DICKSON IFIOK INYANG & ANOR v. HON. IFIOK ANIETIE ETUK & ORS
(2012)LCN/5118(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of January, 2012
CA/C/NAEA/291/2011
RATIO
ATTITUDE OF THE COURT TOWARDS ACADEMIC ISSUES
It is known that no court of law wastes its precious and very valuable time in dealing with or considering Issues that are admittedly academic in a case or appeal. See NKWOCHA V. GOVERNMENT OF ANAMBRA STATE (1984) 6 SC 362; EZEANYA v. OKEKE (1995) 4 NWLR (388) 142; ALI v. ALENSILOYE (2000) FWLR (15) 2616; A.G. ANAMBRA STATE v. A.G. FEDERATION (2005) ALL FWLR (268) 1557 AT 1602. So the Court would not consider arguments on issues which Counsel himself said are academic in the determination of the appeal. But more serious is the fact that the learned counsel had argued the academic issues together with the issue which he says the appeal turns on. PER. MOHAMMED LAWAL GARBA, J.C.A.
ON THE MEANING OF JUDGEMENT
“Judgment” used in the provisions of the section was not defined by the constitution but section 318(i) of the constitution as altered, defined the word “decision” to include judgment or order in relation to a court of law. In the con of that definition, “judgment” used in section 285(6) means a decision by the tribunal which has the effect of disposing of the petition by the tribunal such that the parties could no longer on their own, approach the tribunal again in respect of the claims in the petition. PER. MOHAMMED LAWAL GARBA, J.C.A.
COURT: THE DUTY OF THE COURT TO DEAL WITH OR CONSIDER ALL THE ISSUES RAISED BY THE PARTIES BEFORE IT
I am aware of the general position of the law that a court is enjoined to deal with or consider all the issues raised by the parties before it as stated and restated in numerous judicial authorities that include EBAMAWO V. FADIYO (1973) 1 ALL NLR 130; ATANDA v. AJANI (1988) 3 NWLR (111) 511; OKONJI v. NJOKANMA (1991) 7 NWLR (202) 131; EDEM v. CANON BALLS LTD. (2005) ALL FWLR (276) 693 AT 716. However, it is also an established and accepted principle of law that where a single issue is sufficient to dispose of an appeal, the duty of the Court, in final appeals such as the present one, to consider all other issues in the appeal, abates. See ADAH V. NYSC (2004) ALL FWLR (223) 1850; ANYADUBA v. RENOWNED TRADING CO. LTD. (1992) 5 NWLR (243) 535 AT 561; EBBA v. EGODO (1984) 1 SCNLR 72; ALAO v. AKANO (2005) ALL FWLR (264) 799 AT 808. Similarly, where other issues in an appeal are subsumed in the one decided, it would not be necessary for the Court to consider those other issues. See BALOGUN V. LABIRAN (1988) 3 NWLR (80) 66 AT 80; COOKEY V. FOMBO (2005) 5 SC (PT.II) 102 AT 111; UZUDA V. EBIGAH (2009) 15 NWLR (1163) 1 AT 22. PER. MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. DICKSON IFIOK INYANG
2. ACTION CONGRESS OF NIGERIA (ACN) Appellant(s)
AND
1. HON. IFIOK ANIETIE ETUK
2. THE PEOPLES DEMOCRATIC PARTY (PDP)
3. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (delivering the Leading judgment): On the 07-01-2012, I had dismissed this appeal summarily for reasons which I reserved for a later date. I would now give my reasons for that decision, but before then, I would in brief, state the facts from which the appeal arose as borne out by the printed record before us.
The Appellant and 1st Respondent were candidates, among others, who contested the election conducted by the 3rd Respondent for the Nsit Ibom State Constituency of Akwa Ibom State on the 26-04-2011. They were sponsored by their respective political parties; the 2nd Appellant and the 2nd Respondent for the election at the end of which, the 1st Respondent was declared and returned as the winner. Not satisfied with the returned, the Appellants presented an election petition before the National and State Houses of Assembly Election Tribunal sitting at Uyo (to be called the tribunal after now) in which they questioned the election. The petition was presented (filed) on the 17-05-2011.
In the course of the proceedings of the petition, the Appellants filed an application on the 03-11-2011 in which they prayed for “an order of the tribunal” granting leave to the Petitioners to file ns an additional written witness statement on oath of Mr. Joshua vs Ekrang und deeming the separately filed
Mr. Joshua vs. Ekrang’s written witness statement on oath as properly filed and served.” At page 890 of the record of the appeal, the tribunal ruled that:
“In conclusion we find that this application lacks merit and it ought to be dismissed and it is hereby dismissed.”
Later on at page 896 of the record of appeal, the tribunal stated thus:
“However, having concluded the business of the day we invite all Counsel in this petition to address the Tribunal on the proprietary of this petition to continue on Monday the 14th of November, 2011, today being the 180 days of the petition before this Tribunal.”
After taking addresses from the learned Counsel for the parties, the tribunal in its ruling delivered on the same 12-11-2011 which appears at pages 904-907 of the record of appeal, had concluded thus:
“It is very obvious that this petition is at the stage of pre-trial as at today and there is no way this Tribunal could hear a total of 26 witnesses which all the parties intend to call to prove their respective cases at the end of pre-trial, today, and also call for the addresses of Counsel today and also deliver our judgment today. So if judgment is delivered outside the 180 days it shall be deemed to be unconstitutional the petition having been dead. We therefore come to the final view that the petition lapses today and cannot be continued. It is hereby struck out on the ground of abatement. ”
As to be expected, the Appellants were dissatisfied with, indeed aggrieved by both decisions of the tribunal dismissing their application to file additional witness statement and striking out their petition on ground of abatement.
The Notice of Appeal filed by the Appellants against the decisions of the tribunal was dated and filed on the 29-11-2011 and it contains nine (9) grounds of appeal. It runs from pages 980 to 990 of the record of appeal.
In the Appellants’ brief filed on 12-12-2011, the learned Counsel for the Appellants; Mr. S.C. Peters, Esq. who settled it, distilled two (2) issues from the grounds of appeal which he submitted for determination. They are:
“(a) Whether in the circumstances of the appellants’ petition before the National and State Houses of Assembly Election Tribunal, Akwa Ibom State, the said tribunal was correct in law to have struck out Appellants/petitioners’ petition on the 12-11-2011. See grounds 1, 2, 3, 4, 5, 6, 7 and 9 of the Grounds of Appeal.
(b) Whether the Honourable Tribunal properly
EXERCISED ITS DISCRETION IN LAW when refused the Petitioners/Appellants’ relief in their (Petitioners/Appellants) application before the tribunal filed on the 03/11/2011 seeking for an order of the Honourable Tribunal granting leave tot e petitioners file a s an additional written witness statement on oath of Mr. Joshua Y. Ekrang and deeming the separately filed Mr. Joshua Y. Ekrang’s written witness statement on oath as properly filed and served? See ground 8 of the Grounds of Appeal.”
Enobong Etteh, Esq, learned counsel who settled the 1st Respondent’s brief filed on the 16-12-2011, formulated five (5) issues, four of which were indicated to have arisen from the Appellants’ grounds of appeal. Issue 4 did not have any indication of where from it came from the Grounds of Appeal. Learned Counsel set then and said his issues 2, 3, 4 and 5 are ancillary or academic in the appeal.
On his part, Da. David Okokon, Esq, for the 2nd Respondent, raised two (2) issues which essentially raised the same question for determination in the appeal at page 4 of the 2nd Respondent’s brief filed on the 16-12-2011.
The 3rd Respondent’s brief filed on 15- 12-2011 was settled by Obot F. Johnson, Esq. who also submitted issues similar to those of the 2nd Respondent for determination in the appeal.
Appellants’ Replies to the respective briefs of the Respondents were filed on the 21-12-2011 and 19-12-2011 to complete the filing and exchange of briefs in the appeal.
Affidavits on omission in the record of appeal were filed by the 1st Respondent on 29-12-2011 and the 2nd Respondent on 04-01-2012.
There was also a list of additional authorities filed by the 1st Respondent’s Counsel on the 04-07-2012. I wish to observe that the list of additional authorities did not indicate the points or issues canvassed in the 1st Respondent’s brief which the authorities listed therein go to support.
It is not the duty of the Court to fathom what points or issues canvassed in the brief the listed cases are authority for and so the list of additional authorities offers no assistance at all to the Court as it is and 1st Respondent would consequently not expect to derive any benefit from such a list which is at large in the determination of the appeal.At the oral hearing of the appeal on 05-01-2012, the briefs of argument were adopted by the learned counsel for the parties and we were urged to uphold their respective submissions in support of their position in the appeal. Learned counsel for the 1st and 2nd Respondents also alluded to the affidavits of omission in the record of appeal.
The affidavits of omission are to the effect that a portion of the proceedings of the tribunal conducted on the 07-09-2011 when it ruled on the Petitioners’ application to disqualify itself from hearing the petition was not included in the record of appeal. The affidavits did not disclose any fact showing that the said portion of the proceedings was material, essential of even relevant to the issues that arise for decision in this appeal. In paragraph 6 of each of the affidavits, it was averred that the briefs of argument of the Respondents had since been filed in the appeal inspite of the omission of the portion of the proceedings of the 07-09-2011 from the record of the appeal which forms the foundation of all the briefs filed in the appeal.
Looking at the issues submitted for determination in the appeal, it is my view that they can be properly and comprehensively decided without the record of the portion of the proceedings conducted by the tribunal on the 07-09-2011. The omitted portion of the proceedings is therefore not material or even relevant for the determination of the appeal by the Appellants and so its omission from the record of appeal is of no moment in the peculiarities of this appeal
In fact, the Appellants Notice of Appeal does not a ground against the ruling of the tribunal delivered on the 07-09-2011 on which day the omitted portion of the proceedings was said to have been made.
Done with their affidavits of omission, I would say that looking calmly at the grounds of appeal, the Appellants, two (2) issues concisely represent the real grievances the Appellants have against the decisions of the tribunal. I would accordingly determine the appeal on the basis of those issues:
ISSUE 1:
The issue is whether the tribunal was correct to have struck out the Appellants’ petition on the 12-11-2011 on ground of abatement’ The Appellants’ submissions on the issue is that the tribunal had no power to terminate the petition when even by its own calculation, the 180 days lifespan of the petition was to end on the same day that it was struck out. According to him, the tribunal was bound to allow the petition to stay until after the 180 days had fully expired before striking it out on the ground of abatement and that the tribunal had violated the provisions of Section 285(6) by reducing the lifespan of the petition when it struck it out. Also that the tribunal had no power to limit the 180 days prescribed by the Constitution even for a second and could only strike out the petition after the 12-11-2011. It was the further argument of the learned Counsel that the tribunal by its action, had violated the Appellants’ right to fair hearing since it speculated that it could not hear and determine the petition on the date it struck out the petition. Cases on issues ranging from definition of the word “abatement”, bindingness of record of appeal, decision made without jurisdiction, speculation by a Court, etc, were set out in the brief by learned Counsel. He also, relying on the decision of the Court in appeal No.CA/C/NAEA/257/2011 delivered on 17/11/2011, argued that since the petition was transferred to another panel of the tribunal, by the provisions of Section 285(1) and (6) of the Constitution, the petition was entitled to a fresh 180 days since the trial was to commence de novo with the new panel. On that basis, he said by the 12-11-2011when the petition was struck out, it had not abated since the new panel started sitting on the 10-11-2011 and it was only when there was a competent panel to hear and determine the petition that the 180 days can commence. The case of OHUKA V. THE STATE (1988) NSCC 293 was cited on the principle that the law doe not command an impossibility and it was submitted that the unreported decision in the case of PDP v. CPC relied on by the tribunal was no authority for striking out a petition which was within the time prescribed for its determination.
In another vein, it was contended that the tribunal had no jurisdiction to strike out the petition on the 12/11/2011 after it had adjourned it to the 14-11 -2011earlier on in the proceedings as that amounted to a review of an earlier decision. Reliance was placed on cases including NWAJIOFOR v. UKONU (1985) 2 NWLR (9) 686 AT 706 for the law that court cannot review or alter its decision when made in a case.
For the 1st Respondent, his issues 1, 2,3 and 4 were argued together which contain submissions on the Issue I argued by the learned counsel for the Appellant. It may be recalled that at the beginning of this judgment, I had pointed out what the learned counsel for the 1st Respondent said about his issues for determination, i.e that issues 2, 3, 4 and 5 are ancillary and/or academic in the appeal. He however went ahead and argued the academic Issues 2,3, and 4 together with his Issue I which he says the appeal turns on.
It is known that no court of law wastes its precious and very valuable time in dealing with or considering Issues that are admittedly academic in a case or appeal. See NKWOCHA V. GOVERNMENT OF ANAMBRA STATE (1984) 6 SC 362; EZEANYA v. OKEKE (1995) 4 NWLR (388) 142; ALI v. ALENSILOYE (2000) FWLR (15) 2616; A.G. ANAMBRA STATE v. A.G. FEDERATION (2005) ALL FWLR (268) 1557 AT 1602. So the Court would not consider arguments on issues which Counsel himself said are academic in the determination of the appeal. But more serious is the fact that the learned counsel had argued the academic issues together with the issue which he says the appeal turns on.
The practice of arguing issues separately identified and distilled from different grounds of an appeal in brief of argument by Counsel has the tendency to make the arguments cumbersome and obfuscating of the issues thereby making the brief inelegant. Briefs of arguments in the appellate courts are supposed to readily assist the court in identifying the issues that require determination in appeals and also contain succinct, precise and concise submissions or arguments on each of such issues as separately identified by counsel. The courts should not be saddled with the unnecessary burden of sifting the arguments made together on the different issues in order to identify which ones were on a particular issue.
Learned Counsel should take note and be guided in their practice of brief writing.
What I can make of the submission by the learned counsel for the 1st Respondent on the issue 1 is that the tribunal has no jurisdiction to continue hearing the Appellants’ petition after the 12-11-2011 under Section 285(6) which are mandatory. Further, that the tribunal was right when it struck out the petition on 12-11-2011, the last of the 180 days from the date the petition was filed and reliance was place on the PDP v. CPC case (supra). If was also argued that the tribunal did not speculate or violate the Appellants’ right to fair hearing by striking the petition which was to expire on the 12-11-2011. All the cases in the Appellants, brief on the issue are said to be inapplicable to the appeal.
For the 2nd Respondent, it was submitted that the provisions of section 285(6) are mandatory, clear and so no words should or can be imported into them in the process of interpretation by the Court. We were urged to hold that the petition filed on the 17 -05- 2011 had lapsed on the 12-11-2012 with the effluxion of the 180 days allotted for its hearing and determination. The case of FALAE v. OBASANJO (1999) 6 NWLR (606) 283 AT 290 was cited in support of the submission, among other cases. We were urged to dismiss the petition in line with the decision in PDP v. CPC (supra).
The learned counsel for the 3rd Respondent made similar submissions on the issue to those for the other Respondents and he urged us to resolve the issue in favour of the Respondents.
In his Reply to the 1st Respondent’s brief, learned counsel for the Appellants made submissions which are not answers or responses to new points raised in the Respondents’ brief on the issue under consideration, but largely on issues which he had prayed the court to strike out for being strange to the decision appealed against. As can be observed, I did not review the points in the 1st Respondent’s brief to which the Appellants’ Reply largely reacted. In any case, most of the arguments in the Reply brief were further arguments of the Appellants’ issues in the appeal’ that is why it runs into 23 pages, almost the same size with the Appellants’ brief.
The same thing happened in respect of the Appellants’ Reply to the 2nd and 3rd Respondents’ brief. It did not response to any new point raised in the said Respondents’ briefs but substantially went on to academically further argue the crucial issue 1 death with in the Appellants’ brief.
Let me start by saying that the crucial point in the issue is not the construction or interpretation, simpliciter of the provisions of Section 285(6) of the constitution, which it is common ground are clear and straight forward. In the circumstances, the words therein are to be given their plain, ordinary and literal meaning within the con in which they were used. In the words of Onnoghen, JSC, in the unreported PDP V. CPC (supra), there is “nothing to interprete” by the court but to ascribe to the unambiguous words employed and used by the legislature in the section, their natural and grammatical meaning, which best brings out clearly, the intention of the law makers in enacting the provisions.
For case of reference, the provisions of section 285(6) of the constitution (as altered) are thus:
“285(6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”
There can be no dispute now that by the above provisions, the clear intention of the legislature is to set out by way of command or exhortation, that the power and authority vested in an election tribunal to hear and determine any election petition; the exclusive original jurisdiction, by subsections (1) and (2) of section 285, is limited by time. The lifespan of the jurisdiction vested in an election tribunal over an election petition filed before it, is limited to 180 days from the date of the filing of the petition, within which it had no option but to deliver its judgment in writing.
These provisions are therefore provisions of constitutional limitation in respect of the time within which the jurisdiction of an election tribunal over an election petition under the constitution had to be exercised or utilized. In the event, in law any event that an election tribunal fails, omits, refuses or otherwise was unable to comply, obey or carry out the directive or command given in the provisions, the judicial consequence would be the automatic loss, vacation or lapse of the jurisdiction over a petition by effluxion of the limited lifespan. At/or by the end of the limited time, the tribunal would no longer possess the requisite constitutional judicial power and authority in the name of jurisdiction to entertain the petition in question. It should be noted that it is the jurisdiction of the tribunal to entertain and determine the petition that is vacated, lost and taken away automatically by the effluxion of the limited period of time. The provisions do not directly deal with the competence of the petition ipso facto but with that of the tribunal to entertain if after the expiration or effluxion of the limited time. I must also state that one the time limited has expired, the reasons why the tribunal was unable to hear and determine the petition by delivering its judgment therein within the time prescribed would not be relevant because once the jurisdiction is lost, vacated or taken away by the operation of the provisions of law on limitation, it cannot be restored except by law. See generally OBIEFUNA v. OKOYA (1961) 1 SCNLR 144; SANDA v. KUKAWA L.G.A. (1991) 1 NWLR (174) 379; OGOJA L.G.A. v. OFFOBOCHE (1996) 7 NWLR (458) 48 AT 86 – 89; AREMO II v. ADEKANYE (2004) ALL FWLR (224) 2113 AT 2131; ELEBANJO v. DAWODU (2006) ALL FWLR (328) 604; ARABELLA v. N.A.I.C. (2008) 32 WRN 1 AT 26. I have stated before now that the crucial issue for determination here is not simply the interpretation of the provisions of Section 285(6). There is no doubt in this appeal, because it is borne out by the record of the appeal, that the Appellants, petition was filed before the tribunal on the 17-05- 2011. It is common ground also that by the provisions of section 285(6), the tribunal had 180 days from that day within which to hear and determine or try the petition and deliver its judgment in writing. Similarly, learned counsel for the parties agreed that the period of 180 days from the 17-05-2011; the date of the filing of the petition, was to end or expire on the 12-11-2011. In other words, the last of 180 days within which the tribunal was to deliver its judgment in the petition, was the 12-11-2011 which was also the day the tribunal struck out the Appellants’ petition.
As can be seen from the arguments of the learned counsel for the Appellants, the hard bone of his attack on the decision of the tribunal to strike out the petition was that it was taken on the last day when the day had not ended or expired. His contention is that by the provisions of section 285(6), the 180 days did not end or expire because the last day did not end or expire and so the lifespan of the petition was on or existed.
I have at the beginning of this judgment set out the portion of the ruling striking out the Appellants’ petition as contained at page 907 of the record of the appeal where it stated that as at the 12-11-2011; the last of the 180 days in the lifespan of the petition, the petition was still at the pre-hearing stage. This terse statement in the ruling of the tribunal was not challenged or even disputed by the learned Counsel for the Appellants. This is a statement of fact which as part of the record of appeal, binds both the parties as well as the Court in this appeal. See AGBAREH V. MIMRA (2008) 2 NWLR (1071) 378; VEEPEE INDUSTRIES LTD. v. COCOA INDUSTRIES (2008) 13 NWLR (1108) 486 AT 512; OGUNTAYO V. VADELAJA (2009) 15 NWLR (1163) 150.
If the Appellants’ petition was still at the pre-hearing stage on the last day of the 180 days within which the jurisdiction of the tribunal was to be exercised or utilized over it, it is practically unreasonable to argue that the tribunal had terminated the lifespan of the petition by striking it out on that day. It must be realized that the 180 days provided for in Section 285(6), was for the tribunal to deliver its judgment after the trial of the petition, whether on the merit or not; i.e after making an evaluation of evidence from the parties on the pleadings filed or taking consideration of submissions of the learned Counsel for the parties on issues of law capable of finally disposing of the petition as far as the tribunal was concerned.
“Judgment” used in the provisions of the section was not defined by the constitution but section 318(i) of the constitution as altered, defined the word “decision” to include judgment or order in relation to a court of law. In the con of that definition, “judgment” used in section 285(6) means a decision by the tribunal which has the effect of disposing of the petition by the tribunal such that the parties could no longer on their own, approach the tribunal again in respect of the claims in the petition. Since the tribunal admittedly would lack the requisite jurisdiction to adjudicate over the Appellants’ petition at the end of the last of 180 days from the day it was filed, that was the 12-11-2011, it was right to have struck it out on that day and it did not have to wait until the jurisdiction ceased, ended or taken away by the effluxion of what remained of the part of that last day. It cannot seriously be said that the tribunal had thereby limited or reduced the period of the 180 days prescribed by the provisions of section 285(6)since emphasis is on the computation of the number of days from the date a petition was filed and not on the parts, portions, hours, minutes or even seconds that make up any of the days. Even if portions or parts of each of the days can be considered in the computation and determination of when the 180 days end or expire, the peculiar facts and circumstances which present themselves in each particular case or petition would or better put, should dictate what their effect would be on the lifespan of the case or petition for the purposes of the Court/tribunal’s jurisdiction to entertain it.
The facts that the Appellants’ petition was still at the prehearing stage as at the last of the 180 days, that the parties had indicated to the tribunal their desire and intention to call witnesses and adduce evidence in support of their respective positions in the petition, that the said witnesses were not before the tribunal on that day and admittedly that after that day, the tribunal would lack the jurisdiction to continue with hearing of the petition are so cogent, pungent and compelling to support putting an end to the proceedings in the petition which would after that day be a nullity for want of jurisdiction.
For the above reasons, the tribunal had the requisite jurisdiction and was right and entitled to strike out the petition that expired on the last of the 180 days prescribed in Section 285(6) of the Constitution. I therefore resolve the issue against the Appellants.
It would appear that my finding on the issue I above has subsumed and overtaken the Appellants’ Issue 2 which challenges the decision of the tribunal dismissing the Appellants’ application for leave to file and rely on an additional witness statement on path. Since the tribunal was right in striking out the Appellants’ petition, there would no longer be a live petition in which an additional witness statement on oath could be filed and relied upon. I am aware of the general position of the law that a court is enjoined to deal with or consider all the issues raised by the parties before it as stated and restated in numerous judicial authorities that include EBAMAWO V. FADIYO (1973) 1 ALL NLR 130; ATANDA v. AJANI (1988) 3 NWLR (111) 511; OKONJI v. NJOKANMA (1991) 7 NWLR (202) 131; EDEM v. CANON BALLS LTD. (2005) ALL FWLR (276) 693 AT 716.
However, it is also an established and accepted principle of law that where a single issue is sufficient to dispose of an appeal, the duty of the Court, in final appeals such as the present one, to consider all other issues in the appeal, abates. See ADAH V. NYSC (2004) ALL FWLR (223) 1850; ANYADUBA v. RENOWNED TRADING CO. LTD. (1992) 5 NWLR (243) 535 AT 561; EBBA v. EGODO (1984) 1 SCNLR 72; ALAO v. AKANO (2005) ALL FWLR (264) 799 AT 808.
Similarly, where other issues in an appeal are subsumed in the one decided, it would not be necessary for the Court to consider those other issues. See BALOGUN V. LABIRAN (1988) 3 NWLR (80) 66 AT 80; COOKEY V. FOMBO (2005) 5 SC (PT.II) 102 AT 111; UZUDA V. EBIGAH (2009) 15 NWLR (1163) 1 AT 22.
Because the Appellants’ Issue 2 has been subsumed and overtaken by my finding on the Issue I which is sufficient to dispose of this appeal, I consider it unnecessary to go into the submissions of the learned Counsel in respect of the Issue 2. In the final result, with the resolution of the Appellants’ Issue I against them, this appeal is devoid of merit and is dismissed by me accordingly.
There shall be costs of N50,000.00 in favour of the 1st and 2nd Respondents to be paid by the Appellants.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother M. L. Garba, JCA. I agree with him that S. 285 (6) of the 1999 constitution (as altered) is plain and unambiguous. The subsection provides that:
“An election Tribunal should deliver its judgment in writing within 180 days from the date of filing of the petition.”
In the circumstance of this case, the 180 days begins to run on the date, the petition was presented or filed before Tribunal.
The Tribunal was right in dismissing this Petition on the last day as it would not be humanly possible to take evidence of 26 listed witnesses, take addresses of counsel and deliver its considered judgment all in one (1) day. The Tribunal therefore struck out this petition.
After 180 days envisaged by S.285(6) of the 1999 constitution (as altered) the Tribunal has no jurisdiction to continue with the Petition.
“The question of jurisdiction of court is a radical and crucial question of competence because if a Court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab inifio no matter how well conducted and brilliantly decided they might be because defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction of Court is therefore considered to be the nerve centre of adjudication, the blood that gives life to an action in a Court of law in the very some way that blood gives life to a human being.” Daplanlong vs. Dariye (2007) 8 NWLR pt. 1036 page 332.
Once the 180 days provided in S. 285 (6) 1999 Constitution (as altered) had expired, the Court cannot continue or vest in itself jurisdiction not specifically conferred on it by a statute or the Constitution See KLM Airlines vs. Kumzhi (2004) 8 NWIR pt. 875 page 231.
Where a Court decides that it lacks jurisdiction to continue entertaining a suit, as in this case, the proper order to make is to strike out the Petition. Okolo vs. U.B.N. Ltd (2004) 3 NWLR pt. 859 page 87. Johnson vs. Lufadeju (2002) 8 NWLR pt. 768 pg 192. Afrikbank (Nig) Plc. vs. Bonic Ind Ltd. (2006) 5 NWLR pt. 973 page 300.
I agree that the Tribunal was right to strike out the petition for efffluxion of time. The appeal for this reason and the fuller reasons in the lead judgment locks merit. It is hereby dismissed. I abide by the order of cost in the lead judgment.
JOSEPH TINE TUR, J.C.A.: Having read the lead judgment of my Lord Mohammed Lawal Garba JCA, I agree on 07/01/2012 that this appeal shall be summarily dismissed.
The 3rd Respondent conducted the election into the Nsit Ibom State Constituency of Akwa Ibom State on 26-04-2011. The petition was presented by the petitioner on 17-05-2011. Tribunal struck out the petition on 12-11-2011 being the 180th day of its filing for by that date the petition was still at the pre-hearing stage. The petitioners were yet to call twenty six witnesses for hearing. Definitely, hearing of these witnesses and delivery of judgment would be outside the 180 days stipulated under Section 285(5) and (6) of the Constitution of the Federal Republic of Nigeria as altered which provides as follows:
“(5) An election petition shall be filed within 21 days after the date of the declaration of result of the elections.
(6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”
The Tribunal would have acted without jurisdiction to proceed after the 180th day. The Tribunal acted within jurisdiction to strike out the petition on that day for it was impossible to hear twenty six witnesses from the petitioners and thereafter from the Respondents and deliver judgment as envisaged under section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Accordingly, there is no merit in this appeal. For this and the fuller reasons given by my Lord in the lead judgment, I also dismissed this appeal as lacking in merit.
Appearances
S.C. PetersFor Appellant
AND
Enobong Etteh with Aduojo Abah; Chinedu Mgbeahurike;
Promise Asikpo – For 1st Respondent.
David Okonkon – For 2nd Respondent.
Johnson Obot – For 3rd Respondent.For Respondent
