MARCEL IJEOMA OGWUEGBU v. MARK ANAYO AGOMUO & ORS
(1999)LCN/0598(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of April, 1999
CA/PH/EP/68/99(R)
JUSTICES:
SUNDAY AKINOLA AKINTAN Justice of The Court of Appeal of Nigeria
SYLVANUS ADIEWERE NSOFOR Justice of The Court of Appeal of Nigeria
MICHAEL EYARUOMA AKPIROROH Justice of The Court of Appeal of Nigeria
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria
Between
MARCEL IJEOMA OGWUEGBU Appellant(s)
AND
- MARK ANAYO AGOMUO
2. S. S. NWANNE
3. PETER EZENWA ORJI
4. SAM AKUBINE
5. EMMANUEL ONUMAJURU
6. DR. EWURUM (INEC Returning Officer for Ihitte/Uboma Local Government Area)
7. NWOKEIWU VIRGILUS (Returning Officer for Atomerim Ward)
8. NWOKEIWU DAMIAN (Returning Officer for Umuihi Ward)
9. MARK OJUKWU (Returning Officer for Umuihi Ward)
10. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
AKINTAN, J.C.A. (Delivering the Leading Ruling): The applicant, Marcel Ijeoma Ogwuegbu, was a petitioner/cross-appellant in the appeal in this suit which was disposed of by this court on 16/3/99. The appeal was in respect of an election petition filed after the 10th respondent (INEC) had announced the result of the election held for the chairmanship of Ihitte/Uboma Local Government on 5/12/98. The appeal filed against the decision of the Local Government Election Tribunal was dismissed and the judgment of the tribunal was affirmed. The present applicant was a candidate at the election. He was also a party to the petition before the tribunal and the subsequent appeal in this court in the matter. He was in fact a cross-appellant in the appeal.
The applicant has, in his motion dated 12th April, 1999 and filed in the registry of this court on the same day, prayed the court for the following reliefs:
“to review its judgment delivered on the 16th day of March, 1999 for the purpose of correcting the clerical mistake or other error arising from an accidental slip or omission inherent therein.
Alternatively, the applicant will pray that the said judgment be varied so as to give effect to the its meaning and intention.
The applicant further prays for an order of interlocutory injunction restraining the 10th respondent, INEC, from announcing the result of the bye-election pending the determination of this application.”
The motion was supported by a 17-paragraph affidavit sworn to by the applicant and to which a copy of the judgment of this court delivered on 16/3/99 was attached. The applicant also deposed to a 9-paragraph further affidavit to which a copy of the judgment of the tribunal was attached and a 7-paragraph rejoinder to the counter- affidavit of the 1st respondent to which the statement of result sheets as declared by INEC were attached. The motion was opposed by the respondents. To that end, a 13-paragraph counter-affidavit was deposed to by Mark Anayo Agomuo, a legal practitioner acting on behalf of the 1st and 2nd respondents. Another 12-paragraph counter-affidavit deposed to by Aloy Njoku, a litigation officer at the 10th respondent’s Owerri office, was also filed on behalf of the 6th to 10th respondents.
The facts relied on by the applicant, as contained in the various affidavits deposed to by him, are that the applicant contested for the seat of Chairman of Ihitte/Uboma Local Government Area of Imo State at the election held on 5/12/98. The 1st and 2nd respondents contested the same election respectively for the post of Chairman and Vice Chairman of the same Local Government. At the end of the election, the 1st and 2nd respondents were declared by the 10th respondent as winner of the respective office for which they contested. The applicant was dissatisfied with the result as declared and he filed a petition against the result at the Local Government Election Tribunal. The tribunal heard the petition and delivered its judgment on 15/2/99 in which it upheld the applicant’s petition.
The tribunal held, inter alia, in its said judgment that:-
“In Exh. P19, the 1st respondent was credited with 10,209 votes while the petitioner was credited with 9,041 votes. The total scores of the 1st respondent in the 6 polling stations we ordered nullified, viz: J6, J9, J11, J8, G10 and J7 amount to 1479 votes while those scored by petitioner in those same polling stations total to 99 and we order those figures, i.e. 1479 and 99 votes to be deducted from the overall results of the 1st respondent and the petitioner respectively, thus 10,209 minus 1479 gives a balance of 8,730 while 9,041 minus 99 will give a balance of 8,942 votes for the 1st respondent and the petitioner respectively. Those are their lawful scores.”
The present applicant is the one referred to in the above portion of the judgment of the tribunal as the petitioner while the 1st respondent in this motion was also the 1st respondent referred to in the same judgment. Â
The tribunal thereafter made the following order in its said judgment:
“However, in view of the fact that at least 2 polling stations results are not known to anyone, we order the 10th respondent, INEC, to make arrangements to conduct a bye-election in polling stations D2, D7, J6, J9, J11, J8, G10, and J7 between the petitioner and 1st respondent as candidates in order to determine who emerges as the Chairman of Ihitte/Uboma LGA of Imo State. Any votes scored by the candidates in the bye-election are to be added by INEC to the scores already given above – i.e. 8,730 for the 1st respondent and 8,942 for the petitioner.”
The 1st respondent was dissatisfied with the verdict of the tribunal. He therefore appealed to this court against the judgment. The applicant also filed a cross-appeal against the judgment as he too was dissatisfied with some aspects of the said judgment. The appeal and cross-appeal were heard in this court and judgment in the appeal was delivered by this court on 16/3/99. This court (per Aderemi, J.C.A. to which Pats-Acholonu and Akpiroroh, JJ.C.A. concurred) dismissed both the appeal and the cross-appeal and affirmed the judgment and orders made by the tribunal. Aderemi, J.C.A. held, inter alia, in the leading judgment:
“Having held that there was over-voting and deducting the votes credited to each of the original 1st respondent (Agomuo 1st respondent/appellant and original petitioner, Ogwuegbu – petitioner/cross-appellant), the lower tribunal found that 9041 votes were standing to the credit of the 1st respondent (Agomuo) and 8942 in favour of the petitioner/cross-appellant. The difference between 9.041 votes and 8,941 votes is not much … The order of the lower tribunal that a bye-election be held in polling stations D2, D7, J6, J9, J11, J8, G10, and J7 is hereby upheld.”
The errors sought to be corrected are the disparities in the statement in this court’s judgment of the valid votes credited to each of the parties as found and contained in the tribunal’s judgment and in the recording of the wards in which bye-elections were ordered to be held by the tribunal. While the tribunal gave the score of the 1st respondent (i.e. 10,209 minus 1,479) as 8,730 and that of the applicant (i.e. 9,041 minus 99) as 8,942, Aderemi. J.C.A. erroneously gave the figures as 9,041 instead of 8,730 to 1st respondent while 8,942 score of the applicant was correctly stated. He also omitted polling booth with code number J8 in his statement of the polling stations where bye-elections were ordered by the tribunal.
He therefore listed 7 stations instead of 8 stations ordered by the tribunal where bye-elections were to be held.
The 10th respondent held the bye-elections in the 7 stations listed in the said judgment of this court on 10/4/99. No bye-election was held in polling station number J8 omitted in the said judgment of this court. The results form the 7 stations where the bye-elections were held on 10/4/99, as set out in INEC Forms EC 8A (exhibited by the applicant in his rejoinder to the counter- affidavit as Exhs X1-X7) gave the total scores of each of the parties in the bye-election as 543 votes to the applicant and 714 votes to the 1st respondent. If therefore the 543 votes scored by the applicant are added to the 8,942 credited to him by the tribunal and as so ordered by the said tribunal, the petitioners total score in the election would come to(8,942 plus 543) 9,485 while that of the 1st respondent would come to (8,730 plus 714) 9,444. But if the 1st respondent’s scores of 714 in the bye-election are added to the erroneous figure of 9,041 given in this court’s said judgment, his total score would come to (9,041 plus 714) 9.755 thereby making the 1st respondent to be the winner of the election. It is the above slip or clerical errors that the applicant is praying this court to correct in his present motion.
As I have earlier stated above, the motion was opposed and to that end the 1st respondent deposed to and filed a counter-affidavit. A counter-affidavit was also deposed to and filed on behalf of the 6th to 10th respondents. The facts relied on by the 1st respondent as set out in his counter-affidavit are that after this court delivered its judgment on 16/3/99, the 10th respondent scheduled the bye-elections for 10/4/99 and the parties were duly informed. The bye-elections were conducted in the wards named in this courts judgment of 16/3/99 and that as a result of the bye-election the total votes of the 1st respondent, when his scores in the bye-election and the score earlier credited to him in this court’s aforementioned judgment, came to 9,755 as against the applicant’s total score of 9,455. The 1st respondent then maintained that he was duly declared as the winner in the election and that INEC Form EC 8E was issued to him (a copy is exhibited with his counter-affidavit as Exh. 1).
The facts relied on by the 6th to 10th respondents, as set out in the counter affidavit deposed to and filed on their behalf, are that a copy of the said judgment and the enrolled order were served on the 10th respondent shortly after the judgment was delivered on 16/3/99. The 10th respondent thereafter took action as ordered in the judgment by conducting the bye-election in the affected wards as set out in the judgment of this court The results of the bye-elections were added to the scores of the parties as given in our said judgment as a result of which the 1st respondent’s score now came to 9,755 while that of the applicant came to 9,485.
The 1st respondent was therefore duly declared the winner of the elections and was accordingly issued with INEC’s appropriate Form EC 8E.
A notice of preliminary objection was filed on behalf of the 1st and 2nd respondents by their counsel, Mr. Yusuf O. Ali. SAN. In the said notice, it is stated, inter alia, that at the hearing of the motion, the 1st and 2nd respondents would rely upon the following objections, notice whereof is hereby given:-
“That this honourable court lacks jurisdiction to entertain the application filed by the applicant herein having regard to the applicable enactments,”
The grounds of the said objection are given in the notice as follows:
“1. The time within this honourable court has in law to consider and determine an appeal on the last Local Government election and other incidental matters thereto has lapsed by effluxion of time.
2. The powers of this honourable court sitting as a Constitutional Court in election appeal is highly circumscribed by the enabling legislations unlike in other matter’s.
3. The application filed by the applicant is not supported by any affidavit as is legally required.
4. The matter in respect of which the application is directed had already taken place and the application thereby overtaken by events.”
When the motion came up for hearing in this court, we decided to take submission on both the preliminary objection and the substantive matter. Mr. Yusuf Ali. SAN. learned leading counsel for the 1st and 2nd respondents, abandoned the 4th ground of his objection. He however made his submissions in respect of the remaining 3 grounds.
Mr. Yusuf Ali, SAN. in his submission in respect of his first ground of objection, referred to section 90. paras, 2(2) and 52 of Schedule 5 of Decree No. 36 of 1998 and submitted that the last date this court could do anything on the election should be 18/3/99. He therefore submitted that this court could not extend the time within which to do something in the matter. While conceding that this court has the inherent power to correct slips in its judgment in ordinary civil matters provided the advantage is taken within reasonable time after delivery of the judgment, he however argued that such power does not extend to election appeals as in the instant case. This, he submitted, is because this courts power to correct any slip is circumscribed within the 30 days provided by the enabling law.
On the second ground of his objection, the learned senior counsel submitted that by virtue of Section 89 of Decree No. 4 of 1998, this court has not assumed fully all the powers of the Constitutional court created by the same Decree No. 4 of 1998. It is further argued that since the only power given to this court is only to determine appeals on elections, he therefore urged us to hold that the general power of the Constitutional Court cannot be invoked having regard to section 89 of Decree No. 36 of 1998.
The learned senior counsel submitted, on his third ground of objection, by referring to section 13 of Oaths Act (Cap. 333. Laws or Nigeria 1990) relating to what a deponent to an affidavit must subscribe to and Order 3 rule 3(1) of the Court of Appeal Rules. He then submitted that there is no valid affidavit in support of the applicant’s motion as well as the further affidavit subsequently filed. He therefore urged us to strike out the entire motion as there is no valid affidavit in its support, the decision in New Nigeria Bank v. I.B.W. Nig. Ltd (1998) 6 NWLR (Pt. 554) 446
at 454 is cited in support of this submission.
It is submitted in reply by Mr. Udechukwu, SAN, learned leading counsel for the applicant, that the preliminary objection lacks merit and should be dismissed.
He argued that what was before this court was an application to correct errors in a judgment given within time and that what we are called upon to do is to invoke the slip rule which, he submitted, this court has the inherent power to do by virtue of section 6(6)(a) of the 1979 Constitution. He further contended that the power has not in any way been ousted by enabling Decree No, 36 of 1998 and that there is nothing peculiar about election petitions vis-a-vis other matters that would justify the ousting of the application of the slip rule, He urged us to hold that the slip rule could be invoked and made applicable whenever the need arises regardless of the nature of the proceedings and that it is wrong to suggest that the exercise of the power is time-controlled as suggested by learned leading counsel for the 1st and 2nd respondents,
The learned Senior Advocate further submitted that the power of the court to correct a slip can be invoked at any time and that a judge other than the one that delivered the judgment can make the correction. The decisions in Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257 at 274; and Berlin Nig. Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478 among others were cited in support of the above submission.
He finally urged us to hold that there is nothing in the said Decree No. 36 of 1998 that abrogates section 6(6) (a) of the 1979 Constitution. He therefore urged us to over-rule the objection on that ground.
On the 3rd ground of objection, the learned Senior Advocate concedes that the deponent did not use the word “solemnly” twice in the concluding paragraph of his affidavits. But it is submitted that the words used; viz “by virtue of the Oaths Act”, are appropriate and quite adequate. He therefore urged us not to follow the decision in the New Nigerian Bank Ltd v. I.B.W. Enterprises Nig. Ltd. (1998) 6 NWLR (Pt 554) 446 relied on in support of the rejection of the affidavits but that the recent decision in Lonestar Drilling Ltd v. Triveni Eng. & Industries Ltd (1999) 1 NWLR (Pt. 588) 622 at 629 should be followed.
Mr. Yusuf Ali, SAN, in reply, re-emphasised that the powers being exercised by this court are part of those of the Constitutional Court and that where there is a conflict between the powers conferred under section 6(6)(a) of the 1979 Constitution and those in the limited power conferred under Decree 36 of 1998, which he says now exists, the latter in time would prevail. He relied on the decision in Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139 at 163 in support of this submission.
The two main questions raised in the preliminary objection are whether this court has power to entertain the application by virtue of the limitations created by the 2 Decrees referred to above, and whether the motion is in fact supported by any valid affidavit. It has been argued that since this court was exercising part of the jurisdiction conferred on the Constitutional Court, and the fact that the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 specifically provides for a time limit within which all appeals to this court in respect of the Local Government elections held on 5/12/98 must be disposed of, this court cannot entertain an application to correct mistakes under the slip rule, as in the present application, after the expiration of the time prescribed in the said Decree. It is true that it is provided in para. 2(2) of Schedule 5 of the said Decree No. 36 of 1998 that an appeal to this court shall be heard and determined within 30 days from the date the notice of appeal is filed. But correcting errors or slips in a judgment is totally different from hearing and determining an appeal as envisaged in the Decree No. 36 of 1998.
The position of the law is that the court has the inherent power at any time to correct an error in a judgment, decree or order arising from a slip, clerical mistake or accidental omission whether there is or not a general order to that effect: see Berliet Nig. Ltd v. Kachalla (1995) 9 NWLR (Pt.420) 478, Josiah Cornelius Ltd & Ors v. Ezenwa (1996) 4 NWLR (Pt. 443) 391; Olurotimi v. Ige (1993) 8 NWLR (Pt 311) 257; Thynne v. Thynne (1955) P. 272; Adams & Harvey Ltd v. International Maritime Supplies Ltd (1967) I W.L.R. 445; Aguda, Practice & Procedure of the Supreme Court, Court of Appeal & High Courts of Nigeria, 1980, para. 44.22, page 532 and The Supreme Court Practice. 1985, Vol. 1, para. 20/11/1, page 351.
The exercise of this power is not open only to the very judge who delivered the judgment or who made the order or decree. Any other judge in the same jurisdiction can exercise the power; see Bola v. Latunde (1963) 1 All NLR 161; (1963) 1 SCNLR 288.
In the instant case, it has been submitted, inter alia, that since this court is merely exercising some of the powers of the Constitutional Court and since the provision of the afore-mentioned Decree No. 36 of 1998 which prescribes the time limit within which an appeal before this court must be heard and determined, and since this application is not made within that time, this court therefore lacks the jurisdiction to entertain any application to correct any error or slip in its judgment, order or decree as contained in the present application. I entirely disagree with that view which I consider to be a misconception of the law on the matter. I have no doubt in holding that this court’s power to correct any slip or accidental error in its judgment, order or decree remains intact as part of the inherent powers conferred on the court in section 6(6) (a) of the 1979 Constitution. The subsection of the Constitution provides that:
“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 and sanctions of a court of law.”
I believe that the power of a court to correct errors or accidental slips in its judgment, order or decree is one of the inherent powers which is referred to in section 6(6)(a) of the 1979 Constitution. I also believe that the inherent power of a court is of such importance that its removal in any statute must be by express and unambiguous provision. Such provision denying a court of such an important power can therefore not be inferred from a statute which merely prescribes a time limit within which a court should hear and determine an appeal brought before it as it is provided in para. 2(2) of Schedule 5 of Decree No. 36 of 1998. I therefore hold that the provision of the said para. 2(2) of Schedule 5 of the Decree No. 36 of 1998 does not in any way derogate from, or tamper with or in any form affect this court’s inherent power to effect the amendments now sought by the applicant in his motion before this court. I also hold that the fact that this court is merely carrying out part of the jurisdiction conferred on the Constitutional Court in Decree No, 4 of 1998, does not in any way affect the afore-mentioned power of this court to entertain the prayers in the said applicant’s motion now before us, the other point raised in the notice of preliminary objection is whether the affidavit in support of the motion is competent having regards to the provision of section 13 of the Oaths Act (Cap 333. Laws of the Federation of Nigeria 1990) and Order 3 rule 3(1) of the Court of Appeal Rules. It is submitted that as there is no valid affidavit in support of the motion, the application must be struck out. The submission is premised on the contention that both the affidavit attached to the motion as well as the subsequent ones filed also in its support are incompetent. This is said to be because the said affidavits failed to comply with the requirements of the Oaths Act. A decision of the Benin Division of this court in New Nigeria Bank Ltd. v. I.B.W. Nig, Ltd (1998) 6 NWLR (Pt. 554) 446 at 454 is cited in support of this submission. It is submitted in reply that the three affidavits in question substantially met the requirements of the said Oaths Act. Another decision of this court in Lonestar Drilling Ltd v. Triveni Engineering & Industries Ltd (1999) 1 NWLR (Pt. 588) 622 at 629 is also cited in support or this proposition,
Order 3 rule 3(1) of the Court of Appeal Rules provides, inter alia, that “every application to the court shall be by notice of motion supported by affidavit”, Section 13 of the Oaths Act, on the other hand, provides that: “It shall be lawful for any Commissioner for Oaths, notary public or any other person authorized by this Act to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.”
The form set out in the First schedule in respect of a Statutory Declaration is as follows:
“I … do solemnly and sincerely declare that (set out in numbered paragraph if more than one matter) and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act,”
The affidavit in support or the applicant’s motion in this case started and ended thus:
“I … hereby make oath and state as follows: …
That I make this affidavit in good faith and by virtue of the Oaths Act.”
The further affidavit in support of the motion began as in the earlier one attached to the motion already set out above and concluded thus:
“That I make this affidavit bona fide and by virtue of the Oaths Act.”
The third affidavit filed by the applicant which is said to be a rejoinder to the counter-affidavit also started as in the two earlier ones. But it ended as follows:
“That I do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act.
In the New Nigeria Bank v. I.B.W. Enterprises Ltd case supra, the Benin Division of this court (per Rowland, JCA.) held that failure of a deponent to comply with the format prescribed in the Oaths Act could render an affidavit incompetent. I have no doubt in holding that what Rowland, J.C.A. said in that case is a true statement of the law. But on a close look at the provisions of the said section 13 of the Oaths Act, one could say that what the section prescribes is that “It shall be lawful for any Commissioner for Oaths, notary public” etc authorised by the Act to administer an oath. “to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.”
I believe that the form prescribed in the 1st Schedule is expected to serve as a guide as to the form an acceptable oath within the provisions of the Oaths Act should take.
The form prescribed, in my view, is not expected to be rigidly followed word for word or letter by letter. I also believe that what is required therefore is to ensure that there is substantial compliance with the requirement of the Act. A situation therefore where an affidavit would be said to have failed to comply with the requirement of the Act would, in my opinion, depend on the facts in every case.
This is because I believe that it is not possible to lay down a totally rigid general principle on the point.
Thus in the recent case of Lonestar Drilling Nig. Ltd. v. Triveni Engineering & Industries Ltd. supra. I held that the deponent in the case who ended his affidavit as follows:
“I depose to this affidavit in good faith” instead of using the exact words prescribed in the Oaths Act, already set out above, substantially met the requirement of the said Oaths Act. Applying the same principles of law as I have already discussed above to the facts of the present case, I believe that the deponent in each of the three affidavits filed in support of the motion in this case substantially met the requirement of the Oaths Act. Each of the 3 affidavits is therefore valid and I therefore hold that the applicant’s motion is duly supported by an affidavit as required in Order 3 rule 3(1) of the Court of Appeal Rules. In conclusion, I hold that there is no merit in the entire preliminary objection and I, accordingly, dismiss it. I will now proceed to consider the motion on its merit.
Mr. Udechukwu, SAN in moving his motion, referred to the facts deposed to in the affidavits in support of the motion and argued that the errors or slips sought to be corrected are that the proper score of the 1st respondent was incorrectly written and that the number of the polling stations where bye-elections were to be conducted was wrongly stated to be 7 instead of 8. The omitted polling booth is the one with code number J8, The effect of not using the correct score would be that the 1st respondent would be wrongly declared winner of the election.
Similarly, the failure to include the polling station No, J8 would mean that the electorates in that ward would be denied their right to vote contrary to what the court had ordered. It is then submitted that a proper case has been made out to warrant granting the prayers in order to give a true meaning to the judgment in question. The decisions in Olurotimi v. Ige, supra; Berliet v. Kahalla, supra; and Eze v. Obiefuna (1995) 6 NWLR (Pt. 404) 639 “are cited in support of the submission.
Mr. Yusuf Ali, SAN, has, in reply, urged us to refuse the application. He referred to the counter-affidavit filed by the 1st respondent and submitted that the power to correct a slip is never exercised lightly. He then urged us to hold that from the facts established in the case, the applicant has not made out a case to warrant the grant of the prayers. The decisions in Josiah Cornelius Ltd v. Ezenwa, supra; Minister of Lagos Affairs v. Akin-Olugbade (1974) All NLR 748; and Adeniyi v. Asiyanbi (1962) All NLR (Pt.2) 627 were also cited in support of the above submission.
The learned Senior Advocate also urged us not to grant the prayers on the ground of estoppel in that from the facts established in the various affidavits, the applicant should be estopped from complaining against any alleged error in the said judgment delivered on 16/3/99. This is because he took part in the bye-election held on 10/4/99 knowing fully the contents of the judgment in question. The learned senior counsel finally, submitted that the prayers should not be granted in that granting them would amount to resolving an election petition in favour of the applicant, a role in which this court lacks original jurisdiction. It is argued in this respect that tampering with the scores of the parties would amount to changing the result declared by the 10th respondent after the bye-elections ordered by the court in the judgment had been conducted and the results declared.
I have earlier above set out the facts of this case as contained in the various affidavits filed by the parties in the case. What remains to be done is to consider the position of the law and see if, in applying the law to the facts established in the case, the applicant has made out a case to warrant the grant of any of the prayers in his motion.
As I have also held earlier above, this court has an inherent power to correct an error in any of its judgment, order or decree arising from a slip or accidental omission or clerical error. But in exercising this inherent power, the court must be fully satisfied that (a) there is a clerical error or mistake in the judgment or order; or (b) there is an error arising from an accidental slip or omission; (c) it is necessary to do so to carry out its true meaning and to make its meaning plain; and (d) the error or omission must be an error in expressing the manifest intention of the court and the correction can only be made on motion: see Olurotimi v. Ige, supra; Berliet v. Kahalla, supra and Josiah Cornelius Ltd v. Ezenwa, supra.
Applying the law as declared hereof to the facts established in this case, I believe that what this court did in its judgment of 16/3/99 was that it dismissed both the appeal and the cross-appeal filed by the appellant and the 1st respondent/cross-appellant in the case. It then went ahead to affirm the judgment and orders of the tribunal. The mistakes or slips now sought to be corrected were made by Aderemi, J.C.A. in his re-statement of the orders of the tribunal which the appellate court has affirmed. It was then that the learned Justice recorded that bye-elections were to be held by the 10th respondent in seven polling stations he set out instead of in 8 polling stations as set out in the judgment of the tribunal he had earlier affirmed.
He accidentally omitted polling station with code No. J8 while recording the wards in which the bye-elections were to be held. Similarly, the learned Justice again accidentally recorded 9,041 as the score of the 1st respondent to which any vote he might score in the ordered bye-elections should be added. To that end, he mistakenly gave the score as 9,041 instead of 8,730.
I have no doubt in holding that the errors or slips made by the learned Justice come within those that this court has the power to correct. In the result, I hold that there is merit in the application. The amendment sought is accordingly granted as prayed. The polling stations in which the 10th respondent is required to conduct bye-election is hereby ordered to include the polling station with code No. J8 which was mistakenly omitted in the list set out in the afore-mentioned judgment of this court. Similarly the valid votes scored by the 1st respondent and to which the votes his score in the bye-election is to be added is to be changed from 9,041 to 8,730.
The 10th respondent is hereby directed to give effect to the above amendments made to the said judgment of this court delivered on 16/3/99. The prayer for an interlocutory injunction restraining the 10th respondent from announcing the result of the bye-election pending the determination of this application having been abandoned by the applicant is hereby struck out. I will however make no order on costs.
NSOFOR, J.C.A.: I have had a preview in draft of the leading ruling by my Lord, Akintan, J .C.A. just delivered. I am in agreement fully with the reasoning and the conclusion. I shall, however, say a word or two of mine to add a coda.
The application arises from the decision of this court (coram: Pats-Acholonu, Akpiroroh and Aderemi, JJ.C.A.) on the 16-3-99. In the leading ruling, my Lord, Akintan. J.C.A. lucidly and with good grace set out graphically the salient and relevant background facts of the case giving rise to the ruling on the application. I shall, therefore, resist the temptation to repeat the exercise of what has been already done beautifully. I shall however, permit myself, when and where necessary, to reproduce some of the facts necessary to make my comment intelligible.
The applicant (Marcel Ijeoma Ogwuegbu) had presented an election petition to the Local Government Election Tribunal for Imo Suite, following the outcome of the election for the chairmanship of Ihitte/Uboma Local Government on the 5/12/98. He was a candidate in the election.
At the conclusion of the trial, the lower tribunal, in its judgment, dismissing the petition and ordering a bye-election, (see Exhibit 1 verified in paragraph 3 of the further affidavit in support of the application, sworn by the applicant himself) expressed itself, inter alia, as follows:
“In Ex. 19, the 1st respondent was credited with 10,209 votes while the petitioner (the applicant herein) was credited with 9,041 votes.
The total scores of the 1st respondent in the 6 polling stations we ordered nullified viz J.6, J.9, J .11. J.8, G.10 and J.7 amount to 1479 votes while those scored by the petitioner in these same polling stations total to 99 and we order those figures (i.e. 1479 and 99 votes) to be deducted from the over all results of the 1st respondent and the petitioner respectively thus 10,209 minus 1497 gives a balance of 8,730 while 9,041 minus 99 will give a balance of 8,942 votes for the 1st respondent and the Petitioner respectively. Those are their lawful scores.”
Concluding, the tribunal went further and said as follows:-
“However in view of the fact that at least 2 polling stations results are not known to anyone we order the 10th respondent, INEC, to make arrangements to conduct a bye-election in polling stations D1, D7, J6, J9, J11, J8, G10 and J7 between the petitioner and the 1st respondent as candidates in order to determine who emerges as the Chairman of Ihitte/Uboma L.G.A. of Imo State. Any votes scored by the candidate in the bye-election are to be added by INEC to the scores already given above (i.e. 8,730 for the 1st respondent and 8,942 for the petitioner).” ‘
Now, by sheer simple arithmetical calculation. In the intention and decision by the tribunal, before a bye-election be conducted in the eight (8) polling stations in booths (i.e. D2, D7, J6. J9, J 11, J.8, G10 and J7) the positions of the petitioner and the 1st respondent in the race for the coveted seat of the Chairman in the Ihitte/Uboma L.G.A. were therefore:-
(a) petitioner – 8942 votes
(b)1st respondent – 8730 votes.
Up to that stage, too, which votes are majority votes or minority votes are obviously a matter of arithmetical calculation.
Both parties were not satisfied with the decision of the tribunal. So, they appealed to this court, the applicant herein being the cross-appellant and the 1st respondent at the trial the appellant in the main appeal.
This court heard the two appeals – appeal and cross-appeal. In its judgment (per Aderemi. J.C.A) dismissing the appeals (vide Exhibit 2 verified in paragraph 9 of the affidavit by Marcel Ijeoma Ogwuegbu in support of the motion) the court, while upholding the order by the Imo State Local Government Election Tribunal held inter alia:-
“Having held that there was over-voting and deducting the votes credited to each of the original 1st respondent (Agomuo – 1st respondent/appellant) and cross-appellant (Ogwuegbu – petitioner) the lower tribunal found that 9,041 votes were standing to the credit of the 1st respondent (Agomuo) and 8,942 in favour of the petitioner/cross-appellant. The difference between 9,041 votes and 8,942 votes is not much”.
Pausing here for a while, it is very clear to me that this court did not by any means, “nullo modo “, ever intend to favour Agomuo and to disfavour Ogwuegbu when it proceeded mistakenly to ascribe 9,041 votes to Agomuo instead of his 8,730 valid votes. Most certainly, in my view, there occurred an unintentional mix up and accidental errors in ascribing the votes wrongly and inaccurately to the parties respectively. And to insist that the scores respectively ought to so stand before the bye-election be held, would amount to “robbing Peter to pay Paul”. And this ought not to be. The effigy of justice does not carry a cornucopia.
But this does not seem to be the end of the errors or slips in the judgment per Adererni, J.C.A. Concluding, the court said:-
“The order of the lower tribunal that the bye-election be held in polling stations D2, D7, J.6, J.9, J.11, G10 and J.7 is hereby upheld.”
Pausing here again, it becomes crystal clear to me that whilst the court meant and intended to uphold a bye-election in eight (8) polling stations as the tribunal did order, it listed only seven (7) polling stations for the bye-election. The polling station J .8. was clearly omitted by another error or mistake on the part of this court.
It ought to be mentioned that in the interim, INEC, in compliance with the order by this court, had conducted a bye-election in seven (7) instead of the eight (8) polling stations. No bye-election was conducted in polling station J.8 on the 10th April 1999.
The results of the bye-election in the seven (7) polling stations as deposed to in paragraph 7 of the affidavit by Aloy Njoku in opposition are as follows:
(i) Agomuo – 9,755 votes. This is inclusive of the mistaken and incorrect scores awarded to him by the judgment of this court.
(i.e. 9,041 plus 714 votes)
(ii) Ogwuegbu – 9,485, inclusive of the wrong and mistaken scores ascribed to him by the judgment of this court.
Faced with these obvious arithmetical mistakes and errors in the judgment, the applicant moves this court praying it, “to review its judgment delivered on the 16th day of March for the purpose of correcting the clerical mistake or other error arising from an accidental slip or omission inherent therein.
Alternatively, the applicant will pray that the said judgment be varied so as to give effect to its meaning and intention,”
There is the third prayer for an interlocutory injunction restraining the 10th respondent (INEC) from announcing the result of the bye-election pending the determination of this application. From what was said above, this prayer has been overtaken by events. The applicant did not pursue it any further. I therefore, struck it out. Now, when the application came on for the hearing, Mr. Ali. Senior Advocate of Nigeria (SAN), had raised a preliminary objection, a notice of which was served on the applicant. The objection in the main went to the jurisdiction of the court to entertain the application. The back of it all, as counsel contended, was section 90 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No, 36 of 1998 and paragraph 2(2) of Schedule 5 to the Decree No. 36 of 1998. Reference was also made to paragraphs 22 of Schedule 5 to the Decree No. 36 of 1998 and 52 thereof. The gist of the submissions was that the last date the court would do anything on the appeal ought to be the 18th of March 1999.
Accordingly, the court could not by itself extend the time stipulated by the Decree for handling appeals. It lacks the jurisdiction. The senior counsel appeared to me to dichotomise between the inherent power of the court lo correct a slip or slips in cases other than election petition cases and in election petition cases. In the opinion of Mr. Ali, SAN in election petition cases, as in the case giving rise to the application, the power of the court is limited to thirty (30) days for the hearing and disposal of an appeal. He cited decided cases including Sola v. Ojo (1999) 3 N.W.L.R. (Pt. 595) 443.445. Chibueze v. Ibediro (1999) 3 N.W.L.R (Pt.594) 206, 212-215 which I did not find very helpful to me.
It was further pressed on us, relying on section 89 of Decree No. 36 (supra), that the Court of Appeal has not been vested with all the powers of the Constitutional Court.
Now, what does section 90 of the Decree No, 36 (supra) provide? It reads:
The rules of procedure to be adopted for election petition and appeal arising therefrom shall be those set out in Schedule 5 to this Decree.”
Then comes paragraph 2(2) of Schedule 5 to Decree 36(supra), It provides.;
“Notwithstanding the provisions of any other enactment, an appeal arising from the decision of the Election Tribunal on an election petition relating to a Local Government or Area Council election shall be heard and determined within 30 days from the date on which the appeal is filed.”
Pausing here for a while, the first pertinent question arising becomes this:
Q:- In entertaining the present application, is the court hearing and determining an appeal arising from the decision of the decision of the Imo State Election Tribunal?
Ans:- The certain answer is a capital No. Therefore, in my view, the submissions by the senior counsel based on section 90 of the Decree and paragraph 2(2) to Schedule 5 are baseless – brutem flumen – and, consequently, non sequitur.
Now, a distinction was sought to be drawn between the limits of a court exercising inherent powers in cases other than in election petition cases and in election petition cases. I would confess, again with respect to the senior counsel, that I found it unacceptable. It is unconvincing and less than persuasive. In all cases, the purpose of the courts is to do justice between the parties before them. Noting more and nothing less! In my view justice cannot be parceled between case other than election petition cases and election petition cases nor is the time for doing justice in the classes of cases apportioned.
Now, the inherent power of the court is that power which adheres to the court just because it is a court. And if I may diverge to Latin, the word “inherent” (adjective used to quality the noun – “power”) derives from latin “inhaereo” (verb) “inharere – inhaesum” meaning, “to stick in”, “cling to “, or, “cleaves to” a court by the very reason only of its being such a court. “Inherent power” of the court needs not be legislated upon.
Where, however, there be a legislation dealing with such “Inherent power”, it is no longer, in my view, an “Inherent power” Why? Because it. thenceforth, becomes a “statutory power” or, “constitutional power” as the case may be. But in that case too, in my view, the “statutory power” does not detract, or derogate from or, abridge the “inherent power of that court. Why? Again, because it is inherent. In exercising any such power, the court exercises a “statutory power” or, “constitutional power” only.
The argument by the learned senior counsel for the respondents based on section 89 of the Decree No. 36 of 1998 powerful though it appears and, appearances do deceive, does not seem to me to advance the case of the respondents any further. The argument is unconvincing. Why? Because whether the Court of Appeal as a court exercises all or some of the powers of the Constitutional Court pending the appointment of the President and Justices of the Constitutional Court, still yet it is a court in whichever capacity it acts. And being such a court, it is possessed of the “inherent powers” that attach to a court and to it as such a court. No more and no less.
In sum, I am disposed to say, with respect, that the objection to the jurisdiction of this court to hear the application is devoid of any merits. It ought to be dismissed. I do dismiss it accordingly.
Having held as above, the next important question becomes this: From the history of the case giving rise to the application, as recounted above, have there occurred any accidental mistakes, or arithmetical errors, or incidental omissions requiring to be corrected in the exercise of the court’s inherent powers, in order to give effect to what was actually decided and intended? I have no hesitation in answering the poser in the affirmative. Why? Because it is clear to me that there occurred an accidental omission when the polling station J.8 was mistakenly omitted from the list in the judgment of this court where a bye-election ought to be conducted in. Similarly there were arithmetical and accidental errors in ascribing valid votes to the applicant and the 1st respondent in the judgment of this court on 16/3/99. That being so, there is, therefore, need, in my respectful opinion, for the use of the power “inherent” in this court, (the “slip rule”) to correct the errors in the said judgment. There is, therefore, some merit in the application.
I shall, accordingly, order that
(i) a bye-election be conducted in the polling station J.8 omitted in error from the list set out in the judgment of this court on 16/3/99;
(ii) the valid or lawful votes scored by the 1st respondent and to which his scores in the bye-election ought to be added is to be 8,730 votes.
Similarly, the valid or lawful votes scored by the applicant(Ogwuegbu) to which his votes scored in the bye-election ought to be added is to he 8942 votes. The above would be the justice of the matter in determining who scores the majority of voles to occupy the Chairman post in the Ihitte/Uboma L.G.A.
The 9th respondent (INEC) is directed to give effect to the above mentioned amendments made to the judgment of the court on 16/3/99.
It is for my above reason and for the reasons more fully detailed in the leading ruling that I do gram the application and allow the motion. I make no order for costs.
AKPIROROH, J.C.A.: I have had the privilege to read in draft the judgment just read by my learned brother Akintan J.C.A. His Lordship in his usual style exhaustively discussed the two issues raised in this appeal for determination. I agree entirely with the reasoning and the conclusion reached by him that the court has an inherent power to amend or vary its judgment where that is a clerical mistake in the judgment or order or an error arising from accidental slip or omission, or it is necessary to do so to carry out its own meaning and to make it meaning plain as in the instant case. See Olurotimi v. Ige ( 1993) 8 NWLR (Pt.311) page 257 at 274 and Order 5 rule 3 of the Court of Appeal Rules.
It is for this and the detailed reasons given in the lead judgment of my learned brother Akintan J .C.A, that 1also dismiss the preliminary objection as unmeritorious and grant the amendment sought in the application in order to carry out and make the meaning of the judgment plain.
I also make no order as to costs.
AKAAHS, J.C.A.: I have read in draft the ruling just delivered by my Lord Akintan J.C.A, I am in total agreement that the preliminary objection by Chief Ali, S.A.N is devoid of merit and should be overruled, I wish to add a point or two for emphasis.
It is true that Schedule 5 paragraph 2(2) to the Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 of 1998 circumscribes a 30 day limit for the hearing and determination of appeal arising from the decision of the Election Tribunal on an election petition relating to a Local Government or Area Council election. The issue which this court is being called upon to consider is not an election appeal but rather the court’s inherent jurisdiction to correct a slip which has been preserved by section 6(6)(a) of the 1979 Constitution. Section 258(1) of the 1979 Constitution (as amended) has “similar intendment as Schedule 5 paragraph 2(2) to the Decree regarding the delivery of judgment after hearing in the case has been concluded. If the argument being advanced by Chief Ali learned senior counsel is pursued to its logical conclusion, it will mean that correction to a judgment cannot be made after three months and any correction to be allowed must be within the three months for delivery of the judgment. I cannot see any contradiction between section 6(6) (a) of the 1979 Constitution and Schedule 5 paragraph 2(2) to the Decree.
The inherent power of a court to amend or vary its judgment or order is limited only to situation where:-
(a) there is a clerical mistake in the judgment or order; or
(b) then: is an error arising from an accidental slip or omission: or
(c) it is necessary to do so to carry out its own meaning and to make its meaning plain, The error or omission must however be an error in expressing the manifest intention of the court and the correction can only be made on motion. See Olurotimi v. Ige ( 1(93) 8 NWLR (Pt. 311) 257.
In J.C. Ltd v. Ezenwa (1996) 4 NWLR (Pt. 443) 391, Mohammed JSC commenting on the use of the slip rule to correct an earlier order stated at page 411 thus:-
“It is well settled that a court, while able to correct a misnomer or misdescription under the ‘slip rule’ will not under that rule, whether in the exercise of its inherent jurisdiction or by the powers conferred by the Rules of court, vary a judgment or order which correctly represents what the court decided, nor will it vary the operative and substantive part or its judgment so as to substitute a different form.
See Macarthy v. Agard (1933) 3 K.B. 417 and Preston Banking Co v. William Allsup & Sons (1995) 1 CH.D at page 143.”
In Berliet (Nig) Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420)478 it was held:”
The court, once judgment is entered, cannot alter its decision, what can be altered is not as to substance but as to minor errors whether of spelling or that of typographical, or in the form of mathematical error wherein correct figures can be entered.”
Applying the principles contained in the decisions cited above, I am of the firm view that this is a proper case in which this court can exercise its inherent jurisdiction of using the slip rule to correct the errors in the judgment delivered by this court on 16/3/99, This court had expressed the view that;
“The justice of this case demands that both parties should go back to seek the mandate of the electorate in the polling booths where elections were nullified'”
Earlier in the judgment it had shown that the lower tribunal in its judgment ordered that fresh or bye-election be conducted in polling stations D2, D7, J6, J9, J11. J8, G10 and J7. The court upheld the order made by the lower tribunal that bye-elections should he held in those booths where the results had been nullified for over-voting. To give full effect to this order it is necessary to refer to the judgment of the tribunal to ascertain the booths where the bye-elections were to take place.
The tribunal had stated in its judgment at page 153 thus:-
“However in view of the fact that at least 2 polling station results are not known to anyone we order the 10th respondent INEC to make arrangements to conduct a bye-election in polling stations D2, D7, J6, J9, J 11, J8, G10 and J7.
It was definitely not the intention of the court to exclude booth J8 in the bye-election.
The omission therefore is a genuine slip which can be corrected.
On the scores credited to the appellant and the 1st respondent, there was a mathematical mix up. The tribunal had found that the appellant was credited with 9,041 votes while the 1st respondent had 10,209 votes. The tribunal further found that the score in favour of the appellant for over-voting was 99 votes while that of 1st respondent was 1,479 votes. The tribunal then deducted those votes from the total scores and left the appellant with 8,942 votes while the 1st respondent’s score came down to 8,730 votes.
In reference to the exercise carried out by the tribunal this court stated in its judgment of 16/3/99 thus:
“Having held that there was over-voting and deducting the votes credited to each of the original 1st respondent (Agomuo – 1st respondent/appellant) and the original petitioner (Ogwuegbu petition/cross-appellant) the lower tribunal found that 9,041 votes were standing to the credit of the 1st respondent (Agomuo) and 8,942 in favour of the petitioner/cross-appellant. The difference between 9,041 and 8,941 votes is not much.”
This certainly did not represent what the tribunal found or recorded. It would have been a different thing if this court was expressing its own view on the issue. This is a clear accidental omission which can be corrected in order to give full meaning and effect to the tribunal’s finding. It is a glaring error which was made in favour of the 1st respondent and ought to be corrected. For the avoidance of doubt, the scores for each candidate in the booths where bye-elections were ordered to be held including J8 should be added to 8,942 votes for the appellant and 8,730 for the 1st
respondent to determine the scores and the person to be declared as having won the chairmanship election of Ihitte/Uboma Local Government.
The more detailed reasons why the preliminary objection must fail and the substantive motion succeed have been well articulated by my Lord Akintan. J.C.A. I therefore adopt them as my own.
IKONGBEH, J.C.A.: This should have been a simple matter, which ought not to have taken more than a few moments to dispose of. But then, we live in a world where attempt will always be made to take advantage of all and every technicality, wholesome or otherwise.
On 16/3/99 we dismissed the appeal filed by the 1st respondent herein and the cross-appeal filed by the applicant herein against the decision of the Imo Slate Local Government Election Tribunal. We affirmed in their entirety the findings made by the trial tribunal regarding the votes scored by the applicant and the 1st respondent at the election of 5/12/98 and the order made by it for the holding of bye election. One of the findings was that, after deducting the excess votes wrongly recorded for the applicant and the Ist respondent herein in some polling stations, the score of the applicant was 8,942 votes while that of the 1st respondent herein was 8,730 votes. The finding of the tribunal, which we confirmed, was, therefore, that the applicant got the higher of the two scores.
We had no intention whatsoever of reversing this position. In repeating the finding of the tribunal with a view to giving effect to it, however, we mistakenly recorded that the tribunal found 9,841 votes to the credit of the 1st respondent instead of 8,730, thus unintentionally shooting him over the applicant. Thus whereas the mind intended to, and the mouth did, pronounce the applicant to have the higher score, the hand could not keep pace with the other two, and so committed an obvious error, by reason or which the declared intention was not brought to fruition.
With respect to the order for bye-election we affirmed the order of the tribunal that bye-election be held in 8 polling stations. In listing those polling stations, however, we inadvertently left out the name of one. The applicant herein is not complaining about the dismissal or his cross appeal. All that he has asked for is that we rectify the obvious errors on our part, which errors are keeping him from reaping the benefit of the judgment that we had affirmed in his favour.
Wherein, pray, lies the difficulty here? Does the law not permit us to grant this simple request, which has been necessitated by our own mistake in the first place? It certainly does, and we ought to grant it without further ado.
A ready answer is provided by the Supreme Court, per Obaseki, J.S.C. In Umunna v. Okwuraiwe (1978) 11 N.S.C.C. 319, at 324-326, his Lordship had this to say:
“We cannot doubt that under the original powers of the courts, quite independent of any order that is made under the governing statute, every court has power to correct accidental slips and omissions properly brought to its notice. Lord Hobhouse delivering the opinion of the Board of Privy Council in the case of Milson v. Carter (1893) A.C. 638 observed at pages 639-640:
‘This is an application on the part of the respondent in the appeal now dismissed Milson v. Carter asking for an order directing the appellant to pay the costs of and incidental to the appeal and also the costs of the present application.
It is obvious that the omission to provide for the case for dismissal under the order of June, 1853 – a case of constant occurrence – must have been an accidental omission for which the registrar of the Supreme Court or perhaps the respondent himself is to blame. It is impossible to suppose that the court could have intended to give the appellant an opportunity of shuffling out of his liability by making defaults in the prosecution of his appeal.
Their Lordships do not doubt that the court has power at any time to correct an error in a decree or order arising from a slip, whether there is or is not a general order to that effect.
A recent instance of the exercise of this power occurred in the case of Hatton v. Harris before the House of Lords (1892) App. Cas. 547 where an error arising form an accidental omission was corrected after the lapse of forty years.
The minute of a judgment can in our opinion be corrected suo motu at the time of reading the judgment as it has the effect and force of a decree. Order 29 rule 4 of the High Court (Civil Procedure) rules reads:
‘A minute of a judgment whether final or interlocutory shall be made and every such minute shall be a decree of the court and shall have the full force and effect of a formal decree. The court may of its own motion or on the application of either party order a formal decree to be drawn up.’
In the case of Federal Public Trustee v. Mrs. CA. Sobamowo (1967) N.M.L.R. 350 Taylor C.J. exercised this power quite rightly in our view to correct accidental slips and omissions in the judgment and orders of the court.”
(Italics mine for highlight)
But then, Mr. Yusuf Ali, S.A.N., for the 1st respondent, has forcefully argued, while taking a preliminary objection to the hearing of the application, that because this is an election petition, which is sui generic, the slip rule, applicable to judgments in ordinary civil proceedings, has no application. This, according to the learned Senior Advocate, is because of the combined effect of section 90 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. and paragraphs 2(2) and 52 of Schedule 5 thereto. His argument on this point was this. Section 90 stipulates that the procedure to be adopted for dealing with appeals from the tribunal should be as set out in Schedule 5. Paragraph 2(2) of the Schedule stipulates that notwithstanding the provisions of any other enactment, appeals from the tribunal are to “be heard and determined” within 30 days from the date on which the appeal is filed. Paragraph 52 directs this court to determine appeals from the tribunal in accordance with the practice and procedure relating to appeals in the Constitutional Court and stipulates that in adopting such procedure regard should be had to the need for urgency in electoral matters. The situation created here, particularly by the language of paragraph 2(2), is that everything about the appeal must be completed and done with within the stipulated time. It is different from the situation created in section 258 of the 1979 Constitution, which only requires the court to “deliver its decision” within 3 months. The magic, in learned senior counsel’s view, resides in the difference in the use of terms. Under the Constitution all that the court is bound to do within a prescribed time is to deliver its decision. After it has done that within time, the judgment is still within its reach and it can do to it all such things as can be done to a judgment that has been delivered, like applying the slip rule to correct errors and slips. On the other hand, paragraph 2(2) of Schedule 5 to Decree 36 of 1998 requires the court not just to deliver its decision within the prescribed time, but also to ensure that the appeal is “determined”. This word as used here suggests, in senior counsels view, that the court must finish everything about the appeal and put it away, as it were, for good.
Thus, in the view of the learned Senior Advocate, once the 30 days within which judgment of this court in an appeal from the tribunal must be delivered has elapsed the judgment goes out of reach of the court. Any accidental slip, no matter how glaring and no matter how hard and loud it cries out for rectification, that was not rectified within the time limit, remains there, to howl unheeded for mercy till the end of time! “The power to correct slips’ the learned Senior Advocate contended, “is circumscribed within the 30days given for disposing of all appeals.”
For this reason, the learned SAN submitted, the inherent powers of the court recognised by section 6(6) (a) of the Constitution cannot, in the circumstances, override the statutory provisions as to time limit stipulated in paragraph 2(2) of Schedule 5, which in any event, is superior to the constitutional provisions.
With the profoundest respect to the learned Senior Advocate of Nigeria. I cannot accept the interpretation he has placed on the term “hear and determine” as used in paragraph 2(2) of Schedule 5 to Decree 36 of 1998. In my view, the term means no more than that the court should hear evidence, if any, take addresses, if any, consider the evidence in the light of the applicable law, and come to a determination on whether or not the appeal has merit. I see nothing in any of the words, individually or in the language composed by a combination of them or some of them, to suggest that once that determination is arrived at the court’ s hands are washed off the matter, such that it can no longer call up the record for the purpose of correcting errors and accidental slips. In my view the message conveyed by the sub-paragraph is the same as that in section 25(1) of the Constitution. The message in both provisions is, in my view, no more than that the court is required to deliver its judgment within the stipulated lime. No riders of whatever description are attached. I see nothing in paragraph 2(2) precluding the court from applying the slip rule to correct errors in its judgment delivered in appeals from decisions of the tribunal. It can apply the rule to a judgment delivered under the paragraph just as it can under section 258(1) of the Constitution.
For comparison purposes I reproduce both provisions:
Para. 2(2)
“(2) Notwithstanding the provisions of any other enactment, an appeal arising from the decision or the Election Tribunal on an election petition relating to a Local Government or Area Council election shall be heard and determined within 30days from the date on which the appeal is filed.”
Section 258
“258(1) Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof.”
The learned Senior Advocate submitted also that another reason why this court cannot grant the application is that when sitting to hear appeals from the tribunal this court does not sit as the Court of Appeal but as the Constitutional Court. It cannot, therefore, exercise any of its powers qua Court of Appeal when hearing appeals from the tribunal, not even the inherent powers of the Court of Appeal under section 6(6) (a) of the Constitution. The only powers of the Constitutional Court conferred on this court by section 89 of Decree 36 of 1998 are the powers that the Constitutional Court can exercise under this Decree, not the general powers that the court can exercise under the Decree creating it, not even the inherent powers of that court mentioned in that Decree. That is the power to hear appeals from the tribunal: Nothing more, nothing less. Everything that the learned Senior Advocate of Nigeria said boils down to this; That this court, when sitting as the Constitutional Court to hear appeals from an Election Tribunal, is a court without inherent powers, at least the inherent powers to correct obvious errors and accidental slips. Is this a possible situation?
I have no hesitation in supplying an emphatic negative answer to this poser. It is utterly, utterly impossible for a court to exist, without inherent powers. The word “court”, importing adjudicatory capabilities in the entity to which it is applied, at once conjures up the notion of inherent powers. That is, the power to fulfill itself as the entity denoted by that word. A court must have some in-born power, beyond the specific power given to it to act as a court, to enable it function as a court. A court without inherent powers can only be likened to a very good looking wheel on a car that has no ball bearings or grease in the hub. Such a contraption may look like a wheel, but can never function properly, as a wheel.
Perhaps I lack the words with which to express the notion fully. I shall, therefore, have recourse to Supreme Court for aid. Of courts and the notion of inherent powers, Oputa, J.S.C., expressed himself thus in Adigun v. A. – G.. Oyo State (1987) 2 N.W.L.R. (Pt. 56) 197, at 235:
“Simply put, the inherent power of any court is that power which is itself essential to the very existence of the court as an institution and to its ability to function as such institution – namely as an institution charged with the dispensation of justice, such as the power to punish for contempt, the power to grant an adjournment in the interest of justice etc. An inherent power has to be inherent in the sense that it forms an essential and intrinsic element in the whole process of adjudication. It is innate in a court, and is not a subject of specific grant by the Constitution or by legislation. That is why inherent powers of the courts cannot be taken away or abridged by legislation for he who gave, he only can take away.
This explains section 6(6) (a) of the 1979 Constitution which merely recognized and stated the obvious – that the inherent powers of a court of law exist ‘notwithstanding anything to the contrary in this Constitution’ for such powers were not granted by the Constitution. As soon as any court is established, all its inherent powers adhere and attach to it. Inherent powers of the court are therefore those powers that are reasonably necessary for the administration of justice in the court.”
Fortified by this authoritative statement, I hold that this court, whether sitting qua the Court of Appeal or qua the Constitutional Court for the specific purpose of hearing and determining appeals under Decree 36 of 1998, always has inherent powers, in appropriate cases, to correct errors or accidental slips in its judgment, no matter how long after the judgment, provided of course, the conditions are ripe for such course of action. The error in Hatton v. Harris, to which reference was made in Milson v. Carter, cited by Obaseki, J.S.C., in Umunna v. Okwuraiwe (supra), was made 40 years after delivery of the judgment.
I have read in the draft the ruling just delivered by my learned brother, Akintan, J.C.A. For the fuller reasons he has given in the lead ruling, I agree that the preliminary objection taken on behalf of the 1st respondent should be overruled. I too overrule it. I agree also that the application be granted. I too grant it. I abide by all the consequential orders made in the lead ruling.
Application granted
Appearances
- U. Udechukwu, SAN (with him, M. H. Obi and I. U. Oji) For Appellant
AND
Yusuf O. Alli, SAN (with him, N. D. Uhuegbu, K. K. Eleja and C I. Chiwike)
F. A. Okere, Principal Legal officer, Imo State For Respondent
