Anthony Okokhue V. Joseph Obadan & Ors (1989)

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OGUNDARE, J.C.A.

Following the local government elections held on 12/12/87,the 1st respondent was declared duly elected Councillor for Ward 3 in Agbazilo Local Government. The petitioner/appellant who was a candidate at the said election and who was dissatisfied with the result, filed two petitions (later consolidated into one) under the Local Government Elections Decree, No. 37 of 1987(hereinafter is referred to simply as Decree No. 31) praying in the first petition as follows:-

“That the petitioner who was placed second in the election be declared the winner of the councillorship election in Agbazilo Ward 3 OR ALTERNATIVELY: The whole election in Ward 3 was avoided by corrupt practices and offences against the Local Government Elections Decree, 1987 be declared null and void and fresh election ordered.”

Paragraph 11 of the second petition reads:-

“11. WHEREFORE, your petitioner prayers (sic) that it may be determined

(a) that the said E. Obadan was not only (sic) elected or returned or

(b) that the said Anthony Okokhue was only (sic) elected and ought to have been returned.”

In the course of the preliminary proceedings the 1st respondent filed a motion praying, among other prayers, for an order dismissing the petitions as offending paragraphs 3(1), (2) and (4) of schedule 3 to Decree No. 37 in that payment for security for costs was made outside the statutory period.

After learned counsel for the parties had addressed the court, the learned trial Judge in a considered ruling, upheld the submissions of learned counsel for the respondents and ruled:

“In the result, there is no election petition before me and this petitions is hereby dismissed with costs to be assessed.”

It is against this decision that the petitioner has now appealed to this court upon five grounds of appeal.

In accordance with the rules of this court the parties filed and exchanged their respective Briefs of Arguments. At the hearing of the appeal we invited learned counsel to address us as to whether the decision appealed against was final or interlocutory as the jurisdiction of this court to entertain the appeal would depend on a resolution of this question. Learned counsel addressed us on this question as well as on the merits or otherwise of the appeal. I shall now proceed to resolve the question relating to the nature of the decision appealed against, that is, whether it is final within the context of section 36(1) of Decree No. 37.

Mr. Ozekhome for the petitioner/appellant submits that the decision is final. After referring to the decision and the events leading to it, learned counsel submits that the dismissal of an action is a complete and effectual termination or disposal of that action even though the dismissal was not on the merit. He refers the court to the definitions of the words “Dismiss” and “Dismissal” in Black’s Law Dictionary (5th edition) and Collin’s English Dictionary (1985 edition). He cites Omonuwa v. Oshodin (1985) 2 N.W.L.R. (Pt.10) 924, 925, 927, 932-939. Learned counsel says that if the trial Judge had struck out the petition rather than dismiss same, his submission would have been that the decision was interlocutory. He submits further that there has been a decision on an election petition as envisaged in section 36(1) of Decree No. 37 in the sense that the election petition having been found incompetent, the petition becomes dead and the rights of both parties are hereby finally determined. Mr. Ozekhome argues that the question to be determined is whether the appellant, after the ruling of the lower court, could go back and argue his petition. Learned counsel submits that the appellant cannot do so and therefore the decision appealed against is final.

Mr. Akhere for the 1st respondent, concedes it that the law is rather confused as to what is final or interlocutory decision. He submits that applying all the tests arising out of decided cases, the decision appealed against is final and not interlocutory. He too cites Omonuwa v. Oshodin (supra). He finally submits that having regard to paragraph 2 of Schedule 3 to Decree No. 37, it would make no difference whether or not the trial Judge made an order of striking out or dismissal.