Obih V Chief S. O. Mbakwe (1984)

LawGlobal-Hub Lead Judgment Report

BELLO, JSC

The 1st respondent was the incumbentGovernor of Imo State. He stood for re-election to the office on 13th August,1983 and won. The petitioner, who was one of the defeated candidates, filed anelection petition in the High Court of Imo State on 26th August 1983 againstthe 1st respondent and 2 others complaining against the return of the 1strespondent. Both the High Court and the Federal Court of Appeal dismissed hispetition.

At the hearing of his appeal before us on 26th October 1983, apreliminary objection was taken on behalf of the 1st respondent that being theincumbent Governor of Imo State at the material time, the 1st respondent wasimmuned from legal proceedings by section 267 of the Constitution, which provided:

PAGE| 2 ‘267. (1) Notwithstandinganything to the contrary in this Constitution, but subject to subsection (2) ofthis section- (a) no civil or criminal proceedingsshall be instituted or continued against a person to whom this section appliesduring his period of office; (b) a person to whom this sectionapplies shall not be arrested or imprisoned during that period either inpursuance of the process of any court or otherwise, and (c) no process of any court requiringor compelling the appearance of such a person shall be applied for or issued: Provided that in ascertaining whetherany period of limitation has expired for the purposes of any proceedingsagainst a person to whom this section applies no account shall be taken of hisperiod of office.

(2) The provisions of subsection (1)of this section shall not apply to civil proceedings against a person to whomthis section applies in his official capacity or to civil or criminalproceedings in which such a person is only a nominal party. (3) This section applies to a personholding the office of President or Vice-President, Governor or Deputy Governor;and the reference in this section to ‘period of office’ is a reference to theperiod during which the person holding such office is required to perform thefunctions of the office.’ We over-ruled the preliminaryobjection and heard the appeal on the merits.

We reserved our reasons for doingso to be given today. The only issue for determination waswhether an election petition was ‘civil proceedings’ within thepurview of section 267 and other related sections of the Constitution. ChiefWilliams for the 1st respondent contended in the affirmative while Dr. Odje forthe appellant in reply submitted that an election petition was not ‘civilproceedings’ and was not covered by the immunity accorded to a Governor bysection 267. In the course of their submissions,learned counsel referred us to Onitiri v. Benson (1960) 5 FSC 150 at 153wherein the Federal Supreme Court in considering the jurisdiction of the HighCourt of a region to adjudicate on election petitions under the Nigeria(Constitution) Orders in Council 1954 to 1959 stated that the jurisdiction ofany tribunal to deal with such matters as election petitions was a jurisdictionof a very special nature which did not carry with it the ordinary incidents ofappeal in an ordinary civil case.

In Oyekan v. Akinjide (1965) NMLR 381at 383 this court expressed the view that under the 1963 RepublicanConstitution, the proceedings on an election petition were special proceedingsfor which special provisions were made under that Constitution. In the same vein as in the formerConstitutions, the 1979 Constitution made special provisions for thejurisdictions of the courts to hear and determine election petitions at thefirst instance and on appeal. Section 236 of the Constitution conferred on theHigh Court of a state, unlimited jurisdiction to hear and determine any civilor criminal proceedings subject to the provisions of the Constitution. PAGE| 3 Section 237 then conferredjurisdiction on the competent High Court to deal with election petitions. Thesame distinction was manifested in the appellate jurisdictions of the FederalCourt of Appeal and of this court. While appeals as of right were covered bysection 220(1) (a) to (e) and section 213(2)(a) to (d) in the Federal Court ofAppeal and in this court respectively, section 220(1) (f) and section 213(2)(e)conferred the right of appeal to the Federal Court of Appeal and to this courtin respect of election petitions. From the provisions of theConstitution referred to above, I am of the opinion that election petitionswere special proceedings completely divorced and separated from civilproceedings within the context of section 267 of the Constitution andconsequently a Governor was not immuned from legal proceedings against him inrespect of an election petition. SOWEMIMO, CJN.: I have had the opportunity of reading in draft thejudgment of my brother Bello, JSC and I agree with him.

The question of immunity was raisedon the basis that the first respondent had since 1st October, 1983 been swornin as the new Governor. The swearing in was not done because he had succeededin the election for the post. He was only an incumbent Governor until asuccessor was appointed. In the circumstances therefore, the point raisedhaving been fully discussed by my brother Bello, JSC, does not warrant anyfurther consideration. The point is therefore unavailable to debar this courtfrom sending this election petition for retrial on the merits.  

IRIKEFE, JSC.: The preliminary objection raised in this matter wasoverruled by us on 26th October, 1983. Thereafter, the appeal itself wasfinally disposed of. The issues canvassed in regard to the said preliminaryobjection are now matters already overtaken by events and as such furtherreasons are no longer called for. OBASEKI, JSC.: At the hearing of this appeal on the 26th day of October,1983, Chief F.R.A. Williams, SAN, counsel for the 1st respondent raised thepreliminary objection notice of which he had given in writing, to thejurisdiction of the Supreme Court to grant the relief claimed in the notice ofappeal. The objection in full reads:

‘The petition which is thesubject matter of the appeal and the proceedings in respect of the same wereunconstitutionally commenced or continued against the 1st respondent.Accordingly, the relief claimed in the notice of appeal is one which theSupreme Court has no jurisdiction to grant.’ The grounds on which the objection isfounded are threefold and are as follows: ‘1. The proceedings in respectof the aforesaid petition were instituted and continued against the 1strespondent in contravention of the provisions of section 267(1)(a) of theConstitution of the Federal Republic of Nigeria.

PAGE| 4 2. The said petition was presented to the court and served on the 1strespondent in contravention of the provisions of section 267(1)(c) of the Constitutionof the Federal Republic of Nigeria. 3. Further and in the alternative,the 1st respondent having been declared elected and sworn in as Governor of ImoState for a second term of office (1983 – 1987) he is entitled to theimmunities from legal process, proceedings conferred on the holder ofsuch office under section 267(1) of the Constitution of the Federal Republic ofNigeria.’ The 1st respondent was electedGovernor of Imo State in 1979 for a period of 4 years from 1979 October 1 to1983 September 30th. Pursuant to the provisions of the Constitution of theFederal Republic of Nigeria 1979 hereinafter referred to as the 1979Constitution, the 1st respondent was nominated by his party the NPP to contestthe election to the office of Governor of Imo State for the period October 1,1983 to September 30, 1987.

The petitioner/appellant wasnominated by his party the NPN to contest the said election against the 1strespondent and other candidates. The election was held on 13th August,1983 and the 3rd respondent declared the 1st respondent duly elected orreturned. The petitioner was dissatisfied withthe conduct of the election and in exercise of the right conferred on him underthe 1979 Constitution and the Electoral Act, 1982, he presented a petition tothe High Court of Imo State praying that ‘it may be determined that theelection is void and that fresh election be ordered.’ The petition was filed on the 25thday of August, 1983.

A similar objection was raised before the High Court bymotion filed on the 14th day of September, 1983. As the petition was not heard beforethe 30 days time bar placed on the conclusion of the hearing and determinationof election petitions by section 140(2) of the Electoral Act 1982 expired, theHigh Court of Imo State on the 17th day of September, 1983 declared thepetition null and void and dismissed it. That section together with section129(3) of the Electoral Act 1982 were declared unconstitutional, null and voidby this court on the 30th day of September, 1983 and reasons for the judgmentgiven on the 25th day of November, 1983 in the case of Paul I. Unongo v.Aper Aku & Ors. SC.95/1983. Before then the appellant hadunsuccessfully appealed to the Federal Court of Appeal. Against the dismissalof his appeal by the Federal Court of Appeal, the petitioner/appellant hasbrought this appeal. The relief the appellant sought from the Supreme Court was ‘to reverse and set aside thedecision of the Federal Court of Appeal and to remit the case to the High Courtfor continuation of hearing by the Election Court.’

PAGE| 5 After hearing counsel on theobjection, I overruled and dismissed the objection reserving my reasons tilltoday. We then proceeded to hear the appeal. As the appeal had substantialmerit in it, we allowed the appeal and granted the relief sought. I now proceed to give my reasons foroverruling and dismissing the preliminary objection. Section 267(1), (2) and(3) of the Constitution on which the objection is founded reads:- ‘(1) Notwithstanding anything tothe contrary in this Constitution, but subject to subsection (2) of thissection-  (a) no civil or criminal proceedings shall be institutedor continued against a person to whom this section applies during the period ofhis office;