Olarotimi Makinde V. Albert Abiodun Adeogun & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.C.A.
This appeal raises a very narrow but important issue on the powers of courts to set-aside their own decisions. The appeal is against the decision of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal in Petition No NA/EPT/OS/9/2007 delivered on 3rd November 2007. I shall provide at once the brief background facts which brought about the appeal. The Appellant herein was the Petitioner at the tribunal. He was the Action Congress candidate at the Ife Central, Ife East/Ife North/Ife South Federal Constituency Election into the Federal House of Representative held on 21st April 2007. At the end of the polls, the 1st Respondent, the People’s Democratic Party (PDP) candidate, was declared the winner by the 3rd Respondent. The Petitioner challenged the result of the Election by filing a petition at the National Assembly/Governorship and Legislative Houses Election Petition Tribunal sitting at Osogbo. The petition is dated 21st May 2007.
In compliance with the Practice Directions, Pre-trial sessions were held and concluded on 17th August 2007 and the petition was adjourned to 21st September 2007 for tentative hearing. The petitioner instructed the Chambers of Bayo Osipitan & Co, on the very 17-8-07, to take over the prosecution of his petition from the chambers of M.A. Banire and Associate who had hitherto represented him. The chambers of Bayo Osipitan & Co filed a formal application for change of counsel on behalf of the Petitioner. This was on 18th September 07, more than a month after counsel had been instructed by the petitioner.
On 21 -9-07 when hearing into the petition was to commence, Mr. Fagbile announced appearance for the Petitioner holding Mr. Osipitan SAN’S brief. He told the tribunal that his instruction was limited to moving the petitioner’s application for change of counsel.
The tribunal considered that formality unnecessary and requested Mr. Fagbile to proceed with petitioner’s case. Mr. Fagbile notified the tribunal that he was not ready to proceed since the case file was with the principal counsel in Lagos and not in his possession. He urged the taqaqribunal to grant him an adjournment. Mr. Fagbile’s prayer for adjournment was opposed by Respondents’ counsel. The application was refused by the Tribunal which consequentially struck out the petition for lack of diligent prosecution.
Arguments on petitioner’s motion dated 27-9-07 praying the tribunal to set aside its order of 21-9-07 and relist the struck-out petition were heard by the tribunal. In a considered ruling dated 3rd November 07, the tribunal held it lacked the competence to set aside its earlier decision and accordingly struck out petitioner’s application. Being dissatisfied with the ruling, the petitioner has appealed against same on a notice containing five grounds.
Parties have filed and exchanged their briefs of arguments including the Appellant’s reply brief. The four issues formulated in the Appellant’s brief as having arisen for the determination of the appeal are:-
“1. Whether the tribunal rightly or wrongly held that it lacked the jurisdiction/power to set-aside its ruling of 21-9-07 to relist the petition.
- Whether the Appellant who was represented by counsel at the tribunal on 21-9-07 was rightly or wrongly regarded as being absent by the tribunal.
- Whether the tribunal was right or wrong in holding that the Appellant had not placed necessary materials before it to warrant the exercise of the discretion.
- Whether the petitioner was given the opportunity to prosecute the petition by the tribunal so as to preclude him from complaining of denial of fair hearing.”
The three issues formulated in the 1st and 200 respondents’ brief for the determination of the appeal are:-
- “Whether considering the special nature of Election Petitions, the learned members of the tribunal in exercising their discretion to strike out the petition and refusing to relist same acted judicially and judiciously.
- Whether by the general intendment of the Election Tribunal and Court Practice Direction 2007, the Tribunal can relist a petition struck-out for want of appearance and/or diligence.
- If issue 2 is answered affirmatively whether the Appellant placed enough materials before the tribunal to warrant exercising its discretion in favour of the Appellant”
In the 3rd – 646th respondents’ brief, a lone issue has been formulated for the determination of the appeal. The issue reads:-
“Whether the Honourable tribunal was right in refusing to relist the Appellants petition struck out on the 21st day of September 07”
The 64th and 648th Respondent’s brief similarly contains a lone issue for the determination of the appeal thus:-
“Whether considering the special nature of Election Petitions and the relevant laws/rules/facts in this case, the tribunal did not act judiciously in refusing to relist the Appellants’ petition struck out on the 21st day of September 2007”
The 2nd and 3rd sets of respondents in this appeal, 3rd – 646th respondents and 647th and 648th respondents, have urged us to strike out the 1st ground of Appeal in the Appellant’s notice. They argued severally that such a ground from which the Appellant did not formulate any issue for the determination of the appeal must be deemed abandoned and struck out. Counsel variously relied on NGIGE v. OBI & ORS (2006) NWLR (pt. 999) 1 AT 23: HOST SOMMER & ORS v. FEDERAL HOUSING AUTHORITY (1992) 1 SCNJ 73 AT 80 and IKWEKI v. EBELE (2005) 7 MJSC 12S AT 162.
Appellant’s Counsel has done the correct thing when he conceded to this objection in the Appellant’s reply brief. It is trite that any ground of appeal that is not covered by any issue for the determination of the appeal is deemed abandoned. Learned Counsel has further conceded the fact that because the first ground of appeal in their notice does not relate to the judgment being appealed against, same is Incompetent. We agree with counsel that Appellant’s first ground of appeal being bedeviled by these vices is incompetent and same is hereby struck out. The authorities relied upon in support of these objections in the respondent’s brief are apposite. See also AINA v. UBA PLC (1997) 4 NWLR (Pt 498) 181 CA AND FEDERAL COLLEGE OF EDUCATION Y ANYANWU (1997) 4 NWLR (Pt.501) 533 in that order.
A further principle parties herein seem not to have stressed upon is that not only the ground of Appeal but the issues for determination they give rise to must be covered by the judgment appealed against. Issues for determination which do not arise from the judgment appealed against are incompetent and must equally be discountenanced. see SALAMI V. MOHAMMED (2000) 9 NWLR (PT.673) 469 5C AND N v. SCHEEPS v. MV “S.AVAZ (2000) 15 NWLR (Pt.691) 622 SC.
This principle informs my resolve to consider and determine the instant appeal within the purview of Appellant’s 1st and 3rd issues only. More importantly, the issues which subsume the competent issues formulated by all the respondents, contain Appellant’s real grudges against the judgment of the tribunal dated 3/11/07 against which he has appealed, In sum, he complains that the lower tribunal is wrong in its refusal to review and set-aside its earlier decision and relist his petition for same to be heard on the merits. Accordingly, Appellants 2nd and 4th issues which relate to the tribunals decision of 21/9/07, instead of the one of 3rd /11/07 the subject matter of the instant appeal, are hereby discountenanced.
It is important to state that counsel for parties in this appeal, at the hearing of same, had adopted and relied on their respective briefs in prosecuting or opposing the appeal.
In arguing the Appeal, learned Appellant counsel proffered that it is common ground that on 21/9/07 when Appellant’s petition slated for hearing was struck-out, Appellant had a pending application for change of counsel. Though Appellant did not attend trial, he was represented by counsel who expressed his inability to proceed and urged the tribunal to grant them an adjournment. The oral application for adjournment by counsel which was opposed by Respondents’ counsel was, submitted the learned Appellant counsel, wrongly refused by the tribunal which in a very unfair manner struck out Appellant’s petition. The reason for the tribunal’s order refusing the adjournment sought by counsel and striking out the petition, lack of physical presence of the petitioner, is untenable in law since Appellant was being represented. Such an unjust order which denied the petitioner his right of being heard as guaranteed by the constitution must be revisited by the tribunal thus the Application to set-aside the order. Counsel inter alia relied on ABUUL v. BENSU (2003)16 NWLR (pt 845) 59 AT 85. 86, CROSS-RIVER STATE. NEWSPAPERS CORP V. ONI (1995) 1 NWLR (Pt 371) 270; KEHINDE V. OGUNBUMI & OR5 (1967) NSCC (VOL 5) 317 AT 320. NBCI V. MGI CO LTD (1992) 2 NWLR (PT 221) 71 AT 83 and ROBERTSONGRP PLC V. GEO RP LTD (2003) 4 NWLR (Pt.810) 381 AT 395. Learned Appellant counsel further submitted that the tribunal’s refusal to set-aside its decision of 21-9-07, following Appellant’s formal application dated 27/9/07, amounts to a failure to do justice and sticking to technicalities contrary to the current trend of doing substantial justice instead. Counsel buttressed his submissions with the decisions in BUHARI V. OBASANJO (2003)15 NWLR (Pt 843J 236 AT 257. OKIKA v. LPDC (2005) 14 NWLR (Pt.949) 471 AT 512: CBN v. AHMED.(2001) NWLR (Pt.724) 369 AT 394 ANO IBIOO & ORS V. ENAROFIA & ORS (1980) NSCC95 AT 201.
In further argument, learned Appellant counsel contended that the decision of 21-9-07 the Appellant prayed the tribunal to set-aside being one in default could be set-aside under the rules of the court in order to facilitate the hearing of Appellant’s petition on the merit. The Tribunal did not correctly invoke paragraph 5 of the Practice Directions 2007 in denying the Appellant his right of being heard. The inability of counsel to proceed with petitioner’s case should not rob the Appellant his right to complain against the return by INEC of the 1st Respondent as the winner of the Election. The tribunal had discretionary powers to exercise in setting -aside its unjust decisions and orders. In the instant case, Appellant counsel contended, it failed to exercise the power judiciously and judicially making it appropriate for the appellate court to intervene. He relied on the decisions in NBCI v. MGI CO LTD SUPRA OLORI MOTORS &. CO V. U.B.N LTD (1998) 6 NWLR (Pt.554) 493 AT S07 U.T.C. (NIG) LTD v. PAMOTE (1989) 2 NWLR (Pt 103) 244 AT 283, and ADADI IHA LTD v. OLUBODE (2004) 4 NWLR (Pt.863) 1 and urged us to resolve all Appellant’s issues for the determination of the appeal in Appellant’s favour and allow the appeal.
In reply to the foregoing arguments, learned counsel for the 1st and 2nd Respondents argued in their brief that the tribunal’s order of 21-9-07 is a right step to stop the abuse of its process by the Appellant. Mr. Fagbile who had appeared for the Appellant had all along been in the matter as some processes filed in the tribunal would show. His claim of unpreparedness to proceed with Appellant’s petition because they had just been briefed could not have been true. Counsel and the chambers he comes from, had more than thirty days grace to prepare for the case from the 17/8/07, when they were briefed, to 21/9/07 when the petition was slated for hearing. Unlike other civil matters, Election petitions are sui-generis and time is of their very essence. What the constitution required Appellant to be given is an opportunity of putting his case across and the right is not forever and to his convenience. The right of being heard is a multi-edged sword which does not allow anyone including the court to be held to ransome. Appellant had had sufficient time to prosecute his petition but chose not to. He should also not be indulged by this court.
Learned counsel further submitted that Mr. Fagbile’s reasons for the adjournment he sought were not reasonable. The fact that he was holding brief for a senior did not place him at any disadvantage than the actual counsel. He was deemed to have been sufficiently authorized to present the petition. The Tribunal’s exercise of discretion refusing the adjournment cannot be questioned and the present bid should be ignored. Counsel supported these submissions with the following cases: ODUSOTE v. ODUSOTE (1971) 1 All NLR 8, USANI v. DUKE & 23 ORS (2004) 1 EPR425 AT 457. MWPBODO V. ONOT (1984) 1 SCNLR NEWSWATCH COMMUNICATION LTD V. ATTA SUPRA, OBI-OSU V. DUKE & ORS (2005) 10 NWLR (pt.932) 105 BELLO v. BELLO (1986) 4 SC 264 AT 268-9 and ABANA v. BENOBI (2005) 6 NWLR (Pt.920) 183 AT 209.
In conclusion, learned counsel submitted that Appellant’s petition could only have been dismissed pursuant to paragraph 5 of the Practice Direction applicable to the tribunal, which provision must be given its natural meaning. The rules, which must be obeyed, gave no room for the relisting of Appellant’s struck-out petition. Relying on ANRALDO (NIG) LTD V. NPFMB (1991) 2 NWLR (pt 174)392; ACB PLC v. LOSADA (NIG) LTD (1995) 7 NWLR (pt 405) 26 AT SOLANKE v. SOMEFUN (1974)1 ALL NLR 586 AT 591 and WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 2 5C 145,counsel urged us to resolve the issues for the determination of the appeal against the Appellant and to dismiss the appeal which lacks merit.
On behalf of the 3rd to 646th Respondents, their counsel contended in their brief that given the clear and unambiguous provision of paragraph 5 (1) and (3) of the Election Tribunal Practice Direction 2007, the tribunal’s decision of 3/11/07 refusing to set aside its earlier decision of 21-9-07 and relisting Appellant’s petition cannot be faulted. The truth is that, in law, the tribunal lacked the jurisdiction of granting the very reliefs Appellant prayed for by his Application. The tribunal could not have had lawful recourse to the Federal High Court rules in the face of the practice Direction Specifically made to govern election petitions. Learned counsel further submitted that Appellant was given the opportunity of presenting his case and the allegation of breach of his right to fair hearing, therefore, falls flat. Counsel relied on DICKSON & ANOR v. BALAT & ANOR (2004) 1 EPR 249 AT 2B3 AND 286. He urged that the appeal be dismissed.
Arguments of learned counsel for the 647th – 648th Respondent are in similar vein. By paragraph 5 of the practice Direction, the tribunal lacked the jurisdiction of setting aside its earlier order dismissing Appellant’s petition. Counsel urged that the tribunal’s 3-11-07 decision should be affirmed with the resolution of their lone issue for the determination of the appeal against the Appellant. Now, the issue in this appeal is squarely whether the lower tribunal had the power to rehear or review and set-aside its own judgment and order and if whether so, in refusing so to do as urged by the Appellant herein, the tribunal had erred to warrant the intervention of this court.
As a general rule, no court or judge has the power of rehearing, reviewing or varying any judgment or order either in an application made in the original action or in a fresh action brought for that purpose. That task ordinarily belongs to the Appellate body by law empowered. The rule which is informed by the policy that litigations must be brought to an end, has many exceptions. These exceptions are either as provided for by the applicable rules of court or under the inherent jurisdiction of the court. If not so empowered, the court that had determined a cause or matter ceases to possess further power in dealing with the case except with respect to such ancillary matters as stay of execution, installental payments etc. The court is said to have become functus-officio, its powers to review or vary the decision having been assigned to an appellate body. See EDEM V. AKANKPA L.G. (2000) 4 NWLR (Pt 551) 70 AT 81. UKACHUKWU v. UBA (2004) 10 NWLR (Pt 881) 294 AT 305, OKOYE v. NIGERIAN CONSTRUCTION AND FURNIJURE CO. LTD.(1991) 6 NWLR (Pt.199) 501; ANIGBORO v. SEA TRUCKS (NIG) LTD (1995) 4 NWLR (Pt 399) 35; PETERS ASHNU (1995) 4 NWLR (Pt.388) 205 AND AKPOFURE v. OKEI (1973)12 SC. 13.
In the case at hand, Appellant had applied in the original action that the lower tribunal set aside its earlier order refusing his counsel’s prayer for an adjournment when his petition came up for hearing and striking out the petition for want of diigent prosecution. The decision and order of the tribunal Appellant urged should be set aside, see page 326 of the record, reads:-
“The matter is fixed for hearing today and the petitioner is not before us and no cogent reason is given for the absence. It is noteworthy that the pre-trial in the petition was concluded on 17/8/2007. We cannot continue to wait for the petition ad-infinitum,
We accordingly strike out the petition for want of diligence. ”
It is not in dispute that Appellant had not appealed against the foregoing decision. The applicable principle here is that the decision and order persists and conclusively binds the Appellant. Rightly or wrongly, it means that Appellant’s petition was struck out “for lack of diligent prosecution” following his “absence” from court on the fateful day. See F.I.B. PLC v. PEGASUS TRADE OFFICE (2004) NWLR (Pt.863) 369 AT 329: ODIASE v. AGHO (1972) 1 ALL NLR (Pt.1) 170, ALAKIJA v. ABDULAI (1998) 6 NWLR(Pt.552) 1 AT 24; FOREIGN FINANCE v. LSDPC (1991) 1 NSCC 520
Neither at the tribunal nor even in this court, had the Appellant suggested that the tribunal’s decision reproduced above was either fraudulently obtained or a nullity for any other reason. The inherent jurisdiction of a court to set aside its judgment or order has been held to be limited to such of its judgments or orders which are nullities. see OBIMONURE v. ERINOSHO (1966) 1 ALL NLR 250; OGBE v. ORUN (1981) 4 SC 1 and KAMALU v. OJOH (2000) 11 NWLR. (Pt 679) 505 AT 512.
In the instant case the question to answer is whether any statute had empowered the tribunal to set aside such judgment or order given in default. Learned counsel to all the Respondents have referred us to paragraph 5 (1) & 3 of the Election tribunal & court Practice Directions 2007 as being applicable to the lower tribunal. They provide as follows:-
“5 (1) When a petition comes up for hearing and neither party appears, the tribunal or court shall, unless there are good reasons to the contrary, strike out the petition and no application shall be brought or entertained to relist it.
(3) When a petition comes up for hearing, if the respondent appears and the petitioner does not appear, the respondent shall be entitled to final judgment dismissing the petition.
The golden rule of interpretation of statutes dictates that clear and unambiguous words in a legislation must be given their ordinary literal meaning. see DAILY TIMES (NIG) PLC V. AMAIZU (1999) 12 NWLR (pt 631) 439 CA and KRAUS THOMPSON ORG v. NIPSS (2004) 17 NWLR (pt.901) 44 SC. Viewed either from paragraph 5 (1) or 5 (3) supra, the lower tribunal is certainly not empowered by the applicable law to review and set-aside its judgment and order of 21-9-07 and in consequence relist Appellant’s petition. Sub paragraph (1) of paragraph 5 clearly states so while sub paragraph 3 of the same paragraph says that absence of the petitioner at the hearing renders his petition liable to dismissal and entitles the respondent to “final judgment”.
“Final judgment” means such that have determined the rights of parties thereto with the power of review of same belonging only to the appellate court.
Since the instant appeal is not in respect of the tribunal’s judgment or order of 21-9-07, I say no more than to stress the point that Appellant’s application of 27-9-07 urging the lower tribunal to set aside its 21-9-07 is incompetent and the tribunals decision thereon dated 3-11-07 is unassailable.
Appellant’s application urging the tribunal to set aside its decision and order of 21-9-07 was made on the following grounds.
“(1) The petition has not been determined on the merit
(2) The petitioner who had briefed counsel to prosecute his petition has been diligent in the prosecution of his case.
(3) That the case was struck out on account of inability of counsel, who held brief of the applicants’ lead counsel on 21/9/07 to proceed with trial.
(4) That it is in the interest of Justice and to hear the petition on merit”
In its ruling on Appellant’s application, the lower tribunal had inter alia asked these very important questions:-
“(1) Whether or not the tribunal has the competence to set aside its order striking out the petition.
(II) If the answer is in the affirmative, whether or not applicant has provided sufficient material to warrant the exercise of the tribunal’s discretion to relist the petition”
The Practice Directions have, specifically under sub-paragraph (1) thereto, barred the Appellant from applying for the relisting of his struck out petition following his absence at its hearing. The same Practice Directions have made the tribunal’s order on the petition pursuant to sub-paragraph (3) of paragraph 5, following petitioner’s absence at the hearing, “a final judgment” to which the respondent to the petition is entitled. Appellant’s application for the relisting of the petition was clearly incompetent and the tribunal lacked not only the jurisdiction to consider it where made but the power to grant the application also. The tribunal’s consideration of the reasons advanced by the Appellant for the relisting of the petition in the absence of any right on the part of the Appellant to so apply, as well as the absence of jurisdiction on the part of the tribunal to even consider the application let alone grant it underline the futility of any such bid.
The principle remains that a court of law in an application such as the tribunal had to contend with, in the absence of any provision in its Rules empowering it to set-aside its earlier judgment and order which judgment and order was neither fraudulently obtained nor for any other reason a nullity, the court’s inherent jurisdiction to set aside the very judgment and order is equally unavailing. This is all the more so when the tribunal’s rules has not only disabled any application for the purpose but called the judgment and order sought to be set-aside a “final judgment”, See CHIEF IRO OGBU & 3 ORS v. CHIEF OGBURU and 1 OTHER (1981) ALL NLR 324 AT 335 and MINISTRY OF LAGOS AFFAIRS, MINES and POWERS and ANOTHER v. CHIEF O. B. AKIN OLUGBADE & ANOTHER (1947) 11 SC 11 AT 19.
In the former case, the Supreme Court had, pursuant to order 9 rule 7 of its 1977 Rules, dismissed Appellant’s appeal. On the Appellant’s application to relist the Appeal, the court held that being a “final judgment” that was neither shown to have been fraudulently obtained nor bedeviled by any fundamental defect which touched on the Apex court’s jurisdiction and competence, the court could neither review nor set it aside either under the rules of court that had not so empowered nor the court’s inherent jurisdiction.
In conclusion, let me restate that the tribunal’s error, if any, in its decision of 21-9-07 striking out Appellant’s petition can never be a ground for urging it to set the decision aside. The decision could only be set aside if the tribunal had been empowered either by statute or its inherent jurisdiction so to do. Learned Appellant counsel seem to have confused the conditions appellant must meet in successfully challenging the 21.9-07 decision of the tribunal on the ground that it was wrong in law or on the facts with those conditions the law require the Appellant to meet in seeking to have the 21-9-07 decision set-aside.
Setting aside a judgment given by a court for the court’s errors can only be done through the appeal process. To have the same court or tribunal set-aside its judgment or order, the applicant must first of all be allowed by law to make the complain and further show that the defect complained of is extrinsic to the court’s decision making process and has rendered the decision invalid.
In the instant appeal, learned Appellant counsel’s failure to distinguish between the different requirements in the two different situations has proved disastrous!
In sum, the over-riding issue raised by the appeal is hereby resolved against the Appellant, the appeal lacks merit and is accordingly dismissed. Parties are ordered to bear their respective costs.
Other Citations: (2008)LCN/2800(CA)
