SENATOR ITA SOLOMON ENANG V. OBONG NSIMA UMOH & ORS. (2012)

SENATOR ITA SOLOMON ENANG V. OBONG NSIMA UMOH & ORS.

(2012)LCN/5609(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of January, 2012

CA/C/NAEA/297/2011

Before Their Lordships

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

Between

SENATOR ITA SOLOMON ENANGAppellant(s)

AND

1. OBONG NSIMA UMOH
2. ACTION CONGRESS OF NIGERIA (ACN)
3. THE PEOPLES DEMOCRATIC PARTY (PDP)
4. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)

RATIO

DEFINITION OF THE TERM “OBITER DICTUM”

An obiter dictum is an observation, statement or opinion expressed by a Court in its decision which is not related to the issues submitted to that Court for resolution or determination. It is a view expressed by a Court which does not affect its decision on the issues that arise to be decided in the case. See AKIBU V. OBUNTAN (2000) FWLR (12) 1982; (2000) 13 NWLR (685) 446; ABACHA v. FAWEHINMI (2000) FWLR (4) 533; OWHONBA V. EKPECHI (2003) FWLR (181) 1565. However, whether obiter dictum or dissenting, such observations, opinions or views would not be the decision of the Court in the case and so cannot be and do not amount to a binding authority in respect of the issues decided by the Court. PER GARBA, J.C.A.

THE CARDINAL RULE OF INTERPRETATION OF STATUTES

the law is beyond argument that in the interpretation of statutes, where the words used therein are clear and unambiguous, the court’s only legitimate duty is to give them their ordinary and plain meaning and construe them without any glosses or interpolations. See KALU V. ODILI (1992) 5 NWLR (240) 130 AT 193 – 194; AFRICAN NEWSPAPERS LTD. V. FEDERAL REPUBLIC OF NIGERIA (1985) 2 NWLR (6) 137; ADEWUNMI V. A.G. EKITI STATE (2002) 17 NWLR (743) 706; FAWEHINMI V. I.G.P. (2002) 7 NWLR (767) 606 AT 678. This is what has over the years become known as the literal rule of interpretation in judicial practice and is always enjoined on the courts unless its employment would read to apparent absurdity and inconsistency with the provisions of the statute as a whole. See BUHARI V. YUSUF (2004) 1 EPR 1 AT 53; AWOLOWO V. SHAGARI (1979) 6 – 9 SC 51; IDEHEN V. IDEHEN (1991) 6 NWLR (198) 132;
Another very fundamental and also established principle of interpretation of statutes, but particularly the constitution, is that no section or part thereof should be taken or singled out and isolated for the purpose of finding out the real intention of the Lawmakers in enacting the provisions of the statute or constitution on the subject under consideration in the case of FEDERAL REPUBLIC OF NIGERIA V. OSAHON (2006) 2 SCNJ 348 AT 369 – 370, the Supreme Court had stated the law that:
“The Constitution cannot be interpreted strictly like an Act of the National Assembly. It must be literally interpreted so that every Section therein will have meaning and without ambiguity it being the of all foundation laws in the country. All canons of interpretations will not abate but be employed with great caution.”
Again, in the OJUKWU V. OBASANJO case (supra) the Supreme Court, per Onu, JSC, at page 274 restated and emphasized that:
“In interpreting statutory or constitutional provisions such provisions should not be read in isolation of the other parts of the statute or constitution. In other words, the statute or constitution should be read as a whole in order to determine the intendment of the makers of the statute or constitution. Every clause of a statute should be construed with reference to the con and other clauses of the Act, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter.”
See also OBA OYEYIPO V. OYINLOYE (1997) 2 SC 148 AT 159; LAMBOYE V. OGUNSIYI (1990) 6 NWLR (155) 210; ADISA V. OYINWOLA (2000) 10 NWLR (674) 116 AT 215; ODUTOLA HOLDINGS V. LADEJOBU (2006) 5 SC (PT.1) 83. PER GARBA, J.C.A.

THE LIFESPAN OF THE JURISDICTION OF A TRIBUNAL OVER A PETITION

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant and the 1st Respondent had along with other candidates, contested the election conducted by 4th Respondent on the 26-04-2011 for the Akwa Ibom North East Senatorial District. At the end of the polls, the Appellant was declared and returned as the winner of the election by the 4th Respondent and being aggrieved by the return, the 1st Respondent questioned the election by presenting an election petition before the National and State Houses of Assembly Election Petition Tribunal, sitting at Uyo (to be called the tribunal hereafter). The petition was presented on the 17-05-2011.
The Tribunal suo motu raised the issue of compliance with paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 and after hearing addresses from the learned Counsel for the parties, dismissed the petition on the 08-08-2011 on the ground that it was abandoned. Being dissatisfied with that decision by the tribunal, the 1st Respondent successfully challenged same before this Court by way of an appeal and on the 27-10-2011, the Court allowed the appeal in the following terms:
“This appeal is meritorious and hereby allowed. The judgment of the Tribunal delivered or- the 8th day of August, 2011 is hereby set aside. It is hereby ordered that the petition NO. EPT/AKS/SEN/18/2011 is remitted to the Tribunal for trial.”
When the tribunal sat on the 14-11-2011 differently constituted and the petition remitted for trial by the Court was mentioned, it suo motu raised the issue as to whether the petition was caught up by the provisions of Section 285(6) of the Constitution, 1999 (as altered). Addresses were taken from the learned counsel for the parties and on the 29-11-2011, relying on the decision of the court in appeal No.CA/C/NAEA/257/2011; UDOKPO V. ARCHIBONG, delivered on the 17-11-2011, the tribunal ruled that the time limited by the provisions of Section 285(6) started afresh after the order for trial de novo by this Court.
This appeal is against that decision of the tribunal with which the Appellant was not satisfied.
In line with the Tribunals and Court Practice Directions, briefs of argument were filed by the learned Senior for the Appellant on 12-12-2011 and the learned Counsel for the 1st Respondent, on the 16-12-2011. Although the other Respondents to the appeal, were duly served with the Appellant’s brief and other processes in the appeal, there is no record that they had filed briefs of argument for consideration in the appeal.
In the Appellant’s brief, two issues were formulated for decision in the appeal from the three (3) grounds of appeal contained in the Notice of Appeal. They are:
“(1). Whether the concurring judgment of Tine Tur, JCA which is different from the lead judgment in the unreported case of Udokpo v. Archibong Appeal No. CA/C/NAEA/257/2011 delivered on 17th November, 2011 is binding on the lower Tribunal as the judgment of this Court. (Ground 3).
(2). Whether the lower Tribunal has jurisdiction to hear and determine any petition after the expiration of 180 days from the filing of the petition accorded it by Section 285(6) of the 1999 Constitution as amended under any circumstances (Grounds 1 & 2).”
Two issues were also raised in the 1st Respondent’s brief without an indication from, which of the grounds of appeal, they were distilled. The issues are thus:-
“(A) Whether indeed the concurring judgment of Tine Tur, JCA is of Tine diametrically opposed to and different from the lead judgment of Ndukwe-Anyanwu, JCA in Idongesit Udokpo (supra) so as to make the concurring judgment an obiter, not capable of being relied upon by the Honourable Tribunal in Uyo.
(B) Whether by the authority of the Court of Appeal decision in IDONGESIT UDOKPO V. KENNETH ARCHIBONG (supra) Petition No. EPT/AKS/SEN/18/2011 is still caught up by the constitutional provision of Section 285(6) of the 1999 Constitutional as amended.”
At the oral hearing of the appeal on the 06-01-2012, Mr. Nta A. Nta, Esq., leading other learned Counsel for the Appellant adopted the Appellant’s brief and urged us to allow the appeal and hold that the petition has abated due to effluxion of the period prescribed by the provisions of Section 285(6) of the 1999 Constitution (as altered).
Mr. M.U. Peters, learned counsel, announced appearance for the 1st and 2nd Respondents to the appeal and adopted the 1st Respondent’s brief as the 1st and 2nd Respondent’s brief, urging us to dismiss the appeal and affirm the decision of the tribunal.
Mr. Jacob Akpong, Esq, appeared for the 4th Respondent and said he did not file a brief of argument in the appeal.
The 3rd Respondent was not represented at the hearing even though there was record that it was duly served with Hearing Notice of the appeal’ It filed no brief.
Calm reading of the Appellant’s grounds of appeal 1 and 2 from which the Appellant’s Issue 2 was said to have been formulated, would show that the complaint in them was that the 1st Respondent, s petition was statute barred and that the tribunal had extended the rife of the petition beyond the period limited by the section 285(6). However, the issue 2 was couched in open general terms a decision on which may have the effective of deciding the real grievance of the Appellant.
The Appellant’s Issue 1 was formulated in the form of a conclusion that the concurring judgment of Tur, JCA was different from the read judgment in appeal No. CA/C/NAEA/257/2011. If the learned SAN had already concluded that the concurring judgment was different from the lead judgment in that appeal’ then the answer to the question he appears to pose in the issue is certain in law. The formulation of the issue may be favourable to the Appellant, but the germane issue that clearly arises from grounds of appeal 1 and 2 is as put by the learned counsel in his Issue 1, as set out above.
In the determination of the appeal therefore, I intend to use the Appellant’s Issue 2 and the 1st Respondent’s issue (A) which appear to be more precise op the complaints contained in the Appellant’s grounds of appeal. I may need to say that both issues have been fully argued by the learned Counsel for the parties in their respective briefs.
1st Respondent’s issue (A).The learned SAN for the Appellant had argued the issue as his Issue 1. His submissions are that the judgment of the court in appeal No. CA/C/NAEA/257/2011 Udokpo vs Archibong, delivered on the 17-11-2011 was completely misconceived. According to him, the issues decided in the appeal were (a) applicability of paragraph 18(1) of the 1s’t Schedule to the Electoral Act and (b) an objection as to whether Section 285(6) of the 1999 Constitution (as altered) applies to the Court hearing an appeal after the 180 days had lapsed. Referring to pages 13-14 and 11 – 12 of the judgment, he said the Court had stated that Section 285(6) did not affect the appeal and that the Court had jurisdiction to hear it’ It also stated that the 180 days in respect of the petition started to run from the date it was presented and that after the expiration of the 180 days from the date it was presented, the tribunal had no jurisdiction to hear it by virtue of section 285(6) of the constitution. However, according to the learned SAN, the concurring judgment of Tur, JCA, the relevant portion of which was set out in the brief, was clearly at variance with the lead decision and that the issue was not before the court for determination in the appeal. It was his contention relying on the case of MILITARY ADMINISTRATOR OF EKITI STATE V. ALADEYELU (2007) ALL FWLR (369) 1195, that the comment was made without jurisdiction and so obiter dicta, which was not valid. The case of IBRAHIM V. FULANI (2010) ALL FWLR (508) 261 at 305 among other cases, was cited for the later submission. In further argument, he said the tribunal misunderstood the decision by the Supreme Court in appeal of PROFESSOR S.T. UGBAH V. PDP NO. SC/360/2011 because the issue in the appeal was on paragraph 18(1) of the 1st Schedule to the Electoral Act and not on section 285(6) of the constitution. In addition, he argued that the fact of ordering a retrial does not give life to a dead petition and finally urged us to hold that the tribunal was not bound by an obiter dictum which was not the decision of the court.
On his part, the learned counsel for the 1st Respondent had pointed out that the 1st Respondent’s petition was first remitted back to the tribunal for retrial de novo by this Court on 16-09-2011, but the tribunal dismissed it again and the decision was challenged again in this Court. That it was at the hearing of the second time appeal that the objection was raised that the time for hearing the appeal had lapsed because Section 285(6) of the Constitution prescribed that it was to be determined within 180 days from the date it was filed before the tribunal. Further, that learned Counsel had computed that the 180 days had expired on the 29-10-2011 and that in its judgment, this Court disagreed with the objection, overruled it and held that it had the jurisdiction to hear the appeal. Counsel then said it was important to note that the order for remitting the petition for the second time to be heard de novo, was made on the 17-11-2011 when the 180 days contemplated by Section 285(6) of the Constitution had lapsed and that the portion of the concurring judgment complained about by the Appellant only complemented and edified the lead judgment. He maintained that the concurring judgment was not an obiter but a ratio derived from the issue formulated on the applicability of Section 285(6) of the Constitution and so is the part of the judgment of the Court which has equal force. The case of OLUFEAGHA V. ABDUR-RAHEEM (2010) ALL FWLR (512) 1033 AT 1087 was cited in support of, the submission. It was his contention that the appeal No.CA/C/NAEA|257/2011 is on all fours with the present appeal since they both challenged the jurisdiction of the tribunal to hear the petitions after the expiration of 180 days from the date of filing and so the tribunal was said to be tight in following the decision therein. We were urged to resolve the issue in the 1st Respondent’s favour.
The pith of the complaint in the issue is on the statement or view expressed by His Lordship Tur, JCA in his concurring decision in the appeal No.CA/C/NAEA/257/2011. After agreeing with the conclusions in the lead judgment. His Lordship had opined thus:
“In my view where the court of Appeal has remitted a petition for rehearing or trial de novo, the effect is to recommence hearing or trial afresh as if the 180 days had not yet commence (sic) running. To hold otherwise is to make mockery of the decision of the appeal Court… ”
Because according to the learned SAN, the view was not expressed in the lead judgment and the issue was not before the Court; the view was expressed without jurisdiction. He relied on the case of MILITARY ADMINISTRATOR EKITI STATE V. ALADEYELU (supra) which with due respect is no authority for saying that a concurring judgment cannot contain views, not expressed in the lead judgment with which it agreed. The authority in the statement in that case is that an appeal Court has no jurisdiction to make orders on issues not decided in the judgment appealed against. However, the case of IBRAHIM V. FULANI (supra) is authority that a concurring judgment which differs from the lead judgment only on issues not submitted to the appeal Court for decision, would amount to an obiter. If however it differs on the issues decided in the lead judgment, then it is not a concurring but a dissenting judgment to the lead judgment. An obiter dictum is an observation, statement or opinion expressed by a Court in its decision which is not related to the issues submitted to that Court for resolution or determination. It is a view expressed by a Court which does not affect its decision on the issues that arise to be decided in the case. See AKIBU V. OBUNTAN (2000) FWLR (12) 1982; (2000) 13 NWLR (685) 446; ABACHA v. FAWEHINMI (2000) FWLR (4) 533; OWHONBA V. EKPECHI (2003) FWLR (181) 1565. However, whether obiter dictum or dissenting, such observations, opinions or views would not be the decision of the Court in the case and so cannot be and do not amount to a binding authority in respect of the issues decided by the Court.
Now, the issues submitted to the Court for decision in appeal No. CA/C/NAEA/257/2011 were as follows:
“1. Whether the leave of the tribunal was required before application for the issuance of the pre-hearing Notice could be made (Ground 1).
2. Whether the Lower Tribunal was right in failing to or refusing to follow and apply the binding decisions of the Court of Appeal (Jos Division) in Aliyu Ibrahim Gebi v. Alhaji Garba Dahiru & 3 Others in CA/C/EPH/HR/127/2011 delivered on 22nd August, 2011 contrary to the well established principles of stare decisis.”
The 1st Respondent in the appeal had raised and argued a preliminary objection to the hearing of the appeal in the 1st Respondent’s brief of argument filed on the 04-11-2011. The objection was in the following terms: ‘
“TAKE NOTICE that the 1st Respondent herein named intends, at the hearing of this appeal to reply upon the following preliminary objection notice whereof is hereby given to you viz:
‘1. That the appeal is incompetent and should be struck out.
2. That no sufficient materials have been furnished the Court to enable this Court disturb the order of dismissal made by the tribunal, thus rendering this appeal an academic exercise.’
AND TAKE FURTHER NOTICE that the grounds of the said objection are as follows:
‘1. The appeal does not deserve a hearing on the merit in that the time specified by the Constitution of Federal Republic of Nigeria for hearing election petitions is 180 days and in this case the petition was filed on 30th April, 2011 and attained 180 days on 29th October, 2011.
2. The appeal is a continuation of the petition, time to hear the petition haven expired, the Court has no duty to act in vain since whatever the outcome of this appeal, the petition still lapsed.
3. Even without the constitutional limitation, there is no appeal against order striking out the motion dated 13th July, 2011 to initiate pretrial. The result is that the jurisdiction of this Court is not properly invoked to enable it set aside the order of dismissal made by the Lower tribunal.
The submissions made in support of the objection were reviewed by the Court in its judgment delivered on the 17-11-2011, at pages 7 – 8. It is expedient to set them out, thus;
“The 1st respondent submitted that “time is of the essence in Election Petition” and that an appeal is in law, a continuation of the prosecution of the original cause or matter. See Ogundiani vs. Araba (1978) 11 NSC page 334 at 347.
The present appeal is therefore a continuation of the petition filed by the Appellant on 30th April, 2011. Counsel argued that the 180 days expired on 29th October, 2011 and therefore the petition and appeal is therefore statue barred.
In continuation of his submission the learned Counsel to the 1st Respondent referred the Court to Section 285(6) of the 1999 Constitution (as amended) which provided as follows:-
“An election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”
Counsel submitted that the 180 days envisaged by the Constitution has expired and therefore this appeal is incompetent.
Counsel urged the Court to hold that the Court lacked jurisdiction as the 180 days has expired and therefore statute barred.”
“It is clear as crystal” that the objection and submissions by the learned Counsel for the 1st Respondent in the appeal are that because the appeal is a continuation of the petition which was filed on the 30-04-2011, both the petition and the appeal are statute barred because according to him, the 180 days envisaged by the provisions of Section 2785(6) of the 1999 Constitution (as altered) had expired on the 29-10-2011.
In response to the arguments in support of the objection, the learned Counsel for the Appellant in the appeal submitted that when this Court remits a case to the tribunal for retrial, it starts de novo and therefore the 180 days start to run afresh. He urged the Court to hold that the 180 days started to run upon the commencement of the hearing de novo by a new panel. This is borne out at pages 8 – 9 of the judgment of the Court in the appeal,
From the above account, it can easily be seen that even though the issues submitted for determination in the appeal by the Appellant did not include the issue of whether the petition filed on 30-04-2011 was statute barred. the said issue was raised and submitted by the 1st Respondent (Now Appellant) to the Court for decision in the objection and arguments canvassed thereon. Specifically, Section 285(6) of the 1999 Constitution was referred to and relied on. As a result, it is not correct to say that the issue was not before the Court for determination in the appeal.
Eventually, after a consideration of the submissions by the learned Counsel for the parties on the objection as well as the provisions of Sections 285(6) and (7) of the 1999 Constitution, (as altered) and relevant judicial authorities, the Court concluded and held thus
“The preliminary objection has no merit and it hereby struck out.”
See page 14 of the judgment of the court delivered on the 17-11-2011.
Undoubtedly, the view of my learned brother Tur, JCA, set out earlier was one expressed on the objection and submissions made thereon by the learned Counsel for the parties in the appeal which centred on the application of the provisions of Section 285(6) of the Constitution. In the circumstances, it cannot seriously be argued that the statement or view was expressed without jurisdiction merely because it was not expressed in the lead judgment’ The view is also in line with and fortified the decision reached in the lead judgment that the objection lacked merit as well as the consequential order made remitting the petition back to the tribunal “for the second time to be heard de novo by a panel differently constituted.” Let me also point out that a concurring judgment in an appeal is not supposed to or expected to lock, stock and barrel repeat all that is contained in a lead judgment with which it agrees. Because judges are human, we have our individualism in the way we express ourselves even on issues we agree about. Some of us we straight to the point types who contribute to a lead judgment for the purposes of further elucidation, adumbration, expatiation or emphasis of the issues discussed in the lead judgment and providing additional perspective from which the issues could also be considered to arrive at the agreed decision. We employ our individual style in enhancing and supporting the lead judgment by providing other or additional reasons for the conclusion reached therein.
There are also the academicians who by their style,tut one thing or make a point in so many words by going round and about it, not once. I call them academicians in the sense that some of the points they make in their contributions did not directly arise for decision before the Court, but may be related some how to the issues decided in the lead judgment. Since the points are not directly on the issues for determination in the appeal, they do not add or subtract value to the lead judgment but are usually said to be meant for development of the law generally.
Whatever style is adopted in writing a concurring judgment so long as the views expressed therein are not in direct conflict or contradictory to the conclusions reached in the lead judgment with which it concurs or agrees, it becomes part of the lead judgment and so of the same binding effect and force in law. So the mere fact that a view was put in a different perspective on agreed issue or decision does not subtract from the agreed decision or makes it in conflict with the decision. In judicial practice, a concurring judgment no matter the style used in expressing the views on the issues decided in the lead judgment with which it agrees, supports the decision taken in the lead judgment. This is the way the Supreme Court put it in the case of OLUFEAGHA V. ABDURRAHEEM (Supra):
“A concurring judgment, has equal weight with or as a lead judgment. A concurring judgment compliments, edifies and adds to the lead judgment, when the justice, add to it certain aspects which the writer of the lead judgment did not remember to deal with. In so far as a concurring judgment performs some or all the above functions, it has equal force with or as the lead judgment in so far as the principles of stare decisis are concerned. ”
Ogbuagu, JSC went further that:
“The mere fact that a concurring judgment mentioned in a positive and correct way what is not contained in the lead judgment does not make it wears the appellation of dissenting judgment. In so far as what is contained there is relevant to the issue in the matter, the judgment is acceptable as a concurring judgment.”In the premises of this authority and, the reasons given above, my answer to the issue as put by the 1st Respondent’s Counsel is that, the concurring judgment of my learned brother Tur, JCA, particularly the portion set out in this judgment is not different or opposed to the lead judgment in the appeal No. CA/C/NAEA/257/2011. The view is not an obiter dictum, but part and parcel of the lead judgment and so binding on the issue dealt with therein. The tribunal was right in following that view which is also in consonance with the decision of the Supreme Court in UGBAH Vs PDP (Supra) wherein the petition was remitted back to the election tribunal for hearing on the merit. The issue is resolved against the Appellant.
APPELLANT’S ISSUE 2:
After setting out the provisions of Section 285(6) of the 1999 Constitution (as altered) the learned Senior Counsel for the Appellant had submitted that the provisions are clear and unambiguous and so need no interpretation but to be accorded their natural and plain meaning. Reliance was placed on the Supreme Court decision in the case of ONOCHIE V. ODOGWU (2006) 6 NWLR (974) (no page provided). According to him, the intention of the lawmakers in enacting the section is to take care of inordinate delays or lengthy trials attendant to election petitions or cases which was said to have been aptly stated in the case of PDP vs CPC in unreported consolidated appeals No. SC/272/2011 and SC/276/2011 delivered on the 31-10-2011. It was his contention that no Court can extend the time frame in the face of the provisions of Section 285(6) under the guise of ordering a retrial or trial de novo so as to confer jurisdiction on a trial tribunal for the following reasons:
“(1) The statement by the Court at pages 9 and 12 of the lead judgment in appeal No. CA/C/NAEA/257/2011.
(2) The statement of Onnoghen, JSC in the PDP V. CPC (supra) at pages 17 – 18, Fabiyi, JSC Ngwuta, JSC and Odili, JSC.”
He further argued that it will amount to rewriting the constitution if we choose to ignore the filing date mentioned in Section 285(6) and adopt the hearing date and that in the computation of time, no Court can or has the power to give more time than is granted by the Constitution. The case of LADOJA V. INEC (2007) (sic), was cited as authority for the submission and it was further submitted that a trial de novo would amount to extending the time to determine the petition in excess of 180 days from the date the petition was filed and that a trial de novo must be within the 180 days. The learned SAN maintained that an order of court cannot override a clear and mandatory constitutional provision and said that it was regrettable that the tribunal had ignored the case of PDP V. CPC (Supra) in the decision appealed against. The cases of OSAKWE V. FCE, ASABA (2010) 10 NWLR (1201) 1 AT 36 – 37 AND OKONJI V. ODJE (1985) 10 SC 267 AT 268 – 269 on duty of a lower Court to follow a decision of a higher Court were cited and we were urged to hold that after 180 days from the date of filing a petition, the tribunal lacks jurisdiction to hear and determine the petition under any circumstances even by order for retrial de novo.
The learned Counsel for the 1st Respondent had submitted on the issue that the tribunal was right to have followed the decision in appeal No.CA/C/NAEA/257/2011 as it would be an absurdity to reason that even where an appellate Court orders a retrial on the merit, de novo or afresh, a petition is still caught up by the provisions of Section 285(6). He said that it would amount to a technicality to do so when the Supreme Court had warned against it in the unreported case of Udoedehe vs. Akpabio, appeal No. SC/366/2011. Learned Counsel argued that the statement by Tur, JCA was good law and maintained that the 180 days for the 1st Respondent’s petition started to run from the 14-09-2011 the first time it was mentioned before the new panel following the order of the Court for trial de novo which was to the effect as if no trial been had conducted before’ He urged us to resolve the issue in favour of the 1st Respondent and hold that the tribunal had the jurisdiction to hear and determine the petition in dispute
From the arguments of the learned counsel on the issue, it is clear it resolves around the interpretation of the provisions of section 285(6) of the 1999 Constitution and its application where a party exercised the right of appeal conferred by the same constitution, against a decision by an election tribunal.
I would start a consideration of the issue by saying that, speaking generally, the law is beyond argument that in the interpretation of statutes, where the words used therein are clear and unambiguous, the court’s only legitimate duty is to give them their ordinary and plain meaning and construe them without any glosses or interpolations. See KALU V. ODILI (1992) 5 NWLR (240) 130 AT 193 – 194; AFRICAN NEWSPAPERS LTD. V. FEDERAL REPUBLIC OF NIGERIA (1985) 2 NWLR (6) 137; ADEWUNMI V. A.G. EKITI STATE (2002) 17 NWLR (743) 706; FAWEHINMI V. I.G.P. (2002) 7 NWLR (767) 606 AT 678. This is what has over the years become known as the literal rule of interpretation in judicial practice and is always enjoined on the courts unless its employment would read to apparent absurdity and inconsistency with the provisions of the statute as a whole. See BUHARI V. YUSUF (2004) 1 EPR 1 AT 53; AWOLOWO V. SHAGARI (1979) 6 – 9 SC 51; IDEHEN V. IDEHEN (1991) 6 NWLR (198) 132;
Another very fundamental and also established principle of interpretation of statutes, but particularly the constitution, is that no section or part thereof should be taken or singled out and isolated for the purpose of finding out the real intention of the Lawmakers in enacting the provisions of the statute or constitution on the subject under consideration in the case of FEDERAL REPUBLIC OF NIGERIA V. OSAHON (2006) 2 SCNJ 348 AT 369 – 370, the Supreme Court had stated the law that:
“The Constitution cannot be interpreted strictly like an Act of the National Assembly. It must be literally interpreted so that every Section therein will have meaning and without ambiguity it being the of all foundation laws in the country. All canons of interpretations will not abate but be employed with great caution.”
Again, in the OJUKWU V. OBASANJO case (supra) the Supreme Court, per Onu, JSC, at page 274 restated and emphasized that:
“In interpreting statutory or constitutional provisions such provisions should not be read in isolation of the other parts of the statute or constitution. In other words, the statute or constitution should be read as a whole in order to determine the intendment of the makers of the statute or constitution. Every clause of a statute should be construed with reference to the con and other clauses of the Act, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter.”
See also OBA OYEYIPO V. OYINLOYE (1997) 2 SC 148 AT 159; LAMBOYE V. OGUNSIYI (1990) 6 NWLR (155) 210; ADISA V. OYINWOLA (2000) 10 NWLR (674) 116 AT 215; ODUTOLA HOLDINGS V. LADEJOBU (2006) 5 SC (PT.1) 83.
With the above foundation, I now turn back to the provisions of Section 285(6) of 1999 Constitution (as altered) which ire thus:
“285(6) An election tribunal shall deliver its judgment in writing within I80 days .from the date of the filing of the petition.”
The learned SAN for the Appellant is right, and so I agree with him completely when he said that the above provisions are clear and unambiguous. Indeed, I would also add that they are prima facie straight forward and simple in their language such that no difficulty should arise in giving them their plain and ordinary meaning, employing the literal rule interpretation. Their undisputable meaning is that an election tribunal established and vested with the exclusive original jurisdiction to hear and determine election petitions under subsections (1) and (2) respectively, shall deliver its judgment in such petitions in writing, within 180 days from the date of filing, of the petition. The clear object of the provision is to prescribe the form and the time or period within which an election tribunal was required to deliver its judgment from the date a petition was filed before it. Put another way, the provisions had limited the time within which an election petition tribunal was to hear and determine a petition by delivering its judgment in writing to 180 days from the date the petition was filed before it. By the deliberate use of the word “shall” in the provisions, a tribunal would have no, discretion, or option whatsoever in the exercise of the jurisdiction vested in it over any election petition, but to deliver its judgment in writing within 180 days from the date of the filing of the petition. The jurisdiction vested in a tribunal over an election petition under the provisions of subsections (1) and (2) was one qualified and limited by the period of 180 days from the date it was filed by the later previsions of subsection (6). Where a tribunal did not or fail to deliver its judgment in writing in an election petition within 180 days from the date the petition was filed, the jurisdiction automatically ends, ceases and becomes extinguished or vacated by the effluxion of the prescribed period.

The lifespan of the jurisdiction of the tribunal over a petition was limited, confined and restricted to 180 days from the date of the filing of the petition and it cannot go beyond or outside that period to enable the tribunal the power and authority to hear and determine a petition. Once the period prescribed and limited by the provisions of Section 285(6) ends or expires, so will the jurisdiction of the tribunal which was limited by it. After the end or expiration of the limited period, the jurisdiction is taken away and left without the requisite jurisdiction to hear and determine the petition. The consequence is that the petition in question was no longer justifiable before the said tribunal and therefore abates or lapses automatically by the effluxion of the time limited by the constitutional provisions within which it was to have been heard and determined. The right of the petitioner to have the petition judicially determined by the tribunal and the authority and power of the tribunal to hear and determine the petition are both extinguished by the effluxion of the limited period. See generally, EGBE V. ADEFARASIN (1987) 1 SCNJ 1; ADEMORA V. AJUFO (1988) 1 NSCC 1005 AT 1006; MERCHANTILE BANK V. (1998) 3 NWLR (540) 143 AT 146; ELEBANJO V. DAWODU (2006) ALLFWLR (328) 604; AREMO II V. ADEKANYE (2004) ALL FWLR (224) 2113 AT 2131; ARABELLA V. N.A.I.C. (2008) 32 WRN 1 AT 26.
The provisions of Section 285(6) do not vest the power of authority on the tribunal to extend the period prescribed therein to enable it continue to hear or try a petition after the expiration of the 180 days form the date of filing.
I cannot also find any other provisions in the whole of Section 285 or the entire Constitution which vest the tribunal or any other court for that matter the power and authority to extend the time stipulated and limited in Section 285(6) for the tribunal to continue the trial of a petition after the expiration of the 180 days from the date of filing. The learned SAN is therefore right that no court has the jurisdiction to extend the period of time limited by Section 285(6) in respect of a petition.
In this appeal, from the record of the appeal, the 1st Respondent’s petition which appears at pages 5 – 33 thereof was filed on the 17-05-2011. By the provision of Section 285(6) of the Constitution, the tribunal before which it was filed, had the jurisdiction vested in it by subsections (1) and (2) as the case may be to hear, determine and deliver its judgment therein, within 180 days from that day.
It is not in dispute in this appeal that the tribunal after the petition was filed on the 17-05-2011 had conducted proceedings herein in accordance with the provisions of the Electoral Act, 2010 (as amended) and the 1st Schedule thereto, by way of trial or hearing wherein processes were filed by learned Counsel for the parties and orders made by the tribunal. Eventually, in the course of such proceedings during the trial or hearing of the petition, the tribunal dismissed the petition as an abandoned petition for non compliance with the provisions of paragraph 18(1) of the 1st schedule to the Electoral Act. The decision dismissing the petition was delivered on the 08-09- 2011 by the tribunal.
The question that would arise here is whether the tribunal, had delivered its decision in the petition in compliance with the provisions of section 285(6) of the constitution. Now, it may be observed that the word “judgment” was used in the provisions of section 285(6). However, the word “judgment” was not defined by the constitution but section 318(1) of the Constitution, defines the word “decision” thus:
“‘decision’ means, in relation to a Court, any determination of decree, that Court and order, conviction, sentence or recommendation.”
In the con of this definition, any order, judgment or determination by a court or tribunal created or established by the constitution in particular, is a decision by that Court or tribunal in the matter or case in which it was made or delivered.
The order, determination or decision delivered by the tribunal on the 08-09-2011 dismissing the 1st Respondent’s petition was arrived at after taking and considering submissions and arguments from the learned Counsel for the parties in the form of written addresses. The decision was taken by the tribunal after hearing was conducted in the petition and it finally determined the fate of the petition since the parties could no longer thereafter approach the tribunal again with the petition for determination. After the decision dismissing the petition as an abandoned petition, by the provisions of paragraph 18(5) of the 1st Schedule to the Electoral Act, the tribunal became functus officio in the petition. Paragraph 18(5) has the following provisions:
“18(5) Dismissal of a petition pursuant to subparagraph (3) and (4) of this paragraph is final, and the tribunal or Court shall be functus officio.”
So for all practical legal purposes, the decision to dismiss the petition as an abandoned petition delivered by the tribunal, was a judgment within the con of Section 285(6) of the Constitution. What remains to be determined is whether the judgment of the tribunal was delivered within the time prescribed by those provisions. That is easy as it only involves the arithmetic of counting the days between the date on which the petition was filed before the tribunal, i.e. the 17-05-2011 and the date on which the tribunal delivered the decision (judgment) dismissing the petition; i.e. the 08-09-2011. There were One Hundred and Fifteen (115) days between the 17-05-2011 and the 08-09-2011 which are clearly less than and so within the 180 days the tribunal had the jurisdiction to deliver the judgment in writing as prescribed by the provisions of Section 285(6) of the Constitution. By the 08-09-2011, which are clearly less than and so within the 180 days the tribunal had the jurisdiction to deliver the judgment in writing as prescribed by the provisions of Section 285(6) of the Constitution. By the 08-09-2011, when the tribunal delivered its final decision, it had effectively exhausted the jurisdiction which by the operation of Section 285(6) it had to utilize within 180 days or lose it over the petition. Consequently, the period of 180 days for the purpose of hearing and determination of the petition ended on the 08-09-2011 when the tribunal in compliance and obedience to the command and exhortation in the provisions of Section 285(6), delivered its judgment in writing within that time.
The application of Section 285(6) ended there at stage as far as the tribunal and the petition were concerned. Whatever may happen and follow thereafter would be post judgment of the tribunal in the petition and so would be regulated and governed by other relevant provisions of the Electoral Act and the Constitution and not the provisions of Section 285(6) which had been spent by the delivering of the judgment in writing by the tribunal on the 08-09-2011. The exercise by other Courts of the jurisdiction vested in them by the other provisions of the same Constitution and within the time prescribed and limited by later subsections of Section 285(6), cannot by any stretch of reasonable legal imagination, be said to amount to an extension of the time limited by the provisions of Section 285(6).
In particular, Section 240 of the 1999 Constitution has vested this Court with exclusive jurisdiction to hear and determine appeals from inter alia, decisions of tribunals as may be established and prescribed by an Act of the National Assembly, Section 246(1)(b) and (c) of the Constitution, as altered, had made further provisions as follows:
“246(1) An appeal to the Court of Appeal shall lie as of right from:
(b) decisions of the National and State Houses of Assembly Election Tribunals; and
(c) decisions of the Governorship Election Tribunal… ”
Then in subsection (3) it provided that:
“(3) The decisions of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly Election Petitions shall be final.”
The clear purport and intention of the framers of the Constitution in the above provisions are three fold: (a) to vest a right of appeal in a party or person in an election petition heard and determined by an election tribunal, against the judgment or decision delivered therein with which he was dissatisfied (b) vest exclusive jurisdiction in this Court to hear and determine the appeals arising from the decisions of the said tribunal (c) that the decision by this court in appeals arising from the National and state Houses of Assembly Tribunals, shall be final. That is the decision by this court in appeals such as the present one, is final and so cannot be property challenged any where else since no right to do so is provided for in the Constitution.
The jurisdiction vested in the Court to hear and determine appeals from decisions of election tribunal which was hitherto open was what the altered section 285(7) of the 1999 Constitution now limited and restricted by time, to be exercised within 60 days from the date of the delivery of the judgment of the tribunal. The provisions best speak for themselves:
“285(7) An appeal from a decision of an election Tribunal … shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal…”
So the framers of the alteration to section 285 of the Constitution, fully aware and conscious of the earlier provisions of subsection (6), deliberately and purposefully, provided jurisdiction for the court to hear and determine an appeal from a decision of an election tribunal within 60 days from the date of the delivery of the judgment of the tribunal. When read and taken along with the earlier provisions of sections 240, 246(1), (b), (c) and (3) above, the provisions of Section 285(7) leaves no doubt that the provisions of subsection (6) of Section 285 are not in any manner intended to be taken into account or considered in the exercise of the jurisdiction by the Court in appeals form the decisions of election tribunals. The provisions of Section 285(6) do not in any way whatsoever inhibit, confine, restrict or hinder the exercise of the jurisdiction by the Court over or in an appeal from the decisions of election tribunals. Like I stated before now, the application of the provisions of Section 285(6) ended with the delivery of the judgment or decision by the tribunal, dismissing the petition before it as an abandoned petition and were completely spent at that stage for the petition.
If the learned SAN’s argument that the Court cannot exercise its jurisdiction over an appeal because of the effluxion of the 180 days in Section 285(6) was correct, it would mean that where for instance the tribunal delivers its final decision, whether on the merit or not, on the last of the 180 days, the right of appeal vested in a party dissatisfied with it and the jurisdiction of the Court to hear and determine the appeal within 60 days from the date of the delivery of the judgment as provided in Section 285(7), would both be rendered nugatory, useless and barren. It would certainly violate reason, discernment and obfuscate the subjects provided for by the two (2) subsections to suggest that that was intended by the legislature in the enactment of the provisions. Such a reasoning would defy wisdom and perspicacity which are the usual attributes of a legislature and so would lack persuasion.
In legal effect, what the learned SAN is saying by his argument is that the jurisdiction vested in this Court by the provisions of Section 285(7) is subject to the jurisdiction vested in an election tribunal by the provisions of subsection (6). Since the wordings of Section 285(6) are clear and do not expressly provide that the provisions of subsection (7) are subject to it and the latter subsection does not say that it is subject to subsection (6), the importation of such inference in any of the two (2) subjections would inflict unquantified violence to the tenor of the provisions. The law is settled that in the interpretation of clear and unambiguous provisions of a statute or constitution, words not used therein cannot be imported or even inferred into them. See OJUKWU V. OBASANJO (2006) 2 EPR 242 AT 274; BUHARI V. YUSUF (2004) 1 EPR 1 AT 25; BRONIK MOTORS V. WEMA BANK (1983) 6 SC 158.
As a matter of fact, to even suggest that the jurisdiction of this court vested by a later provision of the constitution is subjected to the time limit imposed on the jurisdiction vested in an election tribunal by an earlier provisions of the same constitutions without express words to that effect is, with respect, revolting to the manifest intention of the legislature in enacting the two separate provisions. Such a suggestion would be unviable in law and I am not prepared to accept it.
The statements by their Lordships in the case of PDP V. CPC cited by the learned SAN for the appellant did not suggest that the provisions of Section 285(6) restrict or limit the exercise by the Court of its jurisdiction in respect of an appeal from a decision of an election tribunal. Their Lordships only emphasized that as long as the limitation of time in respect of an election petition was concerned, the provisions of Section 285(5); (6) and (7) are to apply and there is no power in any Court to extend it.
In the exercise of its jurisdiction under Section 285(7), this Court has the competence, the requisite and legitimate judicial power and authority to determine an appeal within 60 days of the date of the delivery of the judgment of the tribunal irrespective of whether or not the 60 days were within the 180 days provided in subsection (6). This is the jurisdiction being exercised by the court over this appeal which the Appellant did not challenge, but utilizes.
In the determination of the appeal, the Court has the unfettered constitutional inherent power to make any consequential orders that it deems necessary to meet the justice of the case and to give effect to its decision. Such consequential orders would include, where an appeal succeeds, an order that a petition which was not determined on the merit by a tribunal, be tried afresh or de novo on the merit, by the tribunal.
In judicial practice, it is very well known that an order for a retrial, trial afresh or trial de novo, is usually made by an appellate Court when it is satisfied that the initial trial was no trial in law that was capable of determining the real dispute between the parties. Its effect is to nullify the purported proceedings and trial as if it never was conducted at all. ODI V. OSAFILE (1987) 2 NWLR (57) 510 AT 512; BAKULE V. TANEREWA (1995) 2 NWLR (380) 728; BIRI V. MAIRUWA (1996) 8 NWLR (467) 425 AT 432; FRN V. BULAMA (2005) 16 NWLR (951) 219.In the above premises, when on the 27-10-2011, this Court allowed the appeal from the decision of the tribunal and ordered the trial afresh or de novo or on the merit of the petition of the 1st Respondent No. EPT/AKS/SEN/18/2011, a new trial of the petition was to be conducted on the merit was not connected and affected by the date on which the petition was initially filed on the 17-05-2011. In fact, the basis of the new trial on the merit was not the date of filing the petition, but the order by this Court which had nothing to do with the provisions of Section 285(6), as demonstrated earlier, and so cannot be said to have extended the period of 180 days provided therein. The Court did not pretend or give the impression that it extended the said period but very clearly showed that it was exercising the legitimate and unquestionable jurisdiction vested in it by the constitution. Having done so in no uncertain terms, the tribunal had the constructional duty to give effect to and enforce the order made by commencing the new trial of the petition as ordered as provided for by the provisions of Section 287(2) of the Constitution (as altered), which also apply to the Appellant.
The tribunal has the requisite jurisdiction to hear and determine the petition in the new trial and period of 180 days set out in Section 285(6) would start from the date of the order by the Court and not from the 1st day the new panel o[ the tribunal mentioned it, as suggested by the learned Counsel for the 1st Respondent. In the result I find no merit in the submissions of the Appellant on the issue which I resolve against him
In the final result, having resolved the two issues submitted for determination in the appeal against the Appellant, the appeal lacks merit and is accordingly dismissed by me.
There shall be costs assessed at N50,000.00 irr favour of the 1st Respondent to be paid by the Appellant.

UZO I. NDUKWE-ANYANWU, J.C.A: I had the privilege of reading before now the judgment just delivered by my learned brother M. L. Garba, JCA. I agree with his reasoning.
Setion 285(5) (8) of the 1999 Constitution (as altered) were additions to the principal sections to ensure the expeditious filing and disposition of Election Petitions within the shortest possible time.
S.295 (5) allows only 21 days for the filing of petition for an aggrieved person. Section 285(6) provides for the hearing and delivery of judgment within 1Bo days from the date of filing. Section 285(7) provides for 60 days for an appeal from the Tribunal to be disposed off from the date judgment was delivered. All these subsections are standing on their own and not subject to each other.
These subsections seek therefore to abridge the life span of a petition from the date an election was conducted to the date of the final judgment on Appeal. A tribunal that has given its judgment rightly or wrongly within the 180 days provided by S.285(6) of the Constitution (as altered) has fulfilled all the intentions of S.285(6).
An appeal Court that has heard an appeal and delivered its judgment within 60 days is within its own jurisdiction so to do. The Court of Appeal is also within its jurisdiction to make consequential orders flowing from its judgment.
The Constitution as it were did not limit the type of orders that an Appeal Court would make following its judgment delivered within 60 days provided in Section 285(7). Such orders may include that of retrial as in the instant case for the just adjudication of a Petition.
Notwithstanding that the 180 days provided by the S.285(6) has expired, the Appeal Court should not hesitate to make all orders for the just adjudication of a Petition. Where a Court of Appeal makes an order that
“the Petition is sent back to the Tribunal for a trial de novo”.
It means starting afresh in all its ramifications. This subsequent order of retrial is a consequential order which is removed from the ambit of S.285(6).
An appellant who succeeds on appeal and an order made that his Petition be heard on the merit cannot enjoy his success if the time frame provided for in S.285(6) is adhered to, to include petitions sent back for retrial.
An appellate court will make an order for retrial of a case, where the retrial will not lead to a miscarriage of justice, or where the court, exercising its appellate jurisdictions, cannot adequately do justice to the case, or where from the circumstances of the case, it is just to make such an order. See Abusomwan vs. Aiwerioha (1996) 4 NWLR pt 441 page 130.
An appellate court will order for a retrial of a matter where there has in fact been a previous trial that though was properly conducted but which is vitiated by an error in law or procedure. See Yahaya vs. State (2002) 3 NWLR Pt. 754 page 289.
A successful Appellant cannot enjoy a pyrrhic victory. He ought to enjoy the fruits of his victory. Where a Petitioner/Appellant has done everything, the law requires him to do, he should not be ambushed by a skewed interpretation of S.285(6). The law should not be reduced to an engine of fraud to deny a successful litigant the fruits of his success.
For this and the more robust reasoning and conclusions in the lead judgment I also dismiss the appeal and abide by all the consequential orders in the lead judgment including that as to costs.

JOSEPH TINE TUR, J.C.A.: I have read in advance the lead judgment delivered by my Lord Mohammed Lawal Garba, JCA and I concur in this reasons and conclusion, why this Appeal should be dismissed. The learned SAN appearing for the Appellant has not been able to convince me why I should depart from my concurring judgment in Idongesit Udokpo vs. Kenneth Archibong & Ors. unreported Appeal No. CA/C/NAEA/257/2011 delivered on 17-11-2011 regarding the legal effect of an appeal Court remitting a case to the Lower Tribunal to be heard de novo or retried on the merit.
In Spencer Bower and Turner On Res Judicata 2nd edition (1969) Article 168 at page 135 the learned authors have said that:
“No finding of the Court of a jury of a trial which has proved abortive, a new trail having being directed, will give rise to a valid plea of estoppels. And a decision of the Court setting aside the verdict of a jury, or setting aside a judgment entered pursuant thereto, and directing a new trial, will result in either party being estoppels per rem judicatamm by anything held on the facts in the judgment in which the new trial is ordered, for the judgment must be read as deciding no more than that, the first trial being unsatisfactory, the issues tried therein should be resubmitted to the Court for fresh consideration.”
This opinion was approved by the Supreme Court in Fadiora vs Gbadebo (1975) l LRN 97 per Idigbe, JSC (of blessed memory) who, after considering other authorities came to the following conclusion at page 104 of the judgment as follows:
“…what exactly is the implication and effect of an unconditional or unqualified order for trial de novo by the Court of Appeal on a case on appeal before that Court? We think that in trials de novo the case must be proved a new or rather reproved de novo, and therefore, the evidence and verdict given as well as the judge’s findings, at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of. The Court of second trial, therefore, is entitled, must look at the pleadings before it in order to ascertain and decide the issues joined by the parties before it on their pleadings….. ”
His Lordship concluded at page 105 of the judgment as follows:
“…Finally, in Smith ys Stroud (1926) 42 TLR 372 it was also held that where a Court of Appeal orders that the entire judgment given by the trial judge be set aside and a new trial grunted to the parties with a direction that costs on the abandoned counterclaim should abide the decision of the judge on the new trial, the counterclaim is revived und must be tried together with the claim.
These cases set out above make it clear that in law the effect of an order for new trial is to allow the parties to reprove their case.”
See also Cardoso vs Daniel (1956) 2 NWLR (Pt.20) 1 at 27-28; Ayantade vs Ogundokun (1973) 10 FCA 296 at 307; Abortsi vs Anelete 12 WACA 422.
When the Court of Appeal set aside the ruling of the lower tribunal on 27-10-2011 and remitted it for trial without conditionalities, the legal effect was that the Court of Appeal was directing the new tribunal to embark on a new or fresh hearing and determination of the issues joined by the parties in their respective pleadings, the first trial having been held by the Court of Appeal as unsatisfactory and aborted. The further effect was as if no trial and judgment had taken place within the 180 days stipulated under Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. That the petition filed within 21 days after the declaration of results of the elections under Section 134(1) of the Electoral Act, 2010 as amended, whether struck out or dismissed by the Tribunal had been revived and replaced on the Tribunal’s Cause list for hearing and determination within the period of 180 days from the day of the order made by the Court of Appeal. The reason is that when a case, petition or an appeal struck out is relisted on the orders of a Court of trial or an appeal Court, it is not a new suit, petition or appeal but is still the old one. See Kassim vs Ebert (1966) NNLR 75. Time will not run against the relisted suit, petition or appeal. It will be absurd for the lawmaker to grant a tribunal 180 clays within which to deliver its judgment in writing from the date of the filing of the petition while sitting and exercising original jurisdiction under Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1990 as altered but when a retrial on the merit is ordered by the Appeal Court, an inferior tribunal would disobey that order by refusing to hear the petition a new, or in the alternative, curtail the 180 days because it was a retrial. That cannot be the intention of the legislature. What I understand the legislature and the courts as saying is that the Tribunal of first instance has no powers to extend the 180 days prescribed under Section 285(6) of the Constitution. Neither can the court of Appeal extend the 60 days period provided under Section 235(7) of the Constitution to hear and dispose of an appeal from the date of delivery of judgment of the tribunal. For every law, there may often arise an exception. In this case the exception will arise where the court of Appeal nullified the trial or decision of the Tribunal and ordered a retrial without conditions attached’
An Appeal court is not by ordering a retrial of a petition on merit extending the 180 days prescribed by section 285(6) of the altered 1999 Federal Constitution. All that the Appeal Court is saying is there was no valid or satisfactory trial and it should be aborted and the issues retried afresh. That is not the same as a tribunal extending the 180 days stipulated under Section 285(6) of the Constitution supra.
The framers of the constitution of the Federal Republic of Nigeria, 1999 as altered have vested in aggrieved candidates the right to present their petitions at first instance before the tribunals within 21 days and obtain judgment within 180 days. Any party aggrieved has 60 days within which to obtain relief from the Court of Appeal. From the day the result of the election was declared to when the Court of Appeal pronounces judgment totals 261 days. But where in the determination of the petition the Tribunal committed unpardonable errors or did that which led to a miscarriage of justice, the court of Appeal, in conscience and in law has the duty to rectify that by ordering another Tribunal to do within the time stipulated by law or the Constitution that which shall ensure that justice is done to all the parties.
The framers of the Constitution of the Federal Republic of Nigeria, 1999 as altered have for that reason provided inter alia in the preamble to the Constitution that it is, “…for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the unity of our people.” The state order is also founded on ideals of “Freedom, Equality and Justice” under Section 17(1) of the Constitution supra. In Appellate Courts in the United State, 1994 by Daniel John Meador & Jordana Simone Berstein the authors have summarized in a few words the role of appellate Courts in the following language:
“Appellate Courts ere among the most important institutions of governance in the United States. Through their review of trial Court and administrative agency decisions they ensure that those bodies function lawfully and that litigants receive justice under the law. Moreover, they provide authorities interpretations of statutory and constitutional provisions and control the shaping of the common law in response to ever changing circumstances; they ere thus the major sources of law. ”
The above dicta is cited by the learned authors of Blacks Law Dictionary, 8th edition pages 378-379.
If the argument of the learned Senior Counsel to the appellant is accepted, that means once the 180 days has lapsed an appeal court cannot make an order for a petition to be retried on the merit or heard de novo. There will be no need or basis for an aggrieved party before the Tribunal to appeal to this Court for reasons that whatever order the appellant obtains on appeal will be rendered nugatory or unenforceable by effluxion of time. The result is that parties will result to self-help; public or private peace will be breached. Besides, it will introduce judicial anarchy in that inferior tribunals will refuse to obey lawful orders of Appeal Courts when a retrial is ordered. This will be an assault on the time-honored principle of stare decisis. That will have disastrous consequences for this great nation and make mockery of the Nigerian judicial system in the eyes of the local and international community. The Constitution will no longer be for the purpose of promoting the welfare of all persons in our country on the principles of Freedom Equality and Justice nor for the consolidation of the unity of our people. Anarchy shall be enthroned in this Court as a result of such an absurd interpretation of constitutional provisional provisions spear headed by Courts of justice. That is not justice.
In Nafiu Rabiu vs The State (1980) 2 NCR 117 Sir Udo Udoma JSC (of blessed memory) laid down in clear terms the principles to adopt in the construction or interpretation of provisions of the constitution when there arises a major constitutional issue such as we have at hand in this appeal. His Lordship reasoned at pag e 132 to 133 of the judgment as follows:
“My Lords, in my opinion, it is the duty of this Court to bear constantly in mind the fact that the present
Constitution has been proclaimed the supreme law of the land; that it is a written, organic instrument meant to serve not only the present generation, but also several generations yet unborn; that it was made, enacted and given to themselves by the people of the Federal Republic of Nigeria in their Constituent Assembly – for which reason, and because it is autochthonous, it of necessity claims superiority to and over and above any other Constitution ever devised for the governance of this country – the unwarranted intermeddlesomeness of the military authority with some of its provisions notwithstanding; that the function of the Constitution is to establish a framework of principles of government, in broad and general terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore mere technical rules of interpretation of statutes are to some extent inadmissible in so far as they would defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this Court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects had purposes of the Constitution.
My Lords, it is my view that the approach of this Court to the construction of the Constitution should be, as it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. I do not conceive it to be the duty of this Court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve, where another construction equality in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
Acceding to the argument of the Senior Advocate of Nigeria and others of like mind will thus defeat the principles enshrined in the constitution which will not accord with the dictates of justice. If justice is to be done the Tribunals and the Courts of Appeal must ensure that petitions are heard and determined on their merit within the frame work of the law and constitution. The Respondents in this appeal should not be shut out from the temple of justice based on mere technical rules of interpretation of ordinary statutes but not the constitution which is the supreme law of the land, a written, organic instrument meant to serve not only the present generation, but also several generations yet unborn. There is no joy in constantly amending the provisions of the Constitution when power exists in the tribunals, trial and appellate Courts to do justice by judicial interpretation of the law and the constitution. The rules to apply when interpreting the provisions of a law or statute are not the same when constitutional provisions are under consideration. See PDP vs INEC (1999) 7 SCNJ 297. Moreover, the constitutional provisions are to be read as a whole and not in isolation. See Obi vs INEC (2007) 1116 at 1190; Obayu
wana vs. Governor, Bendel State (1982) 12 SC 147 at 211 and Adesanya vs The State (1981) 5 SC 112 at 137. This will enable the Court or tribunal to determine the true intention of the law giver.
On the whole I also dismiss this appeal and abide by the orders my Lord has made in the lead judgment.