Law & Human Rights

June 12, 2009

Niger governorship tussle back to Appeal Court

By Innocent Anaba

The All Nigeria People’s Party (ANPP) governorship candidate in Niger State in the April 2007 general election, Mr David Umaru, is back before the Court of Appeal, Abuja, this time around, praying the court to determine the validity of the court’s judgment of February 19, 2009, which dismissed his petition.

The court had in its judgment in the appeal by Umaru, who had appealed against the judgment of the Niger State Governorship Election Tribunal, Minna, dismissed the appeal as statue bar, holding that the appeal was filed 31 clear days after the announcement of the election result, in breach of section 141 of the Electoral Act, 2006 which stipulated that all petitions must be filed within 30 days after declaration of election results.

Umaru had urged the court to nullify the election of Governor Banbangida Aliyu of the People’s Democratic Party (PDP) on the ground that he was not qualified to contest  the 2007 governorship election in the state (Niger State) on account of his non-resignation as a Permanent Secretary as provided for by the constitution and the Electoral Act.

But the Appeal Court even after the extensive argument, rather than deliver judgment on same, dismissed Umaru’s appeal. Chief Mike Ahamba (SAN), Umaru’s counsel in the fresh application before the appellate court, is praying the court to set aside the judgment, contending that “on February 19, 2009, this court delivered a considered judgment in which a cross-appeal of the respondents was allowed and our petition struck-out without considering weighty legal issues raised by my team of lawyers.”

Commenting on the fresh application, a Lagos based lawyer, Mr Onyema Omenuwa, said  “anybody that is wronged or is aggrieved has the constitutional right to approach a court and seek redress, and the court is bound to listen to him, unless he didn’t properly approach the court. So when people condemn indiscriminately those who are seeking judgment reversal in the courts, it should be done with caution because going back to court means that they are not satisfied. It will then be left to the court to listen and decide whether they are genuinely dissatisfied.

“I use the word ‘genuinely’ advisedly because on introspection, I seem to understand why condemnation normally trails the application for judgment reversal. Such applications are known to have only come from politicians, who given the chance would want to rubbish the judiciary.

To them, money can buy anything and anybody. But having said that, I must say that it is also left to the judiciary to demonstrate immeasurable level of integrity because the future of the country, not just of our democracy, is in the hands of judges. If they sell their conscience to the devil (I mean politicians), the country is finished. You know that politicians in this country don’t really care, so long as they are grabbing something for themselves.

“David Umaru’s case is just like Andy Uba’s case, but my thinking is that Umaru has a good case. I have seen the processes he filed, pointing out the errors that the Court of Appeal may have innocently overlooked in entering judgment against him. A different panel of the court will now have the duty to scrutinise these processes and decide one way or the other.

I don’t know whether he has ever been in government and had access to public till, so the fear of his mobilising money that he didn’t work for is reduced, unlike some others who we hear every day are moving money to and fro. I think Umaru’s case will be more dispassionately looked into for being, to a large extent, an ordinary citizen who just felt that the court got it wrong.

“Well, let’s see how it goes. I personally don’t think it is a frivolous application. And the way the court handles these applications will determine whether people will keep coming back for judgment reversal. Then it will become a child’s play. I believe judges are conscious of this scenario”, he added.

Umaru’s resolve to approach the appellate court to have his appeal reheard by a different panel is, however,  significant in the country’s judicial history, which will produce a precedent judgment that will serve as reference point which ever way it goes.

The Niger State governorship/legislative was the starting point for this matter, where Umaru had challenged the declaration of Aliyu as winner of the gubernatorial poll  in the state. One of the grounds on which he challenged the election was that  Governor Aliyu was not qualified to contest the election in the first place, because he didn’t retired, resigned or withdrawn from the Civil Service of the Federation as required under the 1999 constitution as at the time of the election. He had also contended that Aliyu was not elected by a majority of lawful votes.

In their reply to the petition, the respondents did not raise the issue of whether the petition was incompetent based on statue bar. The issue of statue bar never arose for determination in the pleadings filed, nor was it canvassed, let alone mentioned during the proceedings.

But at the address stage, the respondents suddenly raised the issue of statue bar for the first time which the petitioners’ counsel objected to on the ground that the tribunal lacks the jurisdiction to entertain it by virtue of paragraph 49(2) of the First schedule to the Electoral Act, 2006.

Curiously, the tribunal ruled that the petition was not statue bar, but turned round to hold in its final judgment that the petition however, lacked merit and therefore dismissed same.

Umaru, not satisfied with the verdict,  approached the Court of Appeal. Aliyu cross-appealed, he challenged the lower tribunal’s earlier position on statue bar. The appellate court, in its judgement allowed Aliyu’s cross appeal and dismissed the main appeal without considering its merit.

However, based on ex-debito Justicie, Umaru is back to the appellate court with an application seeking to set aside the judgment for being a nullity in law, contending amongst others that the judgment is ultra vires the Court of Appeal under the Electoral Act, 2006 and section 246 (1) of the constitution; that the judgment was delivered in breach of Section 36(1) of the constitution, and the Common Law rules of natural justice; that the cross-appeal which this court allowed, and upon which the dismissal of the main; and the court expressly rejected as binding on it a Supreme Court decision (Yusuf V. Obasanjo (2003) 16. According to him,  “where a judgment is clothed in illegality or fundamental irregularity, the court that delivered it may set it aside if called upon to do so as a matter of right.

There are situations known to law when a court may be validly called upon to revisit its judgment. Such situations, albeit not everyday occurrence, which analysts  say “are considered legally justifiable by virtue of their expediency in the quest for justice, thus inherent notion of justice is superimposed over mere forms or sheepish adherence to general rules.”

More over,  judicial authorities have presented such situations where a court may set aside its decision to include when a judgment is obtained by fraud; where the court acted in error(s) of fact, or where the court later discovered that it had no jurisdiction to adjudicate on the case in the first instance.

Umaru anchored the grounds of his appeal on at least two of the bases for this rationale, which is found in the common law principle known as ex debito justitiae and the inherent jurisdiction of the court to do justice. On the principle of ex debito, justitiae, a person who is affected by an order which can be properly described as a nullity is entitled to apply to that same court to have it set aside.

Election petition matters are said to be sui generic, i.e unique and requiring expeditious treatment. This is so much so that President, Court of Appeal, Justice Umaru Abdullahi was recently quoted in the media a desiring quick attention to election petition issues having earlier blamed observered delays on dearth of justices  on the one hand and plenitude of cases on the other hand. Majority of the cases are now reportedly disposed off and more justices are available to attend to the few and the fresh left.

Disturbed by  the  delay in assigning  his new application, the ANPP governorship candidate in Niger State had filed another application before the court, praying the court to expedite hearing on the matter. The application seeking for an order of accelerated hearing is brought pursuant to Order 7 Rule 1(Court of Appeal Rules 2007), Section 148 of the Electoral Act 2006 and under the inherent powers of the court.

He contends that matters relating to Election Petition are given precedence over all other matters under the Electoral Act and he maintained that there is an urgent need  to accelerate the hearing of the application to set aside the judgment by listing same urgently.

In an affidavit in support of the application, he averred that “as a lawyer, I am aware that Section 148 of the Electoral Act 2006 provides that all electoral cases and appeals shall be given accelerated hearing and shall have precedence over all other cases before the courts, adding hat the delay in fixing an early date for the hearing of the application to set aside the judgment ex debito justitiae will be inimical to his interest, that of his teaming supporters and not being in the interest of justice.