MR. HILLIARD ETAGBO ETTAH & ANOR V. EYO UDUAK AKIBA
(2012)LCN/5612(CA)
In The Court of Appeal of Nigeria
On Saturday, the 7th day of January, 2012
CA/C/NAEA/307/2011
RATIO
JURISDICTION: EFFECT OF LACK OF JURISDICTION OF A COURT
Once a court lacks jurisdiction, a party cannot use any statutory provision on common Law principle to impose it because absence of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the court is to strike it out. Thus, the fact that a judgment is obtained by fraud cannot be used as basis for conferring jurisdiction on a court, where it has none. If a court has no jurisdiction to entertain a matter, no amount of successful case made out of fraud can resuscitate or rescue jurisdiction. The only thing left for the court to do is to strike out this Petition. See Umanah Vs. Attah (2006) 17 NWLR pt. 1009 page 503. PER UZO I. NDUKWE-ANYANWU, J.C.A.
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
Between
1. MR. HILLIARD ETAGBO ETTAH
2. ACTION CONGRESS OF NIGERIAAppellant(s)
AND
1. EYO UDUAK AKIBA
2. THE RESIDENT ELECTORAL COMMISSIONER, CROSS RIVER STATE
3. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. PEOPLES DEMOCRATIC PARTYRespondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Tribunal sitting in Calabar. The appellant was the Petitioner at the Tribunal. The appellant contested the election on 26th April into the House of Assembly for Calabar Municipality. The 1st Respondent was the candidate of PDP and was returned as the winner.
The Appellant was dissatisfied and presented a Petition on 17th May, 2011. The Tribunal struck out the Petition. However, the court of Appeal on 22nd September, 2011 sent back the petition to be heard on the merit. The Petition was for the second time dismissed again, this time for lack of jurisdiction.
On the 14th of November, 2011, the Petition became statute barred by effusion of time. The life of the Petition expired on midnight 12th November, 2011.
The Appellant again appealed to this court. The Appellant filed his notice and one ground of appeal. This lone ground of appeal was couched thus:
“The trial Tribunal breached the right of fair hearing of the appellants when the Tribunal adjourned further hearing of the petition beyond the time constitutionally guaranteed for the hearing of the Petition”.
The Appellant articulated only a sole issue for determination as follows:
“whether the right to fair hearing of the Appellants was not breached when the trial Tribunal at the close of the cases of the parties; adjourned the hearing of the Petition beyond the time allowed by the Constitution of the F.R.N 1999 (as Amended)”
The Appellant urged the court to consider the following question in considering the Appellant’s case (a) Was the 1st Respondent sponsored by a Political Party.
(b) Was conducted with the struck compliance to the provisions of the Electoral Act 2010 as amended.
(c) Are allegations of crime are severable in election petition.
The appellant has prayed the court to consider the above questions in considering the Appellant’s case. These to my mind are extraneous issue to the issue as formulated by the Appellant himself.
The sole issue is based on the jurisdiction of the Tribunal when it delivered its judgment on the 14th November, 2011.
The Petition was presented by the Appellant on 17th May, 2011.
S. 285 (6) of the 1999 Constitution (as altered) provides as follows:
“All election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
With a backdrop of this S.285 (6) the pertinent question to ask is when was the petition filed. This petition was filed on the 17th May, 2011. The 180 days from that day will end on 13th November, 2011. The life span of the petition filed on 17th May, 2011 will end on the 13tn November, 2011. The judgment delivered on the 14th November, 2011 was delivered outside the time frame envisaged by S. 285 (6) of the 1999 Constitution (as altered).
The Appellant had argued that the Tribunal was aware of the time limit of the Petition but still adjourned it to a date outside the time frame.
Once a court lacks jurisdiction, a party cannot use any statutory provision on common Law principle to impose it because absence of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the court is to strike it out. Thus, the fact that a judgment is obtained by fraud cannot be used as basis for conferring jurisdiction on a court, where it has none. If a court has no jurisdiction to entertain a matter, no amount of successful case made out of fraud can resuscitate or rescue jurisdiction. The only thing left for the court to do is to strike out this Petition. See Umanah Vs. Attah (2006) 17 NWLR pt. 1009 page 503.
The judgment delivered on the 14th November, 2011 was a day outside the time emphisaged by S. 285 (6) of the 1999 Constitution (as altered) and therefore null. The Tribunal lacked the necessary jurisdiction after the 13th November, 2011. The judgment delivered is therefore null and void and of the no effect. The appeal from that judgment is therefore incompetent.
This appeal therefore lacks merit. It is hereby dismissed.
The judgment of the Tribunal is null and void. The return of the 1st Respondent Eyo Uduak Akiba is hereby affirmed. I make no order as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: I had the privilege of reading in advance a copy of the lead judgment just delivered by my learned brother, Uzo, I. Ndukwe-Anyanwu, JCA. I adopt all the reasons set out therein and join in dismissing the appeal.
JOSEPH TINE TUR, J.C.A.: I read in advance a copy of the lead judgment pronounced by my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I concur. The lifespan of the petition terminated or expired on 13th November, 2011, the petition having been filed on 17th May, 2011. I venture to also hold that upon the expiry of even one day out of the 180 days stipulated under section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, the Election Tribunal lacked the Statutory and Constitutional jurisdiction to make any binding order than to strike out the petition.
The judgment of the Tribunal being a nullity is hereby set aside. The appeal is dismissed. I abide by the orders made by my Lord.
Appearances
William BallantyneFor Appellant
AND
Mrs Nella Andem-Ewa, SAN
1. E. Attih, Esq.
2. Frank Mazeli, Esq. – for 1st Respondent
3. F.U. Okoli, Esq
Mba E. Ukweni Esq. – 2nd and 3rd Respondents
Chief Ogar Ndoma Egodo, Esq. – for 4th RespondentFor Respondent
