Esewe v. Gbe (1988)

                APOSTLE SELEDE ESEWE

                    V.

    
      1.
CHIEF NELSON TEBESAGBEHA GBE

        
  2.
THE NATIONAL ELECTORAL COMMISSION

        
  3.
THE STATE ELECTORAL COMMISSIONER, BENDEL

                      STATE, PROFESSOR P.A. SADA

        
  4.
THE ELECTORAL OFFICER,

                        BOMADI LOCAL GOVERNMENT AREA,

                       MR. I. BUNU

                              5.      
   
THE RETURNING OFFICER WARD 3,

                       BOMADI LOCAL GOVERNMENT AREA.

SUPREME COURT OF NIGERIA

SC. 119/1988

ANDREWS OTUTU OB ASEKI, J.S.C. (Presided and Read the Lead Ruling) MUHAMMADU LAWAL UWAIS, J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

SAIDUKAWU, J.S.C.

SAL1HU MODIBBO ALFA BELGORE, J.S.C.

MONDAY, 4TH JULY, 1988.

APPEAL – Local government election petition – Whether lies to Supreme Court from Court of Appeal – S.36(2) Local Government Elections De- cree 1987 – Effect.

COURT – Supreme Court – Jurisdiction to hear appeal in respect of local gov- ernment election petition – Whether extant – S.36(2) Local Government Elections Decree, 1987.

ELECTION PETITION – Local government election petition – Whether Supreme Court vested with jurisdiction to hear appeal in respect of – Section 36(2) Local Government Election Decree 1987 – Effect.

JURISDICTION – Local government election petition – Jurisdictions of the Court of Appeal and Supreme Court in respect of – Section 36(2) Local Government Elections 1987 considered.

Issue:

Whether the Supreme Court has jurisdiction to entertain an appeal from the Court of Appeal in respect of an election petition in view of the provisions of Section 36(2) of the Local Government Elections Decree No. 37 of 1987.

Facts:

The Applicant had filed an election petition in the Warri High Court against the 1st respondent. He later brought an application to amend the petition which was granted by the trial Judge. The 1st respondent whose counsel had opposed the application filed a motion before the trial Judge seeking leave to appeal against the ruling granting leave to amend. The application was refused by the trial Judge on the ground that there was no right of appeal against interlocutory decisions made in an election petition filed under Decree No. 37 of 1987. On subsequent application to the Court of Appeal, the application was granted. The applicant then applied to the Supreme Court for leave to appeal. Before the Supreme Court, a preliminary objection was raised on behalf of the 1st respondent that the Supreme Court has no jurisdiction in local government election petitions in view of Section 36(2) of the Local Government Elections Decree No. 37 of 1987 which states:

“The decision of the Court of Appeal is final.”

Held (Unanimously upholding the objection):

Section 36(2) of the Local Government Elections Decree 1987 makes the decision of the Court of Appeal final on any question relating to local government elections under that Decree and does not give the Supreme Court appellate or supervisory Jurisdiction.

Nigerian Statutes Referred to in the Ruling:

Constitution of the Federal Republic of Nigeria 1979, S.220.

Constitution (Suspension and Modification) Decree No.l of 1984, Section 5(1).

Local Government Elections Decree (No.37 of 1987) Section 36(1) & (2).

Ruling:

This was a ruling of the Supreme Court on a preliminary objection raised before it as to its jurisdiction to entertain applicant’s application for leave to appeal and consequently his appeal. The Supreme Court upheld the objection and struck out the application.

History of the Case:

Supreme Court:

Names of Justices that sat on the Appeal: Andrews Otutu Obaseki, J.S.C. (Presided and Read the Lead Ruling), Muhammadu Lawal Uwais, J.S.C., Adolphus Godwin Karibi-Whyte, J.S.C, Saidu Kawu, J.S.C., Salihu Modibbo Alfa Beigore, J.S.C. Appeal No.: S.C. 119/1988

Date of Judgment: Monday, 4th July, 1988.

Names of Counsel: Dr. Mudiaga Odje, S.A.N. (with him, A. L. Keshinro) -for the Applicant.

Chief C.O. Ihensekhien, S.A.N. (with him, F. Zimughan, B.O. Adebisi, Alhaji S. Hassan) – for the 1st Respondent.

E.E. Osifo – for the 2nd – 5th Respondents.

    Court of Appeal:

Division of the Court of Appeal from which the Appeal was brought: Court of Appeal, Benin.

Names of Justices that sat on the Appeal: Uche Omo, J.C.A. (Presided and Read the Lead Judgment), Emmanuel Takon Ndoma-Egba, J.C.A., Isa Ayo Salami, J.C.A.

Date of Judgment: Thursday, 26th May, 1988

Appeal No: CA/B/76mi/88.

Names of Counsel: C.O. Nwabuokoi (with him, F. Zimughan) – for the Respondent/Applicant.

Dr. M. Odje, S.A.N. (with him, T. Omo-Ehizogie) – for the 1st RetitionerIRespondent.

High Court:

Name of the High Court: High Court, Warri.

Name of the Judge: Omoluabi, J.

Counsel:

Dr. Mudiaga Odje, S.A.N. (with him, A.L. Keshinro) – for the Applicant.

Chief C.O. Ihensekhien, S.A.N. (with him, F. Zimughan, B.O. Adebisi and Alhaji S. Hassan) – for the 1st Respondent.

E.E. Osifo – for the 2nd – 5th Respondents.

OBASEKI, J.S.C. (Delivering the Lead Ruling): Having heard the submissions of counsel for all the parties and read the Local Government Elections Decree, 1987 No. 37 of 1987,1 uphold the preliminary objection raised by the 1st respondent and hold that as the Decree No.37 of 1987 does not vest any jurisdiction in the Supreme Court this Court has no jurisdiction to entertain the applications contained in the motion paper filed by the applicant. Section 36(2) of the Decree makes the decision of the Court of Appeal final on any question relating to Local Government Elections under that Decree and does not give the Supreme Court appellate or supervisory jurisdiction.

The application is hereby struck out with N50.00 to the 1st respondent and N50.00 to the 2nd to 5th respondents.

UWAIS, J.S.C.: The application before us arose from the decision of the Court of Appeal in an election petition filed in the High Court of Bcndel State sitting at Warri. The petition is in respect of an election into Bomadi Local Government Council.

The 1st respondent to the application has raised a preliminary objection that by virtue of the provisions of Section 36(2) of the Local Government Elections Decree, 1987 this Court has no jurisdiction to entertain the appeal from the decision of the Court of Appeal.

Now by Section 36(2) of the 1987 Decree –

“The decision of the Court of Appeal is final”

This provision is very clear and without any ambiguity. I therefore agree that this Court has no jurisdiction to entertain the application. The application is therefore incompetent.

For these reasons the application is hereby struck out with N50.00 costs to each set of respondents.

KARIBI-WHYTE, J.S.C.: The appellant is seeking leave of this court to appeal against the judgment of the court on an interlocutory decision in the election petition against the 1st Respondent. The application which was refused in the High Court was to amend the petition against the election of the 1st Respondent. The Court of Appeal assumed jurisdiction and allowed the appeal of the 1st Respondent. Appellant is now appealing against the judgment of the Court of Appeal.

Mr. Ihensekhien for the 1st Respondent, and Mr. Osifo for the 2nd – 5th Respondents have submitted that the appeal is incompetent. They rely on the provisions of S.36(2) of the Local Government Elections Decree No.37 of 1987, and S.,5(l) of Decree No.l of 1984 and argue that the judgment of the Court of Appeal in Local Government Election petitions are final and no appeal lies to the Supreme Court. Dr. Odje submits that jurisdiction was assumed under the provisions of the Constitution 1979 which gives a right of appeal to the Supreme Court.

There is no doubt the provisions of S.36(2) of Decree No. 37 of 1987 clearly states that the judgment of the Court of Appeal in Election petitions is conclusive and final. There is therefore no jurisdiction in this Court. In the circumstances, the preliminary objection is upheld. The application for leave to appeal, etc. is hereby struck out.

Applicant shall pay N50 costs to the Respondents.

KAWU, J.S.C.: Having heard counsel’s submission, I am of the view that there is merit in the preliminary objection that this Court has no jurisdiction to entertain this application in view of the clear provisions of S.36(2) of the Local Government Elections Decree No.37 of 1987 which state that the decision of the Court of Appeal on election petitions shall be final. The preliminary objection therefore succeeds and the application is hereby struck out with N50.00 costs to each set of the respondents.

BELGORE, J.S.C.: The preliminary objection concerns the fact of an election petition pending in an election Court. An application was made in respect of amendment of the petition, the ruling on which led to an appeal to Court of Appeal. Court of Appeal on a preliminary objection that it had no jurisdiction to hear interlocutory appeal on an election petition, ruled that by virtue of S.220 of the Constitution, it had jurisdiction. This seems to contradict S.36(l) Local Government Elections Decree (No.37 of 1987), which clearly vests jurisdiction in case of final decision. It is to be noted that appeal does not go beyond Court of Appeal by virtue of the same Decree No. 37. This matter before us, for purpose of the Decree 37 (supra), is an election matter and the reversion to Constitution cannot alter the situation. The matter cannot go to this court as the decision of the Court of Appeal is final. Interlocutory application to this Court is not competent. The application is struck out with N50.00 costs to each set of respondents.

Objection upheld

Application struck out

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