Hon. Arthur C. Kalagbor V. Independent National Electoral Commission & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, J.C.A. OFR
This appeal was instanced by the appellant who was the petitioner at the National Assembly/Governorship and Legislative Houses Election Petitions Tribunal against the decision of the Tribunal which sat in Port Harcourt on the 31st day of January, 2008. The election which was conducted on 14th April, 2007 was for the Gubernatorial seat for Rivers State. The appellant as per pages 4 and 5 of the record of proceedings was one of the nineteen candidates who contested for the gubernatorial seat on the 14th April, 2007. Paragraphs C and D of the Petition filed on 7th May, 2007 state the reliefs sought as follows:
“1. A Declaration that the 1st ” Respondent was not a qualified candidate to contest the said election as at the 14th day of April, 2007 when the election was held.
- A declaration that the Petitioner was validly nominated by his Political Party but was unlawfully excluded from the above election by the 2nd Respondent.
D. ………………………………………
- That the Governorship Election for Rivers State conducted for the 14th of April, 2007 be nullified and a fresh election be conducted.”
In view of the peculiar circumstances of this case it is apt to state, albeit saliently that the appellant as the petitioner filed his petition against three respondents who were:
- Sir Celestine Ornehia
- The Independent National Electoral Commission (INEC)
- Chief Rowland Uwah (Resident Electoral Commissioner, River State).
But as at the time judgment was delivered in this case on the 31st day of January,2008 the respondents reduced to two without the 1st respondent. Before the reduction in the number of respondents, all the three respondents had filed their replies to the petition.
At the trial, the petitioner/appellant’s four witnesses testified followed by the testimony of the only witness for the original 1st respondent. Before the original 1st and 2nd respondents could call their only witness, the Supreme Court delivered its judgment on 25th October, 2007 in Appeal No. SC/252/2007 between RT. HON. ROTIMI CHIBAIKE AMAECHI AND INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (unreported) where it declared Amaechi the one entitled to be in the Governorship seat in Rivers State since he was the lawful candidate of the Peoples Democratic Party at the election and ordered Celestine Omehia (the original 1st respondent) who was returned elected by the original 2nd and 3rd respondents and that Amaechi be sworn in immediately.
On 31st October, 2007,the appellant filed an application before the trial Tribunal praying for an order to substitute the original 1st respondent, Sir Celestine Omehia with Rt. Hon. Chibuike Rotimi Amaechi as the 1st respondent. The Tribunal heard arguments on the relief sought and dismissed it as per the ruling delivered on 3rd December, 2007. Thereafter the original 1st respondent filed and argued an application that his name be struck out as the 1st respondent. The Application was granted on the 4th of December, 2007 leaving the original 2nd and 3rd respondents now 1st and 2nd respondents until judgment was delivered on the 31st January, 2008.
Thereafter the new 1st and 2nd respondents’ only witness testified. At the close of evidence learned counsel for the appellant and respondents adopted their written addresses.
In a considered judgment, the Tribunal held inter alia, at pages 324 and 325 of the record of proceedings:
“It should be noted that this is an election petition which is said to be sui generis. It is unlike an ordinary civil matter where the plaintiff can choose whom (sic) to sue. In an election petition, the petitioner has no choice but to sue the statutory respondent as provided by the relevant Electoral Act. And failure to abide by the provision of the Act (sic) renders the petition incompetent. In the instant case, the relevant Section is 144(2) of the Electoral Act, 2006.
By the judgment of the Supreme Court delivered on 25/10/07 where Sir Celestine Celestine Omehia was ordered to vacate the seat of Governor of Rivers State immediately, the unsuccessful application of the Petitioner to substitute Sir Celestine Omehia with Rt. Hon. Chubuike Rotimi Amaechi and the subsequent striking out of the name of Sir Celestine Omehia from the petition should have dawned on the petitioner that the petition is circumvented and rendered incompetent.
It is trite law that the facts that the parties in this petition consented to continue the hearing up to conclusion does not confer jurisdiction on the Tribunal and we so hold. Any election petition which does not have the declared winner of the said election as the respondent is incompetent, so be this Petition.
Having held that this petition as presently constituted is incompetent, we felt it is unnecessary to deal with the remaining issues as formulated.
Consequently, therefore, we do hereby hold that this petition is incompetent for not joining as the respondent the person deemed to have been declared as the winner of the Governorship Election of Rivers State held on 14/4/07. The petition is accordingly dismissed.”
The appellant was utterly vexed by the ruling and the judgment respectively delivered on 3/12/2007 and 31/1/2008 by the Tribunal and appealed to this Court on four grounds apparently without leave of this Court raised the number of respondents to three by adding the name of Rt. Hon. Chibuike Rotimi Amaechi as the 3rd respondent.
The appellant formulated the following four issues for the determination of the appeal:
“1. Whether in the light of relevant statutory and judicial authorities and under the peculiar circumstances of this case and in view of its facts, the Rt. Hon. Rotimi Amaechi could have been validly, necessarily, competently and successfully joined any earlier than the appellant had sought to have him substitute Omehia (sic).
- In the circumstances of this case and by its facts, could the appellant be rightly be said to have gone to sleep on his judicial due diligence of having his petition competently constituted such as to shut him out from justice on its merits? (sic).
- Whether the Honourable and learned Tribunal correctly, judicially and judiciously construed and applied the relevant statutory and judicial authorities to the facts and circumstances of this case.
- Whether it is a proper exercise of the judicial function of the Honourable Tribunal to create by its own making a judicial stumbling block upon which it would then maroon the quest of the applicant to justice by shutting him out as was done to the appellant in this case.”
Subsequent to the filing of the appellant’s brief which contains four issues on the 13th of March, 2008 (supra), the 1st and 2nd respondents in response on the 20th of March, 2008 filed a notice of preliminary objection to the hearing of the instant appeal. The 1st and 2nd respondents jointly on the same date that is to say 20th March, 2008 filed their joint brief of argument and argued the preliminary objection in its pages 4 to 9.
At the hearing of the appeal on the 20th of October, 2008, J. Elumeze Esq., promptly referred to the preliminary objection raised by the 1st and 2nd respondents to the hearing of this appeal. It is very well settled that a preliminary objection at the hearing of an appeal is an opposition to the hearing of an appeal that should be promptly raised at the beginning of the hearing of an appeal by the respondent’s learned counsel before the learned counsel for the appellant opens his oral submissions on behalf of his clients.
The purpose of a preliminary objection is, if successful, to terminate the hearing of the appeal at the threshold. Furthermore, a court and an appellate Court as in the instant case is in duty bound to first consider a preliminary objection raised during an appeal’ It is a cardinal principle of administration of justice to let the party raising an objection to the hearing of appeal regardless of the frivolity of the objection’ know the fate of his application. A preliminary objection which complies with the mandatory provisions of Order 10 rule 1 of the Court of Appeal Rules 2007 with particular regard to giving the other party three clear days notice setting out the grounds on which the objection is raised has satisfied the necessary foundation for its consideration by the Court. It is pertinent to state that the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which if it succeeds would put an end to the appeal. See NEPA v. ANGO (2001) 15 NWLR (PT.737) 627 @ 45 and SAVANNAH BANK (NIG) PLC v. PRIME MANAGEMENT SYSTEMS LTD (1999) 10 NWLR (PT.621) 160 @ 164; TAMBCO LEATHERWORKS LTD v’ ABBEY (1998) 12 NWLR (PT- 579) 548 @ 554 and 555 NWANWATA v. ESUMEI (1998) 8 NWLR (PT.563)560 @ 666; NDIGWE V. NWUDE (1999) 11 NWLR (PT.626) 314 @ 331.
The sum total of the foregoing principles is that a regularly couched preliminary objection shall not be ignored by the Court irrespective of its hierarchy.
It is instructive also to state that a motion by which a respondent challenges the competence of a suit and thus the jurisdiction of the Court (otherwise called a Notice of Preliminary Objection) is a special procedure whereby the respondent contests the competence of a suit and the jurisdiction of the court and if upheld has the effect of terminating the life of the suit by its being struck out. see GALADIMA v. TAMBA (200)6 SCNJ (PT.I) 196 @ 206.
I have perused the procedure adopted by the 1st and 2nd respondents and by extension the 3rd respondent in filing their notices of preliminary objection to this appeal and I found it flawless.
The notice of preliminary objection dated and filed on the 20th March, 2008 places reliance on the following:
(i) that the 3rd respondent is not properly party (sic) to the appeal and his name is liable to be struck out.
(ii) that the notice of appeal is incompetent and liable to be struck-out.
(iii) that grounds 1 and 2 of the notice of appeal are incompetent and liable to be struck out,
(iv) that Issues 1, 2, 3 and 4 formulated in the appellant’s brief of argument are incompetent and liable to be discountenanced.”
The grounds upon which the notice of preliminary objection are predicated are as follows:
“i. The 3rd respondent was not a party to the proceedings and judgment of the Tribunal from which the appeal arose and no order of Court was obtained to make him a party to the appeal.
ii. Both the interlocutory decision of the Tribunal of 3/12/07 and the final judgment of the Tribunal of 31/01/08 fall outside the purview of Section 246(1) of the Constitution of the Federal Republic of Nigeria 1999, hence are not appealable.
iii. Issues 1, 2, 3 and 4 in the appellant brief of argument (sic) were formulated from incompetent grounds of appeal.
iv. Leave of court was not obtained before the appeal which does not lie as of right was filed”‘
The notice of preliminary objection dated 2nd June, 2008 and filed on 10th June, 2008 filed in behalf of the 3rd respondent’ though not too dissimilar reads in substantial party as follows:
“… 3rd respondent shall contend by way of a preliminary objection that the appeal against him is incompetent and should be struck out.
GROUNDS OF THE OBJECTION
(i) The 3rd respondent was never a party to the proceedings of the Election Tribunal;
(ii) No Court or Tribunal has made any order joining the 3rd respondent as a party to the proceeding (sic);
(iii) Ground 1 of the Notice of Appeal was filed outside the statutory time limit to appeal without an order to regularize same;
(iv) The filing of this appeal against the 3rd Respondent is an abuse of Court Process “”
In sustaining the preliminary objection dated and filed on the 20th of March, 2008 by 1st Elumeze Esq., the learned counsel for the 1st and 2nd respondents on their behalf referred to pages 4 to 9 of their joint brief of argument which he adopted and relied upon and urged the Court to strike out the notice of appeal. The learned counsel for the 1st and 2nd respondents referred to the record of appeal and all the processes of the Tribunal therein including the judgment of 31/01/2008 which gave rise to the instant appeal and submitted as regards the first limb of the preliminary objection that it is indisputable that the Rt. Hon. Chibuike Rotimi Amaechi was arbitrarily joined by the appellant as the 3rd respondent in his notice of appeal as he was not a party to the proceedings before the trial Tribunal. He relied on the cases of A.G. ANAMBRA STATE v. OKEKE (2002) 12 NWLR (PT.782) 575 @ 605 and 618; SANUSI v. MODU (1994) 5 NWLR (PT.347) 732 @ 739; AKANDE v. GENERAL ELECTRIC CO. (1979) 3-4 SC 115 on the impropriety or irregularity of joining parties who were not parties during the trial of the matter at the lower Court on appeal to a high Court without an order of the higher Court or an amendment of the proceedings in the trial or lower Court.
With regard to the 2nd and 3rd limbs of the preliminary objection, the learned counsel for the 1st and 2nd respondents referred to Section 246(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 and submitted that appeals from the Election Tribunals lie to this Court as of right in certain stated circumstances and that the implication of the said Section (supra) is that no appeal lies from the decision of an Election Tribunal to this Court in respect of matters not covered by the section and relied on the cases of OKON v. BOB (2004) 1 NWLR (PT.854) 378 @ 395; AMBARE v. SYLVA (2007) 18 NWLR (PT.1065) 1 @ 19 and 21; REV. DR. J. K. U. v. FAVOUR ENIMIKEMI (SJP v. CHIEF TIMIPRE SYLVA & 5 ORS. (unreported) in Appeal No. CA/PH/EPT/412/2007 delivered on 10/12/07. The learned counsel for the 1st and 2nd respondents expatiated that the judgment of 31/1/08 appealed against did not determine whether any person was validly elected to the office of Governor of Rivers State. All that the Tribunal did in that judgment was merely to consider and uphold the preliminary issue raised by the 1st and 2nd respondents that the petition as couched was incompetent and that that judgment did not determine the merit of the petition. He submitted that such a judgment therefore fell outside the purview of Section 246(1) and therefore not subject to appeal. He further expatiated that that judgment did not determine the issue as to whether any person was validly elected to the office of Governor of Rivers State. He contended that the notice of appeal filed in these circumstances is incompetent.
As regards the ruling of the Tribunal delivered on 3/12/07 refusing to substitute the Rt. Hon. Chibuike Rotimi Amaechi for Sir Celestine Omehia, the learned counsel argued was a decision in an election petition which equally falls outside the purview of Section 246(1) of the Constitution of the Federal Republic of Nigeria and therefore not appealable. The learned counsel for the 1st and 2nd respondents submitted, albeit it hypothetically, that even if the ruling of 3/12/07 could be the subject of an appeal, grounds 1 and 2 of the Notice of Appeal filed by the appellant would still be incompetent because by paragraph 1 of the practice Direction; No. 2 of 2007 stipulating that the notice of such an appeal should be filed within twenty one (21) days from the date the decision/ruling was delivered. He argued that if the ruling of 3/12/07 was appealable, the right of appeal should have been exercised by 24/12/07. The appellant did not file his notice of appeal until 18/2/08 which was well outside the stipulated period of twenty one days’ He therefore submitted that grounds 1 and 2 of the notice of appeal were filed out of time without leave of Court and relied on the cases of ADEYEMI v. R.S. IKE-OLUWA & SON LTD, (1gg3)8 NWLR (PT. 309) 27 @ 55; LAMBERT v. NIGERIAN NAVY (2006)7 NWLR (PT. 980) 514 @ 532 and OGIGIE v. OBIYAN (1997) 10 NWLR (PT.524) 179 @ 195 to 196.
On the 4th limb of the preliminary objection, the learned counsel for the 1st and 2nd respondents submitted that Issues 1, 2, 3 and 4 formulated in the appellant’s brief of argument from the incompetent grounds of appeal are incompetent.
Based on the foregoing arguments and submissions the learned counsel for the 1st and 2nd respondents urged the Court to uphold the preliminary objection on the following grounds:
(i) that the 3rd respondent was not properly joined as a party to the appeal.
(ii) that the notice of appeal is incompetent as it does not fall within provision of Section 246(1) of the Constitution of the Federal Republic of Nigeria 1999.
(iii) that grounds 1 and2of the notice of appeal are incompetent.
(iv) that the issues for determination formulated in the appellant’s brief of argument are based on incompetent grounds of appeal.
In view of the striking similarity in the preliminary objection of the 3rd respondent dated 2nd June, 2008 and filed on 10th June, 2008 it is only apt to consider the argument thereon as embedded on pages 5 to 7 of the brief of argument of the 3rd respondent. The learned senior advocate for the 3rd respondent, L. O. Fagbemi Esq., recapitulated that the appellant’s petition on pages 1 to 5 of the record of proceedings reveals that the petitioner/appellant sued the following as the respondents:
“(i) Sir Celestine Omehia;
(ii) The Independent National Electoral Commission (INEC);
(iii) Chief Rowland Uwah (Resident Electoral Commission, Rivers State)”
The learned senior advocate as regards ground 1 of the preliminary objection pointed out that the 3rd respondent in the instant appeal was not a party to the petition. In the course of the trial, however the petitioner attempted to substitute the 3rd respondent herein for the 1st respondent to the petition. The trial Tribunal refused the application and dismissed it in a ruling delivered on the 3rd day of December 2007. He submitted that it is trite that an order of a Court of competent jurisdiction is valid until it is set aside and relied on the case of ROSSEK v. A.C.B. LTD (1993) 8 NWLR (Pt.312) 382 @ 471 and 472. He pointed out that the ruling of the trial Tribunal that the 3rd respondent in the appeal cannot be made a party to the appeal is still extant. In the face of that ruling of 3/12/2007 the appellant suo motu made the 3rd respondent a party to the appeal without any judgment or order of any Court over-ruling the said ruling. He argued that the addition of the name of the 3rd respondent to the appeal ‘is an abuse of Court process and urged the Court to strike out the name (the 3rd respondent) in the appeal. He relied on the cases of JIMOH v. STARCO (NIG) LTD. (1998) 7 NWLR (PT.558) 523 @ 535/536 and SARAKI v. KOTOYE (1992) 9 NWLR (PT.264) 156 and urged the Court to uphold ground I of the objection and strike out the name of the 3rd respondent from the appeal.
As regards ground 2 of the 3rd respondent’s preliminary objection, the 3rd respondent seeks the Court to consider the propriety of Ground 1 of the Notice of Appeal and Issue 1 formulated therefrom in the appellant’s brief of argument. Learned senior counsel for the 3rd respondent argued that if ground I of the preliminary objection (supra) is upheld, ground 2 of the preliminary objection becomes otiose or a mere academic exercise since the 3rd respondent would have ceased to be a party to the appeal coupled with the fact that he (the 3rd respondent) would have lacked the vires to challenge the competence of an appeal to which he is not a party. Learned senior counsel cited in support the statutory provisions for the time an aggrieved candidate in an election has to vent his grievance before at Election Tribunal. Such time is stipulated as twenty one days (21) from the day the decision of the Election Tribunal is announced. See Section 49(1) of the Electoral Act, 2006. Learned senior counsel equally cited Section 24 of the Court of Appeal Act 2007, possibly out of abundance of caution, on the period of time available to an aggrieved party to appeal as of right in an interlocutory appeal in an ordinary civil cause or matter. He went on to expatiate that on 31/10/2007, the petitioner/appellant by an application sought for leave of the lower Tribunal to substitute the 3rd respondent to the instant appeal for the original 1st respondent to the petition. The lower Tribunal in its ruling of 3/12/2007 refused the application. He contended that Ground 1 of the Notice of Appeal is a challenge to the decision of the lower Tribunal refusing the application for substitution. The said Notice of Appeal was filed on 18/2/2008 and that by simple computation that complaint in ground 1 of the notice of appeal came seventy seven (77) days after: the application for substitution was refused by the trial Tribunal. He argued that the period of seventy seven (77) days is outside the statutory period of twenty one (21) days stipulated in Section 149(1) of the Electoral Act 2006 or by extension Section 24 of the Court of Appeal Act allowed to an aggrieved party in election matters to file a notice of appeal. He therefore submitted that an appeal filed outside the statutory limit to appeal is incompetent and the Court cannot exercise jurisdiction on such appeal and cited in support the case of ASORE v. LEMOMU (1994) 7 NWLR (PT.356) 284 @ 290/291. He urged the court that on the strength of the above to strike out Ground 1 of the Grounds of Appeal and Issue 1 formulated on the ground.
Chief Assam E. Assam, the learned senior advocate for the appellant referred to the two replies to the preliminary objections filed by the two sets of respondents deemed properly filed on 23/4/2008 and 26/5/2008 respectively which he adopted and relied upon. The two replies are respectively on pages 2 to 17 and pages 2 to 6 of the two sets of briefs in his attempt to douse the effect of the preliminary objections on the instant appeal. I have read the two sets of briefs filed by the appellant and I observed the learned senior counsel for the appellant said that the preliminary objection of the 3rd respondent is are petition of the arguments on the preliminary objection filed by the 1st and 2nd respondents and that he would do no more than adopting the reply to the portions in the 1st and 2nd respondents’ brief of argument that appertain to the preliminary objection raised by the 3rd respondent.
The learned senior counsel went on to submit that the preliminary objection of the 1st and 2nd respondents is grossly misconceived. He argued that the Rt. Hon. Rotimi Amaechi was a proper party to this appeal having been returned as the person who won the election. He furthered his argument at an inordinate length that he saw no impropriety adding him (Rt. Hon. Rotimi Amaechi) as the 3rd respondent when the decision of the trial tribunal did not include him as one of the two respondents in the judgment delivered on the 31st of January, 2008.
On the competency of the notice of appeal, he submitted that the contention of the respondents that the notice of appeal is incompetent is clearly misconceived for the following reasons:
“(a) There is no right of appeal against interlocutory decision in election matters.
(b) The Grounds of Appeal namely grounds 1 and 2 and the supporting particulars are based on the final decision of the Tribunal.
(c) The issues formulated derive from the valid grounds of appeal (sic) against the final decision of the Tribunal.
(d) The final decision of the Tribunal was based on its earlier ruling on the issues giving rise to this appeal. Therefore those self same issues which must be determined before a decision can be reached on their merits in this case.”
I have carefully reviewed the state of the record of proceedings and the submissions in the briefs of argument by each of the learned counsel in this appeal and I praise their individual industry. I am, however, of the opinion that what is of particular moment in the appeal is to consider what is the propriety of joining the 3rd respondent who was not a party in that Tribunal and against whom no order was made by that Tribunal. I state that from the record of appeal and all the processes and proceedings of the trial Tribunal contained therein including the judgment of 31/01/2008 giving rise to this appeal, it is beyond dispute that the 3rd respondent in the instant appeal appeared to have been arbitrarily joined by the appellant in his notice of, appeal filed on 18/2/2008. This fact is borne out on page 307 of the record of appeal which, inter alia, bears the Petitioner (now the appellant) and the 1st and 2nd respondents who still retain the status on appeal titled JUDGMENT and page 327 which bears the above mentioned parties and Rt. Hon. Chibuike Rotimi Amaechi as the 3rd respondent on the NOTICE OF APPEAL dated and filed on 18/2/08. A situation which was not dissimilar to the instant appeal was dealt with by the Supreme Court in the case of A.G. ANAMBRA STATE v. OKEKE (supra) where the Supreme Court held as follows at pages 605 and 618:
“Whether a person has been properly named as a party to an appeal or not is not determined by acquiescence but is a matter of law determined by whether such person was a party to the proceedings in which the decision appealed from was made; or whether he was the person directly affected by the decision; or was a person who, though not a party to the proceedings has been made a party by order of Court.
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Strange enough, the plaintiffs from nowhere in the Court of Appeal again brought in the 2nd and 5th defendants as respondents in the appeal without any order of the Court or any amendment of the proceedings. I think this procedure is manifestly irregular and unjustifiable. The 2nd and 5th defendants having been discharged from the proceedings by a valid and subsisting order of the trial Court, the Court below lacked jurisdiction to entertain the purported appeal against them. In my view, the Court of Appeal was not competent and had no jurisdiction to entertain the purported appeal against the 2nd and 5th defendants since they were at all material times no longer parties to the committal proceedings.”
See also SANUSI v. MODU (supra) @ page739 and AKANDE v. GENERAL ELECTRIC CO. (supra).
Apparently, the foregoing authority is on all fours with the grave error committed by the appellant in the instant case. Thus, the application to substitute the original 1st respondent, Sir Celestine Omehia with the Rt. Hon. Chibuike Rotimi Amaechi as the 1st respondent had since been considered and refused by the trial Tribunal on 3/12/07 when the said application was struck out coupled with the fact that the original 1st respondent on the same date (3/12/07) filed a motion on notice praying for an order of the Tribunal to strike out his name as the 1st respondent from the petition. Arguments were proffered on that application and the trial Tribunal ruled on 4/12/07 granting the application by striking out the name of Sir Celestine Omehia the 1st respondent from the Petition. The original 2nd and 3rd respondents survived the series of applications until completion of taking evidence and delivering of judgment on 31/12/2008 although those two respondents were referred to as the 1st and 2nd respondents. The two rulings on 3/12/07 and 4/12/07 are still extant without being disturbed by any Court of competent jurisdiction nor was any leave of Court sought to vary them and in particular that of 3/12/07. It is trite that an order of a Court of competent jurisdiction is valid until otherwise set aside. See ROSSEK v. A.C.B. LTD (supra) @ pages 471 and 472. This inadvertence on the part of the appellant rendered the notice of appeal incompetent. In other words, the addition of the name of the 3rd respondent (the Rt. Hon. Chibuike Rotimi Amaechi) to the appeal is an abuse of Court process and the Court is duty bound to put an end to such abuse by striking out the name of the 3rd respondent. I accordingly strike out the name of the 3rd respondent in this appeal. See JIMOH v. STARCO (NIG) LTD (1998)7 NWLR (PT.558) 523 @ 535 and 536; SARAKI v. KOTOYE (1992) 9 NWLR (PT.264) 156.
Section 246(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as the 1999 Constitution) on appeal from the Election Tribunal to this Court is germane for the consideration of the 2nd and 3rd limbs of the preliminary objection raised by the 1st and 2nd respondents. The said Section reads:
“246(1) Any appeal to the Court of Appeal shall lie as of right from –
(b) decisions of the National Assembly Election Tribunal and Governorship and Legislative Houses Election Tribunals on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or a House of Assembly of a State under the Constitution.
(ii) any person has been validly elected to the office of Governor or Deputy Governor, or
(iii) the term of office of any person has ceased or the seat of any such person has become vacant.”
(Underlining for emphasis).
The purport of the foregoing provisions is that no appeal lies from the decision of the Election Tribunal to this Court in respect of matters not covered by them. The case of OKON v. BOB (2004) 1 NWLR (PT.854) 378 @ 395 is pertinent where it was held, inter alia:
“It can be seen that Section 246(1) of the 1999 Constitution regulates the right to appeal to the Court of Appeal from the Election Tribunals. Any appeal will only lie from the Election Tribunal to the Court of Appeal if there is any decision by the Election Tribunal whether any person has been validly elected as a member of the National Assembly, the office of the Governor or the Deputy Governor as the case may be. Such an appeal will only come within the provisions of section 246(1)(b) of the 1999 Constitution if- there is any determination of the petition on the merits and any other decision made in the course of the election proceedings which is a decision in an election petition is not covered by section 246(1)(b).”
(Underlining for emphasis).
See also AMGBARE v. SYLVA (2007) 18 NWLR (PT.1065) 1 @ 19 and 21.
In view of the extent of coverage of what is appealable to the Court of Appeal from the decision of an Election Tribunal as enunciated in the above cited case. I entirely agree with the submissions of the learned counsel for the 1st and 2nd respondents and by extension the learned senior counsel for the 3rd respondent that the judgment delivered on 31/01/08 was squarely on the competence of the appellant’s petition filed on 7/5/07 wherein it was decided that the petition is incompetent. In similar breath the ruling delivered by the trial tribunal on 3/12/07 was on an application for substitution of the Rt. Hon. Chibuike Rotimi Amaechi for Sir Celestine Omehia. The ruling is a refusal of the substitution sought by the appellant. It is obvious from the circumstances of the ruling and the judgment respectively delivered on 3/12/07 and 31/1/2008 that the trial tribunal did not deal with the merits of the petition which at its paragraphs C and D reflected at page 5 of the record of proceedings seek:
THE RELIEFS SOUGHT BY THE PETITIONER ARE AS FOLLOWS:
FOLLOWS:
- A Declaration that the 1st respondent was not a qualified candidate to contest the said election as at the 14th day of April, 2007, when the election was held.
- A Declaration that the Petitioner was validly nominated by his Political Party, but was unlawfully excluded from the above election by the 2nd Respondent.
D. PRAYERS SOUGHT BY THE PETITIONER
- That the Governorship Election for Rivers State conducted on the 14th of April, 2007 be nullified and a fresh election be conducted.”
From the reliefs sought by the petitioner/appellant (supra) it is apparent that the trial Tribunal did not deal with the merits of the petition. It instead dealt with matters outside the purview and/or intendments of Section 246(1)(b) of the 1999 Constitution (supra). The two decisions were not arrived at on the merit in the context of election matters within the contemplation of Section 246(1)(b) of the 1999 Constitution. They were instead decisions made in the course of an election petition and not on an election petition. A pertinent question is: what is the effect of these two types of decisions vis-a-vis appeal in election matters? I venture to answer this question by saying that the phrase “a decision on an election petition” means a determination of any question whether any person has been validly elected as a member of the National Assembly or a House of
Assembly of a State under the 1999 Constitution or to the office of Governor or Deputy Governor or that the term of office of that person has eased or the seat of any such person has become vacant. That is to say it is a determination on the merit. On the other hand any other decision made in the course of the election proceedings will only be a decision ” in an election petition” The consequence of the two sets of proceedings in an election matter is that a decision on an election petition is appealable. See ANTHONY v. JOSEPH OBADAN & 3 ORS. (1989) 5 NWLR (PT.120) 185; ORUBU v. N.E.C. (1988)5 NWLR (PT.94) 323.
In view of the foregoing section 246(1) of the 1999 Constitution only gives jurisdiction to the Court of Appeal to hear and determine appeals on the merits in respect of any question as stated in section 246(1) of 1999 Constitution (supra). I am fortified in holding that since the ruling and judgment respectively delivered on 3/12/2007 and 31/01/2008 were not on the relies sought in the petition filed on 7/5/2001, they are not appealable.
‘Assuming the ruling of 3/12/07 is appealable, the question is: what is the fate of Grounds 1 and 2 of the notice of appeal filed on 18/2/2008? The answer to this question is found in paragraph I of the Practice Directions No. 2 of 2007 which reads:
“1. The appellant shall file in the Registry of the Tribunal his notice and grounds of appeal within 21 days from the date of decision appeal against.”
Practice Directions and in particular the preamble to the Electoral Act 2006 No. 2, Section 149 and Practice Directions reads:
“…For the purpose of appeals coming to the Court of Appeal under Section 149 of the Electoral Act 2006 No.2 this Practice Direction shall be strictly observed by all parties…”
(Underlining mine for emphasis)
Paragraph 1 of the Practice Directions No. 2 is a mandatory provision which requires strict compliance. Practice Directions made by the President of the Court of Appeal in election matters constitute the Rules of Court in election appeals. They cannot be circumvented. See N.A.A. v. OKIIRO (1995) 6 NWLR. (PT. 403) 510; OJUGBELE v. LAMIDI (1999) 10 NWLR (PT. 621) 167. The appellant apparently did not comply with this mandatory provision. He instead filed his notice of appeal against the ruling delivered on 3/12/07 and 18/2/08 which by simple computation is about 80 days after the ruling was delivered by the trial Tribunal. The lapse of time is quite inordinate and accordingly inexcusable on the part of the appellant who did not in the prevailing circumstances seek leave of the Court to make amends. In view of the outrageous delay in filing the notice of appeal against the ruling delivered on 3/12/07, the said notice and its grounds I and 2 are rendered incompetent. See ADEYEMI v. Y.R.S. IKE OLUWA S. SONS LTD (supra) @ page 55; LAMBERT v. NIGERIAN NAVY (supra) @ page 532.
In sum, I uphold the two sets of preliminary objections and strike out the petition instead of dismissing it because the notice with the grounds of appeal is incompetent. The appeal is accordingly dismissed.
No costs are awarded.
Other Citations: (2008)LCN/2962(CA)
