Rev. Hyde Onuaguluchi V. Mr. Ben Collins Ndu & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

The appellant contested election to the Senate as a candidate of the All Peoples Party (APP) in Enugu West Senatorial District in February, 1999. The other candidates were Mr. Ben Collins Ndu, a candidate of the Peoples Democratic Party (PDP) now 1st respondent, and one Chief Mike Ugwu, a candidate of the Alliance for Democracy (AD). On 20th February, 1999, the appellant was duly returned by the Independent National Electoral Commission (INEC), 3rd respondent, as elected. The 1st respondent then petitioned to the National Assembly Election Tribunal, Enugu Division (the Tribunal), against the election. On 21 May,1999, the petition was dismissed by the Tribunal. The 1st respondent appealed from that decision, and on 24 June, 1999, the Court of Appeal, Enugu Division, set aside the judgment of the Tribunal and nullified the senatorial election held in the constituency of Enugu West Senatorial District. It ordered that fresh election be conducted in that constituency without delay by the 2nd and 3rd respondents.

In reaction, the appellant filed an Originating Summons on 5 July, 1999 to the Federal High Court, Abuja praying for an order that having been sworn in as a Senator under the 1999 Constitution, his seat could not be made vacant by “any act or judgment except in accordance with the provisions of section 68 and section 312(2) of the said Constitution.” The Federal High Court eventually declined jurisdiction to hear the action and dismissed it on 28th October, 1999. That same day, the appellant filed an application at the Court of Appeal, Abuja Division, seeking an order to set aside the judgment of the Court of Appeal, Enugu Division, given on 24 June, 1999 on the ground that it was a nullity. That application was subsequently transferred to the Enugu Division of the Court of Appeal. The Court of Appeal heard the application and on 30 May, 2000, dismissed it. I think Olagunju, JCA, one of the three learned Justices who heard the application, specifically touched on the point that the application in the circumstances it was brought was incompetent. The learned Justice also reasoned and came to the conclusion that the judgment of the Court of Appeal delivered on 24 June, 1999 had no element of any kind that would render it a nullity.

From that decision of 30 May, 2000, is an appeal by the appellant to this Court in which he seeks the determination of the following issues stated in his brief of argument:

“3.01. Whether the Court of Appeal (in its ruling dated 30th May, 2000 in motion No. CA/E/163M/99) was right in the circumstances of this case in holding that service of the notice of appeal No. CA/E/91/99 on the chambers of Chief Enechi Onyia SAN pursuant to Order 3 rule 6(2) of the Court of Appeal rules satisfied the express provision of Section 81 (2) of Decree 5 of 1999 which expressly precludes the application of the provisions of any other enactment for the purposes of GIVING NOTICE to the respondents, whereas Chief Enechi Onyia SAN told the Court of Appeal (as required pursuant to Order I rule 3(5) of the Court of Appeal Rules): that the appellant was not given the notice of Appeal contrary to section 36 of the 1999 Constitution; and that the Senior Counsel had no authority to act for the Appellant.

3.02. Whether the Court of Appeal was right in dismissing application No. CA/E/163/99 in its ruling dated 30th May, 2000, when it was obvious to it; that notice of appeal was NOT given to the 2nd – 189th respondent: And that pasting the notice of appeal meant for them at the door of the Ministry of Justice Enugu without any order for substituted service, impeached the competence and jurisdiction of the Court of Appeal to hear appeal No. CA/E/91/99, and also contrary to section 36 of the 1999 Constitution.

3.03. Whether the Court of Appeal (in its ruling dated 30th May, 2000 in motion No. CA/E/163M/99) was right in refusing to set aside the proceeding and judgment in Appeal No. CA/E/91/99 after it found: that even though Chief Enechi Onyia SAN was served with the Notice of Appeal, neither the Senior Counsel nor any other person whosoever, communicated the Notice of Appeal to the appellant; that the appellant did not take part in the entire proceeding up to the judgment dated 24th June, 1999, contrary to section 36 of the 1999 Constitution and that Chief Enechi Onyia SAN acted without authority.

3.04. Whether the Court of Appeal (in its ruling dated 39th May, 2000, in motion No. CA/E/163M/99) was right in dismissing the motion of the appellant when it was obvious to the Court of Appeal that in its previous judgment dated 24th June, 1999, in appeal No. CA/E/91/99, it had employed Section 16 of the Court of Appeal Act to grant reliefs not sought by any of the parties, without giving the parties a hearing as provided in Section 36 of the 1999 Constitution in contravention of the said Constitution.

3.05. Whether the Court of Appeal (in its ruling dated 30th May, 2000 in motion No. CA/E/163M/99) was right in failing to consider the issues formulated in paragraph 3.06 of the applicant’s brief of argument that: the appellant was not aware of the appeal No. CA/E/91/99, until after the judgment; that the appellant was not heard in accordance with Section 36 of the 1999 Constitution: that the Senior Counsel who purportedly appeared for the appellant did not have the authority of the appellant and the Senior Counsel told the Court of Appeal so; and that Sections 64, 68 and 69 had not been satisfied pursuant to Section 312(2) of the 1999 Constitution.

3.06. Whether the Court of Appeal (in its ruling dated 30th May, 2000 in motion No. CA/E/163M/99) can reconsider afresh, the paragraphs of the affidavit in support of Chief Enechi Onyia’s motion for extension of time, when in Appeal No. CA/E/91/99 the Court of Appeal had granted the said motion based on the said affidavit, and the Senior Counsel for the 1st respondent did not object to the affidavit before the motion was granted by the Court of Appeal.

3.07. Whether the Supreme Court ought to set aside the said ruling of the Court of Appeal dated 30th May 2000, in motion No. CA/E/163M/99 and the proceeding and judgment dated 24th June, 1999, in appeal No. CA/E/91/99 having regard to the findings of fact by the lower court: that the appellant was not given notice; that Chief Enechi Onyia SAN, had no authority to act; and that the lower court granted a relief not claimed by the parties in appeal No. CA/E/91/99.”

Each counsel for the 1st respondent (Mrs. C.J. Anyamene-Ezugwu) and 2nd-189th respondents (Dr. B.O. Babalakin) respectively filed a notice of preliminary objection. The grounds are based on lack of jurisdiction of this Court to hear the appeal. I shall take the grounds from the notice filed on behalf of the 2nd-189th respondents which read:

“The grounds of the preliminary objection are that:

(i) the Supreme Court lacks the jurisdiction to entertain this appeal and the same is therefore incompetent, being an appeal against a decision of the Court of Appeal in respect of a petition on an election held pursuant to Section 81(3) of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No.5 of 1999, which Decree makes the decision of the Court of Appeal in respect of such matters final;