Mr. Peter Obi V. Independent National Electoral Commission & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C.

Let me thank counsel for the able manner in which they have put their submissions across to this court.

It needs be said however that these applications would appear to be one of much ado about nothing. The presentation before us and the array of counsel involved notwithstanding, the simple question for resolution is simply whether a Notice of Appeal filed in the Court of Appeal instead of the Federal High Court is void or voidable. Order 3 Rule 2(1) of Rules of the Court of Appeal provides that a notice of appeal shall be deemed filed when filed at the registry of the court of trial. It does not further prescribe that a notice of appeal shall be void if filed in the Court of Appeal rather than the High Court. Further Order 7 Rule 3 of the Court of Appeal Rules provides:

The court may in an exceptional circumstance and where it considers in the interest of justice so to do waive compliance by the parties with these Rules or any part thereof.

I have no doubt that Order 7 Rule 3 above is a saving provision for non-compliance with the provisions of the Court of Appeal Rules.

Most rules of court in Nigeria have similar provisions. These proceedings were commenced in the Federal High Court. The rules of the High Court have similar provision in Order 3 Rule 1. In my view, the non-compliance with Order 3 Rule 2(i) as to the venue to file an appeal would at the highest only confer on the adversary the right to ask the Court of Appeal to pronounce the notice of appeal in question void. It is not by itself self-executing.

Remarkably, the 5th respondent/applicant had known of the irregularity in the filing of the notice of appeal whilst proceedings were pending in that court. He never objected or raised issue about the irregularity. The court below was led into giving the judgment in favour of the 5th respondent/applicant with the knowledge that the notice of appeal was filed not at the High Court but in the Court of Appeal. The 8th respondent, Ifeanyi Okonkwo, had raised the point. If the court below had not at the time struck out the appeal or penalized the appellant/respondent it would be because it thought little of the non-compliance. The 5th respondent who had not then complained cannot now be allowed to complain of an occurrence he had previously thought little of. It would amount to allowing him to approbate and reprobate at the same time. The mistake of applicant’s counsel is to have assumed that the mere filing of the appeal at the registry of the court below renders the appeal void without more. He believes he has a joker he can raise at any stage. This is a wrong assumption. Litigation premised on such approach would amount to or lead to injustice. I am also to state that at the time the alleged notice of appeal was filed in the Court of Appeal on 18/4/07, the records of appeal were all before the Court of Appeal, which situation completely removed the possibility of the court below asking the appellant/respondent to go back to file his appeal at the trial High Court. See Order 1 Rule 22 of the Court of Appeal Rules. The case of The Honda Place Ltd. v. Globe Motors Holding Nig. Ltd. (2005) 7 S.C. (Pt. III) 182, relied upon in counsel’s address only related to an order made by this court upon an application heard in chambers. The order made in chambers was overruled by this court sitting in open court. This is quite a regular situation unlike the situation on hand.

The court has given a final judgment in accordance with its power under Section 235 of the 1999 Constitution. Its jurisdiction to interfere with its judgment falls within a very narrow compass as stated in a number of previous decisions of this court. This is not one of such reasons.

The argument that we should allow the applications to be argued on their merits would appear to be an invitation to us to engage on a wild goose chase. The relevant facts are plain for all to see. It is my view a clear case in which the jurisdiction of this court cannot be invoked. I would accordingly strike out the applications. I make no order as to costs.G. A. OGUNTADE, J.S.C.: I have had the advantage of reading in draft a copy of the leading judgment just delivered by my learned brother, Katsina-Alu, JSC., presiding. This application calls on us to set aside our judgment which was delivered on 14-06-07. The reason relied upon is that the appellant/respondent had filed his appeal to the court below in the same court instead of filing it at the court of trial.

The complaint of the 5th respondent/applicant relates solely to an alleged infraction of the Rules of Procedure in the court below. Order 3 Rule 2(1), provides that appeals shall be filed at the court of trial. If it was not so filed, this gave the right to the applicant to complain to the court below which may or may not use its powers under Order 7 Rule 3(1), to waive such non-compliance. Indeed the 8th respondent before this court raised the matter before the court below and later dropped the matter after it appeared the parties had compromised the matter. The court below then made a formal order on the matter. That order became an appealable order, the same having been made in the course of proceedings. The applicant never appealed against it. When the appeal by the appellant/respondent came before us, the matter was not raised. We gave judgment on the merit and considered all the issues raised in the appeal.

In view of the facts surrounding this application the conclusion to be arrived at is that there is no jurisdiction in this court to alter or review its judgment just because a party wants to raise a matter which it could earlier have raised in the course of hearing but failed to raise. I would also strike out this application.

SC.123/2007(-R)