Dr. Christian Nwachukwu Okoli V. Dr. Godwin Duru & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

on 27th February 2006, we heard arguments from counsel in respect of two applications. The two notices of motion emanated from Dr. Godwin Duru’s appeal. The first application, filed on 31st October 2005, is at the instance of Dr. Godwin Duru. The second application dated 4th February 2006 and filed on 23rd February 2006, is at the instance of Dr. Christian Nwachukwu Okoli, the first respondent in the appeal filed by Dr. Duru.

In his application, Dr. Godwin Duru prayed this court for:

“An order setting a side the swearing-in of the 1st respondent by the 7th respondent as chairman, Aba south Local Government council, Abia state which was carried out on Wednesday 26th October 2005 after the service on the 1st, 6th and 7th respondents of the appellant/applicant’s motion dated 24th october 2005. And for such further or other orders as this honourable court may deem fit to make in the circumstances.”

On his part, Dr. Christian Nwachukwu Okoli asked of us:

“An order setting aside the Notice of appeal dated and filed on the 14th day of October 2005, the motion on notice dated 24th October 2005 praying for departure from the Rules etc and the motion on notice dated 3rd day of October 2005 praying for an order setting aside the swearing-in of the 1st Respondent/Appellant as executive Chairman of Abia-South Local Government Council.”

The foregoing relief is canvassed on the grounds that:-

“Ex facie, the processes, the appeal is an appeal against the judgment of the High court of Abia state which is the Appeal court and the final court in Local Government Election cases in Abia State.”

The two applications were taken together with counsel to Dr. Christian Nwachukwu heard first. Dr. Nwachukwu questions the jurisdiction of this court. His position is that in the absence of a competent appeal, the court lacks the jurisdiction to grant the interlocutory reliefs asked it by Dr. Godwin Duru. Arguments in respect of Dr. Duru’s application were then subsequently taken. For ease of reference, Dr. Christian Nwachukwu-Okoli and Dr. Godwin Duru will henceforth in this ruling be referred to as 1st respondent/applicant and appellant/applicant/respondent respectively. 2nd – 7th respondents in the substantive appeal are also respondents and to the two applications.

1st respondent/applicant’s application is supported by a seven-paragraph affidavit.

In moving the application, learned counsel relied on the entire paragraphs. He argues that the appeal filed by the appellant is against the decision of the Abia State High court. By virtue of Section 186 (1) of the Abia State Local Government Law Cap 9 of 2002, the court is vested with final jurisdiction in local government election matters. Counsel submits that no process can lawfully be used to thwart the decision of the Abia State High Court in the capacity it sat and determined the matter between the parties thereat. Learned counsel referred to ground one in appellant/applicant/respondent’s notice of appeal and submits that what the complaint in the ground sets out to achieve is to relitigate a matter that had been finally disposed of by the Abia State High Court sitting as a final court in respect of election matters. Counsel relied particularly on Ezeobi Okpala v. Prince Anthony Chizoba Ezeani & 4 Ors (1999) 4 NWLR (Pt 598) 250 and urges that their application be granted.

Mr. Nwachukwu learned Principal State Counsel for the 2nd – 7th respondents to the application associated himself with the submissions of learned counsel to the 1st respondent/applicant. He reinforces their position by further citing and relying on the decision in Awuse v. Odili (2004) FWLR (Pt 193) 325 at 335-336. Counsel also urges that appellant/applicant/respondent’s appeal and all the other processes hinging on same be set aside. All, it is argued, are incompetent.

Appellant/applicant did not file any counter-affidavit in opposition to the facts deposed to in support of 1st respondent’s application. Learned senior counsel responded purely on grounds of law. He submits that appellant’s application to set aside the swearing-in of the 1st respondent hinges on the appeal against the decision of the Abia State High Court presided by Kalu J. and delivered on 14/10/05. The jurisdiction being exercised by Kalu J. is an original jurisdiction pursuant to S.46 of the 1999 Constitution. Appeal against such a decision is, senior counsel further argues, by virtue of Section 241 of the Constitution, as of right. Section 186 (1) of the Abia State Local Government Law No.9 of 2002 which vests final jurisdiction in local government elections matters in the State High Court has nothing to do with the court’s original jurisdiction under Section 46 of the Constitution. In the event of any inconsistency between a State legislation and the Constitution, senior counsel contends, the later will prevail to the extent of such inconsistency. Counsel finally submits that the decision in Awuse v. Odili (supra) does not avail the 1st respondent since the decision pertains the jurisdiction of the Court of Appeal under Section 246 of the Constitution. Senior counsel urges that 1st respondent’s application be dismissed. He then proceeded to argue appellant’s application for mandatory injunction to set-aside 1st respondent’s swearing in by the 7th respondent

Appellant’s application is supported by a seventeen paragraph affidavit sworn to by the applicant himself. Five documents are annexed to the supporting affidavit. Reliance is placed on particularly paragraphs 2 – 15 of the affidavit and the annexure.