Chief Bekinbo Alalibo Soberekon & Anor V. Rt. Hon. Rotimi Chibuike Amaechi & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Governorship and Legislative Houses Election Tribunal sitting at Port Harcourt delivered on 13th August 2007 refusing to set: aside its ruling delivered on 18th July, 2007 dismissing the petitioner’s petition.

On 14th April 2007 elections were conducted to the office of Governor of Rivers State. The appellant herein was the sponsored candidate of the Accord Party for the election. On 16th April 2007, Celestine Ngozichim Omehia, who contested on the platform of the Peoples Democratic Party (PDP) was declared duly elected by the 2nd respondent. The appellants were dissatisfied with the return of Celestine Omehia and consequently on 14th May, 2007 filed a petition before the Governorship and Legislative Houses Election Tribunal sitting at Port Harcourt (hereinafter referred to as “the Tribunal”). The grounds of the petition were that the 1st appellant was unlawfully excluded from the election and that the election was marred by various acts of electoral malpractice and noncompliance with the provisions of the Electoral Act 2006. The appellants sought an order that the election be declared null and void on the ground that it was not conducted substantially in accordance with the provisions of the Electoral Act 2006.

Pursuant to the provisions of the Election Tribunal and Court’s Practice Directions 2007 (hereinafter referred to as the Practice Directions) the parties filed and exchanged pleadings and the matter was set down for pre-trial sessions. The pretrial sessions commenced accordingly. On 14/7/07, learned counsel for the petitioners wrote to the Tribunal requesting an adjournment of the pre-hearing session to 17/7/07. The matter was adjourned to 18/7/07. On 18/7/07, another letter was written to the Tribunal on behalf of the petitioners requesting a further adjournment on the ground that the lead counsel, Mike Okoye, Esq. was attending the NEC meeting of the NBA holding at Eket. The 1st and 2nd – 7th respondent’s counsel opposed the request for an adjournment. The Tribunal in a considered ruling delivered the same day held that no cogent reason had been given to warrant the exercise of discretion in favour of the petitioner. It refused the request for an adjournment and dismissed the petition as being abandoned pursuant to paragraph 3 (11) of the Practice Directions.

The petitioners then proceeded to file an application pursuant to paragraph 3 (12) of the Practice Direction for an order setting aside the dismissal of the petition. The respondents strongly opposed the application. In a considered ruling delivered on 13/8/07 (at pages 782 – 783 of the record) the Tribunal dismissed the application on the ground that the applicants failed to satisfy the mandatory requirements, which are conditions precedent to the grant of such an application.

The appellants were dissatisfied with the decision and filed a notice of appeal dated 31/8/07 containing two grounds of appeal.

It is also pertinent to note at this stage that on 25/10/2007 the Supreme Court in the case of Amaechi V. INEC Appeal No. SC/252/2007 reported in (2007) 18 NWLR (1065) 105 held that Rt. Hon. Chibuike Rotimi Amaechi of the PDP was the lawful candidate of the party at the election held on 14th April 2007. The Court ordered Celestine Omehia to vacate the seat of Governor of Rivers State immediately and ordered that Rt. Hon. Chibuike Rotimi Amaechi be sworn in immediately as Governor. The reasons for the judgment were given on 18th January 2008 in: Amaechi V. INEC (2008) 5 NWLR (1080) 227.

As a result of the Supreme Court judgment, the appellants herein filed an application for leave to substitute Rt. Hon. Chibuike Ratimi Amaechi for Celestine Omehia as the respondent in this appeal. The application was granted on 26th November 2008.

The parties in this appeal duly filed and exchanged their briefs of argument in compliance with the rules of this court. On 22/2/2010 when we heard this appeal, Prince Lateef Fagbemi, SAN drew the court’s attention to the preliminary objection filed by the 1st respondent to the hearing of the appeal, which has been argued in his brief. Chief A.S. Awomolo, SAN, adopted and relied on the appellant’s amended brief of argument dated 26/1/10 and filed on 27/1/10. He also adopted and relied on the appellant’s reply to the 1st respondent’s brief filed on 12/2/10 and reply to the 2nd – 7th respondent’s brief filed on 18/2/10. He urged the court to allow the appeal. As a consequential relief, he urged the court to exercise its powers under Section 15 of the Court of Appeal Act to order an accelerated hearing of the petition from day to day. On whether the Tribunal had jurisdiction to hear the application to set aside its ruling he referred to pages 788 lines 1-5 and 792 lines 25- 29 of the record.

Prince Fagbemi, SAN, adopted and relied on the 1st respondent’s brief dated 5/2/10 and filed on 8/2/10. He referred to the preliminary objection raised and argued in the said brief and adopted the arguments in respect thereof. He stated that the 1st respondent had also filed a separate notice of preliminary objection also dated 5/2/10 and filed on 8/2/10. He observed that the appellants did not address ground 2 of the preliminary objection in their reply and urged the court to find the said ground established. He submitted that parties cannot confer jurisdiction on the court by consent or acquiescence. He cited the case of: Uduma Vs Arunsi (2009) 17 NWLR (1170) 310 at 326 – 329. He however submitted that the case of Uduma v. Arunsi (supra) is inapplicable to the facts of this case with regard to whether or not there can be an appeal against the decision of the Tribunal. He urged the court to uphold the preliminary objection and strike out the appeal. Alternatively, on the merit of the appeal he urged the court to dismiss it.

Chief Kanu Agabi, SAN, adopted and relied on the 2nd – 7th respondent’s brief dated 10/2/10 and filed on 11/2/10. He stated that the 2nd – 7th respondents had also filed a notice of preliminary objection dated 29/10/08 and filed on 3/11/08, which had been argued at pages 2 – 11 of the brief. He adopted the arguments in support of the preliminary objection and urged the court to uphold it. He submitted that an, appellant whose appeal had been dismissed pursuant to paragraph 3 (11) of the Practice Direction could not ask for it to be relisted; that the option open to him is to appeal against the dismissal. He urged the court to dismiss the appeal.

Relying on points law, Chief Awomolo, SAN submitted that the respondents were not entitled to raise the issue of jurisdiction by way of a preliminary objection. He submitted that they could only raise the issue by way of a cross-appeal. He also argued that the decision in A.N.P.P. Vs R.E.C. Akwa Ibom State (2008) 8 NWLR (1090) 453 relied upon in the 1st respondent’s Brief is distinguishable from the instant case on the ground that the court did not consider “judgment” in terms of Section 318 of the 1999 Constitution. He also urged the court to consider the purpose of paragraph 3 (12) of the Practice Direction in light of the decision in Abubakar Vs Yar ‘Adua (2008) 4 NWLR (1078) 465 at 511.

Prince Fagbemi urged us to expunge Chief Awomolo’s oral submissions on points of law on the ground that he failed to utilise the opportunity of filing a reply brief to address the issues.

As the 1st and 2nd – 7th respondents have raised preliminary objections to the hearing of the appeal, it is prudent to consider the objections before delving into the merits of the appeal.