RT. HON. ABDULLAHI BELLO & ANOR v. HON. YUSUF AHMED TIJANI DAMISA & ORS
(2016)LCN/8174(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of February, 2016
CA/A/38/M/2016(R)
RATIO
APPEAL: THE TIME LIMITATION OF AN APPEAL FROM A DECISION OF AN ELECTION TRIBUNAL OR COURT OF APPEAL IN AN ELECTION MATTER
Section 285 (7) of the Constitution of Nigeria 1999 (as amended) provides,
“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.”
It must be stated that election petition matters are sui generis and are not amenable to the flexibility of the normal cases. The time provided for above is strict and inelastic, and incapable of being extended by any stretch of imagination or under any quise. In the case of ANPP v. GONI (2012) 1 NWLR (1298) 147, 182 – 182, the Supreme Court stated that,
“It has been held by this Court in a number of cases including consolidated appeal Nos. SC141/2011 SC.266 /2011 SC.267/2011; SC.282/2011; SC.356/2011 and SC.357/2011. BRIG. GEN. MOHAMMED BABA MARWA & ORS v. ADMIRAL MURTALA NYAKO & ORS delivered on 27th January, 2014 reported in (2012) 6 NWLR (1296) 199 that the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or enlarged or in any way enlarged; that if what is to be done is not done within the time so fixed, it lapses as the Court is thereby robbed of the jurisdiction to continue to entertain the matter.”
See also ACN v. INEC (2013) 13 NWLR (1370) 161, 184, SHETTIMA v. GONI (SC.332/2011). It is also pertinent to refer to PDP v. CPC (2011) 17 NWLR (1277) 485, 508 where Onnoghen, JSC, stated thus,
“I hold the considered view that in terms of times to do anything relating to an election petition or judgment thereon or arising there from, it is the above provision that apply and that no Court has the power to extend the times as constitutionally provided in Section 285 (5) – (7) of the 1999 Constitution (as amended) by interpretation of the Sections or otherwise.” per. JOSEPH EYO EKANEM, J.C.A.
COURT: JURISDICTION; CIRCUMSTANCES WHERE THE COURT HAS INHERENT POWER TO SET ASIDE IT JUDGEMENT
It must be stated that a Court has inherent power to set aside its judgment in the following circumstances;
(i) Where the judgment is obtained by fraud or deceit on the Court by one or more of the parties. Such a judgment can be set aside by means of a fresh action;
(ii) Where the judgment is a nullity in which case a person affected by it is entitled ex debito justitiae to have it set aside;
(iii) Where it is obvious that the Court was misled into giving the judgment under a mistaken belief that the parties consented to it;
(iv) Where the judgment was given in absence of jurisdiction;
(v) Where the procedure adopted was such as to deprive the decision or judgment of the character of legitimate adjudication.
See DIN GYADI v. INEC supra, JEV. v. IYORTOM supra. ABANA v. OBI (2005) 6 NWLR (920) 183, 203 and BESSOY LTD. v. HONEY LEGION NIG. LTD (2010) 4 NWLR (1184) 300, 316 and SANUSI v. AYOOLA (1992) 9 NWLR (265) 278. per. JOSEPH EYO EKANEM, J.C.A.
JUSTICES
MOORE ASEIMO A. ADUMEIN Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
BETWEEN
1. RT. HON. ABDULLAHI BELLO
2. ALL PROGRESSIVES CONGRESS (APC) Appellant(s)
AND
1. HON. YUSUF AHMED TIJANI DAMISA
2. PEOPLES’ DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated and filed on 26/1/2016, the applicants seek the following reliefs:
“1. An Order extending time within which the Applicant can apply to set aside the judgment and the consequential orders made by this Hon. Court on the 8th day of December, 2015 in Appeal NO. CA/A/EPT/648/2015 BETWEEN HON. YUSUF AHMED TIJANI DAMISA AND ANOR v. RT. HON. ABDULLAHI BELLO & ORS, same having been made without jurisdiction.
2. An Order of this Hon. Court setting aside judgment and the consequential orders made by this Hon. Court on the 8th day of December, 2015 in APPEAL NO: CA/A/EPT/648/2015 BETWEEN HON. YUSUF AHMED TIJANI DAMISA AND ANOR v. RT. HON. ABDULLAHI BELLO AND ORS, having been made without jurisdiction and for such further order or other orders as this Hon. Court may deem fit to male in the circumstance.
The grounds for the application are as follows:
?(a) This Hon. Court on the 8th day of December 2015 nullified the election and return of the 1st Applicant as a member of the House of Representative of
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the Federal Republic of Nigeria representing Okene/Ogori Magongo Federal Constituency on the ground of improper conduct or no conduct of the primary election of the 2nd applicant, a ground totally outside the competence and jurisdiction of this Hon. Court.
(b) The judgment and consequential orders made by this Hon. Court on?the 8th December 2015, in APPEAL NO. CA/A/EPT/648/2015, HON. YUSUF AHMED TIJANI DAMISA AND ANOR v. RT. HON. ABDULLAHI BELLO and ORS were made without jurisdiction and therefore null and void.
(c) This Hon.?Court has the jurisdiction and powers pursuant to S.6 (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria as amended , read together with Order 7 Rule 12 of the Court of Appeal Rules 2011 to set aside its judgment and orders made without jurisdiction upon application by persons affected.
(d) The judgment and consequential orders made by this Hon. Court on the 8th December 2015, in APPEAL No: CA/A/EPT/648/2015, HON. YUSUF AHMED TIJANI DAMISA and ANOR v. RT. HON. ADULLAHI BELLO and ORS fundamentally affect the Applicants who have had their election and
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return nullified by orders made without jurisdiction and who are being subjected to another avoidable election for no justifiable grounds outside the null and void orders of 8th December 2015.
(e) This application was not brought and filed within 10 days from the date of the judgment as required by the provisions of the Rules of this Hon. Court because applicants tried unsuccessfully to obtain the judgment of this Hon. Court in this appeal to no avail within the prescribed 10 days, hence the prayer for extension of time.
(f) The failure to apply within the prescribed period was due to the fact at the time the judgment of this Hon. Court was certified and released to the applicants 10 days period has passed and the grant of this application is in the interest of justice and public policy more so that the judgment of 8th December 2015 was Dated this 26th January, 2015.
The application is supposed by;
(i) An affidavit of 17 Paragraphs deposed to by Usman O. Sule, a member of the applicants’ legal team;
(ii) A written address; and
(iii) A further
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written address.
The 1st and 2nd respondents in response filed:
(i) A Preliminary objection by way of a motion on notice,
(ii) A counter – affidavit of twelve paragraphs; and
(iii) A written address.
The motion on notice was withdrawn by Senior Counsel for the 1st and 2nd respondents and was struck out by the Court at the hearing,
The 3rd respondent did not file any process.
J. S. Okutepa (SAN) of counsel for the applicants adopted the written address of the applicant prepared by Ocholi O. Okutepa, Esq. He urged the Court to grant the application.
Tawo E. Tawo (SAN) of counsel for the 1st and 2nd respondents adopted the processes filed on their behalf and urged the Court to dismiss the application.
In the applicants’ written address, two issues are identified for the determination of the application, viz;
1. Whether the application for extension of time ought not to be granted.
2. Whether in view of the facts and circumstances of this application, the reliefs sought by the applicants ought not to be granted.
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Arguing issue 1, applicants’ counsel referred to Order 7 Rule 12 of the Court of Appeal Rules, 2011 and submitted that the delay in bringing the application had been sufficiently explained in the affidavit. He stated that the Rules of this Court permit it to grant prayer 1. He submitted further that no litigant should be punished for what is not his fault as the judgment sought to be set aside was not made available to the applicants.
Regarding issue 2, he urged the Court to set aside the judgment on the basis that the grounds upon which the Court made the orders in the judgment arose from grounds which this Court and the Tribunal were devoid of jurisdiction to dabble into, namely; alleged improper conduct or non-conduct of primary election. He submitted that a Court can set aside its judgment which is null and void or which is given without jurisdiction. He cited and relied on several cases including ADEYEMI – BERO v. LASDPC (2013) 8 NWLR (1356) 238 ADEGOKE MOTORS LTD v. ADESANYA (1989) 3 NWLR (109) 250, OKOYE v. NIGERIAN CONSTRUCTION FURNITURE CO. LTD (1991) 6 NWLR (199) 501 and DINGYADI v. INEC (2011) 10 NWLR (1255) 347.
He went further to
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submit that this Court cannot exercise jurisdiction in areas where the trial Tribunal is bereft of jurisdiction. He referred to and relied on OLOFU v. ITODO (2010) 18 NWLR (1225) 546. It was his contention that the issue upon which the election of the applicants was nullified is a pre-election matter over which the Election Tribunal had no jurisdiction rather, he opined, it was the Federal High Court or State High Court that was vested with such jurisdiction. He referred to and relied on several cases including UCHA v. ONWE (2011) 4 NWLR (1237) 386, ISHAKU v. ALHASSAN (UNREPORTED) decision of this Court in CAL/EPT/768/2015 delivered on 31/12/2015 and the Supreme Court case of SHINKAFI v. YARI (without providing the appeal number) delivered on 8/1/2016.
On this Court’s power to set aside its judgment, applicants’ counsel referred to ABDULFATAU v. KAYODE (2012) LPELR 14324 and JEV v. IYORTOM (2015) 15 NWLR (1484) 484.
On issue 1, Senior Counsel for the 1st and 2nd respondents submitted that the applicants did not show good and substantial reasons for the delay. He cited and relied on AMAECHI v. OMEHIA (2013) 16 NWLR (1381) 417. He submitted further
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that the 60 days stipulated for hearing and determination of election petition appeal had lapsed. He noted that there was no evidence of the application made for the certified true copy of the judgment.
On issue 2, it was his submission that this Court lacked the jurisdiction to set aside its own judgment in the circumstances of this application. He placed reliance on Section 246 (3) of the Constitution and Order 19 Rule 4 of the Rules of the Court. He termed the application as nothing but an appeal and that no such right exists. He referred to Section 285 (7) of the 1999 Constitution (as amended). He noted that the copy of the judgment sought to be set aside is not before this Court, so also copies of the judgment in ISHAKU v. ALHASSAN and SHINKAFI v. YARI. In any event, he added the doctrine of stare decisis does not have a retrospective effect.
Continuing, counsel submitted that the case of ABDULFATAI v. KAYODE (2012) LPPECR – 14324 was quoted out of con.
In reply, Senior Counsel for applicants submitted that the application was not an appeal but an application to set aside the judgment of the Court given in absence of jurisdiction.
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Section 285 (7) of the Constitution of Nigeria 1999 (as amended) provides,
“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.”
It must be stated that election petition matters are sui generis and are not amenable to the flexibility of the normal cases. The time provided for above is strict and inelastic, and incapable of being extended by any stretch of imagination or under any quise. In the case of ANPP v. GONI (2012) 1 NWLR (1298) 147, 182 – 182, the Supreme Court stated that,
“It has been held by this Court in a number of cases including consolidated appeal Nos. SC141/2011 SC.266 /2011 SC.267/2011; SC.282/2011; SC.356/2011 and SC.357/2011. BRIG. GEN. MOHAMMED BABA MARWA & ORS v. ADMIRAL MURTALA NYAKO & ORS delivered on 27th January, 2014 reported in (2012) 6 NWLR (1296) 199 that the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or enlarged or in any
8
way enlarged; that if what is to be done is not done within the time so fixed, it lapses as the Court is thereby robbed of the jurisdiction to continue to entertain the matter.”
See also ACN v. INEC (2013) 13 NWLR (1370) 161, 184, SHETTIMA v. GONI (SC.332/2011). It is also pertinent to refer to PDP v. CPC (2011) 17 NWLR (1277) 485, 508 where Onnoghen, JSC, stated thus,
“I hold the considered view that in terms of times to do anything relating to an election petition or judgment thereon or arising there from, it is the above provision that apply and that no Court has the power to extend the times as constitutionally provided in Section 285 (5) – (7) of the 1999 Constitution (as amended) by interpretation of the Sections or otherwise.”
In essence, the applicant, in their application, are asking this Court to review its judgment, set aside the same and give what they consider the appropriate order, viz; striking out the appeal for want of jurisdiction. This, in my view, can only be done within the 60 days time limit given by Section 285 (7) of the Constitution of Nigeria (as amended). This is because the prayer sought by
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the applicants falls under the expression “… anything relating to an election petition or judgment thereon or arising therefrom “in PDP v. CPC supra as well as “… what is to be done …” in ANPP v. GONI supra. Thus whether it is an appeal from the judgment of a Tribunal to the Court of Appeal or an application relating to a judgment in such an appeal (as in this instance) the 60 days provision remains immovable and insurmountable.
The judgement of the Tribunal was delivered on 12/10/2015. Between then and when the present application was filed on 26/1/2015 is more than 60 days. It is my view that this Court has no jurisdiction to entertain the instant application,
Section 6 (6) (a) of the Constitution of Nigeria 1999 (as amended) offers no help to the applicants as the inherent powers of this Court can only be exercised within the time limited by the Constitution for the exercise of this Court’s jurisdiction. The case of ABDULFATAI v. KAYODE SUPRA. cited by applicants’ counsel does not offer any redemption to the applicants as this Court in that case recognised the sacrosanct and inviolable nature of the 60 days provision in Section 285 (7) of
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the Constitution. Similarly the case of JEV. v. IYORTOM supra, cited by applicants’ Senior Counsel is inapplicable to this application as it dealt with a pre-election matter of which there is no time limit.
I therefore hold that this Court has no jurisdiction to entertain the application.
Notwithstanding the above and to fulfill all righteousness, I shall proceed to consider other aspects of the application.
Section 246 (3) of the Constitution of Nigeria 1999 (as amended) provides that,
“The decision of the Court of Appeal in respect of appeals arising from the National Assembly and State Houses of Assembly Election Petitions shall be final.”
Thus this Court would not review any judgment once delivered except to correct any clerical mistake or error arising from any accidental slip or omission or to vary the judgment or order so as to give effect to its meaning. However a judgment cannot be varied when it correctly represents what the Court decided (whether correctly or otherwise) nor shall the operative part or substantive part of it be varied and a different form substituted. See Order 19 Rule 4 of the Court of
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Appeal Rules 2011 (as amended) and DINGYADI v. INEC (2011) 10 NWLR (1255) 347.
It must be stated that a Court has inherent power to set aside its judgment in the following circumstances;
(i) Where the judgment is obtained by fraud or deceit on the Court by one or more of the parties. Such a judgment can be set aside by means of a fresh action;
(ii) Where the judgment is a nullity in which case a person affected by it is entitled ex debito justitiae to have it set aside;
(iii) Where it is obvious that the Court was misled into giving the judgment under a mistaken belief that the parties consented to it;
(iv) Where the judgment was given in absence of jurisdiction;
(v) Where the procedure adopted was such as to deprive the decision or judgment of the character of legitimate adjudication.
See DIN GYADI v. INEC supra, JEV. v. IYORTOM supra. ABANA v. OBI (2005) 6 NWLR (920) 183, 203 and BESSOY LTD. v. HONEY LEGION NIG. LTD (2010) 4 NWLR (1184) 300, 316 and SANUSI v. AYOOLA (1992) 9 NWLR (265) 278.
The application of the
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applicants is founded on (iv) supra, viz; absence of jurisdiction. The jurisdiction of this Court in respect of appeals from election Tribunals is derived from Section 246 (1) (b) of the Constitution of Nigeria which provides that:
‘An appeal to the Court of Appeal shall lie as of right from –
(b) Decisions of the National Assembly and State House of Assembly Election Tribunals…”
In the con of this application it follows that the Court of Appeal had jurisdiction over the appeal against the decision of the Election Tribunal, the subject of the judgment of this Court in Appeal No. CA/A/EPT/648/2015 sought to be set aside in the instant application. The essence of the argument of the applicants is that this Court erred in arriving at the decision that it did in view of several cases decided by the Supreme Court and this Court. Setting aside a judgment of a Court on the ground of error can only be done by an appellate Court and not the Court that gave the judgment. See MANKANU v. SALMAN (2005) 4 NWLR (915) 270, 298 and ENE v. ASIKPO (2010) 10 WLR (1203) 477, 513. In the case of JEV v. IYORTOM supra. 508, the
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Supreme Court held that it had no jurisdiction to entertain any application challenging the correctness of its judgment.
In view of the above, I agree with Senior Counsel for the 1st and 2nd respondents that the application is essentially an appeal against the judgment of this Court. As rightly argued by Counsel, no right of appeal exists in favour of the applicants since the decision of this Court is final by virtue of Section 246 (3) of the Constitution of Nigeria 1999 (as amended).
In the light of all that I have stated above, I am unable to see my way through to granting prayers 1 and 2 in the motion paper. In the light of my earlier holding that this Court has no jurisdiction to entertain the application and for the avoidance of doubt, the applicants’ application is hereby struck out for want of jurisdiction.
The parties shall bear their costs.
MOORE ASEIMO A. ADUMEIN, J.C.A.:I read before now the ruling of my learned brother, Joseph E. Ekanem, JCA, just delivered.
I agree completely that this application is devoid of merit and I also dismiss it.
I abide by the orders made by my learned
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brother.
TANI YUSUF HASSAN, J.C.A.:I had the privilege of reading the Ruling just delivered by my learned brother, Joseph E. Ekanem, JCA.
I also agree that this Court lacks jurisdiction to entertain the applicant’s application. Accordingly the application is struck out for want of jurisdiction.
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Appearances
John Matthew, Esq, With him U. O. Sule, Esq. Mrs Elizabeth Ifedayo and Miss Rabi O. AdamuFor Appellant
AND
David Adegbe Esq. With him, Miss Rita Aidelegbe, Miss Nneka Ngbalgbor and Omeh Obinna E, Esq) for 1st and 2nd respondents.
Abdulazeez Sani, Esq. for 3rd respondent.For Respondent
