Barrister Oriker Jev & Anor V. Sekav Dzua Iyortom & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This ruling is on a motion on Notice brought by the 1st Respondent/Applicant praying this court for the following orders:

“1. AN ORDER of the Honourable court to amend, correct and/or set aside the consequential order made by this Honourable court in its judgment of 30th May, 2014 pursuant to the provisions of Section 141 of the Electoral Act 2010 (as amended) to wit: that the 1st Respondent/Applicant stand for a fresh election with other candidates for the Buruku Federal Constituency of Benue State.

2. AN ORDER directing that the 1st Respondent/Applicant be immediately issued with the certificate of Return by the 2nd Respondent and sworn in as a member of the House of Representatives.
3. AN FOR SUCH FURTHER ORDER OR ORDERS as this Honourable court may deem fit to make in the circumstances.”

The grounds upon which the application is predicated are set out in the motion paper numbered 1 – 10 as follows:

1. This Honourable Court, on 30th May, 2014, delivered in this matter and dismissed in total, the appeal of the Appellants.
2. The two Lower Courts, in their judgment in

favour of the 1st Respondent/Applicant herein, ordered that the Respondent/Applicant should be sworn in as a member of the House of Representatives.

3. In the judgment of this Honourable Court of 30th May, 2014, this order was substituted, pursuant to the Provisions of Section 141 of the Electoral Act 2010 (as amended), to the effect that fresh elections should be conducted in which the name of the 1st Respondent/Applicant will be substituted for that of the 1st Appellant on the ballot papers.
4. After the delivery of the judgment of this Honourable Court, learned Lead Counsel to the 1st Respondent/Applicant, Yusuf Ali SAN, became aware of the judgment of the Federal High Court sitting in Abuja, Coram: G. O. Kolawole J., in SUIT NO: FHC/ABJ/CS/399/2011, delivered on 21st July, 2011, in which the provisions of Section 141 of the Electoral Act 2010 (as amended) was struck down and nullified.
5. The order of this Honourable court, directing that fresh elections be held was based on the annulled Section 141 of the Electoral Act.
6. The consequential order of this Honourable Court of 30th May, 2013, was made under the mistaken belief that Section

141 of the Electoral Act 2010 (as amended) was still extant and valid.

7. The judgment of the Federal High Court in SUIT NO: FHC/ABJ/CS/399/2011, is still extant and has not been set aside by any higher court.
8. This Honourable Court possesses the power ex debitio justitiae, to set aside the consequential order made in this matter and substitute thereof an order that meets the justice of the case.
9. None of the parties herein will be prejudiced by the grant of this application.
10. It is in the interest of justice, fairness and the development of the law that this application be granted.

In support of this application is a 15 paragraph affidavit deposed to by Alex Akoja; a legal practitioner in Yusuf Ali & Co, the Law Firm representing the 1st Respondent/Applicant case. Annexed to the affidavit are two exhibits. Exhibit 1 is the judgment of this court containing the consequential order sought to be amended or set aside while Exhibit 2 is the judgment of the Federal High Court which nullified Section 141 of the Electoral Act 2010 (as amended). When this matter first came up for hearing on 9th February, 2015, this Court directed

parties to file written addresses. The 1st Respondent/Applicant filed his written address on the 12th February, 2015 which was adopted and relied upon at the hearing of this motion on 23/2/15. The respondents have not opposed this application.

The background facts leading to the filing of the motion giving birth to this ruling are as encapsulated both in the grounds of this application and the affidavit in support. Having set out the grounds upon which the application is predicated, and in view of the fact that the facts deposed to in the affidavit are in tandem with the grounds, it may not be necessary to reproduce the affidavit again except as may be appropriate to make reference to in the course of this ruling, much more so, as there is no dispute as to the facts.

On page four of the written address of the Applicant, the learned senior Counsel, Yusuf Ali, SAN, who represents the applicant, has formulated one issue for consideration. It states:

“Whether in view of the facts and circumstances of this application and given the provisions of Section 22 of the Supreme Court Act and Order 8 Rule 16 of the Supreme Court Rules 1999 (as amended), the

reliefs in the application ought not be granted.”

In his argument, learned senior Counsel submitted that a combined reading of Section 22 of the Supreme Court Act and Order 8 Rule 16 of the Supreme Court Rules 1999 (as amended) empowers this court in certain circumstances to review its judgments, notwithstanding the finality of its judgments. Also, that by virtue of Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), there is an inherent power in the Supreme Court to grant the prayers of the applicant. On the grounds upon which the Supreme Court may review its judgment the learned senior Counsel cited the following cases:

Alao v. ACB Ltd (2000) 9 NWLR (Pt.672) 264,