Court name
Court of Appeal
Case number
A 37 of 2016

Sen. Ohiare And Anor v Ahmed And Ors (A 37 of 2016) [2016] NGCA 38 (10 February 2016);

Law report citations
Media neutral citation
[2016] NGCA 38
 
 
In the Court of Appeal
Holden at Abuja

 

Between

Appellant

1. SEN. MOHAMMED ABDULSALAMI OHIARE
2. ALL PROGRESSIVES CONGRESS (APC)

and

Respondent

1. OGEMBE SALAU AHMED
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
IN RE:
1. OGEMBE SALAU AHMED
2. PEOPLE'S DEMOCRATIC PARTY (PDP)
AND
1. SEN. MOHAMMED ABDULSALAMI OHIARE
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

 

Judgement

(DELIVERED BY JOSEPH E. E KANEM, JCA)
By a motion on notice dated and filed on 26/1/2016, the applicants seek the following reliefs.
"An order enlarging time within which the Applicant can apply to set aside the judgment and consequential orders made by this Hon. Court on the 2nd day of December, 2015 in APPEAL NO: CA/A/BPT/617/2015 Between OGEMBE SALAU AHMED AND ANOR V. SEN. MOHAMMED ABDULSALAMI AHMED AND ORS, same having been made without jurisdiction.
2. AN ORDER of this Hon, Court setting aside the judgment and the consequential orders made by this Hon. Court on the 2nd day of December, 2015 in APPEAL NO. CA/A/EPT/617/2015 Between OGEMBE SALAU AHMED AND ANOR. V. SEN MOHAMMED ABDULSALAMI AHMED AND ORS having been made without jurisdiction."
The grounds for the application are as follows.

"a. This Hon. Court on the 2nd day of December 2015 nullified the election and return of the 1st applicant as a Senator, representing Kogi Central Senatorial District in the National Assembly on the ground of improper conduct or no conduct of the primary election of the 2nd applicant, a ground totally outside the competence and jurisdiction of this Hon Court.
b. The judgment and consequential orders made by this Ho. Court on the 2nd December 2015, in APPEAL NO. CA/A/EPT/617/2015, OGEMBE SALAU AHMED AND ANOR V- SEN, MOHAMMED ABUDULSALAMI AHMED AND ORS were made without jurisdiction and therefore null and void.
c. This Hon. Court has the jurisdiction and powers pursuant to S.6}6) (b) of the 1999 Constitution of the Federal Republic of Nigeria as amended, read together with Order 7 Rule 12 of the Court of Appeal Rules 2011 to set aside its judgment and orders made without jurisdiction upon application by persons affected thereby.
d. The judgment and consequential orders made by this Hon. Court on the 2nd December 2015, in APPEAL NO: CA/A/EPT/617/2015, OGEMBE SALAU AHMED AND ANOR V, SEN. MOHAMMED ABDULSALAMI AHMED AND ORS fundamental affect the applicants who have had their election and return nullified by orders made without jurisdiction and who are being subjected to another avoidable election for no justifiable grounds outside the null and void orders of 2nd December 2015.
e. This application was not brought and filed within 10 days from the date of the judgment as required by the provisions of the Rules of this Ho. Court because applicants tried unsuccessfully to obtain the judgment of this Hon. Court in this appeal to no avail within the prescribed 10 days, hence the prayer for extension of time.
f, The failure to apply within the prescribed [period was due to the fact that at the time the judgment of this Hon. Court was certified and released to the applicants 10 days period1 has passed and the grant of this application is in the interest of justice and public policy more so that the judgment of 2nd December 2015 was delivered without jurisdiction”.
In support of the application the applicants filed:

(i) An affidavit of 17 paragraphs deposed to by Usman O. Sule, a member of the applicants' legal team, with two exhibits attached to it;
(ii) A written address settled by Ocholi O, Okutepa, Esq;
In response to the processes, the 1st and 2nd respondents filed;

(i) A notice of preliminary objection by way of a
(ii) A counter - affidavit of 13 paragraphs deposed to by Olatunji Atoyebi, a legal practitioner in the firm of 1st and 2nd respondents' Solicitors in opposition to the motion on notice, and; a written address.

In response, the applicants filed a written address in opposition to the preliminary objection and a reply on points of law.
The 3rd respondent elected not to file any process in the matter.

On the 3rd day of February, 2016 when the motion on notice came up for hearing, Yusuf Ali (SAN) leading Tawo E. Tawo (SAW) and an array of other counsel, drew the court's attention to his preliminary objection and opted to take it along with his arguments in respect of the applicants' motion on notice.

J.S. Okutepa (SAN) leading another array of counsel stated that they had challenged the competence of the preliminary objection in his written address filed on 3/2/2016. He identified his motion on notice and urged the court to grant the same. He also referred to his written address in opposition to the preliminary objection and reply. He added relying on Jev V. Iyortom (2015) 15 NWLR (2015) 15 NWLR (1483) 484 that even if this court is the final court, it still has jurisdiction to set aside or vary its judgment.

All (SAN) for the 1st and 2nd respondents moved his motion on notice challenging the competence of the motion of the applicants; he urged the court to strike out the motion. He also referred to and relied on the counter-affidavit of the 1st and 2nd respondents. He urged the court to dismiss the application. He argued that the case of Jev V. Iyortom supra, is irrelevant as it was a pre-election matter.
In the written address in support of the motion on notice, applicants' counsel formulated two issues for the determination of the application. The issues are:

“1. Whether the application for extension of time ought not to be granted.
2. Whether in view of the facts and circumstances of this application, the reliefs sought by the applicant ought not to be granted."

Arguing issue 1, applicants' counsel referred to Order 7 Rule 12 of the Court of Appeal Rules, 2011 and submitted that the delay in bringing the application had been sufficiently explained in the affidavit. He stated that the Rules of this court permit it to grant prayer 1. He submitted further that no litigant should be punished for what is not his fault as the judgment sought to be set aside was not made available to the applicants.

Regarding issue 2, he urged the court to set aside the judgment on the basis that the grounds upon which the court made the orders in the judgment arose from grounds which this court and the Tribunal were devoid of jurisdiction to dabble into, namely; alleged improper conduct or non-conduct of primary election. He submitted that a court can set aside its judgment which is null and void or which is given without jurisdiction. He cited and relied on several cases including ADEYEMI - BERO V. LSDPC (2013) 8 NWLR (135G) 238 ADEGOKE MOTORS LTD V. ADESANY A (1989) 3 NWLR (109) 250, OKOYE V, NIGERIAN CONSTRUCTION FURNITIURE CO. LTD (1991) 6 NWLR (199) 501 and DINGYADI V. INEC (2011) 10 NWLR (1255) 347.

He went further to submit that this court cannot exercise jurisdiction in areas where the trial tribunal is bereft of jurisdiction. He referred to and relied on OLOFU V.ITODO (2010) 18 NWLR (1225) 546. It was his contention that the issue upon which the election of the applicants was nullified is a pre-election matter over which the Election Tribunal had no jurisdiction rather, he opined, it was the Federal High Court or State High Court that was vested with such jurisdiction. He referred to and relied on several cases including UCHA V. ONWE (2011) 4 NWLR (1237) 386, ISHAKU V. ALHASSAN (UNREPORTED) decision of this court in CAL/EPT/768/2015 delivered on 31/12/2015 and the Supreme Court case of SHINKAFI V. YARI (without providing the appeal number) delivered on 8/1/2016,

On this court's power to set, aside its judgment, applicant's counsel referred to ABDULFATAU V. KAYODE (2012) LPELR 14324 and JEV V, IYORTOM (2015) 15 NWLR (1484) 484.
Senior Counsel for the 1st and 2nd respondents, in arguing his preliminary objection formulated one issue for its determination. The issue is,

"Whether or not this Honourable Court has the jurisdiction to entertain or hear the Applicants' motion on Notice dated 26th January, 2016.

He straightway gave a negative answer to the issue. It was his submission that the application was a subtle invitation to the court to sit in appeal over its judgment. In support he cited the case of DINGYADI V. INEC (2011) 10 NWLR (1255) 347 and added that this court had fulfilled its function in CA/A/EPT/617/2015 and was thus funtus officio. He referred to Section 246 (3) of the Constitution of Nigeria, 1999 (as amended) and submitted that the decision of this court could not be reviewed. He termed the application an appeal and referred to Order 19 Rule 4 of the Court of Appeal Rules.

In the alternative, he argued that the application was caught by the limitation provision in Section 285 (7) of the 1999 Constitution {as amended) since the period of 60 days provided therein had effused since 10/12/2015, thus depriving the court of jurisdiction to entertain the motion. He referred to and relied on PDP V. CPC (2011) 17 NWLR (1277) 485 and ACN V. INEC (2013) 13 NWLR (1370) 161 and SHETTIME V.GONI SC. 332/2011. He submitted that ABDULFATAI V. KAYODE supra, was cited out of context by applicants' counsel. It was his further submission that rules of court cannot supercede constitutional provisions as to time.

He noted that JEV V. IYORTQM supra, was a pre-election matter of which there is no time limitation.

In respect of the substantive application, counsel for the 1st and 2nd respondents adopted the issues formulated by applicants' counsel.
On issue 1, he submitted that the applicants did not show good and substantial reasons for the delay. He cited and relied on AMAECHI V. OMEHIA (2013) 16 NWLR (1381) 417. He submitted further that the 60 days stipulated for hearing and determination of election petition appeal had lapsed. He noted that there was no evidence of the application made for the certified true copy of the judgment.

On issue 2, it was his submission that this court lacked the jurisdiction to set aside its own judgment in the circumstances of this application. He placed reliance on Section 246 (3) of the Constitution and Order 19 Rule 4 of the Rules of the court. He termed the application as nothing but an appeal and that no such right exists. He referred to Section 285 (7) of the 1999 Constitution (as amended). He noted that the copy of the judgment sought to be set aside is not before this court, so also copies of the judgment in ISHAKU V. ALHASSAN and SHINKAFI V. YARI. In any event, he added the doctrine of stare decisis does not have a retrospective effect.

' Continuing, counsef submitted that the case of ABDULFATAI V. KAYODE (2012) LPPECR - 14324 was quoted out of context.
I shall first deal with the preliminary objection of the applicant to the 1st and 2nd respondents' motion. It is in essence that the arguments of 1st and 2^ respondents are substantially the same as the arguments proffered by them in the address against the substantive application. It was further argued that no law warrants the filing of a preliminary objection to a motion.

Much as I agree with Senior Counsel for the applicants in his submissions summarized immediately supra, it is necessary to point out that the objection of the 1st and 2nd respondents touches on the jurisdiction of the court to hear the application of the applicant. Jurisdiction is the life-blood of any litigation. It is so important and radical that it can be raised at any stage and in any form even orally or by the court suo motu. See EGHAREVA V. ERIBO (2010) 9 NWLR (1100) 411, 435 COMPTROLLER - GENERAL PRISONS V. IDEHEN (2010) 3 NWLR (1182) 503, 513 and OGEMBE V. USMAN (2011) 17 NWLR (1277) 638, 656.

When raised, it must be determined first before any other step is taken in the matter.
I therefore overrule the objection.

I shall therefore consider first the objection to the effect that this court has no jurisdiction to consider and determine the application as the time limited for hearing and disposing of an appeal j from a decision of election tribunal has elapsed.
Section 285 (7) of the Constitution of Nigeria 1999 (as amended) provides,

"An appeal from a decision of an election tribunal or court of appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal."
It must be stated that election petition matters are sui generis and are not amenable to the flexibility of the normal cases. The time provided for above is strict and inelastic, and incapable of being extended by any stretch of imagination or under any guise. In the case of ANPP V, GONI (2012) 1 NWLR (1298) 147, 182 -182, the Supreme Court stated that,

"It has been held by this court in a number of cases including consolidated appeal Nos. SC141/2011/SC.266/2011SC.267/2011;SC.282/2 Oil; SC356/2011 and SC 357/2011. BRIG. GEN. MOHAMMED BABA MARWA & ORS V ADMIRAL MURTALA NYAKO & ORS delivered on 27th January, 2012, reported in (2012) 6 NWLR (1296) 199 that the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or enlarged or in any way enlarged; that if what is to be done is not done within the time so fixed, it lapses as the court is thereby robbed of the jurisdiction to continue to entertain the matter."

See also ACN V. INEC (2013) 13 NWLR (1370) 161, 184, SHETTIMA V. GONI (SC 332/2011). It is also pertinent to refer to PDP V. CPC (2011) 17 NWLR (1277) 485, 508 where Onnoghen, JSC, stated thus,
"I hold the considered view that in terms of times to do anything relating to an election petition or judgment thereon or arising there from, it is the above provision that apply and that no court has the power to extend the times as constitutionally provided in Section 285 (5) - (7) of the 1999 Constitution (as amended) by interpretation of the sections or otherwise."

In essence, the applicant, in their application, are asking this court to review its judgment, set aside the same and give what they consider the appropriate order, viz; striking out the appeal for want of jurisdiction. This, in my view, can only be done within the 60 days time limit given by section 285 (7) of the Constitution of Nigeria (as amended). This is because the prayer sought by the applicants fall under the expression "... anything relating to an election petition or judgment thereon or arising therefrom "in PDP V CPC supra as well as "... what is to be done ..." in ANPP V. GONI supra. Thus whether it is an appeal from the judgment of a tribunal to the Court of Appeal or an application relating to a judgment in such an appeal (as in this instance) the 60 days provision remains immovable and insurmountable.

The judgement of the tribunal was delivered on 12/10/2015. Between then and when the present application was filed on 26/1/2016 is more than 60 days. It is my view that this court has no jurisdiction to entertain the instant application.

Section 6 (6) (a) of the Constitution of Nigeria 1999 (as amended) offers no help to the applicants as the inherent powers of this court can only be exercised within the time limited by the Constitution for the exercise of this court's jurisdiction. The case ABDULFTAI V. KAYODE SUPRA cited by applicants' counsel does not offer any redemption to the applicant as this court in that case recognised the sacrosanct and inviolable nature of the 60 days provision in Section 285 (7) of the Constitution. Similarly the case JEV. V. IYORTOM supra, cited by applicants' Senior Counsel is inapplicable to this application as it dealt with a pre-election matter of which there is no time limit.

It is on account of what 1 have stated supra that I find merit in the preliminary objection of the 1st and 2nd respondents. I uphold it and consequently strike out the application of the applicants for want of jurisdiction.
Notwithstanding the above and to fulfil all righteousness, I shall proceed to consider the merits of the application.
Section 246 (3) of the Constitution of Nigeria 1999 (as amended) provides that,

"The decision of the Court of Appeal in respect of appeals arising from the National Assembly and State Houses of Assembly Election Petitions shall be final."

Thus this court would not review any judgment once delivered except to correct any clerical mistake or error arising from any accidental slip or omission or to vary the judgment or order so as to give effect to its meaning. However a judgment cannot be varied when it correctly represents what the court decided (whether correctly or otherwise) nor shall the operative part or substantive part of it be varied and a different form substituted. See Order 19 Rule 4 of the Court of Appeal Rules 2011 (as amended) and DINGYADE V. INEC (2011) 10 NWLR (1255) 347.
It must be stated that a court has inherent power to set aside its judgment in the following circumstances;

(i) Where the judgment is obtained by fraud or deceit on the court of one or more of the parties. Such a judgment can be set aside by means of a fresh action;
(ii) Where the judgment is a nullity in which case a person affected by it is entitled ex debito justitiae to have it set aside;
(iii) Where it is obvious that the court was misled into giving the judgment under a mistaken belief that the parties consented to it;
(iv) Where the judgment was given in absence of jurisdiction;
(v) Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.

See DINGYAD1 V. INEC supra, JEV. V. IYORTOM supra, ABANA V. OBI (2005) 6 NWLR (920) 183, 203 and BESSOY LTD. V. HONEY LEGION. NIG. LTD (2010) 4 NWLR (1184) 300, 316 and SANU5I V. AYOOLA (1992) 9 NWLR (265) 278.
The application of the applicants is founded on (iv) supra, viz; absence of jurisdiction. The jurisdiction of this court in respect of appeals from election tribunals is derived from section 246 (1) (b) of the Constitution of Nigeria which provides that:

"An appeal to the Court of Appeal shall lie as of right from -
(b)  Decisions of the National Assembly and State House of Assembly Election Tribunals..."

In the context of this application it follows that the Court of Appeal had jurisdiction over the decision of the Election Tribunal, the subject of the judgment of this court in Appeal No. CA/A/AEPT/617/15 sought to be set aside in the instant application. The essence of the argument of the applicant is that this court erred in arriving at the decision that it did in view of several cases decided by the Supreme Court and this court. Sitting aside a judgment of a court on the ground of error can only be done by an appellate court and not the court that gave the judgment. See MANKAN U V. SALMAN (2005) 4 NWLR (915) 270, 298 and ENE V. A5IKPO (2010) 10 NWLR (1203) 477, 513. In the case of JEV V. IYORTOM supra. 508, the Supreme Court held that it had no jurisdiction to entertain any application challenging the correctness of its judgment.
In view of the above, I agree with Senior Counsel for the 1st and 2nd respondents that the application is essentially an appeal against the judgment of this court. As rightly argued by Senior Counsel, no right of appea1 exists in favour of the applicants since the decision of this court is final by virtue of Section 246 (3) of the Constitution of Nigeria 1999 (as amended).

In the light of all that I have stated above, I am unable to see my way through to granting prayers 1 and 2 in the motion paper. In the light of my decision on the preliminary objection and for the avoidance of doubt, the applicants' application is hereby struck out for want of jurisdiction.
The parties shall bear their costs.

MOORE A. A, ADUMEIN.JCA:     I read in draft form the ruling just rendered by my learned brother, Joseph E. Ekanem, JCA,
My learned brother has elaborately dealt with all the issues raised in this application. It is for the comprehensive reasons adduced in the leading ruling that \ also dismiss the motion on notice, as it lacks merit.
There is no order for costs.

TANI YUSUF HASSAN, JCA:    I read before now the Ruling just delivered by my learned brother, Joseph E. Ekanem, JCA.
I also uphold the preliminary objection and strike out the application for want of jurisdiction. ''

Counsel

John Matthew, Esq. (with him, U. O. Sule, Esq; Mrs Elizabeth O. Ifedayo and Miss Rabi O. Adamu) for Applicants.
David Adegbe, Esq; (With him Miss Rita Aidelegbe, Miss Nneka Ngbalabor, A. B. Esq and Omeh Obinna, Esq) for the 1st and 2nd respondents.
Abdulazeez Sani Esq; for 3rd respondent.