UNONGO V. AKU & ORS
| Pages | 563-591 |
UNONGO V. AKU & ORS.
563
UNONGO V. AKU & ORS.
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PAUL IYORPUU UNONGO
APPELLANT
V
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1. APER AKU
2.
ALFRED TORKULA
[CHIEF FEDERAL ELECTORAL
OFFICER, FEDERAL
RESPONDENTS
ELECTORAL COMMISSION,
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BENUE STATE]
3.
JOSEPH K.I. UGELA
(THE RETURNING OFFICER)
SUIT NO. SC 95/1983
SUPREME COURT OF NIGERIA
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SOWEMIMO,
C.J.N.
IRIKEFE,
J.S.C.
BELLO,
J.S.C.
OBASEKI,
J.S.C.
ESO,
J.S.C.
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NNAMANI,
J.S.C.
UWAIS,
J.S.C.
25th November, 1983
Election Petitions - Hearing of - Limitation of Actions - 30 day limit inipossed
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by Electoral Act for Hearing of election petitions - unconstitutional and therefore
invalid - Federal Court of Appeal judgment set aside and petition remitted to
High Court for hearing on Merits.
ISSUES:
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1. Whether it is constitutional to use legislation to control the exercise of judicial
functions.
2.
Whether the sections of the Federal Electoral Act 1982, dealing with time
limitations for the determination of judicial functions are unconstitutional and
therefore null and void.
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FACTS:
The appellant was one of the unsuccessful candidates for election to the office
of Governor of Benue state. The 1st respondent was duly returned as Governor.
The appellant dissatisfied filed a petition in the being High Court and questioned
the validity of the return of the 1st respondent and praying that the election was null
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in the High Court the appeal was struck out on the ground that the immunity ac-
corded to a Governor by s.267 of the constitution protected him. On appeal this
decision was set aside by the Federal Court of Appeal but the court did not know
what relief to grant to the appellant because s.129(3) and s.140(2) of the Electo-
ral Act set the time limit of 30 days within which the court must complete the trial
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of the petition. The appellants appealed to the Supreme Court.
HELD:
1. It is within the province of the National Assembly to prescribe the practice and
procedure to be followed by a court which hears an election petition.
564
NIGERIAN SUPREME COURT CASES
[1983] N.S.C.C.
2.
The power to prescribe the practice and procedure to be followed by the court,
cannot, in view of the constitutional doctrine of separation of powers amongst
the three arms of government, that is the Executive, Legislature and Judiciary,
extend to the limitation of the time within which a case properly instituted in a
court can be heard and determined. If the power were so to apply, as it applies
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under the Electoral Act, then it would be
ultra vires,
because it amounts to
unconstitutional interference with judicial functions.
3.
Sections 129(3) and 140(2) of the Electoral Act deprive the petitioner of his
fundamental right to fair hearing guaranteed by s.33(1) of the Constitution by
limiting the period within which an election petition must be disposed of and
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on this account the two sections are unconstitutional and invalid.
CASES REFERRED TO IN JUDGMENT:
1.
State of Indiana ex rel kostas v. Johnson
168 ALR 1118.
2.
Att-General cf Bendel State v. Att-General of the Federation and 22 ors.
15
(1982) 3 NCLR 1 at p.40.
3.
Dr. Sofekun v. Chief Akinyemi & 3 Ors.
1980 5-7 SC 1.
4.
State ex rel Hovey v. Nobel Supra
118 Ind. at page 352 21 ME at pg. 245 4
LRA 101, 10 AM.st Rep 143.
5.
Board v. Albright
(1907) 168 Ind. 564, 578, & 1 NE 578, 882.
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6.
Board etc v. Stout
(1893) 163 Ind 53, 35 NE 683, 22 LRA 398.
7.
Lafayette M & B.R.
Co. v.
Gerger
(1870) 34 Ind. 185.
8.
State v. Shumaker
(1928) 200 Ind. 716, 721, 164 NE 408, 63 ALR 218.
9.
Atchison T & S.F.R.
Co. v.
Long
1926 122 Okla 86, 88.
10.Schario v. The State
(1922) 105 Ohio st; 535, 138 NE 63, 64;
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11.Riglander v. Star
Co. (1905) 98 App. Div. 101, 90 NYS NE 1131.
12.Myers v. United State
272 U5 52.
13.Akintola v. Adegbenro
1963 S.C. 614.
14.Isiyaku Mohammed v. Kano N.A.
1968 1 All N.L.R 42.
15.
Chief Jim lfeanyichukwu Nwobodo v. Chief Christian
C.
Onoh
S.C. 96 1983.
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16.
Chief Akin Omoboriowo and 1 Or. v. Chief M. Adekunle Ajasin
S.C. 98.
1983.
17.R.
Ariori & Ors. v. Muraino B.O. Elemo & ors.
1983 1 S.C. 13.
18.Onitiri v. Benson
5 F.S.C. 150 at p.154.
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Chief F.R.A. Williams, S.A.N.
(with him
Chief A. Ogunsanya, M.A.J. lkongbeh, Mr.
A. Ogunsanya and Mr. T.E. Williams)
for Appellant.
Dr. M. Odje, S.A.N.
(with him
Mr. P.R.U. Belabo, Mr. S.S. Obaro, Mr. P. Martins,
Mr. P.N. Chagu)
for 1st Respondent
Mr. U.C. Uji [A.G., Benue State],
[with him
Mr. S.P. Ejale (S.G. Benue State), Mr.
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al. Horn (D.P.P.. Benue State)]
for 2nd & 3rd Respondents.
UWAIS, J.S.C.
(Delivering the Judgment of the Court): Both the appellant and
the 1st respondent were candidates in the governorship election that was held in
Benue State on 13th August, 1983. The 1st respondent was declared winner by
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the 3rd respondent. Consequently the appellant brought an election petition in
Benue State High Court at Makurdi against the respondents. In the petition the
appellant prayed thus:
that it may be determined that the said Aper Aku was not duly elected or
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returned and that the votes purportedly cast for him in the Ankpa, Oju, Vandei-
kya, Kwande, Katsina-Ala, Bassa, Dekina, Idah and Gboko Local Government
Constituencies were void, and that the said Paul lyorpuu Unongo was duly
elected and ought to have been returned.
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