Chief Cyprian Chukwu Vs Celestine Omehia & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The Appellant/Applicant by a Motion on Notice filed on 23/3/12 prayed this Court for the following reliefs:-

1. AN ORDER of this Honourable Court enlarging time within which the Appellant/applicant may seek leave to appeal against the ruling of the Court of Appeal in CA/A/299/M/2011 delivered on the 20th of December, 2011.
2. AN ORDER of this Honourable Court granting the Appellant/Applicant herein leave to appeal against the ruling of the Court of Appeal, Abuja Division in CA/A/299/M/2011 delivered on the 20th of December, 2011.
3. AN ORDER of this Honourable Court extending the time within which the Appellant/Applicant may appeal against the ruling of the Court of Appeal, Abuja Division in CA/A/299/M/2011 delivered on the 20th of December, 2011.

The grounds for the application are thus:

1. The ruling of the Honourable Court of Appeal, against which the Appellant/Applicant is seeking leave to lodge on appeal (which allowed the 1st Respondent to appeal against the decision of the Federal High Court, Abuja per Kafarati J in FHC/ABJ/CS/656/2010 was delivered on the 20th of December, 2011.
2. Being dissatisfied with the ruling, the Appellant/Applicant herein prepared its proposed Notice of Appeal annexed herein as Exhibit CY 2.
3. The said proposed Notice of Appeal comprises grounds other than of law.
4. The Appellant/Applicant had filed a similar application at the Court of Appeal on the 20th of March, 2012.
5. The said application at the Court of Appeal is now spent, having remained pending outside the time allowed by the Rules of the Court for such an application to be considered by the Court of Appeal.
6. That there is thus a need to seek and obtain the leave of this court to appeal against the said ruling as presently constituted.

On the 22nd day of May, 2012 date of hearing, learned counsel for the Appellant/Applicant, Mr. Jolaawo referred to their 16 paragraph affidavit with four exhibits and also their Brief filed on 23/3/12. He contended that the Counter-Affidavit of the 1st Respondent should be struck out for incompetence same not being in keeping with Section 1 of the Oath’s Act and section 115(1) of the Evidence Act since the attestation clause was missing. Also that the 1st Respondent’s Brief based on that defective affidavit should be struck out.

Responding, Mr. Ezike of counsel for the Respondent regretted the omission in their counter affidavit filed on 3/4/12 and said it was only a matter of form which should not vitiate the process. He referred to their Brief of the 1st Respondent and urged the court to dismiss the application which failed to include crucial documents.

Mr. Lateef Fagbemi SAN, learned counsel for the 3rd Respondent said he was not opposing the application. That where time had expired at the Court below, that court lacks jurisdiction and the proper thing is to approach the Supreme Court.

The 2nd and 4th Respondents were absent and not represented even though served with hearing notices and the motion papers.

It seems to me necessary to state below a background briefly though of the facts leading to this Motion. They are as follows:-

BACKGROUND:

The 3rd Respondent herein was declared the lawful candidate of the 4th Respondent (PDP) in the 14th April 2007 gubernatorial elections in Rivers State by the Supreme Court on the 25th October, 2007. In Amaechi v. INEC (2008) 6 WRN 1 at 7, with the full reasons of the said judgment being given per Oguntade JSC (as he then was) on the 18th January, 2008 in Amachi v. INEC (2008) 5 NWLR (Pt. 1080) SC 227.

By virtue of the said judgment Celestine Omehia who had hitherto occupied the office of governor on the strength of the Peoples Democratic Party’s victory at the 2007 elections as its “duly” elected candidate, was ordered to immediately vacate the seat and that the Appellant herein be sworn in forthwith as governor of Rivers State.

Meanwhile, in 2011, the 2nd Respondent (INEC) herein having failed to include Rivers State amongst the states of the Federation wherein general elections for the seat of the governor would take place in accordance with the rest of the country on 26th April, 2011, the Appellant/Applicant brought suit NO. FHC/ABJ/CS/656/2010 at the Federal High Court, Abuja to seek for the determination of, inter alia, the date when the Rivers State gubernatorial election should be conducted in 2011.

At the conclusion of hearing, the trial court delivered its judgment in favour of the Appellant/Applicant as Plaintiff , granting all the reliefs sought to the effect inter alia that the tenure of office of the 3rd Respondent terminated, in the eyes of the law on the 28th of May, 2011 that he was not therefore entitled to remain in office beyond the said date, and consequently ordered that gubernatorial elections be conducted in Rivers State on the same date and at the same time when Governorship elections were scheduled to be held for the purpose of electing successors to the office of governors in all other states of the Federation whose current tenure was due to expire on 28th May, 2011.

Following the judgment of the trial Court, the 2nd Respondent (INEC) conducted the gubernatorial election in Rivers state with other states of the federation, wherein the 1st Respondent also participated and contested against the 2nd Respondent but lost.