BENJAMIN B. NUNGWA v. JOSEPH HEMEN BOKO & ORS
(2019)LCN/13708(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of July, 2019
CA/MK/93/M/2019(R)
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
BENJAMIN B. NUNGWA Appellant(s)
AND
1. JOSEPH HEMEN BOKO
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
THE FUNDAMENTAL NATURE OF JURISDICTION
It is a rudimentary principle of law that the jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is therefore always a threshold issue. It is so radical that it forms the foundation of adjudication. Jurisdiction has variously been described as the life blood, the fiat, the stamp of authority which necessarily enures to the Court or Tribunal and empowers either to adjudicate; Buremoh v Akande (2017) LPELR-41565(SC). The jurisdiction or authority of the Court is controlled or bounded by the Statute creating the Court itself. Or, it may be bounded by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit. These touch on the legal authority of the Court to adjudicate in the matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Aremo ll v. Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (2008) 12 S. C. (PT. II) 240; Isaac Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (PT 1247) 465, (2011) LPELR-2185(SC), (2011) 2-3 SC (PT.1) 46. PER OTISI, J.C.A.
CONDITIONS TO BE SATISFIED FOR A COURT TO HAVE JURISDICTION TO DETERMINE A MATTER BEFORE IT
It is well settled that for a Court of law to have jurisdiction to hear and determine any matter before it, it must satisfy these conditions:
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other.
b) 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, and
c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 2 NSCC 374. If found that the Court had no jurisdiction to entertain a matter, every order arising from the proceedings conducted without jurisdiction amount to a nullity; ex nihilo nihil fit; Melwani v Five Star Industries Ltd (2002) 1 S.C. 120; Adesigbin v Military Governor of Lagos State (2017) LPELR-41666(SC). It is also well settled that the exercise of appellate jurisdiction is statutory. This Court has no inherent appellate jurisdiction and cannot exercise jurisdiction outside its powers. This Court derives its jurisdiction from the 1999 Constitution, as amended and from the Court of Appeal Act, 2004. The Court cannot therefore exercise jurisdiction to hear an appeal unless such jurisdiction is conferred by the Constitution or by some enabling statute; Akujinwa v Nwaonuma (1998) LPELR-391(SC); Adelekan v Ecu-Line NV (2006) LPELR-113(SC); Nwaigwe v Okere (2008) LPELR-2095(SC). In determining if a Court has jurisdiction to entertain a matter, the Court must restrict itself to examining the case as put forward by the plaintiff; Tukur v Gongola State (1989) 4 NWLR (Pt. 147) 517; Akpamgbo-Okadigbo & Ors v. Chidi & Ors (2) (2015) LPELR-24565(SC); Agi v. PDP & Ors (2016) LPELR-42578(SC). PER OTISI, J.C.A.
WHETHER OR NOT THE BINDING AND PRIMARY DUTY OF THE COURT IS CREATED BY THE CONSTTUTIONS IS TO INTERPRET AND APPLY THE PROVISIONS OF THE STATUTES
It is well settled law that the primary and binding duty of the Courts created by the Constitution is to interpret and apply the provisions of the statutes or the Constitution as they are, irrespective of whether that produces a harsh or inconvenient result; Dangana & Anor v. Usman & Ors (2012) LPELR-25012(SC); Dingyadi & Anor v. INEC & Ors (2011) LPELR-950(SC); Marwa & Ors v.Nyako & Ors 2012) LPELR-7837(SC). In Marwa & Ors v. Nyako & Ors (supra), Onnoghen, JSC (as he then was), graphically described time bound Constitutional provisions in this manner, page 36 of the E-Report:
?It is settled law that the time fixed by the Constitution for the doing of anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded, or stretched beyond what it states.?
?The position of the law in instances where there are limitation periods imposed by statute, including the Constitution, within which an action should be brought or maintained, is that legal proceedings cannot be properly and validly instituted or maintained after the expiration of the prescribed period. An action instituted or pending after the expiration of the prescribed period is said to be stature barred in law. Where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the Limitation Law for instituting such an action has elapsed by effluxion of time. PER OTISI, J.C.A.
WHETHER OR NOT LIMITATION LAWS ACTS AS A BAR TO THE RIGHT OF ACTION
The Limitation Laws therefore acts as a bar to the right of action. The effect of a statute of limitation on an action is that it takes away the right of the plaintiff to institute the action but leaves him with his cause of action intact, though, without the right to enforce same or right to judicial relief. The plaintiff would then be left with a bare and empty cause of action which he cannot enforce, for the Court would have no jurisdiction to entertain a statute barred claim; Egbe v. Adefarasin (1987) 1 NWLP (PT. 47) 1 at 20-21: Aremo II v. Adekanye (2004) ALL FWLR (Pt 224) 2113 at 2132 – 2133: Hassan v. Aliyu (2010) 17 NWLR (PT.1223) 547; Olagunju v. PHCN (2011) LPELR-2556(SC); AG Adamawa State & Ors v. AG Federation(2014) LPELR-23221(SC). Therefore, an action commenced after the expiration of the period within which an action must be brought as stipulated in a Statute of Limitation is not maintainable; Eboigbe v NNPC (1994) 5 NWLR (Pt. 347) 649; AG Adamawa State & Ors v. AG Federation (supra); Hassan v. Aliyu & Ors (2010) LPELR-1357(SC). PER OTISI, J.C.A.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Lead Ruling): The Applicant and the 1st Respondent contested the primary election on the platform of the 2nd Respondent for the House of Assembly election for Kwande West State Constituency of Benue State. The result of the primary election was declared in favour of the 1st Respondent. Unhappy with the conduct and result of the primary election, the Applicant petitioned the National Working Committee of the 2nd Respondent, as a result of which the Applicant was substituted for the 1st Respondent. Aggrieved by the said substitution, the 1st Respondent instituted a pre-election suit against the Applicant and the Respondents before the Federal High Court in Suit No FHC/MKD/CS/13/2015, which suit was dismissed by the trial Court. The 1st Respondent, being dissatisfied with the decision of the trial Court, lodged an appeal before this Court in Appeal No CA/MK/24/2016, which was struck out on 13/07/2016. Upon the 1st Respondent?s further appeal to the Supreme Court, the order of this Court was upturned and the appeal remitted to this Court with the direction that the appeal be heard on its
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merit. This Court heard the appeal on its merit as directed by the Supreme Court on 22/10/2018, and by its Judgment delivered on 2/11/2018, the appeal was allowed. The decision of the trial Court was thereupon set aside. This Court further ordered the Applicant to vacate the seat of member of House of Assembly, Benue State, Kwande West Constituency, having unlawfully occupied same and made other consequential orders. The Applicant, being dissatisfied, lodged an appeal to the Supreme Court. His initial application for leave to appeal was struck out for being incompetent. The substantive appeal in Appeal No SC. 1112/2018 was subsequently withdrawn and was also struck out by the Supreme Court. The Applicant has now come back to this Court by Motion on Notice filed on 10/6/2019, seeking the following orders:
1. An order of this Honourable Court extending time for the Respondent/Applicant to file and serve application to have the Judgment of this Honourable Court delivered on 2nd November, 2018 in appeal No. CA/MK/24/2016 set aside for being a nullity, same having being delivered outside the time allowed by
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Federal Republic on Nigeria 1999 (Fourth Alteration No 21) Act 2017 and therefore statute- barred.
2. An order of this Honourable Court deeming as having being properly filed and served the Respondent’s/Applicant’s Motion on Notice dated and filed on 10th day of June, 2019 seeking to have the judgment of this Honourable Court delivered on 2nd November, 2018 in appeal No. CA/MK/24/2016 set aside.
3. Any other or further order(s) this Honourable Court may deem fit to make to meet the justice of the case.
The application was brought on the following grounds:
i. This Honourable Court gave judgment in appeal No. CA/MK/24/2016 on 2nd November, 2018 and made several consequential orders against the Respondent/Applicant.
ii. Appeal No. CA/MK/24/2016 heard on the 22nd October 2018 and determined on the 2nd day of November was statute-barred by virtue of the provisions of Section 285(12) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration No. 21) Act 2017.
iii. The judgment of this Honourable Court delivered on the 2nd day of November, 2018 in appeal No. CA/MK/24/2016 is therefore a nullity having been given without
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jurisdiction
iv. This application ought to have been brought within 14 days of the delivery of the judgment of this Court on 2nd November, 2018.
v. The Respondent/Applicant needs an order of this Honourable Court extending the time within which to apply for the setting aside of the said judgment.
In support of the application is an affidavit of twenty-seven paragraphs which had attached four Exhibits marked A ? D. Exhibit A was the Judgment of this Court in Appeal No: CA/MK/24/2016 delivered on 2/11/2018. Exhibits B and C were Rulings of the Supreme Court striking out application for leave to appeal against the said Judgment of this Court and striking out the substantive appeal. Exhibit D was a copy of the proposed application for an order of this Court to set aside the said Judgment in Appeal No CA/MK/24/2016. The 1st Respondent filed a Counter Affidavit of six paragraphs, deposed to by one Cosmas Tavershima on 26/6/2019, to which was annexed five exhibits. Exhibits 1A and 1B were two Notices of Appeal filed by the Applicant at the Supreme Court. Exhibit 2 was a copy of the motion for leave to appeal before the Supreme Court;
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Exhibit 3 was the Ruling of the Supreme Court striking out the Notice of Appeal in Exhibit 1A, which was withdrawn. Exhibit 4 was a copy of the Ruling of the Supreme Court striking out the Applicant?s substantive appeal in SC/1112/2018, which was withdrawn. In response, the Applicants filed a Further Affidavit of fourteen paragraphs on 15/7/2019.
?
The application of the Applicant was premised on these facts: That as at 22/10/2018 when the briefs of argument were adopted and the appeal in CA/MK/24/2016 argued, the appeal was, by virtue of the provisions of Section 285(12) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No. 21) Act, 2017, already statute barred. The Judgment of this Court, which was given outside the sixty days stipulated by the said provisions, was therefore a nullity. This Court, which had no jurisdiction to hear the appeal as at 22/10/2018 when it did and subsequently deliver Judgment on 2/11/2018, could set aside the said Judgment. 22/10/2018. An order for extension of time to bring the application to have the said Judgment set aside was, however, required. At the hearing, Mr. Ngavan posited
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that the Applicant?s former Counsel ought to have sought an order to have the Judgment of this Court set aside, rather than go on appeal to the Supreme Court. This was an error, the consequence of which he urged the Court, not to visit on the Applicant.
T.D. Pepe, Esq., who appeared for the 1st Respondent relied on the 1st Respondent?s Counter Affidavit. He submitted that the application was incompetent by virtue of Section 285(12) of the Fourth Alteration to the 1999 Constitution. The time to file an appeal in a pre-election matter is fourteen days after the decision complained of. By Order 6 Rule 11 of the Court of Appeal Rules, 2016, an application to set aside a judgment of the Court must be brought within fourteen days. The Applicant chose to appeal to the Supreme Court. The appeal was found to be incompetent being statute barred, and upon its withdrawal by the Applicant, the Supreme Court struck out the appeal. He argued that the instant application was an abuse of Court process. He cited and relied on Kusamotu v APC (2019) LPELR-46802(SC). The Court was urged to hold that the application was merely an attempt to revive an application
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that struck out in the Supreme Court. Ground one of the Grounds of Appeal in the Notice of Appeal, Exhibit 1B of the Counter Affidavit, had the same complaint as found in prayer one of the instant application. The Supreme Court already heard the appeal on Exhibit 1B. The Applicant?s Counsel admitted that the appeal was statute barred and withdrew the appeal. To renew the same application in this Court was an abuse of Court process. It was statute barred and had no merit. It was further submitted that no sufficient reason had been given in support of the grant of the orders sought. The Court was therefore urged to dismiss the application with costs.
In his reply on points of law, Mr. Ngavan submitted that Section 285 did not preclude an application for extension of time to set aside a judgment and also did not preclude the Court from entertaining an application to set aside a judgment which was a nullity. He urged the Court once more to grant the application.
?
The 2nd Respondent, which was served with the Applicant?s application on 10/6/2019 and also with Hearing Notice through its Benue State Chairman on 18/7/2019; as well as the 3rd
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Respondent, which was similarly served with the application on 10/6/2019 and with Hearing Notice on 18/7/2019 through K.N. Collins, Esq., filed no counter affidavits. They were both absent at the hearing of the application and were not represented.
Resolution
I believe it would be proper to commence the determination of this appeal by examining whether this Court has the jurisdiction to entertain the prayers of the Applicant. The reason for this is straightforward and needs no superfluities. It is a rudimentary principle of law that the jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is therefore always a threshold issue. It is so radical that it forms the foundation of adjudication. Jurisdiction has variously been described as the life blood, the fiat, the stamp of authority which necessarily enures to the Court or Tribunal and empowers either to adjudicate; Buremoh v Akande (2017) LPELR-41565(SC). The jurisdiction or
8
authority of the Court is controlled or bounded by the Statute creating the Court itself. Or, it may be bounded by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit. These touch on the legal authority of the Court to adjudicate in the matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Aremo ll v. Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (2008) 12 S. C. (PT. II) 240; Isaac Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (PT 1247) 465, (2011) LPELR-2185(SC), (2011) 2-3 SC (PT.1) 46.
It is well settled that for a Court of law to have jurisdiction to hear and determine any matter before it, it must satisfy these conditions:
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other.
b) 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
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jurisdiction, and
c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 2 NSCC 374.
If found that the Court had no jurisdiction to entertain a matter, every order arising from the proceedings conducted without jurisdiction amount to a nullity; ex nihilo nihil fit; Melwani v Five Star Industries Ltd (2002) 1 S.C. 120; Adesigbin v Military Governor of Lagos State (2017) LPELR-41666(SC).
It is also well settled that the exercise of appellate jurisdiction is statutory. This Court has no inherent appellate jurisdiction and cannot exercise jurisdiction outside its powers. This Court derives its jurisdiction from the 1999 Constitution, as amended and from the Court of Appeal Act, 2004. The Court cannot therefore exercise jurisdiction to hear an appeal unless such jurisdiction is conferred by the Constitution or by some enabling statute; Akujinwa v Nwaonuma (1998) LPELR-391(SC); Adelekan v Ecu-Line NV (2006) LPELR-113(SC); Nwaigwe v Okere (2008) LPELR-2095(SC).
In determining if a Court has jurisdiction
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to entertain a matter, the Court must restrict itself to examining the case as put forward by the plaintiff; Tukur v Gongola State (1989) 4 NWLR (Pt. 147) 517; Akpamgbo-Okadigbo & Ors v. Chidi & Ors (2) (2015) LPELR-24565(SC); Agi v. PDP & Ors (2016) LPELR-42578(SC). In this case, it is the orders sought by the Applicant, which for emphasis, I shall repeat hereunder:
1. An order of this Honourable Court extending time for the Respondent/Applicant to file and serve application to have the Judgment of this Honourable Court delivered on 2nd November, 2018 in appeal No. CA/MK/24/2016 set aside for being a nullity, same having being delivered outside the time allowed by Section 285(12) of the Constitution of the Federal Republic on Nigeria 1999 (Fourth Alteration No 21) Act 2017 and therefore statute- barred.
2. An order of this Honourable Court deeming as having being properly filed and served the Respondent’s/Applicant’s Motion on Notice dated and filed on 10th day of June, 2019 seeking to have the judgment of this Honourable Court delivered on 2nd November, 2018 in appeal No. CA/MK/24/2016 set aside.
3. Any other or further order(s)
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this Honourable Court may deem fit to make to meet the justice of the case.
Sections 285 (11) and (12) of the 1999 Constitution (Fourth Alteration, No 21) Act, 2017 provide:
11. An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.
12. An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.
These Constitutional provisions ground the exercise of jurisdiction by the appellate Court to entertain appeals in respect of decisions in pre-election matters. These provisions on time limitations are sacrosanct and admit of no discretion for enlargement of time on any grounds.
It is well settled law that the primary and binding duty of the Courts created by the Constitution is to interpret and apply the provisions of the statutes or the Constitution as they are, irrespective of whether that produces a harsh or inconvenient result; Dangana & Anor v. Usman & Ors (2012) LPELR-25012(SC); Dingyadi & Anor v. INEC & Ors (2011) LPELR-950(SC); Marwa & Ors v.Nyako & Ors
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2012) LPELR-7837(SC). In Marwa & Ors v. Nyako & Ors (supra), Onnoghen, JSC (as he then was), graphically described time bound Constitutional provisions in this manner, page 36 of the E-Report:
?It is settled law that the time fixed by the Constitution for the doing of anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded, or stretched beyond what it states.?
?The position of the law in instances where there are limitation periods imposed by statute, including the Constitution, within which an action should be brought or maintained, is that legal proceedings cannot be properly and validly instituted or maintained after the expiration of the prescribed period. An action instituted or pending after the expiration of the prescribed period is said to be stature barred in law. Where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the Limitation Law for instituting such an action has elapsed by effluxion of time.
13
The Limitation Laws therefore acts as a bar to the right of action. The effect of a statute of limitation on an action is that it takes away the right of the plaintiff to institute the action but leaves him with his cause of action intact, though, without the right to enforce same or right to judicial relief. The plaintiff would then be left with a bare and empty cause of action which he cannot enforce, for the Court would have no jurisdiction to entertain a statute barred claim; Egbe v. Adefarasin (1987) 1 NWLP (PT. 47) 1 at 20-21: Aremo II v. Adekanye (2004) ALL FWLR (Pt 224) 2113 at 2132 – 2133: Hassan v. Aliyu (2010) 17 NWLR (PT.1223) 547; Olagunju v. PHCN (2011) LPELR-2556(SC); AG Adamawa State & Ors v. AG Federation(2014) LPELR-23221(SC). Therefore, an action commenced after the expiration of the period within which an action must be brought as stipulated in a Statute of Limitation is not maintainable; Eboigbe v NNPC (1994) 5 NWLR (Pt. 347) 649; AG Adamawa State & Ors v. AG Federation (supra); Hassan v. Aliyu & Ors (2010) LPELR-1357(SC).
?Thus, by the clear and unambiguous provisions of Sections 285 (11) and (12), an appeal from a
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decision in a pre-election matter filed after fourteen days from the date of the delivery of the judgment appealed against is statute barred. Similarly, where an appeal was filed within the prescribed period but the decision therein was delivered outside sixty days from the date of filing the appeal, the said decision amounts to a nullity. These provisions in particular as well as similar provisions that stipulate a time frame within which the appellate Court may exercise its jurisdiction in election or pre-election matters have received judicial interpretation in a number of cases. I shall mention but a few; PDP v. CPC & ORS (2011) LPELR-2909(SC); CPC v INEC (2011) LPELR-8257(SC); Amadi v INEC (2012) LPELR-7831(SC); Bello & Anor v. Damisa & Ors (2016) LPELR-42561(SC) ;Ogboru & Anor v. Uduaghan & Ors (2012) LPELR-8287(SC).
In Kusamotu v. APC & Ors (supra), relied upon by the 1st Respondent?s Counsel, the Supreme Court considered the provisions of Section 285 (12) and, per M.D. Muhammad, JSC, held, pages 4 – 6:
?Section 285 of the 1999 Constitution as amended confers jurisdiction on this Court to hear and determine
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the instant appeal. The Section by the foregoing clear and unambiguous subsection has set up definite time frame within which the jurisdiction must be exercised. By the sub-section, this Court must hear and determine appeal arising from Election Petition within sixty (60) days of the filing of the appeal.
In Mallam Abubakar & Ors V. Saidu Usman Nasamu & Ors (2012) LPELR-7826 (SC) this Court while considering a similar provision held per Onnoghen JSC (as he then was) thus:-
“The words employed by the legislature in Section 285(7) and (8) of the 1999 Constitution are very simple and straight forward and unambiguous and therefore admit of no special construction or interpretation. They simply mean what they plainly stated. Subsection (7) of the Section 285 means simply that it is obligatory on the Court of Appeal or the Supreme Court to hear and determine an appeal arising from an Election Petition matter within sixty (60) days from the date of the delivery of judgment by the Election Tribunal or Court of Appeal. The Provision makes no distinction between an interlocutory decision of the Tribunal and the final decision of the
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Tribunal or Court of Appeal. Also, to be noted is the use of the words “shall” and “within” in the said subsection which means that the provision is mandatory as it admits of no discretion whatsoever. The word “within” means a decision rendered by the affected Court outside the assigned sixty (60) days is null and void.” See also Alhaji Kashim Shetima & Anor V. Alhaji Mohammed Goni (2011) LPELR-417 (SC).
Before the enactment of the CFRN 1999 (Fourth Alteration No 21) Act 2017 on 4th June 2018, time frame had not been provided for the hearing and determination of appeals arising from decisions in pre-election matters. With the provision of the time frame under Subsection 12 of Section 285 of the 1999 Constitution as so altered, appeals from pre-election causes, like those that have arisen from election petitions which have similarly been provided for under Subsection 7 of the very Constitution, must be heard and determined within sixty (60) days by the Court of Appeal or the Supreme Court as the case may be. Neither of the two Courts can, for whatever reason, extend the time provided for under Subsection 12 of Section 285 of the 1999 Constitution as amended.
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It is mandatory to comply with the provision. To extend the time provided by the subsection for the hearing and determination of appeals arising from pre-election matters is for the Court to embark on judicial legislation, a condemnable act. See Senator John Akpanudoedehe & Ors V. Godswill Obot Akpabio & Ors (2012) LPELR-9728 (SC), Chief Felix Amadi & Anor V. Independent National Electoral Commission (2012) LPELR-7831 (SC) and Ugba & Ors V. Suswam (2012) LPELR-9726 (SC).?
(Emphasis mine).
The Court does not make the law. Judicial legislation is not part of its functions. Its function is to administer and interpret the law; Thomas & Ors v. Olufosoye (1986) LPELR-3237(SC) at page 31. Therefore, an action which purports to expand the frontiers of jurisdiction of the Court cannot be entertained by the Court.
?The Applicant herein had filed an appeal to the Supreme Court against the decision of this Court in CA/MK/24/2016, which was on a pre-election matter. In Ground one of the grounds of appeal in the Notice of Appeal to the Supreme Court, SC 1112/2018, attached as Exhibit 1B to the 1st
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Respondent?s Counter Affidavit, the Applicant complained:
I. The 1st respondent’s appeal is statute bar and the judgment of the distinguished justices of the Court below was delivered without jurisdiction pursuant to the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No 21) Act 2017.
PARTICULARS OF STATUTE BAR
a.) This appeal was remitted to this Honourable Court on 13/7/2018 after judgment in SC/732/2016.
b) The decision in this appeal was delivered on 2/11/2018.
c) This appeal was to be determined within 60 days from the date the appeal was remitted to this Honourable Court.
d) Between 13/7/2018 and 2/11/2018 when this appeal was determined in the Court below is 110 days.
e) The act was passed into law and signed on 4/5/2018.
In the appeal SC/1112/2018, the Applicant sought, inter alia:
An order setting aside the judgment of the Court below delivered on 2nd November, 2018 as the same was delivered without jurisdiction and is a nullity.
It can be deduced, as patently exposed in the above ground of appeal and its particulars, that the fact that the
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Applicant?s appeal was statute barred as at the date, 2/11/2018, when this Court rendered its decision in the appeal was well known to the Applicant before he lodged a further appeal to the Supreme Court, SC 1112/2018. The Applicant withdrew his appeal, upon which the Supreme Court struck it out.
In prayer one of the instant application, the Applicant seeks this order:
An order of this Honourable Court extending time for the Respondent/Applicant to file and serve application to have the Judgment of this Honourable Court delivered on 2nd November, 2018 in appeal No. CA/MK/24/2016 set aside for being a nullity, same having being delivered outside the time allowed by Section 285(12) of the Constitution of the Federal Republic on Nigeria 1999 (Fourth Alteration No 21) Act 2017 and therefore statute- barred.
?This is virtually the same complaint presented in ground one of the grounds of appeal and same relief sought in SC/1112/2018, which the Applicant withdrew at the Supreme Court, leading to the appeal being struck out. In my view, the instant application seeks to stealthily resurrect the dead appeal in SC/1112/2018, exercise any powers it may
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still possess and then finally decimate it, forever powerless. The crucial question remains: does this Court have jurisdiction to entertain the instant application and grant the orders sought? I would without hesitation answer a resounding NO! The point has already been made that the appellate jurisdiction of this Court to entertain pre-election appeals is premised on the provisions of Section 285(11) and (12). The unambiguous provisions cannot be interpreted to expand the boundaries of jurisdiction of this Court. There can be no exercise of discretion by this Court to extend time to either lodge an appeal in a pre-election matter or extend the period within which a decision may be rendered in a pre-election appeal. Therefore, the instant application obviously cannot successfully withstand the heat from the crucible of Section 285(12).
?The feeble attempt by Mr. Ngavan to lay the blame for lodging the appeal to the Supreme Court rather than straight away filing an application to set aside the judgment in CA/MK/24/2016 at the foot of the Applicant?s former Counsel is both unfair and misconceived. A legal practitioner who has been briefed by a client
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to conduct a matter on his behalf has apparent authority to act as his client?s agent or mouthpiece in the proceedings; Okonkwo & Ors v. Kpajie & Ors (1992) LPELR-2483(SC); Cappa & D’ Alberto Ltd v. Akintilo (2003) LPELR-829(SC); Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC). The counsel’s authority extends when it is not expressly limited, to all matters incidental to his brief; Adewunmi v. Plastex Nigeria Limited (1986) LPELR-164(SC); Elike v. Nwakwoala & Ors (1984) LPELR-1118(SC). It is noteworthy that the Applicant did not deny that he authorized the filing of the appeal to Supreme Court. I therefore see no ?sin? to be ascribed to the Applicant?s former Counsel.
Mr. Pepe has described this application as an abuse of process, and, I agree. Describing ?abuse of Court process? in Ogboru & Anor v. Uduaghan & Ors (2013) LPELR-20805(SC), Ogunbiyi, JSC said, page 20 thereof:
?The concept of “abuse of Court process” has been given a precise definition, which is to say the process of the Court has not been used bona fide and properly. See Central Bank of Nigeria v. Ahmed & Ors.
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(2001) 5 SC. (Pt. 11) 146; Edjerode V. Ikine (2001) 12 SC (pt. 11) 125. It involves an improper use of judicial process by a party in litigation, see Agwasim V. Ojichie (2004) 10 NWLR (Pt. 882) 613 at 624 – 625.
Furthermore, the concept is also characterized as an action initiated without a just or reasonable cause. It merely takes an undue advantage of the reason that the process is available for indulgence. It is also a situation where the law is wrongly interpreted for purpose of accommodating actions in bad faith. It impugns the dignity of the Court.?
The Black’s Law Dictionary, Ninth Edition at page 10 defined the word “abuse” as:
“A departure from legal or reasonable use; misuse.”
The phrase “Abuse of process” was also defined at page 11 as:-
“The improper and tortuous use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process’s scope.”
In the case of Osi v. Accord Party & Ors (2016) LPELR-41388(SC), the appellants therein approached the Supreme Court to set aside a judgment of this Court that had emanated from an appeal over the
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decision of National and State House of Assembly Election Petition Tribunal of Delta State. In resolving whether it had jurisdiction to accede to the appellant’s request in the view of the fact that the substance of the appeal was an election into Delta State House of Assembly or Aniocha North Constituency of Delta State, the Supreme Court considered the provisions of Section 246(3) of the 1999 Constitution, as amended, which provided that the decisions of Court of Appeal in respect of appeals from the National and State House of Assembly Election petition Tribunal shall be final, and, held that it had no jurisdiction to entertain the appeal. Concurring with the lead Judgment, Ogunbiyi, JSC described the action of the appellant who filed the appeal outside the provisions of the Constitution in this manner, page 27 of the E-Report:
?A breach of the Constitution is so fundamental and which cannot be remedied. It is an abuse of process.?
In Uba v. Ukachukwu & Anor (2013) LPELR-22045(CA) at pages 36 – 37 this Court deprecated the action of the 1st respondent therein, who sought to transform a post-election matter into a pre-election
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matter in order to have the matter heard in the Federal High Court in this manner:
?There is no doubt that after the election of April/May 2011 as stated in the reliefs sought, the 1st Respondent filed an election petition at the election Tribunal and lost. He subsequently appealed to the Court of Appeal and lost. It was after he lost in the two Courts that he thought it wise to commence another action against the Appellant at the Federal High Court in order to strip the Appellant of his rights, perquisites and privileges as a Senator and that these privileges be given to him. I think it is totally incongruous and unabashedly inconsistent to move from post-election backwards to pre-election. Under our democratic setting represented by the Constitution and the Electoral Act, it is not possible and permissible to move from post-election back to pre-election matters. As was duly argued by the learned counsel for the Appellant, occasions may only arise where pre-election disputes, with the holding of the election transmit into post-election disputes. Definitely, it cannot be otherwise. It is therefore a gross abuse of Court process when the 1st
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Respondent who lost at the Election Tribunal and the Court of Appeal thought it wise to join the Appellant into a pre-election matter about 10 months after the holding of the election.?
I have already observed that, as demonstrated by the Notice of Appeal lodged in the Supreme Court in SC1112/2018, the Applicant was well aware that his appeal to this Court was statute barred. Having appealed the decision of this Court in CA/MK/24/2016 to the Supreme Court in SC 1112/2018, there was nothing regarding the appeal left in the domain of this Court. The said appeal, SC 1112/2018, was withdrawn and struck out on 23/1/2019 by the Supreme Court. This Court in this circumstance has no jurisdiction to grant an application that attempts to commence the wake of an appeal, which is no longer alive and well and domiciled with it. The application amounts to an abuse of Court process. It is refused and is hereby dismissed.
The Applicant is liable to costs in favour of the 1st Respondent, which is assessed at N100, 000.00.
JUMMAI HANNATU SANKEY, J.C.A.: Having been privileged to read in draft the
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lead Ruling of my learned brother, Onyekachi Aja Otisi, J.C.A. just delivered, I am in agreement with him that the application is devoid of merit.
The facts leading to this Application have already been succinctly set out in the lead Ruling. It is therefore unnecessary to rehash same here. Suffice it to say that the issue of jurisdiction is fundamental as it touches on the competence of the Court to entertain any process, be it an application or an appeal, filed before the Court, Jurisdiction is a threshold issue and the livewire for any determination. It is the power of the Court to hear and determine the subject matter in controversy between the parties. see Ogumka V CAC (2010) LPELR-4891(CA).
The jurisdiction of a Court means the limits which are imposed upon the power of a Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the following factors:
(1) The subject matter of the issue; or
(2) The persons between whom the issue is joined; or
(3) The nature of relief sought; or
(4) A combination of these factors.
Thus, jurisdiction embraces the settled practice of
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the Court as to the way in which it will exercise its power to hear and determine issues which fall within its purview; or as to the circumstances in which it will grant a particular kind of relief which it has power to grant; including its settled practice to refuse to exercise such powers or to grant such relief in particular circumstances. See Orubu V NEC (1988) NEC (12 SC (Pt. III) 1; Aladetan V Wole (2010) LPELR-3699(CA) 14.
The simple issue before the Court in the application in this pre-election appeal is whether, given the chequered history of this case and the facts and circumstances attendant to it, this Court has any jurisdiction to grant the application now sought for an extension of time to file an application outside the 14 days constitutionally limited for this purpose, to set aside its Judgement delivered on 02-11-19.
Without further ado, I answer this question in the negative. I am in total agreement with the lead Ruling that the Applicant herein is seeking to get by the back door what he could not get through the front door. All he is seeking to do by this application is to surreptitiously resurrect an appeal which is dead and
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buried; and which was, for this same reason, thrown out by the Supreme Court when he withdrew his appeal before that Court. To now return to this Court seeking an extension of time, which has long since lapsed to, in effect raise the dead appeal in order to have it set aside, is nothing but a gross abuse of the process of this Court.
By the Applicants own admission, at the time it proceeded to the Supreme Court to file its appeal against the Judgment of this Court delivered on 02-11-19, it was well aware of the provisions in Section 285(11) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration) Act, wherein express and strict provisions are made with respect to the filing and hearing of appeals in pre-election appeals. This is borne out by Ground one of the Notice and Grounds of Appeal before the Supreme Court (which is exhibited to this application).
The appeal before the Supreme Court was withdrawn and struck out for this same reason, as admitted by the Applicant himself in this application.
?By the same token, the Applicant is prevented from resurrecting a dead appeal in this Court for the purpose of
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setting same aside, or for whatever reason, by virtue of the same provisions in Section 285(11) and (12) of the Constitution (supra). This Court has long since been divested of jurisdiction and cannot be moved by such an application to take any action whatsoever in respect of the pre-election appeal.
Section 285(11) and (12) of the Constitution (supra), acts as a double-edged sword to also oust the jurisdiction of this Court to grant the Applicant an extension of time within which to apply to set aside its Judgment. See Marwa V Nyako (2012) LPELR-7837(SC), wherein the Supreme Court, per Onnoghen, (JSC, as he then was) stated firmly and unwaveringly that time fixed by the Constitution for the doing of any act cannot be extended, It is immutable and fixed like the rock of Gibraltar or like Mount Zion. Section 285(11) and (12) of the Constitution (supra) which sets limitations to the time allowed to file and hear a pre-election appeal, such as the appeal sought to be resurrected by this application, is sacrosanct and admits of no discretion for an enlargement of time. As my learned brother stated in the lead Judgment, while this may seem harsh, it remains
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the law which must be applied as it is. For the same reason that the Applicant withdrew the appeal before the Supreme Court (by the Applicant’s own account in his motion) and same was struck out, this application must toe the same line. The application is statute-barred and for that reason, this Court lacks jurisdiction to entertain it, much less to grant it.
Therefore, for these reasons and for the reasons comprehensively set out in the lead Ruling, I too dismiss the application and endorse the award of costs made therein.
JOSEPH EYO EKANEM, J.C.A.: I read in advance the ruling of my learned brother, Otisi, JCA, which has just been delivered. My Lord has comprehensively dealt with the application in hand. For the reasons which have been given in the ruling, I, too find that the application is an abuse of judicial process. I also dismiss the same and abide by the order as to costs in the ruling.
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Appearances:
S.A. Ngavan, Esq. with him, M.T. Shitindi, Esq.For Appellant(s)
T.D. Pepe, Esq. with him, T.T. Igba, Esq., O.N. Nor, Esq. and N.S. Chorkuk, Esq. for the 1st Respondent.
2nd and 3rd Respondents were absent and not representedFor Respondent(s)
Appearances
S.A. Ngavan, Esq. with him, M.T. Shitindi, Esq.For Appellant
AND
T.D. Pepe, Esq. with him, T.T. Igba, Esq., O.N. Nor, Esq. and N.S. Chorkuk, Esq. for the 1st Respondent.
2nd and 3rd Respondents were absent and not representedFor Respondent
