DR. EMMANUEL ANDY UBA V. DAME VIRGY ETIABA & ORS
(2008)LCN/2666(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of February, 2008
CA/E/EPT/7/07
RATIO
DEFINITION OF WORDS – LIS PENDENS: WHAT DOES LIS PENDENS MEANS
“Lis pendens means a pending law suit. It is a Latin expression used to give a notice required to warn all parties that certain property is subject matter of litigation and that any interest acquired during the pendency of the suit must be subject to the outcome of the litigation. The doctrine of Lispendens operate to prevent the effective transfer of any property in dispute during the pendency of the dispute. The doctrine is designed to prevent the vendor from transferring any effective title to a purchaser by depriving him the vendor of any rights over the property during the pendency of the suit. Osagie v. Oyeyinka (1987) 3 NWLR (Pt.59) pg. 144 Abhulimen v. Namme (1992) 8 NWLR (Pt.258) pg. 202 Combined Trade Ltd. v. ASTB Ltd. (1995) 6 NWLR (Pt.404) pg. 709 Umoh v. Tita (1999) 12NWLR (Pt.631) pg. 427 I must add that the Supreme Court as the Apex Court has taken the doctrine from the realms of real property and invoked same in ordinary cases where parties have a duty to preserve the subject-matter of dispute and not foist a fait accompli on the court and the power of the court to reverse action taken pendente. Parties to proceedings pending in court ought not to do anything which may have the effect of rendering nugatory the judgment of the court. A party may not alter to his advantage or disadvantage of his opponent issues in contest in a pending suit. By the doctrine of stare decisis the decision of the Apex Court is binding on all other lower courts. Obi v. INEC (2007) 11NWLR (Pt.1046) pg. 565” PER MUNTAKA-COOMASSIE, J.C.A.
ACTION – CONSOLIDATION OF ACTIONS: WHETHER A SINGLE JUDGMENT CAN BE GIVEN IN RESPECT OF ALL THE ACTIONS
“I shall resolve this issue by quoting from the judgment of this court in the case of Ume v. Ifediorah (2001) 8 NWLR (pt.714) pg. 35 at pg. 43 where the court said:- “Consolidation of actions, in essence, facilitates the joinder and trial at the same time, consequent upon the court’s order of two or more pending actions. The actions so joined persist in their separateness and distinctiveness inspite of the simultaneous trial in a single proceeding. It follows naturally therefore that judgment must be given in respect of each action that had gone into seeming fusion.” The submission of the appellant is that the judgment is invalid. A party who has a complaint about consolidation of action must show that miscarriage of justice resulted from the single judgment. Balonwu v. Ikpeazu (2005) 13 NWLR (Pt.942) pg. 479.”PER MUNTAKA-COOMASSIE, J.C.A.
CASE LAW – JUDICIAL PRECEDENT: WHETHER ALL COURTS ARE BOUNDED BY THE DECISIONS OF THE SUPREME COURT
“All courts in Nigeria are bound by the decision of the Supreme Court of Nigeria which is the highest court of the land. This follows the doctrine of stare decisis which is fully entrenched in the Nigerian jurisprudence to ensure certainty of the law. It is a well settled principle of judicial policy which must be strictly adhered to by all lower courts. However the lower courts must follow the principle of law or order upon which a particular case is binding such a principle is called the ratio decidendi. A statement made in passing by a judge which is not necessary to the determination of the case in hand is not a ratio decidendi of the case but an obiter dictum. It is very vital to be able to draw the line of distinction between them for the purpose of judicial precedent. Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt.312) pg. 382 Atolagbe v. Awuni (1997) 9 NWLR (Pt.522) pg. 536 NAB. v. Barri Engineering (Nig.) Ltd. (1995) 8NWLR (Pt.413) pg.257 Concord Press Nigeria Ltd. v. Olutola (1999) 9 NWLR (Pt.620) pg.578 Comptroller of Nigeria Prison v. Adekanye (1999) 10 NWLR (Pt. 623) pg. 400. In adopting the decision of a higher court one must not rewrite it so as to give it another meaning or interprete it in a way to suit a particular purpose or situation not envisaged by the judgment.” PER MUNTAKA-COOMASSIE, J.C.A.
COURT – JURISDICTION OF THE COURT: WHETHER COURTS CAN GIVE THEMSELVES OR EXPAND THEIR JURISDICTION BY MISAPPROPRIATING OR MISCONSTRUING STATUTES
“The determination of courts competence depends on the peculiar circumstance of each case. Furthermore in determining the jurisdiction of a court the enabling laws vesting jurisdiction on it has to be examined in the light of the reliefs sought. This is so because courts are creations of statutes and their jurisdiction therefore confined, limited and circumscribed by the statute creating them. Courts cannot in essence give themselves or expand their jurisdictional horizon by misappropriating or misconstruing statutes. African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) pg. 137 Onwudiwe v. F.R.N. (2006) 10 NWLR (Pt.988) pg. 382” PER MUNTAKA-COOMASSIE, J.C.A.
JUSTICES
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
DR. EMMANUEL ANDY UBA – Appellant(s)
AND
DAME VIRGY ETIABA & 653 ORS – Respondent(s)
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): This is a consolidated appeal against the ruling of the Governorship/National Assembly and Legislative Houses Election Tribunal sitting in Awka, Anambra State delivered on the 19th of July, 2007.
The facts of the case briefly are that the Governorship and Legislative House Election were held throughout the country on the 14th of April, 2007. The candidate sponsored by the People Democratic Party Dr. Emmanuel Andy Uba was returned by INEC as the person who won the election to the office of governor of Anambra State. Other contestants being aggrieved by this declaration of result by INEC headed to the Election Petition Tribunal to air their grievance. The petitions filed and the parties were as follows:-
EPT/AN/GE/1/2007 ANPP & 1 Or. v. Prince Nicholas Ukachukwu & 3 Ors.
EPT/AN/GE/2/2007 Action Congress & 2 Ors. v. INEC & 3 ors.
EPT/AN/GE/3/2007 Victor Osita Dinma Ezenwa v. Dr. Emmanuel Uba & 3 Ors.
EPT/AN/GE/5/2007 Emeka Okafor & 1 Or. v. INEC & 3 ors.
EPT/AN/GE/6/2007 Dr. Alex Obiegbolu & 1 Ors. v. Dr. Emmanuel Andy Uba & 25 Ors.
EPT/AN/GE/7/2007 Mrs. Njideka Obiegbolu & 1 Or. v. Dr. Andy Emmanuel Uba & Ors.
EPT/AN/GE/4/2007 Dame Virgy Etiaba v. INEC & 647 Ors.
While the petitions and cross/petitions were pending before Election Petition Tribunal, Awka, on the 14th June, 2007, the Supreme Court delivered a judgment in Peter Obi v. INEC (2007) 11NWLR (Pt. 1046) pg. 565 which changed the fate of these petitions and cross petitions. In the 19th April, 2003 election to the office of Governor of the States of the Federation both Chris Ngige on the platform of Peoples Democratic Party and Mr. Peter Obi on the platform of All Progressive Grand Alliance (APGA) contested in Anambra State. INEC declared Dr. Chris Ngige winner and this sent Mr. Peter Obi to the Election Petition Tribunal to contest the result. The Election Petition Tribunal declared Mr. Obi winner and this was affirmed by the Court of Appeal Enugu on the 16th of March, 2006. He assumed office on the 17th of March, 2006. He did not contest the 2007 elections on the basis that his four-year tenure had not expired. Meanwhile INEC conducted gubernatorial election in Anambra State on the 14th of April, 2006. Mr. Peter Obi commenced a suit against INEC at the High Court by an originating summons whereupon he sought the determination of the following questions:-
1. Whether having regard to section 180(2)(a) of the 1999 Constitution the tenure of office of a governor first elected as governor begins to run when he took the oath of allegiance and oath of office.
2. Whether the Federal Government of Nigeria through the defendant being its agent can conduct any governorship election in Anambra State in 2007 when the incumbent governor took oath of allegiance and oath of office on 17th of March, 2006 and has not served his four year tenure as provided under section 180(2)(a) of the 1999 Constitution. Mr. Obi then sought reliefs as follows:-
(a) A declaration that the four year tenure of office of the plaintiff as the Governor of Anambra State began to run from the date he took the oath of allegiance and oath of office being the 17th day of March, 2006,
(b) A declaration that the Federal Government through the defendant being its agent cannot lawfully conduct any governorship election in Anambra State in 2007 in so far as the plaintiff as the incumbent Governor has not served his four year tenure of office commencing from when he took oath of allegiance and oath of office on 17th March, 2006.
(c) Injunction restraining the defendants by themselves their agents, servant, assigns and privies or howsoever from in anyway conducting any regular election for the governorship of Anambra State until the expiration of a period of four years from the 17th day of March, 2006 when the plaintiff’s tenure of office will expire.
The Federal High Court and Court of Appeal declined jurisdiction on the basis that the suit was related to electoral matter and therefore fell within the jurisdiction of the Election Petition Tribunal. Mr. Peter Obi appealed to the Supreme Court, which held that it had jurisdiction to interpret section 180(2) (a) of the 1999 Constitution by invoking Section 251(1)(q) and (r) which gave the court jurisdiction to interpret any provision of the Constitution or the law. In a unanimous decision of the court, with Aderemi, JSC delivering the leading judgment said:-
“In the final analysis for all I have been saying which explains the reasons for my decision on the 14th of June, 2007 it is my judgment that this appeal is meritorious. It must be allowed and I hereby allow the appeal. I set aside the judgment of the two courts below.
In their place I make the following declarations and orders which the justice of this case demands; they are:
(1) That the Office of the Governor of Anambra State was not vacant as at 29th May, 2007.
(2) That the tenure of office of the appellant (Peter Obi) as the governor of Anambra State which is for four years certain will not expire until 17th March, 2010 for the reason of the fact that he being a person first elected as Governor under the 1999 Constitution took oath of office on the 17th of March, 2006.
(3) It is hereby ordered that the 5th respondent (Dr. Andy Uba) should vacate the office of the governor of Anambra State with immediate effect to enable the plaintiff/appellant (Mr. Peter Obi) to exhaust his term of office.”
The appellant Dr. Andy Uba who had on the 29th of May, 2007 took oath of allegiance and oath of office was inaugurated into the office as governor of Anambra State. However, after the judgment of the Supreme Court on the 14th of June, 2007, the appellant vacated office for Peter Obi. In the Election Petition Tribunal, after the judgment of the Supreme Court the tribunal requested the counsel appearing for the parties to address it on the effect of the judgment. The tribunal gave its judgment commencing from page 726 – 728 of the record of proceedings as follows:
“We have considered addresses of learned counsel for all the parties both written and oral, we entirely agree with. Emeka Ngige learned Senior Advocate for the petitioners in petition Nos. 2 and 5 that this tribunal is enjoined to look at the judgment of the Supreme Court in their entirety. In the said judgment the Supreme Court said:-
The four year term of office of Peter Obi would start running from 17th of March, 2006 only to terminate on 17th March, 2010. Section 178(2) of the Constitution of Federal Republic of Nigeria 1999 provides as follows:-
(2) An election to the office of governor of a State shall be held on a date not earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office.
We entirely agree with Chief Ahamba learned Senior Advocate that 14th April, 2007 to 17th March, 2010 is more than 30 days. Therefore the election held on 14/4/07 by INEC was unconstitutional and therefore void.
We also agree with Chief Ahamba that under the doctrine of lis pendens the election having been conducted when the case of Peter Obi v. INEC was pending was a nullity see page 39 of the Supreme Court judgment. Since the gubernatorial election in Anambra State on the 14/4/07 was a nullity in the light of the Supreme Court judgment referred to above we hereby declared this said gubernatorial election – the subsequent inauguration and any steps taken in furtherance of the said election a nullity. We further hold that the petition of the petitioners including the cross-petition, all processes in these petitions and cross-petitions a nullity and hereby struck out. Security for costs paid by petitioners and cross/petitioners shall be refunded to them. No order as to costs.”
Being aggrieved by the foregoing judgment of the lower tribunal the appellant Dr. Emmanuel Andy Uba appealed to this court. In the petition EPT/AN/GE/4/2007 now CA/E/EPT/7/2007 the appellant filed an amended notice of appeal with three grounds of appeal. In the appellant’s brief deemed filed on 15/1/08 the appellant identified three issues for determination of the grounds of appeal filed as follows:-
(i) Whether the tribunal acted outside and beyond its jurisdiction under section 145 and 147 of the
Electoral Act, 2006 having regard to the reliefs sought in the election Petition No. EPT/AN/GE/2/07 before it.
(a) To declare the inauguration of the appellant and any steps taken in furtherance of his election a nullity.
(b) To rely on section 178(2) of the 1999 Constitution not raised in the election Petition.
(c) Rather than simply striking out the election petition on the basis of the Supreme Court judgment without annotating that judgment.
(ii) Whether lis pendens is a doctrine applicable to an election petition so as to make it relevant to the elections petition before the tribunal.
(iii) Whether it was a valid exercise of judicial authority for the tribunal to give single judgment for nine consolidated election petitions.
Chief Osigwe learned counsel to the 1st respondent adopted and relied on the 1st respondents brief filed on 20/11/07 and settled three issues for determination as follows:
(i) Whether the tribunal was right to raise and determine the issue of the competence of the petition and cross petition filed in respect of the Governorship election purportedly held in Anambra State on 14/4/07 in view of the Supreme Court judgment delivered in appeal No.SC. 123/2007 Peter Obi v. Independent National Electoral Commission (INEC) & 7 0rs. on 14th June 2007.
(ii) Whether the tribunal can make consequential orders made in the matter.
(iii) Whether the issue raised by the appellant are not mere academic view of the decision of the court.
Chief Amaechi Nwaiwu (SAN) learned senior counsel for the 2nd – 653rd respondents adopted their first brief filed on the 17th of January, 2008. Three issues were formulated for determination as follows:-
(1) Whether tribunal acted outside its jurisdiction under sections 145 and 147 of the Electoral Act having regard to the reliefs sought in the petition No. EPT/AN/GE/4/2007 before it and when without hearing the parties on the substantive petition before it, proceeded to deliver judgment declaring the gubernatorial election, the subsequent inauguration any steps taking (sic) in furtherance of the said election a nullity.
(2) Whether the tribunal was right in holding that the governorship election in Anambra State was a nullity under the doctrine of lis pendens since the case as Peter Obi v. INEC was pending.
(3) Whether the judgment of the tribunal is invalid, when after consolidating nine petitions before it gave one single judgment in respect of all, instead of nine separate judgments?
Issue No. 1
Whether the tribunal acted outside and beyond its jurisdiction under sections 145 and 147 of the Electoral Act, 2006 having regard to the reliefs sought in the election petition No EPT/AN/4/2007.
The learned senior counsel submitted that by virtue of section 145 of the Electoral Act, 2006, an election may be questioned on any of the following grounds:-
(a) That a person whose election is questioned was at the time of the election, not qualified to contest the election.
(b) That the election was in valid by reason of corrupt practices or non-compliance with the provisions of this Act.
(c) That the respondent was not duly elected by majority of lawful votes cast at the election,
(d) That the petitioner or its candidate nominated but was unlawfully excluded from the election.
The foregoing are only ground and parameters upon which an election petition tribunal can adjudicate over an election petition to reach a decision.
The tribunal can also consider the provisions of sections 177 and 182(1) of the constitution to decide on the person who shall be qualified or disqualified for the office of the Governor of a State, Thereupon section 147(1) and (2) provides as follows:-
“147(1) Subject to subsection (2) of this section if the tribunal or 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 court shall nullify the election.
(2) If the tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the election tribunal or court, as the case may be shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirement of the constitution and this Act.”
The tribunal can only reach a decision to nullify an election when acting under section 147(1) and to declare as elected a candidate who has scored the highest number of votes acting under section 147(2) of the Electoral Act, 2006. That is the jurisdiction conferred generally on the election tribunals. The learned senior counsel gave the definition of jurisdiction and cited the cases – National Bank (Nig.) Ltd. v. Shoyoye (1977) 2 SC 181 at 191; A-G Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) pg. 552 at pg. 602; Ejike v. Ifeadi (1990) 4NWLR (pt.142) pg. 89 at 107; Halsbury’s Laws of England, Vol. 10, paragraph 715 pg. 323, 4th Edition.
He further submitted that the tribunal was in grave error and went outside and beyond its own jurisdiction when it made pronouncement or decision declaring the election of the appellant as well as his inauguration into office as governor of Anambra State and any steps taken in furtherance of his election a nullity.
The tribunal was also in error to declare the appellants election invalid on section 178(2) of the 1999 Constitution, the Section in question or facts in support not having been raised and relied upon in the election petition in question.
The gravamen of the submission of the counsel before the lower court was that the cause of action no longer existed since there was nothing the tribunal could adjudicate upon and each of the petitions should have been struck out. The right order to make by the tribunal was to strike out as that was the only option open to the tribunal. The judgment of the Supreme Court did not make an order of nullification. The tribunal could not amend the judgment of the Supreme Court by adding what it did not contain. By so doing the tribunal acted outside and beyond its jurisdiction which makes it invalid. The appellant cited cases in support – Sule v. Nigerian Cotton Board (1985) 2 NWLR (pt.5) pg. 17 SC; Ojokolobo v. Alamu (1987) 3 NWLR (pt.61) pg. 377 SC; Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) pg. 517.
The learned counsel for the 1st respondent submitted that counsel to the appellant and all the petitioners were heard on the legal implications of the judgment of the Supreme Court before the lower tribunal delivered its judgment. All the sections of the Constitution considered were necessary for the determination of the issues raised by the tribunal. The learned counsel submitted that the judgment of the Supreme Court in Peter Obi v. INEC & Ors. Nullified the election of the appellant – it will amount to a mere academic exercise to re-consider it. No other court or tribunal in Nigeria should revisit or pretend to adjudicate on the same subject-matter as the said judgment settles the matter forever. Since the Supreme Court had made its pronouncement the tribunal lacks the competence to entertain the petitions and cross petitions arising from the said election. The judgment of the Supreme Court has removed the substratum from the petitions and cross-petitions and has therefore deprived the tribunal of jurisdiction. The tribunal following the judgment of the Supreme Court made consequential orders it considered appropriate in the circumstance of the case in the interest of justice.
The tribunal has power to nullify election and make orders as the justice of the case demands under section 147 of the electoral Act 2006.
The appellant cannot be heard to complain that he is aggrieved by the said decision of the lower tribunal.
Chief Amaechi Nwaiwu, SAN submitted on behalf of the 2nd – 653rd respondents and restated the declaration and order of the Supreme court in the judgment of Peter Obi v. INEC & 7 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 at pg. 645 H to pg. 646 A-B.
When the Governorship petitions came up before the lower tribunal on 9/7/07, the tribunal adjourned the petitions to 19/7/2007 for the learned counsel to address the court on whether the gubernatorial petitions should be heard in the light of the judgment in Peter Obi v. INEC & 7 Ors. Counsel to the parties addressed the court. The tribunal gave judgment which nullified the election and subsequent inauguration and any steps taken in furtherance of the said election.
The learned senior counsel submitted that the judgment of the lower tribunal was itself a nullity as it was decided outside its jurisdiction and powers under sections 145 and 147 of the Electoral Act, 2006. The learned senior counsel thereafter adopted and associated himself with the legal submission of the appellant. The lower tribunal had no power to declare an election a nullity without hearing the parties. The failure of the tribunal to hear the parties on the substantive petitions before delivering its judgment is against the requirement for a valid adjudication. It amounts to breach of fair hearing and the judgment a nullity. The learned senior counsel made reference to the cases – Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt.58) pg. 539; Onyemeh v. Egbuchulam (1996) 5 NWLR (Pt.448) pg. 255; Enigwe v. Akaigwe (1992) 2 NWLR (Pt.225) pg. 515.
I have painstakingly considered the brilliant and highly academic submission of learned senior counsel and counsel appearing for the parties in this appeal. The gravamen of the appeal is the interpretation of the order of the Supreme Court judgment in the case of Obi v. INEC (2007) 11NWLR (pt.1046) pg. 565 SC delivered on the 14/6/07 and its effect on the petitions filed before the Governorship/National Assembly/and Legislative Houses Election Tribunal Awka Anambra State at the time the judgment was delivered, on the one hand. Also the validity of the order made in respect of the petitions and cross petitions based on the foregoing judgment. I shall for the avoidance of doubt and sake of emphasis restate the order of court at pg. 645-646 paragraphs G-H and A – B which reads:-
“I make the following declarations and orders which the justice of this case demands they are:-
(1) That the office of Governor of Anambra State was not vacant as at 29th May 2007.
(2) That tenure of office of the appellant Peter Obi as governor of Anambra State which is for four years certain will not expire until 17th March, 2010 for the reason of the fact that he being a person first elected as Governor under the 1999 Constitution took oath of allegiance and oath of office on the 17th of March, 2006.
(3) It is hereby ordered that the 5th respondent (Dr. Andy Uba) should vacate the office of the Governor of Anambra State with immediate effect to enable the plaintiff/appellant (Mr. Peter Obi) exhaust his term of office.”
In applying the foregoing to the petitions and cross petitions pending before the Governorship Election Tribunal – the lower tribunal gave the counsel representing the parties ample opportunity to address the court on what are the appropriate steps to take in the petitions in view of the judgment. In the final judgment of the tribunal after taking into consideration the opinion of counsel the lower tribunal gave order as follows:- Vide page 730 of the record of proceedings:-
“That since the gubernatorial election in Anambra state on the 14/4/07 was a nullity in the light of the Supreme court judgment in Peter Obi v. INEC & Ors. the tribunal hereby declares that the said gubernatorial election” the subsequent inauguration and any steps taken in furtherance of the said election are a nullity.
It is further ordered that the petitions of the petitioner including the cross petitions all process in the petitions and cross petitions are a nullity are hereby struck out. It is finally ordered that the security cost paid by the petitioners and cross petitioners shall be returned to them.”
The 1st issue raised in the appeal is whether the tribunal acted outside and beyond its jurisdiction under section 145 and 147 of the Electoral Act, 2006 having regard to the reliefs sought in the election petition No. EPT/AN/4/2007 before it.
All courts in Nigeria are bound by the decision of the Supreme Court of Nigeria which is the highest court of the land. This follows the doctrine of stare decisis which is fully entrenched in the Nigerian jurisprudence to ensure certainty of the law. It is a well settled principle of judicial policy which must be strictly adhered to by all lower courts. However the lower courts must follow the principle of law or order upon which a particular case is binding such a principle is called the ratio decidendi. A statement made in passing by a judge which is not necessary to the determination of the case in hand is not a ratio decidendi of the case but an obiter dictum. It is very vital to be able to draw the line of distinction between them for the purpose of judicial precedent.
Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt.312) pg. 382 Atolagbe v. Awuni (1997) 9 NWLR (Pt.522) pg. 536 NAB. v. Barri Engineering (Nig.) Ltd. (1995) 8 NWLR (Pt.413) pg.257
Concord Press Nigeria Ltd. v. Olutola (1999) 9 NWLR (Pt.620) pg.578
Comptroller of Nigeria Prison v. Adekanye (1999) 10 NWLR (Pt. 623) pg. 400.
In adopting the decision of a higher court one must not rewrite it so as to give it another meaning or interprete it in a way to suit a particular purpose or situation not envisaged by the judgment.
This takes me to consider the issue of jurisdiction. Jurisdiction is defined as a term of comprehensive import embracing all kinds of judicial action. It is basically the legal right by which Judges exercise their authority including the power to hear and determine the subject-matter in controversies between parties to a suit. It is the basis, foundation and conduct of access to court in adjudication under the Nigerian Legal System.
Ogunmokun v. Milad. Osun State (1999) 3 NWLR (Pt. 594) pg.261
N.D.I.C. v. S.B.N. Plc (2003) 1 NWLR (Pt.801) pg. 311 183
Oloriode v. Oyebi (1984) 1 SCNLR 390
Skenconsult v. Ukey (1981) 1 SC pg. 6.
The determination of courts competence depends on the peculiar circumstance of each case. Furthermore in determining the jurisdiction of a court the enabling laws vesting jurisdiction on it has to be examined in the light of the reliefs sought. This is so because courts are creations of statutes and their jurisdiction therefore confined, limited and circumscribed by the statute creating them. Courts cannot in essence give themselves or expand their jurisdictional horizon by misappropriating or misconstruing statutes.
African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) pg. 137
Onwudiwe v. F.R.N. (2006) 10 NWLR (Pt.988) pg. 382
The Election Petition Tribunal constituted under section 285 of the 1999 Constitution is vested with exclusive jurisdiction to hear and determine election petitions under the Electoral Act 2006. It has original jurisdiction to hear and determine petitions to the exclusion of any court or tribunal 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. By virtue of section 285(2) of the 1999 Constitution – an Election Petition Tribunal is not an all purpose court that can entertain all sorts of claims or reliefs. It is created for election matters alone. That is why election petitions are sui generis- because the suits are in a unique and peculiar class of their own.
They are neither civil or criminal. The right of access to court is as provided by the law guiding the conduct of the election – the Electoral Act, 2006. An election tribunal is bound by the averments in an election petition and must limit itself to them when determining the suit between the parties.
The poser now is whether the Election Petition Tribunal has any power to nullify the election held in 2007 in Anambra State following the judgment extending the tenure of office of Mr. Peter Obi as the Governor of Anambra State to 2010.
The tribunal nullified the election and all related matters thereby like inauguration and swearing on oath of the appellant. The latter cannot obviously be part of the reliefs claimed by the petitioners.
Election petitions are sui generis accordingly the general principle of law may not be applicable.
Buhari v. Yusuf (2003) 14 NWLR (Pt.841) pg. 446
The tribunal can only exercise its powers to nullify as stipulated under section 147 of the Electoral Act, 2006 after a proper contest between the parties based on the grounds for questioning an election based on section 145(1) of the same Electoral Act, 2006.
Nullification under section 147(1) of the Electoral Act, 2006 follows a process of contest between parties to an election.
The Electoral Act provides for striking out of a petition in section 147(3). The judgment of the Supreme court in Peter Obi v. INEC is not only declaratory it is self executory, the parties complied with the order immediately – INEC, the incumbent governor and the appellant in this appeal.
The tribunal has no jurisdiction to nullify an election without hearing the parties in the petition or even go further to make consequential orders.
Sections 178(1) and (2) of the Constitution 1999 are in respect of the election of a governor – the Sections stipulates as follows:”
178(1) An election to the office of governor of a state shall be held on a date appointed by the Independent National Electoral Commission.
(2) An election to the office of governor shall be held on a date not later than sixty days and not later than the days before the expiration of the term of office of the last holder of that office.”
The foregoing sections obviously serve as a guide to INEC in the conduct of the election to the office of a governor of state. The lower tribunal lacks the jurisdiction to rely on same to pronounce that a gubernatorial election and subsequent inauguration and any steps taken in furtherance of the said election are a nullity. The lower tribunal also declared the petitions and cross petitions and all processes in the petitions and cross petitions because of the judgment of the Supreme Court a nullity before striking them out which is another wrong order. Section 178(2) was not considered by the Supreme Court and did not form part of the issues raised in the petitions of the parties. I find that nullifying the petitions and cross petitions, the inauguration and the taking of oath of the appellant was procedurally defective and the tribunal could not confer such jurisdiction on itself, which is not in the Constitution, section 285 or the Electoral Act, 2006.
Issue No.2
Whether lis pendens is a doctrine applicable to an election petition so as to make it relevant to the elections petition before the tribunal.
The appellant submitted that the tribunal held that because the governorship election was conducted while the case of Peter Obi v. INEC was pending the said election was a nullity. The appellant disagree with the application of the doctrine of lis pendens and regard same as erroneous.
The doctrine does not apply to every suit but applies to a suit which the object is to recover or assert title to a specific property, a real property but has no application to personal property.
The tribunal acted in error to have held that the election of the appellant was a nullity when it relied on the inapplicable doctrine of lis pendens to reach the decision.
The court is urged to reverse the decision.
The appellant’s learned senior counsel referred to case: Bellamy v. Sabline (1857) 261 INS Equity Reports 797; Barclays Bank Ltd. v. Ashiru (1978) 6-7 SC 99 at 122-129; Wigram v. Buckley (1894) 3 Ch. 483 at pg. 486; Ikeanyi v. A.C.B. Ltd. (1991) 7 NWLR (Pt.205) pg. 626 at 638
Chief Osuigwe learned counsel to the 1st respondent submitted that the Supreme Court had been using the doctrine of Lis pendens to preserve the subject-matter of dispute and not foist a fait accompli on the court and the power of the court to reverse action taken pendente lite. Learned counsel cited the cases of: Peter Obi v. INEC (2007) 11 NWLR (Pt.1046) pg. 565.
Chief Nwaiwu for the 2nd – 653rd respondents associated himself with the submission of counsel for the appellant. Lis pendens means a pending law suit. It is a Latin expression used to give a notice required to warn all parties that certain property is subject matter of litigation and that any interest acquired during the pendency of the suit must be subject to the outcome of the litigation. The doctrine of Lis pendens operate to prevent the effective transfer of any property in dispute during the pendency of the dispute. The doctrine is designed to prevent the vendor from transferring any effective title to a purchaser by depriving him the vendor of any rights over the property during the pendency of the suit.
Osagie v. Oyeyinka (1987) 3 NWLR (Pt.59) pg. 144
Abhulimen v. Namme (1992) 8 NWLR (Pt.258) pg. 202
Combined Trade Ltd. v. ASTB Ltd. (1995) 6 NWLR (Pt.404) pg. 709
Umoh v. Tita (1999) 12NWLR (Pt.631) pg. 427
I must add that the Supreme Court as the Apex Court has taken the doctrine from the realms of real property and invoked same in ordinary cases where parties have a duty to preserve the subject-matter of dispute and not foist a fait accompli on the court and the power of the court to reverse action taken pendente. Parties to proceedings pending in court ought not to do anything which may have the effect of rendering nugatory the judgment of the court. A party may not alter to his advantage or disadvantage of his opponent issues in contest in a pending suit. By the doctrine of stare decisis the decision of the Apex Court is binding on all other lower courts. Obi v. INEC (2007) 11 NWLR (Pt.1046) pg. 565
Issue No.3
Whether it was a valid exercise of judicial authority for the tribunal to give single judgment for nine consolidated election petitions.
The learned senior counsel for the appellant submitted that consolidated suits retain their separate identities consolidation is the procedure adopted for the convenience of trial of suits which are believed to have some similarities which the same evidence may cover although each suit must be considered on its merits. The single judgment the tribunal gave in respect of the nine consolidated election petitions was not only wrong but invalid.
The learned senior counsel referred to the cases – Enigwe v. Akaigwe (1992) 2 NWLR (Pt.225) pg. 505 at pg. 535 Ume v. Ifediorah (2001) 8 NWLR (pt.714) pg. 35 at pg. 43
In the final analysis this court is urged to allow this appeal and set aside the judgment of the lower tribunal.
The learned counsel to the first respondent Chief Osuigwe reacting to this submitted that failure of the lower tribunal to deliver separate judgments in the consolidated petitions has not adversely affected the appellant. The sole judgment handed down by the lower tribunal was sufficient to dispose of all the petitions and cross-petitions. No injustice was done or has been occasioned to the appellant.
Any judgment which does not decide a living issue is academic and hypothetical and same shall be liable to be struck out. The court is urged to dismiss this appeal for lacking in merit and being purely academic. The 1st respondent relied on the case of –
Uzoho & Ors. v. N.C.P & Anor. (2007) 10 NWLR (Pt.1042) pg.320
The appellant in this issue attacked the procedural defect in the judgment of the lower tribunal- by which the lower tribunal delivered a single judgment in respect of nine consolidated election petitions which it had before it for consideration. I shall resolve this issue by quoting from the judgment of this court in the case of Ume v. Ifediora where the court said:-
“Consolidation of actions, in essence, facilitates the joinder and trial at the same time, consequent upon the court’s order of two or more pending actions. The actions so joined persist in their separateness and distinctiveness inspite of the simultaneous trial in a single proceeding. It follows naturally therefore that judgment must be given in respect of each action that had gone into seeming fusion.”
The submission of the appellant is that the judgment is invalid.
A party who has a complaint about consolidation of action must show that miscarriage of justice resulted from the single judgment. Balonwu v. Ikpeazu (2005) 13 NWLR (Pt.942) pg. 479
In the consolidated election petitions and cross petitions – the lower tribunal was wrong not to have treated the petitions and cross petitions distinctly and separately and pronounce on each of them in its judgment.
Section 46 of the 1st Schedule to the Electoral Act, 2006 grants the power of consolidation to the tribunal in order to do justice in the proceedings. The effect of the procedural blunder committed by the lower tribunal will cause serious concern if it has frustrated the parties particularly the petitioners from reaping the fruits of their action. The petitions here were not decided on their merit.
The wrong order of the lower tribunal can only be invalidated.
An invalid order is an order that is legally inoperative, not legally binding and can only be struck out.
In sum issues one and three are resolved in favour of the appellant. This is a situation in which the lower tribunal has exercised. Its discretion not judiciously or judicially having made an order which in the circumstance of the case it has no jurisdiction to make going by section 285 of the Constitution and the provisions of section 147(1)of Electoral Act. Where the decision of a tribunal is substantially based on the exercise of discretion, an appellate court will not interfere with the decision unless the tribunal has failed to exercise its discretion judiciously or judicially or has exercised same frivolously or arbitrarily.
ACME Builders Ltd. v. K.S.W.B. (1999) 2 NWLR (Pt.590) pg. 288
Chigbu v. Tonimas Ltd. (1999) 3 NWLR (Pt.593) 115
Ngwu v. Onuigbo (1999) 13 NWLR (Pt. 636) pg. 512
University of Lagos v. Olaniyan (1985) 1NWLR (Pt.1) pg. 156
This court examined the address and submission of counsel before the lower tribunal after the judgment of the Supreme court in the case of Obi v. INEC & 7ors. and now considers it appropriate in the circumstance of this case to invoke the legal powers conferred on it under section 16 of the Court of Appeal Act, that is to make any order which the lower court could have made in the interest of justice.
By virtue of Section 16 of the Court of Appeal Act this court hereby orders as follows:-
This court hereby orders by invoking Section 16 of the Court of Appeal Act:-
(1) That the orders of nullification made by lower tribunal on the 19th of July, 2007 as they affect each of the consolidated appeals in the Governorship/National Assembly and Legislative Houses Election Petition Tribunal Anambra State sitting in Awka are hereby revoked and discharged.
(2) Since there is no live issue in the petitions and cross/petitions filed against the election of the appellant Dr. Emmanuel Andy Uba as Governor of Anambra State before the lower tribunal which now lacks jurisdiction to hear them on the merits in view of the decision of the Supreme Court in the suit – Obi v. INEC & 5 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 delivered on the 14th of June, 2007, the petitions and cross petitions are accordingly struck out.
(3) This appeal is meritorious and is hereby allowed.
(4) No order as to costs.
Appeal allowed.
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Anambra State Governorship/National Assembly/Legislative Houses Election Petition Tribunal, sitting in Awka delivered on the 19th of July, 2007.
The statement of facts leading to this appeal are that the governorship and State House of Assembly elections were held on the 14th of April, 2007, throughout the country. The appellant and the other candidates were nominated by their respective political parties to contest in the election to the office of the Governor of Anambra State. The appellant won the contest and took the oath of office on the 29th of May, 2007. Meanwhile Mr. Peter Obi who contested the governorship election in April 2003 under the platform of All Peoples Grand Alliance was notable to assume office until the 17th of March, 2006. On the 16th of March, 2006 the Court of Appeal sitting at Enugu declared him winner of the 2003 gubernatorial election. He did not participate in the 2006 election on the basis that his tenure of four years had not expired. He returned to court to determine the issue of his tenure of office. On the 14th of June, 2007, the Supreme Court in the case of Obi v. INEC & Ors. (2007) 11NWLR (Pt. 1046) pg. 565 declared that Mr. Obi’s tenure had not expired and order the appellant to vacate the office for him. Meanwhile there were nine petitions pending before the tribunal Awka, emanating from the 2007 gubernatorial election. The tribunal based on the Supreme Court judgment invited- the counsel appearing in the petitions to address it on the after effect of that judgment on the petitions. The tribunal consequently gave an order nullifying the gubernatorial election held on 14th of April, 2007 in Anambra State, the inauguration and oath of office of the appellant on the 29th of May, 2007 and all the processes in connection with the petitions and cross petition filed before striking them out.
Being aggrieved by the decision of the tribunal the appellant appealed to this court. In the brief of argument deemed filed on 15/1/08 the appellant formulated three issues for determination as follows:-
(i) Whether the tribunal acted outside and beyond its jurisdiction under sections 145 and 147 of the Electoral Act, 2006 having regard to the reliefs sought in the election Petition No. EPT/AN/8/2007 before it:-
(a) To declare the inauguration of the appellant and any steps taken in furtherance of his election a nullity.
(b) To rely on section 178(2) of the 1999 Constitution not raised in the election petition
(c) Rather than simply striking out the Election Petition on the basis of the Supreme Court judgment without annotating that judgment.
(ii) Whether lis pendens is a doctrine applicable to an election petition before the tribunal.
(iii) Whether it was a valid exercise of judicial authority for the tribunal to give a single judgment for nine consolidated election petitions.
The 1st and 2nd respondents filed their joint brief on the 21/1/08. In this brief the 1st and 2nd respondent settled three issues for determination as follows:-
(1) Whether the tribunal acted properly in striking out the petition by placing reliance on the decision of the Supreme Court of the Nigeria and alluding to section 178(2) of the Constitution of the Federal Republic of Nigeria.
(2) Whether the application by the tribunal of the term lis pendens in the contest of this case amounted to reversible error.
(3) Whether the appellant has shown any miscarriage of justice by the fact that the tribunal delivered one judgment in the nine petitions.
The 4th and 5th respondents in their joint brief filed on the 17/1/08 settled three issues for determination from the amended grounds of appeal as follows:-
(1) Whether the tribunal below acted outside its jurisdiction under sections 145 and 147 of the Electoral Act having regard to the reliefs sought in petition No. EPT/AN/GE/9/2007, before it and when without hearing the parties on the substantive petition before it, proceeded to deliver judgment declaring the gubernatorial election, the subsequent inauguration and any steps taken in furtherance of the said election a nullity.
(2) Whether the tribunal was right in holding that the governorship election in Anambra State was a nullity under the doctrine of lis pendens since the case of Peter Obi v. INEC was pending.
(3) Whether the judgment of the tribunal is invalid when after consolidating nine petitions before it, gave one single judgment in respect of all instead of nine separate judgments?
The three issues for determination raised by all the parties are similar. Mr. D. D. Dodo, SAN, learned senior counsel for the appellant raised similar argument and submission for the appellant on the three issues raised for determination by the parties as in the two previous appeals CA/E/EPT/6/2007 and CA/E/EP/12/2007. He adopted the same submission on these three issues formulated for determination in this appeal.
The counsel for the 1st and 2nd respondents Chief Osuigwe holding the brief of Emeka Etiaba raised a preliminary objection to the hearing of this appeal. This preliminary objection was incorporated in the 1st and 2nd respondents brief filed on 21/1/08. In the preliminary objection the 1st and 2nd respondents contended as a preliminary point that his appeal is a mere academic exercise having regard to the fact that the ultimate order made by the tribunal in striking out the petitions and cross-petitions is the same relief sought by the appellant in this appeal.
Mr. Dodo learned senior counsel for the appellant vehemently opposed the preliminary objection of the 1st and 2nd respondents for non-compliance with Order 10 rule of the Court of Appeal Rules, 2007. The objection was not filed within the statutory period and served on all the parties. This goes to the issue of lack of fair hearing on behalf of the parties who were not served and also affects the jurisdiction of this court to entertain the objection. This being an issue of jurisdiction it can be raised at any stage of the proceedings. The learned senior counsel cited cases: Gaji v. Paye (2003) 8 NWLR (Pt. 823) pg. 583 at pg. 599; Petrojessica v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) pg. 675 at 693; NDIC v. CBN (2002) 7 NWLR (Pt. 766) pg. 272.
This court can raise the issue of jurisdiction suo motu and direct counsel to address on it. The court is urged to overrule the objection.
Chief Nwaiwu learned senior counsel for the 4th and 5th respondents submitted that its court should discountenance the objection and regard it as abandoned as it was not properly filed and served. Non-compliance with the Rules of Court and not granting the other parties the opportunity to react to the preliminary objection raised.
Learned senior counsel referred to the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Chief Osuigwe for the respondent/applicants replied that the preliminary objection complied with the rules of court as it was filed and served within time.
I have considered the preliminary objection raised by the 1st and 2nd respondents. It has become a well established practice for respondents in the event of raising preliminary objection to any aspect of the appeal challenging its competency to file and incorporate the objection in the brief. The hurdle is that according to the Rules of court notice of such preliminary objection must be filed and served on the other party three clear days before hearing of such an objection. This is in the interest of fair hearing so that the opposing party may not be caught by surprise of such objection, and may have time to react to such objection by filing his reply brief if necessary. Noncompliance goes to the issue of jurisdiction of the court to entertain the matter and avoidance of breach of fair hearing on the part of those not served with adequate notice to know in advance what they are coming to defend in court.
Order 10 rule 1 of the Court of Appeal Rules, 2007 reads:-
“A respondent intending to rely upon a preliminary objection to the hearing of this appeal shall give the appellant three clear days notice thereof before the hearing setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within same time.”
It is apparent on the record of proceedings that the applicant failed to file such notice. The effect of non-compliance is as stipulated in the Rules, Order 10 rule 3 which is either to refuse to entertain the objection or adjourn hearing in the objection with costs. In this appeal there is no room to adjourn and hear the objection at a later date on terms since time is of essence in the hearing of the appeal itself. The court has to take the only available option which is to refuse the application for non-compliance with the Rules of court. The objection is consequently overruled and struck out.
Issue No. One
The respondents submitted that the decision of the tribunal is unassailable. The tribunal merely restated the decision of the Supreme Court in the judgment of Peter Obi v. INEC & Ors. (2007) II NWLR (Pt. 1046) pg. 565 – by ruling that:-
“We further hold that the petition of the petitioners including the cross-petition (sic) a nullity all processes in these petitions and cross-petition a nullity and hereby struck out.”
What this court is being called upon to do is to consider whether a tribunal can make reference and restate what the Supreme Court of Nigeria held in a matter in which the tribunal by virtue of the doctrine of stare decisis and the hierarchy of courts is totally bound. The Supreme Court had already declared the election and the inauguration which followed it a nullity. The Court of Appeal cannot be asked to set aside the reasoning of the tribunal as it will amount to doing something in vain. This court is urged to hold that the lower tribunal acted properly in striking out the petitions relying on the judgment of the Supreme Court. The counsel was referred to the cases of F.G.N. v. Oshiomhole (2004) 3 NWLR (pt. 860) pg. 305 at pg. 324; Okonkwo v. FRN (2006) 14NWLR (Pt.1000)pg. 566 at pg. 581.
The court is urged to resolve the issue in favour of the 1st and 2nd respondents.
Issue No.2
The learned counsel submitted that the court used the doctrine of lis pendens to cover the situation where INEC held an election into an office when the office was not vacant and declared such election a nullity.
Legal terms will not loose their meaning simply because they have been adopted consistently and to a large extent in a particular field of the law. The terms lis pendens is derived from two Latin words which the Black’s Law Dictionary defined as:
Lis – a controversy or dispute, a suit or action at law.
Pendens – Pending as lis pendens a pending suit.
The Supreme Court had to set aside all the steps taken when the case of Obi was sub judice under the doctrine of his pendens.
The court is urged to resolved the issue in favour of the 1st and 2nd respondents.
Issue No.3
The learned counsel for 1st and 2nd respondents submitted that the petition was struck out with reference to all the distinct petitions. The law is that for a complaint such as this to be a reversible error, the appellant must establish that a miscarriage of justice was occasioned. This can surely not be established going by the facts of this case. The learned counsel cited the case Obi Odu v. Duke No.2 (2005) 10 NWLR (Pt. 932) pg. 105 at pg. 136; Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) pg. 250.
Since it is an elementary principle of law that this court and all the courts in Nigeria are bound by the decision of the Supreme Court of Nigeria the highest court in the land – the court cannot fault the decision of the tribunal.
The court is urged to resolve the appeal in favour of the 1st and 2nd respondent as the appellant have nothing to urge in favour of allowing the appeal.
Chief Nwaiwu adopted the argument in the brief of the 4th – 5th respondents in the brief and associated himself with the submission of the appellant in the appeals CA/E/EPT/6/07 and CA/E/EPT/12/07 and urged the court to allow the appeal.
I have carefully considered the submission of counsel in respect of the three issues for the determination of this court in this appeal. The 3rd respondent appeared to have abandoned the appeal as it did not file any brief of argument.
For the avoidance of repetition and verbosity, and in view of the facts that the issues in all the nine tally, I adopt my reasoning and conclusion in respect of each of the three issues as stated in appeal CA/EPT/7/07.
In final analysis this court hereby invokes Order 16 of the Court of Appeal Act that is to make an order which the lower court could have made in the interest of justice. By virtue of section 16 of the Court of Appeal Act – this court hereby order as follows:-
(1) That the orders of nullification made by lower tribunal on the 19th of July, 2007 as they affect each of the consolidated appeals in the Governorship/National Assembly and Legislative Houses Election Petition Tribunal Anambra State sitting in Awka are hereby revoked and discharged.
(2) Since there is no live issue in the petitions and cross/petitions filed against the election of the appellant Dr. Emmanuel Andy Uba as Governor of Anambra State before the lower tribunal which now lacks jurisdiction to hear them on the merits in view of the decision of the Supreme Court in the suit Obi v. INEC & 5 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 delivered on the of June 2007, the petitions and cross petitions are accordingly struck out.
(3) This appeal is meritorious and is hereby allowed.
(4) No order as to costs.
Appeal allowed.
MUNTAKA-COOMASSIE, J.C.A. Delivering the Leading Judgment): This is an appeal against the decision of the Governorship and Legislative House Election Petition Tribunal delivered on the 19th of July 2007.
The facts leading to this appeal are that the Governorship and Legislative House Election were held throughout this country on the 14th April, 2007 in Anambra State, the appellant Emmanuel Nnamdi Andy Uba contested for the office of Governorship on the platform of the Peoples Democratic Party alongside candidates of other political parties. He won the contest. At the inauguration ceremony which took place on the 29th of May, 2007 he took oath of office and oath of allegiance to become the governor of the State. People who were dissatisfied with the results of the Election proceeded to file petitions and cross petition before the Election Petition Tribunal sitting at Awka. Mr. Peter Obi who had contested for the gubernatorial election on 2003, but was deprived of his victory by Dr. Chris Ngige of the Peoples Democratic. His victory at the 2003 election was later declared by the tribunal, and affirmed on the 16th of March, 2006 by the Court of Appeal Enugu Division. He assumed office as governor on the 17th of March, 2006, as a result of which he declined to contest in the 2007 governorship election on the basis that his four year tenure had not expired. He commenced litigation to defend his tenure of office. On the 14th of June, 2007 the Supreme Court in the case of Obi v. INEC & 5 Ors. (2007) II NWLR (Pt. 1046) pg. 565 declared that Mr. Peter Obi tenure had not expired and ordered the appellant to vacate the office of governor for him. For reason of this judgment the Election Petition Tribunal sitting at Awka where election petitions and cross petitions were pending, requested all counsel in the petitions to address it on the effect of that judgment. The tribunal thereafter gave judgment nullity the governorship election of the 14th of April, 2007 in Anambra State and the subsequent inauguration of the appellant. Being dissatisfied with the decision of the Tribunal the appellant appeal to the court by filing a notice of appeal which was amended with leave of this court. The amended notice of appeal contained three grounds of appeal. In the brief of argument deemed filed on 15/1/08 adopted and relied upon by the learned senior counsel for the appellant Mr. Dodo, three issues grounds of appeal as follows:
(1) Whether the tribunal acted outside and beyond its jurisdiction under section 145 and 147 of the Electoral Act, 2006 having regard to the reliefs sought in the election petition No. EPT/AN/9/2007 before it:
(a) To declare the inauguration of the appellant and any steps taken in furtherance of the election a nullity.
(b) To rely on section 178(2) of the 1999 Constitution not raised in the election petition.
(c) Rather than simply striking out the election petition on the basis of the Supreme Court judgment without annotating that judgment.
(ii) Whether lis pendens is a doctrine applicable to an election petition so as to make it relevant to the election petition before the tribunal.
(iii) Whether it was a valid exercise of judicial authority for the tribunal to give a single judgment for nine consolidated election petitions.
Learned counsel for the 1st – 3rd respondents Chief Osigwe holding brief for O.J. Nnadi adopted and relied on the joint brief of the 1st – 3rd respondents filed on 21/1/08. In this brief three issues were settled for the determination of the court in this appeal. The issues are:-
(1) Whether the tribunal acted properly in striking out the petition by placing reliance on the decision of the Supreme Court of Nigeria and alluding to section 178 (2) of the Constitution of the Federal Republic of Nigeria
(2) Whether the application by the Tribunal of the term lis pendens in the contest of this case amounted to a reversible error.
(3) Whether the appellant has shown any miscarriage of justice by the fact that the tribunal delivered one judgment in the nine petitions.
Chief A. Nwaiwu (SAN) learned senior counsel for the 4th – 5th respondent adopted and relied upon the joint brief of the 4th – 5th respondents filed on the 17th of January, 2008. In this brief the issues formulated for determination by this court are as follows:-
(1) Whether the tribunal below acted outside its jurisdiction under sections 145 and 147 of the Electoral Act having regard to the reliefs sought in the petition No: EPT/AN/GE/9/2007 before it and when without hearing the parties on the substantive petition before it proceeded to deliver judgment declaring the gubernatorial election, the subsequent inauguration and any steps taking (sic) in furtherance of the said election a nullity?
(2) Whether the tribunal was right in holding that the Governorships Election in Anambra State was a nullity under the doctrine of lis pendens since the case of Peter Obi v. INEC was pending
(3) Whether the judgment of the tribunal is invalid, when after consolidating nine petitions before, gave one single judgment in respect of all, instead of nine separate judgments.
Mr. D.O. Dodo filed this same brief in respect of all the nine appeals in the consolidated appeal. He sought leave of this court to adopt his submission in the brief on the three issues for determination in this appeal – and particularly his full submission in the appeal CA/EPT/7/07. He urged the court to be persuaded by this submission to allow the appeal.
Chief Osigwe referred the court to the preliminary objection raised in the brief of argument for the 1st – 3rd respondents. The ground for the objection is whether this appeal is not a mere academic exercise having regard to the fact that the ultimate order made by the tribunal striking out the petition and cross-petition is the same relief sought by the appellant in this appeal, which in effect implies that there is no difference between the order made by the tribunal and the ultimate order which the appellant seeks from the Court of Appeal. Mr. D. D. Dodo opposed the preliminary objection raised by the 1st – 3rd respondents on grounds of being filed without proper notice to other parties and non-compliance with Order 10 rule 1 of the Court of Appeal Rules, 2007.
It is appropriate to consider first the preliminary objection raised by the 1st- 3rd respondents before going further into substance of the appeal. A respondent who intended to raised a preliminary objection must comply with the procedure laid down in the Court of Appeal Rules, Order 10 rule 1.Order 10 rule 1 of the Court of Appeal Rules, 2007 stipulates that:-
Order 10 rule 1:
“Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registrar within the same time.”
The other parties objected to the preliminary objection in that the respondent/applicant did not file and serve notice of the objection on them – but simply incorporated the preliminary objection in their briefs.
This court on a perusal of the records discovered that the respondents/applicant embodied the objection to be argued with the brief without filing and serving notice of the preliminary objection on the other parties in the appeal. The main purpose of the rule one in Order 10 i.e. to prevent a situation where parties affected by the objection shall be taken by surprise and also to avoid a situation of breach of fair hearing. The other respondents to this objection have not been able to file a reply brief due to lack of adequate notice. Order 10 rule 3 stipulates that:-
Order 10 Rule 3
“If the respondent fails to comply with this Rules – the court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the respondents or may make such order as it thinks fit.”
This court cannot adjourn this appeal due to the time constrain by an appeal in an election petition and time is very much of essence. The only option open to this court is to refuse to entertain the preliminary objection. The preliminary objection is refused consequently struck out.”
Chief Osigwe argued the three issues for determination which are in line with the issues raised by the appellants and the 4th – 5th respondents.
On issue one the learned counsel submitted that the lower court are bound by the doctrine of stare decisis et non quieter morere to adhere to precedents and not unsettle things which are established. The decisions of the Supreme Court of Nigeria is binding on all courts in Nigeria who must not in any way depart from them. The learned counsel cited the case F.G.N. v. Oshiomhole (2004) 3 NWLR (Pt. 850) pg. 305; Okonkwo v. FR.N. (2006) 14 NWLR (Pt. 1000) pg. 560. The tribunal merely restated the decision of the Supreme Court in the case Obi v. INEC. This court is to hold that the lower tribunal acted properly by relying on the order made in the Supreme Court judgment in striking out the petitions and all other related processes.
On issue two the respondents gave the dictionary meaning of lis – as a controversy or dispute, a suit or action at law and pendens as pending. Lis pendens means a pending suit. The tribunal relied on this to hold as was done in the case of Obi v. INEC that INEC should not have conducted a governorship election Anambra State when a suit initiated by the incumbent governor as to his tenure of office was pending in court on the 3rd issues the respondent agreed that where a case is consolidated, it will be improper for a court to deliver separate judgments in the separate claims. This is borne out of the principle that the evidence lead and the relief sought must be pronounced on separately in order not to prejudice anybody. In the circumstance of this case in other to consider the omission of the tribunal a reversible error the appellant must establish that a miscarriage of justice was occasioned has only invited the Court of Appeal to embark in an academic exercise – this court shall not allow this. The court is urged to strike out the appeal.
Chief Nwaiwu learned senior counsel for the 4th and 5th respondents associated himself with the submission of the appellants in their brief. The issue raised for determination in the brief of the 4th – 5th respondent are similar to the briefs filed by Chief Nwaiwu in all the sister cases in this consolidated appeal. He relied on the submission made in this brief.
I have carefully considered the submission of counsel for the parties in this appeal. The issues raised for determination in the brief of the appellant and the respondents are similar and same as issues raised in the appeal CA/E/EPT/7/07 where I have comprehensively considered each of the three issues. There is no special feature in the appeal on which I can deviate from what I have already given as my reasoning and findings in that appeal. I therefore for the avoidance of repetition and monotony adopt my reasoning in the appeal CA/E/EPT/7/07 as that for this appeal in hand. By way of conclusion this court hereby invokes Order 16 of the Court of Appeal Act that is to make an order which the lower court could have made in the interest of justice. By virtue of section 16 of the Court of Appeal Act – this court hereby orders as follows:-
(1) That the orders of nullification made by lower tribunal, on the 19th of July, 2007 as they affect each of the consolidated appeals in the Governorship/National Assembly and Legislative Houses Election Petition Tribunal Anambra State sitting in Awka are hereby revoked and discharged.
(2) Since there is no live issue in the petitions and cross-petitions filed against the election of the appellant Dr. Emmanuel Andy Uba as Governor of Anambra State before the Lower Tribunal which now lacks jurisdiction to hear them on the merits in view of the decision of the Supreme Court in the suit Obi v. INEC & 5 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 delivered on the 14th of June 2007, the petitions and cross petitions are accordingly struck out.
(3) This appeal is meritorious and is hereby allowed.
(4) No order as to costs.
Appeal allowed.
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): This appeal CA/E/EPT/10M/07 is one of the consolidated appeals against the judgment of the Governorship/National Assembly and Legislative House Election Tribunal sitting in Awka and delivered on the 19th of July, 2007. In the single judgment delivered in the nine consolidated petitions pending before the tribunal as at the 14th of June 2007, when the supreme court gave judgment in the case of Peter Obi v. INEC & 7 Ors. (2007) 11 NWLR (pt.1046) pg. 565, the tribunal held:-
“In the light of the Supreme Court judgment referred to above we hereby declare the said gubernatorial election the subsequent inauguration and the steps taking (sic) in furtherance of the said election a nullity.
We further hold that the petition (sic) of the petitioners including the cross petition (sic) a nullity and hereby struck out.”
Being aggrieved by the foregoing order the appellant/Dr. Emmanuel Andy Uba appealed to this court. He filed an amended notice of appeal with leave of this court containing three grounds of appeal.
The facts of the case briefly stated are that the Governorship and Legislative Houses Elections were held in this country on the 14th of April, 2007 including Anambra State. In the contest for the office of governor of the state vied for by candidates of many political parties – the appellant won the election as flag bearer for Peoples Democratic Party. On the 29th of May, 2007 he assumed office and was sworn as the governor at the inauguration ceremony which took place on that day. Candidates of other parties who contested at the election filed petitions and cross petitions before the tribunal at Awka challenging the victory of the appellant. Mr. Peter Obi went to court to challenge the result of the 2003 gubernatorial election and he was declared winner by the tribunal. This decision was confirmed by the court of Appeal on the 16th of March, 2006. He was sworn in as governor on the 17th of March, 2007. He did not contest in the 2007 gubernatorial election on the basis that his four year tenure has not expired. On the 14th of June, 2007 the Supreme Court in the case Obi v. INEC & 7 Ors. (2007) 11NWLR (pt.1046) pg. 565 declared that the tenure of Peter obi had not expired and ordered the appellant to vacate office for him. Meanwhile on the reaction to the judgment of the Supreme Court the election petition tribunal sitting in Awka invited counsel to address it on the fate of the pending petitions and cross petitions against the conduct of the elections held on the 14th of April, 2007. The tribunal gave orders as stated at the commencement of this judgment.
In the appellant’s brief deemed filed on 15/1/08 the appellant distilled three issues from the grounds of appeal in the amended notice of appeal.
These issues flow from the three grounds of appeal filed by the appellant. The issues are:-
(1) Whether the tribunal acted outside and beyond its jurisdiction under section 145 and 147 of the Electoral Act 2006 having regard to the reliefs sought in the Election Petition NO.EPT/AN/5/2007 before it:-
(a) To declare the inauguration of the appellant and any steps taken in furtherance of his election a nullity.
(b) To rely on section 178(2) of the 1999 Constitution not raised in the election petition.
(c) Rather than simply striking out the Election Petition on the basis of the Supreme Court judgment without annotating that judgment.
(ii) Whether lis pendens is a doctrine applicable to an election petition before the tribunal.
(iii) Whether it was valid exercise of judicial authority for the tribunal to give a single judgment for nine consolidated election petitions.
Mrs. B. M. Nwachukwu holding brief for counsel to the 1st-2nd respondents Mr. Ifeanyi Ngige in the joint brief of the 1st – 2nd respondents filed on the 22nd of January, 2008 identified the issues formulated for determination in this appeal as follows:-
(1) Whether having regard to the decision of the Supreme Court of Nigeria in suit No. SC/123/07 Peter Obi v. INEC & Ors. are sections 145 and 147 of the Electoral Act 2006, still applicable to the petition presented by the petitioners?
(2) Whether the doctrine of lis pendens or any other doctrine having the same effect is applicable to the governorship election conducted in Anambra State on the 14th of April, 2007 vis-a-vis the pendency of suit between Mr. Peter Obi v. INEC at the Supreme Court of Nigeria.
(3) Whether the appellant having consented to the consolidation of arguments in respect of the nine gubernatorial; petitions before the tribunal can turn round to complain that only one consolidated ruling was delivered and if so., whether he has suffered any prejudice by the fact that only one instead of nine rulings was delivered.
Chief Nwaiwu, SAN, learned senior counsel to the 3rd – 5th respondents adopted and relied on the respondents brief filed on 17/1/08. In the brief the 3rd – 5th respondents raised three issues for the determination of this court as follows:-
(a) Whether the tribunal acted outside and beyond its jurisdiction under section 145 and 147 of the Electoral Act 2006 having regard to the reliefs sought in Petition No. EPT/AN/GE/5/2007 before it and when without hearing the parties on the substantive petition before it proceeded to deliver judgment declaring the gubernatorial election, the subsequent inauguration and any steps taking (sic) in furtherance of the said election a nullity?
(b) Whether the tribunal was right in holding that the governorship election in Anambra State was a nullity under the doctrine of lis pendens since the case of Peter Obi v. INEC was pending.
(c) Whether the judgment of the tribunal is invalid, when after consolidating nine petitions before it gave one single judgment in respect of all, instead of nine separate judgments.
Mr. D. D. Dodo learned senior counsel for the appellant informed this court the brief of the appellant and the issues raised for determination therein in this appeal are similar in all the appeals. He sought indulgence of court to adopt his submission in all the three issues as in the appeal CA/E/EPT/7/07 one of the nine consolidated appeals before this court.
Mrs. B.M. Nwachukwu learned counsel to the 1st and 2nd respondent adopted and relied on the submission in the joint brief of the respondents in respect of all the three issues for determination.
She however laid emphasis on the point that the tribunal did not give adequate or hearing to all the parties before it pronounced on nullification of election, and inauguration. The overall judgment of the tribunal only restated that of the Supreme Court. The court is to dismiss the appeal which is a mere academic exercise.
Chief Nwaiwu learned senior counsel for the 3rd- 5th respondents at page 5 paragraph 6.2 of the 3rd – 5th respondents’ brief adopted and relied upon the legal argument and submissions of the appellant at paragraph 4 to 411 at pages 4 to 10 of the appellant’s brief.
He also relied on the argument and submission in the brief of the 3rd – 5th respondents.
I have given a careful consideration to the copious submission of all counsel appearing in this appeal. It is worthy of note that the issues raised for determination are identical in all the parties brief of argument.
All the respondents are at consensus on the issue of proper fair hearing of the parties by the lower tribunal before its order on nullification. I intend to adopt my reasoning and findings in appeal No. CA/E/EPT/7/07 in this appeal being that the issues for determination and submission of counsel are same.
I have to say that courts do not indulge in academic or hypothetical issues or questions, and no court or tribunal has power to determine or grant speculative relief. Chinweze v. Masi (1989) 1 NWLR (Pt. 97) pg. 254.
Equally, the issue of fair hearing is fervently entrenched in our 1999 Constitution. Section 36(1) of the Constitution reads:-
“In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its indepence and impartiality.”
Learned senior counsel submitted that the tribunal had a legal duty founded on Nigeria’s adversary system of jurisprudence and justice to hear the parties on the substantive petition before delivering judgment.
He further submitted that failure of the tribunal to hear the parties before delivering its judgment on the substantive petitions and declaring the gubernatorial election, the subsequent inauguration and only other steps taken in the election without hearing the parties is against a fundamental and undisputed requirement for a valid adjudication. I give consent to this foregoing submission of the learned senior counsel. For all the reasons already adumbrated in Appeal No. CA/E/EPT/5/07, I give judgment in this appeal as follows:
The court has looked at the address and submissions of counsel following the order of the tribunal after the judgment of the Supreme Court in the case of Obi v. INEC & 6 Ors. and consider it appropriate in the circumstance of this appeal, for the Court of Appeal to invoke the legal power conferred on it under section 16 of the Court of Appeal Act, that is to make any order which the lower Court could have made in the interest of justice. By virtue of section 16 of the Court of Appeal Act this court hereby order as follows:-
(1) That the orders of nullification made by lower tribunal on the 19th of July, 2007 as they affect each of the consolidated appeals in the Governorship/National Assembly and Legislative Houses Election Petition Tribunal Anambra State sitting in Awka are hereby revoked and discharged.
(2) Since there is no live issue in the petitions and cross/petitions filed against the election of the appellant Dr. Emmanuel Andy Uba as Governor of Anambra State before the lower tribunal which now lacks jurisdiction to hear them on the merits in view of the decision of the Supreme Court in the suit Obi v. INEC & 5 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 delivered on the 14th of June, 2007, the petitions and cross petitions are accordingly struck out.
(3) This appeal is meritorious and is hereby allowed.
(4) No order as to costs.
Appeal allowed.
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Governorship/Legislative Houses Election Tribunal, Anambra State, sitting in Awka delivered on the 19th of July, 2007. The statement of facts relevant to this appeal in a nutshell are that on the 14th day of April, 2007, a governorship election was conducted in Anambra State and throughout the country. The appellant was declared winner of the gubernatorial race between candidates of various political parties at the end of the election. An inauguration ceremony was held on the 29th of May, 2007 where he took the oath of office and oath of allegiance as governor-elect for the State. Meanwhile candidates of other political parties who were part of gubernatorial election filed petitions and cross petitions before the Awka Election Petition Tribunal. During the pendency of the petitions the Supreme court delivered a judgment on the 14th of June, 2007 in the case Obi v. INEC & Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 whereupon the Apex Court declared that Obi’s tenure is still subsisting and ordered the appellant to vacate the office of governor of Anambra State. In the light of the Supreme Court Judgment, the tribunal invited counsel to address it on the effect of the judgment on the petitions and cross petitions before it. The tribunal thereafter declared as nullity, the gubernatorial election in Anambra State, the subsequent inauguration and any step taken in furtherance of the said election before finally striking out the petitions and cross petitions before it.
Being aggrieved by the decision of the tribunal the appellant appealed to this court. He was allowed to amend his notice of appeal. He filed three grounds of appeal from which were settled three issues for the determination of this court in this appeal. The issues are as follows:-
(1) Whether the tribunal acted outside and beyond its jurisdiction under section 145 and 147 of the Electoral Act 2006 having regard to the reliefs sought in the election petition No. EPT/AN/8/2007 before it:
(a) To declare the inauguration of the appellant and any steps taken in furtherance of his election a nullity.
(b) To rely on section 178(2) of the 1999 Constitution not raised in the election petition.
(c) Rather than simply striking out the election petition on the basis of the Supreme Court judgment without annotating that judgment.
(2) Whether lis pendens is a doctrine applicable to an election petition before the tribunal.
(3) Whether it was a valid exercise of judicial authority for the tribunal to give a single judgment for nine consolidated election petitions.
Mr. Ejike Egobi learned counsel to 1st respondent adopted and relied on the brief of the 1st respondent filed on the 18th of January, 2008. He abandoned the brief filed on 12/11/07. Three issues were distilled for determination as follows:
(i) Whether in the circumstance of the petitioners suit as occasioned by the decision of the Supreme Court in Obi v. INEC & Ors., the tribunal was right to have declared the gubernatorial election in Anambra State and matters connected thereto a nullity.
(ii) Whether the doctrine of lis pendens is incapable of application in suits where the res is a term of office.
(iii) Whether there is a valid judgment in respect of petition No. EPT/AN/8/2007.
Chief A. Nwaiwu learned senior counsel to the 2nd – 25th respondents adopted and relied on their joint brief deemed filed on 15/11/08 where three issues were disseminated as follows:
(i) Whether the tribunal acted outside and beyond its jurisdiction under section 145 and 147 of the Electoral Act, 2006 having regard to the reliefs sought in the election petition No. EPT/AN/8/2007 before it:
(a) To declare the inauguration of the appellant and any steps taken in furtherance of his election a nullity.
(b) To rely on section 178(2) of the 1999 Constitution not raised in the election petition.
(c) Rather than simply striking out the election petition on the basis of the Supreme Court judgment without annotating that judgment.
(ii) Whether lis pendens is a doctrine applicable to an election petition so as to make it relevant to the election petition before the tribunal.
(iii) Whether it was a valid exercise of judicial authority for the tribunal to give a single judgment for nine consolidated election petitions.
Mr. D.D. Dodo learned, senior counsel informed the court that the appellant filed the same brief for all the nine consolidated appeals. He adopted the brief and particularly the submission on the three issues for determination as argued in the appeal CA/E/EPT/7/07. He urged the court to be persuaded by the submission in the brief to allow the appeal.
It is noteworthy that in this appeal the parties raised the same three issues for determination of this court.
Mr. Efobi adopted the submission in the brief of the 1st respondent. On the first issue the learned counsel submitted that the tribunal was within its powers to restate the judgment of the Supreme Court by the declarations it made, as the declarations put an end to the cause and right of action pleaded therein. The decision of the tribunal is based stare decisis – and a mere restatement of the Supreme Court in the case Obi v. INEC.
On issue two the learned counsel referred to the current trend in the development of law in the country – by taking the doctrine of lis pendens outside the traditional realm of Real property and use it to protect the res in litigation. He made reference to the case of Obi v. INEC.
The learned counsel submitted that the judgment of the lower tribunal in respect of the petition EPT/AN/GE/8/2007 was valid and that the instant appeal arose from that judgment. He urged this court to dismiss the appeal and affirm the judgment of the tribunal.
Chief Nwaiwu learned senior counsel for the 2nd – 25th respondents maintain the same argument and submission in respect of all the briefs filed for the nine appeals. He also associated himself with the submission of the learned senior counsel for the appellant. He urged this court to consider the sum total of the submission in the brief of the 2nd – 25th respondents in this appeal and in the other appeals particularly CA/E/EPT/7/07 and allow the appeal. I have given a painstaking consideration to the issues involved in this appeal and the persuasive submission of the learned counsel appearing for the parties. The issues raised in the appeal and the submission of counsel are not in any form different from what were raised in the other appeals particularly appeal CA/EPT/7/07. For the avoidance of repetition I hereby adopt the reasoning and finding of this court as enunciated in that appeal.
This court finds it appropriate to invoke the powers conferred on it under section 16 of the Court of Appeal Act which is to make any order which the lower court could have made in the interest of justice. By virtue of section 16 of the Court of Appeal Act – this court hereby orders as follows:-
(1) That the orders of nullification made by lower tribunal on the 19th of July, 2007 as they affect each of the consolidated appeals in the Governorship/National Assembly and Legislative Houses Election Petition Tribunal Anambra State sitting in Awka are hereby revoked and discharged.
(2) Since there is no live issue in the petitions and cross/petitions filed against the election of the appellant Dr. Emmanuel Andy Uba as Governor of Anambra state before the lower tribunal which now lacks jurisdiction to hear them on the merits in view of the decision of the Supreme Court in the suit Obi v. INEC & 5 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 delivered on the 14th of June, 2007, the petitions and cross-petitions are accordingly struck out.
(3) This appeal is meritorious and is hereby allowed.
(4) No order as to costs.
Appeal allowed.
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Governorship/National Assembly/Legislative Houses Election Petition Tribunal Anambra State sitting in Awka. The suit was filed as EPT/GE/6/2007 before the lower tribunal by Dr. Alex Obiogbolu as petitioner challenging the return of Dr. Emmanuel Andy Uba now appellant as governor of Anambra State in the gubernatorial elections conducted throughout Nigeria on 14th of April, 2007. Mr. Peter Obi the incumbent governor of Anambra State assumed office on the 17th March, 2006 after the Court of Appeal Enugu Division on the 16th of March, 2006 declared him winner at the 2003 gubernatorial election in Anambra State went to court to challenge his tenure of office. On the 14th of June, 2007, the Supreme Court in the case of Peter Obi v. INEC declared that the tenure of Mr. Peter Obi had not expired and ordered the appellant to vacate office for him. After the 14th of April, 2007 elections nine petitions were filed against the appellant’s election. The lower tribunal after the judgment of the Supreme Court in the case of Obi v. INEC & 5 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565; invited all counsel appearing before it to address the Tribunal on the effect of that judgment on the petitions and cross petitions already filed before the court. The court in its judgment gave orders particularly nullifying the petitions and cross petitions. The appellant being dissatisfied with the orders made by the lower tribunal, filed three grounds of appeal. In the appellants brief deemed filed on 15/1/08 and adopted for the purpose of this appeal – three issues were distilled for determination in this appeal as follows:-
(1) Whether the tribunal acted outside and beyond its jurisdiction under section 145 and 147 of the Electoral Act 2006 having regard to the reliefs sought in the election petition No. EPT/AN/6/2007before it:
(a) To delcare the inauguration of the appellant and any steps taken on furtherance of his election a nullity.
(b) To rely on section 178(2) of the 1999 Constitution not raised in the election petition.
(c) Rather than simply striking out the election petition on the basis of the Supreme Court judgment without annotating that judgment.
(2) Whether lis pendens is a doctrine applicable to an election petition before the tribunal.
(3) Whether it was a valid exercise of judicial authority for the tribunal to give a single judgment for nine consolidated election petitions.
The learned senior counsel to the 3rd and 25th respondents Chief Amaechi Nwaiwu, SAN, adopted and relied upon the briefs of the 3rd – 25th respondents filed on 17/1/08. In this brief, the 3rd-25th respondents identified three issues for the determination of this court as follows:-
(1) Whether the tribunal below acted outside its jurisdiction under section 145 and 147 of the Electoral Act having regard to the reliefs sought in Petition No. EPT/AN/GE/1/2007 before it and when without hearing the parties on the substantive petition before it, proceeded to deliver judgment declaring the gubernatorial election the subsequent inauguration and any steps taken in furtherance of the said election a nullity.
(2) Whether the tribunal was right in holding that the governorship election in Anambra State was a nullity under this doctrine of lis pendens since the case of Peter Obi v. INEC was pending.
(3) Whether the judgment of the tribunal is invalid when after consolidating nine petitions before it gave one single judgment in respect of all, instead of nine separate judgments.
Issue One – Three
Since the substance of the appeal and three issues raised in the appeal are same in all the nine consolidated appeals – the learned counsel adopted and relied on the submission in the appellants brief and in court on the 5th of February, 2008; for the purposes of this appeal.
In the issue for determination the learned senior counsel for the 3rd – 25th respondents, not only settled the same three issues for determination in this appeal as the appellant, but also associated himself with the submission of the appellant. He made the same submission as in the brief filed in the appeal CA/E/EPT/7/2007. He concluded in his submission on the issues as follows:-
(1) The tribunal below acted outside and beyond its jurisdiction under sections 145 and 147 of the Electoral Act, 2006. He cited the cases Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) page 539; Onyemeh v. Egbuchulam (1996) 5NWLR (Pt. 448) page 255; Emigwe v. Akaigwe (1992) 2 NWLR (Pt. 53) page 678.
The learned senior counsel further submitted that parties were not given fair hearing by the lower tribunal on their petitions before their reliefs were nullified – and that it is settled law that any breach of fundamental right provisions renders the subsequent act to that breach a nullity. He cited cases.
(2) That the tribunal was wrong in applying the issue of lis pendens.
(3) The tribunal was in error when it delivered one single judgment rather than nine separate judgments.
The 1st and 2nd respondents did not appear in court and did not file any briefs. I have given a microscopic examination to issues for determination and submission of learned senior counsel for the appellant and 3rd – 25th respondents. The appellant and respondents shared similar view about this appeal in their submission before this court, the substance and issues for determination in the appeal are the same and on all fairs with appeal CA/EPT/7/2007. For the avoidance of repetition and monotony in the reasoning and findings of this court and the application of the relevant laws – shall lift adopt my reasoning and finding both of fact and principles of law on which they are based as in appeal CA/E/EPT/7/2007 for the purpose of this appeal. This the conclusion that this court have digested the address and submission of counsel in this appeal and have found it appropriate in the circumstance of the case to invoke the powers conferred on it under Section 16 of the Court of Appeal Act, that is to make any order which the court could have made in the interest of justice. By virtue of section 16 of the Court of Appeal Act, this court hereby orders as follows:-
(1) That the orders of nullification made by lower tribunal on the 19th of July, 2007 as they affect each of the consolidated appeals in the Governorship/National Assembly and Legislative Houses Election Petition Tribunal Anambra State sitting in Awka are hereby revoked and discharged.
(2) Since there is no live issue in the petitions and cross/petitions filed against the election of the appellant Dr. Emmanuel Andy Uba as Governor of Anambra State before the lower tribunal which now lacks jurisdiction to hear them on the merits in view of the decision of the Supreme Court in the suit Obi v. INEC & 5 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 delivered on the 14th of June, 2007, the petitions and cross petitions are accordingly struck out.
(3) This appeal is meritorious and is hereby allowed.
(4) No order as to costs.
Appeal allowed.
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Governorship and Legislative Houses Election Petition Tribunal sitting at Awka Anambra State and delivered on the 19th of July, 2007.
The background facts of the appeal are that on the 14th of April, 2007, INEC held the general elections into the office of Governorship and Legislative Houses throughout Nigeria. In Anambra State the appellant Dr. Emmanuel Andy Uba was declared as Governor elect for Anambra State as he emerged winner of the contest between candidates of other political parties. These candidates aggrieved by the result at the polls challenged same before the Governorship/Legislative Houses Election Petition Tribunal. While the petitions and cross petitions were pending before the Tribunal, the Supreme Court declared in the judgment delivered on the 14th of July, 2007, that Peter Obi’s tenure of office had not expired and ordered the appellant to vacate office for him. The lower tribunal based on the judgment of the Supreme Court requested all counsel in the petitions to address it on the effect of that judgment. The lower tribunal thereafter gave order which nullified the election, the inauguration of the appellant and all the processes filed in the petition before striking out the petitions and cross-petitions.
The appellant filed three grounds of appeal following the leave granted by this court to amend the notice of appeal. In the appellants brief deemed on 15/1/08 the appellant distilled three issues for the determination of this court in the appeal as follows:-
(i) Whether the tribunal acted outside and beyond its jurisdiction under sections 145 and 147 of the Electoral Act 2006 having regard to the reliefs sought in the election petition No. EPT/AN/2/2007 before it.
(a) To declare the inauguration of the appellant and any steps taken in furtherance of his election a nullity.
(b) To rely on section 178(2) of the 1999 Constitution not raised in the election petition.
(c) Rather than simply striking out the election on the basis of the Supreme Court judgment without annotating that judgment.
(ii) Whether lis pendens is a doctrine applicable to an election petition so as to make it relevant to the election petition before the tribunal.
(iii) Whether it was valid exercise of judicial authority for the tribunal to give a single judgment for nine consolidated election petitions.
The learned counsel to the 1st – 3rd respondents Mrs. B.M. Nwachukwu adopted and relied on the joint brief of the 1st – 3rd respondents filed on the 22nd of January, 2008. The 1st – 3rd respondents settled three issues for determination as follows:-
(i) Whether having regard to the decision of the Supreme Court of Nigeria in suit No. SC/123/07 Peter Obi v. INEC & Ors. are sections 145 and 147 of the Electoral Act, 2006 still applicable to the petition presented by the petitioner?
(ii) Whether the doctrine of lis pendens or any other doctrine having the same effect is applicable to the governorship election conducted in Anambra State on the 14th of April 2007 vis-a-vis the pendency of the suit between Mr. Peter Obi v. INEC at the Supreme Court of Nigeria.
(iii) Whether the appellant having consented to the consolidation of arguments in respect of the nine gubernatorial petitions before the tribunal can turn round to complain that only one consolidated ruling was delivered and if so, whether he has suffered any prejudice by the fact that only one instead of nine rulings was delivered.
Chief A. Nwaiwu learned senior counsel to the 4th – 6th respondents adopted and relied on the brief filed on the 17/1/08 for the respondents. The 4th – 6th respondents distilled three issues for determination as follows:-
(1) Whether the tribunal below acted outside its jurisdiction under sections 145 – 147 of the Electoral Act having regard to the reliefs sought in the petition EPT/AN/GE/2/07 before it and when without hearing the parties on the substantive petition before it proceeded to deliver judgment declaring the gubernatorial election; the subsequent inauguration and any steps taking (sic) in furtherance of the said election nullity.
(2) Whether the tribunal was right in holding that the governorship election in Anambra State was a nullity under the doctrine of lis pendens since the case of Peter Obi v. INEC was pending.
(3) Whether the judgment of the tribunal is invalid when after consolidating nine petitions before it, gave one single judgment in respect of all instead of nine separate judgments?
The issues for determination raised by all the parties in this appeal are similar. Mr. D. D. Dodo compiled the same brief of argument and gave similar submissions for the appellant in all the appeals. He adopted the Submission in the appeal CA/E/EPT/7/07 for the purpose of this appeal. He urged the court to allow the appeal.
Mrs. B.N. Nwachukwu relied on the argument and submission in this brief and the other briefs filed in this consolidated appeal and urged upon this court to dismiss the appeal.
Chief A. Nwaiwu for the 4th – 6th respondents also like the appellant filed the same briefs in the appeals with the same issues for determination, and gave similar arguments and submission. The learned counsel associated himself with the submission of the appellant.
I have carefully considered the submission of the parties on the three issues for determination distilled in this appeal. The issues, argument and submission of counsel are similar to those in Appeal No. CA/EPT/7/07. I also adopt the reasoning and conclusion in Appeal No: CA/E/EPT/7/07 for all the three issues raised for determination in this appeal because of the similarity in the issues. This court hereby resolves issues one and three in favour of the appellant. It is the conclusion of this court that this is an ideal situation to invoke the powers conferred on us by section 16 of the Court of Appeal Act to make appropriate orders standing in the shoes of the Lower tribunal as follows:-
(1) That the orders of nullification made by lower tribunal on the 19th of July, 2007 as they affect each of the consolidated appeals in the Governorship/National Assembly and Legislative Houses Election Petition Tribunal Anambra State sitting in Awka are hereby revoked and discharged.
(2) Since there is no live issue in the petitions and cross/petitions filed against the election of the appellant Dr. Emmanuel Andy Uba as Governor of Anambra State before the lower tribunal which now lacks jurisdiction to hear them on the merits in view of the decision of the Supreme Court in the suit Obi v. INEC & 5 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 delivered on the 14th of June, 2007, the petitions and cross petitions are accordingly struck out.
(3) This appeal is meritorious and is hereby allowed.
(4) No order as to costs.
Appeal allowed.
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Anambra State Governorship/National Assembly/Legislative Houses Election Petition Tribunal, sitting in Awka delivered on the 19th of July, 2007.
The statement of facts leading to this appeal are that the governorship and State House of Assembly elections were held on the 14th of April, 2007, throughout the country. The appellant and the other candidates were nominated by their respective political parties to contest in the election to the office of the Governor of Anambra State. The appellant won the contest and took oath on the 29th of May, 2007. Meanwhile Mr. Peter Obi who contested the governorship election in 2003 under the platform of All Peoples Grand Alliance (APGA) was not able to assume office until the 17th of March, 2006. On the 16th of March, 2006, the Court of Appeal, Enugu declared him winner of the 2003 gubernatorial election. He did not participate in the 2006 election on the basis that his tenure of four years had not expired.
He returned to court to determine the issue of his tenure of office. On the 14th of June, 2007, the Supreme Court in the case Obi v. INEC & 7 Ors. (2007) 11NWLR (Pt.1046) pg. 565 declared that Mr. Obi’s tenure had not expired and order the appellant to vacate office for him. Meanwhile there were nine petitions pending before the tribunal Awka emanating from the 2007 gubernatorial election. The tribunal based on the Supreme Court judgment invited the counsel appearing in the petitions to address it on the after effect of that judgment on the petitions. The Tribunal consequently gave an order nullifying the gubernatorial election held on 14th of April, 2007 in Anambra State, the inauguration and oath taking of the appellant on the 29th of May, 2007, and also all processes in connection with the petitions and cross petition filed before striking them out.
Being aggrieved by the decision of the tribunal the appellant appealed to this court. In the brief deemed filed on 15/1/08 – the appellant raised three issues from the three grounds in his amended notice of appeal for determination as follows:-
(i) Whether the tribunal acted outside and beyond its jurisdiction under sections 145 and 147 of the Electoral Act, 2006 having regard to the reliefs sought in the election petition No. EPT/AN/8/2007 before it:-
(a) To declare the inauguration of the appellant and any steps taken in furtherance of his election a nullity.
(b) To rely on section 178(2) of the 1999 Constitution not raised in the election petition.
(c) Rather than simply striking out the election on the basis of the Supreme Court judgment without annotating that judgment.
(ii) Whether lis pendens is a doctrine applicable to an election petition before the tribunal.
(iii) Whether it was valid exercise of judicial authority for the tribunal to give a single judgment for nine consolidated election petitions.
Mr. Ikechukwu Ezechukwu learned counsel for the 1st – 2nd respondents adopted and relied on the brief of the 1st – 2nd respondents filed on 28/1/07. In the brief three issues were distilled for determination as follows:
(a) Whether having regard to the decision of the Supreme Court in the case of Peter Obi v. INEC & Ors. SC No. 123/07 – now reported in (2007) 11NWLR (Pt. 1046) pg. 565 – the Governorship and Legislative Houses Election Tribunal sitting in Awka was right in raising and determining the competence of the petition filed by the 1st and 2nd respondents challenging the return and declaration of the appellant as the winner of the governorship election in Anambra State held and purportedly held on 14th day of April, 2007.
(b) Whether having regard to the entire circumstance of this case the election tribunal at Awka came to a wrong decision on the ground only that it employed the doctrine “lis pendens”.
(c) Whether the delivery of a single judgment by the Election Petition Tribunal, Awka to the consolidated petitions occasioned any miscarriage of justice.
Chief A. Nwaiwu, SAN learned senior counsel to the 3rd and 4th respondents adopted their joint brief filed on 17/1/08 wherein three issues were distilled as follows:-
(1) Whether the tribunal below acted outside its jurisdiction under sections 145 – 147 of the Electoral Act having regard to the reliefs sought in the petition No. EPT/AN/GE/7/2007, before it and when without hearing the parties on the substantive petition before it, proceeded to deliver judgment declaring the gubernatorial election, the subsequent inauguration and any steps taken in furtherance of the said election nullity.
(2) Whether the tribunal was right in holding that the governorship election in Anambra State was a nullity under the doctrine of lis pendens since the case of Peter Obi v. INEC was pending.
(3) Whether the judgment of the tribunal is invalid when after consolidating nine petitions before it, gave one single judgment in respect of all instead of nine separate judgments?
At the hearing of this appeal learned senior counsel for the appellant Mr. D. D. Dodo urged the court to be persuaded by the submission in the appellant’s brief to allow the appeal.
Chief Nwaiwu learned senior counsel for the 3rd – 4th respondents urged the court to allow the appeal based on the submission in the appellant’s brief. He also adopted and relied upon the legal argument and submission of the appellant at paragraphs 4 to 4.11 on pages 4 to 10 of the appellant’s brief.
Mr. Ezechukwu learned counsel for the 1st respondent submitted the lower tribunal in the decision given by them on the 19th of July, 2007 was duty bound to follow the precedent handed down by the court in appropriate cases and particularly in the case of Obi v. INEC & Ors. In the case, the Supreme Court as the Apex court decided that the governorship seat in Anambra State was not vacant when election was held in the state on the 14th of April, 2007. The seat will not be vacant until 17th March, 2010 which in effect and in law means that there was no election in Anambra State on 14/4/07.
On issue two the learned counsel that though the doctrine of lis pendens is more than often applied in matters concerning real property it did not derogate from the powers of the court in the preserving of the subject-matter of any suit pending before it to apply the doctrine. The learned counsel defined lis pendens as a pending suit and made reference to the fact that the Supreme Court invoked it in the case of Obi v. INEC.
The court applied the doctrine and stated that once a matter is in court all parties are enjoined not to destroy the subject or do anything that will foist on the court a fact accomplice.
On issue three the respondent conceded that in a consolidated case all the cases still retain their individual identity and respective features and that spate judgments must be delivered for each of the cases. In this case this court can reverse or disturb the decision of the lower tribunal only if it has occasioned a miscarriage of justice.
I have carefully considered the brilliant submission of all counsel in this case. This facts in the appeal are similar to those in the sister appeal which have been consolidated. In actual fact both Mr. Dodo learned senior counsel for the appellant and Chief Nwaiwu learned senior counsel for INEC and its officers prepared a standard brief for all the appeals. The issues for determination in all the brief both the appellant and respondents are same. These have served as impetus for me to adopt my reasoning and finding in other appeal particularly appeal CA/E/EPT/7/07 without any prejudice or injustice to the other parties in the consolidated. I am adopting the procedure so to avoid any unnecessary repetition of facts and law in the appeals.
In the circumstance this court thereby invokes Order 16 of the Court of Appeal Act that is to make an order which the lower court could have made in the interest of justice. By virtue of section 16 of the Court of Appeal Act – this court hereby order as follows:-
(1) That the orders of nullification made by lower tribunal on the 19th of July, 2007 as they affect each of the consolidated appeals in the Governorship/National Assembly and Legislative Houses Election Petition Tribunal Anambra State sitting in Awka are hereby revoked and discharged.
(2) Since there is no live issue in the petitions and cross/petitions filed against the election of the appellant Dr. Emmanuel Andy Uba as Governor of Anambra State before the lower tribunal which now lacks jurisdiction to hear them on the merits in view of the decisions of the Supreme Court in the suit Obi v. INEC & 5 Ors. (2007) 11NWLR (Pt. 1046) pg. 565 delivered on the 14th of June, 2007, the petitions and cross-petitions are accordingly struck out.
(3) This appeal is meritorious and is hereby allowed.
(4) No order as to costs.
Appeal allowed.
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Anambra State Governorship/National Assembly/Legislative Houses Election Petition Tribunal, sitting at Awka delivered on the 19th of July, 2007.
The statement of facts leading to this appeal are that the Governorship and Legislative Houses elections were conducted throughout this country on the 14th of April, 2007.
The appellant and the other candidates were nominated by their respective political parties to contest in the election as flag bearers for the parties and took the oath of office on the 29th of May, 2007.
Meanwhile Mr. Peter Obi who contested the governorship election in 2003 under the platform of All Peoples Grand Alliance (APGA) was not able to assume office until the 17th of March, 2006. On the 16th of March 2006, the Court of Appeal Enugu declared him winner of the 2003 gubernatorial election. He did not participate in the 2007 election on the basis that his tenure of four years had not expired.
He returned to court to determine the issue of his tenure of office.
On the 14th of June, 2007, the Supreme Court in the case Obi v. INEC & 7ors. (2007) 11NWLR (Pt.1046) pg. 565 declared that Mr. Obi’s tenure had not expired and ordered the appellant to vacate office for him. Meanwhile there were nine petitions before the Election Petition Tribunal Awka emanating from the 2007 gubernatorial election. The lower tribunal based on the Supreme Court judgment invited the counsel appearing in the petitions to address it on the after effect of that judgment on the petitions. The Tribunal consequently gave an order nullifying the gubernatorial election held on 14th of April, 2007 in Anambra State, the inauguration and oath taking of the appellant on the 29th of May, 2007, and also all processes in connection with the petitions and cross petitions filed before striking them out.
Being aggrieved by the decision of the tribunal the appellant appealed to this court. In the brief deemed filed on 15/1/08 – the appellant raised three issues from the three grounds in his amended notice of Appeal for determination as follows:
(i) Whether the tribunal acted outside and beyond its jurisdiction under sections 145 and 147 of the Electoral Act 2006 having regard to the reliefs sought in the election petition No. EPT/AN/8/2007 before it:-
(a) To declare the inauguration of the appellant and any steps taken in furtherance of his election a nullity.
(b) To rely on section 178(2) of the 1999 Constitution not raised in the election petition.
(c) Rather than simply striking out the election on the basis of the Supreme Court judgment without annotating that judgment.
(ii) Whether lis pendens is a doctrine applicable to an election petition before the tribunal.
(iii) Whether it was valid exercise of judicial authority for the tribunal to give a single judgment for nine consolidated election petitions.
Chief A. Nwaiwu learned senior advocate for the 2nd – 226th respondents adopted and relied on the joint brief of the 2nd – 226th respondents filed on 17/1/08. The respondents identified three issues for determination from the appellant’s amended grounds of appeal as follows:
(1) Whether the tribunal below acted outside its jurisdiction under sections 145 – 147 of the Electoral Act having regard to the reliefs sought in the petition No. EPT/AN/GE/7 /2007, before it and when without hearing the parties on the substantive petition before it, proceeded to deliver judgment declaring the gubernatorial election, the subsequent inauguration and any steps taken in furtherance of the said election a nullity.
(2) Whether the tribunal was right in holding that the governorship election in Anambra State was a nullity under the doctrine of lis pendens since the case of Peter Obi v. INEC was pending.
(3) Whether the judgment of the tribunal is invalid when after consolidating nine petitions before it, gave one single judgment in respect of all instead of nine separate judgments?
The 1st respondent did not appear and did not file any brief though there was evidence of being served with the appellants brief and hearing notice.
Mr. Dodo learned senior counsel for the appellant adopted the submission in his brief on the three issues for determination in this appeal and urged the court to be persuaded by the argument and submission to allow the appeal.
Chief Nwaiwu learned senior counsel for the 2nd – 226th respondents relied on the submission in the respondents brief and also adopts the legal argument and submission of the appellant at paragraphs 4 to 4.11 pages, 10 to 16 of the appellant’s brief.
I have carefully considered the submission of learned senior counsel for the appellant and 2nd – 226th respondents. The 1st respondent did not file a respondent’s brief regardless of being served with the appellant’s brief. As I have remarked earlier on in this judgment, the contents of the briefs of the appellant and the respondents were same in all the briefs used for each of the nine appeals. Both the appellant and 2nd – 226th respondents made submission for allowing this appeal and revoking the order of nullification made by the lower tribunal. The job of this court in this appeal is simple and straight forward. I shall adopt my reasoning and conclusion in the appeal CA/E/EPT/7/07 on each of the three issues for determination in this appeal.
In the final analysis this court hereby invokes Order 16 of the Court of Appeal Act that is to make an order which the lower court could have made in the interest of justice. By virtue of section 16 of the Court of Appeal Act – this court hereby order as follows:
(1) That the orders of nullification made by lower tribunal on the 19th of July, 2007 as they affect each of the consolidated appeals in the Governorship/National Assembly and Legislative Houses Election Petition Tribunal Anambra State sitting in Awka are hereby revoked and discharged.
(2) Since there is no live issue in the petitions and cross-petitions filed against the election of the appellant Dr. Emmanuel Andy Uba as Governor of Anambra State before the lower tribunal which now lacks jurisdiction to hear them on the merits in view of the decisions of the Supreme Court in the suit Obi v. INEC & 5 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 delivered on the 14th of June, 2007, the petitions and cross-petitions are accordingly struck out.
(3) This appeal is meritorious and is hereby allowed.
(4) No order as to costs.
Appeal allowed.
This court has specifically dealt with and disposed of the consolidated
appeals as follows:
CA/E/EPT/7/07 – Petition No. EPT/AN/GE/4/2007
CA/E/EPT/8/07 – Petition No. EPT/AN/GE/3/2007
CA/E/EPT/9/07 – Petition No. EPT/AN/GE/9/2007
CA/E/EPT/10/07 – Petition No. EPT/AN/GE/5/2007
CA/E/EPT/11/07 – Petition No. EPT/AN/GE/8/2007
CA/E/EPT/12/07 – Petition No. EPT/AN/GE/6/2007
CA/E/EPT/14/07 – Petition No. EPT/AN/GE/2/2007
CA/E/EPT/15/07 – Petition No. EPT/AN/GE/1/2007
CA/E/EPT/16/07 – Petition No. EPT/AN/GE/7/2007
In the final analysis we conclude that the orders of the lower tribunal of the 19th of July, 2007 are made in error and in the circumstance they cannot stand for the under-mentioned reasons:
(a) That the inherent powers of the courts based on section 6(6)(a) of the 1999 Constitution can only be invoked where matters under consideration are within the jurisdiction of the courts. Inherent powers are lubricants to aid the courts in the discharge of their duties.
(b) A lower court in the implementation of a judgment of a higher court is not supposed to rewrite the judgment.
The re-writing of the Supreme Court in Obi v. INEC by invoking section 178(2) of the 1999 Constitution to nullify the 2007 gubernatorial election, the inauguration ceremony of 29th May, 2007 in Anambra State and all the processes filed in the petitions, were beyond the jurisdiction of the tribunal.
(c) Section 178(2) on which the nullification was made was not part of the reliefs in the petitions before the tribunal.
By introducing that section of the Constitution the tribunal obviously, made a case for the petitioners by introducing a new cause of action, thereby treading on toes of the petitioners.
(d) A court is a creature of statutes its jurisdiction is limited and circumscribed by the statutes creating it. Consequently, a court cannot give itself jurisdiction by misconstruing a statute, or expanding the law.
(e) Election petitions are sui generis the general principle of law may not be applicable to an law has a different meaning from nullification under section 147(1) of the Electoral Act, 2006.
(f) The sum total of the order is an exercise of discretion of the lower tribunal in which an appellate court has no business to interfere with unless it was not exercised judiciously or judicially, or the court was not properly guided by the principle of law. This court has reason to interfere with the lower tribunal’s exercise of discretion.
(g) Under the Electoral Act, 2006 the lower tribunal cannot make an order to nullify an election unless there is evidence before it on the conduct of the election by section 147(1) of the Electoral Act. Such evidence was not before the lower tribunal.
(h) The judgment of the Supreme Court has destroyed the subject-matter of the petitions and cross/petitions. A court is only competent when the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Saleh v. Monguno (2003) 1 NWLR (Pt. 801) pg. 221; A. -G., Anambra State v. A. -G., Federation (1993) 6 NWLR (Pt. 302) pg. 692; Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) pg. 423; A.-G., Kano State v. A.-G., Federation (2007) 6 NWLR (Pt. 1029) pg. 164.
In a situation where a court lacks jurisdiction to entertain a suit the proper order to make is to strike out the suit. Obi v. INEC (2007) 11 NWLR (Pt. 1046) pg. 565 Saleh v. Monguno (2003) 1 NWLR (Pt. 801) pg. 221.
By the powers conferred on the court by section 16 of the Court of Appeal Act, 2004 it is hereby ordered as follows:
(1) That the orders of nullification made by lower tribunal on the 19th of July, 2007 as they affect each of the consolidated appeals in the Governorship and Legislative Houses Election Petition Tribunal Anambra State sitting in Awka be hereby revoked and set aside.
(2) Since there is no live issue in the petitions filed against the election of the appellant Dr. Emmanuel Andy Uba as Governor of Anambra State before the lower tribunal in view of the decision of the Supreme Court in the suit Obi v. INEC & 5 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 delivered on the 14th of June, 2007, the petitions and cross-petitions are accordingly struck out.
(3) This appeal is meritorious and is hereby allowed.
(4) No order as to costs
ADEKEYE, J.C.A.: I agree.
DONGBAN-MENSEM, J.C.A.: I agree.
MSHELIA, J.C.A.: I agree.
MUKHTAR, J.C.A.: I agree.
Appeal allowed.
Appearances
Mr. D. D. Dodo, SAN – (with him, Messrs Noblis-Elendu and C. Umeh)For Appellant
AND
Chief A. Nwaiwu, SAN (with him, I. C. Okaa and S. N. Odili)For Respondent
