Compulaw - 1st Indigenous Digital Law Library

Brief

Election appeal
Abuse of court
Bill passed National Assembly

Facts

On the 17/11/2011, these appeals were consolidated and heard at the end of which we decided to strike them out on the grounds of lack of any live issue as the appeals have lapsed. We promised to give our full reasons for the decision later. I now give my reasons.

The appeals stem from the decision of the Court of Appeal, Benin dated 20/9/2011 whereat the Appellant's appeal against the decision of the Tribunal of 25/7/2011 having been earlier dismissed on the ground that the subject matter on ground, there was no live issue contestable as between the parties.

FACTS

1
After the 2007 April election a re-run election was ordered by the Court of Appeal and the election was conducted on the 6/1/2011.
2
On the 25/7/2011, the trial Tribunal decided the Petition filed by the Appellant.
3
Before that decision of the 25/7/2011 in Suit No. FHC/ASB/CS/20/2011, the tenure of the 1st Respondent was adjudged to expire by 29/5/2011 on the said re¬run election.
4
Despite the said decision, the Tribunal for the re-run election disagreed with the 1st Respondent that the Petition of the Appellant had become spent.
5
In Appeal No. CA/B/EPT/229/2011, the 1st Respondent argued on the issue of whether the Petition was spent or not.
6
When finally the Tribunal decided and found against the Appellants in the re-run election the Appellants filed appeal CA/B/EPT/227/2011 which is the subject of this appeal. The two appeals were heard together on the 20/9/2011.
7
On the 22/9/2011, the Court of Appeal delivered its judgment aforesaid. In Appeal NO.CA/B/EPT/229/2011 which it delivered firstly, it held that the Petition of the Appellants had become spent and academic due to the expiration of the tenure of the 1st Respondent on the re- run election on the 29/5/2011 and struck out the Petition. With regard to Appeal CA/B/EPT/227/2011, the subject matter of this appeal, the Court of Appeal decided that it would be an act in futility having held that the tenure of the 1st Respondent had become spent to discuss the merits of the, Appellants complaints as contained in issue No.2 submitted by the Appellants.

On the 17th day of November, 2011, date of hearing, this Court asked Counsel to address the Court on whether, this Court has jurisdiction to entertain the appeals and whether having regard to the issue of the expiration of the tenure of the 1st Respondent, there is in existence a live issue to be decided between the parties.

For the Appellants, learned Counsel on their behalf, Mr. O. M. Sagay SAN contended that this Court has jurisdiction to entertain the appeals. That the Petition, subject of this appeal was filed on the 27th January 2011. That it was filed subsequent upon the question of who should be the Governor of Delta state. He said the result of that re-run election was declared on the 7th January 2011 which election fell within the ambit of the second amendment of the 1999 Constitution as amended, which amendment came into effect on 29/11/2010 even though the President of the Federal Republic of Nigeria signed it on the 10th January 2011.

Mr. Sagay submitted that the commencement of the alteration to the Constitution was the date so stated within that document, the later date of signing by the President notwithstanding. He referred the Court to Section 2 of the F Interpretation Act, Cap. 12 3, Vol.8 Laws of the Federation of Nigeria 2004.

Learned Counsel for the Appellant further contended that once the National Assembly passes a Bill, it does not require presidential assent to come into force.

That the law that applies is that which existed when the cause of action arose on the 25th November 2010 when the alteration to the Constitution was made by the National Assembly. That the cause of action herein arose on 6th January, 2011, when the result of 7th January 2011 was made. That Section 179 of the Constitution which conferred the right to contest on the Appellant and the virtue of Section 285(7) of the Constitution as amended, appeal can now come before this Court so long as the matter is determined within 60 days on appeal.

That there is a live issue. He cited Section 233 (1) -(iv) of the Constitution.

Ogboru Vs. Uduaghan (2011) CLR 12(h) (SC)

Judgement delivered on December 16th 2011

Brief

Facts

FACTS

Issues