Oju Local Government & Ors V. Independent National Electoral Commission (2007)
LawGlobal-Hub Lead Judgment Report
ABOKI, J.C.A.
This is an appeal against the decision of Hon. Justice B.F.M. Nyako of the Federal High Court, Abuja delivered on the 22nd day of March, 2006 dismissing the claim of the plaintiffs/appellants.
Leave was granted the plaintiffs on the 9th June, 2005 to amend their originating summons. Their claim is for an interpretation of the provisions of section 91 and 112 of the 1999 Constitution of the Federal Republic of Nigeria for the determination of the following questions:-
“1. Whether upon the coming into effect of the Constitution of the Federal Republic of Nigeria, 1999, the Benue State House of Assembly, constituting of less than three or four times the number of seats the State has in the House of Representatives is properly constituted or composed as envisaged by sections 91 and 112 of the said Constitution.”
- Whether the defendant properly, fairly and legally excluded the restoration of the suppressed State Constituencies in Oju Local Government Area, Benue State from the list of suppressed State Constituencies it forwarded to the National Assembly for approval for restoration having regards to the provisions of the section 112 of 1999 Constitution of the Federal Republic of Nigeria.
And in consideration of the following reliefs:-
- A declaration that the Benue State House of Assembly is not properly constituted or composed as required by sections 91 and 112 of the 1999 Constitution of the Federal Republic of Nigeria.
- A declaration that having regard to the provision of sections 91 and 112 of the 1999 Constitution of the Federal Republic of the defendant acted improperly and unfairly in refusing or failing to include the suppressed Uwokwu State Constituency in Oju Local Government Area among the names of the suppressed State Constituencies it forwarded to the National Assembly for approval for restoration.
- An order directing the defendant to comply with the provisions of sections 91 and 112 of the Constitution of the Federal Republic of Nigeria 1999 by restoring the suppressed Uwokwu State Constituency in Oju Local Government Area, Benue State to bring the composition of the Constitution.
- Order of court directing or compelling the defendants to restore the suppressed Uwokwu State Constituency of Oju Local Government Area of Benue State to bring the number of the State Constituencies in Oju Local Government Area to two (2) as existed previously from 1979 elections conducted by the National Electoral Commission under the 1999 Constitution of Nigeria”
The plaintiffs filed five supporting affidavits with four (4) exhibits, among which is the population figure of Benue State obtained from the National Population Commission, exhibit 2. The respondent filed only one counter-affidavit of eight paragraphs with one exhibit, exhibit INEC 1, in response to the first supporting affidavit. There was no counter-affidavit filed in response to any of the other four (4) supporting affidavits.
At the hearing, counsel to the respondent submitted that the combine effect of sections 91 and 112 of the Constitution of Nigeria 1999 allows the respondent a discretion as to which of the two (2) options – x 3 times or x 4 times the number of Federal Constituencies in a State it should adopt. The respondent adopted the x 3 times option in restoring the suppressed State Constituencies and in making proposal to the National Assembly under section 115 of 1999 Constitution.
The learned trial Judge dismissed the plaintiffs’ case on the sole ground that they failed to show any good reason why the discretion of the respondent should be interfered with.
At the hearing of the appeal on 16th October, 2006, learned counsel for the appellants adopted the brief of argument filed on 22nd June, 2006 and the reply brief filed on 1st August, 2006.
Learned counsel for the appellants told the court that five issues have been settled from the five grounds of appeal presented. He maintained that all the parties agreed that population is relevant in this matter. He said that additional population of Benue State is disclosed in exhibit 2 at page 13 of the record of appeal. He maintained that the respondent has challenged exhibit 2 therefore it must be prepared to produce its population figures, which it has not done, because it will be adverse to its case. Learned counsel for the appellant urged the court to make the necessary presumption under section 149 of the Evidence Act.
Learned counsel submitted that the contentions of the respondent that exhibit 2 was not certified pursuant to section 119 of the Evidence Act is pure technicality. He referred the court to the cases of: International Carpet Industries (Nig.) Ltd. v. Savanah Bank (Nig.) Plc. (2006) All FWLR (Pt. 326) page 108 at 148; Adebayo v. Okonkwo (2001) FWLR (Pt.75) page 465; (2002) 8 NWLR (Pt. 768) 1.
Learned counsel for the appellant referred to the submission of the respondent on sections 114-117 of the Constitution of Nigeria 1999 and submitted that the directive principles of State Policies are meant to be obeyed.
Learned counsel for the appellants maintained that the appellants have shown that there are three tribes, Tiv, Idoma and Igede in Benue State and that they (Igede) are the largest tribe after Tiv people. He said that the Ushongo whose suppressed State Constituency was restored by the court are from the Tiv tribe. Learned counsel referred the court to the case of A.-G., Ondo State v. A.-G., Federation (2002) FWLR (Pt.111) page 1972 at 2142-2144, (2002) 9 NWLR (Pt. 772) 222.
Learned counsel argued that the contention of the respondent at page 141 of the record of appeal which suggested that the decision of the lower court in the Ushongo case was a consent judgment is not correct and that assuming it is, the respondent has not shown why it should consent to that judgment and refuse to do same in this case. Learned counsel referred the court to section 151 of the Evidence Act as well as paragraph 4(a) of the respondent’s brief or argument and submitted that the appellants’ case is not a demand for creation of a new State Constituency. Learned counsel maintained that the appellants have made a case so that people of Oju Local Government Area can be properly represented and share from the wealth of the Nation.
Learned counsel for the respondent said that he adopts the respondent’s brief filed on 26th July, 2006 and says that the appeal lacks merit and should be dismissed.
Learned counsel for the respondent urged the court to discountenance all argument touching on the competency of the respondent’s brief. He argued that the objections should have been raised in the appellants’ briefs of argument and that if they have not done so then they cannot do it orally.
Learned counsel for the respondent contended that there is no case of Ushongo and that the appellants tried to introduce new additional evidence. He maintained that what was attached to the record of appeal is not a judgment, but an order of the lower court.
Learned counsel invited the court to page 147 of the Record of Appeal and the counter-affidavit filed at the lower court.
Learned counsel for the respondent maintained that what was presented was not the true population of Benue State. Learned counsel submitted that the law is that he who asserts must prove. He contended that the appellants have not discharged that onus and therefore it cannot shift. He argued that being a member of one of the three tribes is not a factor in the creation of State Constituencies and that the main factor is population where it is reasonably practicable.
Learned counsel for the respondent argued that the Constitution speaks of Constituency and not Local Government Area.
He further argued that the Local Government Area does not constitute a factor in the declination of Constituency boundaries. He argued that if it were an issue the Constitution would have said so. Learned counsel for the respondent referred the court to section 72 of the Constitution of Nigeria 1999 and invited the court to compare it with section 114 of the same Constitution. Learned counsel argued that the appellants wanted to shift the responsibility of creation of constituencies to the court which is not its duty. He referred the court to sections 72-91 of the Constitution of Nigeria, 1999. Learned counsel for the respondent informed the court that the respondent has forwarded the matter of restoration of suppressed Constituencies to the National Assembly as it is enjoined to do under the Constitution of the Federal Republic of Nigeria, 1999. He submitted that the lower court can no longer grant the relief sought because the respondent has clone what it is required to do under the Constitution.
In a reply on point of law, learned counsel for the appellants stated that section 72 of the Constitution of Nigeria, 1999 is not applicable to this matter. He argued that since the appellants are not talking of periodic review of State Constituencies, section 114 of the Constitution of Nigeria, 1999 does not apply.
It will not be out of place at this point to briefly state the facts of the matter leading to this appeal and they are as follows:
The Independent National Electoral Commission who is the respondent in this suit adopted the State Constituencies created by its predecessor, the National Electoral Commission of Nigeria NECON.
These were the Constituencies used during the 1999 and 2003 General Elections. The Constitution of Federal Republic of Nigeria 1999 empowers the respondent under Section 112, to divide every State in the Federation into such number of State Constituencies as is equal to three or four times the number of Federal Constituencies within the State. There were eleven (11) Federal Constituencies and twenty nine State Constituencies in Benue State, created before the coming into effect of tile Constitution of the Federal Republic of Nigeria, 1999. The respondent wrote the National Assembly for restoration of sixty-six suppressed State Assembly Constituencies, four of which are in Benue State. The appellants felt aggrieved that Uwokwu State Constituency was not included for restoration, took out an originating summons against the respondents after the restoration had been approved by the National Assembly.
The plaintiffs alleged in the originating summons that the State Constituencies created for Benue State favoured only the Tiv speaking people of the State to the disadvantage of the Igede people,
The plaintiffs exhibited several documents including population figures which the respondent challenged its authenticity.
The learned trial Judge dismissed the suit on the grounds among others that the appellants have not shown a violation of section 114 of the Constitution.
Dissatisfied by the judgment of the trial court, the plaintiffs now filed this appeal consisting of five (5) grounds to this court.
The plaintiffs/appellants alleged that the trial court failed to properly evaluate the evidence and misdirected itself on the facts and erred on the law in addition to being bias against them.
The following questions are formulated by the appellants for the consideration of this court:
“a. Whether appellants made out their case to be entitled to the reliefs sought from the court.
b. whether it is respondent’s case that his refusal to restore Uwokwu State Constituency when he restore similarly suppressed State Constituencies, is an action in exercise of his discretion and, if so, whether respondents have any discretion to exercise when it comes to compliance with the provisions of the Constitution, particularly sections 91 and 112 particularly in the light of section 14(4) and 15 (2) of the 1999 Constitution of Nigeria.
c. Whether the learned trial Judge actually appreciated the case of the appellants properly and adequately evaluated the affidavit evidence that were before him before him before coming to his decision.
d. Whether the decision of the learned trial Judge is supported by the evidence before the court.
e. Whether the learned trial Judge was not bias in his handling of the case of the appellant.”
The respondent also presented the following issues for determination in this appeal:-
“(i) Whether the decision of the learned trial Judge is supported by the evidence before the court.
(ii) Whether the learned trial Judge appreciated the case of the appellants and properly evaluated the evidence in this case before arriving at a decision.
(iii) Whether the learned trial Judge was correct in his interpretation of the provisions of sections 91 and 112 of the Constitution of the Federal Republic of Nigeria, 1999.
(iv) Whether the learned trial Judge was biased against the appellants in this case.”
The two sets of issues formulated by the parties are similar in wordings and contents.
They can be collapsed into two issues, i.e. an issue dealing with the conduct of the trial and another on the interpretation of the provisions of the Constitution of Nigeria, 1999 relating to the matter at hand.
The issues distilled after the amalgamation and restructuring of the issues presented by parties are as follows:
(a) Whether the learned trial Judge was correct in his interpretation of the provisions of sections 91 and 112 of the Constitution of the Federal Republic of Nigeria 1999 as it relates to this matter.
(b) Whether the learned trial Judge actually appreciated the case of the appellants and properly evaluated the evidence that were before him in arriving at his decision. Learned counsel for the appellants contended that the first issue bothers on the respondent’s failure to comply with the mandatory provisions of section 91 and particularly 112 of the Constitution of the Federal Republic of Nigeria 1999. Learned counsel reproduced both sections of the Constitution and argued that the language of both sections 91 and 112 of the said Constitution used the word “shall. ”
Learned counsel maintained that sections 91 and 112 are in mandatory language, a command which the respondent has no discretion over but to comply. He contended that the issue of discretion raised in the judgment of the trial court came from the learned trial Judge’s misapprehension of the wording of the sections 91 and 112 of the Constitution of Nigeria, 1999.
Learned counsel submitted that this is an error in law on the part of the learned trial Judge and that the error has influenced his decision and has occasioned miscarriage of justice.
Learned counsel for the appellants argued that the oral submission of the respondent to the effect that the respondent exercised discretion in the matter does not form part of the evidence before the court. He referred the court to the case of Zein v. Geidain (2004) All FWLR (Pt.237) 457 at 480. He maintained that the use of the word “shall” in the said sections are not permissive or directory, but mandatory and imperative for which the respondent is required to comply exactly and no more.
Learned counsel for the appellants insisted that the respondent has no discretion in the matter contained in sections 91 and 112 of the 1999 Constitution to exercise. He submitted that the learned trial Judge was wrong to conclude that the respondent exercised his discretion and that the appellants failed to show any reason why the court should interfere with the exercise of the discretion. Learned counsel argued that the opinion of the learned trial Judge that the provisions of sections 91 and 112 of the 1999 Constitution are discretionary has influenced his decision against the appellants.
Learned counsel urged the court to so hold and allow the appeal on this ground.
Learned counsel for the appellants submitted that neither the respondent nor the appellants made any issue of section 114 of the Constitution before the trial Judge. He further submitted that the appellants’ complaint is not on the section 114 of the 1999 Constitution. Learned counsel maintained that the learned trial Judge was wrong and misdirected himself when he concluded that the appellants failed to address the issues contained in Section 114.
Learned counsel insisted that the appellants never submitted any question for interpretation/determination by the trial court on sections 14 and 115 of the Constitution. Learned counsel maintained that section 114 of the Constitution was introduced by the learned trial Judge suo motu. He argued that the trial Judge never heard them on the issue but went ahead to decide on it to their detriment, He referred the court to the cases of Felix Okoh Ezeonwu v. Chief Charles Onyechi and 2 Ors. (1996) 2 SCNJ 250 at 269, (1996) 3 NWLR (Pt.438) 499; Adeosun v. Babalola (1972) 5 SC 292 at 302.
Learned counsel submitted that the action of learned trial Judge violates the principle of fair hearing and cited section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
In his reply on this issue, learned counsel for the respondent argued that section 91 is subject to other provisions of the Constitution. It states that the composition of a House of Assembly of a State, “shall consist of three or four times the number of seats which that State has in the House of Representatives.” Learned counsel also argued that section 112 is subjected to section 91 and 113 of the Constitution and it empowers the respondent to create the State Constituencies. He submitted that the general principle of interpretation is that the intent of the law maker cannot be understood from a part only of a legislation but that it should be read as a whole to discover the intent. He referred the court to PDP v. INEC (1999) 11 NWLR (Pt.626) page 200 at 242. Learned counsel submitted that the court is not limited in its decision to only the sections referred to by the parties.
Learned counsel for the respondent argued that although the respondent is empowered to create State Constituencies, such exercise can only be undertaken if any of the conditions stated in section 114 of the Constitution occurs. He maintained that the appellants having admitted that the restoration of the suppressed State Constituencies have been approved by the National Assembly, they cannot be heard calling for a creation of a Constituency for them.
Learned counsel for the respondent submitted that though it is mandatory for a House of Assembly of a State to be properly constituted in such a manner as not to have less than 24 members nor more than 40 members, the respondent has a discretion as to whether the House should be comprised of 3 times or 4 times the number of the Federal Constituencies in that State. The respondent having uniformly applied the option of times 3 throughout the Federation acted within its discretion. He urged the court to hold.
Learned counsel for the respondent submitted that the respondent has a discretion in from all the factors available to it, whether a community has satisfied the conditions to be given a State Constituency. Learned counsel maintained that the learned trial Judge properly interpreted the provisions of sections 91 and 112 of the Constitution of the Federal Republic of Nigeria 1999 and he urged the court to so hold.
Learned counsel for the respondent urged the court to reject the argument of the learned counsel for the appellants at paragraph 2 of page 25 of the appellants brief which substituted for the word “State” in sections 91 and 112 the word “Federal Constituency.” Learned counsel argued that the sections empowered the respondent to divide the State into 3 or 4 times the number of Federal Constituencies in the State and that the sections do not require the respondent to divide each Federal Constituency into 3 or 4 times. He urged the court to resolve this issue in favor of the respondent.
Learned counsel for the appellants in reply argued that the suppressed State Constituencies have been created and existed but were only suppressed. He insisted that it is not a request for review and or a fresh creation as contended by the respondent. Learned counsel submitted that the exercise of constitutional discretion is not meant to be arbitrary but judiciously made. Learned counsel contended that the only criteria which is just is that which the Constitution allows and that is to multiply the Federal Constituency by three or four times, depending on the option the respondent adopted.
Learned counsel for appellants insisted that any interpretation contrary to that cannot be a proper and just interpretation of sections 91 and 112 of the Constitution, particularly in view of the provisions of sections 14(4) and 15(2) of the Constitution of the Federal Republic of Nigeria and urged the court to so hold.
Learned counsel argued that it cannot be otherwise, especially where, as in the case at hand, Uwokwu State Constituency had met all the constitutional requirements before it was created and had been in existence. He maintained that the application of discretion in this case that gave Oju/Obi Federal Constituency one State Constituency less than the Constitutional share and gave Gbokol Tarka, Vandeikya/Konsisha, Mukurdi/Guma and Katsina-Ala/Ukum Federal Constituencies with less population than Oji/Obi, four State Constituencies each and all located within the Tiv people of Benue State, a State with more than five tribes, is not only arbitrary, discriminating, and unjust but also unconstitutional and should not be allowed to stay.
It has been submitted that the first issue for determination is premised on the interpretation of sections 91 and 112 of the Constitution of the Federal Republic of Nigeria 1999 and their compliance.
It will be appropriate at this point to reproduce the said sections and they are hereby adumbrated as follows:
“91. Subject to the provisions of this Constitution, a House of Assembly of a State shall consist of three or four times the number of seats which that State has in the House of Representatives divided in a way to reflect, as far as possible, nearly equal population:
Provided that House of Assembly of a State shall consist of not less than twenty-four and not more than forty members.”
This section provides that a House of Assembly of a State must be made up of three or four times the number of seats which that State has in the House of Representative and the seats in the said House of Assembly is to be divided in a way to reflect as far as possible nearly equal population.
Compliance with the provisions of this section is mandatory and no room is given for the exercise of any discretion in carrying out its tenor.
The Constitution states again in section 112 thus:
“112 Subject to the provisions of sections 91 and 113 of this Constitution, the Independent National Electoral Commission shall divide every State in the Federation into such number of State Constituencies as is equal to three or four times the number of Federal Constituencies within that State.”
This section empowers Independent National Electoral Commission to divide every State in the Federation into a number of State Constituencies which will be three or four times the number of Federal Constituencies within the State. It must ensure that the Constituencies so divided reflect as far as possible nearly equal population and they must not be less than twenty-four and more than forty. See section 91.
The State Constituencies must each have as reasonably practicable the same population quota. See section 113.
It is not in dispute that there were eleven Federal Constituencies and twenty-nine State Constituencies in Benue State created before the coming into effect of the 1999 Constitution. It is not in dispute that Oju/Obi Federal Constituency has a complement of three State Constituencies before the coming into force of the 1999 Constitution, but they were reduced to two. Other Federal Constituencies that have less than the number of State Constituencies stipulated under the Constitution include Gboko/Tarka, Vandeikya/Konshisha, Makurdi/Guma and Katsina-Ala/Logo/Ukum Federal Constituencies. The respondent by its letter to the National Assembly dated 2nd June, 2004 exhibit INEC recommended the restoration of four suppressed State Constituencies, but all in the Tiv speaking area of the State. See paragraph 4111- (2) of the main supporting affidavit on page 30 of the Record. It is not in dispute that after the Tiv people, the Igede people have the second population in Benue State. The third ethnic group in Benue State are the Idoma people.
It is not in dispute that when the Federal Constituencies of Gboko/Tarka, Vandeikya/Konshisha, Makurdi/Guma and Katsina-Ala/Logo/Ukum were divided in accordance with the provisions of section 112 of the Constitution of Nigeria 1999, four State Constituencies were created out of each of them, while Oju/Obi Federal Constituencies still retained its two Constituencies. The suit filed for the restoration of the State Constituency of Uwokwu in line with the requirement of section 91 the Constitution was dismissed by the learned trial Judge on the ground that the exercise of restoration of State Constituencies is a discretion.
The Learned trial Judge said on page 149 of the record of appeal thus:
“Section 114 allows for the State Constituencies to be reviewed at an interval of 10 years, or where there is an alteration of boundaries of the State or by reason of holding a census of population.
The applicants have not canvassed any of these situations. The defendants have taken step to ensure that the 3 times option adopted for all the States of the Federation have also been applied to Benue State. The issue then is why the applicants was excluded for restoration as against others that were restored.
The applicants has not canvassed any argument in support of this and the defendants have said it was in exercise of their discretion.
The applicants may have a valid request but they have not shown why the exercise of the discretionary powers of the defendant should be tampered with.”
It is clear from the affidavit evidence presented by the appellants at the lower court that their case is that Uwokwu State Constituency which was suppressed to be reinstated and not that of a review which would have brought it under the provisions of section 114 of the 1999 Constitution. It is not in dispute that the boundaries of Igede (now renamed Oju) and Uwokwu State Constituencies in Oju Local Government Area has not been altered since their creation.
The respondent has not present any reason from the Record of the trial court why some Constituencies in Benue State, even with less population than Oju/Obi Federal Constituencies should have four State Constituencies while Oju/Obi Federal Constituency should be left with only two, which is one short of the minimum constitutionally prescribed under section 91 of the 1999 Constitution.
The Oju/Obi Federal Constituency is entitled to one or two State Constituencies in line with the mandatory provision of section 91 of the 1999 Constitution. The respondent whose duty it is to carry out the restoration has not provided any useful reason for depriving the people of Oju/Obi Federal Constituency of their constitutional right to have a maximum of four Constituencies and a minimum of three, instead of the two they now have.
I am of the opinion that the conduct of the respondent is in violation of the provision of sections 91 and 112 of the Constitution of the Federal Republic of Nigeria, 1999 in denying the appellants the minimum of three State Constituencies and for refusing to restore Uwokwu State Constituency which existed but was suppressed.
It is trite law that where an Act makes a mandatory stipulation, the operators to the Act must comply strictly with such provisions.
In the case at hand, the constitutional provisions being mandatory must be complied with exactly. See Amadi v. NNPC (2000) SCNJ 1 at 17, (2000) 10 NWLR (Pt. 674) 76; Adewunmi v. Governor of Oyo State (2003) FWLR (Pt.149) page 1444 at 1446.
The learned trial Judge was wrong in his decision, when he considered the exercise of a constitutional duty under sections 91 and 112 of the Constitution by the respondent a discretion.
The first issue for determination in this appeal is resolved in favour of the appellants.
On the second and final issue for determination, the learned counsel for the appellants submitted that the learned trial Judge failed to appreciate the actual purport of their case before him. Learned counsel for the appellants argued that this misconception led to the wrong decision arrived at the end of the case. Counsel cited the case of Ladejobi v. Oguntayo (2004) All FWLR (Pt.231) page 1209 at 1231, (2004) 18 NWLR (Pt. 904) 135.
Learned counsel submitted that the learned trial Judge failed to properly and adequately evaluate the affidavit evidence before him in arriving at his decision to dismiss the appellants’ case. Learned counsel argued that the issues raised by the appellants for determination by the court has nothing to do with the provisions of sections 114 and 115 of the 1999 Constitution.
Learned counsel for the appellants maintained that it was a misappreciation/misdirection of the actual purport of the appellant’s case that led the learned trial Judge to hold that:-
“Section 114 allows for the State Constituencies to be reviewed at an interval of 10 years. Or where there is an alteration of boundaries of the State or by reason of holding a census of population.”
and concluded that “the applicants have not canvassed any of these situations.”
The learned counsel maintained that the State Constituencies in Benue State are still less than the forty allowed by the Constitution and he referred the court to the unchallenged averments in paragraph 4 (aa) – (bb) on pages 30-31 of the record and submitted that the unanswered questions by the respondent is why it redressed the legitimate demand of some affected State Constituencies and refused to do so in respect of Uwokwu.
He submitted that the respondent did not deny that Uwokwu State Constituency is one of the suppressed State Constituencies that should be restored. He contended that it is therefore erroneous and indeed a misdirection on the part of the learned trial Judge when he accused the applicants of not canvassing “any of these requirements” in section 114 and holding same as basis for dismissing the appellants case. Learned counsel argued that this misdirection and or error has occasioned miscarriage of justice. He referred the court to the case of Mohammed Oladapo Ojengbede v. M.O. Esan (Loje-Oke) & Anor. (2001) 12 SCNJ 40, (2001) 18 NWLR (Pt. 746) 771.
Learned counsel argued that if the learned trial Judge had not so misdirected himself on this point, he would have certainly come to a different decision in favour of the appellants. Learned counsel for the appellants urged the court to uphold this submission and allow this appeal.
Learned counsel argued that the use of other criteria, which probably were responsible for the respondent’s refusal to restore Uwokwu State Constituency, renders the action arbitrary, unconstitutional and discriminatory, because such other criteria are not constitutional criteria. He maintained that this clearly shows the improper exercise of discretion by the respondent. Learned counsel argued that this alone is enough reason why the learned trial Judge should have accepted the case of the appellants proved and grant the reliefs sought. He further argued that the content of the counter-affidavit as it is, does not amount to denial or challenge in law to the specific and material averments in the supporting affidavits.
Learned counsel referred the court to the cases of Adesina v. Commission (1996) 4 SCNJ 112 at 114; Badejo v. Federal Minister of Education (1996) 9-10 SCNJ 51 at 59, (1996) 8 NWLR (Pt.464) 15; Inegbedion v. Selo-Ojemen (2004) All FWLR (Pt.221) page 1444 & 1440; (2004) 12 NWLR (Pt. 889) 411.
Learned counsel for the appellants submitted that the courts are enjoined to accept and act on such unchallenged affidavit evidence once the averments are credible. He referred the court on this point to the cases of Ajomale v. Yaduat (No.2) (2003) FWLR (Pt.182) at 1928, (1990) 2 NWLR (Pt. 132) 271; Owena Bank (Nig.) Plc v. Joe Ideal Family Farms Ltd. (2003) FWLR (Pt.128) page 13; Akeredolu v. State (2003) FWLR (Pt.179) page 1290 at 1301.
Learned counsel for the appellants argued that the issue before the court is constitutional and that the Constitution has prescribed the conditions necessary for the respondent to act on. He submitted that the appellants met the constitutional conditions to be entitled to the restoration of Uwokwu State Constituency that the respondent failed to comply with the constitutional provisions in respect of the appellants. He maintained that the court has been given sufficient materials to enable it grant the reliefs which the appellants sought from it.
He argued that the learned trial Judge did not appreciate these and failed to properly and adequately evaluate the evidence.
Learned counsel for the appellants stated that paragraph 6 of the counter-affidavit alleged that the respondent took into consideration other criteria outside what section 91 of the 1999 Constitution stipulated. He contended that the respondent has the burden duty to state those criteria which it used. Learned counsel submitted that the respondent has failed to discharge this burden and that even if it did, such criteria are certainly outside what sections 91 of the 1999 Constitution stipulated.
Learned counsel argued that section 91 of the 1999 Constitution is the only instrument that empowered respondent to perform the delimitation and restoration of already existing State Constituencies, and that any other requirement other than that stipulated in the Constitution will render the action of the respondent invalid.
Learned counsel for the appellants maintained that there are 29 State Constituencies in Benue State before the respondent decided to recommend the restoration of 4 additional ones. If the approval of the National Assembly is obtained, then it will bring the number to 33 seats, which is the minimum number of seats allowed by the Constitution using the x 3 option. This will leave a shortfall of seven seats to attain the maximum number of seats which the respondent wanted to achieve by the restoration.
Learned counsel submitted that it was wrong of the respondent to seek approval of the National Assembly for the restoration, when it did not act under the provisions of section 114 which could have made the restored State Constituencies to be operational under section 115 of the Constitution.
Learned counsel submitted that the appellants have by paragraph 4(q),(t), (u), (v), (w)-(z) given the comparative breakdown of the population figures of Oju Local Government Area, with those of other Local Governments in Benue State from where the respondent recommended the restoration, showing clearly that Oju population is higher and ought to have been so treated by the respondent. He maintained that the respondent did not deny these averments.
Learned counsel for the appellants maintained that the only instance where the learned trial Judge made reference to any affidavit evidence of the appellants in his judgment is where he stated at page 140 line 17 of the record of appeal that the application is supported by 5 affidavit and 4 exhibits. Learned counsel argued that the court never made reference to the counter-affidavit of the respondent.
Learned counsel argued that the learned trial Judge completely ignored the rest of the four (4) supporting affidavits along with the exhibits in his review of the evidence before him. Learned counsel said the learned trial Judge referred to “annexures” to the supporting affidavit. Counsel submitted that the appellants have no annexures to their five supporting affidavits, but exhibits. He argued that the learned trial Judge displayed the inadequate evaluation of the evidence before him in his decision.
Learned counsel argued that the failure of learned trial Judge to properly and adequately evaluate the affidavit evidence before him and his improper appreciation of the case of the appellants led him to the wrong decision which is a miscarriage of justice. He urged the court to allow this appeal on this point alone.
Learned counsel for the respondent in his reply submitted that the learned trial Judge properly evaluated the evidence and came to the right conclusion when he held that the appellants did not prove that the Constituency delineation is due for review nor that the respondents used its discretion wrongly when it adopted the times 3 option in the delineation of State Constituencies.
Learned counsel maintained that the trial court reviewed the evidence and argument of counsel for the parties. He argued that the arguments of the appellants that their case was founded on sections 91 and 112 of the Constitution, but misunderstood by the trial court is not correct having regard to the opinion expressed by the trial court at page 148 lines 16-17 of the records of appeal.
He maintained that the trial court appreciated that the restoration of the suppressed State Constituencies has been completed vide exhibit INEC 1 at page 122-129 of the record of appeal and confirmed paragraph 4(m) of the affidavit in support of the originating summons at page 27 of the record. Exhibits 3 attached to the affidavit in support of the originating summons at pages 101-102 also confirmed it.
Learned counsel stated that the trial court further appreciated the evidence that the respondent opted for dividing the area of the State into 3 times the number of Federal Constituencies in the State as disclosed on pages 148-149 of the record of appeal.
Learned counsel for the respondent submitted that the appellants have not adduced sufficient evidence in support of their case to support a review of the decision of the trial court which properly dismissed the suit.
The court was referred to a previous decision of the trial court in suit No: FHAC/ABJ/CS/562/2004 which was delivered on the 13th day of January, 2005. The facts of that case are on all four with the case at hand yet the learned trial Judge failed to follow its decision.
It did not also give reason for not doing so or distinguished it with the case at hand. In that case, the trial court ordered as follows:-
“1. That having regard to the provision of sections 91 and 112 of the 1999 Constitution of the Federal Republic of Nigeria, the defendant acted improperly and unfairly in refusing or failing to include the suppressed State Constituency in Ushongo Local Local Government Area among the names of the suppressed State Constituencies it forwarded to the National Assembly for approval for restoration.
- That the defendant is hereby directed or compelled to restore the suppressed State Constituency in Ushongo Local Government Area, Benue State bringing the number of State Constituencies in Ushongo Local Government Area to two as previously existed from 1979 to 1993 Elections conducted by National Electoral Commission under the 1979 Constitution of the Federal Republic of Nigeria.”
The learned trial Judge should have made a similar order in the matter at hand as he had done in the earlier case moreso when in his view, the plaintiffs/appellants have a valid case. The learned trial judge said in his judgment at page 149 of the Record of Appeal, as follows:
“The applicant may have a valid request but they have not shown why the exercise of the discretionary of the defendant should be tempered with.
A population census is well under way in the country which could be a criteria for the review of the existing Constituencies. But in the absence of any reason to interfere in the exercise of the discretionary power of the defendant and in view of the fact that the composition as presently constituted conform with the requirement of the Constitution.”
It is not in dispute that the appellants never submitted any question for interpretation/determination to the trial court on sections 114 and 115 of the Constitution, again there is no where the respondent said there was a population census under way and the result of which could be used to review the State Constituencies.
These matters were introduced by the learned trial Judge suo motu.
The learned trial Judge never heard the appellants on these issues but went to decide on them to the detriment of the appellants. The action of the learned trial Judge violated the principles of fair hearing as enshrined under section 30 (1) of the Constitution of the Federal Republic of Nigeria 1999 and also the principles of natural justice.
See. Arubo v. Aiyeleru (1993) 2 SCNJ page 90 at 103, (1993) 3 NWLR (Pt. 280) 126; Secretary, Iwo Central Local Govt. v. Adio (2000) 5 SCNJ page 203 at 221, (2000) 8 NWLR (Pt. 667) 115; Dalko v. Union Bank of Nigeria Plc (2003) FWLR (Pt.18) page 1500 at 1524; (2004) 4 NWLR (Pt. 862) 123.
I am satisfied from the unchallenged evidence of the appellants as disclosed in the record of appeal that they met all the Constitution requirements to have Uwokwu State Constituency restored by the respondent. I hold that the decision of the learned trial Judge has occasioned miscarriage of justice.
The second issue for the determination in this appeal is also resolved in favour of appellants. This appeal is allowed and the judgment of lower court is set aside.
This court will however not order a re-trial but will evoke its powers under section 16 of the Court of Appeal Act, 1976 and grant the reliefs sought by the appellants.
It is hereby ordered that the respondent restore the suppressed State Constituency of Uwokwu in Oju Local Government Area as previously existed.
This appeal succeeds. There will be no order as to costs.
Other Citations: (2007)LCN/2166(CA)
