Hon. Sunday Ugwa & Anor V Hon. Oji Lekwauwa & Anor (2010)

LAWGLOBAL HUB Lead Judgment Report

A.M. MUKHTAR, J.S.C

This is an appeal against the decision of the Court of Appeal, Owerri Division, which set aside the judgment of the Court of Appeal, Port Harcourt Division. In that judgment Eko JCA in the lead judgment found for the appellants in that court, as follows:-

“Even from the gross results. (sic) That is the raw total votes with the tainted votes the 1st Appellant had majority of the votes from the 7 wards. The Appellants proved the reliefs they sought at the Tribunal. The appeal is allowed in part. The decision of the Tribunal affirming the declaration or return of the 1st Respondent as the winner with the majority of lawful votes is hereby set aside. In its stead, it is hereby declared that the 1st Appellant ought to be returned and he is hereby declared as the person with the majority of lawful votes from the election to the Abia State House of Assembly conducted on 14th April, 2007 in Bende North State Constituency of Abia State.”

By virtue of the provision of section 246 (3) of the constitution of the Federal Republic of Nigeria, the judgment was supposed to be the final judgment, being an electoral dispute. That judgment was the final judgment as far as electoral complaints in respect of the subject matter in the suit was concerned. The 1st Respondent however being dissatisfied with the judgment of the Port Harcourt Division of the court delivered on 27th of January, 2009, went back to court and on 25th February 2009 filed an application praying the court to wholly set aside the said judgment. The Court of Appeal, Owerri Division heard and granted the application and set aside the judgment of 27/1/2009, even though the appellants in this appeal, who were the respondents in the application had contended that the Court of Appeal, Owerri Division had no jurisdiction. Aggrieved by the ruling the appellants have appealed to this court on four grounds of appeal, from which the appellants in their brief of argument formulated four issues for determination. Briefs of argument were exchanged by the parties, to wit there was an appellants’ reply brief of argument, and they were all adopted at the hearing of the appeal.

The 1st respondent filed a notice of preliminary objection, which he argued in its brief of argument. The learned counsel for the 1st Respondent moved it at the hearing of the appeal. The grounds of the objection are as follows:-

“(1) That suit No. SC/143/2010 – SUNDAY UGWA & ANOR Vs HON. OJI LEKWAUWA & 108 ORS now pending in this Honourable court is an abuse of court process as it contravenes sections 246(1)(b) and (3)of the Constitution of Nigeria 1999.

(2) That the appeal arose from a decision of the Court of Appeal in an appeal to that court arising from a legislative House Election Petition Tribunal decision and the Supreme Court therefore lacks the Jurisdiction to entertain the appeal or any proceeding arising there from.”

The learned Senior counsel for the 1st respondent at the hearing of this appeal raised and moved their notice of preliminary objection. The argument canvassed on the objection is contained in their brief of argument.

According to the learned SAN, 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 decisions of Election Petition Tribunal concerning Election to the State House of Assembly are final and not subject to appeal to the Supreme Court. Reliance was placed on the authorities of Onuaguluchi v. Ndu & ors 2001 7 NWLR part 712 page 309, Awuse v. Odili 2003 18 NWLR part 851 page 116, Esewe v. Ogbe 1988 5 NWLR part 93 page 134 and Ecoconsult Ltd v. Pancho Villa Ltd 1999 1 NWLR part 588 page 507.

The learned counsel for the appellants in their reply brief submitted that this court has jurisdiction to entertain this appeal as the judgment appealed against is a post final election appeal judgment, and not a pre-judgment interlocutory decision or a final decision. The learned counsel distinguished the present case from that of Onuaguluchi and Awuse supra, and argued that it was because the Court of Appeal Owerri violated section 246 of the 1999 Constitution when it set aside the final Election appeal judgment in CA/PH/EPT/230/2008, that made the appellants to approach the court to determine whether the setting aside of the said judgment was proper, I think it is pertinent that I reproduce and consider the provisions of section 246, around which this discussion revolves.

The relevant provisions read:-

“246 -(1) An appeal to the Court of Appeal shall lie as of right from

(a) ……………………………………………….

(b) Decisions of the National Assembly Election -Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether –