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,

Ede v. Mba (2011) 18 NWLR (Pt 1276) 236,

Ojiako v. Ogueze (1962) 11 All NLR 58, and

Igwe v. Kalu (2002) 14 NWLR (Pt.787) 435 at 453.

Learned Silk submitted further that the basis of the refusal of the Supreme Court in declaring the applicant as the winner of the said election was exclusively on the provision of Section 141 of the Electoral Act 2010 (as amended) whereas the Federal High Court in Suit No: FHC/ABJ/CSI/2011 between the

Labour Party v. Hon. Attorney General of the Federation (Exhibit 2) delivered on 21st July, 2011 had annulled the said provision. According to him, Section 141 of the Electoral Act (supra) has been completely wiped out of the Electoral Act by the said judgment of the Federal High Court. He opined that the Supreme Court in its judgment in Exhibit 1 was obviously oblivious of the fact of the nullification and obliteration of the provision of Section 141 of the Electoral Act upon which the consequential relief ordering a fresh election was hinged.

It is his further submission that given this factual situation, and in view of the fact that courts exist for justice, this court is urged upon to correct the error varying the consequential order for fresh election with an order swearing in the applicant herein as the member representing Buruku Federal Constituency of Benue State. He cited the cases of Amaechi v. INEC (2008) All FWLR (Pt 407) 1, Odedo v. INEC (2009) All FWLR (Pt 449) 844 and Inakoju v. Adeleke (2007) All FWLR (Pt 353) 3 at 203.

Relying on Amaechi v. INEC (supra) and other cases decided by this Court on the issue, he urged this court not to

deviate from its previous decision on the matter. He urged the court to grant this application.

Let me state clearly from the outset that by virtue of Section 235 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Supreme Court cannot sit on appeal over its own judgment. The provision gives a stamp of finality to any decision of the Supreme Court. There is no constitutional provision for the review of the judgment of the Supreme Court by itself or any other body. And that is without prejudice to the powers of the President or of the Governor of a state with respect to prerogative of mercy. See Eleazor Obioha v. Innocent Ibero & Anor (1994) 1 NWLR (Pt 322) 503.

Be that as it may, it has been held by this court in several decided cases that the Supreme Court possesses inherent power to set aside its judgment in appropriate or deserving cases but that such inherent jurisdiction cannot be converted into an appellate jurisdiction as though the matter before it is another appeal, intended to afford the losing litigants yet another opportunity to re-state or re- argue their appeal.

In Chief Kalu Igwe & 2 Ors v. Chief

Onwuka Kalu and 3 Ors (2002) 14 NWLR (Pt.787) 435 at 453 paragraphs F – H and page 454 paragraphs A – C, this court, per Ogwuegbu, JSC held as follows:

“I shall state that this Court possess inherent power to set aside its judgment in appropriate cases. Such cases are as follows:

(i) When the judgment is obtained by fraud or deceit either in the court or of one or more of the parties such a judgment can be impeached or set aside by means of an action which may be brought without leave. See Alaka v. Adekunle (1959) 6 Ch. D 297, Olufunmise v. Falana (1990) 3 NWLR (Pt.136) 1.

(ii) When the judgment is a nullity. A person affected by an order of court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. See Skenconsult Ltd. v. Ukey (1981) 1 SC 6, Craig v. Kansen (1943) KB 256 and 263, Ojiako & Ors v. Ogueze & Ors (1962) 1 NCNLR 112, (1962) 1 All NLR 58, Okafor & Ors v. Anambra State & Ors (1991) 6 NWLR (Pt.200) 659 at 680

(iii) When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade v. Oku-noga & Co

(1961) All NLR 110 and Obimonure v. Erinosho (2000) 2 NWLR (Pt.643) 14.”

Under Order 8 Rule 16 of the Supreme Court Rules, this court is also imbued with power, in appropriate cases to vary its judgment. It states:

“The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted.”

The above provision is very clear. Courts of law are set up to do substantial justice to parties who appear before them. Therefore, where a court makes an order in its judgment which does not fully represent its meaning and for intention, the court is allowed to vary the said order in order to give effect to the judgment delivered. There could be a situation where the court has made clerical mistake or some error arising from any accidental slip or omission. In such circumstance, the court is in good

position to correct such obvious mistake in order not to enthrone injustice and pain on the affected party. That is the intendment and purport of Order 8 Rule 16 of the Rules of this Court. See Obioha v. Ibero (1994) 1 NWLR (Pt 392) 503 and Odofin v. Olabanjo (1996) 3 NWLR (Pt 435) 126.

There is no doubt that this court made a decision in appeal No. SC.164/2012 decided on 30th May, 2014. In that judgment, this court made three consequential orders, one of which was that the 2nd Respondent ie INEC should conduct fresh election into the vacant seat of Buruku Federal Constituency of Benue State in the House of Representatives within three months (90 days) with the first respondent/applicant as the candidate of All Progressives Congress.

The basis for that consequential order was Section 141 of the Electoral Act 2010 (as amended) which states:

“An election tribunal or court shall not under any circumstances declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.”

With due deference to the submission of the learned senior Counsel for the applicant in this case, I wish

to put on hold my opinion on the part of his argument relating to and touching the judgment of the Federal High Court (Exhibit 2) which I hope to speak at an opportune time. But having a closer look at Section 141 of the Electoral Act reproduced above, it is quite clear that the said section refers to some courts for which the Supreme Court is not part of. Section 133(2) of the Electoral Act 2010 (as amended) which define “tribunal or court” in Section 141 thereof states:

“(2) In this part, “tribunal or court” means:

(a) In the case of Presidential election, the Court of Appeal and

(b) In the case of any other elections under this Act the election tribunal established under the constitution or by this Act.”

Thus, this court not being one of the court mentioned in Section 133(2) of the Electoral Act is not one of the courts to which Section 141 regulates. This is much more so since the issue for consideration was not an election petition appeal but a pre-election matter. In appropriate cases, this court has exercised its Power to order successful litigants to be sworn in immediately without the rigour of having to go through another

election. The applicant herein should not be an exception. See Amaechi v. INEC (2008) All FWLR (Pt.407) 1, Orhena Adugu Gbileve & Anor v. Mrs. Ngunan Addingi & Anor Appeal No. SC. 193/2012 delivered on 31st January, 2014, Jenkins Giane Divine Gwende v. INEC & 3 Ors, Appeal No. SC.255/2013 delivered on 24th October, 2014.

Clearly, the definition of “tribunal or court” does not include the Supreme Court or the Federal High Court hearing and determining pre – election matters. It is trite law and an unassailable legal principle that the express and unambiguous mention of one thing in a statutory provision, automatically excludes any other which otherwise would have applied by implication with regard to the same subject matter. This is usually captured in the Latin maxim which states “Expressio unis est exclusio alterus.”

See Ogbuanyinya v. Okudo (1979) 6-9 SC 32, PDP v. INEC (1999) 11 NWLR (Pt.626) 200, Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446.

On the whole, it is my well considered opinion that this application is meritorious and is hereby granted as prayed. Accordingly, the consequential order No 2 made in the judgment of this court in

appeal No. SC.164/2012 delivered on 30th May, 2014 which ordered the Independent National Electoral Commission (INEC) to conduct fresh election into the vacant seat of Buruku Federal Constituency of Benue state in the House of Representatives is hereby set aside.

In its place, I hereby make the following orders:

1. The Independent National Electoral Commission is hereby ordered to issue certificate of return to the first Respondent/Applicant, Sekav Dzua Iyortom forthwith.
2. It is further ordered that the applicant herein, Sekav Dzua Iyortom be immediately sworn in into the House of Representatives as the member representing Buruku Federal Constituency of Benue State. The Speaker of the House of Representatives and the Clerk of the National Assembly shall ensure that this order is carried out with immediate effect. I shall make no order as to costs.

SC.164/2012(R)