RT. HON. MICHAEL BALONWU & ORS. V. GOVERNOR OF ANAMBRA STATE & ORS

RT. HON. MICHAEL BALONWU & ORS. V. GOVERNOR OF ANAMBRA STATE & ORS

(2009) LCN/3660(SC)

In the Supreme Court of Nigeria

Friday, December 4, 2009


Case Number: SC.233/2008

 

JUSTICES:

ALOYSIUS IYORGYER KATSINA-ALU, JUSTICE SUPREME COURT

MAHMUD MOHAMMED , JUSTICE SUPREME COURT

WALTER SAMUEL NKANU ONNOGHEN, JUSTICE SUPREME COURT

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JUSTICE SUPREME COURT

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, JUSTICE SUPREME COURT

BETWEEN

APPELLANTS

1.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)

AND

RESPONDENTS

1. GOVERNOR OF ANAMBRA STATE

2. HON. ANAYO NNEBE

3. HON. DISMAS B. A. OBI

4. HON. NJIDEKA EZEIGWE

5. HON. NKIRU UGOCHUKWU

6. HON. BARR. GABRIEL ONYENWIFE

7. HON. IFEANYI IGWE

8. HON. EGBOKA TIMOTHY

9. HON. PRINCE EBERE NZECHUKWU

10. HON. MICHAEL O. OFFOR

11. HON. CHIEF JOE ISAGU

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

21. HON. AMECHI M. IKENN

22. HON. BRIGET C. CHUKWUKA

23. HON. LILIAN OKOSI

24. HON. CHINWE C. 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 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)

RATIO

WHETHER GROUNDS OF APPEAL CAN EMANATE FROM AN OBITER STATED AT THE LOWER COURT’S LEADING JUDGMENTS

“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.. 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 orbiter 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.” Per MOHAMMED, J.S.C.

 

 

(Delivered by MAHMUD MOHAMMED, JSC)

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 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 2pt 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 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)

  1. 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)
  2. 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 vs. Okulaja (1996) 9 NWLR Part 475 Pg. 668 @ 693D – E (Formulated from ground 3)’

In the 1st Respondents 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).

  1. Whether the Court of Appeal was right in the Courts 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).
  2. 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 NWLR (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 vs. INEC (2007) 11 NWLR (Pt. 1046) page 436 and Adefulu vs, Okulaja (1996) 9 NWLR (Pt. 473) at 688 cited by the Appellants in the Court of Appeal occasioned any miscarriage of justice.

  1. 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.
  2. 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 defactor 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 JCA 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 notices of preliminary objection duly argued in their Respondents 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 NWLR 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 context.’

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 Appellants brief paragraph 3.5 when he stated that the ‘The case of Ngige v. Obi (2007) 14 NWLR (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 NWLR 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 NWLR Pt. 637 page 128 @ 143 G – H.

(c.) Appellants Counsel who did not cite Ngige vs. Obi (2007) 14 NWLR instead cited Adefulu vs. Okulaja (1996) 9 NWLR Pt. 999 page 668 @ 693 D – E at page 8 paragraph 3.17 of his Appellants 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 orbiter 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 in cases where the obiter dicta is so clearly linked with the ratio decidendi as to be deemed to have radically influenced the ratio decidendi. See Saude vs. Abdullahi (1989) 4 NWLR (Pt. 116) 387 and Saraki vs. Kotoye (1992) 9 NWLR (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 Sate House of Assembly from May 2003 to March, 2010 by the interpretation of Section 105(1) and (3) of the 1999 Constitution. The orbiter 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 struck-out 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 be referred to simply as the Constitution. Counsel explained that the provisions of the sub-section are quite clear and unambiguous and therefore the mere fact that the result of the application of the provisions may be unjust or absurd cannot prevent this Court from pronouncing the obvious; that the proclamation made by Dr. 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 NWLR (Pt. 504) 237 at 271; Achineku vs. Isagba (1988) 4 NWLR (Pt. 89) 411 at 420 and Edewor v. Uwegba (1987) 1 NWLR (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) which 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 provisions of Section 105(1) and (3) of the Constitution having regard to the authority of the cases such as Attorney General Bendel State vs. Attorney General of the Federation (1981) All NLR 85;

Awolowo vs. Shagari (1979) 6-9 S.C. 51; Salami vs. Chairman L.E.D.B. (1989) 5 NWLR (Pt. 123) 539 and Rabiu vs. The State (1981) 2 NCLR 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 SCNLR 427; Odi vs, Osafile (1985) 1 NWLR (Pt. 1) 17 and Ogualaji vs. Attorney General Rives State (1997) 6 NWLR (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 sub-section (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 Plc vs. Bola Tinubu(2001) 3 NSCQR 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 NWLR (Pt. 999) 1 at 227; NPA vs. Eyamba (2005) 12 NWLR (Pt. 939) 409 at 442 and Yusuf vs. Obasanjo (2003) 15 NWLR (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 before it. See Attorney General Ondo State vs. Attorney General of the Federation (2002) 9 NWLR (Pt. 772) 222. This is exactly what happened at 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 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 Appellants 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 Constitution 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 Constitution 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 stand 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 Adefulu vs Okulaja (1996) 9 NWLR (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 meaning. See Abioye vs. Yakubu (1991) 5 NWLR (Pt. 190) 130 and Odubeko vs. Fowler (1993) 7 NWLR (Pt. 308) 637.

It is my view therefore that the attempt by the Appellants to have the period of

 

 

COUNSELS

 

Festus Keyamo, Esq for the appellants with him are Messrs Oghenovo O. Otemu and Ugochukwu Ezekiel. O. ] Nnadi Esq for the 1st respondent with him is V. O M. O Mboneke, Esq. Arthur Obi, Okafor Esq for the 2nd – 30th Respondents with is U. I Igwenemed, Esq and Lynda C. Ikpeazu (Miss). No appearance for 31st to 34th respondents.

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