CHIEF ITA OKON AQUA VS CHIEF DAVID EKANEM
May 28, 2025ETUBOM EKPO EFFIOM & 3 ORS. VS CHIEF EFFIOM EYO OKON
May 28, 2025Legalpedia Citation: (2008) Legalpedia (CA) 45181
In the Court of Appeal
HOLDEN AT PORT HARCOURT
Sun Nov 23, 2008
Suit Number: CA/PH/EPT/94/2008
CORAM
OGBUAGU JUSTICE, SUPREME COURT
PARTIES
HON. ARTHUR C. KALAGBOR
INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS.
AREA(S) OF LAW
SUMMARY OF FACTS
The Petitioner/Appellant was one of the nineteen candidates who contested for the gubernatorial seat for Rivers State. The Appellant filed a petition at the National Assembly/Governorship and Legislative Houses Election Petitions Tribunal wherein he sought; a declaration that the 1st Respondent was not a qualified candidate to contest the said election as at the 14th day of April 2007 when the election was held; a declaration that the Petitioner was validly nominated by his Political Party but was unlawfully excluded from the above election by the 2nd Respondent. Before the original 1st and 2nd respondents could call their only witness, the Supreme Court delivered its judgment in Appeal No. SC/252/2007 between Rt. Hon. Rotimi Chibaike Amaechi And Independent National Electoral Commission & Ors, where it declared Amaechi the one entitled to be in the Governorship seat in Rivers State since he was the lawful candidate of the Peoples’ Democratic Party at the election and ordered Celestine Omehia (the original 1st Respondent), who was returned elected by the original 2nd and 3rd Respondents that Amaechi be sworn in immediately. The Appellant filed an application before the trial Tribunal praying for an order to substitute the original 1st Respondent, Sir Celestine Omehia with Rt. Hon. Chibuike Rotimi Amaechi as the 1st Respondent. The Tribunal heard arguments on the relief sought and dismissed it. Thereafter the original 1st Respondent filed and argued an application that his name be struck out as the 1st Respondent. The Application was granted. Thereafter the new 1st and 2nd Respondents'(the original 2nd and 3rd Respondents), only witness testified. At the close of evidence, learned counsel for the Appellant and Respondents adopted their written addresses. It was held by the trial Tribunal that the petition is incompetent for not joining as the Respondent the person deemed to have been declared as the winner of the Governorship Election. It is against this judgment that the Appellant has brought this appeal.
HELD
Appeal Dismissed
ISSUES
None
RATIONES DECIDENDI
PRELIMINARY OBJECTION – WHAT IS A PRELIMINARY OBJECTION?
“It is very well settled that a preliminary objection at the hearing of an appeal is an opposition to the hearing of an appeal that should be promptly raised at the beginning of the hearing of an appeal by the respondent’s learned counsel before the learned counsel for the appellant opens his oral submissions on behalf of his clients.”
PRELIMINARY OBJECTION – PURPOSE OF A PRELIMINARY OBJECTION
“The purpose of a preliminary objection is, if successful, to terminate the hearing of the appeal at the threshold. Furthermore, a court and an appellate Court as in the instant case is in duty bound to first consider a preliminary objection raised during an appeal’ It is a cardinal principle of administration of justice to let the party raising an objection to the hearing of appeal regardless of the frivolity of the objection’ know the fate of his application. A preliminary objection which complies with the mandatory provisions of Order 10 rule 1 of the Court of Appeal Rules 2007 with particular regard to giving the other party three clear days’ notice setting out the grounds on which the objection is raised has satisfied the necessary foundation for its consideration by the Court. It is pertinent to state that the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which if it succeeds would put an end to the appeal. See Nepa v. Ango (2001) 15 NWLR (PT.737) 627 @ 45 and Savannah Bank (Nig) Plc v. Prime Management Systems Ltd (1999) 10 NWLR (PT.621) 160 @ 164; Tambco Leatherworks Ltd v’ Abbey (1998) 12 NWLR (PT- 579) 548 @ 554 and 555 Nwanwata v. Esumei (1998) 8 NWLR (PT.563)560 @ 666; Ndigwe v. Nwude (1999) 11 NWLR (PT.626) 314 @ 331.”
NOTICE OF PRELIMINARY OBJECTION – IMPLICATION OF A MOTION CHALLENGING THE COMPETENCE OF A SUIT
“It is instructive also to state that a motion by which a respondent challenges the competence of a suit and thus the jurisdiction of the Court (otherwise called a Notice of Preliminary Objection) is a special procedure whereby the respondent contests the competence of a suit and the jurisdiction of the court and if upheld has the effect of terminating the life of the suit by its being struck out. see Galadima v. Tamba (200)6 SCNJ (PT.I) 196 @ 206.”
ORDER OF COURT- VALIDITY OF AN ORDER OF A COURT
“It is trite that an order of a Court of competent jurisdiction is valid until otherwise set aside. See Rossek v. A.C.B. Ltd (supra) @ pages 471 and 472.”
ABUSE OF COURT PROCESS – ATTITUDE OF COURTS TO ABUSE OF COURT PROCESS
“This inadvertence on the part of the appellant rendered the notice of appeal incompetent. In other words, the addition of the name of the 3rd respondent (the Rt. Hon. Chibuike Rotimi Amaechi) to the appeal is an abuse of Court process and the Court is duty bound to put an end to such abuse by striking out the name of the 3rd respondent. I accordingly strike out the name of the 3rd respondent in this appeal. See Jimoh v. Starco (Nig) Ltd (1998)7 NWLR (PT.558) 523 @ 535 and 536; Saraki v. Kotoye (1992) 9 NWLR (PT.264) 156”.
APPEAL AS OF RIGHT- INSTANCES WHERE AN APPEAL SHALL LIE AS OF RIGHT FROM AN ELECTION TRIBUNAL TO THE COURT OF APPEAL
“Section 246(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as the 1999 Constitution) on appeal from the Election Tribunal to this Court is germane for the consideration of the 2nd and 3rd limbs of the preliminary objection raised by the 1st and 2nd respondents. The said Section reads:
246(1) Any appeal to the Court of Appeal shall lie as of right from –
(b) decisions of the National Assembly Election Tribunal and Governorship and Legislative Houses Election Tribunals on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or a House of Assembly of a State under the Constitution.
(ii) any person has been validly elected to the office of Governor or Deputy Governor, or
(iii) the term of office of any person has ceased or the seat of any such person has become vacant.
The purport of the foregoing provisions is that no appeal lies from the decision of the Election Tribunal to this Court in respect of matters not covered by them. The case of OKON v. BOB (2004) 1 NWLR (PT.854) 378 @ 395 is pertinent where it was held, inter alia:
“It can be seen that Section 246(1) of the 1999 Constitution regulates the right to appeal to the Court of Appeal from the Election Tribunals. Any appeal will only lie from the Election Tribunal to the Court of Appeal if there is any decision by the Election Tribunal whether any person has been validly elected as a member of the National Assembly, the office of the Governor or the Deputy Governor as the case may be. Such an appeal will only come within the provisions of section 246(1)(b) of the 1999 Constitution if- there is any determination of the petition on the merits and any other decision made in the course of the election proceedings which is a decision in an election petition is not covered by section 246(1)(b).”(Underlining for emphasis).
See also Amgbare v. Sylva (2007) 18 NWLR (PT.1065) 1 @ 19 and 21.”
DECISION OF COURT – DISTINCTION BETWEEN A “DECISION ON AN ELECTION PETITION” AND A DECISION “IN AN ELECTION PETITION”
“From the reliefs sought by the petitioner/appellant (supra) it is apparent that the trial Tribunal did not deal with the merits of the petition. It instead dealt with matters outside the purview and/or intendments of Section 246(1)(b) of the 1999 Constitution (supra). The two decisions were not arrived at on the merit in the context of election matters within the contemplation of Section 246(1)(b) of the 1999 Constitution. They were instead decisions made in the course of an election petition and not on an election petition. A pertinent question is: what is the effect of these two types of decisions vis-a-vis appeal in election matters? I venture to answer this question by saying that the phrase “a decision on an election petition” means a determination of any question whether any person has been validly elected as a member of the National Assembly or a House of Assembly of a State under the 1999 Constitution or to the office of Governor or Deputy Governor or that the term of office of that person has eased or the seat of any such person has become vacant. That is to say it is a determination on the merit. On the other hand any other decision made in the course of the election proceedings will only be a decision ” in an election petition. The consequence of the two sets of proceedings in an election matter is that a decision on an election petition is appealable. See Anthony v. Joseph Obadan & 3 Ors. (1989) 5 NWLR (PT.120) 185; Orubu v. N.E.C. (1988)5 NWLR (PT.94) 323.”
APPEAL – PRINCIPLES GUIDING FILING AN APPEAL AGAINST THE DECISION OF AN ELECTION TRIBUNAL
“Assuming the ruling of 3/12/07 is appealable, the question is: what is the fate of Grounds 1 and 2 of the notice of appeal filed on 18/2/2008? The answer to this question is found in paragraph I of the Practice Directions No. 2 of 2007 which reads:
1. The appellant shall file in the Registry of the Tribunal his notice and grounds of appeal within 21 days from the date of decision appeal against.
Practice Directions and in particular the preamble to the Electoral Act 2006 No. 2, Section 149 and Practice Directions reads:
“…For the purpose of appeals coming to the Court of Appeal under Section 149 of the Electoral Act 2006 No.2 this Practice Direction shall be strictly observed by all parties…” (Underlining mine for emphasis). Paragraph 1 of the Practice Directions No. 2 is a mandatory provision which requires strict compliance.”
PRACTICE DIRECTIONS – NATURE OF PRACTICE DIRECTIONS IN ELECTION MATTERS
“Practice Directions made by the President of the Court of Appeal in election matters constitute the Rules of Court in election appeals. They cannot be circumvented. See N.A.A. v. Okiiro (1995) 6 NWLR. (PT. 403) 510; Ojugbele v. Lamidi (1999) 10 NWLR (PT. 621) 167.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999|Court of Appeal Act 2007|Electoral Act, 2006|
