Sha'aban Appeals the Supreme Court
posted on 25th April, 2010
The battle in the 2007 Kaduna State gubernatorial elections dispute between Sani Sha'aban and Namadi Sambo has moved to the Supreme Court of Nigeria, Abuja.
Justice Aloysius Iyorgyer Katsina-Alu,
Chief Justice of Nigeria
In a suit filed at the apex court by Chief Mike Ahamba (SAN) on March 15th, 2010, Sha'aban is appealing the decision of the Court of Appeal, Kaduna Division of 1st March, 2010 in failing to set aside for being a nullity an earlier judgement of the same Appeal Court (delivered on 6th March, 2009).
Ahamba in two "Appelants' Brief of Argument" submissions identified the grounds for appealing the Supreme Court as premised on the following:
It would be recalled that the Court of Appeal, Kaduna Division on March 1st, 2010 with Justice Kumai Bayang Akaahs presiding threw out Sha'aban's request for the retrial of his appeal into the April 2007 Kaduna State gubernatorial election.
- That the Court of Appeal erred in law by failing to declare the judgement a nullity, an act which amounts to a breach of natural justice and the fundamental Human right of his client. This according to Ahamba happened despite the panel of judges' finding that there were fundamental errors on the part of the Court of Appeal.
- The Court of Appeal misdirected itself and by so doing occassioned a miscarriage of justice, by recognising on the one hand that the application brought before it was competent, yet on the other, failed to apply the law in dealing with it.
- The Court of Appeal abdicated its vires when it refused to be bound by decisions of the Supreme Court, specifically in the cases of Nwabueze vs. Okoye (1988) and that of Yusuf vs. Obasanjo (2003) regarding the interpretation and calculating time of filing the appeal.
According to Ahamba, "It is an act of judicial illegality for any court to ignore or refuse to apply a Supreme Court decision that is relevant to the subject matter of adjudication before it."
- The Court of Appeal erred in law when the panel raised a point of law on jurisdiction already determined by the trial tribunal against which there was no appeal. By so doing, it negated the principle that an appellate Court has no competence to adjudicate on an issue determined by a lower Court save by way of an appeal.
- That the judgement by the Court is ultra vires as it breached the right of fair hearing. Ahamba maintained that the complaint against the judgement was on the basis of nemo judex in sua causa i.e., no person can judge a case in which he or she is party or in which he/she has an interest.
- The Court of Appeal erred in law when it sustained the judgement of the panel delivered without jurisdiction. Ahamba argued that the duty of a court to set aside a judgement that is given without jurisdiction is not discretionary, but mandatory.
This was sequel to the Justice Bulkachuwa panel's earlier dismissal of Sha'aban's original appeal at the Appeal Court on March 6th, 2009. Sha'aban complained against the unconstitutional nature of the Bulkachuwa panel's decision to the President of the Court of Appeal. Following that, Sha'aban's lawyer, Chief Ahamba filed a civil motion seeking the Court of Appeal to set aside the Justice Bulkachuwa panel's judgement, declare the ruling a nullity and retry the appeal.
Hon. Sani Sha'aban
In their ruling delivered on 1st March, 2010, the Justice Akaahs panel that heard motions for and against a retrial recognised the genuineness of the appeal brought before the court. They further acknowledged that the Court of Appeal has been unfair to Sha'aban in the manner his appeal has been handled and dispensed with. In their judgement, they agreed that "the appellants' right to fair hearing was clearly breached".
Even though the Appeal Court found Sha'aban's complaint to be genuine, it took the unusual step of striking out a case that had been adjudged competent and meritorious by the same court.
Ahamba is therefore praying the Supreme Court as follows:
Ahamba in praying the Supreme Court argued that the Court of Appeal "veered away from the complaint of the Appellant's which was that by raising the issue of statute bar in the circumstance in which it did, the panel had descended into the arena of conflict by covering up for a respondent who had been foreclosed by law."
To allow the appeal and set aside the ruling of the Court of Appeal delivered on 1st March, 2010 by the Justice Akaahs panel.
To grant the application of the Appellant and set aside as a nullity the earlier judgement of the Court of Appeal delivered on 6th March, 2009 by the Justice Bulkachuwa panel.
To order the hearing of the appeal No. CA/K/EP/GOV/22/2008 originally filed with the Court of Appeal, Kaduna Division.
Sha'aban has always maintained that he won the 2007 gubernatorial elections in 20 out of the 23 Local Government Areas of Kaduna State, but that victory was overtuned and Namadi Sambo of the PDP was declared winner.
Arc. Namadi Sambo
The Supreme Court will soon commence hearing into the appeal.
Timeline of Sha'aban's Quest for Justice |
April 14th, 2007 - Governorship elections organised by the Independent National Electoral Commission (INEC) in all states of Nigeria,
including Kaduna State.
April 15th, 2007 - INEC declares Namadi Sambo of the Peoples Democratic Party (PDP) winner.
April 15th, 2007 - Sani Sha'aban protests INEC manipulation of election results and is detained in the process.
April 16th, 2007 - Other Kaduna opposition parties that contested the April 14th elections pay solidarity visit and pledge their support to Namadi Sambo and the PDP.
May 15th, 2007 - Sani Sha'aban and the All Nigeria Peoples Party (ANPP) file petition with Election Petitions Tribunal in Kaduna.
October 23th, 2007 - Sambo fails in bid to stop election petition hearing.
April 17th, 2008 - Election Tribunal rules to uphold election of Namadi Sambo, of the PDP as Governor of Kaduna State.
May 2008 - Sani Sha'aban and the ANPP appeal ruling of Election Tribunal at the Kaduna Court of Appeal.
January 7th, 2009 - Hearing at Kaduna Court of Appeal suspended due to court registry mix - up of documents.
February 11th, 2009 - Final briefs on Sha'aba's appeal presented by Mike Ahamba (SAN). Court also struck out motion by Sambo and the PDP pleading with court to throw out Sha'aban's appeal.
March 6th, 2009- Justice Bulkachuwa appeal panel upholds Namadi Sambo's election.
Sha'aban condemns the Bulkachuwa panel's decision as a rape of justice.
May 15th, 2009 - Mike Ahamba (SAN) appeals the Justice Bulkachuwa panel ruling to the President Court of Appeal and the Nigerian Judicial Council (NJC).
June 2nd, 2009 - Federal Court of Appeal, Abuja issues directive for appeal to be retried.
June 17th, 2009 - Appeal retrial proceedings begin in Kaduna.
September 28th, 2009 - Scheduled hearing of motions moved for lack of quorum.
November 30th, 2009 - Court sitting postponed because of Eid-el-Kabir public holidays.
February 10th, 2010 - Hearing into motions for retrial by the Justice Kumai Bayang Akaas panel.
March 1st, 2010 - Appeal Court denies motion for retrial of election appeal.
March 15th, 2010 - Sha'aban files appeal at the Supreme Court of Nigeria, Abuja.
November 1st & 4th, 2010 - Supreme Court, Abuja hearing of appeal.
November 4th, 2010 - Supreme Court dismisses appeal for lack of jurisdiction.