Reason Why Appeal Court Can’t Correct Clerical Errors In Kano Governorship Judgment – Olanipekun Makes Revelation

Reason Why Appeal Court Can’t Correct Clerical Errors In Kano Governorship Judgment – Olanipekun Makes Revelation

The controversy surrounding the inconsistencies in the Certified True Copy (CTC) of the Court of Appeal judgment on the Kano State governorship election remains unsettled. Chief Wole Olanipekun, SAN, representing Kano State Governor Kabir Yusuf, maintains that the appellate court lacks the authority to rectify what it deems clerical errors, contradicting the court’s stance.

Olanipekun asserted yesterday that the appellate court has become functus officio in the case, implying it no longer has the jurisdiction to make corrections in the judgment. Concerns are rising that the ongoing political turmoil in Kano State, fueled by the discrepancies in the CTC, might escalate tomorrow. Stakeholders from both the All Progressives Congress (APC) and the New Nigeria Peoples Party (NNPP) in the state have announced plans for separate rallies to defend their respective positions.

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The unanimous judgment delivered on November 17 had rejected Yusuf’s appeal against the Kano State Governorship Election Petition Tribunal’s ruling, which had ousted him for lack of merit.

However, the CTC, as released to lawyers, revealed that Justice Moore Abraham Adumein’s majority judgment favored both the appellant and the first respondent, APC, causing further confusion.

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.

In the ongoing controversy over the Certified True Copy (CTC) of the Court of Appeal judgment in the Kano State governorship election, Chief Wole Olanipekun, SAN, insists that the appellate court lacks the power to correct alleged clerical errors.

Olanipekun, counsel to Kano State Governor Kabir Yusuf 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.

He argues that the court is functus officio in the case since the 60 days allowed by law for the court to hear and determine the appeal expired on November 18.

He contends that the court no longer has the authority to correct any perceived error in the judgment.

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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 emphasized that their response was driven by a compelling duty and responsibility to the administration of justice, underscoring their obligation to highlight these crucial statutory imperatives.

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

In a unanimous judgment last week, the appellate court dismissed Yusuf’s appeal against the governorship election tribunal’s ruling, deeming it lacking in merit. The court stated that the NNPP candidate in the Kano State governorship election was not qualified to contest, as evidence indicated that Yusuf was not a member of NNPP at the time of his sponsorship by the party for the March 18 election.

Specifically, the appellate court concluded that NNPP breached the constitution by endorsing Yusuf, who was not a party member. Consequently, the court upheld the Kano State Election Petition Tribunal’s judgment, declaring the APC candidate, Nasiru Gawuna, as the legitimate winner of the March 18 poll.

INEC initially declared Yusuf the winner with 1,019,602 votes, surpassing Gawuna’s 890,705 votes. However, following APC and Gawuna’s petition, the tribunal nullified over 160,000 ballot papers, citing irregularities and corrupt practices. After the deduction of these votes, Yusuf’s count reduced to about 853,939, falling short of Gawuna’s total.

Unhappy with the tribunal’s decision, Yusuf sought recourse in the Court of Appeal, but the appeal was dismissed last Friday. The court reasoned that the appellant failed to provide credible and cogent reasons to overturn the tribunal’s judgment. Additionally, it highlighted the constitutional requirement for political parties to maintain a membership register, which the appellant did not submit, further noting that Yusuf’s name was absent from 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.

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