Senator Joy Emordi V. Hon. Alphonsus Uba Igeke & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI

The appeal in SC.176/2010 is against the decision of the Court of Appeal, Enugu Division (‘the court below’ for short) handed out on 12th May, 2010. Therein, two applications filed by the appellant were dismissed

It is apt to state briefly the relevant facts leading to this appeal. The appellant, the 1st and 2nd respondents were among the candidates who contested the National Assembly Election for Anambra State North Senatorial District which was conducted on 28th April, 2007. The 6th respondent returned the appellant as the elected candidate at the election. The return of the appellant was challenged vide petitions filed at the Election Petition Tribunal, Awka by the 1st and 2nd respondents, respectively. The Tribunal dismissed both petitions. This prompted the 1st and 2nd respondents to initiate separate appeals at the court below.

Appeal No. CA/E/EPT/78/2008 by the 2nd respondent was heard first by the court below. On 10th February, 2009, it delivered judgment wherein the appeal was dismissed on the ground that failure to join the Presiding Officers who worked at the election was fatal to the petition. Subsequently, the same Division of the court below, partly, differently constituted, heard and delivered judgment in Appeal No. CA/E/EPT/04/2009 initiated by the 1st respondent. In the judgment handed out on 26th March, 2010, the appeal was allowed. The court below reversed the judgment of the Tribunal, set aside the return of the appellant and ordered that the 6th respondent should issue a certificate of return to the 1st respondent as the candidate elected at the said election. There emerged a seeming conflict in the two judgments of the court below.

The appellant thereafter filed two applications before the court below in quick succession. The first application sought for the setting aside of the later judgment of the Court below on ground of being a nullity. The second application required a clarification of the purport and intendment of the two conflicting judgments of the court below. On 12th May, 2010, the court below dismissed the appellant’s applications. The above scenario precipitated the appellant’s appeal to this court seeking, inter alia, a referral on the interpretation of the two judgments of the court below and direction in respect of same.

The 6th respondent filed a Notice of preliminary objection dated 26th October, 2010 urging this court to strike out the appeal on the following grounds:-

(a) The appeal contravenes the provision of section 246 (3) of the Constitution of the Federal Republic of Nigeria 1999.

(b) The appeal is an abuse of the process of this Honourable court as it is targeted at irritating and annoying the respondents and is an affront on the efficient and effective administration of justice in this Honourable court.

(c) The appeal is not only vexatious and frivolous but oppressive and malicious.

On 1st February, 2011, when this appeal was heard, learned counsel for the 6th respondent moved the notice of preliminary objection. The argument canvassed in respect of the preliminary objection is contained in the 6th respondent’s brief of argument filed on 26th November, 2010.

On behalf of the 6th respondent, learned counsel submitted that vide the provision of section 246(3) of the Constitution of the Federal Republic of Nigeria, 1999 the decision of the Court of Appeal in respect of appeals arising from election petitions shall be final.

He submitted that the use of the word ‘shall’ denotes obligation or command which gives no room to discretion. He cited the case of Bamaiyi v. A.G. Federation & Ors. (2001) 12 NWLR (Pt. 727) 468 at 497.

Learned counsel observed that the word ‘final’ connotes that the decision of the Court of Appeal in respect of election petitions is conclusive and never to be re-visited. He cited the cases of Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116 at 153; Onuaguluchi v. Ndu (2001) 7 NLR (Pt. 712) 309; Okonkwo v. Ngige (2007) 12 NWLR (Pt. 1047) 191 at 21B.

Learned counsel submitted that the appellant, who knew that an issues relating to Senatorial Election matters such as her own terminate at the Court of Appeal, ought not to have filed this appeal. He felt that such equates to an abuse of court process. Learned counsel cited the cases of Akintunde v. Ojo (2002) 4 NWLR (Pt. 757) 284 at 302; Jimoh v. Starco Nig Ltd. (1998) 7 NWLR (Pt. 558) 522 at 527; Arubo v. Aiyeleru & Ors. (1993) 3 NWLR (Pt.280) 126 at 142.

Learned counsel urged that the preliminary objection be sustained and the appeal should be struck out for lack of jurisdiction or dismissed for being an abuse of court process.

On behalf of the appellant, learned counsel submitted that the issue before this court arose from a civil matter questioning whether the Court of Appeal has constitutional powers to make two conflicting decisions in respect of the same case without one of the judgments invalidating the other. Learned counsel strongly felt that the issue is a constitutional one and that this court is imbued with jurisdiction to entertain same vide a referral under Section 295 of the 1999 Constitution to the Supreme Court.

Learned counsel felt that the facts of this case appear different from those in the cases of Awuse v. Odili (supra) Onuaguluchi v. Ndu (supra) as well as Okonkwo v. Ngige (supra). Learned counsel observed that the appeal arose from a civil case challenging the conflicting judgments of the Court of Appeal and urging this court to exercise its appellate powers as contained in Section 233 (2) (b) of the Constitution of the Federal Republic of Nigeria 1999 and interpret section 246 (3) of the Constitution as it applies to the Ruling of the Court of Appeal delivered on the 12th day of May, 2010. Learned counsel urged that the preliminary objection be dismissed in its entirety.

As stated earlier on in this judgment, the preliminary objection is rooted on the provision of section 246 (3) of the 1999 Constitution which reads as follow:-

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

The word ‘decision’ in legal parlance is defined as ‘a judicial determination after consideration of the facts and the law, especially a ruling, order or judgment pronounced by a court when considering or disposing of a case.

The word ‘shall’ as employed in the above quoted applicable section 246 (3) of the Constitution denotes obligation or a command and gives no room for discretion. By its nature, it is mandatory and one cannot wriggle out same. It imposes a duty. Where a provision stipulates that a thing shall be done it goes without equivocation that a peremptory mandate is enjoined. Refer to Bamaiyi v. Attorney-General Federation & Ors. (Supra) at page 497.

Briefly put, the word ‘final’ as employed in the applicable Section 246 (3) connotes conclusiveness; point never to be revisited.

Let me state it clearly that the provision of Section 246 (3) of the Constitution is not ambiguous. And so, it should be given its ordinary meaning. The ruling of the court below of 12th May, 2010 is rooted in election appeal which the law stipulates that it should end at the Court of Appeal. .

In the case of Alao v. ACE Ltd. (2000) 9 NWLR (Pt. 670) 264, it was pronounced that although this court is the court of last resort, it is nevertheless, a court of appellate jurisdiction which is regulated by the Constitution. Its jurisdiction is basically appellate apart from first instance restricted matters. The court is statutory and cannot for the sake of doing justice confer on itself a jurisdiction where none is given to it by the Constitution or by any statute. See also the case of Dangtoe v. C.S.C Plateau State (2001) 9 NWLR (Pt.717) 132 at 150 where the same opinion was expressed.

It is clear to me that the decision of the court below as entered on 12th May, 2010 is final and not subject to appeal to this court. I need to state it in clear terms that such finality applies to every interlocutory decision or any decision taken in respect of a matter or an issue concerning or arising from the decision reached in the substantive appeal before the court below.

The employment of the word ‘shall’ points to mandatory realm. It imbues the court below with ultimate and final jurisdiction. It has been interpreted by this court in a line of authorities to deprive this court of jurisdiction and Competence in appeals such as this one relating to Senatorial election petition. The Court of Appeal is the final court in respect of same. This court will not allow an imagined referral vide section 295 of the 1999 Constitution through the back door, as it were.

I am of the considered view that this court is not imbued with the requisite jurisdiction and competence to hear the appeal. Refer to Onuaguluchi v. Ndu (supra), Awuse v. Odili (supra) and

Okonkwo v. Ngige (Supra).

With all the above in view, I have no hesitation in upholding the preliminary objection raised on behalf of the 6th respondent that this court lacks jurisdiction and due competence to hear this appeal. It is hereby struck out.

Appeal No. SC. 466/2010 is between the same parties with similar background and issues as the one considered above. It is equally caught by the provision of Section 246(3) of the 1999 Constitution. It is also struck out for want of jurisdiction.

Both appeals are hereby struck out. I assess costs at N50, 000.00 in favour of each respondent against the appellant.

SC.176/2010 (CONSOLIDATED)