Dr. KemdBode Rhodes-Vivour, JSCi Opara Vs Hon. Bethel Amadi (2012)
LAWGLOBAL HUB Lead Judgment Report
Bode Rhodes-Vivour, JSC
This is an appeal from the Ruling of the Court of Appeal Owerri Division, delivered on the 22 day of March 2012. In that Ruling the Court of Appeal struck out the appellants’ appeal for want of jurisdiction.
The facts are these.
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On the 9th day of April, 2011, INEC, (2nd respondent) the regulatory body charged with conducting elections in Nigeria conducted the National Assembly elections for the Mbaitoli/Ikeduru Federal Constituency of Imo State in the House of Representatives. Dr. K. Opara (the 1st appellant) was the candidate of APGA, while Hon. B. Amadi (the 1st respondent) was the candidate of the PDP. Candidates of several other parties contested the election, but they are irrelevant in this appeal. At the end of the election INEC declared the is respondent the winner. Not satisfied with the results of the election the appellant as petitioner filed a petition. On the 25th day of September 2011 the Court of Appeal allowed the appeal and remitted the petition to the Election Petition Tribunal to be heard on the merit. On the 18th day of November 2011 the Tribunal struck out the Petition for lapse of time. Dissatisfied the appellant filed an appeal on the 21st day of December 2011. The appeal came up for hearing on the 26 day of January 2012. The Court of Appeal could not hear the appeal because as at that day 60 days as provided by section 285(7) of the Constitution had elapsed by 6 days. In a Ruling delivered on the 22nd day of March 2012 the Court of Appeal struck out the appeal for want of jurisdiction. This appeal is against that Ruling.
In accordance with Rules of this court learned counsel for the parties filed and exchanged briefs of argument. The appellants’ brief was filed on the 11 day of May, 2012, and a Reply brief on 14th day of June 2012. The 1st respondents brief incorporating arguments on a Preliminary objection was filed on the 31 day of May, 2012, where the 2 respondents brief was deemed duly filed on the 21st day of June, 2012.
Learned counsel for the appellants formulated three issues for determination. They are:
Whether the Court of Appeal’s conclusion on the binding Supreme Court judgment in a situation of conflict between an earlier and a later judgment was correct in law.
Whether the decision of the Court of Appeal that section 285(7) does not in any way infringe a party’s right to fair hearing was correct.
Whether section 285(7) is a valid alteration under the 1999 Constitution (as amended).
Learned counsel for the 1st respondent formulated a sole issue for determination. It reads:
Having regard to the clear and unambiguous provision of section 285(7) of the 1999 Constitution (as amended), coupled with the binding nature of the decisions of the Supreme Court interpreting the said section, whether the lower court was not right in striking out the appellants appeal which emanated from the decision of an election tribunal and was caught up by the said Constitutional provision.
On his part learned counsel for the 2nd respondent formulated two issues for determination.
Whether the provision of section 285 (7) of the Constitution is an infraction on section 36(1) of the Constitution thereby denying the appellants their right to fair hearing.
Whether the provision of section 285 (7) of the 1999 Constitution (as amended) ought to be nullified on the ground that it amended section 36(1) of the Constitution without compliance with the Constitutional procedure.
Before I advert my mind to consideration of the issues for determination, I must observe that the 1st respondent filed a Preliminary Objection urging this court to strike out this appeal for want of jurisdiction.
The grounds for the preliminary objection are:
(a) The appellate jurisdiction of the Supreme Court is clearly delineated by section 233(1) of the 1999 Constitution (as amended).
(b) The said section 233(1) does not clothe the Supreme Court with jurisdiction or vires to entertain appeals arising from decisions of the Court of Appeal in respect of Elections into the House of Representatives.
(c) Per Force and by virtue of section 246(3) of the 1999 Constitution (as amended), the Court of Appeal is the final court in respect of appeals arising from decisions of Election Tribunals in relation to House of Representatives Elections.
(d) The present Appeal is against the decision of the Court of Appeal handed down on the 22nd day of March 2012 in respect of the Election of the 9 day of April, 2011 into the Mbaitoli/ Ikeduru Constituency of Imo State in the House of Representatives.
(e) The entire appeal has become a mere academic exercise, and a fortiori, the reliefs sought by the appellant in their Notice of Appeal and re-iterated in their brief of argument have become sheer moot and hypothetical postulations.
(f) The present appeal constitutes a crass abuse of court process.
The Preliminary objection raises the question whether the Supreme Court has the jurisdiction to hear appeals from the Court of Appeal on National Assembly election results.
Learned counsel for the 1st respondent observed that appeals arising from the decisions of election tribunals in respect of election into the National Assembly and State Houses of Assembly come to an end with the decision of the Court of Appeal.
Reliance was placed on sections 233(1) and 246(3) of the Constitution.
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Dangana v. Usman 2012 ALL FWLR Pt.627 p.612
Awuse v. Odili 200318 NWLR Pt.851 p.116
He urged this court to strike out this appeal for being an abuse of court process and conferring no jurisdiction on the court.
In response, learned counsel for the appellants argued that the decisions of the Court of Appeal that are final under section 246(3) of the Constitution are those on the items in subsection (b) (i) (ii) and (iii) of section 246 (1) of the Constitution, contending that any decision on any other item or issue over which the Supreme Court enjoys Constitutional jurisdiction is not final, and would be appealable to the Supreme Court.
He submitted that the finality provision of section 246 (3) of the Constitution does not affect the jurisdiction of the Supreme Court under section 233 of the Constitution. Reliance was placed on
PDP v. Onwe 2011 4NWLR pt.1236 p.166.
Concluding, he further submitted that the breach of fundamental right to fair hearing, and erosion of judicial power complained about in the appeal did not arise out of the pleadings in the petition but out of the act of application of section 285 (7) of the Constitution contending that the Supreme Court should assume jurisdiction and determine this appeal.
A preliminary objection on jurisdiction of an appeal court; in this case the Supreme Court to hear the appeal, if successful brings the hearing of the appeal to an end. This is premised on sound reasoning that there is nothing as useless as doing efficiently what should not have been done in the first place. It must be elementary now that jurisdiction is a threshold issue, and so once raised it must be heard first and resolved one way or the other. Any proceeding conducted without jurisdiction no matter how brilliantly handled would amount to a nullity if the court had no jurisdiction to entertain the matter. See
Bature v. State 1994 1NWLR pt.320 p.267
Ishola v. Ajiboye 1994 6NWLR pt.352 p,506
Usman Dan Fodio University v. Kraus Thompson Organisation Ltd 2001 15NWLR pt.736 p.305
This court would be competent to hear this appeal if or when:
It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and
The subject matter of the case is within its jurisdiction, and no feature in the case which prevents the court from exercising its jurisdiction, and
The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction see Madukolu & ors v. Nkemdilim 1962 2NSCC p.374
The issue raised in the Preliminary objection falls within (2) above. That is whether the subject matter of this appeal falls within the jurisdiction of this court.
It is important at this stage that the subject matter or substance of the appeal is identified to enable this court know if it has jurisdiction over such matters. After examining the petition it becomes clear that what is in issue is, who as between Hon. B. Amadi, PDP, and Dr. K. Opara, APGA won the National Assembly Elections held on the 9th day of April, 2011 for the Mbaitoli/Ikeduru Federal Constituency of Imo State in the House of Representatives. The question to be asked now is, whether the Supreme Court has jurisdiction over such matters, and in answering the question sections 233 (1) and 246 (3) of the Constitution which show the jurisdiction of the Supreme Court and Court of Appeal on Election must be examined.
Section 233 (1) (2) (e) (i) (ii) (iii) (iv) (v) (vi) (f) of the Constitution states that:
233(1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal.
(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases –
(e) decisions on any question
(i) Whether any person has been validly elected to the office of President or Vice President under this Constitution.
(ii) Whether the term of office of office of President or Vice President has ceased;
(iii) Whether the office of President or Vice President has become vacant; and
(iv) Whether any person has been validly elected to the office of the Governor or Deputy Governor under this Constitution;
(v) Whether the term of office of a Governor or Deputy Governor has ceased;
(vi) Whether the office of Governor or Deputy Governor has become vacant; and
(f) Such other cases as may be prescribed by an Act of the National Assembly.”
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After examining section 233 of the Constitution and its subsections, it is clear that appeals shall lie as of right from the decisions of the Court of Appeal to the Supreme Court only in the items listed under (e) (i), (ii), (iii), (iv), (v) and (vi). There is no provision for leave to appeal. It is thus abundantly clear that the Supreme Court does not have jurisdiction to hear appeal on National and State Houses of Assembly election petitions.
Now, does the Court of Appeal have jurisdiction on National and State Houses of Assembly election petitions.
Section 246 of the Constitution States that:
246(1) An appeal to the Court of Appeal shall lie as of right from –
(a) decisions of the Code of Conduct Tribunal established in the fifth schedule of this Constitution.
(b) decisions of the National and States Houses of Assembly Election Tribunals; and
(c) decisions of the Governorship Election Tribunals on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the Constitution.
(ii) any person has been validly elected to the office of a Governor or Deputy Governor, or
(iii) the term of office has ceased or the seat of any such person has become vacant.
(2) The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other court of Law or tribunal established by the National Assembly.
(3) The decision of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly election petitions shall be final.”
The interpretation of section 246 of the Constitution is that the Court of Appeal has jurisdiction to hear appeals on matters under (a), (b), (c), (i), (ii), (iii) and its decision on appeals arising from National and State Houses of Assembly election petitions shall be final.
My lords, the appeal before this court is for this court to decide who as between Hon. B. Amadi, PDP candidate, and Dr. K. Opara, APGA candidate won the National Assembly elections conducted on 9/4/11 for the Mbaitoli/Ikeduru Federal Constituency of Imo State in the House of Representatives. Subsection 3 of section 246 of the Constitution provides that the decisions of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly election petition shall be final. No distinction is made between interlocutory and/or final decisions of the Court of Appeal. It is clear that section 246 (3) has made the Court of Appeal the final court to hear appeals from the Court of Appeal on National Assembly elections. It becomes abundantly clear that the Supreme Court has no jurisdiction to entertain appeals from decisions of the Court of Appeal in respect of elections held for the Mbaitoli/Ikeduru Federal Constituency in the House of Representatives. The reason is simple, it is an appeal from the Court of Appeal on National Assembly elections.
Learned counsel for the appellants relied heavily on PDP v. Onwe 2011 4NWLR pt.1236 p.166. If ever there was a case irrelevant in resolving this preliminary objection PDP v. Onwe supra scores high marks. In that case Dr. E Onwe and Senator J Ucha both members of the PDP, contested the primaries of their party to enable the party determine its candidate for the Ebonyi Central Senatorial Seat in the National Assembly. That is a pre-election matter on issues of nomination, substitution. It has to do with who is the PDP’s candidate for National Assembly elections and not who won the National Assembly elections. In the case (supra) only a High Court or Federal High Court can hear those pre-election issues and the Supreme Court has jurisdiction to entertain appeals on pre-election matters. PDP v. Onwe (supra) is a pre-election matter while this appeal is on the National Assembly elections.
In Odedo v. INEC 2008 17NWLR pt.117 p.554 at 602 paras A – C this court per Niki Tobi, JSC interpreted section 285 (1) of the Constitution as follows:-
It is not my understanding of section 285(1) (a) of the Constitution that the subparagraph can accommodate pre-election matters. It is rather my understanding that the subparagraph provides for determination of whether any person has been validly elected as a member of the National Assembly. In my humble view the subparagraph provides for the election matters which give rise to post-election and not pre-election proceedings. As the reliefs sought by the appellants are on preelection matters, Section 285 (i)(a) could not avail him as the subparagraph does not provide for litigation arising from party primaries.
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The above interpretation of section 285(1)(a) of the Constitution is correct. The dispute in PDP v. Onwe (supra) is an intra party pre-election matter which has nothing to do with elections. Tribunals have no jurisdiction over such matters. Being pre-election matter, only the Federal High Court and State High Court has jurisdiction, (see section 87(9) of the Electoral Act, 2011) and the judgment of the Supreme Court is final on such pre-election matters of selection or nomination of a candidate of a Political Party.
In Dangana v. Usman 2012 ALL FWLR pt.627 p.612
The 1st respondent filed two notices of appeal to the Supreme Court on the decision of the Court of Appeal on the Senatorial election for Kogi State east district.
The petitioners filed preliminary objection for this court to refrain from hearing the appeals.
Sustaining the preliminary objection, Adekeye, JSC said in her leading judgment.
“……..Pursuant to section 246 (3) of the Constitution….the final court is the Court of Appeal and the Supreme Court has no jurisdiction to adjudicate on it…………..”
Onnoghen, JSC said in his contribution that:
“…… All appeals in relation to National and States Houses of Assembly election petitions terminate at the Court of Appeal.
In my contribution I said:
“Subsection (3) of section 246 of the constitution is clear. The words used are plain as plain can be. The intention of the legislature, clearly expressed is that all appeals from National and State House of Assembly election petitions shall come to an end after the Court of Appeal delivers its judgment……………………”
And finally Peter-Odili, JSC in her contribution said :
“……….an election dispute covered by section 138(1) (a) of the Electoral Act and section 65(2) (b) of the Constitution within the jurisdiction of the election tribunal and thereby caught up by section 246 (3) of the Constitution.”
In Chief A. Udenwa & anor v. Chief H. Uzodinma & anor 2012 12SC (Pt.VII)p.1 the issue was on elections for the Imo West Senatorial Constituency. The issue before the Tribunal was who between the 1st appellant and 1st respondent is the elected Senator for Imo West Senatorial Constituency. The Court of Appeal affirmed the decision of the Tribunal. This court held, and correctly too, that by the provisions of section 246 (3) of the Constitution the decision of the Court of Appeal was final and so the Supreme Court has no jurisdiction to hear the appeal.
Learned counsel for the appellants relied on FRN v. Ifegwu 2003 15NWLR pt.842 p.113 to contend that provisions of finality of an appeal does not operate when one is complaining of breach of fundamental rights. That is to say section 246 (3) of the Constitution is not applicable because according to learned counsel for the appellants, his clients complain of breach of fundamental rights.
The reasoning in FRN v. Ifegwu (supra) is that where, as in this case there is finality, once the Appeal Court delivers its judgment, it is only final in regard to the proceedings which gave rise to the appeal as the appeal finally terminates the proceedings but the appellants’ right to seek redress for an alleged breach of his fundamental rights is not terminated. Thus, it was held in FRN v. Ifegwu supra that the appellant is entitled to pursue his fundamental right arising from the proceedings in a competent court.
FRN v. Ifegwu (supra) did not decide anything new. If the appellants complain about a breach of their fundamental rights as a result of the proceedings, they are at liberty to seek redress in the appropriate court, but such proceeding cannot commence in the Supreme Court since the Supreme Court has no original jurisdiction for such matters. The Supreme Court can only hear appeals from courts below on decisions on fundamental rights applications. In the absence of any decision on the breach of the appellants’ fundamental rights, the Supreme Court has no jurisdiction to consider such an issue.
In the light of all that I have been saying, this court has no jurisdiction to hear an appeal from the decision of the Court of Appeal on election for the Mbaitoli/Ikeduru Federal Constituency of Imo State in the House of Representatives in view of section 246
(3) of the Constitution. The appeal is hereby struck out, since this court has no jurisdiction to hear it. Preliminary objection sustained. Appeal struck out.
SC. 189/2012