CHIEF SERGEANT CHIDI AWUSE v. CELESTINE NGOZICHIM OMEHIA & ORS.
(2008)LCN/2842(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of July, 2008
CA/PH/EPT/8/08
RATIO
JURISDICTION: COMPETENCE OF COURT
It is trite that where proper parties are not before the Court, the Court will lack competence to adjudicate on the matter brought before it. In other words, the trial court will have no jurisdiction to hear any such matter where necessary and appropriate party(s) are absent from the case. See: Buhari & Anor v. Yusuf & Anor. (2003) 14 NWLR (Pt 841) 446 at 449 (2004) 1, EAC 67 at 83, Yahava Vs. Aminu & Ors. (2004)2 EAC 168 at 189; Uzodinma Vs. Udenwa & Ors. (2004)2 EAC 133 at 151 & 161.PER OLUKAYODE ARIWOOLA, J.C.A
WHETHER A GROUND OF APPEAL, WHICH IS OF LAW, MAY SUSTAIN AN APPEAL WITHOUT A LEAVE OF COURT
The law is trite that where a ground is that of law, it can sustain an appeal without any leave. Even where the appeal is interlocutory as in this case no leave shall be required for filing the appeal as all the grounds of appeal are of law as stated in NWADIKE V. IBEKWE (1987) 4 NWLR (Pt.67) 718 that the position of the law is that once grounds of appeal an interlocutory decision are of facts or mixed law and facts, it can only be filed with leave. See LEKWOT v. JUDICIAL TRIBUNAL (1993) 2 NWLR (pt.276) 410 cited in the case of ABUBAKAR v. YAR’ADUA (2008) 4 NWLR (pt.1078) 465. PER GEORGE OLADEINDE SHOREMI J.C.A
JUSTICES
SAKA ADEYEMI IBIYEYE Justice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
OLUKAYODDE ARIWOOLA Justice of The Court of Appeal of Nigeria
GEORGE OLADEHINDE SHOREMI Justice of The Court of Appeal of Nigeria
Between
CHIEF SERGEANT CHIDI AWUSE Appellant(s)
AND
1. CELESTINE NGOZICHIM OMEHIA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 2 ORS. Respondent(s)
CLARA BATA OGUNBIYI, J.C.A.: (Delivering the Leading Judgment): The judgment here is in respect of the two appeals, which were brought by notices of appeal filed on the 14th December 2007 and 15th March 2008 respectively. The two notices of appeal, which are at pages 586 – 589 of the record of appeal and pages 204-210 of the supplementary record of appeal respectively, were not assigned different numbers. They were therefore treated under one appeal number, and argued together even though there was no application for the consolidation of the two appeals. Because this is an election matter which ought to be treated expeditiously, the error or otherwise in this appeal will be overlooked.
The two rulings dated 29th November 2007 and 27th February 2008 against which the two appeals were filed arose from the same set of facts which I will set out here under briefly as follows:-
On the 14th day of April, 2007, Governorship elections were held throughout the 36 States of the Federal Republic of Nigeria. In Rivers State, the appellant in both appeals herein was a candidate sponsored by Democratic Peoples Party in that election, while the respondent was sponsored by the People Democratic Party.
After the election aforesaid the respondent was declared the winner and was accordingly returned as the duly elected Governor of Rivers State by the Independent National Electoral Commission (INEC) the 2nd respondent.
In reaction to the declaration by INEC, the appellant herein filed a petition dated 14th May 2007 against the respondent and others at the Governorship and Legislative Election Tribunal sitting at Port Harcourt.
The respondent was subsequently sworn in as the Governor of Rivers State on 29th May 2007. Paragraphs 45-50 of the petition reproduced read:-
“45. Your petitioners aver that the 1st respondent was at the time of the election, not qualified to contest the election based on the Federal High Court judgment dated 15th day of March, 2007 in suit No. FHC/ABT/C5/29/2007 between Rt. Hon. Chibuike Rotimi Amaechi vs Independent National Electoral Commission & 2 Ors.
48. Your petitioners aver that the return of the 1st respondent was invalid because he was not qualified at the time of the election to contest the election.
49. Your petitioners aver that the 1st respondent was not duly elected by a majority of lawful and/or valid votes cast at the election.
50. Your petitioners aver that the 1st respondent did not poll the highest number of lawful votes cast at the gubernatorial election of April 14, 2007 in Rivers State.”
The appellant eventually claimed the following reliefs at page 94 paragraph 52 of the record and said:-
“Whereof your petitioners pray that the election be declared null and void and nullified on the grounds that it was not conducted substantially in accordance with the provisions of the Electoral Act, 2006, as amended, 1999 Constitution, or as the case may be.”
During the pendency of the Appellant’s petition, the Supreme Court in a unanimous judgment which was delivered on the 15th October, 2007 in an appeal between RT. Hon. Rotimi Amaechi v (1) Independent National Electoral Commission (2) Celestine Omehia, (3) Peoples Democratic Party and Ors. (2008) 5 NWLR (Pt.1080) 227 held that Rt. Hon. Rotimi Amaechi was the PDP’s candidate at April, 14th, 2007 Governorship election in Rivers State and not Celestine Omehia. The Supreme Court therefore ordered Celestine Ngozichim Omehia to vacate the Government House with immediate effect for Rt. Hon. Rotimi Amaechi. The order was complied with and Amaechi was sworn in as the Governor of Rivers State after Celestine Omehia vacated the Government House. The effectual post mortem of the judgment of the apex court therefore heralded that Celestine Ngozichim Omehia was never either the PDP candidate nor did he ever contest and talk less of winning the said questioned governorship election held on the 14th April, 2007. Consequent to the foregoing therefore Celestine Omehia brought an application to have his name struck out from the appellant’s petition. The affidavit in support at para..6 (b) in a nutshell states:
“6. That I am informed by Dike Udenna Esq. one of the counsel for the 1st respondent and I verily believe him as follows:-
(b) That the 1st respondent is no longer “the person whose election is complained of and is also no longer a necessary or desirable party to the petition.”
The tribunal after hearing both sides granted the application and struck out the Respondent’s name. The decision in which the Respondent’s name was struck out is therefore the subject matter of the first appeal.
As a result of the striking out of the name of Celestine Omehia, the remaining respondents to wit INEC and its staff brought a motion dated and filed on the 10th December 2007 before the tribunal praying for the striking out of the entire petition on the ground that the tribunal lacked jurisdiction to further entertain the case. The application was predicated on the premise that the candidate declared elected at the gubernatorial election in Rivers State held on the 14th April, 2007 whose election was rightly to have been challenged under section 285(2) of the constitution of the Federal Republic of Nigeria 1999 was neither made a party nor was he disclosed in the petition.
This application was contentiously heard, and in a reserved and considered ruling, which was delivered on the 27th February 2008 the tribunal granted the prayers sought. At page 203 the learned tribunal had this to say amongst others:
“In the circumstance thereof, we do hereby grant the respondents/applicants prayers; that is to say the tribunal lacks the jurisdiction to continue the hearing of this petition because the person whose election or return is being challenged is not before it.”
The petition was accordingly dismissed. The said decision therefore forms the nucleus of the second appeal.
The two appeals were argued serially, and same consideration will now also be given in the order in which they were argued.
The notice of appeal, which was filed on the 14th December 2007, (which I will now refer to as the 1st notice of appeal) contains three grounds of appeal and same are hereunder reproduced without their particulars as follows:-
“1. ERROR IN LAW
The Election Tribunal erred in law in striking out the name of the 1st respondent, other than nullifying the election having rightly found in the passage of its judgment as follows:-
“It is our view that this tribunal being of subordinate jurisdiction to the Supreme Court is bound no only to obey but to enforce the decision of the Supreme Court. It follows therefore that this tribunal could and will not close its eyes to the judgment of the Supreme Court in Amaechi’s case.”
2. ERROR OF LAW
The election tribunal erred in law in granting the order striking out the name of the 1st respondent from the petition.
3. ERROR IN LAW
The election tribunal erred in law and was without jurisdiction to strike out the 1st respondent’s name from the petition.”
In reaction to the notice of appeal, the 2nd – 4th respondents on the 28th January 2008 filed a notice of preliminary objection challenging the competence of the notice of appeal. The grounds of the objection as set out in the notice are as follows:-
1. That this appeal is incompetent for gross mis-constitution of parties.
2. That section 246(1)(b)(ii) of the 1999 Constitution regulates the right of appeal to the Court of Appeal in all election petitions arising from the decision of the National Assembly Election Tribunal and Governorship and Legislative Houses of Assembly.
3. That the instant appeal arose from the interlocutory decision of the Governorship Legislative Houses of Assembly dated 29th November, 2007 which struck out the name of the 1st Respondent from the petition filed by the petitioners.
4. That the said interlocutory decision in the petition did not determine the petition on the merit in that it did not decide one way or the other whether the petitioners or the 1st respondent was duly elected.
5. That section 246(1)(b)(ii) of the Constitution only provides for a right of appeal as of right when a decision finally disposes of the petition on the merits.
Parties filed and exchanged briefs of argument. The 2nd – 4th respondents incorporated their argument on the preliminary objection in their brief of argument, while the appellant equally responded thereto in his reply brief.
When the appeal came up for hearing on the 27th day of May 2008.
Learned counsel for the parties identified their respective briefs of arguments and proceeded to adopt and relied on the arguments contained therein. Mr. O. B. James, learned counsel for the 1st respondent identified the 1st respondent’s brief of argument, dated and filed the 21st January 2008 and applied to withdraw same. Needless to restate that this application became necessary in view of the 1st respondent’s application to have his name struck out from the petition that resulted in the ruling which is the nucleus or subject matter of this appeal. Having withdrawn the brief, the 1st respondent was therefore precluded from participating in this appeal.
The relevant briefs of arguments considered for the hearing of this appeal therefore are that of the appellant’s dated 14th and filed on the 15th January 2008, and also the 2nd – 4th respondents’ dated and filed on 28th January but deemed filed on the 3rd March, 2008.
Before the hearing of the appeal. Mr. I.E. Imadegbelo, learned senior counsel for the 2nd – 4th Respondents rightly sought for leave to argue the preliminary objection which leave was accordingly granted. Learned senior counsel in his argument withdrew ground one of the grounds of the preliminary objection and same was struck out. Learned counsel therefore went on to adopt the argument in respect of the preliminary objection, which is contained at pages 2-8 of the 2nd – 4th respondents’ brief of argument and relied on the submission made therein. The senior counsel urged this court to therefore dismiss the appeal.
On behalf of the appellant, Chief mike Okoye the learned counsel identified the appellant’s reply filed the 3rd of march 2008 and submitted that the preliminary objection was argued at pages 1 – 4 of the said reply brief. Learned counsel adopted and relied fully on the reply brief and urged the court to dismiss the preliminary objection in its totality.
By way of elucidation, learned counsel attempted to distinguish the case of Amgbare v Sylva (2007) 18 NWLR (Pt.1065) 1 cited by the 2nd – 4th respondents from the instant appeal. Learned counsel insisted that the 1st respondent was the only one known to law as the person who was duly returned at the election held on the 14th April, 2008.
Mr. I. E. Imadegbelo, learned senior counsel who settled the 2nd – 4th respondents’ brief in his argument in the preliminary objection submitted that Mr. Celestine Omehia’s name was struck out as a party to the petition on the 29th day of November 2007, as such he is no longer a party in this appeal. He can only be made a party if the decision of the tribunal striking out his name is set aside on appeal, otherwise the decision of the tribunal remains valid. In aid learned senior counsel cited the authority of Nwangwu v Ofoegbu wherein this court, per Fabiyi, JCA held:
“A judgment of a court of law or tribunal, no matter how incorrectly arrived at, subsists until set aside by a competent court through appellate proceedings or by way of judicial review. In the instant case, the respondents ought to have attacked the judgment of the customary through an appeal or by way of judicial review.”
In a further argument, learned senior counsel submitted that any reference to the 1st respondent as a party was wrongly done by the appellant, thus effecting the appeal filed on the 14th December 2007 as incompetent.
On further submission the learned senior counsel re-iterated the trite law that once proper parties are not before the court or tribunal it would lack the requisite jurisdiction to adjudicate. In further substantiation and to buttress his submission, the learned senior cited the case of Onwanaly v Asademe (1971) All NLR. 220; Amoda v Ajobo (1995) 7 NWLR (Pt. 406) 170 at 182.
Further still and on the competence or otherwise of the appeal at hand, learned, senior counsel submitted that the right of appeal to this court is exclusively governed by the provision of section 246(1)(b)(ii) of the (1999) Constitution which provides that an appeal to the Court of appeal shall lie as of right from decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether any person has been validly elected to the office of governor or Deputy Governor According to the learned senior counsel, the decision against which this appeal lies was not on any question as to whether any person has been validly elected to the office of Governor or Deputy.
Counsel argued further that with the decision of the tribunal striking out the 1st respondent’s name, the appellant therefore has no right of appeal against that decision. Cited further in support are the cases of Ononuwa v Oshodin (1985) 2 NWLR (Pt.10) 924; Okokhue v Obadan (1989) 5 NWLR (Pt.120) 185 and Amgbare v Sylva under reference supra.
On the totality, learned senior counsel urged this court to dismiss the appeal.
In reply, Chief Mike Okoye further submitted the impropriety of the notice of appeal without the name of the 1st respondent. This he argued was in view of the Court of Appeal lacking in jurisdiction to grant a relief against a person who is not a party to the appeal.
On whether the order of Tribunal which struck out the name of the 1st Respondent, is a final or interlocutory order, learned counsel submitted same being a final decision because it finally determined the rights of the parties.
In a further argument, learned counsel submitted that the word decision used under S.246 of the constitution includes interlocutory ruling or decision.
The authorities in the decisions of Odutola v Oderinde (2004) 12 NWLR (Pt.888) 574 and Abubakar & Ors. v Yar’adua (2008) 4 NWLR (Pt.1078) 465 were cited further in support.
At this juncture, I would wish to state that by the two notices of appeal at pages 586 – 589 and 204 – 210 respectively, the only two respondents to the appeal are Celestine Ngozichim Omehia and Independent National Electoral Commission (INEC) to the exclusion of the word “ORS”. This is in line with order 6 rule 2(1) of the rules of this court wherein “the names and addresses of all parties directly affected by the appeal” must be stated. The necessity for the clarification of the position of the law, occasioned the summoning of counsel to further address the court on the 16th June, 2008 relating to the competence of the word “Ors” reflected in the notice of appeal, as parties. Consequently, the learned appellant’s counsel Chief Mike Okoye applied that the said word “Ors,” be struck out and, same was obliged. There are therefore only two respondents to the notices of appeal. This is apt with the trite law that a notice of appeal is synonymous to a writ of summons, being an originating process in initiating a suit or an appeal.
It is trite law that by the provision of 246 of the Constitution an appeal on matters of law, lies as of right. However, the governing sections to this preliminary objection are sections 285(2) and 246(1)(b)(ii) of the constitution which state as follows:-
“S.285(2) There shall be established in each State of the Federation one or more election tribunal to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor…”
(underline for emphasis).
“S.246(1) An appeal to the Court of Appeal shall lie as of right from –
(a) ……………….
(b) …. Decisions of the National Assembly Election Tribunal and Governorship and Legislative House Election Tribunals on any question as to whether
(i) …………………………….
(ii) Any person has been validly elected to the office of Governor or Deputy Governor….”
A related relevant question to pose is: what is the nature of the subject matter of this appeal? As rightly submitted and garnered by the learned senior counsel for the respondent, the decision sought to appeal against was not a question relating to whether or not any person has been validly elected to the office of Governor or Deputy Governor but it is a complaint against the striking out of the 1st respondent’s name. The said subject certainly does not come within the ambit of Section 246(1)(b)(ii) of the constitution consequent to which no right of appeal lies.
Section 285(2) of the Constitution of the Federal Republic of Nigeria provides as follows:-
“There shall be established in each state of the Federation one or more election tribunal to be known as the Government and Legislative Houses Election Tribunal which shall, to the exclusion of any court or tribunal have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any Legislative House. (underlining is mine)”
From the provisions of the sections above it is quite clear that the election petition tribunal is conferred with special jurisdiction for specific purpose and which jurisdiction is limited to the hearing and determination of petitions as to whether any person has been validly elected to the office as clearly specified in section 285(2) of the Constitution and in respect of which by section 246(1)(b)(ii) of same, an appeal shall lie as of right. In the instant appeal to the office of Governor.
An additional deciding factor of the validity of this petition is the provision of rule 4 of the Rules of procedure for Election Petition under the first schedule of the Electoral Act 2006 which same reproduced states as follows:
“(1) An election petition under this Act shall:
(a) specify the parties interested in the election petition;
(b) specify the right of the petitioner to present the election Petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
(d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.”
The locus classical nature of Amaechi’s case is that the absence of being a party or necessary party would render an involvement a busy body. From the decision of Amaechi v INEC (supra) therefore the 1st respondent was no longer a party interested in the outcome of the election of 14th April 2007, with the pronouncement that he was never a candidate in that election. It follows logically that the return which was made after the election was deemed to have been made in favour of Amaechi and not the 1st respondent herein. On this reason alone, I hold that the lower court was right in striking out the name of the 1st respondent.
By the doctrine of stare decisis, the decision of apex court serves as binding authority on all other courts in Nigeria. It is elementary to reiterate therefore that this court and indeed the tribunal are bound by the decision in Amaechi v. INEC (supra). The issue of whether the proper parties were before the court, or whether the decision was interlocutory or final is not important here. Section 246(1)(b)(ii) of the Constitution clearly states that parties to an election petition can appeal as of right only on any question as to whether any person has been validly elected to the office of Governor or Deputy Governor. I am aware of the apex court’s decision in Abubakar v. Yar’adua (2008) 4 NWLR (pt.1078) 465 which is binding on this court and all other subordinate courts. At page 525 paragraphs A-C the apex court, per Tabai, JSC said:
“Section 233(1) of the 1999 Constitution of the Federal Republic of Nigeria provides to the effect that an appeal from the decision of the Court of Appeal in any civil or criminal proceedings shall lies as of right to the Supreme Court where the ground of appeal involves questions of law alone. And this is irrespective of whether the decision in final or interlocutory. Thus where the grounds of appeal against the decision, whether final or interlocutory, involves question of law alone and it is filed within the times stipulated by the Rules of Court, the appeal is competent. See Mohammed v. Olawunmi (1990) 2 NWLR (pt.133) 458. No leave is required in such a case.”
Although the appellant herein has a right to appeal, with all his grounds of appeal involving questions of law, the appeal however is not coming under the provision of section 246(1)(b)(ii) of the Constitution. In other words, the appeal is incompetent and same as rightly submitted and argued by the learned senior counsel Imadegbelo, is in dire breach of the said section 246(1)(b)(ii) of the Constitution 1999. The leverage sought by the appellant’s counsel Chief Okoye that this court invokes section 15 of the Court of Appeal Act 2004 to join and or substitute Amaechi for Celestine Ngozichim Omehia is completely outside the powers arid jurisdiction of this court.
By the provisions of paragraphs 14(2) of the 1st schedule to the Electoral Act 2006 which precludes alteration or amendment read along with paragraph 4(1)(a) of the same, it is far too late in the day to effect substitution especially where contents of an election petition must on the onset have specified the patties interested in the election petition.
A judicial interpretation grounding the said principle of law was given in the case of Ngige v Obi (2006) 14 NWLR (Pt.999) 1 wherein at page 136, R.D. Muhammad JCA made the following pronouncements and said:-
“The provisions of paragraph 14(2) is clear and unambiguous.
No amendment will be allowed which will introduce new Parties to the Petition, ………………… In effect, any amendment which is substantial which alters the grounds for or the prayer in the election petition will not be allowed.”
The introduction of section 15 of the Court of Appeal Act is fundamental and substantial and would certainly alter the foundational nature of the petition away from that originally intended. This is contrary to the spirit of paragraph 14(2) of the schedule to the Electoral Act and must therefore not be allowed. This is moreso with the further strengthening derived from the provision of paragraph 27(1) of the 1st schedule on the effect of determination of Election petition which states thus:-
At the conclusion of the hearing the tribunal shall determine whether a person whose election or return is complained of or any other person, and what person was validly returned or elected, or whether the election was void, and shall certify the determination to the Resident Electoral Commission or the Commission.”
In the issue at hand, Omehia was not a person whose election or return was complained of, and in the absence of Amaechi having been made a party, he could not also properly be ascribed.
For the reasons so advanced I hold the firm view that the 1st respondent’s name was properly struck out. I therefore find the preliminary objection meritorious and I uphold same. The consequential effect on the 1st appeal therefore is that it is devoid of any merit and same is accordingly dismissed. There shall be costs of N30,000= to the 2nd – 4th respondents.
CLARA BATA OGUNBIYI, J.C.A.: The grouse of the second appeal is predicated on seven grounds of appeal wherein all are complaints of errors in law. The reproduction of the grounds without their particulars are of significance:-
“1. ERROR IN LAW
The election tribunal erred in law in entertaining further proceedings and in the hearing and determination of the 2nd – 4th respondent application challenging its jurisdiction before the court after having been served with a motion on notice seeking an order of stay of its proceedings at the Court of Appeal.
2. ERROR IN LAW
The election tribunal erred in law and was without jurisdiction in entertaining further proceedings and in the hearing and determination 2nd – 4th respondents’ application challenging its jurisdiction after having been put on notice of the appeal challenging its decision.
3. ERROR IN LAW
The election tribunal erred in law in the following passage of its judgment:
“In the circumstance thereof, we do hereby strike out all the paragraphs relating to Mr. Celestine Ngozichim Omehia in the petition, that is to say paragraphs 3, 4, 14, 24, 25, 30, 39, 40, 41, 42, 43, 45, 46, 47, 48 and 50 are accordingly struck out.”
4. ERROR IN LAW
The election erred in law when it held:
“The petitioners did not stop at that but went further and urged us to annul the election entirely. This we are afraid we cannot do because the person whose election or return is complained of is not a party to the section 140(1), 144(2), 147(1) of the Electoral Act, 2006 and paragraphs 27 (1) of the 1st schedule the Electoral Act, 2006.”
5. ERROR IN LAW
The election tribunal erred in law in the following passage of its judgment):
“In the instant case, Mr. Celestine Ngozichim Omehia who was erroneously declared the elected or returned by the respondent is no longer a party before us. The deemed declared candidate Rt. Hon. Rotimi Chibuike Amaechi is also not before the tribunal. Still the petitioners want us to annul the election of 14/04/07 into the Governorship seat of River State.
In the absence before us a person whose election or return is being complained of in this petition, we are of the view that this petition is incompetent and we so hold.”
6. ERROR IN LAW
The election tribunal erred in law when it held that the tribunal lacked the jurisdiction to continue the hearing of the petition because the person whose election or return is being challenged is not before it.
ERROR IN LAW
The election tribunal erred in law and acted in excess of its jurisdiction when it applied the decision of the Supreme Court in Rt. Hon. Rotimi Chibuike Amaechi vs. INEC to the petition on areas where no issues were joined by the parties.”
The appellants’ brief of argument was dated 31st March and filed on the 1st April 2008 wherein the learned counsel Chief Mike Okoye adopted and relied on same.
Four issues were distilled by the appellants from grounds of appeal and are as follows:-
1. Whether the election tribunal was right to strike out the paragraph5 of the petition and dismiss the petition without giving the court of appeal opportunity to entertain the motion for stay of further proceedings and the appeal. (Issue 1 is distilled from grounds I & II of the Notice of Appeal.)
2.Whether the election tribunal was right in resolving issues not pleaded and not joined by the parties in their pleadings, with evidence, contrary to and at variance with the averments in the pleadings. (Issue 2 is distilled from ground VII of the Notice of Appeal.)
3. Whether the election tribunal was right to have struck out all the paragraphs of the petition relating to Celestine-Ngozichim Omehia and to have dismissed the petition. (Issue 3 is distilled from grounds III & V of the Notice of Appeal.)
4. Whether the person whose election or return is complained of is joined as e party to the petition as presently constituted, and if the answer is in the affirmative; whether the tribunal was right not to have nullified the return and order a second election.
(Issue 4 is distilled from grounds IV & VI of the Notice of Appeal).
The 2nd – 4th respondent also formulated four issues for determination as follows:-
“(i) “Whether or nor the tribunal was right to have heard and determined the 2nd – 4th respondents’ motion on notice filed on the 10/12/07 challenging its jurisdiction.
(ii) Whether or not the tribunal was right in striking out paragraphs of the petition relating to Mr. Celestine Whether the tribunal right in Omehia not properly joined in the petition and his name struck out from the petition.
(iii) Whether or not issues were joined by the parties on the decision of Rt. Hon. Rotimi Amaechi v INEC & Ors. Appeal No.SC/252/2007.
(iv) Whether or not the tribunal was right in refusing to nullity the Gubernatorial Elections held in Rivers State on the 14th day of April, 2007.”
The learned appellants’ counsel adumbrated all the four issues formulated therefrom the seven grounds of appeal and succinctly posed a question for determination which was basically predicated on whether the trial tribunal had jurisdiction to entertain the petition.
In his submission, the said learned counsel re-iterated the error committed by the Election tribunal whereby it proceeded to entertain further proceedings despite the application before it which same sought to challenge its jurisdiction. The complaint therefore was against the tribunal proceeding to hear and determine the respondents application and thus dismissing the petition prior to this court having an opportunity to entertain the motion for stay.
Counsel submitted the attitude as bordering on judicial impertinence and an affront to the authority of the Court of Appeal. Cited in substantiation was the case of Vaswani Trading Co. v Savalakh & Co. (1972) All NLR (Pt.2) page 483. That the ruling of the tribunal dated 27th February 2008 was to foist on the Court of Appeal a fiat accomplish, thereby rendering it impossible for the court to arrive at a decision one way or the other on the merits of the application before it, or render any decision it might take on the application nugatory or futile. Cited in fortification of the argument are the cases of Mohammed v Olawunmi (1993) 4 NWLR (Pt.28) 254 and obi INEC (2007) 11NWLR (Pt.1046) 565.
Submitting on issue no.2 the learned appellants counsel reiterated the settled law that parties are bound by their pleadings and that the trial judge must not base his judgment on a matter not pleaded. The authority in support was Ochonma v Unosi (1965) NMLR 321 at 323. That the tribunal was wrong to have based its decision on the interpretation of the judgment of the Supreme Court on facts which were not pleaded, learned counsel submitted the none pleading by any of the parties that Mr. Rotimi Amaechi was the candidate at the election and was returned as elected or ought to have been returned as elected and/or that the election of the 1st respondent Celestine Ngoziehim Omehia was nullified, or that he was never elected or returned as Governor of Rivers State. That no litigant is to be allowed to setup a claim different from that pleaded in his pleadings. Learned counsel therefore drew the court’s attention to Aderemi v Adedire (1966) NNLR 398 at 401, and further argued that the decision of the Supreme Court can only be applied to the facts pleaded by the parties; and that where the averments in the pleadings are at variance with the judgment, such judgment would be of no use in resolving the dispute between the parties and ought to be disregarded. The pronouncement by Oputa JSC in the case of Ehimare v Emhonyon (1985) 1 NSLR (Pt.2) 177 serves a reference point where at page 179 the learned jurists had this to say:-
It takes two to quarrel;
It takes two to be “at issue”,
It takes two to have a dispute.
In other words, in any given case, the pleadings of both parties will have to be considered before deciding what the dispute is all about ……..”
Counsel further submitted the obvious error by the learned tribunal when it applied the judgment of the Supreme Court in Amaechi v INEC by resolving a non-issue before it which did not arise out of that joined by the parties. The case cited in point was Abu v Ogli (1995) 8 NWLR (Pt.413) 353, also Temile v Awani (2001) 12 NWLR (Pt.728) 726. He further reiterated that although this court and the court below are bound to give effect to the judgment of the Supreme Court, he however hastened to add that the said Supreme Court judgment could not be applied in a vacuum, but ought in relation to the case before the tribunal on areas where issues have been joined by the parties.
That since the respondents have unequivocally admitted in their reply to the petition before the tribunal that Celestine Ngozichim Ornehia was a candidate and the person returned as the elected Governor of Rivers State from the April 14th 2007 governorship election, such an, admission is therefore no longer a fact in issue. Again and in support counsel cited the authorities in Ehimare v Emhoyon (1985) 1NWLR (Pt.2) 171 and Olufosoye v Olorunfemi (1989) 1 NWLR (Pt.95) 26. That the Tribunal was in grave error to have decided the case on the issues no raised in the pleadings therefore. Learned counsel on this issue urged us to also allow the appeal.
On issues 1 and 4 the counsel submitted the undisputed fact that the 1st respondent Celestine Ngozichim Omehia contested and was returned by INEC as elected Governor of Rivers State in the April 14th 2007 election.
That the circumstance of the petitioner challenging the said return and the respondents having filed their respective replies was also not in dispute. That by the Supreme court’s judgment in the said case of Amaechi v INEC (supra) in declaring Rt. Hon. Rotimi Chibuike Amaechi as the candidate for PDP, in the eyes of the law therefore Rt. Hon. Rotimi Chibuike Amaechi is the person deemed to have won the election. That the question arising therefrom counsel posed, was whether the said judgment of the Supreme Court nullified the return made by INEC? Another related question was whether the judgment of the Supreme court nullified the said return and another candidate returned by the said judgment?
Learned counsel sought an answer to the questions from the provisions of Section 140(1) and (2) of the Electoral Act 2006. Counsel in cursory consideration of the laws supra submitted undisputedly that the supreme Court and its judgment do not fall within the purview of a “court” or “decision” of a court that can nullify a “return” made by INEC in a governorship election or to return another candidate as the winner of that governorship election. The counsel further related the arguments to sections 76(1) and (2) and also 164 of the Electoral Act, 2006. He also submitted further that the judgment in Amaechi v INEC (supra) relates to a pre-election matter and as such the Supreme court is without jurisdiction to interfere with election matters which are within the exclusive jurisdiction of the tribunal and the court of Appeal sitting as a final appellate court in Governorship Election matters.
Learned counsel submitted a further error by the tribunal therefore in relying on the judgment of the Supreme Court in Amaechi v INEC (supra) to strike out the name of Celestine Ngozichim Omehia as the person whose election is complained of and consequent upon the striking out in the petition the paragraphs relating to Celestine Ngozichim Omehia. He further reiterated that with the Supreme Court lacking jurisdiction to entertain Governorship election matters, it necessarily follows that the judgment of the apex court can neither have the effect of nullifying the return made by INEC nor can it have that of making another return. That with the judgment of the apex court in Amaechi v INEC (supra) relating to pre-election matters between two candidates of the same party, the petitioner, one of the contestants in the said election was not a party to the suit and therefore his rights to challenge a return made by INEC long before the Supreme Court delivered its judgment cannot be filtered. That no judgment or decision of a court can curtail or extinguish the constitutional right of the appellant. In other words that the judgment of the Supreme Court cannot defeat the c6nstitutional right of the appellant to challenge a return made by INEC.
Further more, the learned counsel submitted that unlike other elections, a declaration or return made by INEC in a governorship election is subject to section 179 of the 1 999 constitution as clearly provided in section 70 of the. Electoral Act.
That it is further settled law that it is only where a petition is upheld by the tribunal or this court on grounds relating to section 145(1) (b) – (d) of the Electoral Act, 2006, would the tribunal or this court order a fresh governorship election.
Learned counsel urged that the appeal should also be allowed on the said two issues. He therefore finally in summary prayed the court for the following orders:-
(a) An order nullifying the return of the 1st respondent as the winner of the governorship election of Rivers State held on April 14th, 2007.
(b) An order that the independent National Electoral Commission (INEC) should within 7 days of the judgment, hold a second election between the remaining candidates who scored the highest number of votes cast at the election and the second candidate with the next highest total of votes cast at the election.
(c) An order that the speaker of the House of Assembly Rivers State be forthwith sworn in as the acting Governor of Rivers State.
Responding to the 1st issue raised by the appellant, learned senior counsel Imadegblo SAN on behalf of the respondents emphasized the sui generic nature of election petition matters wherein time is of utmost essence.
Thus the reason occasioning the establishment of election tribunals which are special and Independent of regular courts as provided by section 285 of the Constitution.
Learned senior in deep consideration of his arguments submitted that insistence on hearing the application for stay of proceedings at the Court of Appeal could have occasioned unnecessary delay in the hearing and determination of the petition or the appellants at the tribunal. His position was supported by paragraph 10 of the Election Tribunal and court Practice Direction no.2 2007 which forbids stay of proceedings in interlocutory appeals. The learned senior counsel in fortification of his submission cited the authority in the case of Osunbor v Oshiomole (2007) 18 NWLR (pt.1065) pages 32 at 40 wherein Ibiyeye JCA held and said:-
. “By virtue of paragraph 10 of the practice Direction No.2 of 2007, an interlocutory appeal shall not operate as a stay of proceedings nor form a ground for stay of proceedings before an election tribunal. This is to engender speed in the consideration of any election matter.”
Learned counsel urged therefore that the first issue be resolved against the appellants.
Issue two relates to the propriety or not of the striking out of the paragraphs relating to Mr. Celestine Ngozichim Omehia as 1st respondent from the petition.
Submitting on this issue, learned senior argued that when a party not properly joined in suit is struck out, any allegation made against him becomes irrelevant and incompetent.
That the decision of the tribunal in striking out the name of the 1st respondent on the 29th day of November, 2007 therefore constituted the end of the 1st respondent as far as his involvement in the petition was concerned. To buttress his submission, the learned seniors cited the authority in the case of Obasanjo v Yusuf (2004) 9 NWLR (pt.877) page 144. He further submitted the complaint by the appellant as nothing but “a storm in a teacup.” Learned senior urged that the issue be resolved in favour of the 2nd – 4th respondents therefore.
The third issue seeks to determine whether or not issues were joined by the parties on the decision of Rt. Honourable Amaechi v INEC & Ors.
Senior counsel in substantiation related the trite law that in the determination of the issue of jurisdiction, the tribunal must consider the averments in the petition. For the fortification of this proposition the cases of Parco (press & Books) Ltd. v CBN (2001) 3 NWLR (pt.700) page 347 at 365 and Multi-purpose Ventures v Attorney General of Rivers state (1997) 9 NWNR (pt.522) page 642 at page 665 are very relevant.
Learned senior reiterated that pleadings provide the legal basis for judgment which must be confined to matters in which legal issues have been joined. That a judgment should not be based on matters outside the pleadings: counsel therefore urged the court to hold that the honourable tribunal did not go outside the pleadings of the parties in the determination of the 2nd – 4th respondents application and dismissing the petition. Counsel urged that the issue also be resolved in their favour.
Issue four questions the propriety or not of the tribunal in refusing to nullify the gubernatorial election held in Rivers State on the 14th day of April, 2007.
In possing the question whether the tribunal could have nullified the gubernatorial elections held in Rivers state on the 14th day of April, 2007 without the joinder of the Rt. Hon. Rotimi Chibuike Amaechi, same the learned counsel submitted in the negative. The learned counsel pursued with candour and vigours the effectual provisions of sections 140(1), 144(2) and 147(1) of the Electoral Act 2006 as well as 285(2) of the constitution of the Federal Republic of Nigeria 1999 as evident. That following the Supreme court’s decision,-the petition of the appellants is a nullity with same having been filed against a non-candidate. That the combined effect of the apex court’s judgment was that Mr. Celestine Omehia was illegally sworn in as the Governor of Rivers State.
Learned senior in further submission anchored on section 36 of the constitution of the Federal Republic of Nigeria 1999 which precludes the tribunal from giving any decision or making any order against Rt. Hon. Chibuike, who was not a party to the petition. Cited in support further were the authorities in the cases of Obasanjo v Buhari (2003) 17 NWLR (Pt.650) 51 and also Buja v Ibrahim (2006) 1 NWLR (pt.981) page 1.
The counsel therefore prayed before us to affirm the Ruling of the lower tribunal and dismiss the appeal on the ground that it lacks merit.
In the reply brief the learned appellant’s counsel submitted further that paragraph 10 of the Practice Direction No.2, 2007, which was heavily relied upon by 2nd – 4th respondents’ counsel, does not support their argument. He further contended that the tribunal was in grave error because despite the notification of the pending application in the Court of Appeal, seeking an “order of stay of it; proceedings, it nevertheless proceeded with the matter without affording this court an opportunity to first entertain the application.
Further still, that, if the tribunal was wrong in striking out the name of the 1st respondent, it was also equally wrong to have struck out the paragraphs of the petition relating to sir Celestine Ngozichim Omehia and thereby dismissing the petition. That where the jurisdiction of a court is challenged, such court ought of necessity first assume jurisdiction for purpose of determining whether or not it has such jurisdiction. Cited again in support was the case of Onyeanuli v Miscellaneous Offences Tribunal (1995) 8 NWLR (Pt.415) 628 at 641. The counsel on this score urged us to hold that the tribunal was wrong in adjudicating the matter on the merits. He further, argued that the Supreme Court is not a court of competent jurisdiction in Governorship Election Petition matters and consequent to which their decision could not have the effect of altering a return made by INEC; heavy reliance was laid on the pronouncement by Oguntade JSC in the case of Amaechi v INEC supra where he reasoned that:-
“The candidate that wins the case on the judgment of the court simply steps into the shoes of his invalidly nominated opponent whether as a loser or winner.”
Learned counsel by operational interpretation of the judgment deducted that Rt. Hon. Rotimi Chibuike Amaechi would automatically have stepped into the shoes of sir Celestine Ngozichim Omehia in the pending petition and to carry on the defence thereof as if he was originally sued as the respondent.
That the tribunal was therefore in grave error in striking out the name of the 1st respondent and also the paragraphs of the petition and thereby dismissing it without first concluding the trial already part-heard.
The learned senior urged that the appeal be allowed therefore.
For the determination of this appeal, reference would first be made to the learned tribunal’s ruling at page 203 of the supplementary record where it held and said:-
“In the instant case, Mr. Celestine Ngozichim Omehia who was erroneously declared the elected or returned by the respondents is no longer a party before us. The deemed declared candidate RT. HON. ROTIMI CHIBUIKE AMAECHI is also not before the tribunal. Still the petitioners want us to annul the election of 14/04/07 into the Governorship seat of rivers State.
In the absence before us of a person whose election or Return is being complained of in this petition, we are of the view that this petition is incompetent and we so hold.
In the circumstance thereof, we do hereby grant the respondents’ prayers, that is to say the tribunal lacks the jurisdiction to continue the hearing of this petition because the person whose election or return is being challenged is not before it.
The petition is accordingly dismissed.”
It is the consequential effect of the foregoing conclusions arrived at by the learned tribunal that forms the grouse or the subject matter of this appeal.
I would wish to recapitulate however that this appeal cannot be taken in isolation of the first which was disposed of earlier because the two are fused one into the other and therefore are closely linked and related. In other words the subject matter of the second appeal arose as a consequence of the first.
From all deduction on the record, it is clear and certain that the striking out of the name of the 1st respondent as a party to the petition, initially filed, was on his own volition following the application made by him/his counsel. This application was a consequence of the decision by the Supreme Court in the case of Rt. Hon. Rotimi Amaechi v INEC & Ors. In Appeal No. SC/252/2007.
The determination of this appeal, is also solely dependent upon the legal and consequential effects of the outcome of the said apex court’s judgment as the grounding factor. The salient necessary issue for consideration is what effect the said decision in Amaechis, case has on the petition filed on the 14th May, 2007, challenging the election of Mr. Celestine Omehia as the Governor of Rivers State.
By way of elucidation, it is palpable to state that while the petition in question was pending, on the 25/10/07, the Supreme Court in Suit No. SC/252/2007 – between Rt. Hon. Rotimi Chibuike Amaechi v Independent National Electoral commission & ors, delivered its judgment where it ordered that the original 1st respondent in the petition, Celestine Omehia, who was declared the winner of the election, should vacate the seat of Governor of Rivers state immediately while the appellant, Rt. Hon. Rotimi Chibuike Amaechi, be forthwith sworn-in his place.
The totality of all the issues raised in this appeal would stem to lie on section 285(2) of the 1999 constitution as well as the related provisions of the Electoral Act. The said constitutional provision which confers exclusive jurisdiction on the tribunal in election petition matters.
The provision of section 285(2) therefore provides thus:-
“(2) There shall be established in each State of Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as member of any Legislative house.”
(underlining is for emphasis.)
Relevantly and closely related to this provision is section 140(1) of the Electoral Act 2006 which clearly defines what constitutes an Election petition. The provision states:-
“….. No election and return of an election under this Act shall be questioned in any manner other than a petition complaining of an “undue election” or “undue return” (in this Act referred to as an election petition) presented to the competent tribunal or court in accordance with the provisions of the constitution or of this Act, and in which the person elected or return is joined as a party.” (Underlining is for emphasis).
By the combined effect of sections 285(2) of the constitution and 140(1) of the Electoral Act supra, for a petition to be competent, the basis must be the election or return of the person complained against whose undue return or undue election is being challenged. It is trite law therefore that a petition which falls short of the said provisions would certainly be incompetent. See the case of Ezeobi v Nzeka (1989) 1 NWLR (Pt.98) page 478.
The fulcrum grounding the determination of this appeal is the case of Amaechi v INEC (No.3) (2007) 18 NWLR (Pt.1065) p.98. Their Lordships of the apex court equated the principles underlying case of Ararume in deciding Amaechi’s case and held the absence of any indictment known to law against him, as the appellant. That in the absence of any court of law pronouncing the appellant Amaechi, guilty of any criminal offence justifying his exclusion from the election, he could not be said to have been justifiably substituted in accordance with the law. He therefore remained the 3rd respondent’s nominated candidate for the Rivers State Governorship election held on 14/4/07. Their Lordships therefore held the appellant as the candidate for PDP at the said governorship election.
In delivering the lead judgment and allowing the appeal, Katsina -Alu JSC had this to say at page 107:-
“I declare the appellant the one entitled to be in the Governorship seat in Rivers State since he was the lawful candidate of the PDP at the election. It is ordered that the 2nd respondent Celestine Omehia vacate the seat of Governor of Rivers State immediately and that the appellant be forthwith sworn in his Place.”
The consequential effect of the Supreme Court’s decision was that Mr. Celestine Omehia the 1st respondent in the petition, ab initio, had never been the governor of Rivers State. This was because he was never the candidate whom PDP sponsored in the gubernatorial elections of Rivers State held on the 14th day of April, 2007. Rightly and wisely enough and on a clear comprehension of the judgment, the said 1st respondent. Mr. Celestine Omehia, on the 13th November, 2007 applied to strike out his name from the petition following the decision of the apex court, removing him as the governor.
In confirmation of the striking out by the learned tribunal, the pronouncement made by the apex court in the case of Obasanjo v Yusuf (2004) 9 NWLR (Pt.877) page 144 is apt and relevant wherein Kutigi JSC (as he then was) had this to say at page 190 of the report:-
“When a party is not properly joined in a suit and is struck out, any allegation made against him become irrelevant and incompetent. It is very important for counsel to bear in mind always that a case is the only authority for what is actually decided. In other words, it is only the “ratio decidendi of a Supreme Court Judgment that binds the court and the lower Courts and not obiter dicta “in concurring judgments, example Odiase & Anor. v. Agbo & Ors. (1972) 1 All NLR 170.”
In further reference section 144(2) of the Electoral Act 2006, is also very significant and states:-
“(2) The person whose election complained of is in this Act, referred to as the respondent, but if the petitioner complains of the conduct of an Electoral officer, a presiding officer, a returning officer of any other person who took part in the conduct of an election such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party……..”
With the striking out of the name of Mr. Celestine Ngozichim Omehia, sued as the 1st respondent therefore, it could no longer, contrary to the submission by the learned appellant’s counsel, be said that there is a competent respondent before the tribunal whose election was complained of and therefore being challenged. I am aware that INEC and its officials could be necessary parties’ but they cannot however be equated or substituted for the person whose election is complained of within the intendment of section 144(2) of the Electoral Act. It is rather clear and explicit from the section that the election petition must have the person elected or returned being joined as a party.
Further reference can also be made to section 147(1) of the Act which provides thus:-
“147(1) Subject to sub-section (2) of this section, if the tribunal or the court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the tribunal or the court shall nullify the election.”
The learned appellants’ counsel had submitted that in view of the judgment of the Supreme Court in Amaechi’s case, the proper order the tribunal ought to have made was the nullification of the election of Mr. Celestine Omehia pursuant to the provision of section 147(1) of the Electoral Act, 2006 supra.
As lightly submitted by the learned senior counsel for the respondents, by his own application dated 13th November, 2007 Mr. Celestine Omehia, applied to strike out his name from the petition as the 1st respondent. This was following the said Supreme Court decision in Amaechi’s case. In the eyes of the law therefore, he (Celestine Omehia) as rightly submitted by the senior counsel, “had never been the candidate nominated by PDP to fly the flag of the party in the gubernatorial elections of Rivers State on the 14th day of April, 2007.” The consequential effect of the petition filed by the appellant against him therefore is of no effect since he was never a candidate and did not come within the provision of section 285(2) of the constitution of the Federal Republic of Nigeria 1999.
Further more and by way of elucidation and support, reference can be made to the pronouncement in the case of Macfoy v U.A.C. (1961) 3 AER 1169 wherein Lord Denning MR, said:-
“The distinction between the two has been repeatedly drawn, if an act is void then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stand there, it will collapse..
Omehia was never elected or sworn in as the Governor of Rivers State of Nigeria. The learned tribunal had no jurisdiction either under the constitution by section 285(2) or the Electoral Act relating to him therefore in any election petition matter. In the case of Obi v INEC (2007) 11 NWLR (Pt.1046) page 565 at 684 Tabai JSC made the following pronouncement wherein he said:-
……….This nullification was upheld by the Court of Appeal Enugu Division on the 15/03/2006. The effect of this nullification is that Dr. Chris Ngige was never elected and sworn in as Governor of Anambra State. He cannot therefore be “a person first elected as Governor” as within the meaning of section 180(2)(a) of the Constitution. In my respectful view, it is the appellant that comes within that provision.”
Aderemi JSC also at page 644 in the same authority held and said:-
“The argument of the respondent here is very tenuous. When verdict of the Court of appeal (Enugu Division) declaring the present appellant as the rightful person to have been declared having won the gubernatorial election of April, 2003, was handed down, the effect is that the return of Dr. Chris Ngige as the person who won the election was null and void and of no legal consequence…….”
The consequential effect of the petition is that as at the 14th day of May,2007 when the appellants filed their petition, there was no cause of action against Mr. Celestine Omehia, the 1st respondent. All acts pertaining to him therefore were of no legal effect. Further more, the tribunal could not have also assumed jurisdiction and given any decision or make any order against Rt. Hon. Rotimi Chibuike Amaechi who was not a party to the petition but the person deemed as the candidate of the Peoples Democratic Party, who was held to have won the Gubernatorial elections held in Rivers State on the 14th day of April, 2007. For the tribunal to have assumed jurisdiction over Amaechi, and proceeded against him in the absence of his being joined as a party, would have as rightly submitted by the senior counsel for the respondent amounted to a violation of section 36 of the Constitution of the Federal Republic of Nigeria. Relevant in point is the case of Obasanjo v Buhari (2003) 17 NWLR (Pt.850) 51 wherein Iguh JSC had the following to say at page 578.
The court cannot pursuant to Audi Alteram Partem rule enter judgment against a person who will be affected directly by its decision if such person is not made a party to the action and he had no opportunity to defend the action…”
The principle laid down by their Lordships was copiously reiterated by this court in Biya v Ibrahim (2006) 1 NWLR (Pt.981) page 1 at 43 wherein Nzeako JCA re-affirmed and said:-
“……..No court of justice should proceed against a party which may damnify his actions without making him a party thereto. It is even more imperative to cause such a joinder to take effect where the enabling statute makes it mandatory.”
It is trite that what constitutes an election petition is a complaint by the petitioner against an undue election or return of a successful candidate at an election. The absence of both Omehia who was never a candidate and Amaechi the person deemed elected and returned at the election makes the submission by the appellant seeking a nullification, a gross misconception.
The honourable tribunal in my humble opinion rightly held that it lacked the jurisdiction therefore to further entertain the petition filed before it.
I would however wish to add that in the absence of a jurisdiction, on the petition as against the dismissal order.
The appeal of the totality therefore is devoid of any merit consequent to which same is hereby dismissed. I would award costs of N50,000 = to the respondents.
SAKA ADEYEMI IBIYEYE, (OFR) J.C.A.: I have read before now in draft the judgment just delivered by my learned brother, Ogunbiyi, JCA. I entirely agree with his reasoning and conclusions in the two appeals. I have nothing useful to add but to emphasis that each of the two appeals lacks merit and they are dismissed seriatim.
PAUL ADAMU GALINJE, J.C.A.: I read before now the judgment just delivered by my learned brother Ogunbiyi JCA and I agreed with the reasoning contained therein and the conclusion arrived thereat. I have nothing useful to add.
OLUKAYODE ARIWOOLA, J.C.A.: I have had the advantage of reading the draft of the lead judgment just delivered by my learned brother; Ogunbiyi, JCA. I agree entirely with her reasoning and conclusion arrived at.
However, I shall add a few words of my own if only for the purposes of emphasis.
This appeal was commenced by the Notice of Appeal dated 13/12/07 but fired on 14/12/07. The said Notice of Appeal can be found on pages 586-589 of the Record of Appeal. As clearly shown on the originating process of this appeal, the appeal is against the decision of the Governorship/Legislative Houses Election petitions Tribunal sitting in Port Harcourt, Rivers state given on the 29th day of November, 2007. In the ruling of the lower tribunal being appealed against, the tribunal at page 548 of the Record of Appeal had come to the following conclusions:-
“In view of the aforementioned therefore we do hereby grant the 1st Respondent/Applicant’s application to strike out his name from the petition. The name of Sir Celestine Omehia is hereby struck out from the petition.”
The above decision of the lower tribunal was sequel to the application earlier brought before the tribunal by the said 1st Respondent whereby he had sought an order of the Election petition Tribunal to strike out his name not being the proper party to be so sued in the petition.
However, it is interesting to note that on the Notice of Appeal the parties are stated as follows:-
“Chief Sergeant Chidi Awuse – Petitioner/Appellant Vs.
(1) Celestine Ngozichim Omehia
(2) Independent National Electoral Commission (INEC) & Ors. – Respondents”
There is no doubt that with the ruling of the trial tribunal, the 1st Respondent was no longer a party in the case and can therefore not be joined as co-respondent in an appeal as done in this case.
One may ask; As the case stands now, is the Election tribunal competent to hear the appellant’s petition? In other words, does the lower tribunal have jurisdiction to hear the petition as constituted? Section 285(2) of the Constitution which is the enabling law of the Election Petition Tribunal states thus:-
‘There shall be established in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any Court or tribunal, have original jurisdiction to hear and determine petitions as to the office of the Governor or Deputy Governor or as a member of any legislative house.”
(Underlining mine.)
The Electoral Act, 2006 provides the manner by which an election and a return at an election shall be questioned and who shall be parties to the petition. Section 140(1) of the said Electoral Act states as follows:-
“No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election Petition”) presented to the competent tribunal or court in accordance with the provisions of Constitution or of this Act, and in which the person elected or returned is joined as a party.” (Underlining supplied.)
The pertinent question now is; Is “the person elected or returned” as required above, in the Governorship election into the Rivers State Governorship position made a party in the petition of the appellant before the Election tribunal? The answer definitely is in the negative. The person whose election and return is purportedly being challenged is not and has never been made or joined as a party in the appellant’s petition. It is trite that where proper parties are not before the Court, the Court will lack competence to adjudicate on the matter brought before it. In other words, the trial court will have no jurisdiction to hear any such matter where necessary and appropriate party(s) are absent from the case. See: Buhari & Anor v. Yusuf & Anor. (2003) 14 NWLR (Pt 841) 446 at 449 (2004) 1, EAC 67 at 83, Yahava Vs. Aminu & Ors. (2004)2 EAC 168 at 189; Uzodinma Vs. Udenwa & Ors. (2004)2 EAC 133 at 151 & 161.
In Tafida Vs. Bafarawa (1999) 4 NWLR (Pt 597) 70 this Court dealt with the issue of necessary party omitted in a petition. In that case, Alhaji Muhammadu Modi Yabo, the gubernatorial Candidate at the election was not joined. The court rightly held that the non joinder was fatal in the whole petition. The above decision was followed in yet another case by this Court where Niki Tobi, JCA (as he then was) now JSC presided held “that failure to join any necessary party in an election petition will vitiate or nullify the proceedings.”
It follows therefore that indeed the lower tribunal does not have jurisdiction to entertain the appellant’s petition as constituted before the tribunal. As a result, the petition is no longer competent before the Election tribunal. It is simply liable to be struck out. The 1st Respondent in the case not been a proper party was properly struck out and the entire petition ought to have been struck out.
It is settled law that where a trial court does not have jurisdiction to hear a matter, and the appellate court so found, the appellate court will be in order to strike out the suit See; Tsokwa Motors (Nig). Ltd. Vs. United Bank For Africa Plc. (2008) 1 SCM 204 at 226 (2008) 33 NSCQR (Pt 1) 33 at 73.
For this reason and the fuller reasons contained in the lead judgment, I too hold that those appeals are lacking in merit and are due for dismissal. Accordingly, the petition before the lower tribunal is hereby struck out. The appeals themselves fail totally, they are to be dismissed and I so hold.
GEORGE OLADEINDE SHOREMI J.C.A.: I was privileged to read in advance the judgment of my learned brothel Ogunbiyi JCA lust delivered. I agree completely with his reasoning and conclusion that the appeals lack merit.
By way of emphasis let me take the preliminary objection of the Respondents. I do not agree with the submission of learned counsel to the Respondent that leave is necessary for the Appellant to bring this appeal. I have had a look at all the grounds of appeal, they are in my view grounds of law. The law is trite that where a ground is that of law, it can sustain an appeal without any leave. Even where the appeal is interlocutory as in this case no leave shall be required for filing the appeal as all the grounds of appeal are of law as stated in NWADIKE V. IBEKWE (1987) 4 NWLR (Pt.67) 718 that the position of the law is that once grounds of appeal an interlocutory decision are of facts or mixed law and facts, it can only be filed with leave. See LEKWOT v. JUDICIAL TRIBUNAL (1993) 2 NWLR (pt.276) 410 cited in the case of ABUBAKAR v. YAR’ADUA (2008) 4 NWLR (pt.1078) 465. I therefore dismiss the preliminary objection.
APPEAL NO 1 – I agree with my learned brother that this appeal lacks merit. The Appellant in his conclusion invited this court to allow his appeal set aside the Ruling of the Election Petition Tribunal and in its stead declare the erection null and void.
As at the 14th day of May 2007 when the Appellant filed the petition there was no cause of action against Mr. Celestine Omehia, the then 1st Respondent since he was never elected and sworn in as Governor of Rivers State of Nigeria. All acts pertaining to him were a nullity. The kernel of the Supreme Court decision is that Mr. Celestine Omehia the then 1st Respondent in the petition had never been the Governor of Rivers State of Nigeria because he was not the candidate whom PDP sponsored in the election held on 14/4/07. The Supreme Court in AMAECHI v. INEC (2008) 10 WRN 1 has this to say.
“The candidate that wins the case on the judgment of the court simply steps into the shoes of his invalidly nominated opponent whether as loser or winner. Amaechi must be deemed the candidate that won the election for the PDP. In the eyes of the law Omehia was never a candidate in the election much less the winner (underlined mine) (Pp122-125) lines 45-40?
Section 140(1) of the Electoral Act 2006 clearly define what an Election petition is I quote-
“140(1) No election and return of an election under this act shall questioned in any manner other than petition complaining of an undue Election” or undue Return……… and in which the person elected or returned is joined as a party”.
The judgment of the Supreme Court in AMAECHI v. INEC Supra need no interpretation as it is unambiguous. As at the 14th day of April 2007 Omehia was not the elected Governor of Rivers State and therefore does not come within the ambit of the Electoral Act as a person returned.
The law is that there must be joinder of person against whom complaints are made or reliefs are claimed before the powers of the court (in this case the Tribunal) can be invoked when this is done, the action may be held to be improperly constituted and liable to be struck out. See HENRY AWONIYI v. REGISTERED TRUSTEES OF AMORE (2000) 5 WRN 1 (2000) 6 SC.103.
For the above little contribution and for fuller reasons ably set out in the lead judgment I dismiss the appeal.
APPEAL NO.2 – I do not need to belabour the issues as distilled as they have been adequately dealt within the leading judgment. The substance of Appellant argument is that the proper order the Tribunal ought to have made in view of the judgment of the Supreme Court in Amachi’s case was nullification of the Election of Mr. Omehia pursuant to Section 147(1) of the Electoral Act. This submission to say the least is misconceived when in the eyes of the law Omehia had never been the candidate nominated by PDP at the election complained of. If Omehia was not or never a candidate in the Gubernatorial election of Rivers State of 14th April 2007 what is the competence of the Petition filed against a non-candidate. Without a candidate who is unduly returned, a petition before any tribunal will be incompetent.
A petition must challenge “undue” “return” or “undue Election”. A person whose election or return is complained of must as of necessity be joined as a respondent. Failure to join such a person will make such a petition incompetent and the Election Tribunal will have no jurisdiction under our Electoral Act 2006.
For the fuller reasons given in the leading judgment I also dismiss this appeal as lacking in merit and I abide by all consequential order including the order as to cost.
Appearances
M. I. Ahamba SAN with Chief Mike Okoye Esq., Zurra Alex Teru, Ugo Nwabia (Miss) C. C. OkoroaforFor Appellant
AND
Dike Udenna for the 1st respondent
I. E. Imade SAN for 2nd – 4th respondents with N. F. Gaffar (Mrs.) A. P. Uwapuike, U. Egbon and Ikem Ezejulue (Miss)For Respondent
