ORUBU V. N.E.C. & ORS.

• Pages: 333-382

ORUBU V. N.E.C. & ORS.

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333

ORUBU V. N.E.C. & ORS.

JAMES ORUBU



APPELLANT

V

NATIONAL ELECTORAL

COMMISSION & 13 ORS.



RESPONDENTS

SUIT NO. SC 158/1988

SUPREME COURT OF NIGERIA

ESO,



J.S.C.

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

KARIBI-WHYTE,



J.S.C.

AGBAJE,



J.S.C.

WALT,



J.S.C.

CRAIG,



J.S.C.

16th December, 1988

Election Petitions - Attitude of courts towards election petitions vis-a-vis ordinary civil

proceedings - Jurisdiction of the Court of Appeal under S.36 of Decree 37 of 1987 -

Propriety of decision where the jurisdiction of the Court of Appeal is exercised under the

1979 Constitution.

Practice and Procedure - Departure by the Supreme Court from previous decisions given

by it - Doctrine of stare decisis - Jurisdiction of Supreme Court to entertain an appeal

over one of its decisions - POwer of Supreme Court to review any of its previous judgments

- Priority between similar Statutes - Attitude of Supreme Court.

Constitutional Law - Right of Appeal of an aggrieved party - Section 220 of the 1979

Constitution - Jurisdiction of the Court ol'Appeal to entertain election appeals under the

1979 Constitution - Validity of decision so arrived at.

Interpretation and Constniction - Section 37(1) (2) of Decree 37 of 1987 - Ordinal)/ meaning

as given by the courts - Co-existence of rights and remedies in the same statute -

Interpretation given to such a Statute by court.

ISSUES:

1.

Whether Election Petitions are proceedings

sui generis

and therefore are not to

be considered as being similar to ordinary civil proceedings.

2.

Under what circumstances would the Supreme Court depart from its own

decision; can the Supreme Court entertain an appeal over one of its previous

decisions.

3.

Whether the Court of Appeal has the jurisdiction under the 1979 Constitution to

determine an interlocutory decision arrived at by the High Court over an election

petition.

4.

What is the attitude of the Supreme Court as regards the precedence between

general provisions of statutes and specific provisions of subsequently enacted

statutes, where both statutes relate to the same subject matter.

5.

What is the judicial interpretation given to S.37(1)(2) of Decree 37 of 1987 and

what is the subsequent effect of this section on the status of an elected candidate.

334

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NIGERIAN SUPREME COURT CASES

[1988] 3 N.S.C.C.

6.

Whether the co-existence of a right and a remedy in the same statute creates an

uno flatu

and as such the former right cannot be dissociated from the latter.

7.

What is the test which the Supreme Court adopts for determining whether a

decision handed down by a lower court is interlocutory or final.

FACTS:

The appellant James Orubu was a candidate in the Local Government elections

which took place throughout Nigeria on the 12th day of December 1987. He con-

tested together with the 14th respondent for the chairmanship of the Warri Local

Government Council in Bendel State. The appellant was not satisfied with the result

of the election by which the 14th respondent was declared the winner.

The appellant therefore brought a petition against the 1st to 13th respondents

asking the court to declare the election void and that no candidate be announced

as having been elected chairman. The appellant subsequently brought an

ex parte

motion praying the court

inter alia

to grant an order joining the 14th respondent as

a party to the petition and for an order restraining the 14th respondent from being

sworn in as chairman for Warri Local Government Council. The application was

heard by the High Court and both prayers sought by the petitioner (the appellant)

were granted.

The 14th respondent subsequently brought before the High Court two motions

praying the court for an order discharging the

ex parte

order restraining him from

being sworn in as chairman for Warri Local Government Council. The latter of the

two motions enjoined the court to strike out the 14th respondent's name from the

petition, havng been improperly joined. Both motions were heard by the court, who

in its ruling dismissed the applications

in toto.

Dissatisfied with the ruling of the learned Judge the 14th respondent appealed

against it to the Court of Appeal claiming

inter alia

that the learned trial Judge eared

in failing to consider all the implications of s.37(2) of the Local Government Election

Decree 37 of 1987 on the issue of interim injunction and that the Judge erred by fail-

ing to direct his mind on the issue of balancing hardships on the application to dis-

charge the injunction.

The Court of Appeal in its decision set aside the order of injunction made by the

court below restraining the 14th respondent from being sworn in as chairman.

The appellant being aggrieved with the decision of the Court of Appeal, appealed

to the Supreme Court raising amongst other issues the question of appeals pend-

ing before the Court of Appeal, where the subject matter of the appeal is in respect

of an election petition and the appeal itself is against an interlocutory decision of the

High Court.

HELD:

1.

That election petitions are not the same as ordinary civil proceedings; they are

special proceedings because of the peculiar nature of elections which by reason

of their importance to the well being of a democratic society, are regarded with

an aura that places them over and above the normal transactions which give

rise to general claims in court. Where a court is faced with an election petition

the proceedings are regarded as proceeding

sui generis

and as such they are

not regarded as being identical with other civil proceedings.

Furthermore that as a matter of deliberate policy to enhance urgency, election

petitions are expected to be devoid of the procedural cogs that cause delay in

the disposition of the substantive dispute.

2.

That it is well settled that the Supreme Court does not ordinarily depart from its

decision unless it is shown that the decision has over a period of time

perpetuated injustice through the doctrine of

stare decisis

or it has impeded the

development of law or it is in fact against public policy or the decision was given

per incuriam.

ORUBU V. N.E.C. & ORS.

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335

Furthermore, the Supreme Court has no power to sit on appeal over its previous

decisions because it becomes

functus officio

once the decision is given.

3.

That the Court of Appeal derives the jurisdiction to hear appeals in the petitions

of local governments elections from Decree 37 of 1987 only and not from the

provisions of s.220(1)(g)(ii) of the 1979 Constitution.

Moreover where the decision appealed against is not final but an interlocutory

decision, the Court of Appeal cannot by virtue of paragraph 27(1) of Schedule

13 of Decree 37 of 1987 hear the election appeal. Consequently the Court of

Appeal would be in error and without jurisdiction under the 1979 Constitution to

determine such an appeal.

In the instant case the Court of Appeal acted without the requisite jurisdiction in

determining the election appeal under the 1979 Constitution.

4.

That the Supreme Court has held in the case of

Edet Akpan v. The State

that

where specific provisions of a statute are subsequent to general provisions of

another statute on the same subject matter, the specific provisions of the

subsequent statute will prevail.

In the instant appeal the specific provisions of Decree 37 of 1987, which regulates

amongst other things questions as regards elections petitions, take precedence

over the general provisions of the 1979 Constitution as regards election appeals.

Consequently the jurisdiction of the courts as regards election appeals is

governed by the said decree.

5.

That the natural and ordinary meaning of section 37(1)(2) of Decree 37 of 1987

is that where a candidate duly elected has been held by the High Court not to

have been properly elected, the candidate so declared by the Electoral

Commission shall be deemed fully elected until any contrary determination of

the appellate court.

Similarly that where an election is avoided by the decision of the High Court, a

candidate declared elected before such avoidance which had given notice of

the appeal within one month from such determination of the court shall

(notwithstanding the decision of the High Court) be deemed to have been

elected until the determination of the Court of Appeal is given or the appeal is

abandoned.

The effect of this section is that a candidate declared by the court to have been

elected, or so declared by the Electoral Commission shall continue to be the

elected candidate until a contrary determination of the Court of Appeal or the

appeal is abandoned.

Furthermore it is to be noted that this provision protects the declared rights of

the candidate after and not before the decision of the High Court.

6.

That where a right and remedy co-exist in the same statute, they are given

uno

flatu

that is to say in one breath and the one cannot be dissociated from the

other.

In this action the right and remedy as regards the Local Government Elections

can be found in the enabling Decree. i.e. the Local Government Elections

Decree.

7.

That the Supreme Court has held in

Omonuwa v. Oshodi

that an interlocutory

decision is one which has not finally determined the right of the parties before it

even if it might have determined finally an issue in the case. Whereas a final

decision is one which determines finally the rights of the parties in the case before

it.

8.

Agbaje, Craig J.S.C. (Dissenting):•

That by virtue of s.220(1)(g)(ii) of the 1979

Constitution there is a right of appeal by an aggrieved person as of right against

a decision of the High Court or to the Court of Appeal where an injunction is

granted or refused by the High Court. It is immaterial that the injunction is

granted in an interlocutory proceeding in an election petition. Furthermore the