Hon Sani Sha’aban & Anor v. Alhaji Namadi Sambo & Ors
CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
This was a preliminary objection raised by the 1st respondent challenging the jurisdiction of the Supreme Court to entertain two appeals arising from a gubernatorial election petition. The 1st respondent contended that by virtue of section 246(3) of the 1999 Constitution, the Court of Appeal’s decision in respect of appeals arising from election petitions is final, thereby ousting the Supreme Court’s appellate jurisdiction.
The appellants conceded that an appeal in a gubernatorial election petition terminates at the Court of Appeal, but argued that these were not appeals on an election petition but appeals against the refusal of the Court of Appeal to set aside its decision which was alleged to be a nullity. The appellants contended that section 246(3) should be given a restrictive interpretation and that section 6(6)(a) and (b) of the Constitution conferred jurisdiction on the Supreme Court to intervene where a litigant was denied the right of review of null judgments.
Issues for Determination
ISSUE 1:Â Whether the Supreme Court has jurisdiction to entertain appeals arising from gubernatorial election petitions in light of section 246(3) of the 1999 Constitution.
Decision / Holding
The Supreme Court upheld the preliminary objection and struck out both appeals (SC.89/2010 and SC.90/2010) for lack of jurisdiction. The Court held that section 246(3) of the 1999 Constitution is clear and unambiguous, providing that the decision of the Court of Appeal in respect of appeals arising from election petitions shall be final. No order was made as to costs.
Ratio Decidendi / Principles
APPELLATE PRACTICE — Supreme Court Jurisdiction — Gubernatorial Election Petitions — Finality of Court of Appeal Decisions “The provision of section 246 of the Constitution is very clear and unambiguous and has been interpreted by this court to deprive this court of the jurisdiction and competence to deal with matters arising from a gubernatorial election petition. The Court of Appeal is the final court.” Per Musdapher, JSC, in Sha’aban & Anor v. Sambo & Ors (2010) NLC-123-89/90-2010(SC) at p. 2; Paras D–E.
CONSTITUTIONAL LAW — Section 6(6) — Judicial Powers — Relationship with Jurisdiction “Section 6 of the Constitution does not confer on the Court jurisdiction to determine a matter where no other, specific provision grants such a power.” Per Musdapher, JSC, in Sha’aban & Anor v. Sambo & Ors (2010) NLC-123-89/90-2010(SC) at p. 2; Paras B–C.
JURISDICTION — Competence of Court — Distinction from Judicial Power “There is a clear distinction between judicial power and jurisdiction, while jurisdiction is defined as the power of the court to hear and determine the subject matter in controversy between parties to a suit, Jurisdiction is the authority of a court to exercise its judicial power – which is the total powers which a court exercises when it assumes jurisdiction to hear a case.” Per Adekeye, JSC, in Sha’aban & Anor v. Sambo & Ors (2010) NLC-123-89/90-2010(SC) at p. 6; Paras A–B.
JURISDICTION — Exercise of Judicial Powers — Prerequisite of Jurisdiction “A court must first and foremost have and assume jurisdiction in a suit before it can exercise its judicial powers under section 6(6) a – b of the 1999 constitution.” Per Adekeye, JSC, in Sha’aban & Anor v. Sambo & Ors (2010) NLC-123-89/90-2010(SC) at p. 7; Paras A–B.
CONSTITUTIONAL LAW — Section 246(3) — Interpretation — Word ‘Shall’ — Mandatory Finality “Section 246 (3) which is pertinent herein is clear and unambiguous. The employment of the word ‘shall’ points to mandatory realm. It imbues the Court of Appeal with ultimate and final jurisdiction.” Per Fabiyi, JSC, in Sha’aban & Anor v. Sambo & Ors (2010) NLC-123-89/90-2010(SC) at p. 4; Paras B–C.
Obiter Dicta
The court observed that while the Supreme Court is the court of last resort, it is nevertheless a court of appellate jurisdiction whose jurisdiction is clearly laid down in the Constitution. The court is statutory and cannot, for the sake of doing justice, confer on itself a jurisdiction that is not given to it by the Constitution or by any statute, as it is in the public interest that there should be an end to litigation.
Per Musdapher, JSC, in Sha’aban & Anor v. Sambo & Ors (2010) NLC-123-89/90-2010(SC) at p. 1; Paras D–E, citing Alao v. A.C.B. Ltd. (2000) 9 NWLR (Pt.672) 264.
Orders of Court
1. The preliminary objection is upheld.
2. The Supreme Court has no jurisdiction to entertain the appeals in Suits No. SC.89/2010 and SC.90/2010.
3. The appeals are struck out.
4. No order as to costs.
APPEARANCES
Counsel for the Appellant(s)
o M.I. Ahamba SAN o Emeka Mozie o A.T.U Ibinolo (Mrs) o A.O. Onyedun (Mrs) o James Ugbolo o Ngozi Owunwa o J. Abbas-Ibrahim
Counsel for the Respondent(s)
o E. Toro SAN o Y.U. Usman SAN o B.L. Aliyu Esq o S. Atung Esq o Y. Abdullahi Esq o C. Umar Esq o S.D. Mallan (Miss) o M.I. Tola o I.S. Utuk (2nd & 3rd Respondent) o M. Gomwalk
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY DAHIRU MUSDAPHER, J.S.C. (DELIVERING THE LEADING JUDGMENT).:)
The 1st respondent has filed preliminary objection to the hearing of the appeals herein on a number of grounds the principle of which is that this court has no jurisdiction to entertain the appeals under the provisions of section 246 (3) of the Constitution. The 1st respondent expatiated the objection in the respondent’s brief in which he argued that this court has the competence to hear the appellants’ appeals as filed in this court. Both senior learned counsel for the parties extensively addressed the court on their respective stands on the issues.
Now section 246(3) of the Constitution provides-
“The decision of the Court of Appeal in respect of appeals arising from election petitions shall be final.”
The learned counsel for the appellant in his Reply brief concedes that an appeal in a gubernatorial election petition terminates at the Court of Appeal, but submits that this is not an appeal on an election petition, but an appeal against the refusal of the Court of Appeal to set aside its decision which was deemed to be a nullity. It is common ground that the court i.e. the Court of Appeal has the jurisdiction to set aside its null decisions or judgments. It is contended by the learned counsel for the appellants that this court has the jurisdiction to entertain these appeals because the provisions of section 246(3) should be given a very restrictive interpretation in order to allow a citizen to invoke the judicial powers of this court as the court of the last resort. Learned counsel also relied very heavily on the provisions of the judicial powers of the court as explained in Section 6(6) (a) and (b) of the Constitution and maintains that the section gives this court the jurisdiction to come to the aid of a litigant who was denied the right of the review of its null judgments by the Court of Appeal. He asserts that UBI JUS IBI REMEDIUM – that is wherever there is a right, there is a remedy. He also argued that these provisions under section 6(6) can be invoked because it contains that phrase “notwithstanding the other provisions of this Constitution”. In other words, the provisions can always be invoked to give access to a citizen to come to this court and to ventilate his grievance against such similar infractions.
P.1
In the case ALAO v. A.C.B. Ltd. (2000) 9 NWLR (Pt.672) 264, Ogundare JSC of blessed memory stated:
“Although this court is the Court of last resort, it is nevertheless a court of appellate jurisdiction. Its jurisdiction is clearly laid down in the constitution. xxxxxxxxxxxxxxxxxxxx its jurisdiction is appellate only with incidental original jurisdiction conferred by section 6 of the Constitution for the purpose of exercising that appellate jurisdiction. The court is statutory and cannot, therefore, for the sake of doing justice confer on itself a jurisdiction that is not given to it by the constitution or by any statute. Moreover, it is in the public interest that there should be an end to litigation.”
See also the case of DANGTOE v. C.S.C. PLATEAU STATE (2001) 9 NWLR (pt.717) 132 at 150 where Karibi-Whyte, J.S.C. stated:
“It is important to point out at once that the absence of jurisdiction accentuates the want of legal capacity and competence in the Court to hear and determine the subject matter before it, and does not raise at this stage, any issue as to the rights of the parties in the subject matter of the action. In the absence of jurisdiction there is no competence to exercise the judicial powers vested in the court by section 6(6)(b) of the 1979 Constitution. It has been frequently stated, and is now well settled that any such exercise of jurisdiction, which is an obvious futility is a nullity and the proceedings and judgment relating to it are null and void.”
See also AWONIYI v. AMORC (2000) 10 NWLR (Pt.676) 522.
In summary, the provision of section 6 of the Constitution does not confer on the Court jurisdiction to determine a matter where no other specific provision grants such a power. Section 246 of the Constitution is very clear and unambiguous and has been interpreted by this court to deprive this court of the jurisdiction and competence to deal with matters arising from a gubernatorial election petition.
P.2
The Court of Appeal is the final court.
Having so decided, I do not deem it necessary to discuss the other objections raised by the 1st respondent. I accordingly uphold the preliminary objection and I hold that this Court has no jurisdiction to entertain the appeals in suits No. SC.89/2010 and SC.90/2010.
The appeals are struck out. I make no order as to costs.
P.3
Concurring Opinion(s)
— J. A. FABIYI, J.S.C.:Â
The 1st respondent raised preliminary objections in the two appeals that this court has no jurisdiction to hear the appeals vide, Section 246(3) of the 1999 Constitution.
It is contended by the learned counsel for the appellant that this court has jurisdiction to entertain these appeals because the provision of Section 246(3) must be given a very restrictive interpretation in order to allow the citizen to ventilate his grievances and invoke the judicial powers of this court as one of last resort.
P.4
He also relied very heavily on the provisions of judicial powers of the court enunciated under Section 6(6) (a) and (b) of the Constitution. He maintained that the section gives this court the jurisdiction to come in, in aid of a litigant who was denied a right by the court below. He asserts the principle of ubi jus ibi remedium. That is, wherever there is a right, there is a remedy. He also argued that the provision under section 6(6) can be invoked because it contains the phrase ‘notwithstanding the other provisions of this Constitution.’ In other words, the provisions can only be invoked to give access to a citizen to come to this court and ventilate his grievance.
In the case of Alao v. ACB Ltd. (2000) 9 NWLR (pt. 670) 264, Ogundare, JSC (of blessed memory) stated that although this court is the court of last resort, it is nevertheless, a court of appellate jurisdiction. Its jurisdiction is regulated by the Constitution. Its jurisdiction is basically appellate apart from first instance restricted matters. The court is statutory and cannot for the sake of doing justice confer on itself a jurisdiction where none is given to it by the constitution or by any statute. See also the case of Dangtoe v. C. S. C. Plateau State (2001) 9 NWLR (Pt.717) 132 at 150 where Karibi-Whyte, JSC (as he then was) had the same opinion. Section 6 of the Constitution does not imbue courts with jurisdiction at large.
P.4Â (Note: This page number appears twice in the original text and has been preserved as such.)
Section 246 (3) which is pertinent herein is clear and unambiguous. The employment of the word ‘shall’ points to mandatory realm. It imbues the Court of Appeal with ultimate and final jurisdiction. It has been interpreted by this court to deprive the court of jurisdiction and competence in appeals from gubernatorial election petition. The Court of Appeal is the final court. See:Â Awuse v. Odili (2003) 18 NWLR (Pt 851) 116.
It is no longer of moment to touch on the other heads of objection. The preliminary objection is sustained. The two appeals are hereby struck out. No order as to costs.
P.5
— OLUFUNLOLA OYELOLA ADEKEYE, J.S.C:Â
I agree with the leading Ruling and associate myself with the reasoning and conclusion in the preliminary objection in the two appeals SC.89/2010 and SC.90/2010. Hon. Sani Sha’aban and Ors. v. Alhaji Namadi Sambo and 2 Ors.
The gravamen of the objection in the two appeals which Mr. E. Toro SAN vehemently argued is hinged on the jurisdiction of this court to entertain these appeals. Chief M. I. Ahamba in his reply expatiated on the fact that these appeals flow from and are therefore based on the inherent powers of this court.
In describing the scope and extent of jurisdiction of court under section 6 (6) (a) – (b) of the 1999 Constitution, it has to be explained that the judicial powers vested in the courts in accordance with this section shall extend notwithstanding anything to the contrary in the Constitution to all inherent powers and sanctions of a court of law. In effect, the inherent powers extend to and can be exercised over all matters between government, or authority and citizens of Nigeria in all actions and proceedings relating to the determination of any questions as to the civil rights and obligations of anyone.
P.6
There is a clear distinction between judicial power and jurisdiction, while jurisdiction is defined as the power of the court to hear and determine the subject matter in controversy between parties to a suit, Jurisdiction is the authority of a court to exercise its judicial power – which is the total powers which a court exercises when it assumes jurisdiction to hear a case.
Bronik Motors Limited v. Wema Bank Limited 1983 ISENLR 296 at pgs 278 -279.
It boils down to the level that a court must first and foremost have jurisdiction over the subject matter of a suit before it can exercise any judicial powers that invoke its inherent powers under Section 6(6) (a)-(b) of the 1999 Constitution. The courts particularly Election Petition Tribunal, the Court of Appeal in its Appellate jurisdiction over election matters and the Supreme Court are all creation of the Constitution. Though they have great powers, yet the powers are limited by the Constitution. Their jurisdiction is defined by the provisions of the Constitution.
In the instant appeals the Constitution specified in clear and unambiguous terms under section 246 (3) that:-
“The decisions of the Court of Appeal in respect of appeal arising from election petitions shall be final.”
A court can only be competent when the subject matter of a case is within its jurisdiction.
P.7
Madukolu v. Nkemdilim 1962 2 SCNLR 341
Barclays Bank v. CBN 1976 1 ALL NLR pt. 1 pg 409
A court must first and foremost have and assume jurisdiction in a suit before it can exercise its judicial powers under section 6 (6) (a) – (b) of the 1999 Constitution. This court by virtue of the 1999 Constitution has no jurisdiction to entertain these appeals SC.89/2010 and SC.90/2010 – in line with the Leading Ruling, they are accordingly struck out.
P.8
Dissenting Opinion(s)
None
REFERENCES
Research enhancement — dynamically linked
Referenced Judgments
1. Alao v. A.C.B. Ltd. (2000) 9 NWLR (Pt.672) 264 — cited at p. 1; Paras D–E; p. 3; Paras C–D
2. Awoniyi v. Amorc (2000) 10 NWLR (Pt.676) 522 — cited at p. 2; Para C
3. Awuse v. Oditi (2003) 18 NWLR (Pt 851) 116 — cited at p. 4; Para D
4. Barclays Bank v. CBN (1976) 1 ALL NLR pt. 1 pg 409 — cited at p. 6; Para B
5. Bronik Motors Limited v. Wema Bank Limited (1983) ISENLR 296 at pgs 278-279 — cited at p. 5; Paras C–D
6. Dangtoe v. C.S.C. Plateau State (2001) 9 NWLR (Pt.717) 132 at 150 — cited at p. 2; Paras A–B; p. 3; Paras D–E
7. Madukolu v. Nkemdilim (1962) 2 SCNLR 341 — cited at p. 6; Para B
Referenced Statutes
1. Constitution of the Federal Republic of Nigeria, 1979 — Section 6(6)(b) — cited at p. 2; Para B
2. Constitution of the Federal Republic of Nigeria, 1999 — Section 6 — cited at p. 2; Para C; p. 3; Para D; p. 4; Para C
3. Constitution of the Federal Republic of Nigeria, 1999 — Section 6(6)(a) — cited at p. 1; Para E; p. 3; Para C; p. 5; Para B; p. 6; Para A
4. Constitution of the Federal Republic of Nigeria, 1999 — Section 6(6)(b) — cited at p. 1; Para E; p. 3; Para C; p. 5; Para B; p. 6; Para A
5. Constitution of the Federal Republic of Nigeria, 1999 — Section 246 — cited at p. 2; Para C
6. Constitution of the Federal Republic of Nigeria, 1999 — Section 246(3) — cited at p. 1; Para B; p. 3; Para A; p. 4; Para B; p. 6; Para A
