Ifeanyi Chukwu Okonkwo V Dr. Chris Nwabueze Ngige & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, JSC

The appellant in these appeals heard together on 19/4/2007, was a candidate sponsored by Nigeria Advance party (NAP) for the Governorship election conducted in April, 2003 in Anambra State. Having lost in the election, the appellant challenged the result of the election by a petition filed before the Governorship and Legislative Houses Election Tribunal in Awka, Anambra State which after hearing the petition dismissed it. The Appellant’s appeal to the Court of Appeal, Enugu against the decision of the Tribunal was equally dismissed by the Court in its judgment delivered on 7/7/2003, which had been reported under the title of Okonkwo v. INEC (2004) 1 N.W.L.R. (Pt.854) 242. However, on 9/11/2005, the appellant again filed an application at the Court of Appeal, Enugu for enlargement of time to seek leave to appeal, leave to appeal and enlargement of time within which to file and serve the notice and grounds of appeal against the decision of the Governorship and Legislative Houses Election Tribunal Awka, given on 12/8/2006, in a pending appeal at the Court of Appeal in which the Respondents in the present appeal are parties. The appellant brought his application as a party having interest in the pending appeal. This application was heard by the Court of Appeal which in its ruling delivered on 16/1/2006, dismissed the appellant’s application on the grounds among which was that the application was an abuse of the process of the court. Dissatisfied with the decision against him, the appellant is now on further appeal to this court. PAGE| 2 Although the Appellant filed his appellant’s brief of argument and duly responded to the respective respondent’s briefs of argument filed on behalf of the 2nd Respondent Mr. Peter Obi and the 3rd Respondent, INEC and 449 others in appropriate appellant’s Reply briefs, the 1st Respondent Dr. Chris Nwabueze Ngige who was absent and not represented by counsel at the hearing, did not file any respondent’s brief of argument. In addition to their respondents’ briefs of argument, the 2nd and 3rd Respondents, also filed Notices of Preliminary Objection under Order 2 Rule 9 of the Supreme Court Rules to the appellant’s appeal. The notice filed by the 2nd Respondent, dated 9/3/2006 reads:- “1. By Section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria the Appellant has no right of Appeal to the Supreme Court of Nigeria from the decision of the Court of Appeal in a Governorship Election Petition Appeal. 2. By Section 233 1999 Constitution the Appellant has no right of appeal as of right to the Supreme Court of Nigeria and has not sought leave. 3. Appellant has not presented before the Supreme Court sufficient materials to compel a determination of the appeal on the merits.” As for the 3rd to 449th Respondents, the grounds in support of the notice of preliminary objection are:- “1. By virtue of section 246(1) of the 1999 Constitution of the Federal Republic of Nigeria, the Appellant has no right of Appeal to the Supreme Court. 2. By the combined effect of section 246(1) and (3) of the 1999 Constitution of the Federal Republic of Nigeria, the Appellant cannot appeal a decision of the Court of Appeal before this Honourable Court.” The combined attack on the appellant’s appeal by the respondents was rooted principally on the provision of section 246(1), (2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999. Dr, Onyechi Ikpeazu, learned senior counsel for the 2nd Respondent referred to the provisions of section 246 of the 1999 Constitution and submitted that in the present case where the Court of Appeal heard the appellant’s application in exercise of its appellate jurisdiction on a matter arising from election petition, the decision of the Court of Appeal cannot form the subject matter of appeal to the Supreme Court. This basic state of the law was emphasized, according to the learned senior counsel, by this court in numerous cases, some of which are; Onuaguluchi v. Ndu (2001) & NWLR (Pt.712) 309, (2001) 4 SCM, 145 and Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116, (2005) 12 SCM, 21. Citing a number of cases particularly, Adeyemi v. Attorney General Oyo State (1984) 6 SC 135 and Esan v. Sanusi (1984) 1 SCNLR 353, learned senior counsel concluded that the appellant has no right of appeal to this court against the decision of the Court of Appeal refusing his application for leave to appeal and therefore urged this court to strike out the appeal. PAGE| 3 In the same vein, learned counsel for the 3rd to 449th Respondents, Dr. A. I. Layonu, also emphasized that the interpretation of the provisions of section 246 of the 1999 Constitution by this Court in Awuse v. Odili (supra) is very instructive regarding the finality of the decision of the Court of Appeal arising from decision of Governorships and Legislative Houses Election Tribunal. Learned counsel therefore urged this court to uphold the preliminary objection by declaring the appellant’s appeal incompetent and unconstitutional. The appellant who appeared in person, maintained in his appellant’s Reply brief of argument in answer to the respondents’ preliminary objection that his appeal is quite competent having arisen from his application brought under section 243(a) of the 1999 Constitution at the Court of Appeal. He argued that the jurisdiction of the Court of Appeal having been invoked under the said section 243(a) of the Constitution, his right of appeal to this court was not affected by the decision in Awuse v. Odili (supra), relied upon by the respondents, which decision was predicated on section 246(3) of the 1999 Constitution. Appellant further pointed out that since he was not appealing against the final decision of the Court of Appeal in an election petition matter between Mr. Peter Obi and Dr. Chris Ngige and others delivered on 15/3/2006, his right of appeal was not affected as a person having interest in the pending appeal, relying on the case of William v. Mokwe (2005) 7 SC (Pt. 11) 153 at 157. The claim of the appellant that his application that was heard and refused by the Court of Appeal did not arise from the decision of an election Tribunal, is certainly not born out of the record of this appeal, particularly the terms of the reliefs sought in the application and the affidavit in support thereof. The reliefs sought by the appellant at the court below are: “(a) An order of the honourable court granting leave to the applicant to appeal to the Court of Appeal and or to join in the appeal against the decision of the Governorship and Legislative Houses Election Tribunal, holden at Awka, Anambra State, dated 12/8/2005 in the petition No. EPT/AN/GOV/42/2003 as a person having interest in the matter or to join in the appeal in that capacity. (b) An order for enlargement of time within which to seek “leave” to appeal. (c) An order for leave to appeal. (d) An order for extension of time within in which to appeal. (e) An order seeking leave to appeal on issue of jurisdiction as a new issue, same having not been raised in the tribunal below and is before the Court of Appeal for the first time.” The appellant who also personally deposed to facts contained in the affidavit in support of his application at the court below stated in paragraphs 1 to 6 as follows:- “1. I depose to this affidavit for myself and on behalf of the Nigeria Advance Party, with its mandate and authority, and I am very familiar with the facts in connection to this present application. PAGE| 4 2. That I know as a fact that the existence of the Nigeria Advance Party as a political party is known to law with right vested in it under the statute, and the Electoral Act, 2002. 3. The mandate of the Nigeria Advance Party was unanimously donated to me at its extra Ordinary General Meeting to pursue the case before the Honourable Court as a party interested and to do all acts for the protection of the party’s interest a fact within my personal knowledge and belief. 4. That both I and the Nigeria Advance Party are persons who are affected by the decision now before the Court of Appeal, and are indirectly and consequently persons interested but not a party on the record at the Tribunal below. 5. That both I and Nigeria Advance Party have a common grievance such that the reliefs sought in this appeal is beneficial to all of us, a fact within my personal knowledge and belief. 6. That the Applicant has full interest in the matter, and aggrieved and dissatisfied with the decision of the Governorship and Legislative Houses Election Tribunal, Holden at Awka, Anambra State dated 12/8/2005. The judgment is contained in Vol. 7 pages 6568-7270 of the Record of Appeal, now entered as CA/E/EPT/5/2005, and I am relying on the said record.” The question is whether on the face of the glaring facts coming from the appellant himself in his affidavit and the reliefs sought in his application filed on 9/11/2005 and heard and refused by the Court of Appeal in its Ruling of 16/1/2006, which is the subject of the present appeal, the argument of the appellant that his application at the court below had nothing to do with election or election matters, is not correct. The fact that the appellant’s application was brought under section 243(a) of the 1999 Constitution does not change the character or substance of the then pending appeal, in which the respondents in the present appeal were the only parties, from being an appeal arising from the decision of the Governorship and Legislative Houses Election Tribunal, the proceedings in which are governed by section 246 of the same Constitution. In other words as the pending appeal No. CA/E/EPT/52005, which the appellant was applying for leave at the court below under section 243(a) of the Constitution to join as a party having interest in the matter is an appeal from the decision of the Governorship and Legislative Election Tribunal sitting at Awka, Anambra State, the Ruling of the court below refusing or dismissing his application is a final decision as far as that court is concerned with same status of a final judgment if the appeal were heard and determined pursuant to section 246 of the Constitution. The section reads:- “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 Houses Election Tribunals on any question as to whether: PAGE| 5 (i) any person has been validly elected as member of the 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 of any person has ceased or the seat of any such person has become vacant. (2) ………………………………………………. (3) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.” The relevant provisions of section 246 of the Constitution quoted above are quite clear and unambiguous. From the undisputed facts of the present case, it is not in doubt whatsoever that the appellant’s application that was heard and dismissed by the court below, the decision in the Ruling that emerged and which is now on appeal in this court, concerned a matter arising from election petitions within the scope of sub-section (3) of section 246 of the Constitution. The determination of the rights of the appellant in respect of the matter therefore, terminates at the Court of Appeal, with the Constitution leaving no room whatsoever for such proceedings spilling over to the Supreme Court even if they are brought by virtue of the right of appeal given under section 243(a) of the Constitution. See Onuaguluchi v. Ndu (2001) 7 NWLR (Pt.712) 309 at 321-322, Awuse v. Odili (2003) 18 NWLR (Pt.851) 116 at 151 and Umanah v. Attah (2006) 17 NWLR (Pt.1009) 503 at 527-528, (2006) 12 SCM (Pt. 2), 487 where Kutigi, JSC (as he then was) faced with the same situation as in the present preliminary objection by the respondents had this to say:- “This court has held in a number of cases that it has no jurisdiction to entertain or hear election matters in respect of election to the office of Governor of a State. This is because by section 246(3) of the 1999 Constitution, the decision of the Court of Appeal in respect of appeals arising from election petitions to the office of Governor of a state is final.” The law is well settled that a right of appeal must be clearly conferred by the Constitution or any other statute which is not in conflict with the provisions of the Constitution on the same subject matter. See Onitiri v. Benson (1960) SCNLR 314 (1960) 5 FSC 150, Adeyem1 v. Attorney-General Oyo State (1984) 6 SC 135 and Eyesan v. Sanusi (1984) 1 SCNLR 353. In the result, having regard to all the circumstances of this case, I have come to the inevitable conclusion that this court has no jurisdiction to entertain the appellant’s appeals. The preliminary objections raised separately by the respondents therefore succeed. Accordingly the appeals SC.5/2006 and SC.6/2006 are hereby struck out with no order on costs.

SC.5/2006