Chief Nelson T. Gbe V. Apostle Paul Selede Esewe & Ors (1988)
LawGlobal-Hub Lead Judgment Report
OMO, J.C.A.
In this application the respondent/appellant is seeking leave of this court to appeal against two rulings/decisions delivered by the Warri Division of the Bendel State High Court presided over by Honourable Justice Omoluabi on the 16th February, 1988 and 1st March, 1988.
These two decisions in respect of which leave to appeal is now being sought here were made in the course of the hearing of an election petition filed by the petitioner/respondent against the result of the Local Government elections held in the Bomadi Local Government Area in December, 1987.
The relevant facts for a full appreciation of the issues raised in this appeal may be stated as follows:
The petitioner and the respondent were two of the seven candidates who were duly nominated and contested for the post of Chairman of the Bomadi Local Government Council in the Local Government elections which took place on the 12th December, 1987.
Before the result of this election was declared, and with a view no doubt to meet the one-month deadline for so doing, the petitioner filed a petition against the conduct of the election dated 8th January, 1988 in which he prayed that:
“that it may be determined that the election in respect of the affected ward, Akugbene Ward 3 was void and be declared void as such and that no candidate should be declared and/or announced as having been elected as Chairman of the Bomadi Local Government Council in view of the facts, events and all other circumstances connected with and/or emanating from the election as averred herein.”
(2) any further relief or orders as this Honourable Court may deem fit to grant in the circumstances of this petition.”
On service of the petition on him, the 1st respondent filed a reply on 4/2/88 in paragraph 10 of which he averred that
“10. The 1st respondent shall at a later time raise a Preliminary Objection that the petition is defective in law and is therefore not properly before this Honourable Court. ”
On 10th February, 1988 the petitioner filed an application seeking inter alia, leave of the High Court to amend the petition “in the manner set forth and/or underlined in red ink in the amended petition attached to the supporting affidavit.” This amended petition in addition to containing several new paragraphs, in its concluding prayer sought as follows:
“(a) That it may be determined that the election in respect of the affected ward, Ward 3 of Bomadi Local Government Area was void and be declared void as such.
“(b) That the declaration of the 1st respondent as having been duly returned and/or elected made by the 3rd respondent on the 27th day of January, 1988 is a nullity.
“(c) That fresh election be ordered to be held in Wards 3 and 7 of the Bomadi Local Government Area for the election of the Chairman of the said Local Government Council, the result of the said fresh election being used along with the result already announced in respect of the other wards.
“(d) Any further relief or orders as this Honourable Court may deem fit to grant in the circumstances of this petition.”
After hearing counsel on both sides, the learned trial Judge ruled that this was a proper case to grant the application for amendment sought and granted same on 17/2/88.
On the same day, the respondent/appellant, whose counsel had opposed the application, filed a, motion in the High Court before the same Judge seeking leave to appeal to the Court of Appeal against this interlocutory decision; and also filed an amended reply to the petition in answer to the amended petition. This application for leave was heard on 1st March, 1988 and refused by the learned Judge on the ground that there is no right of appeal against interlocutory decisions made in an election petition filed under Decree No. 37 of 1987, upholding the submission of appellant/respondent’s counsel to that effect. On the 16th March, 1988, the respondent/appellant then filed an application to this court for leave to appeal against the two decisions afore-mentioned.
In argument before this court, counsel for the petitioner/respondent repeated his submission that there is no right of appeal at all by either party to the petition at this stage of the proceedings, and consequently an application for leave to appeal cannot be granted.
Two main issues therefore arise for determination in this application.
Firstly, whether or not there is a right of appeal from the High Court to the Court of Appeal against interlocutory decisions made by it in election petitions under the Local Government Elections Decree 1987. Secondly, whether this is an appropriate case in which this court can grant leave to appeal against such a decision.
On the first main issue the submission of petitioner/respondent’s counsel is that the present proceeding, that is an election petition, is not an ordinary proceeding to which the rules of the High Court and other general rules apply but special proceedings for which special provisions have been made under the Local Government Elections Decree to wit, sections 36 and 37 and paragraphs 27 and 28 of the 3rd Schedule thereof. These state as follows:
“36(1) Notwithstanding any provisions permitting any other period of notice, notice of appeal to the Court of Appeal from a decision of an election petition shall be given within one month of the decision in question.
(2) The decision of the Court of Appeal shall be final.
37(1) If the High Court shall have determined that a candidate returned as elected was not duly elected, then any candidate declared by the court as elected shall from the time of the decision of the High Court be deemed to be fully elected until any determination of the appellate Court to the contrary.
(2) If the High Court shall have determined that a candidate returned as elected was not duly elected, and that the election was avoided then if notice of appeal from such determination shall have been given within one month, the candidate returned as elected shall notwithstanding the decision of the High Court, be deemed to have been duly elected for the period until the determination of the Court of Appeal is given on such appeal or the appeal is abandoned.”
(note: italics mine)
These two sections provide, as the marginal notes indicate, for time within which to appeal, to the Court of Appeal, the finality of such appeal, and the effect on the determination of the High Court of the notice of appeal to the Court of Appeal.
“27(1) All interlocutory questions and matters shall be heard and disposed of before a Judge, who shall have the control over the proceedings as a Judge in the ordinary proceedings of the High Court.
(2) After the inquiry is concluded, if the Judge before whom it was made has prepared his judgment but was unable to deliver it through illness or otherwise, his judgment may be delivered by another Judge, and the judgment so delivered shall be the judgment of the court; and the last mentioned Judge shall certify the determination of the petition to the Electoral Officer.”
These two paragraphs similarly provide for the powers of the Judge over the special proceedings. Although none of these sections/schedules of the Decree specifically provide for the right of appeal against interlocutory decisions, petitioner’s counsel has submitted that the effect of the lack of provisions for such an appeal, is that there is only a right of appeal after the hearing of the petition. In so concluding counsel has relied particularly on the provisions of paragraph 27(1) of the Schedule 3 afore-mentioned, which he submitted has been interpreted by the Supreme Court in John Oyekan & Anor. v. Richard Akinjide & Anor (1965) N.M.L.R. 381. The head notes of this case which sufficiently bring out its ratio decidendi states that “The applicants filed an election petition in the High Court at Ibadan in which they cited the respondents. The respondents successfully moved the High Court against the applicants’ objection, for further and better particulars of certain allegations contained in the election petition. The applicants being of the view that the order of the High Court if complied with would have the effect of making them disclose their evidence to their disadvantage and of rendering the trial of the election petition ineffectual, applied to the High Court for leave to appeal from the order. The High Court considered that the application was misconceived and dismissed it. The applicants then applied to the Supreme Court for leave to appeal from the order.
For the applicants, it was urged that the combined effect of section 125(1) of the Electoral Act and Section 19(B)(1) of the High Court Law of Western Nigeria is to permit a party dissatisfied with an interlocutory order in an election petition to appeal with leave of the competent High Court or the Supreme Court.
Section 125(1) of the Electoral Act provides that “All interlocutory questions and matters shall be heard and disposed of before a judge, who shall have the same control over the proceedings as a judge in the ordinary proceedings of the court.”
This provision, it was submitted, meant that interlocutory questions and matters in election petitions were to be considered to be of the same nature as interlocutory questions and matters in civil proceedings and subject to the same rights of appeal; and therefore, the provisions of Law regulating appeals from interlocutory orders in civil cases were applicable to appeals from interlocutory orders in election petitions; and since by section 19(B)(1) of the High Court Law of Western Nigeria an appeal lay with leave of the High Court or of the Supreme Court from interlocutory orders in the course of civil proceedings, an appeal lay with such leave, from an interlocutory order in the course of hearing an election petition.
Held (1) There is no warrant for construing Section 125 of the Electoral Act as assimilating an election petition to ordinary civil proceedings for purposes of appeal. It vests the Judge with powers of control and does not purport to define the quality of the proceedings in an election or prescribe rights of appeal from those proceedings.
(2) The proceedings on an election petition are special proceedings for which special provisions are made in the Constitution, and appeals are governed by Section 117(3) of the Constitution. Section 125 of the Electoral Act made no provision for interlocutory appeals, and the application for leave to appeal must be dismissed.”
(Note: italics mine)
It is indeed true that the provisions of Section 125(1) of the Electoral Act of 1902 are in pari materia with the provisions of paragraph 27(1) of Schedule 3 of the Local Government Elections Decree No. 37 of 1987 under which the election, the subject-matter of this petition was conducted. But it was decided in Oyekan v. Akinjide (supra) that section 125(1) afore-mentioned “‘makes no provisions for interlocutory appeals.” It was therein also specifically founded in the judgment of the court delivered by Oyeama, J.S.C. that:
“The proceedings in an election petition are special proceedings for which special provisions are made in the Constitution, and appeals are governed by Section 117(3) of the Constitution.”
(Note: Italics mine)
The fact that the two provisions afore-mentioned are in pari materia is therefore no basis for coming to the conclusion that one of ratio in Oyekan’s case (supra), to wit, that there is no right of appeal against an interlocutory decision, in that case and under the specific legislations governing it, must have the binding force of precedent in the present case. Before such a conclusion can be arrived at, recourse must be had to the relevant provisions of the different constitutions governing the two cases. Whilst section 117(3) and (4) of the Constitution of 1963 applies to Oyekan’s case, section 221(1) of the 1979 Constitution applies to the present petition.
Section 117(3) of the 1963 Constitution provides for right of appeal “as of rights”, not with leave, to the Supreme Court from the High Court. It is enough to state that its only provisions which are relevant here deal with validity of elections/selections to Regional Houses and in Parliament. There is no provision therein for determining any question about membership of local government councils.
Section 117(4) which however deals with right of appeal “with leave of the High Court or the Supreme Court” (which is what is in consideration in the present application), provides that it can be so exercised only
“(a) where the ground of appeal involves questions of facts, mixed law and fact or quantum of sentence, decisions in any criminal proceedings before the High Court sitting at first instance;
(b) any case in which, but for the terms of the proviso to subsection (2) of this section, an appeal would lie as of right to the Supreme Court by virtue of paragraph (a) of that subsection;
(c) decisions in any civil or criminal proceedings in which an appeal has been brought to the High Court from some other court; and
(d) such other cases as may be prescribed by any law in force in the territory. ”
This subsection also concerns civil or criminal proceedings which an election petition is not vide S. A. Onitiri v. T.O.S. Benson (1960) 1 F.S.C. 150 (154,155) and Oyekan & Ors. v. Akinjide & Or. (1965) N.M.L.R. 281.
It is therefore safe to conclude that there was no special provision for appeals against interlocutory decisions with or without leave in election petitions under the 1963 Constitution.
Is the position the same under the 1979 Constitution? This Constitution provides for appeals in election petitions under Sections 220 and 221. Section 220(1) gives a right of appeal from the High Court to the Court of Appeal “as of right” in seven instances set out in sub-paragraphs (a) to (f) thereof except sub-paragraph (f) contemplates appeals from decisions made in civil or criminal proceedings. Sub-paragraph (f) which deals with elective office under the Constitution and which provides for appeal as of right in respect of decisions on any questions whether a person has been validly elected to such office or his term of office terminated or vacated, has not only been suspended by the provisions of Decree No.1 of 1984- Constitution (Suspension and Modification) Decree, but would not in any event be applicable since the post of Chairman of a local government council is not one of the offices provided for under that Constitution.
Section 221(1) however provides for right of appeal with leave and states that:
“(1) Subject to the provisions of section 220 of this Constitution, an appeal shall lie from decisions of a High Court to the Court of Appeal with the leave of the High Court or the Federal Court of Appeal.”
(Note: Italics mine)
This subsection does not talk of civil or criminal proceedings in the High Court but of “decisions of a High Court.” Section 277 of the Constitution defines ‘”decision” in relation to a court; to be “any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.”
It therefore follows that any judgment of a High Court be it interlocutory or final, which cannot be the subject-matter of an appeal as of right to the Court of Appeal under section 220 of the Constitution, is appealable with leave of the High Court or the Court of Appeal to the Court of Appeal.
The inevitable conclusion must therefore be that the 1979 Constitution has made provision for appeals on interlocutory appeals with leave to the Court of Appeal, whilst the 1963 Constitution made no such provision in respect of such appeals to the Supreme Court from the trial High Court.
The decision in Oyekan v. Akinjide (supra) is therefore no authority for holding that there is now no right of appeal to the Court of Appeal against interlocutory decisions of the High Court. Accordingly, the answer to the first issue raised in this application is that the appellant has a right of appeal against the interlocutory decisions of the Warri High Court dated 16/2/88 and 1/3/88.The High Court was wrong to hold to the contrary, and should have proceeded to consider the application for leave to appeal on its merits.
The petitioner/applicant’s application to this court is made pursuant to Order 3 Rule 3 of the Rules of this court which provides that:
“(3) where an application has been refused by the court below, an application for a similar purpose can be made to the court within fifteen days after the date of refusal. ”
(Note: Italics mine.)
It has been conceded by 1st respondent’s counsel that the application to this court was made within time. What he has complained about is that it was made on the very last day possible, i.e. the 15th day; and that no explanation has been given for this delay to justify this court entertaining this application by extending time within which to appeal under section 25 of the court of Appeal Act of 1976. All that Order 3 Rule 6 of the Rules of Court requires the applicant to establish is that there has been no “unreasonable delay” in filing the application in this court. Although there has been no explanation for delay offered by the applicant or extension of time within which to appeal sought, in view of the special nature of this proceeding (an election petition) and the need to dispose of it soonest, I will hold that there has been no unreasonable delay. Having regard to the number of papers required to be produced and exhibited in support of the application (vide paragraph 4 of the grounds for this application), filing the application within time (i.e. 15 days) cannot possibly be said to constitute “unreasonable delay.” I propose also to overlook the applicant’s failure to specifically ask for extension of time within which to appeal as part of this application.
In this connection it is my view that the applicant has been out-of-time for only 12 (13) days, calculating from 1/3/88, when the application was refused in the High Court, to 13/4/88 when it was heard by this court. This is because section 36(1) of Decree No. 37 of 1987, which has been set out earlier in this judgment, allows one month within which notice of appeal should be given against a (any) decision of the High Court.
In opposing such an order 1st respondent’s Counsel has made two submissions.
The first, that the grounds filed do not show a prima facie case which is likely to succeed on appeal. The questions (a) whether the document filed by the petitioner on 8/1/88 is a valid petition under the Decree and (b) whether its alleged invalidity can be cured by amendment and/or (c) whether the amendment granted is not contrary to the Elections Decree, as set out by the appellant/applicant, raise issues of importance for the consideration of this court, and do satisfy the requirements as constituting prima facie good grounds of appeal.
The second submission is that the application should not be entertained because the applicant should be able to proceed with the petition “as amended” to finality, and then appeal against the final decision relying on all the grounds now proposed to be filed in support of an interlocutory appeal.
This submission can only be worthy of any consideration in two circumstances (1) where the issues raised in the interlocutory appeal, if they succeed, are not capable of terminating the petition and (2) where the grant of an amendment would not prejudice the case of the aggrieved appellant in the court below. In the instant case, the issues raised, if successful, could lead to the termination of the petition; and the amendment granted, if it is contrary to Decree No. 37 (as has been submitted), would undoubtedly prejudice the respondent/applicants’ case if it is proceeded with.
Having regard of all the objections to the granting of leave here, I think this is a proper case for this court to grant leave to appeal. Leave to appeal against the decisions of the court below aforementioned is hereby granted. Leave to dispense with the filing of briefs is hereby refused. The appellant/applicant is to file his brief of argument within 4 days; and serve same on respondent’s counsel, who will file the respondents’ briefs within 3 days of their receipt of appellant’s brief. Costs of this application to be paid to the applicant by the 1st respondent is assessed at N150.00 only.
Other Citations: (1988) LCN/0049(CA)
