PROF. STEVE TORKUMA UGBA & ANOR V. GABRIEL TORWUA SUSWAM & ORS.
(2012)LCN/5234(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of March, 2012
CA/MK/EPT/08/2012
JUSTICES
M. B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
REGINA O. NWODO Justice of The Court of Appeal of Nigeria
Between
1. PROF. STEVE TORKUMA UGBA
2. ACTION CONGRESS OF NIGERIA (ACN) – Appellant(s)
AND
1. GABRIEL TORWUA SUSWAM
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
RATIO
THE DOCTRINE OF STARE DECISIS
I must confess I find extremely enchanting the illuminating and unarguably powerful and persuasive arguments of the respective learned Senior Counsel for the parties in this appeal, but, I shall, at this juncture, with due respect to the learned Senior Counsel for the Appellants, take cognisance or acknowledgement of the structure or hierarchy of Courts in Nigeria as established by section 6 sub-section (5) (a)-(i) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended). By the afore-stated provision, the Supreme Court of Nigeria is the highest in the hierarchy of Courts, then, followed by this Court, the Court of Appeal. The Supreme Court takes precedence over this Court and by the long aged principle of Stare Decisis, and, by virtue of the provisions of section 257(1) of the 1999 Constitution (as amended), the decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Supreme Court. It follows, therefore, that whatever opinion this Court might have expressed over any given issue of law or section of the Constitution, the moment the Supreme Court, which is the highest Court in the land, the last Court, has determined such similar issue or exercise it’s interpretative jurisdiction over any aspect of the law or section of the Constitution, all the Courts in this Country must be bound by the decision or statement of law.
In the Black’s Law Dictionary, 9th Edition, page 1537, the phrase, ‘Stare Decisis’ is defined to mean; “to stand by things decided”. It is further described as “The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation. Furthermore, it is said that “The rule of adherence to judicial precedents finds its expression in the doctrine of stare decisis. This doctrine is simply that, when a point or principle of law has been once officially decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudications, unless it be for urgent reasons and in exceptional cases.” PER ORJI-ABADUA, J.C.A
THERESA NOGLIKA ORJI-ABADUA, J.C.A (Delivering the Leading Judgment): It is evident in the record of this appeal that the Appellants filed an election Petition on the 17th May, 2011 before the Governorship Election Petition Tribunal for Benue State sitting at Makurdi challenging the election of the 1st Respondent to the office of the Governor of Benue State on the 26th April, 2011 after the election conducted in that respect by the 3rd Respondent. The 1st Appellant, also, contested the said election as a candidate of the 2nd Appellant together with the candidates of other parties indicated in the Petition. The record further evidenced that the parties, at the initial stages of the election proceedings, were enmeshed in some procedural issues that dragged all of them up to the Supreme Court for final determination of the same. Eventually, on the 14th November, 2011, the Apex Court allowed the appeal, and, then ordered that the Petition be heard on the merits. Following the orders of the Supreme Court, the parties raced back to the Tribunal for hearing in the Petition. However, the compliance by the Tribunal with the said Supreme Court order was confronted with stiff oppositions by the Respondents herein, which resulted to various appeals being filed before this Court against the decision of the Tribunal still assuming jurisdiction to hear the Petition and deliver it’s judgment therein after the expiration of the period of 180 glaringly prescribed by section 285(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This Court, after hearing those appeals, and, in it’s wisdom, based on the available legal principles before it, dismissed the same on 2/2/2012 which then empowered the Tribunal to continue with the hearing of the Petition.
Nevertheless, during the parties’ second attempt at the Tribunal, following the Supreme Court’s order that the Petition be heard on the merits, both the Petitioner on the one hand and the 1st and 3rd Respondents respectively, on the other hand, filed some Motions on Notice on 30/12/11, 6/1/12 and 10/1/2012 respectively. The said applications were heard together by the Tribunal, and, in its conclusion it ordered thus;
“1. The leave to move and argue all the applications outside the Pre-hearing Session was granted on 20/01/2012 when Counsel started to move their various applications.
2. An order is hereby made for the adoption of the order made by the former Tribunal on the 13th day of May, 2011 and 29th June 2011 respectively for the Petitioners/Applicants to inspect and obtain Certified True Copies of Election materials used in the conduct of the Governorship Election in Benue State held on the 25th day of April, 2011.
3. An order is hereby made adopting the order of the former Tribunal made on 12th day of September, 2011 granting the Petitioners/Applicants orders to file, serve and rely on additional written statement on Oath of the witnesses who carried out the inspection of Election material rely on the inspection compiled and for such persons to testify. These orders are made pursuant to the Petitioners’ Motion filed on 31/12/2011.
Furthermore, it is hereby ordered that
(a) Parties and this Tribunal shall adopt and rely on the Pre-trialed (sic) and or Pre-hearing proceedings conduct (sic) by this Honourable Tribunal presided over by Hon. Justice M. Ladan in this Petition which proceedings were restored by the Supreme Court in the judgment delivered on 14/11/2011 and are still valid subsisting and binding on all parties and this Honourable Tribunal.
(b) An order is hereby made confining parties herein and this Honourable Tribunal to the Pre-hearing report issued by this honourable Tribunal led by Honourable Justice M. Ladan in this Petition accordingly no further Pre-hearing or Pre-trialed Session shall be conducted on this Petition.”
Consequent thereto, the Appellants lodged an appeal against the said decision made by the Tribunal on 23/1/12. The said Notice of Appeal was filed on 26/1/2012 which was premised on three grounds of appeal. As a result, Briefs of Argument were filed and exchanged between the parties. However, on 13/2/2012, the Appellant’s filed a second Notice of Appeal against the rulings of the said Tribunal delivered on the 23rd January, 2012 and 13th February, 2012 which they, now, anchored on eleven grounds of appeal. The Appellants further filed a Motion on Notice on the 8th March, 2012 for enlargement of time to compile and serve on the parties a Supplementary Record of Appeal and for the said Supplementary Record of Appeal already compiled and served on the parties to be deemed as properly compiled and served. It was not opposed by the parties, and the same was granted by this Court. Meanwhile, the Appellants had withdrawn their initial Notice of Appeal filed on 26/1/2012 in view of the Appellants’ prayers granted on 8/3/2012. All the parties filed their respective Briefs of Argument on the same 8/3/2012 and this appeal was heard later in the day, on the said 8/3/2012.
At the hearing of this appeal, the Appellants Brief of Argument filed on 8/3/2012 which, apparently, was signed by their principal Learned Senior Counsel, Oluwarotimi Akereboun, S.A.N., was adopted before this Court by their other Counsel, S.A. Orkumah Esq. who, as a matter of fact, had consistently been appearing before this Court together with other Counsel on behalf of the Appellants. Six issues were propositioned by the Appellants for the determination of this Court, that is to say;
“1. Was the trial Tribunal correct in law in adopting the pre-hearing/ pre-trial proceedings conducted and Report issued by the previous panel presided by the Hon. Justice M. Ladan and whether the Supreme Court restored the said proceedings/Report; (Ground 1, 2, 6, 7 and 9 of Appeal).
2. What is the legal implication of the order of the Supreme Court that the Petition be heard on the merits and the Constitution afresh of the Governorship Election Petition Tribunal; (Grounds 4 and 5 of Appeal).
3. Whether in view of paragraphs 27(1) of the First Schedule to the Electoral Act 2010 (as amended) the lower Tribunal was competent imbued with jurisdiction to adjudicate in the applications of 1st and 3rd Respondents; (Ground 11 of Appeal).
4. Whether in the circumstances the lower Tribunal did not violate appellants’ fundamental right to fair hearing guaranteed by S.36 (1) of the 1999 Constitution (as amended); (Ground 3 of Appeal).
5. Whether the 1st and 3rd Respondents’ application were not caught in the web of paragraph 53(2) of the 1st Schedule to the Electoral Act 2010 (as amended) when they had taken fresh steps in applying for prehearing, filing and exchanging forms and adopting same before bringing their applications (Ground 8 of Appeal).
6. Whether in the face of copious documentary and unchallenged evidence and the state of the pleadings, the trial Tribunal was right in law in refusing to enter judgment against the 1st, 2nd and 3rd Respondents respecting Ground 3 of the Petition (Ground 10 of Appeal)”.
Upon receipt of the Appellants’ Brief of Argument, the 1st, 2nd and 3rd Respondents respectively filed Notice of Preliminary Objection to the hearing of this appeal.
The 1st Respondents in his Notice of Preliminary Objection prayed for dismissal of this appeal for want of jurisdiction. The said objection was predicated on nine grounds which read thus;
“(a) By section 285 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), an election petition tribunal shall deliver its judgment in writing within 180 days from the date of filing of the petition.
(b) The Appellants’ petition was filed on the 17th day of May, 2011.
(c) The 180 days prescribed for the hearing and delivery of judgment in the Appellants’ petition lapsed on the 13th of November, 2011.
(d) On the 14th day of November, 2011 when the Supreme Court ordered that the Appellants petition be heard on the merits, the 180 days prescribed by the Electoral Act had already lapsed leaving the Appellants with a spent and unenforceable cause of action before the trial Tribunal.
(e) This Honourable Court lacks the jurisdiction to hear this appeal for being academic because from the 13/11/11, the tribunal was robbed of the competence and jurisdiction to determine the Appellants’ petition which gave rise to this appeal.
(f) From the 13/11/11 there was no longer any live issue in both the petition which gave rise and is the basis of this appeal and the appeal itself.
(g) This Honourable Court determines only live issues and not academic issues.
(h) It is necessary to save the Honourable Court the trouble of dissipating energy and resources in deciding an appeal over a subject matter that lapsed on 13/11/11.
(i). The Honourable Court should not be made to act in vain”.
The argument buttressing the 1st Respondent’s contention was incorporated in his Brief of Argument, and, on that footing, he articulated only one issue for the determination of this Court which I hereunder reproduce thus;
“whether this appeal has not become an academic exercise having regard to the expiration of the petition which gave rise to the appeal, the petition having lapsed on 13/11/11 by the operation of section 285 (5) of the 1999 Constitution (as amended), in view of the recent decisions of the Supreme Court in Action Alliance vs. INEC & 4 Ors in Appeal No. SC.23/2012 delivered on 14/2/12 (unreported) and the consolidated Appeals in ANPP vs. Alhaji Kashim Shettima & Anor and Alh. Mohammed Goni & 2 Ors in Appeals Nos. SC.1/2012 and SC.2/2012 delivered on 17th February, 2012”.
The 2nd Respondent, also, via its Learned Senior Counsel, Chief Solo Akuma, S.A.N., filed before this Court a Notice of Preliminary Objection, and in respect of which it excogitated only one issue in its Brief of Argument thus;
“Whether there is a competent appeal before the Honourable Court as the purported Notice of Appeal filed by the Appellants is in respect of two interlocutory decisions of the lower Tribunal lumped together in one Notice of Appeal”.
The 3rd Respondent also displayed its uncomfortableness with the Notice of Appeal filed by the Appellants by, equally, filing a Notice of Preliminary Objection on the same 8/3/12 challenging the jurisdiction of this Court to hear and determine this appeal. The objection was premised on the grounds that;
“(i) By the decisions of the Supreme Court in the unreported cases of Action Alliance vs. INEC, Appeal No. SC.23/2012 delivered on 14/2/2012, Amadi vs. INEC & Ors, Appeal No. SC. 476/2011 and consolidated Appeals No. SC.1/2012 and SC.2/2012, this Honourable Court lacks the jurisdiction to grant all or any of the reliefs in the notices and grounds of appeal filed on 26/1/2012 and 13/12/2012 and the Appellants appeals have been over taken by events and have completely become academic, outside the jurisdiction of this Honourable Court.
(ii) There is no more pending petition before the trial Tribunal and by the decision of the trial Tribunal on 28/2/12 pursuant to the judgments of the Supreme Court aforesaid, the petition of the Appellants has been struck out.
(iii) The success of this appeal confers no legal utility or benefits on the Appellants and or the Respondents, as the substratum of the appeal, is extinguished by the judgments of the Supreme Court aforesaid and the Ruling of the Tribunal below delivered on the 28/2/2012 striking out the Appellants’ petition.
(iv) By section 285 (6) of the 1999 Constitution the trial Tribunal was completely devoid of jurisdiction to hear and determine the motions leading to the appeals filed on the 26/1/2012 and 13/2/2012, consequently this Honourable Court lacks the competence to grant any or all the reliefs in the notices and grounds of appeal filed on 26/1/2012 and 13/2/2012.
(v) Even if which is not conceded the appeals of Appellants have merit, judgment cannot be entered for the petitioners/appellants outside the 180 days provided by section 285 (6) of the 1999 Constitution and consequently, the reliefs sought in the notices and grounds of appeal filed on 26/1/2012 and 13/2/2012, are not within the jurisdiction of this Honourable Court to grant.”
In countering the objections raised by the Respondents, the Appellants filed a Reply Brief on the same 8/3/12.
In respect of the Preliminary Objection raised by the 1st Respondent, his team of Learned Senior Counsel fed by D.D. Dodo, S.A.N, in his Brief of Argument adopted before this Court by Chief E.K. Ashiekaa, this Court’s attention was drawn to the provisions of section 285 (6) of the 1999 Constitution of Federal Republic of Nigeria, (1999) (as amended), and the Supreme Court’s decisions in Action Alliance vs. Independent National Electoral Commission & 4 Ors in Appeal No. SC. 23/2012 delivered on 14/2/12 (unreported) and the consolidated Appeals of All Nigeria Peoples Party vs. Alhaji Kashim Shettima & Anor and Alh. Mohammed Goni & 2 Ors in Appeals Nos. SC.1/2012 and SC.2/2012 delivered on 17th February, 2012 per Onnoghen, J.S.C. It was then urged upon this Court to strike out or dismiss the appeal.
Then, presenting his argument regarding the 2nd Respondent’s Preliminary objection, it’s learned Senior Counsel, in it’s Brief adopted before this Court by S.A. Udaga, invoked the provisions of section 24(2) (a) of the Court of Appeal Act (2010 Amendment) which stipulates that “where the appeal is against an interlocutory decision, it has to be filed within 14 days, but, if it is against a final decision, it shall be filed within three months.” It was submitted that by the provisions, there should be a notice of appeal against one interlocutory decision as opposed to lumping together, several interlocutory decisions delivered on different dates, which decisions were not consolidated into a single notice of appeal. The learned Senior Counsel further referred to the provisions of paragraphs 9 and 10 of the Election Tribunal and Court Practice Direction 2011 which provides that the Secretary shall within a period of not more than 10 days of the receipt of the Notice of appeal, cause to be compiled and served on all the parties, the record of proceedings, and, strongly argued that non service of the record of appeal which incorporates the proceedings of the 13th February, 2012, on the 2nd Respondent, renders the appeal incompetent. In furtherance to his submission, the learned Senior Counsel stressed that there is no live issue between the parties to this appeal in view of the recent Supreme Court decision in the interpretation of section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) in the consolidated judgment in the appeal numbers SC.1/2012; SC.2/2012 between ANPP vs. Alh. Mohammed Goni & 4 ors and Alh. Kashim Shettima & 1 or vs. Alh. Mohammed Goni & 3 ors delivered on the 17th day of February, 2012.
Learned Senior Counsel stated that it is settled that there must exist between the parties to a suit, or an appeal, a matter in actual controversy which the Court is called upon to decide as a living issue. This is because; Courts in this Country have no jurisdiction to give advisory opinion. Any judgment which does not decide a living issue is academic or hypothetical and stands in its best quality only as an advisory opinion. He cited A.G. Federal vs. ANPP (2003) 18 NWLR Part 851 p. 182 at 215 para C-H, Plateau State of Nigeria & Anor V. A.G. Federation & Anor (2006) 3 NWLR Part 967 p. 346 and Action Alliance vs. INEC (supra) in support. He strongly contended that the 180 days provided for the hearing of the Petition at the election Tribunal had elapsed and that by the decisions of the Supreme Court in the aforementioned cases, this appeal is misconceived and ought to be dismissed. Arguing in respect of the preliminary objection of the 3rd Respondent, the learned Senior Counsel, for the 3rd Respondent, submitted that this appeal has been overtaken by events and has completely become academic outside the jurisdiction of this Honourable Court. He submitted that the Supreme Court in the unreported cases of Action Alliance vs. INEC, Appeal No. SC. 23/2012 delivered on 14/2/2012, Amadi vs. INEC & Ors, Appeal No. SC.476/2011 and consolidated Appeals No. SC.1/2012 and SC. 2/2012 has held that by section 285(6) of the 1999 Constitution, all petitions filed must be heard and determined within 180 days from the date of filing. He argued that by the operation of section 285(6) of the 1999 Constitution (as amended), the Petition filed by the Appellants on 17/5/2011, became constitutionally barred on the 12th November, 2011. Therefore, as at 26/1/2012 and 13/2/2012 respectively, when the Tribunal made the decisions being appealed against, the Tribunal was devoid of the jurisdiction to make the same. The learned senior silk further elucidated that, indeed, following the said Supreme Court decision, the Tribunal struck out the Appellants’ said Petition before it. He said that the appeal is futile and would serve no purpose, therefore, this Court should not embark on academic exercise, which it does not have any jurisdiction to do. Learned Senior Counsel then referred to the cases of Yar’Adua vs. Abubakar (supra), Plateau State vs. Attorney General of the Federation (2006) ALL FWLR Part 305 p. 590 at 646-647, Sambo vs. Aliero (2010) ALL FWLR Part 541 p. 1569 at 1589 paras. C-E, Odedo vs. INEC (2008) 17 NWLR Part 1117 p.554 and urged that the 3rd Respondent’s preliminary objection be upheld, and, this appeal be struck out.
In the Appellants’ reply on points of law, the Learned Senior Counsel, via S.A. Orkumah, Esq; submitted that the issue so raised has no correlation with the record of appeal, and, that it constituted a gross abuse of court process. He explained that on 2/2/2012, this Court dismissed the 1st and 2nd Respondents’ appeal on the same issue of 180 days and then adduced its’ reasons later. He intimated that an appeal has been lodged before the Supreme Court against the said judgment and it is pending thereat in Appeal No. SC. 63/2012, therefore, this Court lacks the jurisdiction to adjudicate over the 1st and 2nd Respondents’ preliminary objection. He relied on the cases of ANPP vs. Mohammed Goni & Ors Appeal Nos. SC.1/2012; SC.2/2012, Kashim Shettima vs. Mohammed Goni delivered on 17/2/2012, Action Alliance vs. INEC Appeal No. SC23/2012, Saraki vs. Kotoye (1992) 9 NWLR Part 264 p. 156 at 188 (F-H), Dingyadi vs. INEC (No. 2) (2011) 18 NWLR Part 1224 p. 1 at 221; African Re. Corp vs. JDP Const. (Nig.) Ltd (2003) 13 NWLR Part 838 p. 609 at 635 (H), Agwasim vs. Ojichie (2004) 10 NWLR Part 882 p. 613 at 524 (E), 622 (F), Umeh vs. Iwu (2009) 4 EPR p. 1 at 19-39, to buttress these strong points.
The learned Senior Counsel further invoked the provisions of Order 8 Rule 11, of the Supreme Court Rules, 1999 (as amended) which he stressed should be read together with the same Supreme Court Order 2 Rule 30 and stoutly contended this Court is barred from entertaining any application relating to appeal No. SC. 63/2012 to which the 1st and 2nd Respondents are parties. The learned senior Counsel hinged his quite persuasive arguments in this regard on the decisions in Ezeokafor vs. Ezeilo (1999) 9 NWLR Part 619 p. 553, Ezemo vs. AG-Bendel State (1986) 4 NWLR Part 36 p.448, Awuse vs. Odili (2004) 2 NWLR Part 192 p. 254, Mohammed vs. Olawunmi (1993) 4 NWLR Part 287 p. 254, Brocon vs. Agrochern (Nig.) Ltd vs. Kudu Holding Party Ltd (1996) 3 NWLR Part 437 p. 373, Adekanyi vs. Comptroller of Prisons (2000) 12 NWLR Part 682 p. 563. He further made reference to Ahmed vs. Yakubu (2009) 6 NWLR Part 1138 p. 493 at 511 (A-G), and this Court’s decisions in Appeal Nos. CA/MK/EPT/6/2012 and CA/MK/EPT/1/2012 of 2/2/2012 and contended that this Court is functus officio and cannot revisit the same by sitting on appeal over its subsisting decision.
It was further contended on behalf of the Appellants that the decision being relied upon by the Appellants were given in flagrant violation of the provisions of section 234 of the said Constitution (as amended) and therefore rendered without jurisdiction and consequently a nullity by virtue of section 64 of the Evidence Act, 2011. It has no binding force, the learned Senior Counsel expressed, citing the case of Sokoto State Govt. of Nig. vs. Kamdex (Nig.) Ltd (2007) ALL FWLR Part 355 p.469; (2007) 7 NWLR Part 1034 p. 465. He strenuously argued that the said decisions contravened the parties’ fundamental rights to fair hearing as entrenched in section 36 of the 1999 Constitution (as amended) and sections 233(2)(b), (c) and (e)(iv) and 285(7) of the same Constitution. He also stressed that the decision negated the interpretation made by the full panel of the same Supreme Court in the cases of LPDC vs. Fawehinmi (1935) 7 SC p. 178; (1985) 2 NWLR Part 7 p. 300, Atano vs. Attorney-General Bendel State (1988) 2 NWLR Part 75 p. 210, Adeniyi vs. Governing Council of Yaba College of Technology (1993) 6 NWLR Part 300 p. 526, Bello vs. AG Oyo State (1985) 12 SC 1 and Nafiu Rabiu vs. Kano State (1930) 8-11 SC p. 1-30. He, then, urged that this arm of preliminary objection be struck out for incompetence or dismissed for lacking in substance.
I must confess I find extremely enchanting the illuminating and unarguably powerful and persuasive arguments of the respective learned Senior Counsel for the parties in this appeal, but, I shall, at this juncture, with due respect to the learned Senior Counsel for the Appellants, take cognisance or acknowledgement of the structure or hierarchy of Courts in Nigeria as established by section 6 sub-section (5) (a)-(i) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended). By the afore-stated provision, the Supreme Court of Nigeria is the highest in the hierarchy of Courts, then, followed by this Court, the Court of Appeal. The Supreme Court takes precedence over this Court and by the long aged principle of Stare Decisis, and, by virtue of the provisions of section 257(1) of the 1999 Constitution (as amended), the decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Supreme Court. It follows, therefore, that whatever opinion this Court might have expressed over any given issue of law or section of the Constitution, the moment the Supreme Court, which is the highest Court in the land, the last Court, has determined such similar issue or exercise it’s interpretative jurisdiction over any aspect of the law or section of the Constitution, all the Courts in this Country must be bound by the decision or statement of law.
In the Black’s Law Dictionary, 9th Edition, page 1537, the phrase, ‘Stare Decisis’ is defined to mean; “to stand by things decided”. It is further described as “The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation. Furthermore, it is said that “The rule of adherence to judicial precedents finds its expression in the doctrine of stare decisis. This doctrine is simply that, when a point or principle of law has been once officially decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudications, unless it be for urgent reasons and in exceptional cases.”
It is imperative to observe that as at the date of 2nd February, 2012 when this Court delivered its judgment in the unreported Appeal No. CA/MK/EPT/06/2012 dismissing the appeal of the 1st Respondent, the Supreme Court had not delivered its judgment in AC vs. INEC (supra) and the notable case of ANPP vs. Goni (supra). Then, this Court was at liberty to interpret and apply the said provisions of section 285(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) as it fully appreciated and understood them.
Now, that the Supreme Court, being the highest and final Court in Nigeria, has finally interpreted the provisions of the said section 285(6) of the 1999 Constitution (as amended), this Court is now bound, by the rule of precedent, to, automatically, obey the said decision, follow and apply it in any subsequent decision of it, where section 285(6) of the Constitution rear it’s head for interpretation. This Court, too, is caught up in the web of section 287(1) of the said Constitution (as amended) to comply with the current position of the Law on the period of 180 days within which the Tribunal was mandated to deliver it’s judgment as the Supreme had set the perimeter.
I am afraid; this Court does not possess the prowess to do anything to the contrary. Our duty right now is to obey and apply the law as the apex Court has fixed it. Until that decision is reviewed or set aside by the Supreme Court itself, no Court created by the said Constitution can depart from it. Applying the current interpretation by the Supreme Court, of the said section 285(6) to the present case is the only duty this Court owes now. It does not matter that this Court had taken a contrary view in the past; the contrary view has now been superseded by the decision of the Supreme Court which this Court is duty-bound to follow.
Like a family unit or structure, the Supreme Court is the Father and Mother of the Nigerian Judiciary, that the moment any pronouncement is made by it over any section of the law or the Constitution, all the Courts shall willy-nilly abide by it, otherwise, any slight recalcitrance shall attract some admonition or reproach as it was glaringly done in the recent case of ANPP vs. Goni (supra) delivered on the 17th February, 2012. It was copiously stated in the record that this appeal emanated from the decision of the Tribunal made on the 26th January, 2012 in relation to the applications made by the Appellants, the 1st and 3rd Respondents respectively. Since this appeal was heard after the famous case of ANPP vs. Goni (supra) wherein the position of the Constitutional provisions of section 285(6) has been set aright by our Law Lords, it became necessary too, for the Respondents herein to, once again question the jurisdictional competence of the Tribunal and of this Court, on appeal, to continue to entertain the election Petition proceeding.
I must observe that this appeal is completely different from the one of CA/MK/EPT/06/2012 already determined by this Court touching on a different decision of the Tribunal. It seemed necessary to the Appellants to raise preliminary objections challenging the jurisdiction of this Court to entertain the present appeal in the light of the said recent decisions of the Supreme. It is clear that as many a time as the Respondents deem it necessary to raise the issues of jurisdiction in different and unrelated appeals to which they are parties, they are entitled so to do, and, this Court is, equally, under obligation to determine the issues as they are being raised in those different and unrelated appeals, therefore, this appeal does not constitute an abuse of process of the Court in the light of the new position of the law.
As I noted earlier, the previous position or decision of this Court, not being, the final Court of the land, in relation to the provisions of section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), has been superseded by the ultimate decision of the Supreme Court delivered on the 17th February, 2012.
Now, dealing with the basics in this appeal, the record shows, as I observed earlier, that the Petition of the Appellants before the Tribunal was filed on the 17th May, 2011. The Tribunal had only 180 days within which it ought to have delivered its judgment therein by virtue of section 285(6) of the Constitution. By computation of time, the period obviously expired on the 13th November, 2011.
It is clear in the recent Supreme Court decisions that section 235(6) of the Constitution does not admit of any other interpretation. Once the Tribunal’s period of 180 days had expired, the Appellant’s Court’s 60 days clearly stipulated in section 285(7) of the Constitution (as amended) within which it ought to hear and dispose of the appeal emanating from the judgment of the Tribunal delivered within 180 days, i.e. before or on the 180th dry, over the election Petition, come to nought as any decision made by it within it’s own constitutionally guaranteed period so to do, in respect of the appeal, but outside the 180 days given to the Tribunal only, becomes a trash and a nullity, and cannot be implemented. In view of the foregoing, this Court has no option than to abide by the Supreme Court’s interpretation of the provisions of section 285 sub-section (6) of the 1999 Constitution (as amended), and, uphold the respective preliminary objections of the Respondents. It must be remarked that since the validity of the Petition is being challenged, in the same category as a suit or an action that has become statute barred, the right order to make hereat is that of dismissal. Accordingly, this appeal will be and is hereby dismissed by this Court. There will be no order as costs.
M. B. DONGBAN-MENSEM: I AGREE.
REGINA OBIAGELI NWODO: I had read in draft before now, the judgment of my learned brother Orji Abadua, JCA just delivered. I agree with the reasoning contained therein and conclusion arrived thereat which I adopt as mine and dismiss the appeal.
Appearances
S.A. Orkumah Esq; with J.T. Agor Esq; and T.A.R Tombowua Esq;For Appellant
AND
Chief E.K. Ashiekaa with T.T. Igba Esq; Kenneth Ula Esq; N.L. Ikyaagba (Mrs.) and F.T. Kusugh Esq;
S.A. Udaga Esq; with P.N. Jooji (Miss) holding the Brief of C.A. Gbehe Esq;
J.S. Okutepa, S.A.N; with M.O. Ozueh Esq; N.I. Ogoh (Miss), O.M.
Ajonye Esq; Ocholi O. Okutepa Esq; Ede Uko Esq; D.M. Tsevende Esq;
S.I. David (Miss), S.U. Akoh Esq; and M.M. Narimi Esq;For Respondent
