Rt. Hon. Michael Balonwu & Ors. V. Governor of Anambra State & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
VICTOR AIMEPOMO O. OMAGE, J.C.A.
This is an appeal from the decision of C. O. Nweke Judge of the Anambra State High Court delivered on 17th September 2007 at Awka in the Anambra State of Nigeria. The trial judge in a considered judgment dismissed the appeal which was commenced by the plaintiff by originating summons. The Plaintiff was dissatisfied with the decision of the court below. He has filed this appeal.
In the suit, the plaintiff seeks the following declarations:
“1. That upon the interpretation of Section 105(1) and (3) of the 1999, Nigerian Constitution, the four year terms of the plaintiff commenced upon the proclamation of the holding of first session of the House of Assembly of the State by the person elected as Governor of the State who is His Excellency Mr. Peter Obi on the 20th day of March 2006.
- A declaration that in keeping with Section 105 (1) and (3) of the Constitution of Nigeria 1999, the first session of Anambra State House of Assembly after the said proclamation by the elected Governor of Anambra State who is Mr. Peter Obi took place on 21st March 2006, and shall end and be dissolved by the Governor of Anambra State on 20/3/2010; after the expiration of four years.
- A declaration that the proclamation that the 1st session of Anambra State by Dr. Ngige and Dr. Andy Uba who are not elected governors of Anambra State is unconstitutional ultra vires null and void.
- A declaration that the only persons who shall sit as Honourable members of the Anambra State House of Assembly shall be the Honourable members of the Anambra State House of Assembly duly elected, who upon the proclamation for the holding of the first session of the House of Assembly of the State were entitled to and indeed participated in the first session of Anambra State House of Assembly which took place on 21st March 2006.
- An order that the four years tenure of the plaintiffs at Anambra State House of Assembly commenced upon the proclamation for the holding of the first session of the House of Assembly of the State by the person elected as Governor of, the State who is His Excellency Mr. Peter Obi on the 20th day of 2006, and in accordance with Section 105(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 the first session of the Third House of Assembly of Anambra State commenced after the said proclamation on the 21st day of March 2006 and their tenure shall terminate on the 20th day of March 2010.
- An order that the only persons who shall sit as Honourable members of Anambra State House of Assembly shall be persons duly elected, who upon the said proclamation for the holding of the first session of the House of Assembly were entitled to and indeed participated in the first session of the Anambra State House of Assembly which took place on 21st March 2006, being the plaintiff.
- An order that the defendant shall direct the Anambra State Police Commissioner to ensure that the plaintiff shall continue unabated with their functions as honourable members of Anambra State house of Assembly until 20th March 2010.
- An order of injunction restraining the defendant from issuing a proclamation for the holding of first session of Anambra State House of Assembly with respect to those persons purportedly elected as members of the House of Assembly on 14th April 2007.
- An order of injunction restraining those persons who are presently occupying Anambra State House of Assembly who purport to be elected on the 14th April 2007 their servant, agent and otherwise to vacate the premises of Anambra State House of Assembly until after the 20th March 20I0 when the tenure of the plaintiffs shall terminate.”
The defendants in the court below are the current members sitting in the House of Assembly of Anambra State. They applied to be joined and were joined by order of court as the 2nd-30th defendants. The people who contested election in the 14th April 2007 election who did not succeed at the election also sought to be joined as defendants in the suit, and were joined as the 31st-34th defendants. Their only claim to be so joined is that they took part in the 14th April 2007 election and they lost. They are described thus in the suit “For themselves and as representing other candidates who contested 14th April 2007 election for all the 30 seats of Anambra State House of Assembly for the session covering June 2007 to June 2011 excluding those candidates who are not in support”. There is no such thing as session June 2007- June 2011.
In their appeal the appellants who sued the Governor as the 1st defendant and the latter did not file any process in the court below, and did not file any brief for the respondent. The immunity of Governor being acknowledged. The appellants filed six grounds of appeal against the judgment of the lower court which dismissed the entire appeal. The appellants formulated four issues for determination of the appeal. The issues need to be recorded and identified at the onset –
(1) Was the lower court right by not giving Section 105(3) of the Constitution of the Federal Republic of Nigeria 1999 its ordinary meaning when interpreting same despite the fact that the court decided that His Excellency Mr. Peter Obi is the elected Governor of Anambra State.
(2) Are the actions of Dr. Ngige & Dr. Andy Uba saved in law and does the doctrine of necessity and implied mandate validate their proclamation of the first sitting of Anambra State House of Assembly and was the proclamation of Governor Obi issued only out of abundance of caution.
(3) Did the lower court formulate issues not joined by the parties when the court held that “Anambra People knew that Chris Nwabueze Ngige passed through this State as a Governor” and that “It was only when Dr. Chris Ngige left the scene that members of the House started to act like sheep without shepherd. They ended up, impeaching the unimpeachable” formulated from grounds 3.
(4) Did the lower court err in law by wrongly interpreting the phrase “shall have power”, erroneously relying on the decision of Umar v. Governor of Kaduna State & ors. (1981) 2 N.C.L.R 689 and by giving a wrong meaning to Section 10 of the Interpretation Act.”
Parties filed their brief according to the Civil Procedure Rules of Anambra State, after joining issues. Before I state the position of each of the competing party I wish first to state the provision of the 1999 Constitution of the Federal Republic of Nigeria Section 105(1) and (3) relevant to this appeal. It states:
“(1) A House of Assembly shall stand dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House. (2) If the federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections the National Assembly may by resolution extend the period of four years mentioned in sub-section (1) of this Section from time to time but not beyond a period of six months at anyone time. (3) Subject to the provisions of the constitution, the person elected as the Governor of a state shall have power to issue a proclamation for the holding of the first session of the House of Assembly of the state conceived immediately after his being sworn in or for its dissolution as provided in this Section.”
It is well to note that in the sub-section 3 of 105, the power of a governor to make the proclamation, and it is also subject to other provisions of the constitution for example sub section (1) of Section 105 may limit the power of the governor to make proclamation if by operation of the law in sub section (1) the tenure of four years has determined, the tenure of the house. The provisions in 105(2) is a direct order that “the house shall stand dissolved at the expiration of four years”; unless the federation is at war etc. See the provisions in Sub-section 2 of Section 105, though and despite the fact that the person elected as the Governor shall have the power to issue proclamation of the house. He can only issue state proclamation if there was no previous proclamation issued by his predecessor in office.
It is also pertinent to state before commencement of the issues, the provisions of Section 10. The Interpretation Act Cap 123 Laws of the Federation of Nigeria, it provides thus- “Where an enactment confers a power or imposes a duty, the power may be exercised and the duty performed from time to time as the occasion requires”. (2) An enactment which confers power to any act shall be constituted as also conferring power, all such other powers as are occasionally necessary to enable that act to be done or are incidental to do during its tenure.”
In the cause of the determination of the issues to be stated below, I will need to make references to the provisions of the statutes above. In this case the appellants appeal against the judgment of the court below is founded on the four issues formulated by the appellants which I have already stated above, the facts of the appellants claim in the court below are as follows: these are contained on page 229 and 230 of the printed record as congealed by the learned trial judge. That the plaintiffs were elected into the office of membership of the Anambra State House of Assembly in the year 2003. On 5th June 2003, the then Governor issued an order of proclamation, which he made on the sitting members of the house on 9th June 2003. The elected Governor in 2003 was Dr. Chris Nwabueze Ngige. The members of the house took the oath of office, and oath of allegiance; and the house sat for several months before the Court of Appeal Nigeria declared in the appeal that reported in (2006) 14 NWLR p.1, the election of Dr. Chris N. Ngige is nullified. Dr. Ngige then vacated the office. Mr. Peter Obi was then sworn in as the next governor of Anambra State, initially, but without specifically so stating, for the unexpended tenure remaining for a governor of the state. On being sworn in, Mr. Peter Obi, as the new elected Governor issued an order of proclamation in accordance with sub-section 3 of Section 105 of the Nigeria Constitution 1999, though the Governor needed not to have done so. He nonetheless issued an order for proclamation to sitting members who have expended part of their four years tenure. The second proclamation of the Anambra State House of Assembly by His Excellency Mr. Peter Obi was issued on 21st March 2006. His Excellency Mr. Peter Obi thereafter proceeded to court to retrieve and claim the period of years beginning from 29th May 2003 when he should have been sitting as the Governor of Anambra State. The Supreme Court obliged Mr. Peter Obi, in its judgment reported in the 2007 issue of Nigeria Weekly Law Report, Vol. II at page 4. The lead judgment of Katsina Alu JSC, in summary reads, (1) That the office of the Governor of Anambra State was not vacant as at 29th May 2007 (2) It is ordered that the 5th respondent Dr. Andy Uba should vacate the office of the Governor of Anambra State with immediate effect to enable the plaintiff/appellant Mr. Peter Obi exhaust his term of office. The court puts a rider as follows- “for the avoidance of doubt this judgment relates only to the office of the Governor of Anambra State”. The order of the Supreme Court in holdings 1 & 2 above was necessary because when the claim of Mr. Peter Obi was still going through the court to retrieve the period of Governorship of Anambra State unexpended by Mr. Obi, the INEC without regard to the pending proceedings in court against INEC. The INEC proceeded to conduct another election for Governorship of Anambra State, and returned as Governor of Anambra State Dr. Andy Uba. This I view is why the Supreme Court issued orders 1 & 2 in the judgment. Meanwhile, when Dr. Andy Uba was elected and sworn in as the Governor of Anambra State, Dr. Andy Uba also needlessly proceeded to issue a proclamation on the Anambra State House of Assembly.
The members of the Anambra State House of Assembly now issued a writ by originating summons for a declaration that on the proper interpretation of sub-section 3 of Section 105 of the 1999 Constitution, (1) which proclamation they asked, of which governor is binding on them; (2) If the court rules that the proclamation issued by His Excellency Peter Obi, then by the proclamation of 17th March 2006, their tenure would not have begun on 9th June 2003 when they were sworn in, but on 17th March 2006, when Mr. Peter Obi issued a proclamation order; to enable the term of the members of the Anambra State House of Assembly to terminate on 17th march 2010, when the term of Mr. Obi would expire. The reasoning of the appellants is contained in the following submissions made by them- (1) That because the election of Dr. Ngige was nullified, the order of proclamation issued by Dr. Ngige was also nullified (2) That the order of nullification issued by Dr. Uba was also nullified since Dr. Andy Uba was chased out of the seat of Governor of Anambra State by the Supreme Court. That it is only the order of proclamation issued by Mr. Peter Obi that is not nullified, and that it binds the appellants and they reasoned and submitted that the order of proclamation by itself contains within it an implication for extension of the tenure of the period of the membership of the Anambra State House of Assembly. My lords, an order of proclamation does not contain such benefit to the increase of the duration of the house, since to imply so is to defeat the clear provisions of sub-section (1) of Section 105 of the 1999 Constitution which is a peremptory order for the determination of the life of the membership of the Anambra State House of Assembly. But I am ahead of the issues. My lords, the respondents adopted the same issues formulated by the appellants. By respondents, I refer to the 1st set of respondents 1st-30th. The 2nd set of Respondents should not be in this court, perhaps I should now determine the participation of the 31st-34th respondents in this proceeding before I go on to consider the issues of the real parties in this appeal.
It is the appropriate time to do so. The second set of respondents are described as acting “for themselves and as representing other candidates who contested April 14th 2007 election for all the 30 seats of Anambra State House of Assembly for the session covering June 2007 to June 2011 excluding those candidate who are not in support” the refusal of those not in support to join in the case should be commended. The issues for determination in this appeal concerns only elected members to the house of assembly not candidate in the April 14 2006 election. There is no interest in court for the June 2007 – June 2011 as claimed by the 31st – 34th alleged respondents. In one of its relief claimed by the appellants in his originating summons relief No.7, the appellants identified the interests of the class of people for whom he seeks relief. It does not include relief for non elected members of the Anambra State House of Assembly. The 31st – 34th respondents are not members of the elected Anambra State House of Assembly. So there is no identification of interest of 31st-34th respondents with the plaintiff/appellant and no fresh claim by 31st – 34th respondents was before the court below. How is the 31st-34th respondents affected by the judgment of the lower court, when the 31st-34th respondents are not sued by the appellants or as plaintiffs in the court below.
It is not specified in the appeal joined to by the 31st-34th respondents and it is not apparent on the record. My lords by the provisions of Section 242 of the 1999 Constitution the Court of Appeal may entertain an appeal from the High Court at the instance of any person having an interest in the subject matter of the appeal. There is no interest in the appeal shown by the 31st – 34th respondents.
It is settled law that a party maybe joined in a suit if he has shown how his interest will be or is affected by the decision of the court, as at the time the appeal in the court below was filed and pending no interest of the 31st-34th respondents has been shown, and no claim has been made in the suit in the interest of the 31st-34th respondents. See Aromire & ors. v. J. J. Awoyemi (1972) 1 All N.L.R. (Pt.1) at 101; The suit and the appeal is not for future interest but for a live established interest. The joinder in the appeal of 31st-34th respondent is incompetent, and the participation in the appeal of 31st-34th respondents is refused. The brief filed by the so called second set of respondents is incompetent; it is struck out with the cross appeal filed by 31st-34th respondents.
My lords I wish next to deal with the preliminary objection filed by the 2nd-30th respondents namely that ground 3 of the grounds of appeal filed by the appellant is incompetent as the expression of the learned trial judge did not embody the resolution of the court, (and) cannot be an issue on appeal”. The respondent urged that the ground 3 of the appellants and the issue formulated therein be struck out. The issue 3 reads- “Did the lower court formulate issues not joined by the parties when the court held that “Anambra people knew that Chris Nwabueze Ngige passed through this state as Governor and that it was only when Dr. Chris Ngige left the office that members of the house started to act like sheep without shepherd. They ended up impeaching the unimpeachable” which affected the courts judgment. The respondent, not only filed a motion objecting to the inclusion of the verbiage allegedly credited by the appellant to the trial court, the counsel for respondent included his opposition to Issue 3, founded on the grounds of appeal made by the appellant. Even by the appellants’ admission, the issue did not arise from and does not become part of the ratio decidendi of the judgment of the court only on which the appeal should be founded. The appellant in his reply brief imputed that the objection of the respondent to the inclusion of the statement as a ground of appeal strengthens his conviction that the alleged statement constitute a formulation of the statement as a ground of appeal. In my view the appellants counsel forgot that the said ground 3 was not a subject of contest by the parties in the court below.
A ground of appeal must be directly relevant and must derive directly from the issues determined in the judgment of the court below. See Shuaba v. Union Bank of Nigeria Plc. (2001) 1 SCNJ. An appellate court limits itself only to issues determined by the court below. See ANLA v. AYANBOLA (1977) 4 SC. 63. An appeal is not a new action, it is a continuation of the issues and matters argued in the court below, on which the court below has made a ruling. Eyofordomi v. Okonkwo (1982) 11 SC; Ogundari v. Araba (1978) SC.6-7. See also Ogolo v. Fubara (2003) 1 NWLR (Pt.83I) p. 231 at 237. Consequently a ground of appeal on which an issue is formulated which does not derive from the ratio decidendi of the judgment of the court below is incompetent. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172.
The comments of the trial court however founded, which is not contained in the basis of the judgment and decision of the court below is a mere observation and cannot form a ground of appeal.
The trial court is not a litigant in the pending case and the statement is not a subject of contest in the court which is argued by the counsel in the court below. Ground 3 and the issue formulated on it is incompetent, it is struck out of the proceedings.
My lords, I will now deal with Issues 1, 2, and 4 in the appellants’ brief to which the respondents have filed brief in absolute apposition to the arguments of the appellants. I wish to commence the treatment of this segment of the appeal by expressing the opinion of this court as contained in my judgment on the issue 4 in the appellants brief to which the 2-30 respondents also responded in the brief of Arthur Obi Okafor Esq. for the respondent. The question is whether the lower court erred in law in wrongly interpreting the phrase “shall have power”, etc. The trial court had ruled in his judgment before the court, that the phrase “shall have power” merely inform the donee of the power his ability in relation to the issue in contest and under Section 10 of the interpretation Act, the powers is exercisable as and when due or necessary. The phrase is not mandatory. The respondents counsel in the submission in his brief agrees with such definition.
It is therefore correct to cite in support of the submission as authority the decision of the court as in Umar v. Governor of Kaduna State & ors. Reported (1981) 2 NCL 689. The word “shall” used without more may be one or all of these mandatory directives, or persuasive, it would depend on the circumstance in which it is used. See Ishola v. Ajiboye (1994) 7-8 SCNJ 1 per Iguh JSC. For instance in the 1979 Constitution, it was ruled by the Supreme Court that Section 238 thereon was used not in a mandatory or directory manner, but in a persuasive sense.
See Karto v. Central Bank (1991) 12 SCNJ. In sub-section (1) of Section 105 of the 1999 Constitution which subscribe thus: “A house of Assembly shall stand dissolved “at the expiration of four years” etc. The word shall therein used is mandatory. It allows for no alternative. The various houses of assembly in Nigeria shall necessarily stand dissolved when four years have been concluded and their tenure ends. What is left uncertain is the date of the first sitting of the house. However when in sub-section 3 of Section 105 of the 1999 Constitution subscribes thus: “Subject to the provisions of this Constitution the governor of a State shall have power to issue a proclamation for the holding of the 1st session of the house of assembly of the state house concerned immediately after his being sworn in or for its dissolution” etc. The phrase “shall have power” therein used is only to inform the elected Governor of the power he possess as a governor, an attribute of his gubernatorial power and position. There is no compulsion to use the power other than as it is necessary. The word shall therein used is not compulsory; it is only directory when it needs to be used. Shall have therein used is already confined and qualified by two conditions, “subject to the other provisions of the same constitution”, after he is sworn in, not compulsorily when he is sworn in as Governor, unless he may find the need to exercise the power to make proclamation for the dissolution of the house. For example should a need to dissolve the house of assembly if political exigency demands such exigency. By the phrase “shall have power” used in the circumstance after his being sworn in, show that a Governor who has not being sworn in as Governor may not issue a proclamation to the house. The phrase shall have power in the event does not impute that the Governor must issue a proclamation once he takes his oath of office if there exists a functioning house of assembly which a previous governor has proclaimed into life.
In an ideal situation, the membership of the house of assembly would not have had any sitting at the time a Governor takes his own oath of office. The House of Assembly may have congregated in the house, and await the taking of oath of the Governor Section 105(3) would then be properly applied and the Governor may now make a proclamation of the first sitting of the house of assembly now inaugurated by the proclamation of the Governor. My lords, in my view, once such a proclamation has been made by a governor to bring into life first sitting of house of assembly, the relevant house of assembly has begun, there would be no need for further proclamation for another first sitting; as the sitting of the house has already commenced. The situation advocated by the appellant of having another first sitting after the House of Assembly of Anambra State had been sitting for over two years makes a ridicule of the respected procedure in an honourable house. It is not feasible. All the house need to do is to disable the ruling governor, then the house will have an endless session when a new governor is unable to proclaim a new fresh session. The word proclamation therein simply announces the first assemblage of the house of Assembly; not otherwise it is not intended for use, when the house had previously been proclaimed by a Governor. For the several reasons stated above, the appellant is in error and has misconceived the purport and meaning of the phrase shall have power when the counsel submitted that the phrase is directory, it is not.
I resolve the issue against the appellant.
Issues 1 and 2 in the appellants’ brief ask whether the lower court gave proper interpretation to the provisions of Section 105(3) of the 1999 Constitution, on whether the action of Dr. Ngige and Dr. Andy Uba are saved in law.
The objective of the two questions contained in the issues of the appellant is to create opportunity for the appellant to justify his submissions that it is the second coming of His Excellency Mr. Peter Obi which initiated the commencement of sitting of the Anambra State House of Assembly. The respondent have denied this and submitted that at most, assuming that the tenure not the election of Dr. Uba, and Dr. Ngige are called in question by a nullification by the court of Appeal, the action taken by the two governors remain effective in law, at the court the actions of the two governors at different times are saved by the doctrine of regularity and are de facto effective since the said Dr. Ngige and Dr. A. Uba were infact before the annulment of their election regarded as de jure Governors. If not so, at least defacto by virtue of the fact, that the two were sworn in as Governors.
This is also the decision of the court below with which the appellant was dissatisfied. In this appeal on this issue, Dr. C. Ngige was returned as the lawful Governor of Anambra State at the time before the Court’s decision nullified his election following the findings of the Governorship Election Tribunal. Governor Ngige took on his initial appointment an oath of office which Mr. Obi took; Governor Ngige exercised for two years all the functions of a Governor. Nothing in law has nullified those actions, though his appointment has been nullified. All the acts performed by him in that period as Governor are legally performed. The nullification of his election has made him to cease the performance of those functions as a Governor, the actions made by him at a time before his nullification remains valid and enforceable at law. To hold otherwise will engender chaos. In (2006) 14 NWLR, in the appeal filed by Dr. Ngige against the nullification of his election as Governor of Anambra State by the Governorship Election Tribunal, the issue of the performance and tenure of Governor Ngige was not a subject or issue for determination. What came for determination was the propriety or at worse legality of Dr. Ngige remaining in office, this why Dr. Ngige remained in office despite the decision of the Tribunal until an appellate court decided and determined the election of Dr. Ngige. The judgment was considered in the lead judgment of R. D. Mohammed, J.C.A. The various and several legislations made by the House of Assembly which were assented to by the Governor as an issue from the house of Assembly remain valid, legal and binding and are not set aside or rendered null and void. The reasons are many; the laws were not made by Dr. Ngige alone. In accordance with parliamentary practice many of the Legislation affecting Anambra State originated from the Anambra State House of Assembly. No matter what procedure was used in Anambra State, the Legislations originated from the house in Anambra State, the Governor merely assented to each of them to make it law. There are also various appointments made in the over two years spent when or Ngige was Governor, all these remain legally made and binding, though the Governor has ceased to be one, The same principle applies in the case of Dr. Andy Uba. The respondents brief shows that Dr. Ngige made an order for proclamation of the house of Assembly after he took his oath of office, that proclamation created the commencement of the first sitting of the Anambra State House of Assembly, Thereafter Governor Ngige made the appropriation law which remain in force and enabled the public servants of Anambra State to be paid their salary, These legislations are still in operation in Anambra State, it leaves little to imagination why the former members’ of the House of Assembly are saying and submitting that only the proclamation made by Dr. Ngige as governor is null and void, The proclamation order issued at the commencement of his tenure by Dr. Ngige for the first sitting of the house is valid; and the subsequent order issued by Mr. Peter Obi is needless, because the member of House of Assembly was already sitting. A new proclamation made by Mr. Peter Obi to the house does not at all affect the tenure of the Anambra State House of Assembly which should terminate at the expiration of four years from the date of its first sitting in 2003. The enlargement of time given by the Supreme Court to Mr. Peter Obi in (2007) 11 NWLR 654 as specifically stated applies to Mr. Peter Obi alone. The judgment expressed it in these words “for the avoidance of doubt this judgment relates only to the office of the Governor of Anambra State”.
The appellant has made reference to obiter dictum made in the judgment on the interpretation to be given to the decision in the case of Ngige v. Obi (2006) 14 NWLR. These statements are not contained in the judgment that determined the election of Dr. Ngige. The statements are not contained in the appeal (2006) 14 NWLR, they are taken out of con and they are not relevant to the issue before the Court of Appeal in that decision which determined the election of Dr. Ngige. The phrase null and void on determination of Dr. Ngige appeal was not used whatsoever concerning the tenure and acts of Dr. Ngige when he was Governor of Anambra State. As in the example of omitting the proviso of Katsina Alu, JSC. that the enlargement of terms granted to Mr. Obi applies only to the Governorship position of Anambra State. My lord Justice Aderemi who made contribution to the judgment (2006) 14 NWLR did not make any reference to the acts of Dr. Ngige as null and void and Justice Tabai JSC did not participate in the judgment. I find such practice by appellants’ counsel dishonest, particularly when statements of Supreme Court Justices are quoted out of con. However, I am unable to agree with the submission of the appellant that the trial court in this case in the court below failed to give a correct interpretation to the provisions of sub-section (3) of Section 105 of the Constitution.
I have arrived at the conclusions above because I have read the decision in Ngige v. Obi. I have seen nowhere therein where the tenure of Dr. Ngige as Governor was declared null and void; the decision only concerns the nullification of the election of Dr. Ngige as Governor of Anambra State after over two years of the Governorship of Dr. Ngige whereas the binding force in the judgment is the issue determined in the judgment, there is no pronouncement of on the actions, decisions and tenure of Dr. Ngige. See Anambra State Government v. Marcel Nwankwo (1995) 9 NWLR (Pt4I8) at 247; also Oyewumi v. Ogunisan (1990) 3 NWLR (Pt.137).
It will be unwise and unsafe to declare null and void, the decision and actions taken and performed as Governor in the tenure of Dr. Ngige and Mr. Obi in those years of their governorship because to do so will cause a distrust of subsequent decisions of the government functionaries and create a lawless society, to do so will certainly open a floodgate of fruitless litigation. A government is a continuing, whether or not its officers are legally appointed. The trial court in its judgment has formulated a way out to declaration of its validity validly when he proposed that at worst the decision of the Governor while in government before he was removed be treated as action done when the Governor was a defacto Governor; and submits that it should make the action legal. It is indeed a statement of fact; the only constant to the proposition is that the time Dr. Ngige was exercising the power of a Governor, there was no opposition to the exercise of his power; after all before the nullification, the Governor was lawfully sworn in. The acts performed as the Governor by Dr. Ngige, was legal and enforceable at law. In sum, I resolve issues 1 & 2 against the appellants and dismiss the appeal.
I award in favour of the Respondents the sum of ten thousand Naira (N10,000.00) as costs.
Other Citations: (2008)LCN/2834(CA)
