OKWARA IBE OSONWA & ANOR v. HON. NKOLE UKO NDUKWE & ORS
(2019)LCN/13761(CA)
In The Court of Appeal of Nigeria
On Monday, the 19th day of August, 2019
CA/OW/EPT/SHA/22/2019(R)
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. OKWARA IBE OSONWA
2. ALL PROGRESSIVES GRAND ALLIANCE (APGA) Appellant(s)
AND
1. HON. NKOLE UKO NDUKWE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
RATIO
THE OBJECT OF INTERPRETING STATUTE OR THE CONSTITUTION
It is settled law that the object of interpreting statute or the Constitution is to discover the intention of the legislature, which intention is usually deduced from the language used in the statute or Constitution. Therefore where words used in the constitutional provisions are clear and unambiguous they must be given their ordinary plain meaning so as to avoid reading into the provisions meanings not intended by the lawmakers. The above clearly means that where the words used in the provision are clear and unambiguous, the question of interpretation becomes a non issue as there is nothing to be interpreted or constructed as the Court is duty bound to assign the words used in the provision their ordinary plain meanings.
In my judgment, the words deployed by the legislature in Section 285(7) and (8) of the 1999 Constitution are very simple and straight forward and unambiguous and therefore admit of no special construction or interpretation. They simply mean what they plainly stated. Subsection (7) of Section 285 means simply that it is obligatory on the Court of Appeal or the Supreme Court to hear and determine an appeal arising from an election petition matter within sixty (60) days from the date of the delivery of judgment by the election Tribunal or Court of Appeal. The provision makes no distinction between an interlocutory decision of the Tribunal and the final decision of the Tribunal or Court of Appeal. Also to be noted is the use of the words “shall” and “within” in the said subsection which means that the provision is mandatory as it admits of no discretion whatsoever. The word “within” means a decision rendered by the affected Court outside the assigned sixty (60) days is null and void. It is settled law that the time fixed by the Constitution, which is the fundamental or supreme law of the land, cannot be altered, extended, expanded, elongated etc by any Court in the purported exercise of a discretion to that effect. PER LOKULO-SODIPE, J.C.A.
THE MEANING OF THE EXPRESSION “FINAL APPEAL”
What does the expression or phrase “all final appeals” as used in Section 285(8) of the 1999 Constitution, as amended mean? The expression is not defined in the Constitution neither has it been interpreted by this Court before now. To get to the meaning of the expression, it is necessary to know what the words “final” and “appeal” mean.
“Final” as defined by Webster’s New Twentieth Century Dictionary Unabridged Second Edition at page 686 – 687 includes:
a. 1. Pertaining to the end or conclusion; last; ultimate; as the final issue….
2. Conclusive, decisive; determinative; as a final judgment… that which is the termination; the last”.
While the word “appeal” is defined by the said dictionary at page 88 to include the following:
“1. In law, the removal of a case from a lower to a higher Court for hearing, or the right to, or a request for, such action…”
When the meanings of the two words are combined, what the expression means, becomes very obvious. In my judgment the expression means all appeals after which there is no further appeal to a higher Court or Tribunal, or decisions by a final Court of Appeal, or the last bus stop in the appeal route after which everything or appeal terminates/is at end.
It should be noted that the expression as used in Section 285(8) of the 1999 Constitution as amended is tied to “the Court” which has to take the requisite action in relation to “all final appeals”. PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT A COURT HAS JURISDICTION OVER A CAUSE OR MATTER NOT WITHIN ITS JURISDICTION
A Court may exercise its inherent power or inherent jurisdiction in respect of a cause or matter within its jurisdiction but, it has no power or jurisdiction over a cause or matter not within its jurisdiction. Thus, the inherent power of a Court of record is supplementary to and dependent on the statutory jurisdiction of the Court in a Court. See, GOMBE V. P.W. (NIG.) LTD. (1995) 6 NWLR 402, P.402 at422; AKILU V.FAWEHINMI (NO.2) (1989) 2 NWLR PT.102, P.22 at 97, and CA/E/EPT/52/2011 – APGA & ANOR. V. ANDY EMMANUEL UBA & ORS.(unreported decision of the full Court of the Court of Appeal) delivered on 24th February, 2011. See another decision of the full Court of Appeal delivered on 13th day of March, 2012 in CA/E/EPT/4M/2012, ANDY EMMANUEL UBA V. APGA & 2 ORS. Also CA/EK/M/1/2011- SEGUN ONI & ANOR.V.FAYEMI & ORS. (unreported) a decision of the full Court, delivered on 27th February, 2012. PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Lead Ruling): The motion dated 2/8/2019, and filed on the same date, has been brought by the 1st Respondent/Applicant (hereafter to be simply referred to as ?Applicant?), pursuant to Section 285(7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); and under the inherent jurisdiction of this Court. Therein, the Applicant seeks for: –
?AN ORDER of this Honourable Court setting aside the judgment of this Court delivered in this appeal on 1st August, 2019, same having been delivered outside the 60 days time frame prescribed under and by virtue of Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).?
The grounds upon which the motion in question is predicated, are: –
?i. Applicant was the 1st Respondent in PETITION NO: EPT/AB/REP/008/2019 BETWEEN OKWARA IBE OSONWA & ANOR V. HON. NKOLE UKO NDUKWE & 2 ORS. in which a ruling was delivered by the Tribunal on 27th May, 2019 striking out the petition against the 3rd Respondent;
ii. Dissatisfied with the said ruling of the Tribunal,
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the Petitioners/Appellants/Respondents herein appealed against same by filing a notice of appeal at the registry of (sic) Tribunal on 9th June, 2019, challenging the ruling of the Tribunal;
iii. That the appeal was heard on 9th July, 2019 by this Honourable Court and judgment was reserved;
iv. On 1st August, 2019, this Honourable Court delivered judgment in the appeal allowing the same and remitting the petition to the Tribunal for continuation;
v. That the judgment of this Honourable Court delivered on 1st August, 2019, was delivered outside the 60 days prescribed by the Constitution in which an appeal from a decision of an Election Petition Tribunal shall be delivered;
vi. The judgment of this Honourable Court delivered on 1st August, 2019, is null and void same having been delivered outside the 60 days prescribed by the Constitution.
vii. It will serve the interest of justice if the judgment of this Honourable Court delivered on 1st August, 2019, is set aside for being null and void;
viii. This Honourable Court has the inherent and statutory jurisdiction to set aside its judgment delivered on 1st August, 2019.?<br< p=””
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Learned leading counsel for the Applicant, G.E. Ejemai, in moving and urging the Court to grant the motion on notice before it, relied on both the supporting affidavit to the said motion (to which he deposed); and the further affidavit filed therein on 14/8/2019, in which A.I. Badamasi was the deponent.
O. O. Amuzie, learned counsel for the Appellants/Respondents (hereafter to be simply referred to as ?the Respondents?), in opposing and urging the Court to dismiss the motion before it, relied on the counter affidavit filed on 14/8/2019 by the said Respondents and which was deposed to by Uzoma Ibe. Learned counsel submitted that the matter before the Court is a constitutional one and that the Court lacks the jurisdiction to entertain the motion before it. Learned counsel also submitted that the Court cannot revisit its decision in the instant appeal even if it made a mistake therein. That the mistake can only be rectified or remedied in any other subsequent case. In aid of his position, learned counsel cited the unreported decision of this Court delivered on 24/2/2012 (sic) in APPEAL NO. CA/E/EPT/52/2011 ? ANDY EMMANUEL UBA V. APGA &
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2 ORS., as being on all fours with the instant matter. He urged the Court to refuse and dismiss the motion in the circumstances.
Learned counsel for the 2nd Respondent, N.U. Nwokocha-Ahaaiwe, did not oppose the motion. In the same vein, Isah Seidu, learned leading counsel for the 3rd Respondent, did not oppose the motion. He also referred to Order 6 Rule 11, of the 2016 Rules of this Court, as empowering the Court to act as the Applicant has urged it.
Learned leading counsel, Ejemai, in responding on point of law,in respect of the stance that this Court can properly grant the Applicant being sought in the motion before it, cited and made available to the Court an incomplete print out of the decision of the Supreme Court in the case of ABUBAKAR V. NASAMU as reported in the Law Pavilion Electronic Law Reports (i.e. LPELR). Similarly, he made available to the Court a complete print out of the decision of this Court, in the case of HUSSEINI V. LAWAN as reported in the LPELR.
?
I have painstakingly read the affidavits filed by the parties. I however see no need to re-produce the depositions in the affidavits. This is because, the underlisted facts are
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incontrovertible or incontestable having regard to the judgment of this Court exhibited to the further affidavit as Exhibit ?A?: –
1. That it was on 27/5/2019 that the National and State Houses of Assembly Petition Tribunal (hereafter to be simply referred to as ?the Tribunal?) delivered its decision that was the subject of Appeal No. CA/OW/EPT/FHA/10/2019.
2. That the Respondents herein, being aggrieved with the said decision delivered by the Tribunal on 27/5/2019, filed their notice of appeal upon which Appeal No. CA/OW/EPT/FHA/10/2019, was founded, on 9/6/2019.
3. That the appeal was entertained by this Court on 9/7/2019 and judgment therein reserved.
4. That this Court delivered its judgment in the appeal on 1/8/2019.
Given, the above stated facts which as I have earlier said are incontrovertible or incontestable, the simple issue for determination in the instant motion, in my considered view, is whether this Court lacks the competence cum jurisdiction to set aside its judgment that ex-facie was delivered in contravention of the provision of Section 285(7) of the amended 1999 Constitution? The provision in
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question reads thus: –
?An appeal from a decision of an election Tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal or Court of Appeal.?
The Applicants, in aid of their stance that this Court can and should set aside its judgment delivered on 1/8/2019, cited the cases of Abubakar v. Nasamu and Husseini v. Lawan (both supra). Given the opposing stance of the Respondents, I consider it pertinent to re-produce portions of the judgment of the Supreme Court in the Abubakar case, which needless to say, binds all other courts in this country lower in ranking to the Supreme Court. In the said Abubakar case, the Supreme Court in dwelling on the issue as to ?whether in view of the provisions of Sections 285(7) & (8) and 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the judgment of the lower Court (i.e. this Court) delivered on the 29th day of December, 2011 in respect of which the reasons for the decision was (sic) given on the 23rd day of January, 2012, is a nullity; amongst others, stated per
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Onnoghen, JSC; (as he then was) thus: –
?xxxx If the lower Court is found to have been incompetent or to lack the vires, jurisdiction to decide the appeal as and when it did then the decision is a nullity same haven been rendered without jurisdiction and there will be no legal need to proceed to decide whether the said decision of the lower Court was correct in law and/or facts. That is all that I have been trying to say.
xxxxx
It is not in dispute that the judgment of the lower Court setting aside the decision of the Tribunal delivered on 13th November, 2011 was rendered by the lower Court on the 29th day of December, 2011 and that the reasons for the said decision of 29th December, 2011 was (sic) given by that Court on the 23rd day of January, 2012. From the above facts, it is clear that between the 13th day of November, 2011 and 23rd day of January, 2012 is about seventy-one (71) days.
Prior to the amendment to the 1999 Constitution the Court of Appeal was the last bus stop in appeals against decisions of the
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election Tribunals in relation to Governorship, National Assembly and State House of Assembly elections. However, by the provisions of Section 233 (2)(e)(iv) of the 1999 Constitution, as amended, decisions of the Court of Appeal on any question as to whether any person has been validly elected to the Office of Governor or Deputy Governor of a state under the Constitution is now appealable to the Supreme Court. Therefore this Court, the Supreme Court of Nigeria, is now the final Court of Appeal (bus stop) in appeals on decisions as to whether any person is validly elected governor or deputy governor of a state, under the Constitution.
However, decisions of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly election petitions continue to terminate at the 62 Court of Appeal by virtue of the provisions of Section 246(3) of the 1999 Constitution, as amended, which enacts thus:-
?xxxxxx?
So in relation to appeals on election matter, it is clear and I hereby hold that there are two Courts constitutionally clothed with final jurisdiction to
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hear and determine same. These are:-
(1) The Court of Appeal in relation to National and State Houses of Assembly election petitions, and,
(2) The Supreme Court of Nigeria in respect of decisions of the Court of Appeal on the question as to whether any person has been validly elected to the Office of Governor or Deputy Governor under the constitution.
The other relevant and crucial provisions of the constitution to the determination of the issue under consideration are Sections 285(7) and 285(8) of the 1999 Constitution, as amended. They provide as follows:-
“285(7)
An appeal from a decision of an election Tribunal or Court of Appeal in on election matter shall be heard and disposed of within sixty (60) days from the date of the delivery of judgment of the Tribunal or Court of Appeal.
285 (8)
The Court, in all final appeals from an election Tribunal or Court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.”
The question is, what do Subsections (7) and (8) of Section 285 of the 1999 Constitution, as amended, mean in relation to the facts of this case and the issue
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under consideration. It is very clear that the two sub-sections apply to both the Court of Appeal and the Supreme Court in the exercise of the appellate jurisdiction conferred on them by the Constitution in relation to election matters. From Sub-section (7) supra, the duty is imposed on both the Court of Appeal and the Supreme Court to hear and dispose of appeals arising from the decisions of an election tribunal or Court of Appeal within sixty (60) days of the delivery of the said judgment.
In exercising or performing the above duty, the Court of Appeal and the Supreme Court may, where the appeals are final appeals adopt the practice of first giving their decision and reserving the reasons for the said decisions to a later date.
The contention between the parties in the appeals has to do with the expression “hear and disposed of within sixty (60) days” and “…. all final appeals…” Whereas appellants contend that both the decision and reasons for the said decisions must be given by the Court of Appeal within sixty (60) days of the date of delivery of the judgment by the Tribunal and that the Court of Appeal can only adopt the practice of giving
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judgment and deferring the reasons to a later date where it is a final Court of Appeal – as in the case of National and State Houses of Assembly election petitions the respondents argue that the power of the Court of Appeal under Subsection (8) of Section 285 is not so limited but extends to all appeals against final decisions of the election Tribunals in contradistinction to the decisions rendered by those Tribunals in interlocutory matters.
It is settled law that the object of interpreting statute or the Constitution is to discover the intention of the legislature, which intention is usually deduced from the language used in the statute or Constitution. Therefore where words used in the constitutional provisions are clear and unambiguous they must be given their ordinary plain meaning so as to avoid reading into the provisions meanings not intended by the lawmakers. The above clearly means that where the words used in the provision are clear and unambiguous, the question of interpretation becomes a non issue as there is nothing to be interpreted or constructed as the Court is duty bound to assign the words used in the provision their ordinary plain
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meanings.
In my judgment, the words deployed by the legislature in Section 285(7) and (8) of the 1999 Constitution are very simple and straight forward and unambiguous and therefore admit of no special construction or interpretation. They simply mean what they plainly stated. Subsection (7) of Section 285 means simply that it is obligatory on the Court of Appeal or the Supreme Court to hear and determine an appeal arising from an election petition matter within sixty (60) days from the date of the delivery of judgment by the election Tribunal or Court of Appeal. The provision makes no distinction between an interlocutory decision of the Tribunal and the final decision of the Tribunal or Court of Appeal. Also to be noted is the use of the words “shall” and “within” in the said subsection which means that the provision is mandatory as it admits of no discretion whatsoever. The word “within” means a decision rendered by the affected Court outside the assigned sixty (60) days is null and void. It is settled law that the time fixed by the Constitution, which is the fundamental or supreme law of the land, cannot be altered, extended, expanded, elongated etc by
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any Court in the purported exercise of a discretion to that effect.
When Section 285(7) of the 1999 Constitution (as amended) talks of a decision of a Court it means the decision and the reasons for that decision. A decision is arrived at through a demonstrable process of reasoning based on the facts proven in evidence and the applicable law. It follows therefore that a decision without the reasons for same is in law, no decision at all. Therefore when Section 285(7) of the said 1999 Constitution assigned sixty (60) days within which an appeal must be heard and disposed of (concluded) decided/determined, it clearly means that both the decision/judgment/determination etc of the Court and the reasons for same must be given by the Court concerned within the assigned sixty (60) days or less but not more.
Turning now to Section 285(8) of the said 1999 Constitution, the words “the Court” used in the opening of the subsection refers, in my judgment to both the Court of Appeal and the Supreme Court depending on the facts of the case. The Court of Appeal when it sits as the final Court of Appeal such as in appeals arising from the decisions of election
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Tribunals in relation to National and State Houses of Assembly elections, and the Supreme Court when it sits to determine appeals arising from the decisions of the Court of Appeal in relation to governorship election petition matters. The expression “final appeals” therefore do not relate to final decisions of the election Tribunals as canvassed by the respondents’ in contradistinction with their decisions on interlocutory matters. The words relate to the final Court beyond which there is no further appeal; The last chance/bus-stop.
What does the expression or phrase “all final appeals” as used in Section 285(8) of the 1999 Constitution, as amended mean? The expression is not defined in the Constitution neither has it been interpreted by this Court before now. To get to the meaning of the expression, it is necessary to know what the words “final” and “appeal” mean.
“Final” as defined by Webster’s New Twentieth Century Dictionary Unabridged Second Edition at page 686 – 687 includes:
a. 1. Pertaining to the end or conclusion; last; ultimate; as the final issue….
2. Conclusive, decisive; determinative; as a final judgment… that which is
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the termination; the last”.
While the word “appeal” is defined by the said dictionary at page 88 to include the following:
“1. In law, the removal of a case from a lower to a higher Court for hearing, or the right to, or a request for, such action…”
When the meanings of the two words are combined, what the expression means, becomes very obvious. In my judgment the expression means all appeals after which there is no further appeal to a higher Court or Tribunal, or decisions by a final Court of Appeal, or the last bus stop in the appeal route after which everything or appeal terminates/is at end.
It should be noted that the expression as used in Section 285(8) of the 1999 Constitution as amended is tied to “the Court” which has to take the requisite action in relation to “all final appeals”.
It should be noted also that it is an already long time practice of the Supreme Court, in the exercise of its jurisdiction, to adopt the practice of giving judgment while reserving the reasons for the judgment to a later date. The practice is therefore not novel to the Supreme Court though the same cannot be said of the Court of Appeal. For the
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Court of Appeal, it a novel practice, hence the apparent confusion.
However, over the years that the practice had been adopted and practiced in the Supreme Court, I state without fear of contradiction that there is no record of any decision/judgment of the Court rendered in the circumstances envisaged in Section 285(8) of the 1999 Constitution in which the reasons for same were given outside the normal ninety (90) days from the conclusion of evidence and final addresses as provided under Section 294(1) of the 1999 Constitution, as amended, neither is there any record of the reason for a decision of this Court being given more than sixty (60) days from the date of the decision of the Court of Appeal in election matters so far. There is therefore no precedent in support of the contention of the respondents on this issue.
What Subsection 8 of Section 285 of the 1999 Constitution, as amended is saying in relation to the facts of this case is simply that an appeal, where the Court of Appeal is the final Court of Appeal, such as in appeals relating to National and State Houses of Assembly election petition matters, the Court of Appeal, like the Supreme
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Court, may adopt the practice of giving its decision but deferring the reasons for the said decision to a later date not exceeding the time constitutionally allotted the Court to hear and dispose of or determine/decide the matter. The decision and the reasons for the decision both constitute the judgment of the Court and must go hand in hand, and must come within the time allotted in the Constitution for both to be valid and subsisting.
In the instant case the Court of Appeal is not the final Court of Appeal in governorship election petition matters and therefore has no power under Section 285(8) of the 1999 Constitution to give a decision and defer the reasons to a later date let alone to a date outside the sixty (60) days constitutionally assigned for the hearing and disposal of the matter.
However, does the rendering of the decision outside the sixty (60) days necessarily result in the decision being a nullity?
Our attention has been drawn to the provisions of Section 294(5) of the 1999 Constitution which provides as follows:-
“(5) the decision of a Court shall not be set aside or treated as a nullity solely on the ground of
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non-compliance with the provisions of Subsection (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.”
Subsection (1) of Section 294 of the 1999 Constitution, as amended, like Section 285(7) of the said Constitution allots time within which the judgment of a Court must be delivered, which, in that case is ninety (90) days, while in Section 285 (7) it is sixty (60) days.
The question that necessarily follows is whether the provisions of Section 294(5) of the 1999 Constitution supra applies to the facts of this case or to Courts exercising jurisdiction under Section 285 of the 1999 Constitution, as amended? I think not.
Section 285 of the 1999 Constitution, as amended is a specific provision which deals with election petition matters which has long been held to be suis (sic) generis. On the other hand, Section 294 is a general provision dealing with civil proceedings and judgments thereon generally.
It is settled law that in the circumstance of this case, the specific provisions in relation to
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election matters must prevail or apply to the judgment in question and not the general provision in Section 294 which applies to civil proceedings in general. The said Section 294 has no relationship with election petition matters as against the provisions of Section 285 of the said 1999 Constitution, as amended.
Apart from the said Section 285, the other relevant Section of the 1999 Constitution relating to election petition proceedings/matters is Section 246(1)(b)(3). It is therefore my view that Section 294(5) applies in relation to the provisions of Section 294(1) only, both of the 1999 Constitution, as amended.
I therefore resolve the issue in favour of the appellants.xxxxxxx?
It should be pointed out that by the 28th day of December, 2011 when the appeal was heard, the lower court still had up to the 12th day of January, 2012 to deliver the judgment since the judgment of the Tribunal was delivered on the 13th day of November, 2011. The lower Court, however, decided to give judgment the following day, 29th December, 2011 and deferred the reasons for the decision to a later date. The lower Court therefore had about two weeks
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from 28th December, 2011 to 12th January, 2012 to deliver judgment with reasons, which would have brought it within the sixty (60) days stipulated in Section 285(7) of the 1999 Constitution, as amended.
The instant appeal was heard on Thursday, 16th February, 2012 and judgment adjourned to today, Friday 24th February, 2012 about a week, even though the sixty (60) days would be Tuesday, 28th February, 2012. xxxx?
(Underlining provided by me).
Adekeye, JSC; in His Lordship?s concurring judgment stated amongst others thus: –
?Before delving into the merits of the appeals, this Court has a duty to construe whether within the provision of Section 285 Subsection (8) of the 1999 Constitution (as amended) there is a valid judgment of the Court of Appeal Sokoto as the Election Appeal Tribunal before this court forming part of the record of appeal transmitted to this Court. The Election Appeal Tribunal Sokoto delivered a judgment against the judgment of the Governorship Election Tribunal Kebbi State. The Court of Appeal in the final analysis allowed the appeals against the judgment of the election Tribunal and
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dismissed the cross-appeal of the appellants. The lead judgment of the Election Appeal Tribunal Sokoto delivered on the 29th of December 2011 reads –
xxxThe pith and substance of the submission of the appellants on this issue are that –
1. The judgment of the lower Court delivered on the 29th of December 2011 in respect of the appeals from the decision of the Kebbi State Governorship election, though within the time stipulated for disposal of the appeals the Court failed to advance reasons for the judgment. The failure of the lower Court occasioned a miscarriage of justice.
2. The Court gave reasons for the judgment on 23rd day of January, 2012, when the statutory sixty days for the hearing and determination of the appeals had elapsed and the Court of Appeal no longer had jurisdiction to adjudicate on the appeals.
3. The period of sixty days within which the Court of Appeal ought to give reasons for its judgment from the date of the judgment of the Tribunal expired on about the 12th of January, 2012.
The Tribunal gave its final judgment in the petition on the 13th day
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of November, 2011.
The lower Court not being a final Court in the Governorship Election Petition as provided under Section 285 (7) and (8) of the 1999 Constitution as amended does not possess the power and vires to deliver a judgment without reasons. The sum total of the arguments and submission of counsel on this issue in these consolidated appeals invites this Court to interpret the provisions of Section 285 (5), (6), (7) and (8) of the 1999 Constitution as amended.
By inserting Section 285 into the 1999 Constitution, the legislature made provision for the establishment of election Tribunals which shall have original jurisdiction to the exclusion of any Court or Tribunal to hear and determine election petitions emanating from National Assembly Elections. Similar Tribunals were established in each State of the Federation to hear and determine governorship and legislative houses election petitions. The section gave the composition for the National Assembly, Governorship and Legislative Houses Tribunals and the quorum and stopped there. By the Constitution of the Federal Republic of Nigeria First and 2nd Alteration Act 2010, the scope of the original
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Section 285 of the Constitution was extended to include Subsections 5 to 8.
I shall now re-state these relevant subsections seriatim.
?xxxx?
The foregoing constitutional pronouncement have created a timeframe for the hearing and disposing of an election petition of any cadre in the category of Courts at the first instance and at appellate level. The appellate courts in all final appeals from election trial may adopt the practice of first giving their decision and reserving the reasons thereafter to a later date. I am strengthened in this belief by the provision of Section 134 (4) of the Electoral Act which gives this privilege to the Court of Appeal.
Section 134 (4) of the Electoral Act reads:-
“The Court in all appeals from election Tribunals may adopt the practice of first giving its decision and reserving reasons thereto for the decision to a later date.”
This provision is limited to election matters in which the Court of Appeal is the final Court by virtue of Section 246(3) of the Constitution in which the Court of Appeal is the final Court. It does not
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apply to governorship elections under the amendment to the 1999 Constitution.
The Court under the Electoral Act makes reference to the Court of Appeal. This does not undermine the provision of Section 285(7) which directed that – “an appeal from a decision of an election Tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal or Court of Appeal.”
The operative word in this section is shall which when used in a statute or Constitution is a word of command. It means that in invoking Section 285 (7) “the appeal must be compulsorily heard and disposed within 60 days from the date of the delivery of judgment of the Tribunal or Court of Appeal.” The word disposed of connotes determine. Furthermore where a statute of limitation prescribes a period within which an action should be brought legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Thus an action or anything done after the expiration of the prescribed period is a nullity.
In the instant appeals, the Court of Appeal gave its decision on the
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29th of December 2011 and reserved the reasons to a later date. The lower Court decided as follows – ?
I have to emphasise that any discretion any judge has in the implementation of Section 285 (7) (8) must be exercised within the confines of the sixty days stipulated therein. The reasons for the decision must be delivered within the 60 days. …
The Court of Appeal delivered its reasons for judgment on the 23rd of January, 2012. At that point in time by simple arithmetical calculation the period of 60 days stipulated for the hearing of the appeal had expired and lapsed on the 12th January, 2012. The period between the date of delivery of the Kebbi State Governorship Election Petition Tribunal on the 13th of November 2011 and 23rd of January, 2012 when the reasons for judgment was delivered was 71 days.
The two judgments delivered by the Court of Appeal became invalid. The decision delivered on the 29th of December 2011 is not valid in that a good judgment should set out the nature of the action before the Court and the issue in controversy, review the cases for parties, consider the relevant laws raised and applicable to the case, make specific
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findings of fact and conclusion and give reasons for arriving at those decisions. There is no valid judgment without giving reasons for the judgment.
The Court of Appeal delivered its reasons on the 23rdof January 2012 after the statutory period. The reasons lapsed by 11 days hence they were given without jurisdiction. Any judgment however well written if given without jurisdiction is no judgment at all.
xxx
Where the limitation of time is imposed in a Constitution, Statute, Decree or Edict unless they make provision for extension of time, the Courts cannot extend the time.
xxx
A nullity in law is a void act, an act which has no legal consequence.
A proceeding which has been declared a nullity is void and without legal effect or consequence whatsoever. It does not confer any legal right whatsoever, or it does not impose any obligation or liability on anyone. In the instant appeals once the two judgments from which they emanated were nullified by operation of law – there is nothing left before this Court upon which the appeals could be based.
xxx
I cannot at this stage but calf to mind the interpretation of clear and
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unambiguous words in the Constitutional provisions. Where the words of the Constitution are clear, plain and unambiguous, there is no need to give them any other meaning than their ordinary, natural and grammatical construction would permit, unless that would lead to absurdity or some repugnancy or inconsistency with the rest of the Constitution. In such a situation, a Court of law is without jurisdiction or power to import into the meaning thereof what it does not say. Nothing is to be added or taken from the Statute unless there are adequate grounds to justify the inference that the legislation intended something which it omitted to express. In the instant appeals since the community reading of Section 285 (7) and (8) of the 1999 Constitution (as amended) are clear and unambiguous they ought to be given their plain and ordinary meaning.
xxx
I resolve the issue in favour of the appellants.
xxx?
The case of Husseini (supra) equally demonstrates the application by this Court, to the appeal before it, of some of the various principles of law relating to the interpretation of Section 285(7) of the Constitution, as enunciated in some
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cases the Supreme Court entertained in its appellate capacity.
Suffice it to say that applying the reasoning of the Supreme Court in the Abubakar case(supra) to the instant matter, it becomes very obvious that the judgment of this Court delivered on 1/8/2019, is nothing more than a nullity inasmuch as it was delivered outside the 60 days period from the date of the delivery of the decision of the Tribunal, the subject of Appeal No. CA/OW/EPT/FHA/10/2019.
The Respondents relying on the decision of this Court in APPEAL NO. CA/E/EPT/52/2011 ? ANDY EMMANUEL UBA v. APGA & 2 ORS., said to have been delivered on 24/2/2012, has however strongly opposed the motion before the Court. I must first say that like learned counsel for the Respondents, could not produce any Law Report in which the case in question was reported, I too did not see the said case as having been reported by the LPELR which I searched most painstakingly. It would also appear that learned counsel for the Respondents,who conceded that he had never sighted a copy of the judgment in the said case (though he submitted the case was on all four with the one involved in the
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Applicant?s motion), was not able to procure a certified copy or indeed any copy at all, of the said judgment,despite the fact that he claimed to have dispatched someone to Enugu Division of this Court, to procure a certified copy of the said judgment. This is because learned counsel for the Respondents, did not make a certified copy of the judgment in the said Uba?s case, available to the Court as at Friday the 16th August 2019, in the knowledge that the ruling in the Applicant?s motion was adjourned till Monday 19th August, 2019, at the conclusion of its hearing on Thursday, 15th August, 2019. This being the situation, the Court is clearly not in a position to appreciate the issue or issues that came up for determination in the case and particularly, whether or not it was an issue in respect of a decision of this Court delivered in contravention of the provision of Section 285(7) of the amended Constitution which in my considered view, is self-executory as it were. This is however not to say that I did not come across cases in the LPELR wherein references were made to the cases involving Andy Uba and APGA. One of such cases, and which I
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consider to be relevant for the purposes of the instant motion, is that of OBAFEMI V. PDP (2013) LPELR ? 20351 (CA) decided by this Court on 22/2/2013. In the leading ruling of the Court, the matter was introduced thus: –
?The application is to set aside the judgment of this Court delivered on the 19th day of December, 2011 and the reasons given on the 24th day of February 2012 as same is null and void. The application was brought pursuant to Order 7 Rule 1 of the Court of Appeal Rules, 2011 and under the Inherent Jurisdiction of this Court.
The grounds for the relief sought are as follows:
“1. The lower Tribunal delivered judgment in the election petition filed jointly by the 1st and 2nd Respondents on the 9th day of November 2011.
2. Being dissatisfied with the judgment of the Tribunal, the Appellants appealed to this Honourable Court via a Notice of Appeal dated of November (sic) 2011.
3. On the 19th of December 2011, this Honourable Court delivered judgment in which it allowed the Appeal and reserved reasons to a later date.
4. The reasons for the judgment of this Honourable Court was finally given on the 24th of
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February 2012, a period of 107 days after the judgment of the lower Tribunal appealed against was delivered.
5. The said judgment of this Honourable Court is in the light of the Provisions of Section 285(7) of the 1999 Constitution of the Federal Republic of Nigeria as amended null and void, same having been delivered within a period of more than 60 days after the judgment of the lower Tribunal complained about by the Appellants.
6. This Honourable Court has the inherent power to set aside its judgment that is null and void.”
In resolving the motion, the Court stated thus: –
?It is apt to start with the Provisions of Section 285(7) and (8) of the Constitution as amended at this point, which provides thus:
xxxxx
Section 246(3) of the Constitution as amended provides as follows:
xxxxx
The above constitutional provisions are plain, clear and unambiguous and should at all times be given their ordinary meaning, See…..
This Court is empowered by the above provisions to deliver its judgment and give reasons later for the judgment where it is the final Court as in National and State Houses of Assembly petitions. The
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judgment and reasons must both be given within the 60 days as provided in Section 285(7) which must also be read together in respect of the above mentioned matters.
The present application arose from a judgment of the Ogun State National and State Houses of Assembly Election Petition Tribunal sitting in Abeokuta delivered in the election petition filed jointly by the 1st and 2nd Respondents against the result of the election declared by the 3rd Respondent for a member representing Remo North State Constituency in Ogun State, delivered on the 9th day of November, 2011, Exhibit ‘C’ annexed to the Applicants’ further affidavit in support of the application. On the 19th day of December 2011, this Court delivered its judgment allowing the appeal against the judgment Exhibit ‘A’ and reserved its reasons to a later date, 24th February, 2012, Exhibit ‘B’. The Applicants have urged this Court to declare null and void the judgment of this Court for the reason that the reasons were given outside the 60 days constitutionally allowed the Court to entertain election appeals, matters or issues arising therefrom. The question that arises now is whether this Court can
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re-open and look into the merit of the application outside the 60 days period allowed the Court to entertain election appeals. xxx
This application was dated an dfiled on 2/3/12, as rightly averred in Paragraph 16, of the Counter-Affidavit, the Applicants have by the application, sought for us to overrule ourselves in view of the subsequent decisions of the Supreme Court to the effect that the judgment and reasons for the judgment be given within 60 days. It is noteworthy that all the decisions of the Apex Court relied upon by the Applicants’ Counsel were delivered after 24/2/12 when the reasons were given in the judgment at hand except the consolidated appeal numbers SC 14/2012, SC14A/2012, SC14B/2012 and SC/14C/2012 delivered same day. This Court has no power to overrule itself for any reason in the present circumstances.
On the face of the application and the surrounding circumstances, the sixty (60) days prescribed for the determination of appeals has long expired. On the interpretation of the constitutional provision pertaining to time above as in Section 285(7) (supra) see, PEOPLE’S DEMOCRATIC PARTY (PDP) V. CONGRESS FOR PROGRESSIVE CHANGE(CPC) &ORS. (2011) LPELR – SC
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272/2011.
This application was brought pursuant to Order 7 Rule 1 of the Court of Appeal Rules, 2011 and under the inherent jurisdiction of this Court. A Court may exercise its inherent power or inherent jurisdiction in respect of a cause or matter within its jurisdiction but, it has no power or jurisdiction over a cause or matter not within its jurisdiction. Thus, the inherent power of a Court of record is supplementary to and dependent on the statutory jurisdiction of the Court in a Court. See, GOMBE V. P.W. (NIG.) LTD. (1995) 6 NWLR 402, P.402 at422; AKILU V.FAWEHINMI (NO.2) (1989) 2 NWLR PT.102, P.22 at 97, and CA/E/EPT/52/2011 – APGA & ANOR. V. ANDY EMMANUEL UBA & ORS.(unreported decision of the full Court of the Court of Appeal) delivered on 24th February, 2011. See another decision of the full Court of Appeal delivered on 13th day of March, 2012 in CA/E/EPT/4M/2012, ANDY EMMANUEL UBA V. APGA & 2 ORS. Also CA/EK/M/1/2011- SEGUN ONI & ANOR.V.FAYEMI & ORS. (unreported) a decision of the full Court, delivered on 27th February, 2012. This Court therefore cannot exercise its inherent powers where it has no jurisdiction. I am of the firm but humble view that the
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application itself is an abuse of the Court’s process having regardto the above decision in APGA V. ANDY EMMANUEL UBA (SUPRA) where the full Court of Court of Appeal held that it had no jurisdiction to entertain a similar application as this on an alleged nullity of the judgment of the Court of Appeal in respect of Section 285(7) of the 1999 Constitution as amended. I am bound by the above decision.What the Applicants have sought is for this Court to revisit or review the decision of this Court given as far back as 19th December, 2011 in view of nullifying same thus disregarding the constitutional provisions that must be strictly observed and obeyed that is Sections 285(7) and 246(3) to the effect that the decision of this Court is final in respect of National and State House of Assembly election petitions. One must also have in mind the provisions of Order 19 Rule 4 of the Court of Appeal Rules, 2011. As averred in Paragraph 10 of the 3rd Respondent’s Counter-Affidavit, entertaining, reviewing and possibly overturning as sought by the Applicants the judgment of the Court of Appeal by this Court as I stated earlier in this ruling, can be likened to sitting on appeal over its own decision based
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on a post judgment application to set aside and or nullifying a judgment of this Court. This application arose from a decision of this Court in an election appeal, the period within which this Court could competently exercise its jurisdiction over the matter has lapsed. The issue of jurisdiction is very fundamental to adjudication and where a Court lacks jurisdiction the proceedings by the Court is null and void no matter how well conducted. See, xxxxxxxx
The resultant effect is that this Court has no jurisdiction to entertain and resolve the application brought outside the sixty (60) days from when the judgment of the Tribunal was delivered. This Court has become functus officio concerning the matter. The motion dated and filed on 2nd March, 2012 by the Applicants is hereby struck out as this Court lacks the jurisdiction to entertain same.
Parties to bear their respective costs.?
My Lord, Ikyegh, JCA; in his contribution agreed with leading ruling as delivered by the Court.
My Lord, Daniel-Kalio, JCA; in his concurring ruling stated thus: –
?The application is to set aside the judgment of this Court delivered in an election matter on the ground that
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the judgment is null and void, the reasons for the judgment having been given on the 24th of February 2012 long after the judgment was delivered on the 19th of December, 2011. The arguments in support of and in opposition to the application to set aside the judgment have been lucidly set out in the lead ruling. I consider that it will be superfluous to repeat them here.
There is no doubt that the Court of Appeal has inherent jurisdiction to set aside its judgment, in certain cases including where the judgment is given without jurisdiction thus rendering it a nullity. It has been held that cases where the Court of Appeal has inherent jurisdiction to set aside its decision, order or judgment are where it is established that the decision has been obtained as a result of fraud or misrepresentation, given without jurisdiction thus rendering it a nullity and where it is obvious that the Court was under a mistaken belief that the parties consented to the decision, order or judgment. See xxx
The Court to which the present application to set aside the judgment is made, needless to say, is the Court of Appeal. The Court that gave the judgment that is urged to set aside is the Court of Appeal
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in an election matter. See Section 285(7) of the Constitution 1999 as amended. Thus, the Court of Appeal that gave the judgment sought to be set aside is the Court of Appeal sitting for the purpose of election matters, given specific power to decide on the subject matter of elections, not the Court of Appeal exercising its normal functions as an appellate Court.
It is the law that one of the essential elements for the exercise by a Court of its jurisdiction is that 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. See xxxx
It is very clear to me that the subject matter of this application which is to set aside a judgment in an election matter, is not one to which this Court of Appeal sitting qua Court of Appeal in its normal duties, has jurisdiction over. The Court to approach is the Court of Appeal in an Election Matter established pursuant to Section 285(7) of the Constitution as amended. xxxxxxxxx I also strike out the application as this Court has no jurisdiction to entertain it.?
The Uba case it should be noted was decided by this Court on
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24/2/2011; while the Abubakar case was decided by the Supreme Court on 24/2/2012. In other words, the Abubakar case aside from being a decision of the Supreme Court which interpreted Section 285(7) of the amended Constitution extensively; and laid down the principle of law that any decision of this Court in an election petition appeal not delivered within 60 days of the date of the delivery of the decision of the Tribunal appealed against, is a nullity and void, and is no judgment, must be taken to have overruled the position of this Court in the said Uba case. This is even if the said case decided to the contrary. A fortiori, the cases in respect of which the Uba case was applied, in giving life as it were to a judgment delivered in contravention of the said provision of Section 285(7) on the basis of the position of this Court in the Uba?s, case, cannot stand. It therefore becomes obvious that inasmuch as this Court in the Obafemi case, in striking out the application to set aside its judgment in issue on the seeming or vain validity of the judgment that was sought to be set aside vis a vis the position of the Supreme Court in the Abubakar case ?
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makes the said Obafemi case, to be one that is not binding on this Court. Indeed, I cannot but observe that, I find it difficult to come to terms with the position of this Court, that an application to set aside a judgment of the Court in an election appeal must be made within the stipulated 60 days in Section 285(7) when it is the non-delivery of the said judgment within the said constitutionally stipulated period of 60 days that is the precursor or foundation for the application to set aside. In any event, given the fact that the Applicant in the motion before the Court, is seeking to set aside the judgment delivered by this Court on 1/8/2019, in respect of a decision that has not disposed of the petition to finality, I do not in the circumstance, find the Obafemi case as a precedent to follow. In other words, given the position of the Supreme Court in respect of the decision/judgment of this Court given in contravention of Section 285(7) of the amended Constitution as enunciated in the Abubakar case, and regardless of the position of this Court in the Uba?s case and any other case decided in line with, it becomes obvious or goes without saying,
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that if there had been a right of appeal to the Supreme Court, in respect of the election appeal in which the judgment of 1/8/2019, was delivered, the Supreme Court would have had no difficulty in setting the same aside.
It is an uncontestably position of the law that this Court as a superior Court of record has the inherent jurisdiction to set aside its judgment that is shown to be a nullity. In this regard see amongst many others, the case of MARK V. EKE(2004) LPELR ? 1841(SC) wherein the Supreme Court stated thus: -?So long as the judgment was obtained by merit, a trial Court will not have the jurisdiction to set aside its judgment even if there was a mistake. xxxxx
But, however, if the judgment is a nullity the Court which made it can set it aside on a motion, suo motu or on an application by any party affected by it. See xxx The law is settled that any Court of record including the Supreme Court, see xxxx has the inherent jurisdiction to set aside its own judgment given in any proceeding in which there has been a fundamental defect, such as one which goes to the of jurisdiction and competence of the Court. xxxxx Such a judgment is a
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nullity. A person affected by it is therefore entitled ex debito justitiae to have it set aside. The Court can set it aside suo motu and the person affected may apply by motion and not necessarily by way of appeal. See xxxx. This is common sense that if a Court makes an order which it has no jurisdiction or competence tomake, it has the jurisdiction to rescind the order so as to restore the status quo. See xxx. A judgment or order which is a nullity owing to failure to comply with an essential provision, such as, service of process, can be set aside by the Court which gave it or made the order..?
This Court is constituted once there is a panel consisting of three Justices of the Court sitting. Paradoxically, this Court as constituted on 15/8/2019, when the Applicant?s motion was entertained, on 9/7/2019,equally entertained the appeal in which the judgment was delivered on 1/8/2019. I don?t think this Court, in entertaining election petition appeals has lost its inherent jurisdiction as a superior Court of record. In any event, Order 6 Rule 11 of the 2016 Rules of this Court, referred to by learned counsel for the 2nd Respondent, in my
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considered view would appear to have only re-affirmed the inherent power possessed by this Court as a superior Court of record; only that a limit of 14 days,for the making of an application to set aside any judgment of the Court was introduced into the rule. Even at that, the Court is empowered to extend such period, if considered expedient.
The motion before the Court was brought the day immediately following that on which the Court delivered the judgment being sought to be set aside. I am of the considered view that an application to set aside a judgment of the Court delivered in an election appeal comes within the ambit of ?any judgment? as expressed in Order 6 Rule 11 of the 2016 Rules of this Court. The argument that judgment in election appeals are excluded from the application of Order 6 Rule 11, because the Election Tribunal and Court Practice Directions, 2011, contain no such provision, is totally misconceived. This is because the said 2011 Directions, contain no provision relating to judgment in the first place. The time frame within which this Court is to deliver its judgment in an election appeal, is provided for by the Constitution
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and since the position of the Supreme Court in the Abubakar case, is that any judgment delivered in an election appeal outside the 60 days period stipulated by Section 285(7), cannot be condoned as it were, this Court as a superior Court of record created by the Constitution, in my considered view, can properly resort to its inherent power or jurisdiction as now enacted in the provision of Order 6 Rule 11 (supra), in formally rendering ineffective, its own judgment that it has found to have been made without jurisdiction. This is more so as the setting aside of such a null and void judgment, cannot be achieved by way of an appeal to the Supreme Court given the nature of the proceedings in which the judgment in question was delivered. Doing anything to the contrary, in my considered view, would tantamount to a veiled or indirect elongation by this Court of the constitutionally stipulated period of 60 days within which the judgment in question ought to have been delivered. Indeed, it can safely be said that doing the contrary, would be a legitimisation of a contravention of Section 285(7) of the Constitution by this Court.
Flowing from all that has been
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said, is that the Applicant?s motion succeeds and is hereby granted. Accordingly, the judgment of this Court delivered on 1/8/2019, in Appeal No. CA/OW/EPT/FHA/10/2019 ? OKWARA IBE OSONWA & ANOR. V. HON. NKOLE UKO NDUKWE, is hereby set aside; as the same was delivered in contravention of Section 285(7) of the 1999 Constitution as amended.
I make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead Ruling just delivered by my brother AYOBODE OLUJIMI LOKULO-SODIPE. JCA.
I agree with his reasoning and conclusion.
There is merit in the application.
A Court shall set aside its decision, where to do so would occasion justice and fair play and uphold the integrity of the Court.
?
It is apparent that the judgment delivered by this Honorable Court on the 1st of August, 2019 was delivered outside the sixty days time frame prescribed by law.
I also set aside the said judgment in Appeal No. CA/OW/EPT/FHA/10/19.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree.
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Appearances:
O.O. AmuzieFor Appellant(s)
G.E. Ejemai, with him A.I. Badamasi for 1st Respondent/Applicant.
N.U. Nwokocha-Ahaaiwe for 2nd Respondent.
Isah Seidu, with him O.F. Igboanugo for 3rd Respondent.
For Respondent(s)
Appearances
O.O. AmuzieFor Appellant
AND
G.E. Ejemai, with him A.I. Badamasi for 1st Respondent/Applicant.
N.U. Nwokocha-Ahaaiwe for 2nd Respondent.
Isah Seidu, with him O.F. Igboanugo for 3rd Respondent.For Respondent