IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 13TH DAY OF JANUARY 1984

SC 10/1983

BETWEEN

CHIEF COLLINS OBIH ................................................ APPELLANT

AND

CHIEF SAMUEL ONUNAKA MBAKWE & 2 ORS ............................................... RESPONDENTS

BEFORE: Sowemimo C.J.N. Irikefe, Bello, Obaseki, Eso, Aniagolu, Uwais; JJ.S.C

The first respondent was the incumbent Governor of Imo State. He stood for re-election to the office on 13th August, 1983 and won. The petitioner, who was one of the defeated candidates, filed an election petition in the High Court of Imo State on 26th August 1983 against the first respondent and 2 others complaining against the return of the first respondent. Both the High Court and the Federal Court of Appeal dismissed his petition.

At the hearing of his appeal before the Supreme Court on 26th October 1983, a preliminary objection was taken on behalf of the first respondent that being the incumbent Governor of Imo State at the material time, the first respondent was immune from legal proceedings by Section 267 of the Constitution.

HELD:

(1) From the provisions of the 1979 Constitution, I am of the opinion that election petitions were special proceedings completely divorced and separated from Civil Proceedings within the context of Section 267 of the Constitution and consequently a governor was not immune from legal proceedings against him in respect of an election petition.

Appeal allowed.

Dr. M. Odje SAN with him Chief K. Balogun, Chief D. C. O. Njemanze, V. J. Okoye, Chief E. Akwikwu and G.U.E. Peter Okoye (MRS) for the Appellant.

Chief F. R. A. Williams, SAN with him Chief A. Ogunsanya, Dr. J. I. J. Otuka, G. L. Udon-Azogu (MRS) S. K. Omolofin B. I. D. Ezeogu, L. Williams, T. E. Williams and U. Okeugo for the first Respondent.

L. C. Allinor, Legal Adviser, Imo State with him E. C. Iwuala, State Counsel, Imo State for the second and third Respondents.

Cases referred to:

(1) Onitiri v. Benson (1960) 5 FSC 150 at 153.

(2) Oyekan v. Akinjide (1965) NMLS 381 at 383.

(3) Paul L. Unongo v. Aper Aku & Ors S.C. 95/1983.

(4) Rabiu v. The State (1980) 8-11 SC. 130.

Statutes referred to:

(1) Constitution of Federal Republic of Nigeria 1979.

(2) Republican constitution 1963.

Bello, J.S.C. The first respondent was the incumbent Governor of Imo State. He stood for re-election to the office on 13th August, 1983 and won. The petitioner, who was one of the defeated candidates, filed an election petition in the High Court of Imo State on 26th August 1983 against the first respondent and 2 others complaining against the return of the first respondent. Both the High Court and the Federal Court of Appeal dismissed his petition. At the hearing of his appeal before us on 26th October 1983, a preliminary objection was taken on behalf of the first respondent that being the incumbent Governor of Imo State at the material time, the first respondent was immune from legal proceedings by section 267 of the Constitution, which provided:

“267

(1) Notwithstanding anything to the contrary in this Constitution, but subject to sub-section (2) of this section—

(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;

(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

(c) no process of any court requiring or compelling the appearance of such a person shall be applied for or issued:

Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies no account shall be taken of his period of office.

(2) The provisions of sub-section (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to ‘period of office’ is a reference to the period during which the person holding such office is required to perform the functions of the office.”

We over-ruled the preliminary objection and heard the appeal on the merits. We reserved our reasons for doing so to be given today.

The only issue for determination was whether an election petition was “civil proceedings” within the purview of section 267 and other related sections of the Constitution. Chief Williams for the first respondent contended in the affirmative while Dr. Odje for the appellant in reply submitted that an election petition was not “civil proceedings” and was not covered by the immunity accorded to a governor by section 267.

In the course of their submissions learned Counsel referred us to Onitiri v. Benson (1960) 5 FSC.150 at 153 wherein the Federal Supreme Court in considering the jurisdiction of the High Court of a Region to adjudicate on election petitions under the Nigeria (Constitution) Orders in Council 1954 to 1959 stated that the jurisdiction of any tribunal to deal with such matters as election petitions was a jurisdiction of a very special nature which did not carry with it the ordinary incidents of appeal in an ordinary civil case. In Oyekan v. Akinjide (1965) N.M.L.R. 381 at 383 this Court expressed the view that under the 1963 republican Constitution the proceedings on an election petition were special proceedings for which special provisions were made under the Constitution.

In the same vein as in the former Constitutions, the 1979 Constitution made special provisions for the jurisdictions of the courts to hear the determine election petitions at the first instance and on appeal. Section 236 of the Constitution conferred on the High Court of a State unlimited jurisdiction to hear and determine any civil or criminal proceedings subject to the provisions of the Constitution. Section 237 then conferred jurisdiction on the competent High Court to deal with election petitions. The same distinction was manifested in the appellate jurisdictions of the Federal Court of Appeal and of this Court. While appeals as of right were covered by section 220 (1) (a) to (e) and section 213 (2) (a) to (d) in the Federal Court of Appeal and in this Court respectively, section 220 (1) (f) and section 213 (2) (e) conferred the right of appeal to the Federal Court of Appeal and to this Court in respect of election petitions.

From the provisions of the Constitution referred to above, I am of the opinion that election petitions were special proceedings completely divorced and separated from civil proceedings within the context of section 267 of the Constitution and consequently a governor was not immune from legal proceedings against him in respect of an election petition.

Sowemimo, J.S.C. I have had the opportunity of reading in draft the judgment of my brother Bello, J.S.C. and I agree with him.

The question of immunity was raised on the basis that the first respondent had since 1st October, 1983 been sworn in as the new Governor. The swearing-in was not done because he had succeeded in the election for the post. He was only an incumbent Governor until a successor was appointed. In the circumstances therefore, the point raised having been fully discussed by my brother Bello, J.S.C., does not warrant any further consideration. The point is therefore unavailable to debar this Court from sending this election petition for retrial on the merits.

Irikefe, J.S.C. The preliminary objection raised in this matter was overruled by us on 26th October, 1983. Thereafter, the appeal itself was finally disposed of. The issues canvassed in regard to the said preliminary objection are now matters already overtaken by events and as such further reasons are no longer called for.

Obaseki J.S.C. At the hearing of this appeal on the 26th day of October, 1983, Chief F. R. A. Williams, SAN., counsel for the first respondent raised the preliminary objection notice of which he had given in writing, to the jurisdiction of the Supreme Court to grant the relief claimed in the notice of appeal. The objection in full reads:

“The petition which is the subject matter of the appeal and the proceedings in respect of the same were unconstitutionally commenced or continued against the first respondent. Accordingly, the relief claimed in the notice of appeal is one which the Supreme Court has no jurisdiction to grant.”

The grounds on which the objection is founded are threefold and are as follows:

“1. The proceedings in respect of the aforesaid petition were instituted and continued against the first respondent in contravention of the provisions of section 267(1) (a) of the Constitution of the Federal Republic of Nigeria.

2. The said petition was presented to the court and served on the first respondent in contravention of the provisions of section 267 (1) (c) of the Constitution of the Federal Republic of Nigeria.

3. Further and in the alternative, the first respondent having been declared elected and sworn in as Governor of Imo State for a second term of office (1983-1987) he is entitled to the immunities from legal process, proceedings conferred on the holder of such office under section 267 (1) of the Constitution of the Federal Republic of Nigeria.”

The first respondent was elected Governor of Imo State in 1979 for a period of 4 years from 1979 October 1 to 1983 September 30 pursuant to the provisions of the Constitution of the Federal Republic of Nigeria 1979 hereinafter referred to as the 1979 Constitution, the first respondent was nominated by his party the NPP to contest the election to the office of Governor of Imo State for the period 1st October, 1983 to 30th September, 1987.

The petitioner/appellant was nominated by his party the NPN to contest the said election against the first respondent and other candidates.

The election was held on the 13th August, 1983 and the third respondent declared the first respondent duly elected or returned.

The petitioner was dissatisfied with the conduct of the election and in exercise of the right conferred on him under the 1979 Constitution and the Electoral Act, 1982, he presented a petition to the High Court of Imo State praying that “it may be determined that the election is void and that fresh election be ordered.”

The petition was filed on the 25th day of August, 1983. A similar objection was raised before the High Court by motion filed on the 14th day of September, 1983.

As the petition was not heard before the 30 days time bar placed on the conclusion of the hearing and determination of election petitions by section 140 (2) of the Electoral Act 1982 expired, the High Court of Imo State on the 17th day of September, 1983 declared the petition null and void, and dismissed it. That section together with section 129 (3) of the Electoral Act 1982 were declared unconstitutional, null and void by this Court on the 30th day of September, 1983 and reasons for the judgment given on the 25th day of November, 1983 in the case of Paul I. Unongo v. Aper Aku & Ors. SC. 95/1983. Before then the appellant had unsuccessfully appealed to the Federal Court of Appeal. Against the dismissal of his appeal by the Federal Court of Appeal, the petitioner/appellant has brought this appeal. The relief the appellant sought from the Supreme Court was

“to reverse and set aside the decision of the Federal Court of Appeal and to remit the case to the High Court for continuation of hearing by the election court.”

After hearing counsel on the objection, I overruled and dismissed the objection reserving my reasons till today. We then proceeded to hear the appeal. As the appeal had substantial merit in it, we allowed the appeal and granted the relief sought.

I now proceed to give my reasons for overruling and dismissing the preliminary objection. Section 267 (1), (2) & (3) of the Constitution on which the objection is founded reads:

“(1)

Notwithstanding anything to the contrary in this Constitution, but subject to sub-section (2) of this section—

(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during the period of his office;

(b) a person to whom this section applies shall not be arrested or imprisoned during that period in pursuance of the process of any court or otherwise; and

(c) no process of any court requiring or compelling the appearance of such a person shall be applied for or issued.

Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies no account shall be taken of his period of office.

(2) The provisions of sub-section (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor and the reference in this section to ‘period of office’ is a reference to the period during which the person holding such office is required to perform the functions of the office.”

Chief F. R. A. Williams, SAN., submitted that election petition is in the nature of a civil proceeding, the institution, service, hearing and determination of which are regulated and governed by the High Court Civil Procedure Rules and the provisions of the Electoral Act, 1982. Being a civil proceeding, its institution against the first respondent is barred by section 267 (1) (a) of the 1979 Constitution. Counsel further submitted that if a person holding the office of Governor contests and loses, he is entitled to institute and present an election petition even though he still holds the office of governor but if he is declared duly elected or returned an election petition cannot be instituted against him.

Dr. Mudiaga Odje, SAN., counsel for the respondent disagreed with and rejected the submission of Chief Williams. In reply, he submitted that the immunities granted an incumbent governor by section 267 (1) (a) of the 1979 Constitution does not extend to election petition cases which challenge his right to hold and stay in that office for the period in respect of which the election was held.

Ex facie the submission of Chief Williams appears formidable but considered in the light of the fact that the office of governor is an elective office and that where an election or return is questioned in the competent High Court, the person declared duly elected or returned cannot take office until the completion of the hearing and determination of the question whether any person has been validly elected to the office, the strength of the submission disappears.

Chapter II of the 1979 Constitution particularly section 14 (2) a offers a proper guide to the proper interpretation of the Constitution. Section 14 (1) and (2) (a), (b) and (c) read:

“(1) The Federal Republic of Nigeria shall be a State based on the principle of democracy and social justice.

(2) It is hereby, accordingly, declared that

(a) sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority;

(b) the security and welfare of the people shall be the primary purpose of government;

(c) the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.”

(Italic mine).

The office of a governor of a State is an elective office which, in this case, can only be held by any person elected in accordance with the provision of section 164 (7) of the Constitution. The election or return can be questioned in the High Court of the State to which section 237 (1) of the 1979 Constitution gave the special jurisdiction. The question to be enquired into by the court is clearly expressed in the provision of the section which reads:

“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.”

It can therefore be seen that the crucial test of the qualification to hold the office is the validity of the election. Where the question is raised, until its determination by the competent high court no person can validly hold the office. The election can only be questioned by petition to the High Court. See section 119 of the Electoral Act 1982. Section 121 (1) and (2) (a) and (b) of the Electoral Act specifies the persons entitled to present election petition and those who should be respondents. The section reads:

“A person shall not be entitled to present an election petition under this Act unless—

(a) he is a person claiming to have had a right to be returned at the election; or

(b) he is a person alleging himself to have been a candidate at the election; or

(c) his name is on the register of voters for that constituency.

2.

In any petition, the respondent to such petition shall be—

(a) the successful candidate; and

(b) ; or

(c) the Chief Federal Electoral Officer of the State where the election relates to the election of the Governor or Deputy Governor of that State; or

(d) and where a petition complains of the conduct of a returning officer, he shall for all purposes be deemed to be a respondent.”

It is clear from this section 121 (2) of the Electoral Act, 1983 that the first respondent being the successful candidate is not the only statutory respondent. The Chief Electoral Officer and the returning officer are also statutory respondents. As he is not the only party to the election petition, if his name is struck out of the petition enquiry, hearing of the question can still proceed but as his right to hold office is questioned, will it not offend against the rules of natural justice to dispose of the question without giving him an opportunity of being heard? I think it will. The effect of the submission of Chief Williams being upheld is that section 121 (2) (a) will be held to be in conflict with section 267 (1) (a) of the Constitution and therefore void in so far as incumbent governors whose re-elections are questioned are concerned. I am of the firm opinion that it is not the intention of the 1979 Constitution to deprive an incumbent governor of the right of being heard in matter affecting his right to continue in office for a second term.

The attitude of this Court towards the proper interpretation of the 1979 Constitution was set in proper perspective in the case of Rabiu v. The State (1980) 8-11 S.C. 130 by Sir Udo Udoma at pages 148 to 149 in the following words:

“The function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules or interpretation of statutes are to some extent inadmissible in a way as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this Court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless, there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.” (Italic mine).

I would also bring to mind the principles of interpretation which should guide the courts in the interpretation of our 1979 Constitution which I set out in my judgment in the case of Attorney General of Bendel State v. Attorney General of the Federation and 22 others (1982) 3 NCLR.1. I would refer in particular to page 13 of the above report which reads:

“In the interpretation and construction of our 1979 Constitution, I must bear the following principles of construction in mind:

1.

2. A construction nullifying a specific clause will not be given to the Constitution unless absolutely required by the context.

3. A constitutional power cannot be used by way of a condition to attain unconstitutional result.

4.

5.

The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety; a particular provision cannot be dissevered (sic) from the rest of the Constitution.

6.

7.

8.

9.

10.

11. The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of the provision.

12. Words of the Constitution are therefore not to be read within stultifying narrowness.”

It is the declared aim and purpose of the 1979 Constitution that every State in the Federation shall have a governor as Chief Executive who is democratically elected. It is also the declared purpose of the Constitution that the validity of the election to the office shall be clear and transparent to all and if questioned the validity is to be finally determined by the competent High Court.

Section 1 (2) of the 1979 Constitution forbids the governance of the Federal Republic of Nigeria or any State thereof by any person not validly elected. It reads:

“The Federal Republic of Nigeria shall not be governed nor shall any person or group of persons take control of the government of Nigeria or any part thereof accept in accordance with the provisions of this Constitution.”

The scope of the provisions of section 267 (1) (a) of the Constitution is, in my view, measured by the principles upon which the 1979 Constitution was established. This scope is particularly reflected in section 1 (2) of the 1979 Constitution. If no person is allowed to be a governor of a State except in accordance with the provisions of this 1979 Constitution, the first respondent cannot bar the competent High Court from inquiring or hearing and determining the question whether he has been validly elected to the office of Governor of Imo State or not by claiming immunity under the provisions of section 267 (1) (a) and (c) of the Constitution.

I will not engage myself in the exercise of considering the nature of the proceeding initiated by an election petition, i.e. whether it is a civil proceeding or not. I am of the firm view that it is a civil proceeding. It is not a criminal proceeding. Proceedings before courts of law fall broadly into two classes viz: (1) civil proceedings and (2) criminal proceedings. Civil stands for the opposite of criminal, of ecclesiastical of military or of political (see Mozley & Whiteley’s Law Dictionary).

The section of the 1979 Constitution that has to be satisfied by the petitioner to succeed is section 164 (7). Section 164 (7) of the 1979 Constitution reads:

“A candidate for an election to the office of governor of a State shall be deemed to have been duly elected where there being 2 or more candidates—

(a) he has the highest number of votes cast at the election; and

(b) he has not less than one-quarter of all votes cast in each of at least two-thirds of all the local government areas in the State.”

It was for the above reasons that I overruled and dismissed the preliminary objection raised by counsel for the first respondent on the 26th day of October, 1983.

Eso, J.S.C. When this appeal came before this Court on 26th October, 1983, Chief Williams S.A.N., who was the learned Counsel for the first respondent, Chief Samuel O. Mbakwe, raised a preliminary objection. In the Federal Court of Appeal, that court had dismissed the appeal of the appellant, Chief Collins Obi, against the respondents on the precedent of their earlier decision in Paul Unongo v. Aper Aku, where, interpreting sections 129 (3) and 140 (2) of the Electoral Act 1982, they came to the decision that proceedings before a High Court in election petitions must be completed within 30 days of the election, where it affects the office of a Governor, as in this case. Chief Collins Obi has appealed against this decision to this Court, especially as this Court has overruled the decision of the Federal Court of Appeal in their interpretation of those provisions of the Electoral Act in the Unongo v. Aper Aku case.

It came to this therefore, that following our decision in the Unongo case, we were to allow the appeal of Chief Obi and send the case back to the High Court for hearing. However, Chief Williams filed a preliminary objection which reads as follows—

“TAKE NOTICE that the first respondent herein named intends, at the hearing of this appeal to rely upon the following preliminary objection, notice whereof is hereby given to you, viz:—

The petition which is the subject matter of the appeal and the proceedings in respect of the same were unconstitutionally commenced or continued against the first respondent. Accordingly the relief claimed in the notice of appeal is one which the Supreme Court has no jurisdiction to grant.

AND TAKE NOTICE that the grounds on which the said respondent intends to rely are as follows:—

1. The proceedings in respect of the aforesaid petition were instituted and continued against the first respondent in contravention of the provisions of section 267 (1) (a) of the Constitution of the Federal Republic of Nigeria.

2. The said petition was presented to the court and served on the first respondent in contravention of the provisions of section 267 (1) (c) of the Constitution of the Federal Republic of Nigeria.

3. Further and in the alternative, the first respondent having been declared elected and sworn in as Governor of Imo State for a second term of office (1983-1987) he is entitled to the immunities from legal process or proceedings conferred on the holder of such office under section 267 (1) of the Constitution of the Federal Republic of Nigeria.

AND FURTHER TAKE NOTICE that in support of this preliminary objection, the first respondent will rely on the papers filed in support of or in connection with the appeal as well as the affidavit of SIMEON ONU UDUNKA filed herewith this date.”

It was this preliminary objection that we overruled on 26th October, 1983. I am now stating my reasons for agreeing that the preliminary objection be overruled.

What came up for interpretation is section 267 of the Constitution of the Federal Republic of Nigeria 1979 which I shall hereinafter refer to as the Constitution.

The section reads—

“267

(1) Notwithstanding anything to the contrary in this Constitution, but subject to sub-section (2) of this section—

(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;

(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

(c) no process of any court requiring of compelling the appearance of such a person shall be applied for or issued:

Provided that in ascertaining whether any period of limitation has expired for the purpose of any proceedings against a person to whom this section applies no account shall be taken of his period of office.

(2) The provisions of sub-section (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.”

Chief Williams conceded that this provision is capable of two or more meanings but he argued that a court of law is entitled to presume that the meaning which has been intended by the makers of the Constitution is not the meaning which the appellant, Chief Mbakwe contends, that is, the respondent, Chief Obi, could not bring this election petition against him by virtue of s.267 of the Constitution, aforesaid set out. But, continued learned Counsel, if the provision is capable of only one meaning, then the court is bound to give effect to that meaning and in that case, it would not be concerned with the reasonableness or otherwise, of the result.

Chief Williams then referred us to the draft which was produced by the Constitution Drafting Committee and s.4 therefore provides—

“4.

(1) Subject to the provisions of this Constitution and of subsection

(2) of this section—

(a) no civil or criminal proceedings shall be instituted or continued during his period of office against a person to whom this section applies;

(b) such a person shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

(c) no process of any court requiring or compelling the appearance of such a person shall be applied for or issued;

Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, his period of office shall be left out of account.

(2) The provisions of sub-section (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

(3) This section shall not apply to a person holding or required to perform the functions of the office of the President, Vice-President, the Governor or Deputy Governor of a state, and the reference to ‘period of office’ in this section means, in relation to such a person, the period during which he holds or is required to perform the functions of the office in question.”

It is to be observed, and this is of utmost importance in this case, that the provision of the Constitution Drafting Committee draft opens with the words—

“Subject to the provisions of this Constitution.”

whereas the Constitution, as enacted that is s.267 omits these words “subject to the provisions of this Constitution ...”

Learned counsel then compared the situation under the 1963 Constitution and referred us to s. 161 (1) and (2) of the Constitution of the Federation 1963. No. 20 which provides for prohibition of certain legal proceedings. That section provides—

“161.

(1) Without prejudice to the generality of section 156 of this Constitution—

(a) no criminal proceedings shall be instituted or continued during his period of office against a person to whom this subsection applies; and

(b) such a person shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

(c) no proceedings in which relief is claimed against such a person in his personal capacity shall be instituted or continued in any court during his period of office;

but in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this subsection applies, his period of office shall be left out of account.”

In 1963, governors were not elected, whereas under the 1979 Constitution, governors were elected and according to learned Counsel, it was necessary to put the words “subject to the provisions of this Constitution” which the 1979 Constitution has deliberately omitted and especially as those opening words have been substituted in s. 267 (1) of the Constitution with—

“Notwithstanding anything to the contrary in this Constitution.”

The important thing, as I have said, in this case is the interpretation to be given to the provision of s.267 (1) of the Constitution when an incumbent governor who seeks a second term wins the election and his opponent decides to challenge this in court but the governor seeks to hide under the cloak of s. 267 (1) of the Constitution.

One has to analyse s.267 of the Constitution and read with that provision, the provisions of ss. 236 and 237 of the Constitution. I have already set out (supra) the contents of s. 237. S. 236 provides—

“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 the court in the exercise of its appellate or supervisory jurisdiction.”

This section gives unlimited jurisdiction to a State High Court to hear and determine “any civil proceedings.”

S.237 provides jurisdiction as respect “certain proceedings.” It says—

“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.

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

(a) in any case involving the office of President or Vice-President, the Federal High Court and on the coming into force of section 262 of this Constitution, the High Court of the Federal Capital Territory established pursuant to section 263 of this Constitution;

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

(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 of person is located.”

To hear and determine any question whether any person has been validly elected to any office or to the membership of any legislative house” would appear not to be regarded as “civil proceedings” as such by the Constitution. And to drive this point home, the Electoral Act 1982 seems to appreciate the difference between civil proceedings as stated in s.236 of the Constitution and “certain” proceedings as in s. 237 for s. 129 (1) of the Electoral Act 1982 provides for the election petition proceedings to be dealt with in the same manner as a claim in a civil action. The section provides—

“129.

(1) Proceedings at the hearing of the petition shall be dealt with in the same manner as a claim in a civil action in which the petitioner is the plaintiff and the respondent is the defendant, and the petition and answer shall be treated as a statement of claim and a statement of defence respectively.”

But the most important provisions which show the distinction between civil proceedings and election petitions as distinct proceedings from civil proceedings as such, are s. 220 (1) of the Constitution (which deals with appeals from the High Court to the Federal Court of Appeal) and s. 213 (2) of the Constitution (which deals with appeals from the Federal Court of Appeal to the Supreme Court). Section 220(1)(f) and s. 213 (2)(e) deal specifically with decisions on any question whether any person has been validly elected to any office under the Constitution, or to the membership of any legislative house or whether the term of any person has ceased or the seat of a person in a legislative house has become vacant. These provisions are distinct from the provisions which deal with appeals in regard to ordinary civil proceedings (see the other paragraphs of both sub-sections).

It appears to me that to have a provision which will protect a governor from being challenged in court in an election petition, it has to be so specific that it will admit of no equivocation. Certainly a governor after completing a term of four years has ever right to seek a second term once he can satisfy the pre-requisites as set out in the Constitution and the Electoral Act. But where he is declared elected by the Fedeco and his election is challenged, he cannot hide under the immunity provided for governors by section 267 of the Constitution.

I think the purpose of section 267 of the Constitution is clear. It is to prevent the governor from being inhibited in the performance of his executive functions by fear of civil or criminal litigation arising of such performance during his tenure of office. I do not intent to extend the provision beyond this. With respect, to extend the immunity to cover the governors from being legally challenged when seeking a second term will spell injustice. I am conscious of the fact that in my interpretation of s.267 of the Constitution, I am giving that provision a narrow interpretation. This is deliberate for in my view, in the interpretation of the Constitution, care should be taken not to diminish from the justice of the matter. This is not a case of a judge engaging in legislative process. It is one of a judge being alive to the circumstances of the time, the justice of the matter, and his responsibility not to exist as a mere dictionary of words.

For these reasons, I overruled the preliminary objection and dismissed Chief Williams’ application.

Aniagolu J.S.C. I have been privileged to read the REASONS FOR RULING of my learned brother, BELLO, J.S.C., and I agree and adopt his reasoning. I agree that an election petition is a special proceeding outside the ambit of the provisions of section 267 of the Constitution. Additionally, it behoves me to comment that even on a consideration of the matter from the stand point of general law, it appears to me inequitable that a person who contests an election under the provisions of the Electoral Act, 1982, and who ostensibly wins the election and is sworn in as a governor by reason thereof, should, haven taken the advantage or benefit of the Act to be declared the governor, refuse to take the liability, as provided by the same Act, of defending, in a law court, the validity of the said declaration. I use the word “ostensibly” because although, on the face of it, he has been declared duly elected by a majority of votes, it is that very assertion or declaration that is in contest in the election petition.

Again, were this immunity objection to be sustained and s.267 held to extend to an election petition, it would virtually mean that no person will ever file an election petition against a gubernatorial incumbent. That could never be within the spirit and intendment of the Constitution.

Uwais J.S.C. On 26th October, 1983 we overruled the preliminary objection raised in this appeal and allowed the appeal. We reserved our reasons for doing so until today.

I have had the privilege of reading in advance the reasons given by my learned brother Kayode Eso, J.S.C. I entirely agree with the reasons. I adopt them as mine and I have nothing to add.