By Ise-Oluwa Ige
The legal battle for the control of Uyo constituency seat at the lower chambers of the National Assembly has raged for almost three years now with no solution in sight.
The issue in dispute in the case touches on who is the real candidate of the ruling Peoples Democratic Party (PDP) for the 2007 poll into the Federal constituency.
The two fighting for the seat are one Emmanuel Obot, the former aide to ex-Governor Victor Attah and a two-time member of House of Representatives, Mr. Bassey Etim.
The fact of the case was that Obot arguably won the primary poll conducted by the ruling PDP for the Uyo constituency seat. But because a panel set up by the Federal Government towards the tail end of President Obasanjo administration indicted him of offences with criminal undertones, PDP substituted his name with Bassey Etim.
Aggrieved by the decision, Obot took out a writ before a Federal high court sitting in Abuja to quash the indictment and stop his substitution. The trial judge, Justice Abimbola Ogie, heard the case and delivered a final judgment on the matter.
In the said final judgment, the court quashed the indictment entered against Obot but refused to stop PDP from substituting him with Mr Bassey Etim for the poll.Â He won a leg of his case before the Abuja Federal high court,Â but lost the other.
But because Obot did not get favourable judgment on the issue of substitution, he surreptitiously ran before another Federal high court sitting at Uyo to file a fresh, seeking a fresh relief to stop his substitution.
He specifically balkanized the relief touching on substitution which he could not get at Justice Ogieâ€™s court into five different heads to look as if it was a different suit with different character. However, when his opponents, Bassey Etim and PDP became aware of his move and were prepared to complain to the trial judge that he was trying to forum shop, he quickly withdrew the case and it was struck out.
Ordinarily, since Obot was aggrieved by the judgment of the Abuja Federal high court, one would have expected him to go to the Court of Appeal to set aside the aspect of the judgment given by the trial high court which aggrieved him. But if Obot, as a politician, did not know the right step to take, his lawyer must know better.
Instead of going on appeal against the judgment of Justice Abimbola Ogie, Obot came before the same Abuja Federal high court judge, Justice Ogie, who had earlier decided his case on substitution with a finality to re-litigate on the issue.
Curiously, the trial judge, not only assumed jurisdiction on the matter even though it was unavailable to her, but that the trial judge re-sat on the case and made a different finding on Obotâ€™s substitution.
Specifically, Justice Ogie quashed Obotâ€™s substitution in the fresh suit even as she labored in vain to explain why she re_sat on the issue of substitution which she had earlier delivered a final judgment upon.
But it is trite that a trial judge cannot sit in an appellate capacity over his judgment because doing so will make such a proceeding caught by the principle of res judicata. And when a case is caught by the principle of resjudicata, any order or judgment made by the trial judge in such a case is a nullity.
In a laymanâ€™s language, res judicata means tha a res or subject-matter has been adjudicated over by a competent court and de jure, cannot be relitigated.
The controversial judgment by Justice Ogie was delivered by Justice Abimbola Ogie on May 17, 2007, shortly after which she was transferred from the Abuja division of the Federal high court.
Both Etim and PDP did not waste time to appeal the verdict of Justice Ogie before the Abuja division of the Court of Appeal on sundry grounds including that Justice Ogie was already functus officio and lacked the jurisdiction to enter another verdict on the issue of substitution of Obot having earlier determined same in a final judgment.
They asked the court to void the second judgment of Justice Ogie on the issue of substitution on the account that it is caught by issue estoppels and res judicata.
The Abuja Court of Appeal though agreed with PDP and Etim that justice Ogie of the Federal high court had indeed decided the issue of substitution with a finality in the first case brought by Obot, the court said there was nothing wrong in entering another finds on the same issue brought before her by the same litigant.
Both PDP and Etim are presently before the Supreme Court on sundry grounds including that Ogieâ€™s second judgment on the issue of substitution was null and void since she allegedly sat on the case, second time, without jurisdiction.
Meanwhile, immediately Obot got the Justice Ogie judgment being currently contested at the Supreme Court, he ran before the Election Petition Tribunal sitting in Akwa Ibom seeking its order to declare him the candidate and winner of the April 21, 2007 election into the Uyo constituency seat based on the two separate judgments of the Abuja Federal high court judge which quashed his indictment and voided his substitution.
The five-member tribunal which sat on his petition struck out his case on the ground that it had no jurisdiction to hear it.
The tribunal held that his case was a pre-election matter which only a regular court of record could handle. Undaunted Obot took the verdict of the tribunal before the Appeal Tribunal (Court of Appeal) which directed the tribunal to re-hear the case.
Curiously, when the tribunal re-heard the case, it reversed its earlier verdict and said that it now had jurisdiction to hear the case even though the facts of the case before it did not change.
When it eventually heard the case, it declared Obot the candidate of PDP and winner of the election which he never stood. Bassey Etim and PDP appealed the judgment of the tribunal to the Appeal Tribunal (Court of Appeal) sitting in Calabar on the ground of jurisdiction but the appellate court decided the issue against them.
But the judgment delivered by the Court of Appeal was merely declaratory, devoid of any force of law. Specifically, the Calabar Court of Appeal judgment merely declared that Obot is the candidate of PDP and winner of the poll without any order directing INEC to swear him in. The judgment has since been hanging since it was bereft of any order directing INEC chairman to do anything about it.
Although by virtue of section 246 (3) of the 1999 constitution, the Court of Appeal is the final court on election matter including the instant one, yet, one question has arisen given the facts of this case. The question is: does the finality of a court like the Court of Appeal on an issue like the instant case cure its decision entered out of jurisdiction of nullity or and what is the legal weight of a judgment entered by a court without jurisdiction?
I think that if a court sits on a case on which it has no jurisdiction, such proceedings including the judgment entered, however beautifully conducted is null and void.
BairamianÂ L J in the celebrated case of Madukolu Vs Nkendilim had held that any defect in competence is fatal for the proceedings are a nullity however well conducted and decided. Nnamaeka-Agu, JSC, had also in his concurring judgment in Okoye Vs Nigeria Construction and Furniture Company Limited observed that when a thing is a nullity, it is as if the thing never existed. Similarly, when a judgment or order is a nullity, it is as if it was never given or made. It can be set aside without much ado.
Assuming both the tribunal and the Court of Appeal, Calabar had sat on a pre-election matter which they clearly had no jurisdiction to entertain, which court is going to review their decisions particularly that of the Court of Appeal when section 246 (3) of the 1999 constitution makes it a final court on election matters like the instant one?
Given the nature and history of this case in question, it is not in doubt that the instant case remains one of the few unresolved electoral disputes in the country that has not only been a source of worry to the public but also a source of embarrassment to the judiciary.
This is so because the case is a pre-election matter which ought to have been decided with finality long before now. Secondly, it is a case that has a history of two conflicting judgments emanating from the same court on every fundamental issue raised in the case.
Thirdly, even though the issue involved in the case is an intra party dispute, the election petition tribunal had usurped the powers of the regular court to pronounce on the issues raised in the case. The matter was made worse when a panel of the Court of Appeal in a split decision invoked its powers under section 246 (3) of the 1999 constitution to rubber-stamp the decision of the trial tribunal which sat on pre-election dispute outside its jurisdiction.
But the only saving grace now is that the pre-election matter is presently before the Supreme Court to have its last bite on the matter. This is because the decision of the apex court may go a long way to correct any judgment(s) that had been entered in error either by a regular court or a tribunal or both.
If the apex court for instance finds that the Abuja Federal high court was wrong in sitting in an appellate capacity over its judgment and voids its decision, such finds no doubt would have destroyed the legal substratum upon which the judgment of both the election petition tribunal and the Court of Appeal is sitting tight.
And by implication, such finds would have voided all the judgments of both the tribunal and the Court of Appeal on the issue assuming they were entered without jurisdiction and void abinitio.
But if the apex court holds a contrary view, such judgment will validate all the judgments entered by both the tribunal and the Court of Appeal even if they were entered in error. The entire Nigerians are awaiting the intervention of the Supreme Court on this issue to salvage the name of the judiciary.