ALL PROGRESSIVE CONGRESS (APC) vs. HON DANLADI IDRIS KARFI
(2017) LCN/4531(SC)
In the Supreme Court of Nigeria
Friday, April 7, 2017
Case Number: SC. 957/2015
RATIO
WHO IS A PARTY HAVING AN INTEREST
… this court explained in Odedo v PDP andOrs (2015) LPELR -24738 (SC) 71-72; B-A, per Nweze, JSC: When the Drafts person of the 1999 Constitution (as amended) speaks of ‘person having interest’ in the second clause of Section 243 (1) (a) he uses the phrase synonymously with the phrase a person aggrieved” that is, a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has, wrongfully, deprived him or her of something or, wrongfully, refused him or her of something or wrongfully affected his or her title to something. Such an aggrieved person includes a person who has a genuine grievance because an order has been made which, prejudicially, affects his interests, LS.D.P.C v. Dakur [1992] 11 – 12 SCNJ 217, 224; Ojukwu v. Government of Lagos State [1985] 2 NWLR (pt.10) 806; “K” Line Inc v. K. R INTL [1993] 3 NWLR (pt.292) 159; Funduk Eng v. MacArthur [1990] 4 NWLR (pt.143) 266; Society-General Bank v. Afereko [1999] 7 SCNJ 171, 187; Ezeagu v. Ufuanya [1996] 7 NWLR (pt.456) 226, 231; Funduk v. Madaki [1976] 7 KLR (pt.43) 1319: Yusuf v. Adeyemi [2009] 1.5 NWLR (pt.1165) 616; Opekun v. Sadiq [2003] 5 NWLR (pt.814) 475. Not being members of the first appellant [APC]… PER CHIMA CENTUS NWEZE, JSC
WHETHER THE SUPREME COURT CAN ENTERTAIN AN APPEAL AGAINST THE DECISIONS OF THE COURT OF APPEAL ON NATIONAL AND STATE HOUSE OF ASSEMBLY ELECTION PETITIONS
Counsel for the appellants and the first respondent, praying in aid Section 246 (3) of the 1999 Constitution (as amended) contended, and rightly too, that decisions of the lower court on appeals from the National and State House of Assembly Tribunal are final. This has long been settled. Indeed, on March 10, 2017, this court expressed its disgust at the incessant attempts by counsel to irritate it with the question whether appeals could lie against decisions of the Court of Appeal on election matters from the National and State Assembly Election Tribunal. That was in Appeal No. SC. 167/2016 -Abubakar and Anor v Usman and Ors (Unreported judgement delivered on March 10, 2017). First, this court, [per Nweze, JSC] pointed out that it has: …dealt with the meaning and breadth this section [246 (3) of the 1999 Constitution] on numerous occasions. Only a handful of these decisions would be cited in this judgement, Opara and Anor v Amadi [2013] 6- 7 SC (pt 2) 49; Madumere v Okwara [2013] 6-7 SC (pt 2) 95; Okadigbo v Emeka and Ors (2012) LPELR -7839 (SC) 17; Emordi v Igbeke [2011 4 SC (pt 11) 107,145; Salik v Idris [2014] 15 NWLR (pt 1429) 36; Dangana v Usman (2012) LPELR – 7827 (SC); Onuaguluchi v Ndu and Ors [2001] 7 NWLR (pt 712) 309; (2001) LPELR -2699 (SC); Salik v Idris [2014] 15 NWLR (pt 1429) 36, 60; Jegede v Akande 16 NWLR (pt 1432) 43, 72. Instructively, in Dangana and Anor v Usman and Ors (2012) LPELR – 25012 (SC)… this court dealt with this question. For their bearing on the self-same issue, I would take the liberty to set out this court’s view in extenso, Listen to this: It is apparent that the provisions of the 1999 Constitution (as amended) do not envisage an appeal to the Supreme Court from the Court of Appeal in National Assembly Election Petitions based on whether anybody has been validly elected as a member of the National Assembly. The Court of Appeal shall be the final Court by virtue of Section 246 (3) of the 1999 Constitution. The provision of Section 246 (3) affirms the previous decisions of this Court. In the case Onuaguluchi v. Ndu [2001] 7 NWLR (pt. 712) 309, this Court held at pages 321-322 paragraphs H-D: Where an appeal is actually in respect of National Assembly election or other relevant election, whatever errors of a procedural nature or of a procedural vice as to jurisdiction or competency, cannot be corrected by this Court. They can only be corrected by the Court of Appeal or else they will remain uncorrected or unresolved as this Court cannot intervene since it has no appellate or supervisory jurisdiction over the Court of Appeal in such circumstance. This Court will not permit or encourage any subterfuge under which it may assume jurisdiction to hear an appeal in respect of which the Constitution has in clear and unambiguous language made the Court of Appeal the final Court It follows that an appeal in respect of a decision of the Tribunal in an election petition when decided by the Court of Appeal cannot be taken on appeal to the Supreme Court but is final for all purposes. Also in the case of Awuse v. Odili [2003] 18 NWLR (pt. 851) 116, this Court said: It is therefore now well settled that pursuant to the provisions of Sections 246 (1) (b) (1) and (3) of the 1999 Constitution, the Court of Appeal acting within its jurisdiction in deciding an appeal rising from an election petition as stipulated under the said Section, of the Constitution is the final Court of Appeal. Whether it did so rightly or wrongly in its decision cannot be questioned on appeal in this Court by virtue of the express provisions of the said Section 246(3) of the 1999 Constitution which stipulates that the decision of the Court of Appeal in respect of appeals arising from the relevant election shall be final. Esewe v. M. T. Gbe [1888] 5 NWLR (pt. 93) 134; Eco consult Ltd. v. Pancho Villa Limited [1999] 1 NWLR (pt. 588) 507. In short, by virtue of Section 246 (1) (b) (i) and (3) of the 1999 Constitution, the Court of Appeal has the mandate to decide an appeal arising from an election petition and shall be the final Court. Whether it did so perfectly, rightly or wrongly, the Decision it arrives at cannot be taken on appeal to the Supreme Court for consideration. [Dangana v Usman and Ors (supra) 33 -35; E-C] The court was not done yet. It proceeded to: underscore the futility of the attempt in this appeal…” It, then, went on to set out the consistent views of this court in previous decisions. In Madumere and Anor v Okwara and Anor (2013) LPELR -20752 (SC) at 13 -14; E -C, the court, pointed out that: The provisions of Section 246 (3) of the 1999 Constitution, as amended is (sic) very clear and unambiguous. It (sic) enacts as follows: ‘3. The decisions of the Court of Appeal in respect of appeal arising from the National and State Houses of Assembly Election petitions shall be final.’ By numerous decisions of the Supreme Court, the above provision and similar ones to the like effect have been interpreted to mean that no further appeal can he filed against the decision of the Court of Appeal in appeals on National and State Houses of Assembly Election Petitions. See the case of Esewe v. Gbe [1988] 5 NWLR (pt. 93) 134 at 136-137; Onuagnwchi (sic) v. Ndu [2001] 7 NWLR (pt. 712) 309 at 321; Dingyadi v. INEC (No.1) [2010] 18 NWLR (pt 1224) 1 at 98 – 99; Ugwa v. Lekwauwa [2010] 19 NWLR (pt. 1226) 26 at 47 – 48; Sha’Aban v. Sambo [2010] 19 NWLR (pt. 1226) 353 at 360 -361, etc, etc. [per Onnoghen, JSC, (as he then was); italics supplied for emphasis] In the same vein, M. D, Muhammad, JSC declared that: By the clear and unambiguous words of the provision of Section 246 (3) which makes the Court below the last port for any relief and its decision final as it were, there cannot be a further appeal against the lower Court’s decision. This Court has stated this much in very many decisions and there is no feature in the present case which makes departure from that position legally permissible. See; Onuaguluchi v. Ndu [2001] 7 NWLR (part 712) 309 at 321; Dingyadi v. INEC (Ho. 1) [2010] 18 NWLR (part 1224) 1 at 98 -99; Ugwa v. Lekwauwa (2010) 19 NWLR (part 1226) 26 at 47 and Sha’aban v. Sambo [2010] 19 NWLR (part 1226) 353 at 360 – 361. [per Onnoghen, JSC, (as he then was); italics supplied for emphasis] In the same vein, M. D. Muhammad, JSC declared that : By the clear and unambiguous words of the provision of Section 246 (3) which makes the Court below the last port for any relief and its decision final as it were, there cannot be a further appeal against the lower Court’s decision. This Court has stated this much in very many decisions and there is no feature in the present case which makes departure from that position legally permissible. See; Onuaguluchi v. Ndu [2001] 7 NWLR (part 712) 309 at 321; Dingyadi v. INEC (No. 1) [2010] 18 NWLR (part 1224) 1 at 98 – 99; Ugwa v. Lekwauwa (2010) 19 NWLR (part 1226) 26 at 47 and Sha’aban v. Sambo [2010] 19 NWLR (part 1226) 353 at 360 – 361. [page 10; A- D; Italics supplied for emphasis] Abubakar and Anor v Usman and Ors (Unreported judgement delivered on March 10, 2017) per Nweze, JSC. PER CHIMA CENTUS NWEZE, JSC
JUSTICES:
OLABODE RHODES-VIVOUR
CLARA BATA OGUNBIYI
CHIMA CENTUS NWEZE
AMIRU SANUSI
PAUL ADAMU GALINJE
APPELLANTS
1. ALL PROGRESSIVE CONGRESS (APC)2. ALH. UHAR HARUNA(APC CHAIRMAN, KANO STATE)3. ALH KAYATU MUSA DORAWAR SALLAU
RESPONDENTS
1. HON DANLADI IDRIS KARFI2. THE INDEPENDENT NATIONALELECTORAL COMMISSION (INEC)3. ALH. MUHAMMED SHEHU (CHAIRMANELECTORAL COMMITTEE)
RULING
(Delivered by Chima Centus Nweze, JSC)
By their Motion on Notice, filed on February, 2016, Abdullahi Mohammed and Peoples Democratic Party (PDP) implored this court for an “order … joining the applicants as the fourth and fifth respondents, respectively, as interested parties in this appeal”
In their “Grounds Upon which the application is based,” they [the applicants] charted the course of their ill-starred forensic pilgrimage from the National and State Houses of Assembly Election Tribunal, Kano, through the Court of Appeal, Kaduna Division, to this court, via this application, in the eight paragraphs thus:
1. That the applicants contested the general election into the office of member
representing Kura/Garun Mallam Constituency of the Kano State House of
Assembly held on 11th April, 2015.
2. The applicant (sic) being dissatisfied with the outcome of the election filed an election primaries for the purpose of a Dye election to be conducted by INEC within ninety days;
6. The applicants’ appeal [against the decision of the National and State Houses of Assembly Election Tribunal] was however heard after the dismissal of the appellants’ appeal and same [that is, the applicants’ appeal against the decision of the National and State Houses of Assembly Election Tribunal] was dismissed on 10th December, 2015;
7. The res in the applicants’ appeal [against the decision of the National and State Houses of Assembly Election Tribunal] was destroyed by the Court of Appeal even before the said appeal was heard and determined thereby negatively affected (sic) the applicants’ interest in challenging the election annulled,
[Italics supplied for emphasis]
In, the four paragraph affidavit, in support of the Motion, one Muhammed Kabir, deposed inter alia:
1……
2……
3……
a. That the second applicant [PDP] is a political party duly
registered in Nigeria;
b. That the first applicant was sponsored by the second applicant
to contest the election into the office of member representing
Kura/Garun Malam Constituency in the Kano State House of
Assembly in the general election held on 11th April, 2015;
c. ……
d. ……
e. That the applicants filed an election petition challenging the election of the third appellant/respondent at the National and
State Houses of Assembly Election Tribunal sitting in Kano;
f. That the applicants’ petition challenged the third appellant’s
election on the ground that he was not sponsored by a political
party as his sponsorship by the first appellant/first respondent
was nullified and set aside by the Federal High Court, Kano
Judicial Division…
g. …
h. That the applicants’ petition was dismissed on the ground of lack of jurisdiction…;
i. That the applicants contended at the Election Tribunal that the first
and third appellants abandoned the said appeal…;
j. That the applicants being dissatisfied with the judgment of the National
and State Houses Assembly Election Tribunal appealed to the Court of
Appeal…;
k. That the Court of Appeal…dismissed the appellants’ appeal…and made consequential orders to the effect that the election of the third appellant
was nullified;
l. That the Court of Appeal…in the said Appeal No. CA/K/225/2015 ordered
the first appellant [that is APC] to conduct fresh primaries and INEC was
ordered to conduct fresh election …;
m. That on 4th December, 2015, the Court of Appeal…heard the applicants’
Appeal No. CA/K/EPT/SHA/11/2015….;
n. ……
o. That the Court of Appeal, Kaduna Division after dismissing the applicants’ Appeal [that is, the appeal challenging the decision of the National and
State Houses of Assembly Election Tribunal] re-iterated and incorporated
the consequential orders made in the appellants’ appeal…
p. ……
[Italics supplied for emphasis]
Expectedly, the appellants opposed the application. The first respondent, equally, opposed the application.
At the hearing of the application on January 18, 2017, learned counsel for the applicants, A. Mukhtar, adopted the written address filed on December 23, 2016. The applicants formulated only one issue for the determination of the application. It was framed thus:
Whether having regard to the affidavit In support of this application and the exhibits attached thereto; the applicants have shown sufficient Interest to justify the grant of the relief sought?
Learned Counsel submitted that, in an application of this nature, the applicant must show that he has sufficient interest to protect in the subject matter. In addition, he must, also, show that he will be bound by the judgement or decision of the court, citing Regd Trustees, N. A. C. H.
P. N v M. H. W. U. N. [2008] All FWLR (pt 412) 1013, 1053; P.W.T. [Nig) Ltd v J B. O. Int [2011] All FWLR (pt 564) 21, 39,
He maintained that the applicants have sufficient interest in the subject matter of this appeal, that is, the General election into the office of member represented Kura/Garun Mallam Constituency at the Kano State House of Assembly held on April 11, 2015.
In paragraph 3 of the said written address, counsel explained that “the applicants contested the said election and though lost some, they kept on challenging the said election up to the Court of Appeal where it was nullified without according them the opportunity to be heard particularly when they were challenging the outcome of the same election before the same court in a different appeal/’ [italics supplied for emphasis]. In his submission, that was enough to clothe the applicants with the interest in the present appeal.
He, further, contended that the outcome of the action would be binding on the applicants as they would have no right to raise any issue that may be determined by this court He pointed out that the decision of the lower court in the applicants’ Appeal No CA/K/EPT/SHA/11/2015 was influenced by the decision of the said court in Appeal No, CA/K/225/2015 from which this appeal eventuated. He urged the court to favour the applicants with the relief sought.
On his part, learned counsel for the appellants [now, respondents in this application], Marcellinus Duru, adopted the written address filed on January 6, 2017. He explained that what prompted the decision now on appeal before this court was a purely intra-party affair. The first respondent had taken the appellants and the second and third respondents to court. He challenged the party’s primaries and the emergence of the third appellant as the first appellant’s candidate for the said election.
He pointed out that the appeal before this court is against the judgement of the lower court. The said court ordered the first and second appellants/respondents to conduct fresh primary election for the nomination or selection of the first appellant’s candidate for the general election into the seat of the Kura/Garun Mallam Constituency in the Kano State House of Assembly. It equally ordered the third respondent to vacate the said seat. In other words, the appeal is in respect of a pre-election matter.
He noted that, on his part, the first applicant [Abdullah! Mohammed] contested under the platform of the Peoples Democratic Party [PDP] into the office of member representing the said Constituency in which the third appellant/respondent [Alhaji Hayatu Musa Dorawar Sallau] was declared the winner. Sequel to the latter’s election, the applicants, by way of a post-election petition, approached the National and State House of Assembly Election Tribunal, Kano. Aggrieved by the dismissal of their petition, the applicants appealed to the lower court which, equally, dismissed their appeal against the said judgement of the said Tribunal.
Against this background, he submitted that the lower court’s decision is final, citing Section 246 (3) of the Constitution of the Federal Republic of Nigeria (as amended). He cited
P. W. T (Nig) Ltd v J. B O. Int [2011] All FWLR (pt 564) 21, 39 and Waziri v Gumel [2012] All FWLR (pt 632) 1660, 1680 etc as authorities for the prerequisites of joinder, He, equally, cited other decisions to show that the applicants failed to demonstrate their interest in the subject matter of the present appeal. He urged the court to dismiss the application.
Magaji Mato Ibrahim, learned counsel for the first respondent, adopted the written address filed on January 6, 2017. In the said address, counsel formulated this sole issue:
Whether In view of the clear constitutional provision to wit, section 246 (3) of the1999 Constitution of the Federal Republic of Nigeria (as amended) and the plethora of the decided authorities of this court on the same issue, this Honourable Court has the jurisdiction to entertain this application?
Citing a host of decisions of this court on Section 246 (3) (supra), he contended that the decision of the lower court in respect of National and State Houses of Assembly election tribunals is final He noted that the applicants, equally, failed to state clearly what their interest is. He urged the court to dismiss the application.
RESOLUTION OF THE ISSUE
My Lords, I regret to say that this application is one of those disingenuous attempts by counsel to put the consistency of this court’s decisions to test. In one word, it is an exhibition of professional chicanery cloaked in casuistry.
I am, therefore, constrained to disaggregate the disparate backgrounds that yielded the two distinct appeals, namely, CA/K/225/2015 and CA/K/EPT/SHA/11/2015, if only to accentuate counsel for the applicants’ despicable attempt to obfuscate the issues in these two unrelated appeals: appeals disposed by the lower court. First, Appeal No. CA/K/225/2015.This appeal was concerned with an intra-party dispute, as shown above, the first respondent had challenged the primary election of his party, namely, APC, the first appellant in this appeal, at the Federal High Court, Kano, In particular, he contested the emergence of the third appellant as his party [APC’s] candidate for the said election. The said court nullified his nomination. His [that is, the third appellant’s] appeal against the judgement of the Federal High Court was unsuccessful as the lower court [that is, the Court of Appeal, Kaduna Division] dismissed his appeal.
The court annulled the general election [that is, the election which was conducted on April 11, 2015] to the office of member representing Kura/Garun Mallam Constituency for the Kano State House of Assembly. In addition, the lower court ordered the first and second appellants/respondents to conduct fresh primary election for the nomination or selection of the first appellant [APC’s] candidate for the general election into the seat of the said constituency. Above all, the said court ordered the third appellant to vacate his seat in respect of the said constituency.
The present appeal before this court is the appellants’ expression of their dissatisfaction with the outcome of their appeal to the lower court. That appeal is still pending before this court. By their said Motion on Notice of February 22, 2015, the applicants have entreated this court with supplications to be joined as parties interested in the said appeal that is, the appeal which is contesting the propriety vel non of the order of the lower court directing the first and second appellants/respondents to conduct fresh primary election for the nomination or selection of the first appellant [APC’s] candidate for the general election into the seat of the said constituency.
On the other hand, Appeal No CA/K/EPT/SHA/11/2015 eventuated from the decision of the National and State House of Assembly Election Tribunal, Kano. The first applicant [Abdullahi Mohammed], the candidate of the PDP, contested against the third appellant in the said election. Upon his [that is, the third appellant’s] return in the said election by INEC, the first applicant in this Motion, [Abdullahi Mohammed] and his party, PDP, approached the National and State House of Assembly Election Tribunal, Kano. They challenged the election and return of the third appellant/respondent. Adjudging the said petition unmeritorious, ‘the said Tribunal dismissed it whereupon they appealed to the Court of Appeal, Kaduna Division. In that appeal, CA/K/EPT/SHA/11/2015, the
lower court dismissed the appeal against the decision of the Tribunal. This is the background to the submission of the learned counsel for the appellants that the said decision of the lower court, in respect of the applicants’ appeal from the National and State House or Assembly Tribunal, is final.
My Lords, I have, deliberately, compartmentalized the trajectories of the above two appeals, that is, Appeal Nos CA/K/225/2015 and CA/K/EPT/SHA/11/2015 for two main reasons. As shown above, in Appeal No CA/K/225/2015, the lower court ordered the first and second appellants/respondents to conduct fresh primary election for the nomination or selection of the first appellant [APCs] candidate for the general election into the seat of the said constituency.
Surely, not being members of the first appellant [that is, APC], the applicants in this application, undoubtedly, qualify as interlopers as far as matters [such as the appeal herein] concerning the primary elections of APC are concerned, Alhassan and Anor v Ishiaku and Ors (2016) LPELR -40083 (SC) 92; Onuoha v Okafor [1983] 14 NSCC 494; Emeka v Okadigho [2012] 18 NWLR (pt.1316) 55; Dalhatu v. Turaki [2003] 15 NWLR (pt. 843) 310; Ombugadu v CAT [2013] 3 NWLR (pt. 1340) 31, 71-72; Zaranda v. Tilde [2008] 10 NvvLR (pt. iuy4j 164; Kolawole v. Folunsho [2009] 6 NWLR (pt1143) 338.
In one word, the applicants do not qualify as persons having an interest. As this court explained in Odedo v PDP andOrs (2015) LPELR -24738 (SC) 71-72; B-A, per Nweze, JSC:
When the Drafts person of the 1999 Constitution (as amended) speaks of ‘person having interest’ in the second clause of Section 243 (1) (a) he uses the phrase synonymously with the phrase a person aggrieved” that is, a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has, wrongfully, deprived him or her of something or, wrongfully, refused him or her of something or wrongfully affected his or her title to something. Such an aggrieved person includes a person who has a genuine grievance because an order has been made which, prejudicially, affects his interests, LS.D.P.C v. Dakur [1992] 11 – 12 SCNJ 217, 224; Ojukwu v. Government of Lagos State [1985] 2 NWLR (pt.10)
806; “K” Line Inc v. K. R INTL [1993] 3 NWLR (pt.292) 159; Funduk Eng v. MacArthur [1990] 4 NWLR (pt.143) 266; Society-General Bank v. Afereko [1999] 7 SCNJ 171, 187; Ezeagu v. Ufuanya [1996] 7 NWLR (pt.456) 226, 231; Funduk v. Madaki [1976] 7 KLR (pt.43) 1319: Yusuf v. Adeyemi [2009] 1.5 NWLR (pt.1165) 616; Opekun v. Sadiq [2003] 5 NWLR (pt.814) 475.
Not being members of the first appellant [APC], the applicants do not fall into this constitutional category, Emenike v PDP and Ors (2012) LPELR -7802 (SC) 40- 42. This formidable juridical prescription, therefore, exposes the poverty of the application wherein the applications pray to be joined as parties interested in Appeal No CA/K/225/2015.
That is not all. In my view, this application is even an ill-fated attempt to undermine the final judgement of the lower court in Appeal No CA/K/EPT/SHA/11/2015. Let me explain.
As shown above, the first applicant [Abdullahi Mohammed], the candidate of the PDP, contested against the third appellant in the said election, Upon his [that is, the third appellants] return in the said election by INEC, the first applicant in this Motion, [Abdullahi Mohammed] and his party, PDP, approached the National and State House of Assembly Election Tribunal, Kano. They challenged the election and return or the third appellant/respondent.
Adjudging the said petition unmeritorious, the said Tribunal dismissed it whereupon they appealed to the Court of Appeal, Kaduna Division, in that appeal, CA/K/EPT/SHA/11/2015, the lower court dismissed the appeal against the decision of the Tribunal.
Counsel for the appellants and the first respondent, praying in aid Section 246 (3) of the 1999 Constitution (as amended) contended, and rightly too, that decisions of the lower court on appeals from the National and State House of Assembly Tribunal are final. This has long been settled.
Indeed, on March 10, 2017, this court expressed its disgust at the incessant attempts by counsel to irritate it with the question whether appeals could lie against decisions of the Court of Appeal on election matters from the National and State Assembly Election Tribunal. That was in Appeal No. SC. 167/2016 -Abubakar and Anor v Usman and Ors (Unreported judgement delivered on March 10, 2017). First, this court, [per Nweze, JSC] pointed out that it has:
…dealt with the meaning and breadth this section [246 (3) of the 1999 Constitution] on numerous occasions. Only a handful of these decisions would be cited in this judgement, Opara
and Anor v Amadi [2013] 6- 7 SC (pt 2) 49; Madumere v Okwara [2013] 6-7 SC (pt 2) 95; Okadigbo v Emeka and Ors (2012) LPELR -7839 (SC) 17; Emordi v Igbeke [2011 4 SC (pt 11) 107,145; Salik v Idris [2014] 15 NWLR (pt 1429) 36; Dangana v Usman (2012) LPELR – 7827 (SC); Onuaguluchi v Ndu and Ors [2001] 7 NWLR (pt 712) 309; (2001) LPELR -2699 (SC); Salik v Idris [2014] 15 NWLR (pt 1429) 36, 60; Jegede v Akande 16 NWLR (pt 1432) 43, 72.
Instructively, in Dangana and Anor v Usman and Ors (2012) LPELR – 25012 (SC)… this court dealt with this question. For their bearing on the self-same issue, I would take the liberty to set out this court’s view in extenso, Listen to this:
It is apparent that the provisions of the 1999 Constitution (as amended) do not envisage an appeal to the Supreme Court from the Court of Appeal in National Assembly Election Petitions based on whether anybody has been validly elected as a member of the National Assembly. The Court of Appeal shall be the final Court by virtue of Section 246 (3) of the 1999 Constitution. The provision of Section 246 (3) affirms the previous decisions of this Court.
In the case Onuaguluchi v. Ndu [2001] 7 NWLR (pt. 712) 309, this Court held at pages 321-322 paragraphs H-D:
Where an appeal is actually in respect of National Assembly election or other relevant election, whatever errors of a procedural nature or of a procedural vice as to jurisdiction or competency, cannot be corrected by this Court. They can only be corrected by the Court of Appeal or else they will remain uncorrected or unresolved as this Court cannot intervene since it has no appellate or supervisory jurisdiction over the Court of Appeal in such circumstance. This Court will not permit or encourage any subterfuge under which it may assume jurisdiction to hear an appeal in respect of which the Constitution has in clear and unambiguous language made the Court of Appeal the final Court It follows that an appeal in respect of a decision of the Tribunal in an election petition when decided by the Court of Appeal cannot be taken on appeal to the Supreme Court but is final for all purposes.
Also in the case of Awuse v. Odili [2003] 18 NWLR (pt. 851) 116, this Court said:
It is therefore now well settled that pursuant to the provisions of Sections 246 (1) (b) (1) and (3) of the 1999 Constitution, the Court of Appeal acting within its jurisdiction in deciding an appeal rising from an election petition as stipulated under the said Section, of the Constitution is the final Court of Appeal. Whether it did so rightly or wrongly in its decision cannot be questioned on appeal in this Court by virtue of the express provisions of the said Section 246(3) of the 1999 Constitution which stipulates that the decision of the Court of Appeal in respect of appeals arising from the relevant election shall be final.
Esewe v. M. T. Gbe [1888] 5 NWLR (pt. 93) 134; Eco consult Ltd. v. Pancho Villa Limited [1999] 1 NWLR (pt. 588) 507. In short, by virtue of Section 246 (1) (b) (i) and (3) of the 1999 Constitution, the Court of Appeal has the mandate to decide an appeal arising from an election petition and shall be the final Court. Whether it did so perfectly, rightly or wrongly, the
Decision it arrives at cannot be taken on appeal to the Supreme Court for consideration.
[Dangana v Usman and Ors (supra) 33 -35; E-C]
The court was not done yet. It proceeded to: underscore the futility of the attempt in this appeal…” It, then, went on to set out the consistent views of this court in previous decisions. In Madumere and Anor v Okwara and Anor (2013) LPELR -20752 (SC) at 13 -14; E -C, the court, pointed out that:
The provisions of Section 246 (3) of the 1999 Constitution, as amended is (sic) very clear and unambiguous. It (sic) enacts as follows: ‘3. The decisions of the Court of Appeal in respect of appeal arising from the National and State Houses of Assembly Election petitions shall be final.’ By numerous decisions of the Supreme Court, the above provision and similar ones to the like effect have been interpreted to mean that no further appeal can he filed against the decision of the Court of Appeal in appeals on
National and State Houses of Assembly Election Petitions. See the case of Esewe v. Gbe [1988] 5 NWLR (pt. 93) 134 at 136-137; Onuagnwchi (sic) v. Ndu [2001] 7 NWLR (pt. 712) 309 at 321; Dingyadi v. INEC (No.1) [2010] 18 NWLR (pt 1224) 1 at 98 – 99; Ugwa v. Lekwauwa [2010] 19 NWLR (pt. 1226) 26 at 47 – 48; Sha’Aban v. Sambo [2010] 19 NWLR (pt. 1226) 353 at 360 -361, etc, etc.
[per Onnoghen, JSC, (as he then was); italics supplied for emphasis]
In the same vein, M. D, Muhammad, JSC declared that:
By the clear and unambiguous words of the provision of Section 246 (3) which makes the Court below the last port for any relief and its decision final as it were, there cannot be a further appeal against the lower Court’s decision. This Court has stated this much in very many decisions and there is no feature in the present case which makes departure from that position legally permissible. See; Onuaguluchi v. Ndu [2001] 7 NWLR (part 712) 309 at 321; Dingyadi v. INEC (Ho. 1) [2010] 18 NWLR (part 1224) 1 at 98 -99; Ugwa v. Lekwauwa (2010) 19 NWLR (part 1226) 26 at 47 and Sha’aban v. Sambo [2010] 19 NWLR (part 1226) 353 at 360 – 361.
[per Onnoghen, JSC, (as he then was); italics supplied for emphasis]
In the same vein, M. D. Muhammad, JSC declared that :
By the clear and unambiguous words of the provision of Section 246 (3) which makes the Court below the last port for any relief and its decision final as it were, there cannot be a further appeal against the lower Court’s decision. This Court has stated this much in very many decisions and there is no feature in the present case which makes departure from that position legally permissible. See; Onuaguluchi v. Ndu [2001] 7 NWLR (part 712) 309 at 321; Dingyadi v. INEC (No. 1) [2010] 18 NWLR (part 1224) 1 at 98 – 99; Ugwa v. Lekwauwa (2010) 19 NWLR (part 1226) 26 at 47 and Sha’aban v. Sambo [2010] 19 NWLR (part 1226) 353 at 360 – 361. [page 10; A- D; Italics supplied for emphasis]
Abubakar and Anor v Usman and Ors (Unreported judgement delivered on March 10, 2017) per Nweze, JSC.
In all, I am in agreement with the submissions of the learned counsel for the appellants/respondents and of the first respondent that this application is unmeritorious and must be dismissed for two main reasons. In the first place, not being members of the first appellant [APC], they failed to donate facts which evince their interest in the appeal in which they have applied to be joined as fourth and fifth respondents, respectively.
At the risk of wearisome iteration, the said appeal is contesting the propriety of the decision of the lower court which ordered the first and second appellants/respondents to conduct fresh primary election for the nomination or selection of the first appellant [APCs] candidate for the general election into the seat of the said constituency.
Surely, not being members of the first appellant [that is, APC], the applicants in this application, undoubtedly, qualify as interlopers as far as matters [such as the appeal herein] concerning the primary elections of APC are concerned, Alhassan and Anor v Ishiaku and Ors (supra); Onuoha v Okafor (supra); Emeka v Okadigbo (supra); Dalhatu v. Turaki (supra); Ombugadu v CPC (supra); Zaranda v. Tilde (supra); Kolawolev. Folunsho (supra). In one word, the applicants do not qualify as persons having an interest, Odedo v PDP and Ors (supra).
Secondly, and perhaps more importantly, by virtue of Section 246 (3) of the 1999 Constitution (as amended), the decision of the lower court in CA/K/EPT/SHA/11/2015, being a decision of the said court on the applicants’ appeal from the National and State House of Assembly Tribunal, Kano, is final, Opara and Anor v Amadi (supra); Madumere v Okwara (supra); Okadigbo v Emeka and Ors (supra); Emordi v Igbeke (supra); Salik v Idris (supra); Dangana v Usman (supra); Jegede v Akande (supra); Dangana and Anor v Usman and Ors (supra).
In effect, their complaint in paragraph 7 of the “Ground upon which the application is based” that the “res in the applicants’ appeal was destroyed by the Court of Appeal even before the said appeal was heard and determined thereby negatively affected (sic) the applicants’ interest in challenging the election annulled, goes to no issue. The decision of that court in that election matter is final for all purposes, Dangana v Usman (supra); Onuaguluchi v Ndu and Ors
(supra); Salik v Idris (supra); Jegeda v Akande (supra); Dangana and Anor v Usman and Ors (supra).
This must be so for the said Section 246 (3) (supra), for all practical purposes, codifies that ancient maxim, which is not only a statement of public policy but also a cardinal principle of the administration of justice of undoubted relevance, namely, interest rei publicae ut sit finis litium (Co. Litt. 303) -it is in the interest of all that there should be an end to litigation, Ogbechie and Ors v Onochie and Ors (2008) LPELR -2277 (SC) 41; A-F; Owata and Ors v Anyigor and Ors (1993) LPELR -2842 (SC) 19; Macaulay v NAL Merchant Bank (Nig) Ltd (1990) LPELR -1801 (SC) 61; B-F; Ezomo v AG. Bendel (1986) LPELR -1215 (SC) 44; A-B.
In all, there is no merit in this application. I, therefore, enter an order dismissing it with costs assessed and fixed at N500, 000 to be paid personally by counsel for the applicants for this ill-advised forensic trip to this rare altitude even in the face of the avalanche of decisions of this court that the decision of the Court of Appeal in such matters is final, Opara and Anor v Amadi (supra); Madumere v Okwara (supra); Okadigho v Emeka and Ors (supra); Emordi v Igbeke (supra); Salik v Idris (supra); Dangana v Usman (supra); Onuaguluchi v Ndu and Ors (supra); Salik v Idris (supra); Jegede v Akande (supra); Dangana and Anor v Usman and Ors (supra).
Application dismissed.
(Delivered by CLARA BATA OGUNBIYI, JSC)
I read in draft the lead Ruling of my learned brother Hon. Justice Nweze, JSC. I agree that the totality of the application lacks merit and should be dismissed.
The application was filed on 22nd February, 2016 and praying for the following orders:-
“1. An order of this Honourable Court joining the applicants as the 4th
and 5th Respondents respectively as interested parties in this appeal.
2. And for such further order or orders as the Honourable court may
deem fit to make in the circumstance of this applications.”
The grounds predicating the application and affidavit in support are all spelt out explicitly in the lead ruling. I do not wish to repeat same in this case.
Briefly and without having to be labour the said application, it is on record that the historical
evolution of this application will finally be subject to section 246(3) of the 1999 Constitution as amended. The provision which provides that the Court of Appeal should be final on appeals from the National and State Houses of Assembly Election Tribunal. In other words, what the applicants are asking this court to do, does not fall within the jurisdiction or purview of this court.
It has been restated times without number that the position of the law on the finality of the judgment of the Court of Appeal has been settled by this court in a number of decided authorities. See:- SC/187/2016 in the case of Okocha
+ Samuel Osi v. Accord Party & 3 ors delivered on the 9th of December, 2016; Hon. Barambu Umaru Kawawu & 1 anor vs. P.D.P & 2 ors in suit No. SC/120/2016 delivered on the 9th December, 2016; and Rt. Hon. Abdullahi Bello & 1 Anor v. Hon. Yusuf Ahmed Tijani Damisa & 2 ors in suit No. SC./168/2016.
The contents of section 246(3) of the Constitution is reproduced hereunder:
“The decisions of the Court of Appeals from the National and State houses of Assembly Election Petitions shall be final.”
It is not in doubt that the application filed before the lower court is an off-shoot of the court’s decision on National Assembly election petition and by extension, this appeal had its origin therefrom.
From the interpretation of section 246 (3) of the 1999 Constitution, therefore, it is dear from the wording that the decision of the Court of Appeal is final. This court in the circumstance, is bereft of jurisdiction to entertain, hear and determine any such appeal from the lower court. For all intents and purposes, such an application is not granted as a matter of course but the applicants must supply the court with satisfactory materials which should move the court to exercise discretion in their favour. The Court of Appeal is the final court.
My learned brother has given his word on this view comprehensively and I adopt his considered ruling as mine and in the circumstance also refuse the application and dismiss same.
I further subscribe that the costs of N500,000.00k awarded against counsel personally is in order.
(Delivered by Olabode Rhodes-Vivour, JSC)
I have had the advantage of reading in j draft the leading Ruling delivered by my learned brother Nweze JSC. I agree that this application should be dismissed. I intend to add a few words of my own on why this application to join the applicants as the 4th and 5th respondents in the pending appeal cannot be granted.
The facts are these. The 3rd appellant and the 1st respondent are members of the All Progressive Congress Party, (APC). Both of them were interested in representing their party, i.e the APC in the Kano State House of Assembly. They were interested in the Kura/Garun Mallam Constituency/seat. So they took part in the APC’s primaries held on 2 December 2014. The 3rd appellant won the primaries. The APC submitted his name to INEC as its candidate for the General Elections which was held on 11 April 2015. The 3rd appellant was the APC’s candidate at the General Elections.
The 1st respondent, who lost in the primaries, filed an action in court. The trial court declared the primaries inconclusive. The 3rd appellant filed an appeal. After hearing the appeal the Court of Appeal made the following orders on 27 November 2015.
1. The 3rd appellant is hereby ordered to vacate the seat of the Kura/Garun
Mallam Constituency in the Kano State House of Assembly at once.
2.
3.
4.
5. The APC and the Chairman of APC in Kano State are ordered to conduct
fresh primary election for the selection and/or nomination of candidate
of the first appellant (i.e. APC) for a general election into the vacant seat
of the Kura/Garun Mallam Constituency in the Kano State House of
Assembly within fourteen days of this judgment with the first respondent
as one of the contestants and to forward the name of the selected candidate
to the second respondent (i.e. INEC) immediately thereafter.
6. The second respondent (i.e. INEC) is hereby ordered to conduct election into
the vacant seat of the Kura/Garun Mallam Constituency in the Kano State
House of Assembly within 90 days of the receipt of duly selected/nominated candidate of the 1st appellant (i.e. APC).
It is clear from the orders of the Court of Appeal that, that court dismissed the 3rd appellants appeal, nullified the general election for the Kura/Garun Mallam Constituency of the Kano State House of Assembly and directed the APC to conduct fresh primaries for the purpose of a bye election to be conducted by INEC.
All these orders arose from a pre-election matter. That is, for the courts to decide who is the APC’s candidate for the Kura/Garun Mallam Constituency in the Kano State House of Assembly.
Dissatisfied with the judgment of the Court of Appeal the 3rd appellant and his party, the APC lodged an appeal before this court. It is that pending appeal that the applicants’ (a member of the PDP and the PDP) seek order of this court joining them as the 4th and 5th respondents.
At the General Elections for the Kura/Garun Mallam Constituency, the 3rd respondent was the candidate of the APC while Abdulahi Mahammed was the candidate of the PDP.
The 3rd respondent won the election. The applicants’ petition against the election was unsuccessful and their appeal was dismissed on 10 December, 2015.
That is to say the applicants’ appeal was heard after the dismissal of the 3rd appellants appeal was dismissed. To put it clearly the 3rd appellants success at the general elections was nullified by way of consequential order in a pre-election matter, while the applicants’ suit, wherein they claim to have won the election was dismissed by an Election Tribunal and the Court of Appeal.
Section 246 (3) of the Constitution states that:
(3) The decision of the Court of Appeal in respect of appeals arising from
the National and State Houses of Assembly election petitions shall be
final.
This court has on numerous occasions had cause to explain the finality of decisions of the Court of Appeal on national and State House of Assembly election petitions. A few of these decisions readily come to mind. They are:
Okadigbo v Emeka, (2012) LPELR 7839 P.17
Opara v Amadi (2013) 12 NWLR (Pt.1369) p.512
Madumere v Okwara (2013) 6-7 SC (Pt.II)
Salik v Idris (2014) 5SC (Pt.II) p.45
Jegede v Akande (2014) 16 NWLR (Pt.1432) p. 43.
It is clear from the provision of section 246 (3) of the Constitution that decisions of the Court of Appeal on appeals from Election Petition Tribunals on National and State Houses of Assembly election petitions are final. Furthermore the finality of such decisions applies to interlocutory and final decisions of the Court of Appeal. The Supreme Court has no jurisdiction to entertain appeals from decisions of the Court of Appeal on National and State Houses of Assembly election Petitions. Abdullahi Mohammed and his party, the PDP and the 3rd appellant a member of the APC contested the Kura/Garun Mallam constituency in the General Elections held on 11 April 2015. The 3rd appellant won. The applicants’, that is Abdullahi Mohammed and the PDP filed a petition before the Election Petition Tribunal. They lost. The Court of Appeal affirmed the decision of the Election Tribunal which confirmed the 3rd respondent as elected. The decision of the Court of Appeal in respect of elections held for the Kura/Garun Mallam Constituency is final. The decision of another division of the Court of Appeal which nullified the final decision of the Court of Appeal on the Kura/Garun Mallam Constituency arose from a pre-election matter to decide the authentic candidate of the APC for the said elections. That suit is pending before this court and this court has jurisdiction to decide who the candidate of APC for the Kura/Garun Mallam Constituency is. This court has no jurisdiction to decide or declare who won the elections. A plaintiff has unfettered liberty to choose the person/s to sue and leave out those he has no case against. It is well laid down that the court must not make it a practice of forcing a litigant on a plaintiff. The reason for making a person a party in an action is that he should be bound by the result of the action, and the question to be settled must be one that cannot be effectually and completely settled unless he is a party. See
Green v Green (1987) 3NWLR (Pt.61) p.480
Peenak Investment Ltd v Hotel
Presidential Ltd (1982) 12 SC p.1
The applicants’, a member of the PDP and the PDP seek order of this court to be joined as interested parties as the 4th and 5th respondents in an appeal pending before this court. The issue to be decided in the appeal is who is the candidate of the APC for the Kura/Garun Mallam Constituency in the Kano State House of Assembly for the General Elections held in 2015. In an appeal to decide who won primary election in APC, the PDP has no locus standi to be a party in such an action. The presence of the PDP is not needed to decide who the candidate of the APC is or should be. Granting this application would, amount to this court forcing on the appellants’, litigants the appellants’ have no desire to proceed against. Furthermore there is no question before this court that the applicants’ presence is needed before it can be settled.
It is for these reasons and the more detailed reasoning in the Leading Ruling that I too dismiss the applicants’ notice of motion filed on 22 February 2016.
Application dismissed.
APPEARANCES
M.N. Duru for the Appellants/Respondents.
N.U. Eteng.
M.N. Ibrahim for the 1st Respondent.
T. Babalola for the 2nd Respondent.
O. Delano for the 3rd Respondent.
A. Mukhtar for the Applicant
