Hon. Sani Sha’aban & Anor. V. Alhaji Namadi Sambo & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

The Appellants/Applicants brought a Motion dated 15/5/2009 and filed on 22/5/2009 seeking the following reliefs.

1. An Order setting aside ex debito justiciae its own judgment delivered in Appeal No CA/K/EP/GOV/22/2008 on 6th March, 2009 (coram Bulkachuwa, Aboki, Belgore, Mukhtar and Ndukwe-Anyanwu, JJCA) for being a nullity.
2. On granting the Order above, an order relisting appeal before another panel of the Court of Appeal for hearing. And for any other Order or Orders as this Honorable Court may deem fit and proper in the circumstance.

The grounds upon which the application is brought are as follows:

(a) The said judgment is ultra vires the Court of Appeal under the Constitution and the Electoral Act

(b) The judgment of the Panel (coram Bulkachuwa, Aboki, Belgore, Mukhtar and Ndukwe-Anyanwu, JJCA) was delivered in a proceeding in breach of the rules of natural justice, the Panel having raised the issue of statute bar suo motu.

(c) The Panel of the Court of Appeal considered itself not bound by a Supreme Court decision (YUSUF v OBASANJO) 2003 16 NWLR (Pt. 847) 532 and the Interpretation Act submitted to it thus rendering the judgment illegal.

(d) The procedure adopted by this Honourable Court in the judgment delivered on 19th February said decision of the character of a legitimate adjudication.

The application is supported with a 19 paragraph affidavit which was sworn to by the 1st Applicant and the deposed to the following facts in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 as follows.

2. After the result of the Governorship election in Kaduna State was declared on the 15th April, 2007, we filed our petition against the declaration on 15th May, 2007.
3. In the course of the proceedings before the Petition Tribunal, the 1st Respondent filed an application challenging the jurisdiction of the Tribunal to hear the petition. One of the grounds of the application was that the petition was statute barred. The issue was not raised in the pleadings.
4. On 16/8/07 the Tribunal dismissed the entire application inclusive of both grounds
5. Sometime later in the proceedings the 1st Respondent filed another application challenging once again the competency of the petition. But on 22/10/07 this application was also dismissed on the basis inter alia of the statutory prohibition in paragraph 49(2) of the First Schedule to the Electoral Act, 2006. There was no appeal against either of the two rulings.
6. During the address of our counsel on 7/1/09 it was discovered that the paging of the record of appeal was not consistent. Consequently the Reply address was adjourned to 11/2/09 to enable the registry rectify the anomaly.
7. It was on this adjourned date for continuation that (sic) Appellant’s final address that the 1st Respondent once again brought up the issue of lack of jurisdiction on the ground of statute bar in a motion also seeking other reliefs. Our counsel opposed the reliefs for leave to raise the issue of statute-bar vehemently and the Court of Appeal ruled and struck out the prayer for statute-bar. A copy of that Ruling delivered on 11th February, 2009 is hereto exhibited and marked Exh “SA” The Presiding Justice Bulkachuwa, JCA delivered the ruling of the Court to which the others concurred.
8. After striking out the relief on statute-bar, the Court in that same ruling said it would raise the “issue” of the competence of the Tribunal to entertain the Petition suo motu, the same issue the right to raise which had been denied the 1st Respondent both in the Tribunal and by Exh ‘SA’.
9. After completion of final addresses by counsel on both sides in the substantive petition the Presiding Justice suo motu raised the issue of statute bar and called on counsel to address the court on the issue.
10. My counsel, in the course of the argument on statute bar raised suo motu by the Panel hearing our appeal, objected to the Court raising by itself an issue foreclosed by statute and a Tribunal decision against which there was (sic) appeal, against a party before it.
11. In-spite of our counsel’s vehement objection, and inspite of the fact that the Panel had infact denied the 1st Respondent leave to raise it by striking out the prayer on statute bar in Exh ‘SA’ the Panel went ahead to take address from counsel on the issue, and at the end dismissed our appeal based on the Panel’s decision that the petition was statute-barred The judgment of the Court dismissing the appeal hereto exhibited and marked Exh ‘SB’.
12. The Panel introduced its own case and decided it against us and in favour of the Respondents.
13. The Panel heard argument on the issue of statute-bar after argument on the substantive appeal had been concluded. The record of proceedings containing the record on 7/1/09 and 11/2/09 is hereto exhibited and marked Exh ‘SC’.
14. Our appeal against the dismissal of our petition has not been heard but has been dismissed.
15. I verily believe that the Panel consciously, deliberately and absolutely denied as (sic) a hearing of our appeal let alone a fair hearing. The Panel also refused expressly to be bound by the Supreme Court judgment submitted to it and the Interpretation Act.
16. My counsel had informed me by telephone about noon on 12/2/09 and I verily believed him that the issue of competence of a petition cannot be raised at the stage at which the Panel introduced it to scuttle the hearing of the appeal.
17. The Panel of the Court of Appeal that heard the appeal assumed the role of respondents in hearing the appeal and went beyond what the lawful respondents could have legitimately done.
18. The purpose of this application is to nullify, the judgment delivered by the Panel in CA/K/EP/GOV/22/2007 as having been delivered illegally and in breach of the rules of “natural justice.”

On the receipt of the Motion to set aside the judgment delivered on 6th March, 2009, the 1st Respondent brought a motion to dismiss the said application dated 15th May, 2009 and filed on 22nd May, 2009 The application was premised on the lack of jurisdiction and competence of the court to do so due to the finality of the said judgment under the provisions of Section 246(3) of the Constitution of the Federal Republic of Nigeria 1999, 1st Respondent also urged the court to dismiss the application because it was a gross abuse of the process of the court by virtue of the doctrines of res judicata and functus officio which robbed the court of jurisdiction and competence to entertain the application.

The 2nd and 3rd Respondents on their part filed Notice of Preliminary Objection to the hearing of the application based on the same reasons as the 1st Respondent. The Preliminary Objection was deemed abandoned since learned counsel for the 2nd & 3rd respondents neither filed a written address nor was counsel present in court on 10th February, 2010 when oral arguments were being proffered by the counsel to the parties despite being served with hearing notice.

Both the applicants and 1st Respondent filed to the two motions with the applicants filing; Respondent’s address. Learned counsel to the orally in application of their written addresses. The arguments on the two applications were written addresses.

The arguments on the two applications were taken together on the understanding that consideration of the motion challenging the jurisdiction of the court to set aside its final judgment will be given before proceeding to deal with the motion to set aside the judgment of 6th March, 2009.

Mr Toro, learned Senior Advocate of Nigeria adopted his address dated 8/6/09 and filed on 9/6/09 and, an oral application submitted that the Court of Appeal by virtue of S.246(3) of the Constitution of the Federal Republic of Nigeria, 1999, is wearing the clock of finality in Gubernatorial Election matters just as the Supreme Court and once it has delivered a final judgment it cannot turn around and sit on appeal over the same judgment or review it or set it aside and cited in RE DR ANDY UBA (2008) 7 NWLR (Pt.1085) 68 at 80. When an application was filed in respect of the judgment for a review, the Supreme Court struck out the application but when a further application was filed in respect of the same matter, the Supreme Court dismissed the application and referred to PETER OBI v. INEC & ORS in Appeal No SC 123/2007 delivered on 11/6/2009. He continued further that although this is the first time the applicant in the present application is urging this court to set aside its ruling, it is not the number of times that the application is made that matters before the court can dismiss the application.

Chief Ahamba, learned Senior Advocate for the Applicants in the substantive application also adopted his written address and argued that in considering the motion challenging the jurisdiction to set aside the judgment delivered on 6th March, the Court should not look at the merit of the substantive application. He argued by referring to page 8 paragraph 4 6 of the objector’s address that the objector conceded that under certain circumstances, this court can set aside its judgment. While it is the law that once a court gives a judgment, it becomes functus officio except where that judgment is conjectured to be a nullity.