Lack of jurisdiction is irreparable in law – SC

As it is, the first two points of law are on fraud while the third and last one is on section 308 of the 1999 Constitution. I have thoroughly examined the submission of learned Senior Advocate from the brief and I do not see how the position can change in favour of the appellant. The […]

As it is, the first two points of law are on fraud while the third and last one is on section 308 of the 1999 Constitution. I have thoroughly examined the submission of learned Senior Advocate from the brief and I do not see how the position can change in favour of the appellant. The issue of fraud canvassed by learned Senior Advocate cannot vest jurisdiction in a court that lacks it. A judgment that is obtained by or tainted with fraud cannot be used as basis for conferring jurisdiction in a court that has none. If a court has no jurisdiction to entertain a matter, no amount of successful case made out of fraud can resuscitate or rescue jurisdiction. Once a court lacks jurisdiction, a party cannot use any statutory provision or common law principles to repair it because lack of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the court is to strike it out. No more and no less. The position of the law is as hard and as strict as that. The only valid way is to file the action in a court of competent jurisdiction. The above takes care of the first two points of law.
I go to the third point. It is on section 308 of the Constitution, a section which provides for what is generally called immunity clause. It is the contention of learned senior advocate that Section 308 is not a bar to the second relief contained in the plaintiff’s statement of claim. Let me allow myself to quote the following submission of learned Senior Advocate from page 36 of the brief of the appellant:
“It is respectfully submitted that section 308 of the 1999 Constitution does not apply to any proceeding in which it is being sought to establish that a person occupying the office of governor of a state is not lawfully occupying the office. Although it is conceded here that the proceeding in the trial court was not an election Petition in which it is being sought to show that the judgment in the election Petition affirming the election of the 1st respondent was obtained by fraud and as such the judgment is a nullity.”
While I do not really see the relevance of section 308 in this matter, I am amazed at the above submission of learned Senior Advocate which is contradictory, although he tries to palliate or soften the contradiction by some application of cleverness. I shall return to the submission when I take Issue No. 2 on jurisdiction.
And here I am. The principal relief sought by the appellant, according to the appellant himself, reads, and I repeat it at the expense of prolixity and for ease of reference:
“(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.”
In the light of the above relief, the learned trial Judge said at page 217 of the Record:
“It must be said therefore that under the Constitution of Nigeria, 1999, this court has no jurisdiction in any form over Election Petition Matters at any level. Furthermore, under the constitution, no jurisdiction is given to this court to review decisions of Election Tribunals and decisions of the Court of Appeal on judgment of Tribunals. In fact by the Supreme Law of Judicial precedent which calibrates the hierarchy of courts under the constitution, it is not only a taboo but sacrilegious for this court, a High Court, to be called upon to review the decision of the Court of Appeal.”
This is a very brilliant one. The learned trial Judge, Adah, J. got the law properly. How can counsel go to the High Court to urge that court to make the declaration sought for, in the guise that it is not an election matter when it is one in reality and substance? Let me look a bit at the relief. It is for a declaration in respect of the judgment of the Akwa Ibom Governorship Election Tribunal declaring the 1st respondent Governor of the State. Can any relief seeking language be clearer than (a) Above?
The learned trial Judge was asked to declare that judgment delivered by the Court of Appeal a nullity on the ground that members of the tribunal “have been found to have taken BRIBE”. It is clear to me that the principal relief is to declare the Court of Appeal judgment a nullity. I do not know of any relief available to the appellant to declare that “the members of the tribunal have been found to have taken BRIBE” to make it a principal relief in the circumstances of this case. How can counsel go to the High Court to seek for a nullification of a decision of the Court of Appeal? What law was counsel relying on or upon? Did he forget the existence of Section 240 of the Constitution of the Federal Republic of Nigeria, 1999? What is in Section 249 of the constitution to accommodate the action of the appellant? I still have one more question. I do not want to ask it. This is my first experience and I do not think I enjoy it. The learned trial Judge did not enjoy it too. To him, it was a taboo or a sacrilege for his court to be called upon to review the decision of the Court of Appeal. He is correct, very correct indeed. I pray it does not come our way the second time.
In my humble view, learned Senior Advocate laboured in vain to argue that the matter did not involve election petition. If the matter did not involve election petition, did it involve the taking of bribe by the members of the tribunal? If so, where is the relief known to law that the appellant has sought or asked without tying it to the main issue of election? If the principal matter is bribery, should the appellant not think of obtaining fiat to prosecute the matter? And if he does that, is the Federal High Court the place to commence the prosecution? Head or tail, the appellant comes out worse.
In the Court of Appeal, the learned Justice had not the slightest difficulty to dismiss the appeal. Muhammad, JCA, said in the penultimate paragraph at p.377 of the record:
“Now having carefully considered the submissions of learned counsel for the respective parties in contrast with the ratio decidendi of the learned trial judge, I cannot but agree with the learned trial judge, that he lacked jurisdiction to entertain the suit.”
Again, I entirely agree with the Court of Appeal. It cannot be otherwise. This court has held in a number of cases that it has no jurisdiction to entertain or hear election matters in respect of election to the office of Governor of a State. This is because by Section 246(3) of the 1999 Constitution, the decision of the Court of Appeal in respect of appeals arising from election petitions to the office of governor of a state is final. See Awuse v. Odili (20031 18 NWLR (Pt. 851) 116.
I now move to issue No. 3 for whatever it is worth. Learned Senior Advocate said that the issue is based on the minority judgment of Rhodes-Vivour, JCA. I do not think I should take further time here. The law is elementary that a minority judgment, as the name implies, is not the judgment of the court. The judgment of the court is the majority judgment. As appeals lie only in respect of the majority judgment and not the minority judgment, I do not see my way clear in considering the issue.
Learned Senior Advocate seemed to appreciate the law when he said that ‘an appeal does not lie against a minority decision’.
He however fell into serious error when he said he was doing so ‘out of abundance of caution’. What type of abundance of caution? Abundance of caution not known to law? In my humble view, there is no legal basis for even the application of minimum caution, not to talk of abundance of caution. Considering the meaning of abundance as “a great quantity; plenty” there is no such quantity or plenty to deserve the issue.
It is sad that this has to come to us. It is a bogus appeal, I repeat. I will say no more. I stop here. But not before I give the final order and it is obvious. The appeal is dismissed for lack of merit. I order costs as in the lead judgment of my learned brother, Kutigi, JSC.
Judgement delivered by Aloma Mariam Mukhtar. J.S.C (as she then was).                    

(Concluded).