SEN. DANIEL I. SAROR & ANOR v. HON. GABRIEL TORWUA SUSWAM & ORS
(2012)LCN/5325(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of April, 2012
CA/MK/EPT/11/2012
RATIO
PROCEDURE: CIRCUMSTANCES WHICH CONSTITUTES ABUSE OF COURT
To begin with, an abuse of Court process would occur in one or more of the following situation:-
- ” where the parties, subject matter and the issue in the previous and the latter suit are the same.
- Where different actions based on the same facts between the same parties are filed in different or same court simultaneously in respect of the same right and subject.
c, Where a party litigates again on the same issue which has already been litigated upon between him and the same person by facts on which a decision has already been reached.
- Where the proceeding is wanting in bona-fide, or is frivolous, vexation or amounts to abuse of legal procedure or improper legal process”.
See Ukachukwu Vs Uba (2005) 18 NWLR (pt. 956) 1 at 63 and 65. The term ‘abuse of Court process’ simply means that the process of court has not been used Bona-fide and properly” it also connotes the employment of judicial process by a party in Improper use to the improper irritation and annoyance of his opponent and efficient and effective administrative of justice” see the case of Expo Ltd Vs Pasfab Enterprises Ltd. (1999) 2NWLR (pt. 591) 449 at 462. PER MOHAMMED LADAN TSAMIYA, J.C.A
EVIDENCE: PRINCIPLES OF ESTOPPEL PER REM
This necessarily evokes the principles of estoppel per rem judicatam and which connotes that, the rights of the parties and their privies having in a previous case, been fairly and conclusively decided by a judgment of the court of competent jurisdiction, it constitutes a bar to any future action over the same subject matter involving the same parties or their privies. And it is a fundamental principle in our adjudicative jurisprudence; if this were not so, there would be no end to litigation. The three essential elements are:-
- an earlier decision on the issue,
- a final judgment on the merit, and
- the involvement of the same parties.
In this regard the above principle could be raised many a time in limine by the defendant to show that the plaintiff is ‘re-litigating an issue or issues in the present suit which have been finally and conclusively decided on the merits in a previous suit (which is earlier in time) between the same parties and their privies by a competent jurisdiction. Each of these requirements must be proved and it is not a matter to be drawn by inference (underline mine for emphasis). Once any of the requirements is not proved the defense of estoppel per rem judicatam or res-judicata, may be at large and is inapplicable. See Oloriegbe vs. Omotesho (1993) 12 NWLR (Pt. 270) 386 at 396-397. PER MOHAMMED LADAN TSAMIYA, J.C.A
COURT: WHETHER A COURT OR TRIBUNAL IS EXPECTED TO APPROBATE AND REPROBATE
Ordinarily, no Court or Tribunal is expected or allowed to approbate and reprobate, at the same time, over a given issue. That is to say, the Court cannot take a decision in favour of a given position, and in the same cause and matter, turns round to take a contrary position on the same cause and matter. It becomes completely absurd and a mockery of the judicial process, if the earlier position taken by the Court had been challenged on appeal and the same was affirmed (and a further appeal therefrom to the apex court is pending) at the time the trial court somersaults to take the contrary position! PER ITA G. MBABA, J.C.A.
COURT: DUTY OF COURT TO PROTECT ITSELF FROM ABUSE
In the case of Ugese v. Uki (2007) 8 NWLR (Pt.1037) 452, it was held that the court has a duty to protect itself from abuse and will not allow a litigant to abuse its process.
The court is expected to shield itself from the vicaries of litigants, who would readily want to use it to advance mischief and/or over-reach their opponents. By remaining firm and predictable on issues of law and principles, the court defends its integrity and impartiality in the discharge of its sacred duties and so will not be caught in the web of indecision and peradventure. PER ITA G. MBABA, J.C.A.
COURT: WHICH COURT CAN CALL THE COURT OF APPEAL TO ORDER
It is against all known judicial ethics and decorum for a lower court to assume the role of a master over its superior, and overrule the superior court or treat it with disrespect. It is only the Apex court that can call the Court of Appeal to order. Or it is the Court of Appeal, itself, on becoming aware that its decision was reached without jurisdiction or has a fundamental defect or was entered per in curiam, that can set it aside. It is necessary to keep to such tradition. PER ITA G. MBABA, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ALI ABUKAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
PHILOMENA M. EKPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. SEN. DANIEL I. SAROR
2. ALL NIGERIAN PEOPLES PARTY Appellant(s)
AND
1. HON. GABRIEL TORWUA SUSWAM
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. COMMISSIONER OF POLICE, BENUE STATE Respondent(s)
MOHAMMED LADAN TSAMIYA, J.C.A: (Delivering the Leading Judgment): This appeal has arisen from the decision of the Governorship Election petition Tribunal (herein referred to as “the tribunal”) sitting at Makurdi in Benue State of Nigeria, The decision in which the petition was struck out, was made on 28/02/2012 and the decision was reached in view of the recent decisions of the Supreme Court in Appeal No.SC/23/2012: Action Alliance Vs I.N.E.C & 4 Ors. delivered on 14/02/2012 (unreported), and the consolidated Appeals Nos. S.C.1/20I2 All Nigerian Peoples Party (A.N.P.P.) Vs Alhaji Kashim Shettima & Anor., and S.C. 2/2012 – Alhaji Kashim Shettima & 1 Or. Vs. Mohammed Goni & 4 Ors., delivered on 17/02/2012. (Unreported).
The facts of this case show that the 1st appellant (as the 1st petitioner) and the 1st respondent both were candidates in the general election to the office of Governor of Benue State, on the platform of the 2nd appellant and 2nd respondent respectively. On 27/04/2011 the 3rd respondent returned the 1st respondent as winner. Aggrieved by the decision of the 3rd respondent, the appellants filed, on 17/05/2012, a petition at the tribunal praying for the following reliefs:-
1. Your petitioners seek to nullify the elections to the office of Governor of Benue State held on the 26th day of April, 2011.
2. And you petitioners also seek to stop the 1st respondent from contesting the fresh elections that will be held following the nullification of the April 26, 2011 elections to the office of Governor of Benue State.
3. And your petitioners further seek to stop the 2nd respondent from fielding any candidate in the fresh elections to be held following the nullification of the April 26, 2011 elections to the office of Governor of Benue State.
4. Moreover, your petitioners seek to stop the 3rd Respondent from accepting the name of any candidate purportedly submitted to the 3rd respondent by the 2nd respondent for the purpose of the fresh elections to be held following then nullification of the April 26, 2011 elections to the office of Governor of Benue State as this will violate Section 31(1) and Section 33 of the Electoral Act and as it is too late for the 1st Respondent to withdraw pursuant to Section 35 of the Electoral Act.
The petition was based on two grounds, namely:-
1. that at the time of the election the 1st respondent was not qualified to contest the election, having presented a forged certificate to the 3rd respondent (INEC), contrary to Section 182 (1) (j) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. That the election was invalid by reason of non-compliance with the provisions of the Electoral Act 2010 (as amended).
Upon being served with the petition the respondents filed their respective replies to the petition,the 1st and 2nd respondents, in their respective replies filed on 14/06/2012, and by motions on notice, each raised a preliminary objection challenging the competence of the petition and the jurisdiction of the tribunal to entertain the said petition. After hearing the respective counsel to the parties, the tribunal delivered its consolidated ruling on 11/08/2011 dismissing the petition.
The appellants, being dissatisfied with the ruling, appealed to this court and on 29/09/2011, this court delivered its judgment allowing the appeal and setting aside the decision of the tribunal.
Dissatisfied with the decision of this court, the 1st respondent appealed to the Supreme Court and the Supreme Court affirmed the decision of this court and ordered that the petition be heard on the evidence.
At the resumed sitting of the new panel of the tribunal, the trial of the petition started during which the 1st and 2nd respondents each, applied by motion on notice for dismissal of the petition on the ground that the petition by virtue of Section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) had lapsed but the tribunal dismissed the application in its consolidated ruling of 08/12/2011.
On Appeal to this Court, the said ruling of the tribunal dismissing the 1st and 2nd respondents’ application was affirmed on 02/02/2012. But being aggrieved with, the 1st and 2nd respondents appealed to the Supreme Court which appeal is still pending.
The tribunal after the decision of this Court on 2/2/2012 proceeded with the hearing of the petition, when it took evidence and admitted 4 Exhibits, and both written and oral submissions of Counsel to the parties were taken. On 09/02/2012 the tribunal adjourned for judgment to the date which would be communicated to the parties.
While the appeal of the 1st and 2nd respondents against the judgment of this court dated 02/02/2012 was pending and before the delivery of the reserved judgment of the tribunal the Supreme Court delivered two land mark decisions in the said cases of Action Alliance Vs I.N.E.C. & 4 Ors in Appeal No;SC.23 /2012 on 14/02/2012 (unreported) and the Consolidated Appeals in A.N.P.P. Vs Alhaji Kashimi Shettima & Anor. and Kashim Shettima Vs. Alhaji Mohammed Goni & 4 Ors in Appeal No:SC/1/2012 and S.C. 2/2012 delivered on 17/02/2012 (unreported). Consequent upon these decisions of the Supreme Court, the 1st and 2nd respondents applied again by motions on notice before the tribunal praying that the petition be dismissed for want of jurisdiction, in view of decisions of the Apex Court in the appeals.
After hearing the arguments of the Counsel to the parties, the tribunal found that it lacked jurisdiction and on 25/02/2012 the petition was accordingly struck out.
Being dissatisfied with the decision of the tribunal striking out the petition, the appellants filed their notice of appeal on 29/02/2012 containing 5 grounds of appeal, and from the 5 grounds of appeal, the appellants formulated 3 issues for determination.
The issues are:-
1. Whether the applications of the 1st and 2nd respondents before the tribunal were not an abuse of court process and ought to have been dismissed. (Ground 1 of the grounds of appeal),
2. Whether the tribunal was wrong when it failed to accept the defence of estoppel per rem judicatum, raised by the appellants against the applications – (Grounds 2 of the grounds of appeal).
3. Whether the tribunal did not deny fair hearing to the appellants when it failed to deliver the reserved judgment of the tribunal but proceeded instead on an improper evaluation of the evidence before it – to strike out the petition – (grounds 3,4, & 5 of the grounds of appeal).
The 1st respondent on his side in his brief of argument dated 13/03/2012 filed on the same day, raised 2 issues for determination. The issues are:-
1. Whether the doctrine of Stare Decisis, the duty imposed by the Supreme Court judgements in Action Alliance Vs I.N.E.C. & 4 Ors in appeal No S.C. 23/2012 delivered on 14/02/2012, (unreported), and the consolidated Appeals in A.N.P.P. Vs Alhaji Kashim Shettima & Anor, Vs Alhaji Mohammed Goni & 2 Ors. In appeal Nos. S.C.1/2012 and S.C. 2/2012 delivered on 17/02/2012, is a different issue from the issue decided by the tribunal on 28/02/2012 such that their mutual consideration will amount to an abuse of court process or be caught by res-judicata (Grounds 1,2,3, & 5 of the grounds of appeal.
2. Whether a consideration and determination of the issue of jurisdiction after the matter was adjourned for judgment constitutes a denial of fair hearing of the appellants (Ground 4 of the grounds of appeal).
The 2nd respondent on its part filed its 2nd respondent’s brief of argument on 14/03/2012 but dated 13/03/2012. In the brief, 2 issues were raised from the 5 grounds of appeal for determination and they are:
1. Whether in the circumstances of this case, the tribunal was right in entertaining the applications of the 1st and 2nd respondents which challenged the jurisdiction of the tribunal on the basis of the recent decisions of the Supreme Court on Section 285 (6) of the 1999 Constitution (as amended). (Grounds 1 & 2 of the grounds of appeal).
2. Whether in the circumstances of this case, the tribunal denied the appellants’ fair hearing when it struck out this petition on the basis of the recent decisions of the Supreme Court on Section 285 (6) of the Constitution (as amended), (Grounds 3, 4 & 5 of the grounds of appeal).
The 3rd respondent’s brief of argument dated 12/03/2012 and filed on 13/03/2012 contained only 1 issue for determination in this appeal and the issue is :-
“Whether the tribunal was right when it held that it has no jurisdiction to entertain the petition in question outside the 180 days after filing of the petition in the light of the Supreme Court’s judgment in the application of Section 285 (6) of the 1999 Constitution (as amended)”.
The 4th respondent did not file any brief in this appeal.
On the hearing date of this appeal, the 2nd respondent informed this court that they have filed a notice of preliminary objection and incorporated the arguments in their brief.
The 2nd respondent’s notice of preliminary objection in their brief simply put is that:
1. An order striking out the appeal and or the following reliefs of the notice and grounds of appeal:-
i. An order of the court restoring the petition.
ii. A consequential order of court entering final judgment upon its evaluation of the evidence taken but not evaluated by the tribunal.
iii. In the alternative to prayer (iv) above and where prayer no (iv) becomes impracticable an order of this court compelling their Lordships of the tribunal to deliver the judgment they reserved since 09/02/2012 and which judgement was not delivered by them”
The grounds of the objection are:-
1. That this court has no jurisdiction under any circumstance to order trial denovo or continuation of trial of any petition including this petition, the subject of this appeal and judgment delivered in writing after 180 days of the filing, as prayed by the appellants in their relief sought before this court.
2. That the records of the appeal show that the petition was filed on 17/05/2011.
3. That 180 days had expired in November 2011.
4. That this court cannot order continuation of hearing of the petition after 180 days expired in November, 2011 even if this appeal has merit.
5. That the success of any appeal without the power to grant the relief prayed for by the appellants, which would result in continuation of trial of the petition, renders the appeal an academic exercise.
6. Courts do not embark on academic exercise in the light of Section 285 (6) of the 1999 constitution of the Federal Republic of Nigeria (as amended).
The 1st, 3rd and 4th respondents did not follow suit in filing preliminary objections but proceeded to argue the substantive appeal. In consequence of the objection raised by the 2nd respondent the appellants have reacted to same as per the appellants reply brief to the respondent’s briefs argument filed.
It is trite that where an objection as the instant one raises fundamental issue (s) touching on the vires of the court/tribunal to entertain a matter as the instant appeal, it is incumbent on the court to have it disposed of first as to proceed to entertain the matter in circumstances where the court tribunal has no vires to do so, comes to nought being a mere academic exercise.
The 2nd respondent in his argument contained in the brief relied on the cases of All Nigerian Peoples Party Vs Alhaji Mohammed Goni & Ors, delivered on 17/02/2012 in a consolidated appeals, Nos S.C. 1/2012 and S.C. 2/2012 (unreported) to assert that the decision finally laid down to rest all legal disputes on the correct purport and effect of Section 285 (6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Dalhatu Vs Turaki (2003) 15 NWLR (pt. 843) P.310 at 336 and Idris Vs All Nigerian Peoples Party (2008) 8 NWLR (Pt 1088) page 1 at 120 – 121 to assert that the decision of the Supreme Court are binding on this court. Mrs Margery Okadigbo Vs Prince John Okechukwu Emeka & 2 Ors (unreported) decision of the Supreme Court delivered on 27/01/2012 in S,C./33/2011, to assert this court is not competent to exercise its jurisdiction to grant relief Nos. (iii) (vi) and (v) sought by the appellants, and Maman Vs Salaudeen (2005) 18 NWLR (pt 958) p. 478 at 510, to assert that this appeal becomes academic and since this court lacks jurisdiction to entertain the reliefs even though the appeal is in exercise of the appellants’ right of appeal as the appeal will not bear any fruitful or result in the further hearing of the petition.
The appellants in their response, through their counsel, to the 2nd respondent’s objection have contended that the preliminary objection is no more than the new familiar chant of the 2nd respondent.\ “Do not hear the petition” which to the appellants, is the 2nd respondents new definition of Audi Alteram Partem, as a principle of natural justice. It was further contended by the appellants that the objection based on the interpretation and application of Section 285 (6) of the 1999 Constitution to the present petition can only be entertained only by the Supreme Court as same has been conclusively determined by this court in appeal No: CA/MK/EPT/2/2012 & CA/MK/EPT/3/2012. The 2nd respondent’s only course of action is to follow up their appeals against those decisions of this court that are pending before the Supreme Court which lapsed on 02/04/2012.
On the Supreme Court’s recent decisions on the interpretation of Section 285 (6) of the said Constitution, the appellants contended that those judgments have been much misunderstood by counsel to import the consequences that cannot be read into the said judgments. The appellants further expatiated their stand by submitting that, among the powers conferred by law on this court of appeal and the Supreme Court acting in the exercise of their appellate jurisdiction, is the power to Order a re-trial in appropriate cases, and these powers have not been taken away by Section 285 (6) or (7) of the Constitution or any other Section the Constitution for that matter. He continued further to submit that, if this Court or the Apex Court gave an Order for a re-trial on the 60th day, the tribunal can go on with the re-trial, otherwise, it will be to take away the right of appeal in election petition. They finally contended that this case is distinguishable in facts and circumstances from the recent cited cases decided by the Apex court. They urged this court to overrule the objection and dismiss it.
Having stated the arguments of both the 2nd respondent and the appellant, I now examine the merit or otherwise of the preliminary objection.
The position taken by the 2nd respondent, through its learned senior counsel, is that this court cannot grant the reliefs which will make it possible for the petition to be concluded or by denovo trial or any other means as prayed by the appellants after the expiration of 180 days from the date of filing of this petition which is 17/5/2011. Learned counsel for the appellants took a contrary view, stating that to argue so will be to take away the right of appeal in election petition, and that cannot be read into the recent judgments of the Supreme Court cited.
It should be pointed out that the appellants’ reliefs nos.(iii – v) as contained on pages 567 – 568 which were sought before this court are as follows:-
iii. An order of this court restoring the petition (already struck out on 28/02/2012).
iv. An order of this court compelling the same tribunal to deliver its judgment (adjourned and reserved on 09/02/2012, and v. In the alternative to prayer no (iv) above, an order for re-trial of the petition before a new panel of judges.
From what had happened to the petition the subject of this appeal, there is need to have a glimpse on the powers of the tribunal vis-a-vis Section 285 (6) of the said Constitution 1999 (as amended), First the Section stipulates:-
“285 (6) – An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition”
With that provision in mind, it should be remembered that the petition was filed at the registry of the tribunal on 17/05/2011 and even by the time the new tribunal adjourned on 09/02/2012 for judgment, a period of 261 days had elapsed between the date of filing and the date the judgment that was reserved. It goes without saying that, assuming the tribunal delivers its judgment on 02/02/2012, the judgment would not be possible to be executed due to effluxion of time.
Having stated the above the question now is, can this court grant the appellants relief’s Nos. (iii-V) as contained on pages 563 and 568 of the records of this appeal?
My answer is in negative, because the effluxion of time has made the reliefs nos. (iii) (v) asked for impossible. In the case of Mrs Margery Okadigbo Vs Prince John Okechukwu Emeka & 2 Ors (supra) it was held that the matter of the alternative reliefs is now being sought, i.e. for this Court as prayed in the instant case, (Supreme Court) to remit the matter to lower appropriate trial court is a clear confrontation to Section 285 (6) of the Constitution 1999 of the Federal Republic of Nigeria (as amended). And in All Nigerian Peoples Party Vs Alhaji Mohammed Goni & Ors, (supra) the Supreme Court held that, any judgment delivered outside the 180 days provided in Section 285 (6) of the said Constitution is a nullity being judgment delivered without jurisdiction. It follows therefore, where a tribunal fails to comply with the provisions of Section 285 (6) of the said Constitution, the jurisdiction to continue to entertain the petition lapses or becomes spent and cannot be extended by any court Order however well intentioned, neither can a court Order, create or confer jurisdiction on any court/tribunal on any matter where such jurisdiction has not been conferred either by statute or the Constitution. In the above judgement, the Supreme Court further emphasized that, 180 days provided by Section 285 (6) (supra) is not limited to trials but also to denovo trials that may be ordered by an appellate court.
In view of what I stated above, the matter of the reliefs Nos. (iii)-(v) now being sought by the appellants, is in clear confrontation of Section 295(6) of the Constitution (Supra). The Constitution has clearly made the stipulation for which it is not for any one, ever this court, to alter or ignore but must obey – meaning that the effluxion of time has made such reliefs being sought for, impossible to be granted, see Tanko Vs. State (2009) 4 NWLR (pt.1131) 430 at 435. Accordingly the preliminary objection is upheld on this view, I do not consider it necessary to consider this appeal on its merit for the simple reason that where a court lacks jurisdiction to entertain a claim or relief the appeal becomes academic as it will not bear any fruit or result in the further hearing of the petition. The court is not interested in determining academic question, a favourable resolution of which would have no adverse effect on the decision of the lower court.
See U.B.N. Plc. Vs. Blues Continent Prod. Ltd (2002) 12 NWLR (Pt.781) 424 at 434-6.See also Asafa Food Factory Vs Airaine Nigerian Ltd (2002) 12 NWLR (pt. 781) p. 353 at 368.
Appeal: Assuming I am wrong in my finding above, I will examine the merit of this appeal.
On 28/03/2012, we took this appeal. The learned counsel for the respective parties having identified their respective briefs of argument adopted and relied on same. Taking into consideration the circumstances of this appeal, including the grounds of appeal filed, the issues as formulated by the parties, I am of the view that the issues are in substance the same. The appellants’ issue No:1 is the same as the 1st and 3rd respondent’s issue Nos: 1 and I respectively, on whether the issues that called for determination in the two motions amount to an abuse of court’s process, while appellants’ issue No, three is the same as the 1st respondents issue No:(2) two and the 2nd respondent issue No,(2) two respectively, on denial of the appellants’ rights to fair hearing. Therefore the issues as formulated by the appellants are apt and direct and I shall determine this appeal on the issues formulated by the appellants. Issue 1: The complaint of the appellants under this issue is that the applications of the 1st and 2nd respondents before the tribunal praying for the dismissal of the petition were an abuse of court process and therefore ought to be dismissed. The appellant, through their learned counsel, urged us to allow the appeal. The argument advanced in this issue through their learned counsel is that the 1st and 2nd respondents had, at the time of filing their respective applications before the tribunal, already filed appeals to the Supreme Court, seeking substantially the same relief as they sought before the tribunal. To buttress this point, reliefs 3(3) on page 508 of the records and the reliefs on the motion papers on pages 464, and 484 – 485 of the record were referred to and submitted that the prayers are the same.
It was also submitted that these motions were filed as a deliberate and crafty attempt to pervert the judicial process and over-reach the interest of the appellants and nothing more, therefore, such act is an abuse of court process, The case of Umeh Vs Iwu (2008) 8 NWLR (pt. 1089) 225 at 228, ratio I was relied upon.
In response, the 1st respondent holds a contrary view. The reason he advanced is that the issue which called for determination in his application which led to the striking out of the appellants petition and which eventually gave rise to this appeal is fundamentally different from the issue raised in his appeal at the Supreme Court. He explained the nature of each issue before the tribunal and the Supreme Court respectively.
The 2nd respondent on its own part and in response to the appellants’ argument submitted that the tribunal was right in entertaining and granting its application on 28/02/2012 and that the appellants’ arguments lack merit and not supported by the circumstances of the facts of this case. The reasons advanced on its behalf, by its learned senior counsel, are similar and same with the 1st respondent. It was further added that the tribunal based its decision on the doctrine of stare-decisis and the record shows so he relied on Section 287(1) of the Constitution to assert that the tribunal is duty bound to follow the judgment of the Supreme Court. He finally submitted that the 2nd respondent’s application for dismissing the petition is not an abuse of court process in the light of the two recent Supreme Court’s decision relied upon by tribunal.
The 3rd respondent contended, in response to the appellants’ issue no 1, that the 1st and 2nd respondents applications do not amount to an abuse of court process because, their applications were in relation to the jurisdiction of the tribunal which can be raised at anytime or stage of the proceedings, The case of N.D.I.C. Vs Central Bank of Nigeria (2002) FWLR (pt.99) 1021 was cited to support this contention.
Issue No. 2: the compliant of the appellants under this is, that the tribunal failed to consider and accept their defence of stoppel per res judicatem to the applications of the 1st and 2nd respondents, The appellants went further by explaining, in their brief, the nature of the term with some cases. They urged this Court to resolve this issue in their favour.
The 1st respondent, in response, argued that the appellants grossly misconceived the doctrine as the doctrine of estoppel per res judicatem is in applicable in the circumstances of this case, because the issue before the Supreme Court is clearly distinguishable from the issue raised in his application before the tribunal. He further contended that all the ingredients required for the appellants’ plea of res-judiata do not coexist in this case and therefore the plea must fail. He cited the case of Dzungwe Vs Gbishe (1985) 2 NWLR (pt.8) 28.
He further argued that:- the appellants heavy reliance, that the reliefs in the appeal at the Supreme Court were substantially the same with the reliefs claimed in the applications for dismissal before the tribunal, and therefore, the issues are the same in the two processes, the 1st respondent submitted that the appellants grossly misconceived the doctrine and his reasons is that, in determining the issue or res where the jurisdiction of a court is being questioned, what is considered is the issue submitted for determination and the grounds upon which the application brought.
The 2nd respondent in response, adopts its argument canvassed in paragraphs 6.2 – 6.11 in its brief of argument and further added that once a court/tribunal lacks jurisdiction, no any statutory provision or common law principles can be invoke to repair it, because lack of jurisdiction is irreparable in law. He urged this court to resolve this in favour of the 2nd respondent.
For the 3rd respondent, it was submitted that the doctrine of res-judicata or estoppel per res judicatem relied upon by the appellants is not relevant here in this case because the issue before the tribunal was for taking cognizance of the Supreme Courts new decisions as they relate to Section 285 (6) of the 1999 Constitution which by the provisions of Section 59 of the evidence, the tribunal must comply. The 4th respondent I observed did not file any brief.
Issue N0.3:- the appellants complained under this issue is that the tribunal denied them fair hearing when it struck out their petition on the basis of the recent decisions of the Supreme Court on Section 285 (6) of the Constitution of Nigeria 1999 (as amended) and doing so was wrong on the part of the tribunal as the action is contrary to Section 36 of the said Constitution. They further contended that for the tribunal to fail to deliver the reserved judgment and proceeded, instead, to hear and determine the 1st and 2nd respondents motion means that fair hearing was sacrificed by the tribunal on the alter of speedy hearing and this amounts to a substantial miscarriage of justice and contrary to the decision in the case of Abubakar Vs Yar Adua (2008) 4 NWLR (pt.1078) 465 at 477 ratio 18, He urged this court to resolve this issue in favour of the appellants. The 1st respondent is holding contrary view, and argued that the tribunal was perfectly in order. The reason advanced is that, even if the tribunal proceeded to deliver its judgment and later found that it lacked jurisdiction, the judgment would have remained anulity, void and of no legal consequence, and he referred this Court to a number of legal authorities to support this contention. He, on the strength of his submission, urged this court to resolve this issue against the appellants and in favour of the 1st respondent.
In conclusion, he also urged this court to dismiss this appeal and affirm the decision of the tribunal striking out the appellant’s petition. The 2nd respondent argued that the tribunal was right in its decision striking out the appellants’ petition before delivering the reserved judgment for the simple reason that the tribunal was bound in law to, first resolve, the issue of jurisdiction raised in the application of the 2nd respondent before taking any further step in the proceedings. Doing so therefore, did not in any way violate the appellants’ right to a fair hearing. It was further submitted that, the appellant’ argument that the tribunal should have proceeded to deliver its reserved judgment without first determining the issue of jurisdiction raised by the 2nd respondent, amounts to standing the law on its head and against the principles laid down in a long line of cases as to the duty of a court once its jurisdiction is challenged.
On the appellants’ reliance on Section 36 of the said Constitution to assert that their rights to fair hearing was violated, the 2nd respondent contended that the right to fair hearing as provided under Section 36 of the Constitution (supra) exists only when a right to be heard exists. He further added that the right to be heard cannot be maintained in view of the decision of the Supreme Court in the Appeal No. S.C.476/2011 (unreported). It was finally submitted that the appellants’ right of fair hearing was not infringed by the tribunal as the tribunal was bound to resolve the weighty issue of jurisdiction raised by the 2nd respondent. This court, in the final conclusion, was urged to dismiss the appeal in favour of the 2nd respondent.
The 3rd respondent also responded in its brief of argument. It argued on its behalf that where a Court/ tribunal lacks jurisdiction to entertain a matter, the question of fair hearing or doing substantial justice is not relevant since defect of jurisdiction relates to embarking on the case and not to miscarriage in the course of it. The case of Saad Vs Maifata (2009) All FWLR (pt.446) 1930 was relied on to support this contention. As said earlier in this judgment, the 4th respondent did not file any brief of argument.
In the appellants’ reply to the new issues raised by the respondents in their respective briefs, particularly with regards to the 2nd respondent’s brief, contended that, the 2nd respondent’s brief was filed in contravention of the provisions of paragraph 12 of the practice Directions, 2011 and is accordingly void and ought to, and should be discountenanced by this Court.
In other words, the 2nd respondent’s brief of argument was filed outside the 5 days within which it should be filed having been served with the appellants’ brief on 08/03/2012.
I have gone through the proof of service of appellants’ brief served on the 2nd respondent and observed that the 2nd respondent was served on 09/03/2012 therefore the filing of 14/03/2012 was in order, and the brief is not void.
The main issue in contention between the Counsel to the parties on issue no.1 formulated by the learned counsel for the appellants is, whether the 1st and 2nd respondents’ applications giving rise to this appeal constitute an abuse of court process having regards to the pendency of their appeals at the Supreme Court. The learned counsel for the appellants Referred to the following:-
1. Ruling of the tribunal delivered on 08/12/2011, where the tribunal dismissed the earlier motions praying for the dismissal of the appellants’ petition having been lapsed by virtue of Section 285 96) of the Constitution (supra).
2. The decision of this court dated 02/02/2012 affirming the decision of the tribunal dismissing the applications on 08/12/2011.
3. The pending appeals of the 1st and 2nd respondents at the Supreme Court, against the decision of this Court affirming the dismissal order of the tribunal dated 08/12/2012.
It is the humble submission of the Learned counsel for the appellants that as at the time of filing their applications by way of motion on notice before the tribunal the 1st and 2nd respondents had already filed appeals to the Supreme Court seeking substantially the same reliefs as they sought before the tribunal. He also referred us to relief 10.3(3) on page 508 and they reliefs on the motion papers on pages 464 and 484 485 all of the records. But both 1st, 2nd and 3rd respondents hold contrary views and 1st and 2nd respondents submitted that the issues which they called for determination in their two respective motions were different from the ones in their appeal at the Supreme Court.
To begin with, an abuse of Court process would occur in one or more of the following situation:-
a. ” where the parties, subject matter and the issue in the previous and the latter suit are the same.
b. Where different actions based on the same facts between the same parties are filed in different or same court simultaneously in respect of the same right and subject.
c, Where a party litigates again on the same issue which has already been litigated upon between him and the same person by facts on which a decision has already been reached.
d. Where the proceeding is wanting in bona-fide, or is frivolous, vexation or amounts to abuse of legal procedure or improper legal process”.
See Ukachukwu Vs Uba (2005) 18 NWLR (pt. 956) 1 at 63 and 65. The term ‘abuse of Court process’ simply means that the process of court has not been used Bona-fide and properly” it also connotes the employment of judicial process by a party in Improper use to the improper irritation and annoyance of his opponent and efficient and effective administrative of justice” see the case of Expo Ltd Vs Pasfab Enterprises Ltd. (1999) 2NWLR (pt. 591) 449 at 462.
Applying the above definition of an abuse process I am of the view that there is no abuse of process in the instant case. The applications before the tribunal,praying for the dismissal of the appellants’ petition on one side and the pendings appeal at the Supreme Court on the other side cannot be different or simultaneous actions, since “appeal” is generally regarded as a continuation of the original case and not an inception of a new one. See Adogoke Vs Adesanya (1989) 3NWLR P.250.
Similarly, the ruling of the tribunal delivered on 08/12/2012 cannot be a final one since it has not determined other rights of the parties before the tribunal, The decision was on a question of whether the tribunal has a jurisdiction to continue hearing the petition before it, and was a decision given in the course of proceedings but which did not determine the issues between the parties, and therefore such decision is interlocutory and not final. See Bozson Vs Alterrincham U.D.C. (1903) 1 k.b. 547 at 548, and Oguntimechin & Anor Vs. Tokumbo (1957) 2 F.S.C.56 at 57. On sameness of issues relied heavenly by the appellant, the record shows that they are not same. For the sole issue which was raised for determination in the applications given rise to this appeal reads:
“whether having regards to the doctrine of Stare decisi and the judgment of the Supreme Court in appeal No:S.C.23/2012 Action Alliance Vs INEC delivered on 14/02/2012 (unreported) and in the consolidated appeal No S.C.1/2012 ANPP Vs Goni and No.S.C.2/2012 Shettima Vs Goni, delivered on 17/02/2012 (unreported) this honourable tribunal can still determine this petition well after 180 days from the date the petition was filed’.
While in the appeal before the Supreme Court the main issue that can be gleaned from the grounds of appeal is “whether the tribunal and subsequently this court of appeal were right in their application of their own interpretive jurisdiction to the provisions of Section 285 (6) of the 1999 Constitution (as amended).There is an established procedure that whenever an applicant is challenging the jurisdiction of a Court/tribunal, the usual reliefs sought are normally, for either striking out or dismissal of the matter, on whatever basis or grounds the issue of jurisdiction is being challenged and to determine the issue or res where the jurisdiction of a Court/Tribunal is being questioned, what is considered is the issue submitted for determination and grounds upon which the application is brought.
However, from the record of this appeal it is evidenced that the 1st and 2nd respondents’ applications were in relation to the jurisdiction of the tribunal, and where the tribunal court assumes jurisdiction to hear the matter, it is not precluded from considering the issue (s) again because the issue of jurisdiction can still be raised at any stage of the proceedings if it is discovered that the court/tribunal lacks jurisdiction. See N.D.I.C. Vs Central Bank of Nigeria. (supra).
Having said the above, this issue no 1 is resolved in favour of the respondents against the appellants.
The second issue argued in the appellant, and 1st – 3rd respondents’ briefs is the failure on the part of the tribunal to accept and rely on the appellants’ defence of estoppel per rem judicatam, raised against the applications of the 1st and 2nd respondents.
The crux of this matter is whether the plea of estoppel per rem judicatam can be sustained in view of the circumstances of this case.
It must, however, be noted that there must be an end to litigation.
This necessarily evokes the principles of estoppel per rem judicatam and which connotes that, the rights of the parties and their privies having in a previous case, been fairly and conclusively decided by a judgment of the court of competent jurisdiction, it constitutes a bar to any future action over the same subject matter involving the same parties or their privies. And it is a fundamental principle in our adjudicative jurisprudence; if this were not so, there would be no end to litigation. The three essential elements are:-
1. an earlier decision on the issue,
2. a final judgment on the merit, and
3. the involvement of the same parties.
In this regard the above principle could be raised many a time in limine by the defendant to show that the plaintiff is ‘re-litigating an issue or issues in the present suit which have been finally and conclusively decided on the merits in a previous suit (which is earlier in time) between the same parties and their privies by a competent jurisdiction. Each of these requirements must be proved and it is not a matter to be drawn by inference (underline mine for emphasis). Once any of the requirements is not proved the defense of estoppel per rem judicatam or res-judicata, may be at large and is inapplicable. See Oloriegbe vs. Omotesho (1993) 12 NWLR (Pt. 270) 386 at 396-397.
Emerging from the above case, that where the plea of the principle is proved, it ousts the jurisdiction of the court to go into the question already decided again and it leads to striking out the present case.
In the instant case, the appellants have raised the defence of estoppel per rem judicata by relying on Exhibit A (which is the Notice of Appeal to the Supreme Court by the 1st and 2nd respondents against the decision of this court delivered on 22/2/2012 affirming the previous decision of the tribunal delivered on 28/12/2011). The appellants contended that, as the parties, the subject matter and the issues (previously decided by the tribunal on 8/12/2011 and confirmed by this court in appeals Nos. CA/MK/EPT/2/2011 and CA/MK/EPT/3/2011 as well as those in Exhibit A, are the same as in the present applications of the 1st and 2nd respondents filed before the tribunal 22/3/2012, the tribunal should in the circumstance, uphold the appellants case on estoppel per rem judicata.
I have waded through the record in this case. The factual terrain of the matter as set out in the record of proceedings of the tribunal to say the least has showed that the parties and the subject matter (which is election petition) are the same but, in my view, the issue(s) which must be satisfied, are not same. I have already stated the nature of the issues for determination in the motions and the ones pending before the Supreme Court as contained in Exhibit A. In Okukuje Vs. Akwoido (2001) 3 NWLR (Pt. 700) 261 at 301, the Supreme Court, Per kutigi, (J.S.C. as he then was, later C.J.N. held that, “where therefore any of these essential ingredients is missing, a plea of rest-judicata must fail”. All the ingredients required for the plea raised by the appellants in my view do not co-exist in this case.
The appellants’ contended that the issues raised in the allocations have already been decided by both the tribunal and this Court previously and is now pending on appeal before the Supreme Court. I have stated in this judgment that the issues are not same. I wish to also point out that, considering both nature of the previous applications dismissed on 08/12/2012 and the nature of the order made dismissing the respective applications in that judgment as I have already stated above, is interlocutory and not final, in respect of the issue on jurisdiction before it between the appellants and the named respondents to the litigation. To determine finally an issue before a court/tribunal which does not finally determine the rights of the parties in the case, does not rank the determining the rights of the parties in the case and is not a final judgement inter-parties. The said decision of the tribunal on 98/12/2011 relied upon by the appellants therefore is not final since it not finally determined the right of the parties to the petition. For the Supreme Court, in Oguntimechine & Anor Vs Tokumbo (1957) 2 F.S.C. 56 at p.57 said;
The decision in question whether a court has jurisdiction to try an action before it, as in the instance case, in a decision given in the course of proceedings but which does not determine the issues between the parties finally. See also Bozson Vs Altrincham (J.D.C. (1903) 1K.B. 537 at 548 adopted by the Apex Court.
From the record of proceedings of the tribunal, I repeat it is shown that the judgment delivered on 8/12/2011 was to the effect that it had jurisdiction to hear the petition despite the effluxion of 180 days provided under Section 285(6) of the said Constitution (as amended). The Supreme Court, thereafter, in the above mentioned consolidated appeals No: S.C.1/2012 and S.C. 2/2012 (unreported) on 22/2/2012 and specifically when the tribunal was yet to deliver its reserved judgment in the petition, decided that election petition tribunals lacked jurisdiction to hear and determine election petitions outside 180 days from the date of filing of such petitions. See Section 285 (6) (supra)The 1st and 2nd respondents having become aware of the decisions of the Apex Court which would render the tribunal’s proceedings a nullity and if brought to the notice of the tribunal, it is bound to terminate the proceedings, the subsequently filed their respective motions for the tribunal to determine whether, in the light of the decisions of the Supreme Court on Section 285(6) (Supra) delivered on 22/2/2012 after the decision of the tribunal of 8/12/2011, the tribunal could continue to entertain the petition to the end. The applications were to challenge the jurisdiction to continue with the hearing of the petition.
The applications of the 1st and 2nd respondents were, in my view, in order. For in the case of N.D.I.C.Vs. Central Bank of Nigeria (Supra), the Supreme Court held as follows:-
“It is plain from the authorities that at any stage, sufficient facts or materials are available to raise the issue of jurisdiction or that it has become apparent to any party to the action that it can be canvassed, there is no reason why there should be delay in raising it.”
By the above principle of law, it is established that once party has become seized of facts which he believes have robbed the court of jurisdiction to continue the hearing of a matter he has a duty to bring those facts to the attention of the court and the court has corresponding duty to hear and determine the issue raised, one way or the other. Based on this corresponding duty, the tribunal heard the two said applications, and on the duty imposed on it by the doctrine of Stare decisi, the tribunal must be bound by those decisions, See Section 287(1) of 1999 Constitution (as amended) which placed a duty on the tribunal to enforce the decisions of the Supreme Court and thus, the tribunal in this circumstance, had no option but to do what it did, i,e, Following the decision of the Supreme Court brought to its knowledge through the 1st and 2nd respondents applications.
Had the tribunal assumed any other position than the one it took now, it would acted like the trial judge in Dalhatu vs. Turaki (2003) – S.C, I who, (Katsina Alu (J.S.C) as he then was but later C.J.N.) described as follows:-
” Now, the case of Onuoha vs. Onuoha was brought to the attention of the trial judge. Regrettably for reasons best known to him, he chose to ignore it… The conduct of the learned trial judge I. U. Bello is to say the least most unfortunate. This court is the highest and final court of appeal in Nigeria. By the doctrine of Stare – decisi, the courts below are bound to follow the decisions of the Supreme Court. The doctrine is a sine qua non for certainty to the practice and application of law. A refusal, therefore by a Judge of the court below to be bound by this court’s (Supreme Court) decision is gross insubordination and I dare say such a judicial officer is a misfit in the judiciary.”
I must state, with due respect to the judges of the tribunal, that as at 8/12/2011 even though, this court remitted the petition back to it for the continuation, the tribunal lacked jurisdiction to continue with the proceedings in the petition,
Jurisdiction to be remembered is the nerve centre of adjudication, It is a radical and vital question of competence because if a court/tribunal lacks jurisdiction to entertain a cause or matter, the proceedings remain a nullity abnitio no matter how well conducted and brilliantly decided they might be.
In A.G, Bendel State Vs. A. G. Federation & Ors. (1981) 10 N.S.C.C. 314, the Supreme Court says;-
There can be no estoppel in the way of ascertaining the existence of a low(Sic).
From the above decided cases of the Supreme Court, I can hold the view that the plea of res judicata, estoppels and principle of funtus officio are in applicable in the circumstances where a court/tribunal lacks jurisdiction as the tribunal found in this case.
In F.R.N. vs. Ifegwu (2003) 15 NWLR (Pt.842) 113 at 212 paras E-6, the Supreme Court held as follows:
“Because of the paramount importance of jurisdiction in the judicial process estoppels, an equitable remedy cannot drown the lack jurisdiction of a court of law.
Where a court or tribunal lacks jurisdiction and the issue is raised the adverse party cannot succeed in pleading that the action is sought by estoppel. This is because estoppel lacks legal capacity to revive an act which is a nullity ab-inito. A court which holds that, the issue of jurisdiction cannot be raised because a party is stopped from doing so, will not be doing equity to the adverse party. The moment an act of a court or tribunal is a nullity, estoppel cannot resuscitate it”.(underline mine for emphasis).
Having said the above it remains for me to high light the infallibility, or otherwise of the decision of the tribunal to entertain the applications at the time it did.
On the 14/02/2012 in the unreported appeal No:S.C.23/2012 – Action Alliance (A.C.) Vs Independent Electoral Commission & Ors, Supreme Court held:-
“The Petition giving rise to this appeal was filed on 17th May, 2011 and by the provisions of Section 285 (6) of the 1999 Constitution, an election tribunal shall delivered its judgment in writing within one hundred and eighty (180) days from the date of filing of the petition.
The reliefs sought by the appellant include an order that the petition be returned to the tribunal to be heard denovo by another panel.
As at today, the one hundred and eighty (180) days has long lapsed and by the decisions of this court the time stipulated in the Constitution cannot be extended, which an order of re-trial will tend to effect.
In the circumstance the appeal is misconceived as same is an exercise in futility and is consequently dismissed.
On 17/02/2012, the Apex Court again delivered its judgment in respect of unreported consolidated appeals Nos. S.C.2/2012 All Nigeria Peoples Party Vs Alhaji Mohammed Goni & 4 Ors, and S.C. 2/2012 – Alhaji Kassim Shettima & Anor Vs Alhaji Mohammed Goni & 3 Ors, where the Court held, per Onnoghen J.S.C. as follows:
“It has been held by this Court in a number of cases including consolidated appeal No:S.C.141/2011,
S.C.266/201 1, S.C.267/201 7, S.C.292/2011, S.C.356/2011 and S.C.357, Brig. General Mohammed Buba Marwa & Ors Vs Admiral Murtala Nyako & Ors. Delivered on 27th January 2012 that the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved, that the time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within the time so fixed, it lapses as the Court is thereby robbed of jurisdiction to continue to entertain the matter.
It is very worrisome that despite the decisions of this court since October, 2011 on the time fixed in the Constitution some of the justices of the lower courts still appear not to have gotten the message. From where will the election tribunal get the jurisdiction to entertain the re-trial after the expiration of the 180 days assigned in the Constitution without extending the time so allotted?
Do the Courts have the vires to extended the time assigned by the Constitution? The answer is obviously in the negative”
Considering the above decisions containing warning from the Apex Court in Nigeria and the doctrine of stare-decisi and the provisions of Section 287 (1) the tribunal was bound in law to do what it did, to follow the decision of the Supreme Court.
For what I stated above this issue is resolved against the appellants and in favour of the respondents.
This takes me to the 3rd issue of the appellants’ issues for consideration in this appeal. The substance of the complaint here under this issue is that, in the circumstances of this case, the tribunal denied the appellants’ fair hearing when it struck out the petition on the basis of the recent decisions of the Supreme Court on the interpretation of the provisions of Section 285 (6) of the Constitution (as amended), without delivering its reserved judgement. The reason advanced by the appellants is that the facts and circumstances of their petition are different from those named appeals because their petition, after being restored by this Court, a new life was given to it from 29/09/2011, but not from the date of filing. But other cases, relied upon by the tribunal, and decided by the Supreme Court their full 180 or 60 days ran without being interrupted.
Another reason given is that by striking out their petition before delivering the said reserved judgment means, the issue of presentation of a forged Certificate to Independent National Electoral Commission by the 1st respondent is left unconsidered by the tribunal. They relied on Section 36 of the 1999 Constitution (supra) to support the contention. Also relied on a number of decided cases, including:- Prof Olufeagba Vs Prof. Abdul Raheem (2009) 18 NWLR (pt.1173) 384, at 403 ratio 15 Uzuda Vs Ebigah (2009) 15 NWLR (pt.1163) 1 at page 4 ratio 1 and 2, and Abubakar Vs Yar-Adua (208) 4NWLR (pt.1078) 465 at 477 ratio 18.
The appellants also urged this court to invoke its power Section 16 of the Court’s of Appeal and determine their petition on merit, which this court, according to them, can go ahead and solve the whole dispute based on the evidence shown by the record of this appeal.
In conclusion, they urged this Court to allow the appeal and grant their reliefs sought for. The 1st respondent, in reaction to this, contended that the appellants ‘contention herein, has no legal basis in law. The reason advanced is that even if the tribunal had proceeded to deliver the reserved judgment and later found that it lacked jurisdiction to do so, the judgment would have remained an nullity. With of no legal consequence he urged this court to resolve this issue in favour of the respondent and finally urged this court to dismiss the appeal for being unmerit favour. The 2nd respondent also re-acted, by drawing our attention to its application (contained on pages 484 – 500 of the record) which was the basis for striking out the petition, and submitted that what the tribunal did in this matter did not in any way violates the appellants right to fair hearing. On the appellants’ contention that the tribunal should have proceeded to deliver its reserved judgment without first determining the issue of jurisdiction raised before it by the 2nd respondent, it was contended that, doing so would amount to spending the law on its head and against the principle laid down in a long line of cases as to the duty of a court once its jurisdiction is challenged on the appellants reliance on Section 36 of the 1999 Constitution as well as the decided cases, on their rights to fair-hearing, the 2nd respondent contended that the principle of law are correct but such right exist only when a right to be heard exists. On the appellants’ request for this court to involve its powers under Section 15 of the Court of Appeal Act, 2004, the 2nd respondent contended that this court cannot exercise its power therein contained since the tribunal lost the jurisdiction to entertain this petition in November, 2011 in view of the said recent decisions of the Supreme Court. It urged this Court to resolve this issue infavour of the 2nd respondent and finally dismiss the appeal for lack of merit.
The 3rd respondent was not left out. On behalf of the 3rd respondent, it was argued that where the Court/Tribunal lacks jurisdiction to enter the matter before it the question of fair hearing or doing substantial justice is not relevant since defect of jurisdiction relates to embarking on the case and not to miscarriage of justice in course of it. The case of Sa’ad Vs Maifata (2009) All FWLR (pt.446) 1930 was cited and relied upon. Finally it urged this court to resolve this issue infavour of the 3rd respondent and also dismiss the appeal in its entirety for being unmeritorious.
The kernel of the argument of the appellants is that the tribunal was wrong to strike out their petition without the due process of fair hearing provided by Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), notwithstanding the recent decisions of the Supreme Court on the interpretation of Section 285 (6) of the said Constitution. The grouse of the appellants is that as an election petitioner, the tribunal cannot struck out their petition, when the judgment was reserved, without giving them a fair hearing.
Fair hearing within the meaning of Section 36 (1) of the 1999 Constitution (supra), means a trial conducted according to all legal rules formulated to ensure that Justice is done to the parties, It encompasses not only the compliance with the rules of natural Justice, but also audi alteram partem, It also entails doing in the trial, whether civil or criminal trial, all the thing which will make an impartial observer, leave the Court room to believe that the trial has been balanced and fair on both side to the trial, See Alhaji Ishiaku Mohammgd Vs Kano N.A. (1958) 1 ALL N.L.R. 424 at 426, where Ademola, C.J.N. Stated, inter-alia, as follows-
” It has been suggested that a fair hearing does not mean a fair- trial. We think a fair hearing must involve a fair-trial, and a fair-trial of a case consist of the whole hearing. We therefore see difference between the two. The true test of a fair hearing, it was suggested by Counsel, in the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case. We feel obliged to agree with this.”See also the case of Ntukidem Vs Oko (1986) 5NWLR (pt.45) 909.
In the case leading to the instant appeal, I am of the view that from all the circumstance as borne out from the records, there was no breach of fair hearing by the tribunal, of the appellants’ rights. I hold this view, because on 05/12/2011 when the two motions of the 1st and 2nd respondents were argued respectively before the tribunal, at pages 530, 531, 532 and 533 of the records, the following appear, inter-alia: 05/12/2011
Parties:-Hon, Bem Dozoho (PDP State Secretary) Appearance:- D.D. Dodo the appearances are as in the previous matter for the 1st Respondent.
S. Akuma:- for the 2nd Respondent Applicant. We adopt the earlier list of appearance as mentioned in the last case.
N.D. Ter with O.A. Alomodu for the 3rd Respondent.
G.L. Enebele for the 4th respondent
P.O. Alemba for the 5th Respondent, director of Civil Respondent, appears with M.D. Igyor (State Counsel) E.O. Gbojime (Senior State Counsel).
C.S. Orpin Esq for the Petitioners /Respondents.
Dodo:- Before this Tribunal is a Motion dated 22/11/2011 and filed on the same date. The Motion seeks for the Order of this Court striking out this petition on the grounds of a Constitution time bar as contained on page 2 of the Motion paper. The Motion is supported by a seven paragraph affidavit. We adopt our argument in our written address, we rely on the 1st Respondents further affidavit dated 26/11/2011 and filed the same date. We also adopt the written argument attached therein.
We submit that Section 285 (6) of the 1999 Constitution admits of no other Construction than that an Election Petition not determined within 180 days lapse. In 1982, the Legislature had introduced it in the Electoral Act but it was struck out by the Courts on the grounds that it was unconstitutional, The legislature had now incorporated the said provision in the Constitution as absolute in order to take it away from the Courts construction, moderation as interpreting same otherwise…
We urge this Tribunal to follow the decision of the Supreme Court to strike out this petition,
S. Akuma: I do not oppose the application by the 1st Respondent, we urge the Tribunal to grant same.
3rd Respondent:-We do not oppose the application by the 1st Respondent/Applicant.
4th Respondent:-We do not oppose the application by the 1st Respondent.
5th Respondent:-We do not oppose the Motion’
Akuma:- The Motion by the 1st Respondent is similar so we seek to argue so that the petitioner will reply, our motion is dated 21/11/2011 filed 22/11/2011, the prayers and grounds are as set out on the face of the Motion paper supported with an affidavit of twelve paragraph and a written address. The 2nd Respondent filed a further affidavit of 11 paragraphs on 30/ 112011, we had also filed a reply on point of Law on 30/11/2011, we rely on all the paragraphs of the affidavits, we adopt the written address as our oral submission and the reply on point of Law. I further adopt the admirable submission of Counsel to the 1st Respondent, I refer the Tribunal to the case of PDP V C.P.C, page 17- 18 see specifically page 16 paragraphs. Finally, we urge this tribunal to hold that Section 285 (6) of the Constitution is sacrosanct and admits of no extension of time, it is only the legislature that can change the situation and not the Tribunals…
I urge this tribunal to grant this application by striking out the petition.
C.S. Orpin/petitioners:- we oppose the two consolidated Motions, we have filed two Counter-affidavits and written address in support, the affidavit in each application has 68 paragraphs, we have annexed 7 Exhibits to each of the Counter-affidavit marked A-G. We filled on 23/11/2011 though dated 22/11/2011. We adopt our written address a as our oral submission in opposing same. We rely on the Counter-affidavit and the Exhibits…
We urge the Tribunal to dismiss the application.
From the above, it can be seen that the tribunal painstakingly, complied with the proper procedure or requirements in respect of the appellant under Section 36 (1) of the said Constitution of Nigeria. See Uzuda Vs Ebigah (2009) 15 NWLR (pt.1163) p. 4 ratio 1, where the Supreme Court stated inter-alia.
“… Thus, a party to a dispute must be heard before the determination of his rights by a court of competent jurisdiction without let or hindrance to the end”.
Furthermore, the appellants contended that they were denied fair hearing on the grounds that the tribunal, instead of delivering its reserved judgment, entertained the 1st and 2nd respondents’ applications challenging the jurisdiction and struck out the petition.
To this contention I would say to appellants, that I disagree, because the two respective applications, at pages 462 – 470 and 484 – 500 of the records, which were the basis for striking out the petition, challenged the jurisdiction of the tribunal to continue with the hearing of the petition pursuant to the recent Supreme Court decisions on Section 285(6) of the said Constitution 1999. The tribunal, therefore, was bound in law to, first, resolve issue of jurisdiction raised in the application before taking any further steps in the proceedings. Taking this procedure, in my view, did not in any way violates the appellants, right to fair -hearing.
In Bank of Ireland vs U.B.N. Ltd. (1998) 10 NWLR (pt.569) 22, it has been well settled by the courts, that the issue of jurisdiction can be raised at any time in the proceedings and once it is so raised, the Court is duty bound to pronounce on it before taking any further steps in the proceedings. See also Kwatte Vs Isah (1999) 1NWLR (pt.588) p.638.
However, if the tribunal proceeded to deliver its reserved judgment without first determining the issue of jurisdiction raised by the 1st and 2nd respondents, I must agree with the 2nd respondents contention that, it amounts to standing the law on its head and against the principles laid down in a long line of cases as to the duty of a court once its jurisdiction is challenged. See Action Congress v. Kaigama (2009) 8 NWLR (pt.1088) p.165 at 180.
The appellants sought this Court to invoke its general powers as enshrined in Section 15 of the Court of Appeal Act (supra) and grant their reliefs sought before this Court. In answer to this I wish to remind the appellants that this Court is estopped from exercising such powers in the circumstances of this because the tribunal lost the jurisdiction to entertain this petition since November, 2011, based on the Supreme Court decisions. See Chief Dr Felix Amadi Vs I.N.E.C. (appeal No S.C.476/2011,)
(Unreported) the Supreme Court held that;
“The question is whether the application of the provisions of Section 285 (7) of the 1999 Constitution (as amended) to the facts of this case, or any other case for that matte7 can be said to amount to a denial of the right to fair hearing by the court?
It is very clear that the provisions of Section 285 (7) (supra) is in the mould of statute of limitation but with a Constitutional flavour. Does application of a statute of limitation to a given factual situation rob the aggrieved party of the right of fair hearing? I do not think so neither has learned counsel for appellants cited any authority in support of that contention”
Section 285 (7) (supra) is in pari material with Section 285 (6) (supra) which the tribunal interpreted in the two applications. Thus, Section 285 (6) of the Constitution (supra) which takes away the right of action leaving a party with an enforceable cause of action does not amount to a denial of fair hearing.
For what I said above under this issue of denial of fair-hearing, I am of the view that the appellants were not denied fair-hearing and that the appellants’ contention that they were not afforded the fair hearing, I think it is only a ploy. This issue therefore is resolved against the appellants and in favour of the respondents.
Finally, much as I agree and sympathises with the appellants that they are not in any way responsible for the delay in prosecuting and hearing of this petition, we are unable to subscribe to the view that after the Courts Orders restoring the petition for re-hearing before another panel, it gets a new life from that date of 29/09/2011 instead of the day the petition was filed. This contention is contrary to the provisions of subsection 6 of Section 285 of the said Constitution 1999 which is intended to limit time rather than to expand time.
Section 285 (6) of the said Constitution 1999, is a statute of limitation of time with regards to the hearing and disposal of election petition before tribunal. Any action brought outside statutory limited period is time barred. See Egbe Vs Adefarasin (1985) 1NWLR (pt.3) 549.
Having resolved all the three issues in this appeal against the appellants and infavour of the respondents, the appeal lacks merit and ought to be and is hereby dismissed. The ruling of the tribunal on 28/02/2012 striking out appellants’ petition No: GET/BN/03/2011 is hereby affirmed .
I order no costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother Tsamiya, JCA. I fully agree with the reasons and conclusions so ably set out therein. I adopt them as mine and do not have anything more to add.
I too dismiss this appeal and would also not make any order for costs.
PHILOMENA MBUA EKPE, J.C.A.: I agree.
ITA G. MBABA, J.C.A.: This is an appeal against the Ruling of Governorship Election Tribunal delivered on 28/2/2012, striking out the Petition of the Appellants (as petitioners in the Tribunal below) on ground of want of jurisdiction.
Appellants who were dissatisfied with the declaration of the 1st Respondent as the winner of the April 26, 2011 general elections, had filed a Petition on 17/5/2011 against that declaration by INEC (3rd Respondent). But the Petition was dismissed on technical grounds by the Tribunal on 11/8/2011. Appeal against that dismissed to this Court was successful and this Court set aside that Ruling of the Tribunal on 29/9/2011 and restored the Petition to be heard by a new panel. The Respondents’ Appeal against that decision of this Court was dismissed by the Supreme Court on 28/11/2011, affirming the decision of this Court and ordering the Petition to be heard on the merits by a new panel of the Tribunal.
When the new Tribunal started to hear the Petition, the 1st and 2nd Respondents brought separate motions (on the same issue) again for dismissal of the Petition on the ground of non-compliance with Section 285 (6) of the 1999 Constitution. The applications, in a consolidated Ruling of the Tribunal, were dismissed on 8/12/2011. An appeal against that decision to this Court was dismissed as the Ruling was affirmed on 2/2/2012. But the 1st and 2nd Respondents appealed to the Supreme Court against that Ruling of this Court.
Meanwhile, following the dismissal of the application to dismiss the Petition, the Tribunal proceeded with hearing the Petition, took evidence and admitted 4 Exhibits, took written and oral submissions from counsel and on 9/2/2012 adjourned the case for judgment, sine die. Notice was later given for delivery of the judgment, fixed for 1st March 2012.
But while the date of the judgment was awaited, and while the 2nd Appeal was pending at the Supreme Court, the Respondents brought another motion on 22/2/2012 and again prayed the 2nd Tribunal to terminate the Petition on the same grounds of non-compliance with Section 285 (6) of the 1999 Constitution, relying on recent decisions of the Supreme Court, delivered on 17/2/12, that is ANPP vs. GONI & SHETIMA vs. GONI (SC.1/2012 and SC.2/2012).
The decision of the Supreme Court in the two cases (consolidated) was among other things that the 180 days stipulated in the Section 285 (6) of the Constitution cannot be extended or expanded when expired and no Court can order expansion or extension of the time stipulated in the Constitution.
The 2nd Tribunal thereupon entertained the motion of 22/2/2012 and upheld it, striking out the Petition on the 28/2/2012, oh the ground of lack of jurisdiction. In particular, the Tribunal held:
“We had carefully studied all the Motions and the Counter-affidavit filed. We had also particularly listened to the erudite oral submission of Counsel to the parties on the issues. We wish to point out that the facts of this case are similar to (sic) ones decided by the Supreme Court. By the doctrine of stare decisis, we are bound by the decision of the Supreme Court. By effluxion of time and by the decision of the Supreme Court, we hold that these Petition (sic) had lapsed since November 2011. This being so, we are of the view that we lack jurisdiction to take any further step in the hearing and or determination of the two Petitions. The two petition are hereby struck out…”
This appeal is against that decision, whereof Appellants formulated 5 grounds of appeal and distilled 3 Issues therefrom, namely:
(i) Whether the applications of the 1st and 2nd Respondents before the Tribunal below were not abuse of Court process and ought to have been dismissed (Ground 1) (ii) Whether the Learned Justices of the Tribunal were not wrong when they failed to accept the defence of estoppel per rem judicatum raised by the appellants to the applications of the 1st and 2nd Respondents (Ground 2)
(iii) Whether the Learned Justices of the Tribunal did not deny fair hearing to the appellants when they failed to deliver the reserved judgment of the tribunal but proceeded instead on an improper evaluation of evidence before them to strike out the Petition. (Grounds 3, 4 and 5)
On their part the 1st Respondent raised two Issues for determination as follows:
(i) Whether by the doctrine of stare decisis the DUTY imposed by the Supreme Court judgments in ACTION ALLIANCE VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 4 ORS IN APPEAL NO SC.23/2012, DELIVERED ON 14/2/12 (UNREPORTED) AND THE CONSOLIDATED APPEALS IN ALL NIGERIA PEOPLES PARTY V. ALHAJI KASHIM SHETTIMA & ANOR AND ALHAJI MOHAMMED GONI & 2 ORS IN APPEALS NOS. SC.1/2012 AND SC.2/2012 DELIVERED ON 17/2/2012 is a different issue from the issue decided by the trial Tribunal on 28/02/2012 such that their mutual consolidation will amount to an abuse of Court Process or be caught by res judicata (Grounds 1 , 2, 3 and 5).
(ii) Whether a consideration and determination of the issue of jurisdiction after the matter was adjourned for judgment constitute a denial of fair hearing of the Appellant (Ground 4).
The 2nd Respondent filed its Brief on 14/3/2012 and raised a preliminary objection in the Brief against the Appeal on the grounds that:
(i) This Court has no jurisdiction under any circumstance to order a trial denovo or continuation of trial of any petition including the petition the subject matter of this appeal and judgment delivered in writing after 180 days of the filing of the Petition as prayed by the Appellants in their relief before this Court.
(ii) The records of the Court show that the petition was filed on 17 /5/2011.
(iii) 180 days had long expired in November 2011.
(iv) The Court cannot order continuation of hearing of Petition. The 180 days expired in November 2011 assuming but without conceding that the appeal has merit.
(v) The success of any appeal without the power to grant the relief prayed for by the Appellants which would result in continuation of trial of the petition renders the appeal an academic exercise.
(vi) Courts do not embark on academic exercise in the light of Section 285 (6) of the 1999 Constitution of Nigeria.
Alternatively, (in case over-ruled), the 2nd Respondent distilled 2 Issues for determination, as follows:
(i) Whether in the circumstances of this case, the Tribunal was right in entertaining the applications of the 1st and 2nd Respondents which challenged the jurisdiction of the tribunal on the basis of the recent decisions of the Supreme Court on Section 285 (6) of the 1999 Constitution (as amended) (Grounds 1 and 2)
(ii) Whether in the circumstances of this case, the Tribunal denied the Appellants fair hearing when it struck out this Petition on the basis of the recent decisions of the Supreme Court on Section 285 (6) of the Constitution (as amended) (Grounds 3, 4 and 5).
On their part, the 3rd Respondent, in their Brief filed on 13/3/2012, raised a lone Issue for determination, that is:
“Whether the Honourable Tribunal was right when it held that it has no jurisdiction to entertain Petition No; GET/BN/03/2011 outside the 180 days after filing the Petition in the light of the Supreme Court’s judgment in the application of Section 285 (6) of the 1999 Constitution (as amended) to Election Petition.”
Counsel on each of the side made their submissions on the issues, as ably articulated in the lead judgment by my learned brother, Tsamiya JCA, but I think the real live Issues for determination in this appeal are:
(1)Whether the learned Tribunal was right in entertaining the applications of 22/2/2012 for dismissal of the Petition after having heard the Petition to conclusion and fixed a date for judgment thereof, and having earlier dismissed a similar application and the dismissal was affirmed by the Court of Appeal (and an appeal against the same had been entered and was pending at the Supreme Court).
(2)Whether the learned Tribunal had the vires to review the specific decision and Order of superior Court, directing it to hear the Petition denovo, oh the merits, to strike out the same (Petition) on the alleged lack of jurisdiction, relying on some recent decisions of the Supreme Court.
I shall take the two Issues together. But first of all, I think the preliminary objection is not worth considering, the same having not been filed in compliance with Order 10 Rule 1 of this Court’s Rules,
2011.
By Order 10 Rule 1 of this Courts’ Rules, a Respondent that intends to file a preliminary objection is required to do so by filing same in appropriate copies, at least, 3 days to the hearing of the Appeal. Only recently, in the case of OMOYOSORE VS THE GOV. OF KWARA STATE & ORS (an unreported decision of this court)
CA/IL/M.12/2007, delivered on 3/11/2011, we reproduced the provisions of the Rules and held as follows:
“(1) A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the registry within the same time.
(3) If the Respondent fails to comply with this Rule, the court may refuse to entertain the Objection or may adjourn the hearing at the cost of the Respondent or may make such other order as it thinks for.”
It is normal and usual for any Respondent who intends to raise and rely on a preliminary objection against the hearing of an appeal, or any part thereof, to file a separate Notice of the objection, and, thereafter, include the argument thereof in his Respondent’s Brief. In the case of P.D.P. vs Senator Dahiru B. Gassol and Ors (unreported decision of this Court) in Suit No. CA/YL/31/2011, delivered on 13/9/2011, where the Respondent made a similar attempt to give notice of preliminary objection to some issue/ ground of appeal, this Court held that that amounted to an attempt to smuggle in an objection to the hearing of the appeal and dismissed the objection for conflicting with Order 10 Rule (1) of this Court Rules. See also the case of ESOHO VS ASUQUO (2007) ALL AFWLR (PT.359) 1355, held 16, BAYERO VS. MAINASARA & SONS LTD (2007) ALL FWLR (PT.359) 1285, held 9.
Of course, by law, it is the filing fee that vests legitimacy or validity on a court process, except where such fees are waived, as in the case of official process filed by government or department of government. See the case of ONWUGBUFOR VS. OKOYE (1996) I NWLR (part 424) 252; see also NAA VS. KAWGAII (unreported decision of this Court in CA/J/166/2003, delivered on 30/3/11″
The preliminary objection is accordingly struck out.
Ordinarily, no Court or Tribunal is expected or allowed to approbate and reprobate, at the same time, over a given issue. That is to say, the Court cannot take a decision in favour of a given position, and in the same cause and matter, turns round to take a contrary position on the same cause and matter. It becomes completely absurd and a mockery of the judicial process, if the earlier position taken by the Court had been challenged on appeal and the same was affirmed (and a further appeal therefrom to the apex court is pending) at the time the trial court somersaults to take the contrary position!
I think prudence and respect for the much touted rule of stare decisis in this appeal, would suggest a court to be firm on its decision, especially, if the same has received the confirmation of the appellate court and/or is awaiting the decision of the apex court. If there is any reason, strong enough, to assail its earlier decision, it is proper to err on the side of integrity and caution, by maintaining its position, expecting to be corrected on appeal, instead of licking up its vomit. See the case of FRANCIS ASANYA v. THE STATE (1991) 4 S.C.; N.J. 1 at pp. 12-13 (per Nnaemeka – Agu J.S.C.)on certainty of decision of court, where it was held-
“Previous decisions of this court are binding on this court until over-ruled or departed from. Departing from previous decisions is not a matter to be lightly embarked upon. The court can only be persuaded to depart from previous decisions if the previous decisions were proved wrong, given per incuriam, and perpetuating injustice. See Odi vs. Osafile (1985) I S.C. 1 (1985) 1 N.W.L.R. (part 1) 77, Bucknor-MacLean and Anor. vs. Inlaks Ltd. (1980) 1 – 11 S.C.1. This is because the court has a twin duty to see that (1) justice is founded on the correct view of the law and (2) justice is founded on the correct view of the law and equity. The pursuit of these ideals are to go hand in hand with the pursuit of the ideal of certainty in the law. (Underlining mine) The facts of this case and the way it rigmaroled from the Tribunal to the Court of appeal and to the Supreme Court, and back to the Tribunal, and again to the Court of Appeal and to the Supreme Court, over issues of interlocutory questions bordering on technicalities (not substantial matters) clearly shows that there is something abnormal with the process of adjudicating the ease.
Appellants’ petition had earlier been struck out on technical grounds by the first tribunal and that decision was upturned by this court and the Supreme Court affirmed this court’s decision on the matter, and the 2nd Tribunal was ordered to hear the case, denovo, oh the merits. The 2nd panel of the Tribunal, constituted to hear the petition, was confronted, again, with an attempt to truncate the case, on the ground that the tribunal had no jurisdiction because the 180 days allowed to hear the petition had lapsed, pursuant to Section 285 (6) of the Constitution;
The Tribunal heard the motion and held against that application, dismissing the same, and that decision was affirmed by this Court, and though the 1st and 2nd Respondents again appealed to the Supreme Court, the apex court was yet to hear the appeal and deliver its judgment on it, when the same 1st and 2nd Respondents filed another motion at the Tribunal, on the same issue, for it to dismiss the petition, citing some new decisions of the Apex Court on the position of Section 285 (6) of the Constitution. And that was done to frustrate the judgment of the Tribunal on the substantial matter fixed for 1/3/2012.
I think there could not be any better example of a gross abuse of the court process than this. Obviously, even if the judgment of the tribunal were read on the 1/3/2012 and the same failed to favour the Respondents, they still would have had the option of appealing against it and relying on the same issue of non-compliance with Section 285 (6) of the Constitution, to challenge the judgment. That way, the judicial process would have been more properly used and employed to protect the Court from what has befallen it, which appears to cast aspersion on the process, exposing the court to ridicule.
There are many authorities on the abuse of the process. See the case of Saraki vs. Kotoye (1992) 11/12 SCNJ 26 when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice – by instituting multiplicity of actions on the same issues, and in the manner of exercise of t he right – constituted by the inconvenience and inequities involved in the aim and purposes of the application.
In the case of Ugese v. Uki (2007) 8 NWLR (Pt.1037) 452, it was held that the court has a duty to protect itself from abuse and will not allow a litigant to abuse its process.
The court is expected to shield itself from the vicaries of litigants, who would readily want to use it to advance mischief and/or over-reach their opponents. By remaining firm and predictable on issues of law and principles, the court defends its integrity and impartiality in the discharge of its sacred duties and so will not be caught in the web of indecision and peradventure.
In the case of Ogoejeofo vs. Ogoejeofo (2006) 3 NWLR (Pt.966) 205, the Supreme Court, on circumstances that give rise to abuse of Court process, held:
“The circumstances that will give rise to abuse of Court process include:
(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 exists a right to begin the action; or
(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 same exercise of the same right, for example, a cross-appeal and a respondent’s notice; or
(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 fact already decided by the lower court; or
(e)where there is no law supporting a court process or where it is premised on frivolity or recklessness;
It would appear the Respondents’ applications before the lower Tribunal on which the Tribunal struck out Appellants’ Petition, were caught by each of the five circumstances, highlighted above, the Issue having been earlier determined by the same Tribunal on 8/12/2012, and the decision affirmed by this court on 2/2/2012 ,and appeal therefrom (by the Respondents) pending at the Supreme Court, as at 22/2/2012, when the Respondent refiled the same motion (on the same issue), which had been dismissed, and doing so to arrest judgment in the substantive matter, fixed for 1/3/2012!
I think the Respondents were motivated by mischief, notwithstanding, the said recent judgments of the Supreme Court, delivered on 14/2/2012 and 17/2/2012, (which would still avail the Respondents on appeal, if they had allowed the judgment of the Tribunal to be delivered on the merit). See also the case of Umeh vs. Iwu (2008) 8 NWLR (pt.1089) 225 at 228, where the Supreme Court, (per Chukwuma Eneh JSC) held;
“To institute an action during the pendency of another suit claiming the same relief is an abuse of court process, and the only course open to the court is to put an end to the suit. It does not matter whether the suit is on appeal, the subsequent action would constitute an abuse of process”
Also in the case Ojo vs. AG Oyo State (2008) 15 NWLR (Pt.1110) 309 at 312, the Supreme Court (per Mohammed JSC) held;
“It is an abuse of process when a party in a litigation takes a most irregular and casual action on the judicial process for the sake of action qua litigation merely either to waste the courts valuable time or takes an action which could be avoided by party, without causing any harm to the dispute or use the court process mala fide to over-reach the adversary.”
Is the lower Tribunal possessed of the requisite vires or jurisdiction to review the order of appellate court, specifically, directing it (lower Tribunal or court) to do a particular thing? Can that lower Tribunal, thereafter review the decision of the superior court and refuse to carry out the instruction of the superior court, oh the excuse that it has no jurisdiction to carry out the assignment?
I think the answer to the above queries would be in the negative, even if, in actual fact, it becomes clear that the lower Tribunal or Court has no jurisdiction to undertake the exercise.
This is because the decision or order of the superior court, handed down to the lower court, remains valid and binding, commanding obedience, as long as it has not been discharged or set aside by a competent court. This is a long cherished legal tradition, founded on the principle of bindingness of judicial decisions, rule of law and judicial precedent. The authorities or this are replete. See the case of Rossek vs. ACP (1993) 10 SCNJ 20 where Ogundare JSC maintained that a court judgment remains binding until set aside by a competent court and that there is always a presumption of correctness in favour of a courts judgment, and until that presumption is rebutted and the judgment set aside, if subsists and must be obeyed; irrespective of the perception that it is null and void.
See also the case of Odogwu vs. Odogwu (1992) 2 NWLR (PT.225) 539, and Labour Party vs. INEC (2009) 2 MJSC (pt.1) 101 at 204 where it was held;
“It is now firmly settled that a court order must be obeyed even if such order is perverse, until a time that the order is set aside by a competent court” See also Aladegbami vs. Fasanmade (1988) 3 NWLR (Pt.8) 7 37.
The 2nd Tribunal which struck out the Appellants’ petition was specifically constituted for the specific mandate of hearing the Appellants’ petition denovo on the merits, as the Supreme Court was appalled at the handling/striking out of the petition on technical grounds at the 1st instance. It does appear the specific mandate to hear the petition on the merits denovo, (which the 2nd Tribunal had, in fact, heard to conclusion and fixed a date for judgment) did not leave any room for the Tribunal to have a rethink and rationalize, as if reviewing that order of the superior court, as to whether or not it had jurisdiction to hear the petition.
Of course, the lower Tribunal cannot qualify as “competent court” to set aside the order of the superior court “to hear the case on the merits”, even where some decisions of the Supreme court are bandied on the issue, once the facts/circumstances of the bandied case(s) are distinguishable from the case at hand.
One distinguishable factor in this case is the fact that the Tribunal was set up, on the order of the Supreme Court, made on 18/11/2011 to hear the Appellants’ petition on the merit, and as at the time the order was made, the 180 days life-span of the petition (as per Section 285 (6) of the 1999 Constitution, as amended) had lapsed.
In my humble opinion, I think it is only the apex court which gave the order that would be competent to set aside its said order, and strike out the petition, if satisfied to do so, on the principle of the recent decisions in the consolidated case of ANPP vs. GONI (supra) and Kashim SHETTTMA (supra) (supra) (SC.1/2012 and SC.2/2012 (unreported).
I had the unenviable privilege to consider a similar legal problem in the case of AIYELABEGAN KAYODE A. & 2 ORS, unreported decision of this court, Ilorin Division, in CA/ILIEPTISH/1/2012, delivered on 21/4/2012, where the lower tribunal also failed to comply with the express order of the Court of Appeal, directing it to retry the petition on the merits, denovo, and the tribunal claiming that the petition was no longer maintainable, struck it out, doing so, suo motu, invoking the same recent decision of the Supreme Court on the terminal date of election petition after 180 days of filing same in court.
It was our view that even if the said petition could not be sustainable pursuant to the said decision of the Supreme Court, the lower tribunal had no vires to pronounce on the same, as long as the order of the Court of Appeal for the tribunal to retry the petition denovo on the merits subsists; that it takes the Court of Appeal, itself, on becoming aware of the defect in its order, to set it aside, or the Supreme Court, to call the Court of Appeal to order. See pages 23 and 24 thereof, where we held:
‘Of course, the lower Tribunal cannot qualify as a competent court to set aside the judgement/order of the Court of Appeal. Thus, even when the extant Supreme Court decisions appear to have unsettled and over-ruled the known existing authorities on retrial order in election matters, which used to conform with the tradition of beginning afresh, that such retrial can no longer be done or commenced afresh, with a new life-line, for want of jurisdiction, on the expiration of the original 18O days, such pronouncement cannot be made by a subordinate court which received the order for retrial.
It is against all known judicial ethics and decorum for a lower court to assume the role of a master over its superior, and overrule the superior court or treat it with disrespect. It is only the Apex court that can call the Court of Appeal to order. Or it is the Court of Appeal, itself, on becoming aware that its decision was reached without jurisdiction or has a fundamental defect or was entered per in curiam, that can set it aside. It is necessary to keep to such tradition.
I therefore think a blind application of the decision of the Supreme Court in the consolidated case of ANPP us Goni (supra) in the name of stare decisis, is capable of tremendous damage to the much cherished principles of law which the Supreme Court has evolved over the years, relating to the immutable principles of fair hearing, adherence to substantial justice (as opposed to technical justice) and the avowed principles of stare decisis and obedience to court orders, among other sacred principles.’
Accordingly, I resolve the two issues in favour of the Appellants, and hold that this appeal has merit and is allowed.
The spirit of the Electoral Act appears to have been that of allowing the substantive matter to be heard and determined on the merit, such that any objection raised must, under paragraph 12 (5) of the 1st Schedule to the Electoral Act 2010 (as amended), was to be taken and heard together with the substantive matter, so that appeal thereon would be taken together in the interest of justice, in view of the time constraint/limitation to hear the petitions. If that understanding had been followed by the tribunals, I think the log- (Sic)I am facing the courts today would have been averted, just as if the tribunal in this appeal had gone ahead to deliver its judgment fixed for 1/3/2012, the legal energies expended today would have been more properly located and directed to determine appeal on the substantive case.
To the extent of my reasoning above, I find it difficult to agree with the lead judgment by my learned brother, M. I. TSAMIYA JCA. I think the interest of justice and of order in the justice delivery system would require the judgment reserved by the lower tribunal to be read, and whatever reservations touching on the interpretation of the Section 285 (6) of the 1999 Constitution (as amended) taken at/on appeal for final determination by the Supreme Court.
I therefore allow the Appeal and set aside the ruling of the lower tribunal of 28/2/2012, for having been reached without jurisdiction.
I order that the 2nd Tribunal, which had heard the petition on the merits, to sit and deliver its judgement, in the interest of justice.
Each party to bear his/its own cost.
UCHECHUKWU ONYEMENAM, J.C.A.: I had read the lead judgment just delivered by my learned brother Mohammed Ladan Tsamiya, JCA before now. I agree with the reasoning and decision that the appeal lacks merit. I also dismiss the appeal.
The Ruling of the Tribunal on 28/2/2012 striking out Appellant’s petition No. GET/BN/03/2011 is hereby affirmed.
I abide by the order as to costs.
Appearances
Mr. C.S. OrpinFor Appellant
AND
Mr Dodo, D.D. SAN with Mr D.C. Denwigwe SAN, Dr. A.A. Ijohor
SAN, H.S. Tsumba, I.A. Nomishan, J.S.T. Anchaver, S.A. Udaga A,
Aligba, Dr A.T. Imbwaseh, S.M.A. Tor Musa, Audu
Anugar T.T. Igba, Terhembe Gbashima, Miss M. L.I Anna Mrs.
N.L. Ikyaagbi and Mr F.T. Kusugh for the 1st Respondent
Mr Solo Akuma SAN with John A.A. Ochoga, Mr C.O. Alechenu, G.E. Ukaegbu, Kenneth Ula, Miss P.N. Jooji, C.T. Mue and Mrs E.R. Terngu for the 2nd Respondent.
Mrs N.D. Ter with Mr E.P. Echor for the 3rd Respondent
Mr M.A. Agber DDPP with P.O. Agbse, state Counsel Benue State Ministry of Justice for the 4th RespondentFor Respondent
