By Ise-Oluwa IGE, Abuja
In a split judgment of four to one, the Supreme Court yesterday stopped the Sokoto division of the Court of Appeal from delivering its judgment in the appeal brought by the gubernatorial candidate of the Democratic Peoples Party (DPP), Alhaji Maigari Dingyadi, seeking to nullify the election of the incumbent state Governor, Alhaji Wagatakarda.
The new order came yesterday after the apex court discharged its earlier preservative injunction restraining the lower court from going ahead with the case.
But the court cleared the Abuja Court of Appeal to go ahead with its separate proceedings on the case.
In the lead majority judgment delivered in the case by Justice Ibrahim Tanko Mohammed yesterday, the apex court said that the Sokoto Court of Appeal must await the outcome of its proceedings in a pending appeal on a similar subject-matter.
It also said yesterday that the DPP gubernatorial candidate had abused the courtâ€™s process by filing processes before various courts on the same subject matter.
The appeal pending before the Supreme Court which formed the basis upon which the apex court gave its order yesterday is to be heard after the court vacation which is imminent.
But the presiding justice of the panel, Justice Mahmoud Mohammed dissented from the majority judgment yesterday.
His position was a lone voice which only shows that justices of the apex court are independent.Â The dissent judgment cannot override the majority judgment.
According to Justice Mahmoud in his dissent judgment yesterday, he said section 246 (3) of the 1999 constitution had made the Court of Appeal the final court on all election petitions arising from gubernatorial elections including the instant case.
He said section 232 and 233 of the 1999 constitution which established the Supreme Court and defined its jurisdiction were also unambiguous as to the limits of the apex court to dabble into proceedings in gubernatorial election petitions.
He said neither the section 232 nor section 233 extended the jurisdiction of the Supreme Court to look into or reviewÂ the proceedings of the Court of Appeal in matters relating with gubernatorial election petition.
He said that it was trite that a court without jurisdiction to entertain a case could not conduct a valid proceedings on such case.
He also disagreed with another aspect of the majority decision of the apex court yesterday to the effect that the DPP gubernatorial candidate abused the court process by maintaining actions before the Abuja Federal high court and the Sokoto State Election Petition Tribunal contemporaneously on the same issue touching on the qualification of the incumbentÂ state governor to contest the 2007 gubernatorial poll.
He said that the case before the Abuja Federal high court which went on appeal to the Abuja Court of Appeal was a pre-election matter while the one that commenced before the Sokoto State Gubernatorial Election Petition Tribunal which also went, on appeal, to the Sokoto division of the Court of Appeal was a post election matter.
He said that even though the subject-matter of the two cases were similar, he said the DPP gubernatorial candidate could not be accused to have forum-shopped because the 1999 constitution created both the regular high court and the election petition tribunal with definite jurisdiction on cases to entertain.
He said it would have been a different ball game if the DPP gubernatorial candidate had been moving from one regular high court to another or from one election petition tribunal to another.
He said if there was anybody that should be accused of abuse, Justice Mahmoud said it was the Supreme Court, having exceeded its jurisdiction to dabble into proceedings of the Court of Appeal on gubernatorial election matters which section 246 (3) of the 1999 constitution was explicit about.
Recall that Alhaji Dingyadi was before the Sokoto Court of Appeal to nullify the election of the incumbent governor of Sokoto state on the ground that he was not qualified to contest the poll.