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

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C. 

By motion on notice the applicant prays for the following reliefs –

“1. An order of court for accelerated hearing of the appeal and an interlocutory application arising therein.

2. An order of court striking out the appeal in limine for incompetence.
3. Making any other order or orders as the Honourable Court may deem fit and proper in the circumstances of this appeal.

AND further take notice that the grounds upon which this application is brought are as follows-

(a) Under section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria, the decision of the Court of Appeal in an election petition is final.

(b) The notice of appeal is a deliberate abuse of judicial process intended to delay and pervert the cause of justice.

(c) The notice of appeal is a nullity.”

The application is supported by an affidavit of urgency and a 15-paragraph affidavit both sworn to by the applicant himself with five exhibits attached. Because of the importance and clarity of the supporting affidavit to these proceedings I shall reproduce it hereunder leaving out the exhibits or attachments. The affidavit reads –

“1. I am the petitioner/respondent/applicant in this matter.

2. I contested election for the post of Governor of Rivers State on 19th April, 2003.
3. After the election, the appellant/respondent, Dr. Peter Odili, was declared elected. I duly filed an election petition challenging the declaration.
4. After service of the petition on the appellant/respondent, a notice of preliminary objection was filed on his behalf challenging the competence of the petition.
5. After hearing argument on the notice of preliminary objection, the election tribunal sitting at Port-Harcourt struck-out the petition. The petitioner/respondent/applicant, appealed to the Court of Appeal.
6. On 31st July, 2003, the court of Appeal allowed the appeal and remitted the petition back to the tribunal for hearing on merit. A copy of the enrolled order of the Court of Appeal is hereto exhibited and marked exhibit “AA”.
7. On 11th August, 2003, the appellant/respondent filed a notice of appeal to this Honourable Court challenging the decision of the Court of Appeal on the election petition matter. It is this notice of appeal that is the subject of this application.
8. My learned counsel, Chief M. I. Ahamba, SAN has informed me, and I verily believe him, that appeals from the election tribunals terminate at the Court of Appeal.
9. The appellant/respondent has filed an application before the Court of Appeal seeking to prevent or delay the commencement of the hearing of my petition on merit in the tribunal. A copy of the application now pending before the Court of Appeal and fixed for hearing on 30th September, 2003 is hereto exhibited and marked as follows:

‘Motion paper exhibit “AB”

Affidavit in support exhibit “AB1”

Exhibit “A” thereto (notice of appeal): exhibit “AB2”

10. The appellant/respondent is resting on exhibit “AB2″ to obtain a stay of execution of the order of the Court of Appeal, and of the hearing before the tribunal.
11. The appellant/respondent is using an incompetent appeal to pervert the cause of justice, and also to annoy, irritate and frustrate me.
12. I sincerely believe that it is necessary to strike out the incompetent appeal to avoid the misuse of judicial process for an unjust end. I rely on the three grounds stated on the motion papers.
13. The appellant/respondent and his counsel know that the appeals terminate in the Court of Appeal in matters arising in the Election Tribunals, but is only interested in delaying the heating of the petition.
14. The newly constituted Election Tribunal now sitting in Port-Harcourt cannot hear my petition until this appeal is disposed of. There is need for the expeditious disposal of this application.”

The appellant/respondent also filed a counter-affidavit through one Oris Onyiri the Secretary of the People’s Democratic Party, Rivers State, in opposition to the application. He said in paragraphs 2, 3, 4, 5, 6 & 7 thus –

“2. That I have the consent and authority of the appellant/respondent to swear to this counter-affidavit.

3. That I have read the affidavit in support of the motion to strike out the appeal deposed to by the respondent/ applicant herein.
4. That the Court of Appeal that heard the appeal of the petitioner/respondent/applicant herein had no jurisdiction to adjudicate on the appeal because the appeal was not on any question whether any person (i.e. the appellant/1st respondent) was duly elected to the office of Governor or Deputy Governor.
5. That the appeal of the appellant/1st respondent is of a constitutional nature and it touches on the jurisdiction of the Court of Appeal.
6. That the appellant/1st respondent herein has not filed the appeal before this Honourable Court to annoy, irritate or frustrate the petitioner or delay the hearing of the petition.
7. That in view of the infringement of the Constitution by the Court of Appeal, it would be in the interest of justice to determine the appeal as stipulated by law.”

None of the remaining 2nd to 327th respondents filed any counter-affidavit.

Before the hearing date counsel for the applicant, the appellant/respondent, and the 2nd to 327th respondents respectively filed briefs of argument in SUPPORT of or in opposition to the motion as the case may be.

At the hearing of the application, learned counsel for the applicant, Chief Ahamba, SAN, moving the motion said he relied on the affidavit filed by the applicant as well the brief he filed in support thereof. He was also relying on the 3 grounds for the application as stated in the motion paper. He said the 1999 Constitution has provided in section 246(1) that appeals against decision of the election petition tribunals in respect of elections to the office of members of the National Assembly, Governor of a State and members of State Houses of Assembly, shall lie to the Court of Appeal. That section 246(3) further provides that –

“The decision of the Court of Appeal in respect of appeals arising from election petitions shall be final.”

That the Supreme Court therefore lacks the jurisdiction to entertain an appeal from the Court of Appeal in the instant case. He said the pendency of the appeal herein has stalled the hearing of the Governorship election petition in Rivers State which the Court of Appeal had ordered to be heard since 31/7/2003. He said the appeal is a nullity and an abuse of process. Learned counsel referred to the recent unreported decision of this court in SC.194/2003 Buhari & Ors. v. Obasanjo & Ors. delivered on 23/9/2003 wherein this court decided that by virtue of the provisions of section 233(2)(e)(i) and the definition of “decision” in section 318 of the 1999 Constitution read together, an appeal whether interlocutory or final lies as of right to this court from the Court of Appeal in a Presidential election petition. The Court of Appeal therefore had jurisdiction to hear the appeal in the election petition. He urged us to grant the application and strike out the appeal.

Mr. Sofola learned senior counsel for the appellant/respondent in reply said he adopted the counter-affidavit and his brief of argument in the motion. He said he was not opposing prayer (1) for accelerated hearing of the appeal. He however vehemently opposed prayer (2) for striking out the appeal. He said the interest of justice demanded the appeal to be heard-on the merit to enable the court interpret the provisions of section 246 of the 1999 Constitution. That the appeal of the appellant/respondent is of a constitutional nature which touched on the jurisdiction of the Court of Appeal. Reacting to the recent decisions of this court in Buhari & Ors. v. Obasanjo & Ors. (supra) learned Senior Advocate of Nigeria contended that it has long been settled that there is no right of appeal to the Court of Appeal in respect of interlocutory decisions in election petitions. He relied on the authority of Orubu v. N.E.C. & Ors. (1988) 3 NSCC 333; (1988) 5 NWLR (Pt. 94) 323 where it was decided that there was no right of appeal to the Court of Appeal from interlocutory decisions of election petition tribunals. He said if Orubu v. N.E.C. & Ors. (supra) had been cited to the court, the decision in Buhari v. N.E.C. & Ors. (supra) would have been different. The court was urged to follow the earlier decision in Orubu v. N.E.C. & Ors. (supra) and hold that the Court of Appeal lacked jurisdiction when it entertained the appeal from the election petition tribunal in an interlocutory matter. The court was urged to dismiss prayer (2).

Mr. Kalipa who appeared for the 2nd to 268th respondents also adopted his brief. He said he was not opposing prayer (1) but opposed prayer (2). He said the court of Appeal has no jurisdiction to entertain the appeal which did not arise from a decision on any question as to whether any person has been validly elected to the office of Governor or Deputy Governor. That the appeal herein is within the confines of section 233(2)(a) & (b) of the Constitution and thus raises a serious question of law relating to the interpretation of section 246 of the Constitution. The court was urged to dismiss prayer (2).

Chief Ahamba responding said that the case of Orubu v. N.E.C. & Ors. (supra) relied upon heavily by Mr. Sofola had to do with the interpretation of paragraph 27(1) of Schedule 3 to Decree No. 37 of 1987 which reads:

“27(1) 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 High Court.”

He said the provisions above are different from the present provisions in the Constitution. I think he is right. He said this court was right in the decision it took in Buhari & Ors. v. Obasanjo & Ors. (supra) and has not contradicted itself even though the court had not been referred to the case of Orubu v. N.E.C. & Ors. (supra). I agree with him. He said the two cases deal with two different laws and that we should follow our recent decision in Buhari & Ors. v. Obasanjo & Ors. (supra) which allows interlocutory appeals in Presidential election petition.

Now, the facts which gave rise to this application are clearly and amply stated in the affidavit of the applicant set out above. They are simple. The question which we are required to answer now is: whether the decision of the Appeal Tribunal (Court of Appeal) on 31/7/2003 remitting the petition back to the Governorship election tribunal for hearing on merit, is not appealable; and not whether or not the Appeal Tribunal (Court of Appeal) had the jurisdiction to entertain the appeal in the first place. In my view the latter question will be for the appeal proper when we get there if this application to strike out the appeal should fail.

All the respondents herein do not oppose prayer (1) for accelerated hearing of the appeal. Under normal circumstances. I would have instantly granted it. But because granting prayer (1) will not serve any useful purpose except if prayer (2) fails or is refused, I will in the circumstances proceed to treat prayer (2) first before returning to prayer (1).

I now return to the question of whether the decision of the Appeal Tribunal (Court of Appeal) on 31/7/2003 was not appealable.

The 1999 Constitution has provided in section 246 as follows-

“246(1) An appeal to the Court of Appeal shall lie as of right from:

(i) .. omitted ..

(ii) decisions of the National Assembly Election Tribunals and Governorship and Legislative House Election tribunal on any question as to whether:

(i) …….omitted..

(ii) any person has been validly elected to the office of Governor or Deputy Governor, or

(iii) .. omitted ..

(2) .. omitted ..

(3) The decisions of the Court of Appeal in respect of appeals arising from election petition shall be final.

It is common ground that the suit Petition No. NAGLHEP/RV/1/2003 herein is a Governorship election petition. The petitioner/applicant said so clearly in his affidavit above. That much is also clear from the enrolled order of the Court of Appeal, exhibit AA, attached to the affidavit in support of the motion, which reads in part

” (3) That the petition is remitted back to the Tribunal to be heard on merit.”

It will be noted that the Governorship election tribunal had on a notice of preliminary objection held that there was no valid election petition before it and consequently struck out the petition.

Under section 246(1)(b)(ii) of the Constitution above an appeal would ordinarily lie to the Court of Appeal from that decision striking out the applicant’s petition. Also under section 246(3) above, the decision of the Court of Appeal in respect of an appeal arising from an election petition as in this case, is final. I have not the slightest doubt that the Constitution has in clear and unambiguous language made the Court of Appeal a final court in respect of appeals arising from election petitions as in the matter before us now.

It must be emphasized here now that whether the decision of the Governorship election tribunal striking out the petition was interlocutory or not, is a matter to be raised and decided in the Court of Appeal itself and not in this court. So also is the question whether the Court of Appeal has or has not the jurisdiction to entertain an interlocutory appeal in respect of an election petition as contended by Mr. Sofola. It is certainly true that matters of jurisdiction can be raised at any time even at the last stage in the apex court. The Court of Appeal being the final apex court in this matter ought to be the place to raise the issue of its jurisdiction. Not in this court. An appeal does not lie from the Court of Appeal to this court in the instant case. It is only in respect of Presidential election petition that an appeal lies from the Court of Appeal to this court (see section 233(2)(e)(i) of the Constitution, Buhari & Ors. v. Obasanjo & (supra).

Having held that the decision of the Court of Appeal herein is final as prescribed by the Constitution and not appealable to this court, the cases of Buhari & Ors. v. Obasanjo & Ors. (supra) and Orubu v. N.E.C. & Ors. (supra) are of no assistance here. The provisions of the Constitution are clear and unambiguous. I have no choice but to give effect to them as such. I therefore find merit in the application.

It therefore succeeds and I allow the preliminary objection.

It is hereby ordered as follows –

1. Prayer (2) is granted. The appeal No. SC.205/2003 pending in this court is incompetent and it is struck-out.
2. Prayer (1) for accelerated hearing of the appeal cannot now be granted. It has been overtaken by prayer (2). It is therefore struck-out.
3. There is no order as to costs.

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SC.205/2003