Salman Abdulfatai & Anor. V. Aiyelabegan Kayode A. & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A, (Delivering the Lead Ruling)

On 21st April, 2012 (Saturday) this Court delivered judgment in Appeal No CA/IL/EPT/SH/1/2012 – an appeal against the decision of the National and State House of Assembly Election Petition Tribunal, Kwara State, which had struck out the Petition of the Petitioners (1st and 2nd Respondents herein) on 22/2/12, alleging that the same (petition) was no longer maintainable, by reason of some extant decisions of the Supreme Court in case of ANPP VS. GONI and KASHIM SHETTIMA VS GONI (Consolidated) in Suit Nos SC.1/2012 and SC.2/2012.

It is worth stating that the said Petition had earlier been heard to completion by the first Election Tribunal which decided that the elections were inconclusive in two wards, that is, BALOGUN ALANAMU WARD and OLOJE WARD at in Ilorin North/West Constituency of Kwara State; that fresh elections be conducted in the two wards within 90 days from the date of the Judgment to enable the Independent National Electoral Commission (INEC) (the 3rd Respondent herein) determine the winner of the House of Assembly election in that Constituency – that is, after the fresh elections the candidate who scores the highest number of valid votes cast (from both the original elections of 26/4/11 and the bye election) from all, the seven wards.

That decision of the 1st election tribunal was the subject matter of Appeal No EPT/CA/IL/SH/13/2011, which nullified that order of the 1st Election Tribunal and ordered that a new Election Tribunal be empanelled to retry the petition on the merit. The decision of this Court, in EPT/CA/IL/SH/13/2011, referred above, was delivered on 6/1/2012

The 2nd Election Tribunal panel was therefore set up, specifically, to carry out the said order of the Appeal Court, but the panel, suo motu, declined jurisdiction to hear the Petition and struck it out, claiming the same was no longer maintainable by reason of the extant Supreme Court decisions (supra) which had interpreted the provisions of section 285(6) of the 1999 Constitution (as amended) to the effect that the 180 days lifespan allowed for hearing of a petition cannot be extended, that that Petition had expired as at when the retrial was ordered, having been filed on 18/5/11.

That 2nd decision by the 2nd Election Tribunal became the subject matter of another appeal – Appeal No. CA/IL/EPT/SH/1/2012, which was heard by us and determined on the said 21/4/12 in favour of the Appellants. While we allowed the Appeal and set aside the ruling of the 2nd tribunal, we also set aside the decision and order of this Court in the said Appeal No. EPT/CA/IL/SH/13/2011 (which had sent back the petition to the 2nd Election Tribunal for retrial) because, going by the recent decisions of the Supreme Court in ANPP VS GONI (supra) and KASHIM SHITTIMA VS. GONI (supra), the life span of the Petition had lapsed as at the 6/1/12 when this Court took that decision and ordered the retrial. The decision/order therefore had become still-born and a nullity, by reason of want of jurisdiction to make such order. We therefore held:

“And to the extent that the decision and order of this Court delivered on 6/2/12 was reached without jurisdiction, in view of the recent decisions of the Supreme Court, it is my humble view, that that defect has had a vitiating effect on the decision and order of this court in the Appeal No. CA/IL/EPT/13/2011 and the entire judgment cannot stand, as the same becomes a nullity. It is hereby set aside.

The necessary consequence of this is that the judgment of the Election Tribunal delivered on 12/11/11, which ordered a bye-elections in the two wards whereof the elections were inconclusive, revives and subsists and must be complied with by the 3rd Respondent. Therefore the Ruling of the second Tribunal, striking out the petition on 22nd February, 2012, is hereby set aside, having been reached without jurisdiction.

Accordingly, the 3rd Respondent shall comply with the said earlier order of the Election Tribunal, delivered on 12/11/11 in the petition No. EPT/KW/SH/8/2011.”

That is the decision/judgment which the Applicants have brought a motion to pray us to set aside; that it was made per in curiam and/or without jurisdiction.

The full text of Applicants motion, filed on 30/4/12, reads:

“TAKE NOTICE that this honorable Court will be moved on the – day of – 2012, at the hour of 9’0 clock in the fore noon or so soon thereafter as may be convenient to the honourable Court to hear the Applicants through their counsel praying the honourable Court for the following orders:-

(1) Leave to apply for an order setting aside the Judgment of this honourable court delivered on Saturday, the 21st day of April, 2012 in the appeal No. CA/IL/EPT/SH/1/2012 between Aiyelabegan Kayode A. and 1 other vs. Salman Abdulfatai and 2 others for being made per in curiam and or without jurisdiction.

(2) An order of the honourable Court setting aside its order or judgment of 21/4/2012 for wrongly setting aside its previous order or judgment made on 6/1/12 ordering retrial of the election petition No. EPT/KW/SH/8/2011 between AIYELABEGAN KAYODE A. and 1 other Vs. SALMAN ABDULFATAI and 2 others, when parties directly affected by the said order or judgment of 21/4/2012 were not given the opportunity of being heard.