Chief Sergeant Chidi Awuse V. Celestine Ngozichim Omehia & Ors. (2008)

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CLARA BATA OGUNBIYI, J.C.A.

The judgment here is in respect of the two appeals, which were brought by notices of appeal filed on the 14th December 2007 and 15th March 2008 respectively. The two notices of appeal, which are at pages 586 – 589 of the record of appeal and pages 204-210 of the supplementary record of appeal respectively, were not assigned different numbers. They were therefore treated under one appeal number, and argued together even though there was no application for the consolidation of the two appeals. Because this is an election matter which ought to be treated expeditiously, the error or otherwise in this appeal will be overlooked.

The two rulings dated 29th November 2007 and 27th February 2008 against which the two appeals were filed arose from the same set of facts which I will set out here under briefly as follows:-

On the 14th day of April, 2007, Governorship elections were held throughout the 36 States of the Federal Republic of Nigeria. In Rivers State, the appellant in both appeals herein was a candidate sponsored by Democratic Peoples Party in that election, while the respondent was sponsored by the People Democratic Party.

After the election aforesaid the respondent was declared the winner and was accordingly returned as the duly elected Governor of Rivers State by the Independent National Electoral Commission (INEC) the 2nd respondent.

In reaction to the declaration by INEC, the appellant herein filed a petition dated 14th May 2007 against the respondent and others at the Governorship and Legislative Election Tribunal sitting at Port Harcourt.

The respondent was subsequently sworn in as the Governor of Rivers State on 29th May 2007. Paragraphs 45-50 of the petition reproduced read:-

“45. Your petitioners aver that the 1st respondent was at the time of the election, not qualified to contest the election based on the Federal High Court judgment dated 15th day of March, 2007 in suit No. FHC/ABT/C5/29/2007 between Rt. Hon. Chibuike Rotimi Amaechi vs Independent National Electoral Commission & 2 Ors.

48. Your petitioners aver that the return of the 1st respondent was invalid because he was not qualified at the time of the election to contest the election.
49. Your petitioners aver that the 1st respondent was not duly elected by a majority of lawful and/or valid votes cast at the election.
50. Your petitioners aver that the 1st respondent did not poll the highest number of lawful votes cast at the gubernatorial election of April 14, 2007 in Rivers State.”

The appellant eventually claimed the following reliefs at page 94 paragraph 52 of the record and said:-

“Whereof your petitioners pray that the election be declared null and void and nullified on the grounds that it was not conducted substantially in accordance with the provisions of the Electoral Act, 2006, as amended, 1999 Constitution, or as the case may be.”

During the pendency of the Appellant’s petition, the Supreme Court in a unanimous judgment which was delivered on the 15th October, 2007 in an appeal between RT. Hon. Rotimi Amaechi v (1) Independent National Electoral Commission (2) Celestine Omehia, (3) Peoples Democratic Party and Ors. (2008) 5 NWLR (Pt.1080) 227 held that Rt. Hon. Rotimi Amaechi was the PDP’s candidate at April, 14th, 2007 Governorship election in Rivers State and not Celestine Omehia. The Supreme Court therefore ordered Celestine Ngozichim Omehia to vacate the Government House with immediate effect for Rt. Hon. Rotimi Amaechi. The order was complied with and Amaechi was sworn in as the Governor of Rivers State after Celestine Omehia vacated the Government House. The effectual post mortem of the judgment of the apex court therefore heralded that Celestine Ngozichim Omehia was never either the PDP candidate nor did he ever contest and talk less of winning the said questioned governorship election held on the 14th April, 2007. Consequent to the foregoing therefore Celestine Omehia brought an application to have his name struck out from the appellant’s petition. The affidavit in support at para..6 (b) in a nutshell states:

“6. That I am informed by Dike Udenna Esq. one of the counsel for the 1st respondent and I verily believe him as follows:-

(b) That the 1st respondent is no longer “the person whose election is complained of and is also no longer a necessary or desirable party to the petition.”

The tribunal after hearing both sides granted the application and struck out the Respondent’s name. The decision in which the Respondent’s name was struck out is therefore the subject matter of the first appeal.