The local chapter of the All Progressives Congress (APC) in Rivers State lost its last legal battles at the Supreme Court, which stuck out the three appeals filed by the party, its governorship candidate Tonye Cole and one of its factions.
The appeals were against the judgment that excluded the APC from fielding candidates in the last elections.
A seven-man panel of the apex court, led by Justice Ibrahim Muhammad, held that the three appeals were defective, incompetent and could not be heard by the court.
The appeals were: SC/295/ 2019 filed by APC, with People’s Democratic Party (PDP) and Independent National Electoral Commission (INEC) listed among respondents; SC/266/2019 filed by APC, with Magnus Abe and others as respondents and SC/267/2019 filed by Tonye Patrick Cole, with Magnus Abe and others as respondents.
Justice Muhammad, in the first ruling delivered on SC/295/2019, upheld that argument by PDP’s lawyer Emmanuel Ukala’s argument that the notice of appeal filed by the APC was defective. Ukala is a Senior Advocate of Nigeria (SAN).
The judge noted that, rather than heading a portion of the notice of appeals “Reliefs sought from the Supreme Court” it was wrongly headed “Reliefs sought from the Court of Appeal”.
He said the implication of that error was that the appellant did not seek any relief from the Supreme Court, and, thereby, contravened the court’s rules, particularly Order 8 Rule 2, a development that rendered the appeal incompetent.
The same errors were noticed in the other two appeals, which made the appellants’ lawyers, Jibrin Okutepa (SAN) and Tuduru Ede to withdraw both appeals, following which the court struck them out.
The Independent National Electoral Commission (INEC) had, based on a judgment of a Rivers State High Court, which was upheld by the Court of Appeal, excluded candidates of the Rivers APC from its last elections.
By the three appeals, the APC had sought a consolidation of all existing appeals relating to the dispute over the primary elections held in the state; the voiding of the judgment on which INEC acted and the recognition of Cole and others as the party’s actual candidates.
Cole (APC governorship candidate) and others had emerged from the primary conducted by a faction of the party, which the Senator Magnus Abe faction objected to.
When the first appeal was called, Okutepa, for the appellant, adopted his client’s brief of argument and urged the court to allow the appeal.
The senior advocate urged the court to set aside the judgment of the Court of Appeal, which described the appeal by the APC against the judgment of the trial court as a mere academic exercise.
He urged the court to invoke it powers under Section 22 of the Supreme Court Act to hear and determine this issue on its merit and grant the reliefs the Court of Appeal failed to grant.
Ukala urged the court to dismiss the appeal for being unmeritorious and uphold his preliminary objection.
Ukala, arguing his preliminary objection, referred the court to page 1768, volume 3 of the records of appeal and argued that the reliefs sought by the appellant, as contained in the page, are not grantable by this court.
He noted: ”All the reliefs it (the appellant) sought can only be granted by the Court of Appeal, because it is directed at that court. In this instance, there are no valid reliefs before this court.”
Ukala, who argued that the error noted in the notice of appeal was fatal to the appeal, said it breached Order 2 Rule 8 and Order 8 Rule 2 of the Supreme Court’s Rules.
He argued that, by asking the court to invoke Section 22 of the Supreme Court Act to determine the case on the merit and set aside the judgment in the suit marked: PHC/78/2018, the appellant wants the court to overrule itself.
Ukala contended that the court had, in its earlier decisions in cases relating to the Rivers APC dispute, given effect to the High Court’s judgment PHC/78/2018.
He identified some of the cases in which the court had given its decisions to include appeals marked: SC/1333/19, SC/1332/19, SC/1334/19 and SC/81/19.
Ukala argued that the court cannot overrule its previous decisions, particularly as it relates to the decision in PHC/78/2018.
Don Umealor, who represented INEC, said his client did not file any process in the appeal, adding that he wished to remain neutral.
Replying on point of law, Okutepa argued that the use of the words “Reliefs sought from the Court of Appeal,” should be regarded as mere typographical error, which cannot affect the reliefs sought as set out in Para 4a to d in the notice of appeal.
Okutepa cited the case of Surakatu v. Nigerian Housing Development Society Ltd, 1981 4 SC pg 18, which he said, supports his position that he error in his notice could pass as a mere typographical error, which the court could overlook.
He said: “I submit that this appeal is before this court, and the same should be treated as mere irregularity.”
The court upheld Ukala’s argument that the reliefs were directed at the Court of Appeal and, therefore, incompetent.
Justice Muhammad, in the lead ruling, said the Supreme Court’s decision in the case of Surakatu v. Nigerian Housing Development Society Ltd, 1981 4 SC in page 18 cannot apply.
Other members of the panel: Justices Olabode Rhodes-Vivour, Olukayode Ariwoola, Amiru Sanusi, Amina Augie, Paul Galumje and Uwani Abba Aji, agreed with the lead ruling by Justice Muhammad.
At the mention of the second appeal, marked: SC/296/2019 was called, Justice Galumje drew Okutepa’s (who was the appellants’ lawyer) attention to a similar error in the notice of appeal.
Upon confirming that a portion of the notice of appeal also read: “Reliefs sought from the Court of Appeal”, Okutepa applied to withdraw the appeal, which the court equally struck out in the absence of objection from lawyers to the respondents.
When the third appeal, marked: SC/297/2019 was called, the appellants’ lawyer, Tuduru Ede acknowledged that his notice of appeal also had a similar error.
He applied to withdraw the appeal, in view of the court’s disposition, as reflected in its two previous appeals.
The court struck it out when none of the respondents’ lawyers objected to Ede’s application to withdraw the appeal.