SALMAN ABDULFATAI & ANOR. V. AIYELABEGAN KAYODE A. & ORS. (2012)

SALMAN ABDULFATAI & ANOR. V. AIYELABEGAN KAYODE A. & ORS.

(2012)LCN/5423(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of May, 2012

CA/IL/M20/2012

RATIO

COURT: POWER OF THE COURT TO SET ASIDE ITS JUDGMENT

My learned brother, I.I. Agube JCA, in the case of Mallam Suleiman Bolakale Salami vs. Alhaii Abdulrahaman Sule CA/IL/M61/2011, an unreported decision of this Court, delivered on 5/3/2012, took his time to educate all on when a court, including appellate court, can assume power to review its earlier judgment and set it aside. On page 21 of that judgment, he said:

“…the law is trite and it is equally indubitable as has been conceded by the learned counsel to the Respondent, that every court including the court of Appeal has the inherent jurisdiction to set aside its judgment where there has been fundamental defect in the proceedings, such as where the Court lacked jurisdiction to entertain the appeal…Apart from the jurisdiction factor this Court also has inherent power to set aside its judgment on grounds of fraud or misrepresentation… and by reason of mistake or incompetence to make an order in the appeal…Skenconsult (Nigeria) Ltd vs. Ukey (1981) 1 SC 6; ACB Plc. vs. Losada (Nig.) Ltd. (1999)0 SCNJ 20 9 at 225 Ojiake vs. Ogueze (1962) 1 All NLR 58; Saliyum vs. Mashi (1975) 1 NILR; Olufumise v Falam (1990) 3 NWLR 1; Akin Olugb ade vs. Onigbongbo Community (1974) SC 1; Agunbiade vs. Okunogas Co. (1961) 1 All NLR 110; Momodu vs. Momoh (1985) 5 NWLR (Pt.430 649 and Obimonure vs. Erinosho (1966) 1 All NLR 250.

My lord went further on page 22 of the judgment to state the provisions of Order 19 Rule 4 of the Court of Appeal Rules, 2011.

‘The court shall not review any judgment, once given and delivered by it, save to correct clerical mistakes 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 and 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.”

And he added:

‘By the foregoing provisions, if it is clear and unambiguous that after delivery, of the judgment the Court cannot review its decision, as the only option left for an aggrieved party like the Applicant in this application is to file an Appeal, except in some situations as provided in the Rule above…”

Of course, in the case of CA/IL/EPT/SH/1/2012, being an election appeal arising from election to the House of Assembly, the decision of this court is final, pursuant to section 246(3) of the Constitution (as amended), as such there is no right of appeal to the Applicants That may explain the apparent desperation of the applicants to seek the frustration of that judgment or nullification of the same by their Motion of 30th April, 2012, which, to all intents and purposes, as expressed by Applicants’ Counsel in paragraph 4.16 of their Address of 14/5/2012 is meant to invoke your lordships, powers to set aside the judgment/order for being an infraction of the Applicants’ fundamental right to fair hearing and not being a live issue in the appeal to be decided upon by the honorable court and as such a nullity.” PER ITA G. MBABA, J.C.A

COURT: RULES AND PRINCIPLES OF COURT RELATING TO RAISING ISSUES SUO MOTU

The rules and principles of court relating to bar against raising issue(s) suo motu by the court and using the same to decide a case without calling for address of the parties (counsel) thereon, first, applies mostly, to issues of facts and, of course, issues of law which require evidence of parties and/or submission of their counsel, to enable the court navigate, safely to safe legal harbor and conclusion(s). It does not apply where the evidence has already been supplied and the court is bound to apply the evidence to the law to pronounce a verdict or decision.

It is not expected of the court to seek address of counsel on how to pronounce its decision, Neither is it expected of a court to call for address on how to evaluate evidence and pronounce judgment based on evidence adduced in Court. See the case of People Democratic Party vs Senator Dahiru Bako Gassol & Ors CA/YL/31/2011, unreported decision of this court, delivered on 13/9/2011 (page 53), where we heard:

“Appellants’ Counsel had no business in evaluating the evidence before the court….his duty was to lead and produce the evidence for the court to evaluate and use… Of course, that is correct. It is within the exclusive province of the trial judge to evaluate evidence adduced before him in a trial, and every document produced before the court is part of the evidence, and subject to scrupulous scrutiny of the judge, such that whatever the magnifying lances of the judge finds in/on the document, relevant to the determination of the issues in controversy, justly and fairly, has to be invoked and applied accordingly.” PER ITA G. MBABA, J.C.A

APPEAL: MEANING OF AN APPEAL

In the case of HOPE DEMOCRATIC PARTY MR. PETER OBI & ORS. (2011) 18 NWLR (PT.1278) 80, held 9 the Supreme Court said that ‘appeal’ means ‘…a complaint against a decision arising from the matter in dispute between the parties’. PER ITA G. MBABA, J.C.A

PROCEDURE: EFFECT OF AN APPLICATION THAT IS AN ABUSE OF PROCESS

Ordinarily, when the court has no jurisdiction to hear an application, the same is struck out, but where it is established that the application is an abuse of the process, the appropriate remedy is to dismiss it.. PER ITA G. MBABA, J.C.A

Justices

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

Between

1. SALMAN ABDULFATAI
2. PEOPLES’ DEMOCRATIC PARTYAppellant(s)

AND

1. AIYELABEGAN KAYODE A.
2. ACTTON CONGRESS OF NTGERTA (ACN)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent

ITA G. MBABA, J.C.A, (Delivering the Lead Ruling): On 21st April, 2012 (Saturday) this Court delivered judgment in Appeal No CA/IL/EPT/SH/1/2012 – an appeal against the decision of the National and State House of Assembly Election Petition Tribunal, Kwara State, which had struck out the Petition of the Petitioners (1st and 2nd Respondents herein) on 22/2/12, alleging that the same (petition) was no longer maintainable, by reason of some extant decisions of the Supreme Court in case of ANPP VS. GONI and KASHIM SHETTIMA VS GONI (Consolidated) in Suit Nos SC.1/2012 and SC.2/2012.
It is worth stating that the said Petition had earlier been heard to completion by the first Election Tribunal which decided that the elections were inconclusive in two wards, that is, BALOGUN ALANAMU WARD and OLOJE WARD at in Ilorin North/West Constituency of Kwara State; that fresh elections be conducted in the two wards within 90 days from the date of the Judgment to enable the Independent National Electoral Commission (INEC) (the 3rd Respondent herein) determine the winner of the House of Assembly election in that Constituency – that is, after the fresh elections the candidate who scores the highest number of valid votes cast (from both the original elections of 26/4/11 and the bye election) from all, the seven wards.
That decision of the 1st election tribunal was the subject matter of Appeal No EPT/CA/IL/SH/13/2011, which nullified that order of the 1st Election Tribunal and ordered that a new Election Tribunal be empanelled to retry the petition on the merit. The decision of this Court, in EPT/CA/IL/SH/13/2011, referred above, was delivered on 6/1/2012
The 2nd Election Tribunal panel was therefore set up, specifically, to carry out the said order of the Appeal Court, but the panel, suo motu, declined jurisdiction to hear the Petition and struck it out, claiming the same was no longer maintainable by reason of the extant Supreme Court decisions (supra) which had interpreted the provisions of section 285(6) of the 1999 Constitution (as amended) to the effect that the 180 days lifespan allowed for hearing of a petition cannot be extended, that that Petition had expired as at when the retrial was ordered, having been filed on 18/5/11. That 2nd decision by the 2nd Election Tribunal became the subject matter of another appeal – Appeal No. CA/IL/EPT/SH/1/2012, which was heard by us and determined on the said 21/4/12 in favour of the Appellants. While we allowed the Appeal and set aside the ruling of the 2nd tribunal, we also set aside the decision and order of this Court in the said Appeal No. EPT/CA/IL/SH/13/2011 (which had sent back the petition to the 2nd Election Tribunal for retrial) because, going by the recent decisions of the Supreme Court in ANPP VS GONI (supra) and KASHIM SHITTIMA VS. GONI (supra), the life span of the Petition had lapsed as at the 6/1/12 when this Court took that decision and ordered the retrial. The decision/order therefore had become still-born and a nullity, by reason of want of jurisdiction to make such order. We therefore held:
“And to the extent that the decision and order of this Court delivered on 6/2/12 was reached without jurisdiction, in view of the recent decisions of the Supreme Court, it is my humble view, that that defect has had a vitiating effect on the decision and order of this court in the Appeal No. CA/IL/EPT/13/2011 and the entire judgment cannot stand, as the same becomes a nullity. It is hereby set aside.
The necessary consequence of this is that the judgment of the Election Tribunal delivered on 12/11/11, which ordered a bye-elections in the two wards whereof the elections were inconclusive, revives and subsists and must be complied with by the 3rd Respondent.  Therefore the Ruling of the second Tribunal, striking out the petition on 22nd February, 2012, is hereby set aside, having been reached without jurisdiction.
Accordingly, the 3rd Respondent shall comply with the said earlier order of the Election Tribunal, delivered on 12/11/11 in the petition No. EPT/KW/SH/8/2011.”
That is the decision/judgment which the Applicants have brought a motion to pray us to set aside; that it was made per in curiam and/or without jurisdiction.
The full text of Applicants motion, filed on 30/4/12, reads:
“TAKE NOTICE that this honorable Court will be moved on the – day of – 2012, at the hour of 9’0 clock in the fore noon or so soon thereafter as may be convenient to the honourable Court to hear the Applicants through their counsel praying the honourable Court for the following orders:-
(1) Leave to apply for an order setting aside the Judgment of this honourable court delivered on Saturday, the 21st day of April, 2012 in the appeal No. CA/IL/EPT/SH/1/2012 between Aiyelabegan Kayode A. and 1 other vs. Salman Abdulfatai and 2 others for being made per in curiam and or without jurisdiction.
(2) An order of the honourable Court setting aside its order or judgment of 21/4/2012 for wrongly setting aside its previous order or judgment made on 6/1/12 ordering retrial of the election petition No. EPT/KW/SH/8/2011 between AIYELABEGAN KAYODE A. and 1 other Vs. SALMAN ABDULFATAI and 2 others, when parties directly affected by the said order or judgment of 21/4/2012 were not given the opportunity of being heard.
(3) An order of this honourable court determining whether or not this honourable court can set aside its previous order or judgment suo motu and subsequently make an order to revalidate, resuscitate or revive the order or judgment of the lower/trial tribunal which was, by the order of this Court set aside on 6/1/2012 against which parties thereto have both filed appeal and cross appeal, without affording parties directly affected by the order or judgment the opportunity of being heard before the order of setting aside of 21/4/2012 was made.
(4) And for such further other order or orders as the Honourable Court may deem fit to make in the circumstances.
GROUNDS FOR BRINGING THE APPLICATION
(1) This Honourable Court on 6th day of January, 2012 gave a final Judgment in the appeal no. CA/IL/EPT/SH/1/2012 (sic) in respect of the election petition No. EPT/KW/SH/6/2011 (sic) to the effect that the election petition be tried de-novo by another panel.
(2) This honourable court, without giving parties in the appeal No. CA/IL/EPT/SH/1/2012 fair hearing reviewed, reversed and set aside its final decision in appeal no. EPT/CA/IL/SH/13/2011.
(3) This honourable court is bound only by the Notice of Appeal in the appeal No CA/IL/EPT/SH/1/2012 and must not grant to any party that which was not raised under the grounds of appeal and issues for determination in the appeal.
(4) By principle of stare decisis, the trial election tribunal has in no way disrespected, censored or failed to comply with the order of this honourable court to retry the case as to warrant the nullification of the judgment in petition No EPT/KW/SH/8/2011 (sic) which was not in focus in the appeal No. CA/IL/EPT/SH/1/2012.
(5) The Rules of this Honourable Court allow a party to bring an application made within a reasonable time to set aside any proceedings, judgment or order of this Court.
(6) This honourable court is vested with the inherent jurisdiction to set aside its judgment or order made per in curian (sic) and or without jurisdiction.
(7) The decision/order of this honourable court contained in paragraphs 2, 3 and 4 of page 27 of the printed judgment of this court delivered on the 21/4/2012 in Appeal No. CA/IL/EPT/SH/1/2012 involving the above parties are not predicated or related to any of the grounds of Appeal filed by the Respondent or related to any of the issues for determination considered by this honourable court.
(8) The decision/order of this honourable court contained in paragraphs 2, 3, and 4 of page 27 of the printed judgment of this court delivered on 21/04/2012 in Appeal No CA/IL/EPT/SH/1/2011 (sic) involving the above parties were reached or made per incuriam (sic)on the premise that the Applicants did not have any or sufficient opportunity of contesting the grounds upon which the decisions/order of this Court in paragraphs 2, 3 and 4 of page 27 of the printed judgment were reached or made at all.
(9) The Applicants will suffer irreparable and permanent miscarriage of Justice in allowing the decision/order contained in paragraphs 2, 3 and 4 of page 27 of the printed judgment of this court delivered on 21/04/2012 to stand without an opportunity of contesting the case in the substantive appeal no. CA/IL/EPT/SH/1/2011 (sic) on any ground upon which the decision in paragraphs 2, 3 and 4 of the (sic) judgment could have been premised.
(10) The Judgment of this Court delivered on 21/04/2012 in Appeal No. CA/IL/EPT/SH/1/2011 (sic) involving the above parties cannot be used to revive the judgment of the lower/trial Election Petition Tribunal delivered on 12/11/2011 in Petition No. EPT/KW/SH/8/2011 against which the Respondents herein has appealed to this court in respect of the entire judgment.”  Upon being served with the motion papers the 1st and 2nd Respondents filed this Notice of Preliminary Objection, pursuant to sections 246(3) and 285(7) of the Constitution of Nigeria 1999, (as amended); Order 7 Rules 1 of the Court of Appeal Rules, 2011, and under the inherent jurisdiction of this court, praying for the following;
(1) An order of this Honourable Court declining jurisdiction to hear and determine the Applicants’ Motion on notice dated and filed April 30th, 2012
(2) An order of this Honourable Court dismissing the Applicants’ Motion on Notice dated and filed April 30th 2012 for being an abuse of process;
(3) And for such order or other orders as this Honourable Court may deem fit to make in the circumstances.
The grounds for bringing the Preliminary Objection were stated on the record as follows:
“(a) The case from which the Application dated and filed April 30th, 2012 emanates or purports to challenge is an Election Petition in respect of the Kwara State house of Assembly upon which final judgment on the Appeal  has been determined by this Honourable Court on April 21st, 2012;
(b) This Honourable court is functus officio in the petition having delivered its decision on April 21st, 2012 within the sixty days prescribed by the Constitution;
(c) The grounds upon which the motion on Notice dated and filed April 30th, 2012 (the Application) were presented constitute complaints and an appeal against the decision of this Honourable Court delivered on April 30th, 2012;
(d) The decision of this Honourable court in CA/IL/EPT/SH/1/2012: Aivelabegan Kavode & Anor Vs.
Salman Abdulfatai & others on April 21st 2012 is final and cannot be appealed or reopened for review or redetermination by virtue of section 246(3) of the 1999 Constitution as (amended). Thus, the instant Motion requesting this Honourable Court to review or sit in appellate capacity over its final judgment is a constitutional violation.
(e) As mandatorily required under Order 19 Rule 4 of the Court of Appeal Rules, 2011, the Applicants have not identified any clerical mistake or error arising from any accidental slip or omission in the decision of the Court of Appeal of 21st April, 2012;
(f) The Judgment of April 21st 2012 correctly represents what the Court decided. Therefore, the operative or substantive part of the decision cannot be varied or a different form substituted for it;
(g) The court of Appeal does not have original jurisdiction in House of Assembly Election matters under section 239(1) of 1999 Constitution (as amended);
(h) The Court of Appeal constitutionally has only 60 days to deal with appeals and ancillary application arising from election matters and once it expires, the court tacks jurisdiction;
(i) This Honourable Court has no inherent jurisdiction to set aside or review its judgment outside the 60 days constitutionally prescribed for hearing and delivering Judgment in the appeal;
(j) No inherent jurisdiction is vested in this Honourable Court when the substantive statutory or constitutional jurisdiction to determine the appeal had ceased to exist by reason of effluxion of time;
(k) The mode of commencing an originating process in this Court is by way of a Notice of Appeal. The Current case commenced by way of a Motion on Notice is a strange process unknown to law. As such, the current application is completely incompetent for non-compliance with order 6(2) of the court of Appeal Rules, 2011;
(1) The Applicants have failed to comply with due process of law in presenting this application before this Honourable Court;
(m) The Applicants’ Motion on Notice dated and filed on April 30th; 2012 is an abuse of Court Process, because it is unknown to law and not supported by any iota of law vesting jurisdiction or power in this Court to sit on appeal over its own final judgment.
Of course, it was necessary to hear the preliminary objection first, and so parties were ordered to file their written addresses thereon.
The Respondents/Applicants (Objectors) filed their written address on 10/5/12 and served same on the Applicants/Respondents, who responded and filed their address on 14/5/12 Applicants/Respondent, however, strayed to file an address on the main application, too, but at the hearing of the preliminary objection, restricted themselves to the address touching the preliminary objection (pages 1 to 5 thereof). As expected, the Respondents/Applicants (objectors) filed a Reply address on points of law on 16/5/12
The 3rd Respondent filed no address and its Counsel, Tunde Salako Esq urged the court to exercise its discretion on the matters, both on the preliminary objection and on the main application
At the hearing on 17/5/2012, parties, through their Counsel, adopted their addresses and moved us, accordingly.
To determine the preliminary objection Respondents/Applicants, counsel, Babatunde Irukera Esq (who settled the addresses) raised three (3) issues for consideration.
(1) Whether this honorable court has jurisdiction to review or re-open its final judgment in election petition Appeal No. CA/IL/EPT/SH/1/2012 in the absence of any accidental slip, clerical error, lack of jurisdiction or fraud? (This issue was tied to grounds (a) (b) (c)(d) (h) and (l) of the preliminary objection).
(2) Whether this honorable court has any inherent jurisdiction to deal with relief sought in the Applicants” Motion on Notice dated and filed on April 30th, 2012 under Section 15 of the Court of Appeal Act Cap. (36 L.F.N 2004 and Order 19 Rules 4 of the Court of Appeal Rules, 2011 (as amended), when the Court of Appeal’s jurisdiction to hear the election petition appeal has expired? (This issue was tied to grounds (f), (g), (l) and (j) of the preliminary objection);
(3) Whether the Applicants’ motion on notice dated and filed April 30th, 2012 constitutes an abuse of courts’ process liable to be dismissed forthwith? This issue was tied to grounds (e), (k), and (m) of the preliminary objection).
On issue 1, counsel for the Respondents/Applicants (Objectors) submitted that we have no jurisdiction to entertain the motion on notice by Applicants; that the Applicants’ motion filed on 30/4/12, by all implication seeks to confer on this court an appellate jurisdiction of the Supreme Court to review its own decision; that this court has no jurisdiction to do so, since the Constitution has categorically stated that the decision of this court in election matters of this specie is final. He relied on the provisions of section 246(3) of the 1999 Constitution (as amended) and on the Supreme Court case of Ogboru vs Uduaghah (2011) 17 NWLR (Pt 1277) 727 at 756 – 757.
Counsel said that it was not in doubt that the motion of April 30, 2012 arose from election petition appeal in respect of Ilorin North/West constituency of Kwara State House of Assembly, wherein final judgment on appeal was delivered, restoring the order for fresh elections in two wards – Balogun Alanamu ward and Oloje ward; that the decision of this court is final on such election matters. He relied on section 246(7) of the Constitution (as amended).
Counsel further submitted that by Section 285(7) of the Constitution (as amended), this Court only has 60 days to determine every appeal in respect of the election appeal after which further appeal lies to no other court; that neither this Court nor the Supreme Court has jurisdiction to sit on any such appeal after the expiration of the 60 days, as neither the Supreme Court nor this court can extend that time; that Applicants motion which is in respect of the judgment of the election petition which seeks a rehearing of the judgment delivered on April 21st, 2012 is inclusive, as the same is ancillary to the appeal. He relied on the case of ANPP vs Goni (2012) 7 NWLR (Pt.1298) (147 at 181 – 182):
“The jurisdiction of the Court of Appeal to hear and determine appeals from an election tribunal is statutory and constitutional. However, the jurisdiction so conferred on the Court of Appeal to hear appeals from the relevant tribunals is circumscribed in relation to the time or period within which the appeals must be heard and determined vide the provision of section 285(7) of the 1999 Constitution (as amended)”.
Counsel submitted that Applicants’ motion suggests to this court to re-hear the appeal already decided, so as to vary and or set aside its decision. Relying on the dictum of Rhodes Vivour JSC in the said case of ANPP vs. Goni (supra 191. Counsel said all steps to be taken in respect of an election petition must be within the same time prescribed in the section 285(6) and (7) of the Constitution, and that failure to comply robs the court of its jurisdiction; that this court delivered its judgment on April 21st, 2012 and that was on the 59th day, from the date of filing the appeal (rather delivery of the ruling by the election tribunal); that as at the 30th April when the motion by the Applicants was filed, the 60 days period, within which to determine the appeal and all ancillary applications therein, had lapsed, consequently, this court does not have jurisdiction to hear and determine this motion in the name of application to set aside the judgment; that that will be an indirect way of extending the time prescribed by the Constitution.
Counsel further submitted that this court is functus officio in the circumstances of this application, having delivered its judgment on 21/4/12. He relied again on section 246(3) of the Constitution He argued that Applicants’ motion for setting aside of the judgment constitutes an appeal against the said judgment and this is obvious from grounds 1-10 of the application. He invited us to consider each of the grounds of the applicant’s motion to find that Applicants’ complaint amounts to an invitation to re-visit, re-open or review and set aside the judgment; that this court cannot revisit, review or re-open its judgment on whatever guise, except to correct any clerical error or accidental slip. He relied on the case of Dingiyadi and Anor vs INEC & Ors (No.1) (2010) 18 NWLR (Pt. 1224) 1 at 137 where the Supreme Court said:
“A court is said to be functus officio in respect of a matter if the court has fulfilled or accomplished its function in respect of the potency to review, re-open or revisit the matter. Thus, once a court delivers its judgment on a matter, it cannot revisit or review or set aside the judgment, except under certain condition. More importantly, a court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or when the proceeding relating to the issue is an abuse of court process. ”
He also relied on the case of Uka Chukwu vs Uba (2005) 18 NWLR (Pt.956) 1; Ogboru vs Ibori (2005) 13 NWLR (Pt.942) 319 at 388.
Counsel relied on the case of Momodu vs Momoh (1985) 5 NWLR (Pt.43) 649 for the condition under which a court may set aside its earlier judgment. See also Obimoure vs Erinosho (1966) 1 ALL NLR 250, and Mallam Suleiman Balakale Salami vs Alhaii Abdulrahaman Sule Ajadi: Appeal No. CA/IL/M61/2011 per Agube JCA, who stated the conditions as follows:
(i) Where the court lacks jurisdiction,
(ii) Where the judgment was obtained by fraud or misrepresentation, or
(iii) Where the judgment was made by reason of mistake or incompetence.
Counsel argued that Applicants have not shown that this court had no jurisdiction to determine appeal No CA/IL/EPT/SH/1/2012 and have also not shown that the judgment was obtained by fraud or misrepresentation or incompetence. Thus, this court is functus officio on all the issues decided in the judgment of 21/4/2011. He relied on the case of Uba vs Etiaba (2010) 10 NWLR (Pt 1202) 343
Counsel also relied on section 239(1) of the 1999 Constitution to say that no court is empowered to sit on appeal over its own judgment. He submitted that on one hand Applicants’ motion is presented as if it is a new suit, since judgment has been entered in the appeal and the petition appeal is dead; that this court only has appellate jurisdiction over the decisions of the tribunal and not over its own decision.
On the second hand, Counsel said the Applicants’ motion in grounds 7-10 invites this court to sit as an appellate court over its own decision; that this cannot be done. He relied on the case of Otuwunmi Abogunde vs Raji Lanlokun (1958) SCNLR 117, where the Supreme Court, quoted, with approval, the English case of Badar Bee vs Habib Merican Noordin and 7 Ors (1909) AG 615, Uche vs Ojechemi (1995) 8 NWLR (Pt.412) 152 at 175: Umunna vs Okwuraiwe (1978) 6-7 SC 1; Fadiora vs Gbadebo (1978) 3 SC 219 at 235.
On issue 2, Counsel submitted that it is not in contest that Applicants, motion is predicated on inherent jurisdiction of this court, but argued that inherent jurisdiction of every court is ancillary to its statutory jurisdiction and subject matter jurisdiction; that where a court has lost its statutory or subject matter jurisdiction, it does not have any inherent jurisdiction in the matter any longer; therefore an inherent jurisdiction or inherent power of court is not and .has never been known to be a distinct or separate jurisdiction.
He submitted that by virtue of section 285(7) of the 1999 Constitution (as amended), the jurisdiction of this court to hear any complaint or other ancillary issue in an election petition appeal is 60 days and same having expired in this case, this court does not have jurisdiction to take any further step in respect of the matter. He relied on the case of ANPP vs Goni (supra); Mabera vs Obi and Standard Bank of Nigeria (1972) ALL NLR 772.
Counsel added that having delivered its judgment on the 59th day of the appeal No. CA/IL/EPT/SH/1/2012, this court had lost its jurisdiction to entertain any application in respect of the election matter, including the judgment, and the inherent power to deal with such matter is therefore lost.
He further argued that the general powers of this court under section 15 of the Court of Appeal Act and order 19 Rule 4 of the court of Appeal. Rules, 2011, to amend any “error” in the record of appeal/proceedings judgment, or even where it does not represent the correct intention of what the court decided, does not apply to the circumstances of the application of the Applicants’ because what Applicants want in the motion is not correction of clerical error or accidental slip He relied in Gombe vs PW Nig. Ltd (1995) 6 NWLR (Pt 402) 402 at 422
Counsel added that a critical look at the grounds of applicants, motion shows that they seek the setting aside of the judgment or vary and or substitute the operative substantial part of judgment with a different one, and that does not fall within the ambit of order 19 Rule 4 of this Court Rules.
On issue 3, counsel submitted that Applicants’ motion is an abuse of the court process and liable to be dismissed. He relied on the case of Saraki vs Kotoye (1992) 9 NWLR (Pt 264) 156 at 188 – 189 on the circumstances the Supreme Court held to constitute abuse of the process:
(a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or a multiplicity of actions on the same matter between the same parties even where there exist a right to begin the action;
(b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds;
(c) Where two similar processes are used in respect of the exercise of the same right,
(d) Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of facts already decided by courts below;
(e) Where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness.
Counsel also relied on the case of Central Bank of Nigeria vs Ahmed (2001) 11 NWLR (Pt. 724) 369, where, he said, the Supreme Court added another circumstance of abuse of court process, namely,
(f) Where a party improperly uses the judicial process or inappropriately does so to irritate and annoy the opponent.
Counsel argued that Applicants’ Motion falls within the (e) and (f) above as the Application is unknown to the Rules of Court and is brought to the irritation and annoyance of the 1st and 2nd Respondents (objectors); that all the issues relating to the striking out of the Petition, having been finally resolved by this Court in the judgment of 21/4/2012, it cannot be raised again and that none of the laws or rules relied upon by the Applicants supports their application; that Applicants’ were ill advised and deliberately brought the application to irritate and annoy the 1st and 2nd Respondents (objectors) to perpetuate themselves in office. He relied on UBA VS MODE (NIGERIA) LTD (2000) 12 NWLR (Pt. 680) 20 at 22.
Counsel said that, because the elections were inconclusive in two wards fresh election was ordered in the two wards. But the Applicants brought this Motion malafide (to stall the fresh elections)
Counsel urged us to dismiss the Applicants’ Motion for being an abuse of the process, and relied on the case of Saraki vs. Kotoye and Kode vs. Yusuf (2001) 4 NWLR (Pt. 703) 392 at 411; ANPP vs. GONI (supra).
He also added during the hearing of the objection that by wrongly advising the Applicants to bring this application, their counsel was in breach of the provisions of rules 15(2)(a) and 15(3)(b), Rules of Professional Conduct for Legal Practitioners , 2007.
In their reply address (settled by Abdul Wahab Bamidele Esq) Applicants submitted that the only issue for determination in the Notice of Preliminary Objection is whether this honourable Court has the power to entertain an application to set aside its judgment, based on principles of ex-debito justitiae?
Counsel for the Applicants submitted that by the provision of Order 20 Rule 5(1) of the Court of Appeal Rules, 2011, this Court has power to entertain this application, if brought within a reasonable time and before any of the parties has taken fresh step; that Section 6(6)(a) of the 1999 Constitution (as amended) obliged this Court all inherent powers and sanctions of a Court of law to entertain this kind of application. He argued that the right to bring an application to this Court under relevant laws and rules is distinct from the granting of the relief(s) or prayers sought for consideration of the Court in the application, that the Court is enjoined to consider, on merit, all applications brought before it, that the 1st and 2nd Respondents (objectors) in their Notice of Preliminary objection are already arguing the Applicants’ Motion on Notice to set aside the judgment, that this Court needs to appraise the complaint and the grounds upon which the application is brought and this cannot be done at preliminary stage.
Counsel argued that this Court possesses inherent powers to set aside its judgment in appropriate cases such as:
(1) Where the judgment is obtained by fraud or deceit, either in the Court or of one or more of the parties – that such a judgment can be impeached or set aside by means of an action which may be brought without leave. See Alaka vs. Adekunle (1959) LLR 76; Flower vs. Lloyd (1877) 6 Ch.D 297; Olufumise vs. Falana (1990) 3NWLR (Pt.136)1.
(2) When the judgment is a total nullity. A person affected by an order of Court which can properly be described as a nullity is entitled ex-debito justitiae to have it set aside. See Skenconsult (Nig.) Ltd. vs. Ukey (1981) 1 SC. 6; Craig v. Ogueze & Ors. (1943) K.B. 256, 262 and 263; Ojiako & Ors. vs. Anambra State & Ors. (1991) 6 NWLR (Pt.200) 569, 680.
(3) When it, is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade vs. Okunoga (1961) All NLR 119 and Obimonure vs. Erinosho (1966) 1 All NLR 250.
Counsel also referred to the case of Igwe vs. Kalu (2002) 7 S.C. (Pt.II) 236 AT 244, paragraph 4 and 245 paragraph 1; Auto Imp. Exp.vs Adebayo (2002) 12 SC (Pt.11) 158 at 169, where Iguh JSC said “A Court has inherent power to set aside its own order or judgment which is complete nullity… upon application.”
Also, counsel said, in the case of Associated Discount vs. Amalgamated Trustees (Nos) (2007) 7 S.C. 168 at 216 Ogbuagu JSC held:
“We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human beings capable of erring. It will certainly be shortsighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per in curiam, such counsel should have the boldness and courage to ask that such decision be overruled. This Court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to preserve an error.”
See also Alao vs. ACB Ltd. (2000) 6 SC (Pt.1) 27 at 38, paragraph 6, where Karibi-Whyte JSC, said:
“Any Court of record has an inherent power to set aside its judgment or order which is a nullity. See Skenconsult (Nig.) Ltd. vs. Sekondy Ukey (1981) 1 SC 6.”
Counsel submitted that it is trite that once a motion is filed, no matter how apparently frivolous it may be, it must be heard, determined and accordingly ruled upon one way or the other as a matter of duty on the Court. He relied on Kennedy v. INEC (2009) 1 NWLR (Pt.1123) 614 at 648.
Thus, having regard to the Preliminary Objection, Counsel submitted that the totality of the Objectors’ argument is grossly misconceived in law. Counsel conceded that the 1st and 2nd Respondents/Objectors, in their argument, have canvassed and cited cases on the principles of law on functus officio in specific instances, but that they failed to apply the principles to the instant case. He submitted that this court has the jurisdiction and power under order 20 Rule 5(1) of the Rules of this Court, to review or set aside its Order/Judgment in appropriate cases.
Counsel submitted further that the power of this Court to set aside or review its order/judgment, when expedient, is not the same thing as an exercise of appellate jurisdiction of this court; that appellate jurisdiction of this Court is exercisable only in respect of appeals, properly lodged before it, whereas the power to set aside or review its order/judgment made is inherent in the court (and in any court that makes the order/judgment). He relied on the case of Mark vs Eke (2004) ALL FWLR (Pt 200) 1455 at 1475 to 1476, where Musdapher JSC (as he then was) held:
“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 Lawani Aladegbemi vs. John Fasanmade (1988) 3 NWLR (Pt.81) 129, Victor Rossek & Ors vs. ACB Ltd & Ors. (1993) NWLR (Pt.312) 382; Okoli Ojiako & Ors vs. Onwoma Ogueze & Ors (1962) 1 ALL NLR 58. The law is settled that any court of record including the Supreme Court, see Olabanji vs. Odofin (1996) 2 SCNJ 242 at 247, has the inherent jurisdiction to set aside its own judgment given in any proceedings in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of court. See Skenconsult (Nig.) Ltd vs. Ukey (supra), ACB PLC vs. Losada (Nig.) Ltd (1995) 7 SCNJ 158 at 168. Such a judgment is a 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 waive of appeal. See Adeigbe vs. Kusimo (1965) NMLR (284), Ezeokafor vs. Ezeko (1999) 6 SCNJ 209 at 225. This is common sense that if a court makes an order which it has no jurisdiction or competence to make, it has jurisdiction to rescind the order so as to restore the status quo. See Akinbobola vs. Plesson Fisko (1991) 1 NWLR (Pt.270) 276” (Underlining by Counsel).
Counsel further submitted that even though Respondents/Objectors made heavy weather of the applicability of Section 285(7) of the 1999 Constitution (as amended) to argue the point that applicants’ application is not entertainable by this court outside 60 days for determining appeals arising from election petition, that the order or judgment of the Appeal No. CA/IL/EPT/SH/13/2011 that was set aside did not form part of the appeal in appeal No. CA/IL/EPT/SH/1/2012 as to make it an issue emanating from the decision of the election tribunal decided on 22/21/2012 (sic) (meant to be 22/2/2012) leading to the appeal No CAIL/EPT/SH/1/2012 properly before this Court for judgment on 21/4/2012.
Counsel contended that all matters and issues, arising out of the election Petition No. EPT/KWA/SH/8/2011, have been resolved and decided upon in the judgment of this court delivered in Appeal No. CA/IL/EPT/SH/13/2011 on 6/1/2012; that the judgment of this court delivered on 6/1/2012 is in compliance with the provisions of Section 285(7) of the 1999 Constitution (as amended); that it is rather the judgment of this court delivered on 21/4/2012 setting aside the order/judgment of 6/1/2012 in appeal No. CA/IL/EPT/SH/13/2011 that can be righty said to be in violation of Section 285(7) of the 1999 Constitution (as amended) and therefore a nullity for violating Section 285(7) of the Constitution
Counsel submitted that the Respondents/Objectors gravely and grossly misapplied the provision of Order 19 Rule 4 of the Rules of this Court to the instant application, whereas the Order/judgment of this honourable court delivered on 21/4/2012 is in clear terms and not in need of seeking clarification of the intention of this Court, or of seeking correction of any clerical error or mistake as there was, respectfully, none in the judgment. Rather, counsel submitted, that applicants’ application is meant to invoke the courts’ power to set aside its order/judgment for being an infraction of the applicants’ fundamental right to fair hearing and not being a live issue in the appeal to be decided upon by this court and as such a nullity
Counsel conceded, as argued by the Respondents/Objectors that the decision of this court in respect of appeal arising from Election Petition is final by virtue of Section 246(3) of the Constitution of Nigeria, 1999 (as amended) However, he said, there is no time limit for bringing an application to set aside judgment of this Court, vide Order 20 Rule (1) of the Rule of this Court, 2011 He submitted that the instant application of the Applicants is not an election petition, or appeal against the judgment or order of this Court, but rather an application properly brought for setting -aside the judgment of this court, considered to be a nullity or made per in curiam or without jurisdiction in respect of an order or judgment not before the court and in which parties were not allowed to address the court thereon at all.
Counsel appreciated that all the cases cited by the objectors on the power of this court to set aside its order or judgment are not cases decided on election petition, outside statutory period prescribed or stipulated as on the instant case Applicants also appreciated that the prayer of this court to finally dispose of all appeals arising from election petition within 60 days of decision of the Election Tribunal in context of section 8(1)(c)(i) of the Amended constitution 2010 (2nd Alteration) and section 287(5)(sic) of the 1999 Constitution, is different from the power of this court to set aside or review its judgment in appropriate circumstances, as provided for under Order 20 Rule 5(1) of the court of Appeal Rules, 2011
He submitted that the instant application is not predicated on the complaint against the decision/order/judgment of this court as an Appellate court per se, rather, this application is grounded on the power of this court to set aside its order/Judgment which is shown to be a nullity irrespective of the nature of the case reading to the appeal.
Counsel proceeded to list what he termed the distinguishing characteristics and peculiarities of the instant application that make it proper for consideration to be, humbly and exceptionally, granted;
1) The order of the Lower Tribunal in EPT/KW/SH/8/2011 delivered on 12/1/2011 (sic) was set aside by this court on 6/1/2011 (sic)…
2) Appeal No CA/IL/EPT/SH/1/2012 decided on 21/4/2012 by this court did not concern and had nothing whatsoever to do with the judgment of the lower election tribunal decided on 12/11/2011.
3) None of the parties particularly the Applicants herein was invited or allowed by the court to address it on the propriety or otherwise of reviving the order/judgment of the lower Tribunal decided on 12/11/2011 which has previously been set aside by this court on 6/1/2012
4) None of the parties particularly the Applicants was invited allowed or by this court to address it on the propriety or otherwise of this court setting its previous order/judgment of 6/1/2012. aside.
5) As at 21/4/2012 when this court suo motu set aside its Order/Judgment of 6/1/2012, 60 days allowed by Section 285(7) of the Constitution to determine all appeals arising from election petition has lapsed.
6) The objectors as Appellants in the Appeal No. CA/IL/EPT/SH/1/2012 did not pray for setting aside of the order/judgment of this court made on 6/1/2012 and the Applicants herein were not given any opportunity of addressing Court before the order setting aside was made.
7) There was serious violation of the Applicants’ fundamental right to fair hearing guaranteed by Section 36(1) of the Constitution.
8) This honourable court has exercised power to set aside its order or decision made on 6th day of January 2012 in the appeal No CA/IL/EPT/SH/1/2012 (sic) on 21/4/2012 in the appeal No EPT/KW/SH/6/2012 (sic).
Counsel submitted that by the preliminary objection, the objectors are to show to this court reasons upon which the incompetency of the instant application can be deciphered and not as the have attempted to pick holes in the merit of the application that by dwelling on the latter rather than the former, the objectors had abandoned the preliminary objection by strangely arguing against the merit of the application, when they did not file counter affidavit in opposition to the application Applicants argued that the Rules of court does not permit or allow preliminary objection to this kind of application as preliminary objection only applies against the hearing of appeal in this court He relied on Order 16 of the Rules of this Court
Applicants urged us to discountenance the objection and dismiss same and allow the Applicants’ motion to be heard on the merit.
The Respondents/objectors’ Reply on points of law observed that the Applicants were completely silent on their (objectors) Issues 1, 2 and 3: that, thus, the Objectors had established their said issues –
i) That this court is functus officio of the election Petition which this application relates or is ancillary to
ii) That this court has no inherent jurisdiction in the circumstances of this case as it no longer has statutory or subject matter jurisdiction to hear the election petition appeal.
iii) The Applicants’ application dated 30th April, 2012 seeking leave to set aside the judgment of this court of 21/4/2012 is therefore an abuse of court process. On this Respondents/Objectors relied on the Supreme Court case of Okongwu vs NNPC (1989) 4 NWLR (Pt. 115) 296 at 309’… every material point canvassed in an appellants brief which is not countered in the Respondent’s Brief is deemed to have been conceded to;
See also FBN PLC. VS. AKINYOSOYE (2005) 5 NWLR (PT.918) 340 at 381; EIGBE VS. NUJ (2008) 5 NWLR (PT. 1081) 604 at 625.
Counsel also submitted that, in exceptional circumstances, the court can raise an issue suo motu and act on it without calling for address by the parties e.g. where the same touches on law or jurisdiction. He relied on the case of EFIOM VS. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION (2010) 14 NWLR (PT.91225) 106 at 133 – 134;
“While the court has a duty heard to give parties opportunity to be on any issue it raises suo motu, a failure to do so does not necessarily lead to a reversal of a decision. To warrant an appellate courts’ reversal of its decision, the appellant must go further to show that the failure to hear him on the point occasioned a miscarriage of justice…. As indicated above, this principle that the court ought not to raise an issue suo motu and decide upon it without hearing from parties apply mainly to raise issue of law or jurisdiction suo motu and without hearing the parties decide on it…” See also TUKUR VS. GOVERNMENT OF GONGOLA STATE (1984) 4 NWLR (Pt. 117) 517.
(1) Are the Applicants, by their Motion of 30/4/2012, seeking to make us sit on appeal over the order/judgment we reached in Appeal No CA/IL/EPT/SH/1/2012 on 21/4/2012?
Put differently is this court functus officio on the issue(s) or substance of the Applicants’ motion filed 30/4/2012?
(2) And is their application an abuse of court process?
I had earlier reproduced the contents of the Applicants’ Motion filed on 30/4/2012 in this Ruling, together with their prayers relief(s) sought, therein) and the grounds for the prayers. The sum of the Respondents/Objectors arguments against the hearing of the application is that:
(1) Since the Applicants do not call on this court to correct clerical errors, or accidental slip in the judgment, or to jettison the judgment because it was obtained by fraud or in lack of jurisdiction as permitted by law, to hear it or entertain it would mean sitting on appeal over the judgment in Appeal No. CA/IL/EPT/SH/1/2012 of 21/4/12, and this cannot be done:
(i) Because we are funtus officio in the case,
(ii) Our jurisdiction over the issues, be it statutory and/or flowing from the subject matter, relating to Appeal No CA/IL/EPT/SH/1/2012, has been spent and so there remains no inherent jurisdiction to revisit, re-open or review any of the issues decided in the judgment, having determined them finally on 2/4/12
(iii) The matter(s) decided in CA/IL/EPT/SH/1/2012, being election appeal of which only 60 days was available to the court from the date of the judgment of the lower tribunal on 22/2/2012 to hear the appeal, and the judgment of 21/4/2012, having been delivered on the 59th day of the Appeal, this court cannot entertain any matter on the Appeal or ancillary to it after the 60 days, and the Applicants’ Motion having been filed on 30/4/2012 (after the 60 days) permitted by Section 285(7) of the Constitution (as amended), we lack jurisdiction to entertain or hear the same.
The Respondents/Objectors also argued, strongly, in view of the above, that the motion is an abuse of the process, taken out malafide, to irritate and annoy the Respondents/Objectors, while the Applicants keep enjoying the office they occupy in the State Assembly That means, as long as the fresh elections ordered in the two wards of Balogun Alanamu and Oloje wards of Ilorin North West Constituency are not held to determine the true winner of the general elections to represent the Ilorin North/West Constituency, the Applicants will be occupying that office unlawfully, having earlier been declared winner by the INEC.
The Applicants’ main reply to these weighty points is seen in their lone issue for determination, which appeared not to contest the Respondents/Objectors 3 points (issues), or played the card of silence. Applicants’ bother was ‘whether this honourable court has the power to entertain an application to set aside its judgment based on principles of ex debito justitiae?
Of course, the Applicants proceeded to answer the poser in the affirmative, with beautiful decided authorities. Whether that is the core or live issue in the Preliminary Objection against Applicants’ Motion of 30/4/12, to enjoy the benefits of those brilliant authorities, appears to be the challenge of this preliminary objection.
I have already stated what I consider the live issue(s) to be considered to determine the preliminary objection, that is, whether this court is functus officio on the issue(s) or substance of the Applicants’ Motion filed on 30/4/2012 and whether the said Motion constitutes an abuse of the process?
Applicants’ in the course of their argument of the preliminary objection, just as the Respondents/Objectors, strayed into the arena of the substantive motion, (as if to explain the sole or main motive of the application), when their counsel submitted as follows in paragraphs 4.15 to 4.18 of their Address (pages 7 and 8):-
“4.15 The 1st and 2nd Respondents/Objectors gravely and grossly misapplied the provision of Order 19 Rule 4 of the Rules of the court to the instant application whereas the order/judgment of this honourable court delivered on 21/4/2012 is in clear terms and not in need of seeking clarification of the intention of your lordships or seeking correction of any clerical error or mistake as there was respectfully non in the judgment.
4.16   Per contrariwise the Applicants’ application is meant to invoke your lordships’ power to set aside its order/judgment for being an infraction of the Applicants’ fundamental right to fair hearing and not being a live issue in the appeal to be decided upon by the honourable court and as such a nullity. (Emphasis mine).
4.17   It is conceded as argued by the 1st and 2nd Respondents/Objectors that the decision of this court in respect of appeal arising from election petition is final by virtue of Section 246(3) of the Constitution of Nigeria, 1999 as amended. See also Section 8(1)(c) (i) of the Constitution of the Federal Republic of Nigeria, 2010 (2nd Alteration). However’ there is no time limit for bringing applica6on to set aside judgment of this court of law vide Order 20 Rule 5(1) of the Court of Appeal Rules, 2011
4.18 It is an submission that the instant application of the Applicants’ is not an election petition or appeal against the judgment or order of this court but rather an application properly brought for setting aside the judgment of this court considered respectfully to be a nullity or made per in curiam or without jurisdiction in respect of an order of judgment not before the court and in which parties were not allowed to address the court thereon at all.”
With such vent/window into the mind-set and motive of the Applicants, that what they want to attain by the Motion is “not in need of seeking clarification of the intention of your lordships or seeking correction of any clerical error or mistake, as there was, respectfully, non in the judgment. Per contrarywise, applicants application is meant to invoke your Lordships power to set aside its order/judgment for being an infraction of the Applicant’s fundamental right to fair hearing and not being a live issue in the appeal to be decided upon by the honouralbe court and as such a nullity.”  Applicants’ real intention in the motion is disclosed, as the above summarized the prayers in the motion and grounds 6 to 10 in support And, that clearly, and undoubtedly, places the Motion in the arena (or in the same category) of an appeal against the judgment and decision of this Court in the Appeal. That means, this court has to rehear the appeal and review its findings and decision to appreciate how the parties, rights of fair hearing were handled; what were the live issues in the appeal and whether the issues were properly determined, and whether the decision reached was not a nullity
Learned counsel for the Applicants had conceded that the decision arose from an election petition and that this court is the final Court on the type of matter (State House of Assembly election), by virtue of section 246(3) of the Constitution of the Federal Republic of Nigeria, 2010 (2nd Alteration)’ However, he said there was no time limit for bringing application to set aside the judgment of this court, vide order 20 Rule 5(1) of the Court Appeal Rules, 2011.
One begins to wonder whether the Applicants were truly honest with their intention in that submission lf the matter falls within election matters of which 60 days apply within which appeals or ancillary issues could be heard and determined, how then can Order 20 Rule 5(1) of the Rules of this court be expected to upstage and supersede the express provisions of the Constitution, which has been repeatedly interpreted by the Supreme Court to mean that the stipulated time allowed by the Constitution is like the rock of Gibraltar or Mount Zion and cannot moved or be moved? See the case of ANPP vs GONI (2012) 7 NWLR (PT 298) 147 held 1, and particularly 5;
‘Courts do not have the vires to extend the time assigned by the Constitution. The time cannot be extended or expanded, or in any way enlarged. The time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved. If what is to be done is not done within the time fixed, it lapses and the court is thereby robbed of jurisdiction to continue to entertain the matter.’
Was the Order 20 Rule 5(1) of Court of Appeal Rules made for the purpose of appeals in election petitions, which is sui generis?
Of course, the answer is in the negative, as it does not appeal the Applicants’ Motion of 30/4/12 was even contemplated by the Electoral Act, as the Election Tribunal and Court Practice Directions, 2011, which stipulates the Rules and practice direction to be followed in appeal proceedings in election matters, is completely silent on Applicants’ type of Motion,and does not envisage the filing of any application to review judgment. Thus, Applicants’ motion is a total stranger to the law as it cannot be accommodated or hosted by Order 20 Rule 5(1) of the Rules of this court to flout the provisions of Section in 285(7) of the Constitution (as amended). See the case of Goni and Anor. Vs. Shettima & Ors: an unreported decision of the Supreme Court, delivered on 8/5/12, where Applicants’ took out an application to set aside the Court’s final Judgments in SC.1/2012 and SC.2/2012. The Supreme Court held:-
“The Notices of Appeal which initiated and which culminated in the proceeding and judgment sought to be set aside do not, strictly speaking, raise issues of interpretation and or application of the Constitution warranting a panel of seven justices. The mere reference to Section 285(7) of the Constitution does not ipso facto show any controversy as to its meaning and/or its application. Besides, by the provisions of section 285(6), an appeal from a decision of the Court of Appeal to this Court lapses 60 days after the judgment of the Court of Appeal. It is a common ground that it is now many months after the judgment of the Court of Appeal. In the circumstance this application is merely academic and indeed useless. For the foregoing I consider this application as totally lacking in merit and same is accordingly dismissed. (Underlining mine).
It has been stated, repeatedly, by the Apex Court, and by this court that the rule of this court, even where applicable in any given situation and has to be obeyed, the court must be careful to ensure that the rules of court, which is a subsidiary legislation is not elevated to the level of statute or made to over ride the statute and frustrate the justice or purport of the substantive law, thereby choking or frustrating justice. See the case of Moyosore vs. Gov. of Kwara State (2012) 5 NWLR (PT.1293) 242 held 22; See also the case of DUKE VS. AKPABUYO LG (2005) 19 NWLR (Pt.959) 130 at 142-143, where the Supreme Court, held;
‘Our courts have held that rules of the court are meant to be obeyed. They provide supports in the administration of justice, but must be understood that being rules or regulations to assist the Court in its effort to determine issues or the controversies before the Court, care must be exercised in not elevating them to the status of a statute as they are subsidiary instruments. They are to be used by the Court to discover justice and not to choke, throttle or asphyxiated justice. They are not sine qua non in the just determination of a case and therefore not immutable” See also UTC (Nig) Ltd vs Pamoeti (1989) 2 NWLR (Pt.103) 244; Prof S.T. Ugba & Anor vs Gabriel T Suswam & 2 ors. CA/MK/EPT/10/2012 unreported decision of this court, delivered on 12/4/12 (pages 30-31)
Thus, as rightly argued by the learned Counsel for the Respondents/Objectors, none of the laws upon which the application is brought donates any jurisdiction to this court to hear Applicants’ motion, as the statutory and Constitutional powers which this court had to hear the Appeal No CA/IL/EPT/SH/1/2012 which was decided on the 59th day of its life span lapsed on Sunday the 22/4/12, by virtue of section 285(7) of the 1999 Constitution (as amended), and as interpreted by the Supreme Court in the cases of ANPP vs Goni (supra) and Kashim Shettima vs. Goni (supra)
And, of course, the inherent jurisdiction of this Court, pursuant to section 15 of the Court of Appeal Act or Order 19 rule 4 and order 20 Rule 5(1) of the Rules of this Court, as earlier discussed, cannot avail the Applicants in the circumstances of this case, since the prayers of the Applicants and their grounds therefore, as their counsel has admitted in their reply address, are beyond the scope of the inherent powers of this Court under the said Rules of Court – to correct clerical mistakes or errors relating to accidental slip or omission or to vary the judgment or order so as to give effect to its meaning and intention.
My learned brother, I.I. Agube JCA, in the case of Mallam Suleiman Bolakale Salami vs. Alhaii Abdulrahaman Sule CA/IL/M61/2011, an unreported decision of this Court, delivered on 5/3/2012, took his time to educate all on when a court, including appellate court, can assume power to review its earlier judgment and set it aside. On page 21 of that judgment, he said:
“…the law is trite and it is equally indubitable as has been conceded by the learned counsel to the Respondent, that every court including the court of Appeal has the inherent jurisdiction to set aside its judgment where there has been fundamental defect in the proceedings, such as where the Court lacked jurisdiction to entertain the appeal…Apart from the jurisdiction factor this Court also has inherent power to set aside its judgment on grounds of fraud or misrepresentation… and by reason of mistake or incompetence to make an order in the appeal…Skenconsult (Nigeria) Ltd vs. Ukey (1981) 1 SC 6; ACB Plc. vs. Losada (Nig.) Ltd. (1999)0 SCNJ 20 9 at 225 Ojiake vs. Ogueze (1962) 1 All NLR 58; Saliyum vs. Mashi (1975) 1 NILR; Olufumise v Falam (1990) 3 NWLR 1; Akin Olugb ade vs. Onigbongbo Community (1974) SC 1; Agunbiade vs. Okunogas Co. (1961) 1 All NLR 110; Momodu vs. Momoh (1985) 5 NWLR (Pt.430 649 and Obimonure vs. Erinosho (1966) 1 All NLR 250.
My lord went further on page 22 of the judgment to state the provisions of Order 19 Rule 4 of the Court of Appeal Rules, 2011.
‘The court shall not review any judgment, once given and delivered by it, save to correct clerical mistakes 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 and 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.”
And he added:
‘By the foregoing provisions, if it is clear and unambiguous that after delivery, of the judgment the Court cannot review its decision, as the only option left for an aggrieved party like the Applicant in this application is to file an Appeal, except in some situations as provided in the Rule above…”
Of course, in the case of CA/IL/EPT/SH/1/2012, being an election appeal arising from election to the House of Assembly, the decision of this court is final, pursuant to section 246(3) of the Constitution (as amended), as such there is no right of appeal to the Applicants That may explain the apparent desperation of the applicants to seek the frustration of that judgment or nullification of the same by their Motion of 30th April, 2012, which, to all intents and purposes, as expressed by Applicants’ Counsel in paragraph 4.16 of their Address of 14/5/2012 is meant to invoke your lordships, powers to set aside the judgment/order for being an infraction of the Applicants’ fundamental right to fair hearing and not being a live issue in the appeal to be decided upon by the honorable court and as such a nullity.”
That, on the face of it, clearly places the Applicants’ motion beyond a mere application to correct errors or slip in a judgment, as it comes in the nature of appeal, to nullify the judgment.
There is no doubt that in appropriate case and situation, this Court can review its judgment and set the same aside as earlier stated in this Ruling In fact, even in the judgment complained of, that is, Appeal No. CA/IL/EPT/SH/1/2012, this power of the Court was employed, effectively, when this court considered it appropriate to do so, in the interest of justice and in compliance with the rules of stare decisis.
The question to ask is, whether the Applicants’ Motion of 30th April 2012 is appropriate or qualifies as one envisaged by law to be entertained by this court for the purpose of advancing the interests of justice in such circumstance?.
As earlier stated in this Ruling, when it became clear that the decision/order of this Court in Appeal No EPT/CA/IL/SH/13/2011 (also written as CA/IL/EPT/SH/13/2011), which had ordered the retrial of the Petition in EPT/KW/SH/8/2011, could not stand or be enforced, having been made without jurisdiction, by reason of the Supreme Court interpretation of Section 285(6) of the 1999 Constitution, in the case of ANPP VS Goni (Supra) and kashim Shettima vs Goni (Supra), this Court had to set that judgment/decision/order aside, as a necessary consequence of the said Supreme Court decisions.
That decision also agreed with the position of Applicants; who were Respondents at the said Appeal No CA/IL/EPT/SH/1/2012 and had argued in support of the said Supreme Court decisions, and relying on same as having brought an end to the life of the Appellants’ petition, confirming the maximum life span of an election Petition as 180 days; that the Court of Appeal lacks powers to order retrial in a manner that sought to extend the period of 180 days allowed by the Constitution. Hence that the Election Tribunal was right to strike out the Petition as the same was no longer maintainable.
Of course, such consequential order setting aside the decision/order of this Court in EPT/CA/IL/SH/13/2011, for having been made without jurisdiction, being a legal consequence of the decisions of the apex court in the case of ANPP vs Goni (supra) and Kashim Shettima vs Goni (supra), could not have been subjected to the canvassing for the consent of the parties, or prior address by their counsel. Being a point of law touching on jurisdiction, it was to be raised, suo motu, and applied at pronouncement of the judgment.
The rules and principles of court relating to bar against raising issue(s) suo motu by the court and using the same to decide a case without calling for address of the parties (counsel) thereon, first, applies mostly, to issues of facts and, of course, issues of law which require evidence of parties and/or submission of their counsel, to enable the court navigate, safely to safe legal harbor and conclusion(s). It does not apply where the evidence has already been supplied and the court is bound to apply the evidence to the law to pronounce a verdict or decision.
It is not expected of the court to seek address of counsel on how to pronounce its decision, Neither is it expected of a court to call for address on how to evaluate evidence and pronounce judgment based on evidence adduced in Court. See the case of People Democratic Party vs Senator Dahiru Bako Gassol & Ors CA/YL/31/2011, unreported decision of this court, delivered on 13/9/2011 (page 53), where we heard:
“Appellants’ Counsel had no business in evaluating the evidence before the court….his duty was to lead and produce the evidence for the court to evaluate and use… Of course, that is correct. It is within the exclusive province of the trial judge to evaluate evidence adduced before him in a trial, and every document produced before the court is part of the evidence, and subject to scrupulous scrutiny of the judge, such that whatever the magnifying lances of the judge finds in/on the document, relevant to the determination of the issues in controversy, justly and fairly, has to be invoked and applied accordingly.”
In that case (PDP vs Gassol & Ors), the Appellants had queried the use by the trial court of two documents, admitted in evidence, to spot falsehood in Appellants’ testimony, and had argued that the parties should have been called upon to address the court on the differences spotted in the two documents tendered by the Appellants, instead of the court reaching a conclusion, suo motu. lt was argued by the Respondent’s counsel that such complaint, to be asked to address the court, was akin to quarreling that the court did not ask for assistance or help (of the parties and their counsel) to evaluate the evidence.
In the case of Mark vs Eke (2004) All FWLR (Pt 200) 1455 @ 1475, cited and relied upon by the Applicants, the Supreme Court clearly stated the circumstances where a court can set aside its decision, suo motu; without calling for address of parties to do so.
“…The law is settled that any court of record, including the Supreme Court…has the inherent jurisdiction to set aside its own judgment, given in any proceedings in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the court. See Skenconsult Nig Ltd vs Ukey (supra), ACB Plc vs Losada (Nig) Ltd (1995) 7 SCNJ 158 @ 168. Such a judgment is a 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… This is common sense that if a court makes a order which it has no jurisdiction or competence to make it has jurisdiction to rescind the order so as to restore the status quo…” See Akinbobola vs Plisson Fisko (1991) 1 NWLR (Pt.270) 276.
See also Effiom vs CRS. INEC (supra), where the Supreme Court said:
“While the court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu, a failure to so do does not necessarily lead to a reversal of a decision. To warrant an appellate court reversal of its decision, the appellant must go further to show that the failure to hear him on the point occasioned miscarriage of justice…. As indicted above, this principle that the court ought not to raise an issue suo motu and decide upon it without hearing from parties apply mainly to issues of facts. In some special circumstances, a court can raise issue of law or jurisdiction suo motu and without hearing the parties decide on it. Tukur vs Government Gongola State (1984) 4 NWLR (Pt 117) 517…” (Underlinings mine).
Applicants’ main complaint that warranted the Motion of 30/4/2012 centres on the fact that this court raised the legal issue on the legal consequence of the decision/order in the Appeal No. EPT/CA/IL/SH/13/2011 (having been made without jurisdiction) suo motu and set it aside, and that made the judgment of the first tribunal in EPT/KW/SH/8/2011 to revive. Appellants would have loved to be called upon to address the court before that decision/order in EPT/CA/IL/SH/13/2011 was set aside.
That was not necessary, and that failure does not and cannot justify the Motion of the Appellants, who seem to be quarreling that this court did not give opportunity to parties to help the court take decision on the fate/consequence of the decision/order for retrial of the petition in EPT/KW/SH/8/2011, made on 6/1/2012, by this court in EPT/CA/IL/SH/13/2011, after the rife-span of the petition had expired, as at November 2011.
Of course, by the authorities of the cases of ANPP vs Goni (supra) decided by the Supreme Court on 17/2/2012, and the earlier decision of the Supreme Court in the case of Shettima vs Goni (2012) All FWLR ([Pt.609) 1007, held 9 (delivered on 31/10/2011), the decision/order of this court in Appeal No. EPT/CA/IL/SH/13/2011 was reached without jurisdiction and had to be set aside by us, suo motu. And the circumstances reading decision to that was clearly spelt out in pages 25 to 27 0f the said judgment (CA/IL/EPT/SH/1/2012) complained against.
It is therefore clear that the Applicants, motion of 30/4/2012 is a form of protest/appeal against our judgment in CA/IL/EPT/SH/1/2012, seeking an opportunity to re-hear the appeal, and praying that we may come to a different decision varies or substitutes the decision complained of!
That cannot be done and is a complete affront to law and the rules of practice. It is ill advised.
In the case of HOPE DEMOCRATIC PARTY MR. PETER OBI & ORS. (2011) 18 NWLR (PT.1278) 80, held 9 the Supreme Court said that ‘appeal’ means ‘…a complaint against a decision arising from the matter in dispute between the parties’. This application therefore fits into that definition.
By order 19 Rule 4 of this court Rules, 2011.
“…A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative substantive e part of it be varied and a different form substituted.”
In a recent decision of this court in CA/IL/13/2010 (AMSOS MOTORS (NIG.) LTD. VS. MR. IDOWU AGBOOLA) (unreported), delivered on 14/4/12. I had this to say:
“Often times, some misguided persons, group including lawyers in that think litigation/court process is a game of craft and intrigues, where the vile employs his guile to deceive the court, and gain advantage over his opponent, or where law is used to oppress and suppress the truth. That, of course, is far from the intention of the law as the court is founded and built on the concept of right and justice flowing, I think, from the Mind of the Divine. That is why practitioners, on this temple, must purge themselves of vile, and stay close to that divine mind, to help them decipher truth from falsehood and have courage to apply the truth, revealed from justice in each situation, without fear or favour, affection or ill will.
All the oaths/affirmations we make and all the sound lesson we received in ethics, in the course of our training as lawyers, and even the daily swearing to oath/affirmation in court, as prelude to giving evidence, or depositions in affidavits, all point to this objective, to be true and honest in the discharge of our judicial and legal functions, and uphold truth and justice!”
I, therefore, doubt any honest disposition by the Applicants in bringing the Motion of 30th April, 2012, other than pursuing attempt to frustrate the realization of the justice envisaged in the decision of the lower tribunal in EPT/KW/SH/8/2011 on 12/11/2011 – to determine the true winner of the elections to Ilorin North/West Constituency of Kwara State, by conduct of fresh election in the 2 wards elections were inconclusive.
To that extent, Applicants’ Motion of 30/4/2012 is a gross abuse of the process of court. Apart from trying to re-litigate a matter that has been heard and concluded, and subjecting the adverse party to irritation and annoyance, frustrating or delaying the realization of the justice of the case, the application is a stranger to the law, and appears to be targeted at blackmailing the judgment, in the absence of any further right of appeal.
Ordinarily, when the court has no jurisdiction to hear an application, the same is struck out, but where it is established that the application is an abuse of the process, the appropriate remedy is to dismiss it..Accordingly, this preliminary objection is sustained, as it is meritorious, and the application by the applicants, dated 30/4/2012, and filed on the same date, is hereby dismissed for being an abuse of the process.
Parties to bear their respective costs.