CORAM
UCHE OMO
EMMANUEL TAKON NDOMA-EGBA
ISA AYO SALAMI
PARTIES
CHIEF NELSON T. GBE
1. APOSTLE PAUL SELEDE ESEWE2. THE NATIONAL ELECTORAL COMMISSION3. THE STATE ELECTORAL COMMISSIONER4. THE ELECTORAL OFFICER, BOMADI LOCAL GOVT. AREA, MR. T. BUNU5. THE RETURNING OFFICER, WARD 3, BOMADI LOCAL GOVERNMENT AREA, MR. EDWARD TEKEDOR
AREA(S) OF LAW
SUMMARY OF FACTS
The Petitioner and the Respondent were two of the seven candidates who were duly nominated and contested for the post of Chairman of the Bomadi Local Government Council in the Local Government elections, which took place on the 12th December 1987. Before the result of this election was declared, the Petitioner filed a petition against the conduct of the election dated 8th January, 1988 in which he prayed: that it may be determined that the election in respect of the affected ward, Akugbene Ward 3 was void and be declared void as such and that no candidate should be declared and/or announced as having been elected as Chairman of the Bomadi Local Government Council in view of the facts, events and all other circumstances connected with and/or emanating from the election as averred herein. On service of the petition on the 1st Respondent, he filed a reply in which he stated that a later time, he would raise a Preliminary Objection that the petition was defective in law and therefore not properly before the Court. The Petitioner later filed an application seeking leave of the Court to amend the petition, which application though opposed by the Appellant, was granted. The Appellant same day filed a motion in the lower Court seeking leave to appeal to the Court of Appeal against this interlocutory decision; alongside an amended reply to the petition in answer to the amended petition. This application for leave was opposed by the Respondents on the ground that there is no right of appeal against interlocutory decisions made in an election petition filed under Decree No. 37 of 1987, and the lower Court refused the application for leave while upholding the submission of the Respondents. Dissatisfied, the Appellant then filed an application to this court for leave to appeal against the two decisions afore-mentioned, with the Respondents putting forth the same objection as in the lower Court.
HELD
Application Granted
ISSUES
Whether or not there is a right of appeal from the High Court to the Court of Appeal against interlocutory decisions made by it in election petitions under the Local Government Elections Decree 1987. Whether this is an appropriate case in which this court can grant leave to appeal against such a decision.
RATIONES DECIDENDI
RIGHT OF APPEAL – RIGHT OF APPEAL AGAINST INTERLOCUTORY DECISIONS UNDER THE 1963 AND 1979 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“It is indeed true that the provisions of Section 125(1) of the Electoral Act of 1902 are in pari materia with the provisions of paragraph 27(1) of Schedule 3 of the Local Government Elections Decree No. 37 of 1987 under which the election, the subject-matter of this petition was conducted. But it was decided in Oyekan v. Akinjide (supra) that section 125(1) afore-mentioned “‘makes no provisions for interlocutory appeals.” It was therein also specifically founded in the judgment of the court delivered by Oyeama, J.S.C. that:
“The proceedings in an election petition are special proceedings for which special provisions are made in the Constitution, and appeals are governed by Section 117(3) of the Constitution.”
(Note: Italics mine)
The fact that the two provisions afore-mentioned are in parimateria is therefore no basis for coming to the conclusion that one of ratio in Oyekan’s case (supra), to wit, that there is no right of appeal against an interlocutory decision, in that case and under the specific legislations governing it, must have the binding force of precedent in the present case. Before such a conclusion can be arrived at, recourse must be had to the relevant provisions of the different constitutions governing the two cases. Whilst section 117(3) and (4) of the Constitution of 1963 applies to Oyekan’s case, section 221(1) of the 1979 Constitution applies to the present petition.
Section 117(3) of the 1963 Constitution provides for right of appeal “as of rights”, not with leave, to the Supreme Court from the High Court. It is enough to state that its only provisions which are relevant here deal with validity of elections/selections to Regional Houses and in Parliament. There is no provision therein for determining any question about membership of local government councils.
Section 117(4) which however deals with right of appeal “with leave of the High Court or the Supreme Court” (which is what is in consideration in the present application), provides that it can be so exercised only
“(a) where the ground of appeal involves questions of facts, mixed law and fact or quantum of sentence, decisions in any criminal proceedings before the High Court sitting at first instance;
(b) Any case in which, but for the terms of the proviso to subsection (2) of this section, an appeal would lie as of right to the Supreme Court by virtue of paragraph (a) of that subsection;
(c) Decisions in any civil or criminal proceedings in which an appeal has been brought to the High Court from some other court; and
(d) Such other cases as may be prescribed by any law in force in the territory. ”
This subsection also concerns civil or criminal proceedings which an election petition is not vide S. A. Onitiri v. T.O.S. Benson (1960) 1 F.S.C. 150 (154,155) and Oyekan&Ors. v. Akinjide& Or. (1965) N.M.L.R. 281.
It is therefore safe to conclude that there was no special provision for appeals against interlocutory decisions with or without leave in election petitions under the 1963 Constitution.
Is the position the same under the 1979 Constitution? This Constitution provides for appeals in election petitions under Sections 220 and 221. Section 220(1) gives a right of appeal from the High Court to the Court of Appeal “as of right” in seven instances set out in sub-paragraphs (a) to (f) thereof except sub-paragraph (f) contemplates appeals from decisions made in civil or criminal proceedings. Sub-paragraph (f) which deals with elective office under the Constitution and which provides for appeal as of right in respect of decisions on any questions whether a person has been validly elected to such office or his term of office terminated or vacated, has not only been suspended by the provisions of Decree No.1 of 1984- Constitution (Suspension and Modification) Decree, but would not in any event be applicable since the post of Chairman of a local government council is not one of the offices provided for under that Constitution.
Section 221(1) however provides for right of appeal with leave and states that:
“(1) Subject to the provisions of section 220 of this Constitution, an appeal shall lie from decisions of a High Court to the Court of Appeal with the leave of the High Court or the Federal Court of Appeal.”
(Note: Italics mine)
This subsection does not talk of civil or criminal proceedings in the High Court but of “decisions of a High Court. Section 277 of the Constitution defines ‘”decision” in relation to a court; to be “any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.”
It therefore follows that any judgment of a High Court be it interlocutory or final, which cannot be the subject-matter of an appeal as of right to the Court of Appeal under section 220 of the Constitution, is appealable with leave of the High Court or the Court of Appeal to the Court of Appeal.
The inevitable conclusion must therefore be that the 1979 Constitution has made provision for appeals on interlocutory appeals with leave to the Court of Appeal, whilst the 1963 Constitution made no such provision in respect of such appeals to the Supreme Court from the trial High Court.
The decision in Oyekan v. Akinjide (supra) is therefore no authority for holding that there is now no right of appeal to the Court of Appeal against interlocutory decisions of the High Court”. –
RIGHT TO APPEAL – WHETHER A STATUTE CONFERS THE RIGHT TO APPEAL
“The right to appeal is invariably conferred by a statute which right must be conferred clearly and definitely, not necessarily by express words, but at least, by clearest possible implication. See Onitiri v. Benson (1960) 1 F.S.C. 150,155. Section 36(1) of the Local Government Elections Decree No. 37, of 1987, does not pretend to confer right of appeal but merely fixed time within which notice of appeal can be given. That right of appeal must, therefore, have been conferred elsewhere. Section 36(1) read as follows:
“36-(1) notwithstanding any provisions permitting any other period of notice, notice of appeal to the Court of Appeal from a decision on an election petition shall be given within one month of the decision in question.”
(Italics mine)
RIGHT OF APPEAL – WHETHER THERE EXIST A RIGHT OF APPEAL WITH LEAVE FROM INTERLOCUTORY DECISIONS OF THE HIGH COURT TO THE COURT OF APPEAL IN ELECTION PETITIONS
“The Constitution of 1963 restricts appeal with leave to Criminal proceedings and election petitions have been held to be special cases different from Civil and Criminal proceedings. In the circumstances, cases decided prior to the 1979 Constitution cannot form precedent to be followed under the present’ dispensation because Section 221(1) has no limitation placed on it. Consequently, I am of the opinion that Oyekan v. Akinjide (1965) N.M.L.R. 381 is not applicable to this case. I find and hold that there is a right of appeal with leave from the interlocutory decisions of the High Court in election petitions. –
CASES CITED
Not available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1963|Constitution of the Federal Republic of Nigeria, 1979|Decree No.1 of 1984- Constitution (Suspension and Modification) Decree|Electoral Act,1902|Local Government Elections Decree 1987|