Sunday Ugwa & Anor v. Oji Lekwauwa & Anor

This is an appeal against the ruling of the Court of Appeal sitting in Owerri, delivered on 27/1/2009, in which it set aside the judgment of the Court of Appeal, Port-Harcourt, and ordered to be reheard by a different panel of the Court of Appeal.

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On the 27/1/2009, the Court of Appeal, sitting in Port-Harcourt delivered its judgment in an Appeal brought before it by the Appellants against the decision of the Governorship and Legislative House Election Tribunal holden at UMUAHIA, which dismissed the petition filed by the Appellants against the return of the 1st Respondent as the winner of House of Assembly election of Bende North constituency in Abia State.

In its judgment, the Court of Appeal allowed the Appeal and declared the 1st Appellant as the winner of the said election.

However, by a motion dated 23/2/2009, the 1st Respondent filed an application in which he prayed the Court of Appeal (hereinafter called the lower court) for the following orders: –

“That the judgment of this Honourable Court in Suit No. CA/PH/EPT/230/2008, SUNDAY WAWA and P.D.P Vs HON. OJI LEKWALINA and Ors, delivered on the 27/1/2009 be wholly set aside and annulled ex debito justitiae for being null, and void or unconstitutional AND FURTHER TAKE NOTICE that the grounds for so contending are as follows: –

(a) The judgment was based on an amended Appeal Brief, which was not proper before the Court, having been withdrawn and accordingly struck out by the Court of Appeal on the 29th day of October, 2008.

(b) The judgment is a breach of the 1st respondent Applicants right to fair hearing, enshrined under section 36 (1) and (3) of the 1999 constitution.

(c) By reason of 1 and 2 above, the said judgment is void and the 1st respondent/Appellant claims a right to have it set aside ex debito justitiae”.

The 2nd – 110th respondents also filed similar application, whilst the Appellants filed a motion dated 6/03/2009, in which he prayed for the following Order: –

“AN ORDER to correct the error arising from accidental slips in the judgment in Appeal No. CA/PH/EPT/230/2008 SUNDAY WAWA & ANOR Vs HON. OJI LEKWATINA & 109, by deleting the references made at pages 8, 13 and 15 to APPELLANT’S AMENDED BRIEF OF ARGUMENT and substituting thereof with APPELLANTS’ BRIEF OF ARGUMENT”.

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Both parties were heard on these applications, and in a considered ruling the lower court refused the application of the Appellant and consequently made an order setting aside the judgment and ordered a re-hearing on the ground that Amended 1st Respondent’s Brief utilised by the Court of Appeal, Port-Harcourt had been withdrawn and struck out and as such the 1st Respondent Brief of Argument was not considered and thus occasioned a breach of the 1st Respondent right to fair hearing.

The Appellants were dissatisfied with this ruling and have, as a result, appealed to this court. In response to the Appellants’ appeal, the Respondents filed Notice of preliminary objection, in which they prayed for the following:-

“AN ORDER setting aside the Notice of Appeal dated 19th April, 2010 and filed on the 22nd day of April 2010 by the Appellants”.

The grounds for this application are stated as follows:-

(1) The Appeal is an abuse of the process of the Supreme Court having been brought in flagrant disregard of the provisions of Section 246 (1) (b) and (3) of the 1999 constitution;

(2) The appeal is against a decision of the Court of Appeal in respect of an appeal to that court arising from a Legislative House Election Petition Tribunal decision, and the Supreme Court lacks the jurisdiction to entertain the appeal or any Proceeding arising therefrom”

In compliance with the rules of this court, the Notice of Preliminary objection were argued together with the main appeal in the parties respective briefs of argument.

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The appellants in their brief of argument dated 14/6/2010, formulated four (4) issues for determination as follows:-

(1) whether the Court of Appeal Owerri Division has the jurisdiction to set aside the final election appeal judgment delivered by the Court of Appeal Port-Harcourt Division. (Ground one).

2. whether the final Election Appeal Judgment in CA/PH/EPT/230/2008 violated the Respondent’s right to fair hearing and assuming the answer is in the positive, whether the Court of Appeal can do anything in respect thereof being an Election matter? (Ground two).

3. whether the Appellants suffered a miscarriage of Justice by virtue of the lower court delivering just a single ruling in respect of three consolidated applications with distinct appeal numbers (Ground three).

4. whether it was proper for the lower court to grant the Respondents application seeking to destroy the proceeding/Judgment at the expense of the appellants, application seeking to correct or breathe life to the proceedings/Judgment? (Ground four)

whilst the 1st Respondent in his brief of argument dated 1/7/2010 distilled three issues for determination as follows:-

“i) whether having regard to Section 246 (1) and (3) of the 1999 constitution, the Supreme court has jurisdiction to entertain this appeal? (The preliminary objection)

ii) whether the Court of Appeal had the jurisdiction to entertain the 1st respondent’s application dated 25th day of February 2009.

iii) whether the decision of the court of Appeal (lower court) now appealed against is correct having regard to the circumstances of this case”.

The 2nd – 108 respondents formulated two issues in their brief of argument dated 1/7/2010 as follows:-

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“1) whether this court, in view of the relevant laws and authorities, has jurisdiction to entertain this appeal arising strictly and ostensibly from a State House of Assembly Election..

2. whether the court below, to wit, the Court of Appeal or indeed any court under our constitution and jurisprudence, can set aside its own judgment on any of the grounds recognized under our law and especially in circumstances of the case before the court below”.

Learned counsel to the Appellant in respect of the issue one formulated by him, submitted that the Court of Appeal, Owerri Division, lacked the jurisdiction to set aside the final Election Appeal judgment delivered on the 27th day of January, 2009 by the Court of Appeal Port-Harcourt Division in Appeal No. CA/PH/EPT/230/2008. Learned counsel cited the provisions of Section 246 (3) of the 1999 Constitution of the Federal Republic of Nigeria and submitted that the provisions un-ambiguously stipulated for the finality of the judgment of the Court of Appeal in Election Petition and once the Court of Appeal delivered its judgment it is final, he supported his submissions with the cases of – CARDOSSO v. DANIEL (1986) 2 NWLR (pt. 20) 1; and OBIOHA v. IBERO (1994) 1 NWLR (pt. 322) 503/532; and UKACHUKWU v. U.B.A (2004) 10 NWLR (pt. 881) 294/310. He further submitted that the judgment of the Court of Appeal, Port-Harcourt Division was final and cannot be set aside even if there was any feature that rendered it irregular. The Court of Appeal has become Functus Officio except with the power to amend its own judgment so as to correct and bring the judgment to carry out the meaning which the court intended under the slip rules.

On the second issue, it was the submission of the learned counsel that the judgment delivered by the Court of Appeal, Port Harcourt Division did not violate the right of the Respondents to fair hearing, and if it does, the Court of Appeal can do nothing about it.

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Learned counsel submitted that the reference to the defunct Appellants’ brief of argument by the Court of Appeal, Port Harcourt Division, did not occasion any miscarriage of justice to the respondents, he cited, in support, the case of Okonkwo v. Okonkwo (1998) 10 NWLR (pt. 571) 554 at 563.

On the third issue, the learned counsel submitted that the Appellants’ right to fair hearing was violated and thereby occasioned miscarriage of justice when the lower court delivered just a single ruling in respect of the three consolidated applications before it, it was his submission that consolidated suits are tried and resolved in the same proceeding, but it must be noted that each suit remains separate and distinct and its own judgment must be given separately at the end of the common trial. The case of Kalu v. Chima (2007) 17 NWLR (pt. 1062) 187 at 194.

On the 4th issue, the learned counsel submitted that the lower court ought to have taken his application that seeks to remedy the proceedings before considering the respondents application which seeks to set aside the judgment, he cited, in support, the case of Nalsa and Team Associates v. NNPC (1991) 1 SCNJ 51 at 62.

The learned counsel to the 1st Respondent, at the hearing, adopted his brief of argument and urged the court to dismiss the appeal.

On the preliminary objection learned counsel Chief Udechukwu SAN submitted that 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 the decision of Election Petition Tribunal concerning Election to the State House of Assembly are final and not subject to appeal to the Supreme Court, and any such appeal would amount to an abuse of the process of the court.

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Learned counsel Chief Udechukwu SAN cited the following cases in support:-

(1) Onuaguluchi v. Ndu and Ors (2001) 7 NWLR (pt.712) 309;

(2) Awuse v. Odili (2003) 18 NWLR (pt. 851) 116;

(3) Esewe v. Ogbe (1988) 5 NWLR (pt. 83) 131,

and urged the Supreme Court to affirm its consistent earlier position in allied cases by resolving this issue one in their favour, by holding that having regard to section 246 (1) (b) (1) and (3) of the 1999 constitution that the Supreme Court has no jurisdiction to entertain this appeal against the decision of the Court of Appeal.

On the second issue, the learned counsel for the Applicants submitted that a party aggrieved by some fundamental vice which rendered a decision of the Court of Appeal void or un-constitutional or without jurisdiction can approach the Court of Appeal under section 6 (6) (a) of the 1999 constitution to have that vice exercised, as a debt owed to justice. The following cases were cited: –

(a) Barclays Bank of Nig. Ltd v. Central Bank of Nig. (1976) 6 SC 175; and

(b) Sken Consult Nig. Ltd. & Anor v. Ukey (1981) 1 S.C 6 at 36.

It was his further submission that the lower court has no jurisdiction to determine an appeal on the basis of an abandoned brief, that any decision based on such an abandoned brief is void being unconstitutional, a breach of the rule of fair hearing and an exercise without jurisdiction. He relies on the followings: –

Nwokoro and Ors v. Onuma & Ors (1990) 3 NWLR (pt 138) 22; and Alh. Lawal Tunbi v. Israel Opanoye (2000) 2 NWLR (pt 664) 264.

He pointed out that the Brief utilised in giving its judgment was based on the withdrawn and struck out Amended Brief of Argument, while the extant and proper brief of the Respondent was not considered thereby occasioning a miscarriage of justice.

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He therefore submitted that when a judgment had been given without jurisdiction the court should, upon proper application made to it, set aside such judgment. See: –

(i) Aladegbimi v. Fasanmade (1998) 3 NWLR (pt 81) 129; and

(ii) Mbadinuju v. Ezuka (1994) 8 NWLR (pt. 364) 535.

On the 3rd issue, it was his submission that lower court was right when it set aside the judgment delivered by the Court of Appeal Port-Harcourt Division and ordering that it be re-heard.

Learned counsel to the 2nd Respondent also adopted his brief of argument at the hearing and urge this court to dismiss the appeal, on the preliminary objection he submitted that by virtue of Section 246 (1) (b) (1) and (3) of our 1999 constitution, the Court of Appeal sitting over an election petition arising from Governorship and Legislative Houses of Assembly election is final arbiter and adjudicator in respect thereof, see the case of Awuse v. Odili (supra) at 116. As such, this court is effectively and effectually deprived of the competence and jurisdiction to entertain this appeal.

On the 2nd issue, it was the learned counsel submission that any court of competent jurisdiction has powers to set aside any of its own decision if it finds that the decision was given without jurisdiction. He cited the cases of: –

Chime v. Ude (1996) 7 NWLR (Pt.461) 319;

Tunbi v. Opawale (supra) 275 and

Ukachukwu v. Uba (supra) at 294.

In response to the respondents Briefs of argument the Appellant filed a reply brief dated 8/7/2010 wherein he contended that this court has jurisdiction to entertain this appeal. This is so, because this appeal is against a post final election judgment decision. The decision being appealed against is neither a pre-judgment, interlocutory decision nor a final judgment.

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He contended that if the decision had been a pre-judgment or interlocutory decision or a final judgment this court would not have jurisdiction to entertain the Appeal. He distinguished the decision in the case of Onuaguluchi v. Ndu (supra) and submitted that it was in respect of the pre-judgment and final judgment of the Court of Appeal in Election Matters.

I have carefully perused the record of this appeal. It is not in dispute that the 1st respondent filed an original Brief of argument in the appeal before the lower court, i.e. Court of Appeal Port-Harcourt Division. Thereafter he filed an application to amend his Brief of argument, which he later withdrew; this was on the 29/10/2008, and the following transpired in court –

“Nwosu M. Nwosu Esq – pray leave of this court to withdraw the appellants motion filed on 19/9/2008.

Neory Echefu Esq.:- No objection.

P. C. Okorie: – No objection.

Court: – Appellants motion on Notice filed on 19/9/2008 for the Amendment of his brief of argument having been withdrawn is hereby struck out”.

Hence it is clear that the said Amended Brief of argument was no longer extant and neither does it represent the case presented by the respondent at the lower court. Furthermore, it is also not in dispute that it was this abandoned Brief of argument that had been struck out that was utilised by the Court of Appeal, Port-Harcourt Division in its judgment. However, in view of the fundamental nature of the issue of jurisdiction raised by the Respondents, it would be more prudent to determine the issue of jurisdiction before proceeding to the substantive matter.

Jurisdiction is a fundamental issue, the absence of which would rob this court, or any court for that matter, the power to determine the appeal. I have produced the two Notices of preliminary objection filed by the respondents earlier in this judgment.

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The objection is centred on the provisions of Section 246 (3) of the 1999 constitution which provides as follows: –

“The decisions of the Court of Appeal in respect of appeal, arising from Election Petition shall be final”.

This court has in a number of cases, given judicial interpretation to these provisions in some of its decided cases. In the case of Awuse v. Odili (supra) also reported in (2003) 11 SCNJ 88, this court per Kutigi JSC (as he then was) stated the legal position as follows: –

“Under Section 246(1) (b) (ii) of the constitution above an appeal would ordinarily be to the Court of Appeal from that decision striking out the applicants 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 appeal arising from election petition as in the matter before us now”.

His Lordship Iguh JSC in the same case at page 104 succinctly state thus:-

“In making provision in respect of decisions of the Court of appeal in Election petition matters, Section 246 (2) of the 1999 Constitution makes no distinction between interlocutory and or final decision of the court. In my view the language of Section 246 (3) of the 1999 Constitution is so clear and unambiguous that it institutionalized the Court of appeal as the final Court of Appeal in respect of appeals arising from decisions to the office of member of the National assembly or of a State Assembly of a State and Governor or Deputy Governor of a State. I cannot, with the greatest respect to the learned appellant’s counsel, accept that Section 246 (3) of the 1999 by any stretch of the imagination conferred this court with jurisdiction to entertain appeals from the decision of the Court of Appeal in respect of appeals arising from election petitions specifically mentioned under that section of the constitution, inclusive of the Election Petition in issue in the present case”.

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Also in the case of Onuaguluchi v. Ndu & Ors (2001) 7 NWLR (pt.712) 309 at 321; this court unanimously held as follows:

“The decision of the Court of Appeal in respect of appeals arising from election petition shall be final. Section 246 (1) (b) specifies the election concern to be National Assembly, Governorship and State House of Assembly elections. It must be emphasized that such finality applies also 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 appeal. No appeal shall lie from it to any other court even if it is patently wrong”.

It is not in dispute that this is a decision of the Court of Appeal concerning the election to the Abia State House of Assembly. The appellant has argued that this appeal is not against the final judgment of the Court of Appeal but a post final election judgment decision. With due respect to the learned counsel this is a distinction without difference. I do not comprehend what exactly the learned counsel referred to as “post final judgment”- the fact remains that the decision of the Court of Appeal, which is the subject of this appeal concerns and in respect of the Election to the Abia State House of assembly and this falls within the ambit of the provisions of Section 246 (1) (ii) of the 1999 Constitution. I am in agreement with the decisions of this court cited above and I have no reason to depart from it.

It is now well settled that no appeal will lie to this court from the decision of the Court of Appeal in respect of the matters set out in Section 246 of the 1999 Constitution be it post final judgment /decision, as the learned counsel to the appellants posited, or any decision whatsoever of the Court of Appeal.

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As such I have no hesitation in holding that this court lacks jurisdiction to entertain this appeal.

Consequently, is hereby struck-out.

I was opportune to read in advance the illuminating judgment of my learned Lord Mukhtar JSC. I have no difficulty in agreeing with the judgment.

With my little but resolute contribution and the more elaborate judgment of my learned Lord I entirely agree with the decisions as adumbrated in the lead judgment.

In view of the above, I hold that the appeal is not only devoid of any merit, but also incompetent as this court totally and completely lack jurisdiction to hear it. Consequently the appeal is struck out. I abide by the order as to costs.