HON. JOHN OBAFEMI & ANOR. V. PEOPLES DEMOCRATIC PARTY (PDP) & ORS
(2013)LCN/5958(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2013
CA/I/EPT/22/2011
RATIO
“It is the law that one of the essential elements for the exercise by a Court of its jurisdiction is that the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. See A.G. of the Federation vs. Sode (1990) 1 NWLR Part 128 Page 500; Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; Osafile vs. Odi (No.1) (1990) 3 NWLR Part 137 page 130.” Per DANIEL-KALIO, J.C.A.
“The issue of jurisdiction is very fundamental to adjudication and where a Court lacks jurisdiction the proceedings by the Court is null and void no matter how well conducted. See, SULE V. KABIR (2011) 2 NWLR (PT.1232) 504; A.G. FEDERATION V. ABUBAKAR (2005) 16 NWLR (PT. 1112) 135, JAMES V. OKEREKE (2008) 13 NWLR (PT. 1105) 544; and OLOWO V. NIGERIAN NAVY (2012) 12 SC (PT. 2) 1.” Per UWA, J.C.A.
“A Court may exercise its inherent power or inherent jurisdiction in respect of a cause or matter within its jurisdiction but, it has no power or jurisdiction over a cause or matter not within its jurisdiction. Thus, the inherent power of a Court of record is supplementary to and dependent on the statutory jurisdiction of the Court in a Court. See, GOMBE V. P.W. (NIG.) LTD. V. (1995) 6 NWLR 402, P.402 at 422; AKILU V. FAWEHINMI (NO.2) (1989) 2 NWLR PT.102, P.22 at 97, and CA/E/EPT/52/2011 – APGA & ANOR. V.ANDY EMMANUEL UBA & ORS. (unreported decision of the full Court of the Court of Appeal) delivered on 24th February, 2011. See another decision of the full Court of Appeal delivered on 13th day of March, 2012 in CA/E/EPT/4M/2012, ANDY EMMANUEL UBA VS. APGA & 2 ORS. Also CA/EK/M/1/2011 – SEGUN ONI & ANOR. V. FAYEMI & ORS. (unreported) a decision of the full Court, delivered on 27th February, 2012. This Court therefore cannot exercise its inherent powers where it has no jurisdiction.” Per UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. HON. JOHN OBAFEMI
2. PEOPLES PARTY OF NIGERIA Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY (PDP)
2. HON. OLUSOLA SAMUEL OSHIMADE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Ruling): The application is to set aside the judgment of this Court delivered on the 19th day of December, 2011 and the reasons given on the 24th day of February 2012 as same is null and void. The application was brought pursuant to Order 7 Rule 1 of the Court of Appeal Rules, 2011 and under the Inherent Jurisdiction of this Court.
The grounds for the relief sought are as follows:
“1. The lower Tribunal delivered judgment in the election petition filed jointly by the 1st and 2nd Respondents on the 9th day of November 2011.
2. Being dissatisfied with the judgment of the Tribunal, the Appellants appealed to this Honourable Court via a Notice of Appeal dated of November (sic) 2011.
3. On the 19th of December 2011, this Honourable Court delivered judgment in which it allowed the Appeal and reserved reasons to a later date.
4. The reasons for the judgment of this Honourable Court was finally given on the 24th of February 2012, a period of 107 days after the judgment of the lower Tribunal appealed against was delivered.
5. The said judgment of this Honourable Court is in the light of the provisions of Section 285(7) of the 1999 Constitution of the Federal Republic of Nigeria as amended null and void, same having been delivered within a period of more than 60 days after the judgment of the lower Tribunal complained about by the Appellants.
6. This Honourable Court has the inherent power to set aside its judgment that is null and void.”
In support of the application was a ten paragraph affidavit deposed to by Douglas Daniels, a litigation officer in the firm of the solicitors to the Applicants and a further affidavit of four paragraphs deposed to by Chinedu Mbata also a litigation officer in the same firm.
The application was opposed by the 1st and 2nd Respondents who filed a joint Counter-Affidavit of twenty (20) paragraphs deposed to by the 1st Respondent Hon. John Obafemi, a Legislator/Politician. The 3rd Respondent, also filed a Counter-Affidavit of twelve (12) paragraphs deposed to by one Gabriel Onojasan, a legal practitioner, then Counsel to the 3rd Respondent.
In moving the application the learned Counsel to the Applicants Mrs. Ifeoma Esom submitted that the judgment of this Court of 19/12/11, Exhibit ‘A’ annexed to the further affidavit (the reasons for the judgment Exhibit ‘B’ delivered on 24/2/12) is null and void the reasons having been given 107 days after the period allowed by S.285(7) of the 1999 Constitution as amended.
It was submitted that this Court is the last Court in respect of the State House of Assembly matters and that for this reason this Court could deliver judgment and give reasons later pursuant to Section 285(8) of the 1999 Constitution as amended. It was the contention of learned Counsel that the judgment and reasons must be given within a period of 60 days. Reference was made to the Apex Court’s consolidated appeal No. SC14A/12, SC14B/12 and SC14C/12 delivered in the case of ABUBAKAR & ORS. V. INEC & ORS. on 24/2/2012., particularly Odili, JSC at page 16 also the Supreme Court decision of P.D.P. V. CHIEF ARAYO OKOROCHA, Appeal No. SC/17/2012 delivered on 2/3/12. We were urged to set aside the judgment of this Court.
In response the learned Senior Counsel Professor Taiwo Osipitan (SAN) appearing with O. J. Akinwale Esq. for the 1st and 2nd Respondent in opposing the application relied on his twenty (20) paragraph affidavit, deposed to by the 1st Respondent, particularly paragraphs 9-13. It was argued that the decision sought to be impeached is a final decision of a final court, see Section 246 of the 1999 Constitution, of the Federal Republic of Nigeria as amended (hereafter referred to as the Constitution). It was submitted that Section 246 should be read with Section 285(7), (8) of the Constitution as amended.
Further, that this being a final Court, although Section 285(8) shows that judgment and reasons should be given within 60 days but Section 285(8) creates an exception, the Court in all final decisions could give decision and give reasons later.
It was the contention of the learned Senior Counsel that this Court could pronounce judgment and give reasons later with no time limit. It was argued that if there was to be a limit, the above provision would have said so, unlike Section 287 that specifically provided that reasons be given within 60 days which is time bound. It was submitted that there is no time limit in respect of Section 285(8). Further, that the Applicants’ contention is applicable in cases where this Court is an intermediate Court in which time is of the essence where judgment and reasons must be given within sixty (60) days, It was argued that the cases cited and relied upon by the Applicants’ counsel are distinguishable in that this Court was an intermediate Court, reference was made to the following cases: IKENYA V. PDP (2012) 12 NWLR PT. 1314, PAGE 493 at 507 paragraph D, page 508 paragraph A at 513 at E-G, 515 E-H, Rhodes-Vivour, JSC, GREAT OGBORU V. UDUAGHAN delivered on 2/3/12 at 20-21, I.T. Muhammed, JSC., we were urged to distinguish the two situations.
In reply on points of raw, the learned Counsel to the Applicants referred to the decision of Ngwuta, JSC at page 7, in PDP VS. OKOROCHA (supra) to the effect that even if the Court of Appeal is the final Court, the Court is still bound to comply with Section 285(7) of the Constitution (supra) as to time. It was argued that the contention that Section 285(8) is not time bound will not apply. In Abubakar’s case (supra) page 16, per Odili, JSC was referred to.
It was submitted finally that on this Court being functus officio, it is not arguable when it relates to a null and void judgment. Reference was made to the case of MENAKAYA V. MENAKAYA (2001) 16 NWLR (PT.738) P.203 at 263. We were urged to grant the application.
It is apt to start with the provisions of Section 285(7) and (8) of the Constitution as amended at this point, which provides thus:
“S.285(7) An appeal from a decision of an Election Tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal.
(8) The Court, in all final appeals from an Election Tribunal or Court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.”
Section 246(3) of the constitution as amended provides as follows:
“246(3) The decisions of the Court of Appeal in respect of appeals arising from the National and State House of Assembly election petitions shall be final.”
The above constitutional provisions are plain, clear and unambiguous and should at all times be given their ordinary meaning, See MOBIL V. F.B.I.N. (1977) 3 SC P.53, TARIOLA V. WILLIAMS (1982) 7 SC P. 25 and AGBITI V. THE NIGERIAN ARMY (2011) 206 LRCN 181 at 230f. This Court is empowered by the above provisions to deliver its judgment and give reasons later for the judgment where it is the final court as in National and State Houses of Assembly petitions. The judgment and reasons must both be given within the 60 days as provided in Section 285(7) which must also be read together in respect of the above mentioned matters.
The present application arose from a judgment of the Ogun State National and State Houses of Assembly Election Petition Tribunal sitting in Abeokuta delivered in the election petition filed jointly by the 1st and 2nd Respondents against the result of the election declared by the 3rd Respondent for a member representing Remo North State Constituency in Ogun State, delivered on the 9th day of November, 2011, Exhibit ‘C’ annexed to the Applicants’ further affidavit in support of the application. On the 19th day of December 2011, this Court delivered its judgment allowing the appeal against the judgment Exhibit ‘A’ and reserved its reasons to a later date, 24th February, 2012, Exhibit ‘B’. The Applicants have urged this Court to declare null and void the judgment of this Court for the reason that the reasons were given outside the 60 days constitutionally allowed the court to entertain election appeals, matters or issues arising therefrom. The question that arises now is whether this Court can re-open and look into the merit of the application outside the 60 days period allowed the court to entertain election appeals?
In paragraph 9 of the 1st and 2nd Respondents Counter-Affidavit, it was rightly averred that this Court is the final Court in respect of Election Petitions concerning a State House of Assembly and paragraph 14 states that this application was filed outside the 60 days constitutionally provided for disposal of appeals in State Assembly matters as the present one. This application was dated and filed on 2/3/12, as rightly averred in paragraph 16, of the Counter -Affidavit, the Applicants have by the application, sought for us to overrule ourselves in view of the subsequent decisions of the Supreme Court to the effect that the judgment and reasons for the judgment be given within 60 days. It is noteworthy that all the decisions of the Apex Court relied upon by the Applicants’ Counsel were delivered after 24/2/12 when the reasons were given in the judgment at hand except the consolidated appeal numbers SC 14/2012, SC 14A/2012, SC 14B/2012 and SC/14C/2012 delivered same day. This Court has no power to overrule itself for any reason in the present circumstances.
On the face of the application and the surrounding circumstances, the sixty (60) days prescribed for the determination of appeals has long expired. On the interpretation of the constitutional provision pertaining to time above as in Section 285(7) (supra) see, PEOPLFS DEMOCRATIC PARTY (PDP) V. CONGRESS FOR PROGRESSIVE CHANGE (CPC) & ORS. (2011) LPELR – SC 272/2011.
This application was brought pursuant to Order 7 Rule 1 of the Court of Appeal Rules, 2011 and under the inherent jurisdiction of this Court. A Court may exercise its inherent power or inherent jurisdiction in respect of a cause or matter within its jurisdiction but, it has no power or jurisdiction over a cause or matter not within its jurisdiction. Thus, the inherent power of a Court of record is supplementary to and dependent on the statutory jurisdiction of the Court in a Court. See, GOMBE V. P.W. (NIG.) LTD. V. (1995) 6 NWLR 402, P.402 at 422; AKILU V. FAWEHINMI (NO.2) (1989) 2 NWLR PT.102, P.22 at 97, and CA/E/EPT/52/2011 – APGA & ANOR. V.ANDY EMMANUEL UBA & ORS. (unreported decision of the full Court of the Court of Appeal) delivered on 24th February, 2011. See another decision of the full Court of Appeal delivered on 13th day of March, 2012 in CA/E/EPT/4M/2012, ANDY EMMANUEL UBA VS. APGA & 2 ORS. Also CA/EK/M/1/2011 – SEGUN ONI & ANOR. V. FAYEMI & ORS. (unreported) a decision of the full Court, delivered on 27th February, 2012. This Court therefore cannot exercise its inherent powers where it has no jurisdiction.I am of the firm but humble view that the application itself is an abuse of the Court’s process having regard to the above decision in APGA V. ANDY EMMANUEL UBA (SUPRA) where the full Court of Court of Appeal held that it had no jurisdiction to entertain a similar application as this on an alleged nullity of the judgment of the Court of Appeal in respect of Section 285(7) of the 1999 Constitution as amended. I am bound by the above decision. What the Applicants have sought is for this Court to revisit or review the decision of this Court given as far back as 19th December, 2011 in view of nullifying same thus disregarding the constitutional provisions that must be strictly observed and obeyed that is Sections 285(7) and 246(3) to the effect that the decision of this Court is final in respect of National and State House of Assembly election petitions. One must also have in mind the provisions of Order 19 Rule 4 of the Court of Appeal Rules, 2011.
As averred in paragraph 10 of the 3rd Respondent’s Counter-Affidavit, entertaining, reviewing and possibly overturning as sought by the Applicants the judgment of the Court of Appeal by this Court as I stated earlier in this ruling, can be likened to sitting on appeal over its own decision based on a post judgment application to set aside and or nullifying a judgment of this Court.
This application arose from a decision of this Court in an election appeal, the period within which this Court could competently exercise its jurisdiction over the matter has lapsed. The issue of jurisdiction is very fundamental to adjudication and where a Court lacks jurisdiction the proceedings by the Court is null and void no matter how well conducted. See, SULE V. KABIR (2011) 2 NWLR (PT.1232) 504; A.G. FEDERATION V. ABUBAKAR (2005) 16 NWLR (PT. 1112) 135, JAMES V. OKEREKE (2008) 13 NWLR (PT. 1105) 544; and OLOWO V. NIGERIAN NAVY (2012) 12 SC (PT. 2) 1. The resultant effect is that this Court has no jurisdiction to entertain and resolve the application brought outside the sixty (60) days from when the judgment of the Tribunal was delivered. This Court has become functus officio concerning the matter. The motion dated and filed on 2nd March, 2012 by the Applicants is hereby struck out as this Court lacks the jurisdiction to entertain same.
Parties to bear their respective costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the Ruling delivered by my learned brother Chidi Nwaoma Uwa, J.C.A., striking out the application without costs. I have nothing useful to add.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have read the ruling of Chidi Nwaoma Uwa J.C.A. in this appeal and I agree with the reasoning and conclusion reached. I wish to make a little contribution of my own in support of the ruling.
The application is to set aside the judgment of this Court delivered in an election matter on the ground that the judgment is null and void, the reasons for the judgment having been given on the 24th of February 2012 long after the judgment was delivered on the 19th of December, 2011. The arguments in support of and in opposition to the application to set aside the judgment have been lucidly set out in the lead ruling. I consider that it will be superfluous to repeat them here.
There is no doubt that the Court of Appeal has inherent jurisdiction to set aside its judgment, in certain cases including where the judgment is given without jurisdiction thus rendering it a nullity. It has been held that cases where the Court of Appeal has inherent jurisdiction to set aside its decision, order or judgment are where it is established that the decision has been obtained as a result of fraud or misrepresentation, given without jurisdiction thus rendering it a nullity and where it is obvious that the Court was under a mistaken belief that the parties consented to the decision, order or judgment. See Alaka vs. Adekunle (1959) LLR 76; Olumese vs. Falana (1990) 3 NWLR Part 136 Page 1; Obioha vs. Ibero (1994) 1 NWLR Part 322 Page 503; Odofin vs. Olabanji (1996) 3 NWLR Part 435 Page 126.
The Court to which the present application to set aside the judgment is made, needless to say, is the Court of Appeal. The Court that gave the judgment that is urged to set aside is the Court of Appeal in an election matter. See Section 285(7) of the Constitution 1999 as amended. Thus, the Court of Appeal that gave the judgment sought to be set aside is the Court of Appeal sitting for the purpose of election matters, given specific power to decide on the subject matter of elections, not the Court of Appeal exercising its normal functions as an appellate Court.
It is the law that one of the essential elements for the exercise by a Court of its jurisdiction is that the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. See A.G. of the Federation vs. Sode (1990) 1 NWLR Part 128 Page 500; Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; Osafile vs. Odi (No.1) (1990) 3 NWLR Part 137 page 130.It is very clear to me that the subject matter of this application which is to set aside a judgment in an election matter, is not one to which this Court of Appeal sitting qua Court of Appeal in its normal duties, has jurisdiction over.The Court to approach is the Court of Appeal in an Election Matter established pursuant to Section 285(7) of the Constitution as amended. For this reason and the fuller reasons given by my brother Chidi Nwaoma Uwa J.C.A., I also strike out the application as this Court has no jurisdiction to entertain it.
Appearances
Mrs. Ifeoma Esom for 1st and 2nd Applicants;For Appellant
AND
Professor Taiwo Osipitan (SAN) with O. J. Akinwale Esq. for the 1st and 2nd Respondents;
3rd Respondent served but absent.For Respondent
