UKPAI V. OKORO & ORS

• Pages: 599-619

UKPAI V. OKORO & ORS.

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599

I would like to observe further that the National Assembly has power under sec-

tion 73 of the Constitution to legislate in respect of election petitions but such power

does not extend to prescribing or limiting the time within which the courts must

hear and determine an election petition.

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The next point taken by Mr. Sofola, learned Senior Advocate for the appellant

was that the case should be remitted to the High Court to be heard, but that in view

of the remarks made by the learned Chief Judge who presided he (the learned

Chief Judge) should be excluded from the panel of Judges which would hear the

case. Mr. Ajayi did not oppose the request on the ground that it did not matter to

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the 1st respondent which Judges constituted the trial court.

In the Federal Court of Appeal Mr. Sofola challenged the record of the pro-

ceedings in the High Court, by filing on affidavit sworn to by his junior, who was

with him in the trial court, to show that the record was incomplete as it did not con-

tain the dialogue which took place between Mr. Sofola and the presiding Chief

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Judge. No counter-affidavit was filed to dispute the truth or accuracy of the affi-

davit and Mr. Ajayi confirmed that the affidavit was substantially accurate.

I do not think it is necessary to reproduce here the dialogue but suffice it to say

that by allowing himself to be drawn into unnecessary exchanges with counsel for

the petitioner the learned Chief Judge inadvertently made certain remarks which

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were unfortunate and should not have been made. I agree with the observation

made in this respect by my learned brother Sowemimo C.J.N. and would there-

fore refrain from commenting any further.

It was for these and the reasons given by the learned Chief Justice of Nigeria

that I agreed on 30th September, 1983 that this appeal should be allowed and the

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decision of the Federal Court of Appeal should be set-aside. And that the appel-

lant's petition be remitted to the Plateau State High Court, Jos to be heard on the

merits with despatch with an order that the learned Chief Judge of Plateau State

should not be a member of the panel that would hear the petition.

Appeal allowed.

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UKPAI V. OKORO & ORS.

35

SHEDRAK ORJI UKPAI

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APPELLANT

V

UDO OJI OKORO & 2 ORS.

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RESPONDENTS

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SUIT NO. SC 118/1983

SUPREME COURT OF NIGERIA

IRIKEFE,

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J.S.C.

BELLO,

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J.S.C.

OBASEKI,

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J.S.C.

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ESO,

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J.S.C.

ANIAGOLU,

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J.S.C.

NNAMANI,

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J.S.C.

UWAIS,

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J.S.C.

25th November, 1983

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Constitutional Law - Right to fair hearing.

600

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NIGERIAN SUPREME COURT CASES

[1983] N.S.C.C.

Election petition - Failure by 2nd and 3rd respondents to file reply - Petition

allowed without hearing evidence notwithstanding 1st respondent's reply - Case

remitted to High Court for hearing on merits.

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Practice and Procedure - Jurisdiction - Proper forum - Indivisibility of Jurisdiction

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of a state High Court - Competence of any judicial division of a state High

Court to hear election petition.

ISSUES:

1.

Whether the High Court of a State has jurisdiction or power to try an election

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petition where the petition relates to a Federal Constituency located outside the

judicial division, assigned to that particular division of the High Court.

2.

What is the extent or limit of the jurisdiction of a competent High Court under

section 237(1) of the Constitution of the Federal Republic of Nigeria?

3.

Whether it is proper for a High Court to give judgment to a petitioner without

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taking evidence.

4.

What is the correct interpretation of the references to "senatorial district',

"federal constituency" and "state constituency" in section 237(2)(c) of the 1979

Constitution?

5.

What is the effect of s.119(4)(c) of the Electoral Act, 1982 in view of the

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provisions of the 1979 Constitution?

FACTS:

The appellant an unsuccessful candidate sponsored by NPP was petitioner in

the High Court and questioned the election and return of the NPN candidate, the

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1st respondent to fill a vacant seat in the House of Representatives conducted by

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the 2nd respondent. The 1st respondent filed a reply but the 2nd and 3rd respond-

ents did not reply. The petition was filed in the registry of the Umuahia judicial di-

vision of the High Court of Imo State and not Afikpo judicial division, an area in

which the Afikpo Federal constituency is located. The 2nd and 3rd respondents

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objected to this. The High Court delivered judgment in favour of the petitioner in

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default of filing of replies by 2nd and 3rd respondents. The High Court also said

the Judicial divisions did not in any way affect the Imo High Court.

The respondent appealed to the Court of Appeal and the appeal was allowed

on the ground that Justice was denied and the High Court of Umuahia had no Juris-

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diction and was the wrong forum. The petitioner has now appealed to the Su-

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preme Court.

HELD:

1.

That there is only one High Court for each state. According to section 237 of

the 1979 Constitution, where the question before the court involves the

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membership of the seat of a person in a legislative house, the competent High

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Court to deal with it is the High Court of the State (established under s.234 of

the 1979 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.

2.

That references to "Senatorial District", "Federal Constituency" and "State

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Constituency" in section 237(2)(c) of the 1979 Constitution is for the

identification of the State concerned, the High Court of which is the competent

court. They are not used to identify the High Court.

3.

The actions of the trial Judges when they proceeded to judgment without

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hearing evidence when issues had been joined was a serious breach of the

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rules of natural justice, the High Court Rules, the provisions of the Electoral Act,

1982 and the principles of fair hearing enshrined in section 33(1) of the 1979

Constitution. A tribunal that does not hear the other side or in fact any side at

all, has not given the litigants a fair hearing.