M.O. Kolawole V. Attorney- General of Oyo State & Ors. (2005)

LawGlobal-Hub Lead Judgment Report

TABAI, J.C.A.

This ruling is sequel to an application filed on the 9/6/05, for an order dismissing the notice of appeal together with the motion on notice filed by the plaintiff/appellant on the grounds that:

“(i) This Honourable court lacks jurisdiction to entertain this appeal for same concerns Election Petition at the Local Government level.

(ii) The appeal and the motion on notice are grossly incompetent.

(iii) This appeal and the motion on notice constitute abuse of the process of court.”

The motion was supported by a 39 paragraph affidavit. On behalf of the appellant/respondent was also filed a 27 paragraph counter-affidavit. The motion sought to be dismissed along with the notice of appeal is that filed on the 1/3/05.

Arguing the motion, learned Counsel for the 4th respondent/applicant submitted that there was neither competent appeal nor a foundation upon which the said application could stand. According to him, the appellant is a participant mala fide in the series of appeals and applications on the same Ibarapa East Local Government election. According to him, this is the 4th application this Court has entertained on this same matter- two of which were brought by this same appellant/applicant of the 1/3/05. He said the motion of 1/3/05 was predicated upon a purported originating summons which was not before this court. Also, not before this court is the record of appeal upon which the cause of action before the lower court can be determined. He argued that the motion of 1/3/05 is based on a non-existing appeal and that no leave of this court has been obtained to file the appeal outside the period allowed for the appeal as stipulated in the constitution and rules of this court. Counsel referred to the depositions in the appellant’s motion and submitted that the issues therein are the same as those in exhibits A1, E2, D, F and I.

It was counsel’s further submission that the appellant/applicant being the appellant before the Election Appeal Tribunal is estopped from challenging the validity of the same Election Appeal Tribunal. For this submission, counsel relied on Gov. of Oyo State v. Folayan (1995) 8 NWLR (Pt.413) 292 at 322; Umenwa v. Umenwa (1987) 4 NWLR (Pt. 65) 407 at 417; N.N.S.L. Ltd. v. Emenike (1987) 4 NWLR (Pt. 63) 77 at 87.

On the submission, this court lacks the jurisdiction to entertain the appeal and the application, counsel cited KSIEC v. PDP (2005) 6 NWLR (Pt. 920) 25 at 49-50, 52-53; Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116 at 124; Oduola v. Coker (1981) 5 SC 197 at I 198-199; Orubu v. N.E.C. (1988) 5 NWLR (Pt. 94) 323; Ndu v. Onuaguluchi (No.1) (1999) 11 NWLR (Pt. 625) 152 at 155. The constitutional limitations imposed on the exercise of judicial powers, he argued, must not be breached. In support of this submission, he relied on Uwaifo v. A-G. Bendel State (1992) 3 NWLR (Pt.229) 350, (1982) 7 SC 124 at 175-176; Odofin v. Agu (1992) NSCC 520 at 527; NNB. Plc. v. Denclag Ltd. (2005) 4 NWLR (Pt. 916) 549.

Learned Senior Counsel further submitted the rulings and judgments against the appellant/applicant were in rem which binds the whole world. For this submission, he relied on ACB Plc. v. Obmiami Brick & Stone (1993) 5 NWLR (Pt. 294) 399; NV Scheep v. MV ‘s’ Araz (2000) 15 NWLR (Pt.691) 622; Oke v.Atoloye (1986) 1 NWLR (Pt15) 241; Ege Shipping and Trading Indurstry v. Tigris International Corporation (1999) 14 NWLR (Pt.637) 70; Fointrades Ltd. v. Universal Association Co. Ltd. (2002) 8 NWLR (Pt.770) 699; Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241.

In opposing the application, learned Senior Counsel for the appellant/applicant/respondent submitted firstly that an applicant is bound by the prayers in his application and relied on Commissioner of Works, Benue State v. Devcon (1988) 3 NWLR (Pt.83) 407 at 420. The respondent/applicant has by the application conceded that there is a notice of appeal, he argued. He submitted that the application is incompetent for failing to display the very notice of appeal sought to be dismissed. He submitted that a preliminary objection to jurisdiction does not admit of conflict in affidavit evidence and that in view of the conflicting affidavit evidence the preliminary objection ceases to be one. Learned Senior Counsel argued that the motion of 1/3/05 premised on the appeal filed on the 11/2/05 and which calls for the disciplinary jurisdiction of this court over the proceedings of the lower court is competent. He cited Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472 at 494 & 495; The Praying Band of The Sacred Society of Cherubim and Seraphim Church & Ors. v. Natalie Ellen Udokwu (1991) 13 NWLR (Pt. 182) 716 at 733. Learned senior counsel submitted that the application of the 1/3/05 is in the nature of contempt proceedings which therefore takes precedent even over the issue of jurisdiction. He conceded that the notice of appeal was filed irregularly because it was filed out of time. He contended however that that does not render it incompetent since the court allows a party to regularize its position and cited Tsokwa Oil Marketing Co. (Nig.) Ltd. v. Bank of the North Ltd. (2002) 11 NWLR (Pt.777) 163. Counsel submitted that an appeal against the decision of the high Court cannot constitute an abuse of the court process. An appeal or application withdrawn or struck out is one not decided on the merit and does not preclude the appellant or applicant from filing another, he argued. In support of this submission, he relied on N. V. Scheep v. M. V. ‘s’ Araz (2000) 15 NWLR (Pt. 691) 622. It was his submission that Awuse v. Odili; Uwaifo v. A-G. Bendel State (Supra) do not apply as they were decided on constitutional limitations. Submitted that there was nothing which limits the High Court and this Court from entertaining appeals from the decision of the Election Appeal Tribunal. For the unlimited jurisdiction of the High Court including the power to control tribunals, reliance was placed on Okeahialam v. Nwamara (2003) 12 NWLR (Pt. 835) 597 at 612.

With respect to the issue of estoppel, it was the submission of learned senior counsel that the issues raised at the Election Appeal Tribunal are different from those in the High Court and therefore estoppel does not apply. He relied on Udo v. Obot (1989) 1 NWLR (Pt.95) 59 at 77 and 83; Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) 144 at 183-184. He urged in conclusion that the application be dismissed.

It is pertinent, at this stage, to point out that on the 15/6/04 when this motion was argued, Chief Akintola, SAN learned Senior Counsel for the applicant, remarked that the appeal had not been entered in this court. In response learned Senior Counsel for the appellant/respondent Mr. Seeni Okunloye said that the appeal has been entered and the records of appeal has just been transmitted to the court and that it was available in this court’s registry. The said record was however not before us. In the course of his address later in the day, Mr. Okunloye, SAN sought to use the record of appeal which, he said, was then available. Despite the objection of Chief Akintola, SAN, we granted him the leave to use it. I shall, in this ruling, make references to the said record, as and whenever necessary.

From the affidavit evidence contained in this application, the application of the appellant filed on the 1/3/2005 and the record of appeal, the following facts are established:-