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CaseLaw

Ohakim V.Agbaso (2010) CLR 7(s) (SC)

Judgement delivered on July 16th 2010

Brief

  • Cause of action
  • Mandamus
  • Judicial review
  • Grounds of appeal
  • Order striking out suit
  • Respondent in an appeal
  • Right of appeal
  • Federal High Court Jurisdiction
  • Governorship and legislative election tribunals
  • Injunction
  • Error in judgement
  • Return at election

Facts

The facts giving rise to this appeal are simple and straightforward. They include the following:

On the 14th day of April, 2007 Governorship and State House of Assembly elections were conducted in Nigeria, including Imo State, by the 2nd respondent (INEC) which has the constitutional responsibility to do so. At the conclusion of the election, the 2nd and 3rd respondents upheld and/or validated the results of the State House of Assembly election in Imo State while the election in relation to the Governorship of Imo State was cancelled. The reasons for the alleged cancellation were given by the 3rd respondent to include violence, thuggery etc in 9 out of 27 Local Government Areas of Imo State. The election results upheld by the 2nd and 3rd respondents in respect of the State House of Assembly of Imo State also held on 14th April 2007 included the results declared in the 9 Local Government Areas allegedly affected by thuggery, violence and other electoral offences. In both elections, the same ballot boxes, officials etc. were used in the conduct of the elections of 14th April, 2007. Appellant 1st respondent and other candidates contested the Imo State Governorship election of 14th April, 2007 which, as earlier stated, was cancelled by the 2nd and 3rd respondents for being inconclusive.

Meanwhile, the 2nd and 3rd respondents rescheduled Imo State Governorship election for the 28th day of April. 2007.

On the 19th day of April, 2007, the 1st respondent instituted an action at the Federal High Court, Abuja by way of judicial review, in which he claimed the following reliefs:-

  • 1
    A declaration that the respondents lack the power to cancel the Imo State gubernatorial elections under the Electoral Act, 2006.
  • 2
    A declaration that the respondents lack the power to cancel the Imo State gubernatorial election results and/or the election held on 14th April, 2007; while upholding the House of Assembly elections conducted simultaneously with the said gubernatorial election.
  • 3
    A declaration that the cancellation of the said gubernatorial election conducted by the respondents in Imo State on 14th April, 2007 is unreasonable, unlawful, illegal, arbitrary, unconstitutional, null and void.
  • 4
    An order setting aside the cancellation of the said gubernatorial election by the respondents.
  • 5
    An order of mandatory injunction directing the respondents to forthwith continue and complete the process of conducting the Imo State gubernatorial elections where the respondents stopped and in accordance with the provisions of the Electoral Act, 2006 and Constitution of the Federal Republic of Nigeria, 1999; to wit, to collate and declare the results at the State level."/div>

    • Meanwhile, the 1st respondent together with other contestants, including the appellant, participated in the re-scheduled Imo State Governorship election held on the 28th day of April. 2007 in which the appellant was returned or declared elected by the 2nd and 3rd respondents. Following the declaration of the above result, the Federal High Court struck out suit No. PHC/ABJ/M/269/2007. the action for judicial review, on the 30th day of April. 2007 on the ground of lack of jurisdiction, an election haven been held and the result declared in relation to the matter.

    1st respondent was dissatisfied with that ruling and consequently appealed against same to the Court of Appeal, holden at Abuja, on the 14th day of May, 2007. In addition to the appeal, the 1st respondent filed an election petition on the same 14th May, 2007 at the election tribunal in which he claimed the following reliefs;-...

    • i
      A declaration of the Honourable Tribunal that the 2nd and 3rd respondents have no powers or jurisdiction to cancel or nullity the result of the Governorship election held in Imo State on 14th April, 2007 and fix another election for 28th April, 2007.
    • ii
      A declaration of the Honourable tribunal that the cancellation by the 2nd and 3rd respondents of the result of the Governorship election held in Imo State on 14th April. 2007 is unlawful, illegal, null and void and the subsequent fixing and holding of another election on 28th April, 2007 is unlawful, illegal, null and void.
    • iii
      A declaration that the cancellation of the gubernatorial election held in Imo State on 14th April, 2007 and the fixing and holding of another gubernatorial election for Imo State on 28th April, 2007 were invalid and not in compliance with the provisions of the Electoral Act. 2006.
    • iv
      An order of the Honourable tribunal that the petitioner has fulfilled all the Constitutional requirements for the election into the office of Governor of Imo State and has been indeed so elected on 14/4/2007."
    • v
      An order of the Honourable tribunal setting aside the election of 28th April, 2007 into the office of Governor of Imo State and the returning of the 1st respondent thereby made.

      • Objections were raised by the respondents in the petition resulting in a ruling delivered by the Tribunal on the 26th day of July, 2007 as a result of which the petition was dismissed. The 1st respondent's appeal to the Court of Appeal against the said dismissal was also dismissed.

      Having exhausted his rights by way of election petition, the 1st respondent turned his attention to the pursuit of his action by way of judicial review, to wit, the appeal against the order of the Federal High Court, Abuja, striking out his suit on 30th April, 2007 for lack of jurisdiction.

      At the Court of Appeal, appellant and the other respondents therein challenged the jurisdiction of the court to hear and determine the appeal against the ruling of the Federal High Court of 30th April, 2007 which was overruled in a ruling delivered by that court on 26th February, 2009. There was an appeal to this court against that ruling. It was appeal No. SC/59/2009 which was later withdrawn and this court directed the lower court to determine the matter expeditiously. It is the final judgment of the lower court on the appeal that was delivered on 16th December. 2009 which forms the basis of appeal Nos. SC75 1/2010 and SC/5/2010 while S.C/3/2010 is based on the interlocutory ruling of that court delivered on 26th February, 2009 on the objection of the appellant as to the jurisdiction of the lower court to entertain the appeal.

Issues

  • 1
    Whether the Court of Appeal considered all the issues submitted to it...

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