3PLR – JAMES AEMBERGA GBANDE & ANOR V. CHRISTOPHER AFAOR & ORS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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JAMES AEMBERGA GBANDE & ANOR

V.

CHRISTOPHER AFAOR & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 20TH DAY OF APRIL, 2012

CA/MK/EPT/14/2012

3PLR/2012/57 (CA)

 

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

MONICA BOLNA’AN DONGBAN-MENSEM, JSC

CHIDI NWAOMA UWA, JSC

TOM SHAIBU YAKUBU, JSC 

BETWEEN

1. JAMES AEMBERGA GBANDE
2. ACTION CONGRESS OF NIGERIA Appellants

AND

1. CHRISTOPHER AFAOR
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondents

 

REPRESENTATION

1. T. Uparegh, Esq, – For Appellant

AND

1. T. Igba Esq (with him: F.T. Kusugh, Esq) – for 1st Respondent.
2. A. Udaga Esq, – for 2nd Respondent
3. D. Ter (Mrs) with her: E.P. Echor Esq and S.N. Kani (Miss) – for 3rd Respondent.

– For Respondent

 

ORIGINATING STATE

Benue State: National and State Houses of Assembly Election Petition Tribunal

 

MAIN ISSUES

ELECTION PETITION – JURISDICTION: Whether an election petition has jurisdiction to hear and conclude on a petition ordered to be heard de novo by the Court of Appeal outside the 180 days provided by the Electoral Act – Decision of the Supreme Court declaring otherwise while case ongoing – Duty of Election tribunal to follow same – Basis of – Section 287(1) of the 1999 Constitution as amended in review

CONSTITUTIONAL LAW – LEGISLATURE:- Hierarchy of courts of and stare decisis – Basis of – Supremacy of decisions of the Supreme Court – Section 287(1) of the 1999 Constitution in review

PRACTICE AND PROCEDURE – APPEAL – ISSUES FOR DETERMINATION: Rule that an issue formulated for determination must arise from and be related to a ground of appeal in the appeal – Failure thereto – Whether issue so formulated is incompetent and liable to be struck out

PRACTICE AND PROCEDURE – COURT – JUDGMENT AND ORDER – CASE LAW – STARE DECISIS:- The doctrine of stare decisis – Meaning and essence of – Refusal of lower court to follow doctrine – Attitude of Supreme Court thereto

PRACTICE AND PROCEDURE – COURT –  EVIDENCE:- Section 59 of the Evidence Act, 2011 – Rule that the existence of any judgment, order or degree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact, evidence of which is admissible – Legal effect where lower court refuses/neglects to follow precedence

MAIN JUDGMENT

TOM SHAIBU YAKUBU, J.C.A. (DELIVERING THE LEADING JUDGMENT):

The appellants had participated in the general election conducted by the 3rd respondent to the office of the member representing Kwande East Constituency in the Benue State House of Assembly on 26th April, 2011. The 1st respondent contested on the platform of the 2nd respondent whilst the 1st appellant contested in the same election on the platform of the 2nd appellant. The 1st respondent was said to have won the election, so he was returned and declared as duly elected by the 3rd respondent. The appellants did not accept the result of the said election, so they filed a petition No: NSHA/BN/HA/34/2011 at the National and State Houses of Assembly Election Petition Tribunal holden at Makurdi Benue State, on 17th May, 2011.

 

The parties filed and exchanged their respective pleadings on the petition. The respondents filed preliminary Objections to the competency of the petition and the same was argued. The Lower Tribunal which first was seised of the petition, in her ruling on the preliminary objections, dismissed the petition on 29th September, 2011. Not unnaturally, the petitioners/appealed to this court and on the 18th November, 2011 the court, allowed the appeal and ordered that the petition be heard on its merits, but by another panel.

 

The newly constituted panel of the lower Tribunal started proceedings on the petition and after the completion of the prehearing session, the petition was fixed for hearing. Then, the 1st and 2nd respondents, filed separate applications, to the effect that the lower tribunal had no jurisdiction to entertain the petition again, because according to them, the petition had become spent having not been determined within 180 days as stipulated under Section 285 (6) of the 1999 Constitution of the federal Republic of Nigeria. However, the said application was not moved by the respondents/applicants.

 

At the resumed hearing of the petition on 22nd February, 2012, the lower tribunal suo motu, raised the issue of her-jurisdiction to entertain and determine the petition in view of the decisions of the Supreme Court, in the consolidated appeals in SC.1/2012 – All Nigeria Peoples’ Party Vs Alhaji Mohammed Goni & 4 ors and SC.2/2012 – Alhaji Kassim Shettima & Anor Vs Alhaji Mohammed Goni & Ors, delivered on 17th February, 2012. Learned counsel for the parties were invited by lower tribunal to address her on the implications of the decisions of the Supreme Court in appeals No SC.1/2012 and SC.2/2012 of 17th February, 2012. In a considered ruling, the Lower tribunal struck out the petition on the premises that the petition had lapsed by effluxion of time. This appeal is against ruling of the Lower Tribunal dated 22nd February, 2012. The appeal was erected on two grounds, to the effect that the lower tribunal erred in law for terminating the life of the petition which derived its fresh life from the order of retrial made by this court on 18th November, 2011 and secondly, that the lower tribunal erred in law for striking out the petition without hearing it on its merits and this amounted to a breach of fair hearing.

 

The appellants, in their brief of argument dated 30th March, 2012 but filed on 3rd April, 2012, identified and formulated a sole issue for determination thus:

“Whether the decision in Appeal No.SC1/2012, SC2/2012 ANPP V. MOHAMMED GONI, SHETIMA VS MOHAMMED GONI delivered on the 17th February, 2012 can be sustained and relied upon having due recourse to the mandatory proviso to Section 234 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and whether the trial tribunal had not breached the petitioners’ fundamental right to fair hearing as guaranteed under Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)”

 

The 1st respondent, on his part had first filed a notice of preliminary objection to the hearing of this appeal and at the hearing of the appeal on 18th April, 2012, learned counsel to the 1st respondent, informed us that the same preliminary objection predicated on three grounds, has been argued at paragraphs 3.0 – 3.3.3. of his brief of argument, dated 13th April, 2012 and deemed properly filed and served vide the order of this court made on 17th April, 2012. And at paragraph 4.0 of the same brief of argument, the 1st respondent distilled two issues for determination, to wit:

“1.     Whether or not the tribunal rightly struck out the petition on 22/02/2012, going by Section 285(6) of the 1999 Constitution and the unreported decision of the Supreme Court in consolidated Appeal No.SC. 1/2012 and SC.2/2012 dated 17/02/2012 (distilled from ground one of the appeal).

2. Whether or not the striking out of the petition as incompetent amounted to a breach of the appellants’ right to fair hearing (distilled from ground two of appeal)”

 

The 2nd respondent, in her brief of argument, dated 4th April, 2012 and filed on 5th April, 2012 at paragraph 3.00 thereof, indicated a notice of Preliminary Objection, to the competence of the issue formulated in this appeal for determination as the 1st leg of the said issue does not arise from the decision of the tribunal appealed against and that the said issue is not a matter that this court has the jurisdiction to entertain. There are three grounds in support of the 2nd respondent’s preliminary objection. At paragraphs 5.00-5.01, the 2nd respondent, in her brief of argument identified and formulated a sole issue for determination of the appeal, inter-alia,

“Whether the National/state House of Assembly Election Petition Tribunal still has jurisdiction to hear and determine petition No: NSHA/EPT/BN/HA/34/2011 which was filed on 17th May, 2011 in view of the mandatory provision of Section 285 (6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and whether the Appellants were denied fair hearing when the tribunal denied jurisdiction to continue to hear the Petition No: NSHA/EPT/BN/HA/34/2011. (Grounds 1 and 2).”

 

The third (3rd) respondent’s brief of argument, dated 7th April, 2012 was filed on 16th April, 2012. In it a sole issue for determination was identified to wit:

“Whether the Honourable Tribunal was right when it held that is has no jurisdiction to entertain Petition No: NSHA/EPTIBN/HA/34/2011 outside the 180 days after filing of the petition in the light of the Supreme Court’s judgment in the application of Section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria, as amended.”

 

It is noteworthy that the appellants, on receipt of the respective briefs of argument of the 1st, 2nd, and 3rd respondents, filed a joint reply on points of law to the said briefs of argument and 1st respondent’s notice of Preliminary Objection. At the hearing of the appeal, learned counsel to the appellants, informed us that he did not see the notice of preliminary objection indicated at paragraph 3.00 of the 2nd respondent’s brief of argument, so he could not respond to it.

 

In any event, he with the leave of the court, adopted his response to the 1st respondent’s preliminary objection as contained in the appellant’s reply on points of law to the 1st, 2nd and 3rd respondents’ briefs of argument dated 17th April, 2011 which was deemed properly filed and served on 18th April, 2012, as his response to the 2nd respondent’s notice of preliminary objection.

 

It is expedient to first consider and determine the 1st and 2nd respondents’ notices of preliminary objections against the hearing of this appeal, before considering the appellants’ appeal.

 

The grounds upon which the 1st respondent’s preliminary objection was anchored are:-

1. “By Section 235 of the 1999 Constitution, the decisions of the Supreme Court are final, not subject to any appeal to any other body.
2. By Section 233 of the 1999 Constitution, the jurisdiction of the court of Appeal is subordinate to the Supreme Court.
3. The sole issue for determination in this appeal is beyond the jurisdiction of this Honourable Court, as it relates to the validity or otherwise of a Supreme Court Judgment.
4. Only the Supreme Court is competent to determine the issue raised in this appeal i.e. whether or not the Supreme Court was competently constituted when it delivered its judgment in consolidated Appeals No.SC 1/2012 & SC.2/2012-ANPP V Mohammed Goni (unreported) decision delivered on 17/02/2012.
5. The appellants lack the locus standi to challenge the validity of the judgment of the Supreme Court in consolidated Appeals No.SC.1 – & SC.2/2012 aforesaid.
6. By Section 285 (6) of the 1999 Constitution, the appeal is an academic exercise in view of the reliefs sought in this appeal, particularly relief (ii) on the notice of appeal at page 1061 of the record.
7. The issue formulated in the appellants’ brief does not arise from the grounds(s) of appeal contained in the notice of appeal”

 

Arguing the preliminary objection for the 1st respondent, T.D. Pepe, Esq of learned counsel, submitted that by virtue of Section 233(1) of the 1999 Constitution of the Federal Republic of Nigeria, it is the Supreme Court that hears appeal from the decision of the Court of Appeal, therefore the latter being a subordinate court to the former, cannot over-rule any decision of the Apex Court, Furthermore, learned counsel referring to Section 287 (1) of the 1999 Constitution submitted that all courts that are subordinate to the Supreme Court must enforce the decisions of the Supreme Court. Therefore, according to learned counsel, the judgment of the Supreme Court in the consolidated appeal Nos: SC.1/2012 and SC.2 /2012 in re- ANPP Vs Mohammed Goni and Kassim Shettima Vs Alhaji Goni delivered on 17th February, 2012 on the interpretation and application of Section 285(6) of the 1999 Constitution, cannot be over-ruled or wished away by this court on the basis of the appellants’ contention that the said judgments are incompetent because it was by a panel of five and not seven justices of the Supreme Court, who gave the said judgment. He referred to the decisions of this court in General Electric Co Vs Akande (1999) 1 NWLR (pt.58)532 at page 545, Caryemaizu Vs Ojiako (2000) 6 NWLR (pt. 559) 25 at page 41 to the effect that on the doctrine of precedent or stare decisis, the judgment of the Supreme Court, being the Apex court in Nigeria, binds all other courts, including this court, which are inferior to it and so none of those subordinate courts can pronounce on a judgment of the apex court as not binding on it.

 

The appellants, in their response to the 1st respondent’s Preliminary Objection, submitted that “what the appellants are challenging before this court is not the decision of the Supreme Court in the Consolidated Appeal No, SC.1/2012 and SC.2/2012 -ANPP Vs Mohammed Goni (unreported) but the decision of the trial tribunal which struck out the appellants’ petition based on the decision in that case”

 

Now, the issue formulated for determination by the appellants in their brief of argument for determination in this appeal, had been reproduced earlier in this judgment. The said issue indisputably, queries the validity, sustainability and reliability of the decision of the Supreme Court in the consolidated Appeals No SC.1/2012 and SC.2/2012 – ANPP Vs Mohammed Goni and Kassim Shettima Vs Alhaji Mohammed Goni (unreported), because of noncompliance with the mandatory proviso to Section 234 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

 

So, according to the appellants, the lower tribunal ought not to have relied on the said judgment of the Supreme Court, when the former struck out the appellants’ petition on 22nd February, 2012. If the contention of the appellants as indicated in the first leg of the sole issue for determination in their brief of argument, is not a query or challenge to the validity, sustainability and reliability of the judgment of the Supreme Court in question, then half of 12 is not six and so also six is not half of a dozen!

 

I am of the very certain opinion that the first leg of the issue formulated for determination by the appellants, in their brief of argument, clearly questions the validity, sustainability and reliability of the Supreme Court judgment in the consolidated Appeal No: SC.1/2012 and SC.2/2012 All Nigerian Peoples Party Vs Mohammed Goni and Kassim Shettima Vs Alhaji Goni (unreported) of 17th February, 2012.

 

Undoubtedly, the appellants’ petition was struck out by the lower tribunal on 22nd February, 2012, after it had taken arguments from learned counsel to the parties in the said petition, on the implications or effect of the Supreme Court’s interpretation and application of Section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) in the judgment in respect of SC.1/2012 and SC.2/2012 ANPP Vs Mohammed Goni and Kassim Shettima Vs Goni (unreported) on 17th February, 2012. That is with the decision of the Supreme Court in the Judgment afore said, the Lower tribunal formed the considered opinion that by virtue of Section 285 (6) of the 1999 Constitution as applied by the apex court, the life span of the appellants’ petition which was for 180 days, had come to an end by effluxion of time. In other words, there was no longer any petition involving the appellants as petitioners before the Lower tribunal, hence it was struck out because the lower tribunal had no jurisdiction to entertain and determine a dead Petition.

 

The appellants’ first leg of the sole issue for determination in their briefs of argument, to my mind, is an invitation to this court, to pronounce albeit, unwittingly, on the correctness or validity of the Supreme Court judgment in question and whether it was proper for the lower tribunal to have relied on that judgment by striking out the appellants’ petition on 22nd February, 2012. I, cautiously refuse to be lured into the temptation of pronouncing on the said judgment of the apex court. I cannot condemn but commend the lower tribunal for keeping faith with the time honoured common law doctrine of stare decisis or precedent, by being bound as of course, it was bound to, by the judgment of the Supreme Court in the Consolidated Appeal No: S.C.1/2012 and S.C.2/2012- (supra) of 17th February, 2012.

 

The doctrine of precedent and respect for the hierarchical order of our courts and the superiority of the Supreme Court over them all was well stated by Okay Achike JSC (now of blessed memory) in Abacha Vs Fawehinmi (2002) 6 NWLR (pt.660) 228 at p.317 thus:

“It is an inexcusable judicial disrespect or arrogance to dent the subsistence of the hierarchical order of superiority of Nigerian laws as adumbrated by the Supreme Court in Labiyi’s case. This posture of the lower court is more startling in the absence of any convincing reason given for that far-reaching proposition of the law when the doctrine of precedent, stare decisis of great antiquity embedded in the English common law, and indeed, an integral part of our law which is anchored in good reason, logic and common sense has not been demonstrated to be manifestly out of step with modern development in law should be blown away by a side-wind. There is therefore no basis whatsoever for the lower court not to have followed the decision in Labiyi’s case.”

 

The same doctrine was restated by the apex court in Dalhatu Vs Turaki (2003) 15 NWLR (pt 843) 310 at p.350, inter alia:-

“The doctrine of judicial precedent otherwise known as stare decisis is not alien to our jurisprudence, It is a well settled principle of judicial policy which must be strictly adhered to by all lower courts. While such lower courts may depart from their own decisions reached per incuriam, they cannot refuse to be bound by decisions of higher courts even if those decisions of a higher court were reached per incuriam. The implication is that a lower court is bound by the decision of a higher court even where that decision was given erroneously: Emerah & Sons Ltd Vs Attorney General Plateau State & Ors (1990) 4 NWLR (Pt.147) 788; Global Trans Oceanic S.A. v. Free Ent. (Nig) Ltd. (2011) 5 NWLR (Pt.706) 426 at 441”

 

And more recently in Osakue Vs Federal College of Education Asaba (2010) 10 NWLR (pt.1201) 1 at pp.35 – 36,  the Supreme Court re-echoed the doctrine again, to wit:

“In the case of Dalhatu Vs Turaki & Ors.(supra), it was/is stated that a refusal by a judge of the court below, to be bound by the decision of this court, is gross insubordination and that such a judicial officer is a misfit in the judiciary.

Lastly and in summary, the legal position is that the court of appeal and indeed all lower courts are bound by the decision of this court. However where the principles enumerated in any decision of this court, it not relevant or applicable to the issue or issues arising for determination in the case before the court of appeal or the lower court, that is a different matter or a different ball game”

 

Therefore, it would have smacked of judicial irresponsibility, rascality, impertinence and in insubordination, if the lower tribunal, having become aware of the judgment of the highest court in Nigeria in SC.1/2012 and SC.2/2012 of 17th February 2012 and still pretended that it had nothing to do with the petition before it and went ahead with the proceedings on it. Further see: Atolagbe & Anor Vs Awuni & 2 Ors (1997) 8 NWLR (pt.522) 536 at p. 567. And in any event, Section 59 of the evidence Act, 2011, unambiguously provides that:

“The existence of any judgment, order or degree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact, evidence of which  is admissible which the question is whether such court ought to take cognizance of such or hold such trial.”

 

I am satisfied that with the existence of the judgment of the Supreme Court in SC.1/2012 and SC.2/2012  of 17th November, 2012, this court has no jurisdiction to entertain and determine this appeal. I hold that the preliminary objection of the 1st respondent succeeds on this ground.

The second main contention of the 1st respondent in his grounds for the preliminary objection against the hearing of the appeal is that since the petition of the appellants which was filed on 17th May, 2011 had as at 21st February, 2012 become 280 days old -an overtime of 100 days, instead of the 180 days, it was supposed to live, this court cannot accede to the prayer for an order of retrial which would be an exercise in futility by virtue of the judgment of the Supreme Court in SC.1/2012 and SC.2/2012 in of 17th February, 2012 (supra).

 

Indeed, relief iii prayed for by the appellants, if this appeal is heard and determined in their favour is to wit:

iii.      An order of the court restoring the petition and, a retrial on the merit by a new Panel”

 

I came to the conclusion while resolving ground 1 of the preliminary objection that in view of the judgment of the Supreme Court in the consolidated Appeal No SC.1/2012 and SC.2/2012 of 17th February, 2012, (supra), this Court lacks the jurisdiction to entertain this appeal and determine it. The judgment of the Supreme Court aforesaid determined that the lifespan of an election petition pursuant to section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria, is 180 days and that it cannot be extended by any Court of law, in any guise.

 

The ratio decidendi in the consolidated Appeal No.1/2012 and SC.2/2012 in re ANPP v. Mohammed Goni and Kassim Shettima & Anor v. Alhaji Mohammed Goni, delivered by the Supreme Court of 17th February, 2012 is that by virtue of Section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the lifespan of an election petition at an election petition tribunal such as the lower tribunal herein, was no more than 180 days.

 

Perhaps it is instructive to hear my Lord, Onnoghen, JSC in his leading judgment on the said appeal at pages 23-24 thereof, to wit:

“It should be constantly kept in mind that prior to the provisions of Section 285 (6) of the 1999 constitution, as amended, there was no time limit for the hearing and determination of an election petition by the election tribunals or the appeals arising therefrom. That situation resulted in undue delay in the hearing and determination of election matters. The amendment to the original Section 285 of the 1999 Constitution by allotting time within which to hear and determine election petition and appeals arising therefrom is designed to ensure expeditious hearing and conclusion of election matters in this country. If the decision of the lower court, in the circumstance of this case and the law, is allowed to stand as urged by the respondent it would re-introduce the earlier mischief which the amendment sought to correct. It will mean that the instant election petition can go on for another one hundred and eighty (150) days or more after the expiration of the original one hundred and eighty (180) days assigned by the constitution.

 

It is my considered view that the provisions of Section 285 (6) supra is like a statute of limitation which takes away the right of action from a party leaving him with an unenforceable cause of action, The law may be harsh but it is the law and must be obeyed to the letter more so when it is a constitutional provision”

 

And in his own contribution, my lord, Adekeye, JSC admonished that:

“The Court of Appeal cannot abdicate it role as the custodian and interpreter of the constitution by amending Section 285 (6) of the Constitution to achieve a particular result not intended by the legislature by extending the time for hearing a petition in the interest of justice or as an exceptional case. In adopting the purposive rule of interpretation, it is apparent that the history behind amending the constitution to include Section 285 subsections (5),(6),(7) and (8) is to encourage speedy dispensation of election matters so that those voted to power can assume public offices timeously and render service to the nation rather than being inhibited by protracted hearing of election petitions.

The Court of Appeal must not be encouraged to import into this section of the Constitution words that were not used by the legislature so as to defeat the purpose of the amendment to Section 285 of the Constitution. Once a matter has lapsed by operation of a limitation law the right of action becomes extinct, while the court has nothing left to adjudicate upon. I dare say that the order of retrial made by the court of appeal was an order made in vain as the petition was no longer alive.

The judgment delivered on the 23rd of December 2011 was a nullity”.

 

Therefore relief iii sought for by the appellant would be of no practical utilitarian value to them since their petition had died on 12th November, 2011 before it was formally struck out by the lower tribunal on 22nd February 2012. The preliminary objection succeeds on this ground too.

 

Ground three of the 1st respondent’s preliminary objection is that the issue formulated for determination by the appellant in their briefs of argument did not arise from any of the two grounds of appeal herein.

 

I have perused the two grounds of appeal by the appellant in this appeal, Ground 1 thereof is a complaint against the striking out of the appellants’ petition under Section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) when this court on 18th November, 2011 had restored the petition for trial on its merits, when the petition had already lapsed on 12th November, 2011.  However and irrefutably, the 1st leg of the lone issue formulated for determination by the appellants related very squarely to the validity, sustainability and reliability of the judgment of the Supreme Court in the consolidated appeal No SC.1/2012 and SC.2/2012 (supra) delivered on 17th February, 2012 in view of the mandatory proviso to section 234(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is clear to me that the 1st leg of the sole issue for determination did not flow from nor is it related to the complaint in ground 1 of the appeal. An issue formulated for determination must arise from and be related to a ground of appeal in the appeal. It is trite that, where this is not so, the issue so formulated is incompetent and liable to be struck out. See Labiyi v. Anrtiola (1992)  8 NWLR (Pt.258) 139 at P.157.

In the circumstances of this case, since the 1st leg of the sole issue for determination formulated by the appellants did not arise from either ground 1 or 2 of the notice of appeal, the said issue is incompetent and I strike it out accordingly. Unarguably, the 2nd leg of the sole issue for determination as formulated by the appellants, arise from and is related to ground 2 of the appeal. Thus, it means that whereas ground 2 has a valid issue formulated from it, ground 1 has no valid issue formulated from it.

 

In effect ground 1 is incompetent since it cannot be argued without a valid issue formulated from it and to support it. So, the said ground 1 is ordered as struck out.

 

The 1st respondent’s preliminary objection succeeds in respect of the 1st leg of issue No 1 vis-a-vis ground 1 of the appeal.

 

The 2nd respondent’s preliminary objection is to all intents and purposes, the same as that of the 1st respondent, Learned Counsel to the 2nd respondent’s submissions on it as contained from paragraphs 4.00 to 4.11  of his brief of argument are to the effect that by virtue of Section 287 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) this Court and all other Courts in Nigeria being subordinate to the Supreme Court are enjoined to obey and enforce the decisions of the Supreme Court, therefore this court does not have the discretion of whether or not to obey the  decision of the Supreme Court nor can it pronounce on its competence. He urged us to hold that we have no jurisdiction to entertain this appeal.

 

I should not flog a dead horse. I agree with the submissions of learned counsel to the 2nd respondent’ I adopt my reasons and conclusions on the 1st leg of the first ground of the 1st respondent’s preliminary objection to the effect that this Court has no jurisdiction to entertain and determine this appeal, to the 2nd respondent’s preliminary objection, accordingly. I am of the firm opinion that the 2nd respondent’s preliminary objection also succeeds.

 

In conclusion, the preliminary objections by the 1st and 2nd respondents having succeeded to the effect that this court has no jurisdiction to entertain and determine this appeal for being incompetent, the same is ordered as struck out.
Each side shall bear its own costs.

 

M.B. DONGBAN – MENSEM, J.C.A.:

My learned brother Tom S. Yakubu JCA, who prepared the lead judgment, has addressed this appeal in appropriate terms. I agree with the reasons and conclusion arrived at.

 

It appears during a deep slumber, the learned Counsel to the Appellants received an inspiration about the Constitution of the panel of the Hon Justices of the Supreme Court who heard and determined the appeals Nos: SC.1/2012 and SC.2/2012. Upon waking up, the learned Counsel discovered that this appeal is in fact before the Court of Appeal not the Supreme Court. Counsel nevertheless elected to test the inspiration. The challenge for the learned Counsel is that apart from being before the wrong court, appeals Nos: SC.1/2012 & SC.2/2012 have since been determined and are therefore not available for any form of judicial review and most certainly, not before this court.

 

By the provisions of section 287(1) of the 1999 Constitution as amended, this Court is rather enjoined in mandatory terms to follow and indeed enforce all decision of the Supreme Court. To accede to an invitation to this court to review a decision of the Supreme Court would be impertinence dignified with the judicial mantle. We shall never make such an order. The supreme court has said it in clear terms per Adekeye JSC: “… once any petition comes before the tribunal outside the 180 days, the Court is divested of jurisdiction to hear it. The Court of Appeal in its appellate jurisdiction has no power to order the retrial of a petition which had lapsed by effluxion of time. … (Refer ANPP v. Goni, and Shettima v. Goni, unreported judgment of 17th February, 2012 at pg 3). This appeal is hereby struck out.

CHIDI NWAOMA UWA, J.C.A.:

I had the privilege of reading in draft the judgment just delivered by my learned brother, Tom Shaibu Yakubu, JCA. I agree with his reasoning and conclusion arrived at in sustaining the preliminary objections by the 1st and 2nd Respondents to the effect that this court lacks the jurisdiction to determine the appeal which is incompetent, same is hereby struck out.

I abide by the order made as to costs.