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Tag: Supreme Court

  • Supreme Court upholds Obiano’s election

    Supreme Court upholds Obiano’s election

    The Supreme Court has upheld the decisions of the election tribunal and the Court of Appeal, Enugu, that Anambra State Governor Willy Obiano won last November governorship election.

    The court, in three separate judgments read yesterday by Justices Banyang Akaahs, Olukayode Ariwoola and John Okoro, dismissed the appeals by the candidate of  the All Progressives Congress (APC), Chris Ngige;  the Peoples Democratic Party (PDP) and its candidate, Tony Nwoye.

    The court held that the appellants failed to prove their allegations that the election was not conducted in compliance with the Electoral Act.

    The three appeals were based on the arguments by the appellants that the upgrade of the voters register by the Independent National Electoral Commission (INEC) few days before the election was a violation of the Electoral Act; that INEC disenfranchised voters; that Obiano was not qualified to contest the election, having allegedly engaged in multiple registration and that INEC did not comply with the Electoral Act in conducting the election.

    They called for the cancellation of the election and the conduct of a fresh poll.

    Justice Akaahs, who read the lead judgment in the appeal by Ngige, held that the appellants failed to substantiate their claims and that in the circumstance, the apex court had no reason to disturb the findings of facts by the Election Petition Tribunal and the Court of Appeal.

    He said: “The petitioners called 25 witnesses when there were over 4,000 polling units in the state and over one million voters. The Justice Muhammadu Uwais Reform Committee had recommended that the burden of proving that elections were conducted in substantial compliance with the law rests with the INEC. But since the recommendation has not been passed into law, the onus of proof still rests with the petitioner.

    “The allegation that there were mistakes in the voters register could not be seen as an act of non-substantial compliance with the provisions of the Electoral Act.”

    Justice Akaahs also held that INEC’s action in correcting the mistakes in the voters register was not enough for the appellant to argue non-compliance with the Electoral Act and call for the cancellation of the election.

    On the allegation that Obiano engaged in multiple registration, Justice Akaahs held that the appellant failed to provide the evidence that the governor registered more than once.

    The judge held that where the allegation of disenfranchisement of voters could not be established, the results of the election would be determined by the number of votes.

    He said: “Almost all the issues raised in this appeal are issues of facts, which the tribunal made pronouncements on and which were endorsed by the Court of Appeal. The Supreme Court will not interfere in the two concurrent findings of the two lower courts as the appellants have not been able to provide the evidence that the decisions were biased.

    “The appeal, therefore, lacks merit and is accordingly dismissed.”

    Justice Akaahs affirmed INEC’s declaration of Obiano as the duly elected governor of Anambra State.

    Justice Ariwoola, in his lead judgment in the appeal by Nwoye, held that “the appellant’s allegation of non-compliance with the Electoral Act failed woefully”.

    The justice added: “He (Nwoye) has not shown why this court will interfere with the concurrent findings of the court below. The appeal is, therefore, dismissed.”

    Justice Okoro, in dismissing PDP’s appeal, held that the party failed to prove its case.

    He said: “On the first issue, which the appellant raised that Obiano was not qualified to have stood elections, he was alleged to have violated Section 81(5) of the Electoral Act; the allegation is founded on Section 31(5) of the Electoral Act. The appellant was unable to convince the court that Obiano was convicted of any offence to warrant his disqualification.

    “Such allegations cannot be ventilated at the election petitions tribunal. The Federal High Court and State High Court are venues for the ventilation of such claims, as the electoral tribunals lack the powers to disqualify a candidate for multiple registration in an election that has been concluded. This is common sense.

    “In view of the fact that the allegations against Obiano are criminal in nature, they ought to have been proved beyond all reasonable grounds. They also failed to prove that the election was not conducted substantially in compliance with the Electoral Act. We have come to an irresistible conclusion that the appellant failed to prove his case beyond reasonable ground. I, accordingly, dismiss the appeal.”

    All Progressives Grand Alliance (APGA) National Chairman Victor Umeh said the court reinforced the confidence that Nigerians have in the Judiciary.

    He said: “We are happy that the Supreme Court affirmed the election of Obiano as the governor of Anmabra State. What this means is that an APGA governor will be in office until 2018, for another four years.

    “It is a lot of lifeline for the party. The decision will motivate the party to go into the 2015 general elections more determined, reinvigorated and focused to win more seats, more National Assembly and Houses of Assembly seats in 2015.

    “So, we are going into the elections with one state in our kitty. Nobody knows what will happen next year.

    “The judgment has clearly shown that our Judiciary is working. It is a real confirmation that the Judiciary is working and alive to its responsibilities.”

  • Reps member files appeal at Supreme Court over vacation order

    Reps member files appeal at Supreme Court over vacation order

    THE lawmaker representing Akure North/South federal constituency in the House of Representatives, Mr Ifedayo Abegunde, has filed a notice of appeal and stay of execution at the Supreme Court over the vacation order placed on him by the Court of Appeal, Akure.

    The court, on Monday upheld the decision of the lower court ordering Abegunde to vacate his seat. Abegunde had approached the Appellate Court to set aside the verdict of Justice G.0 Okeke of the Federal High Court, which earlier declared his seat vacant in May 2012. The lawmaker, who is a former member of the Labour Party(LP) defected to the defunct Action Congress of Nigeria (ACN), claiming that his former party was embroiled in crisis which eventually led to divisions.

     However, the Appellate Court presided over by Justice A.G Mishella, said Abegunde’s appeal lacked merit and as such should vacate his seat.

    But in the grounds of appeal, the lawmaker maintained that the lower court erred in law by affirming the wrongful interpretation of the proviso to section 68(1)of the 1999 constitution of the Federal Republic of Nigeria(as amended) by the Federal High Court, Akure, to the effect that the provison is not applicable to the appellant’s case.

     Abegunde also claimed that the lower court erred in law when it misinterpreted and misapplied section 222 of the 1999 constitution as amended. This, he said came to a wrong conclusion that the section anticipates only the national level in justifying a defection under the proviso to section 68(1)of the constitution.

     Abegunde therefore sought an order of the Supreme Court allowing the appeal and setting aside the judgment of the Appeal Court. He also prayed the court to grant the reliefs sought in his originating summons, dated January 25,2012, and any orders as the court may deem fit in the circumstance of the appeal.

  • Anambra: Obiano files cross-appeal at Supreme Court

    Anambra: Obiano files cross-appeal at Supreme Court

    •Ngige, APC object

    Anambra State Governor Willie Obiano has filed a cross-appeal at the Supreme Court, disagreeing with aspects of the judgment of the Court of Appeal, Enugu Division, which ruled in his favour, dismissing four petitions against his election.

    Senator Chris Ngige and All Progressives Congress (APC), whose joint appeal in the Enugu Court was dismissed on the same day with three others, had since appealed at the Supreme Court.

    The five-man panel of the Court  of Appeal, led by Justice Lawal Garba Mohammed, on July 26 dismissed the petition filed by Senator Ngige and the APC.

    In the cross-appeal, Obiano, apprehensive of the issue of qualification to contest as governor, is contending that the Appellate Court ought to have held that the only grounds to determine the issue of qualification for elections are those provided by Secton 177 and 182 of the 1999 Constitution.

    However, Senator Ngige and his party are contending through the Tribunal, to the Appeal Court and now the Supreme Court that Obiano is not qualified to contest the governoship election , having ‘submitted a forged document to INEC ‘ as part of his prequalification.

     

  • Court orders release of ex-student activist’s result 15 yrs after graduation

    The Supreme Court last Friday ordered the release of the academic record and degree of a former student activist, Olarenwaju Akinola, fifteen years after completing his study at the University of Ilorin.
    In a unanimous judgement, delivered by Justice Peter-Odili,the court dismissed the appeal filed by the University of Ilorin against the judgement of Court of Appeal, Ilorin, delivered on June 8, 2007 in the case involving Akinola and the University.
    The Court of Appeal, Ilorin had earlier upheld the judgement of the Federal High Court, Ilorin, delivered on June 21, 2006, which declared illegal and unconstitutional, the withholding of Akinola’s academic record and degree.
    In its judgement delivered by Late Justice Chukwura Nnamani, eight years ago, the Federal High Court declared that Olanrewaju Akinola’s academic record and degree should be released forthwith.
    It also awarded the sum of Seven Million Naira (N7,000,000) as exemplary damages.
    The Supreme Court, had on June 6, this year unanimously dismissed in its entirety, the appeal filed by UNILORIN against a related case involving another former student activist of the University, Rasheedat Adesina, who like Akinola, had earlier won her case both at the Federal High Court, Ilorin, and Court of Appeal, Ilorin.
    The Federal High Court in the judgement delivered on June 21, 2006 by Late Justice Chukwura Nnamani had ordered that her academic records and degree should be released. The court also awarded the sum of Five Million Naira (N5,000,000) as exemplary damages.
    Akinola and Rasheedat Adesina had completed their courses of study since 1999 and 2001 respectively but the University withheld their academic records and degrees over their alleged involvement in the students unionism.

  • Supreme Court clears Suswam of Certificate forgery allegation

    Supreme Court clears Suswam of Certificate forgery allegation

    •Upholds his governorship mandate

    The Supreme Court yesterday cleared the Benue State Governor, Gabriel Suswam of allegations of certificate forgery brought against him by a former governorship aspirant of the Peoples Democratic Party (PDP, Mr. Terver Kakih.

    The five-man panel of the Supreme Court, led by Justice Suleiman Galadima,   in a 62-page    judgment unanimously held that Kakih’s appeal lacked merit and consequently threw it out.

    The court upheld the concurrent judgment of the Federal High Court Makurdi delivered on July 11, 2012, as well as the Court of Appeal Makurdi which had on March 5, 2013, dismissed the case.

    Kakih, who lost the January 9, 2011 governorship primaries by six votes to Suswam’s 976 votes, had challenged his opponent’s qualification to contest the governorship poll on grounds of alleged forgery of his GCE certificate.

    He also alleged that the ward and state congresses of the party were conducted in violation of the PDP constitution and provisions of the Electoral Act 2010 as amended, and sought the court’s relief declaring him as the duly elected candidate of the party and, therefore, the winner of the April 26, 2011 governorship election in the state.

    The judge held that the appellant    failed to prove beyond reasonable doubt the criminal allegation of certificate forgery against Governor Suswam as required in section 362 of the Penal Code.

    The court declared: “There is no piece of evidence led by the appellant to prove that the 4th respondent (Suswam) presented forged certificate to either 1st (PDP) or 2nd respondent(INEC) or that he swore falsely to an affidavit stating facts relating to his certificate which are false in order to bring his case within the ambit of section 31(5) of the Electoral Act 2010

    Citing Section 131-134 of the Evidence Act, the judge noted that the appellant filed the appeal out of sentiments without any supporting facts or evidence, adding that political sentiments “command no place in judicial deliberations.”

  • Alleged N7b debt: Supreme Court throws out Northern states’ suit against Fed Govt

    Sixteen Northern states yesterday lost in their bid to compel the Federal Government to pay them about N7.039billion as compensation for some assets of  Northern Region taken over by the Federal  Government in 1977.

    The Supreme Court dismissed their suit for being statute barred, having approached the court well beyond the  six years allowed under Section 7 (1) of the Limitation Law, CAP 122 of the Laws of the Federation of Nigeria 1990.

    The plaintiffs   (states created from former North-Western, North-Central, Kano, North-Eastern and Central-Western)  had sued the Federal Government, through the Attorney General of the Federation (AGF), alleging that the Federal Military Government forcefully took over the assets owned by the defunct Northern States Marketing Board (NSMB), using Decree No. 29 of 1977.

    The states as currently  constituted are: Adamawa, Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Sokoto, Taraba, Yobe and Zamfara.

    They said that  following the takeover of the assets, the then Supreme Military Council assured them that the Federal  Government would pay for the assets of the NSMB and assets of other commodity boards so acquired.

    The states exhibited various documents some of which were correspondence between them and the Federal Government. They said the Federal Government, as at July 27, 1983, admitted owing them N10.3 million which when converted using the prevailing exchanging rate (N150.00 to $1) was put at N3 billion.

    They further claimed that the central government owed them an  additional N3.9 billion being the current equivalent of the alleged undisputed claim of N13 million which is the  value of some moveable properties and cotton store complexes taken over by the Federal Government.

    The states also tendered copies of demand notices where they threatened to go to court, if the alleged debt was not liquidated. The last one was dated November 1, 2010

    The AGF objected to the court hearing the case that the claim was statute barred by virtue of Section 7(1)(e) of the Limitation Act.

    Justice Mary Peter-Odili, who prepared the lead judgment, but read yesterday by Justice Olukayode Ariwoola, held that since the plaintiffs stated that the Federal Govrnment admitted owing them via a letter dated July 27, 1983, they should not have delayed up to 2011 before filing the suit.

    She upheld the AGF’s argument that the cause of action had been caught by the statute of limitation and thereby denying the court the jurisdictional powers to hear the case. She held that the plaintiffs ought to have instituted the suit since 1983 when it said the Federal Government admitted indebtedness.

    “The jurisdiction of this court has been effectively ousted, the cause of action having expired after six years of its accrual, computed form July 27, 1983. Another way of saying it  is that this action as currently constituted and initiated on February 22, 2011 is statute barred and therefore, the jurisdiction of this court has been effectively ousted by the operation of Section 7 (1)(e) of the Limitation Law, CAP 122 of the Laws of the Federation of Nigeria 1990.

    “The ensuing conclusion is that this suit lacks competence and it is hereby struck out. There is no order as to cost,” the court   held.

    Justices Aloma Mukhtar, Ibrahim Tanko Muhammed, Muhammed Muntaka-Coomassie, Nwali Sylvester Ngwuta, Ariwoola, Clara Bata Ogunbiyi  agreed with the lead judgment.

  • Supreme Court has no direct appellate jurisdiction on lpdc’s decisions

    In his brief of argument and further oral adumbration thereof, the Hon. Attorney General of the Federation, Mr. Mohammed Bello Adoke, SAN, as an Amicus Curiae made submission that the Supreme Court has jurisdiction to hear any appeal including the instant appeal filed directly against the direction of the LPDC despite the recent decision of the court in Jide Aladejobi v. Nigerian Bar Association. He conceded that under section 12 of the Legal Practitioners Act 1975 (Decree No.15 of 1975 (Principal Act), an appeal against the direction of the LPDC could only lie to the Appeal Committee of the Body of Benchers. That was the law also under the 1990 LFN. The position, he stated, changed when the Legal Practitioners (Amendment) Decree No.21 of 1994 was promulgated.

     

    In its presentation both written and oral, before the court, the Nigerian Bar Association (NBA) represented by its Chairman, Mr. Okey Wali, SAN, as an amicus curiae, made a comprehensive submission that the question raised in the issue under consideration must be answered in the affirmative, that the court has jurisdiction to hear and determine appeals from the Legal Practitioners Disciplinary Committee (LPDC) as the law stands presently and going by the decision of the court in Okike’s case (supra) which was predicated on the provisions of Section 12 subsections [6] and [7] of the Legal Practitioners Act, Cap 207 of the Laws of the Federation of Nigeria, 1990 as amended by the Legal Practitioners (Amendment) Decree No 21 of 1994.

     

    On the whole, the Court held that it finds it very difficult to depart from or overrule its earlier stand on Aladejobi’s case. The Court further held that no two laws or provisions of an enactment or enactments on same subject which are in conflict that shall be allowed to co-exist. The Court held further that the view that the provisions in the 2004 Laws of the Federation relating to the disciplining of erring Legal Practitioners as contained in Cap L11, LFN, 2004 are the ones that will regulate appeals from the directions of the Legal Practitioners, Disciplinary Committee of the Body of Benchers. That if the Appeal Committee is not in existence as argued by some of the counsel involved in the appeal, it is for the concerned Body, i.e. the Body of Benchers to respect and implement the provision(s) of the 2004 LFN, relating to appeals emanating from the LPDC. The Court still held that the Supreme Court lacks jurisdiction to entertain appeals direct from the directions of the LPDC. The issue raised suo motu by the court on 22nd October, 2013, and now fully addressed by learned counsel for the respective parties and the amicus curiae, in relation to whether it has jurisdiction to entertain appeals direct from the directions of the LPDC in view of its earlier decision in the case of Jide Aladejobi v Nigerian Bar Association, decided on 12th July, 2013, now reported in (2013) 15 NWLR (PT.1376) 66); (2013) LPELR-20940 SCs, and in some other Law Reports, was resolved, in line with the decision taken in ALADEJOBI’s case, that is the court lacks jurisdiction to entertain appeals direct from the Directions of the Legal Practitioners’ Disciplinary Committee (LPDC), pursuant to the provisions of the Legal Practitioners’ Act, Cap L11, Laws of the Federation of Nigeria, (LFN), 2004.

    Consequently, the pending appeal in the court, filed by Mr. Akintokun was regarded as a dead horse. The appeal was held to be incompetent and it was stuck out.

     

    Edited by Lawpavillion

    LawPavilion Citation: (2014) LPELR-22941(SC)

  • Supreme Court has no direct appellate jurisdiction on lpdc’s decisions

     
    IN THE SUPREME COURT
    HOLDEN AT ABUJA
    ON FRIDAY 16TH MAY, 2014

    Before their lordship

    MAHMUD MOHAMMED, J.S.C.
    IBRAHIM TANKO MUHAMMAD, J.S.C.
    JOHN AFOLABI FABIYI, J.S.C.
    SULEIMAN GALADIMA, J.S.C.
    MARY UKAEGO PETER-ODILI, J.S.C.
    MUSA DATTIJO MUHAMMAD, J.S.C.
    KUDIRAT OLATOKUNBO KEKERE-EKUN, J.S.C.
    Between

    ROTIMI WILLIAMS AKINTOKUN
    Appellant

    And

    LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (LPDC)…

    Respondent

    Lead Ruling by Justice Muhammad

    This interlocutory ruling stemmed from the appeal filed by Mr. Rotimi Williams Akintokun, the appellant, which he filed sometime in April, 2006. From the record of appeal before the Court, Mr. Akintokun, a legal practitioner, was practicing under the name and style of “ROTIMI WILLIAMS AKINTOKUN AND COMPANY” of 75B, Coker Road, Ilupeju, Lagos. The complaint levied against Mr. Akintokun emanated from a petition written against him to the Nigerian Bar Association [NBA] by his clients, the Ogunesu Family of Ule Ogunesu, 4 Olubi Street, Itundegun, Ikorodu, Lagos State. The clients alleged in their petition that Mr. Akintokun committed acts of professional misconduct in that while acting as their solicitor, he deliberately misled them regarding an alleged acquisition of their land by the Lagos State Government. That he failed to carry out his clients’ instructions to promptly move against adversaries in respect of the land. He also caused the land to be under-surveyed with intent to cheat his clients. That he went further to sell the land without any authorization and contrary to the instructions of his clients. That he employed extra-judicial methods while pretending to be carrying out the instructions of his clients. On the 4th day of April, 2006, after completion of hearing, the Legal Practitioners Disciplinary Committee [LPDC] of the Body of Benchers delivered its Direction in which it directed the Chief Registrar of the Supreme Court to strike off the name of Mr. Akintokun from the Roll, as a legal practitioner in Nigeria. Mr. Akintokun was dissatisfied with the direction of the LPDC and he lodged his appeal to the Supreme Court.

    Parties to the appeal filed and exchanged briefs of argument. The appeal was slated for hearing on the 22nd day of October, 2013. On the hearing date, the panel, headed by Onnoghen, JSC; raised the issue, suo motu; whether the Honourable Court had the jurisdiction to hear an appeal direct from the LPDC, in view of the court’s recent decision in ALADEJOBI V NIGERIAN BAR ASSOCIATION. Appeal No.SC.121/2011, delivered on the 12th day of July, 2013 (now reported in (2013) 15 NWLR (PT.1376) 66); (2013) LPELR-20940 SC. Some arguments were proffered before the panel by each of the counsel for the respective parties, both asking the court to depart from its decision given earlier in Aladejobi’s case. The panel exercised its discretion and fixed the 13th of January 2013, for the issue raised to be heard by a full court, consisting of a seven member panel. That is how the present panel which took arguments from the parties came about. It is to be noted that the Hon. Attorney General of the Federation and the President of the Nigerian Bar Association were invited by the Court to serve as Amicus Curiae with a view to enriching the arguments on the issue.

    In all the four briefs of argument filed by [1] Chief Bolaji Ayorinde, SAN who was for the appellant in the appeal; [2] Mr. Emmanuel C. Aguma for the respondent in the appeal; [3] Mr. Mohammed Bello Adoke, SAN, as Amicus Curiae and [4] Mr. Oke Wali, SAN, Amicus Curiae, the single issue raised for determination is similar and that is:

    “Whether in view of its recent decision in JIDE ALADEJOBI V. NIGERIAN BAR ASSOCIATION, the Supreme Court has jurisdiction to entertain the instant appeal against the direction of the Legal Practitioners Disciplinary Committee.”

    In his submissions, the Learned Senior Counsel for the Appellant in the main appeal, Chief Ayorinde, argued that the decision of the court in the case of Aladejobi v Nigerian Bar Association now reported in (2013) 15 NWLR (P1.1376) 66; (2013) LPELR-20940 SC, to the effect that the Supreme Court does not have jurisdiction to entertain appeal against the direction of the Legal Practitioners Disciplinary Committee was given per incuriam and he insisted the Court to depart from its decision in Aladejobi’s case. He referred to the case of Charles Okike v The Legal Practitioners Disciplinary Committee (No.1) 2005 3-4 SC 49 at 67, where the Court held that it had jurisdiction to entertain an appeal from the Directions of the LPDC. Chief Ayorinde submitted that the decision in Okike (supra) was never overruled in Aladejobi’s case. It was Okike v. LPDC (No.2) (2005) 15 NWLR (Pt.49) 471; (2005) LPELR-2450(SC) which was considered and is clearly different and distinct from Okike No.1. He submitted that the principle of law decided in Okike No.1 is still valid and subsisting and it is the law to be followed as regards jurisdiction of the Supreme Court to entertain appeal from the Directions of the Legal Practitioners Disciplinary Committee.

    It was Chief Ayorinde’s further submission that assuming, without conceding, that the case of Okike No.1 was considered by the Court in Aladejobi’s case, the court was yet invited to set aside its decision in Aladejobi’s case. That it is undisputed that the Appeal Committee of the Body of Benchers is yet to be created up till now and an Appellant cannot appeal to a non-existing body. In relation to the discipline of Legal Practitioners, generally, Chief Ayorinde made copious references to some statutes and case law such as the Legal Practitioners (Amendment) Decree No. 21 of 1994. He argued that the Legal Practitioners Act Cap. L11, Laws of the Federation, 2004, did not take into cognizance the substantial amendments made by the Legal Practitioners Act (Amendment) Decree No.21 of 1994 and it does not represent the law. Chief Ayorinde urged the Court to depart by overruling the decision in Aladejobi’s case in Appeal No SC.21/2011 delivered on 12/07/2013.

    Learned counsel for the respondent in the appeal, Mr. Aguma made his submission in the brief of argument filed by him in respect of this matter that the judgment of the court in Aladejobi’s case (supra), did not take into consideration the court’s earlier decision in Okike’s case (supra) that had completely resolved the matter. The court in that case, he added, reviewed Decree No.21 of 1994 and agreed that it had through a process of amendment created a new section 12[7] of the Legal Practitioners Act that allows appeal from directions of the LPDC to lie direct to the Supreme Court. The Court he argued is vested with jurisdiction to hear appeals directly from the LPDC of the Body of Benchers. He conceded further that there is some difficulty that is created by the Law Reviewers because the amendments legislated in the procedure for the discipline of erring legal practitioners by the Legal Practitioners Act (Amendment) Decree No.21 of 1994 are omitted in the published statute. This omission, learned counsel submitted further, is capable of misleading the most diligent of courts and counsel.

     

  • Supreme Court re-affirms time limit for election petitions

    An application was brought before the Court pursuant to Sections 6(6)(a) and (b), 36(1) and (3), 294(2) of the 1999 Constitution (As Amended); Section 22 of the Supreme Court Act, 2004; Order 2 Rule 28(1) and Order 8 Rule 17 of the Supreme Court Rules, 1999 (As Amended); and the inherent jurisdiction of the Court and seeking for the following reliefs:-

    a) An order setting aside its ruling delivered in open court on 8th day of June, 2012 in Appeal Nos. SC.191/2012 and SC.191A/2012, terminating the said appeals;

    b) An order implementing/enforcing its order/decision delivered on 14th November, 2011 that the petition be heard on the merits;

    c) An order Restoring Appeal Nos: SC.191/2012, SC.191A/2012 terminated on 8th June, 2012 and hearing same on the merits;

    d) Accelerated hearing of this application;

    e) Such further order(s) as this Honourable Court may deem fit to make in the circumstances.

    The background facts leading to this application may be stated as follows:-

    The applicants were the petitioners against the declaration of the 1st respondent as the winner of the Gubernatorial Election which held in Benue State on 26/4/2011 in Petition No: GET/BN/02/2011 filed on 17/5/2011. On 23/6/2011 they applied by motion ex-parte for the issuance of pre-hearing notice under paragraph 18(1) of the 1st Schedule to the Electoral Act (as amended). The Tribunal granted the order and caused pre-hearing conference notice to be issued to all the respondents. The 1st and 2nd respondents by different motions on notice sought orders to set aside the pre hearing notices already issued. While the 1st respondent later withdrew his application which was struck out on 29/6/2011 the Tribunal proceeded to hear the 2nd respondent’s motion which was dismissed on 19/7/2011. On appeal by the 1st respondent, the Court of Appeal set aside the ruling of the Tribunal and consequently decided that leave under paragraph 47 of the 1st Schedule to the Electoral Act is applicable to all applications under paragraph 18(1) of the same schedule and proceeded to dismiss the petition. On an appeal to the Supreme Court in SC.360/2010 delivered on 14/11/2011, the appeal was allowed and the decision of the Court of Appeal was set aside. The Supreme Court then made an order that the petition be heard on the merit. By the time the parties went back to the Tribunal, the 180 days time limit prescribed by the Constitution for hearing and determination of the petition had lapsed and the petition was accordingly struck out.

    On 4th June, 2012 when Appeal Nos. SC.191/2012 and SC.191A/2012 came up for hearing before this court, the 3rd respondent’s counsel informed the court that it had preliminary objection in respect of SC.191/2012. It was agreed by both parties that since Appeals SC.191/2012; SC.191A/2012 and SC.192/2012 are based on the same decision of the court below, the preliminary objection should be taken first and ruled upon. This Court then ruled on 8th June, 2012. This is the ruling that is being sought to be set aside.

    The central focus of the submission by the applicants’ counsel alleged a breach on the Constitutional provision of the right to fair hearing. The senior counsel related copiously to the Constitutionality of Section 285(6) in the light of Sections 4(8), 6(6)(a) and (b) and 36(1). In further establishing his position, learned counsel reiterated that Section 285(6) of the Constitution cannot take away the inherent powers and sanctions of a superior court of justice such as the Supreme Court etc that are not created by statute but by the Constitution. Counsel also submitted the damaging effect of Section 285(6) which is capable of emasculating or destroying the appellants’ Constitutional right of action, Constitutional right of appeal and Constitutional right to fair hearing implicit in Sections 285(2), 285(7), 246(i)(ii), 233(2)(e) (iv) and 36(i) of the said Constitution.

    It is also the submission of senior counsel that in the exercise of its powers under Sections 6(6), 233(1)(2) (e) (iv) and 285(7), the court is not to be inhibited by the provision of Section 285(6) of the Constitution especially if the tribunal gives the judgment within 180 days in compliance with the said Section and appeal arising there from is also decided by the Appellate court within 60 days in compliance with Section 285(7) of the said Constitution. Specifically and with reference made to the case of Alao V. A.C.B. Ltd. (2000) 9 NWLR (Pt. 672) 264 at 296; 2000) LPELR-SC.14/1995(2), the counsel re-iterated the findings therein and added that the provision of Section 6(6)(a) and (b) of the Constitution does not derogate from the general judicial powers of the court to set aside its own decision should injustice or miscarriage of justice be perpetuated; that the Supreme Court will unhesitatingly set aside its decision which is a nullity. Counsel in the result urged that prayers (a) and (c) on the motion paper be granted.

    On behalf of the 1st respondent, submitting to substantiate their course of objection, the 1st respondent’s lead counsel Mr. D.D. Dodo. SAN formulated three issues for determination. Submitting on the 1st issue raised, the 1st respondent’s counsel drew reference to the established principle of law that where an action or an appeal has no practical or utilitarian value to the appellant, even if judgment is given in his favour, the appeal is rendered a mere academic exercise. It was the counsel’s submission that, 180 days having lapsed from the date the original petition was filed and 60 days also having lapsed from the date of delivery of judgments by the Court of Appeal which judgments were appealed against in Appeals SC.191/2012 and SC.191A/2012, the two appeals have lapsed; that with the substantive appeals which gave rise to the present application having lapsed therefore, the application itself has become academic and bereft of any live issue consequent upon which the court now lacks the jurisdiction to entertain the application which should determine only live issues. It was the contention of counsel that the court should decline jurisdiction by reason of the Constitutional operation.

    In further submission, the learned counsel considered issues 2 and 3 together and stressed in strong terms the position taken by the court on the finality of its decisions, in a number of cases, which does not however extend to or include the power to sit on appeal over its decisions. Considering the decisions of the court, it was the counsel’s contention that the application did not satisfy any of the exceptional circumstances to warrant the honourable court interfering with its well considered decision delivered 8th June, 2012. The counsel on the totality therefore impressed upon this court to dismiss the application as lacking in merit.

    In opposing the motion also, the 2nd respondent’s counsel submitted that the court does not as a general rule have the jurisdiction to set aside its own judgment except on satisfaction of certain stringent conditions as set out in the case of Igwe V. Kalu (2002) 11 NWLR (Pt. 787) P. 435; (2002) LPELR-SC.26/1996 that the applicants at hand have failed to satisfy any of the conditions enumerated in the said authority to warrant setting aside the Ruling of the court delivered 8th June, 2012.

    In further submission, counsel re-echoed that the order of the court made 14/11/2011 to hear the petition denovo has no effect whatsoever because it was made after the 180 days within which the tribunal was to hear and determine the applicants’ petition filed 17/5/2011, which time expired on 12/11/2011. On the totality of his submission the counsel concluded that the applicants have failed to satisfy the conditions that will warrant this court to set aside its ruling delivered 8th June, 2012; he therefore urged that the application be dismissed.

    While adopting the submissions by the 1st and 2nd respondents, the learned counsel for the 3rd respondent Mr. Okutepa, SAN centered the totality of his argument on Order 8 rule 16 of the rules of the court which empowers the court to set aside its own decision; that in the absence of any reason given for the setting aside of the judgment, the counsel in summary also called for the dismissal of the application as a sheer abuse of court process.

    In considering the application, the Court noted that the crux of the application was centered on the 1st relief which sought an order setting aside the ruling delivered 8th June, 2012 and that the main issue for determination in this application therefore was:-

    “Whether in the circumstances of this case the applicants have, as a matter of law, satisfied the conditions to warrant this court, setting aside its Ruling delivered on 8th June, 2012.”

    The Court stated that Order 8 Rule 16 of the rules of court is specific in stating that the court has no jurisdiction to set aside its decision, Ruling/Judgment if properly made in the exercise of its powers and jurisdiction. The Court further stated that it was rightly submitted by the learned counsel for the 1st respondent, and the court has re-affirmed the finality of its decision in a plethora of cases and also held times without number that its inherent power to set aside its own decision, when same is later found to be a nullity or obtained by fraud, does not extend to include the power to sit on appeal over its judgment/ruling. This principle of law the Court stated was well entrenched in the case of Igwe V. Kalu (2002) 11 NWLR (Pt. 787) P. 435; (2002) LPELR-SC.26/1996. The Court held further relying on the above case that notwithstanding the above principle, there is also a rider or a caveat which holds secure that in appropriate cases, it is expedient that the court, in the exercise of its inherent powers, can set aside its Ruling or judgment provided the circumstance calling for such order has satisfied the stringent conditions that the judgment or ruling is a nullity; that such decision was obtained by fraud; and that the court was misled in delivering the said judgment or ruling.

    The Court noted that the appropriate question to pose at that juncture was, does the applicants’ application before the Court fall within the situational circumstances and the decided authorities? The Court further noted that it is for instance expedient to restate that the totality of the applicants’ averments in their supporting affidavit, only allege an “error” on the part of the court and not lack of competence in delivering the Ruling of 8th June, 2012. The Court held that with reference made to the conditions set out in the case of Igwe V. Kalu (supra), it is evident that for the court to set aside its judgment, the decision must have been a nullity. In other words it must have been made by the court either without statutory jurisdiction, or when a condition precedent for the court to assume jurisdiction has not been fulfilled. An erroneous judgment however, is one made within the court’s competence and therefore cannot be branded as a nullity.

    The Court stated that the affidavit in support of the applicants’ motion did not indicate that the court was misled into giving its ruling, or that there was the absence of jurisdiction on its part in entertaining the preliminary objection that culminated in the said ruling of 8th June, 2012. It was not also disclosed that the ruling sought to be set aside was obtained either by fraud or deceit.

    The other arm of the applicants’ view-point for consideration was the submission relating Section 285(6) and (7) of the Constitution which learned senior counsel argued constituted encroachment on the Independence of the judiciary and a denial of right of fair hearing to the determination of the applicants’ petitions.

    The Court stated that the Constitutional mandate and also its enforcement were well pronounced and enunciated in various judicial authorities by the court wherein imposition is placed upon the tribunal to deliver its judgment within 180 days from the date of filing a petition. The Court further stated that prominent among such authorities is the case of ANPP V. Goni (2012) 1 NWL R (Pt.1298) P.147 at 181; (2012) LPELR-SC.1/2012 (Consolidated), which affirmed the immutability of the 180 days instituted in Section 285(6). The Court held that the jurisdictional competence of the tribunal under Section 285(6) cannot by any reason exceed the 180 days allotted. It remains sacrosanct and can neither be added to nor subtracted from.

    On the whole, the Court held that the Constitutional effect of Section 285(6) and (7) had been well pronounced upon by the court times without number, in a plethora of authorities. The Court further held that the subsequent recurrence of suits filed and seeking to overreach the Constitutional interpretation of the Section thereof was of great concern. The Court stated that Clarion calls are made in loud and clear terms that there must be an end to litigation. The Court noted that it is unfortunate that the call appears as if it is a lone voice sounding only in the wilderness and not within human hearing. Decisions in case laws are meant to speak volume both in the given situation and for future guidance. Counsel was well advised to desist from filing unnecessary suits which are merely academic and yielding no benefits but mere waste of quality time. The Court held that the application at hand is purely academic and therefore frivolous, vexatious and an abuse of court process. Same was thereby refused and dismissed. The Court awarded punitive costs against the applicants’ counsel and it is assessed at N1,000,000.00k in favour of each set of respondents.

     

    Edited by LawPavillion

    LawPavilion Citation: (2014) LPELR-22882(SC)

  • VAT: Why Lagos lost at Supreme Court

    VAT: Why Lagos lost at Supreme Court

    The Supreme Court has ruled in the case of Lagos State vs Attorney-General of Federation. A lawyer and Fellow of the Chartered Institute of Taxation of Nigeria, Chukwuemeka Eze, analyses the verdict.

    On April 11, the Supreme Court struck out the suit instituted by the Lagos State government in 2009 challenging the constitutionality of the Value Added Tax Act (VATA), which vests in the Federal Inland Revenue Service the mandate to collect tax indirectly from consumers of goods and services except those expressly exempted under VATA.

    Lagos State in its quest to increase its internally generated revenue had loathed the enactment and implementation of the VAT by the Federal Government through the Federal Inland Revenue Service (FIRS). Section 40 of VATA provides that:

    “Notwithstanding any formula that may be prescribed by any other law, the revenue accruing by virtue of the operation of this Act shall be distributed as follows-

    (a) 15 per cent to the Federal Government;

    (b) 50 per cent to the state governments and the Federal Capital Territory(FCT), Abuja; and

    (c) 35 per cent to the local governments:

    Provided that the principle of derivation of not less than 20 per cent shall be reflected in the distribution of the allocation amongst states and local governments as specified in paragraphs (b) and (c) of this section.”

    From this provision, it is evident that the 36 states  and the FCT will share 50 per cent of the VAT collections while 768 local government councils will take 35 per cent. Of course, the Federal Government will take 15 per cent.

    Considering that Lagos is the economic hub of Nigeria hosting about 70 per cent of non-oil economic activities in Nigeria, including industrial output, in the Lagos corridor, Lagos State is convinced that if it can wrestle the collection of VAT from the Federal Government, then it will not need the monthly allocation from the Federal Accounts Allocation Committee to administer the state. Without VAT, it is currently earning about N20 billion per month as internally generated revenue.

    Lagos sought to take comparative advantage of its commercial status, hence its challenge of VATA. A little digress will show that Lagos State had floored the Federal Government last year on the issue of whether it was the Federal Government through the Nigeria Tourism Development Corporation (NTDC) or a state government should regulate the operation of hotels or hospitality centres within a state.

    The Supreme Court had resolved the case then in favour of Lagos State government. Earlier, the state had in 2009 enacted the Hotel Occupancy & Restaurant Consumption Law (HORCL), which places consumption tax of 5 per cent on personal services enjoyed in a hotel or restaurant or event centre. Such services include food and drinks. The argument by experts that this consumption tax contained in the HORCL is similar to VAT, which is also 5 per cent of the value of goods supplied or service rendered, did not deter the Lagos State government in the implementation of the law. It was further argued by experts that consumption tax charged by Lagos State was akin to the moribund sales tax, which was declared illegal and unconstitutional by the courts in two notable cases.

    In Mama Cass Restaurant Limited & 2 Ors. v. Federal Board of Inland Revenue and Attorney General of Lagos State, reported in Vol. 2 of Tax Law Report, the Federal High Court in 2006 decided that remittance of consumption tax should be made to FIRS. In the earlier case of Aberuagba v. A.G. Ogun State, reported in (1985) I Nigeria Weekly Law Report Part 3, page 260, the Supreme Court had decided, in a case involving collection of sales tax on liquor brought into Ogun State during the 2nd Republic, that where there are identical laws passed by the National Assembly and a state House of Assembly, it would be more appropriate to invalidate the identical law passed by the state House of Assembly on the ground that the law passed by the National Assembly has covered the whole field of that particular subject matter.

    From the above background, one can see that many battles have been fought in many courts as to which law between the Federal and the state should be obeyed by the citizens when both of them have been enacted on the same matter of consumption tax, which is represented by VAT under the federal law.

    After fighting individual and corporate entities on this matter at the Federal High Court and the Court of Appeal, Lagos State decided to go for the Big Masquerade –the Federal Government – so as to settle the matter once and for all.

    Lagos claimed against the Federal Government “that the House of Assembly of Lagos State of Nigeria is the body entitled, to the exclusion of any other legislative body, to enact laws with regard to the imposition and collection of tax on the supply of all goods and services within Lagos State of Nigeria and that the Lagos State of Nigeria, or any agency of the state, is the body entitled, to the exclusion of any other body, to assess and collect such tax, and that the revenue of the Lagos State government has been and continues to be affected by the enforcement of the provisions of the Value Added Tax Act, Cap V1, Laws of the Federal Republic of Nigeria, 2004 (hereinafter referred to as ‘The VAT ACT’.”

    The state sought the following reliefs:

    “A declaration that the Value Added Tax Act Cap V1 Laws of the Federal Republic of Nigeria 2004 is, to the extent that it provides for the imposition and collection of taxes on goods and services in Lagos State (and other states of the federation), outside the legislative competence of the National Assembly and is therefore, unconstitutional, null and void and of no effect whatsoever.

    A perpetual injunction restraining the Federal Government of Nigeria by itself, its ser- vants or any of its agencies from continuing to give effect to the provision of the said Value added Tax Act to impose and collect taxes on goods and services within the Lagos State of Nigeria.”

    The Federal Government instead of confronting Lagos frontally, by going into the merits of the case, filed a preliminary objection on the grounds that (a) the cause of action relates to the acts of a federal organ and cannot form the basis of invoking the original jurisdiction of the Supreme Court, which requires that the Supreme Court’s original jurisdiction can only be invoked in disputes arising between a state and the Federation or between states; (b) that the entire suit constitutes an abuse of court process and should be struck out.

    The Supreme Court found that the thrust of the claim of Lagos State are encapsulated in the following paragraphs:

    “… the Lagos State Government is entitled, to the exclusion of any other body, to collect any tax charged on the supply of all goods and services within the Lagos State of Nigeria under any law passed by the Lagos State House of Assembly and no other body or Government is entitled to a share of such tax may be collected.”

    “The Federal Government continues, through it agents, to administer the Value Added Tax Act and to assess and collect tax thereunder with regard to the supply of goods and services within the Lagos State of Nigeria and within the territories of other States and distribute such tax in accordance with the fee sharing formula.”

    The Supreme Court painfully came to a conclusion that the claim of Lagos relates to the revenue of the Government of the Federation, consequent upon which the taxes one of its agencies levies and/or seeks the interpretation of the Constitution as to how the operation of the Constitution affects the Federal Government or any of its agencies, is at the wrong court hence the Court declined jurisdiction.

    This means that the matter that Lagos filed at the Supreme Court should have been properly filed at the Federal High Court, which is the court cloaked with exclusive jurisdiction to determine disputes relating to the revenue of the Government of the Federation. Ultimately, the Supreme Court declined jurisdiction and struck out the case of Lagos State Government. What will be the next move of LASG? Is the VAT war over?

    It seems but with Lagos, one can never be too sure of anything. This reminds me of the title of one of those books I read in the 1980s: Lagos Na Waa, I swear!