Best Njoku & Ors V. Chief Mike Iheanatu & Ors (2008)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

These appeals emanated from two separate rulings of the Governorship and Legislative Houses Election Tribunal, Imo State in election petition No. EPT/LH/IM/03/07 delivered on 24th September 2007 and 11th August 2007 respectively from the records of the two appeals before us, the Notice of Appeal in respect of appeal No. CA/PH/EPT/454/07 was filed on the 10th of October 2007 while in appeal No CA/PH/EPT/387/07, the Notice of Appeal, was filed on the 30th of August 2007. Along the line, the Appellant in the latter appeal who is the 1st Respondent in appeal No. CA/PH/EPT/454/07 applied for and was granted an order for the consolidation of the two appeals for the purposes of hearing and determination.

The consolidated appeals were heard on the 14th of May 2008 with the learned counsel identifying and adopting their respective briefs of argument therein.

The Appellants’ brief in appeal No. CA/PH/EPT/454/07, was filed on 14th November 2007, the 1st Respondent’s brief on the 30th of November 2007, the 2nd Respondent’s brief on the 12th of December 2007, the 3rd – 5th Respondents brief on the 14th of December 2007 and lastly the Appellants’ Reply brief to the 1st Respondents brief on 3rd December 2007.

The Appellants’ brief in appeal No.CA/PH/EPT/487/07 was filed on the 4th of December 2007, the 1st Respondent’s brief filed on 28th March 2008 was deemed filed on the 21st of April 2008, the 9th Respondent’s brief was filed on the 12th of December 2007 and 10th-12th Respondents, brief filed on the 13th of March 2008 was deemed filed on 14th May 2008.

In the course of hearing, learned senior counsel M. I. Ahamba, (SAN) drew the attention of the court to the fact that the names of 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th Respondents were struck out of the appeal and so are no longer parties to the appeal.

We were urged by learned counsel to uphold their respective submissions and allow or dismiss the appeals as the case may be Judgment was reserved for delivery on the 14th of July 2008.

In the course of preparing the judgment, I observed that the Notice of Appeal in appeal No. CA/PH/EPT/487/07 was filed, against or in respect of a ruling by the lower Tribunal in the course of its proceedings in the petition. The decision in the ruling did not fully and finally determine the rights of the parties in the petition but merely overruled a preliminary objection raised by the Appellant. In the circumstances, the decision is an interlocutory one, an appeal against which by the provisions of the Section 24 (2) (a) of the Court of Appeal Act 1976 Cap. 336 2004 had to be filed within fourteen (14) days from the date it was delivered.

As indicated earlier, the ruling of the lower Tribunal was delivered on 11th August 2007 and the Notice of Appeal was filed on the 30th August 2007

Perhaps I should quickly point out here that the provisions of the Practice Directions No. 2 of 2007 do not apply to the appeal because it is not one under Section 149 of the Electoral Act 2006. The preamble to the Directions puts it beyond argument as follows:

“For the purpose of appeals coming to the Court of Appeal under Section 149 of the Electoral Act 2006, No. 2, this Practice Direction shall be strictly observed by all parties.”

It is clear therefore that all other appeals coming to this court are to be governed and regulated by the Court of Appeal Act and Court of Appeal Rules pursuant to paragraph 51 of the 1st Schedule to the Electoral Act, 2006. Since the appeal No. CA/PH/EPT/487/07 was/is not under Section 149 of the Electoral Act 2006, it has to be in accordance with the law and the rules of practice and procedure applicable in this court. I accordingly find it expedient to raise the issue of the competence of the said appeal suo motu and invite learned counsel to address the court on it before the date of judgment. In effect, the appeal is reopened for hearing with address by counsel on the issue raised.

The above invitation notwithstanding and even though appeal No. CA/PH/EPT/454/07 was consolidated with appeal No. CA/PH/EPT/487/07 and heard together, the law is that each of the two appeals retain its separate and distinct identity and issues to be considered and determined accordingly in the consolidated judgment.

In essence each of the appeals should have separate decisions or pronouncement on the issues canvassed therein by the parties. This may amount to an order varying the consolidation of the two appeals earlier made which this court is entitled to make in the circumstances.