Chief Sergeant Chidi Awuse V. Celestine Ngozichim Omehia & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
CLARA BATA OGUNBIYI, J.C.A.
The judgment here is in respect of the two appeals, which were brought by notices of appeal filed on the 14th December 2007 and 15th March 2008 respectively. The two notices of appeal, which are at pages 586 – 589 of the record of appeal and pages 204-210 of the supplementary record of appeal respectively, were not assigned different numbers. They were therefore treated under one appeal number, and argued together even though there was no application for the consolidation of the two appeals. Because this is an election matter which ought to be treated expeditiously, the error or otherwise in this appeal will be overlooked.
The two rulings dated 29th November 2007 and 27th February 2008 against which the two appeals were filed arose from the same set of facts which I will set out here under briefly as follows:-
On the 14th day of April, 2007, Governorship elections were held throughout the 36 States of the Federal Republic of Nigeria. In Rivers State, the appellant in both appeals herein was a candidate sponsored by Democratic Peoples Party in that election, while the respondent was sponsored by the People Democratic Party.
After the election aforesaid the respondent was declared the winner and was accordingly returned as the duly elected Governor of Rivers State by the Independent National Electoral Commission (INEC) the 2nd respondent.
In reaction to the declaration by INEC, the appellant herein filed a petition dated 14th May 2007 against the respondent and others at the Governorship and Legislative Election Tribunal sitting at Port Harcourt.
The respondent was subsequently sworn in as the Governor of Rivers State on 29th May 2007. Paragraphs 45-50 of the petition reproduced read:-
“45. Your petitioners aver that the 1st respondent was at the time of the election, not qualified to contest the election based on the Federal High Court judgment dated 15th day of March, 2007 in suit No. FHC/ABT/C5/29/2007 between Rt. Hon. Chibuike Rotimi Amaechi vs Independent National Electoral Commission & 2 Ors.
- Your petitioners aver that the return of the 1st respondent was invalid because he was not qualified at the time of the election to contest the election.
- Your petitioners aver that the 1st respondent was not duly elected by a majority of lawful and/or valid votes cast at the election.
- Your petitioners aver that the 1st respondent did not poll the highest number of lawful votes cast at the gubernatorial election of April 14, 2007 in Rivers State.”
The appellant eventually claimed the following reliefs at page 94 paragraph 52 of the record and said:-
“Whereof your petitioners pray that the election be declared null and void and nullified on the grounds that it was not conducted substantially in accordance with the provisions of the Electoral Act, 2006, as amended, 1999 Constitution, or as the case may be.”
During the pendency of the Appellant’s petition, the Supreme Court in a unanimous judgment which was delivered on the 15th October, 2007 in an appeal between RT. Hon. Rotimi Amaechi v (1) Independent National Electoral Commission (2) Celestine Omehia, (3) Peoples Democratic Party and Ors. (2008) 5 NWLR (Pt.1080) 227 held that Rt. Hon. Rotimi Amaechi was the PDP’s candidate at April, 14th, 2007 Governorship election in Rivers State and not Celestine Omehia. The Supreme Court therefore ordered Celestine Ngozichim Omehia to vacate the Government House with immediate effect for Rt. Hon. Rotimi Amaechi. The order was complied with and Amaechi was sworn in as the Governor of Rivers State after Celestine Omehia vacated the Government House. The effectual post mortem of the judgment of the apex court therefore heralded that Celestine Ngozichim Omehia was never either the PDP candidate nor did he ever contest and talk less of winning the said questioned governorship election held on the 14th April, 2007. Consequent to the foregoing therefore Celestine Omehia brought an application to have his name struck out from the appellant’s petition. The affidavit in support at para..6 (b) in a nutshell states:
“6. That I am informed by Dike Udenna Esq. one of the counsel for the 1st respondent and I verily believe him as follows:-
(b) That the 1st respondent is no longer “the person whose election is complained of and is also no longer a necessary or desirable party to the petition.”
The tribunal after hearing both sides granted the application and struck out the Respondent’s name. The decision in which the Respondent’s name was struck out is therefore the subject matter of the first appeal.
As a result of the striking out of the name of Celestine Omehia, the remaining respondents to wit INEC and its staff brought a motion dated and filed on the 10th December 2007 before the tribunal praying for the striking out of the entire petition on the ground that the tribunal lacked jurisdiction to further entertain the case. The application was predicated on the premise that the candidate declared elected at the gubernatorial election in Rivers State held on the 14th April, 2007 whose election was rightly to have been challenged under section 285(2) of the constitution of the Federal Republic of Nigeria 1999 was neither made a party nor was he disclosed in the petition.
This application was contentiously heard, and in a reserved and considered ruling, which was delivered on the 27th February 2008 the tribunal granted the prayers sought. At page 203 the learned tribunal had this to say amongst others:
“In the circumstance thereof, we do hereby grant the respondents/applicants prayers; that is to say the tribunal lacks the jurisdiction to continue the hearing of this petition because the person whose election or return is being challenged is not before it.”
The petition was accordingly dismissed. The said decision therefore forms the nucleus of the second appeal.
The two appeals were argued serially, and same consideration will now also be given in the order in which they were argued.
The notice of appeal, which was filed on the 14th December 2007, (which I will now refer to as the 1st notice of appeal) contains three grounds of appeal and same are hereunder reproduced without their particulars as follows:-
“1. ERROR IN LAW
The Election Tribunal erred in law in striking out the name of the 1st respondent, other than nullifying the election having rightly found in the passage of its judgment as follows:-
“It is our view that this tribunal being of subordinate jurisdiction to the Supreme Court is bound no only to obey but to enforce the decision of the Supreme Court. It follows therefore that this tribunal could and will not close its eyes to the judgment of the Supreme Court in Amaechi’s case.”
- ERROR OF LAW
The election tribunal erred in law in granting the order striking out the name of the 1st respondent from the petition.
- ERROR IN LAW
The election tribunal erred in law and was without jurisdiction to strike out the 1st respondent’s name from the petition.”
In reaction to the notice of appeal, the 2nd – 4th respondents on the 28th January 2008 filed a notice of preliminary objection challenging the competence of the notice of appeal. The grounds of the objection as set out in the notice are as follows:-
- That this appeal is incompetent for gross mis-constitution of parties.
- That section 246(1)(b)(ii) of the 1999 Constitution regulates the right of appeal to the Court of Appeal in all election petitions arising from the decision of the National Assembly Election Tribunal and Governorship and Legislative Houses of Assembly.
- That the instant appeal arose from the interlocutory decision of the Governorship Legislative Houses of Assembly dated 29th November, 2007 which struck out the name of the 1st Respondent from the petition filed by the petitioners.
- That the said interlocutory decision in the petition did not determine the petition on the merit in that it did not decide one way or the other whether the petitioners or the 1st respondent was duly elected.
- That section 246(1)(b)(ii) of the Constitution only provides for a right of appeal as of right when a decision finally disposes of the petition on the merits.
Parties filed and exchanged briefs of argument. The 2nd – 4th respondents incorporated their argument on the preliminary objection in their brief of argument, while the appellant equally responded thereto in his reply brief.
When the appeal came up for hearing on the 27th day of May 2008.
Learned counsel for the parties identified their respective briefs of arguments and proceeded to adopt and relied on the arguments contained therein. Mr. O. B. James, learned counsel for the 1st respondent identified the 1st respondent’s brief of argument, dated and filed the 21st January 2008 and applied to withdraw same. Needless to restate that this application became necessary in view of the 1st respondent’s application to have his name struck out from the petition that resulted in the ruling which is the nucleus or subject matter of this appeal. Having withdrawn the brief, the 1st respondent was therefore precluded from participating in this appeal.
The relevant briefs of arguments considered for the hearing of this appeal therefore are that of the appellant’s dated 14th and filed on the 15th January 2008, and also the 2nd – 4th respondents’ dated and filed on 28th January but deemed filed on the 3rd March, 2008.
Before the hearing of the appeal. Mr. I.E. Imadegbelo, learned senior counsel for the 2nd – 4th Respondents rightly sought for leave to argue the preliminary objection which leave was accordingly granted. Learned senior counsel in his argument withdrew ground one of the grounds of the preliminary objection and same was struck out. Learned counsel therefore went on to adopt the argument in respect of the preliminary objection, which is contained at pages 2-8 of the 2nd – 4th respondents’ brief of argument and relied on the submission made therein. The senior counsel urged this court to therefore dismiss the appeal.
On behalf of the appellant, Chief mike Okoye the learned counsel identified the appellant’s reply filed the 3rd of march 2008 and submitted that the preliminary objection was argued at pages 1 – 4 of the said reply brief. Learned counsel adopted and relied fully on the reply brief and urged the court to dismiss the preliminary objection in its totality.
By way of elucidation, learned counsel attempted to distinguish the case of Amgbare v Sylva (2007) 18 NWLR (Pt.1065) 1 cited by the 2nd – 4th respondents from the instant appeal. Learned counsel insisted that the 1st respondent was the only one known to law as the person who was duly returned at the election held on the 14th April, 2008.
Mr. I. E. Imadegbelo, learned senior counsel who settled the 2nd – 4th respondents’ brief in his argument in the preliminary objection submitted that Mr. Celestine Omehia’s name was struck out as a party to the petition on the 29th day of November 2007, as such he is no longer a party in this appeal. He can only be made a party if the decision of the tribunal striking out his name is set aside on appeal, otherwise the decision of the tribunal remains valid. In aid learned senior counsel cited the authority of Nwangwu v Ofoegbu wherein this court, per Fabiyi, JCA held:
“A judgment of a court of law or tribunal, no matter how incorrectly arrived at, subsists until set aside by a competent court through appellate proceedings or by way of judicial review. In the instant case, the respondents ought to have attacked the judgment of the customary through an appeal or by way of judicial review.”
In a further argument, learned senior counsel submitted that any reference to the 1st respondent as a party was wrongly done by the appellant, thus effecting the appeal filed on the 14th December 2007 as incompetent.
On further submission the learned senior counsel re-iterated the trite law that once proper parties are not before the court or tribunal it would lack the requisite jurisdiction to adjudicate. In further substantiation and to buttress his submission, the learned senior cited the case of Onwanaly v Asademe (1971) All NLR. 220; Amoda v Ajobo (1995) 7 NWLR (Pt. 406) 170 at 182.
Further still and on the competence or otherwise of the appeal at hand, learned, senior counsel submitted that the right of appeal to this court is exclusively governed by the provision of section 246(1)(b)(ii) of the (1999) Constitution which provides that an appeal to the Court of appeal shall lie as of right from decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether any person has been validly elected to the office of governor or Deputy Governor According to the learned senior counsel, the decision against which this appeal lies was not on any question as to whether any person has been validly elected to the office of Governor or Deputy.
Counsel argued further that with the decision of the tribunal striking out the 1st respondent’s name, the appellant therefore has no right of appeal against that decision. Cited further in support are the cases of Ononuwa v Oshodin (1985) 2 NWLR (Pt.10) 924; Okokhue v Obadan (1989) 5 NWLR (Pt.120) 185 and Amgbare v Sylva under reference supra.
On the totality, learned senior counsel urged this court to dismiss the appeal.
In reply, Chief Mike Okoye further submitted the impropriety of the notice of appeal without the name of the 1st respondent. This he argued was in view of the Court of Appeal lacking in jurisdiction to grant a relief against a person who is not a party to the appeal.
On whether the order of Tribunal which struck out the name of the 1st Respondent, is a final or interlocutory order, learned counsel submitted same being a final decision because it finally determined the rights of the parties.
In a further argument, learned counsel submitted that the word decision used under S.246 of the constitution includes interlocutory ruling or decision.
The authorities in the decisions of Odutola v Oderinde (2004) 12 NWLR (Pt.888) 574 and Abubakar & Ors. v Yar’adua (2008) 4 NWLR (Pt.1078) 465 were cited further in support.
At this juncture, I would wish to state that by the two notices of appeal at pages 586 – 589 and 204 – 210 respectively, the only two respondents to the appeal are Celestine Ngozichim Omehia and Independent National Electoral Commission (INEC) to the exclusion of the word “ORS”. This is in line with order 6 rule 2(1) of the rules of this court wherein “the names and addresses of all parties directly affected by the appeal” must be stated. The necessity for the clarification of the position of the law, occasioned the summoning of counsel to further address the court on the 16th June, 2008 relating to the competence of the word “Ors” reflected in the notice of appeal, as parties. Consequently, the learned appellant’s counsel Chief Mike Okoye applied that the said word “Ors,” be struck out and, same was obliged. There are therefore only two respondents to the notices of appeal. This is apt with the trite law that a notice of appeal is synonymous to a writ of summons, being an originating process in initiating a suit or an appeal.
It is trite law that by the provision of 246 of the Constitution an appeal on matters of law, lies as of right. However, the governing sections to this preliminary objection are sections 285(2) and 246(1)(b)(ii) of the constitution which state as follows:-
“S.285(2) There shall be established in each State of the Federation one or more election tribunal to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor…”
(underline for emphasis).
“S.246(1) An appeal to the Court of Appeal shall lie as of right from –
(a) ……………….
(b) …. Decisions of the National Assembly Election Tribunal and Governorship and Legislative House Election Tribunals on any question as to whether
(i) …………………………….
(ii) Any person has been validly elected to the office of Governor or Deputy Governor….”
A related relevant question to pose is: what is the nature of the subject matter of this appeal? As rightly submitted and garnered by the learned senior counsel for the respondent, the decision sought to appeal against was not a question relating to whether or not any person has been validly elected to the office of Governor or Deputy Governor but it is a complaint against the striking out of the 1st respondent’s name. The said subject certainly does not come within the ambit of Section 246(1)(b)(ii) of the constitution consequent to which no right of appeal lies.
Section 285(2) of the Constitution of the Federal Republic of Nigeria provides as follows:-
“There shall be established in each state of the Federation one or more election tribunal to be known as the Government and Legislative Houses Election Tribunal which shall, to the exclusion of any court or tribunal have original jurisdiction to hear and determine petitions 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. (underlining is mine)”
From the provisions of the sections above it is quite clear that the election petition tribunal is conferred with special jurisdiction for specific purpose and which jurisdiction is limited to the hearing and determination of petitions as to whether any person has been validly elected to the office as clearly specified in section 285(2) of the Constitution and in respect of which by section 246(1)(b)(ii) of same, an appeal shall lie as of right. In the instant appeal to the office of Governor.
An additional deciding factor of the validity of this petition is the provision of rule 4 of the Rules of procedure for Election Petition under the first schedule of the Electoral Act 2006 which same reproduced states as follows:
“(1) An election petition under this Act shall:
(a) specify the parties interested in the election petition;
(b) specify the right of the petitioner to present the election Petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
(d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.”
The locus classical nature of Amaechi’s case is that the absence of being a party or necessary party would render an involvement a busy body. From the decision of Amaechi v INEC (supra) therefore the 1st respondent was no longer a party interested in the outcome of the election of 14th April 2007, with the pronouncement that he was never a candidate in that election. It follows logically that the return which was made after the election was deemed to have been made in favour of Amaechi and not the 1st respondent herein. On this reason alone, I hold that the lower court was right in striking out the name of the 1st respondent.
By the doctrine of stare decisis, the decision of apex court serves as binding authority on all other courts in Nigeria. It is elementary to reiterate therefore that this court and indeed the tribunal are bound by the decision in Amaechi v. INEC (supra). The issue of whether the proper parties were before the court, or whether the decision was interlocutory or final is not important here. Section 246(1)(b)(ii) of the Constitution clearly states that parties to an election petition can appeal as of right only on any question as to whether any person has been validly elected to the office of Governor or Deputy Governor. I am aware of the apex court’s decision in Abubakar v. Yar’adua (2008) 4 NWLR (pt.1078) 465 which is binding on this court and all other subordinate courts. At page 525 paragraphs A-C the apex court, per Tabai, JSC said:
“Section 233(1) of the 1999 Constitution of the Federal Republic of Nigeria provides to the effect that an appeal from the decision of the Court of Appeal in any civil or criminal proceedings shall lies as of right to the Supreme Court where the ground of appeal involves questions of law alone. And this is irrespective of whether the decision in final or interlocutory. Thus where the grounds of appeal against the decision, whether final or interlocutory, involves question of law alone and it is filed within the times stipulated by the Rules of Court, the appeal is competent. See Mohammed v. Olawunmi (1990) 2 NWLR (pt.133) 458. No leave is required in such a case.”
Although the appellant herein has a right to appeal, with all his grounds of appeal involving questions of law, the appeal however is not coming under the provision of section 246(1)(b)(ii) of the Constitution. In other words, the appeal is incompetent and same as rightly submitted and argued by the learned senior counsel Imadegbelo, is in dire breach of the said section 246(1)(b)(ii) of the Constitution 1999. The leverage sought by the appellant’s counsel Chief Okoye that this court invokes section 15 of the Court of Appeal Act 2004 to join and or substitute Amaechi for Celestine Ngozichim Omehia is completely outside the powers arid jurisdiction of this court.
By the provisions of paragraphs 14(2) of the 1st schedule to the Electoral Act 2006 which precludes alteration or amendment read along with paragraph 4(1)(a) of the same, it is far too late in the day to effect substitution especially where contents of an election petition must on the onset have specified the patties interested in the election petition.
A judicial interpretation grounding the said principle of law was given in the case of Ngige v Obi (2006) 14 NWLR (Pt.999) 1 wherein at page 136, R.D. Muhammad JCA made the following pronouncements and said:-
“The provisions of paragraph 14(2) is clear and unambiguous.
No amendment will be allowed which will introduce new Parties to the Petition, ………………… In effect, any amendment which is substantial which alters the grounds for or the prayer in the election petition will not be allowed.”
The introduction of section 15 of the Court of Appeal Act is fundamental and substantial and would certainly alter the foundational nature of the petition away from that originally intended. This is contrary to the spirit of paragraph 14(2) of the schedule to the Electoral Act and must therefore not be allowed. This is moreso with the further strengthening derived from the provision of paragraph 27(1) of the 1st schedule on the effect of determination of Election petition which states thus:-
At the conclusion of the hearing the tribunal shall determine whether a person whose election or return is complained of or any other person, and what person was validly returned or elected, or whether the election was void, and shall certify the determination to the Resident Electoral Commission or the Commission.”
In the issue at hand, Omehia was not a person whose election or return was complained of, and in the absence of Amaechi having been made a party, he could not also properly be ascribed.
For the reasons so advanced I hold the firm view that the 1st respondent’s name was properly struck out. I therefore find the preliminary objection meritorious and I uphold same. The consequential effect on the 1st appeal therefore is that it is devoid of any merit and same is accordingly dismissed. There shall be costs of N30,000= to the 2nd – 4th respondents.
Other Citations: (2008)LCN/2842(CA)
