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In The Supreme Court of Nigeria
On Friday, the
13th of July 2007
Before Their Lordships
S.C.
120/2007
Between
And
Reasons for Judgment of Court
Delivered by
Mahmud Mohammed. J.S.C.
On 14th June, 2007, this
appeal was heard by this Court which in a
unanimous decision allowed the appeal, and refused to give farther attention
to the Appellant's claim. I stated on that day that I shall give my reasons
for the judgment today which I now proceed to do.
The Appellant herein was the
Governor of Oyo State, who was elected in the general election conducted on
19th April, 2003. He was sworn in as the Governor by taking his
oath of allegiance and oath of office on 29th May, 2003. He was
to serve in that office for a term of four years. However following a
dispute between him and the House of Assembly of Oyo State, a faction of the
members of the House purported to have impeached him in 2005, removing him
from office and replacing him with his Deputy. The Appellant then challenged
this impeachment in the High Court, the Court of Appeal and the Supreme
Court where he was successful when the purported impeachment was declared
unconstitutional, null and void, resulting in his reinstatement in the
office which he was forced to vacate for 11 months. It was as the result of
this judgment in his favour that the Appellant went before the Federal High
Court Abuja and by his amended Originating Summons dated 29th
March, 2007, urging the Court to determine –
"Whether having regard to the provision of section 180 of the Constitution
of the Federal Republic of Nigeria, 1999 (which relates to the tenure of
office of a Governor of a State) and the judgment of the Supreme Court in
suit No SC/272/2006 nullifying the purported removal of the Plaintiff
from office as Governor of Oyo State of Nigeria, the period of eleven months
for which the Governor
was illegally removed from office, forms part of the Plaintiff's four years
terms of office as Governor of Oyo State."
On the determination of this
question, the Appellant as Plaintiff asked for the following reliefs:
"1.
A Declaration that the Plaintiff is entitled to a term of four
uninterrupted years in office as Governor of Oyo State of Nigeria commencing
from 29th May, 2003 by virtue of Section 180(2)(a) of the
Constitution of the Federal Republic of Nigeria, 1999.
2.
A Declaration that the Plaintiff as the person duly elected and sworn
in as Governor of Oyo State can only be required to vacate office in the
manner prescribed under Section 188 and 189 of the Constitution, that is
until the expiration of four years from date on which he swore to the oath
of allegiance and oath of office.
3.
A Declaration that the purported removal of the Plaintiff, a sitting
Governor in breach of this provision of the Constitution shall not affect or
interfere with the certainty of tenure of office of the Plaintiff as
Governor, as provided for in Section 180(2) of the Constitution.
4.
A Declaration that by virtue of Section 180 of the Constitution of
the Federal Republic of Nigeria, 1999 and the decision of the Supreme Court
of Nigeria nullifying the purported removal of the Plaintiff from office as
Governor of Oyo State, the period of eleven months during which the Governor
was removed from office does not form part of the Plaintiffs term of four
years as Governor of Oyo State.
5.
A Declaration that by virtue of the provisions of Section 180 (2) (a)
of the Constitution of the Federal Republic of Nigeria, 1999 the Plaintiff
is entitled to remain in office until 29th April, 2008 when his
four years certain term of office as Governor of Oyo State shall have
expired.
6.
A Declaration that the Plaintiff is not required
to vacate office as Governor until 29th April, 2008, which
said date conforms to the Constitutional period of tenure of four years
certain as provided in the Constitution.
7.
An Order of Perpetual Injunction restraining the 1st
Defendant, its agents or privies from conducting an election to the office
of Governor of Oyo State on the 14th April, 2007 as Scheduled by
the 1st Defendant, or at any other time without first taking into
consideration the period of eleven months, when the Plaintiff's tenure of
four years certain would have been accommodated."
The grounds upon which these
reliefs were sought are –
"(i)
By virtue of S. 180(2) (a) of the Constitution, the Governor of a
State of the Federal Republic of Nigeria shall hold office for four years
certain commencing from the date when he took the oath of office allegiance
and oath of office and can only be removed pursuant to the provisions of the
Constitution of the Federal Republic of Nigeria, 1999.
(ii)
The said period of eleven months when the Plaintiff was removed from
office does not form part of the Plaintiffs four year certain term of
office."
The Appellants/Plaintiffs
Originating Summons was supported by an affidavit to which all the four
Respondents in this appeal who were the Defendants at the trial Court filed
counter affidavits before the hearing and determination of the matter. In
the judgment delivered on 4th April, 2007, the learned trial
Chief Judge dismissed the action holding that the Appellant/Plaintiff was
not entitled to any of the reliefs claimed by him in the Originating Summons
because as the learned Chief Judge put it at page 151 - 154 of the record –
"The Plaintiff's term of office is four years, calculated from the date the
Plaintiff took his oath of allegiance and oath of office, which is 29th
May, 2003 - 29th May, 2007. The 11th months during
which the Plaintiff was out of office, albeit forcibly, having been declared
null and void, cannot now confer any right or
impose any obligation on the Plaintiff. To take cognizance of the period in
calculating the period of 4 years of the Plaintiffs tenure so as to award to
the Plaintiff an additional period of 11 months in office, would have the
effect of elongating or extending the Plaintiff's tenure of office beyond
29th
May, 2007, and push same to
29th April, 2008. That
is a thing that will clearly offend the provisions, particularly Section
180(2)(a) and (b) of the Constitution, 1999. It
will also offend the provisions of Section 178(1) and (2) of the
Constitution."
The Appellant/Plaintiffs
appeal to the Court of Appeal Abuja urging that Court to set aside the
decision of the trial Court and substitute it with a judgment granting him
all his reliefs in the Amended Originating Summons was partially successful.
The Court of Appeal in its judgment delivered on 16th April,
2007, allowing the appeal, held that the trial Court has no jurisdiction to
entertain the Appellant/Plaintiff’s claim which that Court regarded as a
matter within the exclusive jurisdiction of the National Assembly Election
Tribunal Oyo State, to which the action was transferred for hearing and
determination under Section 285(l)(b) of the 1999
Constitution.
Aggrieved by this decision of
the Court of Appeal, the Appellant/Plaintiff has now appealed to this Court
and the sole issue distilled from his two grounds of appeal reads –
"Whether the learned Justices of the Court of Appeal are right to hold that
the Federal High Court has no jurisdiction to determine the tenure of office
of a Governor, except National Assembly Election Tribunal, under S.285(l)(b)
of the Constitution of the Federal Republic of Nigeria 1999 and if not,
whether the Appellant is not entitled to his claims and reliefs as contained
in the declaration sought in the lower Court which this Honourable Court can
entertain under Section
22
of the Supreme Court Act."
The 1st and 3rd
Respondents before this Court who are apparently not comfortable with the
decision of the Court of Appeal have also separately filed their
cross-appeals against it.
The 1st
Respondent/Cross-Appellant in its Respondent/Cross-Appellant's brief of
argument has no quarrel with the issue for the determination of this appeal
on the question of jurisdiction as distilled in the Appellant's brief of
argument. In the 2nd Respondent's brief of argument however, the
following two issues were raised –
"(a)
Whether the learned Justices of the Court of Appeal were right to have
declined jurisdiction on the Appellant's case without inviting parties to
address it on the issue of jurisdiction.
(b)
Whether in the circumstances of the case the Appellant is entitled to
his claim."
The 3rd
Respondent/Cross-Appellant in his brief of argument on the other hand, four
issues for determination were identified. They
are:-
"(1)
Whether the learned Justices of the Court of Appeal are right to hold
that the Federal High Court has no jurisdiction to determine the tenure of
office of a Governor and that only the National Assembly Election Tribunal
has jurisdiction to entertain the matter.
(2)
Whether if the Federal High Court lacked jurisdiction to entertain
the matter, the proper order for the Court of Appeal to make is not a
striking out of the case or whether it is the transfer of the case to the
National Assembly Election Tribunal.
(3)
Whether if the Supreme Court holds that the Court of Appeal had
jurisdiction to entertain the appeal, whether the Court can go ahead to
consider the matter on its merit or whether the Court of Appeal not having
considered the matter on its merits, the proper order would not be one
remitting it back to the lower Court to be determined on its merits.
(4)
Whether if the Supreme Court decides to consider the appeal to the
lower Court on the merits, the Plaintiff/Applicant deserves to be given
judgment elongating his tenure by eleven months till April, 2008 as claimed
in his Originating Summons."
As for the 4th
Respondent, its learned senior counsel who filed the Respondent's brief on
its behalf, saw only the following two issues for
determination –
"1.
Whether their lordships of the Court of Appeal were wrong to have
declined jurisdiction on the case of the Appellant.
2.
Whether in all the circumstances of this case, Appellant is entitled
to the reliefs contained in his amended Originating Summons."
In dealing with the issue of
jurisdiction first, learned Appellant's senior counsel pointed out that the
provision of Section 285(1 )(b) of the 1999 Constitution did not arise at
all for consideration in the Court of Appeal to justify that Court relying
on it to decline jurisdiction to determine the Appellant's appeal before it;
that what was before the Court relates to a term of office of a Governor of
a State as provided for in Section 180 of the same Constitution which does
not call for the interpretation of Section 285 of the Constitution which
deals with the establishment of Election Tribunals conferring them with
exclusive jurisdiction to determine election petitions. Learned senior
counsel referred to the claims of the Appellant contained in the Originating
Summons and the decisions of this Court in
Tukur
v. Government of Gongola State (1989) 4 N.W.L.R
(PT. 117) 517 and
Inakoju
v. Adeleke (2007) 4
N.W.L.R. (PT. 1025) 423 at 587
- 889 and maintained
that the Appellant's claims are within the jurisdiction of the Federal High
Court and not any Election Tribunal as found by the Court below. In
conclusion, learned senior counsel for the Appellant submitted that since
the Court below has jurisdiction to have heard and determined the
Appellant's appeal on its merits but erroneously declined to do so, this
Court is urged to exercise its powers under Section 22 of the Supreme Court
Act and determine the appeal and finally refuse or grant the Appellant's
relief.
Learned senior counsel for the
1st Respondent however has argued that the Court below was quite
right in its judgment now on appeal that by virtue of the clear provisions
of Section 285(l) (b) of the 1999 Constitution, only the National Assembly
Election Tribunals that have exclusive jurisdiction to determine whether or
not the term of office of the Appellant under the Constitution, had ceased.
However, learned senior counsel articulated in the 1st
Respondent's cross-appeal that the Court below on declining jurisdiction,
ought to have struck-out or dismissed the matter entirely and not to have
remitted it to the National Assembly Election Tribunal for hearing.
The 2nd Respondent
also strongly supports the decision of the Court below that only the
National Assembly Election Tribunal that has jurisdiction to determine the
Appellant's claim. This is because, according to the learned counsel for the
2nd Respondent, that the provisions of Section 285(l)(b) of the
1999 Constitution which are clear and plain, have ousted the jurisdiction of
the Federal High Court and by extension, the jurisdiction of the Court of
Appeal from hearing the Appellant's claim or matter.
In support of his 1st
issue on jurisdiction, the 3rd Respondent/Cross-Appellant is of
the strong view that the Court below was not right in its decision on the
question of jurisdiction as it was the lower Court that has jurisdiction to
entertain the matter and not the National Assembly Election Tribunal.
Although the learned senior
counsel for the 4th Respondent in his oral submission appeared to
have taken a different position from what was urged in the 4th
Respondent's brief of argument, the argument in the brief is in full support
of the decision of the Court below. It was argued in this respect that on
the issue relating to question as to term of office, it is the National
Assembly Election Tribunal that is vested with jurisdiction, irrespective of
whether or not the office in question relates to the National Assembly or a
Governor of a State, such as the Appellant.
It is quite clear from the
judgment of the Court below now on appeal, that the hearing of the parties
in the Appellant's appeal that was being heard by that Court had virtually
been concluded before the observation on jurisdiction was thrown in by Chief
Gadzama, learned senior counsel for the 1st
Respondent when the Court in its judgment at pages 252 - 253 of the record
of appeal said –
"At this juncture, before the learned senior counsel for the Appellant could
reply on points of law, Chief Gadzama senior
counsel for the 1st Respondent rose and submitted that it is only
an election tribunal that could entertain the matter and that the Appellant
should have gone to an election tribunal and not the Federal High Court.
Chief Clarke replied that the Appellant was right to have gone to the
Federal High Court and that this is not a matter for an election tribunal."
It was solely on the basis of
this last submission and without affording the 2nd, 3rd
and 4th Respondents a hearing through their respective learned
counsel on the issue of jurisdiction raised by Chief
Gadzama, that the Court below proceeded to rule on the issue after
dwelling extensively on the provisions of Section 285(1) (a), (b), (c) and
(d) of the 1999 Constitution which was not specifically raised at the trial
Court or at the hearing of the Appellant's appeal. Even though it was raised
towards the tail end of the proceedings in the hearing of the appeal, it was
indeed properly raised and the Court below was right in having it determined
even though in clear breach of the 2nd, 3rd and 4th
Respondents right of fair hearing. See
Obaba
v. Military Governor of Kwara State (1994) 4
N.W.L.R. (PT. 336) 26 at 40, Oredoyin v.
Arowolo (1989) 4 N.W.L.R.
(PT. 114) 172 and
Oloba
v. Akereja (1988) 3
N.W.L.R. (PT. 84) 508.
In other words, the Court below ought to have heard all the parties
before proceeding to rule on the issue of jurisdiction.
The provisions of Section
285(1) of the 1999 Constitution which was applied by the Court below to oust
not only the jurisdiction of the trial Court but also that of 1he lower
Court itself in entertaining the case of the Appellant is indeed quite
plain. It reads –
"285(1) There shall be established for the
Federation one or more election tribunals to be known as the National
Assembly Election Tribunals which shall, to the exclusion of any Court or
tribunal, have original jurisdiction to hear and determine petitions as to
whether –
(a)
any person has been validly elected as a
member of the National Assembly;
(b)
the term of office of any person under
this Constitution has ceased;
(c)
the seat of a member of the senate or a
member of the House of Representatives Has become vacant; and
(d)
a question or petition brought before the
election tribunal has been properly or improperly brought."
In interpreting the above
provisions of the Constitution which deal with the establishment and
jurisdiction of election tribunals, the Court below had this to say in its
ruling or judgment:
"The provision of S.285 (l) (b) of the 1999 Constitution is clear and
unambiguous and as such the words must be given then ordinary meaning.
Simply put, S.285(1)(b)
gives exclusive original jurisdiction to the National Assembly Election
Tribunals to entertain and determine petitions as to whether the term of
office of any person under the said Constitution has ceased. No other Court
or tribunal has original jurisdiction to entertain the matters."
That is indeed the position of
the law on the exclusive original jurisdiction of the National Assembly
Election Tribunals to hear and determine petitions as to whether the term of
office of any person under this Constitution has ceased. Where the Court
below went wrong was when it proceeded straight to say that the Federal High
Court has no jurisdiction to entertain the claim of the Appellant in the
appeal before it, without even looking at the Appellant's claim that went
before the Federal High Court in the Appellant's Originating Summons for
hearing and determination. Although the Appellant, then occupying the office
of the Governor of Oyo State, one of the offices created under the
Constitution clearly falls into the definition of "any person" under the
Constitution as contained in Section 285(1) (b) considered and applied by
the Court below to the Appellant's claim at the Federal High Court, that
claim was not complaining to the Federal High Court that the term of office
of the Appellant under the Constitution had ceased. Far from it. If any
thing can be rightly said of the claim of the Appellant in the Originating
Summons which was fully quoted in the judgment of the Court below but which
was not looked into or examined by that Court before ruling on the issue of
jurisdiction, is infact quite the opposite of the matter contemplated under
Section 285(1) (b) of the Constitution. This is because simply put, what the
Appellant was asking in the Federal High Court was a declaration that his
term of office would not terminate or cease on 29th May, 2007 but
on 29th April, 2008 when he would have had his full four
uninterrupted years in office as Governor of Oyo State of Nigeria, having
been unconstitutionally and unlawfully kept out of that office by a faction
of the members of the Oyo State House of Assembly. Not only that, the
Appellant in that claim also asked for an injunctive relief to stop the 1st
Respondent from taking any step to conduct any election to the office of
Governor of Oyo State on 14th April, 2007 to allow him to enjoy
his full uninterrupted period of four years certain in office. These
declaratory and injunctive reliefs sought by the Appellant as Plaintiff
before the Federal High Court, were predicated on the interpretation and
application of Section 180(2)(a) of the
Constitution. Certainly, the Appellant's case that was heard and determined
by the Federal High Court had nothing to do with the provisions of Section
285(1) (b) of the Constitution which the Court below applied to it.
The law is indeed trite that
in the situation that arose at the Court below regarding the determination
of whether or not the trial Federal High Court has jurisdiction to entertain
the claim of the Appellant as contained in the Originating Summons, it is
that claim that needed to have been examined. See
Adeyemi
v. Opeyori (1976) 9-10 S.C. 31;
Izenkwe
v. Nnadozie (1953) 14 WACA
361;
Tukur
v. Government of Gongola State (1989) 4 N.W.L.R.
(FT. 117) 517 and
Inakoju
v. Adeleke
(2007) 4
N.W.L.R. (PT. 1025) 423. Looking at the Appellant's
Originating Summons relevant parts of which have been earlier quoted in this
judgment, I am of the view that the declaratory and injunctive reliefs
sought therein are squarely within the jurisdiction of the Federal High
Court as prescribed under Section 251(1)(q) and(r) of the 1999 Constitution
which reads –
"251(1) Notwithstanding anything to the contrary
contained in this Constitution and in addition to such other jurisdiction as
may be conferred upon it by an Act of the National Assembly. The Federal
High Court shall have and exercise jurisdiction to the exclusion of any
other Court in civil causes and matters –
...........................................................................................
(q)
subject to the provisions of r
this Constitution, the operation and interpretation of this
Constitution in so far as it affects the Federal Government or any of its
agencies;
(r)
any action or proceeding for a declaration
or injunction affecting the validity of any executive or administrative
action or decision by the Federal Government or any of its agencies."
This is because when the
Appellant went to the trial Federal High Court with his case against the 1st
Respondent, an agency of the Federal Government and the 2nd
Respondent being the Chief Law Officer of the Federation before the 3rd
and 4th Respondents applied to join, the action is clearly within
the jurisdiction of the trial Court where it was initiated by the Appellant.
See
Inspector General of Police v.
Aigbiremolen (1999) 13
N.W.L.R. (PT. 635) 443; Ayeni v.
University of Ilorin (2000) 2 N.W.L.R. (PT. 644)
290; University of Agriculture Makurdi v. Jack
(2000) 11 N.W.L.R. (PT. 639) 658 and
Olutola
v. University of Ilorin (2004) 18 N.L.W.R. (PT. 905) 416 at 463.
In this respect, the declaratory and injunctive reliefs having regard to
the undisputed facts averred in the affidavit in support of the Originating
Summons and the counter affidavits filed by the Respondents/Defendants
tracing the grounds of the Appellant's claim to the judgment of this Court
in his favour in the case of
Inakoju
v. Adeleke (supra), the lower Court was
clearly in error in linking the Appellant's case to the class of matters
that ought to be initiated at the National Assembly Election Tribunals under
section 285(1 )(b) of the Constitution.
On the whole therefore, the
appeal on the issue of jurisdiction succeeds and it is hereby allowed.
The decision of the Court below of 16th May, 2007 that the
trial Court and consequently the Court below lacked jurisdiction to
entertain the case of the Appellant and his subsequent appeal against the
decision of the trial Court to the Court of Appeal, is set aside and
replaced with a declaration that both the trial Court and the Court below
have jurisdiction in the matter. In other words the Court below has
jurisdiction to hear and determine the Appellant's appeal which was properly
before it under Section 240 of the Constitution and which ought to have been
heard on the merit as the matter in dispute between the parties, cannot be
brought within the ambit of the Section 285(1 )(b) of the Constitution to
exclude the Federal High Court and indeed any other Court apart from the
National Election Tribunal from exercising Original Jurisdiction to hear and
determine it. With this decision on the Appellant's appeal, the
cross-appeals of the 1st and 3rd Respondents are no
longer alive for determination.
Next for determination after
allowing the appeal on the issue of jurisdiction resulting in the
declaration that both the trial Court and the Court below have jurisdiction
to deal the substance of the Appellant/Plaintiff's claim and the Appellant's
appeal, is what to do to the Appellant's appeal now pending at the Court
below which that Court declined to determine after hearing on the erroneous
ground that it has no
jurisdiction. The situation on the ground is quite clear. The action
of the Appellant commenced by Originating Summons supported by affidavit and
opposed by counter affidavits of Defendants to the action, was duly heard
and determined by the trial Court. At the conclusion of the hearing, all the
reliefs claimed by the Appellant/Plaintiff in the action were refused
leading to the dismissal of the action. The facts of the case which are not
at all in dispute between the parties are quite clear. The Appellant whose
tenure of office commenced on 29th May, 2003 when he took his
oath of allegiance and oath of office to serve his first term of four years
in the office as Governor of Oyo State, has not shown anything on record by
which the fixed period of four years under Section 180(2) (a) of the 1999
Constitution can be extended beyond 29th May, 2007. As neither
this Court nor any other Court for that matter has power to extend this
period of four years for the Appellant beyond the terminal date of 29th
May, 2007, and taking into consideration of the need to give this
mater expeditious hearing and determination as it had all along enjoyed
right from the trial Court through to the Court of Appeal and in this Court,
there is no justification whatsoever in allowing proceedings in this matter
to be pursued any further only for the pronouncement of the position of the
law which is quite clear and unambiguous. These are my reasons for allowing
the Appellant’s appeal on the issue of jurisdiction and refusing to attend
to the Appellant's declaratory and injunctive reliefs already refused by the
trial Court.
Having regard to the result of
this appeal, I am not making any order on costs.
Reasons for judgment delivered
by
Aloysius
Iyorgyer Katsina-Alu.
J.S.C.
On 14 June 2007 when I
dismissed this appeal, I indicated that I would give my reasons for the
judgment today. I shall do so now.
I have had the advantage of
reading in draft the reasons given by my learned brother Mahmud Mohammed
J.S.C. I agree with them.
Following the judgment of this
court in
Inakoiu v.
Adeleke (2007)4 NWLR
(Pt. 1025)423 declaring the impeachment of the appellant by the Oyo
State House of Assembly as unconstitutional null and void, the appellant by
an originating Summons dated and filed on 15th March 2007 at the
Federal High Court sought for the determination of the following question:
"Whether having regard to the
provision of Section 180 of the Constitution of the Federal Republic of
Nigeria, 1999 (which relates to the tenure of office of a Governor of a
State) and the judgment of the Supreme Court of Nigeria in Suit No
SC/272/2006 nullifying the
purported removal of the plaintiff from office as Governor of Oyo State of
Nigeria, the period of eleven months for which the Governor was illegally
removed from office forms part of the plaintiffs four years term of office
as Governor of Oyo State."
Whereupon the plaintiff
claimed the following reliefs-
1.
A declaration that the Plaintiff is entitled to a term of four
uninterrupted years in office as Governor of Oyo State of Nigeria commencing
from 29th May, 2003 by virtue of Section 180(2)(a) of the
Constitution of the Federal Republic of Nigeria, 1999.
2.
A declaration that the Plaintiff as the person duly elected and sworn
in as Governor of Oyo State can only be required to vacate office in the
manner prescribed under Section 188 of the constitution that is until the
expiration of four year from the date on which he swore to the oath of
allegiance and oath of office.
3.
A declaration that the purported removal of the Plaintiff, a sitting
Governor in breach of this provisions of the Constitution shall not affect
or interfere with the certainty of tenure of office of the plaintiff as
Governor, as provided for in section 180(2) of the Constitution.
4.
A declaration that by virtue of Section 180 of the Constitution of
the Federal Republic of Nigeria nullifying the purported removal of the
plaintiff from office as Governor of Oyo State, the period of eleven months
during which the Governor was removed from office does not form part of the
plaintiffs term of four years as Governor of Oyo State.
5.
A declaration that by virtue of the provisions of Section 180(2)(a)
of the Constitution of the Federal Republic of Nigeria, 1999 the Plaintiff
is entitled to remain in office until 29th April, 2008 when his
four years certain term of office as Governor of Oyo State shall have
expired.
6.
A declaration that the Plaintiff is not required
to vacate office as Governor until 29th April, 2008, which
said date conforms with the Constitutional period of tenure of four years
certain as provided in the Constitution.
7.
An order of perpetual injunction restraining the 1st
Defendant, its agents or privies from conducting an election to the office
of Governor of Oyo State on the 14th April, 2007 as schedule by
the 1st Defendant, or at any other time without first taking into
consideration the period of eleven months, when the Plaintiffs tenure of
four years certain would have been accommodated.
In its judgment, the trial
Federal High Court dismissed the plaintiffs claim. The trial court held
that:
"The plaintiffs term of office
is four years, calculated from the date the plaintiff took his oath of
allegiance and oath of office, which is 29th May 2003-29th
May 2007."
On appeal, the Court of Appeal
held that by virtue of Section 285 of the 1999 Constitution and Section
15(1) of the Court of Appeal Act, only the National Assembly Election
Tribunal is competent to hear and determine this matter.
I think the Court of Appeal
misunderstood the case of the plaintiff. The claim of the plaintiff is an
invocation of the interpretative jurisdiction of the High Court by Section
251(1) (q) and (r) of the Constitution of the Federal Republic of Nigeria,
1999. It provides as follows:
"251(1) Notwithstanding
anything to the contrary contained in this constitution and in addition to
such other jurisdiction as may be conferred upon it by an Act of the
National Assembly, the Federal High Court shall have and exercise
jurisdiction to the exclusion of any other court in civil causes and matters
–
(a)
...........................................
(b)
...........................................
(c)
...........................................
(d)
...........................................
(e)
...........................................
(f)
...........................................
(g)
...........................................
(h)
...........................................
(i)
...........................................
(j)
...........................................
(k)
...........................................
(1)
...........................................
(m)
..........................................
(n)
.............................................
(o)
.............................................
(p)
.............................................
(q)
subject to the provisions of this constitution, the operation and
interpretation of this constitution in so far as it affects the Federal
Government or any of its agencies; and
(r)
any action or proceeding for a declaration
or injunction affecting the validity of any executive or administrative
action or decision by the Federal Government or any of its agencies."
The claim as endorsed on the
originating Summons cannot be conceivably said to be an election matter. It
is not. All that the plaintiff claimed was an interpretation of Section
180(2) (a) of the 1999 Constitution as it affects his tenure of office. And
it is crystal clear that the Federal High Court has the jurisdiction to
interpret the provisions of the Constitution and to make declaratory and
injunctive reliefs as conferred upon it by Section 251(i)(q)
and (r) of the Constitution. One does not require a soothsayer to see that
the Federal High Court has the jurisdiction to hear and determine the
present claim. It was on this score that I allowed the appeal on
jurisdiction.
In the interest of justice and
the fact that all the material facts were before this court, I invoked the
powers vested in this court under Section 22 of the Supreme Court Act. I
have earlier on stated why the plaintiff went to court. It was contended
that the period of eleven months during which the Governor was removed from
office does not form part of the plaintiff’s term of four years as Governor
of Oyo State. This claim was unmeritorious. The Constitution of the Federal
Republic of Nigeria, 1999 did not grant this court the power to grant an
extension of tenure to a Governor who has been improperly impeached. To hold
otherwise would amount to reading into the Constitution provisions that are
not there.
It was for these reasons that
I dismissed the main claim of the plaintiff without an award of costs.
Reasons for Judgment delivered
by
George
Adesola Oguntade.
J.S.C.
The appellant, as plaintiff,
on 15-3-07 took out an originating summons against the 1st and 2nd
respondents asking the Federal High Court Abuja to determine the question:
"Whether having regard to the
provision of section 180 of the Federal Republic of Nigeria, 1999 (which
relates to the tenure of office of a Governor of a State) and the judgment
of the Supreme Court in suit No SC/272/2006 nullifying the purported
removal of the Plaintiff from office as Governor of Oyo State of Nigeria,
the period of eleven months for which the Governor was illegally removed
from office, forms part of the Plaintiff’s four years terms of office as
Governor of Oyo State."
The reliefs which the
plaintiff/appellant sought from the court below are these:
" 1.
A Declaration that the Plaintiff is entitled to a term of four
uninterrupted years in office as Governor of Oyo State of Nigeria commencing
from 29th May, 2003 by virtue of Section 180(2)(a) of the
Constitution of the Federal Republic of Nigeria, 1999.
2.
A Declaration that the Plaintiff as the person duly elected and sworn
in as Governor of Oyo State can only be required to vacate office in the
manner prescribed under Section 188 and 189 of the Constitution, that is
until the expiration of four years from date on which he swore to the oath
of allegiance and oath of office.
3.
A Declaration that the purported removal of the Plaintiff, a sitting
Governor in breach of this provision of the Constitution shall not affect or
interfere with the certainty of tenure of office of the Plaintiff as
Governor as provided for in Section 180(2) of the Constitution.
4.
A Declaration that by virtue of Section 180 of the Constitution of
the Federal Republic of Nigeria, 1999 and the decision of the Supreme Court
of Nigeria nullifying the purported removal of the Plaintiff from office as
Governor of Oyo State, the period of eleven months during which the Governor
was removed from office does not form part of the Plaintiffs term of four
years as Governor of Oyo State.
5.
A Declaration that by virtue of the provisions of Section 180(2)(a)
of the Constitution of the Federal Republic of Nigeria, 1999 the Plaintiff
is entitled to remain in office until 29th April, 2008 when his
four years certain term of office as Governor of Oyo State shall have
expired.
6.
A Declaration that the Plaintiff is not required
to vacate office as Governor until 29th April, 2008, which
said date conforms with the Constitutional period of tenure of four years
certain as provided in the Constitution.
7.
An Order of Perpetual Injunction restraining the 1st
Defendant, its agents or privies from conducting an election to the office
of Governor of Oyo State on the 14th April, 2007 as Scheduled by
the 1st defendant, or at any other time without first taking into
consideration the period of eleven months, when the Plaintiffs tenure of
four years certain would have been accommodated."
The trial court on 4/04/07
dismissed plaintiff/appellant's claim. Dissatisfied, the plaintiff appellant
brought an appeal before the Court of Appeal, Abuja (hereinafter referred to
as 'the court below'). The court below however, did not determine the appeal
on its merits. In its judgment on 16-4-07, the court below held that the
trial court ought not to have entertained plaintiff/appellant's suit as it
had no jurisdiction. It held that only the National Assembly Election
Petition had jurisdiction in the matter. The court below finally transferred
the matter to the National Assembly Election Tribunal of Oyo State. The
Plaintiff/Appellant was dissatisfied with the judgment of the court below.
He has come before this Court on a final appeal. In the appellant's brief
filed, the issue for determination on the appeal was identified as:
"Whether the learned Justices
of the Court of Appeal are right to hold that the Federal high Court has no
jurisdiction to determine the tenure of office of a Governor, except
National Assembly Election Tribunal, under S.285 (1) (b) of the Constitution
of the Federal Republic of Nigeria 1999 and if not, whether the Appellant is
not entitled to his claims and reliefs as contained in the declaration
sought in the lower Court which this Honourable Court can entertain under
Section 22 of the Supreme Court Act."
My learned brother, Mohammad
J.S.C. has in his lead judgment ably stated why the appeal on jurisdiction
must succeed and the dismissal of the suit affirmed. I entirely agree with
him. I only want to
emphasize some aspects of the judgment especially on the issue of
jurisdiction.
The Court below in holding
that the Federal High Court has no jurisdiction to entertain plaintiffs
claim reasoned thus:
"The relevant provision in
S.285 (1) (b) i.e. whether the term of office of any person under this
Constitution has ceased. The contention of the appellant is that his term of
office as Governor of Oyo State will cease only in April, 2008 because he
was illegally and unconstitutionally removed from office by the Oyo State
House of Assembly for eleven months. According to him, he is entitled by law
to serve the eleven months, the time he was purportedly impeached. The
respondents' contention is that the appellant's term of office, as Governor
of Oyo State ceases on 29th May 2007. They further contend that
the appellant's term of office is for four years and since he took the oath
of office on 29th may, 2003, his term of office ceases on 29th
May, 2007.
In interpreting a provision of
the constitution, the primary function of the court is to search for the
intention of the lawmaker. Where a constitutional provision is clear and
unambiguous, the court must give the words their ordinary meaning unless it
will lead to absurdity and inconsistency with the provision of the
constitution as a whole. The true meaning of the words used and the
intention of the legislature in a constitution can best be properly
understood if the constitution is considered as a whole. It is a single
document and every part of it must be considered as far as relevant in order
to get the true meaning and intent of any particular portion of the
enactment. Also a constitution must be interpreted and applied liberally. It
must always be construed in such a way that it protects what it sets out to
protect or guides what it sets out to guide. By necessity a constitutional
provision must be interpreted broadly. See Okogue
v. A. G. Lagos State (1981) 2 NCLR 337;
Garuba v. FCSC (1988) 1 NWLR (71) 449; P.D.P. v.
INEC (1999) 11 NWLR (Pt. 626) 200; Egolum v.
Obasanjo (1999) 7 NWLR
(Pt. 611) 355; Araka v.
Egbue (2003) 17 NWLR (Pt. 848) 1
and Awuse
v. Odili (2003) 18 NWLR
(Pt.851) 116.
The provisions of S.285 (1)
(b) of the 1999 Constitution is clear and unambiguous and as such the words
must be given their ordinary meaning. Simply put, S.285 (1)(b)
gives exclusive original jurisdiction to the National Assembly Election
tribunals to entertain and determine petitions as to whether the term of
office of any person under the said constitution has ceased. No any other
court or tribunal has original jurisdiction to entertain the matters.
I therefore hold that the
Federal High Court has no jurisdiction to hear and determine the matter.
Only the National Assembly Election Tribunal have original jurisdiction to
the exclusion of any court or tribunal, to hear and determine the matter."
Now, was the court below right
in its reasoning above? I think not. The court below had relied on Section
285(1) (b) of the 1999 Constitution to arrive at the conclusion that the
plaintiff’s case could only be heard by the National Assembly Election
tribunal. Section 285 provides:
“285
(1)
There shall be established for the Federation one or more election
tribunals to be known as the National Assembly Election Tribunals which
shall, to the exclusion of any court or tribunal have original jurisdiction
to hear and determine petitions as to whether –
(a)
any person has been validly elected as a
member of the National Assembly;
(b)
the term of office of any person
under this Constitution has ceased;
(c )
the seat of a member of the Senate or a member of the House of
Representatives has become vacant; and
(d)
a question or petition brought before the
election tribunal has been properly or improperly brought.
(2)
There shall be established in each State of the Federation one or
more election tribunals to be known as the Governorship and Legislative
Houses Election tribunals which shall, to the exclusion of any court or
tribunal, have original jurisdiction to hear and determine petitions as to
whether any person has been validly elected to the office of Governor or
Deputy Governor or as a member of any legislative house.
(3)
The composition of the National Assembly Election -Tribunals,
Governorship and Legislative Houses Election Tribunals shall be as set out
in the Sixth Schedule to this Constitution.
(4)
The quorum of an election tribunal established under this section
shall be the Chairman and two other members."
(underlining
mine)
The court below erroneously
took the view that the plaintiffs suit was about whether or not his term in
office as Governor had ceased. I earlier reproduced above the claims of the
plaintiff. It is clear to me that what the plaintiffs
suit was about was for Section 180(2) of the Constitution could be
interpreted in order to grant him an extension of tenure to compensate for
the period of 11 months that he was unconstitutionally impeached as Governor
of Oyo State. It was not about whether or not his term in office had ceased.
The error of the court below arose because it did not
advert its mind to the provisions of Section 189 of the Constitution
which deal with the question when the term of office of a Governor shall
cease. There is a similar provision in Section 144 of the Constitution in
relation to when the term of office of the President or Vice President shall
cease. Section 189 provides:
“189(1) The Governor or Deputy
Governor of a State shall cease to hold office if-
(a)
by a resolution passed by two-thirds
majority of all members of the executive council of the State, it is
declared that the Governor or Deputy Governor is incapable of discharging
the functions of his office; and
(b)
the declaration in paragraph (a) of this
subsections is verified, after such medical examination as may be necessary,
by a medical panel established under subsection (4) of this section in its
report to the Speaker of the House of Assembly.
(2)
Where the medical panel certifies in its report that in its opinion
the Governor or Deputy Governor is suffering from such infirmity of body or
mind as renders him permanently incapable of discharging the functions of
his office, a notice thereof signed by the Speaker of the House of Assembly
shall be published in the Official Gazette of the Government of the
State.
(3)
The Governor or Deputy Governor shall cease to hold office as from
the date of publication of the notice of the medical report pursuant to
subsection (2) of this section.
(4)
The medical panel to which this section relates shall be appointed by
the Speaker of the House of Assembly of the State, and shall comprise five
medical practitioners in Nigeria –
(a)
one of whom shall be the personal
physician of the holder of the office concerned; and
(b)
four other medical practitioners who have, in the opinion of the
Speaker of the House of Assembly, attained a high degree of eminence in the
field of medicine relative to the nature of the examination to be conducted
in accordance with the foregoing provisions of this section.
(5)
In this section, the reference to 'executive council of the State' is
a reference to the body of Commissioners of the Government of the State,
howsoever called, established by the Governor and charged with such
responsibilities for the functions of Government as the Governor may
direct."
The period of office of a
Governor 'ceases' when two-thirds majority of all the members of the
Executive of a State pass a resolution that the Governor is incapable of
discharging the functions of his office; and such resolution is followed by
the procedure prescribed under Section 189 above.
It is the dispute arising from
such resolution that is committed to the jurisdiction of the National
Assembly Election Tribunal under Section 285(1) (b) of the Constitution. As
the plaintiff had merely asked the court to interpret the provisions of
Section 180(2) of the Constitution, plaintiffs suit in my view falls within
the jurisdiction of the Federal High Court under Section 251(1) (q) and (r)
of the 1999 Constitution. It is apparent that the two courts below fell into
error because they had not given the word 'cease' the restricted meaning
given to it under Sections 144 and 189 of the Constitution.
My learned brother Mohammed
J.S.C. reasoned in the lead judgment that in a case as straightforward as
this, where all that is required is the interpretation of section 180(2) of
the 1999 Constitution, there being no dispute on the facts, it is
unnecessary to send the matter back to the court below as we might otherwise
have done. I agree with him. On the state of the Law and facts before us,
and given the constitutional importance of the issues raised in this appeal,
and the necessity to remove the uncertainties arising
therefrom, I ought to proceed to consider the merits the appellant's
case.
There is no doubt that the
tenure of the plaintiff as Governor of Oyo State was improperly interfered
with through his impeachment on 12/1/06 which this Court declared illegal on
11/12/06. That unconstitutional occurrence kept him out of office for eleven
months. By his suit the plaintiff seeks the elongation of his tenure by 11
months.
Now Section 180 of the 1999
Constitution provides:
"180
(1)
Subject to the provisions of this Constitution, a person shall hold
the office of Governor of a State until –
(a)
when his successor in office takes the
oath of that office, or
(b)
he dies whilst holding such office; or
(c)
the date when his resignation from office
takes effect; or
(d)
He otherwise ceases to hold office in accordance with the provisions
of this Constitution.
(2)
Subject to the provisions of subsection (1) of this section, the
Governor shall vacate his office at the expiration of a period of four
years commencing from the date when –
(a)
in the case of a person first elected as
governor under this Constitution, he took the Oath of Allegiance and oath of
office; and
(b)
the person last elected to that office
took the Oath of Allegiance and oath of office or would, but for his death,
have taken such oaths.
(3)
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 (2) of this section from time to time;
but no such extension shall exceed a period of six months at any one time."
Subsection (2) of Section 180
provides that a Governor shall have a tenure of 4
years from the date he took the oath of allegiance and oath of office. There
is however no provision covering the period of service denied a governor
through an illegal impeachment as happened in this case. Chief Robert
Clarke, SAN for the plaintiff/appellant, in his very persuasive argument
before us referred to the Judgment of the Court of Appeal in
A.G. Federation v. A.N.P.P. & Ors.
(2003) 15 NWLR (Pt.844) 600.
He contended that once the event which interpreted the tenure of the
plaintiff/appellant was pronounced illegal, the court ought to compensate
the plaintiff/appellant by granting him an extension of tenure for the
period of 11 months which the improper impeachment denied him.
It is settled law, that when
an act is declared null and void, the position is that from the angle of the
law, the act never took place. It is completely wiped off and considered as
extinct and deemed never to have existed. In Adefulu
v. Okulaja (1996) 9 NWLR
(Pt.475) 668 at 693 cited by 4th respondent's counsel, this
Court per Ogundare J.S.C
restated the position in these words:
"Much consideration was given
by the trial judge to the fact that the 1st Defendant/Appellant
occupied the throne of Olofin of
Ilishan-Remo de facto from March 1981 up
to 7 December, 1989’. With profound respect to the learned trial judge I
think, he was, without realizing it swimming in a deep sea. When an
appointment is declared null and void, all it means is that the appointment
was never made and all acts of the purported appointee when he de facto
held the appointment are unlawful, null and void and of no effect. 'The
result of a decree of nullity of marriage is that not only are the parties
not now married buy they never were' - Per Russell, J. In Re
Wombwell's settlement (1922) 2 CD 298 at P. 305
as it was put in an American case, Zogby
v. State 53 Misc 2d 740; 279 NYS 2d 665, 668. "
It is in the light of this
legal position that plaintiff/appellant's counsel wanted this Court to
discountenance the period of 11 months when he was illegally impeached in
the computation of the 4 year tenure granted him under the Section 180(2) of
the Constitution. Much as one may be in sympathy with the
plaintiff/appellant's cause, it seems to me that to accede to his request
will occasion much violence to the Constitution. This court can interpret
the Constitution but it cannot re-write it. In awareness of the possibility
that an occurrence may prevent a Governor from being sworn in on the same
date as his counterparts in the country, Section 180(2) states that tenure
be computed from the date the oath of allegiance
and oath of office is taken. There is no similar provision to protect a
Governor improperly impeached. I am therefore, unable to perform a duty
which the Constitution has not vested in the court. Regrettably, the
plaintiff/appellant's case must fail.
I agree with the lead judgment
of my leaned brother Mohammed J.S.C. I would also make the same orders as in
the lead judgment.
Reasons for Judgment delivered
by
Francis
Fedode Tabai. J.S.C.
I was privileged to read, in
advance, the leading judgment, of my learned brother Mahmud Mohammed
J.S.C. I agree entirely with his reasoning and
the conclusions reached thereat. The originating summons was filed at the
Federal High Court about the 15/3/2007 at which time the Plaintiff/Appellant
was the Governor of Oyo State. The summons was amended. In the Amended
Summons dated the 29/3/2007 the Appellant' submitted the following single
question for determination:
''Whether having regard to the provision of section 180 of the Constitution of the Federal Republic of Nigeria 1999 (which relates to the tenure of office of a Governor of a state) and the judgment of the Supreme Court of Nigeria in Suit No SC/272/2006 nullifying the purported removal of the Plaintiff from office as Governor of Oyo State of Nigeria, the period of eleven months for which the Governor was illegally removed from office forms part of the Plaintiff's four years term of office as Governor of Oyo State."
He claimed six declaratory and
one injunctive reliefs which are clearly set out
in the leading judgment and I do not consider it necessary to reproduce
them. In its judgment, on the 16/5/2007 the court below restated some
guiding principles in the
interpretation of Statutes, applied what it considered the appropriate mode
of construction and gave its interpretation
of section 285(l)(b) of the 1999 Constitution as follows:
"The provisions of section 285(1)(b) of the 1999 Constitution is clear and unambiguous and as such the words must be given their ordinary meaning. Simply put, section 285(1) (b) gives exclusive original jurisdiction to the National Assembly Election Tribunals to entertain and determine petitions as to whether the term of office of any person under the said Constitution has ceased. No other court or tribunal has original jurisdiction to entertain the matters. I therefore hold that the Federal High Court has no jurisdiction to hear and determine the matter. Only the National Assembly Election Tribunals have original jurisdiction, to the exclusion of any (other) court or tribunal to hear and determine the matter."
Pursuant to the foregoing
conclusion the Court then ordered the transfer of the
case to
the National
Assembly Election
Tribunal Oyo
State for determination.
Section 285(1) of the
Constitution provides:
There shall be established for the Federation one or more election tribunals
to be known as the National Assembly Election Tribunals which shall to the
exclusion of any court or tribunal have original jurisdiction to hear and
determine petitions as to whether:-
(a)
any person has been validly elected as a
member of the National Assembly;
(b) the
term of office of any person under this Constitution has ceased;
(c)
the seat of a member of the Senate or a member of
the House of Representatives has become vacant;
(d)
a question or petition brought-before the
election tribunal has been properly or improperly brought.
In arriving at its decision
the Court below admittedly gave the provision "the term of office of any
person under this
Constitution" its ordinary grammatical meaning. But we are bound to
interpret the said provision in a sense harmonious with the clear objective
of the entire section 285. It is also my view that in construing the
provisions of an enactment recourse must first be made to the enactment
itself to ascertain intention of' the legislature. It is only when the
precise intention of the legislature cannot be ascertained from the
enactment itself that we make recourse to other provision of the Statute.
Now what is the scope and
object of the enactment? What is the subject-matter in
the mind of the Legislature as can be gleaned entirety of section 285
of the Constitution. The heading is ‘Election Tribunals.’
The side note (or marginal note) is Establishment and Jurisdiction of
Election Tribunals. The four subsections of section 285 all speak of the
National Assembly Election Tribunals and the Governorship and Legislative
Houses Election Tribunals, their
composition, quorum,
petitions
presented therein
and their
determination. The clear subject-matter of the provision is the two
categories of election tribunals and their exclusive jurisdiction over
petitions presented therein.
In the first place the single
question presented for determination and the seven reliefs sought have
nothing to do either with the 2003 election or the 2007 election. The only
question for determination is whether having regard to the provisions of
section 180 of the Constitution the eleven months during which he was
unlawfully kept out of office could be added to his term from the 29/5/07 to
render his four year term complete. It is clearly not an election issue to
be initiated by way of an election petition at an Election Tribunal. And
having regard to the provisions of section 251(1)(q)
and (r) the Federal High Court has the jurisdiction in civil matters and
causes over the operation and interpretation of this Constitution in so far
as it affects actions or decisions of the of the Federal Government or any
of its agencies, I hold with respect that the court below erred in its
decision about the Federal High Court's lack of jurisdiction to entertain
the suit. The appeal on this issue of jurisdiction succeeds and the judgment
of the Court below in respect thereof be and thereby set aside.
Having disposed of the issue
of jurisdiction, the next is the substantive issue raised in the originating
summons. My learned brother explained why it was not necessary to remit the
case back to the Court of Appeal for its pronouncement on the substantive
issue. I agree with that reasoning and by virtue of the provisions of
section 22 of the Supreme Court Act I shall comment briefly on the
substantive claim.
In a well considered judgment
the learned trial Judge R.N.
Ukeje, C.J. reasoned
and concluded as follows:
"From the totality of the foregoing and to answer the issued
raised for determination by the Plaintiff in the
originating summons, the substantive suit herein I find that the Plaintiffs
term of office is 4 years calculated from the date the Plaintiff look his
Oath of Allegiance an Oath of office which is 29th May 2003 - to
29th May 2007. The 11 months during which the Plaintiff was out
of office, albeit forcibly, having been declared null and
void, cannot now confer any right or impose any
obligation on the Plaintiff. To
take cognisance of that period in calculating the period of 4 years of the
Plaintiff's tenure so as to award to the Plaintiff an additional period of
11 months in office
would have the effect of
elongating or extending the Plaintiffs tenure of office beyond 29th
May 2007 and push same to 29th
April 2008. That is a thing that will clearly offend the provisions,
particularly section 180(2) (a) and (b) of the Constitution.''
The above in my view sums up
the legal incidents of the Constitutional provisions. The
Plaintiff/Appellant impeachment was nullified in the case of
Inakoju
& Ors v Adeleke & Ors
(2007) 4
NWLR (Part 1025) 423. The effect of that
nullification takes effect from the date of the purported impeachment and
the Plaintiff would be deemed not to have left office as Governor of Oyo
State even for one day and entitled to all the benefits that accrued to him.
To grant the 11 months extension sought would, in my humble view, create a
situation never contemplated by section 180(2) of the Constitution.
On the whole while I allow the
appeal on the issue of jurisdiction, I affirm the decision of the trial
court on the reliefs claimed. I
make no orders as to costs.
Reasons for Judgment delivered
by
Ibrahim
Tanko Muhammad. J.S.C.
On the 14th day of
June, 2007, I allowed this appeal and adjourned giving my reasoning to this
day. My learned brother, Mohammed, J.S.C has afforded me an opportunity to
read his reasons for allowing the appeal.
I am in complete
agreement with his reasoning process and I adopt same as mine. I do not have
anything useful to add. I make no order as to costs.
Reasons for Judgment delivered
by
Pius
Olayiwola Aderemi.
J.S.C.
On the 14th June,
2007, this appeal came before this court for determination. By a unanimous
decision of the panel that heard the appeal of which I was a part; the
appeal was allowed in part in the sense that the appellant succeeded on the
issue of jurisdiction and was dismissed in part, in the sense that we
refused to elongate the appellant's period of four years as Governor of Oyo
State beyond the terminal date of 29th May 2007. I did say on
that day that I would give my reasons for the judgment today. I now proceed
to state my reasons.
Briefly, the facts of the case
are as follows: the appellant was elected as the Governor of Oyo State in
the general election that was conducted on the 19th of April,
2003. He took his oath of allegiance and oath of office as the Governor of
Oyo state on the 29th May 2003. By force of law, he was to spend
a four-year term in office calculated from the 29th May 2003; the
day he took oaths. Sometimes in 2005, as a result of political dispute, the
House of Assembly of Oyo State through a faction of the members of the
House, got him removed by a purported
impeachment. He was replaced by his deputy. He challenged the impeachment in
the Federal High Court, the Court of Appeal and the Supreme Court. Suffice
it to say that at last, the Court of Appeal and the Supreme Court allowed
his appeal declaring the purported impeachment as unconstitutional, null and
void; thus, he was reinstated to the office as the Governor of Oyo State.
Suffice to say that by the unconstitutional impeachment, the appellant had
been unlawfully kept out of his office as Governor for a period of eleven
months. Prompted by the said judgment which reinstated him into Office as
Governor of Oyo State, the appellant approached the Federal High Court
Abuja, eventually, by an amended Originating Summons dated 29th
March, 2007 praying that court to determine the following issues: -
"Whether having regard to the provision of Section 180 of the Constitution
of the Federal Republic of Nigeria (which relates to the tenure of office of
a Governor of a State) and the judgment of the Supreme Court in Suit No
SC/272/2006 nullifying the purported removal of the plaintiff from office as
Governor of Oyo State of Nigeria, the period of eleven months for which the
Governor was illegally removed from office, forms part of the plaintiffs
four years term of office as Governor of Oyo State."
Upon the determination of the
above question by the court, the present appellant, as plaintiff,
simultaneously proceeded to seek the following reliefs:-
"(1)
a declaration that the plaintiff is entitled to a term of four
uninterrupted years in office as Governor of Oyo State of Nigeria commencing
from 29th May, 2003 by virtue of Section 180 (2) (a) of the
Constitution of the Federal Republic of Nigeria, 1999.
(2)
a declaration that the plaintiff as the person duly elected and sworn
in as Governor of Oyo State can only be required to vacate office in the
manner prescribed under Sections 188 and 189 of the constitution, that is
until the expiration of four years from date on which he swore to the Oath
of Allegiance and Oath of Office.
(3)
a declaration that the purported removal of the plaintiff, a sitting
Governor in breach of this provision of the Constitution shall not affect or
interfere with the certainty of tenure of office of the plaintiff as
Governor, as provided for in section 180 (2) of the Constitution.
(4)
a declaration that by virtue of Section 180 of the constitution of
the Federal Republic of Nigeria, 1999 and the decision of the Supreme Court
of Nigeria nullifying the purported removal of the plaintiff from office as
Governor of Oyo State, the period of eleven months during which the Governor
was removed from office does not form part of the plaintiffs term of four
years as Governor of Oyo State
(5)
a declaration that by virtue of the provisions of Section 180 (2) (a)
of the Constitution of the Federal Republic of Nigeria 1999, the plaintiff
is entitled to remain in office until 29th April, 2008 when his
four years certain term of office as Governor of Oyo State shall have
expired.
(6)
a declaration that the plaintiff is not
required to vacate office as Governor until 29th April 2008,
which said term confirms with the constitutional period of tenure of four
years certain as provided in the Constitution.
(7)
an order of perpetual injunction restraining the 1st
defendant, its agents or privies from conducting an election to the office
of the Governor of Oyo State on the 14th April 2007 as scheduled
by the 1st defendant, or at any other time without first taking
into consideration the period of eleven months, when the plaintiffs tenure
of four years certain would have been accommodated."
The grounds upon which the reliefs were founded are as follows: -
“(1) By
virtue of Section 180 (2) (a) of the Constitution, the Governor of a State
of the Federal Republic of Nigeria shall hold office for four years certain
commencing from the date when he took the oath of office (sic) allegiance
and oath of office and can only be removed pursuant to the provisions of the
Constitution of the Federal Republic of Nigeria, 1999.
(2)
The said period of eleven months when the
plaintiff was removed from office does not form part of the plaintiffs four
year certain term of office."
In a considered judgment
delivered by the learned trial Chief Judge on the 4th April 2007,
the prayers contained in the originating summons of the plaintiff/appellant
supported by affidavit evidence were refused: holding inter alia, that to
take cognisance of the period four-year tenure to which the
plaintiff/appellant is entitled to constitutionally so as to award to him
(plaintiff/appellant) an additional period of eleven months in office would
be so tantamount extending his period as Governor beyond 29th May
2007; that, according to the learned Chief Judge, would run counter to the
provisions of the 1999 Constitution as clearly stated in Sections 180 (2)
and 178 (1) and (2). Dissatisfied with the decision, the plaintiff lodged an
appeal to the court below urging it (court below) to set aside the judgment
of the learned trial Chief Judge and grant all the reliefs contained in his
Amended Originating Summons.
Sequel to taking the arguments
of the counsel of the respective parties, upon the exchange of their
respective briefs of argument, in a considered judgment delivered on 16th
April 2007 allowing the appeal, the court below reasoned: -
"The provisions of Section 285 (1) (b) of the 1999 Constitution is clear and
unambiguous and as such the words must be given their ordinary meaning.
Simply put, Section 285 (1) (b) gives exclusive jurisdiction to the National
Assembly Election Tribunals to entertain and determine petitions as to
whether the term of office of any person under the said Constitution has
ceased. No any other court or tribunal has original jurisdiction to
entertain the matters. I therefore hold that the Federal High Court has no
jurisdiction to hear and determine the matter. Only the National Assembly
Election Tribunal have (sic) original jurisdiction to the exclusion of any
court or tribunal to hear and determine the matter."
Perhaps I should add that
exercising its powers under Section 15 of the Court of Appeal Act, the court
below transferred the matter to the National Assembly Election Tribunal for
Oyo State to hear and determine it.
Being dissatisfied with the
said decision of the court below, the appellant, who was the plaintiff in
the trial court, lodged an appeal to this court and he raised one issue for
determination by this court; it reads: -
"Whether the learned Justices of the Court of Appeal are right to hold that
the Federal High Court has no jurisdiction to determine the tenure of office
of a Governor except National Assembly Election Tribunal under Section 285
(1) (b) of the Constitution of the Federal Republic of Nigeria 1999 and if
not, whether the appellant is not entitled to his claims and reliefs as
contained in the declaration sought in the lower court which this Honourable
Court can entertain under Section 22 of the Supreme Court Act."
The 1st and 3rd
respondents who were also dissatisfied with the said judgment have
cross-appealed individually to this court. The 1st
respondent/cross-appellant, through his brief of argument, adopted the only
issue identified by the appellant in his brief, for determination. The 2nd
respondent, in his brief of argument, raised two issues for determination
and they are in the following terms: -
"(1)
Whether the learned Justices of the Court of Appeal were right to have
declined jurisdiction on the appellant's case without inviting parties to
address it on the issue of jurisdiction.
(2)
Whether in the circumstances of the case, the appellant is entitled
to his claim."
The 3rd
respondent/cross-appellant for his part,
formulated four issues for determination and they are as follows: -
"(1)
Whether the learned Justices of the Court of Appeal were right to hold that
the Federal High Court has no jurisdiction to determine the tenure of office
of a Governor and that only the National Assembly Election Tribunal has
jurisdiction to entertain the matter.
(2)
Whether the Federal High Court lacked jurisdiction to entertain the
matter, the proper order for the court of Appeal to make is not a striking
out of the case or whether it is the transfer of the case to the National
Assembly Elections Tribunal.
(3)
Whether if the Supreme Court holds that the Court of Appeal had
jurisdiction to entertain the appeal, whether the court can go ahead to
consider the matter on its merits or whether the Court of Appeal not having
considered the matter on its merits, the proper order would not be one
remitting it back to the lower court to be determined on its merits.
(4)
Whether if the Supreme Court decides to consider the appeal to the
lower court on the merits, the plaintiff/applicant (sic) deserves to be
given judgment elongating his tenure by eleven months till April, 2008 as
claimed in his Originating Summons."
The 4th respondent,
through its brief, identified two issues for determination by this court and
as couched in the said brief, they are in the following terms: -
"(1)
Whether their lordships of the Court of Appeal
were wrong to have declined jurisdiction on the case of the appellant.
(2)
Whether in all the circumstances of this case, the appellant is
entitled to the reliefs contained in his Amended Originating Summons."
I have carefully read all the
briefs of the parties here. The summary of the argument of the appellant as
could be gathered from his brief and highlighted by his counsel in the
course of adopting the said brief when this matter came in the open court
for argument is that the court below was wrong to have referred the case to
the National Assembly Election Tribunal for Oyo State acting under the
provisions of Section 285 (1) (b) of the 1999 Constitution, which according
to him, is not applicable to gubernatorial election; and that Section 285
(2) of the said Constitution which is applicable to a Governor does not
cover the declaratory reliefs sought by the appellant adding that the
Federal High Court has jurisdiction to entertain the suit. Concluding his
argument, it was submitted that if the learned trial Chief Judge had, in
interpreting the provisions of Section 180 of the 1999 Constitution,
considered Sections 1 (2), 19 (1) and 305 of the 1999 Constitution, the
decision that the Constitution did not provide for interruptions of the
tenure of the Office of a Governor would not have been arrived at. The 1st
respondent/cross-appellant while finally urging that the appeal be
dismissed, that the cross-appeal be allowed while affirming the decision of
the court below predicated same on the submissions that issue of
jurisdiction could be raised at any stage of the proceedings and before any
court and even the court can,
suo
motu, raise the issue; while finally
contending that having found that it lacks jurisdiction to entertain a suit,
the proper order to make is one striking out the entire suit and not one
remitting the matter to another court or Tribunal as was done in this case.
The arguments of the 2nd
respondent, in summary, boil down to this; that by virtue of the provisions
of Section 285 (1) (b) of the Constitution 1999, the jurisdiction of the
regular courts on the issue of the determination of the cessation of tenure
of the Governor in Office, is curtailed, finally urging that the appeal be
dismissed. The 2nd respondent, in his brief, submitted that by
the provisions of Section 285 (1) (b) of the Constitution, it is only the
National Assembly Election Tribunal that has original jurisdiction to
determine if the tenure of a person as Governor of a State has expired;
while conceding that the court below,
suo
motu, raised the issue of jurisdiction and
did not hear the parties before pronouncing on it, he further submitted that
the court below, indeed any court of law, has the jurisdiction to raise the
issue of jurisdiction being a fundamental matter which must be addressed at
the earliest; although the action of the court below in this case was
irregular, he said through the brief, there was no substantial miscarriage
of justice, he finally submitted while urging that the decision of the court
below be upheld on the issue of jurisdiction. On Section 180 of the
Constitution, a community reading of its provisions along with those of
Section 191 of the same Constitution does not state that a Governor of a
State can stay a day beyond four years from the date he took his Oath of
Allegiance and Oath of Office and in the instant case, beyond 29th
of May 2007. Concluding, he urged that the entire appeal be dismissed.
The 3rd respondent
on Section 285 (1) of the Constitution, submitted
that the jurisdiction to determine the tenure of different categories of
Public Officers has been vested in different judicial bodies and tribunals
and not at all vested in the National Assembly Elections Tribunal as
according to him, Section 285 (2) of the Constitution 1999 makes it
abundantly clear. It was his further submission that there was no
cross-appeal before the court below challenging the jurisdiction of the
trial court upon which its decision to decline jurisdiction could have been
founded, and neither the grounds of appeal nor the issues distilled
therefrom touched on the issue of jurisdiction;
adding that even it the trial court did not have jurisdiction to entertain
the suit, it was not a matter which could be commenced or continued or
even entertained by the National Assembly Election Tribunal
whose own proceedings are sui generis with its own defined cause of action,
its own procedure and does not admit any possible assimilation, adoption or
commitment of an action commenced by Originating Summons seeking elongation
of the plaintiffs tenure and finally, it has its own prescription of parties
that can have locus
standi before the Tribunal. It was his
further argument that if this court holds that the court below was wrong in
its decision declining jurisdiction, the only order it could make is to
remit the case back to the court below to hear the case on its merit and not
to invoke its (Supreme Court) powers under Section 22 of the Supreme Court
Act and hear the case on its merits. After referring to the provisions of
Section 191 (1) of the Constitution 1999 and reading same along with the
provisions of Section 180 of the same Constitution, a proper construction of
the two Sections having regard to the nullification of the impeachment of
the appellant by the Supreme Court, this (appellant) tenure will end on the
29th May 2007, the fourth anniversary of his taking Oaths.
Finally having taken an over-view of the entire facts of the case, he
submitted that the reliefs claimed by the appellant are equitable in nature,
and having delayed in action, he should not be entitled to the reliefs;
consequently, he urged that the appeal be dismissed and the cross-appeal of
the 3rd respondent/cross-appellant be upheld.
The 4th respondent
(Peoples Democratic Party) submitted through its brief of argument that this
appeal has now become a mere academic exercise for the reason that a new
Governor, in the person of the former Deputy Governor (Otumba
Alao Akala) of the
present appellant (Senator Rashidi
Ladoja) had been sworn in on the 29th
of May 2007 and the appellant is no longer the Governor of Oyo State, it
therefore urged this court to affirm the decision of the court below and
dismiss this appeal. This disposes of Issue No l raised by the 4th
respondent, it was submitted. On Issue No 2 it formulated which is as
to whether the appellant is entitled to the reliefs sought in his amended
originating summons, the 4th respondent submitted that Section
191 (1) and Section 1 (2) of the 1999 Constitution are not applicable to the
appellant's case, because, according to it, the case prosecuted before the
two lower courts borders on the dictates of the provisions of Section 180 of
the 1999 Constitution. It was further argued that since the impeachment of
the appellant had been declared null and void by the decisions of the Court
of Appeal and this court (Supreme Court) sequel to the action earlier
brought by the appellant in another suit, the effect of that was that he
(the appellant) was never impeached, consequently his four-year tenure
remains a continuous one under Section 180 (2) (a) of the 1999 Constitution;
and since this court (Supreme Court) in a related case had pronounced that
the tenure of the office of the appellant would end on the 29th
of May 2007; the reliefs sought by the appellant presently cannot be
granted; it was submitted adding that they are against the clear provisions
of Section 180 of the 1999 Constitution. In conclusion, this court has been
urged to affirm the decision of the court below and dismiss the appeal of
the appellant.
The basis of the appellant's
case mainly revolves around the interpretation of Section 180 of the
Constitution of the Federal Republic of Nigeria 1999 in the sense that he is
inviting the court to determine whether the period of eleven months when he
was put out of office as Governor by the force of an impeachment foisted on
him by the Oyo State House of Assembly which impeachment was eventually
declared null and void, forms part of his (plaintiff/appellant) four-year
term of office as Governor of Oyo State. The two crucial questions to be
answered in this appeal are:
"(1)
Whether the court below and indeed the trial
court had jurisdiction to hear and determine the suit of the
plaintiff/appellant
and
(2)
If the answer to question No l is in the affirmative, what is
to be done to the plaintiff/appellant's case?"
Broadly speaking, jurisdiction
does not encompass "legal capacity", "power" or "authority" of a court to
enter into adjudication or to do certain things. It pronounces on the
competency of the court. A court is said to be competent when it is properly
constituted as regards the number and qualifications of members of the
bench; and no member is disqualified for one reason or the other; the
subject matter of the case is within its r jurisdiction; the case is not
afflicted with any feature which prevents the court from exercising its
power over it; of course, the case must be initiated by due process of law
and upon fulfilment of any condition precedent to the exercise of
jurisdiction. So fundamental is the issue of jurisdiction that it can be
raised at any stage of the proceedings. But it is not a free-for-all
procedure. It can be raised by either party to the proceedings at any stage:
even at the apex court. Let me add that the court can,
suo
motu, raise the issue of jurisdiction, but
in so doing, the court must grant the two sides the opportunity of
addressing on it; this is in conformity with the concept of fair hearing.
The next question that may be asked is, what
determines the jurisdiction of a court? The answer is this: generally, it is
the claim of the plaintiff that determines the jurisdiction of a court that
is invited to adjudicate in the matter. See
Adeyemi
& Ors. v. Opeyori (1976) 9 & 10 S.C. 31.
I have set out the reliefs
claimed by the plaintiff/appellant above; they are seven in number; six are
declaratory reliefs and one injunction relief. The first six reliefs which I
have said are mere declaratory in nature are only an invitation to the court
to declare what the law is on the point raised. The grant of a declaratory
relief, it must be noted, is discretionary. It will only be granted when the
court is of the opinion that the party seeking it, is, when all facts are
taken into consideration, fully entitled to the exercise of the court's
discretion in his favour. See
Odofin
v. Ayoola (1984) 11 S.C. 72. From a careful
scrutiny of the claims of the plaintiff/appellant contained in his amended
originating summons, a substantial question of law has arisen in which the
plaintiff/appellant has a real interest to raise and the respondents to
appose. Declaratory judgments, particularly in areas of the world where the
rule of law is prevalent, have been accorded veritable recognition. In
Hamson
v. Radcliffe Urban District Council (1922) 2 CH. 490, Lord
Sterndale M.R. in
giving declaratory judgments due recognition, at page 507 reasoned thus; -
"The power of the court to make a declaration where it is a question of
defining rights of two parties is almost unlimited; I might say only limited
by its own discretion. The discretion should of course be exercised
judicially but it seems to me that the discretion is very wide."
Legendary Lord Denning
M.R. pushing forward the need for this class of
relief in the interest of justice observed in the case of
PYX
Granite Co. Ltd v. Ministry of
Housing & Local Govt. (1958) 1 Q.B. 554 at
page 571 thus: -
"If a substantial question exists to which one person has a real interest to
raise, and the other to oppose, then the court has a
discretion to resolve it by a declaration which it will exercise if
there is a good reason for so doing."
Finally, Lord
Diplock speaking in the same tone in
Gouriet
v Union of Post Ofice Workers (1978)
A.C. 435 reasoned at page 501 thus:-
"But the jurisdiction of the court is not to declare the law generally or to
give advisory opinion; it is confined to declaring contested legal rights,
subsisting or future, of the parties represented in litigation before it and
not those of anyone else."
I realise that the authorities
I have cited above are foreign decisions which by the declaration of our
courts, are no longer binding on Nigerian court. But, I wish to say that
they remain persuasive. I am persuaded by the above authorities and I shall
here approve of their application to the case at hand. Again I pause to say
that I also realise that the exercise of a jurisdiction to make a
declaratory relief is certainly not an exception to the general principle
that where the Constitution has declared that the courts cannot exercise
jurisdiction in a particular matter or matters, any provision in any law to
the contrary is null and void and of no effect. This point was made very
clear by Karibi-Whyte, JSC
in Utih
v. Onoyivwe
(1991) 1 NWLR (pt.166) 166
when at page 225 he opined:
"The jurisdiction of our courts is derived from the Constitution. Hence,
where the Constitution has declared that the courts cannot exercise
jurisdiction, any provision in any law, to the contrary will be inconsistent
with the provision of the Constitution and valid. The exercise of a
jurisdiction to make a declaratory relief is not an exception to this
general principle."
In submitting that the lower
court was right in its judgment that the trial court had no jurisdiction to
entertain the claims, the respondents placed reliance on Section 285 (1) and
(2) of the 1999 Constitution which provides:
Section 285 (1)
"There shall be established for the Federation one or more election
tribunals to be known as the National Assembly Election Tribunals which
shall, to the exclusion of any other court or tribunal, have original
jurisdiction to hear and determine petitions as to whether: -
(a)
any person has been validly elected as a
member of the National Assembly
(b)
the term of office of any person under
this Constitution has ceased
(c)
the seat of a member of the Senate or a
member of the House of Representatives has become vacant; and
(d)
a question or petition brought before the
election tribunal has been properly or improperly brought."
Section 285 (2)
"There shall be established in each State of the Federation one or more
election tribunals to be known as the Governorship and Legislative Houses
Election Tribunals which shall to the exclusion of any court or tribunal,
have original jurisdiction to hear and determine petitions as to whether any
person has been validly elected to the office of Governor or Deputy Governor
or as a member of any legislative house."
In construing the above
provisions, it is my strong view that an election has been held and a
petition has been lodged. The only adjudicating body that has exclusive
jurisdiction to hear and determine such petition is the Election Petition
Tribunal. The present action pre-dates the election held on the 14th
of April 2007. As I said above, all the plaintiff/appellant is praying for
is for declaratory judgment, of course, with an injunctive relief
accompanying it. The provisions of Section 285 of the Constitution are not
applicable to the present suit. The court below was in error to have relied
on the aforesaid provisions to oust its own jurisdiction and that of the
trial court in hearing and determining the suit of the appellant. For the
umpteenth time, I wish to say that all the appellant is seeking are
declaratory and injunctive reliefs. And a careful reading of the provisions
of Section 251 (1) (q) and (r) of the Constitution of the Federal Republic
of Nigeria 1999, in my respectful view, support my quoting, with approval,
the dicta of foreign decisions to the effect that a superior court of record
can make declaratory orders. Section 251 (1) (q) and (r) of the 1999
Constitution provides:-
"Notwithstanding anything to the contrary contained in this Constitution and
in addition to such other jurisdiction as may be conferred upon it by an Act
of the National Assembly, the Federal High Court shall have and exercise to
the exclusion of any other court in civil causes
and matters:-
(a)
....................................................
(b)
....................................................
(c)
....................................................
(d)
....................................................
(e)
....................................................
(f)
....................................................
(g)
....................................................
(h)
....................................................
(i)
....................................................
(j)
....................................................
(k)
....................................................
(1)
....................................................
(m)
....................................................
(n)
....................................................
(o)
....................................................
(p)
....................................................
(q)
subject to the provisions of this
Constitution, the operation and interpretation of this Constitution in so
far as it affects the Federal government or any of its agencies
(r)
any action or proceeding for a declaration
or injunction of any executive or administrative action or decision by the
Federal Government or any of its agencies."
For the above provisions, it
is clear that the interpretation of the provisions of the 1999 Constitution
is vested in the Federal High Court in so far as it affects the Federal
Government or any of its agencies. To be specific, Section 251 (1) (r) puts
it beyond peradventure that the Federal High Court has the power to
entertain a suit seeking declaratory and injunctive orders. Section 251 of
the Constitution aforesaid starts with the words "Notwithstanding, anything
Contrary Contained in this
Constitution”, that word "Notwithstanding" has been judicially defined by
this court in the case of
NDIC
v. Okem Ltd & Anor
(2004) 10 NWLR (pt.880)
107 when at pages 182/183 it was said: -
"As has been observed, Section 251 (1) of the 1999 Constitution begins with
the term "Notwithstanding" anything contrary to this Constitution, when the
term "Notwithstanding" is used in a section of a statute, it is meant to
exclude an impending effect of any other provision of the statute or other
subordinate legislation so that the said section may fulfil itself. It
follows that as used in Section 251 (1) of the 1999 Constitution no
provision of the Constitution shall be capable of undermining the said
section."
Going by the decision in
Okem’s
case, nothing can supplant the provisions of Section 251 (1) (q) and (r)
aforesaid. It follows therefore that the irresistible conclusion now reached
by me is that the Federal High Court has the jurisdiction, the legal
authority and power to hear and determine the suit of the
plaintiff/appellant as presented before it. The court below was therefore
wrong, in law, to have held otherwise. The appeal on the issue of
jurisdiction therefore succeeds. The first part of the only issue raised by
the appellant as to jurisdiction which issue was adopted by the 1st
respondent/cross-appellant is answered in the affirmative; Issues No
l on the 2nd respondent's brief; Issue No l on the 3rd
respondent/cross-appellant's brief are answered in the negative while
I resolve Issue No l on the 4th respondent's brief against
it.
The next issue for
consideration is whether the appellant is entitled to the reliefs sought.
The trial Chief Judge had ruled that the appellant was not entitled, based
on the materials placed before the court of trial, to the reliefs sought;
i.e. elongation of his tenure of office by eleven months for which he was
not allowed to remain in office by the impeachment which has been adjudged
to be unlawful and/or illegal. Suffice it to say that the court below did
not make any pronouncement on that part of the judgment given by the trial
court. The second arm of the only issue raised by the appellant for
determination by this court poses the question whether the appellant is not
entitled to the reliefs sought as contained in the amended originating
summons. If I may say, the entire issue is distilled from the two grounds of
appeal raised in the Notice of Appeal. That second limb of the issue must be
considered by this court given the stand point of judicial decision on
determination of all properly raised issues before the court. But the court
below, understandably, has not expressed any opinion as to whether the trial
court was right or not in dismissing the reliefs sought. I say
understandably, because the court below had ruled that the trial court had
no jurisdiction to entertain the suit. I have said supra that the court
below erred in law, on the issue of jurisdiction and that it ought not to
have remitted the suit to any Election Petition Tribunal. Must I stop at
this pronouncement on the issue of jurisdiction and say nothing further or
must I go ahead to remit the case back to the court below to determine
whether the plaintiff/appellant is entitled to the reliefs sought. I think
not. Interest of justice will be defeated if I approach the second limb of
the issue in that direction. But, I must remind myself that this court will
not take an appeal directly from a trial court without the aggrieved party
not first going through the court below (Court of Appeal). It is after the
Court of Appeal has pronounced on the issue complained about in the judgment
of the court of first instance that any party still not satisfied can
approach this court on a further appeal.
Law, it must be said cannot be
wanting in dispensing justice. The court below has failed to do what it
ought to have done, in the interest of justice. I have just said that the
court below did not lack jurisdiction to entertain the suit. The real issue
before us can be distilled from the grounds of appeal contained in the
Notice. All the materials needed to take a decision on this crucial issue
are now before us. I still say that the end of justice will be defeated if
this appeal is remitted to the court below to determine the real issue. It
is for this reason, if this court will justify itself for adjudication in
the matter in controversy here once and for all, that the provisions of
Section 22 of the Supreme Court Act must first be invoked. See
Faleye
& Ors v Otapo & Ors (1995) 3
NWLR (pt.38.1) 1;
Inakoju v. Adeleke
(2007) 4 NWLR (pt.1025)
423 and
Dapianlong & Ors v. Dariye (2007) 8
NWLR (pt.1036) 239. The provisions of
Section 22 of the Supreme Court Act read: -
"The Supreme Court may, from time to time, make any order necessary for
determining the real question in controversy in the appeal, and may amend
any defect or error in the record of appeal, and may direct the court below
to inquire into and certify its findings on any question which the Supreme
Court thinks fit to determine before the final judgment on the appeal and
may make any interim order or grant any injunction which the court below is
authorised to make or grant and may direct any necessary inquiries or
accounts to be made or taken and generally shall have full jurisdiction over
the whole proceedings as if the proceedings had been instituted and
prosecuted in the Supreme Court as a court of first instance and may rehear
the case in whole or in part or may remit it to the court below for the
purpose of such rehearing or may give such other directions as to the matter
in which the court below shall deal with the case in accordance with the
powers of that court."
In my humble view, the
provisions of Section 22 of the Supreme Court Act quoted supra constitute
the enabling power by which this court can now adjudicate to finality in
this matter given the present stat of the facts. All the plaintiff/appellant
is calling for determination is whether having regard to the provisions of
Section 180 of the 1999 Constitution and the judgment of this court in
SC.272/2006 referred to above nullifying the removal from office as Governor
of Oyo State of Nigeria, the period of eleven months for which he as the
Governor was illegally removed from office forms part of his four-year term
of office as the Governor. This question calls for the interpretation of the
provisions of the Constitution and no more. The power of interpretation is
lodged in the
judex. In exercising this interpretative jurisdiction, the
judex
must draw his inspiration from consecrated principles. What are these
principles? They are: where the words used in couching the provisions of a
statute or sections of the Constitution are clear and unambiguous, a
judex
must accord such words used, their ordinary and grammatical meanings without
any colourations. More often than not, courts are always enjoined in the
course of exercising their interpretative jurisdiction, to find out the
intention of the legislators. But, there is no magical wand in that advice.
The intention of the legislators or put bluntly, the intention of our
National Assembly at the Federal level or the State House of Assembly at the
State level is to be found in no other place other than in the words used by
the legislators in framing the provisions of the Constitution. Occasionally,
the law passed by the legislators may not meet the modern day requirements,
it may be defective. Let that defect be put right by the legislators. A
judge is far better employed if he puts himself to the much singular task of
deciding what the law IS. Let me now reproduce the provisions of Section 180
(2) of the 1999 Constitution hereunder: -
Section 180(2)
"Subject to the provisions of sub-section (1) of this section, the Governor
shall vacate his office at the expiration of a period of four years
commencing from the date when: -
(a)
in the case of a person first elected as
Governor under this Constitution, he took the Oath of Allegiance and the
Oath of Office;
And
(b)
the person last elected to that office
took the Oath of Allegiance and Oath of Office or would, but for his death,
have taken such oaths."
Applying the principles
guiding the interpretation of the provisions of the Constitution as stated
above to the provisions of Section 180 (2) (a) stated above, it is commonly
agreed by all the parties that the plaintiff/appellant, sequel to the
declaration by the 1st respondent/cross-appellant that he won the
gubernatorial election of 2003, he (1st
respondent/cross-appellant) took his Oath of Allegiance and Oath of Office
as Governor of Oyo State on the 29th of May 2003. The wordings of
Section 180 (2) (a) and (b) are very clear and unambiguous. Being a person
first elected as Governor, his four-year tenure would start to run from the
29th of May 2003. It is true that by the impeachment foisted on
him by the State House of Assembly which impeachment was later declared null
and void by court, he was kept out of office for a period of eleven months.
It is for the reason of the impeachment that kept him out of office for a
period of eleven months that he is praying the court to declare that he is
entitled to a term of four uninterrupted years in office as Governor of Oyo
State commencing from the 29th May 2003 and consequently, to hold
that by virtue of the provisions of Section 180 (2) (a) of the Constitution
applicable her, he is entitled to remain in office until 29th
April, 2008 when, according to him, what he described as his term of four
uninterrupted years as Governor of Oyo State would expire.
I have again carefully read
the aforesaid provisions of the Constitution; the word "Uninterrupted" was
not used to qualify the four-year tenure to which the plaintiff/appellant
was entitled as Governor of Oyo State. It is a firm canon of interpretation
of the provisions of a statute or the Constitution that words not used by
the legislators must not be imported into the wordings of the provision by a
'judex'.
"Law making" in the strict sense of that term, is not the function of the
judiciary but that of the legislature. To accede to the prayer of the
plaintiff/appellant and read the word "Uninterrupted" into the provision of
the Constitution, now under consideration will be for the judicial arm of
the government to engage in an unwelcome trespass into the territory of the
legislative arm of the government. I am quite conscious of the fact that
occasionally laws passed by the legislators do not accord with the wishes of
the people or may not meet with the requirements of the time.
Let that defective law or law that does not meet with
the aspirations of the citizens be put right by the legislators. Even
if there was no impeachment and a Governor had run his term smoothly, for
the period he may be on leave during the tenure of his office, the Deputy
Governor must have to stand in for him. That is a form of interruption which
the Constitution does not take cognisance of. The reliefs sought are, in the
main, declaratory and injunctive in nature. As I have said above, the power
to grant declaratory reliefs is very wide, almost unlimited except limited
by the discretion of the court. But that discretion of the court must be
exercised judicially and judiciously and in the absolute interest of
justice. Taking an overall view of the facts of this case, it is my
considered view that the interest of justice will never be served by the
grant of the declaratory and injunctive reliefs as they relate to the
elongation of the tenure of the office of the appellant as Governor of Oyo
State beyond the 29th of May 2007.
It is for this little
contribution by way of reasons for my judgment of 14th June 2007
but most especially for the detailed reasoning contained in the leading
judgment of my learned brother, Mohammed JSC, that I allow the appellant's
appeal on the issue of jurisdiction and dismiss the declaratory and
injunctive reliefs already refused by the trial court. There shall be no
order as to costs.
Reasons for Judgment delivered
by
Christopher Mitchell
Chukwuma-Eneh. J.S.C
On 14/06/2007, I declared my
judgment in this matter. I did also say on that occasion I would give my
reasons for the judgment today.
Now, I have had the privilege
of a preview of the reason5given in the lead judgment prepared by
my learned brother Mohammed J.S.C and I agree with his reasoning and
conclusions. I adopt the same as mine. I have therefore nothing useful to
add save to say that I abide by the orders in the lead judgment.
Counsel
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