Emordi Vs Igeke (2011)

LAWGLOBAL HUB Lead Judgment Report

AGBAJE. J.S.C.

The appeal in SC. 176/2010 is against the decision of the Court of Appeal, Enugu Division (‘the court below’ for short) handed out on 12th May, 2010. Therein, two applications filed by the appellant were dismissed.

It is apt to state briefly the relevant facts leading to this appeal. The appellant, the 1st and 2nd respondents were among the candidates who contested the National Assembly Election for Anambra State North Senatorial District which was conducted on 28th April, 2007. The 6th respondent returned I the appellant as the elected candidate at the election. The return respondents, respectively. The Tribunal dismissed both petitions. This prompted the 1st stand 2nd respondents to initiate separate appeals at the court below Appeal No. CA/E/EPT/78/2008 by the respondent was heard first by the court below. On 10th February, 2009, it delivered judgment wherein the appeal was dismissed on the ground that failure to join the Presiding Officers who worked at the election was fatal to the petition. Subsequently, the same Division of the court below, partly, differently constituted, heard and delivered judgment in Appeal No. CA/E/EPT/04/2009 initiated by the 1st respondent. In the judgment handed out on 26th March, 2010, the appeal was allowed. The court below reversed the judgment of the Tribunal, set aside the return of the appellant and ordered that the 6th respondent should issue a certificate of return to the 1st respondent as the candidate elected at the said election. There emerged a seeming conflict in the two judgments of the court below.

The appellant thereafter filed two applications before the court below in quick succession. The first application sought for the setting aside of the later judgment of the Court below on ground of being a nullity. The second application required a clarification of the purport and intendment of the conflicting judgments of the court below. On 12th May, 2010, the court below dismissed the appellant’s applications.

The above scenario precipitated the appellant’s appeal to this court seeking, inter alia, a referral on the interpretation of the two judgments of the court below and direction in respect of same.

The 6th respondent filed a Notice of preliminary objection dated 26th October, 2010 urging this court to strike out the appeal on the following grounds:

(a) The appeal contravenes the provision of section 246 (3) of the Constitution of the Federal Republic of Nigeria 1999.

(b) The appeal is an abuse of the process of this Honourable court as it is targeted at irritating and annoying the

respondents and is an affront on the efficient and effective administration of justice in this Honourable court.

(c) The appeal is not only vexatious and frivolous but oppressive and malicious.

On 1st February, 2011, when this appeal was heard, learned counsel for the 6th respondent moved the notice of preliminary objection. The argument canvassed in respect of the preliminary objection is contained in the 6th respondent’s brief or argument filed on 26th November, 2010.

On behalf of the 6th respondent, learned counsel submitted that vide the provision of section 246(3) of the Constitution of the Federal Republic of Nigeria, 1999 the decision of the Court of Appeal in respect of appeals arising from election petitions shall be final.

He submitted that the use of the word ‘shall’ denotes obligation or command which gives no room to discretion. He cited the case of Bamaiyi v. A.G. Federation & Ors. (2001) 12 NWLR (Pt. 727) 468 at 497.

Learned counsel observed that the word ‘final’ connotes that the decision of the Court of Appeal in respect of election petitions is conclusive and never to be re-visited. He cited the cases of Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116 at 153; Onuaguluchi v. Ndu (2001) 7 NLR (Pt. 712) 309; Okonkwo v. Ngige (2007) 12 NWLR (Pt. 1047) 191 at 218.