Fayemi trounces Oni

A full panel of the Supreme Court, in Abuja, yesterday threw out, in limine, the appeal by former governor of Ekiti State, Eng Olusegun Oni, seeking to unseat the incumbent, Dr Kayode Fayemi of the Action Congress of Nigeria, ACN. The apex court, in a unanimous decision, held that it had no appellate jurisdiction to pronounce on the merit of the appeal brought by Oni and that doing otherwise would amount to rewriting the constitution.

Oni had appealed against the decision of the Court of Appeal, Ilorin, which nullified his election and on which basis he was sacked and Fayemi sworn into office as governor. He had among others, prayed the apex court for an order setting aside the judgment. Oni had hinged his appeal on the grounds that the October 15, 2010 judgment was delivered in breach of his right to fair hearing.

He had also argued that the suspended President of the Court of Appeal, Justice Ayo Salami, who constituted and presided over the panel and also wrote the lead judgment of the Appeal Court that sacked him from office, had close affinity with Senator Bola Tinubu, the alter ego of Fayemi’s party, the ACN. He said: “Bias or likelihood of it makes a decision a nullity and is therefore a sufficient ground for the lower court to set aside its own judgment.”

However, in a preliminary objection, Fayemi, through his counsel, Olusola Baiyashea, said the Supreme Court did not have the jurisdiction to hear the appeal. Fayemi submitted that going by the reports of the National Judicial Council (NJC) which investigated the allegation, Salami and other judges of the appellate court which sat over the matter have been exonerated; hence the allegation had become irrelevant to the instant case.

He also argued that the reliefs sought by the appellant emanated from the governorship election tribunal which case should terminate at the Court of Appeal. He submitted that the court had no jurisdiction to entertain the appeal, being an appeal emanating from the decision of the court below in governorship election petition of Ekiti State arising from the governorship election of 2007 to which Section 246 (3) of the 1999 Constitution is applicable. He also submitted that there was no valid appeal before the court.

Delivering judgment in the matter yesterday, the apex court specifically held that the main goal of the appeal by Oni was to secure its order unseating the incumbent governor, Dr Fayemi, by pronouncing on the merit of the gubernatorial election petition brought before it when he knew that section 246 (3) of the1999 constitution vested the Court of Appeal with powers of pronouncing with finality on such case. The summit court said it was not deceived by the fraudulent garb worn on the case to look like one seeking a review of the lower court decision on the account of breach of fair hearing.

Justice Nwali Sylvester Ngwuta, who delivered the lead judgment, consequently agreed with Fayemi’s legal team’s argument that the appeal, having emanated from the decision of the Court of Appeal, in a governorship election dispute over an election held in 2007, the apex court could not hear it by virtue of the finality clause vested in the intermediate appeal court by virtue of Section 246(3) of the Constitution.

According to him, “the appellants’ entire case, when stripped of its extravagant build-ups and reduced to its proper frame, is simply an invitation to rely on Section 36(1) of the 1999 Constitution to strip the ruling of the Court of Appeal of the finality granted to it by Section 246(3) of the same Constitution. “In other words, the appellants want us to rely on Section 36(1) of the Constitution 1999 to invalidate or render inoperative, the finality clause in Section 246(3) of the same Constitution.

“In diverse decisions on appeals relating to Section 285(7) of the Constitution (as amended) this court has constantly declined to derogate from, close its eyes to, depart from, modify or set aside expressly or by implication, a provision of the Constitution under any guise or pretext. “Any derogation from one section thereof in preference to another section is not only extraneous to the Constitution, but a violation of the solemn oath undertaken by all judges to defend and protect it. “The court does not hunger after jurisdiction. It can expound, but should not under any circumstance, such as the one presented in this case, expand its jurisdiction.

“The court has no jurisdiction to hear the appeal and consequently, I sustain the 1st-2nd and 3rd-6th respondents’ preliminary objection on want of jurisdiction.

The appeal is accordingly struck out.” The other six members on the panel that heard the appeal took turn to agree with the lead judgment. Former Chairman of the ruling Peoples Democratic Party (PDP), yesterday said that the party would have to agree with the judgment simply because the court which made pronouncement on the case was a final court of the land. He however said that the ruling party and other Nigerians who had been aggrieved in the past over the inability of the apex court to redress injustices done by the Court of Appeal would take succour in the amendment to the 1999 constitution which has now made the Supreme Court the final court of the land on gubernatorial election petitions.