ALHAJI MUHAMMADU MAIGARI DINGYADI & Another v INDEPENDENT NATIONAL ELECTORAL COMMISSION and Others (SC.32/2010) [2011] NGSC 15 (8 April 2011)

CHRISTOPHER MITCHELL CHUKWUMA-ENEH

....... Justice of the Supreme Court

JOHN AFOLABI FABIYI

....... Justice of the Supreme Court

OLUFUNLOLA OYELOLA ADEKEYE

....... Justice of the Supreme Court

SULEIMAN GALADIMA

....... Justice of the Supreme Court

BODE RHODES-VIVOUR

....... Justice of the Supreme Court

1. ALHAJI MUHAMMADU MAIGARI DINGYADI 
2. DEMOCRATIC PEOPLE PARTY

Appellants

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION 
2. ALIYU MAGATARKADA WAMAKKO 
3. PEOPLES DEMOCRATIC PARTY

Respondents

RATIO DECIDENDI

1

CASE LAW - STARE DECISIS: Doctrine of stare decicis

"Under the doctrine of stare decisis, lower courts are bound by the theory of precedent. It is in effect a doctrine which enjoins judges to stand by their decisions and the decisions of their predecessors however wrong they are and whatever injustice they inflict. All courts established under the constitution derive their powers and authority from the constitution. The hierarchy of courts shows the limit and powers of each court. It is to ensure that hierarchy of the court is never in issue. Mohammed v. Olawunmi (1993) 4 NWLR (pt.287) pg. 254 7 up Botlling Co. Ltd. v. Abiola & Sons (Nig) Ltd. (1995) 3 NWLR (pt. 883) pg. 257 Osho v. Foreign Finance corporation (1991) 4 NWLR (pt.184) pg. 157 Dalhatu v. Turaki (2003) 15 NWLR (pt.843) pg. 310 University of Lagos v. Olaniyan (1985) 1 NWLR (pt.1) pg. 156 The doctrine of judicial precedent does not involve an exercise of judicial discretion at all - it is mandatory. Amaechi v. INEC (2008) 5 NWLR (pt.1080) pg. 227." PER ADEKEYE, J.S.C (Pp.57-58, Paras E-D)

2

COURT - JURISDICTION: Jurisdiction of the court to prevent the abuse of its processes

"Issues of abuse of court process have been identified as an issue of jurisdiction. Hence the court reserves the prerogative and inherent jurisdiction to protect itself from abuse of its processes. The court has an inherent jurisdiction to undo what has been done by a party in abuse of court process, particularly in an attempt at forum shopping, so as to avoid a situation whereby the court will be presented with a fait accompli. Vaswani Trading Co. v. Savalakh & Co. (1972) All NLR (pt.2) pg. 483. Ivory Merchant Bank v. Partnership Investment Ltd. (1956) 5 NWLR (pt.448) pg.362. Any case which is an abuse must go under the hammer so as to halt the drift created by the abuse; the Supreme Court has this power. There is no iota of doubt that the Supreme Court has the power to make consequential order where there is an element of public policy in a matter which requires urgently securing public confidence in the administration of justice." PER ADEKEYE, J.S.C(P. 39, Paras. B-G)

3

COURT - SUPREME COURT: Powers of the Supreme Court

"The Supreme Court is conferred with unlimited inherent powers by virtue of Section 6 (6) (a) of the 1999 Constitution as a court of record to jealously guard the judicial process from being ridiculed or scandalized and for the purpose of achieving a just, equitable and expeditious dispensation of justice. Dingyadi v. INEC (No.2) (2011) 18 NWLR (pt.1224) pg.154." PER ADEKEYE, J.S.C(P. 40, Paras. A-C)

4

COURT - JURISDICTION: Principle of jurisdiction

"Jurisdiction is the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. Such authority of the court is controlled or circumscribed by the Statute creating the court itself or it may even be circumscribed by a condition precedent created by legislation which must be fulfilled before the court can entertain the suit. All of the above touch on the legal authority of the court to adjudicate in the matter. Jurisdiction is fundamental and it is the centre pin the entire litigation hinges on: Madukolu v. Nkemdilim (1972) 2 SCNLR pg.341 Rossek v. ACB Ltd (1993) 8 NWLR (pt.312) pg.382." PER ADEKEYE, J.S.C(Pp. 40-41, Paras. E-A)

5

COURT - SUPREME COURT: Whether the Supreme Court can review its judgment once given and delivered

"The Supreme Court is the final court of justice in Nigeria and its decision is final, In short, the supreme court shall not review any judgment once given and delivered by it, save to correct any clerical mistake or some error arising from any accidental slip or omission or to vary the judgment or order so as to give effect to its meaning or intention. "Accident slip" in a judgment or order of a court means a classical error in a judgment or order of a court, which must be an error in expressing the manifest intention of the court. The court will exercise its power to correct clerical errors or mistakes arising from accidental slip or omission if nothing has intervened to make it inequitable to do so. Any other error outside this saving clause would not be permitted by the slip Rule since the judgment would then have represented what the court decided and any alteration or variation would be a variation of the substantive part of the judgment. The inherent power of the court can only be invoked if there is a missing link in the main body of the judgment and steps must be taken to fill the gaps or clear the ambiguity in the interest of justice. The exercise of this power should not be used to review or rehear the case or alter the rights and obligations of the parties under the ruling or order made Berliet (Nig) Ltd. v. Kachalla (1995) 9 NWLR (pt.420) pg. 478 Olurotimi v. Ige (1993)8 NWLR (pt.311) pg.257 Umuana v. Okwurame (1979) 11 NSCC 319 Ogunsola v. NICON (1996) 1 NWLR (pt.4a23) pg.126 Asiyanbi v. Adeniji (1967) All NLR pg.88 Adigun v. A-G Oyo State (No.2) (1987) 2 NWLR pt, 56 pg, 197 Oyeyipo v. Oyintoye (1982) 1 NWLR (pt. 50) pg. 356 Adigun v. The Secretary Iwo Local Government (1999) 8 NWLR (pt.613) pg.30 Stirling Civil Eng. (Nig) Ltd v. Yahaya (2005) 11 NWLR (pt. 935) pg, 181" PER ADEKEYE, J.S.C(Pp. 41-42, Paras. D-F)

6

COURT - FUNCTUS OFFICIO: When is a court said to be functus officio

"A court is said to be functus officio in respect of a matter if the court has fulfilled or accomplished its function in respect of that matter and therefore lack the potency to review, re-open or revisit the matter. Thus once a court delivers its judgment on a matter, it cannot revisit or review or set aside the said judgment except under certain conditions. More importantly, a court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of court process. Ukachukwu v. Uba (2005) 18 NWLR (pt.956) pg.1 Anyaegbunam v. A-G Anambra State (2001) 6 NWLR (pt.710) pg.532 Mohammed v. Husseini (1998) 14NWLR (pt.584) k pg.108" PER ADEKEYE, J.S.C(Pp. 44-45, Paras. E-A)

7

ELECTION PETITIONS - ELECTION PETITION TRIBUNAL: Jurisdiction of an election petition tribunal

"The jurisdiction of an election petition Tribunal as stipulated in Section 285 (2) of the 1999 Constitution reads - "There shall be established in each state of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall to the exclusion of any court or tribunal have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of governor or deputy governor or as a member of any legislative house." PER ADEKEYE, J.S.C(Pp. 50-51,Paras. E-A)

8

ELECTION PETITIONS - CANDIDATE IN AN ELECTION: Whether the qualification of a candidate to contest an election can be challenged even if he is validly nominated

"It is trite law that the qualification of a candidate to contest an election can be challenged even if he is validly nominated, before a Tribunal. Ango v. Achida (1999) 3 NWLR (pt.s9a) pg.246 Peters v. David (1999) 5 NWLR (pt.603) pg.486 This is the essence of Section 145 (1) (a) of the Electoral Act 2006 which read as follows - An election may be questioned on any of the following grounds:- a. That a person whose election is questioned was, at the time of the election not qualified to contest the election. These yardsticks for the qualification and disqualification of a governor are as embodied in Sections 177 and 182 of the Constitution." PER ADEKEYE, J.S.C (P. 55, Paras. A-E)

9

ELECTORAL MATTERS - NOMINATION OF CANDIDATE: What is the effect of double nomination of a candidate by more than one constituency

"I cannot but take judicial notice of Section 38 of the Electoral Act 2006 which reads - "Where a candidate knowingly allows himself to be nominated by more than one constituency his nomination shall be void." Such validation must be carried out by the Electoral commission when screening party's candidates for any elective post before a list is published and not by an election petition tribunal, under the 2006 Electoral Act. Ojo v. Abogunrin (1989) 5 NWLR (pt.120) pg. 162 Ella v. Agbo (1999) 8 NWLR (pt.613) pg.139 Abdullahi v. Elayo (1993) 1 NWLR (pt.1 pg. 268." PER ADEKEYE, J.S.C(P. 51, Paras. B-E)

10

ELECTORAL MATTERS - NOMINATION OF CANDIDATES: Rules governing nomination of candidates

"The issue of nomination of candidate is governed by the rules governing preliminaries as to an election. Preliminary rules are those rules which determine intra-party resolutions and nominations to elective offices. The relationship of nomination is between the political party, its members and the electoral body. The intention of the law is to vest nomination of candidates in the membership of a political party and further make nomination a preliminary issue for any person wishing to contest. Nomination of a candidate is exclusively the responsibility of his political party under the Electoral Act 2006." PER ADEKEYE, J.S.C(Pp. 51-52, Paras. G-B) - 

11

ELECTORAL MATTERS - INDEPENDENT NATIONAL ELECTORAL COMMISSION:Powers of the Independent National Electoral Commission

"The Independent National Electoral Commission lacks the power to disqualify any candidate on its own. The power of disqualification of any candidate from contesting an election after his name has been forwarded to the Commission belongs exclusively to the Federal High Court or State High Court. Amaechi v. INEC (2008) 5 NWLR (pt.1008) pg. 227. Prior to the Electoral Act 2006, the courts are without jurisdiction to determine the issue of validity of nomination of a candidate of any political party Ezugwu v. Nwamulu (2010) 4 NWLR (pt.1183) pg.159 Amaechi v. INEC (2008) 5 NWLR (pt.1080) pg.227 Isoho v. Yahaya (1992) 2 NWLR (pt.600) pg. 671 Kurfiv. Mohammed (1993) 2 NWLR 22 pg.602 Owum v. INEC (1999) 10 NWLR (pt.622) pg.192 Onuoha v. Okafor (1983) SCNLR 244 Action Congress v. INEC (2007) 12 NWLR (pt.1048) pg. 222 Ugwu v. Ararume (2007) 12 NWLR (pt.1048) pg.367." PER ADEKEYE, J.S.C (Pp. 52-53, Paras. C-A)

12

ELECTORAL MATTERS - POLITICAL PARTIES: Powers of the Political parties to control the affairs of the party

"After the Electoral Act 2006, a political party is able to control the affairs of the party only to the extent that the exercise of such control does not run against the provisions of the Constitution and laws of Nigeria particularly Section 34 (1) and (2) of the 2006 Electoral Act." PER ADEKEYE, J.S.C (P. 53, paras. A-B)

13

ELECTORAL MATTERS - PRELIMINARIES TO AN ELECTION: Rules governing the preliminaries to an election

"In determining who is to contest an election, two sets of rules apply- Rules governing the preliminaries to an election - between the political parties, its members and the electoral commission. The Electoral laws rest in the electoral commission the power to determine who is to contest an election. The issue of non-justiciability of the exercise of nomination has been modified by the Electoral Act 2006 - which now makes Section 32 (4) in respect of sworn affidavit information of candidates and Section 34 (1) and (2) on substitution of nominated candidates now justiciable. Pre-election matters are filed before the State High Courts or Federal High Courts. The last bus stop is that issues of nomination, sponsorship and substitution are pre-election matters which by their nature cannot be ventilated before an election petition tribunal as the tribunals are not set up for that purpose. ANPP v. INEC (2004) 7 NWLR (pt.871) pg.16 Amaechi v. INEC (2008) 5 NWLR (pt.1080) pg.227 Anazodo v. INEC (1999)4 NWLR (pt. 600 pg. 530" PER ADEKEYE, J.S.C(Pp. 53-54, Paras. C-A)

14

INTERPRETATION OF STATUTE - SECTION 287(1) OF THE 1999 CONSTITUTION:Interpretation of Section 287(1) of the Constitution of the Federal Republic of Nigeria 1999

"Section 287 (1) of the Constitution of the Federal Republic of Nigeria 1999 stipulates that:- 1. The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Supreme Court. 2. The decision of the Court of appeal shall be enforced in any part of the Federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Court of Appeal. 3. The decisions of the Federal High court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons and by other courts of law with subordinate jurisdiction to that of the Federal High court, a High court and those other courts respectively." PER ADEKEYE, J.S.C(Pp. 56-57, Paras. F-C) - 

15

INTERPRETATION OF STATUTE - SECTION 6(5) OF THE 1999 CONSTITUTION:Interpretation of Section 6 (5) of the 1999 Constitution

"The judicial powers of the Federation shall be vested in the courts enumerated in Section 6 (5) of the 1999 Constitution being courts established for the Federation and by virtue of Section 6 (5) (j) or any such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws. In the hierarchy of courts enumerated under section 6 (5) of the constitution - the Supreme Court tops the list. By virtue of section 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 the inherent powers and sanctions of a court of law." PER ADEKEYE, J.S.C(Pp. 58-59, Paras. G-C) - r

16

INTERPRETATION OF STATUTE - SECTION 14(1)(2) OF THE 1999 CONSTITUTION: Interpretation of Section 14(1)(2) of the 1999 Constitution

"Chapter 11 of the Constitution is all about the fundamental objectives and Directive Principle of State Policy, of which Sections 14 (1) and (2) are relevant to this case. Section 14 (1) reads - The Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice." 14 (2) - It is hereby accordingly declared that - a. sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority. c. The participation by the people in their government shall be ensured in accordance with the provision of this Constitution. The courts are the custodian of the constitution. In the light of the foregoing provisions of the Constitution, it is the duty of this court as the final court to interprete the provisions of the Constitution and other enacted Statutes for proper conduct of affairs, so that democratic governance will be predicated and sustained on the rule of law. Political matters are highly sensitive and equally sui generis. This court has observed a new and unique species of abuse of Court/legal process in the form of forum Shopping. In the light of section 14 (1) and 14 (2) (a) (c), this court cannot close its eyes and allow desperate individuals to wrongly use the courts to secure a mandate otherwise denied them after going through the process of free and fair election at the polls." PER ADEKEYE, J.S.C(Pp. 59-60, Paras. F-F)

17

JUDGMENT AND ORDER - CONSEQUENTIAL ORDER: Reasons for granting consequential order

"In the judgment of this court delivered on 26/11/10 - Dingyadi v. INEC (N0.2) [2011] 18 NWLR (pt.1224) pg. 154 at pgs. 195-196 paragraphs E-G and A-E. The reasons for granting the consequential order to dismiss Sokoto appeal were elaborated upon. See also cases like Obayagbona v. Obazee (1972) 2 NSCC 383. Liman v. Mohammed (1999) 9 NWLR (pt.617) pg, 116." PER ADEKEYE, J.S.C(P. 38, Paras. C-E)

18

JUDGMENT AND ORDER - SETTING ASIDE JUDGMENT: Circumstances under which the supreme court would set aside its judgment

"Such cases where this court will set aside its judgment are:- a. When the judgment is obtained by fraud or deceit either in the court or of one or more of the parties: Alaka v. Adekunle (19S9) LLR 76 Flower v. Lloyd (1977) 6 Ch.D pg. 297 Olufunmise v. Fatana (1990) 3 NWLR (pt.136) pg.1 2. Where the judgment is a nullity and a person affected by the order of court which can be described as a nullity is entitled ex debito justitiae to have it set aside Sken Consult Ltd v. Ukey (1981) 1 SC 6 Craig v. Kamsen (1943) 1KB 256, 262 and 263 Ojiako 7 Ors v. Ogueze (1962) 1 SCNLR 112 Okafor & ors v. Anambra state & ors (1991) 6 NWLR (pt.2000) pg. 659 at pg.680 3. When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it. Agunbiade v. Okunoga & Co (1961) All NLR pg.110 Obimomire v. Erinosho (1966) 1 All NLR pg. 250 4. Where the judgment was given in the absence of jurisdiction Madulolu v. Nkemdilim & ors (1962)2 SCNLR 341 Sken consult v. Ukey (1981) SC 6. 5 Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication Igwe v. Kalu (2002) 14 NWLR (pt.787) pg.435 Alao v. ACB Ltd (2000) 9 NWLR (pt.672) pg.264" PER ADEKEYE, J.S.C (Pp. 43-44, Paras. B-B)

19

LEGAL MAXIM - INTEREST REPUBLICAE UT SIT FINIS LITUM: Principle of Interest Republicae ut sit finis litum in the administration of justice.

"The maxim Interest Republicae ut sit finis litum is a cardinal principle of the administration of justice. The law is crystal clear that once the Supreme Court in its decision has effectively decided on a matter before it and there is no ambiguity or slip to be corrected, it becomes functus officio of the powers of the court to re-open it. Adigun v. the secretary Iwo Local government 8 NWLR (pt.613) pg.30 Ahovo v. African Continental Bank Ltd. (2000) 6 SC (pt.1) pg.27 Okagbue v. Chikere (2000) 7 SC (pt.11) pg. 106; 12 NWLR (pt.689) pg.274." PER ADEKEYE, J.S.C (Pp. 61-62, Paras. F-B) -

20

PRACTICE AND PROCEDURE - ABUSE OF COURT PROCESS: Effect of abuse of court process

"This court in Dingyadi v. INEC (No.2) (supra) stated categorically that abuse of court is not merely an irregularity that can be pardoned but constitutes a fundamental defect, the effect of which will lead to dismissal of the process which is abusive. In the case of Arubo v. Aiyeleru (1993) 3 NWLR (pt.280) pg.125, the Supreme Court took the stand that: - "Once a court is satisfied that the proceeding before it amounts to an abuse of process, it has the right, in fact the duty to invoke its coercive powers to punish the party which is in abuse of its process. Quite often, that power is exercised by a dismissal of the action which constitutes the abuse" Adesanoye v. Adewole (2000) 9 NWLR (pt.127) pg. 67" PER ADEKEYE, J.S.C(Pp. 38-39, Paras. F-B) - r

21

PRACTICE AND PROCEDURE - ABUSE OF LEGAL PROCESS: Effect of Abuse of legal process

"Abuse of legal process identified here is of jurisdictional importance as where a condition for initiating a legal process is laid down, any suit instituted in contravention of the precondition provision is incompetent and a court of law lacks jurisdiction to entertain the same. UBA Plc v. Ekpo (2003) 12 NWLR (pt.834) pg.322" PER ADEKEYE, J.S.C(P. 40, Paras. C-E) -

22

WORDS AND PHRASES - "FUNCTUS OFFICIO": Meaning of "Functus officio"

"In the circumstance, this court has become functus officio. The Latin phrase "functus officio" means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority." PER ADEKEYE, J.S.C (P. 44, Paras. C-D) - read in context

23

WORDS AND PHRASES - "NOMINATION": Definition of "nomination"

"According to Advanced Law Lexicon 3rd Edition Report 2003 Book 3, Nomination is defined as appointment, a resolution submitted to the electors that the party named is a candidate for their suffrage for an office named." PER ADEKEYE, J.S.C(P. 51, Paras. E-F) -r

24

WORDS AND PHRASES - "STARE DECISIS": Meaning of "stare decisis"

"This is the doctrine of 'stare decisis et non quieta movere' or judicial precedent. The meaning and import is to abide by former precedents where same points come again in litigation. It presupposes that the law has been solemnly declared and determined in a previous case. It does preclude the judges of subordinate courts from changing what has been determined." PER ADEKEYE, J.S.C(P. 57, Paras. C-E)  

25

WORDS AND PHRASES - "JURISDICTION": Meaning of "Jurisdiction"

"Jurisdiction is a term of comprehensive import embracing every kind of judicial action. It may have different meanings in different contexts. Jurisdiction defines the power of the court to inquire into facts, apply the law, make decisions and declare judgment. The constitution and statutes which set up the Courts cloak them with powers and jurisdiction of adjudication which are basically substantive and procedural." PER ADEKEYE, J.S.C(P. 59, Paras. D-F)