Ifeanyi Chukwu Okonkwo V. Dr. Chris Nwabueze Ngige & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C

The appellant in these appeals heard together on 19/4/2007, was a candidate sponsored by Nigeria Advance Party (NAP) for the Governorship election conducted in April, 2003 in Anambra State.

Having lost in the election, the appellant challenged the result of the election by a petition filed before the Governorship and Legislative Houses Election Tribunal in Awka, Anambra State which after hearing the petition dismissed it. The appellant’s appeal to the Court of Appeal, Enugu in the decision of the Tribunal was equally dismissed by the court in its judgment delivered on 7/7/2003, which had been reported under the title of Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) 242.

However, on 9/11/2005, the appellant again filed an application at the Court of Appeal, Enugu for enlargement of time to seek leave to appeal, leave to appeal and enlargement of time within which to file and serve the notice and grounds of appeal against the decision of the Governorship and Legislative Houses Election Tribunal Awka, given on 12/8/2006, in a pending appeal at the Court of Appeal in which the respondents in the present appeal are parties. The appellant brought his application as a party having interest in the pending appeal. This application was heard by the Court of Appeal which in its ruling delivered on 16/1/2006, dismissed the appellant’s application on the grounds among which was that the application was an abuse of the process of the court. Dissatisfied with the decision against him, the appellant is now on further appeal to this court.

Although the appellant filed his appellant’s brief of argument and duly responded to the respective respondents’ briefs of argument filed on behalf of the 2nd respondent Mr. Peter Obi and the 3rd respondent, INEC and 449 others in appropriate appellant’s reply briefs, the 1st respondent Dr. Chris Nwabueze Ngige who was absent and not represented by counsel at the hearing, did not file any respondent’s brief of argument. In addition to their respondents’ briefs of argument, the 2nd and 3rd respondents, also filed notices of preliminary objection under Order 2 rule 9 of the Supreme Court Rules to the appellant’s appeal. The notice filed by the 2nd respondent, dated 9/3/2006 reads:

“1. By section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria the appellant has no right of appeal to the Supreme Court of Nigeria from the decision of the Court of Appeal in a Governorship Election Petition Appeal.

2. By section 233, 1999 Constitution the appellant has no right of appeal as of right to the Supreme Court of Nigeria and has not sought leave.
3. Appellant has not presented before the Supreme Court sufficient materials to compel a determination of the appeal on the merits.”

As for the 3rd to 449th respondents, the grounds in support of the notice of preliminary objection are:

“1. By virtue of section 246(1) of the 1999 Constitution of the Federal Republic of Nigeria, the appellant has no right of appeal to the Supreme Court.

2. By the combined effect of section 246(1) and (3) of the 1999 Constitution of the Federal Republic of Nigeria, the appellant cannot appeal a decision of the Court of Appeal before this Honourable Court.”

The combined attack on the appellant’s appeal by the respondents was rooted principally on the provision of section 246(1), (2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999. Dr. Onyechi Ikpeazu, learned senior counsel for the 2nd respondent referred to the provisions of section 246 of the 1999 Constitution and submitted that in the present case where the Court of Appeal heard the appellant’s application in exercise of its appellate jurisdiction on a matter arising from election petition, the decision of the Court of Appeal cannot form the subject matter of appeal to the Supreme Court. This basic state of the law was emphasized, according to the learned senior counsel, by this court in numerous cases, some of which are; Onuaguluchi v. Ndu (2001)7 NWLR (Pt. 712) 309; and Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116. Citing a number of cases particularly, Adeyemi v. Attorney-General,of Oyo State (1984) 6 SC 135, (1984) 1 SCNLR 525; and Eyesan v. Sanusi (1984) 1 SCNLR 353, learned senior counsel concluded that the appellant has no right of appeal to this court against the decision of the Court of Appeal refusing his application for leave to appeal and therefore urged this court to strike out the appeal. In the same vein, learned counsel for the 3rd to 449th respondents, Dr. A. I. Layonu, also emphasized that the interpretation of the provisions of section 246 of the 1999 Constitution by this court in Awuse v. Odili (supra) is very instructive regarding the finality of the decision of the Court of Appeal arising from decision of Governorships and Legislative Houses Election Tribunal. Learned counsel therefore urged this court to uphold the preliminary objection by declaring the appellant’s appeal incompetent and unconstitutional.

The appellant who appeared in person, maintained in his appellant’s reply brief of argument in answer to the respondents’ preliminary objection that his appeal is quite competent having arisen from his application brought under section 243(a) of the 1999 Constitution at the Court of Appeal. He argued that the jurisdiction of the Court of Appeal having been invoked under the said section 243(a) of the Constitution, his right of appeal to this court was not affected by the decision in Awuse v. Odili (supra), relied upon by the respondents, which decision was predicated on section 246(3) of the 1999 Constitution. Appellant further pointed out that since he was not appealing against the final decision of the Court of Appeal in an election petition matter between Mr. Peter Obi and Dr. Chris Ngige and others delivered on 15/3/2006, his right of appeal was not affected as a person having interest in the pending appeal, relying on the case of Williams v. Mokwe (2005) 7 SC (Pt. 11) 153 at 157, (2005) 14 NWLR (Pt. 945) 249.

The claim of the appellant that his application that was heard and refused by the Court of Appeal did not arise from the decision of an Election Tribunal, is certainly not born out of the record of this appeal, particularly the terms of the reliefs sought in the application and the affidavit in support thereof. The reliefs sought by the appellant at the court below are:

“(a) An order of the Honourable Court granting leave to the applicant to appeal to the Court of Appeal and or to join in the appeal against the decision of the Governorship and Legislative Houses Election Tribunal, holden at Awka, Anambra State, dated 12/8/2005 in the petition No. EPT/AN/GOV/42/2003 as a person having interest in the matter or to join in the appeal in that capacity.

(b) An order for enlargement of time within which to seek “leave” to appeal.

(c) An order for leave to appeal.