OLUSEGUN ADEBAYO ONI VS PEOPLES DEMOCRATIC PARTY
(2013) LCN/4116(SC)
In the Supreme Court of Nigeria
Friday, May 31, 2013
Case Number: SC. 221/2012
JUSTICES:
IBRAHIM TANKO MUHAMMAD JUSTICE, SUPREME COURT
CHRISTOPHER MITCHELL CHUKWU-ENEH JUSTICE, SUPREME COURT
MUHAMMAD SAIFULAH MUNTAKA-COOMASSIE JUSTICE, SUPREME COURT
SULEIMAN GALADIMA JUSTICE, SUPREME COURT
NWALI SYLVESTER NGWUTA JUSTICE, SUPREME COURT
MUSA DATTIJO MUHAMMAD JUSTICE, SUPREME COURT
STANLEY SHENKO ALAGOA JUSTICE, SUPREME COURT
APPELLANTS:
1. OLUSEGUN ADEBAYO ONI
2. PEOPLES DEMOCRATIC PARTY
RESPONDENTS:
1. DR. JOHN OLUKAYODE FAYEMI
2. ACTION CONGREESS OF NIGERIA (ACN)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. THE RESIDENT ELECTORAL OFFICER IDO OSI LGA
5. THE RESIDENT ELECTORAL OFFICER OSI LGA
6. THE RESIDENT ELECTORAL OFFICER IJERO LGA
7. THE INSPECTOR-GENERAL OF POLICE
8. THE NIGERIA POLICE FORCE
RATIO:
NWALI SYLVESTER NGWUTA JSC, (Delivering the Judgment of the Court): This is an appeal against the decision of the Court of Appeal, Ekiti, holden at Ado-Ekiti in which a full panel of the Court declined the invitation to set aside its judgment. I will set out as much of the facts as I consider material to this appeal.
The Governorship election was held in all the States of Nigeria including Ekiti State on 14th April, 2007. The Peoples Democratic Party flagbearer in Ekiti State, Olusegun Adebayo Oni, was returned as the winner of the election by the 3rd and 4th Respondents. First Respondent, Dr. John Olukayode Fayemi challenged the result of the election at the National Assembly Governorship and Legislative House Election Tribunal constituted for Ekiti State and sitting at Ado-Ekiti on various grounds.
In the judgment delivered on 28/8/2008, the Tribunal dismissed the petition; whereupon the 1st Respondent lodged an appeal before the Court of Appeal, Ilorin Division. On 12/2/2009, the lower Court delivered its judgment in which it allowed the appeal in part and ordered a supplementary election in 63 words, leaving the result of six (6) wards intact to be added to the result of the supplementary election in the 63 wards affected.
INEC, the 3rd Respondent, duly complied with the order of the lower Court on 24th April 2009 and 5th May, 2009. Both the 1st Appellant and the 1st Respondent contested the election with the candidates of other eleven political parties.
When the result of the supplementary election was added to the result of the six uncontested wards, the 1st Appellant was declared winner with 111,140 votes against the 1st Respondents 107,017 votes. Again the 1st Respondent challenged the result of the election. In its majority decision rendered on 5/5/2010, the Tribunal annulled the result of the supplementary election in some Wards and dismissed the Petition. First Respondent appealed to the Court of Appeal, Ilorin Division, against the majority decision of the Tribunal. By its judgment, delivered on 15/10/2010, the Court of Appeal allowed the appeal, set aside the majority decision of the Tribunal and affirmed the minority decision which pronounced the 1st Respondent the duly elected Governor of Ekiti State.
On 13th January, 2011 the Appellant wrote a petition headed ‘COMPLAINT AGAINST HON. JUSTICE AYO SALAMI & ORS FOR MY PREMEDITATED AND INJUDICIOUS REMOVAL FROM OFFICE AS GOVERNOR OF EKITI STATE’ to the Chairman of the National Judicial Council, Supreme Court Complex, Abuja. On 14th March 2011, while the petition was pending before the NJC, the appellants brought a motion on notice pursuant to the inherent jurisdiction of the Court for the following reliefs:
‘1. An order setting aside the judgment of the Court of Appeal, Ilorin delivered on the 15th October, 2010 nullifying the election of the 1st appellant as the Governor of Ekiti State.
2. An order directing a fresh panel of the Court of Appeal to hear and determine the appeal de novo.
3. An order directing the Hon. Speaker of the Ekiti State House of Assembly to take over the governance of Ekiti State pending the hearing and determining of the appeal…’
The reliefs in the application were predicated on the following grounds:
1. The judgment of the Election Appeal Tribunal was delivered without jurisdiction and in breach of the Applicants right to fair hearing.
2. The judgment of the Election Appeal Tribunal is a nullity having been predetermined and delivered through a panel which has close affinity with the 1st and 2nd Respondents.
3. The judgment is compromised and vitiated by reason of the said close affinity between the Justices who sat on the panel, especially the President of the Court of Appeal who presided over the Panel, and the 1st and 2nd Respondents, in particular Senator Bola Ahmed Tinubu, leader and the alter ego of the 2nd Respondent.
4. That the said close affinity created bias in favour of the 1st and 2nd Respondents and against the Applicant.
5. That the Honourable Justices of the Election Appeal Panel Tribunal were disqualified to sit on the panel or entertain the appeal and deliver judgment thereon by reason of issues raised in a Sworn Affidavit regarding the relationship between Senator Bola Ahmed Tinubu, a leader of the 2nd Respondent and the President of the Court of Appeal, Honourable Justice Isa Ayo Salami , who presided and delivered the lead judgment of the Tribunal.
6. That the Applicants were denied their right to a fair hearing by reason of the aforementioned averments.
7. That the judgment is a nullity for the reasons stated above…’
The motion was supported by a 48-paragraph affidavit to which diverse documents, including the judgment sought to be set aside, were exhibited.
The 1st Respondent filed a 36-paragraph counter-affidavit in which he denied all the material facts in the supporting affidavit. The 1st and 2nd Respondents filed a notice of preliminary objection to the motion on 23/3/2011 while the 3rd-6th Respondents filed their own notice of preliminary objection also on 23/3/2011. Among others, the ground for the preliminary objection is that the Court below, having delivered its judgment on 15th October, 2010 has become functus officio.
When the motion was called up on 29th March, 2011 the record of the Court below showed:
‘COURT: Learned Counsel for the Appellant was directed to refer to paragraph 43 of his affidavit where he stated that the matter is before the National Judicial Council (NJC) pursuant to a petition filed by them and asked whether this same matter is not premature.
‘LADI WILLIAMS, SAN: We concede that the outcome of the NJC decision might affect the subject matter. I agree to an adjournment.
‘CHIEF ADENIYI: I agree with the position taken by the Court, but I object to the adjournment sine die.
‘COURT: Since the Court does not know when the National Judicial Council (NJC) will conclude deliberations, the only option is to adjourn the matter sine die pending when investigations are concluded by the National Judicial Council (NJC). Consequently, this matter is hereby adjourned sine die.’ See pages 132A to 132B of the record.
The matter came up again on 27th February, 2012 and the record showed:
‘WILLIAMS, SAN: This matter was adjourned sine die to await National Judicial Council resolute (sic) on the matter. The NJC has since concluded their deliberation and produced a report. It is our intention to file CTC of the said report as it is our duty to assist the Court.
‘There are also some documents which has (sic) to come to light that we intend to file in addition to the motion filed on the 24th March, 2011. The 1st and 2nd Respondents filed a counter-affidavit while the 1st and 2nd and 3rd-6th Respondents filed a Notice of preliminary objection. The interest of justice will better be served. We are given time to file papers and written addresses.
‘BAIYESHA, SAN: Our hope this morning is for the learned Senior Counsel is (sic) to withdraw this application this morning to save us the embarrassment this application generates. Justice Ayo Salami and the Justices that sat on the matter have been thoroughly exonerated by the NJC. And we all owe him a duty to accept this fact. This application ought not to have been on the record of the Court at all. There is no need for it. It is an albatross. There is no need for chasing shadows. We therefore urge the Court to strike out this application.
‘Even if this matter will be taken is for the preliminary objection of the 1st and 2nd and 3rd-6th Respondents. Even then, this is not a trial Court where affidavit and counter-affidavit will be filed. I therefore object to any adjournment on this matter.
‘ADIGUN for 3rd-6th Respondents: I submit it is a cardinal and principle of law that there should be an end to litigation. That new facts always emerge out of human relationship. There can therefore be no end to emergence of new facts. We therefore oppose – no application for adjournment and urge the Court to dismiss the application. As it is strange, it is warred and cacogenic.
‘WILLIAMS, SAN: I submit even if we have nothing to urge the Court, we
should be heard. It is our fundamental right.
‘COURT: We have considered the facts and circumstances of this case, and we are of the firm view that there is no need to grant further adjournment in this application. The Court will take the judicial Notice of the NJC report and if there are really new documents, those new documents ought to have been filed before today. We are therefore not inclined to granting an adjournment on the matter. Parties are hereby directed to proceed to argue the application and the preliminary objection.
‘COURT: We take the preliminary objections and then the motion on notice.’
See pages 134-134B of the record.
The Court below took submissions of learned Counsel for the parties on the preliminary objection and adjourned the ruling to 3.00 pm the same day.
In its ruling delivered on schedule, the Court submissions of learned Counsel for the parties follows:
‘It follows therefore that where there is an allegation of likelihood of bias in a matter that has been determined to finality, this Court cannot exercise its jurisdiction in favour of the applicant. This case of likelihood of bias would have been relevant if it had been raised at the hearing of the appeal before judgment was delivered. Having not been raised at the appropriate stage, this application lacks merit and is, hereby dismissed. Parties to this application shall bear their individual costs.’
Against the said ruling, the appellants appealed to this Court on five grounds of appeal. Learned Counsel for the parties filed and exchanged briefs of argument. From his five grounds of appeal, learned Counsel for the Appellants framed the following three issues for the Court to determine:
‘i. Whether issues of bias or likelihood of bias are not issues touching on the fundamental rights of the appellants to fair hearing.
ii. Whether the denial of the Appellants right to fair hearing arising from bias or likelihood of bias is not a ground for a Court, including the Court of Appeal, to set aside its own judgment.
iii. Whether, on the Court of Appeal refusing to set aside its judgment on the ground stated above, the Supreme Court can properly intervene to set such judgment aside.’
Learned Counsel for the 1st and 2nd Respondents raised preliminary objection to the competence of the appeal on the following grounds:
(1)
This Honourable Court has no jurisdiction to entertain this appeal, being an appeal emanating from the decision of the Court below in Governorship election petition of Ekiti State arising from the Governorship election of 2007 to which Section 246 (3) of the 1999 Constitution is applicable.
(2)
Grounds 2, 3, 4 and 5 of the purported grounds in the notice of appeal filed by the appellants are not based on the decision of the lower Court contained in the ruling of the lower Court of 27th February, 2012 being appealed against.
(3)
No valid issues have been distilled from the appellants purported grounds of appeal. And/or that the issues distilled and argued in the appellants brief do not relate at all to the purported grounds of appeal.
(4)
Grounds 2, 3, 4 and 5 are incompetent in that the purported grounds of appeal do not flow from the decision of the lower Court.
(5)
No valid issue for determination has been formulated from ground 1 in the notice of appeal. Consequently, the said ground 1 is deemed abandoned.
(6)
There is no valid appeal before this Honourable Court.’
In the alternative, learned Counsel for the 1st and 2nd Respondents formulated one issue from the appellants five grounds of appeal in paragraph 7.01 of his brief:
‘Whether the Court of Appeal was/is right in refusing/dismissing the appellants application to set aside the judgment of the said Court in the Ekiti State Governorship election petition.’
In his brief of argument, learned Counsel for the 3rd – 6th Respondents gave notice of preliminary objection thus:
‘The 3rd-6th Respondents filed a notice of preliminary objection urging this Honourable Court to strike out this Appeal on the ground that this Honourable Court by virtue of Section 246 (1) (b) (11) & (3) of the Constitution of the Federal Republic of Nigeria, 1999 lacks jurisdiction to entertain this appeal as the cause of action arose in 2007 when the Court of Appeal was the final Court in respect of appeals on Governorship Election Petitions.’
In the alternative, learned Counsel formulated the following issue for determination:
‘Whether having regard to the provision of Section 246 (3) of the 1999 Constitution this Honourable Court has the jurisdiction to hear and determine this appeal.’
At the hearing of the appeal on 4th March, 2013, learned Counsel for the parties identified their respective briefs, adopted and relied on same and each urged the Court to decide in favour of his clients. Learned Counsel for the 1st – 2nd Appellants and 3rd-6th Respondents argued their preliminary objections in their briefs. Learned Counsel for the appellants filed a reply to each set of preliminary objections.
A preliminary objection to the competence of an appeal is a pre-emptive strike aimed at scuttling the appeal in limine. See Habib v. Principal Immigration Officer (1958) 3 FSC 75 or (1958) SCNLR 219; Mobil Oil (Nig) PIc v. IAL 36 Inc (2000) SCNJ 124; Nwosu v. Imo State Environmental Authority (1990) 2 NWLR (Pt. 135) 688.
I will therefore consider the arguments for and against the preliminary objections. The appeal will be heard and determined on the merit if the preliminary objections are not sustained.
Learned Senior Counsel for the 1st and 2nd Respondents predicated his preliminary objection on six grounds. He argued the six grounds of objection seriatim:
In ground 1 on Section 246 (3) of the Constitution (supra), learned Senior Counsel submitted that the power of a Court to adjudicate on any matter is determined by the law or statute that creates that Court. He stated that jurisdiction is so fundamental in the adjudicatory process of the Court that any matter decided upon by a Court outside the purview of the enabling Statute is null and void and of no effect whatsoever. He cited Madukolu v. Nkemdilim (1962) NSCC 374 at 379 for the three conditions which must be present for the Court to adjudicate on a matter before it:
‘1. The matter is properly constituted as regards numbers and qualification of the numbers if the number and no member is disqualified for one reason or another; and
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
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