ACTION CONGRESS OF NIGERIA & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS.
(2013)LCN/5868(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2013
CA/C/NAEA/GOV/181/2012
RATIO
STATUTE OF LIMITATION: LEGAL PROCEEDINGS CANNOT BE INSTITUTED OR MAINTAINED AFTER THE LIMITATION PERIOD HAS ENDED
Let me state by way of a restatement of the general position of judicial authorities on the application of provisions of limitation laws or statutes, including the Constitution. The general position of the law is that where a statute of limitation prescribes a period within which an action should be brought or maintained, legal proceedings cannot be properly and validly instituted or maintained after the expiration of the prescribed period. Thus, an action instituted or pending after the expiration of the prescribed or limited period is said to be stature barred in law. See Egbe v. Adefarasin (1987) 1 SCNJ, 1; Adimora v Ajufo (1986) 1 NSCC, 1005 at 1006, (86) 6 SCNJ, 18; Fadare v (1982) 4 SC 1, (82) NSCC 52 at 60; Aremo II v Adekanye (2004) ALL FWLR (224) 2113 at 213; Osun State Gov. v Danlami (2007) ALL FWLR (365) 438.PER MOHAMMED LAWAL GARBA, J.C.A.
ELECTION PETITION: PERIOD WITHIN WHICH AN APPEAL FROM THE DECISION OF A TRIBUNAL TO COURT OF APPEAL MUST BE CONCLUDED UNDER SECTION 285(7) OF THE 1999 CONSTITUTION
Now, in the present motion, the provisions of section 285 (7) of the constitution are as follows:-
“285. (7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the tribunal or Court of Appeal.”
These provisions are very clear and unambiguous, so declared by the Supreme Court in the very recent case of Amadi v INEC (2012) 2 MJSC (Pt.1) 1 at 35 per Onnoghen, JSC in the lead judgment. His Lordship had stated that:
“The provisions of Section 285 (7) of the 1999 Constitution as amended is very clear and unambiguous and therefore needs no interpretation. It simply means what it says; that an appeal against the decision of an election tribunal or Court of Appeal in an election matter must be heard and determined within sixty (60) days of the date of the delivery of the judgment in question. The Constitutional provision and the words employed in crafting the provision commands mandatory compliance. There is no room for the exercise of any discretion in relation to the allotted time. Everything needed to deliver the judgment must be done and the judgment delivered within sixty (60) days of the date of the delivery of the judgment on appeal.”PER MOHAMMED LAWAL GARBA, J.C.A.
INTERPRETATION OF STATUTES: HOW TO INTERPRET SIMPLE AND CLEAR PROVISIONS OF A STATUTE
In such a situation, there would not be the need to look elsewhere for any aid in the interpretation of simple and clear provisions but the words used therein should be given their unambiguous and plain meaning in order not to defeat their evident object or purpose. See Awolowo v. Shagari (1979) 6 – 9 SC, 511; Orubu v INEC (1989) 5 NWLR (94) 323; Egolum v Obasanjo (1999) 5 SCNJ 92; FRN v Osahon (2006) 5 NWLR (923) 301.PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. ACTION CONGRESS OF NIGERIA
2. PASTOR USANI UGURU USANI – Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. THE RESIDENT ELECTORAL COMMISSIONER
3. PEOPLE’S DEMOCRATIC PARTY
4. SENATOR LIYEL IMOKE (CON) – Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Lead Ruling): Following the decision by the Supreme Court in the case of Marwa v. Nyako & Ors. consolidated appeals No. SC/141/2011, SC/266/2011, SC/267/2011, SC/282/2011, SC/356/2011 and SC/357/2011, delivered on the 27th day of January, 2012. The 1st Respondent, had conducted election for the office of the Governor of Cross River State on the 25th day of February, 2012. The 1st Appellant had participated in the election by sponsoring the 2nd Appellant who contested for the office of the Governor. The 4th Respondent had contested the said election on the platform of the 3rd Respondent and at the end of the election; the 1st and 2nd Respondent had declared and returned the 4th Respondent as duly elected to the office of the Governor of Cross River State. Being aggrieved by the said declaration and return, the Appellants presented an election petition before the Governorship Election Petitions Tribunal sitting at Calabar, (to be called the tribunal hereafter) challenging the return.
After trial, the tribunal delivered its judgment on the 17th day of July, 2012 dismissing the Appellants’ petition as lacking in merit.
Dissatisfied with the dismissal of their petition, the Appellants filed a notice and grounds of appeal against the judgment of the tribunal on the 6/8/2012.
The present motion by the 4th Respondent was filed on the 3/10/2012 seeking a sole relief as follows:
“1. An Order Dismissing Appeal No. CA/C/NAEA/181/2012 filed by the 1st and 2nd Appellants for being statute (sic) barred.”
The relief was also premised on the single ground, ” That the appeal has been caught up by the provisions of section 285 (7) of the constitution of the Federal Republic of Nigeria 1999 (as amended), as the time or period allowed the Court of Appeal to hear and dispose of the appeal from the judgment of the tribunal has since lapsed.”
The motion is supported by an initial affidavit of five (5) paragraphs deposed to by a legal practitioner in the chambers of the learned SAN for the 4th Respondent. Annexed to the affidavit was a written address in support of the motion. A further affidavit of six (6) paragraphs deposed to by another legal practitioner in the chambers of Mba E. Ukweni and Associates was filed on the 17/1/13 in support of the motion.
The 1st Appellant’s counter affidavit was filed on the 17/1/13 along with a written address. Other parties to the appeal did not file any affidavit or written addresses in respect of the motion.
At the hearing of the motion on the 18/1/13, Mr. Paul Erokoro, SAN, leading other counsel for the 4th Respondent, adopted and relied on the written address filed along the initial affidavit as his submissions in support of the motion. He also relied on the further affidavit filed and urged us to hold that the appeal is no longer live due to effluxion of time under the provisions of section 285 (7) of the Constitution since it was not determined within the 60 days stipulated therein. He cited the additional authorities of Ogboru v Oduaghan (2012) 11 NWLR (1311) 367; Ikenya v PDP (2012) 12 NWLR (1315) 493; Shettima v Goni (2011) 18 NWLR (1279) 413 and ANPP v GONI (2012) 7 NWLR (1208) 147 on the interpretation and application of the provisions of section 285 (7) of the constitution in support of the motion.
Lazarus A. Izabi-Undie, Esq., learned counsel for the 1st Appellant, adopted and relied on the both the 1st Appellant’s counter affidavit and the written address filed along with it and urged us to dismiss the motion. He said the counter affidavit was not challenged by the 4th Respondent and so the facts deposed therein are deemed to have been admitted by him and established. Learned counsel contended that the authorities cited in support of the motion are in applicable because the facts are not the same as no issue of fraud was alleged in them. He specifically referred to paragraph 6.07 to 6.08 of his written address and urged us to hold that the appeal is not statute barred.
Prof. Tony Ukam, Esq., learned counsel for the 2nd Appellant said although they did not file a counter affidavit in the motion, he aligned himself to the position of the 1st appellant. He then cited Amaechi v Inec (2008) 5 NWLR (1080) 2323 at 254 and Fidelity Bank v Monye (2012) 10 NWLR (1307) 1 at 10 on what he called “Calendar and Regulatory days” in relation to the period of time limited by the provisions of section 285 (7) of the Constitution for the determination of an appeal from the decision of an election tribunal, by this court. Learned counsel argued that the appeal has not expired due to effluxion of time as the Appellants have suffered a legal injury for which they were not responsible and should have a remedy. He urged us to dismiss the motion.
Learned counsel for the 1st and 2nd Respondents; Mr. O. Anumonye, Esq. said he does not oppose the motion and referred to the case of CPC v PDP cited in the 4th Respondent’s written address at page 514, paragraph G on the application of the provisions of Section 285 (7) of the Constitution.
Mr. E. O. E. Ekong, Esq., for the 3rd Respondent urged us to dismiss the appeal for being statute barred because he said no amount of fraud alleged by the Appellants can prevent the application of the provisions of section 285 (7) interpreted by the Supreme Court in the decisions cited in support of the motion which bind the court.
In response, the learned silk for the 4th respondent, citing Onworha v. Adewonye (1995) 6 NWLR (401) 338 and Obajewa v Obelle (2008) 3 NWLR (1013) 52 inter alia, said that averments in an affidavit which are not sufficient to support the relief claimed do not need to be controverted by way of another affidavit. In addition, he submitted that the statute of limitation assumes the existence of a legal right in a party but still deliberately limits the time for the exercise of the right and so the cases cited by the learned counsel for the 2nd Appellant are inapplicable because the issues, decided therein were different from the ones in the motion.
In the written address filed by the learned senior counsel for the 4th Respondent, he had raised the following issue for determination in the motion:-
“3.1 . WHETHER THE COURT HAS THE JURISDICTION TO DISMISS THIS APPEAL IN VIEW OF THE EXPRESS PROVISIONS OF SECTION 285(7) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED).”
After setting the provisions of section 285 (7) of the Constitution (henceforth to be called Section 285 (7)), the learned silk had submitted that the issue of time as provided in the section is one of the ways of challenging the jurisdiction of a court, relying on the statement by the Supreme Court in the case of Ejiofodomi v Okonkwo (1982) 11 SC. It was his further submission that since the court has only 60 days from the date of the judgment appealed against to determine and deliver its judgment, it lacks the jurisdiction to hear the appeal and the only competent order it can make is to dismiss the appeal. He said although all the parties to the appeal had done all they were expected to have done within the time to get the appeal heard, that did not subtract from the fact that the court has been robbed of the jurisdiction to hear the appeal which is now statute barred because section 285 (7) did not provide any exception to the time limit for any reason whatsoever.
The statement by the Supreme Court in the case of PDP v. CPC (2011) 17 NWLR (1277) 485 per Onnoghen, JSC was set out by the learned SAN, who finally submitted that the appeal is no longer alive, but dead by effluxion of the 60 days allotted by Section 285 (7). We were urged to dismiss the appeal.
The learned counsel for the 1st Appellant on his part, has raised two issues for decision in the appeal as follows:-
“1. Whether 4th Respondent’s motion filed on 3/10/2012 could be heard before 1st Appellant’s motion of 14/1/12 without violating 1st appellants constitution right to fair hearing.
2. If the answer is in affirmative, whether this Honourable Court could grant 4th Respondent’s motion in view of the reprehensible conduct of 4th Respondent in the circumstances of this case.”
Undoubtedly, it is “clear as crystal” that the above issues do not arise from the motion of the 4th Respondent which in no uncertain terms is entirely predicated on whether or not the appeal is statute barred. Learned counsel for the 1st appellant had avoided in both formulation and argument of the two (2) issues, the crucial issue that arises from the motion for decision by the court.
The law is now firmly established that this court has the power to disregard and ignore irrelevant issues raised in briefs so as not to obscure the main or real issue before it. See Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523; Uko v. Mbaba (2001) 4 NWLR (Pt.704) 460; Edem v Canon Balls Ltd. (2005) ALL FWLR (276) 693 at 706; Fed. Min. of Health v Comet Ship Agencies (2010) 3 WRN 1 at 29; Chabayasa v Anwasi (2010) 10 NWLR (1201) 163 at 181 -2.
In my respectful view, the two issues raised by the learned counsel for the 1st Appellant do not come from the motion, but are meant to obfuscate the fundamental and crucial issue which arises and requires decision in the motion. The crucial issue in the motion is the precise and concise relief sought on the face thereof; which is whether the appeal is statute barred. The reliefs sought in a motion are akin to the grounds of an appeal from which issue/s raised by a party for determination must come, enure or arise for them to be competent and worthy of consideration by the court. If issues raised in a brief do not derive from the grounds of an appeal or as in this case from the reliefs sought on the motion paper, then they become liable to be discountenanced or struck out for being incompetent. See Asa v Okoro (1991) 7 NWLR (203) 260; African Petroleum Ltd. v Owodunni (1991) 8 NWLR (210) 391; Kachalla v Banki (2006) ALL FWLR (309) 1420.
The motion filed by the 1st Appellant on the 14/1/13 mentioned in issue 1 seeks for the following reliefs:-
1. An order setting down this appeal for hearing and determination on the merit or,
2. An order granting 1st Appellant/Applicant leave and extension of time to hear and determine this appeal in the interest of justice.
3. Alternatively
4. An order stating a case to Supreme Court of Nigeria to determine whether S. 285 (7) of 1999 Constitution (as amended) applies in the circumstances of this case, where there is evidence of fraudulent conspiracy of 3rd and 4th Respondents with PCA in setting up a panel to determine this appeal within 60 days from the date of judgment of the trial tribunal.
5. And any other order (s) as this Honourable Court may deem fit to make in the circumstances of this case.”
The grounds upon which the above reliefs were premised are as follows:-
“1. All processes for the determination of this appeal were competently filed and also filed within time by Appellants and Respondents.
2. The fraudulent conspiracy of Hon. Justice Dalhatu Adamu (CFR) (Acting President of Court of Appeal with the 3rd and 4th Respondents culminating in not setting up a panel to hear Appellants’ appeal within 60 days allowed by law is an abuse of office, ultra vires, unconstitutional, null and void, thus the limitation law does not apply in the circumstances.
3. By virtue of SS. 6(6)(a) & (b) and 36(1) of 1999 Constitution (supra) and article 7 of African Charter on Human and Peoples Right, this Honourable Court has the jurisdiction to import the doctrine of necessity to determine this appeal and or extending time within which to hear this appeal in the interest of justice.
4. The Application of S.285 (7) of the Constitution of Federal Republic of Nigeria 1999 (as amended) to Appellants’ case will be against public policy and will promote, glorify or elevate corruption to state policy.”
What can easily be discerned from the reliefs sought in the motion is that they are only of moment when and if there was a live appeal over which the court can exercise the jurisdiction to adjudicate.
The issue 2 of the 1st Appellant contains allegations of fraud and conspiracy which are criminal in nature against the 4th Respondent and someone else who is not a party to either the appeal or the motion under consideration. The motion is not the appropriate and proper forum for the ventilation of the criminal allegations against the persons named.
I now turn to the relevant facts deposed to in the affidavits of the parties in the motion. In paragraphs 3, 4 and 5 of the affidavit in support of the motion, it was averred as follows:-
“3. The judgment being challenged in this appeal was delivered by the Governorship Tribunal sitting in Calabar on Tuesday the 17th day of July, 2012.
4. The court has 60 days to determine an appeal from the day the judgment of the lower tribunal is entered.
5. It is now well over sixty (60) days after the judgment being appealed against was delivered by the tribunal.”
Paragraph 6 of the further affidavit in support of the motion filed on the 17/1/13, the deponent had averred that:-
“6. By my calculation, the 60 days allowed for the hearing and disposal of this appeal from 17/7/2012 elapsed on Saturday, the 15th day of September, 2012.”
In brief, the above depositions are to the effect that the judgment of the tribunal, subject of the appeal by the Appellants, was delivered on the 17/7/12 and the court had 60 days from that day to determine it. That the 60 days had elapsed on the 15/9/12.
The 1st Appellant’s counter affidavit filed in reaction to the above depositions in support of the motion did not challenge or dispute in any material way or at all, the simple and straight forward facts set out therein. Rather, the 14 paragraphs counter affidavit of the 1st Appellant are as follows;
“1. That I am a member and State Publicity Secretary of 1st Appellant and thus I am conversant with the facts of this case.
2.That in a meeting of State Exco of 1st Appellant held at the 1st Appellant’s Secretariat off Edidem Usang Iso Road, Calabar, CRS, I was instructed to depose to this affidavit on 1st Appellant’s behalf.
3. That as the State Publicity Secretary of the 1st Appellant, I am conversant with the facts of this case as am daily involved in reading documents filed in this tribunal which affords me the knowledge in communicating with the Headquarters of the 1st Appellant.
4. That 1st Appellant admits paragraphs 1-3 of the 4th Respondent’s affidavit in support of her motion filed on 3rd day of Oct., 2012.
5. That I know that the 4th Respondent conspired with the former Acting President of Court of Appeal, Hon. Justice Dalhatu Adamu to assist 4th Respondent to ensure that an appeal panel is not set up to determine this appeal which facts are contained in 1st Appellant’s affidavit deposed to by Hiliard Etta, State Chairman of 1st Appellant filed in support of 1st Appellant’s motion on 14/1/13.
6. That the 4th Respondent knows that it is only the former Ag. PCA (Hon. Justice Dalhatu Adamu) that has a sole responsibility of setting up a panel to hear Appellants appeal.
7. That because the 4th Respondent succeeded in persuading Hon. Justice D. Adamu in not setting up a panel this appeal could not be heard earlier than now.
8. That I have read the said affidavits filed by 1st Appellant and I verily believe that the 4th Respondent frustrated the setting up of the panel to hear Appellants’ appeal.
9. That I also believe that the ultimate reason in para. 8 above was to afford the 4th Respondent file his motion of 3/10/2012.
10. That 4th Respondent’s paras 4 and 5 is denied in that appeal was not heard within time because of fraud ignited by the 4tn Respondent.
11. That I have also read the motion filed by 1st Appellant particularly prayer 4 in the motion paper seeking alternative relief for a case to be stated to Supreme Court of Nigeria to determine a constitutional issue arising from this appeal.
12. That I believe that the determination of 1st Appellant’s motion will resolve 4th Respondent’s motion also.
13. That in the interest of justice 1st Appellant’s motion of 14/1/13 ought be determined first.
14. That I depose to this affidavit conscientiously believing the same to be true and correct and by virtue of the Oaths Act 2004.”
It can now be seen that instead of answering the depositions of the facts in the affidavit in support of the motion, the counter affidavit embarked on the allegations of conspiracy and fraud which formed the basis of the issues raised by the learned counsel for the 1st Appellant in the written address. The 1st Appellant did not in the circumstances controvert or even challenged the facts that the decision appealed against was delivered on the 17/7/12 and that the 60 days allowed for the court to hear the appeal have in fact lapsed or expired as at the date the motion was filed.
The law is now elementary that where facts are provable by affidavit and if one party deposed to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where such an adversary fails to depose to facts which controvert those facts, the facts are deemed as admitted by the adversary and duly established. See Ajomole v. Yarduat (1991) 5 SCNJ 172 at 178; Odogwu v Odogwu (1992) 7 NWLR (253) 344; UBN v Odusote Book Store (1994) 3 SCNJ 1; Adesina v Commissioner (1996) 4 SCNJ 112 at 119. In the premises of these authorities, the 1st Appellant is deemed in law to have admitted these facts which are in controvertible any way. I say the facts are incontrovertible because of the following:
(a) In the notice of appeal filed by the 1st Appellant on 6/8/12 which appears at pp. 942 – 955 of the record of the appeal, the judgment of the tribunal was stated to have been delivered on the 17th day of July, 2012.
(b)Copy of the judgment appealed against which is at pp. 900 – 940 of the record of appeal was dated the 17th day of July, 2012.
(c)The motion by the 1st Appellant filed on the 14/1/13 seeks for inter alia, setting down the appeal for hearing and determination on the merit in prayer 1. This means that by the 14/1/13 when the motion was filed, the appeal was yet to be heard and determined. This was more than one month after the 4th Respondent’s motion was filed and served on the 1st Appellant.
(d) By the provisions of Section 285 (7), the court has sixty (60) days from the date the judgment of the tribunal was delivered to determine the appeal against it.
The germane question to answer is whether on the face of the undisputed facts of this motion, the appeal is statute barred by the application of the provisions of section 285 (7).
Let me state by way of a restatement of the general position of judicial authorities on the application of provisions of limitation laws or statutes, including the Constitution. The general position of the law is that where a statute of limitation prescribes a period within which an action should be brought or maintained, legal proceedings cannot be properly and validly instituted or maintained after the expiration of the prescribed period. Thus, an action instituted or pending after the expiration of the prescribed or limited period is said to be stature barred in law. See Egbe v. Adefarasin (1987) 1 SCNJ, 1; Adimora v Ajufo (1986) 1 NSCC, 1005 at 1006, (86) 6 SCNJ, 18; Fadare v (1982) 4 SC 1, (82) NSCC 52 at 60; Aremo II v Adekanye (2004) ALL FWLR (224) 2113 at 213; Osun State Gov. v Danlami (2007) ALL FWLR (365) 438. Depending on the specific provisions of the limitation statute or law, in the case of initiation of an action, time would start to run from the date the cause of action accrues to a party, and for maintenance of a pending action, time begins to run as stated in the statute. Thus, where a statute prescribes that an action instituted shall be determined within a prescribed period from a named date, then time would start to run from the named date and the action must be determined within the limited period otherwise it would be caught up by the effluxion of time and thereby become statute barred.
Now, in the present motion, the provisions of section 285 (7) of the constitution are as follows:-
“285. (7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the tribunal or Court of Appeal.”
These provisions are very clear and unambiguous, so declared by the Supreme Court in the very recent case of Amadi v INEC (2012) 2 MJSC (Pt.1) 1 at 35 per Onnoghen, JSC in the lead judgment. His Lordship had stated that:
“The provisions of Section 285 (7) of the 1999 Constitution as amended is very clear and unambiguous and therefore needs no interpretation. It simply means what it says; that an appeal against the decision of an election tribunal or Court of Appeal in an election matter must be heard and determined within sixty (60) days of the date of the delivery of the judgment in question. The Constitutional provision and the words employed in crafting the provision commands mandatory compliance. There is no room for the exercise of any discretion in relation to the allotted time. Everything needed to deliver the judgment must be done and the judgment delivered within sixty (60) days of the date of the delivery of the judgment on appeal.”
The above statement of the law is one of the cardinal principles of interpretation of statutes and the constitution by the courts in Nigeria that where the provisions are clear and unambiguous, there is no need to give them any other meaning than their plain, ordinary and grammatical construction would permit. In such a situation, there would not be the need to look elsewhere for any aid in the interpretation of simple and clear provisions but the words used therein should be given their unambiguous and plain meaning in order not to defeat their evident object or purpose. See Awolowo v. Shagari (1979) 6 – 9 SC, 511; Orubu v INEC (1989) 5 NWLR (94) 323; Egolum v Obasanjo (1999) 5 SCNJ 92; FRN v Osahon (2006) 5 NWLR (923) 301.
As enunciated above by the Supreme Court, the provisions of Section 285 (7) simply mean that an appeal against the decision of an election tribunal or the court in an election matter “must be heard and determined within sixty (60) days of the date of the delivery of the judgment in question.” By the employment of the word “must” by the apex court, puts it beyond viable argument that the provisions are legally mandatory and an exhortation or command which leave no room for or even envisage a discretion in their application.
Since the judgment of the tribunal was delivered on the 17/7/12, the sixty (60) days prescribed in the provisions of Section 285 (7) within which the court must hear and determine an appeal against it, started to run from that date. By simple arithmetic or ordinary calculation, sixty (60) days from the 17/7/12were to run from that date to the 1sth day of September, 2012 because both the months of July and August, 2012 had thirty-one (31) days each. The 15th September, 2012, was therefore the last of the sixty (60) days within which the court must hear and determine the appeal against the decision of the tribunal pursuant to the provisions of Section 285 (7). In the case of Abubakar v. Nasamu (2012) 2 – 3 MJSC 1 at 55 the apex court had held that:-
“where the limitation of time is imposed in a Constitution, Statute, Decree or Edict, unless they make provision for extension of time, the courts cannot extend the time. Akinnuoye v Military Administrator, Ondo State (1997) 1 NWLR (Pt. 483)) 564.”
Because the provisions of Section 285 (7) are a command and mandatory and they contain no provision for extension of the period of the sixty (60) days stipulated therein for the court to hear and determine the appeal, the application of the provisions to the Appellants’ appeal which upto and beyond the last day of the sixty (60) days from the date the judgment of the tribunal was delivered, would appear unavoidable.
However, is there any exception to the application of the provisions to an appeal which was not heard and determined within the stipulated period of sixty (60) days? The provisions or any other provisions of the Constitution contains no such exception and being the supreme law of the land, cannot be altered, extended, or expanded, etc by any court of law, whose only legitimate duty and function is to interprete or expound the law, in order to suit any of the parties in a case before it. The primary and binding duty of the courts created by the constitution is to interprete and apply the provisions of the statutes or the constitution as they are, de lege lata and not de lege ferenda; the law as it ought to be.
The position was stated clearly by the Supreme Court in the case of Ladoja v INEC (2007) 12 NWLR (1041) 1 15 when it said:-
“The constitutional role of the superior court under the Constitution is to interprete the law and not to usurp the role of the legislature in law making. A judex is to expound the law and not to expand the law. No court can perform a duty not vested in the court by the constitution. The task of the court is to decide what the law is and not what it ought to be.”
See also Abioye v Yakubu (1991) 5 NWLR (1990) 130; Amadi v. INEC supra at 45.In the course of their oral argument in court, both learned counsel for the Appellants had said that a statute of limitation does not apply to an action where the issue of fraud arises on the part of the party exercising the right to an action.
I should simply point out that that position of the principle of law is general and may apply in respect of the right of a party to initiate or commence an action. The time in cases of established fraud, may not start to run for the purposes of the limitation period for the initiation or commencement of the action during the continuance of the fraud. That is an exception usually provided for in the relevant limitation laws and applied by the courts in appropriate cases.
The provisions of Section 285 (7) relate to the period within which an appeal initiated within the time prescribed by law, should be heard and determined by the court. The provisions do not prescribe or limit the period of time when an appeal shall be initiated or filed and do not contain any exceptions to the application of the sixty (60) days for the determination of an appeal by the court. I would repeat that no other provisions of the Grund num, contain exception for the application of the provisions of Section 285 (7). Being the Supreme law, no such exception can be imported into it by the court or parties in a case. In addition, the provisions being special and enacted specifically in respect of election matters, which are recognized judicially to be sui generis, a general principle of law ordinarily applicable in civil matters, would not apply to frustrate or defeat their expressed object. The cases cited by learned counsel for the Appellants on the point do not in the circumstance, avail the appeal. The learned counsel for the Appellants have also mentioned the issue that applying the provisions of Section 285 (7) would infringe the Appellants right to a fair hearing. As a complete answer to that issue, I would refer to the lead judgment of the apex court in Amadi v INEC (supra) particularly at pp. 35 – 37 where it held that:
“The provisions of Section 285 (7) supra therefore must be applied to the facts of any given case as it admits of no interpretation whatsoever.
In the instant case, both parties- by which I mean the appellants and respondents- are agreed that the appeal in question had lapsed by one day as at 7th Oct., 2011 when same was listed for hearing. That means that as at that date, the appeal had ceased to exist in law and could therefore not have been heard- it was dead in the eyes of the law and Constitution.
It is very important to note that appellants are not challenging the constitutionality of the provisions of Section 285 (7) of the 1999 Constitution, as amended but its application by the lower court to their appeal. In the circumstance, it is clear that the provision in question is valid and subsisting and binds all and sundry in this nation.
The question is whether the application of the provisions of Section 285 (7) of the 1999 Constitution, as amended to the facts of this case, or any other case for that matter can be said to amount to a denial of the right to fair hearing by the court?
It is very clear that the provisions of Section 285 (7) supra is in the mould of a statute of limitation but with a constitutional flavor. Does an application of a statute of limitation to a given factual situation rob the aggrieved party of the right to fair hearing? I do not think so neither has learned counsel for appellants cited any authority in support of that contention.
This court has held that the provisions of Section 285 (7) supra is like the rock of Gibraltar or Mt. Zion which cannot be moved. The time provided therein is sacrosanct in the sense that it cannot be extended. Granted, for the purposes of argument only, that application of the provisions amounts to a denial of the right to fair hearing, which is not admitted by me, what would be the benefit to appellants in view of the fact that the sixty (60) days cannot be extended to accommodate the hearing of their appeal? To me, I hold the considered view that the instant appeal is an exercise in futility in the present circumstances and realities. The court is not being asked to declare the provisions of Section 285 (7) unconstitutional which means it remains valid. As long as it remains the law, appeals relevant to that provision must necessarily be heard and determined within sixty (60) days of the delivery of the judgment on appeal, otherwise the appeal would lapse.
The provision does not say that the appeal would not lapse if the inability to hear and determine same was not caused by the appellant or was caused by the court, or by any person of whatever description. Section 285 (7) supra is clearly intended by the legislature to limit time not to extend time and it would be inappropriate, and in fact illegal, to interprete same to attain the effect of extending the time therein allotted which is clearly the intention of the appellants in the instant appeal. See the judgments of the court in the consolidated appeal Nos. SC/332/2011; SC.333/2011 and SC.352/2011 Alh. Kasim Shettima & Ors. v Alh. Mohammed Goni & Ors. delivered on the 31st day of Oct.,2011 and another consolidated appeal Nos. SC.272/2011 and SC/276/2011 between PDP v Congress for Progressive Change & Ors. also delivered on 31st Oct. 2011 and the most recent one delivered on 27th January, 2012 in the consolidated appeal Nos. SC.141/2011; SC/266/2011; SC/267/2011; SC/282/2011; SC/356/2011 and SC/357/2011- Brig. Gen. Mohammed B. Marwa & Anor v Adm. Murtala Nyako & Ors.
It is very important to note that the provisions of Section 285 (7) supra does not deny an appellant the right to fair hearing, just like every statute of limitation. It merely gives all parties and the court a time frame within which parties are to exercise their right to fair hearing in a relevant appeal. If for whatever reason the appeal is not heard within the allotted time frame, it cannot be said that an appellant affected thereby has been denied his right to fair hearing. The provisions is of strict liability and since the court has not been called upon to declare same unconstitutional, it remains the law and binding on all and sundry.”
All the judgments named in the above statements have now been reported as indicated elsewhere in the Ruling. In his concurring judgment, Adekeye, JSC had this to say on the issue at pp. 44 – 45 of the report:-
“In answering that issue, it is imperative to examine what is denial of fair hearing under the constitution. The right to fair hearing under Section 36(1) of the 1999 Constitution as applicable in the determination of civil rights and obligation of citizens is a trial conducted according to all legal rules formulated to ensure that justice is done to all parties. The court is expected to provide a conducive atmosphere for parties to exercise their right to fair hearing.
The right to fair hearing is a question of opportunity of being heard – Okafor v A-G, Anambra State (1991) 6 NWLR (Pt.200) pg. 659; Saleh v Monguno (2003) 1 NWLR (Pt 801) pg. 221; Kotoye v CBN (1989) 1 NWLR (Pt.98) pg. 419; Military Gov., Imo State v Nwauwa (1997) 2 NWLR (Pt. 490) pg. 675. The appellants were afforded the opportunity of being heard but this right was foreclosed by the provision of Section 285(7) of the 1999 Constitution which provided for a period of 60 days for hearing and determination of an appeal from the election petition tribunal to the Court of Appeal.”
I need not say more on the issue except that in the interpretation and application of the provisions of a statute, the court would not concern itself with the sentiments of whether the provisions are harsh on any of the parties to a case. This is more so when the provisions that call for application are the provisions of the constitution which bind every citizen of the country. In the present motion, it would be completely futile for the court to embark on a voyage to discover who was responsible or accountable, for the non-hearing, inability to hear, failure, omission or refusal to hear and determine the Appellants’ appeal within the time limited by the provisions of Section 285 (7) because there are no provisions which provide for or envisage such an adventure. Reasons for the appeal not being heard and determined within the prescribed time are entirely irrelevant in the application of the provisions in their tenor and the full plenitude and amplitude of their object.
On the undisputed facts of this motion, because the Appellants’ appeal against the judgment of the tribunal delivered on the 17/7/12 was not heard and determined by the court within the sixty (60) days prescribed and limited by the provisions of Section 285(7), it is caught up by the effluxion of the sixty (60) days and automatically rendered statute barred by the application of the provisions. I therefore agree with the submissions of the learned silk for the 4tn Respondent that the appeal is thereby, no longer live and the court lacks the requisite jurisdiction to entertain it. In law, there is no valid appeal pending and the only proper order the court can make in the circumstances, is to formally pronounce and bury it at this stage by dismissing it. See Shettima v Goni; PDP v CPC; CPC v. INEC (all supra), Otapo v. Sumonu (1981) 3 NWLR (58) 18; Olorode v Oyebi (1984) 5 SC 1; Din v. AGF (2006) 1 NWLR (17) 471.
Before I end this short Ruling, it is expedient to commend to learned counsel the advice by the Supreme Court in the case of Adewumi v Plastex Ltd. (1986) 3 NWLR (32) 767 where it said that:-
“where counsel is confronted with an inescapable and sustainable legal position, the proper course for him to adopt in the discharge of his duty to his client and to uphold the dignity and integrity of his office as an officer of the court, it to submit to judgment in accordance with the law.”
The extant position of the law as expounded by the Supreme Court in the cases cited supra on the application of the of the provisions of section 285 (7) (for our purpose) of the constitution, has been that an appeal not determined within the prescribed period would be statute barred thereby robbing the court of the necessary vires, jurisdiction, to entertain it. That is an inescapable and unavoidable legal position which bind all authorities and persons in Nigeria whilst it lasts by virtue of the provisions of Section 287 (1) of the Constitution (as altered).We all have a binding duty to not only abide by, but protect and defend the provisions of our constitution as patriotic citizens of our dear country, no matter what positions we may find ourselves at any point in time. I have said enough.
In the result, I find merit in the motion which therefore succeeds. For being statute barred, the appeal No. CA/C/NAEA/GOV./181/2012 is hereby dismissed.
Parties shall bear their respective costs in the motion.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privileged of reading in draft form, the Ruling just delivered by my learned brother Mohammed Lawal Garba, JCA. I am in agreement with his reasoning and final conclusion. The 4th Respondent had raised a preliminary objection as to the competency of this appeal as presently constituted. The Tribunal delivered its considered judgment on 17th July, 2012. By the strict reading of S. 285(7) of the 1999 Constitution (as altered) states, that the time limited for the hearing and disposal of any election appeal is sixty (60) days from the day judgment is delivered. This means that this appeal ought to have been heard and disposed of by 15th September, 2012.
After the expiration of the sixty (60) days, the appeal becomes statute-barred and robs the court of jurisdiction.
At the risk of being repetitive about the question of jurisdiction, it must be stated here clearly that when a court lacks jurisdiction it looses its power. Jurisdiction is imperative for any proceeding in court. The crucial question of competence immediately arises, because if a court lacks jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted. See the cases of Dapialong Vs. Dariye (2007) 8 NWLR pt.1036 page 332, Adeleke Vs. O.S.H.A (2006) 16 NWLR pt.1006 page 608.
It is trite law that the issue of jurisdiction can be raised by any party of any stage of the proceedings in court hence this motion.
The 4th Respondent had challenged the jurisdiction of this court to hear this appeal, it having by effluxion of time become statute barred. S. 285 (7) of the 1999 Constitution (as altered) reads as follows.
An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the tribunal or Court of Appeal.
The Supreme Court has in a plethora of cases interpreted this section to mean that, the courts cannot extend or expand the time provided by this subsection. See the case of PDP Vs. C.P.C (supra).
The Appellants cannot continue in pursuit of this appeal as the time frame of 60 days provided by S.275 (7) has since elapsed. See Adeosun vs. Jibesin (2001) 14 WRN page 106.
The time frame imposed by the Constitution or a Statute cannot be extended except it makes provision for extension of time. Failing which the court cannot extend the time. Akinnuoye Vs. MILAD, Ondo State (1997) 1 NWLR pt 483 page 564.
The time for this appeal has long expired. The courts cannot extend the time. The Appellants still have their rights but nowhere to ventilate their grievances.
For this and the fuller reasons in the lead judgment I agree with my learned brother that this appeal is Statute Barred. The motion to dismiss is upheld by me.
I abide by all the other orders contained in the lead judgment.
JOSEPH TINE TUR, J.C.A.: I had the advantage of reading in draft the lead judgment delivered by my noble Lord, Mohammed Lawal Garba, JCA and I concur with the reasoning and conclusions therein. I am also of the opinion that this appeal ought to be dismissed based on the preliminary objection raised by the 4th Respondent’s learned Senior Advocate.
It is not in dispute that the judgment of the Election Tribunal was delivered on 17th July, 2012. 1st and 2nd Appellants being aggrieved filed their Notices of Appeal on 6th August, 2012. The records of the Tribunal were transmitted to this Court on 14th August, 2012. By this time the Judges of the Court of Appeal were enjoying their annual vacation. The 1st Appellant filed a brief of Argument on 23rd August, 2012; the 2nd Appellant did so on 24th August, 2012. The 1st-3rd Respondents’ Brief of Arguments were filed on 27th August, 2012 and the 4th Respondent 28th August, 2012. The Appellants’ Reply brief was filed on 3rd September, 2012. The terminal date for the Court of Appeal to hear and determine the issues in controversy was 15th September, 2012.
On 14th January, 2013 the 1st and 2nd Appellants filed this application seeking that the appeal be set down for hearing notwithstanding that the Sixty days prescribed for the hearing and determination of the appeal lapsed since 15th September, 2012. The argument by learned Counsel is that it was fraudulent conspiracy between the 4th Respondent and the former Acting President of the Court of Appeal to have willfully declined, refused, or neglected to set up a panel to entertain the appeal, thereby enabling the sixty days allotted for that purpose to expire.
Having heard argument on the preliminary objection raised by the 4th Respondent against the hearing of the substantive appeal and responses from learned Counsel to the opposite parties I shall draw attention to Fabunmi vs. Agbe (1985) 1 NWLR (Pt.2) 299 where Obaseki, JSC held at page 319 paragraph “C’ that:
“Fraud is a serious crime and in civil matters, the particulars must be pleaded and proved strictly.”
In Exparte Watson 21 Q.B.D. 301 Willis, J., held that:
“Fraud, in my opinion, is a term that should be reserved for something dishonest and morally wrong, and much mischief is, I think, done, as well as much pain inflicted, by its use where “illegality” and “illegal” are the really appropriate expression.”
This dictum of Willis J., was cited with approval by Nnaemeka-Agu, JSC in Ojibah vs. Ojibah (1991) 5 NWLR (Pt.191) 296 at 310 where his Lordship held that:
“..At common law, its foundation is deceit of which the infraction of fair dealing and its consequences upon the person aggrieved are of paramount importance…”
See page 130 paragraph “B”-“C”.
De Grey C.J. held in the Duchess of Kington’s case (1775-1802) All E.R. Rep. 623 at 629 that:
“‘Fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of Courts of Justice. Lord Coke says, it avoids all judicial acts, ecclesiastical of temporal.”
The appellants have been confronted with the provisions of Section 285(7) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which provides as follows:
285(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the tribunal or Court of Appeal.”
This provision has been interpreted in several decisions of the Supreme Court. I do wonder why the appellants have closed their eyes to the finality of the opinions of the apex Court to institute this appeal which they have also admitted is time barred. In my humble view, the appeal is predicated on political sentiments clothed with human sympathy. But Chief in Iro Ogbu & Ors. vs. Chief Ogburu Urum & Ors. (1981) 1 All NLR (Pt.2) 240 at 246 the Supreme Court held that:
“Sympathy cannot override the clear provisions of our Rules…”
In Yonwuren vs. Modern Signs (Nig.) Ltd. (1985) 2 SC 86 Obaseki, JSC also stated at page 111 that:
“…the Court does not act on sentiment and sympathy has no place where on the facts the law is against the applicant.”
Again in P.D.P vs. C.P.C. (2011) 17 NWLR (Pt.1277) 485 Galadima, JSC held when considering the provisions of section 285(7) of the constitution held at page 514 thus:
“…I agree that the appellants are not tardy or responsible for the delay in this matter. They have my sympathy. But there is nothing in Section 285(7) of the Constitution suggesting that the time limited to the hearing and disposal of election matter can be expanded. This is not the intendment of subsection (7) of Section 285 of the Constitution. Unless the Section is amended by the National Assembly, the law remains what it is. It is clear and unambiguous. It does not exclude the period of public holidays and vacation in the computation of the period of time specified in the constitution.”
If this Court has no jurisdiction to entertain the substantive appeal because of effluxion of time, which other Court can do so? This question has arisen because in Mostyn vs. Fabrigas (1775-1802) All E.R. Rep.266 when the jurisdiction of the Court was raised, Lord Mansfield, C.J., of England held at page 269 that:
“In every plea to the jurisdiction, you must state another jurisdiction.”
In other words, the onus is on the party pleading lack of jurisdiction to show which other Court is seised with jurisdiction. In the present scenario the competent Court apart from the Court of Appeal would have been the Supreme Court. But in P.D.P. vs. C.P.C. (supra) Onnoghen, JSC who read the lead judgment had held at page 508 of the judgment that:
“I hold the considered view that in terms of time to do anything relating to an election petition or judgment thereon or arising therefrom, it is the above provisions that apply and that no Court has the power to extend the times as constitutionally provided in section 2856-7 of the 1999 Constitution (as amended) by interpretation of the Sections or otherwise.”
The phrase, “…no Court has the power to extend the times as constitutionally provided in Section 285(5)-(7) of the 1999 Constitution (as amended), by interpretation of the Sections or otherwise” as held by Onnoghen, JSC, includes the Supreme Court. That is to say, the Supreme Court has already held that the Court cannot extend the times provided under Sections 285(5)-(7) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). That is to say that both the Court of Appeal and the Supreme will have no jurisdiction to entertain the substantive appeal.
Where Limitation is successfully pleaded, example Public Officers Protection Act, the Courts do not embark on a voyage of prying into the conduct of the party that gave rise to the action in this case, the appeal being time-barred. This was made clear by the Supreme Court in Fred Egbe vs. Justice A. Adefarasin & Anor (1985) 5 SC 50 where Karibi-whyte, JSC held at pages 89 to 90 as follows:
“It is on the facts clear that appellant has no cause of action against 2nd respondent having not brought the action within the prescribed period of three months from the accrual of the cause of action – (See Adeyemo vs. Adegboyega & Commissioner of Police (1973) Vol.3, part II ECSLR 991, Olatawura J.). Again where the defendant has raised an unanswerable plea of protection under the Public Officers Protection Law on the uncontested facts; as 2nd respondent has done in this case, there is absolutely no basis for prying into the conduct of such a defendant which gave rise to the action. The Court of Appeal need not have gone into the question of whether malice was a relevant consideration in determining the liability of the 2nd Respondent. The issue before the Court was whether the action was maintainable. It is not whether the 2nd respondent was liable. I therefore agree entirely with the appellant that the Court of Appeal was wrong, but for different reasons, to hold that 2nd respondent was not actuated by malice. Similarly, appellant was in error to contend that the question of the malice with respect to the conduct of the 2nd respondent was an issue before the Court of Appeal. As I have already stated there was no cause of action against the 2nd respondent in respect of which he is answerable to the appellant.
In NPA vs. Lotus (2005) 12 SCNJ 165 Mohammed, JSC held at pages 182-184 as follows:
“The question now is what is the effect of the finding that the action is statute barred? The general principle of law is that where the law provides for the bringing of action within a prescribed period in respect of a cause of action accruing to a plaintiff, proceedings shall not be brought after the time prescribed by the statute has expired. See Obiefuna vs. Okoye (1961) 1 All NLR 357. This means an action brought outside the prescribed period offends against the provision of the statute and does not give rise to a cause of action. This was also the decision of this Court in Eboigbe vs. NNPC (1994) 5 NWLR (Pt.347) 649 at 659 where Adio, JSC said:-
“Where an action is statute-barred a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation laid down by the limitation law for instituting such an action has elapsed. See Odubeko vs. Fowler (1993) 7 NWLR (Pt.308) 637. An action commenced after the expiration of the period within which an action must be brought as stipulated in the statute of limitation is not maintainable. See Ekeoga vs. Ahiri (1991) 3 NWLR (Pt.179) 258. In short when the statute of limitation in question prescribes a period within which an action must be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See Sanda vs. Kukawa Local Government (1991) 2 NWLR (Pt.174) 379.”
I am indeed bound by the decision of this Court in that case and the various decisions of this Court referred to and relied upon therein on the position of the law relating to actions which are statute barred. In this respect, the action of the 1st respondent against the appellant which was statute barred could not have been properly and validly instituted. The action was therefore not maintainable. To this end, the position of the law is trite. Where a defendant raises a defence that the plaintiff’s action is statute barred and the defence is sustained by the trial Court, the proper order for the trial court to make is an order of dismissal of the plaintiff’s action and not to merely strike it out. See Egbe vs. Adefarasin (1987) 1 NWLR (Pt.47) 1 at 15 and Eboigbe vs. NNPC (1994) 5 NWLR (Pt.347) 649 at 666. This should have been the fate of the 1st respondent’s Case both at the trial Federal High Court and the Court of Appeal.
In line with my findings in the present appeal that the action of the 1st respondent against the appellant was statute barred, quite contrary to the findings of the Court below, this appeal has merit. Accordingly the appeal shall be and is hereby allowed. The judgment of the court below of 29th November, 2000 now on appeal is hereby set aside. In place of that judgment set aside, I hereby substitute a judgment dismissing the 1st respondent’s/plaintiff’s action.”
Accordingly, this preliminary objection is upheld. The substantive appeal is dismissed. I abide by any other order my Lord has made in the lead judgment.
Appearances
Chris A.C. Ogbogu and Linus P. Mbey – for 2nd Appellant
Lazarus A. Izabi-Undie, Esq., – for 1st Appellant For Appellant
AND
E. O. E. Ekong, Esq., with I. M. Anana, Esq. for 3rd Respondent
Ekanem Otis- holding Dr. O. Ikpeazu, SAN’s brief -for 1st & 2nd Respondents
Mba E. Ukweni, with E. L. Akpama, P. A. Akpoke, E. B. Akinde, P. O. Arikpo, C. A.C. Efifie, S. Ekeke, E .J. Amatey and E.O. Abba for the 4th Respondent. For Respondent
