Chief Great Ovedje Ogboru V. President, Court of Appeal & Anor. (2005)

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NGWUTA, J.C.A.

is is a ruling on an oral application by learned Counsel for the 2nd respondent, seeking an order to stay proceedings in the appeal. I think that it is expedient to trace the genesis of the oral application.

On the 3rd day of August, 2005, the High Court of Delta State, Asaba Judicial Division presided over by Hon. Justice Z. A. Smith granted the 2nd respondent leave to enforce his fundamental rights.

The court also restrained the 1st respondent from constituting a Governorship Election Petition Tribunal for Delta State to determine whether the applicant in the lower court was the person convicted on 28/9/95 on the case No. CR/81/95 by the Upper Area Court, Bwari as ordered by this court on 30th September, 2005, in election petition now reported as Ogboru v. Ibori (2005) 13 NWLR (Pt. 942) 319.

On 18th October, 2005, learned Senior Counsel for the appellant moved the court for the following reliefs:

“(1) An order for extension of time within which the appellant/applicant can appeal against the order of Hon. Justice Z. A. Smith of Delta State High Court, Asaba, made on 3rd August, 2005, in suit No. A/44/2005/MI.

(2) An order deeming the notice of appeal already filed and served as being properly filed and served.

(3) An order granting a departure from the rules of this court by allowing the appellant/applicant to compile the record of appeal and treating the bundle of documents already compiled and filed in this court and marked exhibit B as the record of appeal in this case.

(4) An order accelerating the hearing of the substantive appeal by abridging the time within which the parties are to file their briefs of argument and setting the substantive appeal down for hearing.”

Learned Counsel who appeared for the 1st respondent did not oppose the application.

Learned Counsel for the 2nd respondent, however, opposed the 4th relief on the ground that the appeal is against the decision of the High Court and since it is not an electoral matter the practice direction issued by the Honourable President of the court is inapplicable. On 25/10/05, the court over-ruled learned Counsel for the 2nd respondent and granted all the 4 reliefs sought by the appellant, holding the view that the matter giving rise to the appeal pertains to electoral matter. The appeal was then set down for hearing on 24/11/05.

When the appeal came up for hearing on 24/11/05 learned Counsel for the 2nd respondent informed the court that he has appealed against the court’s ruling of 25/10/05 to the Supreme Court.

Learned Counsel said that the appeal had been entered in the Supreme Court. He referred to Order 8 rule 11 of the Supreme Court Rules and said that the subject matter of the appeal is before the Supreme Court and until the appeal is determined, this court should stay all proceedings relating thereto.

Learned Senior Counsel for the 1st respondent referred to the ruling of this court in 25/10/05 to the effect that the appeal is an election matter, stating that the said ruling is extant and valid. He referred to S. 246(3) of the Constitution of the Federal Republic of Nigeria, 1999 and said the ruling is final and not appealable to any court. He referred also to S. 246(1) of the Constitution and the case of Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116. He contended that any attempt to appeal the said ruling is a violation of the Constitution, adding that Order 8 of the Supreme Court Rules does not over-ride the provisions of the Constitution. Learned Senior Counsel emphasised that Order 8 rule 11 of the Supreme Court Rules applies only where there is a proper exercise of the right of appeal to the Supreme Court, but not otherwise. He argued that the application headed in this court cannot be transmitted to the Supreme Court for hearing and determination. He urged the court to order the parties to argue the appeal. He referred to Mohammed v. Husseni (1998) 14 NWLR (Pt. 584) 108 at 141 on the purport of Order 8 rule 11 of the Supreme Court Rules in relation to Order 1 rule 21 of the Court of Appeal Rules.