Paul Iyorpuu Unongo V. Aper Aku & Ors. (1983)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C. 

Both the appellant and the 1st respondent were candidates in the governorship election that was held in Benue State on 13th August, 1983. The 1st respondent was declared winner by the 3rd respondent. Consequently the appellant brought an election petition in Benue State High Court at Makurdi against the respondents. In the petition the appellant prayed thus:

“….that it may be determined that the said Aper Aku was not duly elected or returned and that the votes purportedly cast for him in the Ankpa, Oju, Vandeikya, Kwande, Katsina-Ala, Bassa, Dekina, Idah and Gboko Local Government Constituencies were void, and that the said Paul Iyorpuu Unongo was duly elected and ought to have been returned.

In the alternative your petitioner prays that the whole election conducted on the 13th day of August, 1983 be declared null and void and a fresh election ordered.”

In his reply the 1st respondent raised the following defences in paragraph 13 (ii) thereof:

“13 the 1st respondent shall at the trial of this petition contend that;

(ii) the entire petition be struck-out in that –

(a) by virtue of section 267 (1) of the Constitution of the Federal Republic of Nigeria, 1979 the 1st respondent as incumbent Governor of Benue State cannot be sued;

(b) the petition is incurably defective by reason of non-compliance with the provisions of section 125 of the Electoral Act 1982.”

The 2nd and 3rd respondents also raised inter alia the following defence in paragraph 9(3) of their joint reply –

“9. At the hearing of the petition the Honourable Tribunal shall be urged to:

(3) To (sic) strike out the entire petition on the ground that it is not proper before the court as it fails to comply with the mandatory provisions of section 125 of the Electoral Act by not conforming with Form EC 10 in the Schedule to the Act.”

When the petition came up for hearing before the High Court, these defences were raised by the respondents as preliminary objections. The objections were upheld and the petition was struck-out. Subsequently an appeal was filed against that decision by the appellant in the Federal Court of Appeal.

The appeal was allowed in its entirety and when the Federal Court of Appeal came to consider what consequential order it should make it made the following observations (as per Ogundare, J.C.A.):