Hon Sani Sha’aban & Anor V. Alhaji Namadi Sambo & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

DAHIRU MUSDAPHER, J.S.C.

The 1st respondent has filed preliminary objection to the hearing of the appeals herein on a number of grounds the principle of which is that this court has no jurisdiction to entertain the appeals under the provisions of section 246 (3) of the Constitution. The 1st respondent expatiated the objection in the respondent’s brief in which he argued that this court has the competence to hear the appellants’ appeals as filed in this court. Both senior learned counsel for the parties extensively addressed the court on their respective stands on the issues.

Now section 246(3) of the Constitution provides-

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

The learned counsel for the appellant in his Reply brief concedes that an appeal in a gubernatorial election petition terminates at the Court of Appeal, but submits that this is not an appeal on an election petition, but an appeal against the refusal of the Court of Appeal to set aside its decision which was deemed to be a nullity. It is common ground that the court i.e. the Court of Appeal has the jurisdiction to set aside its null decisions or judgments. It is contended by the learned counsel for the appellants that this court has the jurisdiction to entertain these appeals because the provisions of section 246(3) should be given a very restrictive interpretation in order to allow a citizen to invoke the judicial powers of this court as the court of the last resort. Learned counsel also relied very heavily on the provisions of the judicial powers of the court as explained in Section 6(6) (a) and (b) of the Constitution and maintains that the section gives this court the jurisdiction to come to the aid of a litigant who was denied the right of the review of its null judgments by the Court of Appeal. He asserts that UBI JUS IBI REMEDIUM – that is where ever there is a right, there is a remedy. He also argued that these provisions under section 6(6) can be invoked because it contains that phrase “notwithstanding the other provisions of this Constitution. In other words, the provisions can always be invoked to give access to a citizen to come to this court and to ventilate this grievance against such similar infractions. In the case ALAO vs. A.C.B. Ltd. (2000) 9 NWLR (Pt.672) 264, Ogundare JSC of blessed memory stated.

“Although this court is the Court of last resort, it is nevertheless a court of appellate jurisdiction. Its jurisdiction is clearly laid down in the constitution. xxxxxxxxxxxxxxxxxxxx its jurisdiction is appellate only with incidental original jurisdiction conferred by section 6 of the Constitution for the purpose of exercising that appellate jurisdiction. The court is statutory and cannot, therefore, for the sake of doing justice confer on itself a jurisdiction that is not given to it by the constitution or by any statute. Moreover, it is in the public interest that there should be an end to litigation.”

See also the case of- DANGTOE VS. C.S.C. PLATEAU STATE (2001) 9 NWLR (pt.717) 132 at 150 where Karibi-Whyte, J.S.C. stated.

“It is important to point out at once that the absence of jurisdiction accentuated the want of legal capacity and competence in the Court to hear and determine the subject matter before it, and does not raise at this stage, any issue as to the rights of the parties in the subject matter of the action. In the absence of jurisdiction there is no competence to exercise the judicial powers vested in the court by section 6(6)(b) of the 1979 Constitution. It has been frequently stated, and is now well settled that any such exercise of jurisdiction, which is an obvious futility is a nullity and the proceedings and judgment relating to are null and void.”

See also AWONIYI VS. AMORC (2000) 10 NWLR (Pt.676) 522.

In summary, the provision of section 6 of the Constitution does not confer on the Court jurisdiction to determine a matter where no other, specific provision grants such a power. Section 246 of the Constitution is very clear and unambiguous and has been interpreted by this court to deprive this court of the jurisdiction and competence to deal with matters arising from a gubernatorial election petition. The Court of Appeal is the final court.

Having so decided, I do not deem it necessary to discuss the other objections raised by the 1st respondent. I accordingly uphold the preliminary objection and I hold that this Court has no jurisdiction to entertain the appeals in suits No.SC.89/2010 and SC.90/2010

The appeals are struck out. I make no order as to costs.

SC.89/2010_SC.90/2010