Prof. Steve Torkuma Ugba & Anor V. Gabriel Torwua Suswan & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The application before us is dated 14th day of November, 2013 and filed on 15th November, 2013. It was brought pursuant to Sections 6(6)(a) and (b), 36(1) and (3), 294(2) of the 1999 Constitution (As Amended); Section 22 of the Supreme Court Act, 2004; Order 2 Rule 28(1) and Order 8 Rule 17 of the Supreme Court Rules, 1999 (As Amended); and the inherent jurisdiction of this Court and seeks for the following reliefs:-

a) An order setting aside its ruling delivered in open court on 8th day of June, 2012 in Appeals Nos. SC.191/2012 and SC.191A/2012, terminating the said appeals.

b) An order implementing/Enforcing its order/decision delivered on 14th November, 2011 that the petition be heard on the merits:

c) An order Restoring Appeals Nos: SC.191/2012, SC.191A/2012 terminated on 8th June, 2012 and hearing same on the merits;

d) Accelerated hearing of this application;

e) Such further order(s) as this Honourable court may deem fit to make in the circumstances.

There are eleven grounds predicating the application. On the 11th February, 2014 at the hearing of the application the learned counsel, Orkumah, Esq represented the applicants and applied to abandon grounds 4 and 8 which same are now struck out. The subsisting nine grounds excepting 4 and 8 upon which the application is anchored are reproduced hereunder:

“GROUNDS FOR THE APPLICATION

1. The respondents, particularly 1st respondent had manifested foreknowledge of the decision before its delivery as shown by the posting of the result thereof at 7:49 am of 8/6/2012 on Facebook (Village Corner) and the broadcast of same on Radio Benue on 7/6/2012;
2. S.6(6)(a) & (b) of the 1999 Constitution (as amended) vests this Honourable Court with all inherent powers and sanctions of a court of law in all matters between persons or between government or authority or any person in Nigeria in all actions and proceedings for the determination of any question as to the civil rights and obligations of that person, including election cases and appeals therefrom;
3. S.36(1) of the 1999 Constitution (as amended) was not taken into account in adjudicating on this appeals as the appellants’ briefs were not considered in the ruling delivered on 8/6/2012 by this Honourable Court nor was S.285(2) considered in relation to the interpretation of S.285(6) of the 1999 Constitution (as amended) in the decisions of 8/6/2012 given by this Honourable Court;
4. …………………
5. This Honourable Court had on 14th November, 2011 in Appeal No. SC.360/2011 involving the same parties ordered this petition to be heard on the merits and the order has not been vacated or otherwise impugned in any proceedings and same is binding on this Honourable Court;
6. S.285(6) of the 1999 Constitution (as amended) cannot and does not apply to these appeals in which the petition was dismissed within 180 days (i.e 19th September, 2011) and the appeals therefrom heard and determined within 60 days as stipulated by S.285(7) of the 1999 Constitution (as amended) in accordance with the decision of this court in ANPP v Goni (2012) 7 NWLR (Pt.1298) 147;
7. A full court was constituted to consider departing from its decision in the ANPP v. Goni lines of cases as indicated in the appellants’ brief in SC.191/2012 but on 4/6/2012 the panel declined to go into the matter and confined itself to the preliminary objection of the respondents’ response to which formed substantial part of the arguments in the substantive appeals which were not considered by the court in its ruling;
8. …………………
9. This Honourable Court overlooked the decision of the full panel of this court in Saraki v Kotoye (1992) 11/12 SCNJ 26, (1992) 9 NWLR (Pt.264) 156, cited to it both in oral argument and appellants’ reply brief to 3rd Respondent’s brief to the effect that the exercise by a party of his Constitutional right of appeal under SS.233(2), 246(1)(c)(ii) and 285(7) of the 1999 Constitution (as amended) cannot constitute an abuse of court process or an academic exercise.
10. This Court failed to consider appellants’ response to 3rd respondent’s preliminary objection contained in paragraph 1.1 – 1.50 (pp. 1-24 of appellants’ reply brief to 3rd respondent’s brief in its ruling of 8/6/2012 thereby breaching appellants’ right to fair hearing under S.36(1) of the 1999 Constitution (as amended).
11. Section 285(6) of the 1999 Constitution (as amended) cannot stand in the face of the combined provisions of Sections 4(8), 6(6)(a) & (b) 36(1) of the 1999 Constitution (as amended).

In support of the application is a 25 paragraphed affidavit deposed to by one Richard Agwa, a litigation secretary in the chambers of the solicitors representing the applicants. In addition to the foregoing, the other documents filed by the applicants’ counsel include a written brief filed 25th November, 2013, replies on points of law in response to the 1st and 2nd respondents, counter affidavit and their written addresses respectively. The learned counsel Mr. Orkumah, Esq. in moving the motion, relied particularly on paragraphs 3 – 24 of the affidavit in support and also on all the other documents enumerated therein inclusive of the brief filed supra. The counsel on the totality moved in terms of the motion papers and urged that this court should grant the application per the reliefs sought and that the ruling delivered on 8th June, 2012, should be set aside.

In opposing the application, the learned senior counsel Mr. Dodo, SAN in company of his brother Prof. A. A. Ijohor, SAN, led a team of other lawyers and represented the 1st respondent. A counter affidavit containing seven paragraphs as well as a written submission against the motion were both filed 22nd November, 2013 and conclusively relied upon. The learned senior counsel Mr. Dodo emphasized that the applicants had not satisfied the requirement for setting aside the ruling as sought. Counsel further rated the application as lacking in merit and only aimed at wasting the time of the court.

On behalf of the 2nd respondent, his counsel Chief Akuma, SAN, intimated the court of their counter affidavits filed on 19th and 20th, November, 2013 respectively. On an application by the said counsel, the earlier one was withdrawn and struck out. Counsel thereafter adopted and relied on the subsisting counter affidavit as well as the written address filed 16th January, 2014 and also the exhibits attached thereto. Specific reference was made on paragraph 4.2 on page 10 of their written address. Counsel further impressed upon this court to strike out the applicants’ reply on points of law, as it is a re-argument of the entire written address and therefore frivolous. It is also the counsel’s further contention that by reason of Section 285(7) of the Constitution supra, the application is an academic exercise and also an abuse of this court’s process. The learned counsel urged in favour of dismissing the application therefore.

Appearing on behalf of the 3rd respondent and in company of other counsel was Mr. J. S. Okutepa, SAN, whose objection was taken on points of law. The senior counsel also adopted the submissions made on behalf of the 1st and 2nd respondents and rated the application as most frivolous especially where the sum total raises the question relating a denial of the right to fair hearing. It is the submission of counsel further that Order 8 rule 16 of the Rules of this court is the only provision made and allowing for a setting aside of its own decision. In the same vein as his learned brothers for the 1st and 2nd respondents, the senior counsel also urged that this application should be dismissed as lacking in merit and an abuse of court process.

The determination of this application will necessitate the giving of a brief background history of the preliminary objection which resulted in this court dismissing the appellants’/applicants’ appeals as being academic and an abuse of court process. By its Ruling Exhibit 2 delivered on the 8th June, 2012, this court held thus:-