Hon. Sunday Ugwa & Anor V Hon. Oji Lekwauwa & Anor (2010)

LAWGLOBAL HUB Lead Judgment Report

A.M. MUKHTAR, J.S.C

This is an appeal against the decision of the Court of Appeal, Owerri Division, which set aside the judgment of the Court of Appeal, Port Harcourt Division. In that judgment Eko JCA in the lead judgment found for the appellants in that court, as follows:-

“Even from the gross results. (sic) That is the raw total votes with the tainted votes the 1st Appellant had majority of the votes from the 7 wards. The Appellants proved the reliefs they sought at the Tribunal. The appeal is allowed in part. The decision of the Tribunal affirming the declaration or return of the 1st Respondent as the winner with the majority of lawful votes is hereby set aside. In its stead, it is hereby declared that the 1st Appellant ought to be returned and he is hereby declared as the person with the majority of lawful votes from the election to the Abia State House of Assembly conducted on 14th April, 2007 in Bende North State Constituency of Abia State.”

By virtue of the provision of section 246 (3) of the constitution of the Federal Republic of Nigeria, the judgment was supposed to be the final judgment, being an electoral dispute. That judgment was the final judgment as far as electoral complaints in respect of the subject matter in the suit was concerned. The 1st Respondent however being dissatisfied with the judgment of the Port Harcourt Division of the court delivered on 27th of January, 2009, went back to court and on 25th February 2009 filed an application praying the court to wholly set aside the said judgment. The Court of Appeal, Owerri Division heard and granted the application and set aside the judgment of 27/1/2009, even though the appellants in this appeal, who were the respondents in the application had contended that the Court of Appeal, Owerri Division had no jurisdiction. Aggrieved by the ruling the appellants have appealed to this court on four grounds of appeal, from which the appellants in their brief of argument formulated four issues for determination. Briefs of argument were exchanged by the parties, to wit there was an appellants’ reply brief of argument, and they were all adopted at the hearing of the appeal.

The 1st respondent filed a notice of preliminary objection, which he argued in its brief of argument. The learned counsel for the 1st Respondent moved it at the hearing of the appeal. The grounds of the objection are as follows:-

“(1) That suit No. SC/143/2010 – SUNDAY UGWA & ANOR Vs HON. OJI LEKWAUWA & 108 ORS now pending in this Honourable court is an abuse of court process as it contravenes sections 246(1)(b) and (3)of the Constitution of Nigeria 1999.

(2) That the appeal arose from a decision of the Court of Appeal in an appeal to that court arising from a legislative House Election Petition Tribunal decision and the Supreme Court therefore lacks the Jurisdiction to entertain the appeal or any proceeding arising there from.”

The learned Senior counsel for the 1st respondent at the hearing of this appeal raised and moved their notice of preliminary objection. The argument canvassed on the objection is contained in their brief of argument.

According to the learned SAN, having regard to section 246(1)(b)(i) and (3) of the 1999 Constitution, the decision of the Court of Appeal in respect of appeals arising from decisions of Election Petition Tribunal concerning Election to the State House of Assembly are final and not subject to appeal to the Supreme Court. Reliance was placed on the authorities of Onuaguluchi v. Ndu & ors 2001 7 NWLR part 712 page 309, Awuse v. Odili 2003 18 NWLR part 851 page 116, Esewe v. Ogbe 1988 5 NWLR part 93 page 134 and Ecoconsult Ltd v. Pancho Villa Ltd 1999 1 NWLR part 588 page 507.

The learned counsel for the appellants in their reply brief submitted that this court has jurisdiction to entertain this appeal as the judgment appealed against is a post final election appeal judgment, and not a pre-judgment interlocutory decision or a final decision. The learned counsel distinguished the present case from that of Onuaguluchi and Awuse supra, and argued that it was because the Court of Appeal Owerri violated section 246 of the 1999 Constitution when it set aside the final Election appeal judgment in CA/PH/EPT/230/2008, that made the appellants to approach the court to determine whether the setting aside of the said judgment was proper, I think it is pertinent that I reproduce and consider the provisions of section 246, around which this discussion revolves.

The relevant provisions read:-

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

(a) ……………………………………………….

(b) Decisions of the National Assembly Election -Tribunals 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 of a House of Assembly of a State under this Constitution.

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

(iii) the term of office or any person has ceased or the seat of any person has become vacant.

(2)…………………………………………

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

I will particularly like to focus my attention on the provision of section 246(3) and the interpretation to be given to that provision. The word I would like to lay emphasis on in that subsection is ‘decision’. What is the meaning of the word ‘decision’ in the con of this provision I will reproduce its definition as stated in Blacks Law dictionary, Seventh Edition. According to this dictionary ‘decision’ is:- “A judicial determination after consideration of the facts and the law, esp., a ruling, order, or judgment pronounced by a court when considering or disposing of a case.”

Now, the pertinent question is, does the present appeal fall within the ambit of the decision envisaged by section 246

Going by the above definition of the word ‘decision’, the judgment of the Court of Appeal, Owerri Division appealed against by the appellants come within the ambit of the provision of section 246(3) of the Constitution supra. On whether this court has jurisdiction to hear this appeal, the answer is obviously in the negative, in view of the said provision of section 246(3) of the Constitution supra, and a plethora of this court’s decisions by which we are bound. In the case of Awuse v. Odili & Ors 2003 18 NWLR part 851 page 11 6, this court emphasized the finality of decisions such as this from the Court of Appeal as follows:-

“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 matter before us now.”

I am fortified by the above finding and categorically state that the present appeal before us is not competent, for it is one envisaged by section 246(3) of the Constitution supra. See also the case of Onuaguluchi v. Ndu and ors 2001 7 NWLR pat 1712 page 309.

It is instructive to note that although there was a decision of the case by the Port Harcourt Division of the Court of Appeal, this was set aside by the Court of Appeal Owerri, Division, which had a concurrent jurisdiction.

Ordinarily, the application should have been before the same panel that gave the first judgment, but the fact that it is not so cannot compromise the provision of section 246(3) supra.

In the light of the above discussion I uphold the preliminary objection raised by the learned Senior Advocate that this court lacks the jurisdiction to hear this appeal. The appeal is therefore struck out, I assess costs at N50.000.00 in favour of each set of respondent, against the appellants.

The learned Counsel for the 2nd respondent also filed a similar notice of preliminary objection which was also moved at the hearing of the appeal.

In the 2nd respondent’s brief of argument, he adopted the argument of the 1st respondent in respect of the preliminary objection as they share the same substratum in their grounds. For this same reason my pronouncement in respect of the 1st respondent’s notice of preliminary objection applies to the 2nd respondents objection, and the objection is also upheld, and the appeal is struck out.

SC.143/2010