Dr. Kemdi Opara & Anor. V. Hon. Bethel Amadi & Anor (2013)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

This is an appeal from the Ruling of the Court of Appeal Owerri Division, delivered on the 22nd day of March 2012. In that Ruling the Court of Appeal struck out the appellants’ appeal for want of jurisdiction.

The facts are these.

On the 9th day of April, 2011, INEC, (2nd respondent) the regulatory body charged with conducting elections in Nigeria conducted the National Assembly elections for the Mbaitoli/Ikeduru Federal Constituency of Imo State in the House of Representatives. Dr. K. Opara (the 1st appellant) was the candidate of APGA” while Hon. B. Amadi (the 1st respondent) was the candidate of the PDP. Candidates of several other parties contested the election, but they are irrelevant in this appeal. At the end of the election INEC declared the 1st respondent the winner. Not satisfied with the results of the election the appellant as petitioner filed a petition. On the 25th day of September 2011 the Court of Appeal allowed the appeal and remitted the petition to the Election Petition Tribunal to be heard on the merit. On the 18th day of November 2011 the Tribunal struck out the Petition for lapse of time. Dissatisfied the appellant filed an appeal on the 21st day of December 2011. The appeal came up for hearing on the 26th day of January 2012. The Court of Appeal could not hear the appeal because as at that day 60 days as provided by section 285(7) of the Constitution had elapsed by 6 days. In a Ruling delivered on the 22nd day of March 2012 the Court of Appeal struck out the appeal for want of jurisdiction. This appeal is against that Ruling.

In accordance with Rules of this court learned counsel for the parties filed and exchanged briefs of argument. The appellants’ brief was filed on the 11th day of May, 2012, and a Reply brief on 14th day of June 2012. The 1st respondent’s brief incorporating arguments on a Preliminary objection was filed on the 31st day of May, 2012, where the 2nd respondent’s brief was deemed duly filed on the 21st day of June, 2012.

Learned counsel for the appellants formulated three issues for determination. They are:

1. Whether the Court of Appeal’s conclusion on the binding Supreme Court judgment in a situation of conflict between an earlier and a later judgment was correct in law.
2. Whether the decision of the Court of Appeal that section 285(7) does not in any way infringe a party’s right to fair hearing was correct.
3. Whether section 285(7) is a valid alteration under the 1999 Constitution (as amended).

Learned counsel for the 1st respondent formulated a sole issue for determination. It reads:

Having regard to the clear and unambiguous provision of section 285(7) of the 1999 Constitution (as amended), coupled with the binding nature of the decisions of the Supreme Court interpreting the said section, whether the lower court was not right in striking out the appellants appeal which emanated from the decision of an election tribunal and was caught up by the said Constitutional provision.

On his part learned counsel for the 2nd respondent formulated two issues for determination.

1. Whether the provision of section 285(7) of the Constitution is an infraction on section 36(1) of the Constitution thereby denying the appellants their right to fair hearing.
2. Whether the provision of section 285(7) of the 1999 Constitution (as amended) ought to be nullified on the ground that it amended section 36(1) of the Constitution without compliance with the Constitutional procedure.

Before I advert my mind to consideration of the issues for determination, I must observe that the 1st respondent filed a Preliminary Objection urging this court to strike out this appeal for want of jurisdiction. The grounds for the preliminary objection are:

(a) The appellate jurisdiction of the Supreme Court is clearly delineated by section 233(1) of the 1999 Constitution (as amended).

(b) The said section 233(1) does not clothe the Supreme Court with jurisdiction or vires to entertain appeals arising from decisions of the Court of Appeal in respect of Elections into the House of Representatives.

(c) Per Force and by virtue of section 246(3) of the 1999 Constitution (as amended), the Court of Appeal is the final court in respect of appeals arising from decisions of Election Tribunals in relation to House of Representatives Elections.

(d) The present Appeal is against the decision of the Court of Appeal handed down on the 22nd day of March 2012 in respect of the Election of the 9th day of April, 2011 into the Mbaitoli/Ikeduru Constituency of Imo State in the House of Representatives.