[Abia Central Senatorial Seat] Agitation for Court of Appeal President to Set up panel of review is erroneous

Fatai Abiodun

I woke up to the trending news that the Coalition for Social Justice and Good Governance (CSJGG) has called on the President of the Court of Appeal to set up a panel to review the judgment in the Abia Central senatorial seat dispute between Augustine Akobundu of the Peoples Democratic Party (PDP) and Darlington Nwokocha of the Labour Party, the minority whip of the Senate.

The group based their request on the watery allegation of corruption on the panel of justices that sat on the case and asked for a panel of judicial review.

It is important to state that Mr Akobundu of the PDP was declared winner by the Court of Appeal on the grounds that Mr Nwokocha was not qualified to contest the elections. The issue of disqualification is one of the constitutional grounds for nullifying the votes scored by a candidate.

The legal question that comes to my mind is whether the President of the Court of Appeal has the power and jurisdiction to set up a panel to review what his learned justices has done? The answer is NO, this is based on the legal fact that jurisdiction that confers power on the Court of Appeal is a creation of the Constitution and does not give the president of the Court power to set up judicial review over the decision arrived by his learned justices.

The Court in Belgore v Ahmed[1] held that procedure does not confer jurisdiction, process does not, consent or agreement cannot, nor can a court assume jurisdiction under any guise even if it is in the interest of justice.

The office of the President of the Court of Appeal cannot be torpedoed to assume or presuppose jurisdiction where there is none. The power of the President of the Court of Appeal does not include setting up a panel of review on the case that has been decided by his brother justices.

The Tribunal is the creature of Section 285 (2) of the 1999 constitution as amended, and it has original jurisdiction to the exclusion of any court or tribunal to hear and determine petitions as to whether any person has been validly elected to the office of the Governor or Deputy Governor or as a member of any legislative house.

The Supreme Court is only competent to entertain appeals from the Court of Appeal and not from the High Court or from the Election Tribunals, and Section 246(3) of the 1999 Constitution provides that the decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.

Where the election being questioned is an election to the National Assembly, the Supreme Court lacks the jurisdiction to entertain such an appeal and no appeal from the Court of Appeal on a House of Representative election can be entertained by the Supreme Court.

This is the reason Justice Karibi-Whyte JSC (as he then was, of blessed memory) clearly adumbrated in Utih V Onoyivwe[2] that where the Constitution has declared that the courts cannot exercise jurisdiction, any provision, in any law to the contrary will be inconsistent with the provision of the Constitution and void.

Order 8 rule 6 of the Supreme Court Rules enables the Supreme Court to review its judgment or ruling. This rare jurisdiction is limited to situations where there are clerical mistakes, errors that arose from accidental slips or omissions in the judgment, or where the judgment is obtained by fraud or where it becomes clear that the Supreme Court was misled into delivering the judgment under a mistaken belief that the parties consented to it.

On whether the Court of Appeal can overrule itself, per Ogunwumiju JCA (as he then was) now JSC in Onyekweli v INEC (2010) 7 EPR 377 stated that misdirection or error of law judgment cannot be corrected, any order or judgment made within the jurisdiction is not a nullity or invalid even if it is erroneous in law and in fact or perverse. 

The Provisions contained in the constitution cannot be altered by protest or agreement but solely by the power conferred on the National Assembly by the Constitution itself.

Relying on the above judicial explanations, it is lucid and clear that the agitation by the supporter of the Labour Party candidate demanding that the President of the Court of Appeal should set up a review panel to review the judgment delivered by his learned brothers can only amount to aerobic exercise with no judicial values.

I call on the legal counsel to the Labour Party candidate to counsel his client on the finality of the Court of Appeal on the National Assembly election and to imbibe the culture of obedience to the rule of law.

Fatai Abiodun writes from Abuja

albarka200709@yahoo.com

  [1] Belgore v Ahmed (2013) 8 NWLR (Pt. 13555) 60 SC (pp. 91-92, paras. G-B)

[2] Utih V Onoyivwe (1991) 1 NWLR (Pt. 166) 166 when at page 225 as cited by per Aderemi JSC in Obi V INEC (2009) 5 EPR 370