MARK WARIOTA IKPURI v. PEOPLES DEMOCRATIC PARTY & ORS
(2019)LCN/12706(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/B/232/2018
RATIO
APPEAL: WHETHER THE APPELLATE COURT CAN HEAR OR DISPOSE A PRE-ELECTION MATTER
“It is not in dispute that prior to the enactment of Section 285(12) of the Constitution of the Federal Republic of Nigeria 1999, there was no time limit within which this Court can hear and dispose of an appeal from a decision on a pre-election matter. Accordingly, the position of the law as maintained in the decisions of the Supreme Court was that pre-election matters can still be heard and determined even after the tenure for which a general election was conducted has elapsed. See Nobis-Elendu v. INEC & ORS (2015) LPELR-25127 SC, Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
STATUTE: WHETHER A STATUTE CAN APPLY RETROSPECTIVELY
“In Ojokolobo v. Alamu (1987) 3 NWLR Part 67, Page 377 at 396-397, Mohammed Bello CJN held as follows on this issue: ‘It is a cardinal principle of our law that a statute operates prospectively and cannot apply retrospectively unless it is made to do so by clear and express terms or it only affects purely procedural matters and does not affect the rights of the parties.'” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
MARK WARIOTA IKPURI Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. HON. DENNIS OMOVIE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the Federal High Court delivered on 22/2/18 by Honourable Justice T.B Adegoke.
The suit which gave rise to this appeal was commenced by way of Originating Summons which was later amended by an order of Court on the 20/10/15. By the amended Originating Summons which was filed on the 22/9/15, the Appellant sought the following reliefs from the trial Court:
1. A DECLARATION that the plaintiff having been returned elected in a state House of Assembly primary election conducted by the 1st Defendant as 1st Defendant?s candidate for the 2015 Delta State House of Assembly Warri South Constituency 2 general election and having been nominated by the 1st Defendant as its candidate for the general election, is the candidate of the 1st Defendant for the 2015 Delta State House of Assembly Warri South Constituency 2 general election.
2. A DECLARATION that the subsequent nomination of the 3rd Defendant by the 3rd Defendant as 1st Defendant?s candidate for the 2015 Delta State Houses of Assembly Warri South Constituency 2 general election is unconstitutional, illegal, invalid, null and void, the same having been made in violation of the provision of Sections 87(1),(4)(c)(i) and (ii) of the Electoral Act, 2010, Section 25 of the Constitution of the Peoples Democratic Party, 2012 and Paragraphs 48 (a) and (d) and 50 of the Electoral Guidelines of the Peoples Democratic Party, 2014.
3. AN ORDER setting aside the result having the name of the 3rd Defendant as the winner of the 2015 Delta State House of Assembly Warri South Constituency 2 primary election conducted by the 1st Defendant 29/11/14 for being illegal, null and void, the same having been produced by the 1st Defendant in violation of the provisions of Section 87 (1), (4) (c) (i) and (ii) and (9) of the Electoral Act, 2010 and Paragraph 48 (a) and (d) of the Electoral Guidelines of the Peoples Democratic Party 2014.
4. AN ORDER setting aside the nomination of the 3rd Defendant as the candidate of the 1st Defendant for the 2015 Delta State House of Assembly Warri South Constituency 2 general election for being unconstitutional, invalid, null and void.
5. AN ORDER of perpetual injunction restraining the 3rd Defendant from parading himself as the 1st Defendant’s candidate for the 2015 Delta State House of Assembly Warri South Constituency 2 general election and or as member of the Delta State House of Assembly representing Warri South Constituency 2.
6. AN ORDER directing the 1st Defendant to recognize and deal with the Plaintiff as the 1st Defendant’s candidate for the 2015 Delta State House of Assembly Warri South Constituency 2 general election and in that to issue a certificate of return in favour of the Plaintiff as the candidate elected in the Delta State Houses of Assembly Warri South Constituency 2 general election conducted by the 2nd Defendant on the 11th day of April, 2015 to represent Warri South Constituency 2 in the Delta State Houses of Assembly.
The learned trial judge declined jurisdiction and then dismissed the suit. Hence this appeal. The appeal relates to the 1st respondent’s primary election held at Ojojo Primary School, Warri, Delta State on Saturday, 29th November, 2014 for the selection, nomination and sponsorship of the 1st Respondent?s candidate for the Warri South State Constituency II of the Delta State House of Assembly.
The appellant filed his notice of appeal on 28/3/18. Another notice of appeal relied on for this appeal was filed within time on 10/4/18. The record was transmitted on 11/5/18. The Appellant?s brief was filed on 1/6/18. The reply briefs to the 1st Respondent?s brief was filed on 19/10/18. The reply brief to the 2nd Respondent’s brief was filed on 19/11/18. The reply brief to the 3rd Respondent’s brief was filed in 21/1/19 and deemed properly filed on 22/1/19.
The 1st Respondent?s brief was filed on 6/9/18 and deemed filed on 3/10/18. The 2nd Respondent’s brief was filed on 22/10/18 and deemed filed on 23/10/18. The 3rd Respondent filed amended brief on 13/11/18.
In the Appellant’s brief settled by Festus Ogwuche Esq., Ayo Akam Esq., Obeten Ofem Esq., Mary Frances Orji (Miss), Phillip Akpavie Esq., they identified 12 issues for determination set out below:
1. Whether having regard to the provisions of Order 29 Rules 1-4 and Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009 the trial Court was right when it failed or refused to strike out the motion filed out of time by the 1st Respondent to challenge the jurisdiction of the Court can be raised at any stage of the proceedings. (Distilled from Ground 1 of the Notice of Appeal).
2. Whether the trial Court was right when it failed to consider and or determine issues No. 1 raised by the Appellant in the written address filed by him in opposition to the motion filed by the 3rd Respondent to challenge the jurisdiction of the Court to entertain the suit and if the answer is negative, whether the failure to consider and or determine the issue amounts to a breach of Appellant’s fundamental right to fair hearing and renders the decision of the trial Court declining jurisdiction to entertain the suit and dismissing the suit null and void. (Distilled from Ground 2 of the Notice of Appeal).
3. Whether having regards to the provisions of Order 29 Rules 1-4 and Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009, the trial Court was right when it failed or refused to strike out the motion filed out of time by the 3rd Respondent to challenge the jurisdiction of the Court to entertain the suit. (Distilled from Ground 3 of the Notice of Appeal).
4. Whether the trial Court was right when it held that the case of the Appellant as constituted does not relate to live issues and that the suit is one which cannot enure any right or benefit on the successful party and as such is therefore a mere academic exercise (Distilled from Ground 7 of the Notice of Appeal).
5. Whether the trial Court was right after holding that the Appellant was an aspirant clothed with the requisite locus standi under Section 87(9) of the Electoral Act it proceeded thereafter to hold that the Appellant has not shown documentary evidence to buttress his claim that he participated in the primary election of the 1st Respondent and has therefore lost the locus standi (Distilled from Ground 15 of the Notice of Appeal).
6. Whether the trial Court was right while still on the issue of locus standi, it held that the Appellant has not shown any evidence in his affidavit that he was indeed nominated by his party in compliance with Section 31-35 of the Electoral Act thereby resolving a live issue in the suit (Distilled from Ground 14 of the Notice of Appeal).
7. Whether the trial Court was right when it held, while faced with the jurisdictional issue whether the suit of the Appellant relates to an internal matter of the 1st Respondent, that the case of the Appellant is not supported by the position of the Supreme Court in decided cases that only a candidate(Distilled from Ground 12 of the Notice of Appeal).
8. Whether the trial Court was right when in spite of the decision of the Supreme Court in MEGA PROGRESSIVE PARTY V. INEC case to the effect that the affixation of the NBA stamp was as at the 12th day of October, 2015 not a compulsory requirement for filing Court processes in a Court of law and the order of Hon. Justice Abubakar Shittu deeming the Appellant’s Amended Originating Summons as properly amended, filed and served on the 20/10/15. It held that the Amended Originating Summons filed in this suit on the 22/9/15 is incompetent for non-affixation of the NBA stamp or non-compliance with Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007 (Distilled from Ground 8 and 9 of the Notice of Appeal).
9. Whether the trial Court was right when while considering issues of jurisdiction raised in the objections filed by the 1st and 3rd Respondents to challenge the jurisdiction of the Court to entertain the suit, it proceeded to make findings on the merits of the case and also took decisions the effect of which did not only determine the fate of the Appellant’s documentary evidence but also resolved live issues in the suit (Distilled from Grounds 4, 5,6,10,13 and 16 of the Notice of Appeal).
10. Whether the trial Court was right when while being faced with the issue whether the suit as constituted is not a mere academic exercise, it proceeded to hold that to invoke Section 87(9) of the Electoral Act, the Appellant must fulfill the four conditions stated by the Supreme Court in ABUBAKAR & ORS V YAR?ADUA & ORS (2008) 12 SC(PT
II) 1 which a person challenging an election on ground of lawful exclusion must prove and that from the totality of Appellant’s evidence, the Appellant is at best an aspirant of the 1st Respondent (Distilled from Ground 11 of the Notice of Appeal).
11. Whether the trial Court was right when without properly evaluating the evidence of the parties in the case, it proceeded to rely on the inadmissible and hearsay evidence of the Respondents to make findings and decisions and accordingly entered judgment for the Respondents, while failing or refusing to consider, accept and act on the unchallenged evidence of the Appellant. (Distilled from Grounds 19, 20, 21, 22, 23, 24, 25 and 26 of the Notice of Appeal).
12. Whether the trial Court was right when it held that Appellant’s case was in a confusing state and that upon the filing of counter affidavits and preliminary objections of the 1st and 3rd Respondents, the Appellant changed his case from the one set out earlier by him.(Distilled from Grounds 17 and 18 of the Notice of Appeal).
In the 1st Respondent’s brief settled by Bernard Odior Esq., Counsel adopted the issues as formulated by the Appellant?s counsel.
In the 2nd Respondent’s brief settled by Norbert N. Ogakwu Esq., Eze Ozooro, Ajuluchukwu and Henry Obafemi Esq., counsel also adopted the issues already identified by the learned Appellant’s Counsel.
In the 3rd Respondent’s amended brief settled by John Okoriko Esq., Counsel identified 3 issues for determination which are set out below:
1. Whether Ground 2 and 3 of the Appellant’s Notice of Appeal dated and filed on the 10th April, 2018, which the Appellant admitted do not relate to any issue decided by the trial Court in the judgment forming the subject matter of this appeal, are competent.
2. Whether Ground 21, particulars 5,11 12 and 13, Ground 22, particular 4, Ground 23, particular 7, Ground 25, particular 3 of the Appellant?s Notice of Appeal dated and filed on 10th April, 2018 by which the Appellant is arguing fresh points on appeal to the effect that the entire affidavit evidence and that the result of the said primary election is not contained in the 1st Respondent?s Form-Code PD004/SA, without having sought and obtained the prior leave of this Honourable Court to that effect, are competent grounds of appeal.
3. If issues 1 and 2 above are resolved in the negative, whether issues 2, 3 and 11 distilled from Grounds 2, 3 and 19, 20, 21, 22, 23, 24, 25 & 26 respectively of the Appellant’s Notice of Appeal dated and filed on 10th April, 2018 are competent.
The 3rd Respondent filed on 12/11/18 a motion praying the Court to strike out some of the grounds in the Notice of appeal filed by the Appellant. The main prayer on the motion paper is set out below:
1. AN ORDER STRIKING OUT Grounds 2, 3, 20, 21, 22, 23, 24, 25 and 26 of the Appellant’s Notice of Appeal dated and filed on 10th April, 2018 together with the issues formulated therefrom in the Appellant’s Brief of Argument dated 30th May, 2018 but filed on 1st June, 2018 for being incompetent.
After the hearing of the Appeal on 22/1/19, this Court suo motu raised the issue of its jurisdiction to determine the appeal in view of Section 285(12) of the 4th Alteration to the 1999 Constitution. All counsel were given time to file written addresses to answer the question posed by the Court which is specifically:
‘Whether this Court any longer has jurisdiction to decide this appeal in view of Section 285(12) of the 4th Alteration to the 1999 Constitution
I will take that issue first because an answer to it will determine whether or not to proceed to determine the merits of the issues raised by Appellant’s counsel. Also, a determination of the issue prior to a determination of the motion on notice objecting to some of the grounds of appeal is also the wisest course, since that motion cannot determine the appeal one way or another.
Pursuant to the order of the Court, the Appellant filed written address on 1/2/19 and reply address to the 2nd Respondent’s address on 14/2/19. The 1st Respondent filed written address on 13/2/19 deemed properly filed on that day. The 2nd Respondent filed written address on 7/2/19 while the 3rd Respondent filed address on 6/2/19.
In the Appellant’s brief, the Appellant counsel submitted that given the peculiar facts of this case and the circumstances surrounding this appeal, Section 285(12) of the Fourth Alteration to the 1999 Constitution does not apply to rob this Court of the jurisdiction to entertain or rule on the appeal even after 60 days.
Counsel further argued that the peculiar facts of the instant appeal are that the complaint giving rise to the appeal rose from the primary election which the 1st Respondent conducted in Warri South State Constituency II of Delta State on the 29th day of November, 2014 and the amendment of the Constitution of the Federal Republic of Nigeria, 1999, particularly the Fourth Alteration to the 1999 Constitution, which came into being on the 7th day of June, 2017 when it was assented to by the President of the Federal Republic of Nigeria.
Counsel further argued that the law is settled that the applicable law to any cause of action is the law in existence or as existed at the time the cause of action arose. He cited Ogboru v. Uduaghan (2012) All FWLR (Pt. 610) 1206 at 1236, par C-D (SC)
Appellant Counsel argued vehemently that the applicable law in the cause of action giving rise to this appeal is the Constitution of the Federal Republic of Nigeria as it was before the amendment or the Fourth Alteration to the 1999 Constitution came into being on the 7th day of June, 2017, then it becomes obvious that the irresistible conclusion must be that Section 285(12) of the Fourth Alteration to the 1999 Constitution is not the applicable law to this appeal. The applicable law instead is the Constitution as it was prior to the coming into being of the section.
Counsel argued that to hold that the provision applied to this appeal which arose from a matter in which the cause of action arose on 29/11/14 would amount to holding that the section applies retrospectively. Counsel cited Utih v. Onoyivwe (1991) 1 NWLR Pt. 166 Pg. 166
Counsel further submitted that assuming but not conceding that Section 285(12) of the Fourth Alteration to the 1999 Constitution was intended by the lawmakers to apply retrospectively, the facts still remains that there are no rules of Court or practice directions to regulate its application. The current 2016 Rules of this Court do not contain provisions to regulate the application of Section 285(12) of the Fourth Alteration to the 1999 Constitution.
Counsel further submitted that under Section 248 of the Constitution of the Federal Republic of Nigeria as amended, the President of the Court of Appeal has a duty to make rules for the regulation of the practice and procedure of the Court of Appeal. These rules may take the form of Court rules or Practice Directions. Section 285(12) of the Fourth Alteration to the 1999 Constitution having limited the time of hearing an appeal to sixty days, provisions ought to have been incorporated in the rules of this Court to regulate the application of the section. In the alternative, Practice Directions ought to have been put in place for that purpose. Such provisions or practice directions ought to have stated the time the record of appeal ought to have been complied and remitted to the Court and when parties ought to file their briefs.
Counsel was of the view that in the absence of such rules or practice directions, the application of Section 285(12) as at today is still impracticable and the section does not apply to the instant appeal to rob the Court of its jurisdiction to entertain the appeal after 60 days. To hold otherwise will lead to absurdity and injustice as the appellant would be made to suffer for the mistake of the President of the Court who has not put the necessary rules or practice directions in place. Counsel argued that a litigant is not to suffer for the mistake of the Court.
Learned 1st Respondent counsel on his own part posited that the word “shall” in the Constitutional provision is mandatory. It is a command. It means this Court on hearing an appeal from the decision of a lower Court concerning pre-election matter, the matter must be disposed of within 60 days. The Supreme Court in Kakuwu v. PDP (2017) EJSC Vol. 55, Pg. 21, AT Pg. 25, Ratio 7 held that where words are plain, clear and unambiguous such words must be given their ordinary and natural meaning in keeping with the canon rule of interpretation. It follows that the only meaning that must be given to the provision of the Section 285(12) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration) is that appeal in a pre-election matter must be disposed of within 60 days. This means once an appeal lasted more than 60 days in a pre-election matter, this Court can no longer have the jurisdiction to continue to proceed with the matter and decide on it.
Counsel further submitted that the current position of the law is that appeal from the decision of lower Court in a pre-election matter must be disposed of within 60 days – SECTION 285(12) CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (FOURTH ALTERATION). This new amendment to the Constitution ensures that cases are not unnecessarily delayed so that a victorious party can enjoy the fruits of his judgment. Appeal No. SC. 1239/2018- Hon. Friday Osanebi v. Ozegbe Lawrence &Ors delivered on 22/01/2019.
Learned 2nd Respondent Counsel argued that as at when the 4th Alteration of the 1999 Constitution came into being on the 7th day of June, 2017, there was no appeal in this case. This appeal came into being on the 10th day of April, long after the 4th Alteration of the 1999 Constitution came into operation. Assuming this appeal was already in existence before this law i.e. the 4th Alteration of the 1999 Constitution came into being, then one would have been tempted to agree that Section 285(12) of the 4th Alteration Act of the 1999 Constitution will not be applicable. But in the instant case, as at when the 4th Alteration came into operation, there was no appeal. In the case of Ogboru v. Uduaghan (2012) All FWLR (Pt. 610) 1206 @ 1236 Par. C-D, the re-run election the subject matter in that case took place on the 6th day of January, 2011 before the 10th day of January, 2011 when the amended constitution came into force. Meanwhile, the re-run election of the 6th day of January, 2011 was carried out with the political guidelines for the conduct of 2007 election. It therefore means that on the 10th day of January, 2011, when the amendment as to appeals from the Court of Appeal to the Supreme Court came into effect, the Amendment was to be applicable to the 2011 elections. But in the instant case, there was no subsisting Appeal so as to warrant the non-applicability of the 4th Alteration to the instant appeal.
On his own part, learned counsel for the 3rd Respondent argued that the amendments introduced by the provision of Sections 285(12) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration No. 21) Act, 2017 also strips this Court of the jurisdiction which the Court in exercising its appellate jurisdiction, previously had in determining pre-election appeals beyond the period of sixty (60) days from the date of filing the appeal. It altered the substantive law by rendering pre-election appeals which are beyond the period of sixty (60) days (from the day of filing of the appeal) spent. Counsel cited Appeal No. SC. 1239/2018 – Hon. Friday Osanebi v. Ozegbe Lawrence & Ors delivered on 22/1/19.
Counsel further agitated that the cases of Nobis-Elendu v. INEC & ORS (2015) LPELR-25127 SC; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Ogboru v. Uduaghan (2012) All FWLR (PT. 610) PAGE 1206 AT Pg. 1236, Par. C-D (SC) and Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) Pg. 166 cited by the Appellant are though good law for the purpose of the legal principles enunciated in them but most inapplicable to the peculiar facts and circumstances of this case. They represent the old position of the law in this regard.
OPINION
The Constitution of the Federal Republic of Nigeria 1999 (4th Alteration No.21) Act 2017 which put some new sections into the Constitution makes special provisions in relation to election matters. Section 285(12) provides as follows:
‘An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the Appeal.’
It is not in dispute that prior to the enactment of Section 285(12) of the Constitution of the Federal Republic of Nigeria 1999, there was no time limit within which this Court can hear and dispose of an appeal from a decision on a pre-election matter. Accordingly, the position of the law as maintained in the decisions of the Supreme Court was that pre-election matters can still be heard and determined even after the tenure for which a general election was conducted has elapsed. See Nobis-Elendu v. INEC & ORS (2015) LPELR-25127 SC, Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56.
It is incontrovertible that S.285 (12) of the Federal Republic of Nigeria (Fourth Alteration) came into effect on the 7th day of June, 2017 when it was assented to by Mr. President. The instant appeal was filed on the 10th day of April, 2018. Therefore, the applicable law to this appeal is Section 285(12) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration) because this appeal was filed on a day when the 4th Alteration to the 1999 Constitution had already commenced, must be disposed of within 60 days from 10th April, 2018. Counting 60 days from 10th April, 2018, it means this case ought to be disposed of on or before the 9th day of June, 2018.
I agree with the 2nd Respondent?s Counsel that to resolve this issue, one has to look at the provisions of Section 2(1),(2)(a) and (3) of the Interpretation Act, CAP 123, Laws of the Federation of Nigeria, 2004 which provide as follows:
1) An act is passed when the president assents to the bill for the act whether or not the act then comes into force.
2) Where no other provision is made as to the time when a particular enactment is to come into force, it shall, subject to the following subsection, come into force-
(a) in the case of an enactment contained in an Act of the National Assembly, on the day when the Act is passed;
(3) Where an enactment is expressed to come into force on a particular day, it shall be construed as coming into force immediately on the expiration of the previous day.
Thus, going by the provision of Section 2(1) of the Interpretation Act, it is clear that the 4th Alteration was expected to come into force on the 13th day of June, 2017. Since the 4th Alteration of the 1999 Constitution came into force on the 7th day of June, 2017, and there was no appeal in this case before the 4th Alteration came into operation, this case can be distinguished from the case of Ogboru v. Uduaghan (Supra) where the election has already been concluded on the 16th day of January, 2011, before the amendment of the 10th day of January, 2011.
There is no doubt that we are asked here to determine whether the amendment to Section 285 of the 1999 Constitution by the 4th Alteration Act is a substantive legal one or purely procedural in nature. It is settled that the general principle is that if the provision of an amendment is substantive law, then the operation must be prospective. This is based on the jurisprudence that it would be unjust to decide the rights of parties on the basis of a law which did not exist when the cause of action, be it criminal or civil arose.
However, where by its nature, it is adjectival or procedural law, then the provision can be retrospective. See Afolabi v. Governor of Oyo State (1985) 2 NWLR Pt.9, Pg. 74.
In Ojokolobo v. Alamu (1987) 3 NWLR Part 67, Page 377 at 396-397, Mohammed Bello CJN held as follows on this issue:
‘It is a cardinal principle of our law that a statute operates prospectively and cannot apply retrospectively unless it is made to do so by clear and express terms or it only affects purely procedural matters and does not affect the rights of the parties.’
And after reviewing some English authorities, My Lord concluded as follows:
[The] decisions seem to me to show that a statute making provisions for ‘time’ within which judicial proceedings can be taken is retrospective. I cannot see any good reason why a statute prescribing the time within which a court should dispose of proceedings ought not to be so construed. The fact that the time limit prescribed by Section 258is a constitutional provision cannot be valid reason because we have been applying the ordinary rules of interpretation of the several provisions of our constitution past and present?.
His Lordship, Bello CJN also relied heavily on The King v. Dharma (1905) 2KB 335 at 338 particularly on the issue of time and limitation as a procedural point rather than a substantive point. Lord Alverstone C.J was quoted as saying as follows:
‘The rule is clearly established that apart from any special circumstances appearing on the face of the statute-statutes which make alternations in procedure are retrospective. It has been held that a statute shortening time within which proceedings can be taken is retrospective(2)The Ydum and it seems to me that it is impossible to give any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective. If the case could have been brought within the principle that unless the language is clear a statute ought not be construed so as to create new disabilities or obligations, or impose new duties in respect of transactions which were complete at the time when the Act came into force.
Mr. Smith would have been entitled to succeed; but when no new disabilities or obligations has been created by the statute, but it only alters the time within which proceedings may be taken, it may be held to apply to offences completed before the statute was passed. That is the case here. This statute does not alter the character of the offence, or take away any defence which was formerly open to the prisoner. It is a mere matter of procedure, and according to all the authorities it is therefore, retrospective.
In any event the Supreme Court had settled this issue and by the rule of stare decisis, we are bound by Ojokolobo v. Alamu (Supra) and the recent Supreme Court decisions where the facts are on all fours with the facts of the instant case. They are Obayemi Toyin V. PDP & Ors No. SC/308/2018 struck out on 23/1/19. Others decided on 23/1/19 are stated below:
SC.1058/2018: Senator Atai Aidoko V. Air Vice Marshall Isaac M. Alfa
SC.1018/2018: Hon. Saba Nakudu & Anor V. Alh. Musa Suleiman & Anor
SC.862/2018: Joseph Irimagha Adewale V. Randolph I. O. Brown & 2 Ors, and
SC.1246/2018: Hon. Olujide Adewale Lawrence V. Hon. Sumbo Olugbemi
Appeal SC.1239/2018- Osanebi v. Ozegbe Lawrence & Ors on the same facts with this case was delivered on 22/1/19.
In Osanebi v. Lawrence, the Supreme Court in applying its decision in Ojokolobo v. Alamu (1987) 3 NWLR Pt. 61 S.C Pg 381, Par C-F Ratios 4 and 7 and the provision of Section 285(12) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration No. 21) Act, 2017 allowed an appeal against the judgment of this Court on this very procedural point.
On this issue of adjectival law, the Supreme Court held in Toyin v. Musa & 3 Ors SC/307/2018 delivered on 18th January 2019 per Ibrahim Tanko Muhammed as follows:
‘Thus, time allowed by law to hear and determine the appeal had already lapsed. This Court is thus is diverted of jurisdiction to hear and determine this appeal not having been heard and determined within 60 days of filing of the Notice of Appeal as required by law. The section set out above has limited the time for entertaining and determination of pre-election appeals (such as the one at hand) to 60 sixty days after filing of the Notice of Appeal. The Appeal is then caught up by the limitation law as set out above.”
The Supreme Court relied on Amadi v. INEC (2013)4 NWLR Part 134 Page 595 at 631; Osun State Government v. Dalami Nigeria Limited (2007) 9 NWLR Part 1038 Page 66; Chigbu v. Tonimas Nigeria Limited (2006) 9 NWLR Part 84 Page 189. In Toyin v. Musa (Supra) decided by the Supreme Court, the issue emanated from the circumstances and complaints which arose from the primaries conducted on the 29/11/14 to elective offices into the Ekiti State House of Assembly.
The Originating Summons and its affidavit at the trial Court of this appeal under review already set out above is clear on the fact that this appeal is on all fours on the issue in contention with those appeals cited above.
In this case, the relevant facts for determination of the question posed by the Court to the parties is that the judgment of the trial Court was delivered on 22/2/18. The second Notice of Appeal was filed on 10/4/18. The Appellant’s brief was filed on 1/6/18. The appeal was entered in this Court on 11/5/18.
The appeal was taken by this Court on 22/1/19.
This appeal based on a Notice of Appeal filed on 10/4/18 lapsed on 9/6/18. This Court cannot decide on an appeal where it doesn’t have any jurisdiction as any decision made without jurisdiction is a nullity – Lokpobiri v. Ogola (2016) EJSC (VOL. 28) 1 SC; Aladejobi v. Nigerian Bar Association (2015) EJSC Vol. 26, Pg. 81, RATIO 182.
In the circumstances, this appeal has abated and cannot be heard by this Court. Appeal is struck out for want of jurisdiction.
PHILOMENA MBUA EKPE, J.C.A.: I had the Opportunity of reading in draft the Judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. The salient point raised Suo Motu by this Honourable Court has been extensively dealt with in the lead Judgment.
I am in total agreement with the reasoning and final conclusions arrived thereat, that this Court lacks jurisdiction to hear this appeal. Conclusively, this appeal has abated and is hereby struck out.
Appeal struck out.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of reading the draft copy of the judgment just delivered by my learned brother H.M. OGUNWUMIJU JCA.
I agree with the reasoning and conclusion contained therein to the effect that the Appeal is caught by the limitation period as per Section 285 (12) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
I also order that the appeal be struck out.
I abide by the consequential orders made in the lead judgment including order as to costs.
Appearances:
Ayo AkamFor Appellant(s)
M.N Akpan for the 1st Respondent.
Henry Obafemi holding the brief of Norbert Ogakwu for the 2nd Respondent.
John Okoriko for the 3rd RespondentFor Respondent(s)
