Hon. John Obafemi & Anor. V. Peoples Democratic Party (PDP) & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Ruling)

The application is to set aside the judgment of this Court delivered on the 19th day of December, 2011 and the reasons given on the 24th day of February 2012 as same is null and void. The application was brought pursuant to Order 7 Rule 1 of the Court of Appeal Rules, 2011 and under the Inherent Jurisdiction of this Court.

The grounds for the relief sought are as follows:

“1. The lower Tribunal delivered judgment in the election petition filed jointly by the 1st and 2nd Respondents on the 9th day of November 2011.

2. Being dissatisfied with the judgment of the Tribunal, the Appellants appealed to this Honourable Court via a Notice of Appeal dated of November (sic) 2011.
3. On the 19th of December 2011, this Honourable Court delivered judgment in which it allowed the Appeal and reserved reasons to a later date.
4. The reasons for the judgment of this Honourable Court was finally given on the 24th of February 2012, a period of 107 days after the judgment of the lower Tribunal appealed against was delivered.
5. The said judgment of this Honourable Court is in the light of the provisions of Section 285(7) of the 1999 Constitution of the Federal Republic of Nigeria as amended null and void, same having been delivered within a period of more than 60 days after the judgment of the lower Tribunal complained about by the Appellants.
6. This Honourable Court has the inherent power to set aside its judgment that is null and void.”

In support of the application was a ten paragraph affidavit deposed to by Douglas Daniels, a litigation officer in the firm of the solicitors to the Applicants and a further affidavit of four paragraphs deposed to by Chinedu Mbata also a litigation officer in the same firm.

The application was opposed by the 1st and 2nd Respondents who filed a joint Counter-Affidavit of twenty (20) paragraphs deposed to by the 1st Respondent Hon. John Obafemi, a Legislator/Politician. The 3rd Respondent, also filed a Counter-Affidavit of twelve (12) paragraphs deposed to by one Gabriel Onojasan, a legal practitioner, then Counsel to the 3rd Respondent.

In moving the application the learned Counsel to the Applicants Mrs. Ifeoma Esom submitted that the judgment of this Court of 19/12/11, Exhibit ‘A’ annexed to the further affidavit (the reasons for the judgment Exhibit ‘B’ delivered on 24/2/12) is null and void the reasons having been given 107 days after the period allowed by S.285(7) of the 1999 Constitution as amended.

It was submitted that this Court is the last Court in respect of the State House of Assembly matters and that for this reason this Court could deliver judgment and give reasons later pursuant to Section 285(8) of the 1999 Constitution as amended. It was the contention of learned Counsel that the judgment and reasons must be given within a period of 60 days. Reference was made to the Apex Court’s consolidated appeal No. SC14A/12, SC14B/12 and SC14C/12 delivered in the case of ABUBAKAR & ORS. V. INEC & ORS. on 24/2/2012., particularly Odili, JSC at page 16 also the Supreme Court decision of P.D.P. V. CHIEF ARAYO OKOROCHA, Appeal No. SC/17/2012 delivered on 2/3/12. We were urged to set aside the judgment of this Court.

In response the learned Senior Counsel Professor Taiwo Osipitan (SAN) appearing with O. J. Akinwale Esq. for the 1st and 2nd Respondent in opposing the application relied on his twenty (20) paragraph affidavit, deposed to by the 1st Respondent, particularly paragraphs 9-13. It was argued that the decision sought to be impeached is a final decision of a final court, see Section 246 of the 1999 Constitution, of the Federal Republic of Nigeria as amended (hereafter referred to as the Constitution). It was submitted that Section 246 should be read with Section 285(7), (8) of the Constitution as amended.

Further, that this being a final Court, although Section 285(8) shows that judgment and reasons should be given within 60 days but Section 285(8) creates an exception, the Court in all final decisions could give decision and give reasons later.

It was the contention of the learned Senior Counsel that this Court could pronounce judgment and give reasons later with no time limit. It was argued that if there was to be a limit, the above provision would have said so, unlike Section 287 that specifically provided that reasons be given within 60 days which is time bound. It was submitted that there is no time limit in respect of Section 285(8). Further, that the Applicants’ contention is applicable in cases where this Court is an intermediate Court in which time is of the essence where judgment and reasons must be given within sixty (60) days, It was argued that the cases cited and relied upon by the Applicants’ counsel are distinguishable in that this Court was an intermediate Court, reference was made to the following cases: IKENYA V. PDP (2012) 12 NWLR PT. 1314, PAGE 493 at 507 paragraph D, page 508 paragraph A at 513 at E-G, 515 E-H, Rhodes-Vivour, JSC, GREAT OGBORU V. UDUAGHAN delivered on 2/3/12 at 20-21, I.T. Muhammed, JSC., we were urged to distinguish the two situations.

In reply on points of raw, the learned Counsel to the Applicants referred to the decision of Ngwuta, JSC at page 7, in PDP VS. OKOROCHA (supra) to the effect that even if the Court of Appeal is the final Court, the Court is still bound to comply with Section 285(7) of the Constitution (supra) as to time. It was argued that the contention that Section 285(8) is not time bound will not apply. In Abubakar’s case (supra) page 16, per Odili, JSC was referred to.

It was submitted finally that on this Court being functus officio, it is not arguable when it relates to a null and void judgment. Reference was made to the case of MENAKAYA V. MENAKAYA (2001) 16 NWLR (PT.738) P.203 at 263. We were urged to grant the application.

It is apt to start with the provisions of Section 285(7) and (8) of the Constitution as amended at this point, which provides thus: