ALH. HASSAN KAKAYOS HUSSEINI & ANOR v. SENATOR AHMED IBRAHIM LAWAN & ORS.
(2011)LCN/4904(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of November, 2011
CA/J/EP/SN/170/2011
RATIO
QUESTION OF JURISDICTION: IMPORTANCE OF THE QUESTION OF JURISDICTION
The question of jurisdiction is certainly very fundamental and which cannot be treated with a wave of hand. It cannot also be under estimated or compromised especially where the jurisdiction of the Court is constitutionally conferred. It is therefore either that the Court has jurisdiction which is statutorily conferred or does not at all have. It cannot in the circumstance also be conferred by consent of parties to a suit. Without jurisdiction a proceeding no matter how well conducted will certainly have no backing of the law and would without much ado be rendered or declared a nullity. This is trite and as pronounced in plethora of authorities. No Court, as it has been clearly and loudly sounded times without number, should engage in an exercise of futility. This of course applies to where there is lack of substantive jurisdiction as against procedural jurisdiction which can be waived. While there can be exercise of discretion in the latter, there is absolutely none in the former which is sacrosanct in nature and unassailable. PER CLARA BATA OGUNBIYI, J.C.A.
ELECTION PETITION: EFFECT OF FILING AN APPEAL AGAINST A DECISION OF AN ELECTION TRIBUNAL OR COURT OF APPEAL IN AN ELECTION MATTER OUTSIDE THE TIME FRAME AS PROVIDED UNDER THE PROVISION OF SECTION 285(7) OF THE CONSTITUTION
The matter at hand is constitutional and which relates to Section 285(7) of the Constitution which same reproduced states: “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 judgment of the tribunal or court of appeal.” The case of Madukolu v. Nkemdilim (1962) SCNLR page 341 is well in point and serves a locus classical on question of jurisdiction. As rightly conceded to by all counsel, the decision sought to appeal was made on 2nd August, 2011. Without having to before the point therefore, the appeal by operation of law had lapsed after the 60 days sequel to Section 285(7) (supra). This is constitution of and the some way a mortal being cannot resurrect a dead person, the Court cannot delve into that which is beyond its reach. The Court has a bounden duty to give effect to the provision of Section 285(7) of the Constitution. This has been confirmed in decision by the apex Court in the consolidated appeal Nos. SC/333/2011, SC/332/2011 and SC/335/2011 delivered on 31st October, 2011 wherein their Lordships held that a Court cannot pronounce on a process that has lapsed by the provision of the law. The provision of Section 285(7) is unambiguous and clear. The Court cannot therefore subvert and give a different interpretation to that which is on ground. There is also no room for diverse interpretation. The only and one interpretation however is that where the appeal falls outside the 60 days provided for, the Court would automatically be robbed of jurisdiction. The intention of the law makers (legislature) is to ensure that election matters are timeously and expeditiously disposed of in the light of our past experience. Thus the reason why election matters are sui generis in nature and placed in a class of its own by taking precedent over and above all other cases even those which are criminal in nature. No account was taken of any situation of circumstance that may arise and operate to affect the strict intention of the law. The question of the Court being either on vacation or public holidays as sought to be submitted by the learned senior counsel for the Appellants is therefore of no moment. In other words, the arguments, reasonable as it may sound, would not however negate the strict and absolute nature of the constitutional provision. The numerous statutory authorities cited by the learned senior counsel for the Appellants though, certainly appropriate in their general con cannot if so apply to curtail the operation of effect of the constitution of provisions which must prevail. In other words, no enactment, no matter how desirous it may be, should override or negate that which is constitutional. The special nature of election matters is now well settled and therefore ought to be given its due effect and any contrary provision thereto would be declared as inconsistent to that extent. In the case of Emesein v. Nwochukwu which the senior counsel submitted was approved by the apex Court in the case of Yusuf v. Obasanjo (supra), some I hold cannot be relevant and applicable to the case of hand. This is because the cases under reference were decided under different provisions of laws from the one at hand. The same if so apply to the other related authorities cited by the senior counsel. For all intent and purposes and from the deductions of the reasonings arrived at (supra), the overriding nature of the constitution has overtaken the appeal at hand and which by the operation of Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) has becomes extinct and which cannot be revived. PER CLARA BATA OGUNBIYI, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
1. ALH. HASSAN KAKAYOS HUSSEINI
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. SENATOR AHMED IBRAHIM LAWAN
2. ALL NIGERIAN PEOPLES PARTY (ANPP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National and State House of Assembly Election Tribunal Holden at Domoturu, Yobe State delivered on the 2nd day of August, 2011 by their Lordships Hon. Justices Pat Onajite Kuejubola (Mrs), Edu Eze and Muhtari Yusha’u.
The petitioners called witnesses during trial as well as the 1st and 2nd Respondents. The 3rd Respondent did not call any witness of the trial. After addresses of counsel for the parties, the Tribunal in its judgment delivered on the aforesaid date dismissed the petition. Irked and obviously dissatisfied with the said judgment of the Tribunal, the Petitioners now Appellants filed a notice and grounds of appeal dated 22nd day of August, 2011 and filed on the said some day.
The brief facts giving rise to this appeal are as follows:
The 1st Appellant and the 1st Respondents contested election to Yobe North Senatorial District in the election conducted by the 3rd Respondent held on the 9th day of April, 2011. The 1st Appellant and the 1st Respondent contested the said election under the platform of Peoples Democratic Party and All Nigerian Peoples Party respectively.
The 3rd Respondent declared the 1st Respondent as the winner of the said election and the Petitioners/Applicants being dissatisfied with the declaration of the 1st Respondent as the winner of the election filed a petition before the lower tribunal.
Before the tribunal the Petitioners/Appellant in Paragraph 21 of their petition claimed the following reliefs:
“21. WHEREFORE your Petitioners pray that it may be determined that:
(a) The 1st Respondent was not properly and/or validly elected as candidate of the 2nd Respondent as Senator, representing Yobe North Senatorial District, the said election having been marred by corrupt practices and having been conducted in substantial non-compliance with the provisions of the Electoral Act 2010 (as amended).
(b) An order nullifying the April 9, 2011 National Assembly Election in the following Local Government Areas of Yobe State to wit: Yusufari, Karasuwa, Machina and order for fresh election thereat.
(c) An order for fresh election in Murza Primary School and Dalah Polling Units of Dagona Ward.
(d) Costs of this petition
(e) Any further reliefs.”
In accordance with the Practice Directions issued by the President of this Court briefs were filed and exchanged between parties and the appeal was accordingly slated for hearing.
On the 24th October, 2011 therefore when the appeal was called up the learned counsel Chief Akin Ofujimi SAN appeared in company of his juniors and represented the Appellants. Dr. W. Egbewole also appeared with N. U. Mustapha on behalf of the 1st and 2nd Respondents. Mr. B.M. Salihu’s representation was also on behalf of the 3rd Respondent.
For purpose of recapitulation, this Court on the 17th October, 2011 suo motu raised the question of the competence of the appeal in this matter in view of the provision of Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 as amended. This was necessary, especially with the judgment appealed against having been delivered on the 2nd August, 2011.
Counsel for the parties were therefore called upon to address the Court as to the competence of the appeal in this matter.
Submitting on the issue raised, the learned counsel Dr. Egbewole representing the 1st and 2nd Respondents set the ball rolling. In his submission he argued that the Court should only be seized of accommodating the Appellants only when it has jurisdiction to entertain the matter before it. That the said constitutional constraint is mandatory and leaves this Court with no option. That the Court cannot therefore expand or extend the life of this appeal beyond the 60 days having regard to the date the decision was made being the 2nd August, 2011 and that by the date on or about 1st October, 2011 the days would have lapsed. That the Court should therefore give effect to the intention of the legislature in arriving at a decision. The learned counsel in support of his submission cited the case of Apari v. Hose (1999) 5 NWLR (Pt.604) 541 at 545 which counsel argued is inmaterial with the case at hand. A further authority is also the case of Waziri v. Danboyi (1999) 4 NWLR (Pt. 598) 239 at 248. Also in further support is the decision of this Court in Senator Mohommed Adamu Aliyu & others v. Abubakar Atiku Bagudu which is unreported and in Appeal No.CA/S/EPT/SE/22M/2011 delivered on the 17th October, 2011. That this same issue was decided by Akure Division of this Court also in an unreported Appeal No. AK/EPT/OS/HR/5/2011 delivered on 10th October, 2011.
The learned counsel therefore urged that this appeal be struck out as the Court locks the jurisdiction to entertain same.
The learned counsel Mr. Sofihu on behalf of the 3rd Respondent in his submission associated himself with the argument mode on behalf of the 1st and 2nd Respondents and further urged also that the appeal be struck out for lack of jurisdiction.
Chief Olujimi SAN on behalf of his clients the Appellants submitted in great depth and argued the distinction between the cases cited by the Respondents’ counsel from the case of hand. That as of the time the judgment was delivered, the Court was statutorily on vacation and only resumed on the 5th of September, 2011.
The learned counsel gave a detailed background of the events leading to the case and submitted in the circumstance that the computation of time has nothing to do with the statutory Court’s vacation, Saturdays, Sundays and public holidays alike. That the said periods ought to be excluded. Counsel cited and relied on the provision of the public holidays Act Cap 40 which defines public holidays. Also that Section 15(5) defines holiday to mean Sundays or public holiday. That the Court should not statutorily sit on those days as it will cause injustice to the Appellants. The senior counsel to buttress his submitted cited the case of Emesein v. Nwochukwu (1999) 6 NWLR (Pt.605) page 154 at 168. That the provisions of section 285 (7) of the Constitution should not apply to the appeal by the Appellant. That the Emesein’s case (supra), had been approved by the apex Court in the case of Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) page 554. Counsel also cited Section 24(2) of the Court of Appeal Act and argued that it should not be brought under Section 143(1) of the Electoral Act which by application has no bearing to this appeal. That the Court of Appeal gives 90 days within which to appeal. Counsel cited the case of Aregbesola v. Orujilola (2011) 9 NWLR (Pt.1253) page 458 at 623 – 625. Also that of ANPP v. REC Akwa Ibom (2008) 1 NWLR (Pt.1090) 453 at 508-509. Further related authority was Buhari v. Obasanjo (2005) 13 NWLR (Pt.141) page 1 at 179-180. That Section 285(7) of the Constitution should not be constrained to affect appeals under Section 24(2) of the Court of Appeal Act. That, to do so, would greatly cut down the right of Appellants to 60 days. That Section 285(7) has no relevance to this appeal and that it is not mandatory but ought to be interpreted as directory in con. That the word shall ought therefore be interpreted as directory. The case of Amokeode v. Inspector General of Police (1999) 6 NWLR (Pt. 607) Page 467 of 485 was cited in support. The learned senior counsel urged therefore that the appeal is very much of alive and should be heard on its merit.
Replying on points of law, the learned counsel Dr. Egbewole submitted the arguments on the public holidays Act as very irrelevant and inapplicable. That all other authorities especially the case laws were decided under a different regime where Section 285(7) of the Constitution was not in operation. The counsel therefore urged that the appeal be struck out.
Mr. Salihu in further submission also associated himself with the counsel representing 1st and 2nd Respondents. In addition counsel argued that, effect ought to be given to the intention of the legislature. That the provision of the Court of Appeal Act cited by Appellants’ senior counsel is grossly inapplicable and therefore misconceived.
The question of jurisdiction is certainly very fundamental and which cannot be treated with a wave of hand. It cannot also be under estimated or compromised especially where the jurisdiction of the Court is constitutionally conferred. It is therefore either that the Court has jurisdiction which is statutorily conferred or does not at all have. It cannot in the circumstance also be conferred by consent of parties to a suit. Without jurisdiction a proceeding no matter how well conducted will certainly have no backing of the law and would without much ado be rendered or declared a nullity. This is trite and as pronounced in plethora of authorities. No Court, as it has been clearly and loudly sounded times without number, should engage in an exercise of futility. This of course applies to where there is lack of substantive jurisdiction as against procedural jurisdiction which can be waived. While there can be exercise of discretion in the latter, there is absolutely none in the former which is sacrosanct in nature and unassailable.
The matter at hand is constitutional and which relates to Section 285(7) of the Constitution which same reproduced states:
“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 judgment of the tribunal or court of appeal.”
The case of Madukolu v. Nkemdilim (1962) SCNLR page 341 is well in point and serves a locus classical on question of jurisdiction.
As rightly conceded to by all counsel, the decision sought to appeal was made on 2nd August, 2011. Without having to before the point therefore, the appeal by operation of law had lapsed after the 60 days sequel to Section 285(7) (supra). This is constitution of and the some way a mortal being cannot resurrect a dead person, the Court cannot delve into that which is beyond its reach. The Court has a bounden duty to give effect to the provision of Section 285(7) of the Constitution. This has been confirmed in decision by the apex Court in the consolidated appeal Nos. SC/333/2011, SC/332/2011 and SC/335/2011 delivered on 31st October, 2011 wherein their Lordships held that a Court cannot pronounce on a process that has lapsed by the provision of the law.
The provision of Section 285(7) is unambiguous and clear. The Court cannot therefore subvert and give a different interpretation to that which is on ground. There is also no room for diverse interpretation. The only and one interpretation however is that where the appeal falls outside the 60 days provided for, the Court would automatically be robbed of jurisdiction.
The intention of the law makers (legislature) is to ensure that election matters are timeously and expeditiously disposed of in the light of our past experience. Thus the reason why election matters are sui generis in nature and placed in a class of its own by taking precedent over and above all other cases even those which are criminal in nature.
No account was taken of any situation of circumstance that may arise and operate to affect the strict intention of the law. The question of the Court being either on vacation or public holidays as sought to be submitted by the learned senior counsel for the Appellants is therefore of no moment. In other words, the arguments, reasonable as it may sound, would not however negate the strict and absolute nature of the constitutional provision.
The numerous statutory authorities cited by the learned senior counsel for the Appellants though, certainly appropriate in their general con cannot if so apply to curtail the operation of effect of the constitution of provisions which must prevail. In other words, no enactment, no matter how desirous it may be, should override or negate that which is constitutional. The special nature of election matters is now well settled and therefore ought to be given its due effect and any contrary provision thereto would be declared as inconsistent to that extent.
In the case of Emesein v. Nwochukwu which the senior counsel submitted was approved by the apex Court in the case of Yusuf v. Obasanjo (supra), some I hold cannot be relevant and applicable to the case of hand. This is because the cases under reference were decided under different provisions of laws from the one at hand. The same if so apply to the other related authorities cited by the senior counsel.
For all intent and purposes and from the deductions of the reasonings arrived at (supra), the overriding nature of the constitution has overtaken the appeal at hand and which by the operation of Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) has becomes extinct and which cannot be revived.
In the result I hold therefore that the notice of appeal in this matter dated and filed on the 22nd day of August, 2011 is hereby struck out. I also make no order as to costs, but each party should bear its own costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree,
PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the lead judgment delivered by my learned brother OGUNBIYI, JCA. The vital issue that calls for determination in this appeal is the application and interpretation of Section 285 (7) of the 1999 Constitution (as amended). It is hereby noted and must be emphasized that courts cannot amend the Constitution. They cannot change the words. Change can only come through their interpretation of the meaning of the words which can only change with the passage of time and age. The provision of Section 285 (7) is clear and unambiguous and the courts will not go outside the ambit of this section to search for interpretation elsewhere. The Supreme Court has finally put a nail in the coffin of whoever enjoins the Court to give a different interpretation to that particular section.
The Constitutional matter at hand relates to Section 285(7) which is reproduced hereunder for ease of reference.
“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 judgment of the tribunal or court of appeal.”
All Learned Counsel agree that the decision sought to appeal against was made on the 2nd day of August 2011. This appeal then lapses after 60 days by the above section of the Constitution. It is therefore dead and cannot be resurrected by any means whatsoever. The court is therefore robbed of jurisdiction to entertain the matter.
See: Madukolu v Nkemdilim (1962) SCNLR 341.
Needless to flog the issue that the law makers intended that election matter should be treated with the utmost dispatch and placed in a class over and above other classes of cases.
Consequently, I too hold that this appeal lacks merit and I do strike it out accordingly. I abide by the order of Costs.
Appearances
Chief Akin Olujinmi, SAN and with Sanda Yelwa Esq., Akinyemi Olujinmi Esq. and Dare Oketade Esq.For Appellant
AND
Dr. W. Egbewole Esq., N. U. Mustapha Esq. for the 1st and 2nd Respondents.
B. M. Salihu for the 3rd RespondentFor Respondent
