National Electoral Commission & Anor V. Chief F.A. Nzeribe (1991)

LawGlobal-Hub Lead Judgment Report

AWOGU, J.C.A.

This appeal is against the exercise of jurisdiction, and calls into question, once again, the extent to which ouster clauses in Decrees also oust the supervisory jurisdiction of our superior courts of record.

The facts of the case are not seriously in dispute. In 1988, Chief Nzeribe went to the 1st defendant for clearance under Section 4 of Decree No.25 of 1987. The 1st defendant/appellant (hereinafter referred to as the Commission) disqualified him from participation in politics. He appealed to the Transition to Civil Rule Tribunal (hereinafter referred to as the Tribunal) which decided on 19th May, 1989, as follows:

“In view of the foregoing, we make an order setting aside the decision of the National Electoral Commission that the appellant, Chief Francis Arthur Nieribe was a person disqualified from seeking election to public office by virtue of the ‘Participation in Politics (Prohibition) Decree No. 25 of 1987. However, we want to make it clear that our decision is solely and entirely based on evidence before us. It is without prejudice to the Constitution of the Nigerian Peoples Party (NPP) of 1979 which was lodged with the defunct FEDECO. This NPP Constitution of 1979 was not produced before us. Therefore we cannot and we have not made any pronouncement on it”

In 1989, Chief Nzeribe made another application to the Commission for a fresh determination of his status under Decree 25 of 1987. By an Instrument dated 3rd July, 1989, (Exh. A), he was again declared as disqualified from participation in politics. He made a return trip to the Tribunal for a review of the decision. The application sought for an order (i) setting aside the decision of NEC that the applicant was a person disqualified from seeking election to a public office, (ii) giving such directions as may be just for the purpose of trying any disputed facts in this cause, and (iii) for such further or other orders as this Tribunal may deem fit to make. It was dated 24th July, 1989. There was a 4- paragraph affidavit in support, stating, inter alia:

“2. On 21st of April, 1989 I applied to the above named Respondent for a determination as to whether I am a person affected by the Participation in Politics and Elections (Prohibition) Decree 1987 No.25. I received a reply, a copy of which is now shown to me and marked Exhibit A.

3. Now shown to me and marked Exh. B is a true copy of a previous decision in proceedings between me and the above named Respondent last year.
4. I did not between the period 1st October, 1960 to 15th January, 1966 and 1st October, 1979 to 30th December, 1983 hold any of the offices specified in Part 1 of Schedule 2 to the Participation in Politics and Elections (Prohibition) Decree 1987 No. 25.”

The Commission filed a counter-affidavit, the last two paragraphs of which stated as follows:

“11. That I was told by the Secretary to the Respondent and I verily believed him that between 1979 and 1983 the Applicant was a member of the proscribed NPP and between October and December 1983 was a Senator elected on the platform of the said NPP.

12. That the Secretary to the Respondent told me and I verily believed him that by virtue of the NPP Constitution 1980, then in force the Applicant was a member of the Imo State Executive Committee of the said NPP.”

With the stage thus set, the Plaintiff/Respondent told the story of what transpired at the tribunal. According to his affidavit in support of the originating summons:-

“9. The said application came before the tribunal on the 10th day of August 1989 and my case was concluded on that same day. The National Electoral Commission was however not able to conclude its own case until later and final addresses were delivered by counsel for the commission on 6/9/89 and by my own counsel on 7/9/89 and 8/9/89. The Tribunal then reserved its judgment for Monday, 18th of September, 1989.

On the 18th September, 1989 what happened was narrated as follows by the Tribunal at page 23 of its judgment which was delivered on the 18th day of October, 1989 and which reads as follows:-

“After the last adjournment, as we resumed on Monday 18th September, 1989, we called on both counsel for the parties to call additional witnesses and address us on the status of the Petitioner while he was in the Senate. Chief Williams objected to that. We overruled him and gave our reasons.”

Now shown to me and marked Exhibit 5 is a true copy of the said judgment”

By the said judgment, Exhibit 5 the Tribunal upheld the disqualification of the Plaintiff/Respondent.

On the 7th of November, 1989, the Plaintiff, now Respondent, took out an originating summons at the High Court of Lagos and claimed as follows against the Defendant:-

“(i) A declaration that the Transition to Civil Rule (Political Programme) Tribunal had no jurisdiction to have proceeded with or to have delivered any decision in the application for a review of a declaration dated 3rd July 1983 and made by the 1st Defendant pursuant to its powers under Decree 1987 No.25 at the instance of the plaintiff.

(ii) A declaration that the decision of the aforementioned Tribunal dated 19th May, 1988 is final and binding.

(iii) A declaration that having regard to –

(a) the jurisdiction conferred on the 1st Defendant by Decree 1987 No. 25

and

(b) the decision of the aforementioned Tribunal referred to in Claim (ii) hereof

the only question which the 1st Defendant had jurisdiction to consider and determine on the plaintiffs application to it in June 1989 under Section 4 of Decree 1987 No.25 was as follows:-

“Whether the Plaintiff is a person affected by Decree 1987 No. 25 as a result of anything contained in “the Constitution of the Nigerian Peoples Party (NPP) of 1979 which was lodged with the defunct FEDECO.”

(iv) A declaration that the determination made by the aforementioned Tribunal in its decision dated 19/5/88 to the effect that the Plaintiff had by his conduct in being sworn in as a Senator of the National Assembly under the 1979 Constitution repudiated his resignation from the Nigerian Peoples Party (NPP) is unconstitutional, wrong in law and null and void and not binding.

(v) A declaration that the decision of the 1st Defendant dated 3rd July, 1989 given pursuant to its powers under Decree 1987 No.25 on an application to it by the Plaintiff in June 1989 was –

(a) contrary to the rules of natural justice and/or made in contravention of the rights of the Plaintiff under Section 33 of the 1979 Constitution.

and

(b) in any case a decision which the 1st Defendant had no power to make.

and was accordingly null and void and of no legal consequences.

(vi) A declaration that a statement communicated to the Plaintiff by the 1st Defendant in a letter dated 31st August 1989 and captioned:-

“A DECLARATION UNDER THE PARTICIPATION IN POLITICS AND ELECTION (PROHIBITION) DECREE NO.25 OF 1989.”

is ultra vires, illegal and devoid of any legal consequence.

(vii) A perpetual injunction restraining the 1st Defendant whether by itself, or any of its officers, servants or agents whomsoever from giving effect or taking any steps to give effect to the letter mentioned in paragraph (vi) hereof or otherwise treating the Plaintiff as a person affected by Decree 1987 No.25 on the ground that he was adjudged or allegedly adjudged bankrupt in the High Court of Justice in June 1986.

(viii) A declaration that upon submission to it of an application pursuant to the provisions of Section 4 of Decree 1987 No.25, the 1st Defendant is bound to entertain the same and deal with it by answering the question set out in paragraph (iii) hereof.

(ix) An injunction restraining the 1st Defendant whether by itself or its servants or agents from dealing with any application that may hereafter be submitted to it by the Plaintiff otherwise than in accordance with the declaratory order made in that behalf in this action.”

Following this, the Defendants/Appellants brought a motion dated 13th November, 1989 for an order to strike out the suit on the ground tha the High Court had no jurisdiction to entertain the action. After hearing argument on the issue, Adeyinka, J. said (see Exh. A, page 5):

“The decision of the Transition to Civil Rule Tribunal delivered on the 18th October, 1989 that the decision of the National Electoral Commission of 3rd July, 1989, was right and correct that Chief Francis Arthur Nzeribe was a person disqualified under the Participation in Politics and Elections (Prohibition) Decree No. 25 of 1987 is a nullity. This Court therefore has jurisdiction to entertain this Originating Summons. The defendants’ application fails and is hereby dismissed.”

Dissatisfied with the Ruling, the Defendants/Appellants have appealed against it to this Court and on the following grounds:

(i) The learned trial Judge erred in law in declaring the decision of the Transition to Civil Rule Tribunal delivered on the 18th October 1989 that the decision of the National Electoral Commission of 3rd July 1989 was right and correct that Chief Francis Arthur Nzeribe was a person disqualified under the Participation in Politics and Elections (Prohibition) Decree No.25.

PARTICULARS OF ERROR

That court lacks the jurisdiction to so declare.

(ii) The learned trial Judge erred in law in entertaining matters committed solely to the National Electoral Commission and the Transition to Civil Rule Tribunal.

PARTICULARS OF ERROR

Please see the Provisions of Sections 4 to 7 of the Participation in Politics and Elections (Prohibition) Decree No.25 of 1987. The trial judge in effect assumed an appellate jurisdiction without an enabling law.

(iii) The learned trial Judge erred in law in applying the letter and spirit of Section 258(1) of the Constitution of 1979 (now amended) to the interpretation of Section 5(1) of the Participation in Politics and Elections (Prohibition) Decree No.25 of 1987.

PARTICULARS OF ERROR

The purpose and intendments of both provisions are different.

(iv) The learned trial Judge was in error in holding that he has jurisdiction to entertain the respondent’s Originating Summons.

PARTICULARS OF ERROR

Under Sections 4 to 7 of the Participation in Politics and Elections (Prohibition) Decree No.25 of 1987 the learned trial Judge’s jurisdiction is effectively excluded.”

Following the filing of the Brief of the 2nd Defendant/Appellant on the 10th of January, 1991, Chief Nzeribe filed a Motion for an order:

(i) directing that the appeal shall proceed on the Brief filed and served by or on behalf of the Attorney-General of the Federation whether or not any Brief has been filed on behalf of the National Electoral Commission;

(ii) directing that the Brief filed by the Attorney-General shall be treated as the joint Brief of the Appellants.

The affidavit in support of the motion showed that only the 2nd Defendant/Appellant filed a Notice of Appeal and that Counsel for the 2nd Defendant/Appellant also represented the 1st Defendant/Appellant in this Court.

The affidavit then concluded:

“8. To the best of my knowledge, information and belief, the present attempt to introduce separate representation is calculated to delay the appeal so that even if the plaintiff succeeds, his success will be of no practical value to him.”

Attached to the affidavit was a letter dated 14/1/91 in which Counsel for the Plaintiff/Respondent said:

“I have checked the Court of Appeal Rules applicable to the filing of Briefs by more than one appellant In this regard Order 7 rule 6 provides as follows:

“All parties whose interests are identical or joint shall file joint briefs and separate briefs may be filed only by those parties whose interests are separate or in conflict.”

It would appear that Chief Nzeribe’s counsel anticipated what was forth-coming for, as he asked in the same Exhibit:-

“Having regard to the above rule I do not understand how you or Alhaji Salman can contemplate the possibility of filing separate briefs in the circumstances of this case.”

Indeed, as suspected or expected, Alhaji Salman, S.A.N., made an application on behalf of the 1st Defendant/ Appellant for.-

“1. Leave of the Court for the extension of time within which to file the applicant’s brief of argument.

2. Leave for the extension of time to file the Brief.
3. Deem the attached Brief as properly filed.”

Although Chief Williams did not oppose the application at the hearing, he drew our attention to Order 7 Rule 6 (supra) and left it to the Court to decide whether or not to allow the separate Brief for the 1st Appellant. While the Rules of this Court prohibit the granting of the application, prudence dictated that we allow it, the more so as the Brief was not urging anything different, and the Applicant could, under our Rules also, have been heard orally in support of the said arguments. We accordingly allowed the application and Alhaji Salman was heard on behalf of the 1st Defendant/Respondent.

The 1st Appellant set out the following issues for determination”

Whether the Tribunal’s decision of 18/10/89 was not within time prescribed by Decree No.25 of 1987 and therefore a nullity, and whether the High Court of Lagos had jurisdiction to make the pronouncement.”

According to the 2nd Appellant, the issues for determination were as follows:-

“1. Is the jurisdiction of the Lagos State High Court to entertain matters committed to both the National Electoral Commission and the Transition to Civil Rule Tribunal by Sections 4-5 of the Participation in Politics and Elections (Prohibition) Decree No.25 of 1987 effectively ousted by Sections 6 & 7 of the said Decree No. 25 of 1987;

2. Does the Lagos State High Court possess the competence to declare the judgment of the Transition to Civil Rule Tribunal a nullity?
3. Was the said judgment of the Transition to Civil Rule Tribunal a nullity?”

The Respondent put the questions for determination as follows:-

“(i) Whether the High Court has jurisdiction to pronounce a judgment or order of the Civil Rule Tribunal a nullity?

(ii) Whether any of the provisions of Decree 25 has ousted the jurisdiction of the High Court to entertain the claims of the plaintiff in his action against the defendants.”

Alhaji Salman, S.A.N., for 1st Appellant relied on his brief. He relied heavily on Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688. He also submitted that the decision of the Tribunal was within 30 days allowed by law and that even if it was not, (which he did not concede) the delay had not occasioned any injustice to the Respondent. He urged the Court to allow the appeal.

Prince Bola Ajibola, S.A.N., the Federal Attorney-General, argued on behalf of the 2nd Defendant/Appellant. He said that he now bowed to the position taken by the courts in this country that it was no longer sufficient to wave a Decree with an ouster clause and thereby put the courts to flight. He submitted also that the law in Nigeria was not that once a decision was a nullity the courts can enquire into it, any ouster clause of jurisdiction notwithstanding. In view of the provisions of Sections 4 and 5 of Decree No.25 of 1987 he submitted that the Tribunal was an Appellate Court and contended that though called a Tribunal, it was not inferior, but parallel to the High Court. As a result, the High Court had no supervisory jurisdiction over the Tribunal. This being so, the Respondents should have gone back to the Tribunal to challenge the nullity. He cited in support Barclays Bank Nig. Ltd. v. Central Bank of Nig. Ltd. (1976) 6 S.C. 175 at 193-4; Adegoke Motors Ltd. v. Adesanya (1989) 3 N.W.L.R. (Pt.109) 250 at 273; Fawehinmi v. Attorney-General of Lagos State (No.1) (1989) 3 NWLR (Pt. 112), 107 at 724. He said that this was the intendment of Section 5(iv) of the Decree. He referred to Section 5 of Decree 1 of 1984 and Section 1 of Decree 13 of 1984, which were the predecessors of Decree 25 of 1987. He submitted that once the court made an enquiry and found a case made for ouster of jurisdiction, it ought not to go further. He cited Moore v. Tayee (1934) 2 WACA 43 at 45 and N.U.J. v. Attorney-General of the Federation (1986) N.R.C. 1 at 12. He said that looking at the decision itself, the learned Judge went too far in pronouncing it to be a nullity when the challenge before him was that he had no jurisdiction to try the matter. He urged the Court not to support such a decision which was, as it were, a final judgment. He also submitted that the decision of the Tribunal was within the 30 days allowed by law.

Chief Williams, S.A.N., for the Respondent adopted his brief as well as his supplementary brief. He said that the Respondent did not complain that the decision to remove him was a nullity, as in Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt.135) 688. The complaint of the Respondent was that the decision of the Tribunal was not a determination under Decree No. 25 of 1987. He referred to Exhibit 2 issued by the Commission and submitted that the Respondent was not heard before it was issued. When the case for the parties closed, the Tribunal reserved judgment for 18/9/89. Instead of delivering judgment on that date, it proceeded to call for additional evidence and later delivered its judgment on 18/10/89, which was more than 30 days after the close of addresses by counsel and the reservation of judgment. For this reason, he submitted that the judgment could not be a determination under Section 5 of Decree 25 of 1987 which stipulated 30 days for the delivery of judgment. He submitted that when the Tribunal, after reserving its judgment on 18/9/89, introduced the question of the 1979 Constitution of the Nigerian Peoples Party, the Respondent objected that it was the wrong question and that by pursuing it the Tribunal came to the wrong answer, having regard to the claim before it. He submitted that a Tribunal no matter how highly favoured was not a superior court of record in Nigeria, having regard to Sections 6(5)(h) and 236 of the 1979 Constitution and, as a result, the High Court has a supervisory jurisdiction over such Tribunal.

Referring to the issue of nullity, he cited many authorities to show that once a decision was a nullity the High Court could so declare it or else the rule of law would be at an end. He also referred to parallel provisions for ouster of jurisdiction in the Commonwealth countries. He cited The Queen v. The District Officer (1961) 1 All NLR, 51 at 58; (1961) 1 SCNLR 83 where Ademola, C.J.F., stated that the High Court had an inherent power to control inferior tribunals in a supervisory capacity. He referred to his supplementary brief and submitted that this Court ought not at this stage to determine whether or not the decision of the Tribunal was wrong or right, being a nullity. This Court, he said, should say no more than, having come to the conclusion that the decision was a nullity, the High Court was right in saying that it had jurisdiction, and the issue should then be left to the High Court to try.

Since the advent of military rule in Nigeria, the ouster of the jurisdiction of the courts by Decrees and Edicts, has remained a perennial question. In the eyes of the layman, such ouster clauses proclaim the impotence of the judiciary, and the pusillanimity of judicial officers. Even as late as October 12, 1989, an erudite scholar and Senior Advocate, Chief Fani Kayode, in his Amicus Curiae (see Daily Times. page 22), urged the courts to put ouster clauses in their proper place in our judicial system. For this reason, it becomes necessary, albeit briefly, to put in proper perspective, the position of the judiciary in this matter. Throughout the life of the law in the Commonwealth countries and those associated with the Commonwealth, Lord Atkins dictum in Liversidge v. Anderson (1942) A.C. 206, has remained a guiding light, that amid the clash of arms, the laws are not silent, they may be changed, but they speak the same language in war and peace. Thus, there can be no question of ousting the jurisdiction of a superior court of record by merely declaring that the decision of a tribunal was final and unappealable. In this country, a courageous Supreme Court Bench, under the Hon. Adetokunboh Ademola, CJ.F., put the stamp of authority to this position, in their decision in Lakanmi v. Attorney-General (West) & Ors. (1974) 4 E.C.S.L.R. 713. The reaction of the then military government to the decision is, of course, now history. Inspite of the position of the military authorities on the issue, the courts have held on to the position that a Decree or Edict, with an ouster clause, was not a deus ex macthina the waving of which, should put the court to flight. In Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 6 S.C. 175, the Supreme Court said so in clear terms. The attitude of this court was that while it could not challenge the legal capacity or power of a military regime to make a Decree or Edict, it reserved the power to inquire into whether or not such Decree or Edict was consistent with the provisions of the Constitution. See Peenock Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1 at 31, 37; (1983) 4 NCLR 112; Uwaifo v. Attorney-General of Bendel State (1992) 7 S.C. 124 at 281; (1983) 4 NCLR 1. The inquiry is a genuine exercise in order to ensure that words used to oust jurisdiction are clear and unambiguous. According to Nnaemeka-Agu, J.C.A. (as be then was), in Sode & Ors. v. Attorney-General of the Federation & Ors. (1986) 2 N.W.L.R. (Pt.24) 568 at 572:

“Dealing first with ouster of jurisdiction which I consider most fundamental, I must approach the issue from the stand point that a superior Court of Record guards its jurisdiction jealously. Whereas a person’s right of access to the courts may be taken away or restricted by statute, the language of any such statute will be watched by the Courts and will not be extended beyond its least onerous meaning unless clear words are used to justify such an extension.”

This is not to say that the judiciary treat the ouster of jurisdiction with contempt No. Where the position is clear, it bows to the will of the Executive. This was stated by Lord Atkin, as far back as 1934, in Obene Moore v. Tayee, 2 W.A.C.A. 43 at 45, when he said:

“It is quite true that their Lordships, as every other Court, attempt to do substantial justice and to avoid technicalities; but their Lordships, like any other Court, are bound by the Statute law, and if the Statute law says there shall be no jurisdiction in a certain event, and that event has occurred, then it is impossible for their Lordships or for any other Court to have jurisdiction.”

I must now relate the judicial position to the instant appeal before us.

The first declaration sought by the Plaintiff, now Respondent, was that the Tribunal had no jurisdiction to have proceeded with or to have delivered any decision in the application for a review of the declaration dated 3rd July, 1989. The application to the Tribunal was made on August 10, 1989, at which date the Plaintiff concluded his case. The addresses by counsel were concluded on September 18, 1989. In the events that happened, the Tribunal did not deliver its judgment until October 18, 1989. The contention of the Plaintiff, now Respondent, is that the judgment was delivered more than 30 days after the commencement of the hearing and so was a no-judgment. Section 5 of Decree No. 25 of 1987 governs the provisions in this matter. It states as follows:-

“(1) Any person dissatisfied with any declaration made by the Commission under this Decree may within 30 days of such declaration apply to the Tribunal for a review of the declaration,

(2) The Tribunal shall commence to hear an application within 14 days of the receipt of the application,

(3) The Tribunal shall deliver its decision not later than 30 days from the date the application is heard.”

The objection to jurisdiction was based on the provisions of Sections 6 and 7 of the Decree, which provide as follows:-

“6. In any matter referred to the Tribunal under this Decree, the decision of the Tribunal shall be final and binding and no other court of law or tribunal shall have jurisdiction to entertain any action by way of declaration or review or the issue of prerogative orders or the equitable remedy of injunction or specific performance or by way of appeal or otherwise in respect of any matter arising out of and pertaining to the provisions of this Decree.

7 (1) No suit or legal proceedings shall be instituted in respect of any ban, disqualification or any other matter covered by this Decree in any court or tribunal except as provided W1derthis Decree.

(2) No suit or other legal proceedings shall lie against any person for anything done or purported to be done in pursuance of this Decree.

(3) Notwithstanding the provisions of the Constitution of the Federal Republic of Nigeria 1979 or any other law, any claim, right, declaration or question as to whether any provision of this Decree has been or is being or would be contravened by anything done or purported to be done in pursuance of this Decree shall not be inquired into in any court of law or tribunal other than as provided for in this Decree.

(4) The jurisdiction conferred on the Tribunal by this Decree shall be exercised by it to the exclusion of all other courts of law or tribunals in Nigeria.”

Of all the provisions in Decrees ousting jurisdiction, Sections 6 and 7 of Decree 25, 1987 are the most far-reaching to be found in any Decree since the inception of Military rule in this country. Perhaps as the learned Attorney-General for the 2nd Appellant said, it had its precursors in earlier Decrees, and so was more comprehensive. We are however not concerned with its unconstitutionality, but with the nullity of the decision of the tribunal dated 18th October, 1989. The basis of the assumption of jurisdiction by the High Court of Lagos is the fact that the decision of the Tribunal delivered on 18th October, 1989, was a nullity and so the High Court had the jurisdiction to entertain the originating summons complaining against the decision. It is of course now settled that a court must inquire into a complaint to enable it determine whether or not it had jurisdiction. In Central Bank of Nigeria v. Barclay’s Bank of Nigeria Ltd. (1976) 1 All N.L.R. (Pt.1) 409 at 421, Fatayi-Williams, J.S.C. (as he then was), said:

“Moreover, there is a clear distinction between stating that the court has no jurisdiction to hear a case, and stating that that court jurisdiction to determine whether or not it has jurisdiction to hear the case. Thus, a court may, by statute, lack jurisdiction to deal with a particular matter, but it has jurisdiction to decide whether or not it has jurisdiction to deal with such matter. (See Wilkinson v. Barking Corporation (1948) 1 K.B. 721 (A.C.) at p.725).”

It cannot therefore be correct to say that the ouster clause in any Statute robs the court of jurisdiction without an inquiry into jurisdiction. A tribunal, no matter how highly clothed with power, is still a tribunal and so an inferior court and subject to the supervisory jurisdiction of a superior court of record, such as the High Court of Lagos. Section 6(5)(h) of the Constitution makes this clear. I agree with Chief Williams S.A.N. for the Respondent that unless this is so, it will be the end of the rule of law. The courts are themselves creatures of statute and must not be seen to appear to grab jurisdiction, which they may expound, but not expand. Indeed, it will amount to judicial lawlessness to refuse to give way to an ouster clause in a statute, where appropriate and after due inquiry. As Viscount Simon, L.C., further put it in Westminister Bank Ltd. v. Edwards (1942) H.C. 529 at 533:

“There are of course cases in which a court should itself take objection of its own even though the point is not raised by any parties to it.”

According to Karibi-Whyte, J.S.C., in Ijebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 N.W L.R. (Pt.166) 136 at 153:

“Thus, where in fact the court has no jurisdiction with respect to a matter before it, the active support or ignorance or silence of the parties to the fact cannot vest the court with the requisite jurisdiction which is the essential precondition to the exercise of judicial powers.”

In the instant appeal, however, the learned Judge did not examine the Decree to satisfy himself as to whether or not it ousted his jurisdiction. Rather, he examined the decision complained of and found that it was a nullity and, working backwards to answer, found that the Decree did not rob him of jurisdiction. It was, as if to assume jurisdiction, he assumed what had to be proved at the trial. But a trial Court should not show its hand too soon and before evidence is taken. See National Bank of (Nig.) Ltd. v. Are Brothers (Nig.) Ltd. (1977) 6 S.C. 97; Pharmacist Board v. Adebesin (1978) 5 S.C. 43; Din v. Attorney-General of the Federation (1986) 1 N.L.R. (Pt.17),471.

The issue of nullity should have waited until the trial of the issue in limine. Two further questions, however, now arise. The first is the application for a declaratory order by way of an originating summons to attack the nullity. The second is whether or not there was infact a case of nullity disclosed on the record.

The exercise of control over inferior tribunals is generally under the supervisory jurisdiction of the High Court. According to Ademola, C.J.F. in The Queen v. The Governor of Western Region (1961) 1 All NLR 51 at 58; (1961) 1 SCNLR 83:-

“Such control is by means of certiorari to keep the inferior tribunal within the law, within bounds and within such jurisdiction as the legislature deemed fit to confer upon it.”

One advantage which certiorari – or any other prerogative writ for that matter – enjoys is that it lies even where the decision sought to be set aside is final and even where certiorari is expressly ousted by an ouster clause. As this Court observed in application for leave to issue an order of certiorari to quash a decision of the Robbery Tribunal inspite of an ouster clause in the Decree, in Oduwole v. Famakinwa & Ors. (1990) 4 NWLR (Pt. 143) 239 at 251:-

“The learned trial Judge was therefore wrong to have held that he had no jurisdiction to entertain the application of the appellant by virtue of the ouster clause in Section 10(2) of the relevant Decree.”

In the instant appeal, however, the Plaintiff/Respondent did not choose to attack the decision of the Tribunal via certiorari. Rather, the Respondent sought declaratory orders by way of an originating summons. Although I have some doubts about this approach, as it was a matter of public law and so subject to judicial review, it appears to be permissible under the original, not supervisory, jurisdiction of the High Court. In effect declaratory actions and certiorari appear to provide parallel methods of attacking a decision of an inferior tribunal or court. However, as Akpata, J.S.C., explained in Chief Utih & Ors. v. Onoyivwe & Ors. (1991) 1 N.W.L.R. (Pt.166) 166 at 243:

“There is a distinction between the original jurisdiction of the superior courts and their supervisory jurisdiction. Where a statute purports to exclude the jurisdiction of the High Court and vest jurisdiction in a tribunal or an inferior court, the High Court, in exercising its supervisory jurisdiction, not original jurisdiction, may by certiorari order quash the decision of the tribunal or inferior court either for breaching the rule of natural justice or for following the wrong procedure. It may also by a declaratory order render the tribunal’s decision null and void. Whether both the original and supervisory jurisdictions of the court or only the one on the other are affected by an ouster provision depends upon the wording of the provision of the statute or Constitution.”

Section 6 of the Decree (No.25 of 1987) makes it clear that “no other court of law or tribunal shall have jurisdiction to entertain any action by way of declaration or review, or the issue of prerogative orders, or the equitable remedy of injunction or specific performance” arising out of and pertaining to the provision of this Decree. Here, there is a clear ouster of jurisdiction to make & declaration, grant an order of certiorari, equitable injunction and specific performance (Italics supplied for emphasis). Once the originating summons before the learned Judge raised issue of declaration, injunction and specific performance, in challenge of a decision of the Tribunal, and an objection was taken to the jurisdiction of the Court, the learned Judge should not have sojourned beyond the peripheral objection. To have travelled farther to reach the port of nullity was improper at this stage. Also, Section 6 of the Decree is clear as to what is ousted, and, as if to make it clearer, Section 7 adds that “no suit or legal proceedings shall be instituted in respect of any ban, disqualification, or any other matter covered by this Decree (Italics supplied for emphasis). And this is what the originating summons was all about, namely, a challenge to the disqualification and ban of Chief Anhur Nzeribe. If, as is alleged, the decision of the Tribunal is a nullity, the Respondent should have applied to the Tribunal to so declare it, since no other Court or tribunal is competent to do so, having regard to the provisions of Sections 6 and 7 of the Decree.

There was of course the second ground for complaint to the High Court, namely, the issue of audi alteram partem as enshrined in Section 33 of the 1979 Constitution. The learned Judge did not, however, assume jurisdiction for this reason, nor is the issue raised in this appeal.

The final point for consideration is the declaration of the learned Judge that the decision of the Tribunal dated 18th of October, 1989 was a nullity. On the face of it, the decision does not appear to be so. Once an originating summons issues, the issue of jurisdiction may be raised in limine and the Court is obliged to go fully into the merits. This the learned Judge did not do, and has thereby created a dilemma for this Court for which Chief Williams, SAN., proferred the following solution in his Supplementary Brief:

“The court is placed in an impossible position when it is asked to decide whether the court has jurisdiction to decide the plaintiff’s claims but is told not to decide whether the decision attacked is a nullity. It is submitted that the correct attitude for this court (on appeal) to take is to direct the court below (which is of opinion that the decision is a nullity) to complete its work. This court should not at this stage determine whether or not the decision of the court below is right or wrong. It should say no more than that having come to the conclusion that the Tribunal decision is a nullity, the court below was right in saying that it has jurisdiction.”

If only the issue of nullity in the circumstances was one settled in law, the above approach would have been a way out of the dilemma. Section 5(3) of the Decree states that the tribunal shall deliver its decision not later than 30 days from the date the application is heard. The complaint is that on 18th September, 1989, the judgment was not delivered but the tribunal instead called for additional evidence and thereafter reserved judgment again for 18th October, 1989.

According to the learned Judge, in Exhibit A:-

“The Plaintiffs application to the Tribunal was heard on the 8th September, 1989, when both learned Counsel concluded their addresses and the matter was reserved for 18th September, 1989, for judgment. The reservation of the Tribunal’s judgment for 18th September, 1989, was therefore within time under Section 5(3) of the Decree.”

The learned Judge then concluded:-

“However, the Tribunal eventually delivered its judgment on 18th October, 1989, over 30 days from 18th September, 1989, when the Plaintiffs application was heard. The decision of the Tribunal of 18th October, 1989, was therefore a contravention of Decree No. 25 of 1989 and therefore a nullity.”

The record showed what in fact had happened. According to paragraph 10 of the affidavit in support of the application for originating summons:-

“After the last adjournment, as we resumed on Monday, 18th September, 1989, we called on both counsel for the parties to call additional witness or witnesses and address us on the status of the Petitioner while he was in the Senate. Chief Williams objected to that we over-ruled him and gave our reasons.”

Then followed the judgment now complained of as a nullity. The position in law that a judgment delivered after the statutory period was a nullity was settled in Chief Ifezue v. Mbadugha & Anor. (1984) 5 S.C. 79; (1984) 1 SCNLR 427. It was re-affirmed in Paul Odi & Anor. v. Osafile & Anor. (1985) 1 S.C. 37; (1985) 1 NWLR (Pt.1) 17. Thereafter arose the question of a further address as, in the instant appeal, after judgment had been reserved and this was upheld in Chief Harold Sodipo v. Lemminkainen OY & Anor (1985) 2 NWLR (Pt.8) 547; (1985) 7 S.C. 492, where Sowemimo, J.S.C. (as he then was), stated as follows at page 493:”

The constitutional question for determination is a very simple one. It is: which of the two addresses, the one delivered on 11th February 1980 or the other delivered on 24th April 1980, was the final address within the purview of Section 258(1) of the Constitution? If the address of 11th February 1980 was the final address, then the judgment of the trial judge is caught by Ifezue v. Mbadugha (1984) 5 S.C. 79; (1984) 1 SCNLR 427 and is null and void. However, if the address of 24th April 1980 was the final address, then these provisions of the subsection have been complied with. I adopt the reasons stated by my learned brother, Aniagolu, J.S.C., that the address of 24th April was the final address.”

According to Karibi-Whyte, J.S.C., in Ijebu-Ode Local Government v. Balogun & Co. Ltd. (1991) 1 NWLR (Pt.166), 136 at 154:-

“I have already reproduced the relevant part of Section 258(1) in this judgment. It is important to appreciate that the governing expression in this part of the section is …..not later than 3 months after the conclusion of evidence and final addresses ….. “The expression “not later than 3 months” would seem to me to follow the expression “after the conclusion of evidence and final addresses.” Thus in determining the issue whether the judgment was delivered “not later than 3 months,” it must be reckoned from the date of the “conclusion of evidence and final addresses.”

Applying this rule, the judgment of 18th October, 1989, was not more than 30 days from 18th September, 1989. In view of this, was there really an issue of nullity on the face of the record? The answer is clearly in the negative. The position would have been different if the law no longer allowed “further evidence and address” once judgment was reserved. It is for this reason that in my view the learned judge erred in holding that the judgment of 18th October 1989 was a nullity. It was not open to a court to infer nullity where none existed and, if this is the basis for the assumption of jurisdiction, as in the instant appeal, an objection to that jurisdiction must succeed, even without the invocation of the ouster clause in Decree No.25 of 1989.

Accordingly, the appeal succeeds. The ruling of Adeyinka, J. dated 8th June, 1990, is hereby set aside and, in its place, the originating summons of the Plaintiff/Respondent filed in that Court on 7th November, 1989, is hereby struck out for want of jurisdiction. I make no order as to costs.

Other Citations: (1991)LCN/0107(CA)