S. O. Ukpai V. U. O. Okoro & Ors (1983)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C.

The point, which has been taken in this appeal, is of considerable constitutional importance. It raises the issue of the jurisdiction of the State High Court in dealing with matters of election petition having regard to the provisions of the Constitution and the Electoral Act 1982. The facts of the case in so far as they are relevant to the point in issue are as follows:

Three persons, Shedrack Orji Ukpai, a member of the Nigerian Peoples Party (N.P.P.), Udo Oji Okoro of the National Party of Nigeria (N.P.N.), and T. C. Okogere of the Unity Party of Nigeria (U.P.N.), were candidates for the election for the Afikpo Federal constituency to the House of Representatives. The election was held on 27th August, 1983 when the returning officer, one Ewa Edu, declared Udo Oji Okoro of the N.P.N. as being the duly elected member for the constituency.

Shedrack Orji Ukpai was dissatisfied with this return made by the returning officer and he filed a petition in the High Court registry of Imo State, at Umuahia in the Umuahia Judicial Division. This was on 9th September, 1983. However, on 14th September, the returning officer, who was the 3rd respondent to the petition, filed a motion seeking an order of the court to strike out or dismiss the petition on the ground among others, that- The petition was not properly before the court “as the same was filed in contravention of section 119(2)(c) of the Electoral Act which provided that (sic) ‘c’ in any case involving the membership of or the seat of a person in a legislative house, the High Court of the State where the Senatorial district, Federal constituency or State constituency of that member or person is located.”

The returning officer claimed that in this case the Afikpo Judicial Division of the High Court of Imo State and not the Umuahia Judicial Division was the proper forum or to use the exact wording of the motion, “the proper court.”

Also, in the reply filed by Udo Oji Okoro, the 1st respondent to the petition, he said

“7. The 1st respondent avers and shall contend at the trial that this petition was wrongly instituted before the High Court having jurisdiction in the Federal constituency for which the candidate, ‘to wit the 1st respondent’ was elected.”

Now, the court dismissed the motion filed by the returning officer seeking a striking off of the petition, on the ground of noncompliance, by the applicant, with Order 35 rule 4 of the High Court Rules of Imo State. In other words the motion was not determined on its merit. However, as the same issue had been raised in the reply filed by the 1st respondent to the petition, the court considered this-issue of jurisdiction and after the court had examined the provisions of s. 119 (2)(c) and s.119 (4)(c) of the Electoral Act 1982, it held-

“In our view, this [that is, s. 119(2)(c) and (4)(c) of the Electoral Act] does not mean that the petition would be filed in the judicial division of the High Court of Imo State in which the petitioner is located. In view of the definition of the competent High Court in section 119(2)(b) it is our view that what section 119(2)(c) simply means is that the petition may be filed in the High Court of the State as it has jurisdiction in the Senatorial district, Federal constituency or State constituency in which the member or person is located. This interpretation in our view applies so s. 119(4)( c) because s. 119(4) again talks about the competent High Court. Whether the petition involves the membership of the Senate, or House of Representatives or State House of Assembly, we hold the view that the competent High Court is the High Court of Imo State. The fact that there are judicial divisions of the said High Court of Imo State does not in any way affect the exercise of its jurisdiction throughout the State.”

The High Court then concluded this aspect of the case that is, jurisdiction, by reference to s. 238 of the Constitution of the Federal Republic of Nigeria and s. 42 of the High Court Law and held that the three Judges constituting the panel had jurisdiction to hear and determine the petition. This is the entire finding that is relevant to the issue, which is now before this Court. However, I think it is pertinent for one to make mention of how the court finally disposed of this case. Having held that they had jurisdiction, the learned Judges went by the pleadings before ‘the court, held that though the 1st respondent to the petition filed a reply but as the allegations of the petition were principally against the 2nd and 3rd respondents who actually conducted the election and neither the 2nd nor the 3rd respondents filed a reply they were to be presumed to have admitted the allegations contained in the petition “they were out of the case and the petitioner is entitled to judgment in terms of his prayer.”

Incidentally this part of the judgment is not being supported by Chief F.R.A. Williams, S.A.N. learned counsel for the appellant and he said so. I think Chief Williams is right by not supporting this decision. It offends against section 33 of the Constitution, which provides for fair hearing of a case by a tribunal established by law and constituted in such manner as to secure its independence and impartiality. A tribunal that does not hear the other side or in fact any side at all, has not given the litigants a fair hearing. See also Isiyaku Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 424; 426, Ariori v. Elemo 1983 1 S.C. 13, at page 24 per Obaseki, J.S.C. and Kayode Eso, op.cit.p.59.

What happened in the instant case was a curious manner of trying a case; but as I have said, the point has not really arisen as a matter in controversy in this appeal as learned counsel for the appellant does not support it. The only relevance of this mode of trial is that whatever decision I would have come to on the issue of jurisdiction, I would have had to send the case back to the High Court for a proper trial.

But be that as it may, the respondents to the petition Udo Oji Okoro of the N.P.N., the electoral officer Afikpo Federal constituency and the returning officer appealed to the Federal Court of Appeal. And having heard arguments of learned counsel, the Federal Court of Appeal, as per Aseme J.C.A., on the issue of jurisdiction, held

“It is important to note that both learned counsel agreed that there is Imo State High Court in Afikpo Town . . .

This puts beyond doubt that the constituency for which the candidate was elected was Afikpo Federal constituency. By the provisions of s. 119 of the Electoral Act 1982 the competent High Court in which to question the election and where the petition should have commenced should be the Imo State High Court having jurisdiction in Afikpo Federal constituency. This court is certainly the Imo State High Court Afikpo in compliance with s. 119(4)(c) of the Electoral Act 1982.”

The learned Justice of the Court of Appeal concluded that the petition was commenced in a wrong forum “that is in the High Court of Umuahia which has no jurisdiction, by the Electoral Act 1982, to entertain the same.” In his own judgment, Belgore, J.C.A., held-

“The ‘competent High Court’ is clearly enumerated both by the Electoral Act and the Constitution that any other interpretation will cause mischief to the intendment of s. 119(4)(c) of the Act. The ‘competent High Court’ in any case involving membership of or the seat of a person in a legislative house is the High Court of the State where the State constituency is located. There is a High Court at Afikpo in Afikpo Judicial Division. The hearing of the petition at Umuahia in Umuahia Judicial Division of Imo State High Court is far removed from the State constituency where the election being challenged took place. It was ultra vires of any court, however constituted outside Afikpo Judicial Division to hear the petition.”

For his part, Sani Aikawa, J.C.A. relied on the decision of the Court of Appeal in Dr. Edwin Onwudiwe v. lkemba Odumegwu Ojukwu & 3 Ors that the High Court had no jurisdiction in cases concerning election petitions. He held that “the Umuahia electoral court was not properly constituted and that it had no jurisdiction to hear this petition which concerns Afikpo Federal constituency.”

It is from this judgment that this appeal has been lodged to this Court. Now, whereas the High Court would appear to recognise only one High Court for Imo State it seems to me that what the learned Justices of the Federal Court of Appeal have decided is that there could be a High Court for a Judicial division. In that sense there would be more than one High Court for a State or to be more particular, as many High Courts as there are judicial divisions in Imo State.

Chief F.R.A. Williams S.A.N. learned Senior Advocate, representing Shedrack Orji Ukpai, the appellant in this Court, and who would hereinafter be referred to as the appellant, proposed the following question as covering the issue for determination in this appeal.

“Whether the High Court of a State has jurisdiction or power to try an election petition where the petition relates to a constituency located outside the judicial division assigned to the particular division of the High Court.”

I think this question is wide enough to cover all the provisions of the Constitution and law that may be necessary for investigation, to come to a just decision in this case.

Chief Williams has referred us to s. 237(1) of the Constitution of the Republic of Nigeria 1979, hereinafter referred to simply as “the Constitution,” as being the source of the jurisdiction of the High Court to hear and determine any question relating to election to elective offices, the National Assembly and the House of Assembly. Learned Senior Advocate also referred to s. 239 of the Constitution, s.41 of the High Court Law and s. 119 of the Electoral Act 1982.

He submitted that there is only one High Court for a State and that High Court has jurisdiction as conferred upon it by law and the Constitution.

Chief Ahamba, learned counsel for the respondents made a distinction between the commencement of an action, which is the presentation thereof, and the hearing of the action. Hearing, learned counsel submitted, imports the question of

(a) Judex, that is, composition of the Court;

(b) Venue that is the locus

Chief Ahamba maintained the present case is concerned only with commencement. An election petition, which is related to Afikpo Federal constituency, can only, learned counsel urged, be commenced in the Afikpo Judicial Division in view of the provisions of s. 19(4)(c) f the Electoral Act and s.237(2) of the Constitution.

Chief Ahamba then referred us to the Legal Notice wherein the Chief Judge of Imo State set up a panel of Judges to try the election petitions in the State. By the Legal Notice, I.S.L.N. No. 18 of 1983 the Chief Judge constituted three Judges-Amadi-Obi, Ononuju and Alilionwu, JJ. as the election petitions panel for Umuahia Senatorial district. It reads- “In accordance with the provisions of section 237(1), 272(2)(b), section 238 of the Constitution of the Federal Republic of Nigeria No. 25 of 1979 and section 119(3) of the Electoral Act No.8 of 1982, I Chukwudifu Akunna Oputa, Chief, Judge of Imo State High Court, do hereby constitute the following Judges for 1983 Election Petitions Panel for Umuahia Senatorial District. . .”

Then the names of the Judges were inserted. Chief Ahamba submitted that the foregoing legal notice pertains to Judex and not to commencement of an action. Counsel urged that the legal notice should be seen only in that light of stating the composition of the court. Mr. Gaily Brown-Peterside sought and was granted leave to appear as amicus curiae. He associated himself with the submissions of Chief Ahamba and added that the essence of s.237 of the Constitution is to bring justice nearer to the people. Learned Senior Advocate submitted however that section 239(2) of the Electoral Act which purport to give the litigant a choice of court is unconstitutional as it goes against section 237(2)(c) of the Constitution.

To answer the question proposed by Chief Williams and around which all the submissions hitherto referred to are linked I will like to set out the relevant provisions of the Constitution, the High Court Law and the Electoral Act to which I think attention should be focused.

The Constitution:

“236 (1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by a court in the exercise of its appellate or supervisory jurisdiction.

237 (1) Without prejudice to the generality of the provisions of section 236 of this Constitution, the competent High Court shall, to the exclusion of any other court, have original jurisdiction to hear and determine any question whether any person has been validly elected to any office or to the membership of any legislative house, or whether the term of office of any person has ceased or the seat of a person in a legislative house has become vacant.

237 (2) In this section, ‘competent High Court’ means-

(c) in any case involving the membership of or the seat of a person in a legislative house, the High Court of the State where the Senatorial district, Federal constituency or State constituency of that member or person is located.

238 For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that court.

239 The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of the State.”

The Electoral Act:

“S.119 (1) No election and no return to the Senate, the House of Representatives or any State Assembly or to any elective office shall be questioned in any other manner except by a petition complaining about the election or the return and presented to the competent High Court in accordance with the provisions of this Act.

(2) In this section ‘competent High Court’ means

(b) in any case involving any other office, the High Court of the State as respects which such office is established under the Constitution;

(3) For the purpose of exercising any jurisdiction conferred by this Act upon the Federal High Court or the High Court of a State, in any case involving the office of the President, Vice President, Governor or Deputy Governor, the Chief Judge of the Federal High Court or the High Court of a State as the case may be, shall determine the number of Judges that shall constitute the court…

(4) (c) in all other cases, the High Court of the State established for or having jurisdiction in the Senatorial district, Federal constituency or State constituency for which the candidate was elected.”

The High Court Law of Imo State:

41 (1) For the more convenient despatch of business the Court may sit in two or more divisions.

(2) The Governor on the recommendation of the Chief Justice may divide Eastern Nigeria into judicial divisions and the Chief Justice shall thereupon direct one or more Judges to sit in each such division.

(3) The Chief Justice may be order appoint the places within such judicial divisions and the times at which the Court shall sit for the trial of criminal and civil causes and matters and the disposal of any other legal business pending. At such sittings (which shall be called sessions) all criminal causes shall as far as practicable and subject to the provisions of any written law, be tried and determined in priority to other business.

42. The Chief Justice may determine the distribution of the business before the Court among the Judges thereof and may assign any judicial duty to any Judge or Judges.”

The High Court Rules:

Order VII rule 4. All other suits may be commenced and determined in the judicial division in which the defendant resides or carries on business. If there are more defendants than one resident in different judicial divisions, the suit may be commenced in anyone of such judicial divisions; subject, however, to any order which the Court may, upon the application of any of the parties, or on its motion, think fit to make with a view to the most convenient arrangement for the trial of such suit. ”

It is my well considered view that the High Court of a State is established by the Constitution. S.234 of the Constitution establishes a High Court for each State of the Federation. There is therefore, only one and not more than that one High Court for each State of the Federation.

Section 236 of the Constitution (supra) gives the High Court an unlimited jurisdiction in any civil proceeding involving the existence of a legal right etc. and criminal proceedings in respect of an offence committed by any person. That is, however, a general jurisdiction. But then, there are some special proceedings such as a question whether a person has been validly elected to any office or membership of a legislative house. Section 237 deals specifically with this type of question. Where the question involves the membership or the seat of a person in a legislative house like the instant case the competent High Court that will deal with it is the High Court of the State (established under s. 234 of the Constitution) where the Senatorial district (where it is a Senatorial seat), the Federal Constituency (where it is a House of Representatives seat) or the State constituency (where it is a State House of Assembly seat) is located. In other words the words “where the Senatorial district, Federal constituency or State constituency of the member or person is located” qualify the phrase “High Court of the State.” Or to be more explicit those adjectival words are to indicate the particular State and not the location of the court in the State for which the High Court has been established under s.234 of the Constitution.

With respect, the urge that the Constitution, having established only one High Court for a State (s. 234), goes further and talk of High Courts for judicial divisions in that State is inept. The “competent High Court” in s. 119(2)(b) and (c) of the Electoral Act is this ONE High Court.

It is for this reason that I hold that the words “established for” in s. 119(4)(c) of the Electoral Act (supra) which indeed indicate that a High Court could be established for a Senatorial district/there are five senatorial districts in each State (see s.44 of the Constitution)/or for a Federal constituency/there are 450 constituencies to 19 States (see s. 45 of the Constitution) for a State constituency (by virtue of s.85 of the Constitution a House of Assembly of a State consists three times the total State constituency (by virtue of s. 85 of the Constitution a House of Assembly of a State consists three times the total number of seats which that State has in the House of Representatives) are ultra vires the Constitution and if left therein will render the paragraph completely unconstitutional. I hold that the words “established for or” which will render the paragraph unconstitutional, once deleted from the paragraph and the paragraph reads thus

“(c) in all other cases, the High Court of the State having jurisdiction in the Senatorial district, Federal constituency or State constituency for which the candidate was elected.”

the paragraph will remain valid, meaning that the one High Court of the State which has jurisdiction in the Senatorial district, Federal constituency or State constituency will be identified as the High Court of the State wherein is the district or the constituency as the case may be.

Nevertheless s. 119(4)(c) of the Electoral Act, even with the deletion of those words, though constitutional will still be superfluous as s. 237(2)(c) of the Constitution has taken care of the situation but notwithstanding the superfluity, will not be unconstitutional.

So far, I have dealt with the provision of s. 237(2)(c) of the Constitution and s. 119(4)(c) of the Electoral Act and held that there is only “one” High Court in a State, and in this case, Imo State, and the case must be commenced and heard in that High Court.

But that is not the end of the matter. While s.238 of the Constitution provides for at least one Judge for the constitution of the court s.239 of the Constitution provides that that High Court (in this case of Imo State) shall exercise its jurisdiction in accordance with the practice and procedure from time to time prescribed by the House of Assembly of the State (again in this case, Imo State).

The current practice and procedure prescribed (that is, coming by way of existing law) by the legislature of the State, is the High Court Law (incorporating the High Court Rules) of Imo State (Cap 61) Laws of Eastern Nigeria 1963. I have set the relevant provisions down in this judgment.

Under s. 41(2) of the High Court Law, Imo State has been divided into judicial divisions. One of such judicial divisions is Umuahia Judicial Division while another, from the record, is the Afikpo Judicial Division. The complaint here is that Umuahia, where the court that determined this election petition sits, is in Umuahia Judicial Division, which is far from Afikpo where the court that serves Afikpo Judicial Division, and where the Federal Constituency, is situated.

The provision of s. 41(2) of the High Court Law aforesaid is an enabling provision for the Chief Judge to divide the State into judicial divisions for administrative convenience. And this the Chief Judge has done, with such judicial divisions including Afikpo and Umuahia Judicial Divisions.

There is no doubt that it is more convenient for this election petition to be heard at Afikpo, that is, in the Afikpo Judicial Division as it is this judicial division that serves the Federal constituency in question. But then, that is certainly not an issue of jurisdiction, which I have said, is taken care of by sections 234 and 237(2)(c) of the Constitution and also s. 119(4)(c) of the Electoral Act when the offending words therein are deleted. See also s. 119(2)(b) and (c) of the Electoral Act for “competent” High Court.

Though the High Court of Imo State as one High Court has jurisdiction over this matter and the petition as a matter of law could be heard anywhere in the State, but as by the provision of s. 239 of the Constitution the High Court shall exercise this jurisdiction in accordance with practice and procedure prescribed by the House of Assembly; and also as under s. 41 of the High Court Law the State has been divided into judicial divisions, it is but right that this petition ought to be heard for purpose of convenience and not jurisdiction in the judicial division comprising the Afikpo Federal constituency.

That the institution and the hearing a cause in one or other judicial division are separate from the jurisdiction of the court is further emphasized by the rule of the High Court which enables any suit which has been commenced in the wrong judicial division to be tried in that judicial division. Under order VII rule 5, the rule of court in question, provides

“5. In case any suit shall be commenced in any other judicial division than that in which it ought to have been commenced, the same may notwithstanding, be tried in the judicial division in which it shall have been so commenced, unless the court shall otherwise direct, or the defendant shall plead specially in objection to the jurisdiction before or at the time when he is required to state his answer or to plead in such cause.”

The rule has made a special distinction between commencement and trial in a judicial division on one hand and plea to jurisdiction on the other.

That the rule talks of commencement and trial takes care of the point raised by Chief Ahamba who tried in his submission to make a distinction between that he termed “commencement of action which is the presentation thereof and the hearing of the action.” Indeed the Legal Notice set up by the Chief Judge of Imo State, indicating the panel of Judges that shall try the election petitions, is unnecessary, having regard to the provisions of the Constitution, at the High Court Law and Order VII rules (4) and (5) of the High Court Rules aforesaid. With respect to the learned Chief Judge, I think this Legal Notice has done more to complicate the issues than to help them.

In my view, the High Court sitting at Umuahia was right to have held it had jurisdiction in the matter as there is only one High Court in, and with jurisdiction throughout the State. The decision of the Federal Court of Appeal to the effect that there are High Courts of the Judicial divisions is entirely misconceived. There is only “one High Court” in Imo State with jurisdiction all over the State though the practice and procedure which the Constitution (s. 239) enjoins that High Court to follow, makes it obligatory that in exercising that jurisdiction, the petition should be heard in a convenient place, in this case in Afikpo, in the Afikpo Judicial Division.

I have earlier on said that the High Court failed to hear and determine this case properly. There has been no fair hearing required under the Constitution. Finally, I will set aside the judgment of the Federal Court of Appeal including its order as to costs. The petition is remitted to the High Court of Imo State for hearing on the merit. I hereby direct that the petition shall be heard in the High Court, sitting in Afikpo, in the Afikpo Judicial Division, which also comprises the Afikpo Federal constituency. Costs of N300.00 are hereby awarded to the appellant.

IRIKEFE, J.S.C. I had the advantage of a preview of the lead judgment in this matter just read by my learned brother, Eso, J.S.C. I agree with the two conclusions, which are decisive of this appeal, namely

(a) That there is only one High Court of the Imo State of Nigeria, which sits in any division prescribed by the Chief Judge of the State from time to time.

(b) That there has been a denial of the right to a fair hearing as prescribed by our Constitution.

I agree with the consequential orders made in the lead judgment including the order as to costs.

BELLO, J.S.C. I had a preview of the judgment delivered by my learned brother, Eso, J.S.C. I entirely agree and have nothing to add.

OBASEKI, J.S.C. I agree with the judgment delivered a short while ago by my learned brother, Kayode Eso, J.S.C.

The issues raised in this appeal are of the utmost importance to the exercise of jurisdiction vested in the competent High Courts by the High Court Judges in all the States of the Federation and to the proper and more expeditious determination of the election petitions filed to challenge the various returns in the Senatorial elections, Federal Constituency elections and State constituency elections held in all the States in the Federal Republic of Nigeria.

1. The first main issue involves the question of the meaning and extent or limit of the jurisdiction of the competent High Court under section 237(1) of the Constitution of the Federal Republic of Nigeria. Allied to this first main issue are two subsidiary issues.

They are:

(i) Whether the creation or establishment of judicial divisions of High Court of Imo State has the effect of ousting the jurisdiction of the High Court of Imo State in each of the judicial divisions so created.

(ii) Whether the mention of ‘Senatorial district’, ‘Federal constituency’, and ‘State constituency’, in section 237(2)(c) of the Constitution of the Federal Republic 1979 refers to judicial divisions of the High Court of the States.

2. The second main issue for determination is whether the High Court acted justifiably in giving judgment to the petitioner without hearing evidence. brief reflection on the facts in this matter and course of proceedings in the High Court and Federal Court of Appeal reveals that the appellant, an unsuccessful candidate sponsored by the N.P.P., was the petitioner in the court below and by his petition questioned the election and return of the 1st respondent the N.P.N. candidate, to fill the vacant seat of a member for Afikpo Federal constituency in the House of Representatives in an election conducted by the 2nd respondent on the 27th day of August, 1983. The prayer of the petitioner before the High Court was “that it may be determined that the correct result of the election is that the petitioner scored 13,455 votes whereas the 1st respondent scored 13,095 votes and that the petitioner be declared the person elected or duly returned”. The 1st respondent filed his reply to the petition but the 2nd and 3rd respondents failed to file any reply. The election petition panel construed the failure of the 2nd and 3rd respondents to file their replies as an admission of the votes pleaded as cast at the said election.

It should be observed that the petition was presented and filed in the Registry of the Umuahia Judicial Division of the High Court of Imo State and not Afikpo Judicial Division, an area in which the Afikpo Federal constituency is located.

Observing this shift from Afikpo to Umuahia, the 3rd respondent objected to the jurisdiction of the Imo State High Court election petition panel set up and assigned by the Chief Judge for hearing of election petitions in the area, by motion for an order “striking out or disg1issing the petition. . . on the grounds set out in the schedule to the notice.” The grounds of objections included:

“(1) non-payment of filing fee and non-payment of a deposit of hearing fee, as provided by section 142 of the Electoral Act;

(2) failure to give security for the amount fixed by the court;

(3) the petition was not properly before the court as the petition was filed in contravention of section 119(2)( c) of the Electoral Act. . . Afikpo Judicial Division of the High Court of Imo State of Nigeria is the proper court.”

After hearing argument, the three Judges constituting the election panel of the High Court, delivered their ruling.

It appears the objection was overruled. As the ruling is not included in the record of proceedings, my opinion that the objection was overruled derives from the fact that the election panel proceeded to deliver its judgment in favour of the petitioner in default of filing of replies by the 2nd and 3rd respondents. This was after their observation which reads:

“In view of the fact that the 2nd and 3rd respondents have failed to file their replies, this of course operates as an admission by the 3rd respondent of this averment at 4(f) of this petition that the petitioner scored a total of 13,455 votes and the 1st respondent scored a total of 13,295 votes in the election, thus admitting that the petitioner scored more of the lawful votes cast at the election and therefore ought to have been duly declared elected.”

When Mr. Mwamuo, counsel for the 1st respondent, was invited by the court to address it, he boldly submitted “that the petitioner should be required to prove his case against the 1st respondent. I submit that the court under section 144 of the Electoral Act should require witness to be called.”

Brushing aside this submission and without hearing evidence, the election petition panel proceeded to deliver its judgment declaring petitioner duly elected.

In their judgment, the Judges of the panel also dealt with the issue of jurisdiction and held:

“Whether the petition involves the membership of the Senate, or House of Representatives, or State House of Assembly, we hold the view that the competent High Court is the High Court of Imo State. The fact that there are judicial divisions of the said High Court of Imo State does not in any way affect the exercise of its jurisdiction throughout the State.”

The 1st respondent, aggrieved by the decision of the election panel appealed to the Federal Court of Appeal on many grounds including:

“That the election petition panel erred in law and misdirected itself in law when it entered judgment against the 1st respondent/appellant without giving him an opportunity of being heard in his own defence.”

The 2nd respondent also appealed to the Federal Court of Appeal on 4 grounds of appeal the 1st ground being:

“The learned trial Judges erred in law when they held that the High Court established for Umuahia Judicial Division of the State High Court had jurisdiction to hear an election petition involving an election in a Federal constituency located within Afikpo Judicial Division of the Imo State High Court.”

The 3rd respondent also appealed to the Federal Court of Appeal on many grounds the 1st ground of appeal being that

“The proceedings at the High Court, Umuahia, are null and void in that the petition of S. O. Ukpai was commenced at the High Court, Umuahia instead of the High Court, Afikpo, being the High Court which has jurisdiction in the Afikpo Federal Constituency for which Udo Oji Okoro, the first respondent was elected.”

The Federal Court of Appeal allowed the appeal on the grounds stated above. Dealing with these grounds, Aseme, J.C.A. delivering the lead judgment said in his judgment:

“The 1st appellant as it were was denied justice. Despite the denials of the averments in the pleadings, no evidence was given by the petitioner to prove his case against 1st appellant who was not allowed to defend himself. This is travesty of justice and on this ground alone, the appeal ought to succeed. The second contention relates to jurisdiction. … In my view the petition was commenced in the wrong forum that is in the High Court Umuahia which has no jurisdiction by the Electoral Act to entertain the same . . . The appeal is hereby allowed. . . . In its stead the petition is hereby struck out.”

Belgore, J.C.A. and Aikawa, J.C.A. concurred in the judgment delivered by Aseme, J.C.A.

Being aggrieved, the petitioner has appealed to this Court on three grounds. Possessing great and substantial merit is ground 1 which reads:

“The Honourable Judges of the Federal Court of Appeal erred in law when they held that the High Court panel for Umuahia Senatorial District of the State to hear election petitions within the senatorial district had no jurisdiction to hear and determine an election petition involving an election in a Federal constituency located within Afikpo Judicial Division (which is within Umuahia Senatorial District) of Imo State High Court.”

This ground of appeal involves the questions already set out above in the opening paragraphs of this judgment. Both Chief F. R. A. Williams, S.A.N. learned counsel for the appellant and Chief M. I. Ahamba, learned counsel for the 1st respondent in this appeal has made useful submissions on the issues. They examined the provisions of sections 237(1) and (2); 238 and 239 of the 1979 Constitution, sections 41 and 42 of the High Court Law of Eastern Nigeria Cap 61 applicable in Imo State and Order 7 rules 5 and 6 of the Imo State High Court Rules. They also examined the Imo State Legal Notice No. 18 of 1983 whereby the Chief Judge of Imo State constituted the election petition panel of the Imo State High Court for Omaha Senatorial District.

Chief Williams, S.A.N. submitted that the main question for determination in this appeal is whether the High Court of a State has jurisdiction or power to try an election petition where the petition relates to a Federal constituency located outside the particular High Court division. The second question for determination according to learned counsel, was whether the High Court was right in giving judgment to the petitioner without taking evidence. I agree with the view of learned counsel for the appellant that these are the main issues for determination in this appeal. There are subsidiary issues raised which I have stated in the opening paragraphs of this judgment.

Chief Williams, S.A.N. answered the first question in the affirmative and the second question in the negative. Chief M. I. Ahamba, counsel for the 1st respondent answered the first question in the qualified negative and the second question in the unqualified negative. I said in the qualified negative because learned counsel confined his negative answer to the place of commencement in view of section 119(4)(c) of the Electoral Act 1982 and not the place of trial within the State. Chief Williams, S.A.N. submitted that on the proper and correct interpretation of sections 237 (1) and (2), 238 and 239 of the Constitution and sections 119(2)(c), 119(4)(c) and 129(2) of the Electoral Act, 1982 and sections 41 and 42 of the High Court Law of Eastern Nigeria applicable in Imo State, the High Court of Imo State has jurisdiction to hear and determine an election petition filed in any registry of the High Court of Imo State outside the judicial division in which the Federal constituency is located.

Chief Ahamba submitted that the High Court of Imo State has no such jurisdiction as on a proper interpretation of section 237(2) of the Constitution, the reference to Senatorial District, Federal constituency or State constituency in that section is a reference to the judicial division of the State. Following on this interpretation, counsel submitted that a petition filed outside the judicial division where the constituency is located is not properly before the court.

Having regard to the provisions of section 237(2)(c) of the Constitution and sections 41 and 42 of the High Court Law of Eastern Nigeria, Chief Ahamba cannot, in my view, be correct in the interpretation he has put on the section. I am of the view that the correct interpretation of section 237(2)(c) of the Constitution is that the reference to Senatorial district, Federal constituency and State constituency is for the identification of the State concerned, the High Court of which is the competent High Court.

For a better appreciation of the meaning of competent High Court, I will set out the provisions of section 234(1) and (2); 237(1) and (2); 238 and 239 and sections 119(2)(c) and 119(4)(c) of the Electoral Act. I will also set out the provisions of section 41 and section 42 of the High Court Law and Order 7 rules 5 and 6 of the High Court Rules to show that the creation of judicial divisions did not deprive the High Court of Imo State of its jurisdiction over every inch of the State. The 1979 Constitution section 234 reads:

“(1) There shall be a High Court for each State of the Federation.

(2) The High Court of a State shall consist of

(a) a Chief Judge of the High Court of the State; and

(b) Such number of Judges of the High Court as may be prescribed by a law of the House of Assembly of the State.”

The Constitution therefore as can be seen clearly establishes one High Court for each State:

Section 237 reads:

Subsection (1) “Without prejudice to the generality of the provisions of section 236 of this Constitution, the competent High Court shall, to the exclusion of any court, have original jurisdiction to hear and determine any question whether any person has been validly elected to any office or to the membership of any legislative house, or whether the term of office of any person has ceased or the seat of a person in a legislative house has become vacant.” .

Subsection (2) “In this section ‘competent High Court’ means…..

(c) in any case involving the membership of or the seat of a person in a legislative house, the High Court of the State where the Senatorial district, Federal constituency or State constituency of that member or person is located.”

If the words of this subsection are interpreted in their true and natural meaning, the words “where ‘senatorial district’, ‘Federal constituency of that member or person is located’ ” are in this section used to identify the State High Court of which is the competent High Court. They are not used to identify the High Court. Section 238 of the Constitution reads:

“For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that court.”

This is a very important section the import of which is given little or no attention. It is clear that one Judge can exercise the jurisdiction conferred upon the competent High Court. Section 239 of the Constitution reads:

“The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the procedure (including the service and execution of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of the State.”

By this section of the Constitution the High Court Law and the High Court Rules become applicable and are given constituted backing. Section 119(1) [of the Electoral Act 1982] provides that

“No election and no return to the Senate, the House of Representatives or any State Assembly or to any elective office shall be questioned in any other manner except by a petition complaining about the election or return and presented to the competent High Court in accordance with the provision of this Act.”

Subsection (2) of section 119 of the Electoral Act defines ‘competent High Court’ in the same terms as contained in section 237(2) of the Constitution. But in making provision for the commencement of the election petition presented to the competent High Court, section 119(4)(c) provides:

“A petition to question an election or result shall be presented to the competent High Court not later than 14 days from the date that the result of the election is declared and shall be commenced

(c) in all other cases, the High Court of the State established for or having jurisdiction in the Senatorial district, Federal Constituency or State constituency for which the candidate was elected.”

There is only one High Court established by the Constitution for each State. There is no High Court of the State established for Senatorial district, Federal Constituency or State constituency and in so far as section 119(4)(c) of the Electoral Act makes this provision, it is unconstitutional.

Senatorial districts and Federal constituencies are sub-divisions of the territorial area of each State as provided by section 65 of the 1979 Constitution which reads:

“Subject to the provision of section 66 of this Constitution, the Federal Electoral Commission shall

(a) divide each State of the Federation into 5 Senatorial districts for purposes of elections to the Senate; and

(b) divide the Federation into 450 Federal constituencies for purposes of elections to the House of Representatives.”

Section 66 of the Constitution reads:

“No Senatorial district or Federal constituency shall fall within more than one State, and the boundaries of each district or constituency shall be such that the number of inhabitants thereof is as nearly equal to the population quota as is reasonably practicable.”

Section 129(2) of the Electoral Act 1982 deals with trial of the petition and provides that:

“The rules of civil procedure in force in the High Court concerned shall with necessary modifications apply to the trial of the petition.”

This makes the High Court Rules applicable to trial of election petitions. In particular, Order 7 rules 5 and 6 of the High Court Rules provide as follows:

“Rule 5: In case any suit shall have been commenced in any other judicial division than that in which it ought to have been commenced the same may, notwithstanding, be tried in the judicial division in which it shall have been so commenced, unless the court shall otherwise direct, or the defendant shall plead specially in objection to the jurisdiction before or at the time when he is required to state his answer or to plead in such cause.”

“Rule 6: No proceedings which may have been taken previously to such plea in objection shall be in any way affected thereby; but the Judge shall order that the cause be transferred to the judicial division to which it may be proved to his satisfaction to belong, or failing such proof, that it may be retained and proceed in the court in which it has commenced, and such order shall not be subject to appeal.”

To the extent to which rule 6 bars an appeal against an order of a Judge made on a plea in objection to the jurisdiction the rule conflicts with section 220(1) and section 221(2) of the 1979 Constitution and is, in my view, unconstitutional and void. Otherwise, the two rules 5 and 6 of Order 7 of the High Court Rules Cap 61, are valid and existing rules of practice applicable to the trial of election petition cases.

Section 41 of the High Court Law of Eastern Nigeria gives power to the Governor for creation of judicial division and section 42 of the said Law empowers the Chief Judge to distribute the business before the court among the Judges thereof and to assign any judicial duty to any Judge or Judges.

These sections do not take away or whittle down the jurisdiction of Imo State High Court. They ensure the effective exercise of the jurisdiction of the court. Order 7 rule 5 of the High Court enables objection to be taken to any suit filed in the wrong judicial division and Order 7 rule 6 empowers the Judge to transfer the cause to the proper judicial division or try the cause.

It is therefore clear that there was no basis or valid ground of objection to the jurisdiction of the election petition panel set up by the Chief Judge.

On the 2nd main issue, the learned trial Judges committed a serious breach of the rules of natural justice, the High Court Rules and the provisions of the Electoral Act, 1982 and the principles of fair hearing enshrined in section 33(1) of the 1979 Constitution when they proceeded to judgment without hearing evidence when issues have been joined. There can be no valid judgment without hearing and considering evidence on issues joined.

I will allow the appeal, set aside the decision of the Federal Court of Appeal and remit the case to the Imo State High Court for hearing at Afikpo.

The appellants are entitled to costs of this appeal which is assessed at N300.00.

ANIAGOLU, J.S.C. After much searching thought, I have come round to the view that the interpretation placed in this judgment on the “competent High Court” is the correct one. I-therefore agree with the judgment just read by my learned brother, Kayode Eso, J.S.C.

The logical result of the conclusion that there is only one High Court for Imo State, by reference to sections 236 and 237 of the Constitution, is that the word “where” in section 237(2)(c) of the Constitution properly qualifies the phrase, “the High Court of the State” in that subsection (2)(c) and that a reference to the “competent High Court in subsection (2) of section 237 must be a reference to the High Court of the State and not to a division of the said High Court of the State. The corporate High Court of Imo State has a corporate jurisdiction to hear this petition.

Having said so, I agree with Mr. Brown-Peterside that regard must be had to Chapter II of the Constitution dealing with Fundamental Objectives and Directive Principles of State Policy in ascertaining the real intention of the legislature. Section 13 of the 1979 Constitution enjoins

“all authorities and persons, exercising legislative, executive or judicial powers to conform to, observe and apply the provisions of this Chapter of this Constitution”;

and section 17(2)(e) of the said Constitution provides that in furtherance of the social order

“(e) the independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.”

Therefore in determining the places of commencement and hearing of suits, in exercise of his enabling power under the High Court Law of a State, a Chief Judge thereof must have agreed to the convenience of the parties to the suits. In the instant appeal, it could hardly be considered as being convenient to the parties for them to travel all the way from Afikpo to Umuahia, in Imo State, when the High Court of the State existed, and exercising jurisdiction, in Afikpo town. I think the Legal Notice, I.S.L.N. No. 18 of 1983 issued by the Chief Judge of Imo State, (Chukwudifu Oputa, C.J.) in this matter, was entirely unnecessary.

Finally, the Tribunal High Court entered judgment for the petitioner without hearing evidence by reason of the failure of the 2nd and 3rd respondents to file their replies, even though the 1st respondent filed his own reply and denied the petitioner’s charges in his petition. In R. Ariori and others v. Muraino B.O. Elemo and Others (1983) 1 S.C. at p. 81 I held as follows:

“Fair hearing, of which speedy trial is one of the factors that go to make it fair, is therefore, in my view, a right involving the public policy that judicial proceedings shall not fall below a certain standard, namely, a standard that trials of cases must be fair. Immutable justice demands that justice must be even-handed and where injustice has been done by unfair adjudication, nobody can set a subjective standard of justice for himself by acquiescing to it. Indeed, in such a circumstances, ideally, both the winning party and the losing party have a duty to society, to have the injustice, in the interest of society, rectified.”

The rectification of the injustice in the instant appeal must lie in sending the case back for a proper hearing at the High Court of Imo State holden at Afikpo.

I abide by the orders for rehearing and costs as contained in the judgment of Kayode Eso, J.S.C.

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Other Citation: (1983) LCN/2171(SC)