CHIEF SERGEANT CHIDI AWUSE V. DR. PETER ODILI & ORS
In The Supreme Court of Nigeria
On Friday, the 28th day of November, 2003
SC.205/2003
RATIO
COURT JURISDICTION: WHEN AN ELECTION PETITION APPEAL LIES FROM THE COURT OF APPEAL TO THE SUPREME COURT
It is only in respect of Presidential Election Petition that an appeal lies from the Court of Appeal to this Court (see Section 233(2) (e) (i) of the Constitution, BUHARI & ORS V. OBASANJO & ORS (supra). PER I.L KUTIGI J.S.C.
COURT PRACTICE: DECISION OF THE COURT OF APPEAL IN AN ELECTION PETITION IS FINAL
The decision of the Court of Appeal in respect of an appeal arising from an election petition as in this case, is final. PER I.L KUTIGI J.S.C.
JUSTICES
IDRIS LEGBO KUTIGI Justice of The Supreme Court of Nigeria
UTHMAN MOHAMMED Justice of The Supreme Court of Nigeria
SYLVESTER UMARU ONU Justice of The Supreme Court of Nigeria
ANTHONY IKECHUKWU IGUH Justice of The Supreme Court of Nigeria
SAMSON ODEMWINGIE UWAIFO Justice of The Supreme Court of Nigeria
AKINTOLA OLUFEMI EJIWUNMI Justice of The Supreme Court of Nigeria
NIKI TOBI Justice of The Supreme Court of Nigeria
Between
CHIEF SERGEANT CHIDI AWUSE Appellant(s)
AND
- DR. PETER ODILI
2. INDEPENDENT NATIONAL
ELECTORAL COMMISSION
3. THE RESIDENT ELECTORAL
COMMISSIONER RIVERS STATE
4. THE RETURNING OFFICER RIVERS
STATE AND 323 ORS Respondent(s)
L. KUTIGI, J.S.C. (Delivering the Leading Ruling): By motion on notice the applicant prays for the following reliefs –
“1. An order of court for accelerated hearing of the appeal and an interlocutory application arising therein.
2. An order of court striking out the appeal in limine for incompetence.
3. Making any other order or orders as the Honourable Court may deem fit and proper in the circumstances of this appeal.
AND further take notice that the grounds upon which this application is brought are as follows-
(a) Under section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria, the decision of the Court of Appeal in an election petition is final.
(b) The notice of appeal is a deliberate abuse of judicial process intended to delay and pervert the cause of justice.
(c) The notice of appeal is a nullity.”
The application is supported by an affidavit of urgency and a 15-paragraph affidavit both sworn to by the applicant himself with five exhibits attached. Because of the importance and clarity of the supporting affidavit to these proceedings I shall reproduce it hereunder leaving out the exhibits or attachments. The affidavit reads –
“1. I am the petitioner/respondent/applicant in this matter.
2. I contested election for the post of Governor of Rivers State on 19th April, 2003.
3. After the election, the appellant/respondent, Dr. Peter Odili, was declared elected. I duly filed an election petition challenging the declaration.
4. After service of the petition on the appellant/respondent, a notice of preliminary objection was filed on his behalf challenging the competence of the petition.
5. After hearing argument on the notice of preliminary objection, the election tribunal sitting at Port-Harcourt struck-out the petition. The petitioner/respondent/applicant, appealed to the Court of Appeal.
6. On 31st July, 2003, the court of Appeal allowed the appeal and remitted the petition back to the tribunal for hearing on merit. A copy of the enrolled order of the Court of Appeal is hereto exhibited and marked exhibit “AA”.
7. On 11th August, 2003, the appellant/respondent filed a notice of appeal to this Honourable Court challenging the decision of the Court of Appeal on the election petition matter. It is this notice of appeal that is the subject of this application.
8. My learned counsel, Chief M. I. Ahamba, SAN has informed me, and I verily believe him, that appeals from the election tribunals terminate at the Court of Appeal.
9. The appellant/respondent has filed an application before the Court of Appeal seeking to prevent or delay the commencement of the hearing of my petition on merit in the tribunal. A copy of the application now pending before the Court of Appeal and fixed for hearing on 30th September, 2003 is hereto exhibited and marked as follows:
‘Motion paper exhibit “AB”
Affidavit in support exhibit “AB1”
Exhibit “A” thereto (notice of appeal): exhibit “AB2”
10. The appellant/respondent is resting on exhibit “AB2″ to obtain a stay of execution of the order of the Court of Appeal, and of the hearing before the tribunal.
11. The appellant/respondent is using an incompetent appeal to pervert the cause of justice, and also to annoy, irritate and frustrate me.
12. I sincerely believe that it is necessary to strike out the incompetent appeal to avoid the misuse of judicial process for an unjust end. I rely on the three grounds stated on the motion papers.
13. The appellant/respondent and his counsel know that the appeals terminate in the Court of Appeal in matters arising in the Election Tribunals, but is only interested in delaying the heating of the petition.
14. The newly constituted Election Tribunal now sitting in Port-Harcourt cannot hear my petition until this appeal is disposed of. There is need for the expeditious disposal of this application.”
The appellant/respondent also filed a counter-affidavit through one Oris Onyiri the Secretary of the People’s Democratic Party, Rivers State, in opposition to the application. He said in paragraphs 2, 3, 4, 5, 6 & 7 thus –
“2. That I have the consent and authority of the appellant/respondent to swear to this counter-affidavit.
3. That I have read the affidavit in support of the motion to strike out the appeal deposed to by the respondent/ applicant herein.
4. That the Court of Appeal that heard the appeal of the petitioner/respondent/applicant herein had no jurisdiction to adjudicate on the appeal because the appeal was not on any question whether any person (i.e. the appellant/1st respondent) was duly elected to the office of Governor or Deputy Governor.
5. That the appeal of the appellant/1st respondent is of a constitutional nature and it touches on the jurisdiction of the Court of Appeal.
6. That the appellant/1st respondent herein has not filed the appeal before this Honourable Court to annoy, irritate or frustrate the petitioner or delay the hearing of the petition.
7. That in view of the infringement of the Constitution by the Court of Appeal, it would be in the interest of justice to determine the appeal as stipulated by law.”
None of the remaining 2nd to 327th respondents filed any counter-affidavit.
Before the hearing date counsel for the applicant, the appellant/respondent, and the 2nd to 327th respondents respectively filed briefs of argument in SUPPORT of or in opposition to the motion as the case may be.
At the hearing of the application, learned counsel for the applicant, Chief Ahamba, SAN, moving the motion said he relied on the affidavit filed by the applicant as well the brief he filed in support thereof. He was also relying on the 3 grounds for the application as stated in the motion paper. He said the 1999 Constitution has provided in section 246(1) that appeals against decision of the election petition tribunals in respect of elections to the office of members of the National Assembly, Governor of a State and members of State Houses of Assembly, shall lie to the Court of Appeal. That section 246(3) further provides that –
“The decision of the Court of Appeal in respect of appeals arising from election petitions shall be final.”
That the Supreme Court therefore lacks the jurisdiction to entertain an appeal from the Court of Appeal in the instant case. He said the pendency of the appeal herein has stalled the hearing of the Governorship election petition in Rivers State which the Court of Appeal had ordered to be heard since 31/7/2003. He said the appeal is a nullity and an abuse of process. Learned counsel referred to the recent unreported decision of this court in SC.194/2003 Buhari & Ors. v. Obasanjo & Ors. delivered on 23/9/2003 wherein this court decided that by virtue of the provisions of section 233(2)(e)(i) and the definition of “decision” in section 318 of the 1999 Constitution read together, an appeal whether interlocutory or final lies as of right to this court from the Court of Appeal in a Presidential election petition. The Court of Appeal therefore had jurisdiction to hear the appeal in the election petition. He urged us to grant the application and strike out the appeal.
Mr. Sofola learned senior counsel for the appellant/respondent in reply said he adopted the counter-affidavit and his brief of argument in the motion. He said he was not opposing prayer (1) for accelerated hearing of the appeal. He however vehemently opposed prayer (2) for striking out the appeal. He said the interest of justice demanded the appeal to be heard-on the merit to enable the court interpret the provisions of section 246 of the 1999 Constitution. That the appeal of the appellant/respondent is of a constitutional nature which touched on the jurisdiction of the Court of Appeal. Reacting to the recent decisions of this court in Buhari & Ors. v. Obasanjo & Ors. (supra) learned Senior Advocate of Nigeria contended that it has long been settled that there is no right of appeal to the Court of Appeal in respect of interlocutory decisions in election petitions. He relied on the authority of Orubu v. N.E.C. & Ors. (1988) 3 NSCC 333; (1988) 5 NWLR (Pt. 94) 323 where it was decided that there was no right of appeal to the Court of Appeal from interlocutory decisions of election petition tribunals. He said if Orubu v. N.E.C. & Ors. (supra) had been cited to the court, the decision in Buhari v. N.E.C. & Ors. (supra) would have been different. The court was urged to follow the earlier decision in Orubu v. N.E.C. & Ors. (supra) and hold that the Court of Appeal lacked jurisdiction when it entertained the appeal from the election petition tribunal in an interlocutory matter. The court was urged to dismiss prayer (2).
Mr. Kalipa who appeared for the 2nd to 268th respondents also adopted his brief. He said he was not opposing prayer (1) but opposed prayer (2). He said the court of Appeal has no jurisdiction to entertain the appeal which did not arise from a decision on any question as to whether any person has been validly elected to the office of Governor or Deputy Governor. That the appeal herein is within the confines of section 233(2)(a) & (b) of the Constitution and thus raises a serious question of law relating to the interpretation of section 246 of the Constitution. The court was urged to dismiss prayer (2).
Chief Ahamba responding said that the case of Orubu v. N.E.C. & Ors. (supra) relied upon heavily by Mr. Sofola had to do with the interpretation of paragraph 27(1) of Schedule 3 to Decree No. 37 of 1987 which reads:
“27(1) All interlocutory questions and matters shall be heard and disposed of before a Judge who shall have the same control over the proceedings as a Judge in the ordinary proceedings of the High Court.”
He said the provisions above are different from the present provisions in the Constitution. I think he is right. He said this court was right in the decision it took in Buhari & Ors. v. Obasanjo & Ors. (supra) and has not contradicted itself even though the court had not been referred to the case of Orubu v. N.E.C. & Ors. (supra). I agree with him. He said the two cases deal with two different laws and that we should follow our recent decision in Buhari & Ors. v. Obasanjo & Ors. (supra) which allows interlocutory appeals in Presidential election petition.
Now, the facts which gave rise to this application are clearly and amply stated in the affidavit of the applicant set out above. They are simple. The question which we are required to answer now is: whether the decision of the Appeal Tribunal (Court of Appeal) on 31/7/2003 remitting the petition back to the Governorship election tribunal for hearing on merit, is not appealable; and not whether or not the Appeal Tribunal (Court of Appeal) had the jurisdiction to entertain the appeal in the first place. In my view the latter question will be for the appeal proper when we get there if this application to strike out the appeal should fail.
All the respondents herein do not oppose prayer (1) for accelerated hearing of the appeal. Under normal circumstances. I would have instantly granted it. But because granting prayer (1) will not serve any useful purpose except if prayer (2) fails or is refused, I will in the circumstances proceed to treat prayer (2) first before returning to prayer (1).
I now return to the question of whether the decision of the Appeal Tribunal (Court of Appeal) on 31/7/2003 was not appealable.
The 1999 Constitution has provided in section 246 as follows-
“246(1) An appeal to the Court of Appeal shall lie as of right from:
(i) .. omitted ..
(ii) decisions of the National Assembly Election Tribunals and Governorship and Legislative House Election tribunal on any question as to whether:
(i) …….omitted..
(ii) any person has been validly elected to the office of Governor or Deputy Governor, or
(iii) .. omitted ..
(2) .. omitted ..
(3) The decisions of the Court of Appeal in respect of appeals arising from election petition shall be final.
It is common ground that the suit Petition No. NAGLHEP/RV/1/2003 herein is a Governorship election petition. The petitioner/applicant said so clearly in his affidavit above. That much is also clear from the enrolled order of the Court of Appeal, exhibit AA, attached to the affidavit in support of the motion, which reads in part
” (3) That the petition is remitted back to the Tribunal to be heard on merit.”
It will be noted that the Governorship election tribunal had on a notice of preliminary objection held that there was no valid election petition before it and consequently struck out the petition.
Under section 246(1)(b)(ii) of the Constitution above an appeal would ordinarily lie to the Court of Appeal from that decision striking out the applicant’s petition. Also under section 246(3) above, the decision of the Court of Appeal in respect of an appeal arising from an election petition as in this case, is final. I have not the slightest doubt that the Constitution has in clear and unambiguous language made the Court of Appeal a final court in respect of appeals arising from election petitions as in the matter before us now.
It must be emphasized here now that whether the decision of the Governorship election tribunal striking out the petition was interlocutory or not, is a matter to be raised and decided in the Court of Appeal itself and not in this court. So also is the question whether the Court of Appeal has or has not the jurisdiction to entertain an interlocutory appeal in respect of an election petition as contended by Mr. Sofola. It is certainly true that matters of jurisdiction can be raised at any time even at the last stage in the apex court. The Court of Appeal being the final apex court in this matter ought to be the place to raise the issue of its jurisdiction. Not in this court. An appeal does not lie from the Court of Appeal to this court in the instant case. It is only in respect of Presidential election petition that an appeal lies from the Court of Appeal to this court (see section 233(2)(e)(i) of the Constitution, Buhari & Ors. v. Obasanjo & (supra).
Having held that the decision of the Court of Appeal herein is final as prescribed by the Constitution and not appealable to this court, the cases of Buhari & Ors. v. Obasanjo & Ors. (supra) and Orubu v. N.E.C. & Ors. (supra) are of no assistance here. The provisions of the Constitution are clear and unambiguous. I have no choice but to give effect to them as such. I therefore find merit in the application.
It therefore succeeds and I allow the preliminary objection.
It is hereby ordered as follows –
1. Prayer (2) is granted. The appeal No. SC.205/2003 pending in this court is incompetent and it is struck-out.
2. Prayer (1) for accelerated hearing of the appeal cannot now be granted. It has been overtaken by prayer (2). It is therefore struck-out.
3. There is no order as to costs.
U. MOHAMMED, J.S.C.: I agree that the appeal filed by Dr. Peter Odili, the appellant, against the decision of the Court of Appeal in respect of the election petition filed by Chief Sergeant Awuse is incompetent and ought to be struck out. At the close of the governorship election held on 19th April, 2003, in Rivers State, the appellant, Dr. Peter Odili, was returned as the winner. The petitioner, Chief Sergeant Awuse. who is respondent in this appeal, filed a petition before the Election Tribunal in Port Harcourt challenging the return of the appellant.
The appellant filed a preliminary objection on the grounds that the petition filed by the petitioner was fundamentally defective for failing to comply with Electoral Act, 2003. He urged the election tribunal to strike it out. The ejection tribunal considered all the submissions of counsel on the preliminary objection and struck out the petition.
The petitioner filed an appeal before the Court of Appeal, Port-Harcourt Division. In a very well considered judgment the Court of Appeal allowed the appeal, set aside the ruling of the election tribunal and remitted the case back to the election tribunal for hearing of the petition on the merit.
In a surprising twist the appellant, being represented by Kehinde Sofola, SAN filed an appeal against the decision of the Court of Appeal to this court. I believe that the learned Senior Advocate is not unaware of the provisions of section 246(1), (2) and (3) of 1999 Constitution of the Federal Republic of Nigeria which reads:
“246-(1) An appeal to the Court of Appeal shall lie as of right from –
(a) decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution;
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether-
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution,
(ii) any person has been validly elected to the office of Governor or Deputy Governor, or
(iii) the term of office of any person has F ceased or the seat of any such person has become vacant.
(2) The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other court of law or tribunal established by the National Assembly.
(3) The decision of ‘the Court of Appeal in respect of appeals arising from election petitions shall be final.”
It is abundantly clear that the decision of the Court of Appeal in this matter is final. This court once handed down a decision in the case of Onuaguluchi v. Ndu (2001) 7 NWLR (Pt. 712) 309 which was in respect of an appeal from National Assembly Election Tribunal. In that case it was decided that an appeal in respect of a decision of the National Assembly Election Tribunal when decided in the Court of Appeal cannot be taken on appeal to the Supreme Court, but is final for all purposes.
In view of the stand of the law on this issue Chief Ahamba, SAN, learned counsel for Chief Sergeant Awuse, filed a motion and prayed, inter alia, for an order striking out the appeal in limine for incompetence. Learned counsel, Kehinde Sofola, SAN, relied heavily on the decision of this court in the case of James Orubu v. National Electoral Commission & Ors. (1989) 5 NWLR (Pt. 94) 323 to justify the competency of the appeal filed by the appellant. Following the decision of this court in the above case learned counsel argued that the decision of the Governorship Election Tribunal, Port Harcourt was not subject to an appeal to the Court of Appeal because it was an interlocutory decision. Under 1999 Constitution the Court of Appeal is the final court for any appeal arising from election petitions. The Supreme Court has therefore no jurisdiction to hear any appeal from the decision of the Court of Appeal in respect of election of a Governor or Deputy Governor. This court can only entertain an appeal from Presidential election petition. Be that as it may it is very clear however, that Orubu v. National Electoral Commission& Ors. (supra) was decided principally on the provisions of paragraph 27 sub-paragraph (1) of Schedule 3 to Decree No. 37 of 1987 which read:
“27(1) All interlocutory questions and matters shall be heard and disposed of before a Judge, who shall have the same control over proceedings as a Judge in the ordinary proceedings of the High Court.”
It explains therefore that interlocutory decisions in respect of election proceedings under the Local Government Elections Decree No. 37 of 1987 terminate at the High Court. There was no provisions for an appeal against such decisions to the Court of Appeal. It should be observed that a Decree was superior to the unsuspended provisions of the 1979 Constitution. Paragraph 27(1) of Schedule 3 to Decree No. 37 of 1987 was superior to the unsuspended provisions of 1979 Constitution. See preamble to the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.
Now, returning to the case in hand it is plain that the relevant law that governs the process of appeal from the decision of the National Assembly, Governorship and Legislative Houses Election Tribunals is section 246(1), (2) and (3) of 1999 Constitution. By that provision the decision of the court of Appeal in respect of appeals arising from election petitions shall be final. The appellant’s counsel has argued that this appeal concerns an interlocutory decision and not a decision on the merit. An answer to this submission is the recent decision of this court in the case of Muhammadu Buhari & 2 Ors. v. Chief Olusegun Obasanjo & Ors. case No. SC.194/2003 (unreported) delivered on 23rd September, 2003. In that case the full panel of this court ruled that “decision” as has been defined under section 318 of the 1999 Constitution included (interlocutory) ruling in any proceedings.
For these reasons and fuller reasons of the ruling of my learned brother, Kutigi, JSC. I grant the order sought by Chief Sergeant Chidi Awuse striking out the appeal filed by Dr. Peter Odili from the decision of the Court of Appeal, Port Harcourt Division. The appeal is struck out. There is therefore no need to consider the application for accelerated hearing of the appeal. Parties to bear own costs.
S. U. ONU, J.S.C.: I had the opportunity of reading in draft the lead ruling just delivered by my learned brother Kugiti, JSC. I am in complete agreement with his reasoning and conclusion therein contained.
It needs to be stressed by way of amplification that whether the decision of the Governorship Election Tribunal striking out the petition in this matter was interlocutory or not, is a matter to be raised and ruled upon in the Court of Appeal itself and not in this court. Similarly is the question whether the Court of Appeal has or has no jurisdiction to entertain an interlocutory appeal in respect of an election petition as contended by learned counsel for respondent/appellant/respondent, Mr. Sofola, SAN. It is indubitable that matters of jurisdiction can be raised at any time, even at the last stage in the final court which in the matter herein under consideration, is the Court of Appeal. In other words, the Court of Appeal being the final apex court in this matter ought to be the place to raise the issue of its jurisdiction not in this court, it being the law that since the coming into force of the 1999 Constitution, an appeal does not lie from the Court of Appeal to this court but it is the court of final resort. See Onuaguluchi v. Ndu (2001) 7 NWLR (Pt. 712) 309. “It is therefore only in respect of the Presidential (not Governorship) election petition that an appeal lies from the Court of Appeal to this court. Vide section 233(2)(e)(i) of the 1999 Constitution. See also Buhari & Ors. v. Obasanjo & Ors. yet to be reported case No. SC.194/2003 delivered on 23/9/2003 by this court.”
My learned brother having held that the decision of the Court of Appeal herein is final as prescribed by the Constitution and that it is not appealable to this court, the case of Buhari & Ors. v. Obasanjo & Ors. (supra) and Orubu v. N. E. C. & Ors. (1988) 5 NWLR (Pt. 94) 323 which are clear and admit of no ambiguity, must be given effect to.
In the former case, the full panel of this court ruled, correctly in my view, that “decision” as defined under section 318 of the 1999 Constitution included interlocutory ruling in any proceedings.
It is for the brief reasons proffered by me above and the more overwhelming reasons given by my learned brother Kutigi, JSC in his lead ruling with which I entirely agree, that I too find merit in this application; strike out the appeal and make similar orders as contained therein. Parties to bear own costs.
A. I. IGUH, J.S.C.: I have had the privilege of reading in draft the ruling just delivered by my learned brother, Kutigi, JSC and I agree entirely that there is merit in this preliminary objection and that this court has no jurisdiction to entertain this appeal.
The full facts that gave rise to this appeal have already been fully set out in the leading ruling of my learned brother. I need only state that the single issue for determination is whether the appeal filed by the 1st respondent to this court against the decision of the Court of Appeal on the 31st July, 2003 remitting the election petition back to the Election Tribunal for hearing on the merit is competent and, if not, whether the appeal should be struck out in limine on the ground of want of jurisdiction.
It is desirable for a better appreciation of the issue raised for determination in this appeal to set out the relevant section of the Constitution of the Federal Republic of Nigeria, 1999 which has now come up for interpretation. This is section 246 subsections (1)(b)(i) and (ii) and (3) of the 1999 Constitution which provide as follows:-
“246(1) An appeal to the Court of Appeal shall lie as of right from –
(a) ……
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election tribunals on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the Constitution,
(ii) any person has been validly elected to the office of Governor or Deputy Governor, or
(iii) ….
(2) ….
(3) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.”
It is apparent that section 246(1) of the 1999 Constitution provides inter alia that appeals 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 as a member of the National Assembly or a House of Assembly or to the office of Governor or Deputy Governor shall lie as of right to the Court of Appeal. There is then section 246 subsection (3) of the same Constitution which in the clearest possible terms provides that the decisions of the Court of Appeal in respect of such appeals arising from the relevant election petitions stipulated under section 246(1) aforementioned shall be final.
In making provision in respect of “decisions” of the Court of Appeal in election petition matters, section 246(3) of the 1999 Constitution makes no distinction between “interlocutory” and/or “final” decisions of the court. In my view, the language of section 246(3) of the 1999 Constitution is so clear and unambiguous that it institutionalized the Court of Appeal as the final Court of Appeal in respect of appeals missing from elections to the office of members of the National Assembly or of a House of Assembly of a State and Governor or Deputy Governor of a State. I cannot, with the greatest respect to the learned appellant’s counsel accept that section 246(3) of the 1999 Constitution by any stretch of the imagination confers this court with jurisdiction to entertain appeals from the decisions of the court of Appeal in respect of appeals arising from election petitions specifically mentioned under that section of the Constitution, inclusive of the election petition in issue in the present case.
The conclusion I have just reached is fully in line with the recent decision of this court in Onuaguluchi v. Ndu (2001) 7 NWLR (Pt.712) 309. What called for decision in that case is the interpretation of section 81(1) and (3) of Decree No. 5 of 1999 which provides thus –
“81(1) Notwithstanding the provisions of the Constitutional Court Decree, 1998, an appeal arising in respect of an election petition under this Decree shall lie to the Court of Appeal.
(2) …
(3) The decision of the Court of Appeal, on an appeal brought under subsection (1) of this section shall be final.”
There can be no doubt that the provisions of the said section 81(1) and (3) of Decree No. 5 of 1999 are substantially in pari materia with those of subsections (1)(b)(i) and (ii) and (3) of section 246 of the 1999 constitution now under consideration. This court in the Onuaguluchi’s case was of the view that by virtue of section 81(3) of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 5 of 1999, so long as the substance of an appeal from the Court of Appeal to the Supreme Court is complaint against the decision of the court of Appeal arising from an election petition brought under the said Decree No. 5 of 1999, the Supreme Court will not entertain the appeal as there is no right of appeal to the Supreme Court against such a decision of the Court of Appeal, the simple reason for this is that section 81(3) of Decree No. 5 of 1999 makes the decision of the Court of appeal on any question relating to Senatorial Election under the Decree final and does not give the Supreme Court appellate or supervisory jurisdiction over such a decision. See too Esewe v. N.T. Gbe (1988) 5 NWLR (Pt. 93) 134 and Eco Consult Ltd. v. Pancho Villa Ltd. (1999) 1 NWLR (Pt. 588) 507 where this court considered the provisions of section 213 of the Constitution of the Federal Republic of Nigeria, 1979 (as amended) and section 36(2) of the Local Government Election Decree No. 37 of 1987, the provisions of which are pari material with those of section 81(3) of Decree No. 5 of 1999.
It is therefore now well settled that pursuant to the provisions of section 246(1)(b)(i) and (ii) and (3) of the 1999 Constitution, the Court of Appeal acting within its jurisdiction in deciding an appeal arising from an election petition as stipulated under the said section of the Constitution is the final Court of Appeal. Whether it did so rightly or wrongly in its decision cannot be questioned on appeal in this court by virtue of the express provisions of the said section 246(3) of the 1999 Constitution which stipulates that the decisions of the Court of Appeal in respect of appeals arising from the relevant election petitions shall be final. It is only in respect of Presidential election petition that an appeal lies from the Court of Appeal to this court pursuant to the express provisions of section 233(2)(e)(i) of the Constitution of the Federal Republic of Nigeria, 1999. See too Buhari and others v. Obasanjo and others SC. 194/2003 delivered on 23/9/2003.
In view of the above, it is crystal clear that the purported appeal filed by the 1st respondent to this court against the decision of the Court of Appeal arising from the Governorship election petition in which the return of the said 1st respondent to the office of Governor of Rivers State is being challenged is incompetent and unconstitutional. Accordingly, the purported appeal must be and it is hereby struck out for want of jurisdiction. No question of the accelerated hearing of the incompetent appeal now arises and prayer in this regard is also struck out.
It is for the above and the more detailed reasons contained in the leading ruling that I, too, uphold the preliminary objection of the petitioner/respondent/applicant to the effect that this court has no jurisdiction to entertain this appeal. I abide by all the orders contained in the leading ruling.
S. O. UWAIFO, J.S.C.: I had the opportunity to read in advance the ruling of my learned brother Kutigi, JSC which I entirely agree with that the appeal is incompetent. I shall express similar views in my own words by way of supporting the said ruling.
On 19th April, 2003, election to the office of Governor of Rivers State was held. The appellant/respondent (hereinafter referred to as the respondent) in this motion as well as the respondent/applicant (hereinafter referred to as the applicant), contested the election. The applicant contested under the platform of the All Nigeria Peoples Party (ANPP) while the respondent contested under the platform of the Peoples Democratic Party (PDP). The respondent was returned as duly elected.
The applicant then filed a petition in the Governorship and Legislative Houses Election Tribunal, Rivers State (Tribunal) challenging the return of the respondent. The respondent was served and he entered an appearance on 23 May, 2003. On 26 May, he filed a notice of preliminary objection to the petition that it was fundamentally defective and should be struck out on the grounds that:
“1. The petition is not in accordance with the provisions of the provisions (sic) of part VII of the Electoral Act, 2002 and the provisions of the 1st Schedule to the Act.
2. The petition does not state the names of all the candidates at the election and the votes of each candidate and the person returned as the winner of the election as required by the provisions of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2002.
3. The candidates at the said election were more than the candidates mentioned in paragraph 3 of the said petition.”
On 11 June, 2003, the tribunal rules on the preliminary objection. It upheld the objection and struck out the petition. The applicant appealed to the Court of Appeal, Port Harcourt Division. On 31 July, 2003, in a reserved ruling, the Court of Appeal unanimously allowed the appeal, reversed the Tribunal and ordered that the petition be remitted to the tribunal to be heard on the merits.
The respondent filed a notice of appeal to this court on 11 August, 2003 to challenge the decision of the Court of Appeal. The applicant in reaction filed a motion on notice seeking two prayers:
“1. An order of court for accelerated hearing of the appeal and an interlocutory application arising therein.
2. An order of court striking out the appeal in limine for incompetence. ”
In the argument in support of the preliminary objection, the applicant did not argue prayer 1. That prayer is accordingly regarded as having been abandoned.
The substance of the argument by Chief Ahamba, SAN in respect of prayer 1 is that the provisions of section 246(3) of the 1999 Constitution having made the decision of the Court of Appeal in respect of appeals arising from election petition final, it was an abuse of court process for the 1st appellant/respondent to have appealed against such a decision in the present petition. He cited Erisi v. Idika (1987) 4 NWLR (Pt. 66) 503 at 512, 518 and Onuaguluchi v. Ndu (2000) 7 NWLR (Pt. 712) 309 at 321.
Mr. Sofola, SAN argued in the first instance as contained in the respondent’s brief to the preliminary objection that the two prayers sought in the motion were contradictory or inconsistent and that a party should be consistent in stating his case and consistent in proving it relying on the obiter dictum of Oputa, JSC in Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 at 269. With due respect, I do not think that dictum applies here. In the present case, the applicant sought two prayers: one for an order of accelerated hearing of the appeal and the other an order to strike out the appeal in limine. Both orders, in my view, could be pursued together without one contradicting the other. This may be done by listing the appeal for hearing; and just as this has been done the argument to have it struck out in limine that is, before argument on the appeal is gone into can be taken and determined. I see nothing inconsistent about that.
But in Ajide v. Kelani (supra), the appellant presented a case along a given course at the High Court. On appeal to the Court of Appeal he took a totally different course. On further appeal to the Supreme Court, Oputa, JSC rightly observed that that could not be permitted particularly in view of the essence of pleadings which must define the issues between the parties throughout the journey of the proceedings right down to conclusion on appeal if the journey included appeal. A party cannot therefore present a case on appeal different from what he presented at the trial. It was in that light the learned Justice observed thus:
“A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings; then turn somersault during the trial; then assume nonchalant attitude in the Court of Appeal; only to revert to his case as pleaded in the Supreme Court. Justice is much more than a game of hide and seek. It is an attempt, our human imperfections notwithstanding, to discover the truth”
This observation is no more than a play on words to say simply that a party is bound by his pleading at the trial and this is what defines his case throughout up to the highest court. This observation is, with due respect, utterly inapplicable to the circumstances of the present motion. Notwithstanding, it ought to be made clear that even in the present case, Mr. Ahamba abandoned the prayer for an order of accelerated hearing of the appeal having possibly considered that prayer 2 could be taken without further ado.
The further argument of Mr. Sofola was made on the basis of an appellant’s brief which he filed in anticipation of the hearing of the appeal. In his argument in support of his brief in response to the preliminary objection, he argued:
“A comprehensive appellant (sic) brief of argument has been filed and the appellant/respondent intends to rely on the submissions therein contained in order to avoid an unnecessary repetition of these arguments.”
It was on this basis he went into full argument in answer to Mr. Ahamba’s objection as he might have done in the argument of the merit of the appeal, relying strongly on this court’s decision in James Orubu v. National Electoral Commission (1988) 5 NWLR (Pt. 94) 323. That decision interpreted paragraph 27(1) of Schedule 3 to the Local Government Elections Decree No. 37 of 1987.
Just as in Oyekan v. Akinjide (1965) 1 All NLR 200, in which the Federal Supreme Court was faced with a provision in pari materia with paragraph 27(1) mentioned above, this court in Orubu v. NEC (supra) held that an appeal did not lie from an interlocutory decision of the High Court to the Court of Appeal. When this court in the present case told Mr. Sofola that in the recent case in SC.194/2003: Buhari & Ors. v. Obasanjo & Ors. delivered on 23 September, 2003 (unreported), appeal from an interlocutory decision of the Presidential Election Tribunal was permitted to be argued in view of the definition of the word “decision” in section 318(1) of the 1999 Constitution read along with section 233(2)(e)(i) thereof, the learned Senior Advocate’s argument was that the said recent decision was wrong in view of Orubu’s case. He invited us to overrule it and also Onuaguluchi v. Ndu (supra).
I do not think Orubu’s case supports Mr. Sofola’s position in this matter. This is because the present case and that case are to be seen from different statutory and constitutional provisions. In Oyekan, as it was in Orubu, there was no comparable applicable provision which defined “decision” in both the 1979 and 1999 Constitutions in sections 277(1) and 318(1) respectively which is:
“‘Decision’ means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.”
That definition does not distinguish between an interlocutory decision and a final decision in an election petition. It is no surprise, therefore, that in view of the provisions of paragraph 27(1) of the 3rd Schedule to the Decree No. 37 of 1987 which has an overriding effect upon the definition of “decision” in section 277(1) of the 1979 Constitution and rendered it inapplicable to Local Government election petitions, Orubu’s case was decided the way it was. The said paragraph 27(1) provided as follows:
“27(1) All interlocutory questions and matters shall be heard and disposed of before a Judge, who shall have the control over the proceedings as a Judge in the ordinary proceedings of the High Court.”
These proceedings which were in pari materia with section 125(1) of the Electoral Act, 1962, were interpreted in Oyekan v. Akinjide (supra) to mean that the trial Judge completely took charge of and finally concluded interlocutory matters in the election petitions brought pursuant to that Act; and permitted of no appeal from the trial Judge’s decision on interlocutory questions.
It was these considerations that influenced the judgment of this court in the case of Orubu v. NEC (supra). Hence in that case at page 349, Uwais, JSC (now CJN) in his leading judgment said inter alia:
“It follows, therefore, that the fact that the Local Government Elections Decree, 1987 has made specific provisions on election to Local Government Councils is sufficient indication that the unsuspended or modified provisions of the 1979 Constitution …. are not to apply to matters connected with Local Government elections. The maxim generia specialibus non derogant applies.”
Later at page 351, the learned Justice said:
“Since the provisions of a Decree override those of the 1979 Constitution, then it is incontrovertible that the general provisions of the Constitution will not apply to an appeal from the High Court, unless of course, the Decree makes no provision in that respect. In the present case there was no right of appeal to the Court of Appeal by virtue of the provisions of paragraph 27(1) of Schedule 3 of the 1987 Decree.”
Now, if section 220(1)(f) of the 1979 Constitution has been applicable it would have given the Court of Appeal jurisdiction to hear appeals in interlocutory decisions of the High Court in Orubu’s case when read along with the definition of “decision” in section 277(1) of that Constitution. The said election 220(1 )(f) is similar in intendment to section 246(1)(b)(i) and (ii) of the 1999 Constitution.
It provided as follows:
“220(1) An appeal shall lie from decisions of a High Court to the (Federal) Court of Appeal as of right in the following cases –
(f) decisions on any question whether any person has been validly elected to any office under this Constitution, or to the membership of any legislative house … ”
The provisions of section 246(1)(b)(i) and (ii) of the 1999 Constitution read:
“246(1) An appeal to the Court of Appeal shall lie as of right from –
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution, any person has been validly elected to the office of Governor or Deputy Governor.”
See also section 233(2)(e)(i) and (ii) which makes similar provisions in regard to petition proceedings challenging the election of a person to the office of President or Vice-President. It was under that section that the case of Buhari & Ors. v. Obasanjo & Ors. (supra) was decided.
The definition of “decision” in section 318(1) of the 1999 Constitution gives a wide implication to any ‘determination’ by a court. This obviously includes any interlocutory decision. It follows that the Court of Appeal has jurisdiction to entertain an appeal from interlocutory decisions of the Election Tribunals set up under section 246 of the 1999 Constitution. The decisions reached therein by the Court of Appeal shall be final by virtue of subsection (3) of that section. The case of Onuaguluchi v. Ndu (2001) 7 NWLR (Pt. 712) 309 was decided along the same line on the basis of the provisions of section 81(1) and (3) of Decree NO.5 of 1999 which read:
“81(1) Notwithstanding the provisions of the Constitutional Court Decree 1998, an appeal arising in respect of an election petition under this Decree shall lie to the Court of Appeal.
(3) The decision of the Court of Appeal, on an appeal brought under subsection (1) of this section shall be final.”
See also Esewe v. Gbe (1988) 5 NWLR (Pt. 93) 134; Ecoconsult Ltd. v. Pancho Villa Ltd. (1999) 1 NWLR (Pt. 588) 507.
In view of the foregoing discussion of the legal position and the reasons stated and those stated in the ruling of my learned brother Kutigi, JSC, I too uphold the preliminary objection to the effect that this court has no jurisdiction to entertain this appeal. I accordingly strike it out as being incompetent. I make no order for costs.
A. O. EJIWUNMI, J.S.C.: I was privileged to have read before now the draft of the ruling just delivered by my learned brother, Kutigi, JSC. I unhesitatingly agree with him that this appeal is incompetent for the reasons given in the said ruling. However, may I be permitted to add a few words of my own.
The application which has led to this decision, was brought by the applicant for the following reliefs:-
“1 . An order of court for accelerated hearing of the appeal and an interlocutory application arising therein.
2. An order of court striking out the appeal in limine for incompetence.
3. Making any other order or orders as the Honourable Court may deem fit and proper in the circumstances of this appeal.”
And further take notice that the grounds upon which this application is brought are as follows:-
(a) Under section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria, the decision of the Court of Appeal in an election is final.
(b) The notice of appeal is a deliberate abuse of judicial process intended to delay and pervert the cause of justice.
(c) The notice of appeal is a nullity.”
The applicant also deposed to a 14-paragraphed affidavit which were attached exhibits “AA”, “AB”, “AB1” and “AB2”. I do not intend to reproduce them as they have been fully set down in the lead judgment. However, it is sufficient for my own purposes to set down paragraphs 4, 5, 6 & 7 of the said affidavit. The applicant who deposed to it contested the 19th of April, 2003 gubernatorial election for the Rivers State against the respondent/appellant. The respondent/appellant won the said election. The applicant then petitioned against his election to the Election Tribunal ruling at Port Harcourt. The said paragraphs 4, 5, 6 & 7 of the applicant’s affidavit are as follows:-
“4. After service of the petition on the appellant/respondent, a notice of preliminary objection was filed on his behalf challenging the competence of the petition.
5. After hearing argument on the notice of preliminary objection, the Election Tribunal sitting at Port-Harcourt struck out the petition. The petitioner/respondent/applicant appealed to the Court of Appeal.
6. On 31st July, 2003 the Court of Appeal allowed the appeal and remitted the petition back to the Tribunal for hearing on merit. A copy of the enrolled order of the Court of Appeal is hereto exhibited and marked exhibit “AA”.
7. On 11th August, 2003 the appellant/respondent filed a notice of appeal to this Honourable Court challenging the decision of the Court of Appeal on the election petition matter. It is this notice of appeal that is the subject of this application.”
The application and its grounds were refuted by the 1st respondent in nine paragraph counter-affidavit sworn to on his behalf by one Oris Onyiri, who described himself as a “politician” and the Secretary of the Peoples Democratic Party, Rivers State. In my view, I consider paragraphs 4, 5, 6 & 7 as germane to my decision in this matter. They read thus:-
“4. That the Court of Appeal that heard the appeal of the petitioner/respondent/applicant herein had no jurisdiction to adjudicate on the appeal because the appeal was not on any question whether any person (i.e. the appellant/1st respondent) was duly elected to the office of Governor or Deputy Governor.
5. That the appeal of the appellant/1st respondent is of a constitutional nature and it touches on the jurisdiction of the Court of Appeal.
6. That the appellant/1st respondent herein has not filed the appeal before this Honourable Court to annoy, irritate or frustrate the petitioner or to delay the healing of the petition.
7. That in view of the infringement of the Constitution by the Court of Appeal, it would be in the interest of justice to determine the appeal as stipulated by law.”
The 2nd -327th respondents did not file any affidavit, but in keeping with the Rules of this court, their learned counsel, John Kalipa filed a respondent’s brief on their behalf. The applicant also had filed for him an applicant’s brief by his learned counsel, Chief M. I. Ahamba, SAN. For the 1st respondent, his brief was filed by Mr. Kehinde Sofola, SAN.
At the hearing of this application, the thrust of the argument of Chief Ahamba, SAN for the applicant is that the appeal of the 1st respondent/appellant to this court is incompetent and should be struck out. For this argument to be sustained, he referred to the provisions of section 246(3) of the 1999 Constitution and to the following cases Erisi v. Idika (1987) 4 NWLR (Pt. 66) 503 at 512, 518; Onuaguluchi v. Ndu (2000) 7 NWLR (Pt. 712) 309 at 321. And also to the recent unreported decision of this court in SC.194/2003 Buhari & Ors. v. Obasanjo & Ors. delivered on 23/9/2003.
Mr. Sofola, SAN for the 1st respondent opened his argument by referring to the preliminary objection raised against the twin reliefs sought by the applicant. And then submitted that as the prayers are in contradiction to each other, the application should be struck out. Following the view of the court that the 1st prayer cannot be considered without first considering the merit in respect of the 2nd prayer, Mr. Sofola continued with his argument against the granting of the 2nd prayer. The thrust of the argument of Mr. Sofola appears to be that the appeal filed in respect of the decision of the Court of Appeal is competent. And in support of that argument, he referred to the decision of this court in James Orubu v. National Electoral Commission (1988) 5 NWLR (pt. 94) 323. He also asked that the court should not follow its recent unreported decision in SC.194/2003: Buhari & Ors. v. Obasanjo & Ors. delivered on 23 September. 2003.
In my humble view, a close reading of James Orubu v. National Electoral Commission (supra) would reveal that the court was in that case interpreting paragraph 27(1) of Schedule 3 to the Local decisions of the National Assembly Election Tribunals and Governorship and Legislative Government Elections Decree No. 37 of 1987. It must be noted that this court in the determination of that appeal was concerned with the interpretation of the provisions of paragraph 27(1) of Schedule 3 to the Local Government Elections Decree. It was not concerned with the provision of section 27(1) of the 1979 Constitution, which is also in pari material with section 318(1) of the 1999 Constitution. Hence, Uwais, JSC (as he then was) said thus:-
“It follows, therefore, that the fact that the Local Government Elections Decree, 1987 has made specific provisions on election to Local Government Councils is sufficient indication that the unsuspended or modified provisions of the 1979 Constitution… are not to apply to matters connected with local government elections. The maxim generia specialibus non derogant applies.”
Continuing further, the learned Justice said:
“Since the provisions of a Decree override those of the 1979 Constitution, then it is incontrovertible that the general provisions of the Constitution will not apply to an appeal from the High Court, unless of course, the Decree makes no provision in that respect. In the present case there was no right of appeal to the Court of Appeal by virtue of the provisions of paragraph 27(1) of Schedule 3 of the 1987 Decree.”
That decision in my respectful view cannot provide comfort to the respondent to support the view canvassed that its appeal. to this court is competent. It is no doubt clear that all the courts of record in the Federation from the High Court to this court are creations of the Constitution and have their various jurisdictions carefully set out accordingly in the Constitution.
Hence in the Constitution of Nigeria, 1999, when dealing with where an appeal would lie from the decision of Governorship Election Tribunal, and also the effect of such decisions in the event of an appeal, it provided thus in section 246(1)(b)(ii) and (3) as follows:-
“S. 246(1) An appeal to the Court of Appeal shall lie as of right from
(a) …
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether:
(i) ….
(ii) any person who has been validly elected to the office of Governor or Deputy Governor or
(iii) …
(2) …
(3) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.”
Bearing in mind the argument of the 1st respondent that the jurisdiction of the Court of Appeal is limited only to hearing appeals from the decision of the Governorship Election Tribunals, as to whether any person has been validly elected to the office of Governor or Deputy Governor, it is pertinent in the con of this question to look more carefully at the wording of section 246(1) which when read together is as follows:-
“An appeal to the Court of Appeal shall lie as of right from the decision of the Governorship Election Tribunal on any question as to whether any person has been validly elected to the office of Governor.”
(Italics mine)
Though the word “any” when used as an adjective is defined in Longman Dictionary of the English Language thus: “one or some indiscriminately, whichever is chosen”. It would appear that the word “any” qualifying “question” was deliberately used by the lawmakers to indicate that an appeal to the Court of Appeal was not limited only to hearing appeals only to whether any person has been validly elected to the office of Governor (Italics mine). It follows therefore that the provisions of section 246(1) allow appeals to lie to the Court of Appeal in respect of interlocutory decision of the Governorship Election Tribunals and the other tribunals named in that section of the Constitution. Be that as it may, the provision of section 318(1) of the 1999 Constitution leaves no one in doubt as to the meaning of decision. It reads:
‘”decision” means, in relation to a court, any determination’ of that court and includes judgment, decree, order, conviction, sentence.’
And upon that premise an appeal surely lies to the Court of Appeal in respect of the interlocutory decision of the Governor’s Election Tribunal sitting in Port-Harcourt. I only wish to add that the argument offered that the recent unreported decisions of this court should not be followed is with due respect untenable and it is rejected accordingly. It only remains for me to say that there is no question that an appeal in respect of decisions by a Governorship Election Tribunal lies to the Court of Appeal, and by virtue of the clear provisions of section 246(3) of the 1999 Constitution, the decision of that court is final.
I would therefore also make orders by granting prayer (2) and hereby strike out appeal No. SC.205/2003 pending in this court. Having granted prayer (2), prayer (1) cannot now be granted. It is struck out accordingly. I make no order as to costs.
N. TOBI, J.S.C.: I have read in draft the ruling of my learned brother, Kutigi, JSC, and I agree with him. The appeal should be struck out on the ground that it is incompetent.
Dr. Peter Odili, the appellant, is the Governor of Rivers State. He contested the gubernatorial election in the State with Chief Sergeant Awuse, the 1st respondent. He won the election. Chief Awuse was not satisfied with the result of the election. He filed an election petition.
The petition came before the Governorship and Legislative Election Tribunal. The appellant, as 1st respondent, raised the following preliminary objection:
“The petition herein is fundamentally defective for failing to comply with Electoral Act, 2002 and should therefore be struck out.”
After hearing arguments from counsel, the Election Tribunal struck out the petition. Olateru-Olagbegi, J. (as she then was) the Chairman of the tribunal said in the penultimate and last paragraphs at page 172 of the record:
“Consequently the only option open to the tribunal in the circumstances is to strike out the petition as it has no jurisdiction to entertain it … It is for this reason that the tribunal finds that the present election petition is defective and must be struck out and it is hereby accordingly struck out.”
Dissatisfied, the 1st respondent filed an appeal at the Court of Appeal. The Court of Appeal allowed the appeal and sent the petition back to the tribunal to be heard on merit. Delivering the leading judgment of the court, Muhammed, JCA, said at page 384:
“The petition was in compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002. This effectively disposed of the appeal. There is no need to consider the third issue. To do so will amount to an academic exercise. In the circumstance the appeal succeeds and is allowed by me. The ruling of the Tribunal delivered on 11th June, 2003 is set aside. The petition is remitted back to the Tribunal to be heard on merit.”
Dissatisfied, the appellant has come to this court. He filed a brief of argument and formulated the following issues for determination:
“(1) Whether having regard to the provision of section 246(1)(b)(ii) of the Constitution of the Federal Republic of Nigeria, 1999, the court of Appeal had jurisdiction to hear and determine the appeal of the 1st respondent in the court below.
(2) Whether or not the court below was right in interpreting and construing the judgment of the Supreme Court in suit No. SC.116/2003 between General Muhammadu Buhari & Anor. v. Alhaji Mohammed Dikko Yusuf & Anor. (2003) 14 NWLR (Pt. 841) 446, in relation to joinder of parties and sufficient pleadings in an election petition under the Electoral Act, 2002.”
Chief Ahamba (SAN), counsel to Chief Awuse, by a motion filed on 27th August, 2003, prayed this court for accelerated hearing of the appeal and striking out the appeal in limine for incompetence. He filed a brief of argument in support of his motion. The issue for determination reads:
“Whether the appeal filed by the 1st respondent on 11th August, 2003 is an abuse of the process of this Honourable Court and, if so, whether the said appeal cannot be struck out in limine.”
Learned Senior Advocate submitted that this court lacks jurisdiction to hear the appeal. He cited section 246(1) of the 1999 Constitution; Onuaguluchi v. Ndu (2001) 7 NWLR (Pt. 712) 309 and Buhari and Others v. Chief Obasanjo and Others SC.194/2003 delivered on 23rd September, 2003, (unreported). On the inherent jurisdiction of the court, learned Senior Advocate cited Erisi v. Idika (1987) 4 NWLR (Pt. 66) 503 at 518 and section 6(6)(a) of the 1999 Constitution. He urged the court to strike out the appeal.
Learned Senior Advocate for the appellant/respondent, Mr. Kehinde Sofola, in his reply, relied on the brief filed by him. He submitted as a preliminary point on issue No.1 that even though the issue of the competency was never canvassed at the court below, it can be raised at anytime and for the first time in this court without the leave of this court, being an issue of jurisdiction. He cited Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583 at 599-600; Obiakor v. The State (2002) 10 NWLR (Pt. 776) 612 at 626; Ijebu-Ode Local Government v. Adedeji Balogun and Co. (1991) 1 NWLR (Pt. 166) 136 at 153 and Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508. On competency and jurisdiction of the court, and interpretation of the Constitution particularly section 246 of the 1999 Constitution, learned Senior Advocate cited Madukolu v. Nkemdilim (1962) 1 All NLR 587; Ogualaji v. A.-G., Rivers State (1997) 6 NWLR (Pt. 508) 209 at 224; Araka v. Egbue (2003) 7 SC 75 at 85; Okumagba v. Egbe (1965) 1 All NLR 62; Nasir v. Bouari (1969) 1 All NLR 35; Mabinuori v. Ogunlole (1970) 1 All NLR 17; Hutton v. Harper (1875-76) App. Cas. 464 at 474; Coure v. The Probate Registrar Lagos (1964) 1 All NLR 308, 310; Amankra v. Zankley (1963) 1 All NLR 304; and other cases.
On the main issue before the court, learned Senior Advocate heavily relied on Orubu v. NEC (1988) 6 NWLR (Pt. 94) 323, particularly the pronouncement of Uwais, JSC (as he then was) at page 347 of the judgment. He urged the court to overrule the decision in Onuaguluchi v. Ndu (2001) 7 NWLR (Pt. 712) 309 because it is erroneous, and not good law, having regard to the decision of Orubu v. NEC (supra).
On issue No.2, learned Senior Advocate submitted that the Court of Appeal was wrong in following the recent decision of this court in General Buhari v. Alhaji Yusuf, suit No. 116/2003 delivered on 27th June, 2003 (unreported) (2003) 14 NWLR (Pt. 841) 446 because the case dealt with joinder of parties and not with pleadings. Citing Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130 at 164, learned Senior Advocate urged the court to set aside the judgment of the Court of Appeal.
Chief Ahamba (SAN), in his reply, submitted that Orubu v. NEC was not applicable to this appeal and urged the court to discountenance the decision. He referred the court particularly to the pronouncement of Uwais, JSC (as he then was) at page 347 of the judgment.
I entirely agree with Chief Sofola that the issue of jurisdiction could be raised or taken at anytime without leave of court. Jurisdiction, being a threshold issue, can be taken at anytime, even on appeal and in this court before judgment. As a matter of law, it could be raised immediately before judgment. And if it is so raised, the court must stop delivering the judgment until the issue of jurisdiction is cleared. Again, as a matter of law, jurisdiction is one issue the court can raise suo motu although it cannot resolve it suo motu.
Learned counsel for the 2nd to 327th respondents, Mr. John Kalipa, who adopted the single issue formulated by Chief Mike Ahamba, submitted that the appeal before the Court of Appeal on which a decision was given on 31st day of July, 2003 is incompetent as no appeal lies to the Court of Appeal from an interlocutory decision of the Governorship and Legislative Election Tribunal. He cited Orubu v. NEC (1988) 5 NWLR (Pt. 94) 323 at 351-352 and Okohue v. Obadan (1989) 5 NWLR (Pt. 120) 185 at 205-206.
Learned counsel submitted that Onuaguluchi v. Ndu (supra) is distinguishable from this appeal as the facts that led to the decision are radically different from those of this appeal. He urged the court to dismiss the preliminary objection.
In appellant’s/respondent’s brief to applicant’s brief, learned Senior Advocate for the appellant, formulated the following single issue for determination:
“Whether the appeal ought to be heard on its merit in the interest of justice, to enable the court interpret the provisions of S. 246 of the Constitution of the Federal Republic of Nigeria, 1999 for the development of the law.”
In arguing the brief, learned Senior Advocate, Mr. Sofola, relied on the appellant’s brief. He submitted that in law, a person must be consistent in his claim and cannot blow hot and cold at the same time. He cited Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 and 269. He urged the court to dismiss the motion.
I should take the preliminary objection by Chief Ahamba. Mr. Kehinde Sofola submitted that the first prayer asking for accelerated hearing is inconsistent with the prayer to strike out the appeal in limine. I entirely agree with Mr. Sofola. A prayer for accelerated hearing presupposes the existence of a valid appeal which will be argued when the case is ripe for argument. If the same motion asks for striking out of the appeal, then there is a clear contradiction. If the prayer is granted, then there will be no appeal to entertain the prayer for accelerated hearing if granted. This does not detract in any way from the merits of the second prayer. If anything, the first prayer could go. I will take a final decision on it after dealing with prayer 2.
The cynosure of the objection is section 246 of the 1999 Constitution. The relevant provision is subsection (3) of the section. Let me read it:
“The decision of the Court of Appeal in respect of appeals arising from election petitions shall be final.”
Etymologically, the word “final” means last, coming at the end. As an adjective, when used to qualify the noun “decision”, it means in ordinary general parlance that the decision cannot be changed as the matter is deemed to be completely settled. In the con of section 246(3) of the Constitution, the word “final” is not used in contradistinction to the word interlocutory. That is not the meaning. By section 246(3), appeals in respect of election petitions must terminate in the Court of Appeal. In other words, that is the final Court of Appeal in respect of decisions of elections tribunals within the meaning of section 246(1)(b) of the Constitution. The only exception is the Presidential election where appeal lies from the Court of Appeal to the Supreme Court.
In Onuaguluchi v. Ndu (supra), this court dealt with a similar situation. I will state the facts in some detail. The appellant contested election to the Senate in the Enugu West Senatorial District in February, 1999 with some other candidates. The appellant was declared the winner of the election on 20th February, 1999. The 1st respondent contested the election result. His petition was dismissed by the Election Tribunal. His appeal to the Court of Appeal was upheld. The Court of Appeal nullified the election and ordered that fresh election be held.
In reaction, the appellant filed an originating summons at the Federal High Court Abuja praying for an order that having been sworn in as a Senator under the 1999 Constitution, his seat cannot be made vacant by any act or judgment. The Federal High Court declined jurisdiction to hear the matter. The application to the Court of Appeal, Abuja Division to set aside the judgment of the Court of Appeal, Enugu Division was not taken. The matter was transferred to the Court of Appeal, Enugu Division. That court dismissed the matter. On a further appeal, the Supreme Court held that the decision of the Court of Appeal arising from an election petition under the National Assembly (Basic Constitutional and Transitional Provisions) Decree No.5 of 1999 is final and the Supreme Court has no supervisory jurisdiction in the matter.
Delivering the leading judgment of the court, Uwaifo, JSC, C said at page 321:
“I have gone into some of the above matters not in the capacity of hearing the appeal brought by the appellant but in the consideration of the preliminary objection to show that the Court of Appeal throughout acted within its mandate of deciding an appeal arising from an election petition under Decree 5 of 1999. Whether it did so perfectly rightly or was wrong in the decision it arrived at cannot be taken on appeal to this court for consideration … This court will not permit or encourage any subterfuge under which it may assume jurisdiction to hear an appeal in respect of which the Constitution has in clear and unambiguous language made the Court of Appeal the final court. It follows that an appeal in respect of a decision of the Tribunal in an election petition when decided by the Court of Appeal cannot be taken on appeal to the Supreme Court but is final for all purposes.”
The provision which was before the Supreme Court for interpretation was section 81 of Decree No.5 of 1999. Sub-sections (1) and (3) are relevant. I read them:
“(1) Notwithstanding the provisions of the Constitutional Court Decree, 1998, an appeal arising in respect of an election petition under this Decree shall lie to the Court of Appeal…
(3) The decision of the Court of Appeal, on an appeal brought under subsection (1) of this section shall be final.”
I am clearly of the view that the provision of section 81(3) of Decree No.5 of 1999 is the same as section 246(3) of the 1999 Constitution. Uwaifo, JSC. is therefore correct when he said at page 321 of the judgment:
“If I may add, the provisions of S. 81(3) of Decree 5 of 1999 were included in S. 246(3) of the 1999 Constitution just when the said Decree was repealed.”
Ogwuegbu, JSC, in his concurring judgment also said at page 325:
“It is true that section 81(3) of Decree No.5 of 1999 was not in operation at the time the appeal was heard having been repealed by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree No. 63 of 1999. The finality of the decision of the Court of Appeal in such matters was re-enacted in section 246 of Constitution of the Federal Republic of Nigeria, 1999.”
Uwaifo, JSC, reproduced the provisions of section 246(3) of the Constitution and relevantly continued at page 321:
“It must be emphasised that such finality applies also to every interlocutory decision or any decision taken in respect of a matter or on issue concerning or arising from the decision reached in the appeal. No appeal shall lie from it to any other court even if it is patently wrong.”
No judgment can be clearer and more germane to the issue before us in this appeal. Uwaifo, JSC, dealt with the finality of the decision of the Court of Appeal in decisions in election petitions in all its ramifications, including interlocutory decisions, as we have on our hands in this appeal. Mr. Sofola has asked us to overrule Onuaguluchi. I will return to that.
Chief Ahamba cited our recent decision in General Buhari and others v. Chief Obasanjo and others (supra) on the definition of decision. In the case, Uwais, CJN, said:
“Be that as it may, Chief Ahamba, has opposed the application by filing both a counter-affidavit and notice of preliminary objection. He submitted that to appeal under the provisions of section 233 subsection (2)(e) of the Constitution no leave is required it respective of the fact that the grounds of appeal are based on law or mixed law and facts. I agree with his submission. The word
‘decision’ has been defined under section 318 of the Constitution. It includes decision against a ruling in any proceedings. The ruling given by the Court of Appeal on 28th July, 2003 is such a decision.”
I think the more appropriate case is Onuaguluchi. No effort at interpreting the judgment is required. Uwaifo, JSC, hit the matter clearly on the head when he held that “such finality applies also to every interlocutory decision”. I expected Chief Ahamba to quote the above. The passage he cited at page 3 of his brief got close to it but he never arrived there. The pronouncement of Uwaifo, JSC, extending the finality to interlocutory decisions, is most apt for the purpose of this appeal as it settles the issue in this appeal properly.
Chief Sofola ‘drummed’ into our ears, when arguing the appeal, that we must follow our earlier decision in Orubu v. NEC (supra). In view of the fact that learned Senior Advocate took the case from pages 17 to 29, quite a portion of his brief, and presented to us a case that the decision of this curt on it is most relevant. I shall deal with the case for a while.
Let me first take the facts. The appellant was a candidate in the local government election. He contested the election with the 14th respondent who was declared the winner. He filed an election petition in the High Court. The High Court, upon an application ex parte restrained the 14th respondent from being sworn in as Chairman for Ward Local Government Council Area. The 14th respondent brought an application that his name be struck out, or in the alternative that the petition be dismissed. The learned trial Judge dismissed the application. On appeal to the Court of Appeal, that court discharged the order of injunction.
On further appeal to the Supreme Court, it was contended that an appeal did not lie from the High Court to the Court of Appeal against a decision of the High Court in an application before the High Court for interlocutory injunction in an election matter. Counsel based his submission on paragraph 27(1) of Schedule 3 to the Local Government Election Decree No. 37 of 1987. The Supreme Court held that there is no light of appeal to the Court of Appeal by virtue of the provisions of section 220(1)(g)(ii) of the 1979 Constitution did not apply to the case vesting jurisdiction in the Court of Appeal to hear appeal from the decision of the High Court in interlocutory matters.
Delivering the leading judgment, Uwais, JSC (as he then was) said at page 347:
“Admittedly, looking ordinarily at the wording of paragraph 27(1) it does not seem to convey the impression that once a ruling is given in an interlocutory matter in an election petition, there is no interlocutory appeal on the ruling. However, the impression becomes discarded once it is realised that an election petition is not the same as the ordinary civil proceedings, it is a special proceedings because of the peculiar nature of elections which, by reason of their importance to the well-being of a democratic society, are regarded with aura that places them over and above the normal day to day transactions between individuals which give rise to ordinary, or general claims in court.”
Nnamani, JSC, in his concurring judgment said at page 355:
“As to the question of the finality of the decision of the Court of Appeal, I can only express surprise that in the instant case the Court of Appeal assumed jurisdiction under the Constitution but went back to the Decree to assert finality of its judgment. There is no doubt that in a case properly falling within section 36(1) of the Decree, the decision of the Court of Appeal would under section 36(2) be final. As mentioned earlier, however, the decision of the High Court was not a final one in respect of which an appeal would lie under section 36(1) and 37 of the Decree.”
Orubu is different from this case in two instances. First, it concerned the interpretation of paragraph 27(1) of Decree No. 37 of 1987 which provided that “all interlocutory questions and matters shall be heard and disposed of before a Judge, who shall have the control over the proceedings as a Judge in ordinary proceedings of the High Court.” While section 246 of the 1999 Constitution deals with the Court of Appeal, paragraph 27(1) dealt with the High Court. Second, (and this is related to the first) while Orubu dealt with appeal from the High Court to the Court of Appeal, this matter deals with appeal from the Court of Appeal to the Supreme Court.
Learned Senior Advocate, Mr. Sofola, has asked us to overrule our decision in Onuaguluchi v. Ndu (supra). Urging the court to overrule the decision, Mr. Sofola said at page 33 of the appellant’s brief:
“The appellant will invite the Supreme Court to overrule the decision in Onuaguluchi v. Ndu’s case because it is erroneous, and it is not good law, having regard to the submissions made in this brief of argument. The same being inconsistent with Orubu v. NEC (supra).”
As it is, learned Senior Advocate has given three reasons why this court should overrule Onuaguluchi. These are (1) because the decision is erroneous; (2) it is not good law; (3) it is inconsistent with Orubu v. NEC.
Counsel, who calls on a court to overrule its earlier decision, has a herculean task to satisfy the court that the decision is wrong in law. He must show that the decision has caused or perpetuated injustice through the doctrine of stare decisis or it has impeded the development of the law or is in fact against public policy or the decision was given per incuriam. See Orubu v. NEC (supra).
Departing from an earlier decision is a very grave function of the court, and the duty is on the party so urging to satisfy the court that truly there is the obvious need to so depart. In taking a decision whether or not to depart from its earlier decision, the court is faced with two competing situations: (1) The situation where the stability of the law in vindication of the doctrine of stare decisis is a desideratum. (2) The situation where rigid adherence to the doctrine of stare decisis will ruin or impede the development of law and the amicable administration of justice. In order to sway to the position of departure, the court must be convinced that taking the position in (2) above will meet the ends of justice and the development of the law. Where there is any doubt as to the reasonability or desirability to follow (2) above, the doubt must be exercised in favour of (1) above.
Let me now return to the reasons given by learned Senior Advocate for this court to overrule itself in Onuaguluchi. The first reason is on the ground that the decision is erroneous. The word “erroneous” means incorrect or mistaken. I did not see in the brief where learned Senior Advocate clearly pointed out that Onuaguluchi is an erroneous decision. As a matter of fact, learned Senior Advocate examined the case most briefly from the bottom of page 32 to the end of page 33. All he did was to quote what Uwaifo, JSC, said at page 33 and submitted that the case should be overruled. Since he did not indicate in the brief the erroneous content of Onuaguluchi, I will not accept his invitation to overrule the decision. The second reason is that Onuaguluchi is not good law. Putting this negatively means Onuaguluchi is bad law. If Onuaguluchi is bad law, learned Senior Advocate, beyond the mere claim that it is not good law, has not told the court why it is not good law. Again, pages 32 and 33 which deal with the case does not assist this court in coming to the conclusion that Onuaguluchi is not good law. It is my opinion that Onuaguluchi is good law. The third reason is that Onuaguluchi is inconsistent with Orubu. I think he argued this point in the brief. Although learned Senior Advocate did not specifically make the point in the brief when he dealt with Orubu, the totality of the submission counsel made in the brief is enough for this court to come to the conclusion that learned Senior Advocate’s contention is that Onuaguluchi is inconsistent with Orubu. Although learned Senior Advocate did not tell the court in specific language the area or areas of inconsistency, I conceded the point that he tried to make a case that Onuaguluchi is inconsistent with Orubu. Since I have come to the conclusion that Orubu is different from Onuaguluchi, I do not want to repeat myself. In direct answer to the submissions of learned Senior Advocate. I am of the opinion that since Orubu and Onuaguluchi dealt with different matters, this court cannot, with the greatest respect, go along with Mr. Sofola on his argument of inconsistency.
Learned Senior Advocate cited a number of decisions in his brief. That is so much industry for which I commend him but the decisions are not helpful to the case of the appellant.
The case of the appellant rests on the interpretation of section 246(3) of the 1999 Constitution. I have dealt with it above and I need not repeal myself. The language of the subsection is clear, precise and unambiguous. The law of statutory interpretation is elementary and it is that if a language of a statute is clear, the court must give the words their ordinary meaning in its interpretation of the statute. That is the principle of literal interpretation, which must be followed, unless it will lead to absurdity and inconsistency with the provisions of the statute as a whole. See Chief Awolowo v. Alhaji Shagari (1979) 6-9 SC 51; Garba v. FCSC (1988) 1 NWLR (Pt. 71) 449; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377.
Learned Senior Advocate quoted what I said in Araka v. Egbue (2003) 7 SC 75 at 85 as follows:
“The primary function of the court is to search for the intention of the lawmaker in the interpretation of a statute. Where a statute is clear and unambiguous, the court in the exercise of its interpretative jurisdiction must stop where the statute stops. In other words, a court of law has no jurisdiction to rewrite a statute to suit the purpose of one of the parties or both parties. The moment a court of law intends to rewrite a statute or really rewrites a statute, the intention of the lawmaker is thrown overboard and the court changes places with the lawmaker. In view of the fact that, that will be against the doctrine of separation of powers entrenched in the Constitution, a court of law will not embark on such an unconstitutional act. Courts of law follow the literal rule of interpretation where the provision of the statute is clear and no more. And that is the position in this appeal.”
I endorse the above and say that, that is the position in this appeal. Section 246(3) of the Constitution is so clear that it does not entertain any other interpretation other than the finality of decisions of the Court of Appeal within the meaning of decisions of election tribunals under section 246(1)(b) of the Constitution.
This court should not have the gluttony or hunger for jurisdiction in the way a child will grab sweet on its dinner table. On the contrary, this court, the highest court of the land, should or better still must, respect the hierarchy of the court structure in the country and decide appropriately which court has jurisdiction in a particular matter. That is the only way this court will be seen as performing its judicial functions, by precepts and examples.
In sum, it is for the above reasons and the fuller reasons given by my learned brother, Kutigi, JSC, in his ruling that I too grant prayer 2 and the appeal is struck out for incompetence. Prayer on accelerated healing is overtaken by prayer 2 and is hereby struck out. I make no order as to costs.
Application granted.
Appearances
Chief Mike Ahamba, SAN (with him, Tunji Ayanlaja, SAN. Mike Okoye, Esq., Taye Dikko, Esq., Okey Okoroji, Esq., Vincent Obiawuyi, Esq., Princess Pat Ajudua, Ken Sarawiyo, Esq. and T. Adebayo, Esq.) For Appellant
AND
Kehinde Sofola, SAN (with him, B.M. Wifa. SAN, D. West, Esq., J. Ogboduma, Esq., E. Thompson [Mrs.] and O. Ogunniyi [Miss]) – for the 1st Respondent
John Kalipa, Esq. -for the 2nd – 37th Respondents For Respondent
