THE EXPIRATION OF THE TERM FOR WHICH AN ELECTION WAS CONDUCTED DOES NOT OUST THE JURISDICTION OF THE COURT TO DETERMINE THE PRE-ELECTION MATTER

CASE TITLE: NWOBODO v. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION (2017) LPELR-42782(CA)

PRACTICE AREA: ELECTORAL MATTERS

HEADING: THE EXPIRATION OF THE TERM FOR WHICH AN ELECTION WAS CONDUCTED DOES NOT OUST THE JURISDICTION OF THE COURT TO DETERMINE THE PRE-ELECTION MATTER

LEAD JUDGMENT: HELEN MORONKEJI OGUNWUMIJU, J.C.A

SUMMARY OF JUDGMENT

INTRODUCTION:
This appeal borders on Electoral Matters

FACTS

This is an appeal against the judgment of the High Court of Justice, Enugu State delivered on 27/1/2014.

The pith of Appellant’s (as plaintiff at the trial Court) case was that he was nominated as the candidate of the All Progressives Congress (APC) for the chairmanship position of Nkanu East Local Government Council in the election conducted by the Respondent on 2/11/13. However, when the Appellant went to the Respondent’s office to collect nomination form ENSIEC 7 for election into the office of chairman,  he was asked to go and pay a non-refundable fee of N200,000 before he could be issued the said form 7.

Appellant objected to the legality of the non-refundable deposit instead of pecuniary deposit as provided in Section 152 (1)(f)(g) of the Local Government Law CAP 109, Vol. V, Revised Law of Enugu State 2004 and further contended that a candidate is by the provision of Subsection (2) of Section 152 of the Local Government Law of Enugu State 2004 eligible whether or not he makes the non-refundable deposit, so long as he is qualified to contest at an election to the State House of Assembly.

The Appellant approached the lower Court and claimed via an Originating Summons among other things for a Declaration that Sections 3(n) and 13(1)(f) of the Enugu State Independent Electoral Commission (ENSIEC) guidelines for Local Government Council Elections scheduled for the 2nd November, 2013 contained in the Enugu State of Nigeria Official Gazette No. 3 Volume 22 of 29th July, 2013 is illegal, null and void.

However, while the suit was pending, the election was conducted on 2/11/13 into the Chairmanship position of Nkanu East Local Government Council and the candidate of the Peoples Democratic Party, Sam Iyiogwe being the only candidate remaining was declared elected by the Respondent and later sworn in on 5/11/14.

The Appellant identified three issues for determination in his written address as follows:

1. Whether Sections 3(n) and 13(1)(f) of the Enugu State Independent Electoral Commission (ENSIEC) guidelines for Local Government Council Elections scheduled for the 2nd November 2013 published in the Enugu State of Nigeria Official Gazette No. 3 Volume 22 of 29th July, 2013 as ESLN No. 2 of 2013 are not inconsistent with Section 152(1)(f) and (g) of the Local Government Law CAP 109 Volume V, 3 Revised Laws of Enugu State.
2. Whether a candidate’s inability to make a pecuniary deposit can necessitate his exclusion from contesting in an election to the Local Government Council having regard to Section 152 (2) of the Local Government Law of Enugu State.
3. Whether the Enugu State Independent Electoral Commission has powers to screen or disqualify the plaintiff or candidates of other political parties.

The suit was undefended by the Respondent. Having satisfied himself that the Respondent was duly served, the learned trial judge delivered a considered judgment on the Originating Summons, resolved issues 1 & 3 in favour of the Appellant but resolved issue 2 as identified by the Appellant against him.

Being dissatisfied with the said judgment, the Appellant filed this instant Appeal.

ISSUE(S) FOR DETERMINATION:

The lone issue raised for determination in this appeal is:

Whether the learned trial judge was not in error in his interpretation of the term notwithstanding contained in Section 152 (2) of the Local Government Law cap 109, volume V, Revised Laws of Enugu State 2004.

DECISION/HELD:
The Court held that there is merit in this appeal and the sole issue was resolved in favour of the Appellant.

Prayers 1 & 2 sought were granted while prayer 3 was refused as no issue was argued or decided on that point. Consequently, the part of the judgment of Hon. Justice R.N. Onuorah delivered on 27/1/14 in Suit No. E/409/2013 in respect of issue No. 2 submitted before the trial Court was set aside. There was no order as to costs.

Appeal Allowed.

RATIO DECIDENDI

• ELECTORAL MATTERS – PRE-ELECTION MATTERS: Whether the expiration of the term for which an election was conducted will oust the jurisdiction of the Court to determine a pre-election matter
• INTERPRETATION OF STATUTE – SECTION 152 (1) AND (2) OF THE ENUGU STATE INDEPENDENT ELECTORAL COMMISSION LAW, 2004: Interpretation of Section 152 (1) and (2) of the Enugu State Independent Electoral Commission Law, 2004 as regards qualification of a person to contest any Local Government Election
• ACTION – ORIGINATING SUMMON(S): General rule applicable for the use of originating summons as a method of commencing proceedings