In The Court of Appeal

(Enugu Judicial Division)

On Tuesday, the 14th day of June, 2011

Suit No: CA/E/EPT/5/2010

Before Their Lordships

 Between

 And

AMINA ADAMU AUGIE, J.C.A (Delivering the Leading Judgment): The Applicant fielded a candidate at the Anambra State Governorship Election that held on the 6th of February 2010, and dissatisfied with the declaration of the 1st Respondent as the Governor of Anambra State; it filed an election Petition at the Governorship Election Petition Tribunal.

After losing at the Tribunal, it filed an appeal in this Court, and in our Judgment delivered on 24th February 2011, this Court dismissed the appeal and affirmed the decision of the Tribunal. Ordinarily, the matter should have ended there as the appeal was filed before the Constitution was amended, and this Court was still the final Court in election matters.

But the Applicant wants to take one more bite at the cherry. It has come back to this Court to ask us to set aside the said Judgment because -

1) 'Exhibit "D" the certified true copy of the Judgment furnished to the Appellant by this Court on March 8, 2011 as the written Judgment delivered on February 24, 2011 , is a sham Judgment;

(a) The Judgment purports to be a written decision in the above appeal delivered on February 24, 2011.

(b) The content of the Judgment contradicts the fact that the decision was in writing when it was delivered on February 24, 2011.

2) The Judgment in the above appeal is null and void because the Court failed to deliver its decision in writing in fragrant violation of Section 29 (1) of the 1999 Constitution, as amended:-

(a) At page 22 of the lead Judgment Hon. Justice R.C. Agbo, JCA stated thus:

"In the words of my lord Hussein Mukhtar JCA in the lead Judgment delivered this morning. 

"The words or phrase 'all the vote cast" under S. 179 (2)(b) must refer only to valid votes but certainly excludes invalid votes. After all an invalid vote is as good as never cast at all and cannot be countenanced in the calculation of % of votes in each of at least 213 of the local Government Areas in the State.

It will be like counting both the living and the dead in a census exercise. An invalid vote is not a vote at all and cannot be countenanced in the computation of the votes cast in an election." This determination is binding on us and determines the principal issue in this appeal."

  (Underlining supplied for emphasis)

(b) The decision included events that took place on the day the Judgment was delivered.

3) The Judgment in the above appeal is null and void because the court failed to furnish the Appellant with duly authenticated copy of the decision within seven days of the delivery of the Judgment in fragrant violation of section 294(1) of the 1999 Constitution, as amended.

4) The Judgment in the above appeal is null and void because the Court failed to consider determine or pronounce on the Appellants' Grounds of Appeal. (Highlight mine)

The Application is supported by an 18-paragraph Affidavit, and four annexures, i.e. - Exhibit A [Notice of Appeal]; Exhibit B [hearing notice]; Exhibit C [acknowledgment letter]; and Exhibit D [a copy of the Judgment delivered on 24/2/11. The 1st - 3rd Respondents are opposed to the Application, and they filed a 1 -paragraph Counter-Affidavit to that effect. 

They also filed a Notice of Preliminary Objection, wherein they contend "that the Application is incompetent and ought to be struck out in that -

(i) From the matters on which the Application is founded the Court of Appeal is functus officio and cannot revisit the Judgment on the said grounds.

(ii) Section 291 (1) of the Constitution does not support any of the ground on which the Applicant initiated this Application.

(iii)The Applicant did not place sufficient materials to establish that he made demand for the Judgment within seven (7) days of its delivery and was not given a copy of same.

(iv) The Court of Appeal pronounced its Judgment in accordance with Order 18 rule 1 of the Court of Appeal Rules within three (3) months of the hearing of appeal.

As it turned out, learned counsel for the Applicant, Mike Okoye, Esq., informed the Court at the hearing of the Application that he intended to argue only Ground 4 of the Application. In effect, Grounds 1 to 3 of the Application are deemed abandoned, and they will be discountenanced. 

Mr. Okoye started off by saying that this Court did not consider "even one Ground of the Grounds of Appeal", but he narrowed down his arguments to Grounds 1 & 11, and the issues 1 & 7 distilled there-from.

He argued that the Applicant's evidence, when balanced against that of the Respondents, should have resulted in a favourable Judgment for it; that its issue 7 questions the appraisal and evaluation of the evidence, citing Mogaji v. Odofin(1978) 4 SC 91; that this Court inadvertently forgot to consider and determine the complaint made by the Appellant; that the Judgment of this Court resolved only a specific finding of the Tribunal on the correct interpretation of Section 179 (2) (b) of the 1999 Constitution, and since an appellate Court is to correct errors, if any, its Judgment must resolve the said complaint; that an appellate Court has a constitutional duty to do so, and an Appellant has a constitutional right to have his appeal considered and determined; that the omission to consider and determine its complaint before dismissing the appeal is a denial of fair hearing, which justifies setting aside the Judgment arrived as a result of such breach; that this Court has inherent jurisdiction to set aside a Judgment order, which is a nullity; that it is not necessary to appeal as the Judgment/order is made null and void by a fundamental defect, and can be set aside, citing Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 506, and that re-hearing of this appeal is not a guarantee that the appeal will succeed but a guarantee that our justice system will work.

He also argued that the Applicant never asked for the interpretation of Section 179 (2) (b) of the Constitution, and never formulated any issue thereon; that it established a prima facie case that Peter Obi was not qualified, and that he, Mike Okoye, is the one qualified; that this Court failed to make a finding that he is the rightful Governor based on the authority of Amaechi v. Omehia (2008) 5 NWLR (Pt. 1080) 227 SC; and that the matter could be heard without setting aside the Judgment, citing Obasi Brothers Co. Ltd V. MBA Securities (2005)1 NWLR (Pt. 929) 111 @ 129. He also referred us to the Supreme Court case of Ibrunfemi v. Asho (2000) 2 NWLR (Pt. 643) 143, which set aside the earlier Judgment of the Supreme Court reported in (1999) 1 NWLR (Pt. 585) 1.

Dr. O. Ikpeazu (SAN), submitted that the Applicant's Ground 1 was exactly that, which was determined by the Tribunal, and its issue 7 was also determined; that the complaints, which they were not conceding to, may be termed "errors in law" but are matters which this Court by virtue of Section 246 (3) of the Constitution cannot at this stage embark on being functus officio, citing Alao v. A.C.B. Ltd (2000) 1 NWLR (Pt. 672) p 264, Akinde v NASU (1999) 2 NWLR, (Pt. 592) p 570 at 582, Adegoke Motors v. Adesanya(l989) 3 NWLR (Pt. 109) p 250 at 274 - 275.

Mr. Nnadi adopted the submissions of Dr. Ikpeazu (SAN), and added that the issue is whether there was any complaint that the appeal was wrongly dismissed; that if the appeal turns on the issue of Section 179 (2), and the evidence led, which show that the 1st Respondent met the requirements, then all the argument being rendered here is academic and a sheer waste of time; that the case of Eke v. Ogbonda (supra) is not applicable to this case; that a final Court can determine a case on one or two issues once it is convinced that the issue(s) so determined will resolve the appeal; and that this Court is the final Court in this matter, therefore, once it decides the appeal on one issue, no one can complain. Replying on points of law, Mr. Okoye submitted that the case of Nnaji v Agbo (2006) 1 NWLR (Pt. 981) 199, cited by Dr. Ikpeazu (SAN), is distinguishable from this case; and that "functus officio" is when all the grounds of appeal in an appeal are considered and determined. 

Is this Court functus officio or not? That is the question before us, and I will quickly say functus officio is NOT - "when all the grounds of appeal in an appeal are considered and determined", as Mr. Okoye said.

Functus officio is Latin for "having performed his or her task", and "refers to one who has exercised his or her authority and brought it to an end in a particular case" - see The Longman Dictionary of Law 7th Ed. See also Black's Law Dictionary. 6th Ed., wherein functus officio defined as - 

"Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority Applied to an officer whose term has expired, and who has consequently no further official authority; and also to an instrument, power, agency, etc., which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect".

In effect, once a Court has delivered its decision on a matter, it becomes functus officio with regard to that matter. This is because a Court cannot sit as an appellate Court over its decision; once it has decided a matter, it ceases to be seized of it, and cannot re-open it for any purpose whatsoever - see Ogboru v. Ibori (2005) 13 NWLR (Pt. 942) 319, Sun Insurance v. LMBS Ltd. (2005) 12 NWLR (Pt. 940) 608, Ukachukwu v. Uba (2005) 18 NWLR (Pt. 956) 1, Ubeng v. Usua (2006) 12 NWLR (Pt. 994) 244; Onyekweli V. INEC (2009) 6 NWLR (Pt. 1136)    However, the law also says that Courts of record have the inherent jurisdiction to set aside their Judgments/decision/order, in appropriate cases. When -

(i) The Judgment is obtained by fraud or deceit either in the Court or of one or more of the parties;

(ii) The Judgment is a nullity;

(iii) It is obvious that the Court was misled into giving Judgment under a mistaken belief that the parties consented to it;

(iv) The Judgment was given in the absence of jurisdiction;

(v) The proceedings adopted was such as to deprive the decision or Judgment of the character of a legitimate adjudication;

(vi) Where there is fundamental irregularity - see Alao v. ACB (supra). See also Tomtec (Nig.) Ltd. v. FHA. (2009) 18 NWLR (Pt. 1173) 358 SC.

The Applicant herein is not saying that the Judgment of this Court delivered on the 24th of February 2011, was obtained by fraud or deceit. It is not complaining that this Court was misled into giving the Judgment, or that the Judgment was given in the absence of jurisdiction, and it is not objecting to the procedure adopted by the Court. From all indications, the Applicant is actually accusing this Court of not doing its job properly.

Its position is that this Court "has a constitutional duty to resolve its complaint", which it "inadvertently forgot to consider and determine", so, it was denied a fair hearing, and the Court's Judgment is null and void.

What is the complaint? Ground 1 of its Grounds of Appeal states that -

"The Election Tribunal erred in law in interpreting section 179 (2) (b) of the 1999 Constitution, outside the issue for determination, which led to the unwarranted, unjustified and perverse conclusion that the 1st Respondent secured one-quarter of all the votes cast in fifteen (15) local government areas in Anambra State and satisfied the requirements of section 179 (2) (b) of the 1999 Constitution, and was duly returned as the governor of Anambra State -".

Issue 1 formulated from this Ground of Appeal in the Appellant's brief, is-

Whether the Tribunal went outside the issue before it to interpret Section 179 (2) (b) of the 1999 Constitution which led to its perverse conclusion that the 1st Respondent secured one-quarter of all the votes cast in fifteen (15) LGAs of Anambra State and satisfied the requirement of the Constitution and was duly returned as Governor of Anambra State by the 6th Respondent. 

Ground 11 is the omnibus ground of appeal, which complains that- "the Judgment of the Tribunal is against the weight of evidence and issue 7 formulated from the Ground 11 questions - " whether the Tribunal was not to have upheld the Appellant's claim that the 1st Respondent was not validly elected and was not qualified to contest the election.

The Appellant's case was that out of 8 LGAs, where it contended that the 1" Respondent did not secure one-quarter of all the votes cast, the Respondents joined issues with it in only two - Anambra East and

Anambra West, and the Respondents accepted that the 1st Respondent did not secure the requisite spread in 6 - (1) Ayamelum; (2) Dunukofia; (3) Idemili North; (4) Idemili South; (5) Nnewi South; and (6) Oyi.

Thus - " the only issue for determination from the pleadings among the parties is, Anambra East and Anambra West'. It was submitted that -

"The Tribunal were only to inspect INEC results Exhibit A", Exhibit "8", Exhibit "C", to see if it corroborates, the oral evidence of the Appellant that the 1st Respondent failed to obtain one-quarter of all the votes cast in Anambra East and Anambra West LGAs and therefore was not duly elected and returned by INEC in compliance with Section 179 (2) (b) of the 1999 Constitution".

To paint a clearer picture of the Applicant's grievance, and its reason for bringing this application, I will reproduce other arguments from the brief -

"The Tribunal completely abandoned the issue (it) formulated, and proceeded to determine an issue not arising out of the Petition....

  The only issue arising for determination is whether the 1st Respondent obtained % of all the votes cast in the two LGAs - - The whole exercise of - - interpreting Section 179 (2) (b) - - was a complete waste of time since the outcome of such interpretation cannot be applied to the Appellant's case. The case of the Appellant from the issues joined in the Petition did not depend on the interpretation of Section 179 (2) (b) of the Constitution. The allegation that rejected votes were added to the total votes cast in the results declared by INEC was first raised in the Reply of the 1st, 2nd and Respondents in their Reply to the Petition.

Since the 1st Respondent did not challenge the figures of the declared results, the Tribunal had no business going into the interpretation of Section 179 (2) (b) - - lf the Respondents wanted to challenge the result - - - they must have to file a Cross-Petition and allege that the figures declared as total votes cast by INEC are incorrect because rejected votes were added to the figures declared, only at this point will the Tribunal have jurisdiction to interpret Section 179 (2) (b) - - and apply the outcome of their interpretation to the figures declared by INEC Since the 1st Respondent did not file a Cross-Petition, it was a worthless exercise for the Tribunal to have gone into the interpretation of the Constitution and to have applied the outcome of their interpretation to this case, as it did. - - - The Tribunal (with respect) grossly erred and abdicated their institutional role when they proceeded to interpret Section 179 (2) (b) - - and to write a Judgment of 176 pages which was delivered for 7 % hours - - on an issue not before the Tribunal-- - It was the interpretation of Section 179 (2) (b) - - that led to the unwarranted, unjustified and perverse conclusion by the Tribunal that the 1st Respondent secured % of all the votes cast in 15 LGAs - - when in fact from the evidence before the Tribunal the 1st Respondent did not secure % of the votes cast in 14 LGAs..."

There we have it - the Applicant is saying that the Tribunal did not tackle the issue on which parties joined, and "abdicated its constitutional role" when it interpreted Section 179 (2) (b) of the Constitution", which led to the "unwarranted, unjustified and perverse conclusion that the 1st Respondent secured % of all the votes cast in 15 LGAs", and this Court, which "has a constitutional duty to correct" the said error, failed to do so.

The argument makes no sense to me at all. Section 179 (2) (b) says -

"A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates 

(b) He has not less than one-quarter of all the votes cast in each of at least two thirds of all the local government areas in the State.

The Appellant reproduced paragraphs 10 - 19 of its Petition in its brief -

10. That the requirement of the Constitution is that the 1st Respondent must obtain % of all the votes cast in 14 LGAs - - before he could be deemed to have been duly elected to the office of Governor of Anambra State.

11. That the 1st respondent did not obtain the % votes in all the votes cast in 14 LGAs of Anambra State as required by the Constitution.

12. That the 1st Respondent was not duly elected or deemed to have been elected since he did not satisfy the requirement of the Constitution and the Electoral Act, 2006.

13. Your Petitioner states that the 1st and 2nd Respondents did not obtain % of all the votes cast in - -

14. Your Petitioner states that the return of the 1st Respondent - - was in violation of the provisions of Section 179 (2) (b) of the 1999 Constitution.

15. Your Petitioner will at trial rely on INEC issued Declarations of results - - -

16. Your Petitioner states that the gubernatorial election - - were inconclusive since no candidate obtained the constitutional required % of all the votes cast in each of at least two-third of all the LGAs in Anambra State.

17. Your Petitioner will therefore at trial contend that the 1st Respondent was not and could not have been duly elected and returned since he did, not obtain % of all the votes cast in two-thirds of all the LGAs

18. Your Petitioner will at trial contend that the return of the 1st Respondent as a Governor of Anambra State or take the oath of allegiance, unless he has satisfied the requirements of Section 179 (2) (b) of the Constitution.

The Appellant's case was that the 1st Respondent did not obtain % of all of Section 179 (2) of the 1999 Constitution since the 1st Respondent did not obtain % of all the votes cast in each of at least two-third of all the LGAs in Anambra State.

19.Your Petitioner states that the 1st Respondent is not entitled to be sworn in as a governor of Anambra State or take the oath of allegation, unless he has satisfied the requirements of section 179 (2) of the Constitution.

The Appellant's case was that the 1st Respondent did not obtain 1/4 of all the votes cast at the election, and that his return as the Governor "was in gross violation of section 179 (2) (b) of the 1999 Constitution". But that is the very Section of the Constitution, which it is contending that "the Tribunal had no business interpreting". What sense does that make? The word "lnterpret" means  "to give the meaning of; explain or make clear; elucidate; to derive a particular understanding of; give a certain explanation to; construe" see Webster's Comprehensive Dictionary.

How did the Applicant expect the Tribunal to arrive at a decision without explaining what the Section 179 (2) (b) of the Constitution is all about?

What is more, I cannot for the life of me fathom why the Applicant would come up with a complaint that it was the interpretation of Section 179 (2) (b) of the Constitution that led to the Tribunal's conclusion that the 1st Respondent secured % of all the votes cast in 15 LGAs. Obviously, any Tribunal worth its salt would construe the said Section to see whether it applies to the case before it or not, which is what this did. The Applicant's attack makes no sense, and that is exactly what my learned brother, Agbo, JCA, said in our Judgment sought to be set aside-

"The Appellant attacked the Tribunal for interpreting Section 179 (2) (b) of the 1999 Constitution before applying it. That is strange. It was clearly within its right to show an appreciation of Section 179 (2) of the 1999 Constitution before applying it. There was no dispute before the Tribunal as to the votes scored by parties at the election. The dispute was as to the arithmetic of what constitutes 1/4 of votes scored. A challenge of an election founded on Section 179 (2) of the 1999 Constitution is a challenge of the computation of the votes scored by the parties and calls into question the arithmetic of the votes. The Court or Tribunal faced with such challenge can only resolve it by delving into the correctness of the computation placed before it. The Judgment of the Tribunal remains largely undented and is to be commended". (Highlight mine)

My learned brother said it all, and really hit the nail on the head at that.

What can anyone add to that? Section 179 (2) of the 1999 Constitution sets out the spread of votes a candidate must secure in order to be deemed to have been duly elected - see Ukpo v. Imoke (2009) 1 NWLR (Pt. 1l2l) 90 where this Court per Galadima JCA (as he then was) said -

"The emergence of a winner in an election is predicated upon his having satisfied the provisions of Section 179 (2) of the 1999 Constitution to the effect that in making the declaration the Returning Officer must show that the declared winner had the majority of the votes cast at the election and that he had not less than one-quarter of all the votes cast in each of at least two thirds of all the local government areas in Cross River State. All the relevant statistic must be clearly set out after which a sealed certificate of return would b issued in accordance with Section 76 (1) of the Electoral Act.

In this case, the Tribunal found as a fact that the 1st Respondent satisfied the requirements of Section 179 (2) (b) of the Constitution because he secured % of all the votes cast in 15 LGAs. But the Applicant insists that the only issue for determination, which was not resolved by the Tribunal, is whether the 1st Respondent obtained 1/4 of the votes cast in 2 LGAs.

It has also accused this Court of failing to grasp its actual gripe, which is that the issue before the Tribunal had to do with pleadings, and not the interpretation of the Section 179 (2) (b). All I can say is that the Applicant is merely grasping at straws. The Tribunal does not need to stand and shout - 1+1=2, 2+2=4, 3+3=6, 4+4=8, before it says 5+5=10.

The Tribunal is not a primary school pupil, and in affirming its decision, this Court did not have to go through its exercise book to cross check whether the Tribunal did the right sums or ticked the right answers. 

The bottom line is that the Tribunal found as a fact that the 1st Respondent secured % of all the votes cast in 15 LGAs, which satisfied the provision of the said Section 179 (2) (b), and that is all there is to it.

But the Applicant did not end there, it also complained it had made out a prima facie case that the 1st Respondent was not qualified, and accused us of failing to make a finding that Mike Okoye, Esq., is the rightful Governor based on the authority of Amaechi v. Omehia (supra).

In other words, that we did not address the issue of qualification it raised.

Again, this Complaint has no legs to stand on. This Court clearly held -

"On the preliminary objection raised by the 1st, 2nd and 3rd Respondents, I had set out earlier the Ruling of the Trial Court on the issue of the qualification of the 1st Respondent to contest the election. That Ruling has not been challenged by the Appellant. No appeal was filed against it. Yet, the Appellant at the Tribunal after that Ruling still proceeded to raise issues thereto in its final address. On this issue, the Tribunal at page 210 of their Judgment had this to say - "The above quoted Ruling and decision of this Tribunal in this Petition on 12th May 2010 remains extant, valid and still subsisting until the findings made are set aside by the Court of Appeal, the parties in this Petition as well as the Tribunal are bound by the decisions therein contained". The Tribunal no doubt had become functus officio and could not go into those issues again even if they felt that their earlier pronouncements were wrong. Grounds 9 and 10 of the Grounds of Appeal not being a challenge of the Ruling of the Tribunal on 12-5-2010 properly constituted are hereby struck out. With those grounds also go the issues arising therefore". (Highlight mine)

The above exposition of my learned brother, Agbo, JCA, on the issue of qualification, speaks for itself, and it is most unkind, and uncharitable of the Applicant to accuse this Court of not addressing the said issue.

As it stands, the Applicant accused this Court of failing to grasp the gist of its grouse against the Judgment of the Tribunal, and thereby denied it of a fair hearing, which is a reason to set aside our Judgment.

As I pointed out earlier, all the authorities affirm that where a Court has decided an issue and the decision is correctly embodied in its Judgment; it becomes functus officio and cannot re-open the matter or substitute a different decision in place of the one that has been rendered - see Alao v. ACB (supra) where the Supreme Court per Iguh, JSC, observed -

".....I think this application is totally misconceived as this Court has no jurisdiction to sit on appeal over its decision, Judgment or order. One of the grounds upon which this application is made is that the decision of the Court was based on "fundamental and false assumption of law and fact", which the Court was not entitled to make. I need only reiterate that a misdirection or error in law in a Judgment, so long as such a Judgment represents what the Court decided or the actual decision of the Court cannot be corrected, varied or amended under the "Slip Rule" or at all otherwise than by an appeal As I have observed, this Court, as a final Court of appeal, has no jurisdiction to sit on appeal over its judgment.

This is clearly understandable as otherwise there would never be an end to litigation, a situation, which, without doubt, will spell doom to law and order and the administration of justice generally".

Iguh, JSC, also held in Obioha v. Ibere (l994) 1 NWLR (Pt. 322) 503 -

"- - This Court is being asked to review and/or to set aside its said decision and to substitute a different Judgment in its place on the ground that the Court allegedly fail to advert its mind to the grounds of appeal before it. The Applicant is inviting this court to review the Judgment complained of on the ground of the alleged inadvertence or error with a view to setting aside the decision and substituting a new Judgment in its place. I think it is right to state that where a ground of appeal has not been considered by al appellate Court, this, in my view, will amount to an effort or misdirection in law and no more. There is no constitutional provision for the review of the Judgment of the Supreme Court by itself and once it delivers a final Judgment the Supreme Court, subject to the "slip rule" becomes functus officio in respect thereof.

Belgore, JSC, (as he then was) also had this to say in the same case -

"What this court is being asked to do is to review its Judgment, not to correct clerical errors or errors-from accidental slip or omission but to overturn the Judgment already given. This Court has consistently refused to be dragged into this pitfall. The purpose of this application is clear, it is an appeal cloaked in the guise of a motion. From the wordings of the motion and the grounds for bringing it, it is manifestly clear that the validity of the Judgment of this court as given is being challenged court has entered Judgment in a case, that decision is final and will remain so for ever. The law may in future be amended to affect future issues on the same subject, but for the case decided, that is the end of the matter".

In this case, apart from asking this Court to set aside its own Judgment, the Applicant is also asking us to set the appeal, which was disposed of on the 24th of February 2011, down "for rehearing and determination". The ground being that this Court did not consider its grounds of appeal. To be more specific, that this Court "inadvertently forgot to consider and determine" it's compliant against the Judgment of the Tribunal. It is clear from all that has been said so far that the ground for the Application is ill conceived, and absolutely lacking in merit. However, even if it was not, the Application would still have to be dismissed because "it is an appeal cloaked in the guise of a motion" - see Obioha v. Ibero (supra), From the wordings of the Application dated 15th March 2011, and the grounds for bringing it, it is very obvious that it is the validity of our Judgment delivered on 24th February 2011, which is being challenged.

The Applicant wants us to sit on appeal over our decision, however, being a final Court in this matter, this Court is in the same position of the Supreme Court in the matter, and it will not permit a reversal or review of its Judgment - see Onyekweli v. INEC (2009) 6 NWLR (Pt. 1136) 13.

Obviously, the Applicant wants to take a second bite at the cherry, but our Judgment is final forever, and it can never come near the cherry, not to mention having a second bite at it. The Application lacks merit, and it is hereby dismissed in its entirety. I make no order as to costs.

RAPHAEL CHIKWE AGBO, J.C.A: I have been privileged to read in draft the ruling just delivered by Adamu Augie JCA and I agree completely with her reasoning and conclusions. I regard the ruling as mine. This whole exercise has been a silly ego trip founded on empty scholarship. It is high time politicians learnt that elections to political offices are won by obtaining the valid votes of the citizenry at the polling stations and not by duplicitous pyrotechnics and grand standing in the different court halls. This whole exercise has been a noxious waste of adjudicatory time and state funds.

HUSSEIN MUKHTAR, J.C.A: I have had the advantage of previewing the ruling just rendered by my learned brother Amina Adamu Augie, JCA and absolutely agree that the application herein is totally lacking in merit.

It is an elementary principle of the law that a court becomes functus officio as soon as it pronounces its decision. A court cannot, therefore, review its own decision under whatever guise. The most the court can do is to correct minor obvious slips and typographical errors. No court has the competence to sit on appeal over its own decision, including the Supreme Court. In Alao v ACB (2000) 9 NWLR (Pt. 672) 570 the apex court per Iguh, JSC observed, in very clear and concise terms, thus:

"...a misdirection or error in a judgment, so long as such a judgment represents what the court decided or the actual decision of the court cannot be corrected, varied or amended under the 'slip rule' or at all otherwise than by an appeal. As I have observed, this court as a final court of appeal, has no jurisdiction to sit on appeal over its judgments."

Belgore, JSC (as he then was) further observed thus:

"...The purpose of this application is clear, it is an appeal cloaked in the guise of a motion. From the wordings of the motion and the grounds for bringing it, it is manifestly clear that the validity of the judgment of this court ... is being challenged.

Once the Supreme Court has entered judgment in a case, that decision is final and will remain so forever."

The instant motion filed by the applicant is tantamount to asking this court to sit on appeal over its own judgment. In whatever ploy or guise the applicant seeks to drag the court into revisiting the judgment, it cannot metamorphose into anything short of an appellate exercise. It is a clear challenge to a decision of this court that finally settled the core issues raised in the appeal. Such decision cannot but only be challenged on an appeal. Being a final decision, as at the date it was delivered, it is not appealable and it remains so till end of times.

For above and the more detailed reasons in the lead judgment, which I fully adopt, the application is glaringly bereft of merit. Its obvious fate, therefore, is nothing other than dismissal and it is hereby so dismissed by me. I subscribe to the consequential orders in the judgment.

MOJEED ADEKUNLE OWOADE, J.C.A: I read in advance the Ruling delivered by my learned brother AMINA AUGIE, JCA. I totally agree with the reasoning and the conclusion. I also abide with the consequential orders.

It must be repeated for the umpteenth time that the law has always drawn a distinction between a judgments that is appealable by reasons of error of law and a decision capable of being set aside as a result of error on the face of the record which consequently is null and void. 

In the instant case, the appellant/applicant could not be heard to say that the court was not properly constituted or that the court was deprived of jurisdiction, preliminary or collateral. This is because, when a court has jurisdiction to entertain a suit, it does not lose its jurisdiction by coming to a wrong conclusion whether it was wrong in law or fact. It does not lose its jurisdiction even if its conclusion on any aspect of its proper field of enquiry is entirely without evidential support.

The essential complaints of the appellants/applicants in the instant case that "the decision included events that took place on the day the judgment was delivered" or that the court failed to consider, determine, or pronounce on the appellants grounds of appeal" do not go to the root of the decision, do not render the judgment to be null and void and therefore only qualified the decision for a review by way of an appeal and not subject to an order of setting aside.

The reason for the above is that having delivered its judgment, this court is functus officio and can no longer review a judgment which it had delivered except in certain exceptional situation which are not present in this application.

For these reasons and the fuller reasons contained in the lead Ruling, I also dismiss the application.

IGNATIUS IGWE AGUBE, J.C.A: I have been most privileged to read the draft of the Ruling just delivered by my Lord, the Presiding Justice, Honourable A.A. Augie, JCA, and I am in total agreement with his well researched, reasoned and articulate conclusion that this application is unmeritorious and ought to and has accordingly been dismissed.

However, by way of addendum and emphasis, there is no doubt that every Court including the Court of Appeal has the inherent jurisdiction to set aside its judgment where there has been fundamental defect in the proceedings such as where the Court lacked the jurisdiction to entertain the appeal. In such circumstance, the Court can suo muto set aside the judgment or any of the parties affected by such a judgment may, ex-debito justitiae, come by way of motion as the Appellant/Applicant has done in this case to seek for the setting aside of the judgment for being a nullity. See for instance, Skenconsult (Nigeria) Ltd v. Ukey (1981) 1 S.C. 6; A.C.B. Plc v. Losada (Nig.) Ltd (1995) 7 S.C.N.J. 158 at 168 and Ezeokafor v. Ezeilo (1999) 6 S.C.N.J 209 at 225. See further Ojiako v. Ogueze (1962) 1 ALL NLR 58; Saliyum v. Mashi (1975) 1 NMLR.

Apart from the jurisdictional factor, this Court also has inherent power to set aside its judgment on grounds of fraud or misrepresentation (See Olufumise v. Falan (1990) 3 N.W.L.R. 1; Akin-Olugbade v. Onigbongbo Community (1974) S.C.J and Agunbiade v. Okunoga & Co. (1961) 1 All N.L.R. 110) and by reason of mistake or incompetence to make an order in the Appeal. See Momodu v. Momoh (1986) 5 NWLR (pt. 43) 649 and Obimonure v. Erinosho (1966) 1 All N.L.R. 250,

The Court of Appeal, it has also been suggested, may reconstitute another panel to rehear appeal on grounds of bias against some of the Justices who sat in a previous panel, in order to meet the ends of justice particularly where as in this case; we are sitting as a final Court in an election petition. See Ibe Ikwechegh Esq. "Civil Practice in the Court of Appeal" at pages 339 340; relying on the English case of Exparte Pinochet (No. 2) (2000) 7 A.C. 119.

Generally, however, the law is settled that once a Court has delivered its final judgment, it has no inherent powers to review same since it has become functus officio. See Emodi v. Kwento (1996) 2 SCNJ 134 at 164 and Udo Idong Akpan Ekerete v. Udo Enwe Eke of lkot Eyo (1925) 6 NLR 118 - 119; where the Supreme Court succinctly stated the position of the law thus:-

"It is a general rule of law that no Court has power to rehear, review, alter or vary any judgment or order after it has been entered or drawn up. This rule has been subject to certain qualifications. There is power under the above rule and inherent in the Judge to correct any clerical mistake or error arising from any slip or omission, so as to do substantial justice or give effect to his meaning and intention." See also Bakare v. Akpena (1986) 6 S.C. 460.

The above position was re-emphasized in W.H. Bockeimann v. Thompson Nwaeni (1965) NMLR 252 at 253; per Bairamian, Onyeama and Ajaegbo, J.J.S.C. In Ikpong v. Udobong (2007) 2 NWLR (pt. 1017) 184 at 206 - 207; Omokri, JCA (of blessed memory), had cause to restate the principles under which a Court can set aside its judgment citing Igwe v. Kalu (2002) 14 N.W.L.R. (pt. 787) 435; Ukachukwu v. Uba (2005) 18 N.WL.R. (pt. 956) 1; and these include any of the following:-

1. When the judgment is obtained by fraud or deceit of any of the parties or of one or more of the parties;

2. When the judgment is a nullity;

3. When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it"

4. Where the judgment was given in the absence of jurisdiction (as had earlier been noted); and

5. Where the procedure adopted was such as to deprive the decision or judgment of the character of legitimate adjudication.

The learned Sage also gave us an insight into the purport of functus officio which had informed the decisions of the Supreme Court in Ekerete v. Udo Enwe Eke of Ikot Eyo (supra); Emodi v. Kwento (supra); Bockeimann v. Thompson (supra) and Bakare v. Akpena (supra) to mention but a few; when he relied on Anyaegbunam v. A.G. Anambra State (2001) 6 NWLR (pt. 710) 532; Onyemobi v. President O.C.C. (1995) 3 NWLR (pt. 381) 50; Ukachukwu v. Uba (2005) 18 NWLR (pt. 956) 1 at 60 and Muhammed v. Hussein (1998) 14 NWLR (pt. 584) 108 at 163 - 164 and posited thus:-

'A Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of that matter and it lacks the potency to review, reopen or revisit the matter. Once a Court delivers its judgment on a matter it cannot revisit or review the said judgment except under certain conditions more importantly, a court lacks jurisdiction to determine an issue where it is functus officio in respect of the issue...."

The essence of His Lordship's dictum and indeed the dicta of their Lordships of the apex Court is brought home in bold reliefs as far as this Court and this application are concerned, by Order 18 Rule 4 of the Court of Appeal Rules, 2007, which mandatorily and unequivocally prohibits the Court from reviewing any judgment once delivered except for the correction of any clerical mistake or some error arising from any accidental slip or omission or to vary the judgment or order so as to give effect to its meaning or intention.

Again that rule is explicit that a judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and substantive part of it be varied and a different form substituted.

In the application at hand, the grounds upon which it is predicated are stated as follows:-

1. That Exhibit "D" the certified true copy of the judgment delivered on the 24th of February, 2011, is a sham judgment because it purports to be a written judgment delivered on the said day and for, that the content of the judgment contradicts the fact that the judgment was

in writing when it was delivered on February 24, 2011.

2. Secondly, the judgment is null and void because the coot failed to deliver its decision in writing in flagrant violation of section 29(1) of the 1999 Constitution (as amended) and that the decision includes events that took place on the day the judgment was delivered.

3. Thirdly, the judgment is null and void because the court failed to furnish the Applicant with duly authenticated copy of the decision within seven days of delivery in flagrant violation of Section 294(1) of the 1999 Constitution, as amended; and

4. Finally, that the judgment in the above appeal is null and void because the court failed to consider, determine or pronounce on the Appellant's grounds of Appeal.

The learned counsel to the Appellant/Applicant abandoned three out of the four Grounds in support thereof in the course of hearing the Application. I must hasten to state that, as can be gleaned from the decisions of the apex Court and this court in the cases earlier cited, we in this present case, had decided and formally drawn up our order as to what we deemed and felt was the correct decision on all the issues submitted to us for determination and thus have become functus officio. See Bakare v. Akpena (supra) and Onyekweli v. INEC (2009) 6 NWLR (pt.1136) (Supra); ably cited by my Lord in the lead Ruling. In Oyeyipo v. Oyinloye (1987) 1 NWLR 354; the Supreme Court reiterated this point when in a similar application as the learned counsel to the Appellant has brought, their Lordships declined such an invitation to review their judgment or order on the ground that the apex Court was functus officio. Clearly therefore, Order 18 Rule 4, prohibits the prayers sought by the Appellant/Applicant as they do not relate to correction of clerical slips or omissions or error, nor has there been any allegation of fraud, misrepresentation, bias or mistake against either the Respondent or this Court so as to warrant the setting aside of our judgment. It would appear that the grounds upon which the Applicant seeks for this court to set aside its judgment are basically grounds of appeal and this court, at least as at when the appeal was heard and judgment delivered, was the court of last resort or final court as far as Governorship Election Petitions in this country were concerned.

Assuming, the learned counsel to the Appellant can ground his application even on the last ground, the Judgment of Agbo, J.C.A; is the collective decision of this panel who partook in writing same, particularly where the issues were basically similar to those raised in Victor Ikechukwu Anigbata v. Mr. Peter Obi & Ors., which was delivered previously on the same date with the subject of this application. Ordinarily, once the crucial issue of who scored 1/4 of the votes in at least 2/3 of the Local Government Areas in Anambra State, at the election from which the Petition and Appeal emanated, had been determined by this court in Anigbata's case; all other parties contesting the result of such an election, and in particular, the Appellant/Applicant should have taken a cue that their appeals were unsustainable and bound to fail. However, in line with the acrimonious/do or die nature of our politics, the Applicant as in this case, would stop at nothing at pursuing the case even to ridiculous, frivolous and vexatious extremes.

To ask us therefore to set aside our decision would tantamount to asking us to sit on appeal over same which prayer we can ill afford to grant in view of the provisions of the Rules and decided authorities prohibiting us so to do by reason of the fact that we have accomplished our judicial task and therefore lack the potency to review, reopen or revisit the issues the Applicant and the Respondent joined and argued in the course of hearing the appeal.

See Obioha v. Ibero (1994) 1 NWLR (pt.322) 503.

Turning to the only ground which contends that the judgment is null and void because the court failed to consider, determine or pronounce on the Appellant's grounds of appeal, it has to be recalled that the Appellant filed eleven grounds of appeal and formulated eight issues. One of the issues in contention at the lower court and in this court on appeal was on qualification, nomination, disqualification and sponsorship of the 1st Respondent on which the Tribunal held relying on Kolawole v. Folusho (2009) 1 NWLR (pt. 1143) 335 at 386 paras. G H; that such issues preceded election and were therefore pre-election matters which the Tribunal had no jurisdiction to entertain. The Tribunal then went on to hear the petition on the merits and held that the 1st Respondent was duly elected.

Contrary to the contention of the learned counsel and the deposition in paragraph 16 of the affidavit in support that the judgment of this court did not consider and determine any of the grounds of appeal; My Lord Agbo, JCA, at pages 19 - 20 of the judgment of this court reflected on the ruling of the lower court when the preliminary objection was taken by the 1st, 2nd and 3rd Respondents again in this court on the issue of non-qualification of the 1st Respondent to contest the election. His Lordship held that grounds 9 and 10 of the Grounds of Appeal not being a challenge of the ruling of the Tribunal on 12-5-2010, properly constituted, were struck out with the issues raised on those grounds.

Having upheld the preliminary objection of the Respondents, His Lordship proceeded to determine the only real issue as articulated by the Tribunal which was whether the 1st Respondent was duly elected in accordance with Section 179(2) (b) of the 1999 Constitution and the Electoral Act, 2006. He then went on to adopt the decision in Anigbata & Anor. v. Mr. Peter Obi & Ors. Appeal No. A/E/EPT/08/2010, which facts and issues were the same with the appeal under consideration and held that the Tribunal's judgment remained un-dented and to be commended. In other words, the judgment of the Tribunal was upheld and the Appellant's appeal dismissed. 

The law is settled that it is the duty of a court either of first instance or appellate jurisdiction to consider all the issues joined and argued by the parties before the court and where it failed so to do, valid reasons must be advanced for the neglect. Particularly, for penultimate courts which decisions are subject to appeal to either the Court of Appeal or the Supreme Court, there is need for courts to pronounce on all issues articulated before them so that the appellate court may have the opportunity of being seised of the facts and to assess the decisions on such issues in order to avoid situations where the penultimate and/or ultimate court may have to remit a case to the lower court for rehearing. See Ebba v. Ogodo & Anor. (1984) 1 SCNLR 372; per Coker JSC in Ojogbue v. Nnubia (1972) 1 All N.L.R. (pt. 2) 226 at 232; Jamgbadi and Ifeanyi Chukwu (Osondu) Co. Ltd v. Soleh Boneh (Nig.) Ltd. (2000) 5 NWLR 251 at 322 paras F - H. In the last case, the Supreme Court held that it is only that court as an ultimate court that can determine a case on a single issue which terminates the proceedings.

Borrowing a leaf from the above decision, assuming the submission of the learned counsel for the Appellant that the court did not consider their grounds of appeal is well founded, which is not conceded, since this court sat as an ultimate court in a Governorship Election Petition, where the crucial issue of whether the 1st Respondent was duly elected in accordance with Section 179(2)(b) of the Constitution of the Federal Republic of Nigeria and Electoral Act, 2006, had been determined in favour of the 1st Respondent, nothing was left to be determined again from other grounds of appeal. The judgment of this court can therefore not be castigated as the Appellant/Applicant's counsel has attempted to do.

For the above reasons and the more elaborate reasons advanced by my noble Presiding Justice, I also dismiss this application for being unmeritorious.

In line with Order 18 Rule 4, of the Court of Appeal Rules, 2007, the only amendment that is to be done is in respect of line 3 of my contribution (the fast page of the judgment) where the typist erroneously typed "that the Appeal are unmeritorious "instead of "that the appeal is unmeritorious"

I abide by all the consequential orders including costs.

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