Action Congress Of Nigeria & Anor V. Mr. Martin Amaewhule & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUSA DATTIJO MUHAMMAD, J.C.A (Delivering the Leading Judgment)

On 17/9/2011, I allowed this appeal and remitted the case back to the tribunal wherefrom the appeal emanated for the case to be heard and determined on its merits. I deferred my reasons for the decision to a date to be communicated to the parties subsequently. I now state my reasons for that decision. Before doing so, let me however recount very briefly the facts of the case on which the appeal is predicated.

By their petition dated and filed on 17th May, 2011, the appellants challenged the return of the 1st respondent by the 2nd-5th respondents as the winner of the 26th April, 2011 House of Assembly Election for the Obio/Akpor constituency 1 in River state. Whereas the petition was served on the 2nd-5th respondents on the 23rd May, 2011, the 1st respondent had the petition served on him on 8th June, 2011. Although the two sets of respondents filed their respective replies to the petition on the same day, 13th June 2011, the record of appeal indicates that the replies were served on the Appellants on different dates.

1st respondents reply was served on the appellants on 16th day of June 2011; 2nd-5th respondents reply was, on the other hand, served on the appellants on 6th July 2011 before which date the appellants had, by a letter addressed to the secretary of the tribunal dated 21st June, applied for the issuance of pre-hearing Notice and information sheet as in Forms TF 007 and TF 008.

The 1st respondent by a Notice of motion dated 1st but filed on 4th July 2011 prayed the tribunal to dismiss appellants’ petition as having been abandoned. The application which was brought pursuant to paragraphs 18 (3) and 47 (1) of the first schedule to the Electoral Act 2010 as amended hinged principally on the ground that the appellants who were served with 1st respondent’s reply to their petition had failed, refused and/or neglected to apply formally for the issuance of the pre-hearing notice.

In a considered ruling delivered on 19th July 2011, the tribunal held that appellant’s petition had been abandoned and dismissed same.

Dissatisfied, the petitioners appealed against the tribunals ruling on a Notice containing six grounds.

The 1st respondent has by a formal notice challenged the competence of the appeal which objection has been argued in the 1st respondent’s brief of argument. The law requires that I consider the preliminary objection first. See Ngige v. Obi (2006) 14 NWLR (pt.999) 1 and UBA Plc. V. ACB (Nig.) LTD (2005) 12 NWLR (Pt.939) 232.

The main thrust of the arguments of the learned senior counsel Mr. Agi for the 1st respondent/objector is that the tribunal’s ruling being a consent decision, leave of either the tribunal or this court must be sought and obtained by the appellants for the validity of the appeal. Relying on sections 240 and 241 (2) (c) of the 1999 Constitution as amended and the decisions in AG Lagos State v. Osuoka (2010) 4 NWLR (Pt.1183) 68 at 77, Excel Plastic Ind. Ltd. v. FBN PLC (2005) 11 NWLR (pt.935) 59 at 95-96 and Shell Petroleum Dev. V. Nig. Ltd. v. Azukaeme (2001) 9 NWLR (pt.1252) 350 at 372, learned senior counsel submits that having not obtained the necessary leave, appellant’s appeal is incompetent and should be so adjudged.

Responding, Mr. Otiotio for the appellants/ respondents contends that the decision of the tribunal being appealed against is not a consent judgment and leave of either the tribunal or this court is not for that reason required for same to be competent. Appellants’ failure to oppose the 1st respondent/objector’s application at the tribunal does not amount to their consenting to the tribunal’s decision on the application. Appellants’ right of appeal, learned counsel further argues, is a constitutional one predicated on at least two grounds, 1 and 6, which involve questions of law alone.

Learned counsel supports his contention with the decision in IBETO v. AMINU (2002) 5 NWLR (Pt.1028) 46 also relied upon by the 1st respondent/objector, as well as ACB (Nig.) PLC v. AG Anambra State (1992) 8 NWLR (pt.261) page 533 and Uchechukwu v. Belonwu (2009) ALL FWLR (Pt.458) 271 at 273. He concludes that the preliminary objection is misconceived and same be discountenanced.

I agree with learned counsel to the Appellants Mr. Otiotio. To appreciate the misconception of learned senior counsel to the 1st respondent/objector, a resort must be had to S.240, S.241, and S.242, of the 1999 constitution as amended. The sections are hereunder reproduced for ease of reference:

“240 Subject to the provisions of this constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal High court, the High court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal capital Territory, Abuja, Sharia Court of Appeal of a State and from decisions of a Court Martial or other Tribunal as may be prescribed by an Act of the National Assembly.

“241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: