CHIEF T.A. ORJI V. ONYEMA UGOCHUKWU & ORS.
(2010)LCN/3975(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of July, 2010
CA/OW/EPT/167M/2009 (Consolida
RATIO
WHETHER EVERY SUPERIOR COURT OF RECORD IN NIGERIA HAS THE INHERENT POWER TO SET ASIDE IT’S JUDGMENT
No doubt and it is now trite law that every superior court of Record has inherent power to set aside its judgment – where it is seriously conjectured that to be a nullity. This point has been settled by the apex court and this court’s decisions examples of which are some locus classicus, viz: SKENCONSULT V UKEY (1980) 12 NSCC 1 at 6; OKAFOR V. ATTORNEY-GENERAL, ANAMBRA STATE (1991) 6 NWLR (Pt.2000) 659 at 688; IGWE V. KALU (2002) 14 NWLR (Pt.787) 435 at 453 -454, and also MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; SOKOTO STATE GOVT V. KAMDEX (NIG) LTD (2007) 7 NWLR (Pt.1034) 446; UBWA V. TIVE AREA TRADITIONAL COUNCIL (2004) All FWLR (Pt.214) 16, 11 NWLR (Pt.884) 427 and GBADAMASI OLORUMFEMI & ORS V.CHIEF RAPIU EYINLE ASHO (unreported SC 13/1993 delivered on 18th March 1999. These are all Supreme Court decisions. There are many decisions of the court of Appeal like UBA v. UKACHUKWU (2004) 10 NWLR (Pt. 881) 224; See also the Court of Appeal decisions in recent times in NWOGA V. BENJAMIN unreported CA/PH/EPT/549/2007 delivered on 18th February 2008; senator JOY EMORDI V. HON. ALPHONSUS IGBEKE & 6 ORS, ANDY UBA V. DAME VIRGY EJIABA & ORS. (unreported) CA/E/EPT/7/2007; SHAABAN V. NAMADI SAMBO (unreported) CA/K/136M/2009 delivered on 1st March, 2010; and HON. SELEKETIMIBIÂ Â EBIOTU v. ANGOS DIDE & 3 ORS (reported) CA/PH/EPT/10M/2010 delivered on 21/6/2010. PER SULEIMAN GALADIMA, J.C.A.
STATUTORY PROVISION: PROVISION OF SECTION 246(3) OF THE CONSTITUTION AS TO WHETHER THE COURT OF APPEAL IS THE FINAL COURT IN APPEALS ARISING FROM ELECTION PETITIONS
Under section 246(3) of the constitution of the Federal Republic of Nigeria, 1999 hereinafter styled 1999 Constitution, simpliciter, the Court of Appeal is the FINAL court in appeals arising from election petitions, save the presidential petition. PER SULEIMAN GALADIMA, J.C.A.
FUNCTUS OFFICIO: WHEN CAN IT BE SAID THAT A COURT IS FUNCTUS OFFICIO; MEANING OF THE LATIN EXPRESSION “FUNCTUS OFFICIO”
It is also a settled point of law that after a court has pronounced its final judgment that court becomes functus officio. Black’s Law Dictionary 15th Edition; on page 606 defines this latin expression as: A task performed; having fulfilled the function or accomplished the purpose. I understand the expression to mean having performed his or her officio (duty of the office) the officer is discharged or is without further authority or legal competence; because the duties and function of the original commission have been fully accomplished. PER SULEIMAN GALADIMA, J.C.A.
WHAT ARE THE FACTORS THAT WILL RENDER A JUDGMENT A NULLITY
In OKAFOR V. A-G ANAMBRA STATE (supra) at p. 680; the erudite jurist further stated thus: Thus, in all situations, where the decision is regarded as a nullity, as in the instant case the party affected is entitled ex debito iusticiae to have it set aside. See OBIMONURE V. ERINOSHO (1966) 1 All NLR 250; OGBU V. URUM (1984) 4 SC 1 cited in NWOSU V. UDEAJA (1990) 1 NWLR (Pt. 125) 188; (1990) 1 SCNJ AT P.167. See further SANUSI V. AYOOLA (1992) 9 NWLR (Pt.265) 275 at 292; IGWE KALU V. KALU (supra) (supra) at pp. 453 – 454, where OGWUEGBU JSC listed some of the factors that render a judgment a nullity as follows: (i) When the judgment is obtained by fraud or deceit either in the Court or of one or more of the Parties, such a judgment can be impeached or set aside by means of an action which may be brought with leave: see ALAKA v. ADEKUNLE (1959) LL 76; FLOWER v. LLOYA (1877) 6 CH.D; OLUFUNMISE v. FALANA (1990) 3 NWLR Ppt.136) 1. (ii) Where the judgment is a nullity, a person affected by an order of court which can properly be described as a nullity is entitled ex debito iusticiae to have it set aside. See SKENCONSULT v. UKEY (1981) 1 SC 6; CRAG v. KANSSEN (1943) KB 256 262 – 263; OJIAKO & ORS v. OGUEZE (1962) 1 SCNLR 112, (1962) 1 ALL NCR 58; OKAFOR & ORS v. ANAMBRA STATE & ORS (1991) 6 NWLR 659, 680. (iii) When it is obvious that the court was misled into getting under a mistaken belief that the parties consented to it. See AGUNBIDE V. OKUNOGA & CO (1961) All NLR 110 and OBIMONURE V. ERINOSHO (1966) 1 All NLR 250. PER SULEIMAN GALADIMA, J.C.A.
WHETHER A COURT CAN SPECULATE OR CONJECTURE ON POSSIBLE FACTS
In ADISA V. THE STATE (1991) 1 NWLR (Pt. 168) 490 at 500 TOBI J.C.A. (as he then was) emphasized as follows: “Judges are not allowed by the law to speculate or conjecture on possible facts. They do not have such jurisdiction. That is wrong. The only jurisdiction they have is to make use of the cold facts of the case as presented by the parties in open court, and use them. They cannot do more. They cannot even do less. Such is the job of the Judge. After all, a Judge is not a metaphysician. He is not even a soothsayer. He is simply a Judge of law.” The same erudite jurist TOBI JCA (as he then was) in ZIMIT V. MAHMOUD (1993) 1 NWLR (Pt. 267) 71 at 91 also said: “Tribunal or Court of law cannot embark on a voyage of discovery; a voyage which is characterized by unsafe speculations and conjectures. After all, it is not Christopher Columbus. A Tribunal which embarks upon an unguarded voyage of discovery will be lost in the sea and cannot swim or float ashore. That will be bad, not only for the judicial institution, but also for the litigants, since there will be no such institution to adjudicate on competing interests of Parties.” PER SULEIMAN GALADIMA, J.C.A.
JUSTICES
SULEIMAN GALADIMA (OFR) Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
PAUL GALINJE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF T.A. ORJI
2. CHRIS ALOZIE AKOMAS Appellant(s)
AND
1. ONYEMA UGOCHUKWU
2. HON. CHINWENDU NWANGANGA
AND
1. PROGRESSIVE
PEOPLES ALLIANCE
(PPA)
2. INDEPENDENT
NATIONAL ELECTORAL
COMMISSION (INEC) &
2891 OTHERS Respondent(s)
SULEIMAN GALADIMA, J.C.A. (OFR)(Delivering the Lead Ruling):
GENERAL INTRODUCTION: (Parties set out according to respective applications)
In the 4 consolidated Motions dated and filed on 30/10/09 No. CA/OW/EPT/167M/2009, CA/OW/EPT/168M/2009, CA/OW/EPT/169M/2009, and CA/OW/EPT/182M/2009 dated and filed on 30/10/2009 the Applicants herein prayed this court for an order setting aside respectively the judgments of this court in Appeals No. CA/PH/EPT/197/2008, CA/EPT/197B/2008; CA/PH/EPT/197D/2008 and CA/PH/EPT/197E/2008 all delivered on 11/2/2009 on the grounds that they are a nullity and that the appeal be heard by another panel of Justices of the Court of Appeal. In each application the grounds for the relief sought have been set out.
Similarly, in another set of 5 consolidated motions No CA/OW/EPT/170M/2009; CA/OW/EPT/171M/2009; CA/OW/EPT/172M/2009; CA/OW/EPT/173M/2009; CA/OW/EPT/183M/2009; dated and filed on 30/10/2009 the Applicant (Peoples Democratic Party PDP) herein prayed this court for an order setting aside, respectively, the judgments of this court in Appeals No. CA/PH/EPT/197/2008; CA/PH/EPT/197A/2008; CA/PH/EPT/197C/2008; CA/PH/EPT/197D/2008; CA/PH/EPT/197F/2008; all delivered on 11/2/2009 on the grounds that they are a nullity and that the appeals be heard by another Panel of Justices of the Court of Appeal.
In each application the grounds upon which it is anchored have been set out. In support of each application is copious Affidavit of many paragraphs with an avalanche of documents annexed as Exhibits. These will be referred to in the consideration of each application. In further support of the Applications, and in response to the counter-affidavit of the Respondents, the applicants filed further Affidavits with additional documents annexed as Exhibits.
In further opposition to the applications, the Respondents articulated and raised preliminary objections to which the Applicants further replied.
On appreciating the contentious nature of the applications this court ordered all parties to file and serve their written addresses.
After unfortunate and protracted events that culminated in the hearing of the applications they were, however, heard on 24/6/2010. Chief M.I. Ahamba K.S.C. (SAN), leading a team of other learned counsel for the 1st and 2nd Applicants, identified their FOUR consolidated applications already set out above. He equally identified their written addresses, the written Addresses of all the Respondents in opposition to the Applicants’ Motion on Notice all dated and filed on 30/10/2009. The Applicants in these FOUR set of Applications replied to the written addresses in respect of the preliminary objection, wherever raised. Compendium of list of additional authorities was made available and submitted for our consideration.
Having adopted and placed reliance on the processes filed by the Applicants herein, learned Senior counsel then urged this Court to grant the applications.
On the other hand, in the second set of consolidated applications, the learned senior counsel D.C. DENWIGWE SAN, leading other counsel for the Applicant (Peoples Democratic Party- PDP), identified all the applications (set out above) all dated and filed on 30/10/2009. He equally identified the written addresses in respect of the said applications. The Respondents’ written addresses, in opposition to the applications and in respect of preliminary objections were equally identified. Without further amplification on the Applicants’ addresses, Learned Senior Counsel has urged the court to allow the applications to set aside the various judgments of this court listed in the respective applications of the applicants.
CHIEF WOLE OLANIPEKUN, SAN leading a team of counsel for the 1st and 2nd Respondents (Chief T.A. ORJI and Chris Alozie Komas), identified all the counter affidavits in opposition to the 1st and 2nd set of Consolidated Applications to set aside judgments of this court and all the Exhibits annexed. To each application a Notice of preliminary objection was raised. To each of the preliminary objections learned senior counsel filed a motion dated 16th but filed on 20th of April 2010 to set down the preliminary objections for hearing. To each of the written addresses of the applicants, he has responded. The addresses of the said 1st and 2nd Respondents were incorporated in the arguments on the preliminary objection. Learned senior counsel, however, sought to withdraw his motion on Notice dated 13th May but filed on the 28th May, 2010 in respect of each of the applications and these were all struck out.
Having submitted a list of additional authorities, learned senior counsel then adopted his addresses and urged the court to disallow the applications and accordingly dismiss them.
N.O.O. OKE Esq. is the learned counsel for the 3rd Respondent (Progressive Peoples Alliance – PPA) in both set of consolidated applications. In opposition to the 9 applications, 9 counter-affidavits were tried. In response to the written addresses of the Applicants, the 3rd Respondent filed their written addresses, incorporating in each argument in respect of their preliminary objection. Consequent upon the foregoing learned counsel has urged the court to dismiss all the applications on the ground that they are abuse of the court process.
LIVY UZOUKWU, SAN, O.O.N. is the Learned Senior Counsel for the 2nd – 2891st Respondents (Independent National Electoral Commission (INEC) and its staff), and 3rd – 2891st Respondents in the second set of consolidated applications. Learned Senior advocate in reacting to all the 9 applications, filed counter-affidavit, 9 notices of preliminary objection. Written addresses were also filed in response to the applications.
Having identified all the processes he filed, learned senior counsel adopted and relied on the foregoing processes and urged this court to dismiss all the applications.
Before I go on to consider each of the nine applications I shall summarize the background facts culminating in the applications. The Applicants (ONYEMA UGOCHUKWU and HON. CHINWENDU NWANGANGA) after losing the Governorship election of 14/4/2007, filed two petitions of largely the same complaints in ABS/GOV./EPT/4/2008 and ABS/GOV./EPT/8/2008, consolidated, heard and judgment delivered in each of the petitions against the said Respondents in the petitions, that is Chief T.A. Orji his Deputy Comrade Alozie Akomas, his party Progressive Peoples Alliance (PPA) and INEC and its staff. Subsequently, Chief T.A. Orji and his Deputy Comrade Alozie Akomas jointly filed two appeals as follows: NO. CA/PH/EPT/197/08 and NO. CA/PH/GOV./EPT/197A/08. PPA filed two appeals, CA/PH/EPT/197B/08 and CA/PH/EPT/197C/08. INEC on its own part filed two appeals: CA/PH/EPT/197D/08 and CA/PH/EPT/197D/08.
The Applicants further filed one cross appeal NO. CA/PH/EPT/197E/08 PDP equally filed one cross-appeal NO. CA/PH/EPT/197E1/08.
All these appeals and cross-appeals were not consolidated but heard separately and judgments delivered separately in each of them on 11/2/2009. Nine months after the judgments the Applicants who lost at the court of Appeal have brought these applications asking this court to set aside the said judgments.
In all these applications before this Court it would appear to me that the main and central complaint of the Applicants is based on the judgments of this court in CA/PH/EPT/197/2008 between Chief T.A. Orji Anr. Vs. Onyema Ugochukwu & Ors.
Before going on to consider each application it is important and expedient to recapitulate the areas in these – applications where the parties have no factual disagreement. These are:
1. That before the lower Tribunal there were two petitions i.e. ABS/GOV/EPT/4/2007 (filed by Onyema Ugochukwu and his Deputy and ABS/GOV/FPT/9/2007 (filed by the PDP) all against Chief T.A. Orji and ors.
2. That the Tribunal delivered judgment in each of these petitions against Chief T.A. Orji and Ors.
3. Six appeals were filed against the judgment and three-cross appeals.
4. Appeal No. CA/PH/EPT/197/08 was an appeal by Chief T.A. Orji and his Deputy Chris Alozie Akomas against the judgment of the trial Tribunal in Election Petition No ABS/GOV/EPT/4/2007: Onyema Ugochukwu & Anor v. Chief T.A. Orii & Ors.
5. Peoples Progressive Party (PPA) also filed two appeals against the two judgments and INEC equally filed two appeals against the judgments.
6. Briefs of Argument were filed and exchanged by the Appellants and the Respondents in each of the appeals and cross-appeals.
7. That the appeals were not consolidated and they were argued separately by the parties.
8. Judgment was delivered in each of the appeals separately.
9. That Appeal No CA/PH/EPT/197/2008 was in respect of Petition No ABS/GOV/EPT/4/2007, while Appeal No CA/PH/EPT/197A was in respect of Petition No ABS/GOV/EPT/9/2007.
10. All the parties participated fully in the proceeding up to the end – including the judgments in the appeals and cross-appeals, and none of the parties raised any objection whatsoever, to any aspect of the proceeding including the judgments.
11. The Applicants admitted all the foregoing in their affidavit in support of the applications.
12. On 11/2/2009 the Court of Appeal, Port Harcourt Division delivered judgment in the 8 appeals. Each judgment was unanimous, and by the same panel of S.A. IBIYEYE (OFR), C.B. OGUNBIYI, P.A. GALINIE, O. ARIWOOLA and G.O. SHOREMI, JJCA.
It is in view of the foregoing that the applications have been consolidated to save cost and time. There is common question of law or fact in the subject matter.
Although it is desirable that the whole applications be disposed at the same time but, in law, the actions so consolidated each remain distinct and separate. For this reason I shall now consider each application separately. While each application retains its distinct identity a resolution of an issue in one application dovetailing into another will necessitate my cross-reference to avoid unnecessary repetition. Now, to the consideration of the applications.
BETWEEN:
1. CHIEF T.A. ORJI
2. CHRIS ALOZIE AKOMAS APPELLANTS/RESPONDENTS
AND
1. ONYEMA UGOCHUKWU
2. HON. CHINWENDU NWANGANGA RESPONDENTS/APPLICANTS
AND
1. PROGRESSIVE PEOPLES ALLIANCE (PPA)
2. INDEPENDENT NATIONAL ELECTORAL APPELLANTS/RESPONDENTS
COMMISSION (INEC) & 2891 OTHERS
1. MOTION NO CA/OW/EPT/167M/2009
APPEAL NO CA/PH/EPT/197/08
PETITION NO ABS/GOV/EPT/4/07
This application, as stated supra, is for an order of this court for two reliefs
viz:
(b) An order setting aside ex debito justiciae the judgment of this court unanimously delivered on 11/2/2009 in CA/PH/EPT/197/08 (hereinafter “CA/197”, simpliciter, as a nullity.
(c) An order that the said appeal be reheard by another Panel of Justices of the Court of Appeal
The Applicants submit two issues as arising in this application, viz:
“(a) whether this Honourable Court has the competence to set aside its own judgment;
(b) where the answer to (a) above is in the affirmative,
Whether any of the grounds upon which such power may be exercised exists in this applicator.
Learned senior counsel for the Applicant has submitted that the first issue derives from the fact that the 1st, 2nd, and 3rd Respondents have raised preliminary objection to the competence of the application to set aside the judgment ex-debito justiciae. He accordingly adopted the argument on this issue as the Applicants response to the preliminary objection. It is conceded that under section 246(3) of the 1999 constitution, the court of Appeal is the final court in appeals arising from Election petitions save presidential petition. Also, that it is settled point of law that after the court has pronounced its final judgment that the court becomes functus officio. Reliance was placed on OKAFOR V. A.G. ANAMBRA STATE (1991) 6 NWLR (pt. 200) 659 at 672D per Karibi-Whyte J.S.C. It is argued that issue of finality, and being functus officio, has been improperly expanded beyond its legal limit or wrongly construed and misapplied in same case. It is contended that these preliminary objections filed by the Respondents are in the realm of an effort at inducing further “gnawing” into absurdity of the principle of finality. That the element of finality does not divest the court of its power to set aside its own judgment; moreso that this judgment parades many illegalities and fundamental irregularities which must not be allowed to exist as a valid judgment of this court. Learned Senior Counsel has finally submitted that each and every ground of complaint has been established and therefore the Applicants are entitled to the orders sought. These grounds which are set out and argued in the Applicants written address are the breach of fair hearing; ultra vires acts in dismissing or striking out petitions No. EPT/167m/09 in Appeal No. CA/197; contradictory pronouncements at pp. 24 and 55 of Exhibit A on the issue of consolidation and the number of judgments written; presence of Hon. Justice Umoren JCA (rtd) and likelihood of bias; and the signing of judgment out of court and finally abdication of jurisdiction.
Upon the receipt of the Applicants’ application, the 1st and 2nd Appellants/Respondents, apart from filing counter affidavit to the application, also filed preliminary objection to the hearing of the application on the following grounds, that is-
(a) This Court lacks jurisdiction to entertain or grant the Applicant’s motion.
(b) Applicant’s motion is a gross abuse of the processes of this Honourable Court;
(c) The Applicants’ motion is an invitation to this Honourable Court to sit on appeal over its own judgment;
(d) The Court of Appeal is functus officio with respect to the appeal/decision pursuant to which the Applicants’ motion was brought.”
Sole issue for determination in this preliminary objection was set out thus:
“whether or not this Honourable Court has jurisdiction to entertain this application.”
Having argued the sole issues raised in the preliminary objection learned counsel for the 1st and 2nd Respondents has submitted that by the provision of section 246(1)(b)(ii) of the 1999 Constitution, appeal shall lie as of a right to the Court of Appeal from the Governorship and Legislative Houses Election Tribunals on any question as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State. Also, by subsection (3) of the said section 246 the decisions of the Court of Appeal in respect of appeals arising from Governorship election petition, as in the instant case, shall be final. Relying on the provisions of Order 18 Rule 4 of the Court of Appeal Rules 2007, it is submitted that the only thing this Court can do is to correct clerical mistake to give its judgment its true meaning of intention and nothing more. Learned Counsel relied further on the case of A.D.H LTD v. AMALGAMATED TRUSTEES LTD (207) All FWLR (Pt. 392) 1781 at 1840 where the apex court set out circumstances in which the Court can review its judgment. It is submitted that since this court is now functus officio, the present application cannot be entertained: MOHAMMED V. HUSSEINI (1998) 14 NWLR (Pt. 584) 108; EMEKA ONYEMOBI V. THE HON. PRESIDENT ONITSHA CUSTOMARY COURT & ORS (1995) 3 NWLR (Pt. 381) 50 and ONYEKWELU v. INEC (2009) 6 NWLR (PT. 1136) 13.
For the above arguments proffered in support of the Respondents’ preliminary objection, we were urged to uphold the preliminary objection and dismiss the motion.
In the alternative the Respondents present argument in response to the Applicants’ address filed in support of their applications and raised the only issue for determination thus:
“Whether the Applicants have established special circumstances that would warrant this Honourable Court to set aside its own judgment in the matter.”
The 1st and 2nd Respondents react to this application predicated on 8 grounds and argued seriatim. Learned senior counsel for the 1st and 2nd Appellants/Respondents herein, Chief Wole Olanipekun, SAN, has faulted all the Applicants’ complaints set out in different sub-heads. On the allegation of breach of fair hearing, it is explained that the appeal against the petition ABS/GOV/EPT/9/07, which was filed by the PDP, was listed and heard as CA/PH/EPT/197A/2008. That the Briefs of argument were filed and exchanged between the parties to the appeal and the judgment was duly delivered (per Exhibit ‘A’) attached to the Applicants’ motion in CA/OW/EPT/171/08. Since the Applicants were not parties to CA/PH/EPT/197A/08 which emanated from petition ABS/GOV/EPT/9/07, they have no basis to complain and challenge the validity of the judgment being appealed against. See TUKUR V. GOVT. OF TARABA STATE (1997) 6 NWLR (Pt.510) 549 at 578. Further to the allegation that the Applicants right to fair hearing was infringed upon, it is submitted that all the parties to this appeal were given adequate opportunities to present their cases and they did so within ambits of applicable laws and rules. Reliance was placed on the cases of M.M.S. LTD VS. OTEJU (2005) 14 NWLR (Pt.945) 517 at 543, OKOYE V. NCFC LTD (1991) 6 NWLR (Pt. 199) 501; OMO V. J.S.C (2000) 15 NWLR (PT. 654) 605.
On the allegation of ultra vires acts against the Respondents, it is submitted that the Court of Appeal rightly struck out petition No. ABS/GOV/EPT/9/07 in Appeal No. CA/PH/EPT/197/2008. It is explained that the two petitions that culminated in the nine appeals determined by this court were consolidated at the lower tribunal and heard together. The Tribunal gave judgments in respect or each petition which the Respondents herein challenged before the court of Appeal. That the competence of the two petitions: ABS/GOV/EPT/4/07 and ABS/GOV/EPT/9/07, was challenged in the present Appeal No. CA/PH/EPT/197/08. That the competence of petition No. ABS/GOV/EPT/9/07 formed part of the Grounds of Appeal formulated by the Respondents herein. Besides, the competence of that petition was one of the issues distilled from the Grounds of Appeal formulated by the Respondents herein for determination. Reference was made to issue (vii) appearing on page 26 of Exhibit ‘A’ attached to the Affidavit in support of this application. That since this issue was replied to by the Applicants herein and same was duly canvassed before this court, the court was therefore right to have delved into it. Further that petition No. ABS/GOV/EPT/9/07 formed part of the record of appeal in Appeal No. CA/PH/EPT/197/08, and therefore this court was right and acted within jurisdiction to consider and striking out same on ground of incompetence.
On the alleged contradictory pronouncements at pp 24, 55, 75, and 92 of Exhibit ‘A’; it is submitted by the learned senior counsel that there was no contradiction in the judgment in other appeals. Judgments referred to by the Applicants emanated from different and distinct appeals that were decided by different justices of the court of Appeal. As admitted by the Applicants themselves, the appeals and cross-appeals were not consolidated.
As for the alleged presence of Hon. Justice Umoren, JCA (Rtd) in court on the day of delivery of Appeal No. GA/PH/EPT/197/2008, and that this influenced the said judgment, it is submitted that the Appellants have failed to furnish this court with any strand of evidence to substantiate it. It is being urged on this court to hold that all the authorities cited in paragraphs 4.06B – 4.06D of the Applicants, written address are completely irrelevant to the facts and circumstances of this case.
On the allegation that the judgment was signed out of court, it was submitted by the learned senior counsel for the 1st and 2nd Respondents that this assertion was made without positive proof. That the only version of this judgment that exists and known of is the one attached to the supporting affidavit. That since the Applicants alleged that there are two versions the onus is on them to produce the second version.
On the alleged abdication of jurisdiction the applicants made reference to the Statement of Ibiyeye, J.C.A. at page 81 of Exhibit ‘A’, to the effect that the issues of non-resignation from the public service of Abia state and membership of okija shrine or secret society are pre-election matters which are ultra vires election Tribunals because they were not contemporaneous with the conduct of the election which took place on 14/4/2007. That the two issues are outside of S.145 of the Electoral Act. The Court of Appeal struck out the two issues.
Learned Senior Counsel for the 1st and 2nd Respondents has submitted that this court has become functus officio in respect of these issues. That by bringing up the question of non-resignation and membership of a secret cult in this application, the Applicants are inviting this Court to sit on appeal against its decision which power the court does not possess. See BAKO V. MAI-ADASHI (1997) 4 NWLR (Pt.497) 116 at 122 UBN V. C.F.A.O. (NIG) LTD 11 NWLR (Pt. 527) at 127 and Section 246(3) of the 1999 Constitution.
The 3rd Respondent’s written Address deals with both the Applicants’ application seeking the setting aside of the judgment of 11/2/2009 and their preliminary objection.
The Notice of preliminary objection dated 15/2/2010 but filed on 16/2/2010 in the main is that this Court lacks jurisdiction. Seven grounds have been stated on the face of the application. Reliance was placed on section 246(3) of the Constitution and the cases of AWUSE V. ODILI (2008) 18 NWLR (Pt.851); ONUAGULUCHI V. NDU (2001) 7 NWLR (Pt.712) 309 at 322-323; ARCON V. FASSASI (No.4) (1987) 3 NWLR (Pt.59) 42 at 46 and MADUKOLU V. NKEMDILIM (1962) SCNLR 341 at 348.
Learned Senior Counsel has submitted that a court that has jurisdiction to hear appeal has jurisdiction to deliver its judgment, except it can be shown that in delivering judgment the court breached the fundamental elements which determined the jurisdiction of the court. That this is not the position in the case at hand, as the Applicants have not shown what elements of jurisdiction the court had breached. Hereinafter, the 3rd Respondent responded to the merit of the application on all the grounds complained at and finally submitted that the applicants have not made out any case of breach of any right to fair hearing. It is urged that this application should be refused.
The 4th – 2891st Respondents filed their written address in support of their preliminary objection dated 15/3/2010 and filed on 23/3/2010 and in opposition to the Applicant’s motion dated and filed on 30/10/2009.
The preliminary objection is based on the following four grounds that:
1. The Honourable Court having delivered its final judgment in respect of a substantive appeal, which the said application seeks to set aside, became functus officio.
2. The application seeks a review of the said judgment.
3. The application challenges the correctness of the said judgment in grounds of alleged errors.
4. The application is a gross abuse of court process.
A sole issue is identified as arising from the foregoing 4 grounds upon which this preliminary objection is based:
“Whether the application hereof is not incompetent and whether this Court has the jurisdiction to entertain it.”
Learned counsel for these Respondents has argued the preliminary objection under 4 broad based grounds thereby reacting to the Applicant’s 8 grounds which is reproduced under paragraph 4.2 in the written address of this set of Respondents. I must observe that the 4 grounds argued in the 4th – 2891st Respondents’ address have been comprehensively subsumed in the 1st and 2nd Respondents’ written address. I need not delve into them further save in my later consideration of the said objection. So also I intend to do the same thing with the main application to set aside the judgment in Appeal No. CA/PH/EPT/197/2008.
It is noteworthy that all the Respondents in this application namely, 1st and 2nd, 3rd, 4th – 2891st, each filed notice of preliminary objection. On 3/6/2010, the Applicants’ counsel herein Chief M.I. Ahamba, SAN filed objection to the hearing of the objection on the grounds that the Respondents to his application did not raise their objection timeously. That they have taken steps in the proceeding since becoming aware of the alleged irregularity by filing counter Affidavits and the said preliminary objection.
Indeed, I find that all the parties have taken appropriate steps necessitating my consideration of this matter on its merit. In response to the 1st and 2nd 3rd and 4th – 2891st Respondent’s preliminary objections, the Applicants herein in this application, 167M/2009 simpliciter, have adopted and relied on their submissions in paragraph 4.01 – 4.02B on pp 6 – 11 of the Applicants written address. I do not think that the 4th – 2891st Respondents are seriously contending that this court lacks the competence to set aside its judgment ex debito justiciae, having conceded that point in paragraph 4.5 at page 10 of their address, where it was submitted that:
“It is equally not in doubt that in established and acceptance (sic) circumstances a judgment or decision of court may be set aside.”
No doubt and it is now trite law that every superior court of Record has inherent power to set aside its judgment – where it is seriously conjectured that to be a nullity. This point has been settled by the apex court and this court’s decisions examples of which are some locus classicus, viz: SKENCONSULT V UKEY (1980) 12 NSCC 1 at 6; OKAFOR V. ATTORNEY-GENERAL, ANAMBRA STATE (1991) 6 NWLR (Pt.2000) 659 at 688; IGWE V. KALU (2002) 14 NWLR (Pt.787) 435 at 453 -454, and also MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; SOKOTO STATE GOVT V. KAMDEX (NIG) LTD (2007) 7 NWLR (Pt.1034) 446; UBWA V. TIVE AREA TRADITIONAL COUNCIL (2004) All FWLR (Pt.214) 16, 11 NWLR (Pt.884) 427 and GBADAMASI OLORUMFEMI & ORS V.CHIEF RAPIU EYINLE ASHO (unreported SC 13/1993 delivered on 18th March 1999. These are all Supreme Court decisions. There are many decisions of the court of Appeal like UBA v. UKACHUKWU (2004) 10 NWLR (Pt. 881) 224; See also the Court of Appeal decisions in recent times in NWOGA V. BENJAMIN unreported CA/PH/EPT/549/2007 delivered on 18th February 2008; senator JOY EMORDI V. HON. ALPHONSUS IGBEKE & 6 ORS, ANDY UBA V. DAME VIRGY EJIABA & ORS. (unreported) CA/E/EPT/7/2007; SHAABAN V. NAMADI SAMBO (unreported) CA/K/136M/2009 delivered on 1st March, 2010; and HON. SELEKETIMIBI EBIOTU v. ANGOS DIDE & 3 ORS (reported) CA/PH/EPT/10M/2010 delivered on 21/6/2010.
Under section 246(3) of the constitution of the Federal Republic of Nigeria, 1999 hereinafter styled 1999 Constitution, simpliciter, the Court of Appeal is the FINAL court in appeals arising from election petitions, save the presidential petition.
It is also a settled point of law that after a court has pronounced its final judgment that court becomes functus officio. Black’s Law Dictionary 15th Edition; on page 606 defines this latin expression as: A task performed; having fulfilled the function or accomplished the purpose. I understand the expression to mean having performed his or her officio (duty of the office) the officer is discharged or is without further authority or legal competence; because the duties and function of the original commission have been fully accomplished. In the case of OKAFOR V. A.G. ANAMBRA STATE (1991) 6 NWLR (Pt.2000) 659 at 672 C – D, KARIBI WHYTE (JSC) in his concurring judgment held thus:
“The bone of contention in this appeal by the Appellant is whether, the Court of Appeal having handed down its judgment was functus officio and lacked the jurisdiction to set such a judgment aside? The Respondent however contends the contrary, i.e where the judgment of the court is found to be a nullity, it always has the inherent jurisdiction to set it aside. So a general principle the proposition that a court on delivering its judgment been gnawed into absurdity in many specific cases”
In other words, as noted and pronounced by this great jurist, the issue of finality and being functus officio has been improperly expanded beyond its legal limit or wrongly construed and misapplied in so many cases. These preliminary objections are in the realm of our effort at inducing further gnawing into absurdity at the principle of finality of a decision of a court.
The facts of this case which are simple and exposed earlier fall into one of the general principles hereto.
I have considered it of immense judicial function entrusted on me to look into the merits of the application before this court as I have done in many cases.
The question now is whether the element of finality divests the court of its power to set aside its own judgment. My foregoing preamble was to give consideration to a long list of classical judicial pronouncements of the Apex Court and indeed, this court. These courts in those chains of authorities have cleared any doubt or misgivings as to the powers of a court to, in the appropriate circumstances, set aside its own judgment. In SKENCONSULT V. UKEY (supra) the Supreme Court (per NNAMANI JSC, of Blessed Memory) stated:
“It is my view that looking through the authorities, would seem that the issue can be resolved depending on whether in the course of proceedings there has been a fundamental defect, such as we have had in the instant case, which goes to the issue of jurisdiction and competence of the court. In such a case, the proceedings are a nullity and the orders made would also be nullified. If of course the court is and the other is the result of exercise of the Judge’s judicial discretion after hearing evidence, the decision will only be appealable.”
In OKAFOR V. A-G ANAMBRA STATE (supra) at p. 680; the erudite jurist further stated thus:
Thus, in all situations, where the decision is regarded as a nullity, as in the instant case the party affected is entitled ex debito iusticiae to have it set aside. See OBIMONURE V. ERINOSHO (1966) 1 All NLR 250; OGBU V. URUM (1984) 4 SC 1 cited in NWOSU V. UDEAJA (1990) 1 NWLR (Pt. 125) 188; (1990) 1 SCNJ AT P.167. See further SANUSI V. AYOOLA (1992) 9 NWLR (Pt.265) 275 at 292; IGWE KALU V. KALU (supra) (supra) at pp. 453 – 454, where OGWUEGBU JSC listed some of the factors that render a judgment a nullity as follows:
(i) When the judgment is obtained by fraud or deceit either in the Court or of one or more of the Parties, such a judgment can be impeached or set aside by means of an action which may be brought with leave: see ALAKA v. ADEKUNLE (1959) LL 76; FLOWER v. LLOYA (1877) 6 CH.D; OLUFUNMISE v. FALANA (1990) 3 NWLR Ppt.136) 1.
(ii) Where the judgment is a nullity, a person affected by an order of court which can properly be described as a nullity is entitled ex debito iusticiae to have it set aside. See SKENCONSULT v. UKEY (1981) 1 SC 6; CRAG v. KANSSEN (1943) KB 256 262 – 263; OJIAKO & ORS v. OGUEZE (1962) 1 SCNLR 112, (1962) 1 ALL NCR 58; OKAFOR & ORS v. ANAMBRA STATE & ORS (1991) 6 NWLR 659, 680.
(iii) When it is obvious that the court was misled into getting under a mistaken belief that the parties consented to it. See AGUNBIDE V. OKUNOGA & CO (1961) All NLR 110 and OBIMONURE V. ERINOSHO (1966) 1 All NLR 250.
In view of the foregoing it is clear that this court has the inherent power to set aside its judgment in CA/PH/EPT/197 or any other judgment in the appeal if any of the nullifying grounds is found to exist in the proceedings. Whether the judgment is final or not depends on whether it is valid or not. In an application of this sort the court is only belng invited to determine on the facts before it gave a decision as lacking in merit. It is for this reason I shall dismiss the preliminary objection of the Respondents herein as lacking in merit and it is so dismissed.
I shall now consider the merit of all the applications where similar objections have been raised.
The only issue that calls for determination in this application is whether the Applicants have established special circumstances that would warrant this court to set aside its judgment in Appeal No. CA/PH/EPT/197/2008 delivered on 11/2/2009 by a panel of this court sitting at Port Harcourt – Coram IBIYEYE, OGUNBIYI, GALINJE, ARWOOLA, and SHOREMI JJCA. It is not in contention by the parties that the law is settled that once a court of law has delivered a final judgment in respect of a matter before it, that court becomes functus officio. See NBCL V. ILUMBO FURNITURE CO. LTD. (2004) 17 NWLR (Pt. 903) at 592. See also the cases cited earlier on this point above. However, where there exists special or exceptional circumstances for the court to review its own judgment, notwithstanding the element of finality or the operation of the principle of functus officio, it can properly do so. The burden however is upon any party seeking to move the court to set aside its own judgment, to prove by compelling and cogent affidavit evidence that exist exceptional circumstances warranting the court to do so. See SOKOTO STATE GOV. v. KAMDEX (NIG). LTD (supra). In the case at hand can it be said that the applicants have exhibited any material that can make this court set aside its judgment.
I have earlier observed that this application is predicated on 8 grounds set out by the Applicants and argued seriatim by the Applicants. I shall consider the grounds as argued seriatim.
Ground one is on alleged Breach of fair Hearing. The main complaint of the Applicants under this sub-head is that the judgment of this court infringed on their fundamental rights on the allegation that the petition ABS/GOV/EPT/9/07 without the applicants being heard was struck out. The 1st and 2nd Respondents in paragraph 6.6 page 22 of their written address explained and stated the true position of the matter and I agree with them. They argued that against the said petition, filed by the Peoples Democratic Party (PDP), was listed and heard as CA/PH/EPT/197A/08. Briefs of argument were filed and exchanged between the parties to the appeal. Ogunbiyi J.C.A. delivered the judgment. See Exhibit ‘A’, attached to the Applicants motion CA/OW/EPT/171/2008. It is not therefore true that the applicants, petition were struck out without being heard as they claimed in their written address. The Applicants by their own showing in their written address admit that they were not parties to CA/PH/EPT/197A/08 which emanated from Petition ABS/GOV/EPT/9/2007. I cannot fathom the basis for their complaint that they were not given fair hearing. The Petition was filed by the PDP. The Applicants having not shown any locus they cannot complain it is only a party to an appeal that can challenge the validity of the judgment being appealed against. See TUKUR V. GOVT. OF TARABA STATE (1997) 6 NWLR (Pt.510) 549 at 578, where it was held that where a party before an appellate court has not appealed against the part of the judgment of the lower court affecting him, it is not open to him to canvass argument against the judgment. See further EJOHWHOMU V. EDOK-ETER MANDILAS LTD. (1986) 5 NWLR (Pt.39) 1; BROWN V. ADEBANJO (1986) 1 NWLR (Pt. 16) 383; and AWOTE V. OWODUNMI (1986) 5 NWLR (Pt. 46) 941.
There is no basis for the Applicant’s allegation that their right to fair hearing was infringed upon. All parties to this appeal were given adequate opportunities to present their cases and they did present their cases within the ambit of applicable laws and rules. They cannot thereafter complain of not being heard. See MMS V. OTEJU 2005 (14 NWLR) (Pt.945) p.517 at 543.
Learned Senior Counsel for the 3rd Respondent in paragraph 1.10 – 1.12 and 2.04 of their written address has urged this court to hold that the mere fact that IBIYEYE, JCA, in his judgment in CA/PH/EPT/197/08, struck out petition No. ABS/GOV/EPT/9/07 does not ipso factor render as a nullity the said judgment.
Even if IBIYEYE, J.C.A., had struck out all the grounds of appeal contained in the notice and grounds of appeal in Appeal No.CA/PH/EPT/197A/2008 in respect of petition No.ABS/GOV/EPT/197A/2008, the fact still remains that in their appeals Nos. CA/PH/EPT/197C/08, CA/PH/EPT/197D/07, and CA/PH/EPT/197F/08, the judgment of the trial tribunal ABS/GOV/EPT/8/07 was set aside. Thus viewed from any angle this Honourable court laid to rest the complaints raised in ABS/GOV/EPT/09/07.
Ground 2: allegation that the judgment complained of was signed out of court. It is my respectful view that the complaint contained in paragraphs 4 – 8 of the supporting affidavit which embody this issue is frivolous. It has not been proved. The law is that he who asserts must prove.
Ground 4(a) – (e) of the Applicant’s Application provides as follows:
4. The Justices of the Court of Appeal denied the Applicants fundamental right when they pronounced and delivered a handwritten judgment but later issued certified copy of a typed written judgment to the Applicants.
(b) The Court lack jurisdiction after delivering its unanimous handwritten judgment on 11th February, 2009 in appeal No CA/PH/EPT/197/08 to have subsequently proceeded to deliver and to furnish the Applicants with a new or different set of unanimous judgment which is typewritten and signed afresh by the learned Justices, in the recess of their Chambers.
(b) A Certified True Copy of the unanimous hand written judgment delivered by the Court on 11th February, 2009 in appeal No CA/PH/EPT/197/08 was not given to the Applicants contrary to section 294 of the Constitution of the Federal Republic of Nigeria, 1999.
(c) The subsequent type-written judgment of the Court in appeal No CA/PH/EPT/197/08 given to the Applicants in place of the handwritten judgment is invalid and incompetent, having been made without jurisdiction and therefore a nullity.
(d) The Court, upon the delivery of the, handwritten judgment in open Court on 11th February, 2009 became functus officio.
That court was not competent to again deliver, produce or reproduce and sign or countersign another judgment that was now typewritten in the recess of its chambers.
A certified true copy of the judgment of the Court of Appeal in Appeal No. CA/PH/EPT/197/2008 was attached as Exhibit ‘A’
The Applicants claimed in Ground 4(a) (supra) above that Exhibit ‘A’ is “new or different set of unanimous judgment which is type-written and signed afresh by the learned Justices in the recess of their chambers.” The 4th – 2891st Respondents joined issues with the Applicants on this claim. The Applicants did not produce the alleged hand written judgment to enable this court compare it with Exhibit ‘A’. The Applicants did not give details of why they vaguely claimed that Exhibit ‘A’ is a different” judgment. This court cannot speculate on the differences between Exhibit ‘A’ and the other alleged judgment that was handwritten. The Applicants would want this court to further speculate on what they alleged the court did in the recess of their chambers. The Applicant should have shown that they had physical access to the recess of the chambers of the court and that they had technological capability to have bugged the chambers for them to know what allegedly took place therein.
I agree with the learned senior counsel for the 4th – 2891st Respondents, LIVY UZOUKWU SAN, OON that speculation has never been part of the business of a court and a court is not entitled to make a finding on the basis of speculation.
In ADISA V. THE STATE (1991) 1 NWLR (Pt. 168) 490 at 500 TOBI J.C.A. (as he then was) emphasized as follows:
“Judges are not allowed by the law to speculate or conjecture on possible facts. They do not have such jurisdiction. That is wrong. The only jurisdiction they have is to make use of the cold facts of the case as presented by the parties in open court, and use them. They cannot do more. They cannot even do less. Such is the job of the Judge. After all, a Judge is not a metaphysician. He is not even a soothsayer. He is simply a Judge of law.”
The same erudite jurist TOBI JCA (as he then was) in ZIMIT V. MAHMOUD (1993) 1 NWLR (Pt. 267) 71 at 91 also said:
“Tribunal or Court of law cannot embark on a voyage of discovery; a voyage which is characterized by unsafe speculations and conjectures. After all, it is not Christopher Columbus. A Tribunal which embarks upon an unguarded voyage of discovery will be lost in the sea and cannot swim or float ashore. That will be bad, not only for the judicial institution, but also for the litigants, since there will be no such institution to adjudicate on competing interests of Parties.”
In paragraph 4(b) of their Grounds the Applicants alleged that the certified true copy of the unanimous hand-written judgment delivered on 11/2/2009 in Appeal No. CA/PH/EPT/197/08 was not given to the Applicant contrary to section 294 of the Constitution of the Federal Republic of Nigeria, 1999. Section 294(1) of the 1999 Constitution enact thus:
“Every court established under the Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within 7 days of delivery thereof.”
By their admission, the Applicants agree that they were given Exhibit ‘A’ which is an authenticated judgment in writing of the Court of Appeal in the appeal under reference. The provision did not stipulate that the Applicants would be given “hand-written” judgment. They were only entitled to authenticated copies of the Judgment which must be in writing. It cannot be delivered verbally in view of the provision of s. 294(1) (supra): see AKINGBADE V. AFRICAN PAINTS (NIG) PLC (2008) 10 NWLR (Pt.1096) 570 at 586 C – D.
It is a wrong view for the Applicants to think delivery “decision in writing” only means delivering a hand written decision.
I do not agree with the Applicants that Exhibit ‘A’ is not a decision in writing. It is. The Applicants missed the point and misinterpreted section 294(1) of the 1999 Constitution when they argue that:
“It would have been a different situation if what was delivered to the applicants was a certified true copy of the hand written judgment instead of certified copy of a post hearing signed typed judgment.”
GROUNDS 3, AND 7
The main complaint of the Applicants in these grounds is that this court erred in law by striking out petition No. ABS/GOV/EPT/9/07 in Appeal No. CA/PH/EPT/197/08. Their contention is that since Appeal No. CA/PH/EPT/197/08 did not arise from petition No. ABS/GOV/EPT/9/07 this court had no jurisdiction to consider it.
I agree with the learned senior counsel for the 1st, 2nd, and 3rd Respondents that the Applicants have only predicated their complaints on isolated facts and choose to ignore other relevant fact detrimental to their position.
I refer to paragraph 15 of the Counter Affidavit of the 3rd Respondent. It is shown that petition No. ABS/GOV/EPT/9/2007 gave rise to appeal numbers; CA/PH/EPT/197A/08, CA/PH/EPT/197/07, CA/PH/EPT/197D/08, and CA/PH/EPT/197F/08.
By paragraphs 8 and 12 of the 3rd Respondent’s counter Affidavit, they have shown that all parties filed their respective Briefs of Argument and made oral expatiation at the hearing of the appeal. Thus the complaint of denial of fair treating was raised mala-fide. The Applicants utilized all the opportunities they had in presenting their case. Thus this Court having heard the appeals allowed same and upturned the decision of the lower tribunal in petition No. ABS/GOV/EPT/09/08. Therefore no breach of fair hearing has arisen from the determination of the appeals on petition No. ABS/GOV/EPT/09/08. This petition formed part of the record of Appeal in Appeal No. CA/PH/EPT/197/2008. This court was therefore right and acted within its jurisdiction to consider the said petition. The law is that in determination of an appeal before it an appellate court is entitled to consider and make use of all processes forming part of the record of appeal. See NUHU V. OGELE (2003) 18 NWLR (Pt.852) 251 at 278 – 279; WEST AFRICAN PROVINCIAL INSURANCE CO. LTD. V. NIGERIA TOBACCO CO. LTD. (1987) 2 NWLR (Pt. 56) 299 and TEXACO PANAMA LTD V. SHELL P.D.C.N. LTD (2002) 5 NWLR (Pt.759) 209. Furthermore may it be noted that IBIYEYE JCA could not have properly resolved issue VII, as formulated by the Appellants/Respondents in Appeal No. ABS/GOV/EPT/9/07 which said petition, the court rightly found to be incompetent on grounds (a) – (d) stated in the said issue No. VII.
In paragraphs 4.04B – 4.04D of the Applicants’ written address the impression was created that the Respondents herein failed to file their briefs of argument in respect of Appeal No. CA/PH/EPT/197A/08. Record available show that the Respondents herein settled and filed a Brief of Argument in respect of the said appeal. Briefs were filed and exchanged by the parties. Issues having been joined and the parties heard this court in a considered judgment delivered on 11/2/2008 dismissed petition No. ABS/GOV/EPT/9/07 and allowed the appeal. See Exhibit ‘A’ attached to the Applicants’ motion in CA/OW/EPT/171/08.
The Applicants identified the quotation or IBIYEYE JCA appearing on pp 17 – 18 of the Applicants written address as the third ultra vires act”‘ This is clear misinterpretation of His Lordship’s comments. He did not conclude that the election conducted on 14/7/2007 was inconclusive or that there was no declaration of the election results. He simply said that the claim by the petitioners (the Applicants’ herein) in their reliefs that the result of the election of 14/4/2007 had not been announced by the Resident Electoral commissioner as at the time the petitions were filed completely divested the lower Tribunal of the jurisdiction to entertain same. That was the conclusion reached by the court and it was on the basis of this conclusion that the petitions were dismissed. In view of this I do not think the authorities of AONDOKA V. AJO (supra), INEC V. RAY (supra) cited by the Applicants in arguing the third ultra vires act” are still relevant to this case. I agree with the learned Senior counsel for the 1st and 2nd Respondents. It is not every, if any in this case, that a slip on the part of the court is sufficient to nullify a well considered judgment of panel of 5 justices of this court,
I hold therefore that the ultra vires doctrine and the authorities cited by the Applicants in paragraphs 4.04 – 4.04E of the Applicants’ written address have no relevance whatsoever, to the acts and circumstances of this case. That being the case the argument of the applicants on the concept of the ultra vires is baseless and is hereby discountenanced.
GROUNDS 4 AND 8
It is noted that all the issues raised and argued under these grounds were joined by the parties during the trial and determination of this appeal and have been solemnly pronounced upon counsel addressed the court copiously on the said issues and they have been determined on the merits. Thus this court has become functus officio in respect of these matters. By bringing up once again, the questions of non-resignation and membership of a secret cult in this application; the Applicants are inviting this court to sit on appeal against its own decision which power it lacks. See BAKO V. MAIADASHI (1997) 4 NWLR (Pt. 497) 116 at 122 it was held that once a court has delivered its judgment it becomes functus officio and ceases to have powers to tamper with the judgment in any way except in a situation like correction of clerical mistakes and arithmetical errors. See order 18 Rule 4 of the Court of Appeal Rules 2007 and s. 246(3) of the 1999 Constitution which provides that the decision of the court of Appeal in matters bordering on election of a state Governor is not appealable.
GROUND 5: CONTRADICTORY PRONOUNCEMENTS
The allegation by the Applicants here is that the judgment of the Court of Appeal is full of contradictions intense with the other judgments in the other appeals. The alleged contradictions are said to be at pages 24, 55, 75 and 92 of Exhibit ‘A’. I place greater reliance on the submissions of learned senior counsel for the 4th – 2891st Respondents on the resolution of this issue in his written address. The question is whether there was any contradiction in respect of the life issues submitted to the court for adjudication. The fundamental and life issues which arose from 6 appeals respectively filed by INEC and its officials, Chief T.A. Orji and Chris Alozie Akomas and the Peoples Progressive Alliance (PPA) were as follows:
1. Whether Chief T.A. Orji and Chris Alozie Akomas, his Deputy, were public officers who ought to resign their appointment at least 30 days to the Governorship election of 2007.
2. Whether Chief T.A. Orji was a member of the Okija secret society. All 6 appeals resolved the foregoing fundamental issues in favour of the Appellants that Chief T.A. Orji and his deputy were not public officers and that the former was not a member of a secret society. I do not see any relevance the issue of alleged conflict over the issue of consolidation of the petition and the number of judgments emanating therefrom to the fundamental issues aforestated. Where an ambiguity has been created in judgment of this court or uncertainties in the pronouncements of the court, the court has clear inherent jurisdiction to amend or vary its own order or judgment so as to carry out its own meaning and where the language used or pronouncement made have been doubtful, to make it plain. See OBIOHA V. IBERO (1994) 1 NWLR (Pt. 322) 503 at 534; ADIGUN & ORS V. ATT. GEN. OYO STATE (1987) 2 NWLR (Pt.56) 197.
This jurisdiction is limited only to where there is a clerical mistake in the judgment or Order or it is necessary to do so to carry out the courts own meaning and to make the same plain. Any thing to the contrary will amount to a court sitting on appeal over its own judgment or order.
GROUND 8 – Alleged presence of Hon. Justice Umoren, (JCA) (rtd) and likelihood of bias.
In paragraph 8(a), (b), (c), of the Grounds of the application the Applicants allege that the judgment of the court of Appeal No. CA/PH/EPT/197/2008 is a nullity in that an interested party participated directly or indirectly in the decision by meeting with the Justices in chambers before the hand-written judgment was delivered as the judgment of the court on the 11th February 2009, It was specifically alleged that the said Justice Umoren, J.C.A. (rtd) was in the company of the chairman of PPA and the other party supporters and Umoren, J.C.A. immediately proceeded to the chambers and met the panel. After the meeting the panel came out with a handwritten judgment that was delivered in favour of the Appellants. That Umoren, J.C.A. who came with the panel to the court room sat in the same platform with their Lordships.
This most uncharitable and grave allegation against the retired Justice Umoren is regrettable. The Applicants who were alleging a breach of their right to fair hearing failed to respect Hon. Justice Umorens’ own right to fair hearing guaranteed by section 36 of the 1999 Constitution.
There is no iota of evidence that Hon. Justice Umoren had influenced or induced the decision of the court in any manner. In the circumstance I am not ready to countenance this baseless allegation.
It is therefore my profound, and respectful view, that the Applicants herein have not made a good case to enable me grant their applications. The grounds upon which their applications were brought having been found unmeritious the said application is dismissed.
I cannot conclude this Ruling without commenting albeit, briefly, on the Press Release and interviews by the Applicants attached and marked Exhibits A, B, and C, D and E of the 1st and 2nd Respondent’s counter Affidavit filed on 16/2/2010. These are respectively Vanguard Newspapers edition of 25/10/2009, 1/11/2009, 8/11/2009; 5/1/2010 and Daily Independent Newspaper edition of 16/2/2009. This to me is a dangerous trend and lack of traditional respect and honour of this court, that despite the pendency of the Applicant’s motion before this court the Applicant (and not the respected counsel who I believe are themselves Ministers in this Temple of Justice) have gone to the pages of newspapers to sponsor articles and grant interviews where a lot of unfounded allegations were made against my learned, Respectful brothers who faithfully carried out their judicial duties. The Applicants although have constitutional right of freedom of expression, however they do not have the right to pour such venom on the justices that heard this matter on the ground that one of the justices that sat on the panel granted interview on the matter and also the 1at Respondent herein, Chief T.A. Orji also addressed the Press. It is said “two wrongs do not make a Right.”
However, from the foregoing it is my profound and my respectful view that Applicants herein have not made a good case to enable me grant their application. All the grounds upon which their application were brought having been found unmeritorious, is dismissed.
BETWEEN:
PROGRESSIVE PEOPLES ALLIANCE (PPA) – APPELLANT/RESPONDENT
AND
1. ONYEMA UGOCHUKWU
2. HON. CHINWENDU NWANGANGA RESPONDENTS/APPLICANTS
3. CHIEF T.A. ORJI
4. CHRIS ALOZIE AKOMAS
INDEPENDENT NATIONAL ELECTORAL RESPONDENTS
COMMISSTON (INEC) & 2891 OTHERS
2. CA/OW/EPT/168M/2009
NO. CA/PH/EPT/197B/08
PETITION NO. ABS/GOV./EPT/4/07
This is an application, dated and filed on 30/10/2009, to set aside the Court of Appeal judgment in CA/PH/EPT/197B/2008. The Appeal was filed by the Progressive Peoples Alliance (PPA) against the judgment of the lower Election Petition Tribunal in the petition No. ABS/EPT/4/2007. The petition was against the declaration of the 3rd and 4th Respondents herein as Governor and Deputy Governor of Abia State respectively. The petition was consolidated with another petition filed by the Peoples Democratic Party (PDP) against the same declaration.
The Election Petition Tribunal having granted the petition; the appeal No CA/PH/EPT/197B|2008 became one of the six appeals filed against the decision of the Tribunal. Two cross Appeals were also filed. I have listed all the appeals and cross appeals filed in the judgment in motion No CA/OW/EPT/167M/2009. All the appeals were heard together and judgments delivered separately on the same record of Appeal. There was no consolidation of the Appeals.
Two reliefs sought by the Applicants in this application pray for an order of this court to set aside the judgment of the Court of Appeal in Appeal No. CA/PH/EPT/197B/2008 delivered on 11/2/2009 by a panel of 5 Justices sitting at Port Harcourt, on the grounds that the said judgment is a nullity based on 5 grounds, hereinafter to be considered on pages 2 – 5 of the motion paper. The second relief prays for an order that the said Appeal be heard by another panel of Justices of the Court of Appeal.
The Application is supported by an eleven paragraph affidavit sworn to on behalf of the Applicants with two Exhibits – ‘A’ judgment on CA/PH/EPT/197/2008 and ‘B’ judgment on CA/PH/EPT/197b/2008. The Appellant Respondent (PPA) has through its counsel L.O. FAGBEMI SAN filed and served a Notice of Preliminary objection against the application. They also filed a counter-affidavit sworn to by one Kunle Ayemoyi, of counsel. The 3rd and 4th Respondents herein, also filed a Notice of Preliminary objection dated 15/2/2010 and counter-affidavit. The 5th – 2891st Respondents filed a counter affidavit sworn to by Chillezie Uba, of counsel. In response, the Applicants, have filed a further affidavit in respect of each of the counter-affidavits. The Applicants relied on the further-affidavits at the hearing of the application. Learned Counsel for the Applicants, Chief M.I. AHAMBA KSC (SAN) has presented the following two issues as arising in this application viz:
“(a) whether the Court of Appeal has the competence to set aside its final judgment.
(b) if the answer to (a) is in the affirmative, whether there are nullifying elements in the judgment in CA/PH/EPT/197B/2008.”
This issue (a) is based on the preliminary objection, raised by the Respondents challenging the competence of this Court to set aside its final judgment. This point has been extensively argued by the respective senior counsel for their respective parties in the first motion CA/OW/EPT/167M/2009. I have painstakingly considered the leading or locus classicus of cases, some of which the applicants have rested their presentation, considering those authorities I have answered and resolved the issue (a) in the affirmative based on extant judicial pronouncements by both the Supreme Court and the court of Appeal to the effect that inherent power enures to this Court to set aside its judgment or orders ex-debito justicae in the appropriate cases and circumstances. See SKENCONSULT v. UKEY (1980) NSCCL at 16 (S.C.); OKAFOR v. A.G. ANAMBRA STATE (1991) 6 NWLR (Pt.200) 659 at 680 D (SC); ALAO v. ACB (2000) 9 NWLR [Pt.672] 204 at 282 (SC); IGWE v. KALU (2001) 14 NWLR [pt.787] 435 at 453. 451 (SC); OLORUNFEMI v. ASHO SC 13/1993 (unreported) – delivered on 18/3/1999 (SC) UKACHUKWU v. UBA (2004) 10 NWLR [pt.881) 224 (CA), SOKOTO STATE GOVT. v. KANDEX (NIG) LTD (2007) 7 NWLR (Pt.1034] 446 (SC); NWOGA v. BENJAMIN (unreported) CA/PH/EPT/549/2007 delivered 18/2/2008. JOY EMORDI v. HON. ALPHONSUS IGBEKE & 5 ORS. (unreported) CA/EPT/4M/2009 delivered 12/5/2010; SUNDAY UGWA & 1 OR v. HON. OJI LEKWAUWA & 1 OR (unreported) CA/PH/EPT/230/2008 delivered 30/3/2010. I agree with the learned Senior Counsel for the Applicants in his submission that an application to set aside a judgment ex-debito justiciae is not the same as inviting the court to review or reverse its order but to declare the judgment a nullity and in effect non-existent.
It is for the foregoing reason I must resolve this issue in the affirmative and dismiss the preliminary objection. I must consider the merit of the application.
The issue that calls for determination as agreed by the parties in their respective written addresses is whether the judgment of the court of Appeal holden at Port Harcourt delivered on 11/2/2009 in Appeal No CA/PH/EPT/197B/2008 is a nullity. The Application is predicated on the following grounds:
“1. That the unanimous decision of the Court of appeal in Appeal No CA/PH/EPT/197/08 to strike out or dismiss petition No. ABS/GOV/EPT/9/07 was made without jurisdiction and was therefore a nullity.
2. That the unanimous judgment of the Court of Appeal in Appeal No CA/PH/EPT/197/08 was delivered without jurisdiction and in breach of the Applicant’s right of fair hearing.
3. The procedure adopted by the Court in the delivery of its judgments on 11th February 2009, deprived the said. decision or judgment of the Court of Appeal in appeal Nos. CA/PH/EPT/197/08, CA/PH/EPT/197A/80, CA/PH/EPT/197B/08, CA/PH/EPT/197C/08, CA/PH/EPT/197D/08, CA/PH/EPT/197D/08 of the character of legitimate adjudication and therefore liable to be set aside’
4. The judgment of the Court of Appeal is void and a nullity being that it was delivered in wanton disregard of the decisions of the Supreme Court on the material issues in the appeal.
5. The unanimous decision or judgment of the Court of Appeal that the question of non-resignation and of membership of a secret society as disqualifying factors are pre-election matters and that there is p right of interlocutory appeal in election petition proceedings, is contrary to law, unconstitutional, null and void.”
It is noted that the Applicants have condensed these 5 grounds of the application to three, to wit:
“1. The judgment now sought to be set aside is riddled with irreconcilable contradictions and inconsistencies with the decision in the appeals on the same Election Petition No EPT/04, that is CA/197 and CA/197D which render the judgment ambiguous and inchoate.
3. Breach of right to fair hearing.
4. The Court acted ulta vires its jurisdiction in the delivering of the judgment in CA/PH/EPT/197B/2008 now sought to be set aside.
I have observed that the Appellant/Respondent’s counsel has craved the indulgence of this Court to first adopt their written arguments in the preliminary objection as part of their response to the merit of this application. It is that the arguments so proffered on the preliminary objection be deemed relevant and material to the arguments on the three grounds argued by the Appellants and that the three grounds be dismissed. The Appellant/Respondent’s counsel made a valid point that the judgment of this Court sought to be set aside arose from an appeal which was never consolidated with any other appeal; thus having regard to the fact that the appeal was considered independent of other appeals whatever error that occurred in another appeal cannot be used to determine the jurisdiction of the court or correctness of the judgment of the court in the appeal which gave rise to the judgment now sought to be set aside.
Viewing the matter in the concept of jurisdiction of court at all material time predicated on the 3 principles set out in MADUKOLU V. NKEMDILIM (1962) SCNLR 341 at 345 wherein it is held that a court is competent when:
“1. It is properly constituted as regards numbers and qualification of the members of the Bench and no member is disqualified for one reason or another;
2. 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
3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
The complaint of the applicants under Ground 1 is, that some issues were resolved in judgment in Appeal CA/PH/EPT/197B/2008 which gave rise to this application and those resolution conflicted with position taken in some other cases. This is not a complaint on jurisdiction to warrant an application to set aside the said judgment on the basis that it was a nullity. To determine the complaints of conflicting reasoning will amount to a review of the decision of this Court which it has no jurisdiction to do so as it has become funcLus offcio. See section 246(3) of the 1999 Constitution and AWUSE v. ODILI (2003) 18 NWLR [pt.85] 116 at 151 – 152, which gives finality to a decision of this Court. The Court has become functus officio in this matter except to amend or vary the judgment so as to carry out its own meaning and where the language used has been doubtful to make it plain. See ARCON v. FASSASI (NO 4) (1987) 3 NWLR [Pt.59] 42 at 46. OBIOLIA v. IBERO (1994) 1 NWLR [pt.322] 503 at 534, O.H.M.B. v. APUGO & SONS LTD (1990) 1 NWLR [Pt.129] 652.
This in effect is the scope of the ‘slip-rule’ principle. Under the rule the court has power only to amend its own judgment so as to correct and bring out in that judgment to carry out the meaning which the court intended. Such amendment as I have observed, would however be improper, if it has the effect of varying a judgment or order which correctly represents what the court decided. See N.I.C.O.N. v. P.I.E. CO. LTD (1990) 1 MWLR [Pt.129] 97 at 708 and ASIYANBI v. ADENIJI (1967) 1 ALL NLR 82.
On the question of breach of the right of the Applicants to fair hearing under ground 2: the alleged breach is anchored on the conduct of Justice Umoren, (JCA). But it is noted that that is not one of the 5 grounds in the Applicant’s motion dated and filed on 30/10/2009 though it was raised in paragraph 4.02 C of the Applicants’ address. The issue not having been raised as a ground of the Application is misconceived and ordinarily can be ignored. Even on the merit, as I have held in my Ruling in CA/OW/EPT/167M/2009, no serious case of bias has been made out by the Applicants. There was no proof whatsoever of bias or that Chairman of the progressive peoples party (PPA) influenced the Honourable Justices of this Court in delivering the judgment of 11/2/2009. Such grievous allegation to pervert the course of justice was never brought to the attention of the retired Hon. Justice Umoren, JCA. This is a breach of his own right to fair hearing guaranteed by section 36 of the 1999 Constitution.
Without any iota of evidence the applicants wantonly assailed the integrity and character of Hon. Justice Umoren, JCA who retired honourably from this Court. To vitiate a proceeding on the basis of bias a complainant must demonstrate the existence of real likelihood of bias. The test for determining bias is not that of unreasonable man. Real likelihood of bias means a substantial possibility of bias. In the case of THE SECRETARY, IWO CENTRAL LOCAL GOVT. v. TALIATU ADIO (2000) 8 NWLR [Pt.667] 115 at 153 B – C, the Supreme Court clearly stated the position thus:
“The standard of capricious and unreasonable people should not be allowed to determine and control the legal aphorism that justice must not only be done but must be manifestly seen to be done otherwise judicial or quasi-judicial functions would be almost impossible to perform. There is nothing in the facts of this case which would have disqualified Ige J from sitting to adjudicate over it between the parties.”
Indeed, may that day never come when a situation, like this at hand, would make it impossible for the court to perform its judicial functions. It is in view of the foregoing that I totally reject this frivolous allegation as one of the grounds for granting this application.
Under ground 3 the complaint is that this Court made pronouncements which were contradictory to the position taken in other matters. In canvassing argument on the alleged ultra vires of rhe court of Appeal the Applicants’ tried to challenge the correctness of the decision and finding of the court at page 55 of Exhibit ‘A’ and page 59 of Exhibit ‘B’, dealing with the claim in petitions, that there was no announcement or declaration of results. Under ground 1 herein, I have explained the concept of jurisdiction and powers of court in determining a case. I adopt my pronouncement hereto.
Here, no issue of jurisdiction has arisen to warrant the setting aside of the judgment of this Court of Appeal in Appeal No CA/PH/EPT/197B/2008 delivered on 11/2/2009. The arguments of the applicants will entail review of that judgment which exercise this Court is not statutorily entitled to embark. The application is accordingly dismissed.
BETWEEN:
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
(INEC) & 2891 ORS. APPELLANTS/RESPONDENTS
AND
1. ONYEMA UGOCHUKWU
2. HON. CHINWENDU NWANGANGA RESPONDENTS/APPLICANTS
3. CHIEF T.A. ORJI
4. CHRIS ALOZIE AKOMAS RESPONDENTS
5. PROGRESSIVE PEOPLES ALLIANCE (PPA)
3. MOTION NO. CA/OW/EPT/169M/2009
APPEAL NO. CA/PH/EPT/197D/2008
PETITION NO. ABS/GOV./EPT/4/2007
This is an application dated and filed on 30/01/2010 by the Applicants/Respondents praying this court for an order setting aside the judgment of this court in appeal No. CA/PH/EPT/197D//2008 delivered on 11/2/2009, on the grounds that the said judgment is a nullity by reason of grounds set out in the motion paper. Secondly, for an Order that the appeal be heard by another panel of Justices of the Court of Appeal.
The application is supported by an affidavit sworn to by Senator Onyeka Okoroafor; with Exhibits A and B attached. The Appellants/Respondents to this application filed a counter affidavit. The 3rd, 4th and 5th Respondents filed their respective counter affidavits to the application. All the Respondents raised and argued their preliminary objection in their written addresses.
In response to the various counter affidavits by different sets of Respondents to this application the applicant filed further affidavits.
On 24/6/2010 we took this application. Learned Senior Counsel for the Applicants/Respondents, Chief Mike Ahamba SAN KSC, leading a team of other Counsel identified the said application and all the processes filed in connection with the application, moved and adopted the application. He submitted list of additional authorities without further amplification of his submissions, he urged this Court to allow the application.
I have had course to consider similar preliminary objections raised in motions No. EPT/167M/09 and EPT/168M/09 extensively. I have held, as I would like to hold here, that based on the pronouncements both the Supreme Court and this Court to the effect that inherent power enures to this Court to set aside its judgment or Orders ex-debito justiciae in appropriate cases and circumstances. I had relied heavily on the authorities of SKENCONSULT. v. UKEY (1980) N.S.C.C. 1 at 16; OKAFOR v. ATT. GEN. ANAMBRA STATE (1991) 6 NWLR (Pt.200) 659 at 680D; ALAO v. ACB (2000) 9 NWLR (Pt. 672) 204 at 282; IGWE v. KALU (2002) 14 NWLR (Pt. 787) 435 at 453 – 454; OLORUNFEMI V. ASHO – SC 13/1993 (unreported) – delivered on 18/3/1999, UKACHUKWU v. UBA (2004) 10 NWLR (Pt. 881) 224; SOKOTO STATE GOVT. v. KAMDEX (NIG) LTD. (2007) 7 NWLR (Pt. 1034) 446, NWOGA v. BENJAMIN (unreported) – CA/PH/549/2007 delivered on 18/2/2008; JOY EMORDI v. HON. ALPHONSUS IGBEKE & 5 ORS. (unreported) – CA/E/EPT/4M/2009 delivered on 12/5/2010; SUNDAY UGWA & 1 OR v. HON. OJI LEKWAUWA & 1 OR. (UNREPORTED) – CA/PH/EPT/230/2008 delivered 30/3/2010.
I agree with the Learned Senior Counsel for the Applicants that application to set aside a judgment ex-debito justiciae is not the same as inviting the court to review or reverse its Order but in effect to declare the judgment a nullity and non-existent.
It is in view of the foregoing that I must consider this application on its merit. Accordingly, the preliminary objection is dismissed to enable one consider the application on its merit.
From the affidavit evidence and the grounds under which this application has been brought, the sole issue that calls for determination of this application is whether the Applicants have established special circumstances that would warrant this Court to set aside its judgment in Appeal No. CA/PH/EPT/197D/2008. I have carefully considered the submissions and based on the Applicants’ affidavits and counter affidavits of the Respondents. The issue in otherwords is whether the aforesaid judgment of Court is a nullity.
The thrust of the arguments of the Applicants in their application in paragraphs 2.04 – 2.29 has to do with the propriety of the judgment of this Court delivered in Appeal No. CA/PH/EPT/197/2008. So also is their submissions in their written address,
I have carefully perused Grounds (1) (2) (4) and (5) upon which the application is predicated. It would appear to me too (agreeing with the learned counsel for the 4th and 5th – 2891st Respondents) that the said grounds have no bearing to the judgment sought to be set aside. Apparently, the Applicants admit this fact on pages 9 – 11 of this written address:
“For the avoidance of doubt the vices complained of in this application can be found at the following pages of the judgment – Exhibit ‘A’
(a) At page 23 the Court noted that the 1st and 2nd Appellants/Respondents to this application filed two sets of notices of appeal against the judgments in Petition No. ABS/GOV/EPT/4/2007 and No. ABS/GOV/EPT/9/2007 on the same date on 11th March, 2008. The same appellants filed a joint brief of argument in respect of Petition No. ABS/GOV/EPT/4/2007 without any brief of Argument filed in respect of the judgment delivered in Petition No. ABS/GOV/EPT/9/2007.
(b) From pages 23 to 24 of that judgment they relied on NDIWE VS. OKOCHA (1992) 7 NWLR (Pt.252) 129 at 138 and struck out the 23 grounds of appeal against the decision in petition No. ABS/GOV/EPT/9/2007. Once the Court struck out that appeal it lacked the jurisdiction to summersault, as it did, to make any order which can confer any benefit on the Appellants on the basis of that appeal. In OYEYEMI VS. IREWOLE LOCAL GOVT. (1993) 23 NSCC (PT.1) p. 94 pp. 105 the Supreme Court held thus:
“Once a Court dismissed all the plaintiff’s claims it is incompetent of that court to turn around in same judgment to grant the plaintiff an injunction…”
(c) At page 72 the judgment took a dramatic turn to veer into matters which are completely extraneous to the appeal at hand. The Court suddenly picked up the Petition No. ABS/GOV/EPT/9/07 which was not the subject of Appeal No. CA/PH/EPT/197/2008. The Court went into issues in that petition which are not and cannot be part of any ground of appeal in the appeal before it. The Court was dealing with Issues Nos. 4 and 5 (see from page 6g of the judgment) which were argued together. Those issues, as can be seen at pages 25 t 26 of the judgment, are as follows:
“(iv) Considering the pleadings of the petitioners/1st and 2nd respondents vis-a-vis the inadmissible evidence tendered by them, whether or not it was established before the lower Tribunal that Okija Shrine is a Secret Society within the ambit, con and definition of Section 182(i)(h) read together with section 318(1) of 1999 Constitution – Grounds 14 and 15.
(v) Having regard to the state of the pleadings of the appellants vis-a-vis the mandatory provision of paragraph 1(1)(c) of the Election Tribunal and Court Practice Directions, 2007 (Practice Directions) and the inadmissible evidence proffered by the petitioners/1st and 2nd respondents whether sufficient materials were placed before the lower Tribunal for it to come to the conclusion that the 1st appellant was a member of Okija Secret Society – Grounds 10, 11, 12, 13, 17 and 19”.
Exhibit ‘A’ referred hereto by the Applicants is the judgment of the Court of Appeal in Appeal No. CA/PH/EPT/197/2008. The alleged “Vices” complained of by the Applicant are referable to the said judgment and not the judgment, Exhibit ‘B’, sought to be set aside on the ground that it is a nullity. They however, claimed that the alleged “vices” that rendered it a nullify are contained in Exhibit ‘A’ indeed, a different judgment.
It is noteworthy that the relief the Applicants are seeking in this application are as earlier stated, namely on the grounds that the said judgment is a nullity and on the 5 grounds set out. I have observed that grounds 1, 2, 4 and 5 have absolutely no relevance or bearing to the judgment sought to be set aside. None of the grounds is related to the said judgment. A tangential reference was only made to the judgment in Appeal No. CA/EPT/197D/2008. The point is made clearer when paragraph 6 of the Applicants’ supporting affidavit is carefully looked into. It is deposed to thus:
“6. That I am informed by D.C. Denwigwe, SAN one of the Applicant’s Counsel and I verily believe him as follows:
(a) That Appeal Nos. CA/PH/EPT/179/08, CA/PH/EPT/197A/08, CA/PH/EPT/197B, CA/PH/EPT/197C/08, CA/PH/EPT/197D/08 and CA/PH/EPT/197D1/08 were separately filed by the Appellants and there was no order by the Court for consolidation of the said appeals.
(b) That the Applicants also separately filed cross-Appeal Nos. CA/PH/EPT/197E/08, CA/PH/EPT/197F/08 and there was also no order by the Court for consolidation of the said cross appeals.
(c) That the appeals were not consolidated but heard separate/y.
(d) That Appeals Nos. CA/PH/EPT/197/09; CA/PH/EPT/197E/08 were in respect of petition nos. ABS/GOV/EPT/4/07 while Appeals Nos. CA/PH/EPT/197A/08 and CA/PH/EPT/197C/08, CA/PH/EPT/197D1/08; CA/PH/EPT/197F/08 related to petition Nos. ABS/GOV/EPT/9/07.
From the foregoing averments, the Applicants by their own showing; the appeals that led to Exhibit ‘A’ and ‘B’ were not consolidated; they were separately heard, and separate judgments delivered. Even, if they were consolidated, it would have made no difference. The Applicants have failed to draw our attention to any legal authority in support of their position that they can nullity Exhibit ‘B’ on grounds of alleged vices in Exhibit ‘A’. Exhibit ‘B’ is a final decision of the court in respect of an appeal arising from an Election Petition. No doubt in certain established and exceptional circumstances, a judgment of this Court may be set aide, and this Court has inherent jurisdiction to do so, but this power cannot be converted to an appellate jurisdiction, as though the matter before it is another appeal, intended, “to afford losing litigant yet another opportunity to re-state or re-argue their appeal.” See IGWE v. KALU (2002) 14 NWLR [pt.78] 435 at 453 at 455 D.
On alleged breach of the right of the Applicants to fair hearing: this is anchored on the observations of IBIYEYE, JCA who delivered the lead judgment in Exhibit ‘A’ is at pages 23 – 24 run inter alia, thus:
“It is apparent from the available records in this appeal that the appellants that is to say the 1st and 2nd Appellants a joint brief of argument in respect of petition No ABS/GOV/EPT/4/2007 without any brief of argument: filed in respect of the judgment delivered in No ABS/GOV/EPT/9/2007. It is now very well settled that appeals are heard by the appellate court on briefs of argument wherein issues are raised from the grounds of appeal identified by the Appellants or their counsel……..It is fatal for an appellant in particular to raise grounds of appeal without identifying issues for determination of the appeal. The consequence is that such grounds of appeal are deemed abandoned. It stands to reason in the prevailing circumstances of this appeal that the appellants in petition No ABS/GOV/EPT/9/2007 did not intend to rely on any brief of argument if they could file a brief of argument in the appeal against the judgment in petition No ABS/GOV/EPT/4/2007 without one for petition No: ABS/GOV/EPT/9/2007. I agree with the learned counsel for the respondent and the instant appeal that the grounds of appeal thereat have been abandoned and the grounds are accordingly struck out.”
It is on record however, that the appeal by the Peoples Democratic Party (PDP) against” the Tribunal’s judgment in petition No ABS/GOV/EPT/9/2007 was heard as Appeal No CA/PH/EPT/197A/2008: All parties therein duly filed and exchanged Briefs of Argument. They also respectively argued and opposed the appeal. In her Lead Judgment OGUNBIYI, ICA dismissed the appeal. That judgment is the subject of the application in motion No CA/OW/EPT/171M/2008. In view of the foregoing, the Applicants are not justified in their claim that the appeal was struck out by IBIYEYE, JCA, without according them a hearing.
Aside the foregoing observations the learned Counsel for the parties filed and exchanged their respective briefs of argument. It is noted further that after the above observations IBIYEYE, JCA then went into the appear proper and duly examined the issues for determination respectively formulated by the parties which run from pages 24 – 28 of the judgment in Exhibit ‘A’. All the issues resolved on the allegation of the non-qualification/disqualification of the 3rd and 4th Respondents herein to contest the Governorship election. At best the import or purport of IBIYEYE, JCA’s observations constitute obiter dicta. The law is settled that neither an obiter dictum nor mere observations nor comments which are not the basis for the decision of a court are binding. It is the ratio decidendi that is binding. See UBA LTD v. GMBH (1989) 3 NWLR [pt.110] 374 at 402 and U.T.C. NIG. v. PAMOTE (1989) 2 NWLR [Pt.103] 244 at 293.
The Applicants in paragraph 2.25 of their written addresses have urged this Court to set aside the judgment in Appeal No. CA/PH/EPT/197D/08 on ground of “procedural bias”. According to them the court was biased in favour of its decision in Appeal No CA/PH/EPT/197/2008 and this affected Exhibit ‘B’. I agree with the learned Counsel for the appellants/Respondents that the Applicants have extended the frontiers of the issue of bias in constitutional jurisprudence. To vitiate a proceeding on the basis of bias, a complainant must demonstrate the existence of real likelihood of bias. The test for determining bias is not that of an unreasonable man: See THE SECRETARY IWO LOCAL GOVERNMENT v. ADIO (2000) 8 NWLR [Pt.667] 115 at 153. The Applicants have not demonstrated reasonable case of bias and I cannot set aside this judgment on this grounds. See further OSAYOMI v. THE STATE (2007) 1 NWLR [Pt.1015] 352 at 368, ONIGBEDE & ORS v. BALOGUN & ANOR (2002) 6 NWLR [Pt.762].
In view of the foregoing this application of the Applicants is dismissed.
BETWEEN
1. CHIEF T.A. ORJI
2. CHRIS ALOZIE AKOMA CROSS-RESPONDENTS/RESPONDENTS
AND
1. ONYEMA UGOCHUKWU
2. HON. CHINWENDU NWANGANGA
3. PROGRESSIVE PEOPLES ALLIANCE (PPA)
4. INDEPENDENT NATIONAL ELECTORAL CROSS-RESPONDENTS/RESPONDENTS
COMMISSION (INEC) & 2891 OTHERS
4. CA/OW/EPT/182M/2009
APPEAL NO. CA/PH/EPT/197E/08
PETITION NO. ABS/GOV/EPT/4/07
This application is brought ex debito justiciae pursuant to sections 6(6) and 36 of the 1999 constitution and inherent jurisdiction of this court. The Applicants pray for the following reliefs:
“(a) An order setting aside the Judgment of the Court of Appeal in Appeal No. CA/PH/EPT/197E/2008 delivered on 11th February 2009 by a panel of the Honourable Court sitting at Port Harcourt Coram: Saka Adeyemi Ibiyeye (OFR), Clara Bata Ogubiyi, Paul Adamu Galinje, Olukayode Ariwoola and George Oladehinde Shoremi JJCA on the grounds that the said Judgment is a nullity by reason of the Grounds set out hereunder.
(b) An ORDER that the Cross-Appeal be heard by another panel of Justices of the Court of Appeal”
The Application is supported by an Affidavit sworn to by Senator Onyeka Okoroafor and annexed are Exhibits ‘A’ and ‘B’.
The 1st and 2nd Respondents filed a Counter-Affidavit; the 3rd Respondent (PPA) and 4th – 2891st Respondents (INEC) also filed counter-affidavits to this application.
In response to the various counter-affidavits by the different sets of Respondents to this application the applicants filed further Affidavits. All the Respondents have reacted to the competence of the application by filing preliminary objections and same argued in their written addresses. Applicants equally responded to the preliminary objection in their written Address.
On 24/6/2010, when we took this motion, the respective counsel for the parties identified and adopted their written addresses and without further amplification they all urged us to consider the preliminary objections and the merits of the application.
In the previous applications to wit CA/167M/09, CA/168M/09; CA/169M/09 I have taken a definite stand on the preliminary objections of the respective Respondents. It is now well settled that where the judgment of a superior court is a nullity the court has an inherent power to set aside its own judgment upon being called to do so ex debito justiciae and without the necessity of an appeal. See SKENCONSULT v. UKEY (1980) 12 NSCC 1 at 6; OKAFOR v. ATTORNEY-GENERAL, ANAMBRA (1991) 6 NWLR [Pt.200] 659; IGWE v. KALU (2002) 14 NWLR [Pt.787] 435 at 453 – 454; UBA v. UKACHUKWU (2004) 10 NWLR [Pt.881] 224 and NWOGA v. BEJAMIN – unreported CA/PH/EPT/549/2007; and HON. SELEKETIMBI EBIOTU v. ANGOS DIDE & 3 ORS – unreported CA/PH/EPT/10M/2010 delivered on 21/6/2010. See also OLORUNFEMI v. ASHO (2000) 1 NWLR [Pt.643].
The circumstances which can render a court incompetent and render the judgment of a court a nullity, as to ground an application to set aside the judgment of a court, are many and vary from case to case. Now to our consideration of the application at hand.
Three Grounds for the application are set out in the motion as follows:
1. The court having earlier in its unanimous handwritten judgment on 11th February, 2009 in Appeal No. CA/PH/EPT/197/08 dismissed petitions Nos ABS/GOV/EPT/4/07 and ABS/GOV/EPT/9/07 on the ground that the said petitions were incompetent lacked the competence and jurisdiction to subsequently deal with or deliver judgments in Appeals Nos CA/PH/EPT/197/08; CA/PH/EPT/197B/08; CA/PH/EPT/197D/08 and therefore the various unanimous judgments of the court in the aforesaid appeal were delivered without jurisdiction and so are null and void.
2. That the judgments of the Court in Appeals Nos CA/PH/EPT/197O8; CA/PH/EPT/1978/ and CA/PH/EPT/197D/08 a nullity, the court’s judgment in the cross-appeal that is Appeal No CA/PH/EPT/197E/06 is also a nullity and so liable to be set aside.
3 By reason of and having regard to the tenor of the unanimous judgment of the Court of Appeal in Appeal No CA/PH/EPT/197/08 the court became biased procedurally otherwise, in the hearing of the cross appeal, that is appeal No CA/PH/EPT/197E thus rendering the decisions reached a nullity.
Two issues were raised in paragraph 2.01 of the Applicants written Address, for determination, Applicants have discussed issue No.1 under a different ground. Essentially their complaints were on Appeal No CA/PH/EPT/197/08 and CA/PH/EPT/197A/08. These appeals are different from Appeal No. CA/PH/EPT/197E/08. It is strange how any anomaly or procedural error committed in those judgments can now be used to determine the validity of jurisdiction of the Court, if any, in appeal No CA/PH/EPT/197E/08, which as I have held in motion No CA/169/2009, is a different and separate appeal. Was appeal No CA/PH/197/08 not heard on 26/11/2008 based on the briefs of parties duly adopted and relied upon and judgment delivered? None of the parties was left out of the proceedings of 26/11/2008. Hence, the issue of breach of fair hearing does not arise in the proceedings of this Court. That being the situation, there is no basis for the argument that judgment delivered by this Court in CA/PH/EPT/197/08 is a nullity for violating Applicants’ right to fair hearing. The arguments on breach of fair hearing or want of jurisdiction are not tenable, since the petition No ABS/GOV/EPT/9/07 was subject matter of Appeals Nos CA/PH/EPT/09/2007, CA/PH/EPT/197C/2008, CA/EPT/197D/2008, CA/PH/197/2/2008. Even if His Lordship, Ibiyeye, JCA had struck out all the grounds of appeal contained in the Notice and Grounds of Appeal in Appeal No CA/PH/EPT/197A/08 in respect of Petition No ABS/GOV/EPT/197A/08, the fact remains that in the other appeals Nos CA/PH/EPT/197C/08, CA/PH/EPT/197D/08 and CA/PH/EPT/197F/08 the judgment of the trial tribunal in ABS/GOV/EPT/09/07 was set aside. Viewed from any angle, this Court laid to rest the complaints raised in Petition No ABS/GOV/EPT/09/07.
In their paragraph 2.04 (b) & (f) of their written address of the Applicants, it was argued that it was wrong of the court to have delivered a hand written judgment and that the hand written judgment delivered is different from the typed written judgment eventually given. It was further argued that, since the court delivered a hand written judgment it lacked jurisdiction to give out a type written judgment. Applicants’ complaints here are frivolous and untenable in view of the provisions of subsections (1) and (5) of section 294 of the 1999 Constitution regarding the authenticity or otherwise of a judgment of a court. The provisions are clear. Section 294 provides thus:
1.”Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of delivery thereof.”
5. “The decision of a court shall not be set aside or treated as a nullity solely on the ground of noncompliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by wav of appeal or review of that decision is satisfied that the party complaining suffered a miscarriage of justice by reason thereof.”
Applicants have asserted, without proof, that the judgment delivered on 11/2/2009 was hand written, and not type-written. He who asserts must prove that assertion: see ABDULRAHEEM v. OLUFEAGBA (2006) 17 NWLR [Pt.1008] 280 at 363. Even if the judgment was hand written, by the foregoing provisions, that is allowed. There is nowhere in the above provisions where hand written judgment is forbidden. What is important is that the judgment whether hand written or typed, must be authenticated. What is more, the Applicants have not shown how they have been prejudiced, or that any difference exists between the type written and the alleged hand written judgment. A party, who questions the propriety of a decision, has a duty to produce before the court that decision against which a complaint has been raised. In the case at hand, Applicants have failed to prove the existence of the hand written judgment as none has been produced by the Applicants. Having failed to produce hand written judgment, no court has the competence to pronounce on an evidence not before it.
In their paragraph 2.04 (g) and (h) the Applicants have argued that there are so many contradictions in the said judgment. The fact that an opinion given in one case contradicted an earlier decision given by the same court is not a valid ground and does not confer jurisdiction on the court to review and set aside its valid judgment.
On the question of bias, I agree with the Respondents that there is no scintilla of evidence establishing the allegation of bias. It is alleged that since the court delivered its judgment in Appeal No CA/PH/EPT/197/08 it had become biased in other matters before it. Further that retired Justice Umoren, JCA and the National Chairman of the Progressive Peoples Alliance (PPA) influenced the decision of the court. The law is that to vitiate a proceedings on the basis of bias, a complainant must demonstrate the existence of rear likelihood of bias. The test for determining bias is not that of an unreasonable man. See THE SECRETARY IWO LOCAL GOVERNMENT v. ADIO (2000) 8 NWLR [Pt.667] 115 at 153. Applicants have nothing to show that the Retired Justice Umoren JCA, and the Chairman of the PPA met with the Honourable Justices of this Court who sat on the panel which delivered judgment on 11/2/2009. Bare submissions of counsel of the applicants, without showing how and in what manner the Honourable Justices were induced, are speculative. A court of law in the discharge of its function does not rely on speculations.
In view of the foregoing this application is dismissed in its entirety.
BETWEEN:
1. CHIEF T.A. ORJI
2. CHRIS ALOZIE AKOMAS APPELLANTS/RESPONDENTS
AND
1. ONYEMA UGOCHUKWU
2. HON. CHINWENDU NWANGANGA
3. PROGRESSIVE PEOPLES ALLIANCE (PPA) RESPONDENTS
4. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC) & 2891 OTHERS
AND
PEOPLES DEMOCRATIC PARTY (PDP) PARTY AFFECTED BY THE JUDGMENT/APPLICANT
5. CA/OW/EPT/170M/2009
APPEAL NO. CA/PH/EPT/197/08
PETITION NO: ABS/GOV/EPT/4/07
The appeal before this court arose from the decision of the Abia State Governorship and Legislative Houses Election Tribunal in petition No ABS/GOV/EPT/4/07. On 11/2/2009, this Court delivered its judgment in Appeal No CA/PH/EPT/197/08, CHIEF T.A. ORJI & ANOR v. ONYEMA UGOCHUKWU & ORS. The Applicant herein (Peoples Democratic party – (PDP) was not a party named in that petition as well as the appeal, but they were the petitioner in petition No ABS/GOV/EPT/9/07. Petition No ABS/GOV/EPT/9/07 was not before the court in appeal No CA/EPT/197/08. The court in the course of delivering its said judgment struck out the Applicant’s petition No ABS/GOV/EPT/9/07 as incompetent. See Exhibit ‘A’ page75 lines 7 – 10, it is the complaint of the Applicant that it was not heard or given opportunity to be heard before the decision to strike our petition No ABS/GOV/EPT/9/07, and that the decision breached the Applicant’s fundamental right to fair hearing under section 36 of the 1999 Constitution
The Applicant’s motion is dated 29/10/2009 and filed 30/10/2009 brought pursuant to section 6(6) and section 36 of the 1999 Constitution. The Applicant, Peoples Democratic Party (PDP), is now praying for the following orders:
1. AN ORDER setting aside the judgment of the Court of Appeal in Appeal No CA/PH/EPT/197/2008 delivered on 11th FEBRUARY 2009 by a panel of the Honourable Court sitting at Port Harcourt CORAM: SAKA ADEYEMI IBIYEYE OFR, CLARA BATA OGUNBIYI, PAUL ADAMU GALINJE, OLUKAYODE ARIWOOLA AND GEORGE OLADEHINDE SHOREMI JJCA, on the grounds set here under is a nullity.
2. AN ORDER that the Appeal be heard by another panel of Justices of the Court of Appeal.
The Application is supported by Affidavit of 10 paragraphs and a number of Exhibits.
The 1st and 2nd Appellants/Respondents upon the receipt of the Applicants application, apart from filing counter-affidavit to the application, also filed preliminary objection to the hearing of the application on the grounds that
1. This court lacks jurisdiction to entertain or grant the Application;
2. Application is a gross abuse of the process of this Court;
3. The Applicants’ motion is an invitation to this Court to sit on an appeal over its own judgment,
4. The court is funtus officio with respect to the appeal/decision pursuant to which the Applicant’s motion was/is brought.
3rd Respondent’s preliminary objection was filed on 16/2/2010. The objection in the main is to the effect that this Court lacks jurisdiction to entertain the Applicant’s motion. There are total of seven grounds of objection. Similarly, 4th – 2891st Respondents, apart from filing their counter affidavit, also filed a preliminary objection containing four grounds mainly that the court having delivered final judgment in respect of the substantive appeal, which this applicant seek to set aside, became functus officio.
Applicant responded to the preliminary objection and replied on points of law to the Respondents’ objections.
Written addresses were ordered filed and exchanged by the counsel to the respective parties. On 24/6/2010, this Court took the motion. Respective learned senior counsel for the parties adopted their written addresses.
Firstly, as already decided in CA/167/2009, CA/168/09, CA/169/09, there is no basis for the objections raised by the Respondents. Here too I must overrule the Respondents’ objection and I shall consider this application on its merits.
This application is brought on four grounds set out in the motion paper. The main complaint, however, is anchored on its alleged denial of fair hearing based on the observations of IBIYEYE, JCA who delivered the lead judgment in Exhibit ‘A’. The observations were made in respect of petition No. ABS/GOV/EPT/9/2007. But for the requirement of the law that on a consolidated matter each case should retain its identity and separate decision reached, I would have simply adopted our Ruling in the foregoing Applications (motions Nos CA/168/09 and CA/169/09) where this allegation has been exhaustively dealt and put to rest. However, I shall be brief in this application. Let it be noted that the appeal by PDP, the Applicant hereof, against the Tribunal’s judgment in petition No ABS/GOV/EPT/9/2007 was the subject of the judgment in Exhibit ‘A’. The observations by Ibiyeye, JCA was made in respect of petition No ABS/GOV/EPT/9/2007 while summarizing that judgment – Exhibit ‘A’. The observations were merely made for a better appreciation of the main issues before the court. See once more pages 24 – 28 of Exhibit ‘A’. After the said observations, Ibiyeye, JCA then went into the appeal proper/and examined the issues for determination respectively formulated by the parties. The issues principally revolved on the allegation of non-qualification of Chief T.A. Orji and Chris Alozie Akomas (Appellants/Respondents in this application) to contest the Governorship election.
Whatever remarks or observations IBIYEYE, JCA made, as set out by the Applicants in their written address, are nothing but obiter dicta because Appeal No CA/PH/EPT/197A/2008 was not at all before His Lordship. In SBM SERV (NIG) LTD v. OKON (2004) 9 NWLR [Pt.870] 529 at 555 paras D – 4 the court defines obiter dictum as follows:
The Latin dictum obiter dictum means a word of an opinion entirely unnecessary for the case; a remark made, or opinion expressed by a Judge upon a cause by the way that is incidentally collaterally and not directly upon the question before him or upon a point not necessarily involved in the determination of the course.”
Learned Senior Counsel for the 1st and 2nd Respondents has made a valid point here. Assuming, that there was any slip on the part of the court, that alone is not sufficient to nullify the well considered unanimous decision panel of 5 Justices of this Court. It is not every error or slip in a judgment that can lead to the setting aside of that judgment. This Court has power to correct accidental slips, clerical errors or mistakes or omissions In the judgment. But this should not be used as an excuse to review, reverse or rehear the case a fresh. See R.A.S.C. LTD v. AKIB (2006) 13 NWLR [Pt.997] 333 at 352 – 354 and GARKO v. THE STATE (2006) 6 NWLR [Pt.977] 524 at 544; UBA LTD v. GMBH (1989) 3 NWLR [Pt.110] 374 at 402; UTC NIG LTD v. PAMOTEL (1989) 2 NWLR [Pt.103) 244 at 293; AREMU v. THE STATE (1991) 7 NWLR [Pt.201] 1 at 19. In ONAKOYA v. FED. REPUBLIC OF NIGERIA (2001) 9 NWLR [Pt.779] 595 at 657 – 658 KALGO JSC emphasized further when he said:
“As we have stated several times the days when parties pick their way in this Court through noted technical rules of procedure, the breach of which does not occasion a miscarriage of justice are sinking into the limbo of forgotten things. The courts now take the view that not every slip is fatal to the cause of justice. Judges are not omniscient robots, which never deviate from a programmed course, they sometimes slip.”
I must stiffly resist the “twists and turns” in this case and stand on just path, but will not saunter where there is miscarriage of justice. In this case there is none. It is incorrect, as contended by the Applicants, that petition No ABS/GOV/EPT/9/2007 was extraneous to appeal No CA/PH/EPT/197/2008. This claim, with due respect, shows lack of appreciation of the issues submitted by parties for adjudication.
The complaint of the Applicant herein that it was not given any hearing at all how much less fair, before its petition was struck out. in reaction to this learned counsel for the 1st and 2nd Respondents submitted, and I agree with him, that the Applicants having failed to show how the purported error made by this Court affected the substance of the judgment and any of ‘miscarriage of justice or any other vice, turned round to make a heavy weather on the allegation of breach of its fundamental right to fair hearing without any or sufficient facts to ground of the application.
By paragraph 8 and 12 of its counter affidavit, 3rd Respondent has shown that all parties filed their respective Briefs of argument and made oral expatiations at the hearing of the appeal. The complaint of denial of fair hearing was not raised in good faith. The Applicant, no doubt utilized all the opportunities it had in presenting its case. The court heard the appeals allowed same and consequently upturned the decision of the lower tribunal in petition No ABS/GOV/EPT/09/08. I do not think any breach of fair hearing has arisen from the determination of the appeals on the said petition.
In paragraph 4.5 – 4.6 of the Applicant’s written address, it has been contended that no hearing notice was issued and served on the Applicant in respect of the proceeding of 11/2/2009 when judgment was delivered. I do not think that the Applicant firmly presented the picture of proceedings of 11/2/2010. From the Record, the Applicant (PDP) was one of the 4th – 2891st Respondents duly represented. The Applicant has argued that Chikezie Uba Esq. who deposed to the counter affidavit of the 4th – 2891st Respondents was not in court on 11/2/2010 when judgment in question was delivered because he was not among those who appeared with lead counsel to the respondents aforesaid. I accept the explanation of learned Senior Counsel for the 4th – 2891st Respondents that the Applicant poorly appreciated what Mr. Chikezie Uba said in the counter affidavit filed on 4/6/2010. He stated that he was “present in court” and not that he appeared in any matter. In the said counter affidavit he explained that though as a Legal practitioner in the Law firm of Livy Uzoukwu who appeared for the Applicant his presence was not announced as he was not properly robed to appear with Livy Uzoukwu SAN (the lead counsel). A lead counsel has absolute discretion as who to appear with in a matter. The Applicant has absolutely no say in the matter. The lead counsel can not appear with any counsel who is not robed in the Court of Appeal. As far as appeals Nos CA/PH/EPT/197/08 CA/PH/EPT/197C/08, CA/PH/EPT/197D/08 and CA/PH/EPT/197A/08 which emanated from petition No ABS/GOV/EPT/09/08 were concerned, there was a counsel in them.
Thus a party who was represented by a counsel can not be heard that he was not served with Hearing Notice. In the peculiar fact and circumstance of this case, applicant had Hearing Notice of the proceedings of 11/2/2009.
Viewing carefully the complaint of fair hearing, Applicant has a purpose to employ unnecessary technicality to delay the very essence of justice courts nowadays shy away from submitting themselves to the constraining bind of technicalities so as to do justice. See ONAKOYA v. FED REPUBLIC OF NIGERIA (supra); AMAECHI v. INEC (2008) 5 NWLR [Pt.1080 227 at 315 – 316 and E.E.C.CO OF NIG v. ATTORNEY-GENERAL, KADUNA STATE (1987) 2 NWLR [Pt.57] 381.
The disturbing technical point being raised by Applicant in this application is that although he filed petition No ABS/GOV/EPT/09/07, it claimed that Appeal No CA/PH/EPT/197/08 did not arise from its own petition and that being the situation, court having pronounced on ABS/GOV/EPT/09/07 while determining appeal No CA/PH/EPT/197/08 which was predicated on the ABS/GOV/EPT/04/07 it follows that the judgment of this Court delivered on 11/2/2009 is a nullity. The Applicant curiously enough has kept mute on the existence and effect of 4 other appeals namely Appeals Nos CA/PH/EPT/197A/2008; CA/PH/EPT/197C/2008; CA/PH/EPT/197D/2008; and CA/PH/EPT/197/2008; which were all appeals arising from Petition No ABS/GOV/EPT/09/08. In these appeals, the judgments of the election tribunal on No ABS/GOV/EPT/09/08 was set aside. Having regard to the foregoing reality if any slip at all occurred in Appeal No CA/PH/EPT/197/08 that is not sufficient ground or basis to have the judgment of this Court nullified. Moreover, the facts and circumstances of this case did not establish any real breach of Applicant’s right to fair hearing.
It is in view of this I hold that this application is lacking in merit and must be dismissed.
BETWEEN:
1. CHIEF T.A. ORJI
2. CHRIS ALOZIE AKOMAS APPLICANTS/RESPONDENTS
AND
1. PEOPLES DEMOCRATIC PARTY (PDP) RESPONDENT/APPLICANT
AND
2. PROGRESSIVE PEOPLES ALLIANCE (PPA) RESPONDENTS
3. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC) & 2891 OTHERS
6. CA/OW/EPT/171M/2009
APPEAL NO CA/PH/EPT/197A/08
PETITION NO ABS/GOV/EPT/9/07
The same applicant PDP herein in this application as in CA/OWEPT/170M/2009 has prayed for an order of this Court setting aside its earlier judgment in appeal No CA/PH/EPT/197A/2008 delivered on 11/2/2008. It also prayed for an order of this Court that appeal be heard by another Panel Justices of the Court of Appeal.
The Application is based on SIX GROUNDS and is supported by an affidavit of 14 paragraphs and the two Exhibits thereto marked Exhibit ‘A’; unanimous judgment of this Court in CA/PH/EPT/197/08 while Exhibit ‘B’ is the unanimous judgment of this Court in CA/PH/EPT/197A/08. The counsel to the 1st and 2nd Respondents to this application through their counsel filed counter affidavit and a Notice of Preliminary objection. The Applicant herein has also filed a further affidavit in reaction to each of the counter-Affidavits.
On 24/6/2010, we took the motion when the respective on counsel behalf of their parties identified and adopted their written addresses without further expatiation. The same issues that arose in the application to set aside the judgment in CA/PH/EPT/197/08 also arise in this present application, namely
“(a) whether the Court of Appeal has competence to set aside its final judgment
(b) if the answer to issue (a), above is in the affirmative whether any of the grounds upon which a final judgment could be set aside exists in this judgment.”
Firstly, on the consideration of preliminary objection raised by the Respondents. I have already overruled them in CA/167/2009, CA/168/09, CA/169/09, CA/182/09 and CA/170/09. From the plethora of authorities relied upon by the parties it is quite clear, that this Court has the competence to set aside its judgment ex debito justiciae. From firm and solid authorities of both the apex court and this Court I will not hesitate to set aside this judgment if it is considered a nullity. This court for that matter has the responsibility of considering the application at hand, on its merit. See SKENCONSULT v. UKEY (1980) NSCCI at 16; OIGFOR v. A.G. ANAMBRA STATE (1991) 6 NWLR [PT.200] 659; ALAG v. ACB LTD (2000) 9 NWLR [pt.672) 204 at 282 and IGWE v. KALU (2002) 14 NWLR [Pt.787] 435.
On the premise of the foregoing and Exhibits ‘C’ and ‘D’ attached to the Further Affidavit of the Applicant in response to the Counter-Affidavit of the 1st and 2nd Appellants’/Respondents’ I refuse to uphold the preliminary objection of the 1st, 2nd and 3rd Respondents and dismiss same.
The issue for determination is whether the Applicant has proved any nullifying elements to warrant the granting of the application. Learned Senior Counsel for the Applicant Chief M.I. Ahamba KSC SAN has submitted that save element of fraud all other elements for nullity exist as reflected in the SIX grounds of this application. The grounds are summarized as follows: (1) Striking out petition No ABS/GOV/EPT/907 (i.e EPT/09) IN CA/PH/EPT/197/09 (is CA/197) infringed the Applicants’ right to fair hearing.
(2) The decision to dismiss petition No ABS/GOV/EPT/9/07 (EPT/09) in Appeal CA/197 was ultra vires the Court, and thus made without jurisdiction.
(3) The judgment of Court having been delivered in utter disregard of existing law, is shorn of adjudicatory legitimacy.
(4) The contradictions within the judgment in CA/197, and between that judgment and the others in the appellate proceedings, deprived the judgment in CA/197 and the other judgments in 197A, 198B, 197C, 197D and 197F of the character of a legitimate adjudication which is a fundamental defect.
The Court having unanimously struck out Appeal
(5) No CA/PH/EPT/197A/08 lost its adjudicatory competence over the said appeal and its subject matter, the decision in petition No ABS/GOV/EPT/9/07.
(6) The Court of Appeal abdicated its jurisdiction under sections 182 and 285(2) of the Constitution, and sections 140 and 145(1)(b) of (2) the Electoral Act, 2006, and the hearing of interlocutory appeals in election petitions.
The Applicant’s learned Senior Counsel has contended that the Appellants In this Appeal were Chief T.A. Orji and Chris Alozie Akomas ( 1st and 2nd Appellants/Respondents herein respectively) whose election was nullified in Petition No ABS/GOV/EPT/9/07 and upheld by the Court of Appeal in Appeal No CA/EPT/197A/08. The Applicant herein, PDP was the Petitioner. But the beneficiaries of the Tribunal decision that is Onyema Ugochukwu and Hon Chiwendu Nwanganga were not joined as Respondents in the appeal. Both were sponsored by the PDP and were returned by the lower Tribunal. It is submitted that any decision in their absence is a breach of their right to fair hearing and the court has no competence to decide their fate. The main grouse of the Applicant under this sub-head is that the Court infringed on their fundamental rights on the ground that petition ABS/GOV/EPT/9/07 was struck out without their being heard. The truth or otherwise of this allegation can only be appreciated from the Records and proceedings of the court on 11/2/2009. The record shows that the Applicant who was a Petitioner and Onyema Ugochukwu and Hon. Chiwendu Nwanganga had separate petitions at the Tribunal which they defended separately. They equally defended the appeals that arose from the said election Tribunal. I agree with the Respondents herein, that the Applicant actually presented their case before the Court of Appeal in appeal No CA/PH/EPT/197/08. Briefs of argument were filed and exchanged between parties to the appeal and judgment delivered in which OGUNBIYI JCA dismissed the appeal now sought to be set aside. I have held a strong opinion, with due respect, that observations of IBIYEYE JCA while summarizing facts in his judgment were mere observations made on pages 23 – 24.
This point was accorded detail consideration in CA/OW/EPT/169M/09 and CA/OW/EPT/170M/09. I adopt my reasoning and conclusions that the observations of His Lordship were necessary for a better appreciation of the main issues before the Court. These observations were orbiter dicta. They were made in passing, incidentally, cursorily. It was a mere opinions or observations of His Lordship which do not embody the resolutions of the matter before the Court. See UBA LTD v. GMBH (supra), UTC NIG. LTD v. PAMOTEI (supra).
On the alleged Judgment of the Court being ultra vires that court, Applicant’s complaint here is that in dismissing or striking out petition No ABS/GOV/EPT/9/2007 in Exhibit ‘A’ the court acted ultra vires its powers as an Appellate court considering election Petition Appeal. That the court made orders outside its competence. It is pointed out that the said petition No ABS/GOV/EPT/9/2007 was not the subject of the Appeal in Exhibit ‘A’. Therefore the said petition was not before the Court in appeal leading to Exhibit ‘A’,
It is not in dispute that 4 appeals emanated from petition No ABS/GOV/EPT/9/08. From the Record of this Court all four appeals were separately considered and allowed and each was rightly dismissed.
On the issue of contradictory statements, the very important question is whether there was any contradiction in respect of the life issues submitted to the court for adjudication. The fundamental issues that were resolved in favour of the Appellants/Respondents are that they were not public officers and that Chief T.A. Orji is not a member of a secret society. I can not see any conflict or contradiction between the judgments in the said appeals over the fundamental issues aforesaid.
On the alleged presence of Umoren JCA (retired) and likelihood of bias. In my preceding Ruling in motions No CA/OW/EPT/168/2009 I have accorded this allegation ample consideration. I am of the respectful view that this most uncharitable and regrettable allegation made against him was not proved.
On the alleged abdication of statutory jurisdiction by this Court, the Applicant is challenging the correctness of the decision and finding of the court on page 23 of Exhibit ‘B’. This allegation of non-resignation from the public service of Abia State and membership of Okija shrine or secret society are pre-election matters. It would appear the applicants on this ground are trying to reopen this matter and seek a rehearing. In the Applicant’s submission in paragraph 3.03 J of its Address, it has stated that “This point of abdication of statutory vires is a point which if it were raised successfully on appeal would lead to a remission of the case to the lower court for retrial before another panel. We submit that this Honourable Court being the final court has high duty to set aside the judgment for the appeal to be reheard.”
By bringing up the question of non-resignation and membership of a secret cult in this application, the Applicant is inviting this Court to sit on appeal against its own decision which power the court does not possess. See UKACHUKWU v. UBA (supra), OBIOHA v. IBERO (supra).
In view of the foregoing I hold that the Applicant has not established any fundamental vices in the judgment sought to be set aside which renders it a nullity.
BETWEEN:
INDEPENDENT NATIONAL ELECTORAL COMMISSION
(INEC) & 2891 ORS. APPELLANTS/ RESPONDENTS
AND
1. PEOPLES DEMOCRATIC PARTY (PDP) RESPONDENT/APPLICANT
2. CHIEF T.A. ORJI
3. CHRIS ALOZIE AKOMAS RESPONDENTS
4. PROGRESSIVE PEOPLES ALLIANCE
7. CA/OW/EPT/172M/2009
APPEAL NO CA/PH/EPT/197C/08
PETITION NO ABS/GOV/EPT/9/07
This application brought ex-debito justiciae pursuant to sections 6(6) and 36 of the 1999 Constitution and inherent jurisdiction of this Court prays for the following reliefs.
1. An order setting aside the judgment of the Court of Appeal In appeal No CA/PH/EPT/197C/2008 on 11/2/2009 on the ground that the said judgment is a nullity.
2. An order that the appeal be heard by another panel of Justices of the Court of Appeal and judgment delivered on the merit.
The application is supported by an Affidavit sworn to by Williams Ekeleme and Exhibits ‘A’ and ‘B’. The 2nd and 3rd and 4th – 2891 Respondents to this application also filed their respective counter affidavit to the application Also Notices of Preliminary objection were filed by the 1st, 2nd and 3rd Respondents on the ground that the Court on 11/2/2010 delivered its final judgment in respect of the substantive appeal and therefore has become functus officioto consider this application. Written addresses were ordered by the Court. Learned counsel filed and exchanged their respective written addresses for the parties. Preliminary objections were argued in the written address. On 24/6/2010 we took the Application. Each counsel adopted his written address and proffered no further expatiations.
I have given due consideration to the objections of the Respondents in the preceding motions on the question of competence of this Court to entertain this application. it is beyond argument that the application arose from Judgment of this Court on the Governorship election. The decision of the Court of Appeal in respect of Governorship election is final on the tenor of section 246(3) of the 1999 Constitution. But since it is now trite law that where the judgment of this Court is a nullity, the Court has inherent power to set aside, I must consider the merit of this application.
The Applicant has posed 3 questions for determination of this application as follows:
1. Whether the judgment of the Court in appeal No CA/PH/EPT/197/0 is not a nullity?
2. Whether the judgment Exhibit ‘B’ is valid?
3. whether the judgment is not a nullity having been delivered in wanton disregard of the decisions of the Supreme Court and the relevant provisions of the 1999 Constitution in the material issues in appeal?
I share the same view with the Respondents that this particular application is brought in bad faith and clearly an abuse of the process of this Court. The Applicant does not see it this way. But it is. The Appellant in this case in which the application for setting aside is made is the Progressive Peoples Alliance (PPA). The appeal CA/PH/EPT/197C/08 is quite distinct and different from Appeal No CA/PH/EPT/197/08, which the Applicant is asking the Court to determine whether or not the judgment therein is a nullity. I will still remind us even at the risk of repetition, that Appeal No CA/PH/EPT/197/08 was never consolidated with Appeal No CA/PH/EPT/197C/08 hence there is no nexus between the two Appeals. Since Appeal No CA/PH/EPT/197C/08 is different and quite distinct from Appeal No CA/PH/EPT/197/08, then it is not within the competence of that Court in Appeal No CA/PH/EPT/197/08 to set aside the former. In otherwords in law, can the Applicant seek to nullify Exhibit ‘B’ on grounds of alleged vices in Exhibit ‘A’? As I have said by virtue of section 246(1) (3) of the 1999 Constitution Exhibit ‘B’ is final decision of this Court in respect of an appeal arising from an election petition. To set it aside, there must be established certain exceptional and special circumstances. The inherent jurisdiction of court to set aside its judgment can not be converted to an appellate jurisdiction, as though the matter before it is another appeal, aimed at or intended to afford losing party yet another bite at the cherry.
On whether the Judgment Exhibit ‘B’ is valid. This issue relates to ground 3 of the application which has complained of invalidity of the judgment. That Exhibit ‘B’ was not signed by Hon Justice Olukayode Ariwoola, who delivered the lead judgment.
Learned Senior Counsel for the Appellants/Respondents, L.O. Fagbemi SAN and Livy Uzoukwu SAN for the 4th – 2891st Respondents have taken a common stand on this issue in their respective written addresses. That the Applicants have exhibited the judgment as Exhibit ‘B’ to their affidavit in support. A look at the said Exhibit ‘B’ will show that page 46 therein is missing. In effect, that the Applicants have not exhibited the entire judgment of the court because at page 45 of Exhibit ‘B’ the sentence or statement therein is incomplete and it flowed into the next page which should be page 46 which carried the conclusion of the judgment where the Hon. Justice Ariwoola JCA appended his signature. From all indication there has been a mix-up, That goes to the question of authentication of copies of the judgment. Sections 294(1) and 294(5) of the 1999 Constitution provide for a way out of a situation like this. Section 294(5) provides:
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non compliance with provisions of subsections (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
Jurisdiction of this court is invoked to look into the authenticity of Exhibit ‘B’. It would be an oversight or stark carelessness on the part of the Registry not to certify the signed copy of Exhibit ‘B’ in his custody. The other Respondents have the correct version of the judgment. Even the unsigned copy carries the signatures of the other 4 Justices who concurred with that Judgment. I am of the view that Exhibit ‘B’ is not fundamentally or incurably defective to warrant its being declared a nullity. See Order 18 Rule 4 of the Court of Appeal Rules 2007.
The complaint under the last issue No.3 is that the judgment of this Court delivered on 11/2/2009 was delivered in disregard of certain statutory provisions and decisions of the Court. This Court cannot sit on a final judgment of this Court to consider whether or not its decision was delivered contrary to some statutory provisions or case law. Although this Court is clothed with jurisdiction to set aside its judgment or order it can only do that if such judgment or order is a nullity. This Court cannot embark on such exercise the Applicant has asked this Court to do in the circumstance of this case.
Based on the foregoing, I do not find merit in this application it is dismissed in its entirety.
BETWEEN:
INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC) & 2891 ORS. APPELLANTS/RESPONDENTS
AND
1. PEOPLES DEMOCRATIC PARTY
2. CHIEF T.A. ORJI RESPONDENTS/APPLICANT
3. CHRIS ALOZIE AKOMAS
4. PROGRESSIVE PEOPLES ALLIANCE (PPA)
8. CA/OW/EPT/173M/2009
APPEAL NO CA/PH/EPT/197D/08
PETITION NO ABS/GOV/EPT/4/07
Applicant’s application dated and filed on 30/10/2009 prays this Court for the following reliefs:
1. An order setting aside the judgment of the Court of Appeal No CA/PH/EPT/197D/2009 delivered on 11/2/2009 by a Panel of 5 Justices of this Court on the grounds that the said judgment is a nullity by reason of the 5 grounds set out hereunder.
2. An order that the appeal be heard by another Panel of Justice of the Court of Appeal.
The Application is supported by an Affidavit of 11 paragraphs. Judgments in Appeal No CA/PH/EPT/197/08 and CA/PH/EPT/197D/08 have been attached and marked as Exhibits ‘A’ and ‘B’ respectively. Appellants/Respondents, 2nd and 3rd Respondents all filed counter affidavit, in addition to their preliminary objection. The 4th Respondent also filed Notice of preliminary objection. All the objections in the main, is to the effect that this Court lacks jurisdiction to entertain the Applicants’ application and should be dismissed.
Having overruled the similar preliminary objection in the similar applications considered so far I shall do the same to enable me consider this application on its merits.
The FIVE GROUNDS upon which the application was based shorn of their particulars are as follows:
1. That the unanimous decision of the Court of Appeal No CA/EPT/197/08 to strike out or dismiss petition No ABS/GOV/EPT/9/07 was made without jurisdiction and therefore a nullity.
2. The unanimous judgment of the Appeal No CA/PH/EPT/197/08 which dismissed Petition No ABS/GOV/EPT/9/07 which was the subject matter of Appeal No CA/PH/EPT/197A/08 without hearing the application.
3. The procedure adopted by court in delivery of the judgments on 11th February, 2009 deprived the said decision or judgment of the Court in Appeal Nos CA/PH/EPT/197/08, CA/PH/EPT/197A/08, CA/PH/EPT/197B/08 of the character of legitimate adjudication and therefore liable to be set aside.
4. The judgment of the Court of Appeal, is void and a nullity being that it was delivered in wanton disregard of the decisions of the Supreme Court on the material issues in the appeal.
5. The unanimous decision or judgment of the Court of Appeal that the question of non-resignation and membership of a secret society, as disqualifying factors are pre-election matters and that there is no right of interlocutory appeal in election petition proceedings, is contrary to law, unconstitutional, null and void.
I have carefully perused through Application No CA/OW/EPT/169M/2009 and No CA/OW/EPT/173M/2009 dated and filed on 30/10/2009. There are very much similarities in every material particulars save that in EPT/169M/2009, simpliciter the Applicants are Onyema Ugochukwu and Hon. Chiwendu Nwanganga who were Respondents in both petition No ABS/GOV/EPT/4/2007 and Appeal No CA/PH/EPT/197D/08. The Applicant in Application No CA/OW/EPT/173M/2009 is Peoples Democratic Party (PDP) and Respondent in Petition No ABS/GOV/EPT/4/2007 and Appeal No CA/PH/197D/2008. Simply these are the only areas of differences. The issues canvassed that culminated into the Judgments Exhibits A and B in the two Appeals are the same. The two judgments, respectively were delivered by IBIYEYE and SHOREMI JICA. The two Applications thereof are rightly consolidated and considered in my Ruling. I had dismissed the Applicants’ preliminary objection and considered the merits of Application No CA/OW/EPT/169M/09. The issues and grounds presented for my determination in the present Application No CA/OW/EPT/173M/2009 are the same, I have therefore adopted my reasoning and conclusions in my Ruling in Application No CA/OW/EPT/169M/2009 and I accordingly dismiss the preliminary objection and the Application No CA/OW/EPT/173M/2009 herein.
BETWEEN:
1. CHIEF T.A. ORJI
2. CHRIS ALOZIE AKOMAS CROSS-RESPONDENTS/RESPONDENTS
AND
PEOPLES DEMOCRATIC PARTY CROSS-APPELLANT/APPLICANT
AND
1. PROGRESSIVE PEOPLES ALLIANCE (PPA)
2. INDEPENDENT NATIONAL ELECTORAL
COMMISSINO (INEC) & 2891 CROSS-RESPONDENTS
9. CA/OW/ EPT/183M/2009
APPEAL NO CA/PH/EPT/197B/2008
PETITION NO ABS/GOV/EPT/9/07
This application is brought ex-debito justiciae to sections 6(6) and 36 of the 1999 Constitution and the inherent jurisdiction of this Court. The Applicant prays for the following reliefs:
(a) An order setting aside the judgment of the Court of Appeal in Appeal No CA/PH/EPT/197F/08 delivered on 11th February 2009, on the ground that the said judgment is a nullity.
(b) An order that the Appeal be heard by another Panel of Justices of the Court of Appeal and judgment delivered on the merit.
The Application is supported by an affidavit and two Exhibits ‘A’ and ‘B’. The 1st and 2nd cross Respondents to this application filed a counter-affidavit. 3rd cross Respondent, Progressive Peoples Alliance (PPA) and 4th – 2891st cross-Respondents also filed counter affidavit to this application. In response to the various counter affidavits by the different sets of Respondents to this application; the Applicant filed further affidavits.
On 24/6/2010, the learned counsel for the parties identified their respective written addresses and same were adopted without oral further expatiation or amplification; it was urged on us to allow the application and set aside the decision.
1st, 2nd and 3rd Cross Respondents filed and argued in their written addresses Notice of Preliminary objection. The main objection is to the effect that this Court lacks jurisdiction to entertain the Applicant’s application. I have systematically in all the previous applications dismissed such objections to pave way for our fair consideration of the complaints of the Applicants. I shall do the same accordingly. I now consider the merit of this application.
From the 4 GROUNDS for the application set out herein, the Applicant has distilled the following issues for determination:
“1. Whether having regard to the circumstances, the court was competent to have struck out petition No ABS/GOV/EPT/9/07 which was not before the court while the court was considering Appeal No CA/PH/EPT/197/08 without hearing applicants. And whether the Applicants’ right to fair hearing was not thereby breached. And if so, whether the judgment is not a nullity.
2. Whether the procedure adopted by the court in Appeal No CA/PH/197/08 – Chief T.A. Orji Anor V. Onyema Ugochukwu & Ors, is not constitutional and which deprived the decision of the Honourable Court in the said Appeal of the character of legitimate and valid adjudication and if so, and having regard to the circumstances and manner the court delivered its unanimous judgment in appeal No CA/PH/EPT/197/08 – Chief T.A. Orji & Anor v. Onyema Ugochukwu & Ors was delivered in breach of the Applicants’ right to fair hearing as well as other fundamental vices and therefore a nullity,
3. Whether having regard to the circumstances and the tenor of the unanimous judgment of the Court of Appeal No CA/PH/EPT/197/08, the Court was not procedurally biased in favour of its earlier judgment in the subsequent hearing and determination in Appeal No CA/PH/EPT/197E/08 and whether the unanimous judgment of the Court in the said Appeal No CA/PH/EPT/197E/08 was not in breach of the Applicants right to fair hearing and so a nullity.
ISSUE ONE:
Learned Senior Counsel for the cross-Appellant/Applicant, D.C. DENWIGWE SAN, has submitted in his written Address that the unanimous judgment of the Court in Appeal No CA/PH/EPT/197/08 – Chief T.A. Orji & anor v. Onyema Ugochukwu & Ors – which struck out petition No ABS/GOV/EPT/07, was made or given without jurisdiction and therefore a nullity. It is submitted that courts of law are not invested with the jurisdiction to entertain, determine or deal with matters or issues not duly placed before them; and that where any court of law decides issues not duly brought before it, such decision will be a nullity for want of competence and jurisdiction.
Learned Senior Counsel for the 1st and 2nd Cross-Respondent, CHIEF WOLE OLANIPEKUN SAN and 3rd Cross Respondent, L.O. FAGBEMI SAN, and LIVY UZOUKWU SAN for 4th – 2891st, cross-Respondents all held contrary views in their written Addresses.
It is noted that the 1st and 2nd and 4th cross-Respondents raised sole issue and canvassed argument on it but dealt with all the issues raised by the Applicant. The 3rd Cross-Respondent however adopted the three issues raised by the Applicant. For ease of reference and convenience I shall adopt the Applicant’s 3 issues for determination of this application.
Applicants have discussed this issue under different grounds. The main grouse of the Applicant is that the judgment of this court infringed on their fundamental rights on the allegation that petition No ABS/GOV/EPT/9/07 was struck out without their being heard. The fact and the truth of this matter is that the appeal against the said petition, filed by the PDP, the Applicant herein and the sponsor of Onyema Ugochukwu and Hon. Chinwendu Nwanganga who had their own separate petition at the Tribunal and equally defended the appeal. Thus they were accorded opportunity and actually presented their case before the Court in CA/PH/EPT/197/08. Briefs of argument were filed and exchanged between the parties to the appeal. Exhibit ‘A’ is the judgment in respect of the said Appeal. In their written Address the Applicant admitted it was not a party to Appeal No CA/PH/EPT/197/08. The Applicant has no cause or reason therefore to complain that it was denied fair hearing. Where a party to a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed by law that party cannot thereafter be heard to complain about denial of fair hearing. See MMS LTD v. OTEJU (2005) 14 NWLR (Pt.945); AJIDAHUN v. AJIDAHUN (2000) 4 NWLR [Pt.50] and MALGIT v. DACHEN (1998) 5 NWLR [Pt.505] 384.
Besides, the resolution of the Court in relation to petition No ABS/GOV/EPT/2007 was not limited to Appeal No CA/PH/EPT/197/2008. Thus, in other appeals that petition was duly dismissed.
The Applicant has argued that it was wrong of the Court to have delivered a handwritten judgment which is different from typed-written eventually given out to the parties. It was further argued that since the Court delivered a handwritten judgment it lacked jurisdiction to give out a typed written judgment. It would appear the Applicant preferred being given a handwritten judgment. But the Applicant has not identified any difference between handwritten and typed-written judgment. The Applicant has not shown that by the decision of this Court which they are seeking to set aside the provision of sections 294(1) and (5) of the 1999 Constitution was breached. Subsection (1) provides:
“Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
It is implicit in the above provision that delivery of handwritten judgment is allowed. Hence, the reason for allowing a SEVEN DAYS period of grace to now type the judgment or make necessary corrections. What is more, the Applicants have not shown how they have been prejudiced or how miscarriage of justice has been occasioned under subsection 5 of section 294 of 199 Constitution.
A party that questions the propriety of a decision has a duty to produce before the Court that decision against which a complaint has been raised. In the Applicant’s application, the Applicant has failed to prove the existence of the handwritten judgment. It has not been produced and therefore all issues tied to the alleged handwritten judgment must fail.
Under this issue Applicant has also argued that there were so many contradictions in the judgment delivered by this Court. The fact is that the opinion or decision given in the first case did not substantially contradict the subsequent judgment delivered by this Court there cannot be justification to set aside the said subsequent decision on a ground of being a nullity. See SEN. JOY EMORDI v, HON. ALPHONSUS IGBEKE – unreported: CA/OW/EPT/4M/2009 delivered on 12/5/2010; ARCON v. FASSASI (No 4) (1987) 3 NWLR [Pt.59] 42 at 43 – 44 ANDY UBA v. VIRGY ETIABA unreported: CA/OW/EPT/7/07 delivered on 13/11/2009.
ISSUE TWO
In paragraph 3.03 of its written Address, Applicant has argued naively that the judgment of this Court should be set aside because it has not been able to obtain a copy of the judgment delivered by the Court. Simply put, I must say that indolence resulting in inability of the applicant to obtain a copy of a judgment, cannot by any stretch of imagination, be the basis for nullifying the judgment duly delivered. Perhaps if the applicant has seriously approached this matter administratively, he could have obtained the certified true copy of the judgment.
ISSUE THREE:
In this issue, Applicant has raised allegations of bias against the Justices of this Court that sat on the appeal. According to the Applicant the Court was bias in favour of its decision in appeal No CA/PH/EPT/197/2008 and therefore it affected the questioned judgment. Applicant has failed to produce cogent and reasonable evidence to the satisfaction of this Court that there was in fact such bias or real likelihood of bias as alleged. This is a grave matter. The Applicant must be ready and able to establish the facts and grounds it relies upon in order to succeed in its complaint, see MUHAMMED OLADOJA v. OJENGBEDE (2001) 18 NWLR [pt.746] 771; OSAYOMI v. THE STATE (2007) 1 NWLR [pt.1015] 352 at 368, and THE SECRETARY IWO LOCAL GOVT. v. ADIO (supra).
On alleged presence of Umoren, JCA a retired Justice of this Court: this ground is not contained in the Applicant’s Application or Affidavit of 12 paragraphs but same was raised and argued in the Applicant’s address. Is it an attempt, borne out of frustration and “must-win my appeal at all cost syndrome” to smear the reputation of the retired Justice and their Lordships who sat on the panel and determined the appeal by raising this wild spurious allegation. Although Applicant is quick to say that this allegation has nothing to do with whether the Justices were influenced or not by his Lordship’s overbearing presence. If not so, what is the purpose of this bare submission of a counsel in this regards, which cannot be the ground or basis for the granting of this application.
In the final analysis the nine consolidated applications are considered lacking in merit. The respective Applicants have not established special circumstances that would allow me to set aside the various judgments/orders. Accordingly the nine applications challenging the validity of the judgments/orders aforesaid are hereby dismissed. In view of the peculiarity of this case, parties are to bear their respective costs.
I must say in passing that we appreciate the cooperation and Conduct of all Senior Counsel and their teaming learned friends they led; and above all for their industry, research works expansion and development of jurisprudence and frontiers of Constitutional and Procedural laws in this matter.
TIJJANI ABDULLAHI, J.C.A.: My learned brother, SULEIMAN GALADIMA (OFR), JCA has exhaustively treated all the issues in each of the applications and has resolved them. I have nothing further to add. I agree entirely that the applications, each, lack merit. Accordingly, I hereby dismiss each of them in its entirety.
PAUL ADAMU GALINJE, J.C.A.: My learned brother, SULEIMAN GALADIMA (OFR) JCA has ably covered all that I need to say in these applications. I agree that the applications, each, deserve to be and they are hereby dismissed.
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I read in advance the rulings just delivered by my learned brother, SULEIMAN GALADIMA (OFR), JCA in these applications. I have nothing further to add. I hereby adopt them . The applications are hereby dismissed. I make no order as to costs.
EJEMBI EKO, J.C.A.: I had the privilege of reading in advance the rulings just delivered in all the applications numbered above by my learned brother, SULEIMAN GALADIMA (OFR), JCA. I entirely agree with him on the analysis and conclusions on each application. I have nothing further to add. I hereby adopt the rulings, including the consequential orders therein.
Appearances
Chief Mike Ahamba KSC SAN;
Udeh Ugochukwu, Esq.,
Nwagu Nwosu Esq.,
Chiabu Onuobia, Esq.,
Nkem Egbuja, Esq.,
E.N,Ichie, Esq.,
O.U. Ogbue (Miss);
J.C. Nwaogu, Esq.
D.C. Denwigwe SAN;
H. Balogu Esq.,
Chiji Nkaru, Esq.,
C.C. Ibeziako Esq.,
Chief Nkem Nwosu, Esq.,
U.P.N. Nwankudu Esq.,
Emeka Eze Esq.,
Obinna Odimukwu Esq.
Chief Wole Olanipekun SAN;
Chief Awa Kalu, SAN,
Chief Solo Akuma (SAN),
Chief Ifeanyi Iboko Esq.,
Chief Okey Amaechi, Esq.,
C.O. Nwaogu Esq.,
Hagler S.O. Esq.,
Mike Ndu Esq;
E.L Owuanta, Esq;
Akingbolu,
K. Esq.;
Ofoebgu L. N. Esq.,
E.L. Esq.,
Okey Mbanaso Esq.,
Somalia Uzodinma Esq.,
Osoagbaka, C. Esq.,
G.L Ohaeri (Mrs),
Uche Gbanubo Esq.,
Ojigbo Stanley Esq.,
Iheanyi Marcus Esq.,
Ayo Adesanmi Esq,
Kalu Dave Esq.,For Appellant
AND
N.C. Ohakwe Esq,
N.O.O Oke Esq. (holding brief of L.O. Fagbemi SAN);
R. Isamotu Esq.For Respondent
