’s counsel was wrong in his contention that the High Court was called upon to pronounce on the consequences of the decision of the Election Appeal Tribunal.
Counsel argued that any State law is subject to interpretation when it comes before the Court of Appeal and that a State law cannot oust the jurisdiction of the Court of Appeal. Counsel argued that a State legislation even when it uses the phrase “until the question is finally determined by the High Court” should not be interpreted to mean that it can operate to oust the jurisdiction of the Court of appeal to hear an appeal from the State High Court as that would be unconstitutional.
On the 2nd leg of objection, learned Appellant’s counsel submitted that it was a spurious since the Appellant appealed against an order made against it as a government, moreso, as the order involved the commitment of huge financial resources. The Appellant was a necessary party to the proceedings. The 1st Respondent has claimed entitlements as an elected Councillor. The High Court made an order banning election in Achara Ward of the Local Government Council. If the order is not set aside, it would cause breakdown of law and order in the ward and affect the whole Local Government. Counsel argued that the citizens of Achara ward have the constitutional right to elect their representative while some have the right to seek to represent their people. Moreover, the Appellant has a duty to maintain law and order in the entire Local Government Area including Achara Ward.
In answer to the 3rd leg of the objection relating to the complaints against how the grounds of appeal were couched, learned counsel argued that there is no substance in the allegation that the issues were more than the grounds as it is clearly shown in the Appellant’s brief where all the issues were related to a ground or grounds of appeal. Counsel replied on the issue of the general contention of the 1st Respondent that the particulars in support of the grounds of appeal are argumentative, narrative and repetitive that there is no specific complaint against a particular ground. He asserted that it is not unusual that in stating particulars where grounds are similar, the particulars tend to overlap and this cannot be termed repetition.
The 2nd and 3rd Respondents also entered into the fray and on page 4-7 of the brief and paragraphs3.00-3.02 argued vehemently that this court should dismiss the preliminary objection raised by the 1st Respondent to this appeal. I will not consider the arguments proffered and will give my reasons anon.
On the 1st leg of the objection relating to jurisdiction, I agree intoto with the argument of the learned counsel for the Appellant that the appeal did not originate from the decisions of the Imo State Local Government Council Election Appeal Tribunal but from the decision of the Imo State High Court initiated by originating summons. The issue at stake clearly did not flow from the conduct of the election.
By S.6(6) (c) of the Constitution,  the High Court is empowered to entertain disputes between person and person, person and government or corporations and vice versa. It must be this provision that encouraged the 1st Respondent when he could not realize the benefit of his barren judgment to approach the High Court of Imo State to secure a coercive order mandating the Appellant to execute the orders of the Election Appeal Tribunal which confirmed him as duly elected. Once the 1st Respondent successfully got the High Court to hear and determine any issue relating to his mandate the matter automatically left the subject matter jurisdiction of Electoral Tribunals and acquired the subject matter of the ordinary civil courts as far as pre-election or post election matters are concerned. This being the case, Sections 240 and 241(1)(f) (ii) of the Constitution duly vest jurisdiction in the Court of Appeal.
Thus the issue on appeal is no longer whether a seat is vacant or not but in view of the non-compliance with Section 24(3) of Imo State Law No. 15 of 2000 and Section 31 of Law No. 5 of 2001, and having regard to the fact that the return of the 1st Respondent which had been under challenge was only confirmed by the Appeal Tribunal on 19/4/07, after the council was dissolved on 13/4/07, whether the 1st Respondent can be  sworn in now or even during the next legislative session of the Appellant’s council? This issue was never before the Election Appeal Tribunal. It is a new issue which has flowed from the order of the High Court of Imo State sitting as a court of first instance and moved by originating summons.
There is no doubt that it is the claim of the Plaintiff that donates jurisdiction to a court. See OBI v. INEC (2007) 11 NWLR Pt. 1046 Pg. 565. Thus the High Court and consequently this court has jurisdiction over this appeal. The 1st Respondent should not be allowed to approbate and reprobate at the same time. He went to the High Court to obtain judgment and is now turning around to argue that this court does not have jurisdiction to hear an appeal emanating from the decision of a High Court on the grounds that it originated from an election petition. The 1st Respondent has given a meaning to the phrase “finally determined” as contained in S.19(2) of the Law. His own interpretation if I understand it is that there is no appeal from the judgment of the High Court and that on the question as to whether the seat of an elected member of council has become vacant, only the High Court has jurisdiction and that no appellate jurisdiction can lie from the decision of the High Court. That is totally against the principle of jurisprudence operated in Nigeria. The Nigeria legal system creates a hierarchy of courts. It is important to remember that the jurisdiction to interpret the provisions of the Constitution and all statutes generally enables the constituent organs of the State to function smoothly.
On the 2nd leg of objection wherein the 1st Respondent contended that the Appellant had no interest to protect and should not have appealed, I agree with the learned Appellant’s counsel but with the greatest respect to the learned 1st Respondent’s counsel that the argument is both absurd and misconceived. The 1st Respondent as Plaintiff at the High Court had sued the appellant as 3rd Respondent and made the Appellant a necessary party to the proceedings. Reliefs were sought and orders given to restrain it from conducting election of councilor for Achara Ward.  How could an objection be raised against the exercise of the Appellant’s constitutional right of appeal? I don’t think that given the orders sought against the Appellant at the High Court, the action could have been maintained if it was not joined. I am of the view that the Appellant had a right to appeal as a corporate person with legal interest to protect. See UGORJI v. ONWU (1991) 3 NWLR Pt. 178 Pg. 177 at 184-185; UGWU v. ALAEBO (2006) ALL FWLR Pt. 309 Pg. 1474.
In respect of the 3rd leg of the objection, I have read through the grounds and issues formulated thereon and frankly cannot find any basis for the vague complaint that the grounds were repetitive, argumentative etc raised by the learned 1st Respondent’s counsel. Suffice it to say that the grounds of appeal are clear, concise and they communicated the grievances of the Appellant against the judgment. There is no doubt that issues are to be formulated within the parameters of the grounds of appeal filed and the judgment appealed against and not hang in the air. See GLOBE FISHING v. COKER (1990) 7 NWLR Pt. 162 Pg. 265. The Appellant’s amended brief clearly showed that all the issues were connected to the ground or grounds of appeal. I find the objections totally without merit and they are dismissed.
In respect of the substantive appeal, I am of the view that the sole issue distilled by the 1st Respondent’s counsel would adequately answer the question in controversy. It is whether by the entire circumstances of this matter the 1st Respondent having been returned by the 2nd Respondent can be sworn in to serve his tenure even in the next legislative session.  Learned Appellant’s counsel submitted that the Appellant’s legislative council for the session 2004/2007 to which the 1st Respondent aspired duly expired on 13/4/07 and the council was dissolved. The 1st Respondent did not fulfill the provisions of S.24(3) of Law No. 15 of 2000 and S.31 of Law No. 5 of 2001 of Imo State having not presented his Certificate of Return to the Clerk, subscribed to the Oath of Allegiance to the Federal Republic of Nigeria and the Oath of Membership and having not also declared his assets and liabilities as prescribed by the Code of Conduct Bureau and Tribunal Act. Without fulfilling those actions he had not become a councillor. See. PDP v. INEC (1999) 11 NWLR Pt. 626 Pg. 200 at 240.
Counsel argued that the 1st Respondent never claimed the relief granted to him in terms of
“order compelling the Appellant to accord due recognition to the Certificate of Return issued to the Plaintiff on 5/4/07 and so to swear him in as councilor for Achara Ward for the next legislative session.”
Counsel argued that the 1st Respondent filed his action on 9/8/07 nearly four months after the council to which he aspired was dissolved on 13/4/07. Counsel submitted that without doubt that at the time 1st Respondent brought his action, the cause of action had abated. The 1st Respondent had acquired no tenure and so had no cause of action.
Counsel argued that the 1st Respondent was only asking for benefits he ought to have acquired as they relate to the 2004/2007 session of the Appellant’s council for which he contested election. Counsel argued that from his claims the 1st Respondent did not ask for and did not contemplate to be sworn in during the next legislative session. It is the law that a court will not grant a relief, which has not been sought or asked for by a Plaintiff. So it cannot award more than the Plaintiff is claiming. See OKUBULE v. OYAGBOLA (1990) 4 NWLR )t. 147 Pg. 723 at 744 (G-H); OJO v. ABOGUNRI & ORS. (1989) 5 NWLR Pt. 120 Pg. 162 at 168 (H); BOLA IGE v. OLUNLOYO (1984) 1 SCNLR 158 at 163, 168-169. He argued further that the legal consequence of failure to ask for a relief is that such a relief shall not be granted. See EKPENYONG & 3 ORS. v. INYANG E. NYONG & 6 ORS. (1975) 2 SC 71 at 90. Where a court makes an award which was not claimed by a litigant, such an award should not be allowed to stand and must be set aside. See AJAYI v. TEXACO (NIG.) LTD. (1987) 3 NWLR Pt. 62 Pg. 577 and HASSAN v. MAIDUGURI MANAGEMENT COMMITTEE (1991) 8 NWLR Pt. 212 Pg. 738 at 749 (Para B-D).
The Appellant’s further contention is that the learned trial judge had no power whatsoever to transfer or defer the purported mandate of the 1st Respondent, given for the 2004/2007 legislative session to the next. He submitted that the learned trial judge had no powers, inherent or statutory to import the element of “next legislative session” into the case of the Plaintiff. He cannot make a case for the Plaintiff.  A Judge is not in law allowed to formulate a claim, defence or arguments for either of the parties and so can he not formulate issues for a party in the determination of the case before him. He cited CALVERT v. FALLON (1960) 1 ALL ER 281. A court of law should confine itself to issues raised by the parties in their pleadings and ought not to venture to raise new matter for parties except in constitutional matters going to the root of the cause in which case the parties must be called upon to address the court on such issues. See. ADENIYI v. ADENIYI (1972) 1 ALL NLWR 298; OKE BOLA v. MOLAKE (1975) 12, SC. 81; BAMGBOYE v. OLAREWAJU (1991) 4 NWLR Pt. 184 Pg. 132 at 144 (E-G; 151-152 (F-C).
Counsel argued that the relief granted erroneously cannot be a consequential relief to give effect to the judgment. He cited ADEMOLA v. SODIPO (1989) 5 NWLR Pt. 121 Pg. 329 at 36; EMAPHILI LTD. v. ODILI (1987) 4 NWLR Pt. 67 Pg. 915 at 938-939 (H-A); OPEOLA v. FALADE (1991) 2 NWLR Pt. 173 Pg. 303 at 313 ; AKINBOBOLA v. FISKO (1991) 1 NWLR Pt. 167 Pg. 270 at 284 (Para (D-E); OBAYAGBONA v. OBAZEE (1972) 5 SC. 247.
Counsel argued that the res in this matter, the mandate of the 1st Respondent is perishable in the sense that it is circumscribed by tenure which is fixed by the operation of S.23 of the Imo State Law No. 15 of 2000. The mandate having not been actualized, there was impossibility of performance. The impossibility of performance has led to frustration of the performance of an obligation which must lie where it fell. Counsel cited LIJADU v. LIJADU (1991) 1 NWLR Pt. 169 Pg. 644; TAYLOR v. CALDWELL (1863) 3 B & S 826 at 827-834; KRELL v. HENRY (1903) 2 KB 740; FIBROSA SPOIKA AKYJIMA v. FAIRBAIRN LAW COMBE BARBOUR LTD. (1943) AC 32; DAVIES CONTRACTORS LTD. v. FAREHAM U.D.C. (1956) AC 696 at 729.
Learned counsel argued that being a corporate tenure, the term is begins and ends at the same time.
Learned 1st Respondent’s argument on the sole issue are first that by the provision of S.23(1) of the Imo State Local Government Administration Law No. 15 of 2000, it is clear that the tenure of a member commences upon being sworn in. Counsel also argued that each of the local government elected officer’s tenure is not anchored on that of another. Counsel argued that a community reading of S.23 of the Imo State Local Government Administration Law No. 15 of 2000 will clearly indicate that the tenure of the Chairman, Vice Chairman or member of the council elected under the law is determined on when each took oath of office in that the tenure is not corporate.
Counsel argued that the State Governor cannot truncate the tenure of office of an elected councilor by any reason at all including the dissolution of the council. Counsel also argued that the issue of frustration is inapplicable to this case. He argued that the Supreme Court in OBI v. INEC (2007) ALL FWLR Pt. 378 Pg. 1116 at 1172 held that there is no constitutional provision that election in this country must be held at a particular time table and that by the decision in OBI v. INEC supra no other councilor can occupy the position of the 1st Respondent until he has exhausted his tenure. Counsel also submitted that the relief being objected to is a natural consequence and incidental to the reliefs claimed and issues raised before the trial court. He cited AKAPO v. HAKEEM HABEEB (1992) 6 NWLR Pt. 247 Pg. 226 at 297; REGISTERED TRUSTEE APOSTOLIC CHURCH v. OLOWOLENI (1990) 6 NWLR Pt. 158 Pg. 514 at 531; AJIBOLA SOGEKE (2003) 9 NWLR Pt. 826 Pg. 494; AMECHI v. INEC (2008) 5 NWLR Pt. 1080 Pg. 227.
In the first instance, I wish to state that this court cannot at all take cognizance of the well written brief filed by the 2nd and 3rd Respondents in this appeal. It baffled me why Mrs. E. C. Aguta who settled the brief after so much effort could not have asked seniors or colleagues how to go about the case at the Court of Appeal. The 2nd and 3rd Respondents were the 1st and 2nd Defendants at the High Court and defended the case at the High Court. If they were dissatisfied with the decision of the High Court, the only option is to appeal against the judgment and not make themselves Respondents on appeal. It is quite elementary that the role of a respondent to an appeal is to defend the judgment appealed against. If any party who succeeded at first instance and is a respondent on appeal wishes to depart from that role by attacking the judgment appealed against in any manner, he is obliged by the rules of court to file a cross-appeal. A Respondent to an appeal who neither files a cross-appeal nor respondent’s notice will not be allowed to file a brief of argument attacking the judgment or be allowed to present oral judgment.
In this case, the 2nd and 3rd Respondents filed a brief as such, whereas they were defendants against whom judgment was given by the trial court and should normally have filed an appeal against the judgment. Having failed to file an appeal, they cannot be heard as Respondents attacking the judgment. That is how our adversarial system operates. It is unfortunate that Mrs. Aguta Ag. Director of Legal Drafting did not think it wise and expedient to ask senior colleagues what to do in this situation. A lawyer is always learning, that is why we are called learned. In the circumstances, the brief of the 2nd and 3rd Respondents would be ignored and this appeal decided on the Appellant’s and 1st Respondent’s brief. See OBI v. INEC (2007) 11 NWLR Pt. 1046 Pg. 565 at Pg. 673-674 OLANIYAN v. ADENIYI (2007) 3 NWLR Pt. 1020 Pg. 1 at 15.
The reliefs claimed by way of originating summons at the trial court have been set out above. I cannot help but agree with the learned Appellant’s counsel that in the first instance, before the 1st Respondent could assume his seat in the council he had to fulfill the conditions stipulated in S.24(3) of law No. 15 of 2000 and S.31 of Law No. 5 of 2001 of Imo State stipulating the taking of oaths and declaration of assets by a councilor before he can be admitted as a member of the Local Government Council.
Thus, the 1st Respondent was never conferred with membership of the council before the house was dissolved on 19/4/07. As to the arguments of the learned Appellant’s counsel that the 1st Respondent did not ask for the relief granted to him by the learned trial judge, a reading of the totality of the declaratory and injunctive orders sought by the 1st Respondent show clearly that even if he did not ask for the order granted by the learned trial judge in the language used by the learned trial judge, that relief was the summary of his prayers before the court. That is to say that the remedy granted to him by the learned trial judge flowed naturally or consequentially from the prayers sought before the judge. I do not think that the learned trial judge made an award not claimed by the 1st Respondent. All the authorities cited by the learned Appellant’s counsel are with the greatest respect irrelevant in the circumstances of this case. The law is that a court should not embark in our adversarial jurisprudence in dealing with issues or arguments not raised by the parties. The court also cannot grant reliefs not claimed by the parties in the pleadings. See AKAPO v. HAKEEB HABEEB supra.
However, in this case, the 1st Respondent asked for declaration that he be entitled to hold office from the date of his swearing in, that no election should be held into his ward before he exhausts his three year tenure etc and the orders already set out at the beginning of this judgment.
The 1st Respondent’s counsel at para 20 of his brief on page 65 of the record had argued that the 1st Respondent was asking for a declaration that the Appellant had no right to organize any election into his ward, as there is no vacancy, then the trial judge’s order that he should be sworn in as councilor for Achara Ward for the next legislative session could not be one made suo motu.
Following on that point is the issue of whether the 1st Respondent had existing tenure and was entitled to the reliefs granted by the trial court. I agree with the learned Appellant’s counsel and I am also of the view that the law is well settled that in circumstances in which the performance of an obligation depends on the continued existence of a given thing, (in this case, the 2004/2007 session of council), a condition is implied that the impossibility of performance arising from the perishing of the thing shall excuse such performance. See TAYLOR v. CALDWELL (1863) 3 B & S 826 at 827-834. In other words, the courts have through a long line of  cases recognized that supervening impossibility will discharge the Appellant from the liability to swear in the 1st Respondent as an elected councilor, now that the legislative session (2004/2007) for which he contested the election had expired and the council dissolved before his adjudged victory could be executed. Thus, where the subject matter, as in this case, is destroyed under circumstances beyond the control of the parties, and thereby rendering the performance impossible, the Appellant is excused from the implied obligation to swear in the 1st Respondent as an elected Councillor.
S.23 of the Imo State Local Government Law No. 15 of 2000 provides as follows:
1. The term of office of the Chairman, Vice Chairman and members of Council of a Local Government shall be three years from the date the Chairman, Vice Chairman or members of Council take the Oath of Office.
2. Without prejudice to subsection (1) above, where prior to the commencement of this law a Chairman, Vice Chairman and members of council of a Local Government have taken Oath of Office, the term of office of such Chairman or Vice Chairman or members of council shall take effect from the date the Chairman took Oath of Office.
3. Where a vacancy occurs in the office of a Chairman, Vice Chairman or Councillor the term of office of a person who fills the vacancy shall terminate on the date upon which the term of office of the person whose place he took would ordinarily have ended.
A close look at S.23(1) shows that the words Chairman, Vice Chairman and members are conjunctive and not disjunctive. In my humble view and I agree with the learned Appellant’s counsel that  subsection 1 makes the Chairman, Vice Chairman and Councillors swim or sink together. They are joined together. In fact, subsection 2 puts the matter with more clarity. The subsection subjects the tenure of the Vice Chairman and members to a common term governed by the tenure of the Chairman. Councillors take their oath of office and run their term of three years commencing from the day the Chairman takes his oath of office. Subsection 3 is even more germain and its effect is that where a member takes his oath of office lets say a year after the Chairman,  may be due to litigation over his seat, the member’s term still runs from the time the Chairman took oath of office and ends when the Chairman’s term expires. If a member is unable to take oath of office during the tenure of the Chairman, his tenure has in my humble opinion lapsed.
It is always best in interpreting legislation to take a holistic view of such legislation and not take a narrow view of only the sections under scrutiny. See OBAYUWANA v. GOVERNOR (1982) 12 SC 147 at 211  where Nnamani JSC observed:
“It is an accepted principle of the interpretation of Constitutions (or indeed any statute) that the provisions should be taken as a whole. It cannot be presumed that any clause in the Constitution is intended to be without effect. See MARBURY v. MADISON 5 U.S. 337 1 CRAUCH 137, 2 L Ed 60.”
See also BRONICK MOTORS v. WEMA BANK (1983) 1 SCNLJ 296 at 342; and SENATOR ABRAHAM ADESANYA v. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR. (1981) 5 SC 112 at 137; (1981) 2 NCLR 358.”
The question here which I have tried to answer is whether the learned trial judge could grant that relief in view of the position of the law. Learned 1st Respondent’s counsel tried to equate the situation of the 1st Respondent with that of Governor Obi in OBI v. INEC and urges us to follow the ratio of the Supreme Court in OBI v. INEC to the effect that the tenure starts when he is sworn in as Councillor. In OBI v. INEC (2007) 11 NWLR Pt. 1046 Pg. 505, the following questions were put before the Federal High Court Enugu and the following declarations sought by originating summons:
1. Whether having regard for S.180(2) (a) of the 1999 Constitution, the tenure of office of a Governor first elected as Governor begins to run when he took the oath of allegiance and oath of office.
2. Whether the Federal Government of Nigeria through the Defendant being it agent can conduct any Governorship Election in Anambra State in 2007 when the incumbent Governor took oath of allegiance and oath of office on 17th March, 2006 and has not served his four year tenure as provided under S180(2) (a) of the 1999 Constitution.”
3. A declaration that the four year tenure of office of the plaintiff as Governor of Anambra State began to run from the date he took the oath of allegiance and oath of office being the 17th of March, 2006.
4. A declaration that the Federal Government through the defendant being its agent cannot lawfully conduct any Governorship Election in Anambra State in 2007 in as far as the plaintiff as the incumbent Governor has not served his four year tenure term of office commencing from when he took the oath of allegiance and oaths of office on 17th March, 2006.
5. Injunction restraining the defendant by themselves, their agents, servants, assign and privies or howsoever from in any way conducting any regular election for the Governorship of Anambra State until the expiration of a period of 4 (four) years from 17th March, 2006 when the plaintiff’s tenure of office will expire.”
These were refused by the Federal High Court and Court of Appeal on the basis that they lacked jurisdiction to determine them. The Supreme Court held that this was a post election matter meant exclusively by way of division of labour for adjudication by the regular courts and not the election petition Tribunals. At page 635 Aderemi JSC held inter alia that
“The Appellant had exhausted all the legal avenues opened to him to get himself restored to the seat of Governor of Anambra State sequel to the 2003 election. What he is  now seeking is legal pronouncement as to when his four year term would end as Governor having regard to the fact that he first took his oath of allegiance and oath of office on the 17th of March, 2006.”
At page 644 His Lordship after a thorough interpretation of S.180(1) and (2) held that:
“It was after the judgment of the Court of Appeal on the 16th March 2006, and by force of law, that the Appellant (Peter Obi) took his oath of allegiance and oath of office on the 17th March, 2006. Applying the provisions of S.180(2) (a) of the Constitution to facts of this case, which are not in dispute, the four year term of office of Peter Obi, as Governor of Anambra State would start running from the 17th of March, 2006 only to terminate on the 17th March, 2010. To interpret the provisions of S.180(2) (a) otherwise will be to read into that subsection what the legislators never intended. The duty of the judex is to expound the law and not to expand it.”
It is apt to know that the provisions of S.180 of the 1999 Constitution interpreted by the Supreme Court are quite different from the provisions of S.23 of Imo State Law No. 15 of 2000.
The provision of S.23(2) the Imo State Local Government Administration Law NO. 15 cannot be expanded to mean that the terms of the Chairman, Vice Chairman and members are severable. They may take oath at different times but their tenure ends three years from the date the Chairman takes his oath.
In OBI v. INEC supra, CHUKWUMA-ENEH JSC made the point that S.180 construed by the Supreme Court as regarding the tenure of Governors had a corresponding provision in S.135(2) of the 1999 Constitution relating to the office of President and Vice President. His Lordship commented at page 693-694 of the NWLR that the Constitution did not make a similar provision with regard to members of the National Assembly and State Houses of Assembly.
The term of the President, Vice President, Governor and Deputy Governor starts on the day they were sworn in. The term of office of members of the National Assembly and State Houses of Assembly starts when the Houses are inaugurated after general election. The tenure of the Chairman, Vice-Chairman and members of the Local Government by virtue of the enabling law in Imo State starts when the Chairman takes oath of office.
In the circumstances, this appeal succeeds. The judgment of the lower court is set aside. N=30,000.00 costs for the Appellant against the 1st Respondent. Appeal Allowed.