SENATOR NKECHI NWAOGU V. HON. EMEKA ATUMA & ORS
In The Supreme Court of Nigeria
On Thursday, the 1st day of November, 2012
SC.10/2012 (R2)
JUSTICES
MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria
MUHAMMAD SAIFULLAH MUNTAKA-COOMASIE Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria
STANLEY SHENKO ALAGOA Justice of The Supreme Court of Nigeria
Between
SENATOR NKECHI NWAOGU Appellant(s)
AND
- HON. EMEKA ATUMA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. PEOPLE DEMOCRATIC PARTYAND1. PROGRESSIVE PEOPLES ALLIANCE
2. CHIEF KEVIN CHIMA UGBOAJAH Respondent(s)
RATIO
THE GENERAL POWER OF THE SUPREME COURT
Section of the Supreme Court Act is on the general power of the Supreme Court. It is hereunder reproduced:
“s.22. The Supreme Court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment on the appeal and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purpose of such rehearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court.”
One golden thread that traverses the rather elaborate provision reproduced above is the subrogation of the apex Court for the Court below in an appeal. The power of the Court under section 22 of the Act is limited to an appeal before it and the relief sought must be one which the Court below could have granted based on the facts before it.
The determinative question is: Could the Court of Appeal have granted an order joining the applicants as respondents in the appeal before that Court I am constrained to answer the poser in the negative for the simple reason that there was no application for joinder of the applicants before the Court of Appeal and the said Court could not have validly granted an order not sought. It is a different thing if the order was sought and the Court of Appeal refused to grant it. The Court cannot consider whether or not the Court below could have granted the order as the same was not before it, i.e. the Court below. PER NGWUTA, J.S.C.
THE INHERENT POWERS OF THE SUPREME COURT
The Inherent Powers of the Court are recognised and preserved by s.6 of the Constitution of the Federal Republic of Nigeria 1999 as amended. It provides:
“S.6 (6). The judicial powers vested in accordance with the foregoing provisions of this Section –
(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers of Law.”
Inherent power is inborn in the Court. It enables the Court to deal with diverse matters over which it has intrinsic authority such as procedural rule making, regulating the practice of law and general judicial housekeeping. See Black’s Law Dictionary 9th Edition at page 853.
Inherent powers of the Court of law are powers which enable it effectively and effectually to exercise the jurisdiction conferred upon it. See Prince Yahaya Adigun & Ors. v. A-G Oyo State (1987) 4 SC 272 at 277.
Writing on the inherent powers of the Court, Lord Morris said:
“There can be no doubt that a Court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within its jurisdiction. A Court must enjoy such powers in order to enforce its rules of practice and to suppress any abuse of its process and defeat any attempted thwarting of its process.” See Connelly v. DPP (1964) AC P 1301.
Inherent powers of the Court can be invoked in the interest of justice to supplement the statutory jurisdiction where the exercise of such jurisdiction is likely to result in injustice. Inherent powers of the Court cannot be invoked so as to confer jurisdiction on the Court where none exists. PER NGWUTA, J.S.C.
NWALI SYLVESTER NGWUTA, J.S.C. (Delivering the Lead Ruling): This is an application brought by the two applicants seeking the following reliefs:
“1. An order granting leave to the Applicants to be joined in this appeal as respondents.
2. An order joining the Applicants as the 4th and 5th Respondents in this appeal…”
The application “brought pursuant to section 22 of the Supreme Court Act, Order 2 R. 28 of the Supreme Court Rules (as amended in 1999) and under the inherent powers of this Honourable Court” is predicated upon the following grounds:
“1. The 2nd Applicant stood for election into the Senate of the Federal Republic of Nigeria on the platform of the 1st Applicant, Progressive Peoples Alliance (PPA) on the 9th April 2011 general election where he contested against the Appellant (candidate of the 3rd Respondent) amongst others.
2. The judgment of the Court of Appeal the subject of this appeal favours the Applicants, particularly the 2nd Applicant who stands to become Senator representing Abia Central Senatorial District being the person with the highest number of votes at the 9th April 2011 general election next after the Appellant, who together with her Political Party, the 3rd Respondent, were disqualified by the said judgment from contesting the election.
3. The Applicant in this appeal is seeking by the reliefs in her notice of appeal to have the said judgment set aside by this Honouroble Court.
4. The 1st Respondent/Cross Appellant who did not participate in the general election and who by that very fact cannot be declared by any Court as winner, is seeking to take benefit of the aspect of the judgment of the Court of Appeal which disqualified the Appellant and seeking to reverse the aspect thereof which held that the 3rd Respondent had no candidate at the general election of 9th April 2001, with a view to emerging winner of the general election for the Abia Central Senatorial District as candidate of the 3rd Respondent.
5. The Applicants will be directly affected by the outcome of this appeal and the cross-appeal.
6. It is in the interest of justice to join the Applicant as a Respondent in this appeal.”
The application is supported by 8-paragraph affidavit. The facts averred therein are mostly expatiation of the grounds upon which the application was brought.
In opposing the application, the appellant filed a 15-paragraph counter affidavit denying the relevant averments in the supporting affidavit. The 1st and 3rd Respondents also filed counter affidavits of 17 and 16 paragraphs respectively, contesting the averments in the supporting affidavit.
At the hearing of the application, learned Counsel for the parties relied on their respective affidavit evidence.
It is appropriate to start this Ruling with a consideration of the Law, the rule and the Powers relied on by the applicants. Section of the Supreme Court Act is on the general power of the Supreme Court. It is hereunder reproduced:
“s.22. The Supreme Court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment on the appeal and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purpose of such rehearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court.”
One golden thread that traverses the rather elaborate provision reproduced above is the subrogation of the apex Court for the Court below in an appeal. The power of the Court under section 22 of the Act is limited to an appeal before it and the relief sought must be one which the Court below could have granted based on the facts before it.
The determinative question is: Could the Court of Appeal have granted an order joining the applicants as respondents in the appeal before that Court I am constrained to answer the poser in the negative for the simple reason that there was no application for joinder of the applicants before the Court of Appeal and the said Court could not have validly granted an order not sought. It is a different thing if the order was sought and the Court of Appeal refused to grant it. The Court cannot consider whether or not the Court below could have granted the order as the same was not before it, i.e. the Court below.
In my humble view, section 22 of the Supreme Court Act does not avail the applicants. The Supreme Court is without power to make an order which the Court below could not have made since no such application was made before it.
Order 2 r. 28 specifies the procedure to follow on application to the Court.
For the purpose of the application, the relevant sub rule is hereunder reproduced:
“Ord. 2 r. 28(1). Every application to the Court shall be by notice of motion supported by affidavit. It shall state the rule under which it is brought and the ground for the relief sought.”
This is a general provision on procedure. Even though the applicants complied with it, it does not create any relief and none can be granted pursuant to it. Again, Order 2 r. 28 of the Supreme Court Rules does not avail the applicants.
The Inherent Powers of the Court are recognised and preserved by s.6 of the Constitution of the Federal Republic of Nigeria 1999 as amended. It provides:
“S.6 (6). The judicial powers vested in accordance with the foregoing provisions of this Section –
(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers of Law.”
Inherent power is inborn in the Court. It enables the Court to deal with diverse matters over which it has intrinsic authority such as procedural rule making, regulating the practice of law and general judicial housekeeping. See Black’s Law Dictionary 9th Edition at page 853.
Inherent powers of the Court of law are powers which enable it effectively and effectually to exercise the jurisdiction conferred upon it. See Prince Yahaya Adigun & Ors. v. A-G Oyo State (1987) 4 SC 272 at 277.
Writing on the inherent powers of the Court, Lord Morris said:
“There can be no doubt that a Court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within its jurisdiction. A Court must enjoy such powers in order to enforce its rules of practice and to suppress any abuse of its process and defeat any attempted thwarting of its process.” See Connelly v. DPP (1964) AC P 1301.
Inherent powers of the Court can be invoked in the interest of justice to supplement the statutory jurisdiction where the exercise of such jurisdiction is likely to result in injustice. Inherent powers of the Court cannot be invoked so as to confer jurisdiction on the Court where none exists.
I have already stated in this ruling that this Court has no jurisdiction, irrespective of the all encompassing provision in s.22 of the Supreme Court Act, to make an order relating to an issue not agitated before the lower Court. Therefore, since the motion for joinder as respondents was not canvassed by the applicants before the Court below, the inherent powers of the Court cannot be invoked to invest jurisdiction in the Court to deal with the matter.
None of s.22 of the Supreme Court Act, Ord .2 r.28 of the Supreme Court Rules and the Inherent Powers of the Court can be relied on by this Court to grant a relief which was not asked for in the Court below and which is not necessary for the proper determination of the appeal to which the applicants are not parties either on record or of necessity. I know of no precedent, if one exists, upon which this Court can rightly make an order based on the slanted interpretation by the applicants of the judgment and processes in a case to which they are not parties, for their own benefit, there being no showing that the order is necessary for the proper determination of the appeal before the Court.
The absence of any precedent at all may be a spur to valour. In fact as, Lord Elsmere L.C. said: “Every precedent had first a commencement.” See Case of Proclamations (1610) 12 10 Rep.74. Be that as it may, I choose the side of Coke, CJ in his reply:
“When authority and precedent is wanting, there is need of great consideration, before that any thing of novelty shall be established.” See Case of Proclamations (supra) p.75.
In my humble view, this application by the applicants/Parties seeking to be joined as respondents in an appeal that arose from a matter in which they were not parties either in the trial Tribunal or in the Court below smacks of a desperate attempt to extract from this Court what was lost in a separate Suit in the trial Tribunal and by his own showing, denied the 2nd Respondent by the Independent National Electoral Commission on the 2nd Respondent’s application to the electoral umpire.
Above all, from the grounds of the application and the affidavit evidence, it is beyond dispute that the Respondents and the applicants who seek to join them as co-respondents, have diametrically opposed and adverse interest in the subject of this appeal. The applicants and the Respondents are in my view, based on the processes before the Court, unlikely bed fellows. It will be stretching logic to absurd and illogical dimensions to join the applicant as co-respondents in this appeal.
The law is not necessarily an ass as the popular saying goes. On the contrary, some supplicants before the throne of justice sometimes tend to infect the law with the traits of an ass. For instance, should this application be granted and the appeal eventually dismissed who, among the 1st Respondent and the 2nd Applicant occupies the Abia Central Senatorial District, the subject matter in contention in the appeal. This will result in a fresh and acrimonious litigation by the respondents inter se. The law would have created a fresh dispute by its resolution of the previous one, contrary to the intention to bring an end to litigation.
In the event the applicants’ dreams materialize in the form of the judgment yet to be delivered by this Court conferring any right on them they can decide if, and when, and where and how to pursue such right.
Based on the foregoing, not only is the application bereft of merit, it borders on abuse of Court process and the same is hereby dismissed. Parties shall bear their respective costs.
MAHMUD MOHAMMED, J.S.C.: I have been privileged before today of reading the lead Ruling just delivered by my learned brother Ngwuta, J.S.C. I entirely agree that the applicants in the application for leave to join this appeal as Respondents, particularly as 4th and 5th Respondents, have not satisfied the requirements of the law to warrant grating their application. Thus, the applicants having failed to bring themselves within the language of Section 233(5) of the 1999 Constitution of the Federal Republic of Nigeria as being persons having interest in the matter being the appeal No. SC.10/2012 now awaiting hearing in this court, their application must fail. Accordingly, I also dismiss the application with no order on cost.
STANLEY SHENKO ALAGOA, J.S.C.: I read before now the ruling just delivered by my brother Nwali Sylvester Ngwuta, J.S.C. and I am also of the view that the application lacks merit and should be dismissed. The paramount question ought to be and indeed is, whether the Court of Appeal should have granted this order being sought for joinder in the present appeal. The order for joinder was not sought for by the Applicants in the Court of Appeal and that order cannot be sought for in this Court. This court can only invoke its powers under Section 22 of the Supreme Court Act only with respect to appeals before it. The Applicants not having been parties in the tribunal and the Court of Appeal, it will be incongruous for them to seek to be joined as parties to this appeal. For these reasons and the fuller reasons contained in the lead ruling of my learned brother, I also dismiss the application and order that parties be made to bear their own costs.
Appearances
Chief Wole Olanipekun (SAN) with J. N. Egwuonwu, Olugbenga Adeyemi, Chris Kelechi Udeoyiobo, A. S. Akingbade, D. H. Bwala, U. M. Jawar, Aisha Ali (Miss), Olubuola Araromi (Mrs.), Dayo Adesina, Emeka Eze and Abraham Anyanwu For Appellant
AND
Chief Akin Olujimi (SAN) with Akinsola Olujimi, Ayodele Akinsanya Oluseyi Adetami and Ibukun Fasanmi – for the 1st Respondent/Cross-Appellant.
Dr. Onyechi Ikpeazu (SAN) with Lynda Chuba Ikpeazu and Mavis Ekwechi – for the 2nd Respondent
R. A. Lawal-Rabbana (SAN) Nnamdi Nwokocha Ahaaiwe, Nnedinma Harry (Mrs.), Wole Odeleye and T. Busari for the 3rd Respondent
Paul Chibuike Ananaba (SAN) with Chief Theo Nkiri, Dr. Eze C. Ngwakwe, Nwala Chudie Oracle, Ogbonna Ogechi, Joel Nwachukwu and Samuel O. F. Iheonunekwu for interested parties to be joined in the appeal as Appellants
A. I. Aderogba with H. A. Osigbemhe for the other parties seeking to join the appeal as Respondents. For Respondent
