Alhaji Muhammadu Maigari Dingyadi & Anor V. Independent National Electoral Commission & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C

On the 1st of March 2011, the applicants, Alhaji Muhammadu Maigari Dingyadi and Democratic Peoples Party, through their counsel, learned senior Advocate, Chief Olujinmi moved the application filed on 17th of December 2010 praying for an order of this court as follows: –

“Setting aside the portion or part of the judgment of the court delivered on 26th day of November, 2010 dismissing Appeal No. CA/S/EP/Gov/10/09 pending before the Court of Appeal Sokoto on the ground of abuse of court process.”

The grounds of the application are: –

1. The only way the Supreme Court can entertain a matter is by way of an appeal to it from the decision of the Court of Appeal in specified circumstances under the Constitution of the Federal Republic of Nigeria 1999.
2. There was no such appeal.
3. Appeal No. CA/S/EP/Gov/10/09 was not before this court and this court could not have exercised any jurisdiction on same.
4. Appeal No. CA/S/EP/Gov/10/09 concerned an election petition challenging the Governorship election held in Sokoto in 2008.
5. The Supreme Court has no jurisdiction to deal with any gubernatorial election appeal as by Section 246 (3) of the Constitution of the Federal Republic of Nigeria, 1999, the court of Appeal is the final court in such appeals.
6. The order under reference was made in breach and violation of Section 233 (1) and 246 (3) of the constitution of the Federal Republic of Nigeria 1999.
7. It is the Constitution of the Federal Republic of Nigeria, 1999 and not the Supreme Court Act that governs the jurisdiction of the Supreme Court in Gubernatorial Election Matters.
8. This Honourable Court has consistently held both before and after the decision in this case that the Supreme Court has no jurisdiction to adjudicate on or entertain an election Petition Appeal in respect of Governorship Election even if there is an issue of jurisdiction as held in Appeal No. SC/143/2010 between Hon. Sunday Ugwa & Anor v. Hon. Oji Lekwauwa & ors (unreported) delivered on 3rd day of December 2010.
9. A court that has made an order without jurisdiction, the same is a nullity and the same court has jurisdiction to set aside that order.
10. Supreme Court authorities exist to the effect that both pre and post election matters can be pursued concurrently and
11. The application raises a fundamental issue of jurisdiction.

The application is supported by an affidavit of forty-five paragraphs and three exhibits marked as A, B and C. The applicants filed a joint brief of arguments in support of the application on 30/12/10 and a Reply to the Briefs of arguments of the respondents on the applicants’ application filed on 21/21/11.

The learned senior counsel, Chief Olujinmi adopted the foregoing documents and relied on them to urge this court to grant this application. He outlined a summary of the facts relied upon by the applicants as may be gathered from the 45 paragraphs affidavit in support. He proceeded to identify the central issue raised by this application as whether by the combined effect of Sections 233 and 246 (3) of the 1999 Constitution and Section 22 of the Supreme Court Act this court had jurisdiction to dismiss Appeal No. CA/S/EP/Gov/10/09 which was pending before the Court of Appeal, Sokoto. He emphasized that when this court dismissed the appellants’ appeal after withdrawal in the judgment, Exh. A delivered on the 26tn of November 2010, there was no appeal before it to make a consequential order.

The next step after such dismissal was to proceed to make order as to costs and no order could be made as there was no decision on the merits in the matter. He cited the case of Akinbobola v. Plisson Fisco (Nig.) Ltd. 1991 1 NWLR pt.167 pg.270 at pg.284 C-G to buttress the foregoing submission. He submitted that this court has no power to dismiss Sokoto appeal as constituting an abuse of court process – as such pronouncement can only be made in respect of matters strictly before it. Sokoto Appeal was not an appeal before this court on which Section 22 of the Supreme Court Act can be predicated. Sokoto appeal was referred to in the judgment of this court delivered on 4/6/10 Exh. C as an election petition, whereupon the Court of Appeal is the final court by virtue of Section 246 (3) of the 1999 Constitution – the 3rd respondent was wrong to have categorized the Sokoto Appeal as a pre-election matter. The court can grant this application as it is within the ambit of which this court can exercise its discretion to set aside particularly that portion of the judgment of this court delivered on the 26th of November 2010 dismissing Appeal No. CA/S/EP/Gov/10/09 pending before the Court of Appeal, Sokoto on the ground that the order of dismissal was made precisely –

a. Without jurisdiction which makes it a nullity.

b. The procedure adopted leading to the dismissal of the appeal deprived the decision of the character of a legitimate adjudication.

The learned Senior Counsel fully considered the issues and the legal points raised in this application in the Applicants’ brief of Arguments filed on 30/12/10, like (a) jurisdiction and when a court is presumed competent, (b) appropriated cases when this court possesses inherent power to set aside its judgment. He supported his contention with plethora of the decisions of this court as follows –

Oduko v. Government of Ebonyi State (2009) 9 NWLR (pt.1147) pg.439 at page 452.

Madukolu v. Nkemdilim & ors (1962)2 SCNLR 341 at pgs. 589-590.

Umenweluaka v. Ezeana (1972) 5SC 343.

Our Line Ltd. V. SCC (Nig.) Ltd (2009) 17 NWLR (pt.1170) pg.382 at pg. 404.