3PLR – AIYELABEGAN KAYODE A. & ANOR V. SALMAN ABDULFATAI & ORS.

POLICY, PRACTICE AND PUBLISHING,  LAW REPORTS – 3PLR

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AIYELABEGAN KAYODE A. & ANOR

V.

SALMAN ABDULFATAI & ORS.

IN THE COURT OF APPEAL OF NIGERIA

ON SATURDAY, THE 21ST DAY OF APRIL, 2012

CA/IL/EPT/SH/1/2012

3PLR/2012/5 (CA)

 

OTHER CITATIONS

(2012) LPELR-14324(CA)

BEFORE THEIR LORDSHIPS

TIJJANI ABDULLAHI, JCA

IGNATUS IGWE AGUBE, JCA

ITA GEORGE MBABA, JCA

 

BETWEEN

1. AIYELABEGAN KAYODE A.
2. ACTION CONGRESS OF NIGERIA (ACN) Appellants

 

AND

1. SALMAN ABDULFATAI
2. PEOPLE DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondents

 

REPRESENTATION

Babatunde Irukera Esq with him are B.A Ramoni Esq and S. O. Giwa Esq.  – For Appellant

AND

1. O. Durojaiye Esq. with him Abiodun Dada Esq. – for the 1st and 2nd Respondents

Tunde Salako Esq. – for the 3rd Respondent – For Respondent

 

ORIGINATING STATE

Kwara State: National and State House of Assembly Election, Petition Tribunal (S.O. Itodo (Chairman) – Presiding)

 

CONNECTED AREAS OF PRACTICE

1. Election Law

 

MAIN ISSUES

PRACTICE AND PROCEDURE– COURT– whether court has the authority to raise an issue suo motu and decide the case one way or the other without inviting the parties to be heard

PRACTICE AND PROCEDURE– when case is said to amount to an academic venture

PRACTICE AND PROEDURE– JUDGMENT- whether a court order must be obeyed even if such order is perverse- when court of appeal can set aside its own judgment

 

—————————–

 

1. PRACTICE AND PROCEDURE – ACADEMIC ISSUES: What an academic issue entails

”A case is said to amount to an academic venture, where: “There cannot be said to be live issue in a litigation, if what is presented to the court for a decision, when decided cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started, so that in case of an appeal, the appeal may become academic at the time it is due for hearing.” See the case of A.G Federation vs ANPP (2004) LRCN 2671 @ 2994. See also Odedo vs INEC (2008) 17 NWLR (pt.1117) 554, where it was held: “A suit is academic where it merely makes empty sound and of no practical utilitarian value to the plaintiff, even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity, An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case at hand… (it) could be a hypothetical or moot question (and) … does not relate to the live issues in the litigation, because it is spent as it will not enure any right or benefit on the successful party.” See also TANIMOLA Vs MAPPING GODATTA LTD (1995) 6 NWLR (PT.403) 617; NWODOSHI Vs ACB (1995) 6 NWLR (Pt.404) 658; OGBONNA Vs PRESIDENT FRN (1997) 5 NWLR (Pt.504) 281; NDULUE Vs IBEZIM (2002) 12 NWLR (Pt.780) 139.” Per MBABA, J.C.A. (Pp. 29-30, paras. A-A)

 

2. PRACTICE AND PROCEDURE– JUDGMENT AND ORDER – COURT ORDER: Whether the rule that court order must be obeyed can be broken

”It is now firmly settled that a court order must be obeyed even if such order is perverse, until such a time that the order is set aside by a competent court’. See also Aladeghami v. Fasanmade (1998) 3 NWLR (Pt.81) 131.” Per MBABA, J.C.A. (P. 35, paras. F-G)

 

3. PRACTICE AND PROCEDURE– COURT – RAISING ISSUE SUO MOTU: Whether a court has the right to raise an issue suo motu

”By the authority of Ejezie us Anuwu, (2008) ALL FWLR (Pt.422) 1005, the Supreme Court per Tabai JSC, held: “The settled principle of law is that no court has the authority to raise an issue suo motu and relying thereon, decide the case one way or the other without inviting the parties to be heard. Such a procedure would be fundamental flaw and mistrial in breach of the rule of fair hearing.” See also Shai v. Smith (2009) 18 NWLR (Pt.1173) 330 @ 344, 356-557. In the case of Oje us Babatola (1991) 4 NWLR (Pt.185) 17 it was also held that “In this country, this is a constitutional right and this court has always insisted that on no account should a court raise a point suo motu, and no matter how clear it may appear to be, proceed to resolve it one way or the other without hearing the parties, “See also Dairo vs UBN (supra) @ 137 and Ogundoyin vs Adeyemi (2001) 13 NWLR (pt.730) 403.” Per MBABA, J.C.A. (P. 33, paras. C-G)

 

4. PRACTICE AND PROCEDURE– JUDGMENT AND ORDER – SETTING ASIDE A JUDGMENT: Whether an appellate court can set aside its own decision

”What all this point to is to repeat that it is only the Apex Court that can pronounce against the judgment and orders of this Court, or the Court of Appeal, itself, that can review its decision and order, if it becomes clear that the same was reached without jurisdiction or entered per in curiam, or under a situation of fraud or misrepresentation. See the case of Olufuise vs Falana (1990) NWLR (Pt.136) 1; Sken Consult (Nig) Ltd v. Ukey (1981) 1 SC 6; ACB Plc v. Losada (Nig) Ltd (1995) 7 SCNJ 158. And in the recent case of Mallam Suleiman Bolakale Salami v. Alhaji Abdul-rahaman Sule Ajadi (an unreported decision of this court) in suit No.CA/IL/M.61/2011 delivered on 5/3/2012, this court, per Agube J.C.A. held (on page 21 thereof): “…the law is trite and it is equally indubitable as has been conceded by the learned counsel to Respondent, that every court including the court of Appeal has the inherent jurisdiction to set aside its judgment where there has been fundamental defect in the proceedings such as where the court lacked the jurisdiction to entertain the appeal… Apart from the jurisdiction factor, this court also has inherent power to set aside its judgment on grounds of fraud or misrepresentation… and by reason of mistake or incompetence to make an order in the appeal.” See Momodu v. Momoh (1985) 5 NWLR (Pt.43) 649; Obimoure v. Erinosho (1966) 1 All NLR 250.” Per MBABA, J.C.A. (Pp. 38-39, paras. D-C)

 

MAIN JUDGMENT

 

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):

 

On 22nd February, 2012, the National and State House of Assembly Election, Petition Tribunal, Kwara State, presided over by Hon. Justice S.O. Itodo (Chairman), Hon. Justice Joy Isaiah Unwana (member) and Hon. Justice John Igboji (member), in its ruling, struck out the petition filed by the Appellants, which had earlier been sent back to the lower Tribunal by this court on 6/1/2012 for retrial on the merits de novo. The Tribunal which was constituted as a second panel to hear the petition, in their ruling, held that the petition by the Appellants was no longer maintainable on the ground that the Supreme Court’s decision in the consolidated case of SC.1/2012 and SC.2/2012 – ANPP vs Goni (unreported) delivered on the 17th February, 2012 had robbed the Tribunal of its jurisdiction to re-hear the petition on merit as earlier ordered by the court.

 

This appeal is against that ruling of the said second lower tribunal.

 

Appellants filed their Notice and Grounds of Appeal on 12/3/12 and raised seven grounds of appeal on pages 140 to 147 of the Record of Appeal.
For reliefs, Appellants sought from this court:

 

1. An order allowing the appeal setting aside the ruling of the tribunal.

 

1. A declaration that the retrial order made by the Court of Appeal on 5/1/2012 (sic) is subsisting and the new panel of the tribunal which started its retrial proceedings on 31/1/2012 ought to continue the retrial.

 

iii.      An order remitting the petition back to the tribunal to continue retrial of the petition by another panel.

 

1. A consequential order deemed necessary in the circumstances of this appeal.

 

A brief facts of the case that brought about this appeal is pathetic. The Appellants had contested the April 2011 General Elections conducted on 26/4/2011 into the Kwara State House of Assembly to represent Ilorin North/West constituency. The 1st Appellant was sponsored by the 2nd Appellant, at the election, which the 1st Respondent, (sponsored by the 2nd Respondent), was declared the winner by the 3rd Respondent (INEC) who conducted the election. Appellants had filed the petition on 18/5/2011 against the declaration of the 1st Respondent as winner. The trial of the petition commenced on 9/9/2011 after the pre-hearing formalities and the Appellants called 7 witnesses and tendered several documents. The respondents also called witnesses and tendered documents, and on the 12/11/2011, the Tribunal delivered its judgment wherein it found that the Appellants made out a case of non-compliance with the Electoral Act and consequently nullified election result only in Balogun Alanamu Ward and Oloje Ward on the ground that the election was inclusive. It ordered a fresh elections in the those 2 wards within 90 days. It further stated “that it is only after the collation of the results from the two wards that whoever wins a majority of valid votes cast in the said election from all the seven wards will be announced and be declared winner in the said Ilorin North/West constituency”

 

Dissatisfied with the judgment, Appellants filed a notice of appeal on 29/11/2011 which was heard and determined on 6/1/2012, remitting the petition back to the Tribunal for retrial de novo by another panel. The 2nd panel did not hear the petition to conclusion on the merit as ordered, but struck it out on the grounds that it was no longer maintainable, in view of some latest decision of the Supreme Court on the issue of the life-span of an election petition from the date of filing; that the 180 days allowed by the constitution cannot be extended or expanded by an order of court for retrial.

 

For this 2nd Appeal, Appellants filed their brief of argument on 30/3/2012 and distilled five (5) issues for determination as follows:-

 

1. “Whether the Tribunal was right when it, suo motu, struck out the petition without affording the Appellants any opportunity to be heard on the matter (Ground 1)

 

1. Whether a court/Tribunal can act in speculation of an imaginary steps(s) to be taken without any live issue brought before it by formal application in compliance with the first schedule to the Electoral Act 2010 (as amended) (Ground 2).

 

III.     Whether the Tribunal wrongly relied on its earlier decision in Mallam Tajudeen Asunnara vs Saadu Yusuf Tanke & Ors, petition No.EPT/KW/SH/6/2011 and ANPP vs. Goni (unreported) Appeals No.SC/1/2012 and SC/2/2012 to strike out the Appellants’ Petition on the ground that the 180 days under section 285 (6) of the 1999 Constitution (as amended) had expired and that the petition is no longer maintainable. (Ground 3)

 

1. Whether the Tribunal was right when it struck out the Petition despite the valid and competent order of retrial made by the Court of Appeal in EP/CA/IL/SH/13/20111 and the retrial proceedings having Commenced, (Grounds 4 and 5)

 

1999. whether the Tribunal ought to have considered the interpretation of section 9(7) of the constitution of the Federal Republic of Nigeria (Second Alteration) Act 2010 (now section 285 (6) of the constitution) as to oust the jurisdiction of the Tribunal is an unconstitutional interference with the independence of the judiciary and the foundational doctrine of separation of powers and fundamental human rights enshrined in the basic structure of the constitution of the Federal Republic of Nigeria 1999.
      (Grounds 6 and 7)”

 

The 1st and 2nd Respondents, on their part, filed their brief on 5/4/2012 and distilled 2 issues for determination namely:

 

1. Whether the Tribunal was right in declining jurisdiction in the ruling to entertain the petition in view of same having expired by effluxion of time and consequently struck out the petition’ (Grounds 4, 5, 6 and 7)

 

2. Whether the Tribunal properly apply (sic) its decision in the ruling contained in Election Petition No. EPT/KW/SH/6/2011 delivered on 22/2/2012 placing reliance on the Supreme Court decision in Alhaji Kashi, Shetima & Anor vs. Alhaji Mohammed Goni & Ors (2012) All FWLR (1007) (sic) by holding that the petition is no longer maintainable and accordingly struck out same. (Grounds 1, 2 and 3).

 

The 3rd Respondent also distilled two issues from its brief filed on 10/4/2012, as follows:

 

1. Whether the petition of the Petitioners dated 17th May, 2012 (sic) and filed on 18th May, 2012 (sic) is still maintainable in view of the supreme court judgment delivered on 17th March, (sic) 2012 in the case of ANPP vs Alh. Mohammed Goni & ors SC/1/2012 and the provision of section 285 (6) of the 1999 Constitution.

 

2. Whether issue of jurisdiction challenging the competency of the Tribunal to hear the petition de novo in view of the Supreme Court judgment in ANPP v. Alh. Mohammed Goni & Ors SC/1/2012 cannot be raised at any time.

 

Appellants on being served with the Respondents briefs filed Replies to 1st and 2nd Respondents Brief on 10/4/2012 and to 3rd Respondent’s on 12/4/2012.
The appeal was heard on 17/4/2012, when the learned counsel on behalf of their clients, moved this court accordingly.

 

A summary of Appellants argument on the issues are:

ISSUE 1

 

– By section 36(1) of the 1999 Constitution “a person shall be entitled to fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

 

– The tribunal did not afford the Appellants reasonable opportunity to respond to its suo motu reliance on the authority of ANPP vs Goni.

 

– As per the record of Appeal, the Tribunal had earlier adjourned the case to hear arguments from parties on the effect and applicability of the recent Supreme Court decisions referred above, but without taking any argument from parties the Tribunal suo motu struck out the petition.

 

This procedure, Counsel submitted, is not only strange but also flagrantly violates Appellants right to fair hearing under section 36(1) of the 1999 Constitution. By the authority of the case of Ejezie vs Anuwu, (supra) no court has authority to raise an issue suo motu and rely on it to decide the case one way or the other, without inviting the parties to be heard. See also Shasi vs Smith (2009) 18 NWLR (pt.1173) 330 @ 544, 356-357; Oje vs Babatola (1991) 4 NWLR (Pt.185) 17; Leaders and company Ltd vs Bamaiyi (2010) 18 NWLR (pt.1225) 329 @ 341.

 

Counsel submitted that the Tribunal misdirected itself in law by striking out the petition suo motu without allowing the Appellants. Whose case had been ordered to be determined on the merits by Court of Appeal, to be heard; that a ruling, judgment or proceeding based on a denial of fair hearing is in law a nullity. He relied on the Supreme Court decision in Dairo vs Union Bank of Nigeria Plc & Anor (2007) 16 NWLR (Pt.1059) 99 @ 137 (per Mohammed JSC)

 

“The law is quite settled that where a court raises issues suo motu, the parties should be given equally opportunity to address the Court on such issues. Failure to do so will render the proceedings of that court, however well conducted, a nullity.”

 

Appellants also relied on the case of Ogundoyin vs. Adeyemi (2001) 13 NWLR (Pt.730) 403, where the Supreme Court held:

 

“Neither a court established by the constitution nor the National Assembly should curtail the power of the court to ensure a fair hearing to a party within a reasonable time… once an appellate court comes to the conclusion that the party entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order/judgment thus entered is bound to be set aside (per Onu JSC) pg.422.

 

Counsel said it is clear that the striking out of the petition as it was done infringed section 36(1) of the 1999 constitution and urged us to set it aside.

ISSUE 2:

 

Counsel submitted that adjournment in a case is not granted as a matter of course but must be based on material facts and cogent reasons placed before the court; that where the court discretion is exercised in granting adjournment without factual basis, that discretion is not exercised judiciary and judiciously. He relied on the case of Pam vs Mohammed (2008) 16 NWLR (pt.1112) 1 @ 67:
‘A trial judge has not the unfettered discretion in the adjournment of matters. He must exercise his discretion judicially and judiciously. Appellate court will intervene it he does not exercise his discretion judicially and judiciously. ‘See University of Lagos vs. Aigoro (1980) 1 NWLR (Pt.1) 143; Ebong vs. Reicon Company Ltd (1998) 4 NWLR (Pt.547) 655; Chief Akpan v. Elepo (2001) 5 NWLR (Pt.707) 502.

 

Counsel said that Appellants had challenged the Tribunals decision which granted an adjournment on 20/2/2012 and heard the Respondents purported jurisdictional challenge on a speculative intention of the Respondents to bring an application to the Tribunal. He relied on the case of Agip (Nig) Ltd vs Agip Petroleum International & 7 ors (2010) 5 NWLR (PT. 1187) 348 @ 413, and said that the Tribunal adjourned the case on 20/2/2012 on speculative ground that the Respondents intended to challenge the jurisdiction of the Tribunal when no such application was filed at the time and it was then that the Tribunal said that counsel shall address it on the import of the supreme court decision of 17/2/2012, as it affected the jurisdiction of the tribunal to hear the petition; that even on the 22/2/2012 no such application was filed, yet the tribunal determined it jurisdiction on the Respondents speculative application and consequently struck out the petition; that if the tribunal had not adjourned the case on the speculative application on 20/2/2012 the case of the Appellants would have progressed by moving the application to call expert witness (forensic expert) to adopt his written statement on oath.

ISSUE 3:

 

On this issue, counsel said that the Election Tribunal is conferred with jurisdiction by section 285 (1)(b) of the constitution (as amended) and the jurisdiction must be exercised within 180 days from the date of filing the petition as stated by section 285 (6) of the constitution; that there was no doubt that the tribunal had performed and/or delivered its judgment within the stipulated time, as it is on record that the trial was concluded and judgment delivered on 12th November, 2011, within 180 days; but because a party was dissatisfied with the decision of the Tribunal and consequently exercised its constitutional right of appeal, that the Court of Appeal, after hearing the appeal, remitted the case for retrial de novo on the merit.

 

Counsel submitted that the decision of the Tribunal to strike out the petition relying what it called earlier decisions that is stare decisis or judicial precedent in the circumstances of this case was wrong that stare decisis principle is not applied without limit, that a court is not bound to follow earlier decision of a superior court where the facts and circumstances and issue decided or settled in such earlier case are different from the case at hand. He relied on the case of Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt.109) 250 @ 275; Clement v. Iwuanyanwu (1989) NLWR (Pt.107).

 

Counsel submitted that the facts of its decision in Asunnara’s case are completely dissimilar with the facts of this case; that in Asunnara’s case the petition was terminated at an interlocutory stage on the ground that it was filed out of time which ruling was appealed and the appeal court found that it was filed within time and remitted the case for retrial that the Tribunal in that case did not conduct any trial, let alone, deliver any judgment on the merit, that was the kind of facts in the case of ANPP v. Goni, unlike the present case, whereof, the trial was concluded and final judgment delivered within 180 days and appeal thereof was also done and judgment delivered within 60 days.

 

Counsel also said that the Supreme Court’s case of ANPP v. Goni is also distinguishable, that the trial tribunal in that case neither conducted trial nor delivered judgment as to whether any person was validly elected as the issue of pre-hearing notice was sought up the Supreme Court and the case was remitted back for retrial, in which case the trial Tribunal struck out the petition as having been abandoned. Consequently, the Supreme Court held where the tribunal failed to be deliver its judgment within the time allotted; that time cannot be extended or elongated.

 

Counsel submitted that the said decision of the Supreme Court cannot be applied to the facts and circumstances of this case, that in the Supreme Court’s case Appellants’ counsel (Tayo Oyetibo SAN) had canvassed that petitioners right of appeal is guaranteed under section 246 of the constitution (as amended). That the Supreme Court recognized the right of an appellant whose case is determined on the merit to a remedy of retrial even in the face of section 285 (6) of the Constitution, that the Court of Appeal is entitled to exercise all the judicial powers of the Federation as vested in it by section 6(1) of the Constitution, which powers include the power to order a retrial pursuant to section 15 of the Court of Appeal Act and order 4 Rule 9 of the Court of Appeal Rules 2011.

 

Counsel submitted that in acting under section 6(1) and 246 of the Constitution, the Court of Appeal is not to be inhibited by the provisions of the section 285 (6) of the Constitution because section 246 is not superfluous. He asserted that the retrial order by the Court of Appeal must be complied with by the Tribunal; that even in the decision of the Supreme court in consolidated case of ANPP vs Goni (supra) the Apex court had stressed the point that it is only when the tribunal failed to conclude hearing and deliver judgment, that section 285 (6) of the constitution is applicable. He relied on page 21 lines 4-12 of the lead judgment which said:

 

“It follows that where a tribunal fails to comply with the above provisions (of section 285(6)) the jurisdiction to continue to entertain the petition lapses or becomes spent and cannot be extended by any court order…”

Such, counsel said was not the case in this appeal and urged us to so hold.

ISSUE 4:

 

Whether the Tribunal was right when it struck out the petition despite the valid and competent order of retrial made by the Court of Appeal in EPT/CA/IL/SH/13/2011, and the retrial proceedings having commenced. Counsel submitted that by the very necessity of the retrial order, the 180 days stipulated under section 285 (6) of the constitution for hearing and delivery judgment in the petition by the new panel of the Tribunal begins to count from the date of inauguration of the new panel of the Tribunal, that in reality the central issue is that of computation of time. It is not one where retrial order is continued as an extension of the 180 days to render the judgment. He relied on the case of Udokpo v. Edet Archibong, CA/CA/NAEA/257/11 (unreported where the Court of Appeal Calabar Division Held:

 

“The provisions of section 285 (6) and (7) of the Constitution of the Federal republic of Nigeria 1999 as altered should not be interpreted nor used as engine of fraud to extinguish the right of appellants who succeed on appeal from having their petitions determined de novo by election Tribunal on the flimsy excuse that the 180 days for determining the petition has expired. In my view where the court of Appeal has remitted a petition for rehearing or trial de novo, the effect is to recommence hearing or trial afresh as if the 180 days had not yet commence (sic) running. To hold otherwise is to make mockery of the decision of the court of Appeal and constitutional provisions. The legislative could not have intended such a monstrous construction or interpretation of the provisions of section 285 (6) and (7) of the constitution, namely to extinguish the right of the petitioners/appellant from having the petition determined de novo and on the merit.”

 

Counsel also relied on the Black’s Law Dictionary, 8th Edition, page 467, on the definition of appeal and what happens when an appellate court orders a case to be tried de novo or a new. He also relied on the case of Agbi vs Ogbeh (2005) 25 WRN 38 @ 93-94 and the Supreme Court case of Biri vs Mairuwa (1997) 8 NWLR (pt.467) 425 @ 433 where the Supreme Court held:

 

“…a trial de novo means nothing more than a new trial. This further means that the plaintiff is given another chance to relitigate the matter or rather, in a more general sense, parties are at liberty once more to reframe their case and restructure it as each may deem appropriate”‘

 

He also relied on Babatunde v. PAS&TA Ltd (2007) 13 NWLR (Pt.1050) 113 @ 146 – 147; Akuyili vs. Ngige (unreported) and Suswan v. Soron (unreported).
Counsel further submitted that there is no doubt that the Tribunal, as a subordinate court to this court, is constitutionally bound by the clear, categorical and unequivocal judgment of this court which unconditionally ordered that the petition should be heard on the merit, de novo; that the Tribunal has no prerogative or discretion to refuse to comply with or carry into effect the judgment of this court. He relied on the provisions of the section 287 (1) of the 1999 constitution (as amended) which says:

 

“The decisions of the court of Appeal shall be enforced in any part of federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Court of Appeal.”

 

In this case, counsel said this is even more so because the final order of this court made on 6/1/2012 was a specific directive made in an appeal arising from this petition and specifically directed at the Tribunal; that this court expected compliance and enforcement of its sacrosanct order; that the Tribunal cannot refuse to comply with the order; that by striking out the petition the tribunal wrongly assumed the power of judicial review over the judgment of this court. He relied on the case of Okwonkwo vs FRN (2006) (pt.1000) 566 @ 581 saying that this portend a great danger.

 

Counsel added that section 285 (6) of the constitution cannot be interpreted in isolation to violate section 285 (7), 246 (1)(Q) and 36 of the same constitution; that to do so would lead to absurdity, conflict and would defeat the obvious ends which the whole scheme of the constitutional provisions is meant to serve. He relied on the dictum of Iguh JSC on the principle of law governing interpretation of our constitution in the case of IMB vs Tinubu (2001) 45 WRN 1@ 19 that:

 

“This is that such interpretation as would serve the interest of the constitution and best carry out its objective and purpose should be preferred. Its relevant provisions must be read together and disjoint..”

 

He relied on the case of Abacha vs FRN (2000) 4 NWLR (pt.970) 239 @ 309-370; A.G Ondo State vs A.G Ekiti (2001) 17 NWLR (Pt.743) 706-770.

ISSUE 5:

 

On this issue, counsel submitted that by its ruling declining jurisdiction on the ground of lapse of time under section 9(7) of the constitution of the Federal Republic of Nigeria (2nd Alteration) Act 2010 (now section 285 (6) of the 1999 constitution (as amended) the Tribunal construed and applied the section 285 (6) as an ouster of its jurisdiction established under section 285(2) of the same constitution; that this without more offends the basic structure of the constitution, which is that the legislature will not interfere with the independence of the judiciary, that imputing such an intention on the legislature is the quintessential case of an interpretation in absurdity; that considering the essential role of courts in a democratic society, courts are required to guard their jurisdiction jealousy for the very reason of protecting the citizenry against political arbitrariness. He relied on the case of Adeogun vs Fashogbon (2008) 17 NWLR (pt.1115) 149 and on section 285 (2), 4 (8), and 6 (6)(a) of the 1999 constitution (as amended).

 

Counsel further submitted that ascribing outster of jurisdiction of tribunal/court to section 285 (6) of the constitution would call for a review of the provision and the same must be undertaken in the interest of the nation’s democracy and the justice of the case. He relied on the case of A.G Bendel vs A.G Federation (1999) All NLR 85 where the Supreme Court held:

 

“By virtue of the provision of section 4 subsection 8 of the constitution, the courts of law in Nigeria have the power and as laid down in the relevant provisions of the constitution. If there is any such infraction the courts will declare any legislation passed pursuant to it unconstitutional and in valid…”

 

Counsel also relied on the case of Unongo v. Aku (1983) NSCC 563, 568 and 577.

 

Counsel urged us to adopt the basic structure principle, citing case in USA and India in support, to hold that the adopted construction of the section 285 (6) of the constitution transgresses the basic features of the 1999 constitution to the extent of its interference with the separation of power doctrine, as well as the fundamental right to fair hearing, the constitutional right to appeal, the power of judicial review and the jurisdiction of the Tribunal under section 285(2) of the same Constitution. Accordingly, that section 285 (6) of the Constitution ought to be construed strictly to preserve the whole scheme of the constitution.

 

He urged us to resolve the issues in favour of the Appellants and allow the appeal.

 

Learned counsel for 1st and 2nd Respondents, arguing their issue 1 whether the Tribunal was right in declining jurisdiction to continue to entertain the petition in view of same having expired by effluxion of time, relied on section 285(6) of the 1999 constitution (as amended), section 134(2) of the Electoral Act (2010) as amended and the case of Ifesue vs Mbadugha (1984) 7 ANLR 256; Ugwu vs Ararume (2007) JSC, (Pt.1) 88. He said that the only relevant factor in computing the 180 days specified in section 285 (6) of the constitution and the Electoral Act is expressly stated to be “from the date of the filing of the petition.”
And that the use of the word ‘shall’ leave no room for any ambiguity as to the mandatoriness of the provision. Counsel also relied on the case of Prince Obiandu Obochukwu v. Boniface Emeregwa & Anor (1999) 5 NWLR (Pt.602) 179 on the interpretation of an equivalent provision in paragraph 2(1) of schedule 5 of the Local Government (Basic constitutional and Transition Provision). Amendment Decree No.36 of 1978. He also relied on Falae v. Obasanjo (1999) 3 LRECN 154 @ 160; Aboye v. Udoh (1999) 3 LRECN 536; Tejuosho v. Omojowogbe (1988) 7 NWLR (Pt.559) 628; Abari v. Hose & Ors (1999) 3 LRECN 586; Sola v. Ojo & Ors (1999) 1 LRECN 79 and Waziri v. Danboyi (1999) LRECN.
Counsel also relied on the supreme court case of PDP v. CPC & Ors (2011) 10 MJSC 1 @ 9 where the Apex court, per Onnoghen JSC held on the section 285 (7) of the 1999 constitution (as amended) as follows:

 

“I have read over and over the provisions of section 285(6) of 1999 Constitution (as amended) and have found the words used therein to be clear and unambiguous and simple and straight forward. I therefore hold that the words used therein are not subject to any interpretation at all; they are to be given their natural meanings; that the natural meanings of the words are that appeals from a decision of an election Tribunal or the Court of Appeal in an election matter shall be heard and determined with sixty (60) days from the date the judgment/decision appealed against was delivered, by the tribunal or Court of Appeal.”

 

Counsel quoted that decision of Onnoghen JSC as well as the decisions of other Lords therein in extenso on the mandatoriness of the 60 days time frame in section 255 (7) of the constitution. He also relied on the case of Shetima vs Goni (supra); Nafiu Rabiu vs Kano State (1980) 8-11 SC 130; Onubu vs INEC (1988) (Pt.94) 323; Adewunmi v. Ekiti State (2002) 2 NWLR (pt.751) 474.
Counsel further submitted that the provisions of section 285(5)(6) and (7) of the 1999 constitution (as amended) have been exhaustively interpreted by the supreme court in the case of PDP vs CPC (supra) and Alhaji Kashim Shettima & Anor vs Alhaji Mohammed Goni & ors (2012) All FWLR 609; that the provision is clear and does not require any interpretation; that it has been settled that where words of a statute are clear, simple and unambiguous, the courts in considering them must give their plain, ordinary and natural meaning. He relied on the case of Maitsidau vs Chidari (2008) 16 NWLR (pt.1114) 553 @ 575; Calabar Co-operative Ltd & 2 Ors vs ECP (2008) 1-2 SC 229.

 

He added that as clearly spelt out in the above decision, the provision of section 285 (6) of the 1999 constitution (as amended) as well as of 134(2) of the Electoral Act 2010 (as amended) are mandatory and admit of no discretion whatsoever; that once the period of 180 days has expired the petition becomes statute barred, and no valid proceedings can be concluded in the petition and anything done amounts to an action in futility as same is null, void and of no effect whatsoever.

 

He relied on the cases of Madukolu vs Nkemdilim (1962) SCNLR 841 and Okereke vs. Yar’Adua (2008) 12 NWLR (Pt.1110) 95 @ 118 on when a court is said to be competent to handle a matter. Counsel also relied on the consolidate appeals No. CA/I/EPT//NA/17/2011 and CA/I/EP/NA/32B/2011 Agboola Itosea Ayoola v. Dr Wale Okedira (unreported), per Saulawa JCA pages 25, 36, and said that to give contrary effect to the provision of section 285(6) of the constitution other than the plain meaning of same will not only defeat the intention of the legislator but also re-write our law at the expense of the plain meaning of wordings of the constitution, and that would mean that the period of 180 days is subject to renewal which would give room to incessant usual delay encountered in election matters which the legislator wanted to avoid or abolish.
Counsel further submitted that the Apex Court has refused to be confused in a number of its recent cases and held that the period limited for hearing and determination of an election matter lapses after 180 days, from -the date the petition was filed at the registry of the appropriate election Tribunal and that an order of retrial by the Court of Appeal of any petition whatsoever is incapable of expanding, renewing, reviving or elongating the period of 180 days, specifically stipulated by section 285 (5) (b) of the 1999 constitution even for a second.
He relied on Udokpo vs Ardubong (CA/C/NA/EPT/257/11) delivered on 17/11/11 by this court at Calabar Division , ANPP v. Goni (SC/I/2012 AND SC/2/2012) delivered on 17/2/2012 wherein Onnoghen JSC stated:

 

“It is worrisome that despite the decisions of this court, since October 2011 on the time fixed in the constitution some of the justices of the lower court still appear not to have gotten the message. From where will the election tribunal get jurisdiction to entertain the retrial after the expiration of the….. 180 days assigned in the constitution, without extending the time so allotted. Do the courts have the vires to extend the time assigned by the constitution? The answer is obviously in the negative… In my considered view 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 is the law and must be obeyed to the letter…”

 

Court in keeping with the doctrine of judicial precedence, by reason of the expiry of the period of 180 days 18/5/2011 when the petition was filed; that the tribunal lacked competence to entertain it.

 

On their issue 2, counsel for the 1st and 2nd Respondents submitted that the tribunal was right in applying its decision in the ruling contained in the Election Petition No. EPT/KW/SH/6/2011 dated 22/2/2012 to hold that the petition of the Appellants in this appeal was no longer maintainable and striking out the same; that the issue of jurisdiction which became obvious had to be treated and determined timeously to avoid embarking on fruitless exercise; that the Tribunal cannot vest jurisdiction of itself outside of what is provided by statute. He relied again on the case of Udokpo v. Archibong (supra), the consolidated appeals in Supreme Court case of Shettima v. Goni (supra) (SC/1/2012 and SC/2/2012).
Counsel said that the petition had long been dead and buried since the 14th November, 2011; that the Tribunal acted rightly by holding that the petition was no longer maintainable. He urged us to resolve the issues against the Appellants and dismiss the Appeal.

 

The learned counsel for the 3rd Respondent made submissions on the two issues distilled by the 3rd Respondent in the same way as the 1st and 2nd Respondent. He submitted that it is elementary principle of law that the final judgment of a competent court cannot be disputed on issue which it has settled in any subsequent legal proceedings, relying on Nigeria Arab Bank Ltd v. Bari Engineering Nig Ltd (1995) 8 NWLR (Pt.413) 257 @ 289; Dalhatu v. Turaki (2003) 15 NWLR (Pt.843) 310 @ 336. Thus, counsel said the decision of the Supreme Court in ANNP v. Alhaji Goni (supra) is binding on all the courts in Nigeria and as such it must be followed hook and sinker by all the lower courts, including the Election Tribunal; that the decision of the Tribunal was proper having been delivered in line with the Supreme Court Judgment in ANPP v. Goni (supra).

 

On its issue 2, counsel submitted it is trite that jurisdiction is the life wire of a court, as no court can entertain a matter it lacked jurisdiction, and that issue of jurisdiction can be raised at any time, even on appeal, and the court can also raise the same where it lacks jurisdiction to adjudicate on a matter presented to it. He relied on Dairo vs UBN (2007) 11 MJSC 77; Arabella vs NAIC (2008) 8 MJSC 152; Chief Yakubu Sani vs Okene Local Government (2009) 70 MJSC 202.
Counsel submitted that jurisdiction is a creation of statute or constitution and is not inherent in an appellate court neither can it be conferred on a court by order of court; that the jurisdiction of the Election Tribunal and Appeal court to hear this petition de novo or any appeal arising therefrom is determined by section 285(6) (7) of the 1999 constitution and circumscribed by that law, in relation to time/period allotted. He relied again on the dictum of Onnoghen JSC in the case of ANPP vs Goni (supra) to say that the tribunal lacked vires to hear the petition de novo, having been robbed of jurisdiction. He urged us to dismiss the appeal.
Appellants reply briefs amounted to reinforcement of their position in the appellants’ briefs, raising issue on the silence of the Respondents of some issues the claims not covered by the Respondents vis a vis issues (iv) and (v) by the Appellants brief. They also asserted that the doctrine of judicial precedence applies only where facts and issues are similar; that the circumstances of this appeal are not similar to those of the Supreme Court decision canvassed. counsel also stated that the issue of retrial is not covered by section 285 (6) of the 1999 constitution (as amended)

 

I think the real live issue for determination in this appeal is whether the learned justices of the Election Tribunal were right in law to hold that the petition of the Appellant was no longer maintainable and consequently struck it out, considering the fact that the tribunal was constituted by order of the court of appeal with specific mandate to hear the appellants’ petition on the merit, de novo. I believe the other surrounding issues relating to the jurisdiction of the Tribunal to retry the petition and its reliance on the extant decisions of the Supreme Court to decline jurisdiction and strike out the petition can all be considered under that same issue.

 

I do not think the 2nd and 5th issues by the Appellants are worth – any judicial consideration as the same appear speculatory or founded on allegations that appear spent (issue 2) or speculatory (issue 5), especially as the tribunal did not directly apply the provisions of section 285 (6) of the Constitution to strike out the petition, and was not even urged to do so using the said provision, but rather relied on the decision of the Supreme Court said to have interpreted the said provision of the Constitution to favour the striking out of the petition. I think labouring under such issues would amount to expending judicial time in pursuit of mere academic exercise that will not enure any profit to the parties. A case is said to amount to an academic venture, where:

 

“There cannot be said to be live issue in a litigation, if what is presented to the court for a decision, when decided cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started, so that in case of an appeal, the appeal may become academic at the time it is due for hearing.”

 

See the case of A.G Federation vs ANPP (2004) LRCN 2671 @ 2994. See also Odedo vs INEC (2008) 17 NWLR (pt.1117) 554, where it was held:

 

“A suit is academic where it merely makes empty sound and of no practical utilitarian value to the plaintiff, even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity, An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case at hand… (it) could be a hypothetical or moot question (and) … does not relate to the live issues in the litigation, because it is spent as it will not enure any right or benefit on the successful party.” See also TANIMOLA Vs MAPPING GODATTA LTD (1995) 6 NWLR (PT.403) 617; NWODOSHI Vs ACB (1995) 6 NWLR (Pt.404) 658; OGBONNA Vs PRESIDENT FRN (1997) 5 NWLR (Pt.504) 281; NDULUE Vs IBEZIM (2002) 12 NWLR (Pt.780) 139.

 

This principle was applied in the case of Prof. Steve T. Ugba & Anor vs Gabriel T. Suswan & ors, an unreported decision of this court, in CA/MK/EPT/10/2012 delivered on 12/4/12 page 38-39 thereof, where it was held:

 

‘that in the circumstances…where the petition of the Appellants had been struck out on 28/2/2012 while the interlocutory appeal was pending (which was given life to by the petition) it was futile to waste further legal energies and judicial time to pursue the academic venture.”

 

A situation where appellants on issue 2 complained of the Tribunal granting adjournment to the Respondents on 20/2/2012 based on mere speculation that they would raise issue of jurisdiction (when no such issue was before the Tribunal) appear a mere academic exercise since the adjournment had already been granted and the situation (or effect of same) cannot be reversed by this appeal, even if that issue is decided in favour of the Appellants. The same thing can be said of issue 5, since the alleged interpretation of section 285(6) of the Constitution, was done by the Supreme Court (and this court cannot consider the issue with a view to over ruling the decision of the Supreme Court). And the issue is better raised at the supreme Court for consideration, or properly raised in this Court, in a live situation, where that issue is in dispute between the disputing parties. The issue 5 is therefore pheripherial in this appeal.

 

Was the Tribunal right to raise the issue of jurisdiction suo moto and proceed to hold that the petition was no longer maintainable.

 

Was the Tribunal right to raise the issue of jurisdiction suo moto and proceed to hold that the petition was no longer maintainable because the Supreme Court had decided on 17/2/2012 that section 285(6) of the 1999 constitution (as amended) which give 180 days for hearing and determining election petition cannot be extended, expanded etc when it expires?

 

I had cause in a recent decision in the case of Prof. Steve T. Ugba & Anor vs. Gabriel T. Suswan & Ors (supra) to say that this does not appear to be the best of times for the judiciary and justice system in this nation; that

 

“A situation where petitioners who appear to have done everything necessary to get their cases heard on the merit, and even have been assured of that by specific orders of the Supreme Court, and yet cannot still be heard, and are chased out of the temple of justice in the name of the law, for no fault of theirs, is indeed worrisome, requiring quick judicious and humane approach to correct, to strip the law of the garb of a monster that seeks to keep justice in chains.”

 

Similar worry was expressed in the case of Udokpo vs Archibong (unreported decision of this Court, Calabar Division) in Appeal No. CA/C/NAEA/257/2011, where this court documented the evil inherent in interpreting section 285(6) of the Constitution to deny Appellants, with genuine grievances opportunity to ventilate the grievances, as follows:

 

“The provisions of section 285 (6) and (7) of the Constitution of the Federal Republic of Nigeria 1999 as altered should not be interpreted nor used as engine of fraud to Extinguish the right of appellants who succeed on appeal from having their petitions determined de novo by election Tribunal on the flimsy excuse that the 180 days for determining the petition has expired. In my view where the Court of Appeal has remitted a petition for rehearing or trial de novo, the effect is to recommence hearing or trial afresh as if the 180 days had not yet commence (sic) running. To hold otherwise is to make mockery of the decision of the Court of Appeal and constitutional provisions. The legislature could not have intended such a monstrous construction or interpretation of the provisions of section 285 (6) and (7) of the constitution, namely to extinguish the right of the petitioners/appellant from having the petition determined de novo and on the merit.

 

One very sad consequences of a rash and indiscriminate application of the recent decisions of the Supreme Court over the alleged interpretation of section 285(6) of the 1999 constitution played out in this case, when the learned tribunal took upon itself the powers of appellate court over the judgment and decision of this court in Appeal No.EPT/CA/IL/SH/13/2011, delivered on 6/1/12, to review the order of this court and decide to dump it.

 

What gave the lower Tribunal such audacity and effrontery to take on the decision and order of this court and rule against it in derision and disobedience?
Of course, the tribunal was of the believe, which, in any humble opinion, was mistaken, that the decisions of the Supreme Court, relied on by the Tribunal, placed them above the court of appeal that directed it to retry the case on merits, de novo.

 

The Tribunal did not even care to take submissions from counsel on the matter but proceeded to strike out the petition, suo motu! By the authority of Ejezie us Anuwu, (2008) ALL FWLR (Pt.422) 1005, the Supreme Court per Tabai JSC, held:

 

“The settled principle of law is that no court has the authority to raise an issue suo motu and relying thereon, decide the case one way or the other without inviting the parties to be heard. Such a procedure would be fundamental flaw and mistrial in breach of the rule of fair hearing.” See also Shai v. Smith (2009) 18 NWLR (Pt.1173) 330 @ 344, 356-557. In the case of Oje vs Babatola (1991) 4 NWLR (Pt.185) 17 it was also held that

 

“In this country, this is a constitutional right and this court has always insisted that on no account should a court raise a point suo motu, and no matter how clear it may appear to be, proceed to resolve it one way or the other without hearing the parties, “See also Dairo vs UBN (supra) @ 137 and Ogundoyin vs Adeyemi (2001) 13 NWLR (pt.730) 403.

 

Appellants have argued that the Tribunal or any subordinate court is not expected to follow the principle of stare decisis or judicial precedent blindly, where the facts and circumstances of the case at hand are not the same with that of the case relied on, “as the same must be taken with reference to the facts and peculiar circumstances of the case on which he decides, otherwise the law will get into extreme confusion. “See the dictum of Oputa JSC in the case of Adegoke Motors vs. Adesanya (supra) @ 275; Clement vs. Iwuanyanwu (1989) NWLR (Pt.107).

 

I think, if the learned tribunal had taken the facts and peculiar circumstances of the case it was empanelled to hear, de novo into consideration, it would have appreciated the fact that it had no power to review the order of this court whether or not it had jurisdiction to hear the petition, as the order to hear the case was passed down to it by a superior court, which the tribunal had no prerogative or discretion to decline. This point was stressed by counsel for the Appellants, when they placed reliance on the case of Udokpo v. Archibong (supra); Agbi v. Ogbeh (2005) 25 WRN 88 @ 93 – 94 and Biri v. Mairuwa (1997) 8 NWLR (Pt.467) 425 @ 433, on the need to obey the order of the Court of Appeal, which ordered the tribunal to retry the case, de novo, on the merit, and for case that is to be heard de novo means the plaintiff is given another chance to re-litigate the matter and the trial is to commence a fresh or anew.
By section 287 (2) of the Constitution the decisions of the Court of Appeal must be obeyed and enforced by every person and all authorities everywhere in Nigeria, including every court or Tribunal other than the Supreme Court. The case of Okwonkwo v. FRN (2006) NWLR (Pt.1000) 566 @ 581 shows the anger reserved for a subordinate court that treats the orders of a superior court with disdain.

 

Of course, the long cherished tradition of stare decisis does not permit any less from a subordinate Court, and it becomes much more a demanding duty where the lower court is specifically ordered or directed to perform a function by the superior court. Under no circumstances can the subordinate court elect to disobey the order or overrule the superior court. See the decision of this court in the case of HRH Ezekiel Ogunleye v. Prince Joshua O. Aina, (unreported) in Appeal No CA/IL/22/2009, delivered on 14/3/2012, pages 28 – 29 thereof.
Even where the decision of the superior court is wrong, the law is that such order has to be obeyed until the same is discharged or set aside by a competent court. See the case of Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539; Labour Party v. INEC (2009) 2 MJSC (Pt.1) 101 @ 204, where it was stated.
It is now firmly settled that a court order must be obeyed even if such order is perverse, until such a time that the order is set aside by a competent court’. See also Aladeghami v. Fasanmade (1998) 3 NWLR (Pt.81) 131.

 

Of course, the lower Tribunal cannot qualify as a competent court to set aside the judgment/order of the Court of Appeal. Thus, even when the extant Supreme Court decisions appear to have unsettled and over-ruled the known existing authorities on retrial order in election matters, which used to conform with the tradition of beginning afresh, that such retrial can no longer be done or commenced afresh, with a new life-line, for want of jurisdiction, on the expiration of the original 180 days, such pronouncement cannot be made by a subordinate court which received the order for retrial.

 

It is against all known judicial ethics and decorum for a lower court to assume the role of a master over its superior, and overrule the superior court or treat it with disrespect. It is only the Apex court that can call the Court of Appeal to order. Or it is the Court of Appeal, itself, on becoming aware that its decision was reached without jurisdiction or has a fundamental defect or was entered per incuriam, that can set it aside. It is necessary to keep to such tradition.
I therefore think a blind application of the decision of the Supreme Court in the consolidated case of ANPP v. Goni (supra), in the name of stare decisis, is capable of tremendous damage to the much cherished principles of law which the supreme court has evolved over the years, relating to the immutable principles of fair hearing, adherence to substantial justice (as opposed to technical justice) and the avowed principles of stare decisis and obedience to court orders, among other sacred principles.

 

For instance, how can deference to the Supreme Court decision in ANPP vs Goni be used to justify deliberate disobedience and rubbishing of a subsisting order of the court of Appeal?

 

Another serious problem which the belligerence of the Tribunal has caused or can cause is the rendering of the decisions of the court of Appeal nugatory or unnecessary, when such decision cannot affirm the judgment of the Election Tribunal, or where it goes beyond ordering fresh/bye election, (where the election is not upheld in full). Thus, where a Tribunal hears the petition and enters judgment, the same cannot be questioned by way of ordering a re-trial, no matter how flawed the process of reaching the decision was, and the appellate court cannot reverse it, other than by ordering fresh elections!
Such can greatly undermine the judicial process, particularly of this court, leaving the judicial process at the mercy of speculators and corrupt influences of political powers, in election matters, for political convenience.

 

How can the apparent complete suspension of the sacred principles of fair hearing which forms the pillar of adjudication and of constitutionalism, in preference for what appears as a strange rule of “time-up” principle be justified, which suggests that litigants can be chased away from the temple of justice, once their matters have not been heard to conclusion within 180 days of filing the same in court, even when the complainant has not defaulted in the pursuit of his claim before the court? Should the court throw its hands in desperation, helplessness and defeat, and tell the aggrieved litigant time is up!, and close the door of justice against him, midstream?

 

I think that would be an invitation to anarchy, and I doubt whether the legislature intended such and/or would have power to make such legislation that appears to make the court or judiciary irrelevant.

 

The obvious implication of this reasoning is that the learned Tribunal lacked the competence to refuse to obey and act on the order this court, as long as that order remained subsisting, having not been discharged or set aside. And because the lower tribunal lacked competence to set aside a valid decision of this court entered on 6/1/2012 the same remains, and is binding.

 

What all this point to is to repeat that it is only the Apex Court that can pronounce against the judgment and orders of this Court, or the Court of Appeal, itself, that can review its decision and order, if it becomes clear that the same was reached without jurisdiction or entered per incuriam, or under a situation of fraud or misrepresentation. See the case of Olufuise vs Falana (1990) NWLR (Pt.136) 1; Sken Consult (Nig) Ltd v. Ukey (1981) 1 SC 6; ACB Plc v. Losada (Nig) Ltd (1995) 7 SCNJ 158. And in the recent case of Mallam Suleiman Bolakale Salami v. Alhaji Abdul-rahaman Sule Ajadi (an unreported decision of this court) in suit No.CA/IL/M.61/2011 delivered on 5/3/2012, this court, per Agube J.C.A. held (on page 21 thereof):

 

“…the law is trite and it is equally indubitable as has been conceded by the learned counsel to Respondent, that every court including the court of Appeal has the inherent jurisdiction to set aside its judgment where there has been fundamental defect in the proceedings such as where the court lacked the jurisdiction to entertain the appeal… Apart from the jurisdiction factor, this court also has inherent power to set aside its judgment on grounds of fraud or misrepresentation… and by reason of mistake or incompetence to make an order in the appeal.” See Momodu v. Momoh (1985) 5 NWLR (Pt.43) 649; Obimoure v. Erinosho (1966) 1 All NLR 250.

 

To that extent I resolve this issue in favour of the Appellants. Accordingly, this appeal is meritorious and is allowed.

 

Supreme Court in the case of ANPP vs Goni (supra) and Kashim Shettima vs Goni (supra), relied upon by the Respondents. The answer is therefore NO! This court is bound to respect and enforce the judgments of the Apex Court. See the provisions of section 287(1) of the 1999 constitution which says:

 

“The decisions of the Supreme Court shall be enforced in any part of course of the federation by all authorities and persons and by court with subordinate jurisdiction to that of the Supreme Court.

 

Of court, it has become a matter of public knowledge and it has been submitted in this appeal, that the Supreme Court, in its recent decisions in the consolidated case of ANPP vs Goni (supra) and Kashim Shettima vs Goni (supra) has held that the 180 days provided by the constitution for the hearing and determination of election petitions cannot be extended or expanded, on expiration and that no order of court can extend, expand or increase same by way of ordering retrial. In that case my Lord Onnoghen JSC observed as follows:

 

“It is very worrisome that despite the decisions of this court, since October, 2011 on the time fixed in the constitution, some of the justices of the lower court still appear not to have gotten the message. From where will the election tribunal get the jurisdiction to entertain the retrial after the expiration of the Hundred and Eighty (180) days assigned in the Constitution, without extending the time so allotted? Do the courts have vires to extend the time assigned by the constitution? The answer is obviously in the negative.” (See pages 22 and 23 thereof).

 

What that implies is that the order of this court in Appeal No.EPT/CA/IL/SH/13/2011, delivered on 6/1/2012 directing the retrial of the petition, de novo on the merit by another panel of the Tribunal was made without jurisdiction, because as at the time that decision was reached the 180 days life span of the petition filed by the Appellants on 18/5/2011 had lapsed.
Thus, while I resolved the remaining issue, formulated by this Court, in favour of the Appellants that the learned Tribunal was wrong to have censored the order of the Court of Appeal and failed to comply reached the 180 days life span of the petition filed by the Appellants on 18/5/2011 had lapsed.

 

Thus, while I resolved the remaining issue, formulated by this Court, in favor of the Appellants that the learned Tribunal was wrong to have censored the order of the Court of Appeal and failed to comply with it, striking out the Appellants Petition, in deference to the recent decisions of the Supreme Court that the Court of Appeal cannot order a retrial of the Appellants petition after the expiration of the 180 days from the date of filing of the Petition, the Petition cannot, therefore, be retried, de novo.

 

And to the extent that the decision and order of this Court delivered on 6/1/2012 was reached without jurisdiction, in view of the recent decisions of the Supreme Court, it is my humble view, that that defect has had a vitiating effect on the decision and order of this court in the Appeal NO CA/IL/EPT/13/2011 and the entire judgment cannot stand, as the same becomes a nullity. It is hereby set aside.

 

The necessary consequence of this is that the Judgment of the Election Tribunal delivered on 12/11/11, which ordered a bye election in the two wards whereof the elections were inconclusive, revives and subsists and must be complied with by the 3rd Respondent. Therefore the Ruling of the second Tribunal, striking out the Petition on 22nd February, 2012, is hereby set aside, having been reached without jurisdiction.

 

Accordingly, the 3rd Respondent shall comply with the said earlier order of the Election Tribunal, delivered on 12/11/11 in the Petition No.EPT/KW/SH/8/2011.
Each party to bear his/its own

TIJJANI ABDULLAHI, J.C.A.:

I agree.

IGNATIUS IGWE AGUBE, J.C.A.: I agree