Chief Sergeant Awuse V. Dr. Peter Odili & Ors (2003)

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RABIU DANLAMI MUHAMMAD, J.C.A.

On the 31st day of July, 2003; this Court allowed the appeal of the first respondent herein and ordered that the Election Petition filed by the first respondent Sergeant Awuse be heard on the merit by a differently constituted Election Petition Tribunal. The applicant herein who was the first respondent in the said appeal was aggrieved by this decision. He therefore appealed to the Supreme court.

He then filed a motion on notice before this Court asking for the following reliefs:-
“(a) an order for a stay of execution of the judgment delivered in this matter by the Court on 31st July 2003;
(b) an order of injunction restraining the Election Tribunal of Rivers State, Port Harcourt from hearing and determining the petition herein.
(c) An order of injunction restraining the Honourable President of the Court of Appeal from constituting an election panel to hear and determine the petition herein pending the hearing and determination of the appeal by the Supreme Court;
(d) such further and/or other order(s) as this Honourable Court may deem fit to make in the circumstances.

The motion was supported by a sixteen paragraphs affidavit sworn to by one Oris Onyiri, the Secretary of the People’s Democratic Party, Rivers State. The first respondent filed an eight paragraphs counter-affidavit. The applicant then filed a reply to the counter-affidavit.

At the hearing of the motion; Mr. Kehinde Sofola, the learned Senior Counsel for the applicant stated that the application was straight forward. He pointed out that the Notice of Appeal was based on jurisdiction and submitted that the issue of jurisdiction was substantial and radical. He also submitted that the Courts always hold that grounds of jurisdiction are sufficient to make an application for stay of execution successful.

The learned Senior Counsel conceded that the issue of jurisdiction was not raised before this Court but submitted that it is settled law that the issue, of jurisdiction could be raised at any stage because of its fundamental nature and particularly where it goes to the issue of adjudication. In support of this submission, the learned Senior Advocate referred to MADUKOLU v. NKEMDILIM (1962) 1 All N.L.R. 587.

He then submitted that the Court of Appeal has no jurisdiction over an election petition which an Election Tribunal did not  decide on the merit. He further submitted that if the decision of the Tribunal is on interlocutory matter, the Court of Appeal has no jurisdiction. He also submitted that our Courts should not perpetrate errors which will amount to an injustice and contrary to public policy.

He then referred to OKOKHUE Vs OBADAN (1989) 5 NWLR (Pt 120) 185. The learned Senior counsel then referred to S.246(1) and (2) of the 1999 Constitution and submitted that the petition must relate to the validity of the election of the Governor before this Court could entertain the matter and that the decision of the Court of Appeal is final only when the decision of the Tribunal is on merit. In support he referred to ORUDO Vs NEC (1988) 5 N.W.L.R. (Pt 94) 323. He urged the court to grant the stay of execution.

Mr. Kalipa learned counsel for the 2nd – 327th respondents submitted that the matter has been entered in the Supreme Court, not only that the appeal has been fixed for hearing on the 23rd day of October, 2003 and that all the parties have been served with hearing notices to this effect. He then submitted that by virtue of Order 8 Rule II of the Supreme Court Rules, this Court has no jurisdiction to entertain the application. In support of this submission he referred to the following authorities ADEKANYE Vs COMPTROLLER OF PRISONS (2000) 12 NWLR (Pt 682) 563 and MADAM MARGARET EZEOKAFOR Vs EMMANUEL EZEILO (1999) 6 S.C. (Part II).

Chief Ahamba learned Senior Counsel for the 1st Respondent in opposing the motion submitted that the application was frivolous. He further submitted that the matter has been entered at the Supreme Court and as such this Court has no jurisdiction to entertain the application. He also submitted that where there is an express provision in the constitution excluding the Notice of Appeal from the jurisdiction of the Court to which the appeal was made, this Court should be wary to use such an appeal for stay of execution and referred to S.246(3) of the 1999 Constitution in support.

He submitted that the provisions interpreted in the cases cited by Senior Counsel for the applicant are different from the provisions of the Electoral Act 2003 and as such do not apply to the present case and referred to ATTORNEY GENERAL OF OYO STATE Vs FAIRLAKES (1988) 5 NWLR (Pt 92) 1 at 23. The learned Senior Counsel submitted that when the matter was decided, the President of the Court of Appeal and the Tribunal were not parties. There was no application to join them. If the order is made, it would be an order against parties not joined. He submitted that the application is not properly constituted.

Replying on points of law, learned Senior Counsel for the application submitted that the application was filed on 11th August 2003 before the matter was entered in the Supreme Court, the application was therefore properly filed. He referred to GAJI Vs PAYE (2003) 8 NWLR (Pt 823) 583 and IJEBU-ODE LOCAL GOVERNMENT COUNCIL Vs ADEDEJI BALOGUN (1991) 1 NWLR (Pt 166) 136 at 153 and submitted that no leave is required where jurisdiction is concerned.

I will first deal with the issue of jurisdiction. Jurisdiction is so fundamental and vital that anything done by the court without jurisdiction would be a nullity no matter how well the proceedings were conducted. It has been contended that this court lacks the jurisdiction to entertain the application because the appeal has been entered at the Supreme Court. Order 8 Rule 11 of the supreme court Rules provides:
“After an appeal has been entered and until it has been finally disposed of the court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in this Order, every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission to the Court.”

It is now settled law that where an appeal has been entered in the appellate Court, the lower court from which the appeal emanated will cease to have jurisdiction, see:
EZEMO vs ATTORNEY GENERAL, BENDEL STATE (1986) 4 NWLR (Pt 36) 448.
In BIOCON AGROCHEMICALS (NIG) LTD Vs KUDU HOLDINGS (PTY) LTD (1996) 3 NWLR (Pt 437) 373, the Supreme Court stated at page 380 per Kutigi, JSC that:
“I must also add that the true position here now is that this court has already received the record of appeal compiled by the appellants/applicants and the appeal having been entered in the cause List; any application thereof including application for stay of proceedings should be made direct to this Court.”

The Supreme Court in EZEOKAFOR Vs EZEILO (1999) 6 SC (Part 11) 1 construed the effect of Order 8 Rule II and held at page 6 that:
“………….it may be said that once the court below transmits the Record of Appeal to the court that will hear the appeal and the appellate court infact receives the same, the appeal is said to be entered, See EZEMO V A.G. BENDEL STATE (1986) 4 NWLR (Pt.36) 448, OGUNREMI Vs DADA (1962) 2 NLR (pt.4) 663 and ADEWOYIN Vs ADELEYE (1962) 2 NLR (pt.1) 108. What flows automatically from the appeal being entered is that the appellate court which had now received the record of appeal is said to be seised of the whole proceedings in the sense that the res in the appeal automatically pass into the custody of the said appellate court seised of the whole proceedings. For avoidance of doubt, it is important to note that for the purposes of Rule II of Order 8 under reference there is no sharing of jurisdiction, over the res, the subject matter of the appeal, between the court below (i.e. transmitting the record of appeal) and the appellate court now seised of the appeal (i.e. the court receiving the transmitted record of appeal).
See also ADEKANYE v. COMPTROLLER OF PRISONS (2000) 12 NWLR (pt.682) 563.

It could be seen from the above authorities that the moment the appeal is entered in the Supreme court, it becomes seised of the whole proceedings and the court of Appeal ceases to have jurisdiction over the matter. In our present case, the appeal has not only been entered in the supreme court, in fact the appeal has been fixed for hearing. The appeal is to be heard on 23rd October, 2003 i.e. in six days time from today and all the parties have acknowledged that they have been served with the hearing notices.

The learned Senior Advocate for the applicant contended that since the application was filed before the record of appeal was transmitted to the Supreme Court and as such this Court has jurisdiction to entertain the matter. I am afraid that this is not the position of the law. This court has jurisdiction to entertain the matter only where the appeal has not been entered in the Supreme court. This court has no jurisdiction to entertain the matter where appeal has been entered in the Supreme Court, even though when the application was filed, the matter has not been entered in the Supreme court.
The determining issue is not when the application is filed but when it is heard.

In the circumstance, I hold that this court has no jurisdiction to entertain and determine the application. The appeal has been entered in the supreme court had it is seised of the whole proceedings. Only the supreme court to the exclusion of all other courts can entertain any application in this matter. No other court can touch the matter.
The application is struck out for want of jurisdiction. I make no order as to costs.

Other Citations: (2003)LCN/1476(CA)