ARC. AUSTIN ASEMA ACHADO & ANOR v. CHRISTIANA ALAAGA & ORS
(2012)LCN/5302(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of April, 2012
CA/MK/EPT/16/2012
RATIO
JUDICIAL PRECEDENT: BINDINGNESS OF DECISIONS OF THE SUPREME COURT
For clarity, I will hereunder reproduce the provisions of Sections 287(1) of the Constitution of the Federal Republic of Nigeria, 1999 and 59 of the Evidence Act, 2011 (as amended) which provide as follows:
287(1). 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.”
- The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact, evidence of which is admissible when the question is whether such court ought to take cognizance of such suit or to hold such trial.”
Section 287(1) provides in clear terms the binding effect of Supreme Court decisions on all subordinate jurisdictions of the courts, that would obey and enforce Supreme Court decisions, similarly, the provisions of Section 59 of the Evidence Act. PER CHIDI NWAOMA UWA, J.C.A.
ELECTION PETITION: PERIOD AN ELECTION TRIBUNAL SHOULD DELIVER ITS JUDGMENT
In the recent decisions of the Supreme Court in the consolidated Appeals No. SC/332/2011; SC/333/2011 and SC/352/2011 SHETTIMA v. GONI & 4 ORS delivered on 31st October, 2011 (Unreported) at page 21 of the judgment on the interpretation of Section 285(6) of the Constitution held as follows:
“By the provisions of Section 285 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended/altered) hereafter referred to as the 1999 Constitution as amended/altered.
“An Election Tribunal shall deliver its judgment in writing within 180 days from the date of filing the petition.”
It is my considered view that the three provisions quoted above supra are clear and unambiguous and by the principles of interpretation of statute, to the effect that where the words of any statute are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution or statute, effect must be given to those provisions without recourse to any other consideration, they ought to be so treated.”
It is therefore clear that an election tribunal must deliver its judgment in writing in an election petition within 180 days from the date of filing of the petition. Sections 285(6) and 134 (2) referred to above, are mandatory and leaves no room for discretion. The tribunal and this court are bound to strictly comply with the above provisions. In this case, the computation of time does not stop because of intervening factors such as there having been an earlier appeal, which was allowed, in which an order for trial on the merits on 2nd November, 2011 as erroneously argued by the learned counsel to the appellants. Hearing in this case, is within the 180 days allowed by the law. An order for trial on the merits or retrial can not form the basis or be an excuse or reason to hear an election petition beyond 180 days. PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES:
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. ARC. AUSTIN ASEMA ACHADO
2. ACTION CONGRESS OF NIGERIA (ACN) – Appellant(s)
AND
1. CHRISTIANA ALAAGA & 104 ORS Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appellants as petitioners at the Tribunal filed a petition on the 17th day of May, 2011 against the declaration and return of the 1st Respondent herein as member representing Gwer East/Gwer West Federal Constituency in the election that took place on the 26th day of April, 2011.
The parties exchanged pleadings and the 1st Respondent in her reply gave a notice of preliminary objection to the competence of the petition by a motion on notice filed on 11/7/2011, prayed the Tribunal to strike out the name of the 1st Respondent and the entire petition. The ruling was adjourned to 10/9/11, on that date the Tribunal suo motu raised the issue of service of the petition and called on counsel on both sides to address it on the propriety or otherwise of the service of the petition on the 4th 105th Respondents, consequently, the Rulings were further adjourned to 14/9/11 when the Tribunal delivered its Ruling and dismissed the petition.
The appellants were dissatisfied with the dismissal of the petition and appealed to this court on 29/9/2011 challenging the ruling of the Tribunal.
The appeal was allowed on the 2nd day of November, 2011. Subsequently, the petition was fixed for rehearing on 14th day of November, 2011. On that day, the 1st respondent came up with an application challenging the jurisdiction of the Tribunal to hear the petition on its merits on the grounds that the time within which the petition was to be heard had elapsed/lapsed and the tribunal lacked the jurisdiction to entertain it.
On 29th November, 2011, the Tribunal in its Ruling dismissed the application of the 1st Respondent. The 1st Respondent appealed to this Court challenging the decision of the Tribunal dismissing its application.
This Court on 2nd November, 2011 had dismissed the 1st Respondent’s appeal on the ground that Section 285 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) does not apply to a petition that has been ordered by this court to be reheard.
On 21st February, 2012, the 1st Respondent once again filed a motion challenging the jurisdiction of the tribunal to entertain the petition on the ground that the Supreme Court had interpreted Section 285(6) of the Constitution in the consolidated Appeal Nos. SC.1/2012 and SC.2/2012 delivered on 12th February, 2012 to the effect that the Tribunal lacked jurisdiction to continue hearing the petition since 180 days from the date the petition was filed had lapsed.
Thereafter, the Tribunal invited the parties to address her on the status of the petition in view of the Supreme Court’s decision in the consolidated Appeal Nos. SC.1/2012 and SC.2/2012 of 17th February, 2012. All the parties addressed the Tribunal on 22/2/12, on the same date the tribunal dismissed the petition on the ground that her jurisdiction to further continue hearing the petition had been taken away by the Supreme Court decisions in the consolidated appeal.
The appellants were once again dissatisfied with the order of dismissal of the petition by the Tribunal, appealed to this court vide the notice of appeal dated the 7th day of March, 2012 and filed on the 12th day of March, 2012 in which two issues were raised. They are:
ISSUE ONE:
“Having regards to the provisions of Section 246(3) of the Constitution of Federal Republic of Nigeria 1999 (as amended), whether the National/State Houses of Assembly Election Tribunal was correct in law to dismiss Appellants’ petition based on the Supreme Court’s decision on Section 285 (6) of the Constitution of the Federal Republic of Nigeria (as amended) when this Honourable Court had on 2nd day of November, 2011 decided on the issue of Section 285(6) of the Constitution and ordered the Tribunal to proceed with the hearing of the petition to judgment. (Grounds 1, 2, 3, 5 and 6).
ISSUE TWO:
“Arising from the provisions of chapter iv of the Constitution of the Federal Republic of Nigeria 1999 (as amended), particularly Section 36 thereof, whether the fundamental right of fair hearing of the Appellants have not been denied by the decision of the tribunal to dismiss Appellants’ petition (Ground 4).”
While the 1st Respondent on his part formulated three (3) issues, they are:
1. “Whether the learned tribunal was wrong in relying on the Supreme Court decision in the consolidated Appeal No. SC.1/2012 and SC.1/2012 between ALL NIGERIA PEOPLES PARTY (ANPP) V. ALHAJI MOHAMMED GONI & ORS AND ALHAJI KASHIM SHETTIMA & 1 ANOR V. MOHAMMED GONI & ORS delivered on 17th February, 2012 in striking out Petition No. NSHA/EPT/BN/REP/42/2011 (Grounds 1, 2, 3, 5 and 6 of the appeal).
2. Whether the said striking out was in violation of the right of the appellants to fair hearing (Ground 4 of the appeal).
3. Whether this Honourable Court can be moved to evaluate the decision of the Supreme Court in the consolidated Appeal No. SC/1/2012 and SC/2/2012 between ALL NIGERIA PEOPLES PARTY (ANPP) V. ALHAJI MOHAMMED GONI & ORS AND ALHAJI KASHIM SHETTIMA & 1 ANOR V. MOHAMMED GONI & ORS vis other previous Supreme Court cases (Grounds 1 and 2 of the appeal).”
The 2nd Respondent distilled a sole issue for the determination of this appeal, that is:
“Whether the learned Tribunal was wrong in relying on the Supreme Court decision in the consolidated Appeal No. SC/1/2012 and SC/2/2012 between ALL NIGERIA PEOPLES PARTY (ANPP) V. ALHAJI MOHAMMED GONI & ORS AND ALHAJI KASHIM SHETTIMA & 1 ANOR V. ALHAJI MOHAMMED GONI & ORS delivered on 17th day of February, 2012 in striking out Petition No. NSHA/EPT/BN/REP/42/2011 and whether the said striking out was in violation of the right of the Appellants to fair hearing (Grounds 1, 2, 3, 4, 5 and 6 of the appeal).
The 3rd -105th Respondents also formulated a sole issue for the determination of the appeal, that is:
“Whether the Honourable Tribunal was right when it held that it has no jurisdiction to entertain Petition No. NSHA/EPT/BN/REPS/42/2011 outside the 180 days after filing of the petition in the light of the Supreme Court’s judgment in the application of Section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria as amended.”
In arguing the appeal, A.I Wombo Esq. in his brief of argument dated and filed on 3rd April, 2012 adopted and relied on same in submitting that the decisions of this Court of 9th February, 2012 in Appeal Nos, CA/MK/EPT/45/2011, CHRISTINA ALAAGA VS. ARC. ASEMA ACHADO AND OTHERS and CA/MK/EPT/46/2011, PEOPLES DEMOCRATIC PARTY VS. ARC. AUSTIN ASEMA ACHADO & OTHERS on the interpretation of Section 285(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) hereafter referred to as the Constitution; to the effect that it is final and cannot be revisited by any court since this court is the final court on the matter, reliance was placed on recent Supreme Court decisions to the effect that this court is the last court in respect of appeals arising from the National and States Houses of Assembly Election Petitions, they are, Appeal Nos: SC/14/2012; SC/14A/2012; SC/14/B/2011; SC/14C/2012 delivered on 24th February, 2012, ABUBAKAR VS. NASAMU & OTHERS (Unreported), and the case of EMORDI VS. IGBOKE (2011) 4 SCNJ, P. 179 at 186; OGBORU V. IBORI (2005) 13 NWLR (PT.942) 319 at 429 – 430, PARAS H – B and AWUSE V. ODILI (2003) 18 NWLR PT.851 PAGE 116, at 157, PARAS. C – H, amongst others.
It was further argued that the Tribunal was duty bound to enforce the decision of this court in this matter, delivered on 9th February, 2012.
Further, that the reliance on the decision of the Supreme Court in the consolidated Appeal Nos. SC.1/2012 and SC.2/2012 of 17th February, 2012, ANPP VS. GONI AND OTHERS to dismiss the petition by the Tribunal on 22nd February, 2012 implies that the decision of this Court of 9th February, 2012 was no longer final as provided by Section 246(3) of the Constitution but, subject to the Supreme Court. It was argued that ANPP VS. GONI & OTHERS (SUPRA) being a Governorship Election Petition does not apply to this case which is a National Assembly matter.
It was contended that the Tribunal was wrong to have declined jurisdiction to continue with the hearing of the petition, and also submitted that he was not unaware of the provisions of Section 287 (1) of the Constitution but argued that the Tribunal by the provision of Section 287(2) of the Constitution which enjoins Courts of subordinate jurisdiction to enforce the decisions of this Court. Further, that by the Tribunal applying the decision of the Supreme Court in this case was likened to the Supreme Court adjudicating the matter. We were urged to resolve issue one in favour of the appellants.
On the appellants’ issue two, it was submitted that the Supreme Court in its decision of 17th February, 2012 did not take into account the principle laid down by a full panel of the Supreme Court in the interpretation and construction of the Constitution in the case of AG BENDEL STATE V. A.G. FEDERATION & 22 ORS (1991) 1 FNR 179 at 235 – 236, to the effect that the Constitution should be interpreted in the meaning of the words used therein and in a broad manner to effect the true intention of the legislators without changing same. Also relied upon amongst other cases is the case of AFRICAN NEWSPAPERS OF NIGERIA LTD VS. FEDERAL REPUBLIC OF NIGERIA (1985) 2 NWLR (PT.6) 137 at 159 -160, as a guide when considering issues of jurisdiction or lack of it.
On the appellants’ constitutional right of appeal, reliance was placed on the case of ALIU BELLO V. A.G. OYO STATE (1986) 12 SC 1 at 9 – 18. It was argued that from the above cases, Section 285(6) cannot be construed to be superior to or to govern the provisions of Section 285(7) of the 1999 Constitution (as amended) conferring appellate powers on the Court of Appeal and the Supreme Court in relation to the Constitutional right of Appeal conferred by Sections 240 and 233 of the 1999 Constitution, as amended.
It was further submitted that Section 285(6) of the 1999 Constitution, as amended should not be interpreted in isolation so as to render Section 285(7) of the same Constitution moribund. Further, that whereas Section 285(6) stipulates 180 days from the date of filing a petition for an Election Tribunal to deliver its judgment, Section 285(7) gives an aggrieved party a right of appeal against such decision. It was argued that the intention of enacting Section 285(6) and 285(7) could not have been to give a petitioner who succeeds on appeal a hollow judgment that cannot be effected if such judgment is after 180 days and an order is made for instance, for re-trial or fresh trial on the merits by this court and the Tribunal would not be able to obey the order of this Court. It was the submission of the learned counsel that this Court had the power and rightly sent this petition back to the Tribunal that it be heard on the merits. It was argued that by decisions of the full court, the Supreme Court in UGHAN V. THE PDP & ORS (Unreported) Appeal No. SC 360 delivered on the 14th day of November, 2011, and SUSWAN V. SAROR (Unreported) Appeal Nos. SC 381/2011 and SC. 383/2011 delivered on the 28th November, 2011, made orders for the petitions to be tried on the merit after 180 days had lapsed. It was argued that these judgments are binding on the Tribunal that is bound to obey same by the doctrine of stare decisis and by the force of Section 287(1) of the 1999 Constitution, as amended. Reliance was placed on the case of AC V. JANG (2009) 4 NWLR (PT.1132) 475 at 509 and where it is not so the lower court is bound to distinguish the case and decline to follow same, See: PANALPINA WORLD TRANSPORT NIG. LTD V. GLENYORK NIG. LTD (2009) ALL FWLR (PT.455) 1617 at 1806.
We were urged to hold that the decision of the Tribunal was wrong in view of this Court’s decision of 2nd November, 2011 that the petition be heard on the merits, also that the appellants’ right to fair hearing under Section 36 of the Constitution would have been denied by the decision of the Tribunal dismissing the Appellants’ petition. In the 1st Respondent’s brief of argument dated 6th April, 2012, filed on 10th April, 2012 and deemed as properly filed and served on 17th April, 2012 was adopted and relied upon by the learned counsel Iorwase Ahile Esq. in responding to the submissions of the learned appellants’ counsel. In the said brief of argument, it was submitted that the Tribunal acted in line with Section 287(1) of the 1999 Constitution which makes all other courts subordinate to the jurisdiction of the Supreme Court and that the Tribunal was right to have taken judicial notice of the Supreme Court decisions in the consolidated Appeals No. SC.1/2012 and SC.2/2012 which ousted her jurisdiction to continue the hearing and determination of Petition No. NSHA/EPT/BN/REP/42/2011. On reliance on the cases of: ATOLAGBE & 1 OR V. AWUN & 2 ORS (1997) 8 NWLR (PT.522) 536; NDILI VS. AKINSUMADE & 2 ORS (2000) 8 NWLR (PT.688) 293 at 346 – 347 PARAGRAPHS G – A and DALHATU V. TURAKI (2003) 15 NWLR (PT.843) 310 at 336 submitted that the Tribunal was bound to follow the Supreme Court’s decisions of 17th February, 2012, in which the cases were said to be similar to the present case.
It was the submission of the learned counsel that this petition had by operation of the law expired and as a result the Tribunal lacked the jurisdiction to determine same. Further, that Sections 285(6) of the Constitution and 134(2) of the Electoral Act 2010 as amended are mandatory and not permissive and give no room for discretion. Also, that the petition that gave rise to this appeal having lapsed, there was no live issue and the appeal had become an academic exercise, We were urged to hold in respect of issue one, that the Tribunal was right in holding that it no longer had jurisdiction to hear and determine the petition.
In respect of the 1st respondent’s issue two, it was submitted that the right to fair hearing is conferred by the Constitution and that such right in the present case could only be enforced if within the 180 days limited by the same Constitution to determine election matters. Therefore, that the right to fair hearing was lost on the expiration of 180 days which lapsed on the 12th day of November,2011. See: ADEBAYO VS. ATTORNEY GENERAL, OGUN STATE (2008) ALL FWLR (PT.412) P.1212 PARAS. A – D. It was submitted that the contention of lack of fair hearing raised by the appellants is not founded in law.
On the 1st Respondent’s third issue, it was submitted that a court of law only deals with live issues and refrains from carrying out duties that are purely academic. Reliance was placed on the case of AZEEZ V. STATE (2008) ALL FWLR (PT. 424) 1423 at 1464 PARAS. E – F, ABIMBOLA v. ABATAN (2001) FWLR (pt. 46) 989, 2001 4 SCNJ 73, BELLO V. FAYOSE (1999) 7SC 6 AGBAKOBA V. INEC (2008) ALL FWLR (PT.410) 799 at 806 – 807 PARAGRAPHS H – A and AMAH VS NWANKWO (2008) ALL FWLR (PT.411) 879 at 895, PARAGRAPHS A-B.
It was argued without conceding, that the Supreme Court is bound by their latest decision in ANPP V. GONI (SUPRA) as against the previous cases cited and relied on by the learned appellants’ counsel. We were urged to discountenance the cases cited by the appellants’ counsel aimed at discrediting the recent Supreme Court decisions in the consolidated appeals in ANPP VS. GONI (SUPRA) and SHETTIMA V. GONI (SUPRA).
We were urged to dismiss the appeal in its entirety as the time for hearing and determination of Petition No. NSHA/EPT/BN/42/2011 had lapsed which robs the Tribunal of the jurisdiction to hear and determine the petition.
On behalf of the 2nd Respondent, S.A, Udaga Esq., adopted and relied on his brief of argument dated 4th April, 2012 filed on 5th April, 2012. The submissions of the learned counsel were along the same line as that of the 1st respondents, to the effect that Section 287(1) of the 1999 Constitution enjoins in mandatory terms all courts with subordinate jurisdiction to that of the Supreme Court to obey and enforce decisions of the Supreme Court, See ATOIAGBE & 1 OR VS. AWUN & 2 ORS, (SUPRA); NDILI V. AKINSUMADE & 2 ORS (SUPRA) and DALHATU V. TURAKI (SUPRA). In reviewing Sections 285(6) of the Constitution and 134(2) of the Electoral Ad, it was submitted that the Tribunal was bound under the doctrine of stare decisis to follow and enforce the judgment of the Supreme Court and rightly did in this petition. Further, that these two provisions have stipulated in clear and unambiguous terms the life span of an election petition, filed under the Electoral Act, 2011 (as amended), see MAITSIDAU V. CHIDARI (2008) 16 NWLR (PT.1114) PAGE 553 at Page 575.
It was the contention of learned counsel that the petition had expired and this court lacks the jurisdiction to determine same. It was argued that this court is duty bound to apply the above provisions without any discretion as the provisions are mandatory and not permissive. Further, that the appeals that resulted from the petition did not push forward the date of the accrual of their cause of action, therefore that the time constitutionally provided for hearing and delivery of judgment in the petition that gave rise to this appeal had lapsed therefore the determination of the appeal would be academic as there is no longer a live issue.
The learned counsel submitted further that the Tribunal no longer had jurisdiction to hear and determine the petition that gave rise to this appeal.
It was the argument of counsel on the issue of lack of fair hearing that, it does not arise in the present circumstances where the petition lapsed after 180 days from the date of filing, in other words, that the
petitioners cause of action is not backed up by a right of enforcement should they succeed. We were urged to dismiss the appeal as it has no merit, and to strike out same.
The learned counsel to the 3rd – 105th Respondents, Mrs. N.D. Ter in her brief of argument dated 7th April, 2012 filed on 10th April, 2012 which she adopted and relied upon, submitted in her sole issue that the Tribunal was right to have held that it has no jurisdiction to entertain Petition No. NSHA/EPT/BN/REPS/42/2011 outside the 180 days after the filing of the petition in the light of the Supreme Court decisions on the application of Section 285(6). Similarly, the provisions of Section 134(1) of the Electoral Act (2010)’as amended, also in view of the provisions of Section 287(1) of the Constitution and the Supreme Court decision in the consolidated appeal GONI AND SHETTIMA’S cases (Supra) (Unreported).
Learned counsel disagreed with the learned counsel to the appellants’ argument to the effect that GONI AND SHETTIMA’S cases do not apply to the present case which arose from the National/State House of Assembly Election Petition, by virtue of Section 246(3) of the Constitution, this Court’s decision is the final court which the Tribunal is bound to follow for the retrial of the petition. It was further argued that since the petition was not heard and determined within the stipulated time, the tribunal’s jurisdiction to continue to entertain the petition becomes spent and it cannot be extended by an order of court, we were urged to so hold and dismiss the appeal.
It was submitted by the learned counsel that the issue of lack of fair hearing raised by the appellants does not arise, since the parties who were entitled to be heard were heard and given equal opportunities, see the case of OGUNDOYIN VS. ADEYEMI (2001) FWLR (PT.71) 124 relied upon by learned counsel. The appeal was said to lack merit.
The issues raised by the appellants encompass all the issues raised by the three sets of respondents, I will adopt same as appropriate in determining the appeal. For clarity, I will hereunder reproduce the provisions of Sections 287(1) of the Constitution of the Federal Republic of Nigeria, 1999 and 59 of the Evidence Act, 2011 (as amended) which provide as follows:
287(1). 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.”
59. The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact, evidence of which is admissible when the question is whether such court ought to take cognizance of such suit or to hold such trial.”
Section 287(1) provides in clear terms the binding effect of Supreme Court decisions on all subordinate jurisdictions of the courts, that would obey and enforce Supreme Court decisions, similarly, the provisions of Section 59 of the Evidence Act.
As rightly argued by the different sets of respondents in their various briefs of argument, the circumstances in the cases of ANPP V. GONI (SUPRA) and SHETTIMA V. GONI (SUPRA) and the present Petition No. NSHA/EPT/BN/REP/42/2011 are similar, both were filed on 17th May,2011 and at a stage struck out and, on appeal retrials were ordered. By the time frame fixed by the Constitution, the period of 180 days within which to hear and determine a petition from the date of filing had lapsed. In this case, it lapsed on 12th November, 2011.
For avoidance of doubt, Section 285(6) of the Constitution provides as follows:
285(6) “An election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”
While Section 134(2) of the Electoral Act, 2010 (as amended) also provide as follows:
134(2) “An election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”
The wordings of the above sections are clear and unambiguous and should be accorded their simple meaning which resulted in the Tribunal holding that it lacked jurisdiction to determine the petition on 22nd February, 2012, the petition having lapsed by the effluxion of time and dismissing same. The two provisions have stipulated the life span of an election petition filed under the Electoral Act,2011 (as amended). In the case of MAITSIDAU VS. CHIDARI (SUPRA), page at P.575. It was held as follows:
“It is also firmly established that where the words of a statute are clear, simple and unambiguous, they should be given their ordinary, plain meanings. Thereafter, they should be applied and effect given thereto.”
In the recent decisions of the Supreme Court in the consolidated Appeals No. SC/332/2011; SC/333/2011 and SC/352/2011 SHETTIMA v. GONI & 4 ORS delivered on 31st October, 2011 (Unreported) at page 21 of the judgment on the interpretation of Section 285(6) of the Constitution held as follows:
“By the provisions of Section 285 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended/altered) hereafter referred to as the 1999 Constitution as amended/altered.
“An Election Tribunal shall deliver its judgment in writing within 180 days from the date of filing the petition.”
It is my considered view that the three provisions quoted above supra are clear and unambiguous and by the principles of interpretation of statute, to the effect that where the words of any statute are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution or statute, effect must be given to those provisions without recourse to any other consideration, they ought to be so treated.”
It is therefore clear that an election tribunal must deliver its judgment in writing in an election petition within 180 days from the date of filing of the petition. Sections 285(6) and 134 (2) referred to above, are mandatory and leaves no room for discretion. The tribunal and this court are bound to strictly comply with the above provisions. In this case, the computation of time does not stop because of intervening factors such as there having been an earlier appeal, which was allowed, in which an order for trial on the merits on 2nd November, 2011 as erroneously argued by the learned counsel to the appellants. Hearing in this case, is within the 180 days allowed by the law. An order for trial on the merits or retrial can not form the basis or be an excuse or reason to hear an election petition beyond 180 days.
Such order as was made by this court on 2nd November 2011, cannot confer jurisdiction on the tribunal where it has ceased to exist, the order cannot be effected. The Supreme Court in the recent decision in SHETTIMA V GONI (SUPRA) at page 19, His Lordship Onoghen, JSC held as follows:
“Jurisdiction is a creation of statute or the constitution. Jurisdiction is therefore not inherent in an appellate court neither can it be conferred on a court by order of court”.
With the election tribunal, his Lordship further held thus:
“With regards to the election tribunal the time within which the jurisdiction so conferred on it is to be exercised/carried out is provided for in section 285(6) of the 1999 constitution…
It follows that where a tribunal fails to comply with the above provisions the jurisdiction to continue to entertain the petition lapses or becomes spent and cannot be extended by any court order howsoever well intentioned, neither can a court order create and confer jurisdiction on any court/tribunal on any matter where jurisdiction has not been conferred either by statute or the constitution.”
Therefore, the tribunal had no jurisdiction to continue to entertain the petition after the expiration of the 180 days provided by the constitution. This court had no power to extend the time and did not do so as argued by the appellants’ learned counsel who argued that the order of 2nd November, 2011 ought to be obeyed and carried out by the tribunal.
No doubt, this court is the last court in National/State House’s of Assembly Election Tribunal Petitions in line with the provisions of section 246(3) of the constitution, There was no appeal (and there cannot be) in respect of the decision of 2nd November, 2011, therefore contrary to the argument of the learned counsel to the appellants the decision of the Apex court in the consolidated appeals, delivered on 17th February, 2012 in SHETTIMA VS. GONI (Supra) is not a further appeal in the petition that gave rise to this appeal but, a decision that is binding on this court and the tribunal by the doctrine of stare decisis. The decision is obviously superior to that of this court and the tribunal is duty bound to follow and enforce same. In the case of ATOLAGBE & 1 OR vs. AWUN & 2 ORS (SUPRA) at 562 the Apex court in this respect had this to say:
“I agree entirely that Orilorise J, by refusing to abide by the decision of a superior court, had committed an abominable act contrary to the ethics of his appointment such a behaviour should not be condoned”.
Similarly, in the case of DALHATU V. TURAKI (SUPRA) at 336, the apex court held that a refusal by a lower court to be bound by the apex court’s decision as gross insubordination and a misfit in the judiciary.
Therefore, the tribunal was under this doctrine band to follow and enforce the judgment of the apex and in my humble view right to have done so in this petition.
In the same SHETTIMA V. GONI (Supra) the Supreme Court, Lordship Rhodes – Vivour, JSC in his concurring judgment held thus: (at page 9 – 10,
“180 days provided by Section 285 (6) of the constitution is not limited to trials but also to de novo trials that may be ordered by an appeal court. For the avoidance of any lingering doubt once an election petition is not concluded within 180 days from the date the petition was filed by the petition or as provided by Section 285 (6) of the constitution an election tribunal no longer has jurisdiction to hear the petition, and this applies to re-hearings. 180 days shall at all times be calculated from the date the petition was filed”.
The petition in the instant case having been filed on 17th May, 2011, which is not disputed, had lapsed by effluxion of time and the tribunal no longer had jurisdiction to hear and determine same. The order of this court of 2nd November, 2011 which the learned appellants’ counsel clung to argue that the tribunal had the jurisdiction to continue and determine the petition was an order made in futility, since the tribunal could not and did not deliver its judgment before the expiration of 180 days from the date of filing. It is immaterial whether the Petitioners had a good case or not or that the delay was not that of the Petitioners.
On the issue of fair hearing, all parties were given equal opportunities to be heard and present their respective cases without bias against any of the parties, and none has been alleged in course of hearing the petition. The same constitution by Section 36 which donated the right to fair hearing to the appellants also took it away or limited same by pegging the time frame that is 180 days in this case, within which to exercise such right in election petitions by the clear provisions of Section 285 (6). In my humble opinion, the appellants’ right to fair hearing was in no way violated, the said right was lost on the 12th day of November, 2011 when the petition lapsed, hearing ought to be within the stipulated time frame. See, this court’s decision of today 20/4/12 in Appeal No. CA/MK/EPT/13/2012, DONALD VS. SALEH in which I was privileged to have delivered the leading judgment, I cannot depart from same, I affirm the Ruling of the tribunal delivered on 22nd February 2012, dismissing the Petition No. NHSA/EPT/BN/42/2011 as it no longer had the jurisdiction to continue the hearing of the petition in view of the decision of the Supreme Court in Appeal Nos. SC.1/2012 and SC.2/2012 delivered on – 17th February 2012.
In the prevailing and surrounding circumstances, the petition not having been heard and concluded within 180 days of its filing, is statute barred and the tribunal lack the jurisdiction to entertain same.
In conclusion, I hold that the appeal is without merit, same is dismissed. The Ruling of the tribunal of 22nd February, 2012 dismissing petition No. NSHA/EPT/BN/REP/42/2011 is hereby affirmed. Parties to bear their respective costs.
M.B. DONGBAN – MENSEM, J.C.A.: I agree with the lead judgment prepared by my learned brother Uwa JCA,
The argument that because this Court is the final Court in National Assembly matters and is therefore not bound by decisions of the Supreme Court is untenable and wishful. The principle of precedent-stare decisis is not of selective application, but of general application and all decisions of the Supreme Court are binding on this Court.
The finality of the decision of this Court stops with a matter which is finally determined and is not resurrected. This is not the situation in this appeal. This appeal was caught up by the decision of the Supreme Court while it was still pending at the tribunal for a second trial. Had this Court invoked its power under section 16 of the Court of Appeal Act and entered judgment for the Appellant, the subsequent decision of the Supreme Court would have no effect, since the matter would have been concluded. However, this matter was still in litigation when SC1 & SC2 of 17/02/12 were decided. It was caught by the decision of the Supreme Court in SC.1/2012 & SC.2/2012. Section 287(1) of the 1999 Constitution as amended enjoins this Court to enforce all decisions of the Supreme Court. It exercises no power to review nor jettison a decision of the Supreme Court. This appeal is struck out for being incompetent.
TOM SHAIBU YAKUBU, J.C.A.: Having read the draft of the judgment of this court, just rendered and delivered by My Lord, Chidi N. Uwa, JCA, with whom I am in total agreement, I am satisfied that this appeal deserves to be dismissed. I dismiss it accordingly.
I abide by the orders as to cost contained in the lead judgment.
Appearances
A.I. Wombo Esq For Appellant
AND
I.A. Ahile Esq with H. Usha for the 1st Respondent
S.A. Udaga Esq for the 2nd Respondent
N.D. Ter (Mrs) with E.P. Echor Esq for the 3rd – 105th Respondents. For Respondent
