Chief Sergeant Chidi Awuse V. Dr. Peter Odili & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C. 

By motion on notice the applicant prays for the following reliefs –

“1. An order of court for accelerated hearing of the appeal and an interlocutory application arising therein.

2. An order of court striking out the appeal in limine for incompetence.
3. Making any other order or orders as the Honourable Court may deem fit and proper in the circumstances of this appeal.

AND further take notice that the grounds upon which this application is brought are as follows-

(a) Under section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria, the decision of the Court of Appeal in an election petition is final.

(b) The notice of appeal is a deliberate abuse of judicial process intended to delay and pervert the cause of justice.

(c) The notice of appeal is a nullity.”

The application is supported by an affidavit of urgency and a 15-paragraph affidavit both sworn to by the applicant himself with five exhibits attached. Because of the importance and clarity of the supporting affidavit to these proceedings I shall reproduce it hereunder leaving out the exhibits or attachments. The affidavit reads –

“1. I am the petitioner/respondent/applicant in this matter.

2. I contested election for the post of Governor of Rivers State on 19th April, 2003.
3. After the election, the appellant/respondent, Dr. Peter Odili, was declared elected. I duly filed an election petition challenging the declaration.
4. After service of the petition on the appellant/respondent, a notice of preliminary objection was filed on his behalf challenging the competence of the petition.
5. After hearing argument on the notice of preliminary objection, the election tribunal sitting at Port-Harcourt struck-out the petition. The petitioner/respondent/applicant, appealed to the Court of Appeal.
6. On 31st July, 2003, the court of Appeal allowed the appeal and remitted the petition back to the tribunal for hearing on merit. A copy of the enrolled order of the Court of Appeal is hereto exhibited and marked exhibit “AA”.
7. On 11th August, 2003, the appellant/respondent filed a notice of appeal to this Honourable Court challenging the decision of the Court of Appeal on the election petition matter. It is this notice of appeal that is the subject of this application.
8. My learned counsel, Chief M. I. Ahamba, SAN has informed me, and I verily believe him, that appeals from the election tribunals terminate at the Court of Appeal.
9. The appellant/respondent has filed an application before the Court of Appeal seeking to prevent or delay the commencement of the hearing of my petition on merit in the tribunal. A copy of the application now pending before the Court of Appeal and fixed for hearing on 30th September, 2003 is hereto exhibited and marked as follows:

‘Motion paper exhibit “AB”

Affidavit in support exhibit “AB1”

Exhibit “A” thereto (notice of appeal): exhibit “AB2”

10. The appellant/respondent is resting on exhibit “AB2″ to obtain a stay of execution of the order of the Court of Appeal, and of the hearing before the tribunal.
11. The appellant/respondent is using an incompetent appeal to pervert the cause of justice, and also to annoy, irritate and frustrate me.
12. I sincerely believe that it is necessary to strike out the incompetent appeal to avoid the misuse of judicial process for an unjust end. I rely on the three grounds stated on the motion papers.
13. The appellant/respondent and his counsel know that the appeals terminate in the Court of Appeal in matters arising in the Election Tribunals, but is only interested in delaying the heating of the petition.
14. The newly constituted Election Tribunal now sitting in Port-Harcourt cannot hear my petition until this appeal is disposed of. There is need for the expeditious disposal of this application.”

The appellant/respondent also filed a counter-affidavit through one Oris Onyiri the Secretary of the People’s Democratic Party, Rivers State, in opposition to the application. He said in paragraphs 2, 3, 4, 5, 6 & 7 thus –

“2. That I have the consent and authority of the appellant/respondent to swear to this counter-affidavit.