Hon. Ehioze Egharevba V Hon. Crosby Osadolor Eribo & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

O. ADEKEYE, J.S.C.

This appeal emanated from the decision on the 20th of April, 2009. By that decision, the Court of Appeal set aside the judgment of the High Court of Justice Edo State, Benin Judicial Division and allowed the appeal of the 1st Respondent in this appeal. The appellant before this court obtained the leave of the High Court which was granted on the 22nd of September, 2008 to file an originating motion on notice on the 3rd of October, 2008 to ask the court for the following reliefs:-

a) An order of certiorari to remove into the High Court of Edo State for the purpose of being quashed, the proceedings and judgment of the Edo State Local Government Council Election Tribunal delivered on 16th April, 2008 in Petition No. EIGEP/02/08 – Hon Crosby Osadalor Eribo v. Hon. Ehoze Egharevba & others.

b) An order of certiorari to remove into the High Court of Edo State for the purpose of being quashed the proceedings and judgment of the Edo State Local Government Appeal Tribunal delivered in Appeal No. LGEAT/02/08 Hon. Crosby Osadalor Eribo v. Hon. Ehioze Egharevba & others on Friday the 1st of August, 2008.

c) An order quashing the proceedings and judgment of the Local Government Election Tribunal for want of jurisdiction and necessary competence to hear and determine the petition and Appeal thereof.

d) An order directing the restoration of the Applicant to his office of Chairman of Egor Local Government Council to compete his tenure guaranteed by the provisions of section 10(1) of the Local Government Law 2000 of Edo State (as amended).

The certiorari proceeding was heard by Okugbowa J. of the Benin High Court. In the reserved judgment of the High Court delivered on the 23rd of January 2009, it was held that both the trial Tribunal and the Appeal Tribunal had no jurisdiction to hear and determine the claim of the 1st respondent as petitioner. The High Court found that the 1st Respondent’s complaint bothered on pre-election matter. Consequently, the High Court quashed the proceeding and the judgment of the trial Tribunal in petition No. ELGEP/02/08 and the proceeding and judgment of the Appeal Tribunal in LGEAT/02/08.

I consider it utterly necessary to recapitulate the background facts of this case which prompted the procedure of invoking a prerogative writ in a regular court to quash proceedings and judgment before an Election Tribunal and an Election Appeal Tribunal.

The Local Government Election was held in Edo State on the 16th of December, 2007. The appellant Hon. Ehioze Egbarevba was declared the winner of the election to the Office of the Chairman, Egor Local Government Council Edo State. The 2nd Respondent, Edo State Independent Electoral Commission issued to him the Certificate of Return as the duly elected Chairman of Egor Local Government Council. The 1st respondent, Hon Crosby Osadolor Eribo on the 14th of January 2008 filed an Election petition suit No. ELGEP/02/08 at the Local Government Council Election Tribunal Benin against the appellant, his political party People’s Democratic Party, Edo State independent Electoral Commission and three others. The Local Government Election Petition was constituted by the 8th – 12th Respondents. His grouse was that he was the validly nominated but unlawfully excluded candidate of the People’s Democratic Party in the election to the Office of the Chairman Egor Local Government, Edo State.

In a judgment delivered on the 16th of April 2008, the Tribunal declared his petition incompetent and dismissed it. Being aggrieved by that decision, the 1st Respondent filed an appeal to the High Court of Edo State sitting as Edo State Local Government Election Appeal Tribunal. In the judgment of the Appeal Tribunal delivered on the 1st of August 2008, the judgment of the Election Tribunal was upturned. The consequential order of the Appeal Tribunal was that the Edo State independent. Electoral Commission should withdraw the certificate of return issued to the Appellant and the 1st Respondent be issued with a fresh Certificate of Return as duly elected Chairman of Egor Local Government Council. Since the appeal to the Local Government Tribunal is final – this prompted the appellant to seek redness at the High Court of Edo State in the form of a prerogative order of certiorari to quash the proceedings and judgments of both the Local Government Election Tribunal and that of the Local Government Appeals Tribunal.

I have indicated earlier on in this judgment that the High Court granted the application on the basis that the Tribunals lacked the requisite jurisdiction to entertain the petition. The 1st Respondent filed an appeal to the Court of Appeal Benin. The crux of the argument in the appeal before the lower court was that the High Court does not have supervisory jurisdiction over the Local Government Election Petitions Tribunal. The lower court concluded that the decision of the Edo State Local Government Election Appeal Tribunal is final by virtue of the provisions of section 36(3) of the Local Government Electoral Law of Edo State 2002 and the case of Awuse v. Odili (2003) 18 NWLR pt.851 pg. 116. Begin aggrieved by the decision of the Lower Court, the appellant filed a further appeal to His Honourable court. The appeal is based on the Notice of Appeal filed on the 19th of June, 2009.

At the hearing of the appeal, the appellant adopted and relied on the appellant’s brief of argument filed on 22/6/09. The under mentioned issues are settled for determination as follows:-

1. Whether the Lower court was right when it held that the trial court had no jurisdiction to entertain the certiorari application of the appellant.
2. Whether the feature of the justices of the court of Appeal to allow the appellant to move his motion for extension of time to file his brief of argument or argue the substantive appeal breached his right to fair hearing as guaranteed by section 36 of the constitution of the Federal Republic of Nigeria, 1999.
3. Whether the court was right in determining the appeal with two subsisting notices of Appeal.
4. Whether the lower court was right in entertaining oral argument from the 3rd – 12th Respondents counsel who filed no Respondents brief of argument without leave.

The 1st Respondent adopted and relied on the 1st respondent’s brief file on 15/10/09 whereupon three issues were formulated for the determination in this appeal namely:-

(a) Whether the justice of the Court of Appeal infringed on the right of the appellant to fair hearing by inviting counsel suo motu to address the court on the issue of jurisdiction after affirming that hearing Notices were served on the appellants counsel.