By O.J. Omoruyi Esq
Prologue
The appeal was filed by Ken Mozia SAN,
The main objective of the interlocutory appeal was to render inchoate whatever decision Hon. Justice James Omotosho gave in respect of the voter’s card forgery allegation against Mr. Asue Ighodalo. Their main relief at page of the CTC of the Judgment of the Court of Appeal was for SUIT NO. FHC/Abj/CS/ /2024 to be dismissed. Below is what the Court said.
The Abuja Division of the Court of Appeal in its judgment on the voter’s card forgery case of Asue Ighodalo, the Peoples Democratic Party(PDP) candidate in the forthcoming Edo election reprimanded the Senior Advocates of Nigeria who filed the appeal on behalf of Ighodalo. At pages 28 and 29 of the Certified True Copy of the judgment which was released to the parties in the appeal on August 5 2024, Hon. Justice P.A. Mahmoud who read the lead judgment said, inter alia, that ” This is the practice of counsel filing interlocutory appeals especially in pre-election matters such as this one. I could not help but wonder what the Appellant would lose if they had waited till the end of the substantive matter to bring an appeal wholistically….”
The reason for this finding of the appellate Court is not far-fetched. The 4th Alteration of the Nigerian 1999 Constitution made a novel provision, which abrogated interlocutory appeals in pre-election litigations in Nigeria. Not all lawyers in practice are conversant of this fact, but those specialised in in pre-election litigation.
Here is the catch. Section 285(8) of the 1999 Nigerian Constitution, as amended provides that;
“Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the tribunal or court in any pre-election matter or on the competence of the petition itself is raised by a party, the tribunal or court shall suspend its ruling and deliver it at the stage of final judgment.”
The word “shall” used in the above sub-section of Section 285 of the Constitution is, indeed, a mandatory expression and therefore abolishes all forms interlocutory appeals in pre-election cases. When it is said that pre-election and election cases are sui generis, the simplest explanation of that is as follows. Pre-election and election petition cases have their own special or exclusive rules and regulations, governed by the essentiality of time.
Thelegal implication of this new provision of the Nigerian Constitution, as amened, is that the decision of Justice Omotosho Ighodalo appealed against in an interlocutory manner is part of the final judgment of Justice Omotosho. By virtue of the above provision, the appeal ceased to be an interlocutory appeal the moment it was filed in respect of a pre-election matter.
The legal consequence of the above is that this present decision of the Court of Appeal has overruled the judgment of Justice James Omotosho, which was in favour of Ighodalo. It is worthy of emphasis that the issues for determination formulated at the Court of Appeal, on behalf of the Appellant (Ighodalo) were the same Issues in his preliminary objection at the Federal High Court, for which Justice Omotosho gave a decision in his favour.
Sadly, like the proverbial act of throwing away both the baby and the bath water, the earlier Judgment of Justice Omotosho was mortgaged and imperilled by the lawyers of Ighodalo, in lieu of an unforseen Interlocutory decision of the appellate Court that has become unfavourable.
Epilogue
The Respondents at the lower Court who were co-aspirants challenging the voting documents submitted to INEC by Ighodalo have already filed their Notice of Appeal to the same appellate Court against the decision of Justice Omotosho. On the basis of the doctrine of res judicata, the Court of Appeal Abuja is bound by its own decision by virtue of Section 285 of the Nigerian Constitution, earlier cited.
Part 2 of this piece will be released in the coming week.
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