Chief Great Ovedje Ogboru & Anor. V. Dr. Emmanuel Ewetan Uduaghan & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C

On the 17/11/2011, these appeals were consolidated and heard at the end of which we decided to strike them out on the grounds of lack of any live issue as the appeals have lapsed. We promised to give our full reasons for the decision later. I now give my reasons.

The appeals stem from the decision of the Court of Appeal, Benin, dated 20/9/2011, whereat the appellant’s appeal against the decision of the Tribunal of 25/7/2011, having been earlier dismissed on the ground that the subject matter on ground, there was no live issue contestable as between the Parties.

1. After the 2007 April election a re-run election was ordered by the Court of Appeal and the election was conducted on the 6/1/2011.
2. On the 25/7/2011, the trial Tribunal decided the petition filed by the Appellant.
3. Before that decision of the 25/7/2011 in Suit No. FHC/ASB/CS/20/2011, the tenure of the 1st Respondent was adjudged to expire by 29/5/2011 on the said re-run election.
4. Despite the said decision, the Tribunal for the re-run election disagreed with the 1st Respondent that the petition of the Appellant had become spent.
5. In Appeal No. CA/B/EPT/229/2011, the 1st Respondent argued on the issue of whether the petition was spent or not.
6. When finally, the Tribunal decided and found against the Appellants in the re-run election the Appellants filed appeal CA/B/EPT/227/2011 which is the subject of this appeal. The two appeals were heard together on the 20/9/2011,
7. On the 22/9/2011, the Court of Appeal delivered its judgment aforesaid. In Appeal No.CA/B/EPT/229/2011, which it delivered firstly, it held that the petition of the Appellants had become spent and academic due to the expiration of the tenure of the 1st Respondent on the re-run election on the 29/5/2011 and struck out the petition.

With regard to Appeal CA/B/EPT/227/2011, the subject matter of this appeal, the Court of Appeal decided that it would be an act in futility having held that the tenure of the 1st Respondent had become spent to discuss the merits of the Appellants complaints as contained in issue NO.2 submitted by the Appellants.

On the 17th day of November, 2011, date of hearing, this Court asked counsel to address the Court on whether, this Court has jurisdiction to entertain the appeals and whether having regard to the issue of the expiration of the tenure of the 1st Respondent, there is in existence a live issue to be decided between the parties.

For the Appellants, learned Counsel on their behalf, Mr. O. M. Sagay SAN contended that this Court has jurisdiction to entertain the appeals. That the petition, subject of this appeal was filed on the 27th January, 2011. That it was filed subsequent upon the question of who should be the Governor of Delta state. He said the result of that re-run election was declared on the 7th January, 2011, which election fell within the ambit of the second amendment of the 1999 Constitution as amended which amendment came into effect on 29/11/2010, even though the President of the Federal Republic of Nigeria signed it on the 10th January, 2011.

Mr. Sagay submitted that the commencement of the alteration to the Constitution was the date so stated within that document, the later date of signing by the President notwithstanding. He referred the Court to Section 2 of the Interpretation Act, Cap.123, Vol. 8 Laws of the Federation of Nigeria 2004.

Learned counsel for the Appellant further contended that once the National Assembly passes a Bill, it does not require presidential assent to come into force. That the law that applies is that which existed when the cause of action arose on the 29th November, 2010, when the alteration to the Constitution was made by the National Assembly. That the cause of action herein arose on 7th January 2011 when the result of 6th January 2011 was made. That Section 179 of the Constitution which conferred the right to contest on the Appellant and by virtue of Section 285(7) of the Constitution as amended appeal can now come before this Court so long as the matter is determined within 60 days on appeal. That there is a live issue. He cited Section 233(1) – (iv) of the Constitution.

Stated further for the Appellant is that the right of the 3rd Respondent (INEC) to conduct the subsequent election of April, 2011, cannot take away the rights under the earlier re-run of 6th January, 2011 as the tenure of the re-run had not lapsed being a fresh election. That by the time Appellant filed the Petition on 27th January, 2011, it was covered by section 233 of the Constitution and so INEC ought not to have conducted its election of April, 2011 to the same seat.

Mr. Sagay concluded by asking this Court to exercise its jurisdiction under Section 22 of the Supreme Court Act and hear the appeal on the merit of the case. He referred to Plateau State v. Attorney-General of Nigeria (2006) 25 WRN 1 at 91. That the appeals should be allowed as there is a live issue.

Responding for the 1st Respondent learned Counsel on his behalf Chief Olanipekun SAN submitted that the Court of Appeal was right to hold that these appeals were not from a fresh election but a re-run of 2007 election. That the question arising is whether 1st Respondent is in a position to appeal to this Court on the Order of the Court of Appeal which ordered for a re-run by virtue of Section 246 of the Constitution before the amendment. That if 1st Respondent could not cry out to this Court to ventilate their grievance on that order of re-run, then anything arising from that cause of action would not come before this Court as the applicable law is the Constitution before the amendment. He referred to the list of Additional Authorities of 15/11/11; Olanivi v. Aroyelwu (1991) 5 NWLR (Pt.194) 652 at 961; Ecoconsult v. Pancho Villa Ltd. (1999) 1 NWLR (Pt.588) 507.

Senior Counsel submitted that this Court has no jurisdiction to entertain this matter as the Constitution had barred this Court and the Interpretation act cited by Counsel on the other side is against interest. That the re-run was held on 6th January, 2011 and the President signed on the 10th January, 2011. He said the cause of action had its root in the 2007 general elections. He referred to page 105 – 106 where the lower Court also referred to its own judgment and the judgment of Buba J of the Federal High Court on the tenure of the 1st Respondent; Chief Olanipekun went on to say that the Court of law like nature, does not act in vain. That assuming this Court goes ahead what would be the value since 1st Respondent is not occupying the seat of Governor of Delta by virtue of the re-run election but by virtue of the April, 2011 election. That the case of Plateau State v. A.G. Federation which Appellants’ counsel cited is even against them. He said the appeals should be struck out or in the alternative dismissed for being abuse of process of Court.

Chief Adenipekun learned Counsel for 2nd Respondent, adopted the submissions of Chief Olanipekun and urged the Court to resolve the issues in favour of the Respondents. That they agreed that the Constitution was signed by the President on 10th January, 2011. That the cause of action which brought about these appeals arose before the amendment of the Constitution and so the law applicable to the appeals is the 1999 Constitution before its amendment and so this Court lacks jurisdiction to entertain these appeals. He cited Mustapha v Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539 at 591 per Nnamani JSC.

That it is the law in operation on 7th January, 2011, that would apply and that the judgment of Buba J has not been appealed against which judgment is one in rem and binding on all parties.