Olanipekun: Appeal Court Can’t Correct Clerical Errors in Kano Guber Judgment

The dust raised by the contradictions contained in the Certified True Copy (CTC) of the Court of Appeal judgement in the Kano State governorship election has yet to settle as Chief Wole Olanipekun, SAN, counsel to the Kano State governor, Kabir Yusuf, has insisted that the appellate court cannot correct what it claims to be mere clerical errors, contrary to the court’s position.

Olanipekun said yesterday that the appellate court lacked the powers to effect any correction in the said judgement, having become functus officio in the case.

The appellate court had in a unanimous judgement delivered on November 17 dismissed Yusuf’s appeal against the ruling of the Kano State Governorship Election Petition Tribunal, which had sacked him, for lacking merit.

But in the CTC released to lawyers, the majority judgement delivered by Justice Moore Abraham Adumein in one breath gave judgement in favour the appellant and, in another, favoured the first respondent, APC.

Adumein had read in the open court that the “appeal lacks merit and is hereby dismissed”. But the CTC read, in part, that “the judgement of the tribunal in… is set aside”. The contradictory positions led both parties to claim victory at the appellate court.

While Deputy Chief Registrar, Court of Appeal, Kano Judicial Division, wrote to parties to return the CTC for correction, the Chief Registrar, Mohammed Bangari, noted that the errors in the CTC would be effected once parties brought a formal application to that effect.

Bangari also stressed that the errors did not in any way invalidate the judgement of the appeal court.

But Olanipekun pointed out that the appellate court lacked the powers to effect any correction in the judgement having become functus officio in the case.

In a letter to the Deputy Chief Registrar, dated November 23, 2023 and titled: RE: RETRIEVAL OF CERTIFIED TRUE COPY OF JUDGMENT IN APPEAL NO: CA/KN/EP/GOV/KAN/34/2023 – ABBA KABIR YUSUF AND ALL PROGRESSIVES CONGRESS & ORS, the lawyer stated that the appellate court was since November 18 relieved of any authority to act on the judgement.

Olanipekun said the 60 days allowed by law for the appellate court to hear and determine the appeal expired on November 18, and as such the court no longer had the power to correct any perceived error in the judgement.

He stated in the letter, “As officers in the Temple of Justice, we believe we owe the institution, as well as the respected Court of Appeal, a duty to highlight and address some very pertinent issues arising out of your said letter, including, but not limited to:
“Timely Disposal of Appeal: The judgement of the lower Tribunal was delivered on 20th September 2023. By the imperative of Section 285(7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Court of Appeal had only sixty (60) days to ‘hear and dispose’ of the appeal arising from the judgement of the Tribunal. Most humbly, the Constitution applies the word ‘within’ and not ‘from’ the date of the delivery of the judgement of the Tribunal.

“Constitutional Mandate: Further to the above, the Court of Appeal, by the same constitutional dictate, had up until Saturday, November 18, 2023, to ‘hear and dispose’ of the appeal filed by our client (the appellant) to the Court of Appeal against the decision of the Governorship Election Tribunal, sitting in Kano. Several judicial precedents of the Supreme Court and the Court of Appeal itself abound in our Law Reports on this subject, which has now become trite.

“Function of the Court: Assuming without conceding that the judgement has some errors, whether typographical or otherwise, we humbly and dutifully draw your attention to the fact that the Court of Appeal became functus officio in the matter on Saturday, November 18, 2023.”

The letter added, “Any application for correction of errors can only be entertained by the Supreme Court. Section 285(7) of the Constitution earlier referred to becomes very handy and imperative to the effect that the Court of Appeal cannot take any further step in the appeal or subject after the expiration of sixty (60) days.”

Referencing Bangari’s assurance that the error did not in any way invalidate or change the findings and conclusion of the appeal court and that the error would be rectified once parties in the matter filed a formal application to that effect, Olanipekun pointed out that they were not aware that any of the parties had filed any application to correct any error.

The senior lawyer stated, “Even at that, judicial precedents are countless as to the procedure to follow, and which court has jurisdiction to take such an application, after the expiration of the sixty (60) days mandatorily benchmarked by the Constitution.”

Stating that November 23 made it seven days since the delivery of the judgement of the Court of Appeal, Olanipekun reminded the court that out of the 14 days mandatorily prescribed for his client to file his Notice and Grounds of Appeal to the Supreme Court, “he is left with just seven (7) days; and it is only fair that he should be allowed to exercise his constitutional right of appeal without any inhibition, within the fraction of days left for him”.

He reiterated that their response was borne out of a compelling duty and responsibility to the administration of justice, adding that it is their responsibility to draw attention to these salient statutory imperatives.

Copies of the letter were sent to the First Respondent, All Progressives Congress (APC); Second Respondent, Independent National Electoral Commission (INEC); and Third Respondent, New Nigeria Peoples Party (NNPP).

The appellate court had in a unanimous judgement last week dismissed Yusuf’s appeal against the ruling of the governorship election tribunal for lacking merit. The court, in its judgement, held that the candidate of NNPP in the last governorship election in Kano State was not qualified to contest the election.

The appeal court said evidence before it showed that Yusuf was not a member of NNPP at the time he was sponsored by the party to contest the March 18 governorship election in Kano State.

Specifically, the appellate court held that NNPP breached the constitution by sponsoring Yusuf, who was not a member of the party.

Having dismissed Yusuf’s appeal, the appellate court subsequently upheld the judgement of the Kano State Election Petition Tribunal, which declared the APC candidate, Nasiru Gawuna, as the authentic winner of the March 18 poll.

INEC had announced NNPP’s Yusuf winner of the March 18 election, saying he scored 1,019,602 votes to defeat Gawuna, who got 890,705 votes.

However, following APC and Gawuna’s petition, the tribunal held that there was evidence of irregularities and corrupt practices resulting in the cancellation of over 160,000 ballot papers on the grounds that the ballot papers “were not signed or stamped by INEC”.

After the deduction of the over 160,000 votes from Yusuf’s scores, his votes then came down to about 853,939, less than the 890,705 polled by Gawuna.

The tribunal subsequently declared Gawuna authentic winner of the March 18 governorship election.

Dissatisfied with the ruling, Yusuf approached the Court of Appeal to challenge his sack by the tribunal.

The appellate court, in its judgement last Friday, dismissed the appeal on the grounds that the appellant did not provide credible and cogent reason for it to upturn the judgement of the tribunal.

The three-man panel of the court held that every political party should maintain the register of its members, adding that the appellant, to his own detriment, did not submit his NNPP membership register or even tender his statement on oath regarding his membership of the party.

The court said the 1999 Constitution made it mandatory for a political party to have a membership register and submit the same to INEC and the tribunal when needed. It added that Yusuf’s name was not in the NNPP membership register.

The appeal court held, “As rightfully found, Yusuf Abba was not a member of the NNPP at the time he was purportedly sponsored by his party and he was not qualified to contest the March governorship eection.

“If you claim to be a member of a political party, is it not logical for you to say so by yourself and not by proxy? Even though membership of a political party is an internal affair, a political party cannot be permitted to circumvent or breach the provisions of the 1999 Constitution.

“The tribunal was wrong not to have disqualified the appellant. Therefore, the failure of the appellant and the NNPP to comply with the 1999 Constitution is fatal to their election. All issues in this appeal are dismissed and the judgement of the tribunal is affirmed.”

But the CTC of the majority judgement dated November 21 and signed by one of the court’s registrars, Ibrahim Umar, read, in part, on page 67,

“I will conclude by stating that the live issues in this appeal are hereby resolved in favour of the first respondent and against the appellant.

“In the circumstances, I resolve all the issues in favour of the appellant and against the first respondent. Thereby, I find no merit in this appeal, which is liable to be and is hereby dismissed.

“The judgment of the tribunal in Petition No: EPT/KN/GOV/01/2023 between All Progressives Congress (APC) versus Independent National Electoral Commission (INEC) and 2 others delivered on September 20, 2023 is hereby set aside.

“The sum of N1 million is hereby awarded as cost in favour of the appellant and against first respondent.”

The contradictions generated huge controversies leading to protest in Kano by supporters of NNPP.