CHIEF SERGEANT AWUSE v. DR. PETER ODILI & ORS
(2003)LCN/1476(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of October, 2003
CA/PH/EPT/154/03
RATIO
JURISDICTION: WHERE APPEAL HAS BEEN ENTERED ON A CASE
“It is now settled law that where an appeal has been entered in the appellate Court, the lower court from which the appeal emanated will cease to have jurisdiction, see:
EZEMO vs ATTORNEY GENERAL, BENDEL STATE (1986) 4 NWLR (Pt 36) 448.
In BIOCON AGROCHEMICALS (NIG) LTD Vs KUDU HOLDINGS (PTY) LTD (1996) 3 NWLR (Pt 437) 373, the Supreme Court stated at page 380 per Kutigi, JSC that:
“I must also add that the true position here now is that this court has already received the record of appeal compiled by the appellants/applicants and the appeal having been entered in the cause List; any application thereof including application for stay of proceedings should be made direct to this Court.”” PER RABIU DANLAMI MUHAMMAD, J.C.A.
JUSTICES
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
Between
CHIEF SERGEANT AWUSE Appellant(s)
AND
- DR. PETER ODILI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE RESIDENT ELECTORAL COMMISSIONER
4. THE RETURNING OFFICER, RIVERS STATE & 323 ORS.IN RE: (1) THE HONOURABLE PRESIDENT, COURT OF APPEAL, ABUJA
(2) THE ELECTORAL TRIBUNAL, PORT HARCOURT Respondent(s)
RABIU DANLAMI MUHAMMAD, J.C.A. (Delivering the Lead Ruling ):
On the 31st day of July, 2003; this Court allowed the appeal of the first respondent herein and ordered that the Election Petition filed by the first respondent Sergeant Awuse be heard on the merit by a differently constituted Election Petition Tribunal. The applicant herein who was the first respondent in the said appeal was aggrieved by this decision. He therefore appealed to the Supreme court.
He then filed a motion on notice before this Court asking for the following reliefs:-
“(a) an order for a stay of execution of the judgment delivered in this matter by the Court on 31st July 2003;
(b) an order of injunction restraining the Election Tribunal of Rivers State, Port Harcourt from hearing and determining the petition herein.
(c) An order of injunction restraining the Honourable President of the Court of Appeal from constituting an election panel to hear and determine the petition herein pending the hearing and determination of the appeal by the Supreme Court;
(d) such further and/or other order(s) as this Honourable Court may deem fit to make in the circumstances.
The motion was supported by a sixteen paragraphs affidavit sworn to by one Oris Onyiri, the Secretary of the People’s Democratic Party, Rivers State. The first respondent filed an eight paragraphs counter-affidavit. The applicant then filed a reply to the counter-affidavit.
At the hearing of the motion; Mr. Kehinde Sofola, the learned Senior Counsel for the applicant stated that the application was straight forward. He pointed out that the Notice of Appeal was based on jurisdiction and submitted that the issue of jurisdiction was substantial and radical. He also submitted that the Courts always hold that grounds of jurisdiction are sufficient to make an application for stay of execution successful.
The learned Senior Counsel conceded that the issue of jurisdiction was not raised before this Court but submitted that it is settled law that the issue, of jurisdiction could be raised at any stage because of its fundamental nature and particularly where it goes to the issue of adjudication. In support of this submission, the learned Senior Advocate referred to MADUKOLU v. NKEMDILIM (1962) 1 All N.L.R. 587.
He then submitted that the Court of Appeal has no jurisdiction over an election petition which an Election Tribunal did not decide on the merit. He further submitted that if the decision of the Tribunal is on interlocutory matter, the Court of Appeal has no jurisdiction. He also submitted that our Courts should not perpetrate errors which will amount to an injustice and contrary to public policy.
He then referred to OKOKHUE Vs OBADAN (1989) 5 NWLR (Pt 120) 185. The learned Senior counsel then referred to S.246(1) and (2) of the 1999 Constitution and submitted that the petition must relate to the validity of the election of the Governor before this Court could entertain the matter and that the decision of the Court of Appeal is final only when the decision of the Tribunal is on merit. In support he referred to ORUDO Vs NEC (1988) 5 N.W.L.R. (Pt 94) 323. He urged the court to grant the stay of execution.
Mr. Kalipa learned counsel for the 2nd – 327th respondents submitted that the matter has been entered in the Supreme Court, not only that the appeal has been fixed for hearing on the 23rd day of October, 2003 and that all the parties have been served with hearing notices to this effect. He then submitted that by virtue of Order 8 Rule II of the Supreme Court Rules, this Court has no jurisdiction to entertain the application. In support of this submission he referred to the following authorities ADEKANYE Vs COMPTROLLER OF PRISONS (2000) 12 NWLR (Pt 682) 563 and MADAM MARGARET EZEOKAFOR Vs EMMANUEL EZEILO (1999) 6 S.C. (Part II).
Chief Ahamba learned Senior Counsel for the 1st Respondent in opposing the motion submitted that the application was frivolous. He further submitted that the matter has been entered at the Supreme Court and as such this Court has no jurisdiction to entertain the application. He also submitted that where there is an express provision in the constitution excluding the Notice of Appeal from the jurisdiction of the Court to which the appeal was made, this Court should be wary to use such an appeal for stay of execution and referred to S.246(3) of the 1999 Constitution in support.
He submitted that the provisions interpreted in the cases cited by Senior Counsel for the applicant are different from the provisions of the Electoral Act 2003 and as such do not apply to the present case and referred to ATTORNEY GENERAL OF OYO STATE Vs FAIRLAKES (1988) 5 NWLR (Pt 92) 1 at 23. The learned Senior Counsel submitted that when the matter was decided, the President of the Court of Appeal and the Tribunal were not parties. There was no application to join them. If the order is made, it would be an order against parties not joined. He submitted that the application is not properly constituted.
Replying on points of law, learned Senior Counsel for the application submitted that the application was filed on 11th August 2003 before the matter was entered in the Supreme Court, the application was therefore properly filed. He referred to GAJI Vs PAYE (2003) 8 NWLR (Pt 823) 583 and IJEBU-ODE LOCAL GOVERNMENT COUNCIL Vs ADEDEJI BALOGUN (1991) 1 NWLR (Pt 166) 136 at 153 and submitted that no leave is required where jurisdiction is concerned.
I will first deal with the issue of jurisdiction. Jurisdiction is so fundamental and vital that anything done by the court without jurisdiction would be a nullity no matter how well the proceedings were conducted. It has been contended that this court lacks the jurisdiction to entertain the application because the appeal has been entered at the Supreme Court. Order 8 Rule 11 of the supreme court Rules provides:
“After an appeal has been entered and until it has been finally disposed of the court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in this Order, every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission to the Court.”
It is now settled law that where an appeal has been entered in the appellate Court, the lower court from which the appeal emanated will cease to have jurisdiction, see:
EZEMO vs ATTORNEY GENERAL, BENDEL STATE (1986) 4 NWLR (Pt 36) 448.
In BIOCON AGROCHEMICALS (NIG) LTD Vs KUDU HOLDINGS (PTY) LTD (1996) 3 NWLR (Pt 437) 373, the Supreme Court stated at page 380 per Kutigi, JSC that:
“I must also add that the true position here now is that this court has already received the record of appeal compiled by the appellants/applicants and the appeal having been entered in the cause List; any application thereof including application for stay of proceedings should be made direct to this Court.”
The Supreme Court in EZEOKAFOR Vs EZEILO (1999) 6 SC (Part 11) 1 construed the effect of Order 8 Rule II and held at page 6 that:
“………….it may be said that once the court below transmits the Record of Appeal to the court that will hear the appeal and the appellate court infact receives the same, the appeal is said to be entered, See EZEMO V A.G. BENDEL STATE (1986) 4 NWLR (Pt.36) 448, OGUNREMI Vs DADA (1962) 2 NLR (pt.4) 663 and ADEWOYIN Vs ADELEYE (1962) 2 NLR (pt.1) 108. What flows automatically from the appeal being entered is that the appellate court which had now received the record of appeal is said to be seised of the whole proceedings in the sense that the res in the appeal automatically pass into the custody of the said appellate court seised of the whole proceedings. For avoidance of doubt, it is important to note that for the purposes of Rule II of Order 8 under reference there is no sharing of jurisdiction, over the res, the subject matter of the appeal, between the court below (i.e. transmitting the record of appeal) and the appellate court now seised of the appeal (i.e. the court receiving the transmitted record of appeal).
See also ADEKANYE v. COMPTROLLER OF PRISONS (2000) 12 NWLR (pt.682) 563.
It could be seen from the above authorities that the moment the appeal is entered in the Supreme court, it becomes seised of the whole proceedings and the court of Appeal ceases to have jurisdiction over the matter. In our present case, the appeal has not only been entered in the supreme court, in fact the appeal has been fixed for hearing. The appeal is to be heard on 23rd October, 2003 i.e. in six days time from today and all the parties have acknowledged that they have been served with the hearing notices.
The learned Senior Advocate for the applicant contended that since the application was filed before the record of appeal was transmitted to the Supreme Court and as such this Court has jurisdiction to entertain the matter. I am afraid that this is not the position of the law. This court has jurisdiction to entertain the matter only where the appeal has not been entered in the Supreme court. This court has no jurisdiction to entertain the matter where appeal has been entered in the Supreme Court, even though when the application was filed, the matter has not been entered in the Supreme court.
The determining issue is not when the application is filed but when it is heard.
In the circumstance, I hold that this court has no jurisdiction to entertain and determine the application. The appeal has been entered in the supreme court had it is seised of the whole proceedings. Only the supreme court to the exclusion of all other courts can entertain any application in this matter. No other court can touch the matter.
The application is struck out for want of jurisdiction. I make no order as to costs.
PIUS OLAYIWOLA ADEREMI, J.C.A.: I agree with my learned brother, Muhammad, JCA, whose reasons for ruling I have had the privilege of a preview that the application is not meritorious.
I wish to add a few words of my own; all the counsel for the parties i.e. Mr. Kehinde Sofola, SAN for the 1st respondent/applicant, Mr. Ahamba, SAN for the petitioner/respondent and Mr. Kalipa for the 2nd to 327th respondents are ad idem that the appeal in this matter has been entered in the Supreme Court Registry and indeed, it has been fixed for hearing on Thursday, 23rd October 2003.
Once the court below transmits the Record of Appeal to the appellate court that has the constitutional right to hear and determine the appeal and the appellate court has infact received the said record, the appeal is said to have been entered in the appellate court. It follows therefore that the appellate court that has received the record of appeal automatically becomes seised of the whole proceedings in the sense that the res in the appeal automatically passed into the custody of the said appellate court seised of the whole proceedings; with the result that no application or matter relating to the appeal shall be entertained by the court, the like of this court in the matter under consideration, from where the appeal is coming, see (1) EZEOKAFOR VS. OZUILO (1999) 9 NWLR (PT 619) 553 and (2) EZOMO VS. A-G, BENDEL STATE (1986) 4 NWLR (PT 36) 448.
On this immutable principle of law but most especially for the fuller reasons given in the lead ruling I also refuse the application. I abide by all the consequential orders made in the lead ruling.
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.: I was privileged to have access to the draft copy of the Ruling just delivered by my learned brother MOHAMMED J.C.A.
This was an appeal from the decision of Election Petition Tribunal, Port Harcourt to this court. The Court of Appeal on the 3rd of July 2003 allowed the appeal and ordered that the petition be heard by the Election Tribunal differently constituted. The respondent appealed against the judgment of the court of Appeal to the Supreme Court. Meanwhile the respondent filed an interlocutory application for stay of the execution of the judgment of the court of Appeal pending the determination of the appeal to the Supreme Court. Secondly that the President of the Court of Appeal be restrained from the reconstituting another Electoral Tribunal to hear and determine the petition.
While arguing the interlocutory application on the 11th of October, 2003 – Mr. Kehinde Sofola for the Respondent/applicant explained the need to appeal to the Supreme court in this matter on the issue of jurisdiction which is fundamental, so that our courts will not continue to perpetrate errors which will amount to injustice. All the counsels revealed to the court that hearing Notice had already been received from the Supreme Court – and hearing of the appeal over there is scheduled for the 23rd of October 2003. In effect the appeal had been entered at the Supreme Court. I agree with the conclusion of my learned brother in the lead Ruling that the procedural effects of an appeal being entered at an appellate court are well known.
By the combined effect of Order 8 Rule 11 of the Supreme Court Rules and Order 1 Rule 21 of the Court of Appeal Rules 2002, this court becomes functus officio in the matters. By virtue of Order 1 Rule 21 (2) of the Court of Appeal Rules 2002 –
“After an appeal has been entered and until it has been finally disposed of the court shall be seized of the whole of the proceedings as between the parties there to and except as may be otherwise provided in those rules; every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission to the court.”
In effect the Supreme Court has now become seized of the matter and possessed exclusive jurisdiction to hear the applicant’s application filed 11/8/03: Mohammed v. Oluwunmi (1993) 4 N.W.L.R. (Pt 287) page 254; Biocon Agrochemical Nig. Ltd v. Kudu Holdings (PTY) Limited (1996) 3 N.W.L.R. (Pt 437) page 373; Adekanye v. Comptroller of Prisons (2000) 12 N.W.L.R. (Pt 665) Page 563.
I agree with the lead Ruling that the application filed 11/8/03 be struck out. I abide by the consequential orders made therefrom.
ALBERT GBADEBO ODUYEMI, J.C.A.: Judgment was given by this Court on 31st July, 2003 in the appeal lodged by the Petitioner/Respondent to this application against the Ruling of the Rivers State Election Tribunal, Port Harcourt which struck out the petition of the Petitioner/Respondent before it on the ground of incompetence.
This Court allowed the appeal and ordered that the petition be heard by the Electoral Tribunal for Rivers State differently constituted.
The application herein prays this Court for the following Orders:
(a) an order for a stay of execution of the judgment delivered in this matter by the Court on 31st July, 2003.
(b) an order of injunction restraining the Election Tribunal of Rivers State, port Harcourt from hearing and determining the petition herein.
(c) an order of Injunction restraining the Honourable President of the Court of Appeal from constituting an election panel to hear and determine the petition herein.
In the course of the hearing of the application Kehinde Sofola, Esq., of Senior Counsel to the Respondent/applicant disclosed that records in the appeal had been forwarded by the Registry of this Court to the Supreme Court concerning the appeal lodged against the judgment of this Court and that the Supreme Court had fixed the appeal for hearing on 23rd October, 2003.
Both learned Senior Counsel for Petitioner and counsel for 2nd- 229th Respondents duly confirmed the development and also that each set of Respondents has received the said hearing Notice from the Registry of the Supreme Court.
In the circumstance, it is clear from the provisions of Order 8 Rule II of the Supreme court Rules that this court no longer has jurisdiction to entertain the application under consideration.
I therefore have no hesitation in agreeing with the Ruling of my learned brother MOHAMMAD, JCA to strike out the petition for want of jurisdiction.
I abide by the Order as to costs.
AMIRU SANUSI, J.C.A.: The ruling just rendered by my learned brother Muhammad JCA was made available to me before now. Having gone through the leading ruling, I am entirely in agreement with his reasoning and conclusion reached. I simply wish to add a few words of mine on one of the salient issues raised by counsel to the parties.
It is agreed by both counsel that the applicant/appellant had already appealed against the judgment, we delivered on the appeal on 31/7/2003. Mr. Kehinde Sofola SAN, learned senior counsel representing the applicant in this motion submitted, inter Alia, that he appealed against this court’s judgment to the Supreme Court and infact the appeal has been stated for hearing at the Supreme Court on 23/10/2003. All the remaining counsel did not dispute that. That being so, the apex court must have all the records of appeal and lower tribunal and as well the parties’ counsel must have filed their briefs of arguments. In my judgment in the case of ADEKANYE VS COMPTROLLER OF PRISONS (2000) 12 NWLR (Pt 682) 563, I had this to say at page 571 para E-H:
“The Court of appeal has no jurisdiction to hear interlocutory proceedings in a suit in respect of which an appeal has been entered at the Supreme Court or there is remittance of the record of appeal from the Court of Appeal to the Supreme Court. In the instant case, the Court of Appeal ceased to have jurisdiction to hear the applicant’s application filed on the 29th November, 1999 from 4th December, 1999 on which latter date the record of appeal was remitted to the Supreme Court and from which date the Supreme Court became seised of the matter and possessed exclusive jurisdiction to hear the applicant’s application.”
See BIOCON AGROCHEMICALS NIGERIA LIMITED VS KUDU HOLDINGS (PTY) LIMITED (1996) 3 NWLR (Pt 437) 373; MOHAMMED Vs OLAWUNMI (1993) 4 NWLR (Pt 287) 254.
As I posited above in this instant case, the records of appeal of this court were not only remitted to the apex court but also a date had been fixed for the hearing of the appeal there. Our jurisdiction to entertain application for stay of execution of the judgment we earlier delivered is ousted. The proper place to take the application is certainly Supreme Court which is the Court that is seised of the matter.
For the more detailed reasons a given in the leading ruling of my learned brother, with which I agree, I also hold that this court lacks jurisdiction to grant the prayer for stay of execution sought in the application. I too as a corollary, strike out the application . No order is made on cost.
Appearances
KEHINDE SOFOLA, SAN, with him B.M. WIFA, SAN and MISS O. OGUNNIYIFor Appellant
AND
M.J. AHAMBA, SAN with V.C. OBIANOYI, PRINCESS P. AJUDUA, E.D. EGBEBU AND KEN SARONWIYO
JOHN KALIPA with M.C. UDOJIFor Respondent
