RT. HON. MICHAEL BALONWU & ORS. v. GOVERNOR OF ANAMBRA STATE & ORS
(2009) LCN/3686(SC)
In The Supreme Court of Nigeria
On Friday, the 4th day of December, 2009
SC.233/2008
RATIO
APPEAL: NATURE OF A GOOD GROUND OF APPEAL
The law is quite clear that a good ground of appeal must constitute a complaint against the decision of the Court. In other words an appeal is usually against the ratio decidendi of the judgment of a lower Court and not in respect of an obiter dicta made by the Court in the course of the said judgment, except to be deemed to have radically influenced the ratio the obiter dicta is so clearly linked with the ratio decidendi. See Saude vs. Abdullahi (1989) 4 N.W.L.R. (Pt. 116) 387 and Saraki vs. Kotoye (1992) 9 N.W.L.R. (Pt. 264) 156 at 183 – 184. PER MOHAMMED, J.S.C
INTERPRETATION: CONSTRUCTION OF SECTION 105(1) OF THE CONSTITUTION WHICH REGULATES THE SITTING AND DISSOLUTION OF THE HOUSE OF ASSEMBLY
I shall now touch on Section 105(1) of the Constitution. My view is that Section 105(1) of the Constitution regulates the sitting and dissolution of the House of Assembly. It is that sub-section that is mandatory. It is mandatory that the House of Assembly shall stand dissolved at expiration of a period of 4 years commencing from the date of the first sitting of the House. The Plaintiffs had their first sitting on 9th June, 2003. So their tenure had expired by effluxion of time. The Plaintiffs do not have any right to go back to the House of Assembly of Anambra State under any guise.”
The above views expressed by the learned trial Judge on the provisions of Section 105(1) and 105(3) of the Constitution and his findings on the facts as to the actual date of the first sitting of the Appellants House of Assembly elected in 2003, were completely affirmed by the Court of Appeal in its decision of 26-6-2008 which dismissed the Appellant’s appeal against the decision of the trial Court. I must say here that the views expressed by the learned trial Judge and his findings which were affirmed by the Court below on the position of the Constituion and the law on the elongation of tenure of office claims of the Appellants as the Plaintiffs at the trial Court are quite in order.
Starting with the provisions of Section 105 (1) of the Constition which I have earlier quoted in this judgment, the subsection is quite plain and clear. The section means exactly what it says. That is, a House of Assembly including the Appellants’ House of Assembly, shall and dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House. All what is required in applying the provisions of the subsection is to ascertain the date of the first sitting of the House in determining its tenure of four years prescribed by the subsection. PER MOHAMMED, J.S.C
INTERPRETATION: CARDINAL PRINCIPLE OF INTERPRETATION
The law is indeed trite that in the interpretation of the provisions of statute including the Constitution, where the words of the statute are clear and unambiguous, the words must be given their plain and ordinary meamng. See Abioye vs. Yakubu (1991) 5 N.W.L.R. (Pt. 190) 130 and Odubeko vs. Fowler (1993) 7 N.W.L.R. (Pt. 308) 637. PER MOHAMMED, J.S.C
JUSTICES
ALOYSIUS IYORGYER KATSINA-ALU Justice of The Supreme Court of Nigeria
MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria
MOHAMMAD SAIFULLAH MUNTAKA-COOMASSIE Justice of The Supreme Court of Nigeria
Between
RT. HON. MICHAEL BALONWU
2. HON. BEN CHUKS NWOSU
3. HON. UCHENNA OKONKWO OKOM
4. HON. OSITA CHINWUBA
5. HON. DR. BEN OBIDIGBO
6. HON. EMMA ILOEGBUNAM
(For themselves and on behalf of Honourable
Members of Anambra State House of Assembly who held the first session of the House of Assembly of the State upon the proclamation for the holding of the first session by His Excellency Mr. Peter Obi (excluding those Honourable members of Anambra State House of Assembly who do not support this suit) Appellant(s)
AND
GOVERNOR OF ANAMBRA STATE – 1ST RESPONDENT
2. HON. ANAYO NNEBE – SPEAKER
3. HON. DISMAS B. A. OBI – DEPUTY SPEAKER
4. HON. NJIDEKA EZEIGW – MAJORITY LEADER
5. HON. NKIRU UGOCHUKWU – DEPUTY LEADER
6. HON. BARR. GABRIEL ONYENWIFE – CHIEF WHIP
7. HON. IFEANYIGEWE – DEPTY CHIEF WHIP
8. HON. EGBOKA TIMOTHY
9. HON. PRINCE EBERE NZECHUKWU
10. HON. MICHAELO. OFFOR
11. HON. CHIEF JOE ISAGU – 2ND TO 30TH RESPONDENTS
12. HON. SYLVESTER OKEKE
13. HON. JOSEPH DIMOBI
14 HON. BONIFACE A. OKONKWO
15. HON. CYPRIAN O. UGHAMADU
16. HON. UCHENNA S. UMERIE
17. HON. SIMON OHAJIANYA
18. HON. SIMON U. OKPALEKE
19. HON. ANTHONY NWOYE EZECHI
20. HON. JOSEPH C OKEKE – 2ND TO 30TH RESPONDENTS
21. HON. AMECHI M. IKENNA
22. HON. BRIGET C. CHUKWUKA
23. HON. LILIAN OKOSI
24. HON. CHINWEC. NWAEBILI
25. HON. CHINEDU MOKUWE
26. HON. OBIORA CHUKWUKA
27. HON. EJIOFOR F. A. EGBUATU
28. HON. EMEKA G. IDU
29. UCHE OGBONNA
30. HON. PAULINUS OBICHUKWU
31. HON. SOLOMON ANUSIKE
32. HON. SHEDRACK N. ANAKWUE
33. CHIEF JOHN MUORAH
34. HON. GODDY EJIAMIKE
(For themselves and as representing other candidates – 31ST TO 34TH RESPONDENTS who contested April 14,2007 election for all the 30 seats of Anambra State House of Assembly for the session covering June 2007 – June 2011 excluding those candidates who are not in support Respondent(s)
MOHAMMED, J.S.C: ( Delivering the Leading Judgment): The Appellants in this appeal as Plaintiffs had commenced their action by Originating Summons at the High Court of Justice of Anambra State sitting in Awka claiming a number of declaratory reliefs, the principal of which reliefs is on their tenure of office as members of the Anambra State House of Assembly who were elected in the general election conducted for all the Houses of Assembly in Nigeria in May, 2003. The Appellants action was against the Governor of Anambra State and the members of the Anambra State House of Assembly who were elected in the general election conducted for Houses of Assembly in the States of the Federation of Nigeria on 14th April, 2007. The reliefs claimed by the Appellants were based on the undisputed facts or factors surrounding the success of the Anambra State Governor Peter Obi in the election petition dispute between him and Governor Dr. Chris Ngige in the election to the office of the Governor of Anambra State held in 2003. The main ground of the Appellants’ claims however was hinged on the interpretation of Section 105(1) and (3) of the 1999 Constitution prescribing the tenure of office of the members of the State House of Assembly.
At the conclusion of the hearing of the action by the trial Court, on the application of the law to the undisputed facts arising from the affidavit in support of the Originating Summons and the counter-affidavit opposing the same, the learned trial Judge in his judgment delivered on 17th September, 2007, refused all the reliefs claimed by the Appellants and dismissed their action.
Dissatisfied with the decision of the trial Court, the Appellants appealed to the Enugu Division of the Court of Appeal which also in a unanimous decision given on 26th June, 2008, dismissed the appeal, hence the present appeal by the Appellants to this Court.
The circumstances that gave rise to the dispute between the parties in this appeal are very clearly stated in the affidavit in support of the Originating.
Meanwhile, on the approach of the date of the election in April, 2007, Governor Peter Obi went back to the Courts to ascertain the tenure of the office which he occupied on 20th March, 2006 though he was actually elected since May, 2003. He was successful at the Supreme Court which upheld his claim that his tenure of four years would not expire until March, 2010. Consequently, Governor Andy Uba who was declared the winner of the election conducted in April, 2007, was asked to vacate the seat for Governor Peter Obi to complete his tenure. The current members of the Anambra State House of Assembly who are the present 2nd to 30th Respondents held their first session in June, 2007 after the proclamation issued by Governor Andy Uba after taking his oaths of allegiance and office as the Governor of Anambra State. In their action at the trial Court which culminated in this appeal, the Appellants are in all in earnest challenging the tenure of office of the 2nd – 30th Respondents who were elected and came into office and started their tenure in June, 2007.
Before the appeal came up for hearing, in compliance with the rules of this Court, the Appellants’ brief of argument, the 1st Respondents’ brief of argument, the 2nd – 30th Respondents’ brief of argument and the Appellants’ Reply briefs to the 1st Respondent and 2nd – 30th Respondents briefs of argument, Summons and the counter-affidavit of the Respondents. The Appellants were elected into the House of Assembly of Anambra State in May, 2003 to serve a four year term. Dr. Chris Nwabueze Ngige who was declared by the National Electoral Commission as the winner of the election to occupy the seat of the Governor of Anambra State in 2003, was duly sworn in as the Governor of the State. As required under Section 105(3) of the 1999 Constitution, the Governor duly issued a proclamation on 5th June, 2003 and the State House of Assembly held its first session on 9th June, 2003. After electing its officers and subscribing to the appropriate oaths of allegiance and oaths of office, the house continued to function in accordance with the Constitution until the vacation of office of the Governor of the State by Dr. Ngige following the judgment of the Court of Appeal declaring Mr. Peter Obi as the winner of the election and his subsequent swearing in as the Governor of Anambra State on 20th March, 2006.
Although the House of Assembly comprising the Appellants had been functioning for nearly three years, all the same, the newly sworn in Governor Obi issued another proclamation under Section 105(3) of the Constitution on 20th March, 2006. The following day 21st March, 2006, the Appellants as members of the House of Assembly elected since May, 2003, held what they described as their first session.
Meanwhile, on the approach of the date of the election in April, 2007, Governor Peter Obi went back to the Courts to ascertain the tenure of the office which he occupied on 20th March, 2006 though he was actually elected since May, 2003. He was successful at the Supreme Court which upheld his claim that his tenure of four years would not expire until March, 2010. Consequently, Governor Andy Uba who was declared the winner of the election conducted in April, 2007, was asked to vacate the seat for Governor Peter Obi to complete his tenure. The current members of the Anambra State House of Assembly who are the present 2nd to 30th Respondents held their first session in June, 2007 after the proclamation issued by Governor Andy Uba after taking his oaths of allegiance and office as the Governor of Anambra State. In their action at the trial Court which culminated in this appeal, the Appellants are in all in earnest challenging the tenure of office of the 2nd – 30th Respondents who were elected and came into office and started their tenure in June, 2007.
Before the appeal came up for hearing, in compliance with the rules of this Court, the Appellants’ brief of argument, the 1st Respondents’ brief of argument, the 2nd – 30th Respondents’ brief of argument and the Appellants’ Reply briefs to the 1st Respondent and 2nd – 30th Respondents briefs of argument, were duly filed and served by the parties. In the Appellants brief of argument the following three issues was raised –
“1. Did the Appellant’s Counsel misquote Justices of the Supreme Court, was he dishonest, and was the decision of of Omage J.C.A in that respect cause a miscarriage of justice (Formulated from ground 1)
2. Was the lower Court right by not giving Section 105(3) of the Constitution of the Federal Republic of Nigeria, 1999 its ordinary meaning and by not giving effect to the word “Shall have power” when interpreting same, despite the fact that His Excellency Mr. Peter Obi is the elected Governor of Anambra State who made the Constitutional proclamation (Formulated from grounds 2, 4 and 5)
3. Are actions of Dr. Chris Ngige and Mr. Andy Uba saved in law contrary to the decision of the Supreme Court of Nigeria in Adefulu v. Okulaja (1996) 9 N.W.L.R. Part 475 Pg. 668 @ 693 D – E (Formulated from ground 3)”
In the 1st Respondent’s brief of argument, in addition to a Preliminary Objection raised to ground one of the Appellants’ ground of appeal, the following three issues were also identified from the five grounds of appeal filed by the Appellants:
“1. Assuming but without conceding that ground 1 of the Notice of Appeal is competent, whether
the Court of Appeal judgment can be faulted on ground of wrong citation of authorities or wrong citation of names of justices that decided a case, when such alleged wrong citation of authorities and names of Justices of Supreme Court or Court Appeal did not affect the correctness of the decision of the Court (ground 1 of the Notice of Appeal).
2. Whether the Court of Appeal was right in the Court’s interpretation of Section 105(3) of the 1999 Constitution of Nigeria as it relates to proclamation of the first sitting of Anambra State House of Assembly of which the Appellants were members (Grounds 2, 4 and 5 of the Notice of Appeal).
3. Whether the declaration of the election of Dr. Chris Nwabueze Ngige null and void by the Court of Appeal rendered null and void, the proclamation by Dr. Chris Nwabueze Ngige of the first sitting of Anambra State House of Assembly made up of the Appellants as well as whether the Supreme Court decision in Obi vs. INEC reported as Peter Obi vs. INEC (2007) 11 N.W.L.R. (Pt. 1046) page 565 affected the proclamation of the first sitting of Anambra State House of Assembly by Dr. Andy Uba. (Ground 3 of the Notice of Appeal).”
The 2nd-30th Respondents also raised a Preliminary Objection to ground one of the grounds of appeal and in addition, had formulated three issues for determination. They are-
“1. Whether the opinion of the Court of Appeal expressed obiter in its judgment on the conduct of Counsel for the Appellants at the hearing of the appeal including the allegation that the Court of Appeal did not consider in its judgment the cases of Obi v. INEC (2007) 11 N.W.L.R (Pt. 1046) page 436 and Adefulu vs. Okulaja (1996) 9 N.W.L.R. (Pt. 473) at 688 cited by the Appellants in the Court of Appeal occasioned any miscarriage of justice.
2. Whether the Court of Appeal was correct in its interpretation of Section 105(3) of the 1999 Constitution which provides that the person elected as the Governor of a State shall have power to issue a proclamation for the holding of first session of the State House of Assembly is directory because the section is confined and qualified by other provisions of the Constitution.
3. Whether the Honourable Court of Appeal was right when it affirmed the judgment of the High Court that Dr. Chris Ngige and Dr. Andy Uba were defector Governors of Anambra State and their actions while acting as such are saved in law.”
Looking at these issues as identified in the respective briefs of argument of the parties, it is quite plain that the first issue in all the three briefs of argument was predicated on the alleged derogatory comments made on the conduct of the learned senior Counsel for the Appellants by the learned Justice of the Court of Appeal, Omage J.C.A who prepared and read the lead judgment. It is not surprising therefore that both the 1st Respondent and 2nd – 30th Respondents had attacked the ground of appeal from which this first issue was formulated in their respective notice of preliminary objection duly argued in their Respondent’s briefs of argument. I shall dispose of these preliminary objectives in a word or two before facing the main appeal. The first ground of appeal at pages 439-440 of the record of appeal reads-
“1. The learned Justices of the Court of Appeal erred in law and came to an erroneous decision when Omage, JCA held that:-
“My lord Justice Aderemi who made contribution to the judgment (2006) 14 N.W.L.R. did not make reference to the acts of Dr. Ngige as null and void and Justice Tabai JSC did not participate in the judgment. I find such practice by the Appellants’ counsel dishonest particularly when statements of Supreme Court Justices are quoted out of con.”
The learned Justices of the Court of Appeal erred in law and came to an erroneous decision when
Omage, JCA held that:-
This affected the judgment of the Court of Appeal despite the fact that the Appellants Counsel was not dishonest and quoted only once at page 6 of his Appellant’s brief paragraph 3.5 when he stated that the “The case of Ngige v. Obi (2007) 14 N.W.L.R. (Pt. 999) page 1 @ 209 A – B decided that in the interpretation of statutes, words must be given their ordinary meaning” but insisted as he cited ADEFULU vs. OKULAJA (1996) 9 N.W.L.R. pt. 475
page 668 @ 693 D – E at page 8 paragraph 3.17 of the Appellants’ brief that – ‘when an appointment is declared null and void, all it means is that the appointment was never made and all acts of the appointee when he defactor held the appointment are unlawful, null and void and of no effect.’ The acts of Dr. Ngige were indeed unlawful, null and void.
PARTICULARS
(a.) Omage JCA was unfair to the Appellants’ Counsel Learned Senior Advocate of Nigeria, Nnamdi Ibegbu Esq. when he said that he is dishonest
(b.) It is unfair for a Justice of the Court of Appeal to use such derogatory expression of being dishonest against the Appellants’ Counsel and there is nothing to show that the conduct of the Appellants’ Counsel is clearly beyond peradventure as decided in Saeby Jernstoberi Maskin Fabri A/S vs. Olagun Enterprises Ltd. (1999) 14 N.W.L.R. Pt. 637 page 128 @ 143 G – H.
(c.) Appellants Counsel who did not cite Ngige vs. Obi (2007) 14 NW.L.R. instead cited Adefulu vs. Okulaja (1996) 9 N.W.L.R. Pt. 999 page 668 at 693 D – E at page 8 paragraph 3.17 of his Appellant’s brief Contrary to the assertion of Omage JCA.
(d.) By this said decision there was a miscarriage of Justice.
The 1st Respondent and 2nd – 30th Respondents in their preliminary objections to the above ground of appeal did not quote the ground of appeal in support of their arguments. The Appellants in their response to the Preliminary Objections in their Reply brief also did not bother to reproduce the ground of appeal either. I have therefore decided to quote the said ground one of the grounds of appeal the subject of the Preliminary Objections to show that the ground is entirely based on the derogatory comments or remarks made by Omage JCA in the lead judgment now on appeal on the alleged conduct of the learned Senior Counsel for the Appellants.
While it is the stand of the Appellants as reflected in paragraph (d) of particulars of the ground of appeal and in their arguments opposing the Preliminary Objection that the comments of the learned Justice of the Court of Appeal is part of the decision of the Court below which occasioned a miscarriage of justice, the 1st and 2nd – 30th Respondents saw nothing in these derogatory comments or remarks than a mere obiter dicta which by law, is not appealable.
Although on close examination of the remarks or comments made by the learned Justice of the Court below which were made the subject of this first ground of appeal show that they are highly uncomplimentary touching on the integrity and honesty of the learned senior Counsel to the Appellants, all the same “these comments or remarks to me were merely passing remarks not against the Appellants who were parties to the appeal but against their learned senior Counsel who is not a party to the appeal. Therefore, it is difficult to see how remarks on the learned senior could constitute a decision, to support a ground of appeal, within the meaning of Section 318(1) of the 1999 Constitution. The law is quite clear that a good ground of appeal must constitute a complaint against the decision of the Court. In other words an appeal is usually against the ratio decidendi of the judgment of a lower Court and not in respect of an obiter dicta made by the Court in the course of the said judgment, except to be deemed to have radically influenced the ratio the obiter dicta is so clearly linked with the ratio decidendi. See Saude vs. Abdullahi (1989) 4 N.W.L.R. (Pt. 116) 387 and Saraki vs. Kotoye (1992) 9 N.W.L.R. (Pt. 264) 156 at 183 – 184.
In the present case, the derogatory remarks of the learned Justice of the Court below has no link whatsoever to the Appellants case in which the Appellants were seeking elongation of their tenure as members of the Anambra State House of Assembly from May 2003 to March, 2010 by the interpretation of Section 105(1) and (3) of the 1999 Constitution. The obiter dicta which affected
only the person of the learned Counsel to the Appellants, cannot therefore be deemed to have formed part of the ratio decidendi of the case, the merits of which is the correct interpretation of Section 105(1) and (3) of the 1999 Constitution in relation to the tenure of office of the Appellants. Putting it differently, the Appellants have no right under the Constitution, the law and rules of Court to fight the cause of or grievances of their learned Counsel in the course of the prosecution of their own appeal challenging the decision of the Court below against them. In the result, the Preliminary Objections to ground one of the Appellants grounds of appeal succeeds and it is hereby allowed.
Consequently, ground one of the grounds of appeal of the Appellants is hereby for being incompetent. Consequently issue one arising from that Ground of appeal just struck out shall be disregarded in the determination of this appeal.
On the remaining two issues for determination in the respective briefs of argument of the Appellants and the Respondents, it appears to me that the real and only issue for determination in this appeal having regard to the case of the Appellants at the trial Court and the Court of Appeal, is the interpretation and application of Section 105(1) and (3) of the 1999 Constitution to the main complaint of the Appellants that their tenure as members of the Anambra State House of Assembly elected in 2003 shall not come to an end until 20th March, 2010. This is the issue raised as issue number two in the briefs of argument of the parties. It is my view that in the course of the resolution of this main issue for determination of the dispute between the parties, the ancillary issue number three relating to the status in law of the three distinct proclamations issued by the three Governors namely, Dr. Chris Ngige, Mr. Peter Obi and Mr. Andy Uba respectively on the first sittings of the Anambra State House of Assembly can also be easily resolved. In fact this was what the learned Counsel for the Appellant did when the third issue was argued together with the second issue in the Appellants brief of argument.
In support of the main issue for determination learned senior Counsel for Appellants had placed more emphasis on the interpretation of Section 105(3) of the 1999 Constitution which henceforth in this judgment shall referred to simply as ‘the Constitution’ Counsel explained that the provisions of the subsection are quite clear Chris Ngige upon which the Appellants started sitting was unconstitutional as he was not the lawfully elected Governor of Anambra State; that the two gentlemen, Dr. Chris Ngige and Dr. Andy Uba who were not the duly elected Governors of Anambra State, had no Constitutional powers to make proclamations for the first sitting of the Anambra State House of Assembly and consequently all the sittings and proceedings of the Appellants were null and void being also unconstitutional; that the House of Assembly of Anambra State constituting the Appellants elected in the year 2003, only came into lawful being and functioning in accordance with the Constitution after the proclamation by the duly elected Governor of the State Mr. Peter Obi on 20th March, 2006 and therefore the life tenure of that House shall not come to an end until March, 2010. A number of cases including Andrew Ajayi vs. Military Administrator of Ondo State (1997) 5 N.W.L.R. (Pt.504) 237 at 271; Achineku VS. Isagba (1988) 4 N.W.L.R. (Pt. 89) 411 at 120 and Edewor v. Uwegba (1987) 1 N.W.L.R. (pt. 50) 313 at 339 were relied upon in support of the stand of the Appellants that the words “shall have power” used in Section 105(3) of the Constitution are mandatory and must be complied with by the lawfully elected Governor of a State before the commencement of the first sitting of a State House of Assembly. Learned senior Counsel finally submitted that until the Anambra State House of Assembly was Constitutionally proclaimed and the Appellants inaugurated, the Appellants remained private citizens and the 1st Respondent who is the elected Governor had a duty imposed on him for which he has the power to perform as public functionary which enures to the Appellants who could not have started to function as a House of Assembly without the proclamation in accordance with Section 105(3) of the Constitution.
For the 1st Respondent however, his emphasis is on the provision of Section 105(1) of the Constitution by which the Appellants’ House of Assembly elected in the year 2003 stands dissolved at the expiration of four years commencing from the date of the first sitting of the House which in the present case was the date the House first sat, elected its officers and conducted the business of the House; that this date of first sitting need not necessarily be the same day as the date of inauguration of the House pursuant to Section 105(3) such in any case is subject to the provisions of the Constitution. Learned Counsel then urged this Court to adopt liberal approach to the interpretation of the provision of Section 105(1) and (3) of the Constition having regard to the authoring of the cases such as Attorney General Bendel State vs. Attorney General of the Federation (1981) All N.L.R. 85; Awolowo vs. Shagari (1979) 6-9 SC. 51; Salami vs. Chairman L.E.D.B. (1989) 5 N.W.L.R. (Pt.123) of 539 and Rabiu vs. The State (1981) 2 N.C.L.R. 293 in dismissing this appeal.
With regard to the status and the effect of the actions of the persons elected and sworn as Governors of Anambra State whose elections were later nullified by the decisions of Tribunals and the Court of Appeal, learned Counsel observed that all their actions while in office were saved by the provisions of Section 138(1) and (2) of the Electoral Act 2002; that the attempt by the Appellants to rely on the proclamation by Mr. Peter Obi as a subterfuge for extension of the tenure of the Appellants, does not find support in Sections 59(c) and 138(1) of the Electoral Act, 2002.
As for the interpretation and application of the provisions of Section 105(3) of the Constitution regarding the meaning of the words – “shall have power,” learned Counsel pointed out that whether or not the word ‘shall’ in this phrase is regarded as mandatory or directory is a non issue or academic as the power was infact exercised by all the three Governors whose actions are part of the dispute to be resolved in the appeal; that in any case, the use of the word ‘shall’ is always regarded mandatory where it confers a public duty as stated in Ifezue vs. Mbadugha (1984) 1 S.C.N.L.R. 427; Odi vs. Osafile (1985) 1 N.W.L.R. (Pt. 1) 17 and Ogualaji vs. Attorney General Rives State (1997) 6 N.W.L.R. (Pt. 508) 209; that since the proclamation by Governor Ngige in 2003 was in pursuance of a public duty under the Constitution in Section 105(3), it remains Constitutional and valid with further support by Sections 59(c) and 138(1) of the Electoral Act. Learned Counsel therefore urged this Court to dismiss the appeal.
As for the 2nd – 30th Respondents, their learned Counsel after citing Section 10 of the Interpretation Act CAP 123 Laws of the Federation, 2004 dealing with the manner power or duties conferred by statute may be exercised, proceeded to submit that this case has to be assessed from the stand point of the construction of Section 105(1) and (3) of the Constitution; that it is quite clear from these provisions that sub-section (3) of Section 105 is subject to the provisions of subsection (1) of the same section of the Constitution. On guidance of Courts to the interpretation of the provisions of the Constitution, learned Counsel referred to the case of I.M.B Securities PIc vs. Bola Tinubu (2001) 3 N.S.C.Q.R. 1 at 13; that it is a cardinal rule of interpretation of statutes that where a provision in a statute is made subject to another provision that provision must be read subordinate to the provision it is subject to as stated in Ngige vs. Obi (2006) 14 N.W.L.R. (Pt. 999) 1 at 227; N.P.A. vs. Eyamba (2005) 12 N.W.L.R. (Pt. 939) 409 at 442 and Yusuf vs. Obasanjo (2003) 15 N.W.L.R. (Pt. 847) 55 at 602; that for this reason, Section 105(3) shall not be interpreted to override the provision of Section 105(1) of the Constitution. Learned Counsel finally concluded that on the undisputed facts of this case, the proclamation of the first sitting of the Appellants was made on 9th June, 2003 and the Appellants having served their statutory tenure in June, 2007, there is no merit at all this appeal which this Court was urged to dismiss.
The facts of this case which I have earlier narrated in this judgment are not in dispute between the parties. What is in dispute between the parties is the interpretation and the application of the provisions of Section 105(1) and 105(3) of the Constitution. It has been said time without number in many decisions of this Court that the Constitution is an organic instrument which confers powers and also creates rights and limitations. It is the supreme law in which certain principles of fundamental nature are established. Thus, once the powers, the rights and the limitations under the Constitution are identified as having been created, their existence cannot be disputed in a Court of law. However, the extent of such powers rights and limitations and their implications may be sought to be interpreted and explained by the Court in cases properly brought See Attorney General Ondo State vs. Attorney General Federation (2002) 9 N.W .L.R. (Pt. 772) 222. This is exactly what happened at before the trial Court and the Court of Appeal where the parties took their disputes requiring the interpretation and explanation by those Courts of the provisions of the Section 105(1) and 105(3) of the Constitution. The provisions of the entire of Section of the Constitution now in dispute reads –
“105(1) A House of Assembly shall stand dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House.
(2) If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in sub-section (1) of this Section from time to time but not beyond a period of six months at anyone time.
(3) Subject to the provisions of this Constitution, the person elected as the Governor of a State shall have power to issue a proclamation for the holding of the first session of the House of Assembly of the State concerned. Immediately after his being sworn, or for its dissolution as provided in this Section.”
In dealing with these provisions of the Constitution in his judgment delivered on 17th September, 2007, the learned trial Judge Nweke J. has this to say at pages 235 – 238 of the record –
“The Constitution of Nigeria authorised the National Assembly to regulate elections in Nigeria.
See Section 184 of the Constitution. The National Assembly enacted the Electoral Act 2002 and Electoral Act 2006. In Section 138 and 149 there in respectively it was enacted that where the Tribunal or Court as the case may be, determines that a candidate returned as elected was not validly elected, the person elected should remain in office pending the determination of the appeal. These provisions are not inconsistent with Section 105(3) of the Constitution or any other Section of the Constitution. My view is that if a person is asked to remain in office by law, while his fate is determined by the Electoral Tribunal, the law cannot turn round to nullify his actions while he held forth as a defacto office holder.”
Having dealt with Section 105(3)I shall now touch on Section 105(1) of the Constitution. My view is that Section 105(1) of the Constitution regulates the sitting and dissolution of the House of Assembly. It is that sub-section that is mandatory. It is mandatory that the House of Assembly shall stand dissolved at expiration of a period of 4 years commencing from the date of the first sitting of the House. The Plaintiffs had their first sitting on 9th June, 2003. So their tenure had expired by effluxion of time. The Plaintiffs do not have any right to go back to the House of Assembly of Anambra State under any guise.”
The above views expressed by the learned trial Judge on the provisions of Section 105(1) and 105(3) of the Constitution and his findings on the facts as to the actual date of the first sitting of the Appellants House of Assembly elected in 2003, were completely affirmed by the Court of Appeal in its decision of 26-6-2008 which dismissed the Appellant’s appeal against the decision of the trial Court. I must say here that the views expressed by the learned trial Judge and his findings which were affirmed by the Court below on the position of the Constituion and the law on the elongation of tenure of office claims of the Appellants as the Plaintiffs at the trial Court are quite in order.
Starting with the provisions of Section 105 (1) of the Constition which I have earlier quoted in this judgment, the subsection is quite plain and clear. The section means exactly what it says. That is, a House of Assembly including the Appellants’ House of Assembly, shall and dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House. All what is required in applying the provisions of the subsection is to ascertain the date of the first sitting of the House in determining its tenure of four years prescribed by the subsection. The date of the first sitting of the Appellants having been determined to have been 9th June, 2003, counting from that date, there is no doubt all that the four year tenure of the Appellants had already expired even before filing their Originating Summons dated 25th June, 2007 at the trial Court.
As quite rightly found by the trial Court and affirmed by the Court below the proclamation issued by the elected Governor Chris Ngige on 5th June, 2003 before the first sitting of the Appellants on 9th June, 2003, is quite valid in law under Section 105(3) of the Constitution being a serving Governor of the State ‘who issued the same immediately after his being sworn in as the Governor of Anambra State. The fact that he had to vacate office at the end of the Court proceedings challenging his election in accordance with the provisions of the Constitution and the Electoral Act, cannot invalidate any powers or duties exercised or performed by him while in office. This is in line with the provisions of Section 138 of the Electoral Act 2002 which allows the Governor to remain in office and perform the functions of the office pending the determination of his appeal against the decision of the Election Tribunal by the Court of Appeal. The fact this period lasted for over 35 months is of no moment having been effectively covered by the law.
In similar circumstances, the proclamation issued by Governor Andy Uba before the first sitting of the 2nd to 30th Respondents as members of the Anambra State House of Assembly elected during the 14th April, 2007 election, also being challenged by the Appellants is also quite valid in law inspite of his vacation of the office on the orders of this Court to allow Governor Peter Obi to complete his tenure of office on 20th March, 2010. This is by virtue of the provisions of Section 149 of the Electoral Act, 2006 which had clearly saved any power exercised or functions performed by him as the Governor of Anambra State during the period he served in the office. In this respect, since the powers exercised and the functions performed by the Governors Dr. Chris Ngige and Dr. Andy Uba have been saved by the provisions of the law in Sections 138 and 149 of the Electoral Acts of 2002 and 2006 respectively, the arguments of the Appellants on the application of the case of Arlefulu vs. Okulaja (1996) 9 N.W.L.R. (Pt. 475) 668 to the present case can hardly arise.
In the instant case, the provisions of Section 105(1) and (3) of the Constitution are quite plain and clear and must be given their ordinary meaning on the tenure of a House of Assembly. Section 105(1) of the Constitution is on its own and its application does not depend on the provisions of Section 105(3) of the Constitution at all. In other words, whether or not there had been proclamations for the holding of the first session of the House of Assembly or for its dissolution by a person elected Governor of a State, that House stands dissolved at the expiration of a period of four years commencing from its first sitting. Proclamation for the holding of the first session of the House under Section 105(3), is not a condition precedent to the date of the first sitting of the House under Section 105(1) of the Constitution. it is indeed not true as argued by the Appellants that without proclamation by the Governor under Section 105(3) of the Constitution, the House of Assembly cannot function. The Constitution does not say so.
The law is indeed trite that in the interpretation of the provisions of statute including the Constitution, where the words of the statute are clear and unambiguous, the words must be given their plain and ordinary meamng. See Abioye vs. Yakubu (1991) 5 N.W.L.R. (Pt. 190) 130 and Odubeko vs. Fowler (1993) 7 N.W.L.R. (Pt. 308) 637.
It is my view therefore that the attempt by the Appellants to have the period of their tenure as members of the Anambra State House of Assembly elected since the year 2003, extended to March, 2010, must fail woefully having regard to the undisputed date of the first sitting of the Appellants as members of that House. This appeal has no merit at all and the same is hereby dismissed. The decision of the trial Court as affirmed by the Court below is hereby further affirmed.
There shall be N50,000.00 costs to each of the two sets of the Respondent
A.I. KATSINA-ALU, J.S.C.: I have had the advantage of reading in draft the judgment delivered by my learned brother Mahmud Mohammed JSC. I agree with it, and for the reasons he has given, I also dismiss the appeal as totally lacking in merit. I affirm the decision of the Court of Appeal.
C. M. CHUKWUMA-ENEH, J.S.C: This appeal is against the concurrent findings of the courts below dismissing the plaintiffs/appellants’ claim for the relief among others that their tenure of office as members of the Anambra State House of Assembly upon the election conducted in May 2003 should continued to 20/3/2010.
Their contention is founded on the interpretation of Section 105(1) and (3) of the 1999 Constitution in relation to their tenure as the members of the Anambra State House of Assembly elected in 2003.
Aggrieved by the decision of the court below they have appealed to this court. However, ground one of the 5 grounds of appeal as per the Notice of Appeal filed on 14/7/2008 from which issue one has been distilled has raised the question of the derogatory remarks of His Lordship Omage JCA in the lead judgment against the appellant’s Learned Senior Counsel.
His lordship’s most unfortunate, with respect groundless remarks as set out in the lead judgment of this court which informed the complaint as condensed in issue one for determination in this appeal although very damaging to the Learned Senior Counsel for the appellants cannot under any guise however viewed be posted any higher than an obiter observation meaning, in other words, what the term signifies, and, so, in my view is not an orbiter dicta in the strict legal terms as it is neither incidental nor collateral to the reasons for the decision. It cannot be said that the ground and the issue formulated from it in any way whatsoever relate or present any challenge to the reasons for the decision reached in the decision. See: EGBE V. ALHAJI (1990) I NWLR (Pt. 128) 546 at 590. And so, the remarks not having arisen from the reasons for the decision of the court below cannot constitute a valid ground of complaint in the appeal. The preliminary objection to the said ground and issue has been rightly sustained. The said ground of appeal and issue one are hereby struck out.
From the submissions of the parties to this appeal, the two remaining issues for determination tum on the question of interpretation of Section 105(1) and (3) of the 1999 Constitution vis-a-vis as to the Appellants’ contention that the life tenure of the House elected in 2003 shall terminate by efflux of time on 30/3/2010, and more specifically on how the interpretation of Section 105(1) and (3) has impacted on the three distinct proclamations respectively issued by Governors Dr. Chris Ngige, Mr. Peter Obi and Dr. Andy Dba, with regard to convening on each occasion the first session of House soon after each one of them has been sworn in as Governor. This is a remarkable stance for the appellants to take in this matter even as they have sat as members of the House elected in 2003 to its termination in 2007 by efflux of time.
To the above arguments the Respondents in a nutshell have contended that the life of the House elected on 2003 stands terminated at the expiration of 4 years certain commencing from the date of the holding of the House’s first session and in connaisance with the literary interpretation of Section 105(1) and (3) of the 1999 Constitution. They have relied on Section 138(1) and (2) and Section 149(1) and (2) of the Electoral Acts of 2003 and 2006 respectively to submit that all the executive actions of Dr. Ngige and Dr. Uba in exercise of their office as Governors have been saved.
It is my view that the whole misconception of the Appellants’ cause of action in this matter founded, as it were, on the breach of the provisions of Section 105 of the 1999 Constitution stems from a clear misapprehension of both the import and purport of the provisions of the said Section 105; it provides as follows:
“105(1) A House of Assembly shall stand dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House.
(2) If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in subsection (1) of this section from time to time but not beyond a period of six months at anyone time.
(3) Subject to the provisions of this Constitution, the person elected as the Governor of a State shall have power to issue a proclamation for the holding of the first session of the House of Assembly of the State concerned immediately after his being sworn in, or for its dissolution as provided in this section.
On the peculiar facts of this matter it is clear from the provisions of subsection 2 of Section 105 that they do not apply to this case. For the resolution of the issues raised in this matter only subsections 105(1) and (2) are pertinent and due to be considered here. The provisions of subsection 1 (i.e. 105(1)) are plain and simple being unambiguous and the words have in the circumstances to be given their ordinary grammatical meaning. In that wise, the life tenure a State House of Assembly is fixed for a period not exceeding four years commencing from the date for the holding of the first session of the House. The tenure of a State House of Assembly is therefore, four years certain calculated from the date for the holding of the first sitting of the House. Subsection I by its clear provisions has without more made certain the life tenure of a House. And so, a House of Assembly stands dissolved by mere efflux of time as clearly provided in this subsection and is not by proclamation as used to be the case under the parliamentary system.
From the plain words of the subsection a proclamation does not have to issue to terminate the life tenure of a House, so that it is proper to say that the termination of a House is more or less automatic after 4 years from the date of the holding of the first session in the life of a House of Assembly. By the provisions of section 105(1) therefore, what is material in calculating the life tenure of a House of Assembly is the date for the holding of its first session. Following from the above reasoning the subsection appears to stand on its own.
I now come down to scrutinizing the entire subsection 3 of Section 105. The use of the words, “subjected to” in the provisions of the subsection clearly as settled in many cases of this court including NDIC v. OKEM ENTERPRISES LTD. (2004) 10 NWLR (Pt.880) 107, TUKUR V. GOVT. OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517, OKE V. OKE (1974) 1 ANLR 443, and AQUA LTD. v. ONDO STATE COUNCIL (1988) 4 NWLR (Pt.91) 622 have conjured up a condition, a restriction or limitation, otherwise governed, subordinate, or subservient to. These words are used to make the subject section and in this case, subsection 3 of section 105 subservient or subordinate to the provisions of the Constitution including in this instance, subsection 1 of Section 105. Clearly, Section 105(3) cannot be read in isolation. In other words, it is not intended that the operation of Section 105 (1) shall be affected by the provisions of the “subject section”. And so, it goes without much saying that any conflict between the two subsections, the provisions of subsection 105 (1) shall prevail i.e. it shall not otherwise be limited by the provisions of subsection 3 of Section 105. In other words, in the con of subsection 3 issuing of a proclamation by Governor Peter Obi could not have prolonged the life tenure of the Anambra House of Assembly elected in 2003 which has terminated by efflux of time; that is to say, at the expiration of 4 years from the holding of the first session of that House in accordance with Section 105(1).
This stance on the interpretation of Section 105(1) begs the question whether the subject section has by using the words “shall have the power”, has thereby made issuing of proclamations by Governors, a condition precedent for the holding of the first session of a House. In this regard the construction of the words “shall have the power” as in the provisions of Section 105(3) and indeed whether in the con of the provisions of Section 105 those words connote, enabling and discretionary or absolute power in the exercise of issuing of proclamations appears to me, with respect, to have been unnecessarily dragged into this dispute. The meaning of those words are not useful to determining this matter. I shall demonstrate the circumstances that have led to this conclusion anon. Having considered the provisions of Section 105 (1) and (3) it is logical to narrow my reasonings to the resolution of the disputes in this case.
It is my view that on the peculiar facts of this matter no useful purpose is served by embarking on the tortuous journey of construing the words “shall have the power” as used in Section 105(3) solely for the purpose of determining in the con of the provisions of the constitution the nature of the power/capacity contemplated in the said subsection 105(3) whether it is enabling and discretionary or mandatory in the question of issuing of proclamations, as when otherwise this case can be resolved by having resource to the respective provisions of Section 138 and Section 149 of the Electoral Acts 2003 and 2006, in other words, seek the assistance of those sections of the Electoral Acts.
Section 149(1) and (2) is in pari material with Section 138(1) and (2) and has made provisions to the effect that a person elected as the Governor of a State as in this case Dr. Ngige, shall remain in office pending the determination of the appeal. These provisions have clearly saved the acts of the person (as Dr. Ngige) so elected pending the determination of the appeal.
For ease of reference I set out the provisions of Section 149(1) and (2) as follows:
“149(1) If the Election Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, then if notice of appeal against that decision is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the determination of the appeal.
(2) If the Election Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought.”
The provisions of Section 138(1) and (2) of the Electoral Act 2003 otherwise in pari material with section 149(1) and (2) of the Electoral Act 2006 applies to the case of Dr. Ngige particularly in the sense that as held in the case of BUHARI V. OBASANJO (2005) 13 NWLR 1 – this section is relevant and indeed applies to a situation where as in the case of Dr. Ngige declared, returned as elected by INEC, the Election Tribunal has declared him not validly so elected.
And the provision goes on to say that if notice of appeal against the Tribunal’s decision is filed within 21 days from the date of the decision, the person so returned as elected should notwithstanding the Tribunal’s decision remain in office pending the determination of the appeal. And that is to say, that where the person so elected as Dr. Ngige not being validly elected being the person so elected should notwithstanding the Tribunal’s decision (of not being validly elected) remain in office i.e. as the Governor. This is what happened in the case of Dr. Ngige.
It is equally clear that the provisions have no application where the Tribunal (or Court of Appeal in a case where it sits as a court of first instance e.g. Presidential Election) has declared that the person as a Governor has been validly elected. In sum, therefore the section deals with the status of the person (in the instance – Dr. Ngige) whose election has been invalidated and not one who has been declared validly elected.
What I am trying to say here on the backdrop of accepted facts of this case is that the proclamation issued by Dr. Ngige for the holding of the first session of the House of Assembly elected in 2003 is saved and therefore valid and regular notwithstanding that an appeal on the election of Dr. Ngige has later on been declared null and void. The appellants have not contested, that sequel to the proclamation issued by Dr. Ngige they have sat in the proceedings of the House throughout the period from 2003 – 2007 when the life tenure of the House has terminated after the expiration of 4 years and conducted business. It does not therefore, lie in their mouth to challenge the said proclamation nor any executive acts of Governor Ngige during that period including for that matter holding of the first session of the House in 2003.
It is not in dispute that the Anambra State House of Assembly elected in 2003 of which the appellants have been the elected members having duly started its first session of sitting on 9/6/2003, has thereby automatically terrrnnated 4 years thereafter, i.e. in 2007.
And so translating these reasoning to the facts-situation in this matter it is not arguable that once the life tenure of the House elected in 2003 has terminated by efflux of time, that is to say, 4 years from the holding of its first session, as provided in Section 105(1) any action as the instant one seeking a number of declarations and injunction can succeed. The Reliefs, being discretionary reliefs are to be granted at the discretion of the court and also being even moreso belated should have dictated to the appellants the near frivolity of this action.
It is my conclusion from the above reasoning that this action is totally misconceived and highly speculative.
The appeal is most unmeritorious and I agree with the reasoning and conclusions of my learned brother Mohammed JSC, whose lead judgment in this matter I have read before now that the appeal should be dismissed. I too dismiss it with costs as in the lead judgment.
M. S. MUNTAKA-COOMASSIE, J.S.C: The appellants/plaintiffs were members of the Anambra State House of Assembly, who were elected in 2003. On the 5/6/03 they had their first sitting in the chambers of the House of Assembly where they took the oath of office and Oath of allegiance and the Governor Dr. Chris Ngige issued an order of proclamation. Be it noted that Dr. Chris Ngige was also elected in 2003 when he issued the order of proclamation.
Subsequently the election of Dr. Chris Ngige as the Governor of Anambra State was challenged at the Election Petition Tribunal, which set aside the said election, upon an appeal to election appeal Tribunal; the judgment of the lower Tribunal was upheld. The said election was set aside and Dr. Peter Obi was declared as the duly elected Governor of Anambra State.
Dr. Peter Obi was sworn-in as the Governor of Anambra State on 16/3/06 upon being sworn-in, he subsequently issued another order of proclamation to the appellants. While the four years terms constitutionally granted to Dr. Peter Obi to serve as the elected Governor of Anambra State had not expired or exhausted, the Independent National electoral Commission (INEC) purportedly conducted another Governorship election, which produced Dr. Andy Uba as the elected Governor of Anambra State in 2007. Dr. Andy Uba was sworn in as the elected Governor of Anambra State, who in turn issued an order of proclamation to the State House of Assembly. In the mean time, Dr. Peter Obi had already instituted an action in court challenging the powers of INEC to conduct another Governorship election when the four year term constitutionally granted as the Governor has not expired. This court in Obi V. INEC & 6 Ors. (2007) 11 NWLR (pt. 1046) 565 at 644 held thus:-
“When verdict of the Court of Appeal (Enugu Division) declaring the present appellant as the rightful person to have been declared having won the gubernatorial election of April 2003, was handed down, the effect is that the return of Dr. Chris Ngige as the person who won the election was null and void and of no legal consequence. So, Ngige’s Oath taking at that time cannot be a point of reference for calculating the four year term of the appellant. Ngige was and cannot be a person first elected as Governor under this constitution; his election having been declared null and void. It was after the judgment of the Court of Appeal on the 16/3/2006, and by force of law, that the appellant (Peter Obi) took his Oath of allegiance and Oath of Office on the 17/3/2006”.
By the reasons of this judgment Dr. Andy Uba was ordered to vacate the office of the Governor of Anambra State.
2nd – 30th respondents were the set of the members of the House of Assembly that were elected in the House of Assembly election conducted in 2007 and who the removed Governor Dr. Andy Uba had earlier issued an order of proclamation. However, based on the removal of both Dr. Chris Ngige and Dr. Andy Uba as Governors of Anambra State, the appellants had also sought to extend their terms of office by instituting this action and claimed as follows:-
1. A DECLARATION that upon the interpretation of Section 105 (1) and (3) of the constitution of the Federal Republic of Nigeria, 1999 four years tenure of the plaintiffs at Anambra State House of Assembly commenced upon the proclamation for the holding of the first session of the House of Assembly of the State by the person elected as Governor of the State who is His Excellency Mr. Peter Obi on the 20/3/2006.
2. A DECLARATION that in keeping with Section 105 (1) and (3) ofthe Constitution of Nigeria 1999 the first session of Anambra State house of Assembly after the said proclamation by the elected Governor of Anmabra State who is Mr. Peter Obi took place of the 21/3/2006 and shall end and be dissolved by the Governor of Anambra State on the 20/3/2010 after the expiration of four years.
3. A DECLARATION that the proclamation for the first session of Anambra State House of Assembly by Dr. Chris Ngige who is not an elected Governor of Anambra State is unconstitutional, ultra vires, null and void.
4. A DECLARATION that the proclamation for the first session of Anambra State House of Assembly by Dr. Andy Uba who is not an elected Governor of Anambra State is unconstitutional, ultra vires, null and void.
5. A DECLARATION that the only person who shall sit as Honourable members of Anambra State House of Assembly shall be the Honourable members of the Anambra State house of Assembly duly elected, who upon the proclamation for the holding of the first session of the House of assembly of the State were entitled to and indeed participated in the first session of Anambra State House of Assembly which took place on 21/3/2006.
6. AN ORDER that the four years tenure of the plaintiffs at Anambra State House of Assembly commenced upon the proclamation for the holding of the first session of the House of Assembly of the State by the person elected as Governor of the State who is His Excellency Mr. Peter Obi on the 20/3/2006, and in accordance with Section 105 (1) and (3) of the constitution of the Federal Republic of Nigeria, 1999 the first session of the third House of Assembly of Anambra State commenced after the said proclamation on the 21/3/2006 and their tenure shall terminate on 20/3/2010.
7. AN ORDER that the only persons who shall sit as Honourble members of Anambra State House of Assembly shall be person duly elected who upon the said proclamation for the holding of the first session of the House of Assembly were entitled to and indeed participated in the first session of Anambra State House of assembly which took place on the 21/3/2006 being the plaintiffs.
8. AN ORDER that the defendant shall direct the Anambra State Police Commissioner to ensure that the plaintiffs shall continue unabated with their functions as Honourable members of Anambra State House of Assembly until the 20/3/2010.
9. AN ORDER of injunction restraining the defendant from issuing a proclamation for the holding of the first session of Anambra State house of Assembly with respect to those persons purportedly elected as members of Anambra State House of Assembly on the 14th/4/2007.
10. AN ORDER of injunction restraining those persons who are presently occupying Anambra State House of Assembly who purported to be elected on the 14/4/2007 their servants, agents and otherwise to vacate the premises of Anambra State House of Assembly until after the 20/3/2010 when the tenure of the plaintiffs shall terminate.
As earlier stated in this judgment, 2nd – 30th respondents are the product of Anambra State House of Assembly election conducted on the 14/4/2007. The said election has not been set aside nor the certificates of returns issued to them as duly elected members of the Anambra State House of Assembly set aside by an election Tribunal as required by Section 71 of the Electoral Act. 2006.
This action was heard by the trial court which dismissed the plaintiff’s action for lack of merit. The learned trial judge Onuchie J.I found as follows:-
“1 have carefully read the provisions of Section 105 (1) and 105 (3) of the 1999 Constitution. I have also read other provisions of the constitution. It is my view that it is provisions of Section 105 (1) of the 1999 constitution that governs the tenure of the Members of the House of Assembly of a State. It is also my view that Section (3) of the constitution merely confers a power on the Governor which the governor has a discretion to exercise. If it were the intention of framers of the 1999 constitution that the tenure of members of a House of Assembly should begin to run from the date proclaimed to the assumption of office by a member of House of Assembly of a State is the declaration of his assets and subscription to the Oath of Allegiance and the Oath of membership. See Sections 94 (1) and 94 (2) of the Constitution”.
Their claims were then dismissed by the trial court. The appellants were dissatisfied with the decision of the trial court and they consequently appealed to the Court of Appeal (Enugu Division) hereinafter called the lower court. The appeal was heard and dismissed.
On the interpretation of Section 105 (1) and (3) the lower court Per Omage JCA held as follows:-
“The question is whether the lower court erred in law in wrongly interpreting the phrase “shall have power”, etc. The trial court had ruled in his (sic) judgment before the court, that the phrase “shall have power” merely inform the donee of the power his ability in relation to the issue in contest and under Section 10 of the interpretation Act, the power. is exercisable as and when due or necessary. The phrase is not mandatory. The respondents counsel in the submission in his brief agrees with such definition. It is therefore correct to cite in support of the submission as authority the decision of the court as in Umar v. Governor of Kaduna State & Ors. Reported (1981) 2 NCL 689.
The word “shall” Used without more may be one or all of these mandatory directives, or persuasive, it would depend on the circumstance in which it is used. See Ishoal V. Ajiboye (1994) 7 – 8 SCNJ 1 Per Iguh JSc. For instance in the 1979 Constitution, it was ruled by the Supreme Court that Section 238 thereon was used not in a mandatory or directory manner, but in a persuasive sense. See Karto V. Central Bank (1991) 12 SCNJ. In subsection (1) of Section 105 of the 1999 constitution which subscribed thus: A house of Assembly shall stand dissolved “At the expiration of four years” etc. The word shall therein used is mandatory. It allows for no alternative. The various house of Assembly in Nigeria shall necessarily stand dissolved when four years have concluded and their tenure ends. What is left uncertain is the date of the first sitting of the house.
However, when in sub-section 3 of Section 105 of the 1999 constitution subscribes thus: “Subject to the provisions of this constitution the Governor of a State shall have power to issue a proclamation for the holding of the first session of the house of Assembly of the State house of Assembly concerned immediately after his being sworn in or for its dissolution” etc. The phrase “shall have power” therein used is only to inform the elected Governor of the power he possess as a Governor, an attribute of his gubernatorial power and position. There is no compulsion to use the power other than as it is necessary. The word shall therein used is not compulsory; it is only directory when it needs to be used. Shall have therein used is already confined and qualified by two conditions, “subject to the other provisions of the same constitution”, after he is sworn in, not compulsorily when he is sworn in as Governor, unless been proclaimed by a Governor. For the several reasons stated above, the appellant is in error and has misconceived the purported and meaning of the phrase ‘shall have power’ when the counsel submitted that the phrase is ‘directory’, it is not”.
Being dissatisfied with the judgment of the lower court, the appellants appealed to this court. Both parties filed and exchanged their respective brief of argument. The learned counsel for the appellants formulated three (3) issues for determination as follows:-
1. Did the appellants’ counsel misquote Justices of the Supreme Court, was he dishonest, and was the decision of Omage JCA in that respect cause a miscarriage of justice
(Formulated from ground 1)
2. Was the lower court right by not giving Section 105 (3) of the Constitution of the Federal Republic of Nigeria, 1999 its ordinary meaning and by not giving effect to the word “shall have power” when interpreting same, despite the fact that His Excellency Mr. Peter Obi is the elected Governor of Anambra State who made the Constitutional proclamation
(Formulated from ground 2, 4, and 5)
3. Are actions of Dr. Chris Ngige and Dr. Andy Uba saved in law contrary to the decision of the Supreme Court of Nigeria in Adefulu V. Okulaja (1996) 9 NWLR (pt. 475) p. 668 at 693 D- E (Formulated from ground 3)
The learned counsel to the 1st respondent couched its own issues differently as follows:-
1. Assuming but without conceding that ground 1 of the Notice of Appeal is competent, whether the Court of Appeal judgment can be faulted on ground of wrong citation of authorities or wrong citation of names of justices that decided a case, when such alleged wrong citation of authorities and names of Justice of the Supreme Court or Court of Appeal did not affect the correctness of the decision of the court (ground 1 of the Notice of Appeal) …
2. Whether the Court of Appeal was right in the court’s interpretation of Section 105 (3) of the 1999 Constitution of Nigeria as it relates to proclamation of the first sitting of Anambra State House of Assembly of which the appellants were members (ground 2,4 and 5 of the Notice of Appeal)
3. Whether the declaration of the election of Dr. Chris Nwabueze Ngige as null and void by the Court of Appeal rendered null and void, the proclamation by Dr. Chris Nwabueze Ngige of the first sitting of Anambra State House of Assembly made up of the appellants as well as whether the Supreme Court decision in Obi v. INEC reported as Peter Obi v. INEC (2007) 11 NWLR (pt. 1046) p. 565 affected the proclamation of the first sitting of Anambra State House of assembly by Dr. Andy Uba (Ground 3 of the notice of Appeal).
The learned counsel to the 2nd – 30th respondent also formulated three issues for determination as follows:-
1. Whether the opinion the Court of Appeal expressed Obiter in its judgment on the conduct of counsel for the appellants at the hearing of the appeal including the allegation that the court of Appeal did not consider in its judgment the cases of Obi V. INEC (2007) 11 NWLR (pt. 1046) page 436 and Adefulu Vs Okulaja (1996) 9 NWLR (pt. 475) at 688 cited by the Appellants in the Court of Appeal occasioned any miscarriage of justice.
2. whether the Court of Appeal was correct in its interpretation of Section 105 (3) of the 1999 Constitution which provides that the person elected as the Governor of a State shall have power to issue a proclamation for the holding of first session of the State House of Assembly is directory because the section is confined and qualified by other provisions of the Constitution.
3. Whether the Honourable Court of Appeal was right when it affirmed the judgment of the High Court that Dr. Chris Ngigeand Dr. Andy Uba were defacto Governors of Anambra State and their actions while acting as such are saved in law.
Learned counsel to the appellants submitted in his brief that the manner in which Omage JCA,who delivered the lead judgment of the lower Court misquoted the decisions of the Supreme Court in Obi v. INEC(supra) and Ngige vs Obi (2006) 14 NWLR (part 999) it had occasioned miscarriage of justice. If the learned justice of the Court of Appeal had correctly quoted the dicta in that decision he would not have been described as dishonest. He cited the case of:-
(Saeby Jerustoberi Manskinfabric A/S v. Olaogun Enterprises Ltd (1999) 14 NWLR (part 637) 128 at 143 G-H.
It was the submission of the learned counsel that section 105 (3) of the 1999 Constitution was not given its ordinary meaning. That Dr. Chris Ngige having been declared as not having duly elected Governor of Anambra State, his election was declared null and void; hence, all his actions as the Governor have no legal effect. Therefore the fact that the Appellants were unconstitutionally sitting with the proclamation of one who was not a Governor of Anambra State does not make their sitting constitutional at the time. He cited the case of Adefulu v. Okulaja (1999) 9 NWLR (part 475) 668 at 691, where it was held that once an appointment has been declared null and void by a Court of Law the effect in law is that the act was never carried out. Learned counsel cited the case of Ajayi Vs The Military Administrator of Ondo State (1997) 5 NWLR (part 504) 237 at 271, and submitted that the word “shall” in its ordinary meaning is a word of command and one which has always or which must be given a compulsory meaning, thus it denotes an obligation. He relies on the case of Achineku Vs Isagba (1988) 4 NWLR (part 89) 411 at 420 C-D.
Learned counsel for the appellants further submitted that proclamations issued by Dr. Chris Ngige and Dr. Andy Uba cannot be valid in law. Since, their elections have been declared null and void any actions done by them have no legal consequences. Since they are all un-lawful, all the acts of Ngige as Governor cannot be saved, since his election has been declared null and void, reliance was placed on the case of Adefulu Vs Okulaja (Supra). Learned counsel therefore urged this court to allow the appeal and grant the plaintiffs claims.
Learned counsel to the 1st respondent raised a preliminary objection to the 1st issue formulated by the appellants on the ground that the ground of appeal was not directed against any of the findings of the lower court, other than on comments made by the Presiding Justice, Omage JCA to the effect that the Appellant’s counsel was dishonest in the citation of the authorities.
A close perusal of the brief of argument of the Appellants before the lower court revealed that it is the learned justice of the court below (Omage JCA) that misquoted the authorities cited by the learned counsel to the Appellants. Naturally a counsel worth his salt would want to remove the tag of dishonesty placed on him by the learned Justice of the Court of Appeal. It is on this basis that I disagree with the respondents’ counsel that the tag of dishonesty “was a mere comment”. I cannot regard this as a mere comment’ as it touches on his integrity. This comment is utterly unjustifiable; it should not have been made. When a court comments on the conduct of a counsel in his handling of a case before it, a comment which impugns the character of counsel should not be made unless and until if the counsel’s conduct is so disparaging and falls below the standard expected of him as a counsel. I say no more on this point.
My Lords, it is my honest view that the only issue that calls for determination in this appeal is:-
“Whether the proclamation order issued by Mr. Peter Obi an the 20/3/06 can extend the terms of the members of the Anambra State House of Assembly who took their Oath of Allegiance and office in 2003”.
The gist of the submission of the learned counsel to the Appellants is that the election of Dr. Chris Ngige who issued the proclamation order for the first sitting of the House of Assembly in 2003, having been declared null and void, all the actions he took have no legal effect whatsoever inclusive of the proclamation issued, have all the sitting of the House of Assembly were illegal until the duly elected Governor, Mr. Peter Obi issued his own order of proclamation in 2006. Hence, the term of four (4) years of the Appellants began to run from 20/3/06 and will terminate on 20/3/2010. Counsel cited in support the case of: – Adefulu v. Okulaja (1996) 9 NWLR (part 475) 668. Counsel again submitted that the phrase “shall have power” in Section 105 (3) of the 1999 Constitution is mandatory and compulsory.
Both counsel to the Respondents arguments are on the same line. It was their submissions that the case of Adefulu Vs Okulaja (Supra) relied on by the Appellants was decided in respect of an appointment of a traditional ruler, which appointment was declared null and void. The said authorities are not applicable to the matter at hand as this is a matter of election. It was their, contention that the tenure of Chris Ngige before his election was declared null and void was protected by statute. They both submitted that the decision in Obi v. INEC (Supra) only relates to the office of the Governor of Anambra State and not to the plaintiffs.
My Lords will recall that in this judgment I have earlier stated the decisions of the two lower courts. Before I come to the interpretation placed on the provisions of Section 105 (1) and (3) of our 1999 Constitution, I wish to quickly comment on the decision of this court in Adefulu v. Okulaja (Supra). The decision was in respect of an appointment of a traditional ruler, which this court declared null and void as it was not made in accordance with the customs of the Ilisha. The case at hand is quite different. It relates to acts done by sitting Governor before his election was declared null and void. When a candidate has been returned as a Governor duly elected, he continues to act in that capacity until his election is declared null and void. Section 138 (1) of the Electoral Act, 2006 provides thus:-
“138(1) – If the Election Tribunal ar the Court as the case may be determines that a candidate returned as elected was not valid elected and if the Notice of appeal against that decisian is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the court remain in office pending the determination of the appeal”.
(Underlinings mine for emphasis)
The legal implication of the above provision in my view is that Dr. Chris Ngige was legally in office as the Governor of Anambra State, until March, 2006 when his appeal was determined and he was removed from office. It was therefore a misconception on the part of the appellants counsel to submit that the Order of proclamation issued by Chris Ngige in 2003 was null and void. The one issued by Mr. Peter Obi was a mere surplus sage.
Now Section 105 (1) of the 1999 Constitution provides thus:-
“A House of Assembly shall stand dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House”.
In the instance case, all parties are in agreement that the appellants were elected in 2003, and they have their first sitting in June, 2006, when the sitting Governor issued an Order of proclamation. In compliance with the above cited provisions, the four (4) years term of the House of Assembly of Anambra State expired in 2007. It is my considered view that the House of Assembly does not need the proclamation of the Governor before it commenced sitting provided the members have taken their Oath of Allegiance, Oath of office, and disclosed their assets. It is to be noted that these Oaths are administered by the Clerk of the House and not by the Governor. If the provision of Section 105 (3) is compulsory and mandatory before a House commences sitting a Governor faced with hostile House of Assembly where the opposition is in majority may frustrate the sitting of the House. Again it is my considered opinion that the power conferred on the Governor by virtue of Section 105(3) of the 1999 Constitution is only used when necessary. I completely agreed with the decision of the lower court that this appeal lacks merit.
I have read in draft the lead judgment of my learned Lord Mohammed JSC just delivered. I agree with his reasoning and conclusion. I too would dismiss the appeal. Appeal lacks merit same is hereby dismissed by me. I endorse the orders as to costs.
Appearances
Festus Keyamo with him, Oghenovo otema and Ugochukwu Ezekiel, for the Appellants.For Appellant
AND
J. Nnadi with V. O. Muaneke for the 1st Respondent
Arthur Obi Okafor, with U. I. Igweneme and Lynda Ikpeazor (Miss), for 2nd – 30th Respondents.For Respondent
