IDONGESIT GODWIN AKPAN UDOKPO V. KENNETH EDET ARCHIBONG & ORS
(2011)LCN/4909(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of November, 2011
CA/C/NAEA/257/11
RATIO
QUESTION OF JURISDICTION: IMPORTANCE OF THE QUESTION OF JURISDICTION
The question of jurisdiction is very fundamental that it should be determined first by the courts before starting any proceedings. If the court proceeds without jurisdiction, all proceedings however well conducted amount to a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal in the Supreme Court. However, it is important to note that issues of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. Manson v. Halliborton Energy Services Ltd (2007) 2 NWLR (pt 1018) 211 CA, Adeleke V. O.S.H.A. (2006) 16 NWLR pt (1006) 608 CA, Ukwu v. Bunge (1997) 8 NWLR (pt 518) 527 SC, Ezechigbo v. Gov. Anambra State (1999) 9 NWLR (pt 619) 386 CA, Messrs N.V Scheep v. The M.V “s. Araz” (2000) 12 SC (Part 1) 164, Jeric Nig. Ltd v. U.B.N Plc. (2000) 12 SC (Port 11) 133, A-G, Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 SC, Inah v. Ukoi (2002) 9 NWLR Pt (773) 563 CA, Nnonye v. Anyichie (2005) 2 NWLR (Pt 910) 623 SC, Lufthansa Airlines v. Odiese (2006) 7 NWLR (Pt. 978) 39 CA. PER UZO I. NDUKWE-ANYANWU, JCA
COURT: WHETHER IT IS THE STATUTE CREATED A COURT THAT CONFERS JURISDICTION ON IT
“Courts are creatures of statute and it is the statute that created a particular court that will also confer on it, its jurisdiction. Jurisdiction may be extended, not by the courts but by the legislature” Governor of Kwara State v. Gafak (1997) 7 NWLR pt 511 Page 51, Okulate v. Awosanya (2000) 1 SC 107 Messrs No Scheap v. The MVS Arak (2000) 12 SC pt 1 page 164. PER UZO I. NDUKWE-ANYANWU, JCA
COMPETENCE OF THE COURT: WHEN CAN A COURT BE REGARDED AS PROPERLY CONSTITUED
It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other, the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must coexist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes on exercise in futility as the decision arrived of in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. Umanah v. attah (2006) 17 NWLR (pt 1009) 503 SC, Madukolu v. Nkemdilim (1962 1 All NLR 587 SC, Skenconsult v. Ukey (1981) 1 SC 6, Benin Rubber Producers Ltd v. Ojo (1997) 9 NWLR (pt 521) 388 SC, Magaji v. Matari (2000) 5 SC 46, Alao v. Afrikcan Continental Bank Ltd (2000) 6 SC (pt 1) 27, Galadima vs. Tambai (2000) SC (pt 1) 2000) 6 5C (pt 1) 196, Araka v. Ejeagwu (2000) 12 SC (pt. 1) 99, Lufthansa Airlines v. Odiese (2006) 7 NWLR (pt. 978) 39 CA. PER UZO I. NDUKWE-ANYANWU, JCA
LIMITATION OF TIME: EFFECT OF THE PROVISION OF A TIME LIMIT IN ANY LEGISLATION
Where in any legislation there is a time limit that limit most be complied with. The court ceases to have jurisdiction the time envisaged expires. This court can neither extend this time nor have the power to order the tribunal to continue of the expiration of this time frame. PER UZO I. NDUKWE-ANYANWU, JCA
JURISDICTION: WHAT CONFERS JURISDICTION ON A COURT
“It has been stated severally that it is not the rules of court that vest jurisdiction in a court rather it is the statute creating a court or the Constitution that vest jurisdiction on a court” Onuorah v. KRPC (2005) 6 NWLR pt 921 page 393. Afrikbank (Nig) Plc. v. Akwara (2006) 5 NWLR pt 974 Page 619 PER UZO I. NDUKWE-ANYANWU, JCA
JURISDICTION: WHAT WILL BE CONSIDERED IN DETERMINING WHETHER A COURT HAS JURISDICTION TO ENTERTAIN A MATTER OR A CAUSE
In considering, whether this court has jurisdiction to entertain a matter, the court in this case is guided by the petition placed before this court. Gafar v. Government of Kwara State (2007) 4 NWLR pt 1024 page 375. Onuorah v. KRPC (supra) Nkuma v. Odili (2006) 6 NWLR Pt 977 Page 587.PER UZO I. NDUKWE-ANYANWU, JCA
ELECTION PETITION: TIME FRAME FOR COMMENCING AND DELIVERING OF THE FINAL JUDGMENT OF AN ELECTION PETITION
Section 285 (6) of the 1999 Constitution (as amended) expects the Petition filed to start running and final judgment delivered on the petition within 180 days. The 180 days in this petition filed on 30th April, 2011 should expire on the 27th October, 2011. After this date the Tribunal has no jurisdiction to hear this petition in any form or manner. By virtue of S. 285 (6) 1999 Constitution. (As amended) a right to continue with this petition is extinguished after the 180 days envisaged by this section. Egbe V. Adefarasin (1987) 1 NWLR pt 47 pg 20. PER UZO I. NDUKWE-ANYANWU, JCA
LIMITATION OF TIME: WHETHER A COURT CAN EXTEND THE TIME FRAME OF AN ACTION IMPOSED BY A STATUTE OR THE CONSTITUTION
Where the time frame is imposed by a statute or the Constitution unless it also makes provision for extension of time the court cannot extend time, Akinnuoye v. Milad, Ondo State (1997) 1 NWLR pt 483. PER UZO I. NDUKWE-ANYANWU, JCA
JUSTICES
UZO I. NDUKWE – ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH O. AKEJU Justice of The Court of Appeal of Nigeria
Between
IDONGESIT GODWIN AKPAN UDOKPO – Appellant(s)
AND
1. KENNETH EDET ARCHIBONG
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
UZO I. NDUKWE-ANYANWU, JCA (Delivering the Leading Judgment): This is an appeal against the judgment of the tribunal sitting in Uyo Akwa Ibom delivered on 12th October, 2011.
The initial appeal was heard and judgment delivered and the petition was sent back to the tribunal for trial.
At the tribunal for the second time the petition was dismissed in its entirety for failing to comply with the mandatory provisions of paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 (as amended) as time has lapsed within which to apply for the issuance of pre-hearing notice hence it is deemed to be abandoned pursuant to paragraph 18 (4) of the 1st Schedule to the Electoral Act 2011 (as amended).
Being dissatisfied, again the Appellant filed a notice and two grounds of appeal on the 19th October, 2011. The Appellant filed his appellant’s brief on 1st November, 2011 and articulated 2 issues for determination namely:-
1. Whether the leave of the Tribunal was required before application for the issuance of Pre-hearing Notice could be made (GROUND 1).
2. Whether the lower Tribunal was right in failing 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/EP/HR/127/2011 delivered on 22nd August 2011 contrary to the well established principles of stare decisis.
Also filed on 11th November, 2011 is the Appellant’s Reply to the 1st Respondent’s brief. The 1st Respondent filed his brief on 4th November, 2011, in it he filed a notice of his intention to rely upon a Preliminary Objection. This Preliminary Objection was argued from page 49 of his 1st Respondent’s brief. The 1st Respondent adopted the 2 issues formulated by the Appellant and argued them seriatim. 3rd Respondent filed its brief on 9th November, 2011. He also adopted the two issues as formulated by the Appellant. The 2nd Respondent filed no brief, absent in court but was served with Hearing Notice on 11th November, 2011.
The 1st Respondent’s Preliminary Objection is one that on the jurisdiction of this Court to hear this appeal.
The question of jurisdiction is very fundamental that it should be determined first by the courts before starting any proceedings. If the court proceeds without jurisdiction, all proceedings however well conducted amount to a nullity.
It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal in the Supreme Court. However, it is important to note that issues of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. Manson v. Halliborton Energy Services Ltd (2007) 2 NWLR (pt 1018) 211 CA, Adeleke V. O.S.H.A. (2006) 16 NWLR pt (1006) 608 CA, Ukwu v. Bunge (1997) 8 NWLR (pt 518) 527 SC, Ezechigbo v. Gov. Anambra State (1999) 9 NWLR (pt 619) 386 CA, Messrs N.V Scheep v. The M.V “s. Araz” (2000) 12 SC (Part 1) 164, Jeric Nig. Ltd v. U.B.N Plc. (2000) 12 SC (Port 11) 133, A-G, Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 SC, Inah v. Ukoi (2002) 9 NWLR Pt (773) 563 CA, Nnonye v. Anyichie (2005) 2 NWLR (Pt 910) 623 SC, Lufthansa Airlines v. Odiese (2006) 7 NWLR (Pt. 978) 39 CA.
“Courts are creatures of statute and it is the statute that created a particular court that will also confer on it, its jurisdiction. Jurisdiction may be extended, not by the courts but by the legislature”
Governor of Kwara State v. Gafak (1997) 7 NWLR pt 511 Page 51, Okulate v. Awosanya (2000) 1 SC 107 Messrs No Scheap v. The MVS Arak (2000) 12 SC pt 1 page 164.
It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other, the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must coexist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes on exercise in futility as the decision arrived of in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted.
Umanah v. attah (2006) 17 NWLR (pt 1009) 503 SC, Madukolu v. Nkemdilim (1962 1 All NLR 587 SC, Skenconsult v. Ukey (1981) 1 SC 6, Benin Rubber Producers Ltd v. Ojo (1997) 9 NWLR (pt 521) 388 SC, Magaji v. Matari (2000) 5 SC 46, Alao v. Afrikcan Continental Bank Ltd (2000) 6 SC (pt 1) 27, Galadima vs. Tambai (2000) SC (pt 1) 2000) 6 5C (pt 1) 196, Araka v. Ejeagwu (2000) 12 SC (pt. 1) 99, Lufthansa Airlines v. Odiese (2006) 7 NWLR (pt. 978) 39 CA.
The 1st Respondent submitted that “time is of the essence in Election Petitions” and that an appeal is in law, a continuation of the prosecution of the original cause or matter see Ogundiani V. 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 statute 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 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 is incompetent.
Counsel urged the court to hold that the court lacked jurisdiction as the 180 days has expired and therefore statute barred.
The learned counsel to the Appellant submitted that when the Court of Appeal remits a case to the tribunal for retrial, it starts de novo and therefore, the 180 days starts to run afresh.
Learned counsel urged the court to hold that the 180 days will start to run upon commencement of hearing de novo by a new panel. Learned Counsel urged the court finally to strike out the Preliminary Objection and allow the appeal.
Section 285 (6) of the 1999 constitution (as amended) provides as follows:
“An election tribunal shall delivered its judgment in writing within 180 days from the date of the filing of the Petition.”
Where in any legislation there is a time limit that limit most be complied with. The court ceases to have jurisdiction the time envisaged expires.
This court can neither extend this time nor have the power to order the tribunal to continue of the expiration of this time frame.
It is important for a party who perceives that a court has no jurisdiction to hear a matter to raise the issue at the earliest opportunity. Likewise a court is expected to decide the issue of its jurisdiction to hear this case when a challenge is raised at the earliest opportunity. Nnonye v. Anyichie (2005) 2 NWLR pt. 910 page 623.
“It has been stated severally that it is not the rules of court that vest jurisdiction in a court rather it is the statute creating a court or the Constitution that vest jurisdiction on a court”
Onuorah v. KRPC (2005) 6 NWLR pt 921 page 393. Afrikbank (Nig) Plc. v. Akwara (2006) 5 NWLR pt 974 Page 619The time frame for on election petition is 180 days. In considering, whether this court has jurisdiction to entertain a matter, the court in this case is guided by the petition placed before this court. Gafar v. Government of Kwara State (2007) 4 NWLR pt 1024 page 375. Onuorah v. KRPC (supra) Nkuma v. Odili (2006) 6 NWLR Pt 977 Page 587.
The petition was presented on 30th April, 2011 and the 180 days stated running from that date.
Section 285 (6) of the 1999 Constitution (as amended) expects the Petition filed to start running and final judgment delivered on the petition within 180 days. The 180 days in this petition filed on 30th April, 2011 should expire on the 27th October, 2011. After this date the Tribunal has no jurisdiction to hear this petition in any form or manner.
By virtue of S. 285 (6) 1999 Constitution. (As amended) a right to continue with this petition is extinguished after the 180 days envisaged by this section. Egbe V. Adefarasin (1987) 1 NWLR pt 47 pg 20.
Where the time frame is imposed by a statute or the Constitution unless it also makes provision for extension of time the court cannot extend time, Akinnuoye v. Milad, Ondo State (1997) 1 NWLR pt 483.
In the instant case, the Tribunal delivered its judgment on 12th October, 2011 within the 180 days envisaged by S. 285 (6) of the 1999 Constitution (as amended). The 180 days was supposed to have expired on 27th October, 2011.
I therefore hold that the Tribunal’s Judgment delivered as on 12th October, 2011 was still within time.
Does S. 285 (6) OF THE 1999 Constitution affect the Appeal filed in this court?
To answer this question reference must be made to S. 285 (7) of the 1999 constitution (as amended) which provides as follows.
“An appeal from a decision of an Election Tribunal or court shall be heard and disposed of within 60 days from the date of the judgment of the judgment of the Tribunal.”
The judgment of the Tribunal was delivered on 12th October, 2011 and this court has up to 11th December, 2011 to deliver its considered judgment.
I therefore hold that S. 285 (6) does not affect this appeal as it is so filed. Section 285 (7) is the subsection relevant to this court. With S. 285 (7) this court is still within time to deliver its judgment.
I therefore hold that this court has jurisdiction to hear this appeal. The Preliminary Objection has no merit and it is hereby struck out.
I will therefore go to the issues as articulated by the Appellant and adopted by the 1st & 3rd Respondents.
ISSUE 1
“Whether the leave of the Tribunal was required before application for the issuance of pre-hearing notice could be made.”
Learned counsel to the Appellant submitted that the leave of the Tribunal was not required before the application for the issuance of pre-hearing notice was made. Counsel referred the court to the unreported case of this count Aliyu Ibrahim Gebi v. Alhaji Garba Dahiru CA/J/EPT/HR/127/2011 delivered on 22nd August, 2011 where the court held as follows:
“In the result we are of the view that the letter to the Tribunal as in this case comprise and carries the intention and requirement of paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 (as) amended).”
Counsel urged the court to hold that leave is not required in order to activate Pre-hearing Notice.
The learned counsel to the 1st Respondent in reply submitted that para 47 (1) of the 1st Schedule provided that leave ought to be sought before an application for pre-hearing notice is made. Counsel argued further that once the statutes provide for a pre-condition, it ought to be followed See Nwodike v. Ibekwe (1987) 4 NWLR pt 67 page 718; Nwankwo v. Yar’Adua (2010) 12 NWLR pt 1209 page 518; Okereke v. Yar’Adua (2008) 2 NWLR pt 1100 page 95 and ACN v. Godswill Akpabio EPT/AK5/Gov/15/2011 delivered on 18th July, 2011.
Counsel submitted further that there was nowhere the Petitioner/Appellant sought for leave before applying for pre-hearing notice. Also that the Petitioner/Appellant did not show any extreme circumstances why the application ought to have been heard outside the pre-hearing session.
Counsel urged the court to dismiss this appeal on this issue alone.
The learned counsel to the 3rd Respondent also argued in the same vein.
Caution must be exercised in the interpretation of S. 18(1) and S. 47(1) of the Electoral Act 2010 as amended. Section 18 (1) provides as follows:
“Within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after filing and service of the respondent’s reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
This section is clear and unambiguous. There is no where leave was mentioned in the application of pre-hearing notice. In Aliyu Ibrahim Gebi v. Alhaji Garuba Dahiru & 3 ors (supra) the court held that an application may be made by a letter requesting for Pre-hearing. This has also been endorsed by the Supreme Court which went further to state that an oral application to the court is also sufficient. There is no provision for leave to be obtained before an application for Pre-hearing is to be made. Leave is not a pre condition of S. 18 (1).
Section 47 (1) provides as follows:
“No motion shall be moved and all motion shall come up at the pre-hearing session except in extreme circumstance with leave of Tribunal or Court.
This section envisages any other motion other than the application for pre-hearing. It provides that all other motions shall be taken of the Pre-hearing except in extreme case where it shall be taken with leave of court.
The Tribunal misunderstood the situations where leave of court should be obtained before an application can be made.
I therefore hold that leave of court is not necessary when making an application for pre-hearing notice. Issue one is therefore resolved in favour of the Appellant.
ISSUE 2
Whether the lower tribunal was right in failing or refusing to follow and apply the binding decisions of the Court of Appeal (Jos Division) in ALIYU IBRAHIM GEBI V. ALHAJI GARBA DAHIRU & others in CA/J/EP/HP/127/2011 delivered on 22nd August 2011 contrary to the well established principles of stare decisis.
Appellant’s learned counsel submitted that the Tribunal had no option whether or not it should follow the decision of the full court of the Court of Appeal Jos Division cited in furtherance of its Petition. Counsel urged the court to hold that the Tribunal was duty bound to follow a decision of the Court of Appeal to resolve this issue.
Suffice it to say that the Rule of Stare Decisis is not made in vain. There is hierarchy in the courts. A court is duty bound to follow the decisions of a higher court. As soon as the decision of a Higher Court is brought to the notice of the tribunal it has no choice but to follow it. The decision in Aliyu Ibrahim Gebi v. Alhaji Garuba Dahiru & 3 ors (supra) is therefore binding on the Tribunal. The Tribunal ought to have followed it in reaching its decision. I therefore resolve this issue in favour of the Appellant. The 2 issues articulated by the Appellant are both resolved in his favour. The appeal is meritorious and therefore allowed.
The judgment of the Tribunal delivered on 12th October, 2011 is hereby set aside. The Petition No EPT/AKS/HP/1/11 is remitted for the second time to be heard de novo by a Panel differently constituted. It is also further ordered that Forms TF 007 and TF 008 are to be issued as a consequential order flowing directly from the judgment. See Inakoju V. Adeleke (2007) 4 NWLR pt. 1025 page 432. Liman v. Mohammed (1999) 9 NWLR pt. 617 page 116 A-G Fed. V. AIC Ltd (2000) 6 SC page 175. I make no orders as to costs.
JOSEPH TINE TUR, J.C.A: I have read in advance the judgment delivered by my Lord, Uzo I. Ndukwe-Anyanwu, JCA, and I concur that this appeal should be allowed and the petition remitted once more for retrial on the merit. I shall add some comments of mine because the appeal raises an interesting issue relating to the jurisdiction of Election Tribunals to entertain petitions remitted to them by appellate courts for hearing or trial de novo, namely, whether the 180 days stipulated under Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered for delivering judgment having expired, they shall decline jurisdiction to entertain the Petition.
The Independent National Electoral commission (3rd Respondent) conducted election into the Itu Federal Constituency of Akwa Ibom State on 9th day of April, 2011 Kenneth Edet Archibong (1st Respondent) polled 38,253 votes and was returned as duly elected to represent the constituency in the National Assembly. Idongesit Godwin Akpan Udokpo (petitioner/appellant) of the Action Congress polled 16,028 votes. Being aggrieved by the declaration of result the appellant filed a petition before the Election Tribunal sitting in Uyo, Akwa Ibom State on 30-04-2011 challenging the result of the election and declaration on various grounds without a hearing on the merit. The Tribunal dismissed the petition on technical grounds. The appellant appealed to this Court. On 16-09-2011 the petition was sent back to the lower Tribunal for re-trial de novo.
Upon the petition coming up for hearing the 1st Respondent raised objection that hearing could not commence because the petitioner did not seek leave of the Tribunal under paragraphs 18(1) and 47(1) of the 1st Schedule to the Electoral Act, 2010 as amended for the issuance of Forms TF007 and TF008 for pre-trial session to commence. Though the attention of the Tribunal was drawn to the unreported judgment of the Court of Appeal, Jos Division in Appeal No.CA/J/EP/HR/127/2011 delivered on 22-08-2011 viz Aliyu Ibrahim Gebi v. Alhaji Garba Dahiru & 3 ors to the effect that no leave of the Tribunal was needed for the issuance of pre-hearing notice as in Forms TF007 and TF008, the Tribunal held at page 871 lines 4-6 of the printed record as follows:
“We hold that the failure of the Petitioner to apply for leave is fatal to the petition. On this we refer to the case of AC v. Godswill Akpabio (supra) on page 8, 2nd paragraph line 11.”
The appeal in Senator J. Ahpanudoedehe & 2 ors v. Godswill Akpabio & 3 ors CA/C/NAEA/Gov/173/2011 decided by the Court of Appeal, Calabar Division on 15th day of September, 2011 upon which the Tribunal relied to dismiss the appellant’s petition has now been set aside by the Supreme Court and a retrial ordered. The judgment of the Supreme Court is yet to be reported. The decision is no longer good law. For that reason the decision by the Court of Appeal, Jos Division in Aliyu Ibrahim Gebi v. Alhaji Garba Dahiru & 3 Ors supra represents the true and current position of the law on the issue in discourse.
Learned Counsel to the 1st Respondent took objection to the hearing of this appeal principally on the grounds that time for hearing election petitions by Election Tribunals is 180 days. The petition was filed on 30-04-2011 and the 180 days expired on 29-10-2011. That this Court lacked the jurisdiction to entertain this appeal and grant relief to the petitioner/appellant. Learned Counsel argued that this appeal is a continuation of the original petition before the Tribunal, citing Ogundiani v. Araba (1978) 11 NSCC 334 at 347. Counsel submitted that by effluxion of time this appeal has become totally unnecessary since whatever may be the out come the petition remains inchoate, spent and expired. That the Election Tribunal would lack jurisdiction to entertain same if an order for retrial is made by the Court of Appeal. Counsel cited Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered as authority for this submissions.
Learned Counsel to the appellant filed a Reply brief wherein it was argued that the Constitution gives a right of appeal from decisions of Election Tribunals to the Court of Appeal. That Section 285(6) of the Constitution supra ought not to be interpreted as to extinguish the right of a successful appellant from being heard on the merit by the Election Tribunal. That should the appeal succeed and the petition is remitted to the Tribunal, hearing will start de novo consequent upon which the 180 days will commence afresh.
There is no doubt that on the 16th day of September, 2011 the Court of Appeal, Calabar Division, remitted this very petition to the Election Tribunal for retrial on the merit. An appeal is a proceeding undertaken to have a decision of a lower Court or Tribunal reconsidered or reviewed by a higher authority for possible confirmation or reversal.
In most cases, where the judgment of the lower Court or Tribunal is set aside and a new trial is ordered unconditionally the appellate Court intends that the suit shall be heard “de novo” meaning “anew”. See Blacks Law Dictionary, 8th edition page 467. At page 738 the learned authors of Blacks Law Dictionary supra define the phrase “hearing de novo” as:
“(dee or di noh-volt). 1. A reviewing Court’s decision of a matter anew, giving no deference to a lower Court’s findings … 2. A new hearing of u matter, conducted as if the original hearing had not taken place.”
At page 1544 the learned authors of Blacks Law Dictionary supra again define the phrase “trial de novo” as:
“(dee or di noh-voh). A new trial on the entire case – that is, on both questions of fact and issues of law – conducted as if there had been no trial in the first instance… ”
In Fadiora v. Gbadebo (1973) 1 LRN 97 Idigbe, JSC, stated the effect of “de novo” hearings or trials at page 104 to be as follows:
“Put in another form, the question is 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 evidence and verdict given as well us 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 to and, indeed, must look at the pleadings before it in order to ascertain and decide the issues joined by the parties before it on their pleadings. This is the reason why it is a fundamental principle of the doctrine of res judicata that
“no finding of the Court or of a jury which has proved abortive, a new trial having been directed, will give rise to a valid plea of estoppel”
and over the years this principle has been hallowed by a number of important decisions, and we will mention a few in chronological order and also refer to important observations in some of them. In Gipps v. Gipps & Hume (1564) 11 HL Cas I, it was held that where by consent a jury has been dispensed with on the trial of a petition for divorce, if a new trial should be ordered, the consent previously given would no longer be binding and the petitioner might demand to have his case tried before a jury (per Lord Wensleydale). In Roe v. R.A. Naylor Ltd (1915) 87 LJKB 958, the court of second trial refused to admit in evidence some finding made by the Court of first trial as it was of the view that it was inadmissible and dealing with the point in the Court of Appeal, Swinfen Eady MR observed at p.963:
Counsel for the appellants sought to rely upon some finding of the judge in the first trial of the action. In my opinion he is not entitled to do that. This action was sent for a new trial, and the second trial superseded the first, and any finding in the first action was got rid of when the action was sent for new trial…”
At page 105 his Lordship held that:
“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…”
In my humble view when an appeal Court remits a petition for trial or hearing de novo, the second trial supersedes the first that had been set aside on appeal. In an election petition this will enable the parties to reprove their respective cases within the 180 days stipulated by Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered.
Section 285(5), (6) and (7) of the constitution of the Federal Republic of Nigeria, 1999 as altered provides as follows:
“(5) An election petition shall be filed within 21 days after the date of the declaration of result of the elections.
(6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
(7) An appeal from a decision of an election Tribunal or Court shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal.”
The legislature recognized that any parry that is aggrieved with the decision of a tribunal has the constitutional right to appeal to the Court of Appeal or the Supreme Court depending on the nature of the proceedings. For instance, where the appeal is in respect of a Governorship election, the final Court of Appeal is the Supreme Court. But if it is in respect of membership of the National or State Houses of Assembly, the appeal terminates at the Court of Appeal. The Judgment delivered by an appeal Court becomes the judgment of the lower Court or Tribunal. See Oyefeso v. Tola (1968) NMLR 317 and Olisedozi Nwokeleke v. Osele of Onicha (1956) WRNLR 87 at 91.For the purpose of this appeal, Section 287(2) of the Constitution of the Federal Republic of Nigeria, 1999 reads as follows:
“(2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the court of Appeal.”
The Election Tribunal from which this appeal emanated being subordinate to the Court of Appeal was bound to enforce the orders of this Court made on 16th September, 2011 that the petition should be heard or retried de novo. Without a hearing no judgment can be delivered within 180 days as stipulated under Section 285(6) and (7) of the Constitution.
The argument of learned Counsel to the 1st Respondent if accepted by this Court is to render impossible the carrying into effect the orders of the Court of Appeal.
In Maxwell on the Interpretation of Statutes, 12th edition by P. St. J. Langan p.326 the learned author has an answer to the argument of learned Counsel to the 1st Respondent as follows:
“Enactments which impose duties upon conditions are, when these are not construed as conditions precedent to the exercise of a jurisdiction, subject to the maxim, lex dispensing with the performance of what is prescribed when performance of it is impossible.
Thus, where an Act provided that an appellant should send notice to the respondent of his having entered into a recognizance, in default of which, the appeal should not be allowed, it was held that the death of the respondent was not fatal to the appeal, but dispensed with the service.
In the same way, the provision of the Summary Jurisdiction Act, 1857, S.2, which made the transmission by an appellant of a case stated by the within three days of receiving it a condition precedent to the hearing of the appeal, was held to be dispensed with when the Court was closed during those three days, compliance being impossible.” See R. v. Leicestershire Justices (1850) 15 Q.B 881; Mayer v. Harding (1867) LR 2 Q.B. 410.
The provisions of Section 285(6) and (7) of the Constitution of the Federal Republic of Nigeria, 1999 as altered should not be interpreted nor used as an engine of fraud to extinguish the rights of appellants who succeed on appeal from having their petitions if determined de novo by Election Tribunals on the flimsy excuse that the 180 days for determining the petition had expired. 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 running. To hold otherwise is to make mockery of the decision of the appeal Court and constitutional provisions. The legislature could not have intended such a monstrous construction or interpretation of the provisions of section 285(6) and (7) of the constitution, namely, to extinguish the rights of the petitioner/appellant from having the petition determined de novo and on the merit.
The legislature recognized the petitioner’s right to file the petition within 21 days of the declaration of result of the election by providing that the Tribunal shall deliver judgment in writing within 180 days from the date of the filing of the petition. The legislature again envisaged that an aggrieved party may appeal against the judgment or ruling of the Tribunal hence 60 days are determined for the Court of Appeal to deliver judgment if there is an appeal against that decision. The legislature is not omniscient as to know or determine the exact kind of order an Appeal Court shall make or grant upon hearing an appeal against the judgment or ruling of a Tribunal. The ultimately successful petitioner upon the determination of his appeal will be hindered from reaping the fruits of litigation if this Court accedes to the argument of learned counsel to the 1st Respondent that 180 days having expended, the appellant has no remedy before the Election Tribunal. In that case the appellant would have obtained a bare remedy on appeal.
The legislature could not have intended that the petitioner’s appeal, upon being successful, should be rendered nugatory and useless because of effluxion of time. This Court has the jurisdiction to prevent such a consequence. A successful party on appeal should reap the fruits of his litigation and not to obtain merely a barren success. In Polini v. Gray (1879) 12 Ch. D 438 at 446 Cotton L.J., held that:
“…where there is an appeal about to be prosecuted the litigation is to be considered as not at an end…”
See Chief Imam Y.P.O Shodeinde & Ors v. The Registered Trustees of the Ahmadiyya Movement – In – Islam (1980) 1-2 SC 99 at 106.
Again in Wilson v. Church (No.2) 12 Ch.D 454 at 458 Cotton L.J., held that:
“…I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal if successful is not nugatory… Acting on the same principle, I am of the opinion that we ought to take care that if the House of Lords should reverse our decision (and we must recognize that it may be reversed) the appeal ought not to be rendered nugatory.”
In Eyesan v. Sanusi (19S4) NSCC 271 Obaseki, JSC, held at page 282 that:
“…Generally speaking, a judgment delivered by the trial court in a case after the conclusion of the evidence and final addresses brings an action to an end. But if an appeal is filed and pending against the judgment, the action is not at an end.”
Lastly, I shall refer to Adegoke Motors Ltd. V. Adesanya (1989) 5 SC 113 where Oputa, JSC, held at pages 117-118 that:
“Generally, an appeal is regarded as a continuation of the original suit rather than the inception of a new action. Because of this, in an appeal, parties are normally confined to their case as pleaded in the Court of first instance. They are not allowed to made a new and different case on appeal. They are not allowed to raise in such appeal new issues without the express leave of Court or to proffer new evidence without such leave. An appeal, being a judicial examination by a higher court of the decision of an inferior court, it follows that such examination should normally and more appropriately be confined to the facts and issues that came before the inferior court for decision.”
This is not a new petition that is being filed before the Election Tribunal within 21 days of the declaration of result of election but is an order for hearing de novo the petition to be made by the Court of Appeal. The hearing by the Election Tribunal is to commence a new.
Having examined the judgment of the Tribunal, this Court has arrived at the decision that this appeal once again succeeds. The petition is remitted to the Election Tribunal differently constituted to hear and deliver judgment on the merit as stipulated by Section 285 (6) of the Constitution. I abide by all the orders made by my Lord.
ISAIAH OLUFEMI AKEJU JCA: I had the privilege of reading in draft form, the lead judgment of my learned brother, Uzo I. Ndukwe-Anyanwu, JCA just delivered.
It is an undisputed fact in this appeal that on 16th September, 2011, this Court allowed an appeal by the same appellant herein in respect of the same Election Petition No, EPT/AKS/HR/1/2011 and ordered a retrial of the petition on its merit. The Tribunal has failed to comply with that order of this court.
Consequently I agree that this appeal succeeds and I allow it. I abide by the order remitting the petition for hearing de novo as in the lead judgment.
Appearances
SAMUEL IKPO ESQ.For Appellant
AND
DAVID OBANDE ESQ.For Respondent
