James G. Orubu V. National Electoral Commission & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C.

The appellant was a candidate in the Local Government Elections which took place throughout Nigeria on the 12th day of December, 1987. He contested together with the 14th respondent for the chairmanship of Warri Local Government Council in Bendel State. The appellant was not satisfied with the result of the election by which the 14th respondent was declared the winner. The appellant, therefore, brought a petition against the 1st to the 13th respondents in the High Court of Bendel State holden at Warri. The last paragraph of the petition reads as follows-

“38. By their conduct, acts, omissions, dereliction of functions and usurpation thereof as averred in sundry places in this petition, the Respondents have jointly and severally also breached and committed offences against the Provisions of Decree No.37 of 1987 generally and particularly against Section 9(3) thereof; paragraphs 16,21(1),24 and 31 of Schedule 1 thereto as well as subsections 10(3),(5), (6) and (7) of the Schedule to Statutory Instrument (S.L) 19 of 1987 cited as the Transition to Civil Rule (Guidelines for Local Government Elections) Order, 1987.

WHEREFORE your Petitioner prays that it may be determined that the election in respect of the affected Wards was void and be declared as such; and that no candidate be announced as having been elected chairman of the Warri Local Government Council in view of the facts, events and circumstances connected with and/or arising from the election as averred herein.

Your Petitioner also prays for any further relief or order as this Hounourable Court may deem fit to grant or make in the circumstances of this Petition.”

On the 29th day of January, 1988, that is, twenty-three days after the petition was filed, the appellant brought an ex-parte application for the following prayers to be granted-

“1. Leave to hear the motion on 29th day of January, 1988 (that is the very day it was filed)

2. An order making the party sought to be joined (that is Mr. E. O. Asin – the 14th respondent) a party to this petition.
3. An interim injunction restraining the Party sought to be joined from being sworn in as a chairman for Warri Local Government Council Area (sic) pending the determination of this Suit. AND for such further order or orders as this Honourable Court may deem fit to make in the circumstances. “(parenthesis mine).

The ex-parte application was heard, on the day requested by the applicant, by Omoluabi, J. who gave the following ruling-

“Order is granted as prayed. Accordingly, E. O. Asin is hereby restrained from being sworn in as a chairman for Warri Local Government Council Area (sic) pending the determination of this suit whose hearing has been fixed for February 11. 1988.

2. It is hereby ordered that this order shall be served on the said E. O. Asin forthwith together with all the other processes issued in this suit.”

Before the hearing date fixed, the 14th respondent brought a motion on notice before the High Court in the following terms-

“TAKE NOTICE that this Honourable Court will be moved on Thursday the 11th day of February, 1988 at the hour of 9 (nine) O’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the Respondent. Applicant herein praying this Honourable Court for an order discharging or vacating the Exparte order granted by this Honourable Court on the 29th day of January, 1988 restraining E. O. Asin from being sworn in as a Chairman for Warri Local Government Council Area (sic) pending the determination of the substantive suit, without being heard.

AND for such further and/or other orders(s) as to (sic) this Honourbale Court may seem (sic) fit.”

Exhibited to the affidavit in support of the motion is the certificate of declaration of the result of the election in question. The certificate (Exhibit C) reads-

NATIONAL ELECTORAL COMMISSION No. 81976

FORM EC.8

DECLARATION OF RESULT OF POLL

WARRI LOCAL GOVERNMENT AREA CONSTITUENCY.

I certify that having carried out my duties and formalities required by the Electoral Law, the result of the poll carried out in the WARRI LOCAL GOVERNMENT AREA Constituency on the 12th day of December, 1987 is as follows in descending order of the number of votes each candidate received.

CHAIRMAN ELECTION RESULTS:-

Candidate MR. E. O. ASIN No. (1) received 65,724 Votes.

Candidate MR. JAMES G. ORUBU No. (1111111) received 27,507 Votes.

Candidate DR. R. TOSANWUNMI No. (11111111) received 4,499 Votes.

Candidate Chief F. O. EDE (111) received 3,629 Votes.

Dated this 14th day of December, 1987.

Signed (J. E. AGBEJULE)

Returning Officer,

(J. E. AGBEJULE)

ELECTORAL OFFICER

WARRI L.G.A.

Signed:

Police Officer i/c Collation Centre”.

The petition came up for hearing on the 11th day of February, 1988 but had to be adjourned, by consent of counsel to the parties, to the 24th day of February, 1988. On the following day, that is, the 12th day of February, 1988, the 14th respondent filed another motion on notice praying to amend his pending application, quoted above, by adding the following prayers to it-

“1. That the said Mr. E. O. Asin be struck-out of the action (petition) having been improperly joined.

2. In the alternative that the Petition be dismissed.

GROUNDS

(a) That the order against E. O. Asin was Ex-parte.

(b) That the pending and/or petition and processes of the Petitioner disclose no reasonable cause of action, are vexatious, frivolous and an. abuse of the process of Court, being contrary to the Local Government Election Decree, Schedule 3, Paragraphs 2 and 5.”

The two pending motions brought by the 14th respondent were heard together on the 24th day of February, 1988. Counsel for the 14th respondent stated that the applications were brought under the provisions of paragraph 51 of Schedule 310 the Local Government Elections Decree, 1987 (No.3 of 1987); subparagraph (1) of which states-

“51. (1) Subject to the express provisions of this Decree, the practice and procedure of the Court in relation to an election petition shall be assimilated as nearly as may be to the practice and procedure of the High Court in the exercise of its Civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them conveniently applicable, as if the petitioner and the respondent were respectively the plaintiff and respondent in a civil action.”

He stated in support of the applications that by virtue of the provisions of paragraph 2 of the Schedule 310 Decree No. 37 of the 1987, an election petition could only be presented 10 the High Court within one month after the date on which the election was held. Counsel then submitted that by the 29th day of January, 1988 when the 14th respondent was joined in the petition, it was no longer possible to bring an election petition against the 14th respondent, since the election in question took place on 12th December, 1987.

Counsel to the 14th respondent said that it was wrong for the High Court to join the 14th respondent on 29th January, 1988 as respondent to the petition. He therefore urged the High Court to vacate the order for the joinder of the 14th respondent. Counsel submitted that the form in which the appellant’s petition was presented did not conform with the provisions of paragraph 5 of Schedule 310 the 1987 Decree. He finally asked the High Court to discharge the order of interim injunction granted to the appellant restraining the 14th respondent from being sworn in as chairman of Warri Local Government Council.

Omoluabi, J. who heard the applications ruled as follows”

RULING

Having heard counsel on both sides and considered the averments in the supporting affidavit(s) and counter-affidavit(s) and considering the applicant’s counsel argument in this application and in particular the effect of para. 50 and 51 of Schedule 3 of Decree No. 37 of 1987 and the fact that the petition herein was filed on 6/1/88, and in order not to allow mere technicalities to defeat the cause of justice, it is my considered view that this application fails and it is accordingly dismissed in toto. In view of the contents of the petition; the order made herein on 29/1/88 is hereby reaffirmed and shall remain inforce pending the final determination of this election petition. No order as to costs.”

I have already quoted the provisions of paragraph 51 subparagraph (1) of Schedule 3 to the 1987 Decree, which must be the provisions that the learned Judge had in mind when he wrote the aforesaid ruling. Paragraph 50 of Schedule 3 reads –

“50. (1) Non-compliance with any of the provisions of this Schedule, or with any rule of practice for the time being in force, shall not render any proceedings void unless the court shall so direct but such proceedings may be set-aside either wholly or in part as irregular, or amended or otherwise dealt with in such a manner and upon such terms as the court shall think fit to ensure substantial justice.

(2) (2)No application to set aside any proceeding for irregularity shall be allowed unless made within reasonable time, or if the party applying has taken fresh step after knowledge of the irregularity.

(3) Where an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the notice of motion.

(4) No objection shall be made that a certified copy has been used instead of a duplicate or a duplicate instead of a certified copy.

(5) An election petition shall not be defeated by any objection merely as to form.”

Dissatisfied with the ruling of the learned judge, the 14th respondent appealed against it to the Court of Appeal. The following were the grounds of the appeal:”

1. The learned trial judge erred in law in joining the 14th Respondent as a party to the above matter when the petition against him was time barred and would then be deprived of the benefit of relevant Decree.
2. The learned trial Judge erred in law in failing to consider at all the implications of Section 37 (2) of the Local Government Election Decree, 1987 on the issue of interim injunction and therefore came to a wrong decision on the issue.
3. The learned trial judge erred in law in failing to direct his mind on the issue of balancing of hardship on the application to discharge the injunction and thereby came to a wrong decision in law.
4. The learned trial judge erred in law in equating the statutory requirements of the Electoral law to mere technicalities which should not affect the hearing of the petition whereas it goes to jurisdiction and thereby come to a wrong decision in law.”

Briefs of argument were exchanged by the parties in the Court of Appeal. The appellant herein was one of the respondents in that appeal. A preliminary objection was raised in his brief of argument. The grounds of the objection were-

(1) There being as yet no decision on or determination of, the Petition or the rights of the parties thereto by the trial Court, the 14th Respondent/Applicant has no right of appeal to this Honorable Court: and

(2) Further and/or in the alternative, the decision of the lower Court being interlocutory and the grounds of appeal filed being based on questions of facts, mixed law and facts, the 14th Respondent/Applicant required leave of the Court below or this Honourable Court to appeal, which he neither sought nor obtained before purporting to appeal at this stage of the proceedings.”

At the hearing of the appeal, arguments were heard by the Court of Appeal on both the preliminary objection and the appeal. In its judgment the Court of Appeal (per Ogundare, J.C.A. with which Mustapher and Ndoma-Egba, JJ.C.A. agreed) stated as follows as regards the preliminary objection-

I have given careful consideration to the submissions of Dr. Odje, particularly his reference to Onitiri v. Benson, (supra) (5 F.S.C. 150) and the previous Electoral Regulations. True enough they are provisions in the Local Government Elections Decree, 1987, No. 37 and the Third Schedule thereto that are in pari materia with some provisions in the earlier Regulations. The Federal Supreme Court recognised in Onitiri v. Benson, that the 1959 Regulations, like Decree No. 37 of 1987, did not expressly confer any right of appeal to that Court from the decision of the High Court on an election petition. After giving full consideration’ to the submissions of learned Senior Advocate, Dr. Odje, I must say that I am not persuaded that we should depart from our earlier decisions on the right of appeal in an election petition under Decree 37 of 1987. The first limb of the preliminary objection failed and it is hereby over-ruled by me.

Dr. Odje had argued in the alternative that the appeal now before us was incompetent in that leave of the court below or of this Court was not sought nor obtained before the appeal was lodged.

We have ruled in Gbe v. Esewe (1988) 5 NWLR (pt.93) 134 in the Court of Appeal case No. CA/8/76 M2/88 (1988) 4 NWLR (pt.89) 435 and Itegbe v Professor Awa (unreported, Court of Appeal case No. CN/8/96m/88) (both Judgments read on 26th June, 1988) that under Section 221 (1) of the 1979 Constitution, leave to appeal is required before an aggrieved party in an election petition under Decree No.37 could exercise his right of appeal. Mr. Akinrele had, however, argued that as the appeal was against the grant of an injunction the appellant had right of appeal as of right under Section 220(1)(g)(ii) of the Constitution and that this point was not considered in Gbe and Itegbe. Both these cases were not concerned with the grant of injunction and, therefore, the point did not arise in them. Nor was it argued in Onyia v. Onianwa (unreported, Court of Appeal case No. CN8/106/88 judgment read on the 1st of June, 1988) which must now be considered as having been decided per incuriam.

Section 220(1)(g)(ii) of the Constitution provides:

“220. – (1) An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases (g) decisions made or given by the High Court-

(ii) where an injunction or the appointment of a receiver is granted or refused’.

It is not in dispute that the appellant herein sought to challenge the grant by the court below of an order of interim injunction in favour of the petitioner/respondent. That being so, I agree with Mr. Akinrele that he had a right to challenge that order. He is also challenging in this appeal the order of the Court below joining the appellant as co-respondent to the petition. He can only appeal against that order of joinder with leave and as leave has not been sought nor obtained the appeal against the order of joinder is incompetent and is accordingly struck-out.”

The Court of Appeal then proceeded to consider the appeal. Before allowing the appeal against the grant of interim injunction to restrain the 14th appellant from being sworn in as Chairman of Warri Local Government Council, it observed that had Omoluabi, J.

“…. given due consideration to Section 37 of Decree No.37 of 1987 he would not have made the order of injuction he made. By his order, the Local Government has been without a Chairman since 29/1/88 – a rather unpleasant situation in the circumstance., Then it made the following consequential orders-

“The order of injunction made by the Court below on 29/1/88 and re-affirmed on 24/2/88 restraining the appellant from being sworn in as Chairman of Warri Local Government is hereby set aside. The appellant is entitled to the costs of this appeal which I assess at N400.00 to be paid to him by the petitioner/respondent I also award N150.00 costs against the petitioner/respondent and in favour of the 2nd -11th respondents jointly.”

It is against the decision of the Court of Appeal that the appellant has appealed to this Court on 3 grounds. These are-

“1. There having as yet no decision on, or determination of the election petition or the rights of the parties thereto by the trial Court, the Court of Appeal lacks jurisdiction to hear the 14th respondent’s appeal in this matter, the condition precedent to its assumption of jurisdiction (i.e. delivery of final judgment therein) not having been fulfilled as laid down in Madukolou & Ors. v. Nkemdilim, (1962) 1 All N.L.R. (Part 4) 587 at p. 595.

2. The Court of Appeal erred in law in interpreting Section 220 (1)(g)(ii) of the Constitution of the Federal Republic of Nigeria, 1979 as conferring appellate jurisdiction on it in this case and this entitling the 14th Respondent to appeal as of right against the interlocutory injunction granted against him by Warri High Court.

PARTICULARS

The provisions of Section 220(1)(g)(ii) of the Constitution are relevant only in respect of appeals in ordinary civil cases, and are inapplicable in instant proceedings which are election and special proceedings governed by special statutory provisions with respect to appeals arising therefrom, to wit, Sections 36 and 37 of the Local Government Elections Decree No. 37 of 1987 and paragraphs 28 (2) and 51(2) of Schedule 3 thereto.

3. The Court of Appeal erred in law or misdirected itself in law in holding:

“Both these cases (CA/8/76 M2/88):

Chief T. Gbe v. Apostle Paul Esewe & Ors.

and CA/8/96M/88: Itegbe & Anor. v. Prof. Awa & Ors.) were not concerned with the granting of an injunction and therefore the point does not arise in them.”

When:

(a) The first case (Gbe’s case CA/8/76M2/88) involves precisely the grant of an injunction by the Warri High Court.

(b) The second case (Itegbe’s case CA/8/96M/88) also involves the relief of interlocutory injunction which was however refused by the Election Court.

(c) Section 220 (1)(g)(ii) of the Constitution deals with cases in which an injunction is either granted or refused.

(d) The Court of Appeal was bound to follow its two earlier decisions specified in (a) and (b) above not held by it to have been decided per incuriam.

4. Having agreed that the regulations applicable in the case of Onitiri v. Benson, (1960) V. F.S.C. 150 are in pari materia with the provisions in the Local Government Elections Decree No. 37 of 1987, the Court of Appeal erred in law in not following the case of Onitiri v. Benson (supra) in which the Federal Supreme Court authoritatively interpreted Regulations 9, 11 and 69(2) of the Federal Legislative Houses (Disputed Seats) Regulations L.N. 247 of 1959, which said Regulations are respectively in pari materia with Sections 36 and 37 of the Decree No. 37 of 1987 paragraphs 28(2) and 51(2) of Schedule 3 thereto.”

Three briefs of argument were filed by the parties. The first of these was filed by the appellant. A second brief was filed on behalf of the 1st to 13th respondents, while the third brief was filed by the 14th respondent. The issues for determination by this Court are formulated in the appellant’s brief in form of questions, to wit –

“1. Does an appeal lie to the Court of Appeal from the interlocutory decision of the High Court which granted an interlocutory injunction against the 14th Respondent in the instant election petition

2. When does an appeal lie from the High Court to the Court of Appeal in respect of election proceedings under the Local Government Elections Decree No. 37 of 1987
3. Is the judgment of the Court of Appeal complained’ of, a decision within the con of Section 36(2) of Decree No.37 of 1987, which enjoys the protection of “finality’ provided therein
4. What is the legal position of the judgment of the Court of Appeal complained of in the instant case”

These issues were adopted in the brief filed on behalf of the 1st to 13th respondents, but 14th respondent formulated them differently in his brief to be thus-

“(i) In the light of the provisions of Section 220 (1)(g)(ii) of the Constitution of 1979, compared with the State of the 1960 and 1963 Constitutions of Nigeria, do the decisions in the cases of Oyekan v. Akinjide (1965) 1 All N.L. 2001 and Onitiri v. Benson (5 F.S.C. 150) deprive the 14th respondent of a right to appeal against the granting of an injunction to restrain him from being sworn in

(ii) Having regard to the facts of Oyekan v. Akinjide (supra) does the granting of an injunction fall within the realms of interlocutory matters envisaged by paragraph 27(1) of Schedule 3 of Decree No. 37 of 1987, and the said decision itself so as to remove the right of appeal given by Section 220 (1)(g)(ii) of the Constitution

(iii) Was the Court of Appeal not right in assuming jurisdiction

(iv) Having rightly assumed jurisdiction, was the Court of Appeal not right in holding that Section 37 of the Decree No. 37 of 1987 did not contemplate a vacuum after, a contestant had been declared elected, and therefore the trial judge was wrong in granting an injunction to restrain the 14th Respondent from being sworn in as the Chairman of Warri Local Government Council, more especially as the injunction was ordered Ex-parte pending the determination of the suit”

Dr. Odje, learned Senior Advocate, for, the appellant submitted in the appellant’s brief as well as in his oral argument in respect of issue No.1 that an appeal does not lie from the High Court to the Court of Appeal, against a decision of the former in an application before the High Court for interlocutory injunction in an election matter. Learned Senior Advocate, based his submission on the provisions of paragraph 27 sub-paragraph (1) of Schedule 3 to the Local Government Elections Decree, 1987, (No. 37 of 1987), and the decision of the Federal Supreme Court in Oyekan v. Akinjide (1965) 1 All N.L.R. 200. He argued that the provisions of Section 125subsection (1) of the Electoral Act, 1962, which were interpreted in Oyekan v. Akinjide (supra), are in pari materia with the provisions of paragraph 27 sub-paragraph (1) of Schedule 3 to Decree No.37 of 1987. He concluded his argument on the issue by submitting that the Court of Appeal had no jurisdiction to hear the interlocutory appeal.

Replying, Mrs. Ojo, learned Principal State Counsel, for the 1st – 13th respondents adopted the argument in the respondents brief. In the brief, which was prepared by her, learned Principal State Counsel argued that the Court of Appeal has jurisdiction to entertain the appeal by virtue of the provisions of Section 220(1)(g)(ii) of the Constitution of the Federal Republic of Nigeria, 1979, the provisions of which she said are complementary to those of paragraph 27(1) of Schedule 3 to Decree No. 37 of 1987.

In his own reply. Chief Jemide, learned counsel for the 14th respondent sought to distinguish the decisions of Oyekan v. Akinjide (supra) and Onifiri v. Benson (supra) from the present case. He argued that the decisions in those cases do not deprive the 14th respondent of the right of appeal to the Court of appeal which he has been virtue of the provisions of Section 220(1)(g)(ii) of the 1979 Constitution because the decision in Oyekan’s case was based on the interpretation of Section 125 subsection (1) of the Electoral Act, 1962 together with the provisions of Section 117(3) of the Constitution of the Federal Republic of Nigeria, 1963. Although learned counsel for the 14th respondent conceded that Section 125 subsection (1) of the Electoral Act, 1962 is in pari materia with paragraph 27(1) of Schedule 3 to Decree No. 37 of 1987, he argued further that the rights of appeal which the 1979 Constitution has made available to a prospective appellant in an election matter are by far wider than the rights provided by the 1963 Constitution. Chief Jemide then submitted that the provisions of Section 220(1)(g)(ii) of the 1979 Constitution will apply as a supplement to the provisions of Decree No. 37 of 1987, where the latter made no specific provisions. He canvassed further that all the provisions of the Local Government Elections Decree, 1987 are not specific enough to exclude the general provisions of Section 220 (1)(g)(ii) of the 1979 Constitution, which give right of appeal to the Court of Appeal, in interlocutory proceedings pertaining to the grant of injunction. Paragraph 27 sub-paragraph (1) of Schedule 3 to Decree No. 37 of 1987 reads-

“27. (1) All interlocutory questions and matters shall be heard and disposed of before a judge, who shall have the control over the proceedings as a judge in ordinary proceedings of the High Court”.

Admittedly, looking ordinarily at the wording of paragraph 27(1) it does not seem to convey the impression that once a ruling is given in an interlocutory matter in an election petition, there is no interlocutory appeal on the ruling.

However, the impression becomes discarded once it is realised that an election petition is not the same as the ordinary civil proceedings, it is a special proceedings because of the peculiar nature of elections which, by reason of their importance to the well being of a democratic society” are regarded with aura that places them over and above the normal day to day transactions between individuals which gives rise to ordinary or general claims in court. As a matter of delibrate policy to enhance urgency, election petitions are expected to be devoid of the procedural cogs that cause delay in the disposition of the substantive dispute. Hence, the provisions in Sections 36 Subsection (1) of Decree No. 37 of 1987 which reduces the normal time of filing appeal in the Court of Appeal from 3 months to one month; paragraph 2 of Schedule 3 to Decree No. 37 of 1987 which limits the time of filing petition to one month; paragraph 13 of the Schedule which limits the time for filing reply to the petition to 6 days and sub-paragraph 5 of paragraph 50 of the Schedule, quoted earlier in this judgment, which relaxes the technicalities attached to the form of a petition. Similar provisions had been made in similar legislations in the past See Onitiri v. Benson (supra) at p. 154. It was with this policy in mind that the provisions of Section 125 subsection (1) of the Electoral Act, 1962 were interpreted by this Court in Oyekan v. Akinjide (supra). It is not in dispute that Section 125 (1) of the 1962 Act has the same provisions as paragraph 27 (1) of Schedule 3 to Decree No. 37 of 1987. Now in interpreting the former, this Court (per Onyeama, J.S.C.) observed on p. 202 of that report as follows –

“Mr. Agbaje who appeared for the applicants has argued that the combined effect of Section 125 (1) of the Electoral Act, 1962 (No. 31 of 1962) and S.198 (1) of the High Court Law of Western Nigeria, is to permit a party dissatisfied with an interlocutory order in an election petition to appeal with leave of the competent High Court or this Court: Under Section 53(1) of the Constitution of the Federation the High Court was vested with jurisdiction to hear and determine the question raised in the petition; by virtue of Section 53(2) parliament passed the Electoral Act of 1962 Section 125(1) of which provides that:

“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 Court.” This provisions, it was submitted, meant that interlocutory questions and matters in election petitions were to be considered to be of the same nature as interlocutory questions and matters in civil proceedings and subject to the same rights of appeal; and, therefore, the provisions of law regulating appeals from interlocutory orders in civil cases were applicable to appeals from interlocutory orders in election petitions……….

We did not find any merit in this appeal…… The Electoral Act, 1962 was passed by parliament and Section 125 of it sets out the powers of a judge hearing an election petition; these powers include ‘the same control over the proceedings’ as a judge would have in ordinary proceedings of the Court. There is no warrant for construing this action as assimilating an election petition to ordinary civil proceedings for purposes of appeal. It vests the judge with powers of control and does not purport to define the quality of the proceedings on an election petition or prescribe rights of appeal from those proceedings. “(Italics mine)

Chief Jemide contends that there is nothing in the 1979 Constitution to suggest that Section 220 (1)(g)(ii) is restricted to appeals in ordinary civil proceedings only. It is settled that this Court does not ordinarily depart from its previous decision until certain criteria are met. -See Mrs. Bucknor-Maclean & Anor. v. Inlaks Ltd., (1980) 8-11 S.C. 1; Nafiu Surakatu v. Nigerian Housing Development Society Ltd. (1981) 4 S.C. 26; Oduola & Ors. v. Coker & Ors. (1981) 5 S.C. 197 and Akinsanya v. U. B. A. Ltd., (1986)4 N.W.L.R. (Pt.35) 273 at 323. There is no suggestion in this appeal that we should depart from the decision in Oyekan’s case. The provisions of Section 220 (1)(g)(ii) of the 1979 Constitution are general in nature because at its promulgation, the 1979 Constitution had special provisions in subsection (1)(f) of Section 220 of the Constitution pertaining to appeal to the Court of Appeal on questions of election (albeit not local government election). However, subsection(1)(f) was listed under Part 8 of Schedule 2 to the Constitution (Suspension and Modification) Decree, 1984 (No.1 of 1984) as “omitted” from the 1979 Constitution. In other words, the subsection is to be regarded as repealed.

The Supremacy of a Decree over the 1979 Constitution is not in doubt. For Section 1 subsection (2) of the Constitution (Suspension and Modification) Decree 1984 (No.1 of 1984) provides-

“2 Subject to this and any other Decree, the provisions of the said (1979) Constitution which are not suspended by section (I) above shall have effect subject to the modifications specified in Schedule 2 of this Decree.”

These provisions were further elucidated by the preamble to The Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1984 (No. 13 of 1984) which inter alia states-

“AND WHEREAS by Section 1(2) of the said Constitution (Suspension and Modification) Decree, 1984 the provisions of a Decree shall prevail over those of the unsuspended provisions of the said Constitution:”

It follows, therefore, that the fact that the Local Government Elections Decree, 1987 has made specific provisions on election to Local Government Councils is sufficient indication that the unsuspended or modified provisions of the 1979 Constitution, including Section 220(1)(g)(ii) are not to apply to matters connected with local government elections. The maxim generalia specialibus non derogant applies. The submission, therefore, by learned Principal State Counsel, in the brief of argument for the 1st to 13th respondents, that the provisions of Section 220 (1)(g)(ii) are complementary to those of Decree No. 37 of 1987 is untenable. But even if the submission was right, it is clear from the interpretation given to Section 125 (1) of the Electoral Act. 1962. by this Court in Oyekan’s case. which we are bound to follow that there is no appeal from the interlocutory decision of the High Court in election petition.

With respect to issue NO.2 in the appellant’s brief of argument, Dr. Odje contended that an appeal to the Court of Appeal would lie from the decision of the High Court only in respect of the final decision of the High Court. To support this contention, Dr. Odje argued that election proceedings are not the same as ordinary proceedings. They are special proceedings for which special provisions governing the procedure and system of appeal are made. He cited in support of the submission the following cases – Onitiri v. Benson (supra) Oyekan v. Akinjide, (supra) and Chief Collins Obi” v. Chief Sam Mbakwe, (1984)1 S.C. 325; (1984) 1 S.C.N.L.R. 192. Learned Senior Advocate submitted that it is in this connection that the provisions under Sections 36 and 37 of the Local Government Elections Decree, 1987 and paragraphs 28 and 51(2) of the Schedule 3 thereto, were made. He said that although these sections of the Decree and the Schedule thereto do not expressly provide for an appeal to the Court of Appeal in an election petition, their combined effect in the light of the decision in Onitiri v. Benson (supra), is that an appeal lies to the Court of Appeal only from the final decision of the High Court. He therefore submitted that the Court of Appeal was in error when it assumed jurisdiction under Section 220(1)(g)(ii) of the 1979 Constitution to hear the appeal in the present case.

Learned Principal State Counsel argued that the right of appeal in election petitions to the Court of Appeal is attached to the “decision” of the High Court generally and not to its final decision. Such “decision” is defined by Section 277 of the 1979 Constitution to mean any determination of the High Court and that includes “judgment, decree, order, conviction, sentence and recommendation.” This definition, she submitted, is applicable to any order made by the High Court whether such order is interlocutory or final.

Also replying, Chief Jemide argued as follows. The granting of an interlocutory injunction in an election petition is not contemplated by Decree No. 37 of 1987 since the Decree does not envisage, in view of the provisions of Section 37(2) thereof, that an injunction should be granted in favour of a petitioner to the detriment of the candidate declared successful in the election. This distinguishes the present case from Oyekan v. Akinjide (supra) which dealt with the provisions of Section 118 (sic) of the Electoral Act, 1962 that clearly applied to interlocutory matters. Consequently, the decision in Oyekan’s case cannot apply to the present case to deprive the 14th respondent of the right to appeal under Section 220(1)(g)(ii) of the 1979 Constitution to the Court of Appeal against the granting of the injunction by the High Court.

Now Sections 36 and 37 of Decree No. 37 of 1987 provides as follows-

“36 – (1) Notwithstanding any provision permitting any other period of notice, notice of appeal to the Court of Appeal from a decision on an election petition shall be given within one month of the decision in question.

(2) The decision of the Court of Appeal shall be final.

37 – (1) If the High Court shall have determined that a candidate returned as elected was not duly elected, then any candidate declared by the Court as elected shall from the time of the decision of the High Court be deemed to be fully elected until any termination of the appellate Court to the contrary.

(2) If the High Court shall have determined that a candidate returned as elected was not duly elected and that the election was avoided then if notice of appeal from such determination shall have been given within one month, the candidate returned as elected shall, notwithstanding the decision of the High Court, be deemed to have been duly elected for the period until the determination of the Court of Appeal is given on such appeal or the appeal is abandoned.”

And paragraphs 28(1) and (2) and 51(2) to Schedule 3 to Decree No. 37 of 1987 provide –

“28 – (1) At the conclusion of the trial, the Court shall determine whether a person whose election or return is complained of or any other person, and what person, was duly returned or elected, or whether the election was void, and shall certify such determination to the Electoral Officer.

(2) Upon such certification being given the election shall be confirmed, or (Subject to the provisions of Section 37 of this Decree in the event of an appeal) a new election shall be held in accordance with such certification or in accordance with finding upon the determination of such appeal).”

“51 – (2) Subject to the provisions of this Decree, any appeal to the Court of Appeal shall be determined in accordance with the practice and procedure relating to appeals in civil cases in that court.” is true that Decree No. 37 of 1987 has not expressly conferred jurisdiction on the Court of Appeal to hear appeals from the High Court, as it has done in Section 31 of the Decree with regard to the original jurisdiction of the High Court. That section states-

“31. The High Court shall have original jurisdiction to hear and determine any questions whether any person has become an elected member of a Local Government Council.”

However, the only reasonable conclusion that can be drawn by inference, if sections 36 and 37 of the Decree (quoted above) are being read together with the provisions of paragraphs 28(1) and (2) and 51(2) of Schedule 3 to the Decree, is that there is a right of appeal from the final decision of the High Court to the Court of Appeal. The inference extends also to any ruling in interlocutory matters, in view of the provisions of paragraphs 27(1) of Schedule 3 to the Decree (which I have quoted earlier in this judgment) and the decision of this Court in Oyekan v. Akinjide (supra) except that in that case the appeal must be part of the appeal against the final decision of the High Court. Since the provisions of a Decree override those of the 1979 Constitution, then it is incontrovertible that the general provisions of the Constitution will not apply to an appeal from the High Court, unless of course, the Decree makes no provision in that respect. In the present case there was no right of appeal to the Court of Appeal by virtue of the provisions of paragraph 27(1) of Schedule 3 of the 1987 Decree. It follows that the provisions of Section 220 (1)(g)(ii) of the Constitution do not apply to this case and could not have given the Court of Appeal the jurisdiction to hear appeals from the decision of the High Court in interlocutory matters.

The argument of Dr. Odje as regards issue No.3 is brief. It is that the ruling of the High Court against which the 14th respondent appealed to the Court of Appeal was not a final decision of the High Court in the appellant’s petition. As such, the interlocutory decision does not fall under the provisions of Section 36 subsection (2) of the Local Government Elections Decree, 1987. Learned Principal State Counsel argued to the contrary. She submitted, as earlier, that the ruling of the High Court was a “decision” within the con of Section 220(1)(g)(ii) of the 1979 Constitution and therefore an appeal lies to the Court of Appeal. Chief Jemide submitted that the Court of Appeal was right in assuming jurisdiction to hear the appeal. His submission was based on his argument under issues nos. 1 and 2.

The question posed under this issue needs only be answered briefly in the light of the argument advanced and the view which I have already expressed under issues nos. 1 and 2. It is quite clear from what has been stated by me and the provisions of Decree No. 37 of 1987 that the Court of Appeal derives the jurisdiction to hear appeals in petitions on local government elections from the 1987 Decree only and not from the provisions of Section 220(1)(g)(ii) of the 1979 Constitution. Since the decision of the High Court in the present case is not a final decision but interlocutory, then, the Court of Appeal could not by virtue of the provisions of the 1987 Decree, hear an appeal from the decision of the High Court. The Court of Appeal was therefore in error when it held that it had jurisdiction under the 1979 Constitution to entertain and determine the appeal.

On issue no. 4, Dr. Odje contended that the judgment of the Court of Appeal is null and void by reason of the fact that it exercised an appellate jurisdiction which it did not possess. He cited in support of his argument the decisions of this Court in Salati v. Shehu, (1986) 1 N.W.L.R. 198; Kpema v. State, (1986) 1 N. W.L.R. 396 and Lauwers Import-Export v. Jozebel Industries Ltd. (1988)3 N.W.L.R. 429.

Both learned Principal State Counsel and Chief Jemide submitted that the Court of Appeal had rightly assumed jurisdiction.

Once it is established that the Court of Appeal has acted without jurisdiction, there can be no doubt that that exercise could only be an excercise in futility. The jurisdiction of the Court of Appeal to hear appeals in election petitions on local government elections is, as I already stated, limited to appeals in final decisions of the High Court. The present case is an appeal arising from the interlocutory decision of the High Court. It is not part of an appeal against the final decision of the High Court. The Court of Appeal in hearing the interlocutory appeal engaged in an exercise for which it clearly had no jurisdiction. Its decision was therefore null and void – See Madukolu & Ors. v. Nkemdilim (1962) 1 All N.L.R. 587, and I have no hesitation whatsoever in so holding.

Finally, Dr. Odje has referred us to the ruling of this Court in Apostle Esewe v. Chief Gbe & Ors SC. 119/1988 (1988) 5 NWLR (Pt. 93) 134. He said that the facts of that case rest on all fours with the present case but that this court (Obaseki, Uwais, Karibi-Whyte. Kawu and Belgore, JJ.S.C.) held in the former that it had no jurisdiction to entertain the appeal, on the ground that the decision of the Court of Appeal was final by virtue of the provisions of section 36(2) of the Local Government Elections Decree, 1987 Learned Senior Advocate, therefore, invited us to “review, depart from and overrule” the decision in Apostle Esewe’s case. He submitted that the ruling was given summarily without adverting to the decision in Oyekan & Anor v. Akinjide (supra) and gave 4 reasons why this Court should accede to his invitation. These are –

“1. The ruling was based on erroneous and inadequate consideration of both the facts and the law.

2. The ruling was in conflict with the decision of the full court (Brett, Bairamian, Onyeama, Coker and Idigbe JJ.S.C.) in Oyekan & Anor. v. Akinjide (supra).
3. The ruling has led to “considerable confusion” in the courts in the law on local government elections.
4. The ruling is against the public good and interest of speedy trial of election petitions.”

He relied on Bucknor-Maclean & Anor. v. Inlaks Ltd., (1980) 8 -11 S.C. 1 and Surakatu v. Nigerian Housing Development Soceity Limited, (1981) 4 S.C. 26 in support of the invitation.

Learned Principal State Counsel opposed the invitation on the ground that the provisions of Order 8 rule 16 of the Supreme Court Rules, 1985 do not apply and that this Court is functus officio as far as its decision in Apostle Esewe’s case is concerned, in view of our decisions in Cardoso v. Daniel (1986) 2 S.C. 491 at p. 523 and Prince Yaya Adigun v. Attorney-General of Oyo State. (1987) 4 S.C. 272 at pp. 342-344.

Chief Jemide contended, relying on Oduola & Ors. v. Coker & Ors., (1981) 5 S.C. 197 at pp. 230-231 and Akinsanya v. U. B. A. Ltd. (1986) 4 N.W.L.R. (Pt.35) 273 at p.323, that this Court does not depart from its previous decision unless it is shown that such decision has perpetuated injustice or that it has impeded the development of the law or that it is contrary to public policy. He submitted that neither of these have been shown to flow from the decision in Apostle Esewe’s case.

It is indeed well-settled that this Court does not ordinarily depart from its decision unless it is shown that the decision has over a period of time perpetuated injustice through the doctrine of stare decisis or it has impeded the development of law or it is in fact against public policy or the decision was given per incuriam. Furthermore, this Court has no power to sit on appeal over its previous decision because it becomes functus officio once the decision is given. Its power of review is limited by the provisions of Order 8 rule 16 which states-

“The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order as to give effect to its meaning of intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative and substantive point of it be varied and a different form substituted.”

The judgment in Apostle Esewe’s case is not a reserved judgment, in that it was written summarily in Court after a preliminary objection was taken to an application for leave to appeal to this Court against the decision of the Court of Appeal on an election petition in respect of the 1987 Local Government elections. It is quite clear from the decision in Cardoso’s case (supra) and Yaya Adigun’s case (supra) as well as the provisions of Order 8 rule 16 that we cannot sit on appeal to review or overrule the decision in Apostle Esewe’s case.

Secondly, it is not possible to depart from the decision in the case since not a detailed ruling was given so as to enable us examine the ratio decidendi of the decision in order to see whether the principles laid down in Bucknor-Maclean’s case (supra) Nafiu Surakatu’s case (supra) and Akinsanya’s case (supra) have been met. I am therefore satisfied that there is no ground to accept the invitation of Dr. Odje to review, overrule or depart from the ruling in Apostle Esewe’s case.

On the whole, this appeal succeeds, Accordingly, the decision of the Court of Appeal, setting-aside the ruling of the High Court in the interlocutory application, is hereby set-aside with N500.00 costs to the appellant.

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SC.158/1988