BARR. AYODELE MUSIBAU KUSAMOTU VS. ALL PROGRESSIVES CONGRESS & ORS (2019)

BARR. AYODELE MUSIBAU KUSAMOTU VS. ALL PROGRESSIVES CONGRESS & ORS

(2019) LCN/4636(SC)

In the Supreme Court of Nigeria

Thursday, February 14, 2019


Case Number: SC.126/2018

 

JUSTICES:

WALTER SAMUEL NKANU ONNOGHEN

MUSA DATTIJO MUHAMMAD

KUMAI BAYANG AKA’AHS

SIDI DAUDA BAGE

JOHN INYANG OKORO

 

APPELLANTS

BARR. AYODELE MUSIBAU KUSAMOTU

 

RESPONDENTS

1. ALL PROGRESSIVES CONGRESS2. HON. ADEYINKA AJAYI3. INDEPENDENT NATIONAL ELECTORAL COMMISSION

RATIO

TIME FRAME WITHIN WHICH AN ELECTION PETITION CASE ON APPEAL SHOULD BE DETERMINED.

Section 285 of the 1999 Constitution as amended confers jurisdiction on this Court to hear and determine the instant appeal. The Section by the foregoing clear and unambiguous subsection has set up definite time frame within which the jurisdiction must be exercised. By the sub-section, this Court must hear and determine appeal arising from Election Petition within sixty (60) days of the filing of the appeal. In Mallam Abubakar & Ors V. Saidu Usman Nasamu & Ors (2012) LPELR-7826 (SC) this Court while considering a similar provision held per Onnoghen JSC (as he then was) thus:-v “The words employed by the legislature in Section 285(7) and (8) of the 1999 Constitution are very simple and straight forward and unambiguous and therefore admit of no special construction or interpretation. They simply mean what they plainly stated. Subsection (7) of the Section 285 means simply that it is obligatory on the Court of Appeal or the Supreme Court to hear and determine an appeal arising from an Election Petition matter within sixty (60) days from the date of the delivery of judgment by the Election Tribunal or Court of Appeal. The Provision makes no distinction between an interlocutory decision of the Tribunal and the final decision of the tribunal or Court of Appeal. Also, to be noted is the use of the words “shall” and “within” in the said subsection which means that the provision is mandatory as it admits of no discretion whatsoever. The word “within” means a decision rendered by the affected Court outside the assigned sixty (60) days is null and void.” See also Alhaji Kashim Shetima & Anor V. Alhaji Mohammed Goni (2011) LPELR-417 (SC).” –

 

WHETHER THE APPELLATE COURT CAN EXTEND THE TIME WITHIN WHICH TO HEAR AND DETERMINE AN APPEAL ARISING FROM AN ELECTION PETITION.

“Before the enactment of the CFRN 1999 (Fourth Alteration No 21) Act 2017 on 4th June 2018, time frame had not been provided for the hearing and determination of appeals arising from decisions in pre-election matters. With the provision of the time frame under Subsection 12 of Section 285 of the 1999 Constitution as so altered, appeals from pre-election causes, like those that have arisen from election petitions which have similarly been provided for under Subsection 7 of the very Constitution, must be heard and determined within sixty (60) days by the Court of Appeal or the Supreme Court as the case may be. Neither of the two Courts can, for whatever reason, extend the time provided for under Subsection 12 of Section 285 of the 1999 Constitution as amended. It is mandatory to comply with the provision. To extend the time provided by the subsection for the hearing and determination of appeals arising from pre-election matters is for the Court to embark on judicial legislation, a condemnable act. See Senator John Akpanudoedehe & Ors V. Godswill Obot Akpabio & Ors (2012) LPELR-9728 (SC), Chief Felix Amadi & Anor V. Independent National Electoral Commission (2012) LPELR-7831 (SC) and Ugba & Ors V. Suswam (2012) LPELR-9726 (SC).” 

 

POWERS OF THE NATIONAL ASSEMBLY WITH RESPECT TO THE ITEMS CONTAINED ON THE EXCLUSIVE LEGISLATIVE LIST

“Finally, the powers vested in National Assembly by Section 4 of the 1999 Constitution with respect to any matter included in the Exclusive Legislative are absolute and exclusive.”

 

 

DUTIES OF COUNSELS IN COURT

Counsel have a duty to assist the Court in fast tracking the hearing and determination of cases. Where they recklessly fail to do so, the Court must appropriately react.” –

 

MODES FOR ENTERING A REPLY ON POINTS OF LAW

Appellant has a right to reply on points of law arising from the respondent’s brief See Kalu V. State (2017)14 NWLR (Pt. 1586) 522 SC. It cannot be employed to repeat arguments in the main briefs or to make a better brief. See Brown V. State (2017) 4 NWLR (Pt. 1556) 341 SC.”

 

POWERS OF THE COURT OF APPEAL

“Section 15 of the Court of Appeal Act provides: “The Court of Appeal may from time to time make any order necessary to determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its …in any question which the Court of Appeal thinks fit to determine before trial Judgment in the appeal, and may make an interim action or grant any injunction which the Court below is authorized to make or grant and may direct as necessary inquiry or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceeding as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the passage of such re-hearing or may give such other directives as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in the Court’s appellate jurisdiction, and the case to be re-heard by the Court of competent jurisdiction.” (Underlining mine). This wordy and all-embracing provision is not without limitation. The Court of Appeal: “cannot have full” jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of appeal as a Court of first instance…” 

 

EFFECT OF SECTION 285 (12) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

“With respect to the retrospective effect of the fourth alteration, of the 1999 Constitution of the Federal Republic of Nigeria (No.21) (as amended), I hold the view that flowing also from the decision of this Court in the case of Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377, the argument against retrospective effect of the said provision is of no moment. Indeed, I hold the view that in the light of the provision of Section 285 (12) of the 1999 Constitution, a judgment delivered in an appeal from a pre-election matter, outside the 60 days allowed by law, is null and void as such judgment is delivered without jurisdiction.” 

 

 

 

(MUSA DATTIJO MUHAMMAD, J.S.C.) This is an appeal against the decision of the Court of Appeal, Abuja Division, referred to hereinafter as the Court below, in appeal No. CA/A/313/2017. The appellant had appealed to the Court below on 3rd May 2017 against the ruling of the Federal High Court, the trial Court, sitting in Abuja over suit No. FHC/ABJ/CS/1038/2017, delivered on the 10th April 2017. By the ruling at the instance of the 2nd respondent as the 2nd defendant, the trial Court ordered that the suit commenced by the appellant as plaintiff be tried by pleadings to be filed and exchanged by the parties. Dissatisfied, the appellant herein appealed to the Court below which, in allowing the appeal, concluded its judgment at page 1241, vol.2 of the record of appeal thus: – “On the whole, this appeal succeeds as it has merit. It is accordingly allowed. Accordingly, I hereby set-aside the ruling of the Federal High Court in suit No. FHC/ABJ/CS/1038/2014 delivered on 10-4-17 by J.T. Tsoho granting the 2nd Respondent’s application for an order that the parties to (sic) file pleadings in the suit. It is hereby ordered that the trial Court proceed to hear and determine the originating summons together with all the pending objections by the 1st and 2nd defendants to the competence of the suit and the validity of the amended originating summons forthwith. It is hereby further ordered that the said hearing by the trial Court shall be accelerated and shall be day by day.” (Underlining supplied for emphasis). It is against the foregoing decision that the appellant has appealed to this Court on a notice filed on the 23/5/18 containing eight grounds. The appeal was argued in this Court on the 21/11/2018 and judgment reserved for today 15/02/2019. The reliefs the appellant seek by his appeal are as contained in paragraph four (4) of his notice of appeal which reads: – “To allow the appeal; set aside the part complained of the judgment of the Lower Court made on the 19th day of January 2018; to declare the appellant as the only authentic and sole candidate of the 1st Respondent; to issue and order directing the speaker House of Representatives to swear in the Appellant as a member representing Ifelodun/Boripe/Odo-Otin Federal Constituency Osun State with all the rights and privileges attached thereto; to issue an order directing the 2nd Respondent to refund to the Appellant all salaries allowances, estacodes and benefits so far received OR ALTERNATIVELY To order the 1st Respondent to conclude the process of its on-going primaries.”(Underlining supplied for emphasis). It is instructive to note that appellant’s suit on the basis of which he urges the foregoing reliefs is a pre-election matter the merit or otherwise of which is yet to be determined. It is also significant to recall that the lower Court, conscious of the fact that time is of essence of the suit, had ordered that it be given accelerated hearing. On the 4th of June 2018, before the instant appeal was heard on the 21/11/18 and judgment reserved for 15/02/19, the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No 21) Act 2017 on being assented to by the President, further amended Section 285 of the Constitution by specifically providing in Subsection 12 thereof thus: – “(12) 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.” Section 285 of the 1999 Constitution as amended confers jurisdiction on this Court to hear and determine the instant appeal. The Section by the foregoing clear and unambiguous subsection has set up definite time frame within which the jurisdiction must be exercised. By the sub-section, this Court must hear and determine appeal arising from Election Petition within sixty (60) days of the filing of the appeal. In Mallam Abubakar & Ors V. Saidu Usman Nasamu & Ors (2012) LPELR-7826 (SC) this Court while considering a similar provision held per Onnoghen JSC (as he then was) thus: – “The words employed by the legislature in Section 285(7) and (8) of the 1999 Constitution are very simple and straight forward and unambiguous and therefore admit of no special construction or interpretation. They simply mean what they plainly stated. Subsection (7) of the Section 285 means simply that it is obligatory on the Court of Appeal or the Supreme Court to hear and determine an appeal arising from an Election Petition matter within sixty (60) days from the date of the delivery of judgment by the Election Tribunal or Court of Appeal. The Provision makes no distinction between an interlocutory decision of the Tribunal and the final decision of the tribunal or Court of Appeal. Also, to be noted is the use of the words “shall” and “within” in the said subsection which means that the provision is mandatory as it admits of no discretion whatsoever. The word “within” means a decision rendered by the affected Court outside the assigned sixty (60) days is null and void.” See also Alhaji Kashim Shetima & Anor V. Alhaji Mohammed Goni (2011) LPELR-417 (SC). Before the enactment of the CFRN 1999 (Fourth Alteration No 21) Act 2017 on 4th June 2018, time frame had not been provided for the hearing and determination of appeals arising from decisions in pre-election matters. With the provision of the time frame under Subsection 12 of Section 285 of the 1999 Constitution as so altered, appeals from pre-election causes, like those that have arisen from election petitions which have similarly been provided for under Subsection 7 of the very Constitution, must be heard and determined within sixty (60) days by the Court of Appeal or the Supreme Court as the case may be. Neither of the two Courts can, for whatever reason, extend the time provided for under Subsection 12 of Section 285 of the 1999 Constitution as amended. It is mandatory to comply with the provision. To extend the time provided by the subsection for the hearing and determination of appeals arising from pre-election matters is for the Court to embark on judicial legislation, a condemnable act. See Senator John Akpanudoedehe & Ors V. Godswill Obot Akpabio & Ors (2012) LPELR-9728 (SC), Chief Felix Amadi & Anor V. Independent National Electoral Commission (2012) LPELR-7831 (SC) and Ugba & Ors V. Suswam (2012) LPELR-9726 (SC). It would be legitimate to suggest that before this appeal is determined, since the applicability of Section 285(12) of the 1999 Constitution as amended had not been addressed by the parties in their respective briefs and it is the Court that raises the issue, parties to the appeal need to be heard by the Court before the appeal is disposed of on the basis Section 285(12) of the 1999 Constitution as amended. It is also legitimate to insinuate that since the appeal had been filed before the enactment of Subsection 12 of Section 285 of the 1999 Constitution as amended, it will amount to giving retrospective effect to the subsection. As legitimate as these concerns may be, they are, in the particular circumstance of this appeal, not unsurmountable. They can easily be assuaged. As a general rule, it is most inappropriate and irregular for a Court to take up and decide a point without hearing parties or their counsel. This Court has posited that ordinarily a Court has no business whatsoever in dealing with a matter not before it. No matter how clear an issue raised by the Court appears to be, it should not be resolved without hearing the parties. See Bola Tinubu V. IMB Securities Plc (2001) 12 SCM 73, Victino Fixed Odds Ltd V. J. Ojo & ors (2010) 4 SM 127 and Goke Olaolu V. Federal Republic of Nigeria (2015) LPELR 24778 (SC). However, to all general rules there are always exceptions! In this regard the principle has to be restated that the need to give parties a hearing when a court raises an issue suo motu may not be necessary where (i) the issue pertains to the court’s jurisdiction (ii) the parties ignored or are unaware of a statute that has being on the case and by virtue of the statutory provision the Court is expected to take judicial notice (iii) on the face of the record serious questions of the fairness of the proceedings is manifest. See Omokuwajo v. FRN (2013) 9 NWLR (Pt 1359) 300 at 332, Victino Fixed Odds Ltd v. Joseph Ojo and Ors (2010) 3 SC (Pt 1) 1, Gbagbarigha V. Toruemi & Anor (2013) 31 WRN 35 at 51- 52. The instant appeal raises a jurisdictional question: the competence of this Court to hear and determine the appeal outside the time provided for by Section 285 (12) of the 1999 Constitution as amended. The appeal was filed on 23/5/18 more than two hundred and sixty-six 266 days ago. Such appeals must by Section 285(12) of the 1999 Constitution be heard and determined within sixty (60) days from the date of filing them. The Section is immutable and compliance with it mandatory. In essence being an appeal against a decision on a pre-election matter, with time for its hearing and determination having lapsed, has become statute-barred. The Court lacks the jurisdiction to entertain same as at 21/11/18 when it was heard and judgment reserved for today 25/02/2019. Finally, the powers vested in National Assembly by Section 4 of the 1999 Constitution with respect to any matter included in the Exclusive Legislative are absolute and exclusive. ltems 22 of Part I of the Second Schedule which contains the Exclusive Legislative list empowers the National Assembly, to the exclusion of any other body, to make laws in respect of election and election related matters thus: – “22 Election to the offices of President and Vice President or Governor and Deputy Governor and any other office to which a person may be elected under this Constitution excluding election to a Local Government Council or any office in such council.” The National Assembly in the exercise of its exclusive legislative power by virtue of Section 4 of the 1999 Constitution in relation to the foregoing item altered Section 285 of the Constitution by inserting Subsection 12 to the Section for the first time. The alteration became operative on the 7th of June 2018 when it was assented to by the President. Certainly, appellants cause of action predates the alteration. There is undeniably this argument that the alteration should not commence earlier than the time of its enactment. Since appellant’s cause of action predates the enactment of the sub-section the subsection, it is part of the argument, should not be given retrospective effect by extending its scope to matters that had occurred earlier to its coming into being. Certainly, this is a very legitimate concern. Courts frown on retrospective legislation which they consider to particularly impinge upon the concept of fair hearing. Being dutifully aware of the doctrine of separation of powers, however, the Courts have always recognised the overriding constitutional function of the legislature to make and amend laws including their revocation. The Courts limit themselves to the task of interpreting the laws, amendments or revocation to give effect to the intention of the legislature. Thus, where the intention is clear and ambiguous, the Courts have always interpreted the provision of the legislation to reflect such intention. See Adesanoye V. Adewole (2002) 9 NWLR (Pt 671) 127; Ahmed V. Kassim (1958) SCNLR 28; Adejumo V. Military Governor Lagos State (1972) 3 SC 124 and Ojokolobo V. Alamu (1987) 3 NWLR (Pt 61) 377. In particularly Ojokolobo V. Alamu (supra) this Court has held that Subsection 12 to Section 285 which stipulates time frame within which proceedings may be taken and concluded and couched in such clear and unambiguous terms must be so construed. The provision is adjectival and must operate as such notwithstanding the retrospective effect it may have on accrued rights of the party such as the appellant herein. See also the recent decision of this Court restating and abiding by the principle in the Court’s recent decision in Appeal No. SC. 307/2018 between Obayemi Toyin V. Arogundade Samuel Musa and 4 ors delivered on the 18th January 2019. It is for the foregoing that I find the instant appeal filed on 23/5/2018, two hundred (200) days more than the sixty (60) days Section 285 (12) allows for it to be heard and determined to be statute-barred. This Court lacks the jurisdiction of hearing and determining the appeal. It is accordingly hereby struck out. The appellant must blame himself. It is his case and he chose to go about it in an irresponsible and non-chalant way. It is a pre-election cause arising from the 2015 general elections. Inspite of his success at the lower Court, he approached this Court which, as laughable as the appeal is, cannot constitutionally close its gate against the appellant. The Fourth Alteration Act No. 21 2017 has facilitated the appropriate platform and it is dutifully, hereby applied. Counsel have a duty to assist the Court in fast tracking the hearing and determination of cases. Where they recklessly fail to do so, the Court must appropriately react. The respondents are entitled to the cost of this appeal, put at five hundred thousand to each of them, same to be paid personally by the appellant counsel who woefully failed in his duty to his client and more so to the court. WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I have read in draft the lead Judgment just delivered by my learned brother Muhammad, JSC and I agree with the conclusion that the appeal is devoid of merit. In my view appellant’s brief leaves a lot to be desired in terms of clarity, the reply brief does not fare better; for instances 1st respondent’s brief has 20 pages and the appellant filed a 27 paged reply to it; the 3rd respondent’s’ brief is of 10 pages but the appellant filed a reply brief of 18 pages. Appellant has a right to reply on points of law arising from the respondent’s brief See Kalu V. State (2017)14 NWLR (Pt. 1586) 522 SC. It cannot be employed to repeat arguments in the main briefs or to make a better brief. See Brown V. State (2017) 4 NWLR (Pt. 1556) 341 SC. Section 15 of the Court of Appeal Act provides: “The Court of Appeal may from time to time make any order necessary to determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its …in any question which the Court of Appeal thinks fit to determine before trial Judgment in the appeal, and may make an interim action or grant any injunction which the Court below is authorized to make or grant and may direct as necessary inquiry or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceeding as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the passage of such re-hearing or may give such other directives as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in the Court’s appellate jurisdiction, and the case to be re-heard by the Court of competent jurisdiction.” (Underlining mine). This wordy and all-embracing provision is not without limitation. The Court of Appeal: “cannot have full” jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of appeal as a Court of first instance…” If the challenge to the Judgment of the Court below over the petition has not been settled. In this case the preliminary objection to the jurisdiction of the trial Court to hear and determine that suit has neither been taken nor withdrawn. For the above and the fuller reasons in the lead Judgment I too dismiss the appeal for want of merit. Appeal dismissed. KUMAI BAYANG AKA’AHS, J.S.C.: My learned brother, M. D. Muhammad JSC availed me his judgement in which he struck out the appeal as being statute barred following the Constitution of the Federal Republic of Nigeria 1999 (4th Alteration No. 21) Act 2017 which provides in Section 285(12) as follows: – “285 (12) 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 the appeal.” The appellant commenced the suit at the Federal High Court, Abuja Division by Originating Summons dated and filed on 17 December, 2014. Hearing commenced on 23 December, 2014 before Hon. Justice A. R. Mohammed who was a vacation Judge. When the Court resumed from the Christmas break, His Lordship remitted the case to the Chief Judge of the Federal High Court for re-assignment and it was re-assigned to Hon. Justice E. S. Chukwu who heard the matter and reserved judgement to 25 February, 2016 but could not deliver the judgement because of protracted illness which later resulted in the death of the learned Judge. Consequently, upon the death of Hon. Justice E. S. Chukwu, the matter was again re-assigned to Hon. Justice A. J. Chikere. As a result of the petition which the appellant wrote against Justice Chikere, the case file was withdrawn and reassigned to Hon. Justice J. T. Tsoho. The appellant sought and obtained leave to amend the Originating Summons but rather than comply with the order granted, he proceeded to file a process purporting to be an amended Originating Summons which was different from what he was granted to do. The 2nd respondent filed a preliminary objection challenging the validity of the purported Originating Summons. It was accompanied with a counter-affidavit and a written address dated 10 October, 2016. The appellant filed a further and better affidavit coupled with a reply address on points of law. He levied criminal allegations against the 2nd respondent and this led the Police to carry out an investigation on the 2nd respondent. A Police Report was issued which the appellant annexed to the Further and Better affidavit. In defence of the criminal allegations levied against him by the appellant, the 2nd respondent caused a subpoena to be issued and served on the Manager of First Bank Plc to produce documents that would disprove the allegation that 2nd respondent forged documents of First Bank Plc. The trial Court then ordered for the filing of pleadings. The appellant appealed against the decision requesting the parties to file pleadings. The Court of Appeal delivered its judgement on 19 January, 2018 allowing the appeal and made the following Order per Agim JCA. who delivered the leading judgment: -? “It is hereby ordered that the trial Court proceed to hear and determine the Originating Summons together with all the pending objections by the 1st and 2nd defendants to the competence of the suit and the validity of the amended Originating Summons forthwith. It is hereby further ordered that the said hearing by the trial Court shall be accelerated and shall be day by day.” (See page 1241 vol. 2of the records). The appellant was still not satisfied and sought leave which this Court granted on 17 May, 2018 to enable him appeal against part of the judgement. The appeal was heard on 21 November, 2018 and adjourned to 15 February, 2019 for judgment before the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No.21) Act 2017 which was assented to by the President on 4 June, 2018 was brought to the attention of the Court. Section 285 was further amended making provision for Subsection 12 which I had earlier reproduced. The said Section 285 (12) provides for hearing and disposal of all pre-election matters within 60 days. The provision applies to all the appellate Courts. Although the appeal before the Court of Appeal was filed before the 4th Alteration was assented to by the President the proceedings at the Court of Appeal became statute barred because the appeal was not concluded within 60 days from the date the appeal was filed. This Court in Ojokolobo v. Alamu (1987) 2 NSCC 991 at 1006; (1987) 3 NWLR (Pt. 61) 377 held per Nnamani JSC (of blessed memory) at p. 394 that: – “…it is settled law that the presumption against retrospective construction has no application to enactments which only affect procedure and practice of the Courts.” I am therefore in complete agreement with the reasoning and conclusion arrived at by my learned brother, M. D. Muhammad JSC that the appeal is unsustainable. It is statute barred and it is accordingly struck out. JOHN INYANG OKORO, J.S.C.: I have before now, perused the judgment just delivered by my learned brother, Musa Dattijo Muhammad, JSC. I agree with the reasons advanced therein to arrive at the conclusion that this appeal is incompetent and deserves to be struck out. My learned brother, M. D. Muhammad, JSC, has set out the relevant facts in considerable details and I rely on his statement of facts. I am concerned in this judgment with the retrospective applicability of the provision of Section 285 (12) of the 1999 Constitution. (as amended) First of all, it has been established in the lead judgment that the suit leading to this appeal is a pre-election matter. For purpose of clarity, I shall reproduce the provision of Section 285 (14) of the 1999 Constitution as follows: “14 for the purpose of this section, pre-election matter” means any suit by – (a)an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election: (b) an aspirant challenging the action, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and (c)a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the commission in respect of preparation for an election.” In view of the above provision of the Constitution, I agree with my learned brother, M.D. Muhammad, JSC that, for all intent and purposes, this appeal is a pre-election matter. It follows therefore that this appeal is caught up by the time allowed in Section 285 (12) of the 1999 Constitution. With respect to the retrospective effect of the fourth alteration, of the 1999 Constitution of the Federal Republic of Nigeria (No.21) (as amended), I hold the view that flowing also from the decision of this Court in the case of Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377, the argument against retrospective effect of the said provision is of no moment. Indeed, I hold the view that in the light of the provision of Section 285 (12) of the 1999 Constitution, a judgment delivered in an appeal from a pre-election matter, outside the 60 days allowed by law, is null and void as such judgment is delivered without jurisdiction. On the whole, I hold that this appeal filed on 23rd May, 2018 is clearly spent same having not been determined within the 60 days allowed by law. This Court is therefore without the jurisdiction to determine same. This appeal is hereby struck out for being statute barred. SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Musa Dattijo Muhammad, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal was filed out of time it is accordingly, hereby struck out. I abide by all the orders contained in the lead Judgment.

COUNSELS

R. I. Oloyede with him, Dayo Adamolekun and Rachael ObongFor Appellant(s)|Bola Aidi, with him, Deborah Nwoke, Emmanuel Umakalo and Jane Abbey for 1st Respondent.|Ayotunde Ogunleye with him, Tejumola Abiola Atoke for 2nd Respondent.|F. Ikuru for 3rd RespondentFor Respondent(s)|

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