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.
- 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.
- On the 25/7/2011, the trial Tribunal decided the petition filed by the Appellant.
- 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.
- 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.
- In Appeal No. CA/B/EPT/229/2011, the 1st Respondent argued on the issue of whether the petition was spent or not.
- 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,
- 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.
Mr. Raji, learned Counsel for the 3rd Respondent also adopted the submissions of Counsel for 1st and 2nd Respondents. He referred to Section 58 of the Constitution on when the amendment would take effect. That if the provisions of the Interpretation Act go contrary to the Constitutional provision that provision of the Act would be valid. That the petition of the Appellant is nothing but an academic exercise and an abuse of Court’s process.
The Court after hearing from all Counsel and having perused the documents related thereto had no difficulty in finding for the respondents and affirming the judgment of the Court of Appeal holding the lack of jurisdiction as basis and strike the appeal out. The court then adjourned for the reasons for the judgment which is what is being embarked upon here and now.
Two issues had arisen in the Court of these addresses of Counsel as to whether or not, there is jurisdiction upon which this Court can entertain the appeals and these are:-
- Whether this Court has jurisdiction to entertain this matter which stems from the April 2007 election
- Whether there is res for this Court to consider in this matter since the tenure of the 1st Respondent in the matter of the re-run election expired on May 29, 2011.
At the risk of repetition, I would like to once again, but may be in different words re-capture the facts, this for emphasis and they are as follows:-
This appeal stems from the judgment of the Court of Appeal, Benin Judicial Division dated 22nd September, 2011, whereat the lower Court allowed the appeal of the respondent against the judgment of the governorship Election Tribunal, sitting in Asaba, Delta State, dated 25th July, 2011, particularly, against that portion of the judgment where the trial Tribunal held that the petition before it was not spent and/or was not on academic one.
Respondent was first elected as Governor of Delta State in 2007 and was sworn in on 29th May, 2007.
The Appellants challenged his return at the Election Tribunal, but their petition was dismissed. On a further appeal to the Court of Appeal, the appeal Court allowed the appeal and ordered a re-run election, as per the judgment of the Court of Appeal dated 9th November, 2010.
Pursuant to the order of the Court of Appeal, a re-run election was held on 6th January, 2011, whereof the Respondent again won and was duly sworn-in, after taking a fresh oath of office.
In Suit No. FHC/ASB/CS/20/2011 between Uduaghan vs. INEC & Ors instituted by the Respondent before the Federal High Court, Asaba, respondent contended that his tenure was a fresh one, commencing from when he took his fresh Oath of office, after the re-run election of 6th January, 2011. The Appellants, on their own, applied to the Federal High Court to be joined as parties to the action and their application was granted. Thereafter, Appellants strenuously and vigorously contended that the Respondent’s tenure would end on 29th May, 2011 and not a second after, as it was a continuation of the initial tenure which commenced on 29th May, 2007.
In a well considered judgment delivered on 15th March, 2011, Buba J of the Federal High Court, Asaba dismissed the Respondent’s action and held that his tenure would automatically come to an end on 29th May, 2011, more; particularly so with the amendment of the Constitution of the Federal Republic of Nigeria, 1999, by the insertion of a new sub-section (2A) to the existing section 180(2).
Fresh elections were held on April 26, 2011, in which both the Appellants and the Respondent, amongst others, participated and, at the end of the election, the Respondent again was returned as the winner, having secured majority of lawful votes cast thereat.
The Appellants filed a fresh petition, first, against the return of the Respondent in there-run election and later, another petition in respect of the April 26 election.
The Respondent raised several objections to the competence of the petition on the re-run election bearing in mind the judgment of Buba J of 15th March, 2011 and section 180(2) (2A) of the constitution, contending further that the petition itself had become spent in the sense that the tenure which was the res expired on 29th May, 2011.
On 20th July, 2011, the same Federal High Court, Asaba in Suit No: FHA/ASB/CS/104/2011 between Nwaoboshi & Anor v INEC & Ors (unreported) held that the 1st Appellant was not qualified to even contest the re-run election.
The trial Tribunal disagree with the Respondent that the petition before it was not spent and lifeless, thus, resolving the first issue it formulated against the Respondent, but went ahead to dismiss the petition, after resolving the second issue against the Appellants.
Respondent appealed against the resolution of the first issue against him by the trial Tribunal, contending at the Court of Appeal that the issue was central and primary to the jurisdiction of the trial Tribunal. The Appellants appealed to the Court of Appeal against the resolution of the second issue against them by the trial Tribunal.
The Court of Appeal agreed with the Respondent that the petition had actually become spent, vesting no jurisdiction in the trial Tribunal, thus, striking it out and, thereafter, dismissing the Appellants’ appeal against the resolution of issue 2 against them. As at the time this appeal is still pending at the Supreme Court, these same Appellants are vigorously prosecuting their petition in Petition No: EPT/DT/GOV/4/2011 between Chief Great Ovedje Ogboru & Anor v Dr, Emmanuel Owetan Uduaghan & Ors at the Governorship Election Tribunal, Asaba.
In the exact words of the Court of Appeal, Benin Judicial Division which in delivering it’s judgment stated as follows in CA/B/EPT/227/2011:-
“We are of the view that deciding the merits or otherwise of this appeal is an academic exercise, in view of our earlier judgment. Accordingly, this appeal ought to be struck out and it is hereby struck out”.
In CA/B/EPT/227/2011 the same Court of Appeal held and ordered as follows:-
“The questions in the said petition had become academic. The Tribunal, therefore, acted without jurisdiction as the petition was then liable to be struck out. In conclusion, this appeal succeeds and it is hereby allowed. The petition filed by the 1st and 2nd Respondents in the Tribunal is hereby struck out”.
That Lower Court had also referred to the Federal High Court Suit presided over and determined by Buba J of the Federal High Court Asaba, in a suit brought before that Court by 1st Respondent, Governor Emmanuel Ewetan Uduaghan on the question whether his tenure after the re-run election would not be covered by the 1999 Constitution as amended. That Court of trial in a very well considered judgment held as follows:-
“The Court was referred to the case of LABOUR PARTY V. I.N.E.C. (SUPRA) AT 339 (Paragraph E). It is submitted that the import of Section 180 (2A) of the alteration to the Constitution that the election in the entire Delta State was a re-run over which the plaintiff being duly elected must serve out his 4 years tenure with the previous 3 years and seven months in contemplation.
The issue formulated by learned Counsel to the 2nd and 3rd Defendants Mr. R. E. Emukpoeru is: Whether the Plaintiff is entitled under any circumstances to hold or and occupy the office of Governor of Delta State for more two terms of four years each or how long can the Plaintiff hold the office of Governor of Delta State under the provisions of the constitution
It is submitted that the inescapable fall out of the submissions no doubt is that since the states houses of assembly approved Section 18 of the First Alteration Act by the 16th July, 2010, the Plaintiffs’ case falls squarely to be determined by that section, since his election of 14th April, 2007 was annulled on the 9th of November, 2010 and the fresh election was conducted on the 6th of January, 2011, when the amendment to Section 180 by Section 18 of the First Alteration Act had come into full force and effect.
It is submitted that the decision of Justice Okeke of the Federal High Court in OLISA AGBAKOBA V. NATIONAL ASSEMBLY, that the assent of the President is required before the Constitution comes into effect, is not binding on this Court being the decision of a Court of co-ordinate jurisdiction. That Court is not bound at all to follow this decision. The Court was urged not to follow the decision at all.
The Court was urged to hold that President’s assent is not a sine qua non to the coming into force of the alteration of the provisions of the constitution.
The Court was urged to hold that the First Alteration came into full legal force and effect on the 16th of July, 2010 and the plaintiff’s claims in this actions falls squarely to be determined under the new sub-section 2 (A) to Section 180 of the constitution as introduced by section 18 of the First Alteration Act, 2010.
It is argued that in the event that the Court does not see its way clear in holding that Presidential assent is not a requirement for the alteration of the constitution, the 2nd and 3rd Defendants nevertheless’ submits that since the president signed the alterations to the Constitution on the 10th of January, 2011, the day the plaintiff took another oath of allegiance and oath of office, his case falls to be determined under the new sub-section 2(A) of section 180 of the Constitution. This is because as can be seen clearly from the provisions of the First Alteration Act 2010 its commencement date is still the l6th of July, 2010.
The Plaintiff has as the foundation of his cause of action the oath of allegiance and oath of office he took on the 10th of January, 2011. Without this oath of allegiance and oath of office taken on the 10th of January, 2011, the Plaintiff would have no cause of action whatsoever, since section 185(1) of the constitution prohibits him from holding the office of Governor without taking the oath. So whether the Constitution comes into force on the 16th of July, 2010, as the commencement date loudly proclaims or the 10th of January, 2011, the Plaintiff is nevertheless caught by the provisions of the new sub-section 2 (A) introduced by section 18 of the first Alteration Act 2010.
In conclusion, the 2nd and 3rd Defendants align themselves with the submissions of the 1st Defendant as eloquently articulated in their written address and urged the Court to dismiss in its entirety all the reliefs claimed on the originating summons because the plaintiff is not entitled to a fresh term of four years. The Plaintiff’s term must take into account the three and half years he held the office of Governor of Delta State and he must vacate Government House Asaba, by latest 12 mid-night of the 28th May, 2011″.
It is not surprising that there was no appeal from wither side to the Court of Appeal and both parties proceeded to the fresh election of April, 2011 on the clear understanding that the earlier tenure of the 2007 Election would come to an end at mid-night of 28th May, 2011.”
From those details of the prevailing circumstances and the clear decisions of the two Court below, and what transpired thereafter with the fresh election of April, 2011, it became strange that the Appellant herein would assault this Court with these appeals which are the subject of this ruling. Learned Senior Counsel for the different Respondents had alluded to these acts of the Appellant as abuse of Court process. When an abuse of Court process is said to occur, it show cases a situation where a party has instituted a Court process with the clear lack of bona fides leading to annoyance and irritation of the other party, with an aim to over-reach with the attendant result of having the Court itself directly vexed. I would refer to the cases of Dingyadi v INEC (2011) 10 NWLR (Pt. 1089); (2008) 2 -3 SC (Pt 1135).
While not going as far as declaring these appeals including that at the Court below as abuse of Court process, I would firstly refer to Section 246(1)(b)(ii) and (3) of the 1999 constitution which provisions are as follows:-
246 – (1) An appeal to the court of Appeal shall lie as of right from –
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal on any question as to whether-
(ii) any person has been validly elected to the office of Governor or Deputy Governor;
(3) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.
With those provisions which were the Constitutional mandates as at the time the cause of action which is the re-run of the General Elections of 2007, which tenure shall be effluxion of time and without anything being done expire by mid-night of 28th May, 2007. Therefore, assuming the Tribunal and even the final Court in relation thereto, the Court of Appeal had returned as duly elected on the re-run, the person of the 1st Appellant, Chief Great Ogboru, his tenure would have expired not later than 28th May 2007, the mid-night thereof.
It is in the light of these truths that these appeals are vexing and a reckless display of an academic prowess exhibited by Appellant through counsel in the clear disregard that it is not the duty of this Court to be taken on academic, hypothetical journey without of course a destination. This is because this suit and appeal are of an empty and purposeless value even if judgment is granted in the Plaintiff/Appellant’s favour. The implication which must be stated loud and clear is that there is a dereliction of duty on the part of counsel to the Appellants who has by these appeals shown a complete disregard of his responsibility to this Court being his primary duty before the interest of his client comes into play. This is rather unfortunate and I make no bones in saying so. The Appellants attempt to invoke Section 233(2)(e)(iv) of the 1999 Constitution as amended to give them the enablement with which these appeals in the circumstances existing be viable for adjudication from the Court of Appeal to this Court is a day dream which time is yet to come. I would cite the following cases:-
Bob v Akpan (2008) 7 NWLR (Pt. 1087) 449 at 459; Bamaiyi v. A.G. Federation (2011) 2 NWLR (Pt.727) 468; Agbakoba v INEC (2008) 18 NWLR (Pt. 1190) 489 at 546; Odedo v INEC (2008) 17 NWLR (Pt. 1117) 554 at 600.
From all that I have stated above, it is easy to see that indeed just like the Court below and the trial Tribunal lacked the jurisdiction, this apex Court has no leg upon which it can assume jurisdiction and I say so while declining jurisdiction. I affirm the decision of the Court of Appeal and also strike out the Petition.
Parties are to bear their own costs.
SC.361/2011, SC.362/2011 (Consolidated)