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HON. SANI SHA’ABAN & ANOR.
ALHAJI NAMADI SAMBO & ORS.
IN THE COURT OF APPEAL OF NIGERIA
ON MONDAY, THE 1ST DAY OF MARCH, 2010
BEFORE THEIR LORDSHIPS
KUMAI BAYANG AKAAHS, JCA
MOHAMMED LAWAL GARBA, JCA
GEORGE O. SHOREMI, JCA
JOHN INYANG OKORO, JCA
CHIOMA EGONDU NWOSU-IHEME, JCA
Chief M. I. AHAMBA, SAN
Mrs A. T. U. IBINOLA – For Appellant
Court of Appeal
ELECTION MATTERS – ELECTION PETITIONS:– Jurisdiction of an election tribunal to hear a matter filed after the prescribed time for bringing such petition – Where question of jurisdiction wrongly decided by election petition but was not appealed against – Whether Court of Appeal can raise same suo motu
ELECTION MATTERS – ELECTION PETITIONS:– Preliminary objection – Application attacking the jurisdiction of Court of Appeal to entertain an appeal from a decision of an election petition on ground that said decision was a nullity – Duty of Court of Appeal thereto – Whether appellate court necessarily must assume jurisdiction before it can determine the question of nullity
ELECTION MATTERS – PETITIONS:- Decision of the Supreme Court – Bindingness of – Matters over which the Court of Appeal is designated final court of appeal – Whether Court of Appeal still bound to follow decisions of the Supreme Court thereto
PRACTICE AND PROCEDURE – APPEAL – PRELIMINARY OBJECTIONS:- Appellate Court – Whether has jurisdiction to uphold a preliminary objection attacking its jurisdiction to hear an appeal from decision of a lower court on the ground that the whole proceedings out of which the decision arose was a nullity – Absurdity of – Necessity for the appellate court to assume jurisdiction first before it can determine the question of nullity
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER:- Nullity of a judgment – Entitlement of a person who conjectures that a judgment is a nullity to approach the court ex debito justiae to set aside that judgment – What court must be satisfied of – Role of a court entertaining an application to set aside its own judgment on ground of nullity – Basis of
PRACTICE AND PROCEDURE- JURISDICTION:- Essence and fundamental nature of jurisdiction – When taken up suo motu by the court – Need for court to invite both parties for address thereto
PRACTICE AND PROCEDURE- JURISDICTION:- Question of jurisdiction heard and determined by lower court – Where issue of jurisdiction not appealed against at appellate court – Whether competent for appellate court to raise question suo motu – Justification thereof
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment):
The Appellants/Applicants brought a Motion dated 15/5/2009 and filed on 22/5/2009 seeking the following reliefs.
The grounds upon which the application is brought are as follows:
(a) The said judgment is ultra vires the Court of Appeal under the Constitution and the Electoral Act
(b) The judgment of the Panel (coram Bulkachuwa, Aboki, Belgore, Mukhtar and Ndukwe-Anyanwu, JJCA) was delivered in a proceeding in breach of the rules of natural justice, the Panel having raised the issue of statute bar suo motu.
(c) The Panel of the Court of Appeal considered itself not bound by a Supreme Court decision (YUSUF v OBASANJO) 2003 16 NWLR (Pt. 847) 532 and the Interpretation Act submitted to it thus rendering the judgment illegal.
(d) The procedure adopted by this Honourable Court in the judgment delivered on 19th February said decision of the character of a legitimate adjudication.
The application is supported with a 19 paragraph affidavit which was sworn to by the 1st Applicant and the deposed to the following facts in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 as follows.
On the receipt of the Motion to set aside the judgment delivered on 6th March, 2009, the 1st Respondent brought a motion to dismiss the said application dated 15th May, 2009 and filed on 22nd May, 2009 The application was premised on the lack of jurisdiction and competence of the court to do so due to the finality of the said judgment under the provisions of Section 246(3) of the Constitution of the Federal Republic of Nigeria 1999, 1st Respondent also urged the court to dismiss the application because it was a gross abuse of the process of the court by virtue of the doctrines of res judicata and functus officio which robbed the court of jurisdiction and competence to entertain the application. The 2nd and 3rd Respondents on their part filed Notice of Preliminary Objection to the hearing of the application based on the same reasons as the 1st Respondent. The Preliminary Objection was deemed abandoned since learned counsel for the 2nd & 3rd respondents neither filed a written address nor was counsel present in court on 10th February, 2010 when oral arguments were being proffered by the counsel to the parties despite being served with hearing notice.
Both the applicants and 1st Respondent filed to the two motions with the applicants filing; Respondent’s address. Learned counsel to the orally an application of their written addresses. The arguments on the two applications were written addresses.
The arguments on the two applications were taken together on the understanding that consideration of the motion challenging the jurisdiction of the court to set aside its final judgment will be given before proceeding to deal with the motion to set aside the judgment of 6th March, 2009.
Mr Toro, learned Senior Advocate of Nigeria adopted his address dated 8/6/09 and filed on 9/6/09 and, an oral application submitted that the Court of Appeal by virtue of S.246(3) of the Constitution of the Federal Republic of Nigeria, 1999, is wearing the clock of finality in Gubernatorial Election matters just as the Supreme Court and once it has delivered a final judgment it cannot turn around and sit on appeal over the same judgment or review it or set it aside and cited in RE DR ANDY UBA (2008) 7 NWLR (Pt.1085) 68 at 80.
When an application was filed in respect of the judgment for a review, the Supreme Court struck out the application but when a further application was filed in respect of the same matter, the Supreme Court dismissed the application and referred to PETER OBI v. INEC & ORS in Appeal No SC 123/2007 delivered on 11/6/2009. He continued further that although this is the first time the applicant in the present application is urging this court to set aside its ruling, it is not the number of times that the application is made that matters before the court can dismiss the application.
Chief Ahamba, learned Senior Advocate for the Applicants in the substantive application also adopted his written address and argued that in considering the motion challenging the jurisdiction to set aside the judgment delivered on 6th March, the Court should not look at the merit of the substantive application.
He argued by referring to page 8 paragraph 4 6 of the objector’s address that the objector conceded that under certain circumstances, this court can set aside its judgment. While it is the law that once a court gives a judgment, it becomes functus officio except where that judgment is conjectured to be a nullity. Once that situation arises, the party so conjecturing has a right to apply ex debito justiciae to set aside the judgment instead of appealing even where there is a right of appeal.
The case of OKAFOR v ATTORNEY-GENERAL OF ANAMBRA STATE (1991) 6 NWLR (Pt 200) 659 at 670 – 679 was cited in support. Learned Senior Counsel further argued that once it is alleged in the motion grounds suggesting that the judgment is a nullity the court will of necessity assume jurisdiction to hear the application because finality is anchored on validity citing the following cases as authority for the proposition OLORUNFEMI v ASHO (2000) 2 NWLR (Pt 643) 143 at 153, IGWE v KALU (2002) 14 NWLR (Pt.780) 435 at 453. UKACHUKWU v. UBA (2004) 10 NWLR (Pt 881) 294 at 308-310. He said there is no basis for the objection in view of the concession made earlier and urged the court to entertain the substantive application under its inherent power.
Turning to the substantive application learned Senior Counsel referred to the application and the address he filed which he adopted and submitted that no court has jurisdiction to raise an issue of law suo motu when such issue has been raised and determined by the lower court and there is no appeal against the decision. He emphasized that the Court of Appeal has no competence to revisit that decision of the lower court against which there is no appeal and submitted that a resolved issue of law or fact cannot be re-opened in the appellate court without an appeal. Where this happens, the act is ultra vires that court and therefore a nullity. See NWABUEZE v. OKOYE (1988) 4 NWLR (Pt 91) 644 at 679.
Learned Senior Counsel further contended that where a court whether first instance or appellate distances itself from the express provisions of the law and superior judgments that will otherwise be binding on it, that court has taken itself out of vires because no court has competence to adjudicate save as in accordance with the law. Learned Senior relied on YUSUF v. OBASANJO (2003) 16 NWLR (Pt.847) 534, OBI v. INEC (2007) 7 SC 268 at 316, (2007) 11 NWLR (Pt.1046) 560. He therefore, urged this court to allow the application and set aside the judgment.
Mr Toro learned Senior Counsel for the 1st Respondent in opposing the application referred to the counter-affidavit filed in opposition to the motion and the written address on which he placed reliance. He argued that the applicants are re-cycling the same issues which were raised and decided by this court and that even if this court erred in its judgment, the remedy does not lie in this court sitting over the same judgment but under the doctrine of stare decisis this court can depart from its judgment in a subsequent case and relied on the following cases IKHARIALE v OKOH (2009) 12 NWLR (Pt 1154) 1 at 37-40, KUMALIA v SHERIFF (2009) 2 NWLR (Pt 1146) 420 at 436 – 437.
He pointed to the fact that the applicants have not attacked the finding that the petition was filed out of time. He therefore urged this court to dismiss the application.
In reply Chief Ahamba, SAN submitted that; it is the validity of the judgment that they are attacking and that to set aside a judgment it is not necessarily the Judge that delivered the judgment being sought to be set aside that must hear it but the court from which the judgment emanated.
I accept and agree with the submission of learned Senior Counsel for the applicants that when a person conjectures that a judgment is a nullity, that person is entitled to approach the court ex debito justiae to set aside that judgment. See SKENCONSULT v UKEY (1980) 1 NSCC 1 at 6, OKAFOR v ATTORNEY-GENERAL OF ANAMBRA STATE (1991) 6 NWLR (Pt 200) 659, OLORUNFEMI v ASHO (2000) 1 NWLR (Pt 643) 1, ALAO v ACB LTD (2000) 9 NWLR (Pt 672) 246 at 282 and IGWE v KALU (2002) 14 NWLR (Pt.787) 435 at 454. Consequently the motion filed by the 1st Respondent challenging the jurisdiction of this court to entertain the application to set aside the judgment of the court delivered on 6/3/09 cannot stand and same is refused and the motion is dismissed.
Chief Ahamba, SAN, predicated his application to set aside the judgment of the Court of Appeal dismissing the appeal without hearing the appellant on four grounds which I adumbrated earlier in this ruling. One of the grounds is that the judgment was delivered in a proceeding in breach of the rules of natural justice namely that the Panel raised the issue of statute bar suo motu. It cannot be seriously contended as learned Senior Counsel did that the Panel cannot raise a jurisdictional issue suo motu. What is required of the Panel in so doing is to invite the parties to address it on the issue and this the Panel did Lack of fair hearing was not established.
Another bone of contention is that the Panel of the Court of Appeal considered itself not bound by the Supreme Court’s decision in YUSUF V OBASANJO (2003) 16 NWLR (Pt 847) 532 thus rendering the judgment illegal. A distinction must be drawn between the facts in YUSUF v OBASANJO supra and the present case. The declaration of results of the Presidential Election held in 2003 was made on 22nd Appeal, 2003 and the appellant filed his petition challenging the conduct and result on the election on 2nd May, 2003. Later on 21st May, 2003, a motion to amend the said petition was filed. The question which the Supreme Court had to settle on appeal was whether the motion to amend the petition was brought within the time limited for filing the petition and the answer was in the affirmative.
A simple arithmetical calculation of the number of days between 22nd April and 21st May (both dates inclusive) will give 30 days as stipulated in Section 132 of the Electoral Act, 2002 which is in pari matena with Section 141 of the 2006 Electoral Act. The petition in the present case was filed on 15th May, 2007 but the results of the election were declared on 15th April, 2007 as deposed to by the 1st Applicant which is a Period of 31 days from the date of the announcement of results. It is therefore not correct to state as learned counsel for the applicants has argued that the Panel did not consider itself bound by the decision in YUSUF v. OBASANJO supra.
Even though the Tribunal might have ruled that the Petition was filed within time because the preliminary objection to the competence of the petition was not filed within the stipulated time, this will not bar the Panel from inquiring into the issue on appeal. Jurisdiction is a threshold issue and can be raised at anytime even in the Supreme Court It goes to the competence of the court to adjudicate on the matter See MADUKOLU v NKEMDILIM (1962) A N L R (Pt 2) 581.
Granted that the 1st Respondent ought to have raised the issue timeously in his reply to the Petition but since the competence of the petition was an issue of law, it could be entertained at any time. The procedure adopted by the Panel on appeal to determine the competence of the petition did not deprive the decision of the character of a legitimate adjudication, neither is the judgment ultra vires the Court of Appeal to warrant another Panel of the Court setting aside the judgment of 6/3/2009.
The order which this Court made is not ultra vires the Court of Appeal to warrant another Panel of the Court setting aside the judgment of 6/3/2009. The order which this Court could make after finding that the lower Tribunal had no jurisdiction to entertain the Petition is to strike out the Petition which has the effect of a dismissal of the Petition since it cannot be resuscitated I find that the application has no merit and it is accordingly dismissed. I make no order as to costs.
M.L. GARBA J.C.A :
J I. OKORO, J.C.A :
CHIOMA EGONDU NWOSU-IHEME, J.C.A.:
I have had the privilege of reading in advance, the ruling of my learned brother, KUMAI BAYANG AKAAHS, J.C.A I am in complete agreement with his reasoning and conclusions I will, however add a few words of mine for emphasis.
The Appellants/Applicants herein had lost a Governorship election for Kaduna State to the 1st Respondent in the election conducted by the 2nd and 3rd Respondents on the 14th of April, 2007, and being aggrieved by the loss filed a petition at the Governorship and Legislative Houses Election Tribunal at the lower tribunal, the 1st Respondent challenged the competence of the petition on the ground that it was statute barred having been filed out of time, but the tribunal overruled the objection and heard the matter on the merits at the end of which it dismissed the petition.
Dissatisfied with the decision of the Election Tribunal, the petitioner appealed to the Court of Appeal against that decision. The 1st Respondent in the appeal who was also the 1st Respondent at the lower tribunal by motion on notice sought reliefs which inter alia, included a relief challenging the jurisdiction of the court of appeal to entertain the appeal on the ground that the proceedings before the lower tribunal was a nullity, the petition having been filed out of time and therefore statute barred.
After hearing arguments on the motion, this court (Coram Bulkachuwa, Aboki, Belgore, Muktar and Ndukwe-Anyanwu, JJCA) struck out the prayer which sought to challenge the jurisdiction of the court to hear the appeal on the ground that the petition was statute barred and the judgment of the lower tribunal that flowed from it a nullity In hearing the appeal, however, the court suo motu invited learned counsel on both sides to address it on the competence of the petition at the Election Tribunal in view of the fact that it was filed on 15th May, 2007, and having heard the address of counsel on that issue resolved same in favour of the appeal.
The present application by Chief Ahamba, learned senior counsel for the Appellant/Applicant, seeks to set aside that judgment of the court dismissing the appeal which judgment is Exhibit SA7 in this application Counsel for the 1st Respondent, Mr Toro, SAN, by way of preliminary objection dated 8/6/09 and filed on 9/6/09 and in his written brief contended that by virtue of section 246(3) of the 1999 Constitution the court lacked the jurisdiction to set aside the judgment in Exhibit SA7. It was additionally contended by the learned Senior Advocate that the doctrine of “Res Judicata” and “Functus officio” set aside the judgment in Exhibit SA7, it was additionally contended by the learned Senior Advocate that the doctrine of “Res Judicata” and “Functus officio” operate against the application to set aside the judgment as the issue from which the judgment flowed had finally been determined and so could not be reviewed or set aside by the same, court otherwise it would amount to the court sitting on appeal against its own judgment.
On his part, learned counsel for the Appellant/Applicant, Chief Mike Ahamba, SAN, in his brief and oral adumbration contended that in the circumstances of the matter at hand this court could set aside the judgment in Exhibit SA7 since its foundation, according to him was a nullity. Being a nullity, the Appellant/Applicant who had been affected by it can, ex debito justitiae, apply to have it set aside. He argued that while it is true that once a court had delivered its judgment it becomes functus officio, but where such judgment is seen to be a nullity, it could be set aside by the court that delivered it even where there is a right of appeal.
I will combine the arguments raised in the preliminary objection of learned senior counsel for the Respondents and the replies against them by the learned senior counsel for the Appellant/Applicant with those canvassed on the merits of the application to set aside since they all are interlocked.
The main thrust of Chief Ahamba’s argument for seeking to set aside the judgment in Exhibit SA7 is that this court acted ultra vires its powers under the constitution and the Electoral Act since there was no appeal by the 1st Respondent against the decision of the election tribunal overruling his objection to the tribunal to entertain the petition on ground of statute bar and that by raising the issue of jurisdiction suo motu at the hearing of the appeal against the decision of the lower tribunal on the merit of the petition, the Court of Appeal breached the rules of natural justice. The learned Senior Advocate particularly referred to the portion of the judgment which stated that the decision of the lower tribunal on statute bar (which was one on jurisdiction) was not appealed against and posited that it was contradictory for the learned justices of the Court of Appeal to have raised the issue of jurisdiction suo motu.
Learned counsel for the 1st Respondent had in reply contended that when the issue of jurisdiction was raised suo motu by the court, counsels on both sides were invited to address the court on it. It must be noted at this stage that in spite of the decision of the lower tribunal overruling the objection to the petition on ground of statute bar which was a jurisdictional question, the 1st Respondent had, on the matter on appeal, sought to attack the jurisdiction of the Court of Appeal when he applied inter alia, to substitute a new ground of preliminary objection in the following terms.
The effect would have been that if the court had allowed the above prayer, it would have first heard arguments on its competence to entertain the appeal on ground of its jurisdiction in the first instance. This would have amounted to questioning the Court of Appeal’s competence to determine whether or not the lower tribunal had the jurisdiction to entertain the appeal. Such submissions have been preposterous in the face of the law. This court appreciated the preposterous nature of that prayer when it observed as follows:
“There is no doubt that prayer one of the motion paper is capable of robbing this court the competence to entertain the appeal. The effect of this is that the appeal will have to be struck out and the issue of jurisdiction of the lower tribunal cannot be considered by this court in this appeal Mr Toro, SAN, had tried to impress it on us that he did not intend to say that we do not have jurisdiction to consider whether the lower tribunal had jurisdiction to entertain the petition. That submission does not tally with the prayer on the motion paper. It is our considered view that prayer one is incompetent and ungrantable. It is accordingly hereby struck out”
Thereafter the court went on to say that it had “observed from the records that there is need for this court to be addressed by learned counsel-for all the parties on the issue of jurisdiction of the lower tribunal to entertain the petition, the same having been filed on the 15th day of May, 2007”.
Jurisdiction which implies the power of court to adjudicate is a fundamental and essential indices in adjudicatory process. Once it is lacking, a trial proceeding no matter how well conducted is a nullity. See MADUKOLU V. NKEMDILIM (1962), All NLR 587 at 598.
Therefore because of its fundamental nature in trial process it can be taken up suo motu by the court itself at any stage of the proceedings even though the parties may not have taken it up See TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517 at 557. What is important is that where the issue (of jurisdiction) is taken up suo motu by the court, the parties must be given opportunity to be heard on the point.See MAIYAKI V. MAIDOYA (1988) 3 NWLR (pt. 226) at 227 and 232.
In the instant case, although this court raised the issue of jurisdiction suo motu, the judgment of this court now sought to be set aside and the records of this court on the matter clearly and abundantly show that the parties including the Appellant/Applicant were given ample opportunity to be heard on the issue and they were duly heard on the issue. I therefore do not see the basis of the complaint in the present application to set aside the said judgment . It is therefore, for the foregoing reasons and the fuller and more detailed reasons given by my learned brother KUMAI BAYANG AKAAHS, J.C.A, that I too will and do hereby refuse the application to set aside and also dismiss same. I abide by the order for costs made by my learned brother.