David Umaru & Anor V. Dr. Muazu Babangida Aliyu & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C

The dispute between the parties in this appeal arose from the election of the 1st Respondent as the Governor of Niger state following the nationwide election held on 14th April, 2007 in which the declaration of the results thereof on 15th April, 2007, saw the 1st Respondent as the winner. The Appellants who lost at the election filed their Election petition at the Election Tribunal and sought for the nullification of the election. The Election Tribunal after giving the parties a hearing, dismissed the 1st Respondent’s preliminary objection to the hearing of the petition and proceeded to dismiss the petition as well on the merits.

Aggrieved by the decision of the Election Tribunal, the Appellant appealed against it to the court of Appeal while the 1st Respondent also crossed-appealed. After hearing the appeal and the cross-appeal, the court of Appeal in its judgment delivered on 19th February, 2009, dismissed the appeal but proceeded to allow the cross-appeal holding that the Appellants petition was filed out of time and therefore statute barred and consequently dismissed the same.

However on 1st April, 2009, the Appellants filed a motion on Notice at the Court of Appeal Abuja urging it to set aside its decision given on 19th February, 2009 ex-debito to justitiae for being a nullity. It is not indispute that the judgment of 19th February, 2009 which the Appellants wanted to be set aside on the ground that it was a nullity, arose from the decision of the Election Tribunal. The court of Appeal therefore after hearing the parties on the application, struck out the same in its Ruling given on 17th June, 2010. It is against this Ruling that the Appellants have now appealed to this Court.

At the hearing of this appeal on 17th January 2011, it turned out that 1st, 2nd and 3rd – 15th Respondents have in their responses to the Notice of Appeal and the Appellants brief of argument filed separate Notices of preliminary objection to the hearing of this appeal which were argued in their respective briefs of argument thereby resulting in the Appellants also filing their, responses to the Preliminary objections in Appellants Reply Briefs. The appeal and the preliminary objections were heard together when learned senior counsel to the Appellants, 1st Respondents and 3rd – 1st Respondents and learned Counsel to the 2nd Respondent respectively, adopted their briefs of argument before making submissions in support thereof.

I shall start with considering the preliminary objections to the hearing of the appeal mainly on the ground that this court has no jurisdiction to hear the appeal having regard to the provisions of section 245(3) of the 1999 constitution which makes the Court of Appeal a final Court in matters arising from the decisions of Election Tribunals in Governatorial Elections. At the hearing of this matter, the attention of the learned senior Counsel to the Appellants Chief Mike Ahamba was drawn to the decision of this Court in appeal numbers SC.89/2010 and SC.90/2010 Hon. Sani Sha’aban & Anor. v. Alhaji Namadi Sambo & Ors. delivered on 4th November, 2010 with appeals were on all fours with the present appeal and in which also the learned senior Counsel for the Appellants was also for the Appellants in those appeals to show why this Court should not follow and apply its earlier decision of 4th November, 2010 to the present appeal. The reaction of the learned senior Counsel was that in the present case he is relying on the decision of this Court in Adigun & Ors. V. Attorney-General Oyo State No. 2 (1987)2 N.W.L.R. (pt. 65) 197 at 235, which he did not cite and relied upon in the earlier appeals and therefore argued the following the decision of this court in the earlier appeals and therefore argued that following the decision of this court in the Adiguns case, this Court by virture of Section 6(6)(a) of the 1999 Constitution has jurisdiction to hear this appeal not being an appeal arising from the decision of the Court of Appeal originating from decision of Election Tribunal.

Close examination of what Oputa JSC said at page 235 of the Report in Adigun’s case relied upon by the learned senior Counsel to the Appellants, does not cloth this Court with the jurisdiction to entertain the present appeal under section 6(6)(a) of the 1999 constitution as claimed by the learned senior counsel. Probing into the meaning and nature of the inherent powers of Courts of law, what Oputa JSC said at the page was –

“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 recognised and stated the obvious – that the inherent powers of a Court of law exists not withstanding anything to the contrary in this Constitution for such powers were not granted by the Constitution xxx. The inherent powers of Courts differ considerably from the appellate Powers. Inherent powers of Courts are general powers; the power vested in any Court to hear and determine an appeal is rather a specific and special power; inherent powers are not conferred by legislation; appellate powers are. No Court has inherent power to hear an appeal. Any appellate power is traceable to a specific statute. That statute will then definite the limit of the appellate jurisdiction it conferred, the persons who can appeal and procedure for such an appeal.”

The provisions of section 6(6)(a) of the 1979 constitution dealing with inherent powers of court explained above in Adigun’s case relied upon by the learned senior counsel for the Appellant, are in pari-materia with section 6(6)(a) of the 1999 constitution under which the learned senior counsel is asking this court to invoke its inherent jurisdiction to entertain this appeal. I am afraid it is the same Adigun’s case that said this Court cannot do so. Inherent powers cannot be invoked to hear appeals by this Court because its appellate powers like any appellate Courts are only traceable to specific statute which in the instant case is 1999 Constitution, Section 246(3) of which specifically provides –

“The decision of the Court of Appeal in respect of appeals arising from election petition shall be final.”

Although by virtue of the provisions of Section 233 of the 1999 Constitution this Court has exclusive jurisdiction to entertain all appeals from the decisions of the Court of Appeal, that jurisdiction does not include decisions of that Court arising from election petitions which came to that Court on appeal from decisions of election Tribunals. This is because as I have said earlier in this judgment, the appellate jurisdiction of this court like any other court is only traceable to a specific statute like the constitution or any act of the National Assembly. In the instant case therefore, while by section 246(3) of the 1999 constitution quoted above is quite clear that the decision of the court of Appeal in respect of the appeal is final resulting in depriving this Court of jurisdiction to hear the appeal, the same constitution gave this court exclusive jurisdiction to hear and determine appeals from decisions of the Court of Appeal on any question as to whether any person has been validly elected to the office of the president or Vice-president under this constitution or whether term of office of president or Vice-president has ceased and whether the office of president or Vice-president has become vacant under Section 233(1)(e) thereof.

Therefore since the case of Adigun (supra) which the learned senior counsel to the Appellants was trying to hang on to distinguish this case from the two appeals numbers SC.89/2010 and SC.90/2010 Hon. Sani Sha’aban & Anor. v. Alhaji Namadi Sambo & Ors. Delivered on 4th November, 2010, is not of any help to him in supporting his argument that this court has jurisdiction to hear this appeal, I am bound by the decision in these appeals which are on all fours with the present appeal. In otherwords like in the two appeals in Sha’aban’s case (supra) which arose from the decision of the court of Appeal refusing to set aside its judgment in an appeal arising from decision of Election Tribunal on the alleged ground that the judgment was a nullity, the position is the same in the present appeal. Accordingly the preliminary objections by the Respondents that this court has no jurisdiction by virtue of section 246(3) of the 1999 Constitution to hear and determine the present appeal, are hereby upheld and the appeal is hereby struck out with no order on costs.

SC.259/2010