Prof. Steve Torkuma Ugba & Anor V. Gabriel Torwua Suswan & Ors (2014)
LAWGLOBAL HUB Lead Judgment Report
CLARA BATA OGUNBIYI, J.S.C.
The application before us is dated 14th day of November, 2013 and filed on 15th November, 2013. It was brought pursuant to Sections 6(6)(a) and (b), 36(1) and (3), 294(2) of the 1999 Constitution (As Amended); Section 22 of the Supreme Court Act, 2004; Order 2 Rule 28(1) and Order 8 Rule 17 of the Supreme Court Rules, 1999 (As Amended); and the inherent jurisdiction of this Court and seeks for the following reliefs:-
a) An order setting aside its ruling delivered in open court on 8th day of June, 2012 in Appeals Nos. SC.191/2012 and SC.191A/2012, terminating the said appeals.
b) An order implementing/Enforcing its order/decision delivered on 14th November, 2011 that the petition be heard on the merits:
c) An order Restoring Appeals Nos: SC.191/2012, SC.191A/2012 terminated on 8th June, 2012 and hearing same on the merits;
d) Accelerated hearing of this application;
e) Such further order(s) as this Honourable court may deem fit to make in the circumstances.
There are eleven grounds predicating the application. On the 11th February, 2014 at the hearing of the application the learned counsel, Orkumah, Esq represented the applicants and applied to abandon grounds 4 and 8 which same are now struck out. The subsisting nine grounds excepting 4 and 8 upon which the application is anchored are reproduced hereunder:
“GROUNDS FOR THE APPLICATION
- The respondents, particularly 1st respondent had manifested foreknowledge of the decision before its delivery as shown by the posting of the result thereof at 7:49 am of 8/6/2012 on Facebook (Village Corner) and the broadcast of same on Radio Benue on 7/6/2012;
- S.6(6)(a) & (b) of the 1999 Constitution (as amended) vests this Honourable Court with all inherent powers and sanctions of a court of law in all matters between persons or between government or authority or any person in Nigeria in all actions and proceedings for the determination of any question as to the civil rights and obligations of that person, including election cases and appeals therefrom;
- S.36(1) of the 1999 Constitution (as amended) was not taken into account in adjudicating on this appeals as the appellants’ briefs were not considered in the ruling delivered on 8/6/2012 by this Honourable Court nor was S.285(2) considered in relation to the interpretation of S.285(6) of the 1999 Constitution (as amended) in the decisions of 8/6/2012 given by this Honourable Court;
- This Honourable Court had on 14th November, 2011 in Appeal No. SC.360/2011 involving the same parties ordered this petition to be heard on the merits and the order has not been vacated or otherwise impugned in any proceedings and same is binding on this Honourable Court;
- S.285(6) of the 1999 Constitution (as amended) cannot and does not apply to these appeals in which the petition was dismissed within 180 days (i.e 19th September, 2011) and the appeals therefrom heard and determined within 60 days as stipulated by S.285(7) of the 1999 Constitution (as amended) in accordance with the decision of this court in ANPP v Goni (2012) 7 NWLR (Pt.1298) 147;
- A full court was constituted to consider departing from its decision in the ANPP v. Goni lines of cases as indicated in the appellants’ brief in SC.191/2012 but on 4/6/2012 the panel declined to go into the matter and confined itself to the preliminary objection of the respondents’ response to which formed substantial part of the arguments in the substantive appeals which were not considered by the court in its ruling;
- This Honourable Court overlooked the decision of the full panel of this court in Saraki v Kotoye (1992) 11/12 SCNJ 26, (1992) 9 NWLR (Pt.264) 156, cited to it both in oral argument and appellants’ reply brief to 3rd Respondent’s brief to the effect that the exercise by a party of his Constitutional right of appeal under SS.233(2), 246(1)(c)(ii) and 285(7) of the 1999 Constitution (as amended) cannot constitute an abuse of court process or an academic exercise.
- This Court failed to consider appellants’ response to 3rd respondent’s preliminary objection contained in paragraph 1.1 – 1.50 (pp. 1-24 of appellants’ reply brief to 3rd respondent’s brief in its ruling of 8/6/2012 thereby breaching appellants’ right to fair hearing under S.36(1) of the 1999 Constitution (as amended).
- Section 285(6) of the 1999 Constitution (as amended) cannot stand in the face of the combined provisions of Sections 4(8), 6(6)(a) & (b) 36(1) of the 1999 Constitution (as amended).
In support of the application is a 25 paragraphed affidavit deposed to by one Richard Agwa, a litigation secretary in the chambers of the solicitors representing the applicants. In addition to the foregoing, the other documents filed by the applicants’ counsel include a written brief filed 25th November, 2013, replies on points of law in response to the 1st and 2nd respondents, counter affidavit and their written addresses respectively. The learned counsel Mr. Orkumah, Esq. in moving the motion, relied particularly on paragraphs 3 – 24 of the affidavit in support and also on all the other documents enumerated therein inclusive of the brief filed supra. The counsel on the totality moved in terms of the motion papers and urged that this court should grant the application per the reliefs sought and that the ruling delivered on 8th June, 2012, should be set aside.
In opposing the application, the learned senior counsel Mr. Dodo, SAN in company of his brother Prof. A. A. Ijohor, SAN, led a team of other lawyers and represented the 1st respondent. A counter affidavit containing seven paragraphs as well as a written submission against the motion were both filed 22nd November, 2013 and conclusively relied upon. The learned senior counsel Mr. Dodo emphasized that the applicants had not satisfied the requirement for setting aside the ruling as sought. Counsel further rated the application as lacking in merit and only aimed at wasting the time of the court.
On behalf of the 2nd respondent, his counsel Chief Akuma, SAN, intimated the court of their counter affidavits filed on 19th and 20th, November, 2013 respectively. On an application by the said counsel, the earlier one was withdrawn and struck out. Counsel thereafter adopted and relied on the subsisting counter affidavit as well as the written address filed 16th January, 2014 and also the exhibits attached thereto. Specific reference was made on paragraph 4.2 on page 10 of their written address. Counsel further impressed upon this court to strike out the applicants’ reply on points of law, as it is a re-argument of the entire written address and therefore frivolous. It is also the counsel’s further contention that by reason of Section 285(7) of the Constitution supra, the application is an academic exercise and also an abuse of this court’s process. The learned counsel urged in favour of dismissing the application therefore.
Appearing on behalf of the 3rd respondent and in company of other counsel was Mr. J. S. Okutepa, SAN, whose objection was taken on points of law. The senior counsel also adopted the submissions made on behalf of the 1st and 2nd respondents and rated the application as most frivolous especially where the sum total raises the question relating a denial of the right to fair hearing. It is the submission of counsel further that Order 8 rule 16 of the Rules of this court is the only provision made and allowing for a setting aside of its own decision. In the same vein as his learned brothers for the 1st and 2nd respondents, the senior counsel also urged that this application should be dismissed as lacking in merit and an abuse of court process.
The determination of this application will necessitate the giving of a brief background history of the preliminary objection which resulted in this court dismissing the appellants’/applicants’ appeals as being academic and an abuse of court process. By its Ruling Exhibit 2 delivered on the 8th June, 2012, this court held thus:-
“There is no requirement that the petition filed before the tribunal must be heard before a judgment can be delivered within 180 days. In otherwords, a petition needs not to be heard before the tribunal delivers its judgment which of course does not have to be a final judgment as the two convey different meanings…………Therefore in compliance with S. 285(6) of the Constitution (supra), once an election tribunal gives an appealable decision or makes an order within 180 days and an aggrieved party appeals, it is my firm believe that time continues to run until the 180 days shall be exhausted. An appellate court does not have the jurisdiction to extend or enlarge the 180 days once it expires.
However, one thing is certain and not disputable, an appellate court, when an appeal succeeds within the time prescribed is competent to order retrial or hearing denovo. But certainly not after the time prescribed has lapsed expired. Any such order or directive when the main substratum, such as, petition before the tribunal has ceased to exist having been either struck out or dismissed by the trial court becomes a nullity and will have no effect whatsoever.”
On 19th June, 2012, the appellants/applicants herein filed an application before this court and prayed for the following orders:-
setting aside its ruling delivered 8th June, 2012, implement/enforce its order/decision delivered 14th November, 2011 that the petition be heard on the merits and restoring Appeal No. SC.191/2012 and SC.191A/2012 and hearing same on the merits. The said motion was withdrawn on 14/11/2013 and substituted with a motion filed 15/11/2013, the subject matter now before us; the reliefs and also the grounds in support, have been reproduced earlier in the course of this ruling.
The appellants/applicants by their written address in support of the motion on notice, have compartmentalized the reliefs into two main segments by taking A and C together while B, which seeks for direction that the petition be heard on its merits, is subject to and completely dependent upon the outcome of A and C. Unlike the applicants, the 1st respondent, on his brief of argument, raised three issues for consideration as follows:-
1) Whether this Honourable Court has the jurisdiction to entertain this application, having regard to the spirit and letter of Section 285(6) and (7) of the 1999 Constitution (as amended).
2) Whether the application is not an invitation to this Honourable Court to sit on an appeal over its decision.
3) Whether the application has disclosed very exceptional circumstances and satisfied the conditions to warrant this court to review or set aside its earlier Ruling.
The 2nd respondent’s learned senior counsel, Chief Solomon Akuma, SAN in their written address opposed the motion by formulating a lone issue and thus posing the following question for determination:- “whether in the circumstances of this matter the applicants have satisfied the conditions to warrant this court in setting aside its Ruling delivered on 8th June, 2012.”
On behalf of the 3rd respondent, there was neither a written submission filed to substantiate its defence nor was any counter affidavit filed. Their Learned counsel Mr. J. S. Okutepa, SAN, however submitted and opposed the application on points of law.
I have carefully considered the reliefs sought by the applicants before us, the grounds predicating same and the arguments advanced in support thereof, also the three issues as well as the one raised on behalf of both the 1st and 2nd respondents respectively; the submission by the 3rd respondent on points of law was also considered and thus giving me the reason to draw the conclusion that the totality of the submissions of all counsel can conveniently be accommodated within the main lone issue raised by the 2nd respondent. In otherwords, all the three issues raised by the 1st respondent can easily be subsumed into the lone issue. This is because the totality of the facts established on the application are seeking an order of this court to set aside its ruling made on 8th June, 2012.
The propriety of this application is subject to the questions posed by the 1st respondent in the reverse order of his issues 2 and 1. In otherwords, if the application turns out to be an invitation on this court to sit on appeal over its own decision, the obvious and subsequent relating question is, whether the court has the jurisdiction to sit on such an appeal. The jurisdictional competence posed would have to be viewed from two dimensions. That is to say the appellate jurisdiction conferred by the Constitution as well as the jurisdictional limitation on adjudication in election matters.
The central focus of the submission by the applicants’ counsel alleges a breach on the Constitutional provision of the right to fair hearing. The senior counsel for instance related copiously to the Constitutionality of Section 285(6) in the light of Sections 4(8), 6(6)(a) and (b) and 36(1). It is the counsel’s submission that the said Section 285(6) infringes on the provisions of Section 4(8) of same by interfering with the doctrine of the separation of powers under Sections 4, 5 and 6 particularly the second limb of Section 4(8), which stipulates that neither the National Assembly nor House of Assembly shall enact any law that ousts or purports to ousts the jurisdiction of a court of law or a judicial tribunal established by law; counsel submits also that Section 285(6) and (7) constitute an unwarranted encroachment on the Independence of the judiciary by prescribing time limitation for hearing and delivering judgments in election petitions and appeals emanating therefrom; that Section 285(6) and (7) infringe on the powers of those judicial functionaries to regulate proceedings in their respective courts and should be declared void as violating Sections 4(8), 236 and 248 of the Constitution under reference.
In further establishing his position, learned counsel reiterated that Section 285(6) of the Constitution cannot take away the inherent powers and sanctions of a superior court of justice such as the Supreme Court etc that are not created by statute but by the Constitution. Counsel also submits the damaging effect of Section 285(6) which is capable of emasculating or destroying the appellants’ Constitutional right of action, Constitutional right of appeal and Constitutional right to fair hearing implicit in Sections 285(2), 285(7), 246(i)(ii), 233(2)(e) (iv) and 36(i) of the said Constitution.
In further submission the learned counsel emphasized in strong terms that the Constitution cannot abrogate the right of appeal unless expressly or by implication so extinguished.
It is also the submission of senior counsel that in the exercise of its powers under Sections 6(6), 233(1)(2) (e) (iv) and 285(7), this court is not to be inhibited by the provision of Section 285(6) of the Constitution especially if the tribunal gives the judgment within 180 days in compliance with the said Section and appeal arising there from is also decided by the Appellate court within 60 days in compliance with Section 285(7) of the said Constitution; it is the counsel’s contention also that had this court’s attention been drawn to the issues of fundamental right to fair hearing, Constitutional right of appeal, also right of action and the hallowed canons of Constitutional interpretation laid down by a full panel of this court and bearing on cases relating on those fundamental Constitutional questions, that a different decision would have been given in Borno case of 17/2/2012. Further reliance was also made on paragraphs 11 and 12 of the affidavit supporting the application; that the unfortunate and regrettable development highlighted in the said paragraphs supra, is capable of seriously undermining the integrity of the ruling by this court delivered 8th June, 2012 and rendering same liable to setting aside. A number of judicial pronouncements relied upon by the applicants’ counsel include but not limited to Alao V. A.C.B. Ltd. (2000) 9 NWLR (Pt. 672) 264 at 296, Cardoso V. Daniel (1986) 2 NWLR (Pt.20) 1 at 16, Tanko V. State (2009) 2 SCNJ 1 at 15 – 16, Attorney-General of Federation V. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt.618) 187 at 266, Odi V. Osafile (1985) 1 NWLR (Pt. 1) 17 at 34 – 35; Rossek V. A.C.B. (1993) 8 NWLR (Pt.312) 382 at 431.
Specifically and with reference made to the case of Alao V. A. C.B. Ltd. (Supra), the counsel re-iterates the findings therein and adds that the provision of Section 6(6)(a) and (b) of the Constitution does not derogate from the general judicial powers of this court to set aside its own decision should injustice or miscarriage of justice be perpetuated; that the Supreme Court will unhesitatingly set aside its decision which is a nullity. See Ogbu V. Urum (1981) 451, Okafor V. Attorney-General Anambra State & Ors. (1991) 6 NWLR (Pt. 200) 659 at 680, and Nwosu V. Udeaja (1999) 1 NWLR (Pt. 125) 188.
Counsel in the result urged that prayers (a) and (c) on the motion paper should in the circumstance be granted.
While submitting to substantiate prayer (b), it is the Senior counsel’s argument that, by ordering the petition to be heard on the merits on 14/11/2011, after correctly finding that there was no trial, the Supreme Court acted within its jurisdiction conferred on it by, the Constitution, the Supreme Court Act and the Supreme Court Rules; that by interfering with the judgment of 14/11/2011 on 8/6/2012, this court acted without compliance with the laid down procedure in Cardoso V. Daniel, Tanko V. State and Attorney-General of Federation V. Guardian Newspapers Ltd. all under reference supra; that the order made by this court on the 14/11/2011, is valid, subsisting and extant in law and remains binding on all parties until set aside by this Honourable court, when properly called upon to do so; this, counsel argues, is not withstanding that it was reached per incuriam. In other words, it remains binding on all parties and all courts, including the court that rendered it. Reference was copiously made to the decision of this court in SC.2/2012 ANPP V. Mohammed Goni. See also Amida v. Oshobaja (1984) 7 SC 68 where it was held that the judgment of a court in either a civil or criminal proceeding is valid and effective until it is set aside by an appellate court; that such judgment, even if it is wrongly decided, is nevertheless effective until set aside. Learned counsel, to buttress his submission, cites the case of Witt & Busch Ltd. V. Dale Power Systems Plc (2007) All FWLR (Pt.382) 1816 at 1842 (B – C); see also Mobil Oil Nig. Ltd V. Assan (1995) 9 SCNJ 97 at 114 where his Lordship Uwais JSC (as he then was) held that an order made by a court of competent jurisdiction is to be obeyed until it is discharged; consequently, with the order made the 14/11/2011 still subsisting, the respondents are therefore bound to obey and comply there with. The learned counsel in the circumstance finally urged that this application be granted as prayed in the interest of justice.
On behalf of the 1st respondent, and to oppose the application, a counter affidavit of seven paragraphs was filed on 22/11/13 by one Terhemba Gbashima, Esq. a legal practitioner in the law firm of D.D. Dodo & Co. A written address to compliment the counter affidavit was also filed the same day. Submitting to substantiate their course of objection, the 1st respondent’s lead counsel Mr. D.D. Dodo. SAN formulated three issues for determination which same had earlier been reproduced in the course of this ruling; I will not therefore repeat to avoid monotony.
Submitting on the 1st issue raised, the 1st respondent’s counsel drew reference to the established principle of law that where an action or an appeal has no practical or utilitarian value to the appellant, even if judgment is given in his favour, the appeal is rendered a mere academic. A number of authorities were cited in buttress of this contention inclusive of Adeogun V. Fashogbon (2008) 17 NWLR (Pt.1116) 149 and Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 489; that by virtue of Section 285(7) of the Constitution, the 60 days within which this court is required to deliver its judgment in Appeal No. SC.191A/2012 lapsed on the 11th day of June, 2012, the decision appealed against having been delivered on the 12th day of April, 2012 while the 60 days within which it is also required to deliver judgment in Appeal No. SC.191/2012 lapsed on the 23rd day of June, 2012 again the decision appealed against having been delivered on 24th April, 2012. A long line of judicial authorities were cited by the senior counsel in support of the obvious and the immutable nature of Section 285(6) of the Constitution.
While stressing the point further home, it is the counsel’s submission that, 180 days having lapsed from the date the original petition was filed and 60 days also having lapsed from the date of delivery of judgments by the Court of Appeal which judgments were appealed against in Appeals SC.191/2012 and SC.191A/2012, the two appeals have lapsed; that with the substantive appeals which gave rise to the present application having lapsed therefore, the application itself has become academic and bereft of any live issue consequent upon which this court now lacks the jurisdiction to entertain this application which should determine only live issues. It is the contention of counsel that the court should decline jurisdiction by reason of the Constitutional operation.
In further submission, the learned counsel considered issues 2 and 3 together and stressed in strong terms the position taken by this court on the finality of its decisions, in a number of cases, which does not however extend to or include the power to sit on appeal over its decisions. See Igwe V. Kalu (2002) 14 NWLR (Pt.787) P.435 wherein conditions are laid down there in as pre-requisites before a court can set aside its judgment or ruling. The learned counsel sought to draw a distinction between a decision that is a nullity and that which is only erroneous in law, but within the competence of a court. In other words, that, while on the one hand, a null judgment or decision is one which is given without statutory jurisdiction on the part of the court that delivered same or when a condition precedent for the court to assume jurisdiction has not been fulfilled, on the other hand, a judgment will not be rated a nullity even though it is erroneous in law, so long as it is within the court’s competence. See the case of GEN. & Aviation Serv. Ltd V. Thahal (2004) 10 NWLR (Pt.880) p.50 at 81.
In further submission, counsel re-iterates that the totality of the applicants’ affidavit allege “error” on the part of this court and not lack of competence in delivering the Ruling 8th June, 2012. In other words, it is the counsel’s contention that while a court can set aside its judgment for nullity, it cannot do same for a disclosure of an error in law. See the case of A.T. Ltd. V. A.B.H. Ltd. 2007 15 NWLR (Pt.1056) p.118 at 170. Reference was also made to Order 8 rule 16 of the Rules of this court 1985, which provision clearly prohibits interference with a judgment or any part thereof except under the slip rule. It is therefore firmly settled, counsel argues that judgments of this court cannot be reviewed; that the court has no power to over rule, reverse or nullify its previous decisions whether on questions of substantive or procedural law. See the cases of Adefulu & 16 Ors. V. Chief Okulaja & 6 Ors. (1998) 5 NWLR (Pt.550) 435 at 462; and Owunari Long-John & Chief Ibiroma & 2 Ors. V. Chief Blakk & 2 Ors. (1998) 6 NWLR (Pt. 555) 524 at 546, (1998) 5 SCNJ 68 at 86.
Considering the decisions of this court cited supra, it is the counsel’s contention that the application does not satisfy any of the exceptional circumstances to warrant this honourable court interfering with its well considered decision delivered 8th June, 2012; that the totality of the facts deposed to on the applicants’ affidavit in support of their application did not state any form of irregularity or absence of jurisdiction on the part of the court in delivering the said Ruling 8th June, 2012; that a mere glance at the paragraphs of the affidavit show clearly that the present application is a deliberate attempt to invite this honourable court to sit on an appeal over its said Ruling delivered, the subject of this application. In re-iterating his stance further, the learned counsel affirmed as a regurgitation, restatement and re-argument of the applicants’ written and oral submissions in response to the 3rd Respondent’s Notice of Preliminary objection, which was argued intensely by all parties and upheld in a well considered ruling of this court, dismissing the appellants’ appeals as being academic and an abuse of court process.
The counsel on the totality therefore impressed upon this court to dismiss the application as lacking in merit.
In opposing the motion also, the 2nd respondent’s counsel filed a counter affidavit of 31 paragraphs and a written address on the 20/11/2013 and 16/1/2014 respectively. The only lone issue raised for determination is: whether in the circumstances of this matter the applicants have satisfied the conditions to warrant this court setting aside its Ruling delivered on 8th June, 2012.
It is the counsel’s submission that this court does not as a general rule have the jurisdiction to set aside its own judgment except on satisfaction of certain stringent conditions as set out in the case of Igwe V. Kalu supra; that the applicants at hand have failed to satisfy any of the conditions enumerated therein the said authority to warrant setting aside the Ruling of this court delivered 8th June, 2012.
In his further submission, the learned counsel re-iterates the practice of this court whereby the success of the Respondent’s preliminary objection automatically terminates the appeal because the consequential effect is that there was no valid appeal before the court and hence there would be nothing more to consider. See Adelekan V. Ecu-line NV (2006) 12 NWLR Pt.993 p.33 and also Adigun V. Ayinde (1993) 8 NWLR (Pt.313) p.538; that the applicants having agreed and participated in the proceedings, cannot now be heard to complain that their main appeals were not heard. The applicants, counsel argued, are deemed to have waived their right because, a person cannot complain against an irregularity which he had accepted, waived or acquiesced. See Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) P.227.
On the allegation whether Section 285(6) and (7) constitutes an encroachment on the Independence of the judiciary and a denial of right to fair hearing to the determination of the applicants’ petitions and appeals on merit, the learned counsel to the respondent rested his response on the immortal words of Uwaifo JSC in the case of A.G. Ondo State V. A.G. Federation (2002) 9 NWLR Pt.772 p.222 at 418-419. It is the counsel’s argument on this score that the effect on this court of Section 285(6) and (7) of the Constitution is to impose limitations and constraints thereon and thereby rendering it helpless and of no effect. See the case of Inakoju V. Adeleke (2007) 4 NWLR PT.1025 P.423. In further submission, counsel re-echoed that the order of this court made 14/11/2011 to hear the petition denovo has no effect whatsoever because it was made after the 180 days within which the tribunal was to hear and determine the applicants’ petition filed 17/5/2011, which time expired on 12/11/2011.
On the totality of his submission the counsel concluded that the applicants have failed to satisfy the conditions that will warrant this court to set aside its ruling delivered 8th June, 2012; he therefore urged that the application be dismissed.
While adopting the submissions by the 1st and 2nd respondents, the learned counsel Mr. Okutepa, SAN had also earlier in the course of this ruling submitted and argued the 3rd respondent’s objection on points of law. The totality of his argument centred on Order 8 rule 16 of the rules of this court which empowers the court to set aside its own decision; that in the absence of any reason given for the setting aside of the judgment, the counsel in summary has also called for the dismissal of the application as a sheer abuse of court process.
It is intriguing to note that on the 4th June, 2012 when appeals Nos. SC.191/2012 and SC.191A/2012 came up for hearing, the 3rd Respondent, through its counsel, informed this court that it had a preliminary objection in respect of SC.191/2012. On how the above mentioned appeals and the preliminary objection would be taken, reference could be made to page 6 of the applicants’ Exhibit 2, the ruling in question wherein paragraph 2 reveals thus:-
“It was agreed by both parties that since the three appeals (SC.191/2012, SC.191A/2012 and SC.192/2012 are based on the same decision of the court below, the preliminary objection should be taken first and ruled upon.”
Following an agreement by all parties, arguments were taken on the preliminary objection which was vehemently opposed by the applicants. It is the considered ruling delivered 8th June, 2012 that is now the subject matter of this application wherein this court upheld the preliminary objections and at page 32 of Exhibit 2 said thus:
“The preliminary objections raised by the Respondents in the three appeals No. SC.191/2012, SC.191A/2012 and SC.192/2012 based on the same decision of the trial tribunal succeed and it is allowed. As a result, the appeals above mentioned are liable to dismissal. Accordingly, each appeal is dismissed for being an academic exercise and an abuse of court process, to say the least.”
The crux of the application is centered on the 1st relief which seeks an order setting aside the ruling delivered 8th June, 2012. The grounds predicating the reasons have been reproduced earlier in the course of this ruling. I also seek to add that prayers (b) and (c) are only viable and dependent upon the outcome of the 1st relief. In otherwords, the entire application would either fail or succeed on the outcome of relief (a).
The main issue for determination in this application therefore is:-
Whether in the circumstances of this case the applicants have, as a matter of law, satisfied the conditions to warrant this court, setting aside its Ruling delivered on 8th June, 2012.
Order 8 rule 16 of the rules of court is specific in stating that the court has no jurisdiction to set aside its decision, Ruling/Judgment if properly made in the exercise of its powers and jurisdiction. Specifically, the provision states as follows:-
“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 forgoing provision has been well expatiated by this court in the case of Chukwuka & Ors V. Ezulike & Ors (1986) NSCC Vol. 17 part II page 1347. An earlier authority also decided under an identical provision is the case of Ministry of Lagos Affairs, Mines & Power and Anor. V. Chief O.B. Akinolugbade (1974) 11 SC 9 at 14 where it was held by this court that, “to allow an application to be brought for the review of any fact or law in a previous judgment of this court, would amount to treating the application as an appeal.”
Also and with reference to the application of Order 7 rule 30 of 1977 Rules to the case of Chief Iro Ogbu & Ors. V. Chief Ogburu-Urum and Anor. (1981) 4 SC 1, this court per Obaseki JSC at p.9 had this to say:-
“……………… the provision of order 7 rule 30 deprives this court of any jurisdiction to review the judgment of dismissal for want of prosecution. The inherent jurisdiction of this court under Section 6(6)(a) of the Constitution cannot be invoked to save the situation.”
The foregoing authority (supra) was approved and followed in Sodeinde Brothers (Nig.) Ltd. V. A.C.B. Ltd. (1982) N.S.C.C. 184.
As rightly submitted further by the learned counsel for the 1st respondent, this court has re-affirmed the finality of its decision in plethora of cases and also held times without number that its inherent power to set aside its own decision, when same are later found to be a nullity or obtained by fraud, does not extend to include the power to sit on appeal over its judgment/ruling. This principle of law is well entrenched in the case of Igwe V. Kalu (supra) wherein his Lordship Ogwuegbu, JSC at page 455, held and said:-
“The inherent jurisdiction of the court to set aside its judgment cannot be converted to an appellate jurisdiction as though the matter before it is another appeal, intended to afford losing litigants yet another opportunity to re-state or re-ague their appeal.
It must be emphasized that this court is a court of final resort and under the Constitution, it cannot under any guise sit on appeal over its judgment or review it except under very exceptional circumstances.”
Following from the foregoing deductions, the principle is well established that this court has no jurisdiction to set aside its ruling or judgment if properly made in the exercise of its powers and jurisdiction. However and that notwithstanding, there is also a rider or a caveat which holds secure that in appropriate cases, it is expedient that the court, in the exercise of its inherent powers, can set aside its Ruling or judgment provided the circumstance calling for such order has satisfied the stringent conditions that the judgment or ruling is a nullity; that such decision was obtained by fraud; and that the court was misled in delivering the said judgment or ruling. This was the decision of this court in Igwe V. Kalu (Supra) wherein Ogwuegbu, JSC again held at pages 453 – 454 and said:-
“I shall state that this court possesses 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) LLR 76; Flower V. Lloyd (1877) 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. Kanssen (1943) KB 256, 262 and 263; Ojiako & Ors. V. Ogueze & Ors. (1962) 1 SC NLR 112, (1962) 1 All NLR 58; Okafor & Ors. V. Anambra State & Ors. (1991) 6 NWLR (Pt. 200) 659, 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. Okunoga & Co. (1961) All NLR 110 and Obimonure V. Erinosho (1966) 1 All NLR 250.”
In the case of Olorunfemi & Ors. V. Asho (1999) 1 NWLR (Pt. 585) 1 for instance, this court set aside its judgment on the ground that it failed to consider the respondents’ cross-appeal before allowing the appellants’ appeal. It ordered that the appeal be heard de novo by another panel of Justices of this court. See also generally the case of Alao V. A.C.B. Ltd. supra particularly at 271 – 273; 280 – 281 and 296.
The appropriate question to pose at this junction is, does the applicants’ application before us fall within the foregoing situational circumstances and the decided authorities The facts as revealed on the affidavit in support of the application are relevant.
It is for instance expedient to restate that the totality of the applicants’ averments in their supporting affidavit, only allege an “error” on the part of this court and not lack of competence in delivering the Ruling of 8th June, 2012.
With reference made to the conditions set out in the case of Igwe V. Kalu supra, it is evident that for this court to set aside its judgment, the decision must have been a nullity. In otherwords it must have been made by the court either without statutory jurisdiction, or when a condition precedent for the court to assume jurisdiction has not been fulfilled. An erroneous judgment however, is one made within the court’s competence and therefore cannot be branded as a nullity.
The case of Gen. & Aviation Service V. Thabel supra at page 81 had clearly drawn a distinction between null and erroneous judgments in the following words:-
“a judgment may be declared a nullity to some fundamental vice such as lack of statutory jurisdiction to hear the case, or failure to fulfill a necessary condition precedent. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR 587. A distinction must be drawn between an order or a judgment which a court is not competent to make and a judgment which, even though erroneous in law and in fact, is within the court’s competence.”
For the applicants to be entitled to the benefit of the exceptional circumstances principle to warrant this court tampering with its considered decision, they must show that the ruling is a nullity. Put differently, and taken for granted that the applicants did prove error in law by this court in delivering the said ruling, this will not entitle them to a setting aside which will only apply when the decision is a nullity.
The affidavit in support of the applicants’ motion did not indicate that the court was misled into giving its ruling, or that there was the absence of jurisdiction on its part in entertaining the preliminary objection that culminated in the said ruling 8th June, 2012. It was not also disclosed that the ruling sought to be set aside was obtained either by fraud or deceit.
I have also stated in the course of this ruling that the taking of the preliminary objection by the court at the time it did and subsequently ruled upon, was at the instance of all parties, inclusive of the applicants themselves; they cannot now be heard to complain against any irregularity which they are a part of, having accepted, waived or acquiesced. See Amaechi V. INEC (2008) supra at pages 448 – 449 where his Lordship Aderemi, JSC said:-
“It is clear from the record of proceedings that the parties voluntarily settled issues for determination at the trial court. Again, by consent, all the parties tendered documents which they would rely upon…………There is nothing on the record to show that any of the parties objected to this mode of trial. Indeed, they all conducted the case to the logical conclusion before the trial court…………. where, as in the instant case, a person in dealing with another is confronted with two alternative and mutually exclusive procedures, in dealing with the case ……….. This, in a nutshell, is the simple explanation of principle of waiver……………….
That principle is to the effect that where an action was commenced by any irregular procedure and a defendant took steps to participate in the proceedings, as in the instant case, he cannot later be heard to complain of the irregularity as a person will not be allowed to complain against an irregularity which he himself has accepted, waived or acquiesced.”
I hasten to add also that it is the practice by this court after upholding the preliminary objection of a Respondent to automatically terminate the appeal and thus striking out same. See Adelekan V. Ecu-line NV supra at 58 where this court after upholding the preliminary objection of the Respondent, struck out the main appeal and the suit. See also this court in Adigun V. Ayinde under reference supra.
I am however mindful of the applicants’ affidavit at paragraph 9 wherein they averred as follows:-
“9. That I am informed by appellants’ counsel whom I verily believe that it is the tradition of this Honourable court to take the substantive appeal and the preliminary objections together and consider same in its judgment in constitutional matters such as the appellants’ appeals raising the issue of non-qualification/disqualification of 1st respondent.”
The counter affidavits filed by the 1st and 2nd respondents are vehemently opposing the foregoing deposition in its entirety and more. For purpose of contradicting the said paragraph 9 supra, it is on record that the procedure adopted by the court in conducting the proceedings was agreed upon by parties. The case of Amaechi V. INEC (supra) is again in reference. The applicants have, in the result waived their right and cannot be allowed to approbate and reprobate.
As rightly submitted and also deposed to on the 1st respondent’s written submissions, and counter affidavit respectively, the totality of the application is an attempt to invite this court to sit on an appeal over its Ruling delivered 8th June, 2012 and which it is not clothed with the power to do.
The other arm of the applicants’ view-point for consideration is the submission relating Section 285(6) and (7) of the Constitution (supra) which learned senior counsel argues constitutes encroachment on the Independence of the judiciary and a denial of right of fair hearing to the determination of the applicants’ petitions.
By the very nature of the application before us, it is my strong view that a general impression is created that the effect and finality of Section 285(6) and (7) of the Constitution have not been comprehended/recognized at all or fully understood. This is in view of the incessant recurrence of the applications made and calling upon the court to either revisit or set aside its earlier decisions. I need to add quickly that this court had in various judicial pronouncements interpreted on the Constitutional finality of the foregoing provisions which cannot be questioned for whatever reason.
Therefore, the apt and pertinent question to pose at this juncture is:- in view of the limitations and constrains imposed on this court and the rights of the applicants by the provisions of Section 285(6) and (7) of the Constitution as amended, is this court clothed with the jurisdiction to make the orders sought by the applicants, that their appeals be heard on the merits That is to say in otherwords, taken for granted that the application for setting aside succeeds.
The poser question, I must say is purely hypothetical in view of the earlier conclusion arrived at and refusing the setting aside of the ruling delivered 8th June, 2012.
In summary, the totality of the submission by the learned senior counsel for the applicants placed heavy premium particularly on the two cases of Unongo V. Aku (1983) 14 NSCC 563 and Kadiya V. Lar (1983) 2 SCNLR 368 wherein counsel lamented the havoc wreaked by Section 285(6) on the provision of Section 4(8) of the Constitution and thus interfering with the doctrine of the separation of powers under Sections 5 and 6 of the same Constitution.
It is however intriguing to say that the said learned counsel had totally failed to appreciate that the foregoing two cases, upon which the ganging force is anchored, were both decided under Section 140 of the Electoral Act, 1982 which was an entirely different dispensation from the present application; thus a remarkable distinguishing feature marking the difference.
In otherwords and put differently, the present time line application for the hearing and determination of election petitions and appeals are the creation of Section 285(6) and (7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Therefore, it is not out of place to conclude that all the brilliant authorities cited by the learned applicants’ counsel in support of the application but which were decided under the old dispensation, are of no relevance.
It is not in contention between parties for instance that the Ruling, the subject matter of application in the two appeals SC.191/2012 and SC.191A/2012 emanated from the two appeals filed against the decisions of the Court of Appeal Makurdi, Judicial Division delivered on 12th April, 2012 and 24th April, 2012 respectively. By implication and application of Section 285(7) of the 1999 Constitution (as amended) the 60 days within which this court is required to deliver judgment in Appeal No. SC.191A/2012 lapsed on the 11th June, 2012, the decision appealed against having been delivered on the 12th April, 2012. Correspondingly, and in Appeal SC.191/2012, the date of delivering judgment also lapsed on 23rd June, 2012 with the delivering of the decision appealed against made on the 24th April, 2012.
The Constitutional mandate and also its enforcement are well pronounced and enunciated in various judicial authorities by this court wherein imposition is placed upon the tribunal to deliver its judgment within 180 days from the date of filing a petition. Prominent among such authorities is the case of ANPP V. Goni (2012) 1 NWL R (Pt.1298) P.147 at 181, per Onnoghen, JSC which affirmed the immutability of the 180 days instituted in Section 285(6); there in the decision, the court re-iterated the time tested principle of law that jurisdiction is a creation of statute and said:-
“I am compelled by circumstances beyond my control to state, without fear of contradiction as same has been settled by a long line of authorities that jurisdiction is a creation of statute or the Constitution. Jurisdiction is therefore not inherent in an appellate court neither can it be conferred on a court by order of court.”
By reference therefore, it goes without saying that the jurisdictional competence of the tribunal under Section 285(6) cannot by any reason exceed the 180 days allotted. It remains sacrosanct and can neither be added to nor subtracted from. With the Constitution being the final authority, any attempt to derogate there from would be met by a brick wall which cannot be penetrated through. From the foregoing, it follows that the absence of jurisdiction is indeed futile. I wish to further restate that jurisdiction which is a creation of statute serves an authenticating mandate; it is also obvious that where a statute does not create jurisdiction, then it does not exist.
Further still and on the foregoing authority of ANPP V. Goni (supra), the immutable nature of Section 285(6) was again restated and guaranteed by Onnoghen, JSC at pages 192 – 193 when he said:-
“Despite the decisions of this court, since October, 2011 on the time fixed in the Constitution some of the justices of the lower court still appear not to have gotten the message. From where will the election tribunal get the jurisdiction to entertain the retrial after the expiration of the …………… 180 days assigned in the Constitution, without extending the time so allotted Do the courts have the vires to extend the time assigned by the Constitution The answer is obviously in the negative. It should be constantly kept in mind that prior to the provisions of Section 285(6) of the 1999 Constitution, as amended; there was no time limit for the hearing and determination of an election petition by the election tribunals or the appeals arising therefrom. That situation resulted in undue delay in the hearing and determination of an election petition by the election tribunals or the appeals arising therefrom. That situation resulted in undue delay in the hearing and determination of election matters. The amendment to the original Section 285 of the 1999 Constitution by allotting time within which to hear and determine election petition and appeals arising therefrom is designed to ensure expeditious hearing and conclusion of election matters ……………….If the decision of the lower court ……….. is allowed to stand as urged by the respondents it would reintroduce the earlier mischief which the amendment sought to correct. It will mean that the instant election petition can go on for another………… 180 days or more after the expiration of the original…………. 180 days assigned by the Constitution.
It is my considered view that the provisions of Section 285(6) ………..is like a statute of limitation which takes away the right of action from a party leaving him with an unenforceable cause of action. The law may be harsh but it is the law and must be obeyed to the letter ……….”
The implication of the foregoing restatement by his Lordship is very explicit, clear and simple and needs no further interpretation. In otherwords, the provision of the Constitution had spoken, there cannot be an addendum or another re-opening of the case with the intention to either add there to or subtract there from.
Contrary to the submission made by the learned senior counsel representing the applicants, the contention put forth on behalf of the respondents’ stands very well positioned, that the present application is nothing but mere academic. This was the view held by this court in an unreported Ruling in Appeals Nos. SC.1/2012 and SC.2/2012 between Alhaji Mohammed Goni & Anor. V. Alhaji Kashim Shetima & Ors. Delivered on 8th Day of May, 2012 wherein Tabai, JSC said:-
“………..by virtue of Section 285(6) an appeal from a decision of the Court of Appeal to this court lapses 60 days after judgment of the Court of Appeal.”
The application in that case was held as mere academic, unwarranted and accordingly dismissed.
The principle of law is also well entrenched in our judicial system as rightly submitted on behalf of the respondents that where an action or an appeal has no practical or utilitarian value to the appellant, any judgment given in his favour will certainly render such an appeal or action merely academic which this court had warned consistently, without mincing words, that such venture should not be embarked upon. The foregoing endorsement was for instance emphasized in the case of Adeogun V. Fashogbon supra, it was held at page 180 that:
“This appeal centres on whether the issues involved in the matter are now academic and hypothetical or are sill live issues. In Plateau State of Nigeria V. Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 346, I defined academic and hypothetical suits at page 419:
“A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity. A suit is hypothetical if it is imaginary and not based on real facts……………”
Also in a similar case of Agbakoba V. INEC supra, 547 this court held amongst others and said:-
“When an issue in an appeal has become defunct it does not require to be answered or controvert about and leads to making bare legal postulations which the court should not indulge in;…………….”
It is a matter of common knowledge that the 180 days from the date the original petition was filed and also the 60 days from the date of delivery of the judgments by the Court of Appeal which judgments were appealed against in Appeals SC.191/2012 and SC.191A/2012, have lapsed. Consequently, it is therefore evident that the totality of the present application has become academic and bereft of any live issue, which this court lacks the jurisdiction to entertain.
In otherwords, and whichever way it goes, the setting aside of the ruling as sought on the relief will in no way salvage or benefit the course of the applicants’ case, which application did not lie within the jurisdictional competence of this court by reason of expiration of time. Put differently, the applicants, as rightly submitted on behalf of the respondents, will not in the circumstance of this application enjoy any practical or utilitarian value from the decision, because this court has no power to determine the appeal in issue, with same having become constitutionally barred. In the same vein, it also follows that the trial tribunal is equally no longer clothed with jurisdiction to hear the petition on the merits.
For instance and borrowing from the words of Tobi, JSC, the learned jurist in the case of Inakoju V. Adeleke (2007) 4 NWLR (Pt.1025) p. 423 had this to say at page 597:
“The courts become helpless when the Constitution itself provides for ouster clauses such as Section 188. In such a situation, the courts hold their heads and arms in despair and desperation. They can only bark but cannot bite. Their jurisdiction is to give effect to the ouster clause because that is what is in the Constitution or what the Constitution says.”
Following from the foregoing therefore, the supremacy of the Constitution is obvious as being the only instrument which is imbued with absolute power to create and confer jurisdiction. It is the ultimate and can be compared to none. The Learner’s Dictionary concise Edition defines the word supreme as thus:
“the greatness of a quality or thing.”,
Also in the famous words of Uwaifo, JSC in the case of A.G. Ondo State V. A.G. Federation (supra) at 418 – 419 his Lordship had this to say:-
“It must be recognized that our Constitution is an organic instrument which confers powers and also creates rights and limitations. It is the supreme law in which certain first principles of fundamental nature are established. Once the powers, rights and limitations under the Constitution are identified as having been created, their existence cannot be disputed in a court of law.”
Again the learned jurist Onnoghen, JSC did not also mince his words in the case of ANPP V. Goni (supra) when he said:
“Jurisdiction is a creation of statute or the Constitution………it is not inherent in an appellate court neither can it be conferred on a court by order of court.”
On a community reading of the foregoing conclusions arrived there at, it is evident that the Constitutional effect of Section 285(6) and (7) has been well pronounced upon by this court times without number, in plethora of authorities. The subsequent recurrence of suits filed and seeking to overreach the Constitutional interpretation of the Section thereof is of great concern. Clarion calls are made in loud and clear terms that there must be an end to litigation. It is unfortunate that the call appears as if it is a lone voice sounding only in the wilderness and not within human hearing. Decisions in case laws are meant to speak volume both in the given situation and for future guidance. Counsel is well advised to desist from filing unnecessary suits which are merely academic and yielding no benefits but mere waste of quality time.
The application at hand in my view is purely academic and therefore frivolous, vexatious and an abuse of court process. Same I hold is hereby refused and dismissed. There shall also be punitive costs awarded against the applicants’ counsel and it is assessed at N1,000,000.00k in favour of each set of respondents.
The application is hereby dismissed with N1,000,000.00k costs in favour of each set of respondents against the applicants’ counsel.