Imo Guber: Okorocha wins at supreme court #DAILYNEWSWATCH – The Supreme Court yesterday resolved in favour of Governor Rochas Anayo Okorocha, his appeal challenging the decision of the Appeal Court Owerri, which joined his predecessor, former Governor Ikedi Ohakim in the appeal instituted by Senator Ifeanyi Ararume, the candidate of the Action Congress of Nigeria (ACN) in the May 6, 2011 supplementary election conducted by the Independent National Electoral Commission. “In the result, the two issues are both resolved in favour of the appellant while the ruling of the Court of Appeal, Owerri Judicial Division delivered on the 19th October, 2012 is hereby set aside as an abuse of court process. The appeal, in the circumstance, is allowed and I make an order of N100000 in favour of the appellant against each of the 1st, 3rd and 4th respondents,” Justice Clara Ogunbiyi stated in her lead judgment yesterday. Parties in the suit marked SC 445/2012 were Owelle Rochas Okorocha (appellant) while the PDP (ex-governor Ikedi Ohakim), ACN, Sen. Ifeanyi Ararume, INEC and APGA were 1st, 2nd, 3rd, 4th and 5th respondents respectively. The appeal was against the ruling of the Court of Appeal, Owerri, which granted the PDP leave to appeal against the judgment of the Federal High Court, Owerri, in suit no. FHC/OW/CS/133/2011 (ACN vs INEC & others) delivered on February 3, 2012. The judgment dismissed the suit filed by the 2nd and 3rd respondents on the ground that the subject matter of the said suit was a post-election matter. Dissatisfied with the judgment of the Federal High Court Owerri, the 2nd and 3rd respondents lodged an appeal at the Court of Appeal, Owerri Judicial Division vide a notice of appeal dated March 28, 2012, which had an appeal number CA/OW/101/2012. The briefs of argument were filed and exchanged in respect of the appeal as between the 2nd and 3rd respondents on the one hand, who were appellants at the Court of Appeal, while the 4th and 5th respondents as well as the appellant in the apex court, on the other hand, all respondents at the lower court. While the forgoing appeal was pending, on May 18 2012, the PDP brought an application in the said appeal no. CA/OW/101/2012 praying the court for leave to appeal, as an interested party, against the judgment of the Federal High Court, Owerri, in suit marked FHC/OW/CS/133/201. Upon service of the foregoing application on the appellant (Okorocha), he promptly filed a notice of preliminary objection and a counter affidavit challenging the 1st respondent’s (PDP) application. Notwithstanding the notice of preliminary objection and the counter affidavit, the appellate court on October 19, 2012 delivered its ruling on the application, and granted the PDP leave to appeal against the judgment of the Federal High Court Owerri, which had earlier been delivered on February 3, 2012. According to Justice Ogunbiyi: “It is against the ruling delivered by the lower court on October 19, 2012. Therefore, that the appellant has lodged this appeal vide a notice and grounds of appeal filed on October 24, 2012. On May 18, according to the apex court, the PDP, by way of motion on notice, brought in the pending appeal marked CA/OW/101/2012, and after parties had filed their respective briefs of arguments, sought the leave of the Court of Appeal to appeal against the judgment of the Federal High Court Owerri, claiming that he was not aware of the pendency of the said suit at the High Court while it lasted. “It is also on record that the appellant and the 5th respondent herein challenged the said application for leave to appeal by raising a preliminary objection and filing a 26 paragraph counter affidavit against same. Notwithstanding the notice of preliminary objection raised, the lower court, on 19th October 2012 delivered ruling in favour of the 1st respondent (PDP)” Justice Ogunbiyi observed. For purpose of putting the record straight, the apex court stated that, “On the 31st October, 2013 at the point when the appeal was to be heard, counsel to the 2nd respondent Chief U. Udechukwu, SAN brought an application seeking the striking out of the name of ACN, which the 5-man panel of the Supreme Court granted. Also, a further application by Ahmed Raji SAN, counsel to the 5th respondent sought the withdrawal of the briefs filed on behalf of their client (5th respondent) in appeals SC/445/2012 and SC/446/2012, which the panel granted. Two issue identified by Okorocha for determination of his appeal were; “Whether by the combined effect of S.233 (1), S.285 (1), (2) and (7) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and S.133 (1) of the Electoral Act, 2010 (as amended) as well as the relief sought at the lower court by the 1st respondent in his appeal, the lower court has jurisdiction to entertain the appeal of the 1st respondent and grant the relief sought while not sitting as an election petition appellate court (Distilled from ground 1).” The second issue was, “Whether the lower court has jurisdiction to hear the appeal of the 1st respondent, the subject matter and the relief being sought having been heard and determined by this honourable court on 2nd March, 2012 in an election appeal no. SC/17/2012 – PDP vs Okorocha & others (Distilled from ground 2).” Lead counsel to the PDP, Wale Olanipekun could not adopt the two issues formulated by the appellant, the 3rd respondent did while the 4th respondent raised a lone issue on, “Whether in the light of the facts, circumstances and the laws applicable to these, it can be said that the court below had exercised its discretion rightly, judicially and judiciously within its powers, its jurisdiction and the governing principles in granting leave to the 1st respondent to appeal as an interested party against the decision of the trial court.” In deciding the preliminary objection of the 1st respondent to the appeal on October 31st 2013, which sought an order for the apex court to strike out Okorocha’s notice and grounds of appeal dated October 23, 2012 but filed on the 24th, the panel said, “on a careful perusal of the appellant’s two grounds of appeal and issues formulated there from, his grouse or complaint is not limited to an exercise of discretion simpliciter but goes further to question the legality of re-litigation on an issue and subject matter which had long been disposed of by a court of competent jurisdiction.” Specifically, the panel held that, “the preliminary objection having been grossly misconceived is hereby overruled. The grounds of appeal are in the circumstance, both competent.” On the merit of the appeal, Justice Ogunbiyi adopted the two issues formulated by Okorocha, whereby “he argued that the leave to appeal as an interested party is not a right open to a litigant, who had previously litigated an issue unsuccessfully on the merit, only to have a second bite at the cherry through the suit of another aggrieved party.” Justice Ogunbiyi said, “The 1st respondent at the time of application for joinder, was very much aware, also very well with the knowledge of the concluded petition by this court in SC/17/2012 (Supra) on March 12, 2012. He cannot therefore feign ignorance at the time he filed the offending application on the 18th May, 2012, which was a period of over two months when the final seal was put on his case by this court.” She added, “the principle of law is well settled that a party may be joined as a person interested in a suit very early or midstream depending on when he hear of the proceedings. In the case before us and under consideration however, the 1st respondent as the applicant was very much aware of the concluded suit involving his interest. “The saying is apt, that equity aids the vigilant and not the indolent. The 1st respondent, and also his comrades/those in his camp have themselves to blame and must not escape the wrath of the hammer for being in utter abuse of court process,” Justice Ogunbiyi stated. “In other words, with the 1st respondent having pursued the petition tooth and nail and lost from the inception at the tribunal right through the Court of Appeal and to this court, he cannot surreptitiously through the back door by reason of the ruling obtained from the lower court again have a second revisit to his concluded case which had been done and finished with. It is best to be forgotten” the Supreme Court added. “This is more so especially where the time prescribed by law and mandating him within which to conduct his case had elapsed; providence expects him to abide his fate and hope for a better political future,” Justice Ogunbiyi said. In addition, the apex court stated that, “The Court of Appeal was clearly wrong by raising the hope of resuscitating the belated case. Put differently, the discretion exercised by the lower court in that behalf was certainly not judicial and judicious. The conditions upon which an appellate court is to interfere with the exercise of the discretionary power vested in the court below have been set out in plethora of authorities and rightly submitted upon by the counsel representing the 1st respondent.” “This court will be striking or abdicating its responsibility if it fails to interfere with the wrong exercise of discretion. Put differently, the consequential effect of obliging the 1st respondent leave to appeal had, I would repeat, overreached the constitutional finality inherent in the decision of the Supreme Court in gubernatorial election matters and indeed all matters, civil or criminal under Sections 233 and 235 of the 1999 Constitution as amended,” the panel noted. The panel added that, “As a further effect, the Court of Appeal had also breached the constitutionality mandated duty placed on it to give effect to judgment of this court. Where this court, as in this case, had affirmed the validity of the election in SC/17/2012 as borne out on the record, it is more the reason why the lower court ought to have warned itself by carefully and dutifully considering the preliminary objection raised against the application before it made the erroneous ruling”. “The effect of the ruling by the court below to re-litigate an existing judgment in rem, is tantamount to a breach of the principle of res judicata which should operate as an enstoppel. Such gross abuse of court process will certainly subject our judicial system to ridicule” Justice Oghunbiyi further said. “The quest for power and governance should not be without end. The courts, in particular the apex court, which has the duty to give example to all subordinate courts, should be wary against accommodating situations where litigations subsist without end under the guise of do or die attitude which effect would only make nonsense of our entire judiciary and legal system which had specifically put in place measures to check on the unending lethargy of our political ambition,” the panel held. “The slogan, there must be an end to litigation, should persistently sound loud and clear in our polity. This is a matter of public policy which should not create a societal gangrene. The maxim interest reipublicae ut sit finis litium, is a cardinal principle of the administration of justice. The purpose and effect of the law would be lost if it acts only as a toothless bulldog,” the panel observed. “It should not be seen as a white elephant, but should be a fearful wolf in a sheep’s skin. Its effect should be so pronounced and felt especially at times like this where the abuse of the court process is so imminent,” Justice Ogunbiyi stated. All the other Justices agreed with her lead judgment.
Posted on: Sat, 25 Jan 2014 06:36:13 +0000
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