In The Court of Appeal

(Owerri Judicial Division)

On Wednesday, the 19th day of January, 2011

Suit No: CA/OW/254/2010

 

Before Their Lordships

 

ABUBAKAR JEGA ABDUL KADIR

....... Justice, Court of Appeal

HELEN MORONKEJI OGUNWUMIJU

....... Justice, Court of Appeal

MOJEED ADEKUNLE OWOADE

....... Justice, Court of Appeal

 

 

 Between

MARTIN AGBASO

Appellants

 

 

 And

    

1. IKEDI OHAKIM 
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION 
3. THE RESIDENT ELECTORAL COMMISSIONER FOR IMO STATE

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

WORDS AND PHRASES - "FUNTUS OFFICIO": Meaning of the term "functus officio"

 

 

"In UKACHUKWU v. UBA (2005) 18 NWLR Pt.956 Pg. 1 at 60, this court held as follows: "It is clear that functus officio means a task performed fulfilling, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority' Thus if a court is said to become functus officio in respect of a matter it means that the court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, re-open or revisit the matter. It is therefore the general principle of law that once a court delivers its judgment on a matter and it cannot revisit or review- the said judgment except under certain conditions."Per OGUNWUMIJU, J.C.A.(P. 85, paras. C-F)

 

 

 

 

2

JUDGMENT AND ORDER - AN ERROR OF LAW AND ERROR ON THE FACE OF THE RECORD: Distinction between an error of law and an error on the face of the record

 

 

"A distinction must necessarily and constantly be drawn between an error of law, as in the instant case which can only lead to an appeal (if any) and an error on the face of the record, characterised in bad faith and thereby subject to collateral challenge on jurisdiction that will completely invalidate the order or decision."Per OWOADE, J.C.A.(P. 58, paras. A-B)  

 

 

 

 

3

JUDGMENT AND ORDER - BIASED JUDGMENT: Whether where there is an element of bias in a judgment, such judgment must be set aside

 

 

"In Re Pinochet there was an allegation brought up after the judgment of the House of Lords that one of the law Lords had been a voluntary member of the Board of Amnesty International (a party in the suit) when the judgment was given by the court to the effect Pinochet was not entitled to immunity from prosecution after his tenure as the Head of State of Chile' The House of Lords held that applying the text in R v. GOUGH (1993) AC 646 and WEBB v. OWEEN (1994) 181 CLR 41, since one of the law Lords precisely Lord Hoffman was proved to have had links with Amnesty International then there was a danger that he was biased in favour of Alor alternatively that he had such links which had given rise to a reasonable apprehension and suspicion on the part of a fair minded and informed member of the public that he might have been biased. The House of Lords held that where there is appearance of lack of fair hearing precisely bias, the decision must be held to be improper. The House of Lords then held that in spite of lack of exact precedent on the point, their Lordships must have jurisdiction to set aside its own orders where they have been improperly made, since there is no other court which could correct such impropriety. The extra-ordinary situation considered by the House was the issue that the facts of the extent of the involvement of Lord Hoffman with Amnesty International where he served without pay on the Board of a charitable arm was brought to their knowledge after their judgment was delivered. The House considered these "fresh facts" which came to light after they delivered their judgment to set aside their judgment which might be perceived as partial or biased and thus against the fundamental human rights of Pinochet."Per OGUNWUMIJU, J.C.A.(Pp. 78-79, paras. C-C)

 

 

 

 

4

JUDGMENT AND ORDER - DECISION GIVEN PER INCURIAM: When a decision of Court can be said to be given per incuriam

 

 

"In Umaru vs. Aliyu (2010) All FWLR (pt. 508) 321 at 357, this Honourable Court held: 'A decision can be said to be given per incuriam when it was wrongly decided based on a wrong principle of law or the Judge or Judges were ill informed about the applicable law."Per OWOADE, J.C.A.(P. 51, paras. A-C)

 

 

 

 

5

JUDGMENT AND ORDER - DECISION GIVEN PER INCURIAM: Whether a judgment of Court given per incuriam can be set aside

 

 

"...the remedy of setting aside is not appropriate for a decision reached per incuiam which can always be appealed against and can be avoided as authority or precedent for subsequent cases. The following statement of the law arose from the decision of the Court of Appeal in the case of Charles Udogwu Onyekweli vs. Independent National Electoral Commission (INEC) (2009) 6 NWLR (Pt. 1136) 13 at 32 (per Ogunwumiju, JCA). "...The question here is that can the decision of this Court invested with constitutional finality be set aside by reason of its being arrived at per incuiam?. A Judgment per incuriam is one which has been rendered inadvertently. For example, where the judge has forgotten to take into consideration's previous decision to which the doctrine of stare decisis implies. For all the care with which counsel and judges may comb the law books, errare humanum est, sometime a judgment which clarifies a point to be settled is somehow forgotten. Such a judgment which contradicts a settled principle of law by a superior court is said to be per incuriam it cannot for that reason only be set aside- When the judgment is deemed per incuriam the implication is that it cannot be used as authority or precedents by court of concurrent or inferior jurisdiction. See Rossel vg. ACB Ltd., (1993) 8 NWLR (Pt. 312) P.382."Per OWOADE, J.C.A.(Pp. 51-52, paras. C-B)

 

 

 

 

6

JUDGMENT AND ORDER - DECISION OF COURT: Effect of an order, decision or judgment of Court made within jurisdiction

 

 

"...the decision of the Court of Appeal in Onyekweli vs. INEC (supra) at page 29 has reiterated the principles that an order or judgment made within jurisdiction is not a nullity or invalid even if it is erroneous in law and in fact or perverse. General & Aviation Services Ltd. vs. Captain Paul M. Thahal (2004) 4 SCNJ 89, (2004) 10 NWLR (pt. 880) p.50. That, a wrong judgment is not a nullity when the court was not incompetent. Alh. Jiddun vs. Abba Abuna & Anor (2000) 10 SCNJ 14, (2000) 14 NWLR (pt. 686) p. 209."Per OWOADE, J.C.A.(P. 57, paras. A-C)

 

 

 

 

7

JUDGMENT AND ORDER - DECISION ON THE MERITS AND MERITS OF A CASE:Distinction between a decision on the merits and the merits of a case

 

 

"Thus when you refer to a decision on the merits, it is not limited to when all the substantive issues in a cause of action is determined but envisages a situation in which an issue brought up for consideration is litigated upon and determined. When you talk about the merits of a case, you are referring to the elements or grounds of a claim or defence or substantive point of law being proposed in that regard which constitutes the substantive consideration to be taken into account in deciding a case. This of course, is different or opposed to extraneous or technical points. There is a decision on the merit when a substantial question of law in respect of which arguments in favour of more than one interpretation has been adduced by both parties in the litigation. See OKENWA v. MIL. GOV. IMO STATE (1996) 6 SCNJ 221. In OBASI v. MBAS LTD. (2005) 9 NWLR Pt.929 Pg.117 at Pg.128, the court held: "A final judgment is one which decides the rights of the parties. In other words it is a decision on the merits of the case where the matter is assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the courts by the legal combatants." It is when a judgment is delivered in default of any party who has offended a technical rule of court i.e. in default of pleadings or in default of appearance etc that the judgment is deemed to be not on the merit and will be liable to be set aside upon good reasons advanced for the default"Per OGUNWUMIJU, J.C.A.(Pp. 86-87, paras. D-D)

 

 

 

 

8

INTERPRETATION OF STATUTE - ERRONEOUS INTERPRETATION OF A STATUTE:Effect of a wrong interpretation of the provisions of a Statute

 

 

"A statute can be described as unconstitutional if it is contrary to or in conflict with the constitution. The pronouncement of a court made within jurisdiction on the other hand cannot be described as unconstitutional. A wrong or erroneous interpretation of the provisions of the constitution is and remains an error of law, which under normal circumstances can only be a subject of appeal. Put differently, an erroneous interpretation of the constitution is still intrinsic to the judicial process and thereby appealable.The common law position as to review or setting aside of a decision of a court of coordinate jurisdiction relate to circumstances that are extrinsic to the adjudicatory process. It is generally recognised that patent errors of law do not vitiate the decision but merely render it voidable and appealable - see, Parker, L.J. in R. v. Medical Appeal Tribunal Ex parte Gilmore (1957) 1 QB 574, and are thus immune from collateral challenge, that is proceedings brought before the court that will completely invalidate the order, act or decision"Per OWOADE, J.C.A.(Pp. 49-50, paras. D-A) - read in context

 

 

 

 

9

CONSTITUTIONAL LAW - FAIR HEARING: The doctrine of fair hearing

 

 

"Fair hearing means parties are given opportunity to present their case and the courts are impartial. See EGEVAFO EKPETO v. IKOMO WANOGHA (2004) 12 SCNJ 220. The twin pillars of natural justice are (1) the rule against bias - You cannot be a judge in your own cause - nemo judex in causa sua. The 2nd pillar is that there must be equal access to justice - You must hear the other side - audi alteram partem. See UNIPETROL PLC v. BUKAR (1991) 2 NWLR Pt.488 Pg.412."Per OGUNWUMIJU, J.C.A.(P. 77, paras. E-G) - read in context

 

 

 

 

10

CONSTITUTIONAL LAW - FAIR HEARING AND FAIR TRIAL: Distinction between fair hearing and fair trial

 

 

"A fair hearing does not mean a fair trial. A fair trial consists mainly of a fair hearing. A fair trial consists of the entire hearing of the case. Thus a fair hearing may not necessarily result in a fair trial. An appellate court may rule that a trial has been unfair because the appropriate law was not applied or interpreted properly or the evidence was not properly evaluated leading to perverse finding. See OGBOH v. FRN (2002) 4 SCNJ 393; MOHAMMED v. KANO N.A. (1963) 1 ALL NLR Pt.424; GBADAMOSI v. ODIA (1992) 6 NWLR Pt. 245 Pg. 491."Per OGUNWUMIJU, J.C.A.(P. 77, paras. A-C) - read in context

 

 

 

 

11

COURT - FUNCTUS OFFICIO: When the Court becomes functus officio

 

 

"...by virtue of S.246 of the 1999 Constitution. When judgment is given on the merits, the court is functus officio, See MOHAMMED v. MOHAMMED HUSSIENE (1998) 12 SCNJ 136; (1998) Pt.584 Pg.108."Per OGUNWUMIJU, J.C.A.(P. 84, paras. D-E) -read in context

 

 

 

 

12

COURT - FUNCTUS OFFICIO: Instance where the Court does not become functus officio

 

 

"It is only in instances of default judgment which is not on the merits that a judge does not become functus officio. See MOHAMMED v. HUSSIEN (1998) 12 SCNJ 136. Thus, where a final order or final decision on a point has been given - I am talking about the definition of "decision" in S.318(1) of the 1999 Constitution, then, the court is functus officio. See FALOLA v. UNION BANK (2005) 2 SCNJ 209 at 214, which followed, OMONUWA v. OSHODIN (1995) 2 NWLR Pt. Pg.938; AWUSE v. ODILI (2003) 18 NWLR Pt. 852 Pg. 116"Per OGUNWUMIJU, J.C.A.(P. 87, paras. D-G) - read in context

 

 

 

 

13

JUDGMENT AND ORDER - JUDGMENT GIVEN ON THE MERITS: When a judgment can be said to be given on the merits

 

 

"Listen for example to Chukwuma Eneh, JCA (as he then was) in the case of Ibok v. Eyo Honesty (Supra) at page 69 cited by the applicants counsel himself, "It is trite law that an order judgment on the merits is one given after argument and investigation and when it is determined which party is on the right that is in contradistinction to an order/judgment given upon preliminary or formal or merely technical point or by default or without trial."Per OWOADE, J.C.A.(P. 53, paras. A-C) - read in context

 

 

 

 

14

COURT - JURISDICTION: Conditions precedent to the exercise of jurisdiction by Court; effect of Court decision where it lacks jurisdiction

 

 

"In JIDDUN v. ABUNA (2000) 14 NWLR Pt.686 Pg.209; WALI JSC at Pg.216 held as follows: "There is nothing to show that the Sharia Court of Appeal was incompetent when it heard the appeal. Its decision could be wrong but certainly not nullity," Let me go back to the much cited authority of Bairamian F. J. in MADUKOLU v. NKEMDILIM (1962) SCNLR 341, where His Lordship put the whole matter in proper perspective thus: a court is competent when - "1. It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another and; 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and 3. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent of the exercise of jurisdiction. He continues: 'Any defect in competence is fatal' for the proceedings are a nullity however well conducted and decided: that defect is extrinsic to the adjudication. If the court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial;....."Per OGUNWUMIJU, J.C.A.(Pp. 82-83, paras. G-F) - read in context

 

 

 

 

15

ELECTION PETITIONS - JURISDICTION IN ELECTION PETITION: Whether any complaints regarding any conduct and administration in an election is within the jurisdiction of the Election Petition Tribunal

 

 

"The Supreme Court held on 16/7/10 in Appeal No. SC/3/2010, SC/51/2010 and SC/54/2010 Consolidated. CHIEF OHAKIM v. CHIEF AGBASO to the effect that any complaints regarding any conduct and administration of the April 14, 2007 election held in Imo State by INEC including the processes leading thereto and actual conduct of the election whether inchoate or not is properly within the jurisdiction of the Election Petition Tribunal established by the Constitution."Per OGUNWUMIJU, J.C.A.(Pp. 68-69, paras. F-A

 

 

 

 

16

ELECTION PETITIONS - JURISDICTION IN ELECTION PETITION: Whether the Court of Appeal is vested with finality in some election petition matters

 

 

"The Court of Appeal being invested with finality in some election petition matters by virtue of S. 246 particularly subsection (3) thereof of the 1999 Constitution is mutantis mutandis in the same position as the Supreme Court and will not permit a reversal or review of its judgment."Per OGUNWUMIJU, J.C.A.(P. 90, paras. B-C)

 

 

 

 

17

INTERPRETATION OF STATUTE - ORDER 18 RULE 4 OF COURT OF APPEAL RULES, 2007: The provision of Order 18 Rule 4 of the Court of Appeal Rules 2007 with respect to the powers of Court to review its judgment

 

 

"Or 18 r 4 of the Court of Appeal Rules 2007 provides as follows: "The court shall not review any judgment once given and delivered by it, save to correct 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. A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative substantive part of it be varied and a different form substituted."Per OGUNWUMIJU, J.C.A.(P. 89, paras. C-F)

 

 

 

 

18

COURT - POWER OF COURT: Whether a Court or a judge has the power to rehear, review or vary any judgment or order either in an application made in the original action or in a fresh action brought for that purpose

 

 

"In Igwe vs. Kalu (2002) 14 NWLR (Pt. 787) 435 at 453 - 454, the Supreme Court held that it possesses inherent power to set aside its judgment in appropriate cases such cases, are as follows: (i) when the judgment is obtained by fraud or deceit either in the court or of one or more parties, such a judgment can be impeached or set aside by means of an action which may be brought without leave. See Alaka vs. Adekunle (1959) LLR 76, Flower vs. Lloyd (1877) 6 Ch. D. 297, Olufunmise vs. Falana (1990) 3 NWLR (Pt. 136) 1. (ii) When the judgment is a nullify. A person affected by an order of court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside see Sken consult Ltd. v. Ukey (1981) 1 SC 6, Craig vs. Kansen (1943) KB 256, 262 and 263, Ojiako & Ors v. Ogueze & Ors. (1962) 1 SCNLR 112, (1962) 1 All NLR 58, Okafor & Ors v. Anambra State & Ors (1991) 6 NWLR (Pt.200) 659, 680. (iii) When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade vs. Okunoga & Co. (1961) All NLR 250. It is these same body of rules which requires that limits be placed upon the right of citizens to open or reopen disputes qualifying the principle that the outcome of litigation should be final that have been variously expressed with different emphasis and phraseologies in such other cases as Ukachukwu vs. UBA (No.2) (2005) 9 NWLR (Pt.390) 370, Bello vs. INEC (2010) 1 NWLR (Pt. 1196) 342 at Pp.379 - 380. 418 -419, Osakwe vs. Federal College of Education (Technical) (2010) 10 NWLR (pt.1201) 1 at 32 to mention but a few. Thus, in the case of Ukachukwu vs. UBA (supra) at 370, after setting out the possibilities of setting aside its judgment in instances of fraud or deceit, nullity of order, mistaken belief in consent and absence of jurisdiction, the court also mentioned instances "where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication". Similarly, in Bello vs. INEC (Supra) at pp. 379 - 380, 428 - 419, the following phraseology would be seen in the judgment of the Supreme Court. ".....A court has an inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the judgment or order given becomes null and void, thus liable to be set aside" (underlining emphasis supplied). A refreshing summary of the applicable general rule and its limits and/or exceptions could be found in the judgment of M.D Muhammad JCA, in Olarotimi Makinde vs. Albert Abiodun Adeoqun and 4 Others (2009) 1 NWLR (Pt. 1123) 575 at 591 - 592. "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, instalmental payment 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 vs. Akampa L.G. (2000) 4 NWLR (Pt, 651) 70 at 81, Uba vs. Ukachukwu (2004) 10 NWLR (Pt. 881) 224 at 306, Okoye vs Nigerian Construction and furniture co. Ltd. (1991) 16 NWLR (Pt. 199) 501, Aniqboro vs. Sea Trucks (Nig.) Ltd. (1995) 16 NWLR (Pt.199) 501, Anisboro vs. Sea Trucks (Nig.) Ltd. (1995) 6 NWLR (Pt. 399) 35, Peters vs. Ashamu (1995) 4 NWLR (Pt. 388) 206 and Akporue vs. Okei (1973) 12 SC 137."Per OWOADE, J.C.A.(Pp. 54-56, paras. B-G)

 

 

 

 

19

COURT - POWER OF COURT: Whether a Court can reopen a matter and substitute a different decision in place of the one it earlier recorded

 

 

"...the principle of law that where a court has decided an issue and the decision is correctly embodied in its judgment, such a court cannot reopen the matter and cannot substitute a different decision in place of the one which was recorded. Those who seek to alter or amend it must invoke such appellate jurisdiction as may be available. See, Obioha vs. Ibero (1994) 1 NWLR (pt.322) 503 at 534."Per OWOADE, J.C.A.(P. 58, paras. F-G)

 

 

 

 

20

COURT - POWER OF COURT: Whether in the most exceptional circumstances, the Court has power to revisit its own decisions

 

 

"The position taken by the court of Appeal (England) in the case of Taylor vs. Lawrence (supra) is understandable because there were no such "exceptional circumstances which would justify the re-opening of the appeal. In other words' the judgment initially rendered on appeal in the case was not a nullity, there was no such fundamental defect or want of jurisdiction to warrant the setting aside of the judgment. On the issue of bias, the Court of Appeal (England) found specifically in the Taylor vs. Lawrence case (2002) EWKA Vic 90 (4th February, 2002) at page 12 of 18 that "The bias which is alleged here is in the Court of first instance and not the appellate court. This does not mean that the jurisdiction to which we have referred cannot exist. It is, however, important to have in mind that what the lawrences are seeking to do is to adduce further evidence of bias after this court has already considered an appeal where the issue of bias was raised and it was decided that no case of bias on the part of the deputy circuit judge was made out." On the other hand, the order of setting aside in the Senator Pinochet's case had to be granted because the facts and circumstances of the case met the requirement of a fundamental defect in procedure. It was only proper that Lord Hoffman could have excused himself from sitting on the case. In jurisdictional terms, the Court Tribunal was not properly constituted and the challenge of jurisdiction was proper. Senator Pinochet's case upheld the fundamental principle that a man may not be a judge in his own cause. In the Pinochet's case. after the House of Lords had concluded hearing and delivered its judgment in the application for Senator Pinochet who was the Head of State of Chile from 1973 until 1990 to be extradited and tried in Spain, it was discovered that one of the law Lords (Lord Hoffman) who took part in the decision of the House has a very close relationship with one of the applicants (Amnesty International). It was contended that the circumstances of the closeness between his Lordship (Lord Hoffman) and one of the applicants (Amnesg International) was such that it was reasonable to believe that the judgment of the House in which his Lordship took part was affected by bias. It was on the strength of this "later discovery" that the House of Lords entertained the application to re-open the appeal and granted the order for setting aside. Truly, Senator Pinochet's case represents the exercise of the extant jurisdiction of their Lordships at the House of Lords as the final court to rescind or vary an earlier order of the House when such order had been visited by one form of nullity or the other. Pinochet's case however, turned out to re-proclaim some of those salient and fundamental values of law itself. The case turned out to be a classic exposition of the principle of nemo Judex in causa sua (no man can be a judge in his own cause) and doubles up as the 21st century reminder that "there is an overriding public interest that there should be confidence in the integrity of the administration of justice, which is always associated with the statement of Lord Hewart C. J. in Rex vs. Sussex Justices. Ex parte r/rc carthv (1924) 1 K.B. 256, 259 that it is "of fundamental importance that justice should not only be done, but should manifesily and undoubtedly be seen to be done." per Lord Hufton, Pinochet. In Re (1999) UKHLI., (2000) 1AC 119, (1999) 1 All E.R.577, (1999) 2 WLR 272 (15th January, 1999). It is apposite to observe that though the conclusions of the law Lords from the facts of the cases of Taylor & Anor vs. Lawrence & Anor (supra) and In Re pinochet supra) are quite different, both cases are indeed reconcilable with the broad principle which requires that limits be placed upon the right of citizens to open or to reopen disputes with exceptions that are reserved for rare and limited cases, where the facts justifying them can be strictly proved. Thus, In Re (a child) (unreported Transcript No. 2000/230 7th February, 2000) an application was made to the court of Appeal for leave to set aside an order of the court, after an oral hearing, refusing permission to appeal. The application was dismissed on the ground that as it did no more than challenge the merits of the decision, the court had no jurisdiction to re-open the case. In the course of her judgment, the president said (at para. 8) "It is possible, though I would not like to be too encouraging about it, that this court, as the final court on applications for leave, may, in the most exceptional circumstances, have the power to revisit its own decisions. Miss Golden did pray in aid a decision of this court of which I was member in Re: C. (A. Hague convention case) unreported, 1st November, 1999. But the point of that case was that we said that you could revisit an order for the purpose of implementing it, and there was no suggestion in the judgments in that court that it would be for the purpose of setting aside an earlier order substituting another. But I can see the possibility of a residual power in the court with the final decision - making process, which may extend to the Court of Appeal as the final court (as it is, since the decision in Lane v. Esdaile) on applications for permission to appeal, that it can demonstrated that there is some factor outside the decision in the case itself that stands out, then it may be necessary to set that order aside. It would have, in my view, to be a factor that flawed the decision and a factor which was outside the ambit of the decision itself. For instance, that the court had read the wrong papers in order to come to a decision or the fact that the court might not be competent to hear the case."Per OWOADE, J.C.A.(Pp.63-66, paras. A-F)

 

 

 

 

21

COURT - POWER OF COURT: Instances where the Court can review its own judgment

 

 

"The Court of Appeal lacks powers to review its own judgment save in respect of clerical mistakes, accidental slips and omissions - See REV. HYDE OMAGULUCHI v. MR. BEN COLLINS NDU (2001) 3 SCNJ 110 and (2001) 7 NWLR Pt.712 Pg.309. Also a judgment obtained by fraud' void judgment and judgment obtained under the mistaken belief that parties consented to it will be set aside. See ALH. TAOFEEK ALAO V. A.C.B. (2000) 6 SCNJ 63; (2000) 9 NWLR Pt. 672 P9.264."Per OGUNWUMIJU, J.C.A.(P. 85, paras. A-C)

 

 

 

 

22

CONSTITUTIONAL LAW - RIGHT OF ACCESS TO JUSTICE: Whether right of access to justice can be taken away

 

 

"Right of access to justice is an immutable constitutional right which cannot be taken away by any other law. See ATOLAGBE v. AWUNI (1997) 7 SCNJ Pg. 1. Where a party approaches the judgment seat for judicial relief and the court decides that for reasons of law i.e. lack of jurisdiction of the court approached as in this case, or lack of locus standi of the person approaching the courts, or failure to fulfill a condition precedent e.g. serving a pre-action notice on the Defendant, or that the case cannot be heard as constituted, that decision would not tantamount to denial of access to justice. The courts have held that the regulations of the right to access the courts are not unconstitutional. AMADI v. NNPC (2000) 10 NWLR Pt. 647 Pg. 76 at 110."Per OGUNWUMIJU, J.C.A.(P. 81, paras. A-E)

 

 

 

 

23

INTERPRETATION OF STATUTE - SECTION 246(1) AND (3) OF THE 1999 CONSTITUTION: The provision of Section 246 (1) and (3) of the 1999 constitution with respect to when an appeal to the Court of Appeal shall be as of right

 

 

"section 246 (1) and (3) of the 1999 constitution provides as follows: "246 - (1) An appeal to the Court of Appeal shall be as of right from (a) decisions of the code of conduct tribunal estabrished in the fifth schedule to this constitution. (b) decisions of the National Assembly Erection Tribunals and Governorship and Legislative Houses election Tribunals on any question as to whether (i) any person has been validly erected as a member of the National Assembly or of a House of Assembly of a state under this constitution, (ii) any person has been validly elected to the office of Governor or Deputy governor, or (iii) the term of office of any person has ceased or the seat of any such person has become vacant. (3) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final."Per OWOADE, J.C.A.(P. 59, paras. A-F)

 

 

 

 

24

JUDGMENT AND ORDER - WRONG JUDGMENT OF COURT: Instance when a wrong judgment of Court becomes unconstitutional

 

 

"A wrong judgment of this court is not an unconstitutional judgment. It becomes unconstitutional only when any or both of the twin pillars of natural justice have been shown to have been damaged."Per OGUNWUMIJU, J.C.A.(P. 82, paras. C-D)

 

 

 

 

 

 

 

 

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated and filed on 12/10/10, Martin Agbaso, the applicant in Election Appeal No. CA/PH/EPT/338/2007 brought an application for:

(a) An order setting aside or rescinding the judgment of the Honourable court dated 14th April, 2008, upholding the decision of the Governorship and Legislative Houses Election Tribunal Imo state (the Election Tribunal) dated 26th July, 2007 which is to the effect that the Election Tribunal has no jurisdiction to entertain the appellant's/applicant's petition.

(b) An order directing that the hearing of the appeal as per Notice of Appeal dated 1st August, 2007 and filed on 9th August, 2007 be re-opened and for the Honourable Court to re-hear the appeal in the light of the material change in the circumstances of this appeal.

(c) An order substituting the judgment dated 14th April, 2008, with the judgment to be delivered by this Honourable court upon the re-hearing of the appeal and for the later to be the judgment of the Honourable Court in this appeal.

(d) Pursuant to the re-hearing of this appeal, an order of this Honourable Court remitting the appellant's/applicant's petition dated and filed on 14th May, 2007 before the Governorship and Legislative Houses Election Tribunal to a specially re-constituted panel of the Election Tribunal for hearing and determination expeditiously and on the merits.

(d) sic (e) And for such further and or orders as the Honourable Court may deem fit to make in the circumstances. 

The grounds on which the application was made are stated in the body of the motion as follows:

i. By Judgment dated 26th July, 2007, the Governorship and Legislative Houses Election Tribunal, Imo State, upheld the preliminary objection that it lacked the jurisdiction to entertain the petition by the appellant/applicant which challenged the cancellation of the Governorship election held in Imo State on 14th April, 2007 and the subsequent re-scheduled Governorship election held on 28th April, 2007. 

ii. By Judgment dated 14th April, 2008, this Honourable Court dismissed the appeal against the decision of the Election Tribunal and upheld that the Election Tribunal has no jurisdiction to entertain the appellant's/applicants petition. 

iii. By Judgment of the Supreme Court of Nigeria dated 16th July, 2010, in Appeal No.SC/3/2010, SC/51/2010 and SC/54/2010 (consolidated) Chief Ikedi Ohakin (Governor of Imo state) vs. chief Martin Agbaso and Ors., the supreme court determined that, it is beyond doubt that what took place on 14th April, 2007, in Imo State in particular was an election and as such any action relating to the processes leading thereto including the actual conduct of the event or its cancellation falls within 'the jurisdiction of the Election Tribunal by operation of law.

iv. By the Judgment of the Supreme Court dated 16th July, 2010, the Apex Court held that the Governorship election conducted on 14th April, 2007 by INEC "whether inchoate or not" is properly within the jurisdiction of the 'Election Tribunal established by the constitution of this country as the matter is not a pre-election matter".

v. As at the date of the decision of the Election Tribunal on 26th July, 2007 and the judgment of the Honourable Court of Appeal referred to above, the pronouncement determination by the Supreme Court as the apex court in this country which clearly defined the jurisdiction of the Election Tribunal over the subject matter of this appeal was not available and could not reasonably be brought to the attention of the Honourable Court.

vi. It is beyond argument that under the doctrine of judicial precedent which is a hallmark of the administration of justice in this country, the Honourable Court is bound by the determination/pronouncement of the Supreme Court on any issue before this Honourable Court.

vii. If the Honourable court had been aware of the determination/pronouncement of the supreme Court as the apex court regarding the conduct/cancellation of the Governorship election held in Imo State on 14th April, 2007, the Honourable Court would not have upheld the decision of the Election Tribunal that it had no jurisdiction to entertain the petition by the appellant/applicant.

viii. The Judgment of the Honourable Court dated 14th April, 2008, which upheld the decision of the Election Tribunal dated 26th July, 2007, is with the greatest respect, per incuriam.

ix. It is in the interest of justice to grant this application to set aside and or rescind the judgment of the Honourable Court dated 14h April, 2008 in the light of the fresh evidence resulting from the authoritative and binding pronouncement by the Supreme court of Nigeria on the subject matter of the cancellation of the Governorship election held in Imo State on 14th April, 2007.

x. It is in the interest of justice to re-hear the appellant's appeal against the decision of the Election Tribunal declining to determine the appellant's/applicant's petition for lack of jurisdiction.

xi. If the Honourable Court had been aware that the Supreme Court will determine that the competent court to hear any petition against the cancellation of the Governorship election held in Imo State was the Election Tribunal as at the time the Honourable court delivered its judgment on 14th April, 2008, the Honourable Court would most probably have allowed the appellant's/applicant's appeal against the decision of the Election Tribunal delivered on 26th July, 2007.

xii. If the Honourable Court had been aware of the authoritative interpretation of the jurisdiction of the Election Tribunal as at the time of the judgment dated 14th April, 2008, the Honourable Court would most probably have allowed the appeal and remitted the petition for hearing and determination on the merits by the Election Tribunal.

xiii. The 1st respondent has continued to occupy the office of the Governor of Imo State on the strength of the Governorship election purportedly held on 28th April, 2007 following the unlawful cancellation of the Governorship election held in Imo State on 14th April, 2007 as in other States of the Federation.

xiv. There has been no determination on the merits concerning the issue whether the 2nd and 3rd respondents could lawfully cancel the Governorship election held in Imo State on 14th April, 2007 after all the processes of the Governorship election had been concluded with the collation of the results from the polling units to Wards up to Local Government Areas levels and same forwarded to the 3rd respondent for the purpose of performing his statutory function under the Electoral Act to wit; to merely announce/declare the winner thereof using the forms collated and submitted by the Local Government Collation Officers.

xv. Unless by an order of the Honourable Court, the judgment dated 14th April, 2008 referred to above will remain subsisting; notwithstanding the authoritative pronouncement of the supreme court on the subject matter which said pronouncement/binding decision could not reasonably have been obtained at the time of the judgment of this Honourable Court.

xvi. It is in the interest of justice to expeditiously determine the subject matter of the appellants/applicant's petition which is on the lawfulness or otherwise of the cancellation of the Governorship election held in Imo State on 14th April, 2007.

The said applicant's motion is supported by a 20-paragraph affidavit sworn to on 24th August, 2010 by the applicant himself. Annexed to the affidavit are:

Exhibit A - Ruling of I. B. Mairiga J. in petition No. EPT/G/IM/01/2007 delivered on 26th July, 2007 - Between Martins Agbaso vs. Ikedi Ohakim.

Exhibit B - Judgment of the Court of Appeal (per Ariwoola, JCA) in Appeal No.CA/PH/EPT/338/2007, delivered at port-Harcourt on 14h April, 2008.

Exhibits C - C1 - Pleadings of the Petitioner and the Respondents in petition No. EPT/G/IM/01/2007.

Exhibit D - Judgment of the Supreme Court delivered in consolidated Appeals Nos. SC.3/2010, SC 51/2010 and SC.54/2010 delivered on 16th July, 2010.

On 11th October, 2010, the 18th respondent to the applicant's Motion on Notice, Chief Ikedi Ohakim through his leading senior counsel, Chief Bon Nwakanma, SAN, brought a Notice of Preliminary Objection for "an order striking out the said application dated 12th day of October, 2010 for lack of jurisdiction on the part of the Honourable Court and also for being an abuse of judicial process".

The grounds on which the preliminary objection is based are as follows:

(a) The Honourable Court is functus officio in so far as it relates to its judgment or decision dated 14th April, 2008.

(b) The application is seeking a review of the judgment or decision of the Court of Appeal delivered or given by the Court of Appeal as a final court pursuant to Section 246(3) of the 1999 Constitution.

(c) The application is an abuse of the judicial process.

(d) The decision of the Court of Appeal sought to be set aside or rescinded is the decision of an Election Petition Appeal Tribunal whose jurisdiction is specially conferred by Section 246(1) and (3) of the 1999 Constitution.

(e) At the hearing of this application, the applicant shall rely on all the documents or Exhibits which Chief Martin Agbaso attached to his Motion Papers.

Parties were ordered to file and exchange briefs on the Notice of preliminary Objection. The Written Address of the 1st respondent/applicant dated 1/11/2010 was filed on 8/11/2010 was filed on 15/11/2010.

The Response or Written Address of the appellant/applicant dated 10/11/2010 was fifed on 11/11/2010. The 1st Respondent's Reply on points of law to the applicant address dated 11/11/2010.

The 1st respondent applicant formulated a sole issue from the four grounds arising from his preliminary objection. It is 

"Whether this Honourable Court has the jurisdiction to entertain the application?"

The applicant on the other hand nominated the following issues from the grounds in support of the Notice of Preliminary Objection.

(a) is the judgment dated 14th April, 2008 unconstitutional and thereby a nullity?

If the above is affirmatively assured, is the Honourable Court functus officio to set aside its judgment which is unconstitutional or a nullity?

(b) what is the significance of the jurisdiction of the Honourable Court under Section 246(1) and (3) of the 1999 Constitution as the final Court over the subject matter of the appeal giving rise to the judgment of 14th April, 2008.

(c) is the application to set aside the judgment dated 14th April, 2008 an abuse of process.

I shall base the Ruling on the sole issue formulated by the 1st respondent/applicant.

In support of his position that this court is functus officio as regards Exhibit B and lacks the jurisdiction to impugn or set aside the said Exhibit B on the basis of a statement of law in the judgment of the supreme court. Exhibit D, learned senior counsel for the 1st respondent/applicant conceded that in certain established and exceptional circumstances, a judgment or decision of a court may be set aside.

On this, counsel referred to the supreme court decision in Igwe vs. Kalu (2002) 14 NWLR (Pt. 787) 435 at 453 and also to the cases of Ojiako vs. Ogueze (1962) 1 SCNLR 112, Ukachukwu vs. Uba (2005) 9 NWLR (pt. 930) 370 and Atao vs. A. C. B. Ltd. (2000) 1 NWLR (pt. 672) 264.

1st respondent's counsel submitted that from the above cases, a court can only set aside its judgment where (i) the judgment is obtained by fraud or deceit, (ii) when the judgment is a nullity and (iii) when the court was misled into believing that the parties consented to the judgment.

Counsel submitted that in the instant case, there is no allegation, even if unfounded or baseless that the judgment in Exhibit B suffers any of the foregoing vices to compel the judgment being set aside. 

It is instructive, said counsel that none of the grounds of the application claims that the judgment in Exhibit B was obtained by fraud, that the judgment is a nullity; that parties were not given fair hearing; that at the time of the delivering of the judgment the Court of Appeal was not properly constituted or that there was absence of jurisdiction. 

Counsel submitted that the sixteen (16) grounds upon which the applicant anchored his application could be condensed into two grounds, namely:

(a) That Exhibit B should be set aside because the decision thereat "is .....per incuriam".

(b) That Exhibit B be set aside 'in the light of the fresh evidence and material change in circumstances resulting" from the pronouncement in Exhibit D.

Counsel submitted that unless the applicant wants to stand the law on its head, Exhibit B which was delivered on 14th April, 2008, cannot by any stretch of imagination or even logic, constitute a decision per incuiam. And, that even if Exhibit B was delivered per incuriam, which is not conceded, that cannot constitute a valid ground for it to be set aside.

On this, counsel referred to the case of Onvekweli vs. INEC 6 NWLR (Pt.1136) at 32.

On the further claim of the appellant's counsel that Exhibit B should be set aside on the basis of the fresh evidence in the judgment of the Supreme Court Exhibit D. 1st respondent's counsel referred to the cases of Uba vs. Ukachukwu (supra) and Etiaba vs. Uba (2010) 10 NWLR (Pt. 1202) 343 at 392 and submitted that it is not open to a party to reopen a litigated issue simply because a fresh or new evidence has been obtained. That the alleged "fresh evidence" or "change in circumstances" which the applicant is relying on in order to have Exhibit B set aside is contained in Exhibit D which was delivered more than 2 years after Exhibit B. In other words, the "cause of action" upon which the applicant predicates his application was not in existence when Exhibit B was delivered.

Learned senior counsel for the 1st respondent submitted that the application to set aside Exhibit B is an invitation to sit on appeal over it. On this, counsel referred to the provision of section 246(1) (3) of the 1999 Constitution and said that Exhibit B, the judgment sought to be set aside is a final decision of the Court of Appeal in respect of an appeal arising from Governorship election petition.

Counsel submitted further that this Honourable Court having delivered a final judgment in this matter on 14th April, 2008, the petition was finally disposed of and can no longer be resurrected by this court under any circumstance or guise. In other words this court is functus officio in relation to Exhibit B.

On this, counsel referred to the cases of Onuaquluchi vs. Ndu (2001) 7 NWLR (Pt.712) 359 at 325, Awuse vs. Odili (2003)18 NWLR (Pt.851)116, Mohammed vs. Husseini (1998) 14 NWLR (Pt.544) 108, Alor vs. Ngene (2007) All FWLR (Pt.362) 1836 at 1840, Ukachukwu vs. UBA (Supra). By the delivery of the judgment contained in Exhibit B and dismissing the appeal thereat, this court, said counsel, is functus officio. It no longer has the legal power or authority to reverse itself by setting aside its judgment.

1st respondent's counsel referred to the cases of Anyaegbunam vs. Attorney General of Anambra State (2001) 6 NWLR (Pt. 710) 532, 540' Onvemobi vs. President Onitsha Customary Court (1995) 3 NWLR (Pt.381) 50 at 18 Edem vs. Akampa Local Government (2000) 4 NWLR (Pt. 651) 70, INEC vs. Nnaji (2004) 16 NWLR (Pt. 900) 473 at 482 and submitted that the court lacks the potency to re-open or revisit the appeal for any purpose whatsoever, particularly when the applicant has sought to impeach the judgment in exhibit B on account of the pronouncement in Exhibit D.

This court, said counsel, decided all the issues presented in the appeal leading to Exhibit B on the merits. It also held in exhibit B that the appeal lacks merit and affirmed the decision of the Election Tribunal that the applicant's petition was incompetent. There is no claim that the court had no jurisdiction to deliver Exhibit B. Rather, said counsel, the applicant wants to relitigate the issue of the incompetence of his petition. To that extent, counsel added, he would want an appeal that had been dismissed by this court to be "re-opened" and for the court to "re-hear" it. ' Referring again to the decision of the Court of Appeal in Onvekweli vs. INEC (Supra) and also to the decision of the Supreme Court in Jiddun vs. Abuna (2000) 14 NWLR (Pt. 686) 209, 1st respondents counsel submitted that any order or judgment made within jurisdiction is not a nullity or invalid even if it is enoneous in law and in fact or perverse.

Counsel submitted that the application did not seek the correction of any clerical mistake or some error arising from any accidental slip or omission in the judgment in accordance with the provision of Order 18 Rule 4 of the Court of Appeal Rules 2007. 

Also, there is no claim that the decision embodied in exhibit B does not correctly represent the decision of the court. On this, counsel referred to the case of Obioha vs. Ibero (1994) 1 NWLR (Pt.322) 503 at 534 and said that those who seek to alter or amend such a decision must invoke the available appellate jurisdiction and that where such appellate jurisdiction does not exist, the matter is resolved for all purposes.

Applying the decision of the Supreme Court in Obioha vs. Ibero (Supra,) to the facts and circumstances of the present case. Learned senior counsel for the 1st respondent posited that the applicant is challenging the correctness or validity of the decision in Exhibit B or what he perceived to be an error in law, based on the pronouncement in Exhibit D.

He submitted that this court does not have the jurisdiction to correct any error of law relating to Exhibit B.

On another wicket, learned senior counsel for the 1st respondent submitted that the attempt by the applicant to relitigate issues in the Court of Appeal and judgment duly delivered thereat is wanting in bonafides, frivolous, oppressive and amounts to an abuse of legal procedure or improper use of the legal process. 

On this, counsel referred to the case of Ukachukwu vs. UBA (Supra) Fasaki Foods (Nig.) Ltd vs. Shosanya (2003) 17 NWLR (Pt.849) 237, 247, Arubo vs. Aiyeleru (1993) 3 NWLR (Pt.280) 126 at 142, Ntuks vs. NPA (2007) 13 NWLR (pt.1051) 329 at 419 - 420, Amefule vs. State (1988) 2 NWLR (pt. Z5) 156 at 177, Saraki vs. Kotoye (1992) 1 NWLR (Pt. 264) 156 at 188 - 189, Okorodudu vs. Okoromadu (1977) 3 SC 21 Ette vs. Edoho (2009) 8 NWLR (Pt.114) 601 and Ogoejofo vs. Ogejofo (2006) 3 NWLR (Pt. 966) 205.

Counsel submitted that from the undisputed facts of this case, it is obvious that the application is an abuse of judicial process. That, in the first place, it is evidently clear that before now, the parties had been to several different courts on account of the same subject matter. It is beyond dispute that the applicant had at a time, approached the Imo State Governorship and Legislative Houses Election Tribunal in petition No.EPT/G/IM/01/2001 - that is Exhibit A of the applicant. It is the judgment resulting from Exhibit A, that led to Appeal No.CA/PH/EPT/1338/2007, whose judgment Exhibit B, the applicant now seeks to set aside.

Counsel submitted that in both Exhibits A and B, the issue of the incompetence of the applicant's petition and other issues were comprehensively dealt with and resolved against the applicant. That, almost contemporaneously, the applicant also pursued another action in the Federal High Court, Abuja which later resulted to Appeal No. CA/A/244/2007. It is the decision from the appeal above that was challenged on Appeal to the Supreme Court in Appeal Nos.SC/3/2010, SC/51/2010 and SC/54/2010 - Exhibit D, which is the reason for the present application.

The above state of affairs, said counsel creates an abuse of process. Counsel referred to the case of Bena Plastic Industries Ltd vs. Vasil and Ors.(1999) 10 NWLR (Pt. 624) 20 and submitted that the law is settled that a court of law has a duty to prevent the improper use of its machinery and will not allow it to be used as a matter of vexatious and oppressive behaviour in the process of litigation. He urged us to uphold the preliminary objection.

Learned senior counsel for the applicant in his Written Address reiterated the facts that led to this application and cited several judicial authorities on the fundamental requirement of fair hearing in the idea of justice. He submitted that it is common knowledge that by the judgment dated 14th April, 2006 - Exhibit B, this Honourable court upheld the decision of the Governorship and Legislative Houses Erection Tribunal to the effect that by the provision of Section 285 (2) of the 1999 Constitution and the Electoral Act 2006, the appellant applicant's petition dated 11th May, 2007 and filed on 14th May, 2007 was incompetent and inappropriate for determination by the Election Tribunal.

Counsel submitted that the affirmation of the decision of the Election tribunal by Exhibit B was predicted on the view taken by the Court of the jurisdiction of the Election Tribunal under the constitution as it related to the appellant/applicants petition. 

The appropriate question, asked counsel, is whether the interpretation placed on section 285 (2) of the 1999 constitution and section 140 (1) of the Electoral Act 2006 on the jurisdiction to determine the Appellant/applicant's petition is in accord with the relevant provision of the constitution, put differently, said counsel, the question is whether the judgment dated 14th April, 2008 - Exhibit B is contrary to the provision of section 285 (2) of the 1999 constitution and thereby unconstitutional. On this, counsel submitted that a decision of a court which wrongly interpretes the provisions of the 1999 constitution and on the basis of which an aggrieved person is denied/refused a hearing or determination of any question cannot be justified as being in accordance with the dictates of fair hearing enshrined in the constitution. It is further submitted that such a judgment decision cannot qualify as having passed the radical result of constitutionality within the meaning of the fair hearing provisions in the 1999 Constitution.

Counsel submitted that in contradiction to the view/conception by this Honourable court that by section 285 (2) of the 1999 constitution that there is no jurisdiction to entertain the petition on its merits as "a careful look at the reliefs sought by the appellant at the lower Tribunal in reliefs (i), (ii), (iii) and (iv) are declaration they concern the election of 14th April, 2007 and its cancellation," the supreme court, as the apex court in this country lucidly explained the meaning of the constitutional provision on the jurisdiction of the Election Tribunal thus:

"Having regard to the facts of this case, there is the need to take a closer look at the jurisdiction of the election tribunal with regard to election related matters......Election is not an event but a process leading to an event. It is my considered view that since the action concerned an election conducted on 14th April, 2007 by the appropriate authority whether inchoate or not, the proper court with jurisdiction to entertain any action arising therefrom or relating thereto is the relevant election tribunal established by the constitution of this country. It is beyond doubt, that what took place on 14th April, 2007 in Imo State in particular was an election and as such any action relating to the processes leading thereto including the actual conduct of the event or its cancellation fall within the jurisdiction of the Election Tribunal by of Peration of law." 

See, Onnoghen, JSC, in Ohakim vs. Agbaso unreported Judgment in Appeal No. SC 3, 51 & 54/2010(Consolidated) delivered on 16th July, 2010.

Counsel submitted that learned senior counsel for the 1st respondent completely missed the point when in his written address in support of the Notice of preliminary objection, he took the view that Exhibit B was delivered 2 years and 3 months before Exhibit D. The applicant therefore wants to impeach exhibit B on the basis of a statement of law he said was made in Exhibit D. It does not matter to him that Exhibit D came into existence more than 2 years after Exhibit B."

Counsel submitted that the pertinent point is that Exhibit B, the judgment dated 14th April, 2008 was anchored on an interpretation of the provision of Section 285 (2) of the 1999 Constitution and Section 140 (1) of the Electoral Act which said interpretation is not only erroneous but unconstitutional.

The significance of the authoritative pronouncement of the Supreme Court in Exhibit D, said counsel is to conclusively show that the interpretation of the constitutional provision relating to the jurisdiction of the Election Tribunal as conceived by this Honourable Court in affirming the decision of the Election Tribunal is contrary to the meaning and intendment of the constitution and therefore unconstitutional. 

Counsel emphasized that by adopting the erroneous view of the constitutional provision prescribing the jurisdiction of the Election Tribunal, the Election Tribunal refused to entertain and determine the petition before it on the merits. And, that, by affirming and upholding the decision of the Election Tribunal, this Honourable Court also denied and or refused the appellant/applicant the constitutional right to have his petition determined by a court or other Tribunal established by law.

It is submitted that by the decision dated 14th April, 2008 - Exhibit B, the appellant/applicant was denied access to court/tribunal for the determination of his petition on the merits and thereby denied of his right to fair hearing.

Learned senior counsel to the applicant referred to the submission of the 1st respondent that 'there is no allegation, even if unfounded and baseless, that the judgment in Exhibit B suffers from any of the foregoing views to compel the judgment being set aside."

On this, the applicant's counsel argued that the 1st respondent totally ignored and neglected to consider the fundamental nature of the erroneous interpretation of the constitutional provision setting out the jurisdiction to hear and determine the appellant/applicant's petition. He submitted that if as indeed, this court is urged to hold, that Exhibit B is unconstitutional, it is ipso Facto a nullity and liable to be set aside ex debito iustitiae. Counsel referred to the cases of Adegoke Motors Ltd. vs. Adesanya (1989) 3 NWLR (R. 109) 250 at 273, Osakwe vs. Federal College of Education Technical (2010) 10 NWLR (Pt.1201) 1 at 32, Western Steel Works Ltd. vs. Iron steel workers union of Niqeria. (1986) 3 NWLR (Pt. 30) 617 and submitted that where a judgment of a court is shown to be unconstitutional and thereby a nullity, by setting aside its 'null and void decision" the court proceeds on the basis that in law there was never a valid legitimate decision by it.

On another wicket, counsel submitted that by reason of the interpretation placed on the provisions of Section 285 (2) of the 1999 Constitution and Section 140 (1) of the Electoral Act, the crucial question is whether the judgment of the Honourable court founded on the said interpretation is per incuriam and ought to be set aside. After referring to the cases of Elabanjo vs. Dawodu (2006) 15 NWLR (Pt. 1001) 76 at 154 - 155 and Umaru vs. Aliyu (2010) All FWLR (Pt.508) 321 at 357 on the meaning of the expression "per incuriam', counsel noted that the 1st Respondent relied on Onyekweli vs. INEC (Supra) and contended that when a decision is per incuiam, the implication is that it cannot be used as authority or precedent by the courts of concurrent or inferior jurisdiction.

The question, said applicant's counsel, is whether the court making an order declining jurisdiction made a final order respecting the petition filed by the appellant/applicant when in fact the issue canvassed at that stage on jurisdiction was extrinsic to the petition. The answer, said counsel, cannot be yes because even in the judgment itself the Honourable Court had stated that the issue of the cancellation of the Governorship election held on 14h April, 2007 was not part of the decision of the tribunal but was merely obiter. 

A cursory examination of the unchallenged facts and circumstances of the present application, said counsel, shows that the appellant/applicant's petition was not determined on its merits by the Election Tribunal. The refusal to hear and determine the petition was as a result of the erroneous conception of the jurisdiction of the Election Tribunal under Section 285 (2) of the 1999 Constitution and the relevant statutory provision. Counsel referred to the case of Ibok vs. Eyo Honesty (1) 6 NWLR (Pt.1029) 55 at 69 and submitted that a court cannot be said to be Functus officio when it delivered a judgment not on the merits and such a court is invested with the power to set aside such judgment.

Learned senior counsel for the applicant sought to distinguish the facts of the case of Onvekweli vs. INEC (Supra) relied upon by the 1st respondent from the instant case, on the ground that the refusal to set aside the judgment in Onvekweli vs. INEC (Supra) is totally unrelated and irrelevant to the instant petition.

In a similar vein, applicant's counsel also sought to explain the refusal of this court to set aside its previous judgment in Ukachukwu vs. UBA (No. 2) (Supra) on the ground that the application to set aside, made in Ukachukwu vs. UBA (No. 2) (Supra) was not a fresh action in which the alleged fraud was meant to be pleaded and proved as required by law.

Learned senior counsel for the applicant also drew out what he considers to be the peculiarity in the case of Etiaba vs. UBA (Supra) relied upon by the 1st respondent. He argued that it is common knowledge that by the decision of the Supreme Court in Obi vs. INEC (2007) 11 NWLR (Pt. 1046) 565, the Supreme Court declared that the election conducted into the office of the Governor of Anambra state and based on which Dr. Andy Uba was sworn in as the Governor of Anambra State "was a wasteful and unnecessary exercise." Thus, when Dr. Andy Uba approached the Honourable Court to review its earlier decision and make "Consequential Orders", on the basis that his swearing in as the Governor of Anambra State was not nullified in the earlier decision in UBA vs. Etiaba (2008) 6 NWLR (Pt. 1082) 154, the Honourable Court rightly refused to entertain the application.

On the significance of the jurisdiction of the Honourable Court under Section 246 (1) and (3) of the 1999 Constitution as the final court over the subject matter of the appeal giving rise to the judgment - Exhibit B, Learned senior counsel for the applicant submitted that the more fundamental question is whether this court as the final court under the constitution has the requisite jurisdiction and can, indeed, exercise such jurisdiction in order to set aside its previous order and re-open the appeal for rehearing in the light of exhibit D.

In reaction to the argument of the learned senior counsel for the 1st respondent that the "cause of action (exhibit d) was not in existence at the time the judgment in Exhibit B was delivered", applicant's counsel submitted that the judgment in exhibit D is not a cause of action" that it is the correct interpretation of the constitutional provision setting out the jurisdiction of the Election Tribunal as provided in Section 285 (2) of the 1999 Constitution. Exhibit D shows conclusively that the view taken by the Honourable Court in Exhibit B is erroneous and unconstitutional and ought to be set aside as a nullity.

Applicant's counsel conceded that by Section 246 (3) of the 1999 Constitution, the decision of the Honourable Court dated 14th April, 2008 - Exhibit B is final, but submitted that by the very nature of the jurisdiction conferred by Section 246 (3) of the 1999 Constitution, this court, at common law, where the circumstances are extraordinary and exceptional can revisit its final judgment.

Counsel argued that where the issue concerns a fundamental matter of constitutional interpretation relating to the jurisdiction to hear a petition on its merits, thereby raising the vexed issue of access to court as an adjunct of the right to fair hearing, a most exceptional circumstance arise. 

On this, learned senior counsel for the applicant referred us to the case of In Re: J. (a child) unreported judgment dated 7th February, 2000 adopted with approval in Taylor & Anor vs. Lawrence & Anor (2002) 2 All E.R. 353. Arguing further that every injustice observed by a "later discovery" must be corrected and that every legal issue, problem must necessarily have a remedy. Applicant's counsel referred to the landmark decision of the House of Lords in the famous case of R. v. Metropolitan : Re Pinochet (1999) 1 All E.R. 577 to the effect that "in principle, the House of Lords as the ultimate court of Appeal, have power to correct any injustice caused by an earlier order (decision) and its inherent jurisdiction remains unfettered.

He also referred to the supreme court case of A. G. Federation vs. Abubakar (2007) 10 NWLR (Pt. 1041) 1 at 171 - 172 (per Aderemi, JSC). Finally, applicants counsel submitted that the instant application is not an abuse of process. This, he said first, because there is no parallel pending proceeding as the instant application to set aside the judgment in Exhibit B, nor can it be said that by the instant application, the appellant/applicant seeks similar or identical reliefs as in any other pending suit. Second, said counsel, it is not the law that once a party files another suit, or an application to set aside, as in this case, before another court on the same subject matter, there is an abuse of process. 

He referred to the case of Christian Outreach Ministries & Ors vs. Cobham & Anor (2006) 15 NWLR (Pt. 1002) 283 at 305 and urged us to discountenance the 1st respondent's argument on abuse of process. 

In his reply on points of law, the 1st respondent stated that upon a close scrutiny of the grounds, it becomes obvious that none of them raises the issue of the alleged unconstitutionality and/or nullification of Exhibit B. None raised the issue of the lack of jurisdictional competence of this Honourable Court to deliver Exhibit B. 

Learned senior counsel for the 1st respondent then submitted that except where leave of court is sought and g ranted to amend on application to include new ground(s), an applicant cannot enlarge the existing grounds by introducing new ones in his address. In the same vein, he cannot rely on facts not contained in his supporting affidavit.

Consequently, said 1st respondent's counsel, any response to the preliminary objection hereof which is predicated on new grounds and new facts is incompetent for being in breach of the mandatory provisions of Order 7 Rule 1 of the Court of Appeal Rules, 2007 and deprives the 1st respondent of fair hearing. 

In deciding the sole issue in the 1st respondent's Notice of preliminary objection, it is important to clarify few misconceptions of law and facts noticeable in the presentation of the appellant's/applicant's case.

First, is the argument that permeates the applicant's written Address that the judgment in Exhibit B is contrary to the provision of section 285 (2) of the 1999 constitution and thereby unconstitutional. It is a misuse of language for the learned senior counsel for the applicant to argue that a wrong interpretation of the provisions of the constitution by a court of law is unconstitutional. A statute can be described as unconstitutional if it is contrary to or in conflict with the constitution. The pronouncement of a court made within jurisdiction on the other hand cannot be described as unconstitutional. 

A wrong or erroneous interpretation of the provisions of the constitution is and remains an error of law, which under normal circumstances can only be a subject of appeal. Put differently, an erroneous interpretation of the constitution is still intrinsic to the judicial process and thereby appealable.The common law position as to review or setting aside of a decision of a court of coordinate jurisdiction relate to circumstances that are extrinsic to the adjudicatory process.

It is generally recognised that patent errors of law do not vitiate the decision but merely render it voidable and appealable - see, Parker, L.J. in R. v. Medical Appeal Tribunal Ex parte Gilmore (1957) 1 QB 574, and are thus immune from collateral challenge, that is proceedings brought before the court that will completely invalidate the order, act or decision.

Indeed, it strains language to say that Exhibit B which amongst other things interpreted the provisions of Section 285 (2) of the 1999 constitution, is itself contrary to the constitution merely because another interpretation of the same provision came out in the judgment of the Supreme Court Exhibit D.

Second, at page 23 para. 4.15 of his Written Address the Learned Senior Counsel for the applicant posed as follows 

"..........the crucial question is whether the judgment of the Honourable Court founded on the said interpretation is per incuriam and ought to be set aside?

In a concluding answer to that question at page 26 para. 4.17, counsel said have the requisite jurisdiction to set aside a decision of the court rendered in circumstances wherein the procedure adopted was such as to deprive the decision or judgment the character of legitimate adjudication."

In the first place a decision reached per incuriam is totally different from a decision deprived of "the character of legitimate adjudication." 

Clearly, the decision in Exhibit B was not deprived of the character of legitimate adjudication. If exhibit B is per incuriam, in the context of case law acknowledged by the learned senior counsel for the appellant applicant himself, it means, a decision wrongly decided, usually because the Judge or Judges were ill informed about the applicable law. 

In Umaru vs. Aliyu (2010) All FWLR (pt. 508) 321 at 357, this Honourable Court held:

'A decision can be said to be given per incuriam when it was wrongly decided based on a wrong principle of law or the Judge or Judges were ill informed about the applicable law."

Now, and contrary to the suggestion of the learned senior counsel to the appellant/applicant in the aforementioned paragraphs, the remedy of setting aside is not appropriate for a decision reached per incuiam which can always be appealed against and can be avoided as authority or precedent for subsequent cases. 

The following statement of the law arose from the decision of the Court of Appeal in the case of Charles Udogwu Onyekweli vs. Independent National Electoral Commission (INEC) (2009) 6 NWLR (Pt. 1136) 13 at 32 (per Ogunwumiju, JCA). 

"...The question here is that can the decision of this Court invested with constitutional finality be set aside by reason of its being arrived at per incuiam?. A Judgment per incuriam is one which has been rendered inadvertently. For example, where the judge has forgotten to take into consideration's previous decision to which the doctrine of stare decisis implies. For all the care with which counsel and judges may comb the law books, errare humanum est, sometime a judgment which clarifies a point to be settled is somehow forgotten. Such a judgment which contradicts a settled principle of law by a superior court is said to be per incuriam it cannot for that reason only be set aside- When the judgment is deemed per incuriam the implication is that it cannot be used as authority or precedents by court of concurrent or inferior jurisdiction. See Rossel vg. ACB Ltd., (1993) 8 NWLR (Pt. 312) P.382."

Thirdly, at page 25 para. 4.18, the learned senior counsel for the applicant questioned. "can it rightly be said that the court having delivered a judgment though not on its merits becomes functus officio and is without power to set aside such a judgment which was not on the merits?

After relying on the decision of the Court of Appeal in the case of Ibok vs. Eyo Honesty II (2007) 6 NWLR (Pt. 1029) 55 at 69, applicant's counsel provided the answer to the above question on page 26 para.4.19 as follows:

"...My Lords, on the premise of the erroneous conception of the jurisdiction of the Election tribunal, the appellant/applicant's petition was not heard and determined on its merits............

There is no contest that by the approach adopted by the Election Tribunal and upheld by this Honourable Court, the appellant/applicant's petition was not determined on its merits..."

The position of the learned senior counsel for the applicant from the above paragraphs represents a misconception of facts, because, contrary to the suggestion of counsel the decision in Exhibit B was predicated on its merits.

Listen for example to Chukwuma Eneh, JCA (as he then was) in the case of Ibok v. Eyo Honesty (Supra) at page 69 cited by the applicants counsel himself, 

"It is trite law that an order judgment on the merits is one given after argument and investigation and when it is determined which party is on the right that is in contradistinction to an order/judgment given upon preliminary or formal or merely technical point or by default or without trial."

Incidentally, neither the facts of the case of Ibok vs. Honesty II (Supra) nor the conclusion of the court of Appeal in the case helps or promotes the cause of the appellant/applicant in the instant case. Indeed, contrary to the suggestion of the learned senior counsel for the applicant this Honourable court held in the Ibok vs.  Honesty II case (supra) that the assertion of the respondent that the trial court had power to relist Suit No. HC/230/2000 so long as it had not been determined on its merits was based on an erroneous premise: That, the application to dismiss the suit was heard on the merits and a final order to that effect was made which order had more or less disposed of the rights of the parties. And, that, it was not open to either party to relist or file a fresh action as per the Suit No. HC/230/2000.

I only need to add that so it is in the instant case, that Exhibit B was heard after arguments by the parties, that it is a judgment on the merits, it created a final order which disposed of the rights of the parties in relation to the issues in the judgment of this Honourable Court dated 14th April, 2008 in Appeal No. CA/PH/EPT/338/2007.

In the instant case, both parties are agreed that our courts have adopted the common law position as regards the inherent powers of a court of law to set aside its own decision in certain circumstances.

In Igwe vs. Kalu (2002) 14 NWLR (Pt. 787) 435 at 453 - 454, the Supreme Court held that it possesses inherent power to set aside its judgment in appropriate cases such cases, are as follows:

(i) when the judgment is obtained by fraud or deceit either in the court or of one or more parties, such a judgment can be impeached or set aside by means of an action which may be brought without leave. See Alaka vs. Adekunle (1959) LLR 76, Flower vs. Lloyd (1877) 6 Ch. D. 297, Olufunmise vs. Falana (1990) 3 NWLR (Pt. 136) 1.

(ii) When the judgment is a nullify. A person affected by an order of court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside see Sken consult Ltd. v. Ukey (1981) 1 SC 6, Craig vs. Kansen (1943) KB 256, 262 and 263, Ojiako & Ors v. Ogueze & Ors. (1962) 1 SCNLR 112, (1962) 1 All NLR 58, Okafor & Ors v. Anambra State & Ors (1991) 6 NWLR (Pt.200) 659, 680.

(iii) When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade vs. Okunoga & Co. (1961) All NLR 250. 

It is these same body of rules which requires that limits be placed upon the right of citizens to open or reopen disputes qualifying the principle that the outcome of litigation should be final that have been variously expressed with different emphasis and phraseologies in such other cases as Ukachukwu vs. UBA (No.2) (2005) 9 NWLR (Pt.390) 370, Bello vs. INEC (2010) 1 NWLR (Pt. 1196) 342 at Pp.379 - 380. 418 -419, Osakwe vs. Federal College of Education (Technical) (2010) 10 NWLR (pt.1201) 1 at 32 to mention but a few.

Thus, in the case of Ukachukwu vs. UBA (supra) at 370, after setting out the possibilities of setting aside its judgment in instances of fraud or deceit, nullity of order, mistaken belief in consent and absence of jurisdiction, the court also mentioned instances "where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication". Similarly, in Bello vs. INEC (Supra) at pp. 379 - 380, 428 - 419, the following phraseology would be seen in the judgment of the Supreme Court.

".....A court has an inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the judgment or order given becomes null and void, thus liable to be set aside" (underlining emphasis supplied). 

A refreshing summary of the applicable general rule and its limits and/or exceptions could be found in the judgment of M.D Muhammad JCA, in Olarotimi Makinde vs. Albert Abiodun Adeoqun and 4 Others (2009) 1 NWLR (Pt. 1123) 575 at 591 - 592.

"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, instalmental payment 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 vs. Akampa L.G. (2000) 4 NWLR (Pt, 651) 70 at 81, Uba vs. Ukachukwu (2004) 10 NWLR (Pt. 881) 224 at 306, Okoye vs Nigerian Construction and furniture co. Ltd. (1991) 16 NWLR (Pt. 199) 501, Aniqboro vs. Sea Trucks (Nig.) Ltd. (1995) 16 NWLR (Pt.199) 501, Anisboro vs. Sea Trucks (Nig.) Ltd. (1995) 6 NWLR (Pt. 399) 35, Peters vs. Ashamu (1995) 4 NWLR (Pt. 388) 206 and Akporue vs. Okei (1973) 12 SC 137."

  

More particularly, in relation to the instant case, the decision of the Court of Appeal in Onyekweli vs. INEC (supra) at page 29 has reiterated the principles that an order or judgment made within jurisdiction is not a nullity or invalid even if it is erroneous in law and in fact or perverse. General & Aviation Services Ltd. vs. Captain Paul M. Thahal (2004) 4 SCNJ 89, (2004) 10 NWLR (pt. 880) p.50. That, a wrong judgment is not a nullity when the court was not incompetent. Alh. Jiddun vs. Abba Abuna & Anor (2000) 10 SCNJ 14, (2000) 14 NWLR (pt. 686) p. 209.

And that the judgment of this court when given on the merits as it is the case with Exhibit B is a final decision on the matter by virtue of section 246 of the 1999 constitution rendering the court thereby to be functus officio Mohammed vs. Mohammed Husseini (1998) 12 SCNJ 136, (1998) 14 NWLR (Pt.584) p.108

In the instant case, the problem, as has been pointed out earlier is the inability of the applicant to bring his case within the exceptions created in the cases of Ukachukwu vs. UBA (No. 2) (Supra) Bello vs. INEC (Supra) Adegoke Motors Ltd. vs. Adesanya (1989) 3 NWLR (Pt.109) 250 at 273, Igwe vs. Kalu (supra) and such like cases.

The description of the judgment in Exhibit B in the applicants motion, the supporting affidavit and the annexures does not indicate that the court in exhibit B was incompetent, lacked the necessary jurisdiction, was not properly constituted or that the judgment was fundamentally defective having emanated from a procedure which derived it (the judgment) of the character of a legitimate adjudication. A distinction must necessarily and constantly be drawn between an error of law, as in the instant case which can only lead to an appeal (if any) and an error on the face of the record, characterised in bad faith and thereby subject to collateral challenge on jurisdiction that will completely invalidate the order or decision.

Truly, therefore this court is functus officio as regards Exhibit B and cannot therefore entertain any application to set it aside. In the circumstances, as this Honourable Court has fulfilled or accomplished its function in respect of Exhibit B, it lacks the potency in spite of Exhibit D to review, re-open or revisit the matter. By the delivery of the judgment contained in Exhibit B and dismissing the appeal thereat, this court become functus officio. It no longer has the legal power or authority to reverse itself by setting aside its judgment. See, Ukachukwu vs. UBA (2005) 18 NWLR (Pt.956) 1 at 60, Anyaegbunam vs. Attorney General of Anambra state (2001) 6 NWLR (Pt.710) 532 at 540.

The decision in Exhibit B is only subject to the principle of law that where a court has decided an issue and the decision is correctly embodied in its judgment, such a court cannot reopen the matter and cannot substitute a different decision in place of the one which was recorded. Those who seek to alter or amend it must invoke such appellate jurisdiction as may be available. See, Obioha vs. Ibero (1994) 1 NWLR (pt.322) 503 at 534. Unfortunately, in the instant case, Exhibit B, the judgment sought to be set aside is a final decision of the court of Appeal in respect of an appeal arising from Governorship election petition. This fact has foreclosed all or any possibilities of an appeal on exhibit B. This is because section 246 (1) and (3) of the 1999 constitution provides as follows:

"246 - (1) An appeal to the Court of Appeal shall be as of right from (a) decisions of the code of conduct tribunal estabrished in the fifth schedule to this constitution. (b) decisions of the National Assembly Erection Tribunals and Governorship and Legislative Houses election Tribunals on any question as to whether (i) any person has been validly erected as a member of the National Assembly or of a House of Assembly of a state under this constitution, (ii) any person has been validly elected to the office of Governor or Deputy governor, or (iii) the term of office of any person has ceased or the seat of any such person has become vacant.

(3) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.

Notwithstanding the provision of section 246 (3) of the 1999 constitution, the learned senior counsel for the applicant was not going to easily accept the finality of Exhibit B - a decision of the court of Appeal arising from an appeal from an election petition or the proposition that a court that is functus officio cannot ordinarily revisit it's decision.

Learned senior counsel for the appellant/applicant submitted that this Honourable court Can at common law, where the circumstances are extra-ordinary and exceptional revisit its final judgment. 

In particular, counsel quoted from the decision of the Court of Appeal in England in Taylor & Ors. vs. Lawrence & Anor. (supra) to the effect that:  

"The residual jurisdiction which we are satisfied is vested in a Court of Appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are referring here and the need to have finality in litigation.

The need to maintain confidence in the administration of justice makes it imperative that there should be a remedy. The need for an effective remedy in such a case may justify this court in taking the exceptional course of re-opening proceedings which it has already heard and determined. What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred that there is no alternative effective remedy."

With great respect to the applicant's counsel in this case, none of the three English cases which he cited on this score, that is, Re: J (a child) (supra), Taylor & Ors. vs. Lawrence &Anor (supra), and In Re. Pinochet (Supra) is applicable to the facts and circumstances of the present case. A common distinguishing feature of at least two of the English cases referred to, that is Taylor & Ors. vs. Lawrence and In Re. Pinochet from the facts and circumstances of the case on hand, is that the collateral challenge of jurisdiction in those cases were based on facts that are extrinsic to the judgments themselves. Furthermore, it should not come as a surprise to the learned senior counsel to the applicant that if any of those cases were to be decided in Nigeria, the reasoning and the conclusions would have been the same as it was in England. 

Re. J. (a child) (Supra), Taylor & Ors Lawrence & Anor (supra), and In Re. Pinochet (supra) would all have been conveniently accommodated in the light of general principles and the exceptions laid down in those numerous Nigerian cases such as Ukachukwu vs. UBA (supra) Igwe vs. Kalu (supra), Onyekweli vs. INEC (supra), Obioha vs. Ibero (supra) to mention but a few. For example in Taylor vs. Lawrence (supra) the parties litigated a boundary dispute. A trial took place in 1999. At that trial, the appellants were not represented but the respondents had both solicitors and counsel. The trial Judge informed the parties that he had been a client of the respondent's solicitors (referred to as "MAB") but that it has been many years', since he had last instructed them, and no one objected to him continuing to hear the trial. In November 1999, judgment was given against the appellants. An appeal was made to the court of Appeal. one ground of appeal was that there was an appearance of bias because of the judge's relationship with the other parties solicitors, MAB. Subsequent to the permission being granted in March 2000, it was disclosed to the appellants that the judge and his wife had in fact used the services of MAB the very night before judgment was given against the appellants to amend their wills. Before the appear, the judge provided further information as to his involvement with MAB. The appeal failed in January 2001. The appellants have subsequently learnt that the judge did not pay for the services provided by MAB. He therefore received a financial benefit from MAB in whose favour he gave judgment. The fact was never disclosed by the judge, despite his having the opportunity to do so. The earlier appear was dismissed in ignorance of this fact.

The Court of Appeal (England) noted in the case of Taylor & Anor. vs. Lawrence & Anor (supra) that the manner in which the appellants learnt that the judge had not paid for the services provided by MAB through information elicited from him by an inquiry agent is disgraceful. In spite of these damming facts in the Taylor vs. Lawrence case, the court of Appeal refused to set aside the order in which it dismissed the appellants appeal but granted permission (leave) to appellants for further appeal to the House of Lords.

First, it is clear that the case of Taylor & Anor vs. Lawrence & Anor (supra) does not in any circumstance, law or facts help the case of the appellant/applicant in the instant case.

Eventually, the court of Appeal (England) upheld the principle of finality of litigation in that case and refused to set aside, re-open or rehear the appeal which it had hitherto dismissed. The position taken by the court of Appeal (England) in the case of Taylor vs. Lawrence (supra) is understandable because there were no such "exceptional circumstances which would justify the re-opening of the appeal. In other words' the judgment initially rendered on appeal in the case was not a nullity, there was no such fundamental defect or want of jurisdiction to warrant the setting aside of the judgment.

On the issue of bias, the Court of Appeal (England) found specifically in the Taylor vs. Lawrence case (2002) EWKA Vic 90 (4th February, 2002) at page 12 of 18 that

"The bias which is alleged here is in the Court of first instance and not the appellate court. This does not mean that the jurisdiction to which we have referred cannot exist. It is, however, important to have in mind that what the lawrences are seeking to do is to adduce further evidence of bias after this court has already considered an appeal where the issue of bias was raised and it was decided that no case of bias on the part of the deputy circuit judge was made out."

On the other hand, the order of setting aside in the Senator Pinochet's case had to be granted because the facts and circumstances of the case met the requirement of a fundamental defect in procedure. It was only proper that Lord Hoffman could have excused himself from sitting on the case. In jurisdictional terms, the Court Tribunal was not properly constituted and the challenge of jurisdiction was proper. Senator Pinochet's case upheld the fundamental principle that a man may not be a judge in his own cause. In the Pinochet's case. after the House of Lords had concluded hearing and delivered its judgment in the application for Senator Pinochet who was the Head of State of Chile from 1973 until 1990 to be extradited and tried in Spain, it was discovered that one of the law Lords (Lord Hoffman) who took part in the decision of the House has a very close relationship with one of the applicants (Amnesty International). It was contended that the circumstances of the closeness between his Lordship (Lord Hoffman) and one of the applicants (Amnesg International) was such that it was reasonable to believe that the judgment of the House in which his Lordship took part was affected by bias. It was on the strength of this "later discovery" that the House of Lords entertained the application to re-open the appeal and granted the order for setting aside. Truly, Senator Pinochet's case represents the exercise of the extant jurisdiction of their Lordships at the House of Lords as the final court to rescind or vary an earlier order of the House when such order had been visited by one form of nullity or the other. Pinochet's case however, turned out to re-proclaim some of those salient and fundamental values of law itself. 

The case turned out to be a classic exposition of the principle of nemo Judex in causa sua (no man can be a judge in his own cause) and doubles up as the 21st century reminder that "there is an overriding public interest that there should be confidence in the integrity of the administration of justice, which is always associated with the statement of Lord Hewart C. J. in Rex vs. Sussex Justices. Ex parte r/rc carthv (1924) 1 K.B. 256, 259 that it is "of fundamental importance that justice should not only be done, but should manifesily and undoubtedly be seen to be done." per Lord Hufton, Pinochet. In Re (1999) UKHLI., (2000) 1AC 119, (1999) 1 All E.R.577, (1999) 2 WLR 272 (15th January, 1999). It is apposite to observe that though the conclusions of the law Lords from the facts of the cases of Taylor & Anor vs. Lawrence & Anor (supra) and In Re pinochet supra) are quite different, both cases are indeed reconcilable with the broad principle which requires that limits be placed upon the right of citizens to open or to reopen disputes with exceptions that are reserved for rare and limited cases, where the facts justifying them can be strictly proved. 

Thus, In Re (a child) (unreported Transcript No. 2000/230 7th February, 2000) an application was made to the court of Appeal for leave to set aside an order of the court, after an oral hearing, refusing permission to appeal. The application was dismissed on the ground that as it did no more than challenge the merits of the decision, the court had no jurisdiction to re-open the case. In the course of her judgment, the president said (at para. 8)

"It is possible, though I would not like to be too encouraging about it, that this court, as the final court on applications for leave, may, in the most exceptional circumstances, have the power to revisit its own decisions. Miss Golden did pray in aid a decision of this court of which I was member in Re: C. (A. Hague convention case) unreported, 1st November, 1999. But the point of that case was that we said that you could revisit an order for the purpose of implementing it, and there was no suggestion in the judgments in that court that it would be for the purpose of setting aside an earlier order substituting another. But I can see the possibility of a residual power in the court with the final decision - making process, which may extend to the Court of Appeal as the final court (as it is, since the decision in Lane v. Esdaile) on applications for permission to appeal, that it can demonstrated that there is some factor outside the decision in the case itself that stands out, then it may be necessary to set that order aside. It would have, in my view, to be a factor that flawed the decision and a factor which was outside the ambit of the decision itself. For instance, that the court had read the wrong papers in order to come to a decision or the fact that the court might not be competent to hear the case."

Applying the decision In Re (a child) (supra) to the instant case, I also would say that the appellant/applicant (herein) did no more than challenge the merits of the decision in Exhibit B. For that reason, the 1st respondent was right to have argued that this court has no jurisdiction to re-open the case. The only issue formulated in the preliminary objection of the 1st respondent is upheld in favour of the 1st respondent. 

Applicant's Motion on Notice dated and filed on 12th October, 2010 is accordingly struck out. 1st respondent's preliminary objection upheld appellant/applicant's Motion on Notice struck out.

ABUBAKAR JEGA ABDULKADIR. J.C.A.: I have read before now the ruling just delivered by my learned brother Owoade, JCA with which I entirely agree, for the same reasons so comprehensively set out I too upheld the preliminary objection of the 1st Respondent and abide by the consequential Order made therein.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the ruling just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA. I agree with his reasoning and conclusions. I will add a few words. The facts leading to this application have been set out in extension in the lead judgment.

The Applicant had filed a motion under S.36 (1) of the 1999 Constitution and the inherent jurisdiction of this court for the following reliefs:

"a) An order setting aside and/or rescinding the judgment of the Honourable Court dated 14 April, 2008 upholding the decision of the Governorship and Legislative Houses Election Tribunal Imo State (the Election Tribunal) dated 26 July, 2007 which is to the effect that the Election Tribunal has no jurisdiction to entertain the Appellant/Applicant's Petition.

b) An order directing that the hearing of the appeal as per the Notice of Appeal dated 1st August, 2007 and filed on 9th August, 2007 be re-opened and for the Honourable Court to re-hear the appeal in the light of the material change in the circumstances of this appeal.

c) An order substituting the judgment dated 14th April, 2008 with the judgment to be delivered by this Honourable Court upon the re-hearing of the appeal and for the later to be the judgment of the Honourable Court in this appeal.

d) Pursuant to the re-hearing of this appeal, an order of this Honourable Court remitting the Appellant/Applicant's Petition dated and filed on 14th May, 2007 before the Governorship and Legislative Houses Election Tribunal to a specially re-constituted panel of the Election Tribunal for hearing and determination expeditiously and on the merits."

The basis or grounds of the application as set out by counsel in the motion paper are basically that -

The Supreme Court held on 16/7/10 in Appeal No. SC/3/2010, SC/51/2010 and SC/54/2010 Consolidated. CHIEF OHAKIM v. CHIEF AGBASO to the effect that any complaints regarding any conduct and administration of the April 14, 2007 election held in Imo State by INEC including the processes leading thereto and actual conduct of the election whether inchoate or not is properly within the jurisdiction of the Election Petition Tribunal established by the Constitution. 

The judgment of this court dated 14/4/08 which upheld the decision of the Election Tribunal dated 26/7/07 was made per incuriam as a result of 1 above.

If the Honourable Court had been aware of the determination/pronouncement of the Supreme Court as the apex court regarding the conduct/cancellation of the Governorship Election held in Imo State on 14th April, 2007, the Honourable Court would not have upheld the decision of the Election Tribunal that it had no jurisdiction to entertain the petition by the appellant/applicant.

It is in the interest of justice to grant this application to set aside and/or rescind the judgment of the Honourable Court dated 14th April, 2008 in the light of the fresh evidence and material change in circumstances resulting from the authoritative and binding pronouncement by the Supreme Court of Nigeria on the subject matter of the cancellation of the Governorship Election held in Imo State on 14th April, 2007.

There has been no determination on the merits concerning the issue whether the 2nd and 3rd Respondents could lawfully cancel the Governorship Election held in Imo State on 14th April, 2007 after all the processes of the Governorship Election had been concluded with the collation of the results from the polling units to wards up to Local Government Areas level and same forwarded to the 3rd Respondent for the purpose of performing his statutory function under the Electoral Act to wit: to merely announce/declare the winner thereof using the forms collated and submitted by the Local Government Collation Officers.

Unless by an order of this Honourable Court, the judgment dated 14th April, 2007 referred to above will remain subsisting; notwithstanding the authoritative pronouncement of the Supreme Court on the subject matter which said pronouncement/binding decision could not reasonably have been obtained at the time of the judgment of this Honourable Court. 

In opposition to the hearing of the motion, the Respondents filed a Preliminary Objection on the following grounds:

(a) The Honourable Court is functus officio in so far as it relates to its judgment or decision dated 14th April, 2008.

(b) The application is seeking a review of their judgment or decision of the Court of Appeal delivered or given by the Court of Appeal as a final court pursuant to Section 246(3) of the 1999 Constitution.

(c) The Application is an abuse of the judicial process.

(d) The decision of the Court of Appeal sought to be set aside or rescinded is the decision of an Election Petition Tribunal whose jurisdiction is specially conferred by S.246(1) and (3) of the 1999 Constitution.

Parties applied and were ordered to file written addresses in respect of the Notice of Preliminary Objection.

Chief Bon Nwakanma, OON, SAN led a team of learned Senior Advocates and counsel to settle the address in support of the Notice of Preliminary Objection. Chief Wole Olanipekun SAN and P.I.N. Ikwueto SAN led the team to settle the address in response to the Notice of Preliminary Objection. The objectors and antagonists to the application identified a sole issue for determination as follows:

"whether this Honourable Court has the jurisdiction to entertain the application?"

I will consider the sole question as distilled by the objectors which is that of our jurisdiction in this matter.

Learned Senior Counsel for the Applicant argued that in the light of the circumstances of this case, this court must hold that its judgment dated 14/4/08 was premised on a wrong conception of the constitutional and statutory provisions prescribing the jurisdiction of the Election Tribunal. We are also asked to determine that the judgment of this court which wrongly interpreted S. 285(2) and S.140(1) of the Electoral Act denied the Appellant the right of access to court for the determination of his petition. We are also to declare the judgment as having been delivered per incuriam and set same aside being unconstitutional and a nullity.

The most compelling argument in my view is that in view of the judgment of the Supreme Court which overturned the views of this court to allow the judgment to subsist would amount to manifest injustice and obvious miscarriage of justice. Senior counsel argued that there was lack of fair hearing of the Applicant's appeal which resulted in the judgment sought to be set aside. The argument propounded is that a decision of a court which  wrongly interprets the provisions of the 1999 Constitution and on the basis of which an aggrieved person is denied or refused a hearing or determination of any question cannot be justified as being in accordance with the dictates of fair hearing enshrined in the Constitution. Thus the judgment being inherently unconstitutional should be set aside. Senior counsel argued that the refusal of the Election Petition Tribunal and this court sitting as an Election Petition Appeal Court to assume jurisdiction to try the case is a denial of the rights of the Applicant guaranteed under S.36(1) of the constitution and is a nullity. Counsel argued that irrespective of the fact that the judgment did not suffer from any obvious vice, the erroneous interpretation of the Constitution makes it ipso facto a nullity and liable to be set aside ex debitojustitiae. Senior counsel also argued that this court has the jurisdiction to set aside a judgment rendered in circumstances wherein the procedure adopted was such as to deprive the decision the character of a legitimate adjudication. He cited the following cases BELLO v. INEC (2010) 8 NWLR Pt. 1196, Pg.342 at Pgs. 379-380; 418-419; ADEGOKE MOTORS LTD. v. ADESANYA (1989) 3 NWLR Pt. 109, Pg.250 at 273 para E-F; OSAKWE v. FEDERAL COLLEGE OF EDUCATION (TECHNICAL) (2010) 10 NWLR Pt. 1201 Pg.1 of 32 para E-F; WESTERN STEEL WORKS LTD. v. IRON STEEL WORKERS UNION OF NIGERIA (1986) 3 NWLR Pt.30 Pg. 617.

senior counsel argued that a decision of this court being a final court found to be per incuriam should be set aside. Senior counsel could not advance any authority to support this proposition, but cited ELABANJO v. DAWODU (2006) 15 NWLR Pt. 1001 Pt.76 at 154-155; UMARU v. ALIYU (2010) ALL FWLR Pt. 508 Pg.321 at 357.

Senior counsel also submitted that this court has inherent jurisdiction to set aside its judgment not on the merits and does not become functus officio by its delivery of a final order. He cited IBOK v. EYO HONESTY II (2007) 6 NWLR Pt.102g Pg. 55 at 69. He submitted that on the premise of the erroneous conception of the jurisdiction of the Election Tribunal, the petition was not heard and determined on the merits. Distinction was made between the circumstances of this case and the cases of ONYEKWELLI v. INEC (2009) 6 NWLR Pt. 1136 Pg. 13 at 34; UKACHUKWU v. UBA No. 2: ANATOGU v. IWEKA II (1995) 8 NWLR Pt.4150 Pg.547 at 586: N.S. ENG. CO. LTD. v. EZENDUKA Q002) 1 NWLR Pt. 748 Pg.469 at 490-491; ETIABA v. UBA (2010) 10 NWLR Pt.1202 Pg.343 at 392.

Learned Senior counsel for the Respondents to the application who now objected on grounds that this court lacks the jurisdiction to determine the application conceded that without doubt in established and exceptional circumstances, all tiers of courts have inherent powers to set aside their judgment. These circumstances, learned senior counsel argued include:

(i) Where the judgment is obtained by fraud.

(ii) When the judgment is a nullity.

(iii) When the court was misled into giving consent judgment.

Learned senior counsel submitted that there is no allegation no matter how unfounded or baseless that the judgment was obtained by fraud that the judgment was a nullity or that the parties were not given fair hearing or that the Court of Appeal was not properly constituted.

Counsel cited the following cases ALAKA v. ADEKUNLE (1959) LLR 76, FLOWER v, LIOYD (1877) 6 CIJ.'D 291; OLUFUNMISE v. FALANA (1990) 3 NWLR Pt.136L; SKENCONSULT LTD. v. UKEY (1961) 1 SC, 6; CRAIG v. KANSEN (1943) KB 256, 262 and 263; OJIAKO & ORS. v. OGUEZE & ORS. (1962) 1 SCNLR 112, (1961) 1 ALL NLR 58; OKAFOR & ORS. v. ANAMBRA STATE & ORS. (1991) 6 NWLR Pt. 200 Pg. 659, 680; AGUNBIADE v. OKUNOGA & CO. (1961) ALL NLR 250; OJIAKO v. OGUEZE (1962) 1 SCNLR 112; UKACHUKWU v. UBA (2005) 9 NWLR Pt.930 Pg.370; ALAO v. ACB LTD. (2000) 9 NWLR Pt.672 Pg.264.

Learned Senior Counsel for the 1st Respondent further submitted that the argument of the Applicant that the decision was arrived at per incuriam is not logical. He cited OGUNWIIMIJU, JCA in ONYEKWELLI v. INEC at Pg.32. He argued that even if Exh.B was delivered per incuriam that cannot constitute a valid ground to set it aside' He also opined that the argument in proposing to set aside the judgment "in the light of the fresh evidence and material change in the circumstances resulting" from the Supreme Court decision in Exh. D is completely misconceived.

The "fresh evidence" or "change in circumstances" relied only the Applicant is the Supreme Court's judgment in Exh' D delivered two years after the judgment of the Court of Appeal in Exh. B. Learned senior counsel argued that Exh. B is a final judgment of this court and the court has become functus officio and cannot review it. He cited the following cases ONUAGULUCHI v. NDU (2001) 7 NWLR Pt.712 Pg.309 at 325; AWUSE v. ODILI (2003) 18 NWLR Pt.851 Pg. 116; MOHAMMED v. HUSSEINE (199S) 14 NWLR Pt.544 Pg. 108; ALOR v. NGENE (2007) ALL FWLR Pt. 362) 1836 at 1840; NYAEGBUNAMM v. A.G. OF ANAMBRA STATE (2001) 6 NWLR Pt.710 Pg.532, 540 paras G-H; ONYEMOBI V. PRESIDENT ONITSHA CUSTOMARY COURT (1995) 3 NWLR Pt. 381, Pg. 50 at 58; EDEM v. AKAMKPA LOCAL GOVERNMENT (2000) 4 NWLR Pt.651 Pg.70 and INEC v. NNAJI (2004) 16 NWLR Pt. 900 Pg.473 at 482 paras A-H

Learned Senior Counsel submitted that Or 18 r 4 of the Rules of this court does not give the court jurisdiction to review its judgment or vary any part of it. Senior Counsel then argued that even if the judgment were erroneous this court has no jurisdiction to correct the mistake. It can only be corrected by an appellate court and even if it is a final decision, that final court has no jurisdiction to correct an error of law. He cited OBIORA v. IBERO (1994) 1 NWLR Pt.322 Pg.503 at 534; UMUNNA v. OKWURAIWE (1978) 6-7 SC 1 at 11.

I will start by dealing with the interesting argument of learned Senior Counsel for the Applicant which learned Respondents' Senior Counsel did not deign to respond to on the basis that it did not emanate as part of the grounds of the application. Let me restate the argument of Applicant's counsel. A decision of a court which wrongly interprets the provisions of the 1999 Constitution particularly S. 285(2) and S.140(1) of the Electoral Act which resulted in an aggrieved person being denied a full hearing of his petition on the merits amounts to a denial of his right to fair hearing under S.136(1) of the Constitution and for that reason must be set aside. Needless to say, learned senior counsel could not come up with any precedent to support that proposition. All the authorities cited by counsel are in relation to the general definition of fair hearing and are of no moment in this case. He raised the issue of access to justice and denial of fair hearing in a very emotive and sentimental context' However, the question of access to justice and fair hearing are both matters of facts and law. As we all know, facts are the fountainhead of law. Counsel urged us to hold that the fact that the Supreme Court held a different view on the proper venue to try the complaints of the Applicant caused a denial of fair hearing. I do not think we can follow the flag being hoisted by learned Applicant's counsel. It appears to me, and I am of the humble view that the learned Applicants counsel with respect is mixing up the phrases "fair hearing" and "fair trial" A fair hearing does not mean a fair trial. A fair trial consists mainly of a fair hearing. A fair trial consists of the entire hearing of the case. Thus a fair hearing may not necessarily result in a fair trial. An appellate court may rule that a trial has been unfair because the appropriate law was not applied or interpreted properly or the evidence was not properly evaluated leading to perverse finding. See OGBOH v. FRN (2002) 4 SCNJ 393; MOHAMMED v. KANO N.A. (1963) 1 ALL NLR Pt.424; GBADAMOSI v. ODIA (1992) 6 NWLR Pt. 245 Pg. 491. 

There is no iota of fact adduced by the Applicant's counsel in the affidavit in support of the application that at the time the judgment of the Election Tribunal and the judgment of this court affirming it was delivered, any of the twin pillars of natural justice which is the basis of our jurisprudence had been damaged. Fair hearing means parties are given opportunity to present their case and the courts are impartial. See EGEVAFO EKPETO v. IKOMO WANOGHA (2004) 12 SCNJ 220. The twin pillars of natural justice are (1) the rule against bias - You cannot be a judge in your own cause - nemo judex in causa sua. The 2nd pillar is that there must be equal access to justice - You must hear the other side - audi alteram partem. See UNIPETROL PLC v. BUKAR (1991) 2 NWLR Pt.488 Pg.412.

Learned senior counsel for the Applicant referred us to two English cases. where the House of Lords and the Court of Appeal respectively reversed themselves. The first is PINOCHET, IN RE (1999) UKULI; (2000) 1 AC 119; (1999) 1 ALL ER 577; (1999) 2 WLR 272 delivered on 15th January, 1999 by the House of Lords, The second is TAYLOR & ANOR v. LAWRENCE & ANOR (2002) EWCA civ 90 delivered by the England and Wales Court of Appeal (Civil Division) on 4th February, 2002. In Re Pinochet there was an allegation brought up after the judgment of the House of Lords that one of the law Lords had been a voluntary member of the Board of Amnesty International (a party in the suit) when the judgment was given by the court to the effect Pinochet was not entitled to immunity from prosecution after his tenure as the Head of State of Chile' The House of Lords held that applying the text in R v. GOUGH (1993) AC 646 and WEBB v. OWEEN (1994) 181 CLR 41, since one of the law Lords precisely Lord Hoffman was proved to have had links with Amnesty International then there was a danger that he was biased in favour of Alor alternatively that he had such links which had given rise to a reasonable apprehension and suspicion on the part of a fair minded and informed member of the public that he might have been biased. The House of Lords held that where there is appearance of lack of fair hearing precisely bias, the decision must be held to be improper. The House of Lords then held that in spite of lack of exact precedent on the point, their Lordships must have jurisdiction to set aside its own orders where they have been improperly made, since there is no other court which could correct such impropriety. 

The extra-ordinary situation considered by the House was the issue that the facts of the extent of the involvement of Lord Hoffman with Amnesty International where he served without pay on the Board of a charitable arm was brought to their knowledge after their judgment was delivered. The House considered these "fresh facts" which came to light after they delivered their judgment to set aside their judgment which might be perceived as partial or biased and thus against the fundamental human rights of Pinochet. 

It is clear from the above, that the case cannot be good authority in respect of the facts of this case. In the present case, there is no allegation of bias in respect of any member of the panel to warrant an investigation of whether the facts of bias emanated before or after the judgment was delivered. In TAYLOR & ANOR v. LAWRENCE supra, the England & Wales Court of Appeal held that in circumstances where the Rules of court and statutes make the Court of Appeal the trial court, if allegation of bias is brought forth after the decision of the court has been rendered, it may, depending on the circumstances look into the possibility of re-opening the case. The court refused to hold that the Applicant made out a case on the "fresh facts" which would convince a "fair minded and informed observer" that there was likelihood of bias. However, the court restated the law regarding circumstances when its previous decision may be set aside. In a case of a judgment obtained by fraud, a fresh action must lie to impeach the original judgment. Thus there must be factually proved evidence of fraud to impeach a previous judgment. Reliance was placed by the court on the opinion of Russell L. J. In Re BARRELL ENTERPRISES (1973) 1 WLR 19, where at page 24 his Lordship held that a party cannot re-open an appeal because he has thought of new grounds he originally overlooked and that the discovery of fresh evidence has never been good grounds to re-open an argument before the Court of Appeal.

I have referred to these cases to emphasize the point that these English cases cited by learned senior counsel for the Appellant do not improve his arguments. In fact, Lord Brown-Wilkinson stated categorically in Ex parte Pinochet No. 2 (2000) 1 AC 119 at Pg. 132 that - 

"However, it should be made clear that the House will not re-open any appeal save in circumstances, where, through no fault of the party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong."

(Underlining mine).

Another argument of learned senior counsel is that the Applicant was denied access to justice because the erroneous interpretation of the law by the Tribunal which was confirmed by this court prevented the full hearing of the applicant's petition on the merit. I concede the ingenuity of the argument though baseless in law.

  Right of access to justice is an immutable constitutional right which cannot be taken away by any other law. See ATOLAGBE v. AWUNI (1997) 7 SCNJ Pg. 1. Where a party approaches the judgment seat for judicial relief and the court decides that for reasons of law i.e. lack of jurisdiction of the court approached as in this case, or lack of locus standi of the person approaching the courts, or failure to fulfill a condition precedent e.g. serving a pre-action notice on the Defendant, or that the case cannot be heard as constituted, that decision would not tantamount to denial of access to justice. The courts have held that the regulations of the right to access the courts are not unconstitutional. AMADI v. NNPC (2000) 10 NWLR Pt. 647 Pg. 76 at 110. The consideration for arriving at the decision might be erroneous as in this case, but the opportunity to approach the court was not denied the litigation. There is a difference between access to justice in technical or jurisdictional terms and access to justice in constitutional terms. So long as a party was given opportunity to be heard by the courts.

The constitutional terms have been fulfilled. However, there may be technical or jurisdictional impediment set up by law which is another matter entirely. In this case, the Applicant was given access to justice as required by the Constitution and notwithstanding the fact that his case may have been wrongfully decided by this court, the constitutional requirement has been fulfilled.

To conclude this point however, I must reiterate that I hold fast to the view that access to an independent and impartial court for the determination of one's rights and obligations constitutes a fundamental human right lying at the heart of enforcing other rights. In this case, the Applicant was not denied the exercise of his right to justice. 

A wrong judgment of this court is not an unconstitutional judgment. It becomes unconstitutional only when any or both of the twin pillars of natural justice have been shown to have been damaged.

Let us now address the question whether by virtue of the fact that the judgment of this court was overruled by the Supreme Court that judgment has been rendered nullity.

I have to agree with the learned senior counsel for the 1st Respondent that unless it is not shown that this court was incompetent when the judgment was delivered, then the judgment cannot be declared a nullity. If the case had gone on appeal to the Supreme Court it may be set aside as a wrong or erroneous judgment but it would not be declared a nullity. In JIDDUN v. ABUNA (2000) 14 NWLR Pt.686 Pg.209; WALI JSC at Pg.216 held as follows:

"There is nothing to show that the Sharia Court of Appeal was incompetent when it heard the appeal. Its decision could be wrong but certainly not nullity," 

Let me go back to the much cited authority of Bairamian F. J. in MADUKOLU v. NKEMDILIM (1962) SCNLR 341, where His Lordship put the whole matter in proper perspective thus:

a court is competent when -

"1. It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another and;

2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

3. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent of the exercise of jurisdiction.

He continues: 'Any defect in competence is fatal' for the proceedings are a nullity however well conducted and decided: that defect is extrinsic to the adjudication.

If the court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial;.....

Let us restate the position of the law as restated by this court in ONYEKWELLI v. INEC cited by learned Senior Counsel for the Respondent. The court has inherent powers to set aside its own judgment which is a nullity. See KAJU MARK v. GABRIEL EKE (2004) 4 SCNJ 243, (2004) 5 NWLR Pt. 865 Pg.54 SC. AUTO IMPORT EXPORT v. J.A.A. ADEBAYO (2002) 12 SCNJ 124; (2002) 18 NWLR Pt.799 Pg.554.

However, there are limits to the powers of this court to vary its own judgment. Misdirection or error of law in judgment cannot be corrected. See ALAO v. A.C.B. (2000) 6 SCNJ 63; (2000) 9 NWLR Pt' 672 264.

Any order or judgment made within jurisdiction is not a nullity-or invalid even if it is erroneous in law and in fact or perverse. GENERAL & AVIATION SERVICES LTD. v. CAPTAIN PAUL M. THAHAL (2004) 4 SCNJ 89; (200a) 10 NWLR Pt. 880 Pg.50.

A wrong judgment is not a nullity when the court was not incompetent. ALH. JIDDUN v. ABBA ABUNA & ANOR' (2000) 10 SCNJ 14; (2000) 14 NWLR Pt.686 Pg.209.

The judgment of this court was given on the merits and is a final decision on this matter by virtue of S.246 of the 1999 Constitution. When judgment is given on the merits, the court is functus officio, See MOHAMMED v. MOHAMMED HUSSIENE (1998) 12 SCNJ 136; (1998) Pt.584 Pg.108.

There is no question of the want of competence of this court in any manner to deliver the judgment of 14/4/08.

Now, there is the issue raised by the 1st Respondent that this court has now become functus officio regarding the appeal and that no legally acceptable reason has been canvassed to enable this court review its judgment. I have to agree with this. The general principle of law is that this court lacks jurisdiction to set aside its own judgment except in certain circumstance. See NATHAN ONWUKA v. BEN MADUKA (2002) 9 SCNJ 113, (2002) 18 NWLR Pt.799 Pg.586. The Court of Appeal lacks powers to review its own judgment save in respect of clerical mistakes, accidental slips and omissions - See REV. HYDE OMAGULUCHI v. MR. BEN COLLINS NDU (2001) 3 SCNJ 110 and (2001) 7 NWLR Pt.712 Pg.309. Also a judgment obtained by fraud' void judgment and judgment obtained under the mistaken belief that parties consented to it will be set aside. See ALH. TAOFEEK ALAO V. A.C.B. (2000) 6 SCNJ 63; (2000) 9 NWLR Pt. 672 P9.264.

In UKACHUKWU v. UBA (2005) 18 NWLR Pt.956 Pg. 1 at 60, this court held as follows:

"It is clear that functus officio means a task performed fulfilling, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority' Thus if a court is said to become functus officio in respect of a matter it means that the court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, re-open or revisit the matter. It is therefore the general principle of law that once a court delivers its judgment on a matter and it cannot revisit or review- the said judgment except under certain conditions."

Thus as officers - Justices of this official body - the court of Appeal we lack further authority or legal competence to re-open the appeal or review our judgment because the duties and functions of the original commission have been fully accomplished.

Learned counsel for the Applicant has made the suggestion that because the merits of the substantive case - whether the election held on 14/4/07 was properly cancelled or not was not the issue determined by this court, therefore there was no decision on the merit and we can revisit to use our powers to determine the substantive issue on the merits. The problem with that proposition is that it begs the question of the nature of the order made by this court. At the Tribunal the issue of which court had jurisdiction was thoroughly canvassed and determined on the merit. The same issue was brought before us on appeal, canvassed thoroughly by both counsel and this court gave a final order on the merits of the question of jurisdiction. Thus when you refer to a decision on the merits, it is not limited to when all the substantive issues in a cause of action is determined but envisages a situation in which an issue brought up for consideration is litigated upon and determined. When you talk about the merits of a case, you are referring to the elements or grounds of a claim or defence or substantive point of law being proposed in that regard which constitutes the substantive consideration to be taken into account in deciding a case. This of course, is different or opposed to extraneous or technical points. There is a decision on the merit when a substantial question of law in respect of which arguments in favour of more than one interpretation has been adduced by both parties in the litigation. See OKENWA v. MIL. GOV. IMO STATE (1996) 6 SCNJ 221. In OBASI v. MBAS LTD. (2005) 9 NWLR Pt.929 Pg.117 at Pg.128, the court held:

"A final judgment is one which decides the rights of the parties. In other words it is a decision on the merits of the case where the matter is assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the courts by the legal combatants."

It is when a judgment is delivered in default of any party who has offended a technical rule of court i.e. in default of pleadings or in default of appearance etc that the judgment is deemed to be not on the merit and will be liable to be set aside upon good reasons advanced for the default. 

It is only in instances of default judgment which is not on the merits that a judge does not become functus officio. See MOHAMMED v. HUSSIEN (1998) 12 SCNJ 136. Thus, where a final order or final decision on a point has been given - I am talking about the definition of "decision" in S.318(1) of the 1999 Constitution, then, the court is functus officio. See FALOLA v. UNION BANK (2005) 2 SCNJ 209 at 214, which followed, OMONUWA v. OSHODIN (1995) 2 NWLR Pt. Pg.938; AWUSE v. ODILI (2003) 18 NWLR Pt. 852 Pg. 116.

In the circumstances even though there was no trial of the question whether the election of 14th April, 2007 was rightly cancelled and whether the Applicant scored the highest vote and should have been declared Governor, there was a trial and a decision on the merit of the question of which judicial composition to resort to for a remedy, I cannot therefore agree with that proposition of learned applicant's counsel.  

Learned senior counsel for the Applicant had argued that the judgment of the court was arrived at per incuriam. Learned counsel for the 1st Respondent referred this court to ONYEKWELLI v. INEC again at Pg.32 of the NWLR. This court held therein as follows: 

"The question here is that can the decision of this court invested with constitutional finality be set aside by reason of its being arrived at per incuriam?  A judgment per incuriam is one which has been rendered inadvertently. For example' where the judge has forgotten to take into consideration a previous decision to which the doctrine of stare decisis applies. For all the care with which counsel and judges may comb the law books, enare humanum est, sometimes a judgment which clarifies a point to be settled is somehow forgotten. Such a judgment which contradicts a settled principle of law by a superior court is said to be per incuriam. It cannot for that reason only be set aside. When the judgment is deemed per incuriam the implication is that it cannot be used as authority or precedents by courts of concurrent or inferior jurisdiction. See ROSSEK v. ACB LTD. (1993) 8 NWLR Pt. 312 Pg.382."

A judicial decision is wrongly made where the judge or judges did not invoke applicable legislation or was wrongly applied. See ELABANJO & ANOR. v. CHIEF MRS. DAWODU (2006) SCNJ 204.

This is no doubt that in view of Exh. D delivered by the Supreme Court, Exh. B delivered by this court can now be said to have been delivered per incuriam. That does not ipso facto make it a nullity and liable to be set aside. All it means is that the erroneous judgment cannot be relied on as precedent.

Needless to say, the powers of this court are circumscribed by the rules of this court. Or 18 r 4 of the Court of Appeal Rules 2007 provides as follows:

"The court shall not review any judgment once given and delivered by it, save to correct 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. A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative substantive part of it be varied and a different form substituted."

I must confess that this case has given me some anxious moments. I have been plagued with the question that in the circumstances of this case, how can the court intervene at this point in time to ensure that the Applicant secure a hearing on the merit of his claim that he won the election. Exh. D was a judgment of the Supreme Court in respect of the civil cause of action by the Applicant when he sought for a judicial review of the administrative action of INEC. The Supreme Court held that it was purely an election matter and should have been pursued at the Election Petition Tribunal. However, he had hitherto pursued it there and had been told by the Tribunal and this court two years earlier that the Tribunal was not the proper venue. Now what to do?

The Court of Appeal being invested with finality in some election petition matters by virtue of S. 246 particularly subsection (3) thereof of the 1999 Constitution is mutantis mutandis in the same position as the Supreme Court and will not permit a reversal or review of its judgment. In OBIORA v. IBERO (1994) 1 NWLR Pt.322 Pg. 503, the applicants sought an order of the supreme Court to set aside its own judgment on the ground among other grounds that the court's decision was a nullity because the court lacked jurisdiction to decide on and interpret certain documents. The situation we have on in this application is on all fours with the situation faced by the Supreme Court in OBIORA v. IBERO supra. Therein, Belgore, JSC (as he then was) who wrote the lead judgment put the law thus at pages 520-521 of the NWLR:

"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 its own 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 on 26th February, 1993 is being challenged......

Once the Supreme Court has entered judgment in a case, that decision is final and will remain so forever. 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....... It is emphatically restated that this motion with a double edged sword of alleged powers under Constitution. S. 6(6) (a) and under the rules (Or 8 r 16) should once and for all be nailed in its coffin. The law does not permit this court a double say in the same matter. It either allows or dismisses an appeal, not the two on the same matter. The inherent powers under S. 6(6) of the Constitution cannot be invoked to reverse a decision already given by this court..."

No matter the sentiments or temptation we cannot be lured into revisiting a matter in which we have given a final opinion.

If we are to concede to the arguments of learned Senior Counsel for the Applicants and consider the motion on the grounds canvassed by him, all courts with final jurisdiction in a matter would have nothing more to do than to reverse its previous decisions which new decision law or legislation has overturned, That would be fool hardy and against public policy. In the circumstances, I too uphold the preliminary objection and dismiss this application. I abide by all consequential orders.

     Appearances       

P. I. N. Ikweoto SAN (with him Chief B. E. Okemili and C. T. Okeke Esq, E. Etiaba Esq)

For the Appelants

       

Chief Bon Nwakamma SAN (with him Livy Uzoukwu SAN, J.T.U Nnodim SAN, Chief Ezeduruihoma SAN, C. K. Uba Esq, N Nwachukwu (Mrs), O. G. Adindu Esq, N. Okoro (Mrs.), O. J. Agbai Esq), for the 1st Respondent and Applicant in the preliminary objection. 
B. I. Amadi (Mrs) Senior Legal Officer INEC (with her O. C. Nwugo (Mrs)

For the Respondents