Abdulrahman Abubakar & Anor V. Senator Aidoko Ali Usman & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

My Lords, what prompted this appeal was the Ruling of the Court of Appeal, Abuja Division (hereinafter, simply, referred to as “the lower Court”) delivered on February 11, 2016. The said Ruling was the lower Court’s determination of the questions canvassed in a Motion on Notice wherein the appellants in this appeal entreated it with the following supplications:

“1. An order correcting clerical mistakes/errors in the orders made in the Judgment of this Honorable Court delivered on the 2nd of December, 2015 and the Enrolled Order issued on the 10th December 2015 in Appeal No. CA/A/EPT/609/2015 Abdulrahman Abubakar and Anor Vs. Senator Attai Aldoko Usman and 3 others to give effect to the full meaning and the intention of the Court in allowing the appeal of the applicants.

2. An order correcting or varying the consequential orders in the judgment of this Honorable Court delivered on the 2nd December, 2015 and the Enrolled Order of this Court issued to the Applicants on 10th, December, 2015 in Appeal No. CA/A/EPT/609/2015 and 3 others by deleting the 3rd consequential

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order therein and replacing same with consequential order affirming the election and return of the 1st Applicant as Senator representing Kogi East Senatorial District, the order nullify the election of the 1st applicant and ordering for fresh election within 90 days having been made without jurisdiction.

3. An order deleting the word “partially” from the resolution of issue one in the judgment of this Honourable Court delivered on the 2nd December 2015 in Appeal No. CA/A/EPT/609/2015 Abdulrahman Abubakar and Anor Vs. Senator Attai Aidoko Usman and 3 Others by affirming the election and return of the 1st Applicant to give effect to the full meaning and the intention of the Court in resolving issue one in favour of the Applicants, this Honorable Court having held and found at page 19 of the judgment, Exhibit JSO annexed to the affidavit thus:

By the provision of Paragraph 4(3) (a) of the First Schedule to the Electoral Act, 2010 as amended a petition shall conclude with a prayer or prayers. It is not difficult to see from the petition that relief A is standing alone.”

That there is no prayer that the election be nullified. There is no prayer

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that the 1st Respondent be declared as duly elected. Yet the Tribunal not only nullified the election but proceeded to declare the 1st Respondent duly elected.

4. THE ALTERNATIVE

An order extending time within which the Applicants herein may/can apply to set aside the consequential orders made in the judgment of this Honourable Court delivered on the 2nd December, 2015 and the Enrolled Order issued on the 17th December, 2015 in Appeal No. CA/A/EPT/609/2015 on the grounds that the said consequential order and Enrolled orders were made without jurisdiction.

5. An order setting aside the consequential orders made in the lodgment of this Honorable Court delivered on the 2nd December, 2015 and Enrolled Order issued on the 17th of December, 2015 in Appeal No. CA/A/EPT/609/2015 on the grounds that the said consequential and enrolled orders were made without jurisdiction.
6. An order setting aside the letter written by the Deputy Chief Registrar Court of Appeal, Abuja judicial Division and dated 23rd December, 2015 which was addressed to the Chairman of the Independent National Electoral Commission on ground that the said letter was issued without

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jurisdiction.

7. An order setting aside the consequential orders in the judgment of this Honourable Court delivered on the 2nd December, 2015 and the enrolled Order of this Honourable Court issued to the Applicants on 10th December, 2015 in Appeal No. CA/A/EPT/609/2015 which nullified the election of the 1st Applicant and ordered for fresh election within 90 days same having been made without jurisdiction.

And for such further order or other orders as the Honourable Court might deem fit to make in the circumstance.”

In his swift and predictable response to the reliefs, Patrick I. N Ikwueto, SAN, for the respondents, contended inter alia that the lower Court was denuded of jurisdiction to sit on appeal over its judgment, citing Section 246 (3) of the Constitution (supra). In its said Ruling, the lower Court agreed with the submission of Ikwueto, SAN, holding that ‘…since this Court lacks jurisdiction to tamper with its judgment delivered on 2nd December, 2015, the application lacks merit and it is struck out.” [page 35] of the record].

In this appeal against the said Ruling, the appellants herein inveighed against the logic of the reasoning

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in the lower Court Ruling. They framed only one issue for the determination of their appeal, thus:

Whether the Court below was correct to hold that it has no jurisdiction to grant the reliefs set out in the motion papers of the appellants filed on 26th January, 2016, having regards (sic) to the facts that the consequential orders made in the judgment of 2nd December, 2015, were made on ground (sic) completely outside the jurisdiction of the Court below

At the hearing of this appeal on December 14, 2016, J. S. Okutepa, SAN, for the appellants, adopted the brief filed on March 8, 2016 and the Reply Briefs filed in response to the respondents’ briefs.

In the said principal brief, learned senior counsel devoted Paragraphs 4.01 -4.27, pages 6 -21 to this issue. On his part, P. I. N. Ikwueto, SAN, for the first and second respondents/adopted his brief of argument filed on March 24, 2016. In the said brief, he greeted the appeal with a Preliminary Objection on six grounds. In my humble view, only the first ground is determinative of this appeal. It reads thus:

“By Section 246 (3) of the 1999 Constitution (as amended), the decision of the Court of

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Appeal in respect of appeals arising from the National and State Houses of Assembly election petitions shall be final.”

Paragraphs 3.3 – 3.4, pages 7 -9 of the record, were dedicated to the arguments on the Objection. He urged the Court to hold that the lower Court was right in upholding the finality of its said judgment. Learned senior counsel, further placed reliance on the arguments in the said brief with regard to the sole issue, Paragraphs 4.2-4.41, pages 10 -23 of the said brief. Learned senior counsel for the third and fourth respondents, Ibrahim K. Bawa, SAN, equally adopted the brief filed on March 11, 2016 in urging the Court to affirm the approach of the lower Court.

J. S. Okutepa, SAN, for the appellants, as indicated earlier, adopted the appellants’ Reply briefs in answer to the points of law raised in the respondents’ briefs. In addition, he cited the judgment of the Federal High Court [per Nnamdi Dimgba, J.] in Suit No FHC/ABJ/CS/10734,/201 Air Marshal Isaac M. Affa, CFR v PDP and Ors of April 18, 2016.

On January 11, 2017, P.I.N. Ikwueto, SAN, by his letter addressed to the Chief Registrar of this Court, forwarded a Certified

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True Copy of the judgment of the Court of Appeal, Abuja Division, delivered on December 14, 2016 in Appeal No CA/A/260/2016, Senator Atai Aidoko v Air Marshall Isaac Alfa and Ors. In the said judgment, the lower Court set aside the above judgment of the Federal High Court.

RESOLUTION OF THE ARGUMENTS IN THE PRELIMINARY OBJECTION

Now, Section 246 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) confers finality on the judgments of the Court of Appeal in respect of appeals arising from election petitions in the above trenchant phraseology.

Interestingly, this Court has dealt with the meaning and breadth this section on numerous occasions. Only a handful of these decisions would be cited in this judgment. Opara and Anor v Amadi [2013] 6- 7 SC (pt 2) 49; Madumere v Okwara [20l3] 6-7 SC (pt 2) 95; Okadigbo v Emeka and Ors (2012) LPELR -7839 (SC) 17; Emordi v Igbeke (2011) 4 SC (pt 11) 107, 145; Salik v Idris [2014] 15 NWLR (pt 1429) 36; Dangana v Usman (2012) LPELR-7827 (SC); Onuaguluchi v Ndu and Ors [2001] 7 NWLR (pt 712) 309; (2001) LPELR -2699 (SC); Salik v Idris [20I4] 15 NWLR (pt 1429) 36,60; Jegede v Akande (2014)

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16 NWLR (pt 1432) 43, 72.

Instructively, in Dangana and Anor v Usman and Ors (2012) LPELR-25012 (SC) where the first respondent in this appeal was also the first respondent, this Court dealt with this question. For their bearing on the self-same issue, I would take the liberty to set out this Court’s view in extenso. Listen to this:

“It is apparent that the provisions of the 1999 Constitution (as amended) do not envisage an appeal to the Supreme Court from the Court of Appeal in National Assembly Election Petitions based on whether anybody has been validly elected as a member of the National Assembly. The Court of Appeal shall be the final Court by virtue of Section 246 (3) of the 1999 Constitution. The provision of Section 246 (3) affirms the previous decisions of this Court. In the case Onuaguluchi v. Ndu [2001] 7 NWLR (pt. 712) 309, this Court held at pages 321-322 Paragraphs H-D:

‘Where an appeal is actively in respect of National Assembly election or other relevant election, whatever efforts of a procedural nature or of a procedural vice as to jurisdiction or competency, cannot be corrected by this Court. They can only be corrected by the

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Court of Appeal or else they will remain uncorrected or unresolved as this Court cannot intervene since it has no appellate or supervisory jurisdiction over the Court or Appeal in such circumstance. This Court will not permit or encourage any subterfuge under which it may assume jurisdiction to hear an appeal in respect of which the Constitution has in clear and unambiguous language made the Court of Appeal the final Court. It follows that an appeal in respect of a decision of the Tribunal in an election petition when decided by the Court of Appeal cannot be taken on appeal to the Supreme Court but is final for all purposes.’

Also in the case of Awuse v. Odili [2003] 18 NWLR (pt. 851) 116, this Court said:

‘It is therefore now well settled that pursuant to the provisions of Section 246 (1) (b) (i) and (3) of the 1999 Constitution, the Court of Appeal acting within its jurisdiction in deciding an appeal rising from an election petition as stipulated under the said Section of the Constitution is the final Court of Appeal. Whether it did so rightly or wrongly in its decision cannot be questioned on appeal in this Court by virtue of the express provisions of

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the said Section 246(3) of the 1999 Constitution which stipulates that the decision of the Court of Appeal in respect of appeals arising from the relevant election shall be final .’

Esewe v. M. T Gbe [1888] 5 NWLR (pt. 93) 134; Eco Consult Ltd. v. Pancha ViIa Limited [1999] 1 NWLR (pt. 588) 507. In short, by virtue of Section 246 (1) (b) (i) and (3) of the 1999 Constitution, the Court of Appeal has the mandate to decide an appeal arising from an election petition and shall be the final Court. Whether it did so perfectly, rightly or wrongly, the decision it arrives at cannot be taken on appeal to the Supreme Court for consideration.”

[Dangana v Usman and Ors (supra) 33 -3 E-C].

My Lords, I have deliberately set out only a handful of these decisions [there are, in deed, many more of such decisions] to expose the futility of this appeal on such an issue which this Court, as shown above has dealt with on numerous occasions. That is why, with profound respect, I must express my reservation about the propriety of irritating this Court with this issue ad nauseam!

True, indeed, it is rather strange that learned senior counsel opted to bother this

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Court with this appeal woven around the propriety of appealing against the judgment of the lower Court in National Assembly election matters: a question that has been adequately addressed in the judgments cited above.

What I find even more worrisome is the fact that the learned Senior Advocate for the appellant in this appeal was involved in one of the three judgments which this Court delivered on December 9, 2016 affirming its earlier decisions on this question. Indeed, in SC. 168/2016 Rt. Hon Abdullahi Bello and Anor v Hon Yusuf Ahmed Tijani Damisa and Ors, he appeared for the appellants.

He was confronted with the same arguments canvassed in this appeal, namely, that Section 246 (3) (supra) confers finality of judgments of the lower Court on National Assembly election matters. In sustaining the Preliminary Objection against the said appeal which he filed for the appellant in that case [the same learned senior counsel is also counsel for the appellant in the present appeal], this Court reaffirmed the view that:

“…. Looking closely at the wording of Section 246 (3) of the 1999 Constitution (as amended)… it is clear …that the

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decision of the Court of Appeal is final. The decision therefore has no business climbing or driving to this Court for adjudication because this Court is certainly bereft of jurisdiction to entertain, hear and determine any such appeal from the lower Court. This Court had also in numerous of its decided authority (sic) decided (sic) that it lacked jurisdiction to entertain and determine this and similar appeals…”

[per Sanusi, JSC, page 27 of the unreported judgment; italics supplied for emphasis]. On the same day, this Court maintained the same position in SC. 187/2016 – Okocha Samuel Osi v Accord and Ors and SC. 120/2016 – Hon Barambu Umaru and Anor v PDP and Ors.

Although, I am tempted to do so, I refuse to entertain the misgiving that the learned senior advocate’s agitation of this same question in this appeal was a deliberate attempt to put the consistency of this Court’s reasoning to test. From my painstaking and intimate reading of the entreaties before the lower Court, it would no doubt seem obvious that he[ learned senior counsel for the appellant], craftily tabled those reliefs before that Court in the vain hope that it [the said Court]

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could be decoyed into arrogating to itself a jurisdiction which it clearly did not possess. Happily, it [the said Court] saw through his [the appellant’s] disingenuous ploy and declined to entertain the matter.

Be that as it may, this Court is not seised of jurisdiction to deal with this appeal: an appeal which ought to have stopped at the lower Court. To underscore the futility of the attempt in this appeal, I am constrained to set out the consistent views of this Court in previous decisions. In Madumere and Anor v. Okwara and Anor (2013) LPELR -20752 (SC) at 13 -14; E -C, the Court, pointed out that:

“The provisions of Section 246 (3) of the 1999 Constitution, as amended is (sic) very clear and unambiguous. It (sic) enacts as follows: ‘3. The decisions of the Court of Appeal in respect of appeal arising from the National and State Houses of Assembly Election petitions shall be final’. By numerous decisions of the Supreme Court, the above provision and similar ones to the like effect have been interpreted to mean that no further appeal can be filed against the decision of the Court of Appeal in appeals on National and State Houses of Assembly

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Election Petitions. See the case of Esewe v. Gbe [1988] 5 NWLR (pt. 93) 134 at 136-137; Onuagnwchi (Sic) v. Ndu [2001] 7 NWLR (pt. 712) 309 at 321; Dingyadi v. INEC (No.1) [2010] 18 NWLR (Pt. 1224) 1 at 98- 99; Ugwa v. Lekwauwa [2010] 19 NWLR (pt. 1226) 26 at 47 – 48; Sha’Aban v. Sambo [2010] 19 NWLR (pt. 1226) 353 at 360-361, etc.”

[per Onnoghen, JSC, (as he then was); italics for emphasis]

In the same vein, M. D. Muhammad, JSC declared that:

“By the clear and unambiguous words of the provision of Section 246 (3) which makes the Court below the last port for any relief and its decision final as it were, there cannot be a further appeal against the lower Court’s decision. This Court has stated this much in very many decisions and there is no feature in the present case which makes departure from that position legally permissible. See; Onuaguluchi v. Ndu [2001] 7 NWLR (part 712) 309 at 327; Dingyadi v. INEC (No.1) [2010] 18 NWLR (part 1224) 1 at 98 – 99; Ugwa v. Lekwauwa (2010) 19 NWLR (part 1226) 26 at 47 and Sha’aban v. Sambo [2010] 19 NWLR (part 1226) 353 at 360 – 361.”

[page 10; A D; italics supplied for emphasis]

In Paragraph 4.27, page 21

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of the appellants brief, the Learned Senior Advocate spiritedly contended that “…the Court below was in grave error to hold as it did that it had no jurisdiction to hear and determine the case…”

Much as I sympathize with his position, and I must quickly add that the Law neither brooks sympathy nor empathy, Suleiman v. C. O.P. Plateau State [2008] 21 WRN 1, 13; Udosen v. State [2007] 4 NWLR (pt 1023) 125, 137; Ezeugo v Ohanyere [1978] 6- 7 SC 171; Oniah v Onyia [1989] 1 NWLR (pt 99) 514; Omole and Sons Ltd v Adeyemo [1994] 4 NWLR (pt 336) 48; The stark position is as this Court put in Okadigbo v. Emeka and Ors (2012) LPELR-7839 (SC) that:

“The lower Court is the final Court in the appeals arising from the National and State Houses of Assembly Election Petition Tribunal. Therefore, this Court lacks the jurisdiction to entertain such appeals vis-a-vis election petitions from the lower Court. It is the final Court in such matters whether rightly or wrongly decided.”

[pages 15-16; D-A; italics supplied for emphasis)

My Lords, the leading law reports deserve plaudits for diligently, accentuating the consistent posture of this Court on the

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question under consideration. Thus, counsel, whether senior or junior who decides to ignore the extant posture of this Court and wantonly irritates it [this Court] with the self-same question that has been answered in many decisions does so at his or her own peril.

As indicated earlier, the cases include:

Opara and Anor v Amadi (supra); Madumere v Okwara (supra); Okadigbo v Emeka and Ors (supra); Emordi v Igbeke (supra); Salik v Idris (supra); Dangana v Usman (supra); Onuaguluchi v Ndu and Ors (supra); Sulik v. Idris (supra); Jegede v Akande (supra); Dingyadi v. INEC (No.1) (supra); Ugwa v Lekwauwa (supra); Sha’aban v. Sambo (supra); Awuse v Odili (supra) etc.

Against this background therefore, I shall not only enter an order striking out this appeal; I am under a duty to damnify learned senior counsel for this ill-advised and ill-fated forensic trip to this rare judicial altitude where only serious questions of law ought to be canvassed.

Accordingly, I hereby award costs, assessed and fixed at N1,000,000 (One Million Naira) only in favour of the first and second respondents/objectors to be personally paid by senior counsel for the appellants.

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Appeal struck out.

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SC.167/2016