OGBARA GABRIEL MICHAEL & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2016)

OGBARA GABRIEL MICHAEL & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2016)LCN/8185(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 17th day of February, 2016

CA/PH/EPT/417/2015(R)

RATIO

COURT: FUNTIO OFFICIO; WHETHER A COURT CAN REVIEW ITS JUDGEMENT ONCE DELIVERED
There is no doubt that it is settled that a Court cannot review its judgment once delivered except in circumstances provided by Statute or the Constitution. See ARCON ( In Re Majorrah ) v. Fassassi (1987) NWLR Pt. 59 Pg 1, Chukwuka & Ors. V. Ezulike & Anor (1986) 5 NWLR Pt. 45 Pg. 892 . In Chukwuka v. Ezulike (supra) Aniagolu JSC held emphatically in interpreting Supreme Court rules similar to that of the Court of Appeal in Order 8 Rule 16 that it would not review an order of dismissal for want of prosecution made under Order 7 Rule 30 and that the inherent powers of the Supreme Court provided by Section 6 (6) (a) of the Constitution cannot be invoked to save the situation. In Obioha v. Ibero & Anor. (1994) NWLR Pt. 320 @ Pg 503, (1994) LPELR ? 2180 (SC) the full Court of the Supreme Court held that there is no Constitutional or Statutory provision for the review by the same Court of the judgment of any Court of superior record including the Supreme Court. See also Alao v. ACB Ltd. (2000) 9 NWLR Pt. 672 Pg. 264. Once the Court delivers a final judgment, subject to the ‘slip rule’ principle, that Court becomes functus officio. See Adigun v. Attorney General Oyo (No. 2). (1987) 2 NWLR Pg. 56 Pt. 197. I have to reiterate the position of the Supreme Court, that the law is that the only situations when a final judgment or order can be varied are (a) to correct errors in expressing the intention of the Court (b) to correct clerical mistake or accidental slip or omission or (c) to set aside an order which is a nullity due to failure to comply with the cardinal rule of fair hearing such as failure to serve process which led to a judgment in default. See Skenconsult V. Ukey (1981) 1 SC 6, Alh Asalu v. Fatai Sule Dakan (2006) 5 SC Pt. 111Pg. 120, Alao v ACB (2000) 9 NWLR Pt 672 Pg. 264.
In this case, the Court of Appeal has given a final decision. There is no pretence that the rules of natural justice were breached or a clerical error was made in the orders of the Court. It appears that the complaint is that a decision has been made per incuriam which we are now being called upon to correct. In essence we have been asked to sit on appeal and reverse ourselves. That is not allowed by any rule, law or constitutional provisions. Our powers are as prescribed in Order 19 Rule 4 set out above. Once the Court of Appeal has entered judgment in a case, that decision cannot be varied by the same Court or a Court of coordinate or concurrent jurisdiction. No Court, not even the Court of Appeal can correct its own mistake in law/fact or otherwise even though apparent on the face of the judgment or order, if the order or judgment correctly expresses the intention of the Court, it cannot be corrected under the slip rule or the inherent powers of the Court. No substantial portion of the judgment can be tampered with. It is only an appellate Court that can review that judgment. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

COURT: JURISDICTION; WHETHER THE COURT OF APPEAL HAS THE JURISDICTION TO DETERMINE ANYTHING RELATING TO AN ELECTION PETITION APPEAL AFTER THE TIME PRESCRIBED BY THE CONSTITUTION

According to Section 246 (3) of the Constitution, the Court of Appeal is the final Court to decide the election of a candidate into the Bayelsa State House of Assembly. To nail this matter on the head, Section 285 (7) provides for 60 days to decide an appeal in an election petition the Supreme Court in Ogboru v Uduaghan (2012) LPELR – 8287 SC stated emphatically that the Court of Appeal is devoid of jurisdiction to determine anything relating to an election petition appeal after the 60 days prescribed by the Constitution. I must also re-echo the words of Belgore JSC in Obioha v. Ibero supra at page 521 of the NWLR where His Lordship held that the law does not permit a Court double say on the same matter. It either allows or dismisses an appeal, not the two on the same issue. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

1. OGBARA GABRIEL MICHAEL
2. AFRICAN DEMOCRATIC CONGRESS Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. NAOMI BENJAMIN OGOLI
3. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling):?This is a motion on notice filed on 1/2/16 by the 2nd Respondent/Applicant seeking the following orders from this Court.
1. An order reviewing the judgment of this Honourable Court delivered in this matter i.e CA/PH/EPT/417/2015 on the 9th day of December, 2015 to correct an error on the face of the judgment so as to comply with the express provisions of Sections 53(2) (3) and 140(1) (2) of the Electoral Act, 2010 (as amended).
2. An order directing the 1st Respondent (INEC) to conduct another election in Ward 6, Ogbia Constituency 111 of Bayelsa State House of Assembly wherein the elections conducted by the 1st Respondent in all the Units of the said Ward 6 were nullified by the Court of Appeal on the 9th day of December, 2015 and declared 1st Appellant/Respondent Winner of the said election in circumstance where the results of the Polling Units in Ward 6 will affect the overall result of the election in Ogbia Constituency 111.

The grounds upon which the application is brought are as follows:

i. That the Court of Appeal cancelled or nullified the election in Ward 6 of Ogbia State Constituency 111.
ii. That after the cancellation, the 1st Appellant/Respondent scored a total of 1,693 votes as against Applicants’ 1,634 votes with a vote difference of 59 in favour of the 1st Appellant/Respondent.
iii. That the total number of registered Voters in Ward 6 is 7,235 out of which 7,032 has their permanent voters cards (PCCs).
iv. That a fresh election in Ward 6 will produce a clear Winner as between Applicants herein of 1st Appellant/Respondent in accordance with the provision of Sections 53(2) (3) and 140(1) (2) of the Electoral Act,?2010 (as amended).
v. That the declaration of a Winner in the circumstance is a clear violation of Section 53(2) (3) and 140(1) (2) of the Electoral Act, 2010 (as amended)
vi. That the Court of Appeal did not intend to deliver a judgment in clear violation of the above said Sections of the Electoral Act, 2010 as aforesaid.
vii. That it

was an error or oversight for the Court of Appeal to have cancelled the Ward 6 election and declared a Winner in the circumstance.
viii. That this Honourable Court has the competence to review the judgment and correct the error.
ix. That this application is brought pursuant to the following provisions of the Section 6(6)(a) (b) and 36(1) (2) (b) of the Constitution of Federal Republic of Nigeria, 1999 (as amended, Sections 53(2) (3) and 140(1) (2) of the Electoral Act, 2010 (as amended) and Order 7 Rule 1, Order 19 Rule 4 of the Court of Appeal Rules, 2011.

The first part of the 13 paragraph affidavit in support of the motion complained about the order made by this Court on 9/12/15, while the 2nd part contained legal arguments as regards the perceived errors in the judgment of this Court.

The Applicant also filed a further affidavit in reply to the counter affidavit of the 1st Appellant/Respondent on 16/2/16. Also a reply brief in reply to 1st Appellant/Respondent’s written address was filed on 16/2/16.

The facts that led to this appeal are as follows:
The

Applicant was the 2nd Respondent in the substantive Appeal and the Candidate of the 3rd Respondent for the Ogbia Constituency 111 in the Bayelsa State House of Assembly election held on the 11th April, 2015. The Applicant herein was declared Winner and returned elected by the 1st Respondent in the said election but the relevant Election Petition Tribunal sitting in Yenagoa, Bayelsa State partly nullified the election by cancelling the votes in the following Ward i.e Wards: 6 (Otuasega), Ward 7 (kolo) and Ward 9 (Emeyal) all in Ogbia Constituency 111 and then ordered a fresh election in those three (3) Wards out of four (4) Wards which makeup the State Constituency. The 1st Appellant/Respondent appealed to this Court and in its Judgment the Court of Appeal herein which is the Final Court in the matter reversed the cancellation of the election in Wards 7(Kolo) and (Emeyal) but sustained the cancellation of the election in Ward 6 (Otuasega) and proceeded to calculate the result of the election based on the three (3) Wards out of four (4). This Court then declared 1st Appellant/Respondent as the Winner of the election and ordered a Certificate of return to be issued

to him by the 1st Respondent/Respondent.

The 1st Appellant/Respondent filed a counter-affidavit to which an exhibit was annexed. Also a notice of preliminary objection to the motion on 8/2/16. In the Notice of preliminary objection, the 1st Appellant/Respondent wants an order ?
AN ORDER dismissing the motion on notice to review the judgment of this Honourable Court filed on the 1st day of February, 2016, by the 2nd Respondent, for being incompetent and an abuse of the processes of this Honourable Court.

There were 14 grounds of objection to the application. In the counter affidavit in opposition to the motion, most paragraphs were engaged in legal arguments in aid of why the application should not be granted.

In the address in support of the motion filed by F.N. Nwosu (KSM), Christie Oloko Esq. It was argued in the twin issues formulated that this Court in its judgment delivered on 9/12/2015 erred in law by not declaring the election inconclusive but proceeded to vary the order of the Tribunal by reversing the cancellation of the election in Ward 7 (Kolo), 9 (Emeyal), but sustained the cancellation of the

election in Ward 6 (Otua sega) and proceeded to calculate the result of the election based on the three wards instead of the 4 wards that make up the constituency. The Applicants want an order for fresh votes cast to determine the actual winner of the election. Counsel relied in aid on Section 53 (2) (3), Section 140 (1) (2) (3) of the Electoral Act ,2010; Section 6 (6) (a) (b) and 36(1) (b) (2) of the Constitution. Counsel cited OJIAKO VS A.G., ANAMBRA STATE (2000) 1 NWLR (PT 641) Pg 375, at 382, SOLANICES VS AJIBOLA (1969) 1 NMLR 253 (1968) 1 ALL NLR 46. NWANKPU VS EWULU (1995) 7 NWLR (Pt 407) 269; (1995) 7 SCNJ 197.
At the hearing of the appeal, counsel argued that there is an error on the face of the record at Pg.14. The Court considered the mathematical computation of the result but did not give effect to Section 140 of the Electoral Act. The Court cannot contravene the position of the law.

In the address for the 1st Respondent, learned counsel Mr. Nelson Akpocha Wanogho Esq. who settled the address filed on 8/2/16 argued that in law and by the provisions of ORDER 19, RULE 4 OF THE COURT OF APPEAL RULES, 2011, this Court lacks the jurisdiction to review its

own judgment once given and delivered by it, save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative substantive part of it be varied and a different form substituted. Counsel relied on the decisions in the Supreme Court and Court of Appeal cases of MAJORAH V. FASSASSI (1986) N.S.C.C. (PART 11) VOL 18 PAGA 774 PARAGRAPH 40-15 @ PAGE 775 ? 776 UKACHUKWU V. UBA (2005) 18 N.W.L.R. (PART 956) PAGE 1 PARAGRAPHS E ? H @ PAGE 60 & PARAGRAPH A ? B @ PAGE 63, CITEC INT?L ESTATES LTD. V. FRANCIS (2014) 8 N.W.L.R (PART 1408) PAGE 139 PARAGRAPHS D ? F @ PAGE 167, SKYMIT MOTORS LTD. V. U.B.A. PLC (2012) 10 N.W.L.R. (PART 1309) PAGE 491 PARAGRAPHS G ? H @ PAGE 519, DINGYADI V. I.N.E.C (2011) 10 N.W.L.R (PART 1255) PAGE 347 PARAGRAPHS C ? F @ PAGE 393.

Learned counsel urged this Court to hold that the motion on notice to review the judgment of this Court filed on the 1st day of February,

2016, by the 1st Respondent/Applicant is brought in bad faith and a deliberate attempt by the 1st Respondent/Applicant to deny the 1st Appellant of the benefits of the final judgment of this Court in APPEAL NO: CA/PH/EPT/417/2015.

Mr Wanagho at the hearing of the appeal insisted that Section 52 (2) &(3) of the Electoral Act relied on by the Applicant deals with the power of INEC to declare an election conclusive. He argued that all the issues raised by the Applicant were litigated upon in the substantive suit and resolved. A party cannot be allowed to relitigate an issue already settled.

Also at the hearing of the appeal, the attention of learned Applicant’s counsel was drawn to Order 7 Rule12 of the Court of Appeal Rules which provides as follows:
An application to set aside any judgment or ruling shall not be brought unless it is filed within ten days from the date of delivery of such judgments or ruling or such longer period as the Court may allow for good cause.

Learned 2nd Respondent/Applicant’s counsel then made an oral application for extension of time to file the motion and to deem the motion filed served on 1/2/16. Learned 1st

Appellant/Respondent?s counsel opposed the application and argued that since this is an election matter, time cannot be extended. He cited Section 243 and 285 of the 1999 Constitution.

RESOLUTION
It is apparent that this motion was filed in flagrant contravention of Order 7, Rule 12 of the Court of Appeal Rules 2011. Judgment was delivered on 9/12/15 and this motion was filed on 1/2/15 more than 52 days after the judgment was delivered. In any event, I do not think that given the sui generis nature of election petitions and appeals and the constitutional time limit imposed, we are at liberty to extend time for any party to file a motion to set aside the judgment or ruling of this Court. No form of decision can be handed out outside the 60 day period stipulated by the Constitution. See Senator Akpanudoedehe & Ors v. Godswill Obot Akpabio & Ors. (2012) LPELR ? 9728 SC Prince Abubakar Audu & Anor. V. Captain Idris Wada (2012) LPELR ? 1964 (SC).

To clear any doubts we have decided to look at the motion to see if it is one that is even within the competence

of this Court to consider.

Order 19 Rule 4 of the Court of Appeal Rules, 2011 provides as follows:
The Court shall not review any judgment once given and delivered by it, save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative substantive part of it be varied and a different form substituted.
There is no doubt that it is settled that a Court cannot review its judgment once delivered except in circumstances provided by Statute or the Constitution. See ARCON ( In Re Majorrah ) v. Fassassi (1987) NWLR Pt. 59 Pg 1, Chukwuka & Ors. V. Ezulike & Anor (1986) 5 NWLR Pt. 45 Pg. 892 . In Chukwuka v. Ezulike (supra) Aniagolu JSC held emphatically in interpreting Supreme Court rules similar to that of the Court of Appeal in Order 8 Rule 16 that it would not review an order of dismissal for want of prosecution made under Order 7 Rule 30 and that the inherent powers of the Supreme Court provided by Section 6

(6) (a) of the Constitution cannot be invoked to save the situation. In Obioha v. Ibero & Anor. (1994) NWLR Pt. 320 @ Pg 503, (1994) LPELR ? 2180 (SC) the full Court of the Supreme Court held that there is no Constitutional or Statutory provision for the review by the same Court of the judgment of any Court of superior record including the Supreme Court. See also Alao v. ACB Ltd. (2000) 9 NWLR Pt. 672 Pg. 264.
Once the Court delivers a final judgment, subject to the ?slip rule? principle, that Court becomes functus officio. See Adigun v. Attorney General Oyo (No. 2). (1987) 2 NWLR Pg. 56 Pt. 197.
I have to reiterate the position of the Supreme Court, that the law is that the only situations when a final judgment or order can be varied are (a) to correct errors in expressing the intention of the Court (b) to correct clerical mistake or accidental slip or omission or (c) to set aside an order which is a nullity due to failure to comply with the cardinal rule of fair hearing such as failure to serve process which led to a judgment in default. See Skenconsult V. Ukey (1981) 1 SC 6, Alh Asalu v. Fatai Sule Dakan (2006) 5 SC Pt. 111

Pg. 120, Alao v ACB (2000) 9 NWLR Pt 672 Pg. 264.
In this case, the Court of Appeal has given a final decision. There is no pretence that the rules of natural justice were breached or a clerical error was made in the orders of the Court. It appears that the complaint is that a decision has been made per incuriam which we are now being called upon to correct. In essence we have been asked to sit on appeal and reverse ourselves. That is not allowed by any rule, law or constitutional provisions. Our powers are as prescribed in Order 19 Rule 4 set out above. Once the Court of Appeal has entered judgment in a case, that decision cannot be varied by the same Court or a Court of coordinate or concurrent jurisdiction. No Court, not even the Court of Appeal can correct its own mistake in law/fact or otherwise even though apparent on the face of the judgment or order, if the order or judgment correctly expresses the intention of the Court, it cannot be corrected under the slip rule or the inherent powers of the Court. No substantial portion of the judgment can be tampered with. It is only an appellate Court that can review that judgment. According to Section 246 (3) of

the Constitution, the Court of Appeal is the final Court to decide the election of a candidate into the Bayelsa State House of Assembly. To nail this matter on the head, Section 285 (7) provides for 60 days to decide an appeal in an election petition the Supreme Court in Ogboru v Uduaghan (2012) LPELR – 8287 SC stated emphatically that the Court of Appeal is devoid of jurisdiction to determine anything relating to an election petition appeal after the 60 days prescribed by the Constitution. I must also re-echo the words of Belgore JSC in Obioha v. Ibero supra at page 521 of the NWLR where His Lordship held that the law does not permit a Court double say on the same matter. It either allows or dismisses an appeal, not the two on the same issue. This Court has no jurisdiction to revisit and to vary its own Judgment and orders which allowed the appeal. There must be an end to litigation. This application is completely misconceived and incompetent. It is hereby dismissed.

MASSOUD ABDULRAHMAN ORDEOLA, J.C.A.: I have been privileged to have read the draft of the lead ruling just delivered by my learned brother, Hon. Justice

Helen Moronkeji Ogunwumiju, JCA. I agree entirely, with the reasoning and conclusion reached therein, to the effect that the instant application, given its peculiar circumstances is not grantable.

Let me for emphasis reiterate, that the law is settled on the point, that this Court as an appellate Court shall not review any of its judgment once delivered, save for any clerical mistake or to vary the judgment or order, so as to give effect to its meaning or intention. Basically, judgment or order of a Court shall not be varied when it correctly represents what the Court decided, nor shall the operative or substantive part of it be varied and a different form substituted. Thus, once a judgment is delivered, the Court is without power to sit on appeal or review it, even by a full panel of that Court in the case of an appellate Court. This is more so, when the decision or judgment is final and therefore not subject to an appeal or review by itself or by any other Court.

Thus, for the fuller reasoning and exposition of the law, contained in the lead ruling of my learned brother, Ogunwumiju, JCA. I also dismiss the instant application. It

is accordingly dismissed.

TOM SHAIBU YAKUBU, J.C.A.: I had the advantage of perusing the draft of the Ruling rendered by my Lord, HELEN MORONKEJI OGUNWUMIJU, JCA. I am in complete agreement with the lucid reasoning which culminated in the dismissal of the application. The law is firmly settled to the effect that, once the Court delivers a final judgment on any matter, subject to the “slip rule” principle, that Court becomes functus officio. Adigun & Ors v. Attor Gen. Oyo State & Ors. (No.2) (1987) 2 NWLR (Pt.53) 67, (1987) 3 SC 250; (1987) LPELR – 177 (SC).

In the circumstances of the present application, the complaint is neither with respect to a slip nor, a clerical mistake in the judgment of this Court delivered on 9th December, 2015. Therefore, there is nothing to be corrected in that judgment which is final and conclusive for all times and ages. Hence the application, being tenuous, is dismissed.

Appearances

Nelson A. Wanogho with him,Victor ImoisiliFor Appellant

AND

Uchechi Nwaorgu (Miss) with him,S. Afolayan and T. Igani
F.N. Nwosu with him, Chistie OlokoFor Respondent