Mebrim Uchechukwu
3 July 2009
Abuja — Supreme Court last Tuesday consolidated the appeals brought by Imo State Governor, Chief Ikedi Ohakim and the Independent National Electoral Commission [INEC] challenging the ruling of the Court of Appeal which held on February 26 , 2009 that it has jurisdiction to hear Martin Agbaso's appeal.
It would be recalled that All Progressives Grand Alliance [APGA] candidate in the April 14 and 28 governorship election in Imo State, Chief Martins Agbaso filed an appeal asking the appellate court in Abuja to order INEC to announce the April 14 polls in the state.
But not satisfied with the decision, Governor Ohakim and INEC filed separate appeals praying the Supreme Court to set aside the ruling of the appellate court on the grounds that the learned Justices of the appeal Court erred in law when they allegedly venture into the merit of the appeal at the preliminary stage.
But when the matter came up on Tuesday, the apex court led by Justice Aloy Katsina Alo advised counsel to Ohakim and INEC to consolidate their respective appeals since they are essentially seeking the same purpose and have the same record. They bought the idea and the appeals were consolidated.
The appeals are namely: SC/59/2009 and SC/59a/2009,have now consolidated and would be heard together on the next adjournment date being 29th September, 2009.
Counsel to Agbaso, Chief Wole Olanipekun [SAN], also withdrew his motion seeking for accelerated hearing of the appeal at the apex court since the court has fixed the hearing date in September.
The apex court had observed before the withdrawal of the motion that it had earlier Okayed accelerated hearing in the matter and asking for that again would not make any difference.
It would be recalled that the Supreme Court on May 5, 2009, gave its nod to the application brought by Imo State Governor, Ikedi Ohakim for stay of proceedings in the appeal filed by the Governorship candidate of the All Progressives Grand Alliance [APGA] in the State Martins Agbaso challenging the powers of the Independent National Electoral Commission (INEC) to cancel the governorship elections held on April 14th 2007.
The court, then presided over by Justice George oguntade in a unanimous decision in like manner, granted Ohakim's prayers for an extension of time within which to seek the leave of the court to amend his appeal despite objection from counsel to Agbaso, Wole Olanipekun, SAN and the Peoples Democratic Party [PDP] candidate in the April elections in the state, Senator Ifeanyi Ararume, Lateef Fagbemi, SAN.
Governor Ohakim's lawyer, Jude Nnodum, SAN who moved the applications for a extension of time and stay of proceedings intimated the five man panel of the court that the respondents have not shown that any of the additional grounds of appeal is a mixture of both facts and law as he pointed out that ground one of the appeal talks about the failure of the Court of Appeal to render a decision in the case of the appellant, Agbaso.
Nnodum said that "grounds two and three are similar as the appellant raised issues for determination and the Court of Appeal chose to rule on issues raised by another party. Ground four deals with the misapplication of law on what should be done where there is an interlocutory application, while ground five complains on the court below leaving the issues before it and delving into some other matter which is an error of law.
"On ground six, the Court of Appeal pre-judged an issue which is before it and ground seven is the same with ground six ground nine is a misconception of law and I submit that none of these grounds is a mixture of law and facts I urge the court to grant the applications as prayed".
But Olanipekun while raising objection to the application for an extension of time told the court that all the additional nine grounds of appeal were anchored on nothing concrete and that the original grounds of appeal on which the appellant [Ohakim] was relying on are both on facts and law which he argued ought not to have been filed without the leave of the apex court or the Court of Appeal
Hear him, "leave ought to have been sought and obtained before they brought the appeal so they want to base the appeal on nothing there is no base, no platform and no foundation and thus they cannot file for additional grounds of appeal.
"The application for an extension of time has taken the shine off the application for stay of proceedings as it goes to show that there is no contingency that would warrant the granting of the stay of proceedings. I urge the court to dismiss the applications" he added.
Fagbemi had aligned himself with the submissions of Olanipekun urging the court to dismiss the application for leave for an extension of time and stay of proceedings on the ground that "this matter is a time sensitive matter that has to do with tenure and by May 29, it would be two years, I urge the court to send the case back to the Court of Appeal to hear and determine it then we can come back here".
After hearing the parties, Oguntade in his ruling held that "the right to appeal is the sacrosanct and since they have filed their appeal we will hear them, we will however give an accelerated hearing of the matter but it has to be in compliance with the court's calendar. The court will be on vacation in July and we would not come back until September.
"On the application for leave, I have taken cognizance of the objections to the application however leave is granted to the applicant to amend the notice of appeal and leave is also granted to the applicants to file the amended appeal within two days if it is not filed already. Since we have held that at least one of the grounds of appeal is competent and recognizable in law there would be no need wasting the time of the court on objecting, stay of further proceedings is hereby granted" he declared.
Then he adjourned further hearing on the matter to September 29 and ordered parties in the suit to file and exchange their written addresses within that period.
Essentially, the appeal brought by Agbaso challenging the powers of INEC to cancel the governorship elections conducted in the State on April 14th 2007 had on 30th March suffered a setback as the Court of Appeal Abuja Division stayed further proceedings on the matter.
The Court in its ruling read by Justice Ayobode Lokulo-Sodipe on the applications brought by INEC, Ohakim and Ararume held that it would be undesirable for a judge of the lower court having been informed that there is a pending appeal at the Supreme Court to go ahead to hear the matter.
According to him "the law is settled that the filling of appeal does not amount to an automatic stay of proceedings, however with the filling of the appeal at the Supreme Court, the filling of stay of proceedings in the registry of the Supreme Court and in this court, it will be undesirable for a judge of the lower court to continue to hear the matter having been given an ample notice.
"I have also taken cognizance of the Supreme Court, decision that in electoral matters, that courts should always take a fast lane in the hearing of the matter, it is very clear that in this matter this court has always taken the fast lane, however when it is seen that fast tracking the process would destroy the "res" [subject matter] of the case the court will have no other choice than to stay proceedings" he declared.
The judge said the decision of the court "is a clear adherence to judicial discipline that has been put in place over the years. I therefore hold that there is merit in the applications of the counsel to the respondents for a stay of further proceedings in the appeal pending the hearing and determination of the appeal before the Supreme Court.
Justice Lokulo-Sodipe added that "I have listened to the arguments of Senior Counsel for the respondents and I have also taken cognizance of the decision of the Supreme Court that when the res of the matter would be destroyed that the courts should not take the fast lane and in the circumstances I hold that there is merit I n the applications for a stay of further hearing on the matter pending the hearing and determination of the appeal before the apex court.
The Court of appeal had on February 26, 2009 assumed jurisdiction to entertain the suit brought Agbaso challenging the powers of INEC to cancel the governorship elections held in Imo state on April 14th 2007.
The Court presided over by Justice Jimi Olukayode Bada in a unanimous decision held that the issue of the powers of INEC to cancel the Governorship elections held on April 14th in Imo state was a live issue that has not been adjudicated on by any court.
According to him "issues raised by the respondents in the suit are the same but the issue raised by the Counsel for the 3rd respondent [Ifeanyi Ararume of the PDP] is apt, the question is whether INEC has the powers to cancel the governorship elections held in the state on that day while upholding the results of the elections into the House of Assembly held on the same day, the same time and by the same people.
Dissatisfied with the court's decision, INEC, Ohakim and Ararume had rushed to the Supreme Court to challenge the decision, they also on March 23rd brought an application asking the Court of Appeal to stay all further proceedings on the matter pending the hearing and determination of their appeal at the apex court in Nigeria .
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