The Propriety of the Court of Appeal Sitting on Appeal Over its Own Judgment

ABDULRAHMAN ABUBAKAR & ANOR v. SENATOR AIDOKO ALI USMAN & ORS (2017) LPELR-41915(SC)

FACTS:

This appeal borders on Election Petition.

On the 28th day of March, 2015, INEC conducted National Assembly Election for Kogi East Senatorial District and the 1st appellant herein contested as candidate of the 2^nd appellant whilst the 1st respondent herein contested as candidate of the 2nd respondent.

At the conclusion of the Senatorial Election, INEC declared the appellants winners.

Upon this declaration, the 1st and 2nd respondents as Petitioners approached the National Assembly Election Petition Tribunal Lokoja, contending, inter alia that the 1^st appellant herein was not qualified to contest the Senatorial Election.

At the Election Tribunal, the 1st and 2nd respondents herein contended that having obtained the second highest votes in the result of the election as announced by the 3^rd and 4th respondents, the 1st and 2nd respondents were entitled to be declared and returned as the winners of the election.

The trial Tribunal gave judgment in favour of the Petitioners and nullified the election of the 1st appellant. The Tribunal consequently proceeded to declare the 1st respondent herein (as 1^st petitioner) the duly elected Senator representing Kogi East Senatorial District.

Being dissatisfied with the decision of the Tribunal, the appellants appealed to the Court of Appeal.

In a well-considered judgment delivered on 2/12/2015, the Court of Appeal agreed with the decision of the Tribunal that no evidence was given to show that APC held any primary election for the nomination of the 1st appellant.

Accordingly, the Court of Appeal upheld the nullification of the election of the 1st appellant but set aside the decision of the Tribunal which declared the 1st respondent as duly elected.

In its initial Enrolled Order, the Registry of the Court below mistakenly captured Order No. 2 thereof as follows:-

“2. THE ELECTION OF THE 1ST RESPONDENT IS HEREBY NULLIFIED.”

Upon realising the above mistake, the Registry of the Court below promptly issued another Enrolled Order wherein the orders of the Court of Appeal were correctly captured as follows:-

“1. THE ELECTION OF THE 1st APPELLANT IS HEREBY NULLIFIED.

2. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) IS HEREBY ORDERED TO

CONDUCT FRESH ELECTION FOR KOGI STATE EAST SENATORIAL DISTRICT WITHIN 90 (NINETY) DAYS FROM TODAY.”

By a letter under the hand of the Deputy Chief Registrar of the Court of Appeal dated 23/12/2015, the initial Enrolled order was withdrawn and replaced with the correct copy.

The initial Enrolled Order was ex facie a mistake and the second Enrolled Order effected the correction, showing the proper orders made by the Court of Appeal in its judgment delivered on 2/12/2015.  However, the appellants in a Motion No. CA/36A/M/2016 sought the reliefs stated inter-alia:

“1. An order correcting clerical mistakes/errors in the orders made in the Judgment of this Honorable Court delivered on the 2nd of December, 2015 and the Enrolled Order issued on the 10th December 2015 in Appeal No. CA/A/EPT/609/2015 Abdulrahman Abubakar and Anor Vs. Senator Attai Aldoko Usman and 3 others to give effect to the full meaning and the intention of the Court in allowing the appeal of the applicants.

2. An order correcting or varying the consequential orders in the judgment of this Honorable Court delivered on the 2nd December 2015 and the Enrolled Order of this Court issued to the Applicants on 10th, December 2015 in Appeal No. CA/A/EPT/609/2015 and 3 others by deleting the 3rd consequential order therein and replacing same with consequential order affirming the election and return of the 1st Applicant as Senator representing Kogi East Senatorial District, the order nullify the election of the 1st applicant and ordering for fresh election within 90 days having been made without jurisdiction.

3. An order deleting the word “partially” from the resolution of issue one in the judgment of this Honourable Court delivered on the 2nd December 2015 in Appeal No. CA/A/EPT/609/2015 Abdulrahman Abubakar and Anor Vs. Senator Attai Aidoko Usman and 3 Others by affirming the election and return of the 1st Applicant to give effect to the full meaning and the intention of the Court in resolving issue one in favour of the Applicants, this Honorable Court having held and found at page 19 of the judgment, Exhibit JSO annexed to the affidavit thus:

By the provision of Paragraph 4(3) (a) of the First Schedule to the Electoral Act, 2010 as amended a petition shall conclude with a prayer or prayers. It is not difficult to see from the petition that relief A is standing alone.”

That there is no prayer that the election be nullified. There is no prayer that the 1st Respondent be declared as duly elected. Yet the Tribunal not only nullified the election but proceeded to declare the 1st Respondent duly elected.

In response to the Reliefs sought by the appellants, Mr. Patrick I. N Ikwueto, SAN, for the respondents, argued that the Court of Appeal lacked jurisdiction to sit on appeal over its judgment, citing Section 246 (3) of the Constitution.  The Court in agreement with the argument of the counsel for the respondent, Ruled that since it lacks jurisdiction to sit on appeal over its own judgment, the application lacked merit and it was struck out.

Displeased with the Ruling delivered by the Court of Appeal, the appellants appealed to the Supreme Court and framed one issue for the determination of their appeal, thus:

Whether the Court below was correct to hold that it has no jurisdiction to grant the reliefs set out in the motion papers of the appellants filed on 26th January 2016, having regards to the facts that the consequential orders made in the judgment of 2nd December 2015, were made on a ground completely outside the jurisdiction of the Court below?

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• DR UMAR ARDO v INDEPENDENT NATIONAL ELECTORAL COMMISSION [INEC] & ORS. (2017) LPELR-41919 (SC)

• ACTION – ACADEMIC/SPECULATIVE/HYPOTHETICAL SUITS: When is a suit considered academic; Attitude of Court to academic suits
• CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: What the concept of fair hearing entails
• CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Circumstance where a party cannot be heard to complain of being denied the right to fair hearing
• CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Meaning and nature of the doctrine of fair hearing
• CONSTITUTIONAL LAW – BREACH OF RIGHT TO FAIR HEARING: Whether a party who had an opportunity of being heard but did not utilise it can bring an action for breach of fair hearing
• COURT – DUTY OF COURT: Duty of Court to confine itself to the issues joined by parties
• WORDS AND PHRASES – “WAIVE”: Meaning of “waive”

• IDU GODWIN EMEKA v HON. LYNDA CHUBA – IKPEAZU & ORS (2017) LPELR-41920 (SC)
• ACTION – CAUSE(S) OF ACTION: What the court must do to determine if a cause of action has arisen
• APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Attitude of the Supreme Court to interference with concurrent finding(s) of fact(s) of Lower Courts
• APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Circumstances under which an appellate court will interfere with the concurrent findings of two lower Courts
• EVIDENCE – STANDARD OF PROOF: Standard of proof in civil cases
• EVIDENCE – WITHHOLDING EVIDENCE: Instance of withholding evidence
• EVIDENCE – CONTRADICTION IN EVIDENCE: Whether contradictions in documentary evidence can be resolved by placing the authentic document before the Court
• EVIDENCE – AFFIDAVIT EVIDENCE: Whether an affidavit that is bereft of the requirements of the law can be admitted
• EVIDENCE – PUBLIC DOCUMENT: Condition precedent to admissibility of public document
• PRACTICE AND PROCEDURE – SIGNING OF COURT PROCESS(ES): Position of the law with regard to the signing of legal processes by a legal practitioner
• WORDS AND PHRASES – “CREDIBLE EVIDENCE”: Meaning of “credible evidence”

• ADIO ONABIYI & ORS v. I.O.N PETROLEUM LTD (2017) LPELR-41922 (CA): LAGOS DIVISION

• APPEAL – UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s)
• JUDGMENT AND ORDER – DEFAULT JUDGMENT: Guiding principles for setting aside a default judgment
• JUDGMENT AND ORDER – SETTING ASIDE JUDGMENT/ORDER: What is required of a party seeking to set aside a finding of court which is crucial and fundamental to a case
• PRACTICE AND PROCEDURE – SERVICE OF COURT PROCESS(ES): Effect of failure to serve relevant Court process

• FAPA COMPANY LIMITED v OCEAN WAVES CORPORATION LIMITED & ANOR (2017) LPELR-41932(CA): LAGOS DIVISION

• ACTION – COMMENCEMENT OF ACTION: Effect of an action commenced under a wrong procedure
• ACTION – PARTY(IES) TO AN ACTION: Remedy available to a person against whom judgment was given in an action to which he is not a party
• CONSTITUTIONAL LAW – BREACH OF RIGHT TO FAIR HEARING: Effect of proceedings conducted in breach of a party’s right to fair hearing
• COURT – COMPETENCE OF COURT: Effect of defect in competence of Court; When will a Court be said to be competent
• COURT – COURT OF CO-ORDINATE JURISDICTION: Whether a Court can sit on appeal over the ruling/judgment of a Court of co-ordinate jurisdiction
• JUDGMENT AND ORDER – SETTING ASIDE JUDGMENT/ORDER: Whether the judgment of a Federal High Court judge can be set aside by another judge of the Federal High Court

JUDGMENT AND ORDER – SETTING ASIDE JUDGMENT/ORDER: Principles of law that govern the setting aside of a judgment.