Chief (Mrs) Olufunke Victoria Ehuwa V. Ondo State Independent Electoral Commission & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

This is an appeal against the ruling of the Court of Appeal, Benin Division (hereinafter called (“the court below”) delivered on 8th July, 2005 declining jurisdiction to entertain the appeal filed by the appellant against the judgment of the High Court of Ondo State on the ground that, that court was the final court.

The facts of the case briefly stated, are, that the appellant was the petitioner at the Local Government Election Petition Tribunal, Ondo State where she challenged the nomination, sponsorship and eventual election of the 2nd respondent as the Chairman of the Ilaje Local Government of Ondo State. After the trial, the Tribunal declined to determine the petition on the merits on the ground that it was/is an internal affair of the party and therefore, dismissed the petition. The appellant appealed to the High Court of Ondo State, which court, after hearing the appeal, dismissed the appeal and upheld/affirmed the decision of the Tribunal.

Dissatisfied with the said decision, the appellant appealed to the court below. In that court, the 2nd respondent, raised a preliminary objection and urged the court to strike out the appeal in limine for being incompetent. He relied on section 94(2)(1) of the Local Government Administration, Conduct of Local Government Election and Allied Matters Law, 2003 of Ondo State (hereinafter called “the Law”) which makes the said High Court, the final court for Local Government Election petitions. On 8th July, 2005, the court in a considered ruling, upheld the preliminary objection. It also declined jurisdiction. It is against the ruling, that the appellant has appealed to this court on one ground of appeal. The appellant has formulated one issue for determination that reads as follows:

“Whether having regard to the combined effect of sections 240 and 241(1)(a)(b) and f(v) of the Constitution of the Federal Republic of Nigeria, 1999 and the peculiar provisions of section 94(2)(1) of the Local Government Administration Conduct of Local Government Election and Allied Matters Law, 2003 of Ondo State (hereinafter called Ondo State Electoral Law 2003) appeal cannot lie as of right (in appropriate case as the instant case) from a decision of the High Court of Ondo State to the Court of Appeal merely because it was an appeal emanating from an election petition”.

The respective lone issue formulated by the 1st, 3rd and 4th respondents and the 2nd respondent in their respective brief, is in substance, similar to that of the appellant although differently worded/couched. It is my humble but respectful view and as rightly submitted by the learned counsel for the appellant in paragraph 4.01 of their brief, that:

“The tiny but all important issue to be determined in this appeal is whether, the Court of Appeal lacks jurisdiction to determine this appeal in view of the fact that the appeal relates to Local Government election.”

I need to emphasize that through out the brief of the appellant, it is stated and indeed conceded that this instant appeal, relates to the said Local Government election. In paragraph 3.01 of the Statement of facts, the following appear, inter alia:

“The facts relevant to this appeal is that the plaintiff filed an election petition at the Local Government Election Petition Tribunal of Ondo State over the undue return for the office of Chairman of Ilaje Local Government by the Ondo State Electoral Commission. The Election Tribunal declined jurisdiction to determine the petition.”

At the hearing of this appeal on 19th September, 2006, the learned counsel for the appellant – Nwafor-Orizu, Esq., submitted inter alia, thus:

“This is not an Election Petition appeal, but for interpretation.”

Wonders, it is said, can never end:

Just as in No.4 of their Argument, he referred to and relied on section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria, and submitted that an Election Petition, according to him, does not have a specific law. He referred to section 240 of the said Constitution and submitted that section 240(b) thereof, is clear. He then referred to their ALTERNATIVE submission at page 8, paragraph 4.14 of their brief and cited and relied on the case of FRN (Federal Republic of Nigeria) v. Lord Chief Ifegwu (2003) 15 NWLR (Pt.842) 113 at 149,205-207 (it is also reported in (2003) 5 SCNJ 217). In his reply on points of law, apart from submitting that the two cases of Sorunke v. Odebunmi (1960) SCNLR 414; and Obih v. Mbakwe (1984) Vol. 1 SCNLR 192 (it is also reported in (1984) NSCC Vol. 15, p. 127) cited and relied on by the learned counsel for the 2nd respondent Olatubora, Esqr, in his oral submission, about election matters not being simple civil cases and that they are different and distinguishable from ordinary civil proceedings and therefore, do not have the incidence of ordinary civil maters and thus cannot come on appeal by virtue of sections 240 and 241 of the 1999 Constitution, Nwafor Orizu, Esq, submitted that the State High Court Laws for which according to him, one comes to this court, are sometimes Bye Laws, etc. That reliance on section 7 of the 1999 Constitution, is ridiculous.

I will pause here to observe that Mr. Olatubora in paragraph 4.02 of their brief in support of his submission that proceedings in election petitions, are regarded as sui generis cited and relied on the case of Orubu v. NEC which he stated that it is reported in (1988) 3 NSCC 333 and in his List of Authorities No.3 as in (1998) 3 NSCC 33, with respect, there is no such case either at p.33 or 333 or any other page in Part 3 of the NSCC Report. The case is reported in (1988) 5 NWLR (pt.94) 323 and (1989) 12 SCNJ 254. Learned Counsel appearing in this court, are please advised to ensure that they refer to the correct citations/references in their briefs or oral addresses.