Court can make consequential orders on pre-election matters
IN THE SUPREME COURT OF NIGERIA,
HOLDEN AT ABUJA ON FRIDAY, THE 27TH DAY OF FEBRUARY, 2015,
BEFORE THEIR LORDSHIPS
MAHMUD MOHAMMED JUSTICE, SUPREME COURT
WALTER SAMUEL NKANU ONNOGHEN JUSTICE, SUPREME COURT
JOHN AFOLABI FABIYI JUSTICE, SUPREME COURT
SULEIMAN GALADIMA JUSTICE, SUPREME COURT
OLABODE RHODES-VIVOUR JUSTICE, SUPREME COURT
KUMAI BAYANG AKA’AHS JUSTICE, SUPREME COURT
JOHN INYANG OKORO JUSTICE, SUPREME COURT
BETWEEN:
1. BARRISTER ORIKER JEV
2. ACTION CONGRESS OF NIGERIA (now All Progressives Congress)
(Appellants/Respondents) – Appellant(s)
AND
1. SEKAV DZUA IYORTOM
(Respondent/Applicant)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. ENGR. STEVE MOZEH
(Respondent) – Respondent(s)
The 1st Respondent/ Applicant was the 1st Respondent in the Judgment of the Supreme Court delivered on 30/5/2014 in which the Appellants/ Respondents’ appeal was dismissed. Following the dismissal of the appeal, the Supreme Court made consequential orders directing the 1st Appellant/Respondent to vacate the seat of Buruku Federal constituency of Benue State in the House of Representatives and the Independent National Electoral Commission (INEC) the 2nd Respondent in the Judgment, to conduct election into the vacant seat vacated by the 1st Appellant/Respondent within three months with 1st Respondent as the candidate of the 2nd Appellant/Respondent. The 1st Respondent/ Applicant now come back to the Supreme Court by a motion on notice asking for the following two 2 reliefs: “1. An order of the Honourable Court to amend, correct and/or set aside the consequential order made by this Court in its Judgment of 30th May 2014, pursuant to the provision of Section 141 of the Electoral Act 2010 (as amended) to wit: that the 1st Respondent/Applicant stand for a fresh election with other candidates for the Buruku Federal Constituency Benue State.
2. An order directing that the 1st Respondent/Applicant be immediately issued with the certificate of Return by the 2nd Respondent and sworn in as a member of the House of Representatives.” The learned senior Counsel, Yusuf Ali, SAN, who represents the applicant, had formulated one issue for consideration. It states: “Whether in view of the facts and circumstances of this application and given the provisions of Section 22 of the Supreme Court Act and Order 8 Rule 16 of the Supreme Court Rules 1999 (as amended), the reliefs in the application ought not be granted?”
The learned Senior Counsel to the applicant was of the strong view that the Supreme Court possesses the power ex-debitio justitiae, to set aside the relevant consequential order made in the matter regarding the holding of another election and substitute there for an order that meets the justice of this case. In his argument, learned senior Counsel submitted that a combined reading of Section 22 of the Supreme Court Act and Order 8 Rule 16 of the Supreme Court Rules 1999 (as amended) empowers the Supreme Court in certain circumstances to review its judgments, notwithstanding the finality of its judgments. Also, that by virtue of Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), there is an inherent power in the Supreme Court to grant the prayers of the Applicant.
Learned Silk submitted further that the basis of the refusal of the Supreme Court in declaring the applicant as the winner of the said election was exclusively on the provision of Section 141 of the Electoral Act 2010 (as amended) whereas the Federal High Court in Suit No: FHC/ABJ/CSI/2011 between the Labour Party v. Hon. Attorney General of the Federation (Exhibit 2) delivered on 21st July, 2011 had annulled the said provision. According to him, Section 141 of the Electoral Act had been completely wiped out of the Electoral Act by the said judgment of the Federal High Court. He opined that the Supreme Court in its judgment was obviously oblivious of the fact of the nullification and obliteration of the provision of Section 141 of the Electoral Act upon which the consequential relief ordering a fresh election was hinged. It was his further submission that given this factual situation, and in view of the fact that Courts exist for justice, the Supreme Court was urged upon to correct the error varying the consequential order for fresh election with an order swearing in the applicant herein as the member representing Buruku Federal Constituency of Benue State.
FACTS: The 1st Respondent/Applicant, by a motion on Notice, prayed the Supreme Court for the following orders:
“1. AN ORDER of the Honourable court to amend, correct and/or set aside the consequential order made by this Honourable court in its judgment of 30th May, 2014 pursuant to the provisions of Section 141 of the Electoral Act 2010 (as amended) to wit: that the 1st Respondent/Applicant stand for a fresh election with other candidates for the Buruku Federal Constituency of Benue State.
2. AN ORDER directing that the 1st Respondent/Applicant be immediately issued with the certificate of Return by the 2nd Respondent and sworn in as a member of the House of Representatives.
3. AN FOR SUCH FURTHER ORDER OR ORDERS as this Honourable court may deem fit to make in the circumstances.” The grounds upon which the application is predicated amongst others are as follows:
1. This Honourable Court, on 30th May, 2014, delivered in this matter and dismissed in total, the appeal of the Appellants.
2. The two Lower Courts, in their judgment in favour of the 1st Respondent/Applicant herein, ordered that the Respondent/Applicant should be sworn in as a member of the House of Representatives.
3. In the judgment of this Honourable Court of 30th May, 2014, this order was substituted, pursuant to the Provisions of Section 141 of the Electoral Act 2010 (as amended), to the effect that fresh elections should be conducted in which the name of the 1st Respondent/Applicant will be substituted for that of the 1st Appellant on the ballot papers. In support of the application also is a 15 paragraph affidavit deposed to by Alex Akoja; a legal practitioner in Yusuf Ali & Co, the Law Firm representing the 1st Respondent/Applicant case.
ISSUE FOR DETERMINATION: The learned Counsel representing the applicant formulated one issue for consideration as follows: “Whether in view of the facts and circumstances of this application and given the provisions of Section 22 of the Supreme Court Act and order 8 Rule 16 of the Supreme Court Rules 1999 (as amended), the reliefs in the application ought not be granted?”
HELD: In the final result, the application was found to be meritorious and was granted as prayed. Accordingly, the consequential order No 2 made in the judgment of the Supreme Court in appeal No SC.164/2012 delivered on 30th May, 2014 which ordered the Independent National Electoral Commission (INEC) to conduct fresh election into the vacant seat of Buruku Federal Constituency of Benue state in the House of Representatives was set aside.
In its place, the following orders were made: “1. The Independent National Electoral Commission is hereby ordered to issue certificate of return to the first Respondent/Applicant, Sekav Dzua Iyortom forthwith.
2. It is further ordered, that the applicant herein, Sekav Dzua Iyortom be immediately sworn in into the House of Representatives as the member representing Buruku Federal Constituency of Benue State. The Speaker of the House of Representatives and the Clerk of the National Assembly shall ensure that this order is carried out with immediate effect.
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1 Comments
Interesting piece.
We will review and take appropriate action.