By Ise-Oluwa Ige
Less than three weeks ago, a three-member panel of the Court of Appeal sitting in Enugu declared one Dr Emmanuel Onwe as winner of the April 21, 2007 poll into the Ebonyi Central Senatorial District of the National Assembly.

The appellate court came to the conclusion after it declared him as the authentic candidate of the ruling Peoples Democratic Party (PDP) for the election. By the judgment, Dr Onwe is saying that he ought to replace Senator Julius Ucha,  presently representing the Ebonyi Central Senatorial District at the upper chamber of the National Assembly.

He is also saying that Ucha ought to vacate his seat w2ith immediate effect, having lost the case to him.
He said that he though agreed that the case was a pre-election matter to which his opponent, by right, should have the right of appeal to the Supreme Court, Dr Onwe said that his case, unfortunately, had the trappings of a post election matter.

He argued that the verdict of the Court of Appeal that returned him as senator representing his district emanated from an appeal arising from the judgment of an election petition tribunal.

He said it is trite that electoral disputes arising from National Assembly elections terminate at the Court of Appeal. He is contending that it was immaterial whether the court had the jurisdiction to sit on the case or not. He is arguing that the Court of Appeal having entered judgment on the case, no other court including the Supreme Court could review its decision.

He said he was relying on the provision of section 246 (3) of the 1999 constitution to make the claim. But Senator Ucha is contending that the judgment his opponent wanted to execute was a nullity and not executable. He is claiming that the case in question decided by the Enugu division of the Court of Appeal was purely a pre-election matter.

He is saying that the Electoral Act 2006 and section 285 of the 1999 constitution were clear on the jurisdiction of the National Assembly Election Tribunals and Court of Appeal sitting as Appeal Tribunal. He said that the subject-matter of the dispute decided by the Court of Appeal, being a pre-election matter, robbed both the tribunal and the appellate court the jurisdiction to entertain the case. He also argued that the subject-matter of the dispute also robbed the judgment of its validity.

He specifically said that it is trite that no matter how beautiful a judicial proceeding might be or sound the judgment emanating therein, he said that if such court lacked the jurisdiction, whether territorial, subject-matter or original, all that might have taken place in such case would amount to a nullity.

He concluded by saying that the instant judgment by the Enugu division of the Court of Appeal removing him from office was a classical example of a verdict that is null and void and therefore not executable.

He cited a lot of judicial authourities to justify that the case was a pre-election matter and that both the tribunal and the Court of Appeal that heard the case were bereft of territorial jurisdiction to entertain it. Going into a brief background of the case to explain why the judgment Dr Onwe procured at the Court of Appeal in Enugu could not stand, Senator Ucha said that the PDP’s primary election for nomination of candidates for the 2007 Ebonyi Central Senatorial poll was fixed for December 2, 2006.

He said that the primary election however did not hold because the atmosphere was so charged that the returning officer for the primary poll, Chief John Igboke aka Johnkay, left the election venue dramatically.

He said the state chapter of the PDP informed its headquarters accordingly while a fresh primary was scheduled for December 14, 2006 where he claimed he was given a consensus ticket. In fact, he said he was going to declare for the gubernatorial seat but that the top echelon of his party asked him to step down while he was made to vie the party’s primary senatorial position and was returned as PDP’s consensus candidate.

He said that the state party Chairman, Chief Okagu Ogada, discovered at INEC’s office that the name of Dr Onwe was submitted earlier as PDP’s candidate, although erroneously. He said that the party chairman had to ensure that Onwe’s name was removed and his name entered by INEC.

He said it was the pure business and discretion of the political party to decide who flies its flag. He said that after the substitution was done, Senator Ucha said he contested the senatorial poll slated for April 21, won and was duly declared winner by INEC.

He said that instead of Onwe to challenge the substitution of his name at the regular court, he said he slept on his right. The senator said four months after the substitution, however, he said that Dr Onwe approached the National Assembly Election Petition Tribunal to invalidate his election on the ground that he was the candidate of the ruling PDP for the senatorial poll.

He said that the election petition tribunal refused to entertain the case for want of subject-matter jurisdiction but that upon appeal, the Court of Appeal ordered the trial tribunal to consider the case on its merit.

Senator Ucha said that both the tribunal and the Appeal Court later entered judgment against him, the reason for which he has appealed to the Supreme Court. He is saying that it is elementary in law that a court that is bereft of jurisdiction to entertain a case cant make any judicial finding on such case.

He is presently inviting the Supreme Court to consider the special circumstance surrounding the facts of the case and not only void the Court of Appeal judgment but also tongue-lash all the justices that sat on the panel that heard the case.

Although the Supreme Court is presently on its annual vacation, the issue is: will the apex court rise up to the occasion by investigating whether or not subject_matter jurisdiction is available to all the courts that sat on the case?

Not until the Chief Justice of Nigeria, Justice Iyorger Katsina-Alu empanels justices of the court to look into the merit of the case, only time will tell the fate and legal weight of the Court of Appeal judgment in question.