Chika Madumere & Anor V. Barrister Obinna Okwara & Anor (2013)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the decision of the Court of Appeal holden at Owerri delivered on the 19th April, 2012 in appeal No/CA/OW/EPT/2012. The appellants in the said appeal were the petitioners at the Election Petition Tribunal, the striking out of whose petition by the tribunal led to their appeal at the Court of Appeal, hereafter referred to as the court below. I shall state, briefly, the facts on which the appeal before us predicates.
The 1st appellant was 2nd appellant’s candidate in the election conducted by the 2nd respondent for the Nkwerre Constituency seat in the Imo State House of Assembly. The election held on 26th April, 2011. At the end of polls, the 2nd respondent returned the 1st respondent as the duly elected member of the Imo State House of Assembly representing the Nkwerre Constituency. Dissatisfied with the return, the appellants on 17th May, 2011 filed a petition at the National and State Houses of Assembly Election Petition tribunal sitting at Owerri praying that 1st respondent’s election be nullified. On 3rd August, 2011, the 1st respondent filed a motion urging the tribunal to dismiss appellant’s petition on the ground that the petitioner’s application for the issuance of pre-hearing notice being by way of a letter was incompetent. By its decision of 15th September, 2011, the tribunal upheld 1st respondent’s preliminary objection and dismissed appellant’s petition. Aggrieved by that decision of the tribunal, the appellants appealed to the court below which decision of 11th November, 2011 allowed the appeal and remitted the petition to the tribunal for trial on the merits.
On the petition being so remitted, 1st respondent again raised a further preliminary objection praying the tribunal to strike out the petition because the 180 days permitted the election tribunal to hear and determine the petition had expired thereby leading to the tribunal’s loss of jurisdiction. In a considered ruling delivered on 23rd February, 2012, the tribunal upheld 1st respondent’s objection and struck out the petition.
The appellants challenged the tribunal’s decision vide their Notice of Appeal at the court below filed on 13th March, 2012 containing four grounds. In its decision dated 19th April, 2012. The court below affirmed the decision of the tribunal to effect that since the 180 days permitted by the Constitution for the hearing and determination of appellants’ petition had lapsed and same could not be extended, the tribunal was without jurisdiction to hear and determine same. The lower court further held that consideration of the appeal that arose from the tribunal’s decision is an academic exercise not worth its while and struck out appellants’ appeal. That decision gave rise to the instant appeal.
At the hearing of the appeal, the respondents having filed their Notices of preliminary objection as to the competence of the appeal relied on arguments contained in their briefs in support of the preliminary objections.
Firstly, respondents contend that, given Section 246 (1) (b) and (3) of the 1999 Constitution (as amended), appellants have no right of appeal from the decision of the court below in respect of an election petition. The court below, learned respondents’ counsel submit, the final court that has the jurisdiction of entertaining appeals arising from election petitions.
Secondly, by Section 285 (6) and (7) of the very Constitution, learned counsel for both respondents submit, the 180 days and 60 days for the hearing and determination of appellants’ petition and/or appeal arising therefrom having expired, the issues the appeal raises have become hypothetical. Learned respondents’ counsel urge us to be bound by the record of appeal which clearly indicates that appellants’ petition is in respect of the election for the Nkwerre Constituency of the Imo State House of Assembly. Both counsel urge that we maintain the position this Court already took in similar appeals by declining the jurisdiction to proceed and determine the instant appeal. They rely on, inter-alia, Onuaguluchi v. Ndu (2001) 7 NWLR (part 712) 309 at 321; Awuse v. Odili (2003) 18 NWLR (part 851) 116, 151 – 152; Ugwu v. Lekwauwa (2010) 19 NWLR (part 122) 26 and Sha’aban v. Sambo (2010) 19 NWLR (part 1226) 353, 360 – 361.
In further argument, learned respondents’ counsel submit that this Court cannot legitimately direct the court below as required by appellants’ relief (a) to hear and determine the appeal before it on the merits. Indeed, learned counsel further submit, by their relief (c), the appellants are urging this Court to remit petition No. ERT/IM/SHA/27/2011 to the tribunal. The relief if granted, it contended, cannot avail the appellants as the time within which the tribunal to hear and determine the petition has lapsed. Learned counsel rely on the decisions in P.D.P. v. CPC (2011) 17 NWLR (part 1277) 487; ANPP v. Goni (2012) 7 NWLR (part 1298) 147 and Nwora v. Nwabueze (2011) 17 NWLR (part 1277) in praying that the appeal be struck out.
Responding, in their reply brief, learned senior counsel for the appellants contends that respondents’ argument that this Court lacks the competence to entertain the appeal because of the finality of the decision of the court below is misconceived. The argument, it submitted, limits the jurisdiction of the Supreme Court in a manner which is inconsistent with the provisions of the Constitution. Relying on the case of Tukur v. Govt. of Gongola State (1989) 4 NWLR (part 117) 517 at 561, learned counsel for the appellants contends that any limitation of the court’s jurisdiction which is outside the purview of Section 246 (1) (b) (i) (ii) and (iii) of the 1999 Constitution as amended, is unavailing. The statute which creates the court, learned counsel however concedes, necessarily circumscribes and limits the jurisdiction and scope of the court. In the case at hand, where the decision of the court below being appealed against outside the purview of Section 246 (1) (b) (i), (ii) and (iii) of the 1999 Constitution, the decision is not, by virtue of Section 246 (3) of the same Constitution rendered final and unappeasable. The decision being outside the purview of the restrictive provision of Section 246 (i) appealable and this Court enjoys general jurisdiction under Section 233 (2) (c) of the same Constitution. Section 246 (3) of the Constitution, it is submitted, does not affect this Court’s jurisdiction as donated under Section 233 (2) (c) of the Constitution. Learned counsel relies on P.D.P. v. Onwe (2011) 4 NWLR (part 1236) 166 particularly at pages 173 and 174 of the report.
Learned appellants’ counsel further contends that all the cases the respondents cited at paragraph 3.06 of their brief in support of their arguments are inapplicable to the case at hand. The issue in the instant case, learned appellants’ counsel submits, is a Provision in the alteration Act No 2, that renders S. 285 (7) of the Constitution invalid. Besides, in none of the decisions the respondents rely upon, learned appellants’ counsel further submits, was Section 233 (2) of the Constitution considered either separately or in addition to Section 246 (3) that informs the decision instantly appealed against. Learned counsel supports his position with the decision in Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (part 109) 250 at 266 and urge us to dismiss respondents’ preliminary objections.
Now, the first and most crucial issue to resolve in relation to the objection raised by the respondents against the instant appeal as to the source of appellants’ right of appeal. It appears to me that both sides are one and correctly too that rights of appeal are statutorily provided for. I am unable to agree with the learned appellants’ counsel though that in the case at hand, appellants’ right of appeal to this court, beyond Section 246 (3) of the 1999 Constitution, necessarily draws from Section 233(2) (b) and (c) of the same Constitution as well. Both Sections of the Constitution are herein-under reproduced for ease of reference.
“233 (2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases:-
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution
(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person-
“246 (3)
The decisions of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly Election petitions shall be final.”(Underlining supplied for emphasis).
It is glaring from the clear and unambiguous words of the two Sections that whereas the former, Section 233, precedes the latter, Section 246 (3), it furthermore provides generally for an appellant’s right of appeal. On the other hand, the latter, Section 246 (3), apart from being subsequent to the former, Section 233, specifically provides for appeals against decisions of the Court of Appeal arising from the National and State Houses of Assembly election petitions.
It is instructive to restate here that this Court has held that where a specific provision of a statute is subsequent to a general provision, the specific provision of the statute will prevail. In AG, Ogun State & Ors. v. AG Federation (2003) FWLR (part 143) 206 at 246, Uwais, CJN (as he then was) restated the principle thus:-
“It seems to me that the provisions of Section 162 subsections (1) and (10) of the 1999 Constitution are general in nature while those of Section 163 (b) of the Constitution, which deal in particular with capital gains tax and stamp duties are specific. Therefore, the latter provisions override the former for generalibus specialia dorogant (i.e. special things derogate from general things”
See also; Edet Akpan v. The State (1986) 3 NWLR (Pt 27) 225. The correct pick on the issue in the instant case, therefore, is that the specific provision under S. 246 (3) rather than the general provisions under S. 233 (2) (b) and (c) donates and subscribes the right of an aggrieved person to appeal against the decision of the court below arising from the National and State Houses of Assembly election petition. By the clear and unambiguous words of the provision of Section 246 (3) which makes the court below the last port for any relief and its decision final as it were, there cannot be a further appeal against the lower court’s decision. This court has stated this much in very many decisions and there is no feature in the present case which makes departure from that position legally permissible. See; Onuaguluchi v. Ndu (2001) 7 NWLR (part 712) 309 at 321: Dingyadi v. INEC (No 1) (2010) 18 NWLR (part 1224) 1 at 98 – 99; Ugwa v. Lekwauwa (2010) 19 NWLR (part 1226) 26 at 47 and Sha’aban v. Sambo (2010) 19 NWLR (part 1226) 353 at 360 – 361.
Respondents’ objections also hinge on S. 285 (6) of the 1999 Constitution (as amended). It is argued that were the appellants to have the right of appeal, which by virtue of S. 246 (3) of the 1999 Constitution (as amended), they do not, the reliefs they seek should the appeal succeed by the operation of Section 285 (6) and (7) of the 1999 Constitution (as am ended), unavailing. A detailed consideration of that ambit of respondents’ objection is a luxury this Court refuses to indulge in. After all, the right of appeal which is a sine qua-non to any such exercise does not enure to the appellants.
As a whole, I find merit in the preliminary objections of the respondents and same are hereby upheld. Appellants’ incompetent appeal is accordingly hereby struck out. Parties are to bear their respective costs.
SC.211/2012
