CHIEF ACHIKE UDENWA & ANOR V. CHIEF HOPE UZODINMA & ANOR
(2012)LCN/5246(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of March, 2012
CA/OW/EPT/3/2012
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF ACHIKE UDENWA
2. ACTION CONGRESS OF NIGERIA (ACN) – Appellant(s)
AND
1. CHIEF HOPE UZODINMA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
RATIO
THE RULES OF COURT GOVERNING THE FORMULATION OF GROUNDS OF APPEAL
In the case of Governor of Ekiti State v. Oyewo (2010) 12 NWLR (Pt. 1) 212 at 219 the Court of Appeal held that the rules of court governing the formulation of grounds of appeal are:“… designed to ensure fairness to the respondent, fairness by giving sufficient notice and information to such a respondent of the precise nature of the complaint or grievance which foreshadows or prefigured the issues that are likely to arise in the actual hearing of the appeal.” In the same Oyewo’s case, the Court of Appeal echoed the shift in emphasis from technicalities to the concern of the courts in doing substantial justice and resounded that the modern trend dictates that the purpose of a ground of appeal is to ensure that the respondent is not taken by surprise. Hence, once as in the instant case, a ground clearly states what the appellant is complaining about, there is compliance with the rules of court, the court cannot describe such a ground as bad and incompetent. It is this trend that underscores the current approach to the effect that where the respondent is not misled and no miscarriage of justice has been alleged or suffered, a ground of appeal will not be struck out. This equally underlies the fact that where a court finds that the particulars of a ground of appeal are argumentative or narrative, it will treat any complaint about its form as a mere technicality. See also, Obembe v. Ekele (2001) 10 NWLR (pt. 722) 677 at 687, Minister FCT V. Anaduaka (2010) 9 NWLR 304 at 361, Aregbesola v. Oyinlola (2011) All FWLR (Pt.570) 1292 at 1410, Eleburuike v. Tawa (2010) 11 NWLR 269. PER OWOADE, J.C.A.
DEFINITION OF JOINDER OF ISSUES
Beyond the concession by Chief M.I. Ahamba SAN, the term “Joinder of issues” is defined at page 854 of the 8th Edition of Black Law Dictionary as follows: “Joinder of issue 1. The submission of an issue jointly for decision 2. The acceptance or adoption of a disputed point as the basis of argument in a controversy – Also termed joinder in issue similiter 3. The taking up of the opposite side of a case, or of the contrary view on a question.”PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): On 17th day of October, 2011, this Honourable Court allowed the appeal of Chief Achike Udenwa and the Action Congress in Appeal No. CA/OW/EPT/27/2011 and ordered that the Appellants petition be remitted back to the Tribunal for trial on the merit by a panel other than the panel that heard and determined the matter.
Going back before the National Assembly Election Tribunal holden at Owerri, counsel to the parties filed three separate motions.
Mr. L.M. Alozie, of counsel to the 2nd Respondent filed a motion dated 7/11/2011 but filed on 9/11/2011 praying the Tribunal to strike out the petition for want of jurisdiction. A similar application dated and filed on 17/11/2011 was brought to the tribunal by the 1st Respondent that is Chief Hope Uzodinma. The grounds in respect of the two separate applications are that Section 285 (6) of the 1999 Constitution limits the time for hearing an election petition to 180 days from the date of the filing of the petition and/or that the petition has died by effluxion of the 180 days allotted by Section 285 (6) of the 1999 Constitution (as amended). Meanwhile, before the 1st Respondent’s Motion on Notice, the Petitioners/Appellants as Applicants had filed a motion dated 7/11/2011 and filed on 9/11/2011 praying the Tribunal as follows:
“1. Leave of the Tribunal to apply by motion for determination of the effect of Section 285 (6) of the Constitution on the time left after the order of pre-trial by Court of Appeal.
2. An order that, without prejudice to the filing of the petition on 1/5/2011, the period of 180 days provided under Section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) for the hearing and determination of the petition has not elapsed.
3. An order that the hearing of this petition on the order of the court of Appeal after an appeal proceeding, should commence afresh from post pre-hearing session to full hearing on merit.
4. An order that the Petitioners/Applicants are under the Constitution of the Federal Republic of Nigeria entitled to be fully heard on their competently initiated petition.”
The grounds upon which the application is brought are
(a) The original trial was duly concluded on 19/8/2011 with the decision of the Tribunal which was final in effect.
(b) The decision of the tribunal on 19/8/2011 has been set aside and hearing on merit ordered.
(c) The constitutional provision for the hearing of a petition (S. 285 (6) is different from and independent of the provision for hearing an appeal arising therefrom (S. 285 (7)).
(d) The hearing ordered by the Court of Appeal is a fresh hearing before a fresh panel of the Tribunal on merit.
(e) The facts of this application are peculiar and circumstantial.
In a considered Ruling delivered on 23rd day of January, 2012 on the three applications, the Tribunal held in conclusion at page 690 – 691 of the printed record as follows:
“…Accordingly, we hereby resolve the three issues formulated by the Learned senior Advocate for the Petitioners/Respondents as follows:
(a) The period between the judgment of the first Tribunal and the relistment of the petition after the appeal can justifiably be construed to be part of the 180 days provided by section 285 (6) of the 1999 Constitution (as amended) see P.D.P. V. C.P.C. (supra) where the Supreme Court held that no court has the power to extend the times as constitutionally provided in section 285 (5) (6) and (7) of the 1999 Constitution (as amended) by interpretation of the section or otherwise.
(b) Failure to allow the Petitioners/Respondents to ventilate their case on merit is not an infringement of their fundamental right to fair hearing because by virtue of section 285 (6) of the 1999 Constitution, the petition of the Petitioners is statute-barred and the petitioners’ right to further hearing is thus extinguished by the Constitution.
(c) The present panel as constituted does not therefore have the competence to hear the petition fully on merit as ordered by the court of Appeal especially as the order for retrial has lapsed or become void upon the expiration of 180 days.
Consequently, we hereby hold that this tribunal no longer has the requisite jurisdiction to continue to hear and determine the instant petition when the time allowed by the Constitution has expired. This motion of the 2nd respondent therefore succeeds and is thus granted. This petition is hereby struck out as prayed…” Dissatisfied with this Ruling, the Appellant filed a Notice of Appeal containing six (6) grounds of appeal in this court on 7/2/2011.
The relevant briefs for this appeal are as follows:
1. Appellants brief of argument dated 21/2/2012 and filed on 27/2/2012 – settled by Chief M.I. Ahamba SAN.
2. 1st Respondent’s brief of argument dated 25/2/2011 and filed on 27/2/2012 – settled by Martin Aguda, Esq.
3. 2nd Respondent’s brief of argument dated 24/2/2012 and filed on 24/2/2012 – settled by L.M. Alozie, Esq.
4. Appellants Reply to 1st Respondent’s brief of argument dated 23/2/2012 and filed on 1/3/2012 – settled by Chief M.I. Ahamba, SAN.
5. Appellant’s Reply to 2nd Respondent’s brief of argument dated 29/2/2012 and filed on 1/3/2012 – settled by Chief M.I. Ahamba, SAN.
O. Additional list of Authorities dated and filed 9/3/2012 by Chief M.I. Ahamba, SAN.
The learned senior counsel for the Appellants formulated four (4) issues for determination in this appeal. They are:
“1. Whether subsection (6) of Section 285 of the Constitution of the Federal Republic of Nigeria (as amended) is a valid alteration under the provisions of the Constitution governing alteration of Sections. (This is distilled from grounds 2 and 4 of the grounds of appeal)
2. Assuming that subsection (6) of Section 285 of the Constitution of the Federal Republic of Nigeria (as amended) is a valid alteration whether the subsection operates or is capable of operating to govern, limit or control the operation and efficacy of section 36 (1) of the Constitution. (This issue covers ground 5 of the grounds of appeal).
3. Whether the Election Petition Tribunal had the competence to refuse to apply the order of the Court of Appeal that the petition be heard on merit, by striking out the petition as incompetent (This issue is distilled from grounds 1 and 6 of the grounds of appeal).
4. Whether the conclusion of the Election Petition Tribunal that the 180 days provided in subsection (6) of Section 285 of the Constitution had lapsed was correct. (This is distilled from ground 3 of the grounds of appeal).
The 1st Respondent formulated three (3) issues for determination as follows:
“1. Whether the lower Tribunal was right when it not only declined to hear this petition on merit as ordered by this Honourable court on October, 17, 2011 but also refused to be bound by the views expressed by TINE TUR JCA in his concurring judgment in CA/C/NAE/257/11: Udokpo V. Archibong (unreported) delivered on 17th November, 2011 (Grounds one and six).
2. Whether section 285 (6) of the 1999 constitution (as amended is a valid alteration to the Constitution (grounds 2, 4 and 5).
3. Whether the lower tribunal was right when it held that the period of appeal to the Court of Appeal was part of the 180 days provided under section 285 (6) of the Constitution.”
The 2nd Respondent believe that the sole issue for determination in this appeal is whether the learned Judges of the Election Petition Tribunal were right when on the 23rd of January, 2012 they struck out the Appellant’s petition on the ground that the 180 days provided in Section 285 (6) of the 1999 Constitution (as amended) had elapsed.
The 1st Respondent also served a notice of preliminary objection challenging the propriety of grounds one, two and four of the grounds of appeal, and an objection to the hearing of the appeal itself. The preliminary objection of the 1st Respondent shall be treated in seriatim.
First, is the ground that the lower Tribunal no longer has jurisdiction to entertain the petition. This ground of objection cannot be countenanced because it borders on the substantive issue which was decided by the tribunal and arose from the appeal and not in the nature of a preliminary objection which works to terminate the appeal itself as a process which is patently unsustainable in law-See Ojukwu v. Yar’Adua (2009) All FWLR (Pt.482) 1065 at 1097.
On this score, I am in agreement with the learned senior counsel for the Appellants that the 1st Respondent would not be allowed in law to raise a preliminary objection, on an issue that has been determined by the lower court and upon which this appeal depends. It is not in doubt that the lower court had by its ruling delivered on 23/1/2012 held that the 180 days provided by Section 285 (6) of the Constitution of the Federal Republic of Nigeria having elapsed, the tribunal no longer had jurisdiction to continue to hear and determine the petition. A decision which formed the basis of ground 3 of the Appellants ground of appeal. The first ground of the 1st Respondent’s preliminary objection is overruled.
The second ground of preliminary objection by the 1st Respondent is that this court no longer has jurisdiction to entertain this appeal. On this score, the learned counsel for the 1st Respondent relied heavily on the unreported decision of the Supreme Court in ANPP V. Goni (Appeals No. SC 1/2012 and SC 2/2012 (Consolidated) delivered on 17/2/2012, and the cases of Olofu V. Itodo [2010] 18 NWLR (Pt. 1225) 545 at 578 – 579 and Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 613 all of which decide in effect that the Section 15 power of the Court of Appeal cannot be used to extend the period meant for the hearing of a petition and/or cannot be invoked where the lower court had no jurisdiction on the subject matter.
Learned senior counsel for the Appellants on the other hand relied on the provisions of Section 246 (1) (b) and 285 (7) of the 1999 Constitution and submitted that appeals from Election Petition Tribunal lie to the Court of Appeal.
That, it is not the position of the law that once the tribunal abdicates jurisdiction, the Court of Appeal will also have no jurisdiction to entertain the appeal as argued by the 1st Respondent. Appellants counsel argued that the misconception of facts of the present appeal by the 1st Respondent necessitated the citing of the case of ANPP V. Goni (supra). That, they (the Appellants) are not asking this Honourable Court for extension of time; but rather the appeal is based on the refusal of the lower tribunal to comply with the order of the Court of Appeal to hear the petition de novo.
The Appellants submitted that the case of ANPP vs. Goni (supra) is not on all fours with the present case and that the cases of Olofu vs. Itodo (supra) and Inakoju vs. Adeleke (supra) are of no moment as the issues in those case centered on the applicability of the Section 15 power of the Court of Appeal.
Truly, I also think that the three cases relied on by the learned counsel to the 1st Respondent have limited and/or circumscribed the Section 15 power of the Court of Appeal to either extend the lifespan of an election petition as constitutionally prescribed by Section 285 (6) of the Constitution or when a lower court has no jurisdiction to have entertained the subject matter of the appeal. I do not think that any of the decisions affect the ability of the Court of Appeal to hear Election Appeals within the 60 days prescribed by Section 285 (7) of the Constitution consequent on its power to hear appeals from Election Tribunals under Section 246 (1) (b) of the same Constitution.
A distinction must here be made between the jurisdiction of the Court of Appeal to hear appeals from Election Petition Tribunals by virtue of Section 246 (1) (b) and 285 (7) of the Constitution and its powers to make orders affecting a lower court under Section 15 of the Court of Appeal Act. I agree with the learned senior counsel to the Appellants that it is a misconception to argue that the Court of Appeal lacks jurisdiction to hear this appeal from an Election Petition Tribunal.
Ground 2 of the 1st Respondent’s Notice of preliminary objection is also overruled.
The third ground of the 1st Respondent’s objection is that ground 1 of the Appellants grounds of appeal is argumentative and/or narrative.
The said Ground 1 of the Appellants grounds of appeal together with its particulars read as follows:
GROUND ONE
The decision of the Election Petition Tribunal striking out the petition in the face of a subsisting order of Court of Appeal to the effect that the petition be heard on merit is null and void, it being ultra vires the Tribunal to overrule the Court of Appeal.
Particulars of Error
(a) The Court of Appeal is superior to the Election Petition Tribunal in the hierarchy of courts under the constitution.
(b) The Election Petition Tribunal has a statutory duty to carry out the order(s) of a superior court.
(c) The Election Petition Tribunal declined to hear petition No. EPT/IM/NASS/SN/10/2011 on merit as ordered by the Court of Appeal.
(d) The Election Petition Tribunal sat on appeal over an order of the Court of Appeal.
(e) An ultra vires act is a void act.
I have carefully and painstakingly gone through the said ground one of the Appellants grounds of appeal together with its particulars and could not find the ground to be argumentative and/or narrative as suggested by the learned counsel to the 1st Respondent. In any event, a ground of appeal is the complaint of the appellant against the judgment of the court which he believed is wrong. Ground one of the Appellants ground of appeal in the instant case gave a fair and sufficient notice to the objector about the precise nature of the Appellants grievances and clearly satisfied the requirement of order 6 Rule 3 of the Court of Appeal Rules 2011.
In the case of Governor of Ekiti State v. Oyewo (2010) 12 NWLR (Pt. 1) 212 at 219 the Court of Appeal held that the rules of court governing the formulation of grounds of appeal are:
“… designed to ensure fairness to the respondent, fairness by giving sufficient notice and information to such a respondent of the precise nature of the complaint or grievance which foreshadows or prefigured the issues that are likely to arise in the actual hearing of the appeal.”
In the same Oyewo’s case, the Court of Appeal echoed the shift in emphasis from technicalities to the concern of the courts in doing substantial justice and resounded that the modern trend dictates that the purpose of a ground of appeal is to ensure that the respondent is not taken by surprise. Hence, once as in the instant case, a ground clearly states what the appellant is complaining about, there is compliance with the rules of court, the court cannot describe such a ground as bad and incompetent. It is this trend that underscores the current approach to the effect that where the respondent is not misled and no miscarriage of justice has been alleged or suffered, a ground of appeal will not be struck out.
This equally underlies the fact that where a court finds that the particulars of a ground of appeal are argumentative or narrative, it will treat any complaint about its form as a mere technicality.
See also, Obembe v. Ekele (2001) 10 NWLR (pt. 722) 677 at 687, Minister FCT V. Anaduaka (2010) 9 NWLR 304 at 361, Aregbesola v. Oyinlola (2011) All FWLR (Pt.570) 1292 at 1410, Eleburuike v. Tawa (2010) 11 NWLR 269.
Having regard to the above the 1st Respondent’s third ground of preliminary objection is also overruled.
The fourth ground of objection by the 1st Respondent is that grounds 2 and 4 of the grounds of appeal raise points of law that were not taken at the court below.
Counsel for the 1st Respondent submitted relying on the cases of Afribank (Nig) Plc. V. Eddy Motors Ltd. (2002) 13 NWLR (Pt. 785) 639 at 644 and Kate Enterprises v. Daewoo (Nig.) Ltd. [1995] 2 NWLR (Pt. 5) SC 116 that except with the leave of court and after special circumstance have been shown, an appellant cannot raise any fresh issue on appeal. According to him, ground 2 and 4 raise the issue as to whether Section 285 (6) is a valid alteration of the constitution. The validity of Section 285 (6) was never in issue at the lower tribunal. He argued that since the Appellants never invited the tribunal to pronounce on the validity of Section 285 (6), its validity was never in issue at the lower tribunal. He urged that Grounds Two and Four are fresh issues and ought to be struck out.
Learned senior counsel for the Appellants on the other hand thinks that the above argument is misconceived. That, the Appellants complaints in grounds 2 and 4 and the particulars thereto as argued were tied to specific pronouncements within the ruling of the lower tribunal delivered on 23/1/12, copied at pages 676 to 679 of the printed record. That, while the argument as to the validity of section 285 (6) and (7) of the constitution was copied at pages 676 to 679 of the record, a specific decision on the validity or otherwise of the Sections may be found at page 679.
Counsel submitted that it is preposterous to argue that complaints on specifically identifiable decisions or conclusions, or acts overtly apparent and identifiable within the confines of a ruling as contained in the record of appeal did not arise from the ruling.
I find it difficult to accept the arguments of the learned senior counsel for the Appellants on this score.
What determined joinder of issues in a case are the pleadings in civil claims and in the instant case the Motions, the affidavits and counter – affidavits filed by the parties. These are the processes by which the parties have invited the jurisdiction of the court or tribunal to adjudicate upon. In the instant case, it is neither the submissions of the parties on an issue on which in strict sensu the court was not called upon to adjudicate upon nor the unwarranted dictum of such a court that determines joinder of issues in a case.
In the instant case, neither the Appellants Motion on Notice which has been reproduced earlier in this judgment nor any of the affidavits or counter – affidavits raised the issue of the validity of the alteration of the provision of Section 285 (6) and (7) of the Constitution.
Indeed, by the admission of the learned senior counsel for the appellants himself, he conceded before the Tribunal that he was not asking them to pronounce on the validity or otherwise of the provisions.
At pages 588 – 589 of the printed record, Chief M. I. Ahamba, SAN, said this to the Tribunal.
“With the greatest respect, and for the avoidance of doubt, we must state that we have not invited this Honourable Tribunal to declare Section 285 (6) and (7) unconstitutional or void because it is doubtful whether the Tribunal has the competence to do so. We have only urged the Tribunal not to interpret the subsections in isolation of Section 36 (1) in the search for the necessary intention of the legislature in accordance with the accepted and time hallowed rules of interpretation which includes searching for legislative intent by considering other provisions of the statute or document being interpreted.”
Beyond the concession by Chief M.I. Ahamba SAN, the term “Joinder of issues” is defined at page 854 of the 8th Edition of Black Law Dictionary as follows:
“Joinder of issue 1. The submission of an issue jointly for decision 2. The acceptance or adoption of a disputed point as the basis of argument in a controversy – Also termed joinder in issue similiter 3. The taking up of the opposite side of a case, or of the contrary view on a question.”
In the instant case, judging from the content of the Appellants motion on notice before the tribunal, the Affidavits and the counter-affidavits, the tribunal was indeed not invited to pronounce on the validity or otherwise of the provisions of section 285 (6) and (7) of the 1999 constitution. Furthermore, Chief M.I. Ahamba SAN of learned senior counsel to the Appellants himself expressed doubt before the Tribunal on the question of whether the Tribunal indeed has the jurisdiction to pronounce on the validity or otherwise of the provision of section 285 (6). This is probably because the jurisdiction of the National Assembly Election Tribunal is specifically provided for in section 285 (1) of the 1999 Constitution to wit.
“(1) There shall be established for the each state of the Federation and the Federal Capital Territory, one or more election tribunals to be known as the National and State House of Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether-
(a) Any person has been validly elected as a member of the National Assembly: or
(b) Any person has been validly elected as a member of the House of Assembly of a State.”
Similarly, an Election Petition Tribunal could not hide under the provision of section 315 (3) of the constitution to assume jurisdiction in pronouncing on the validity of any of the constitutional provisions. Section 315 (3) reads thus:
(3) Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any law, that is to say-
(a) any other existing law
(b) a law of a House of Assembly.
(c) an Act of the National Assembly
(d) any provision of this Constitution.”
In any event, the validity or otherwise of a constitutional provision such as Section 285 (6) of the Constitution concerns the operation and interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies which is within the exclusive jurisdiction of the Federal High Court under Section 251 (1) (q) of the 1999 Constitution (as amended).
From the aforegoing and in all the circumstances of the case, it is obvious that the pronouncements of the Tribunal on the validity or otherwise of the provision of Section 285 (6) of the Constitution (as amended) are ultra vires and obiter.
The 8th Edition of the Black’s Law Dictionary explains the term “obiter dictum” at page 1102 thus:
“Obiter dictum [something said in passing] A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive) …”
Strictly speaking an “obiter dictum” is a remark made or opinion expressed by a Judge, in his decision upon a cause ‘by the way’ – that is incidentally or collaterally and not directly upon the question before the court or it is any statement of law enunciated by the judge or court merely by way of illustration, argument, analogy or suggestion …. In the common speech of lawyers, all such extra judicial expressions of legal opinion are referred to as ‘dicta’ or ‘obiter dicta’ these two forms being used interchangeably. See William M. Lile et al, Brief making and the use of Law Books 304 (3rd ed 1914).
In the instant case, the pronouncements of the Tribunal on the issue of the validity of Section 285 (6) of the Constitution are obiter and not been the ratio decidendi of the case are not subject of appeal. An appeal can only be based on the ratio decidendi of a case and not on obiter dicta. That being the case, grounds 2 and 4 of the Appellants Notice of Appeal based on the Tribunal’s obiter are not cognizable as grounds of appeal and are liable to be struck out. Grounds 2 and 4 of the Appellants grounds of Appeal together with their particulars read as follows:
GROUND TWO
The Election Petition Tribunal erred in law by abdicating its constitutional competence to hear the petition on merit by reason of Section 285 (6) of the Constitution, when the said subsection is an invalid alteration of the Constitution.
Particulars of Error
(a) The Constitution of Nigeria (Alteration) Act (No. 2) of 2011 which brought into existence Section 285 (6) of the Constitution as an alteration was enacted under Section 9 (2) of the Constitution.
(b) The subsection (6) of section 285 altered Section 36 (1) of the Constitution in effect by limiting its scope.
(c) Section 285 (6) of the Constitution is in conflict with Section 36 (1) thereof.
(d) An alteration of Section 36 (1) of the Constitution may only be validly enacted under section 9 (3) of the Constitution.
GROUND FOUR
The Election Petition Tribunal erred in law when it held that Section 285 (6) of the Constitution as altered was a valid alteration.
Particulars of Error
(a) The alteration that introduced Section 285 (6) into the Constitution was made under section 9 (2) of the constitution.
(b) An alteration under Section 9 (2) is not designed to derogate, limit, or affect any section of the Constitution under part IV of the Constitution.
(c) Section 285 (6) altered the scope of Section 36 (1) of the Constitution.
(d) The alteration is in conflict with the provisions of Constitution to which it is subjected.
Having struck out the above Ground 2 and 4 of the Appellants grounds of appeal for incompetence, Appellants Issue No. 1 based on the said grounds 2 and 4 can no longer be sustained and the said issue is accordingly struck out.
It is trite that an issue in an appeal can only be based on a valid and/or competent ground of appeal, where a ground of appeal is incompetent any issue based on such a ground of appeal is also liable to be struck out.
In the circumstance, this appeal shall be considered on the three (3) remaining issues nominated by the Appellants. Henceforth, the submissions of the Appellants shall be placed on one side of the scale while those of the two sets of Respondents shall be treated on the other side of the scale. This is for the reason of the shared common interest in the cases of the Respondents and also for convenience.
Appellant’s issues are re-numbered as follows the former Issue 2 as Issue 1, Issue 3 as Issue 2 and Issue 4 as Issue 3 accordingly.
Issue No. 1 is whether subsection (6) of Section 285 of the Constitution could be applied to abridge, limit, control or prevail over the application of section 36 (1) of the Constitution in the adjudicatory process, assuming without conceding that the provision has constitutional validity.
On this point, Chief M.I. Ahamba SAN, of counsel to the Appellants in a scholarly exposition of the law traced the history of limitation clauses in Election cases to the Supreme Court decision in Paul Unongo V. Aper Aku (1983) 11 S.C. 129 at 202 – 207 and submitted that Section 285 (6) of the 1999 Constitution was not enacted to breach or abridge the right of fair hearing and that where there is a state of conflict between Section 36 (1) and Sections 285 (6) and (7), preference should be given to the provisions of Section 36 (1) of the Constitution.
Learned senior counsel for the Appellants conceded that in the Unongo V. Aper Aku case (supra) the then fair hearing provisions of the Constitution was used to knockdown the provisions of the Electoral Act, but proceeded to argue that even where as in the instant case, a constitutional provision such as that of Section 285 (6) of the Constitution is in conflict with Section 36 (1) of the Constitution the former would still be treated as ineffective or invalid notwithstanding the fact that unlike the situation in the Unongo V. Aper Aku case (supra) such an inconsistent provision is contained in the Constitution itself. To buttress his argument, learned senior counsel for the appellants relied amongst other cases on the case of LPDC V. Chief Gani Fawehinmi (1985) 2 NSCC VOL. 16 996 at 1053 where the Supreme Court emphasized the preeminence of the then Section 33 of the 1979 Constitution over any other provision of the Constitution and the case of Action Congress V. INEC (2007) 12 NWLR (Pt. 1048) 222 at 259-260 where the Court declared that other provisions of the Constitution must necessarily conform with the fair hearing provision in Section 36 (1) being a provision relating to fundamental human rights.
More particularly from his Written Address, the learned SAN for the Appellants relied on the cases of Obi V. INEC (2007) 11 NWLR (1046) 565 at 643 and Aqua Ltd. V. Ondo Sport Council (1988) 4 NWLR (pt. 91) 622 at 641 and posited that to properly construe the intention of the law makers in enacting section 285 (6) of the Constitution, the entire provisions of the constitution ought to be taken into consideration, particularly where the specific Section under the constitution appears ambiguous. He submitted that section 285 (6) anticipates only an unlimited hearing of a petition to conclusion and finality. It did not, make provisions to accommodate an order of retrial as in this case. But, that the provision in section 285 (7) recognizes an appeal from the determination done within 180 days under section 285 (6). That appeal, said counsel could lead to a reversal or remittance for hearing on merit de novo. The provision, according to counsel has not specifically or expressly or even impliedly, taken into consideration, or provided for the second aspect of decisions expectable from the court of Appeal, to that extent the provision manifests an ambiguity on what happens when an order of retrial is made.
Counsel submitted that the provision of section 285 (6) could not have intended to deny a successful appellant the right to the hearing on merit ordered by the court of Appeal. Such an interpretation, said counsel would lead to absurdity.
Counsel submitted that the legislature could neither have intended injustice out of the process of an appeal designed in the first place to remedy injustice where it is seen to have occurred, nor to render nugatory the right to fair hearing guaranteed under section 36 (1) of the 1999 Constitution.
He relied on the case of Action Congress v. INEC (supra) and said that where circumstances show that such a negative result or derogation could result from the application of the subsection, judicial attitude should veer in favour of protecting the efficacy of section 36(1). Counsel submitted that, in a state of conflict between section 36 (1) and 285 (6) the judex, should concede precedence to section 36 (1) and give the parties the opportunity to fully ventilate their grievances.
In other words, Section 285 (6) cannot be validly applied in derogation of the right to fair hearing under section 36 (1), or judicial powers under Section 6 (6) (b) of the Constitution.
The Respondents in this case simply held on to the recent pronouncements of the Supreme Court more especially in the case of ANPP V. Alhaji Mohammed Goni and Alhaji Kasim Shettima v. Alhaji Mohammed consolidated appeals No. SC/1/2012 and SC/2/2012 delivered on the 17th day of February, 2012. In that case, contrary to the views of the learned senior counsel for the Appellants and directly reversing the lead judgment delivered by my humble self, the apex court held that the provision of section 285 (6) is very clear and unambiguous and therefore needs no construction or interpretation and that: “…the question is not whether the court has jurisdiction to hear and determine an appeal and give orders which the justice of the case demands but whether the court can legally order a retrial of an election petition which, by the admission of the (1st and 2nd) Appellants had lapsed. What would be the effect of such an order? Is it not clearly a case of an exercise in futility?”
In deciding Appellants Issue No. 1 the first thing to do is to place on one side cases such as Unongo V. Aper Aku (supra), LPDC V. Fawehinmi (supra) and Action Congress V. INEC (supra) heavily relied on by the learned senior counsel for the Appellants for the purposes of distinguishing them from the recent pronouncements of the Supreme Court more especially in the Goni V. Shettima case (supra) and also in the case of Amadi v. INEC (unreported) SC 476/2011 delivered on 12/2/2012.
First, the case of LPDC V. Fawehinmi (supra) was not an election matter and the entire consideration in the case concerned the effect of the provision of the then section 33 (1) of the 1979 Constitution and section 6 (6(b) on judicial powers in relation to the conduct and activities of an inferior Tribunal, that is the Legal Practitioners Disciplinary Committee. Unongo V. Aper Aku’s case though an election matter was concerned with the conflict between the provisions of the Electoral Act and the fair hearing provisions under the Constitution.
In Action Congress v. INEC (supra) it was held that Section 137 (1)(i) of the 1999 constitution which disqualifies a person from contesting election to the office of president if he has been indicted for embezzlement of fraud is not self executing. And, that to invoke the provision against any candidate the disqualification therein provided would require an inquiry as to whether the tribunal or administrative panel that made the indictment is of the nature or kind contemplated by section 137 (1) (i) read together with other relevant provisions of the constitution in particular section 36 (1) of the 1999 Constitution.
Another interesting case cited to us by the learned senior counsel for the Appellants is the case of Chief Etuedor Utih & 6 Ors. V. Jacob Umurhurhu Onoyivwe & 5 Ors. (1991) 1 NWLR (pt. 166) 166 at 205, 243. Though, a chieftaincy matter, it held inter alia that it is a well established rule of construction that where a statute seeks to oust the jurisdiction of the court, the statute must be strictly interpreted and any ambiguity will be resolved in favour of vesting jurisdiction in the court. The jurisdiction of the court can only be excluded by clear provisions of the Constitution.
I myself would have thought that the provision of section 285 (6) of the 1999 constitution (as amended) is not very clear as to the possibility of the Court of Appeal exercising powers to order a re-trial having regards to the jurisdiction of the court under Section 246 of the same Constitution to hear appeals from Election Tribunals. And, perhaps join the Supreme Court as in the case of Utih V. Onoyivwe (supra) to say that the jurisdiction of the court can only be excluded by clear provision of the Constitution. But all those thoughts are now irrelevant in view of the recent decisions in the cases of Goni V. Shettima (supra) and Amadi & Anor. V. INEC (supra).
In the Goni V. Shettima case, Onnoghen JSC speaking for the Supreme Court berated the Court of Appeal and enthused as follows:
“…. In the instant case the jurisdiction of the Election Petition Tribunal and that of the Court of Appeal to hear and determine appeals from the Tribunals is statutory and constitutional, see section 246 (i) (b) & (c) and section 285 (1) & (2) supra of the 1999 constitution (as amended). However, the jurisdiction so conferred on the court to hear appeals from the relevant tribunals is circumscribed in relation to the time/period within which the said appeals must be heard and determined vide the provisions of section 285 (7) of the 1999 constitution as amended.
With regards to the Election petition Tribunal, the time within which the jurisdiction so conferred on it is to be exercised/carried out is provided for in section 285 (6) of the 1999 Constitution which enacts thus:
“An election tribunal shall deliver its judgment in writing within one hundred and eighty days from the date of the filing of the petition.”
“It follows that where a tribunal fails to comply with the above provisions the jurisdiction to continue to entertain the petition lapses or becomes spent and cannot be extended by any court order however well intentioned, neither can a court order create and confer jurisdiction on any court/tribunal on any matter where jurisdiction has to be conferred either by statute or the constitution.
It is my considered opinion that by the Court of Appeal ordering a retrial by a tribunal which had ceased to have jurisdiction in this matter would attempt to create jurisdiction in the said tribunal by operation of a court order which is not only very erroneous but unacceptable…”
The learned Justice of the Supreme Court continued:
“It is very worrisome that despite the decisions of the Supreme Court since October 2011, on the time fixed in the Constitution, it appears that this is yet to be fully comprehended. From where will the Election Tribunal get the jurisdiction to entertain the retrial after the expiration of the one hundred and eighty (180) days assigned in the Constitution, without extending the time so allotted? Do the courts have the vires to extend the time assigned by the Constitution? The answer is obviously in the negative.”
And concluded:
It is my considered view that the provisions of section 285 (6) of the 1999 Constitution as amended is like a statute of limitation which takes away the right of action from a party who was not diligent leaving him with an unenforceable cause of action. The law may be harsh but it is the law and must be obeyed to the letter more so when it is a constitutional provision.”
At this juncture, we may wish to appreciate the consistency of the Supreme Court in the interpretation of section 285 (6) and (7) of the 1999 Constitution in historical perspective.
On Friday, the 3rd day of February, 2012, the Supreme Court spoke through Onnoghen JSC in the case of Amadi & Anor V. INEC (supra) and declared specifically that there is no inconsistency between the provision of section 285 (6) and section 36 (1) of the 1999 constitution.
Again on Friday, the 17th of February, 2012, the court again spoke through the Honourable Justice Walter Onnoghen and in very clear terms corroborated their earlier views in the Amadi v. INEC case and now likened the provisions of section 285 (6) of the 1999 constitution with a statute of limitation which unlike other such statutes is now embodied in the Constitution.
I think by now, it should have been clear to the learned senior counsel for the Appellants that the situation here could not be saved by picking and choosing what he termed two conflicting decisions of the Supreme Court exemplified on one hand by the Unongo v. Aper Aku (supra) and the Action Congress v. INEC (supra) type of cases in contrast to the recent pronouncements of the Supreme Court in the Amadi & Anor. V. INEC and the Goni vs. Shettima type of cases.
In the first place none of the pre-1999 cases is comparable to the recent decisions of the Supreme Court in Goni V. Shettima and Amadi v. INEC. The case of Action Congress V. INEC was decided in 2007 under the 1999 Constitution but in the case, the Supreme Court was not called upon to decide any question of a conflict between the provisions of Section 137 1(i) of the Constitution and that of section 36 (1). The relevant point that the case decided was that the provision of section 137 1(i) is not self executing and that the indictment contemplated by the provision must take into consideration the provision of section 36 (1) of the same Constitution. Perhaps we must accept the novelty in the Amadi V. INEC and the Goni V. Shettima cases as the earliest decisions in the challenges of interpreting the provisions of Section 285 (6) and (7) of the 1999 Constitution and also their specificity in declaring that those provisions are limitation clauses in the Constitution and are not in any way in conflict with the provisions of Section 36 (1) of the 1999 Constitution. This, apart from the fact that they are indeed the latest of the Supreme Court decisions on any such matters.
Issue No. 1 is resolved against the Appellants.
Appellants Issue No. 2 covers grounds 1 and 6 of the grounds of appeal. In ground 1, the Appellants have complained about the failure of the Tribunal to obey the order of the Court of Appeal to hear the petition on merit, the Court having decided that the petition was competent. Ground 6 complains about the failure or refusal of the Tribunal to follow the appropriate decision of the Court of Appeal and the Supreme Court in the present case.
In this respect, the Appellants argued that the Tribunal misconstrued and misapplied the decision of the Supreme Court in the consolidated appeal in SC/332/2011, SC 333/2011 and SC 352/2011: Shettima V. Goni & Ors. And frowned at the inability of the Tribunal to follow the supporting opinion expressed by Tur JCA, in the decision of the Court of Appeal Calabar Division in Godwin Akpan Udokpo V. Edet Archibong (unreported) CA/C/NAEA/257/2011 delivered on 17/11/11, when the Tribunal held at page 688 of the record that:
“I do not think that if these Supreme Court decisions were brought to the attention of the court of Appeal in Udokpo’s case (supra), His Lordship, Joseph Tine Tur, JCA would have held the same opinion on the issue of an order for retrial de novo as he did. See the judgment of the Court of Appeal, Sokoto Division in Senator Mohammed Adamu Aliero V. Senator Abubakar Atiku Bagudu, Appeal No. CA/S/EPT/36/2011 (unreported) delivered on 12th day of January, 2012 in which it affirmed the Ruling of the Kebbi State Election Tribunal delivered on 16th November, 2011 where it was held that the tribunal has no jurisdiction to entertain the petition sent back for trial by the Court of Appeal on the ground that the petition has by effluxion of time lapsed. For the above reasons, I respectfully decline to follow the decision of Joseph Tine Tur, JCA in his concurring judgment.”
The Respondents on the other hand submitted on this Issue that to obey the order of the court of Appeal outside the 180 days allotted by section 285 (6) of the 1999 Constitution (as amended), and also to follow the views expressed by TINE TUR JCA in his concurring judgment in CA/C/NAE/257/11 would have amounted to an extension, expansion and elongation of the 180 days stipulated by section 285 (6) of the 1999 Constitution (as amended). The Tribunal would also have been in disobedience of numerous Supreme Court authorities including Appeals Nos. SC 141/2011, SC 266/2011, SC 267/2011 and SC 282/2011, SC 356/2011 and SC 357/2011 (consolidated) Marwa V. Nyako (unreported) delivered on Friday, the 27th day of January, 2012 and SC 2/2012 (consolidated) between All Nigeria Peoples Party (ANPP) V. Goni (unreported) delivered on 17th day of February, 2012.
Issue No. 2 is not as the learned senior counsel for the Appellants conceive it a disobedience of the hierarchical authority of the Court of Appeal but obedience to the hierarchical authority of the Supreme Court which is the highest Court in the land.
By 23rd January, 2012, when the Tribunal’s Ruling, the subject matter of this appeal was decided, the Supreme Court (per Onnoghen JSC) had handed down the first decision in the Shettima V. Goni interlocutory appeal that is Appeals No. SC/33/2011, SC 333/2011 and SC 352/2011 a judgment in rem equally to the effect that the 180 days allocated to an Election Tribunal under Section 285 (6) of the Constitution cannot be extended. Indeed, the Tribunal in this case followed that decision of the Supreme Court.
In that circumstance, the Tribunal was not wrong to have held at page 673 of the record that:
“I am saying that an order for retrial de novo made during the life – span of an election petition is valid but that if during the compliance with the order or the retrial on merit, the life – span of the petition is extinguished by effluxion of time, the order for retrial then lapses or becomes void as a result of its inconsistency with section 285 (6) of the 1999 Constitution (as amended) and on the ground that the continuation of the retrial means an extension of the prescribed period of 180 days.”
Issue No. 2 is resolved against the Appellants.
On Issue 3, the Appellants complained on the view expressed at page 674 of the ruling of the Tribunal that:
“Moreover, an appeal in the Court of Appeal is a continuation of the case decided by the lower court or tribunal … Thus in my humble view, the period which this petition spent at the court of Appeal cannot properly be excluded from the period of 180 days prescribed by Section 285 (6) of the 1999 Constitution (as amended) because, for instance, when a civil matter which went on appeal to the Supreme Court is said to have lasted for a period of ten years, the said period includes the years the case spent at the trial court, the Court of Appeal and the Supreme Court.”
On this, learned senior counsel for the Appellants submitted that Section 285 (6) and 285 (7) are separate provisions which are not subjected to one another. That, it was unjust of the tribunal to read section 285 (7) into section 285 (6) by making the sixty days provided for appeal, and the period taken by judicial and administrative process to return the file from the court of Appeal (a period more than 30 days) into the 180 days provided for hearing the petition.
On this counsel relied on the cases of Wilson V. Attorney General (1985) 4 NWLR (Pt.4) 572 at 589, and Obi V. INEC (2007) 11 NWLR (Pt. 1946) 505, at 640.
He concluded that a situation of a remittance for trial de novo is not anticipated in, or derivable from section 285 (6) of the Constitution and consequently cannot be read into the section.
The Respondents on the other hand submitted that the Tribunal justifiably based its decision on this issue on two grounds. The first is that an appeal is a continuation of the case started at the trial court. Therefore, the period of appeal cannot be excluded from the computation of the 180 days. The second is that, to exclude the period of appeal from the computation of 180 days will tantamount to an indirect extension of the 180 days limited by section 285 (6) of the Constitution.
Issue No. 3 is intricately connected with Issues 1 and 2 that were earlier on dealt with in this judgment. The computation of the 180 days under section 285 (6) to include the period of appeal was dictated by the interpretation given to the provision of section 285 (6) of the 1999 constitution (as amended) by the Supreme Court in earlier mentioned cases such as Peoples Democratic Party (PDP) v. Congress for Progressive Change (CPC) & Ors. 2011 All FWLR (Pt. 603) 1786, Goni Shettima (supra) and Marwa V. Nyako (supra).
Consequently, the Tribunal was right to have held at page 690 of the record that:
“…the period between the judgment of the first Tribunal and the relistment of the petition after the appeal can justifiably be construed to be part of the 180 days provided by section 285 (6) of the 1999 Constitution (as amended). See PDP v. CPC supra. Where the Supreme Court held that no court has the power to extend the times as constitutionally provided in Section 285 (6) and (7) of the 1999 Constitution of the Section or otherwise.”
Issue No. 3 resolved against the Appellants.
Having resolved the three (3) Issues in this appeal against the Appellants, the appeal lacks merit. It is accordingly dismissed.
The parties to this appeal are to bear their respective costs.
UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the judgment just delivered by my Learned brother M. A. Owoade, JCA.
I agree entirely with the reasoning and conclusions reached therein that the appeal is devoid of any merit.
My Learned brother in his scholarly manner exhaustively considered all the issues raised for determination to the extent that I have nothing more to add. I adopt same as mine. I also dismiss the appeal and endorse the consequential order as to cost.
HARUNA M. TSAMMANI, J.C.A.: I had a preview of the judgment just delivered by my learned brother, M. A. Owoade, JCA.
I agree with his reasoning and conclusion that this appeal be dismissed for reasons contained in the said judgment. I have nothing else useful to add.
I abide by the order as to costs.
Appearances
Chief M. I. Ahamba, SAN with C.A. Ijezie (Mrs.) Esq., E.N. Ichie, Esq, C.C. Okoroafor, Esq., J.E. Nwokedi, Esq., A.E. Anuforom, (Miss) Esq., K.O. Ahamba, Esq. and O.U. Okafor (Miss) Esq.For Appellant
AND
L.D.A. Awazieama, Esq. holds Martin Aguda’s
L.M. Alozie, Esq. with C.A. Ogidi, Esq., and C.K. Ogbuchi, Esq.,For Respondent
