Lack of jurisdiction is irreparable in law – SC

This is an appeal against the judgment of the Court of Appeal holden at Abuja wherein the court affirmed the decision of the trial Federal High Court which held that it had no jurisdiction to entertain the plaintiff’s suit and consequently struck it out.The relevant facts are that the plaintiff and the 1st defendant contested […]

This is an appeal against the judgment of the Court of Appeal holden at Abuja wherein the court affirmed the decision of the trial Federal High Court which held that it had no jurisdiction to entertain the plaintiff’s suit and consequently struck it out.
The relevant facts are that the plaintiff and the 1st defendant contested the last general election held in April 2003 into the office of Governor of Akwa Ibom State. At the end of the election the lst defendant who was sponsored by the 5th defendant was returned by the 4th defendant as the duly elected candidate.
Dissatisfied with the result of the election, the plaintiff filed a petition before the Governorship and Legislative Houses Election Tribunal for Akwa Ibom State. The Tribunal consisted of a chairman and four members. Whilst the proceedings were still pending before the Tribunal, the Plaintiff on 10th July 2003 petitioned the Chief Justice of Nigeria who is the Chairman of the National Judicial Council complaining that the chairman and members of the tribunal had been compromised with large sums of money by the 1st defendant.
On 14th July 2003 the tribunal delivered its judgment in which it dismissed plaintiff’s petition as unmeritorious. The plaintiff timeously appealed to the Court of Appeal. But before doing so he addressed another petition to the Chief Justice of Nigeria on 24th July 2003 about his earlier petition or complaint. Upon receipt of the plaintiffs petitions, the National Judicial Council set up an investigatory committee to look into the allegations against the tribunal.
Meanwhile, the Court of Appeal which heard the appeal against the judgment of the tribunal dismissed plaintiff’s appeal on 30th October 2003. The committee of investigation confirmed the allegations made by the plaintiff against the tribunal and consequently the chairman and members of the tribunal were dismissed from service as reported and published in the Guardian Newspaper of 16th March 2004.
On 3rd May 2004, the plaintiff instituted this present suit in the Federal High Court against the defendants claiming thus:-
“(a) A declaration that the judgment of the Akwa Ibom Governorship Election Tribunal given in favour of the 1st defendant as having been duly elected the Executive Governor of the Akwa Ibom State and confirmed by the Court of Appeal is a nullity because of some of the Tribunal members have been found to have taken BRIBE.” Counsel argued the preliminary objection. The learned trial judge upheld the objection. He held that he had no jurisdiction to entertain the suit. He accordingly struck it out. An appeal to the Court of Appeal was dismissed. This is a further appeal to this court. As usual briefs were filed and exchanged. The appellant filed the following issues for determination:
“1. Whether the Court of Appeal did not breach the appellant’s fundamental right to a fair hearing in failing to consider and determine the points of law submitted by the appellant in his appeal.
2. Whether the Court of Appeal was right in affirming the decision of Adah. J. of the Federal High Court that he lacked jurisdiction to entertain the appellant’s action.
3. Whether the Court of Appeal was right when it held per Rhodes-Vivour J.C.A that the first relief claimed by the appellant could only be heard by the Election Petition Tribunal in Akwa Ibom State or the tribunal having jurisdiction over Akwa Ibom State or by a High Court judge sitting in Akwa Ibom State.”
The 1st respondent adopted the three issues formulated by the appellant for determination in his appeal. The 2nd, 3rd and 4th respondents formulated three issues which are exactly the same as those of the appellant. I shall therefore not reproduce them here. It is the case of the appellant that the Court of Appeal breached the appellant’s fundamental right to fair hearing in failing to consider and determine the points of law submitted by the appellant in his appeal. Learned counsel for the appellant submitted that the Court of Appeal was wrong in affirming the decision of Adah, J. that the Federal High Court lacked jurisdiction to entertain the appellant’s action. He also submitted that Rhodes-Vivour, JCA, was wrong in holding that the first relief claimed by the appellant could only be heard by the Election Petition Tribunal in Akwa Ibom State or the tribunal having jurisdiction over Akwa Ibom State or by a High Court judge sitting in Akwa Ibom State. He urged the Court to allow the appeal.
Learned counsel for the 1st respondent submitted that having regard to the issues formulated for determination, the court was perfectly right to take the issue of jurisdiction in the way it did, thus not breaching the provisions of section 36(1) and 318(1) of the 1999 Constitution. He submitted that the Court of Appeal was right in affirming the decision of the trial judge that he lacked jurisdiction to entertain the appellant’s action.
On Issue No 3, learned counsel submitted that an appeal does not lie against a minority decision. He urged the court to dismiss the appeal and affirm the decision of the Court of Appeal. As counsel for the 2nd, 3rd and 4th respondents made generally similar submissions in the 1st respondent’s brief, I do not see reason to repeat them here. The first attack on the Court of Appeal is failure on the part of that Court to consider and examine the points of law submitted by the appellant in his appeal before arriving at the conclusion that the learned trial judge lacked jurisdiction to entertain the suit. As the appellant’s desire for fair hearing is for this Court to consider the points of law submitted by him, I must give his client that fair hearing and this I will do by taking all the three issues he formulated for determination in this appeal.
The points of law submitted for determination by the appellant are:
“(a) a judgment that is obtained by or tainted with fraud can be impeached by means of a fresh action which may be brought without leave: see pages 19-23 of the record;
(b) an action for the setting aside of a judgment that was obtained by or tainted with fraud is not an action for the review of the judgment concerned: pages 25-28;
(c) section 308 of the 1999 Constitution is not a bar to the second relief contained in the appellant’s statement of claim which is consequential to the principal relief seeking to nullify the judgment of the Election Petition Tribunal on the ground of fraud.”
To be continued