DR. KEMDI OPARA & ORS V. HON. BETHEL AMADI & ORS
(2012)LCN/5248(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of March, 2012
CA/OW/EPT/60/2011 (CONSOLIDATE
RATIO
ON THE DEFINITION OF THE RIGHT TO FAIR HEARING
The right to fair hearing as provided for in Section 36 has been defined in several cases by the apex court. In OKEKE V. THE STATE (2003) 15 NWLR (PT. 842) page 25, at 110, Tobi JSC stated thus:-
“The whole essence of fair hearing is that the parties must be given equal opportunity to present their case.” Also in AMANCHUKWU v. FRN (2010) 1 WRN 26 AT 35 OGBUAGU JSC had this to say on fair hearing. “Fair hearing within the meaning of Section 33(1) of the 1979 Constitution means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. It encompasses not only the compliance with the rules of natural justice but also audi alteram partem. It also entails in the course of trials whether civil or criminal trial all the things which will make an impartial observer leave the court room to believe that the trial has been balanced and fair on both sides to the trial.” See also Mohammed v. Kano NA (1968) 1 ALL NLR 43; FCSC V. LAOYE (1989) 2 NWLR (PT. 106) page 652, SALU v. EGIBON (1994) 6 NWLR (PT. 348) at 34. Per. TUNDE OYEBAMIJI AWOTOYE, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
TUNDE OYEBAMIJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. DR. KEMDI OPARA
2. ALL PROGRESSIVES GRAND ALLIANCE (APGA) – CA/OW/EPT/60/2011
1. SIDNEY ONYEMERE
2. PROGRESSIVE PEOPLES ALLIANCE (PPA) – CA/OW/EPT/55/2011
1. CHIBUEZE H. APUGO
2. ALL PROGRESSIVE GRAND ALLIANCE – CA/OW/EPT/56/2011
1. BARR. HARRISON ANOZIE NWADIKE
2. ACTION CONGRESS OF NIGERIA (ACN) – CA/OW/EPT/57/2011
1. KYRIAN ANYACHONKEYA OKORIE
2. ALL PROGRESSIVE GRAND ALLIANCE (APGA) – CA/OW/EPT/58/2011
1. AMB. DR. (MRS) KEMA CHIKWE
2. PEOPLES DEMOCRATIC PARTY (PDP) – CA/OW/EPT/59/2011 Appellant(s)
AND
1. HON. BETHEL AMADI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION – CA/OW/EPT/60/2011
1. GRACE NKEM UCHE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – CA/OW/EPT/55/2011
1. HON. CHIDIEBERE NWOKE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – CA/OW/EPT/56/2011
1. SIR. CHUKWUDI VICTOR ONYERERI
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – CA/OW/EPT/57/2011
4. DEPARTMENT OF STATE SECURITY SERVICES
5. NIGERIA POLICE FORCE
1. SAMUEL NNAEMEKA ANYANWU
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION – CA/OW/EPT/58/2011
3. THE RESIDENT ELECTORAL COMMISSIONER, IMO STATE
1. SENATOR CHRIS ANYANWU
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. RETURNING OFFICER, IMO EAST SENATORIAL DISTRICT – CA/OW/EPT/59/2011 Respondent(s)
TUNDE OYEBAMIJI AWOTOYE, J.C.A. (Delivering the Lead Ruling): This is the ruling in respect of the motions on notice filed by the Respondents in Appeals Nos. CA/OW/EPT/55 – 60/2011.
Each of the said appeals has lapsed by virtue of the operation of Section 285(7) of the Constitution. This is not being contested by the Appellants. The arguments of the counsel in the consolidated appeals are substantially the same and can be captured from the arguments of counsel in CA/OW/EPT/60/2011.
The Respondents/Applicants had each prayed for the striking out or dismissal of the appeal on the ground that they had lapsed by operation of Section 285(7) of the 1999 Constitution.
In Appeal No. CA/OW/EPT/60/2011 Dr. Kemdi Opara V. Hon. Bethel Amadi & Anor. the judgment appealed against was delivered on 18/11/2011. The appeal was filed on 21/12/2011. As at 26/1/2012 when the appeal came up for hearing the appeal was 66 days contrary to the provision of Section 285(7) of the Constitution which provides for days as the time limit within which to hear and dispose of an election petition appeal. Hence the applications.
Learned counsel for the 1st Respondent Aikhunegbe A. Malik formulated one issue for determination to wit:
“Having regard to the clear and unambiguous provisions of Section 285(7) of the Constitution (as amended) coupled with decisions of the Supreme Court interpreting the said section, whether or not this Honourable Court still has the jurisdiction to entertain the appeal.”
This in my respectful view is the sole issue to be determined in all the said applications in these consolidated appeals. Learned counsel in all the applications relied on the Supreme Court cases of –
(i) ANPP v. ALHAJI MOHAMMED GONI & ORS. (Consolidated suit No. SC. 1/2012 and SC.2/2012) judgment delivered on Friday 17/2/2012 by the Supreme Court.
(ii) MALLAM ABUBAKAR & 2 ORS v. SAIDU USMAN NASAMU & ORS. in consolidated Appeal Nos. SC/4/2012, SC14A/2012, SC/14B/2012, SC/14C/2012 delivered on 24/2/2012.
(iii) SHETIMA & ANOR v. GONI in consolidated suit Nos. SC/332/2011, SC/333/2011, SC/352/2011 delivered on 31/10/2011.
(iv) CHIEF DR. FELIX AMADI & ONE OTHER AFRICAN POLITICAL SYSTEM (APS) v. INEC & ORS.
Each of the Respondents urged the court to strike out the appeal for the above reasons.
Learned senior counsel, Chief M. I. Ahamba, SAN opposed the application. His robust submissions in opposition to the application encapsulate the equally strong submissions of other learned counsel for the Appellants in other appeals constituting part of these consolidated appeals.
Chief M. I. Ahamba, SAN for the Appellant in Appeal No. CA/OW/EPT/60/2011 conceded that the period provided in Section 285(7) of the 1999 Constitution (as amended) had indeed elapsed. He formulated 4 issues for determination. The issues are
“ISSUE A
Whether the Constitution (Alteration Act (No 2) of the 2011, having been enacted under Section 9(2) of the Constitution, is valid to the extent that it enacted Section 285 (7) thereof, which derogated the right to fair hearing as enshrined in Section 36(1) under part IV of the Constitution of the Federal republic of Nigeria, which can only be altered by an enactment under Section 9(3) of the constitution.
ISSUE B
If the answer to issue A supra is in the negative, whether the Court of Appeal could lawfully abdicate its jurisdiction to hear an appeal from Election petition Tribunals as a result of effluxion of time under Section 285(7) of the constitution enacted under Section 9 of the Constitution (Alteration) Act (No. 2) of 2011, in deference to that subsection.
ISSUE C
If the answer to issue A above is in the affirmative, whether subsection (7) of Section 285 of the Constitution (as Amended) could be validly applied to abridge or derogate the right to fair hearing enshrined in Section 36(1) of the Constitution as defined in existing judicial decisions of the Supreme Court of Nigeria.
ISSUE D
“whether the decision of the Supreme Court in ANPP v. ALH. GONI & ORS. (consolidated) Appeal Nos. SC/1/2012 & SC/2/2012 delivered on 17/2/12 is, under the doctrine of stare decisis applicable to the determination of the instant application .”
Learned senior counsel argued issues A and B together. He referred to Section 4(2) of the Constitution which provides for the power of the National Assembly to make laws only for the “purpose of peace order and good government of the Federation or any part thereof with respect to any matter included in the exclusive Legislative List set out in part 1 of the second schedule to this constitution.” He posited that the powers of the National Assembly to make laws are limited to laws for peace, order and good government of the Federation or a part thereof. “An enactment which creates, according to him, or is capable of creating conflict disorder or injustice within the polity or which is not consistent with the express provisions of the constitution is not within the vires of the National Assembly to make.
Learned senior counsel submitted that for the National Assembly to alter the Constitution via an Act of the National Assembly it must comply with Section 285(7) of the Constitution and Section 9 of the Constitution. He added that Section 9(1) of the Constitution was subject to Section 9(2-4) of the Constitution.
He relied on TUKUR v. GOVT. OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 517 at 508. He argued that an Act of the National Assembly on constitutional alteration which conflicted with Section 9 of the Constitution was void. He relied on LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE v. FAWEHINMI (1985) 2 NSCC 998 at 1053.
Learned senior counsel contended that the Constitution of the Federal Republic of Nigeria (Second Alteration) Act 2010, in so far it affected any section in Chapter IV of the Constitution but failed to comply with Section 9(3) of the Constitution was null and void. He cited LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE V. FAWEHINMI (supra) at 1053.
Chief Ahamba, SAN further stated that Section 285 of the Constitution was a product of an alteration proceeding under Section 9(2) of the Constitution but it impacted on the right of fair hearing of citizens of Nigeria. He argued that this was an infraction of the provision of Section 9(3) of the Constitution and so was a nullity. He cited THE ANISMIC v. FOREIGN COMPENSATION (1969) 2 AC.147.
Learned senior counsel drew strength from the statement of UWAIS, JSC (as he then was) in UNONGO v. AKU (1983) 11 SC 129 at 207 where his Lordship stated:
“I do not see how a reasonable person will have the impression that a party has a fair hearing where his petition which has been instituted within the time limit stipulated by the Electoral Act cannot be concluded because the time available to the court for the petition to be heard will not be sufficient for either or both parties to the petition to present their cases or will not allow the court at the close of parties’ cases, sufficient time to deliver its judgment.”
Learned senior counsel urged the court to apply the above principles in this case because Section 140 (2) of the Electoral Act 1982 though not similarly worded had the same effect as Section 285(7) of the 1999 Constitution. Learned counsel further relied on ACTION CONGRESS v. INEC (2007) 12 NWLR (PT. 1048) 222; AQUA LTD v. ONDO STATE SPORTS COMMISSION (1988) 4 NWLR (PT. 91) 622. He urged the court to resolve issue C in respondents favour.
On issue D Chief Ahamba SAN, contended that the issue of validity of Section 285 (6 & 7) of the Constitution was not raised before the Supreme Court in ANPP v. GONI (unreported). SC 1/2012 & SC 2/2012 (consolidated delivered on 17/2/2012 and so the said decision was not binding on this court. He relied on BUHARI v. YUSUF (2003) 14 NWLR (PT. 84) 446 at 537, and SHETIMA v. GONI (consolidated) SC 323/2011, SC 333/2011 and SC/252/2011 (unreported) delivered on 31/10/2011.
Learned senior counsel finally urged the court to declare Section 285(7) of the 1999 Constitution (as amended) void, strike out same and assume jurisdiction to hear the appeal on merit or alternatively hold that where the subsection 7 of Section 285 conflicts with Section 36(1) of the Constitution that Section 36(1) being the section which protected “the fundamental basis of an adjudicatory part of which election petition is” shall prevail as was done in ACTION CONGRESS v. INEC (supra).
I have carefully considered the submissions of learned counsel on both sides.
As aforestated, it is not being contested that the time limit within which an election petition appeal is to be heard and disposed of as stipulated by Section 285 (7) of the 1999 Constitution has not lapsed. It is the validity of the Section that is presently being challenged in order to sustain the appeal. For ease of reference I hereby quote the provision of Section 285(5-8) of the 1999 Constitution (as amended) hereunder:
“(5) An election petition shall be filed within 21 days after the date of the declaration of result of the election;
(6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal or court of Appeal.
(8) The court, in all final appeals from an election tribunal or court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.”
The backbone of the submission of learned counsel for the Respondent/appellant is that Section 285(7) of the Constitution infringes on the provision of Section 36 of the 1999 Constitution, right to fair hearing.
The right to fair hearing as provided for in Section 36 has been defined in several cases by the apex court.
In OKEKE V. THE STATE (2003) 15 NWLR (PT. 842) page 25, at 110, Tobi JSC stated thus:-
“The whole essence of fair hearing is that the parties must be given equal opportunity to present their case.”
Also in AMANCHUKWU v. FRN (2010) 1 WRN 26 AT 35 OGBUAGU JSC had this to say on fair hearing.
“Fair hearing within the meaning of Section 33(1) of the 1979 Constitution means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. It encompasses not only the compliance with the rules of natural justice but also audi alteram partem. It also entails in the course of trials whether civil or criminal trial all the things which will make an impartial observer leave the court room to believe that the trial has been balanced and fair on both sides to the trial.” See also Mohammed v. Kano NA (1968) 1 ALL NLR 43; FCSC V. LAOYE (1989) 2 NWLR (PT. 106) page 652, SALU v. EGIBON (1994) 6 NWLR (PT. 348) at 34.
I have deeply considered the provision of Section 285 (7) of the Constitution (as amended) I am, with due respect to learned senior counsel unable to see how it infringes the right to fair hearing of parties. Section 285 (7) of the Constitutions provide for a period of 60 days for hearing and determination of an appeal from the date of judgment appealed against. It guarantees right of appeal against decision of election petition tribunal but stipulates a time limit within which to do so. To my mind a period of two months from the date of judgment to hear and determine an appeal is not unreasonable. The learned senior counsel should with due respect have directed the attack against the Rules of court governing election petitions and election petition appeal which predated the election constitutional amendment and which need to be further amended to bring in line with Section 285(7) of the Constitution and the provisions of the Electoral Act (as amended) particularly paragraph 18 of the 1st schedule to the Electoral Act (as amended) which have given room for determination of election petition on technicalities when the power of the Court of Appeal to order remittance to the court below under Section 15 of Court of Appeal Act has been seriously circumscribed by the said constitutional amendment with regard to time limits.
I do not agree that the provision of section 285(7) of the Constitution infringes the right to fair hearing under Section 36 of the Constitution.
It is true that in UNONGO v. AKU (supra) the Supreme Court held that the provision of Section 140 (2) of the Electoral Act 1982 constituted an infringement of right to fair hearing under section 33 of the Constitution. However, in later decisions this position of the court changed.
In Chief Dr. Felix Amadi and one other v INEC and ORS, in SC/476/2011 decided on 3/2/2012, Onnoghen JSC had this to say:
“It is very important to note that the provisions of section 285(7) supra do not deny an Appellant the right to fair hearing just like every statute of limitation. It merely gives all parties and the court a time frame within which parties are to exercise their right to fair hearing in a relevant appeal. If for whatever reason the appeal is not heard within the allotted time frame it cannot be said that an Appellant affected thereby has been denied his right to fair hearing.”
Where there are two conflicting decisions of the Supreme Court the subordinate court is bound to follow the latter decision. See EGBOGHONOME v. THE STATE (1993) 7 NWLR (pt.306) 383 at 394; AKINADE v. NASU (1999) 2 NWLR (Pt.592) 570 at 572; UDUGBO v. ABU (2001) 14 NWLR (Pt.732) 45; BUCHNOR-MACLEANS v. INLAKS (1980) 8-11 SC 1, 24; DAPIANLONG v. DARIYE (2007) 8 NWLR (Pt. 1036) 332.
Having held that the section 285(7) of the constitution (as amended) does not violate the right to fair hearing, the argument of learned senior counsel on its validity, must collapse. I therefore hold that it does not have merit. Section 285(7) of the constitution is a proper and valid amendment made in compliance with section 9(2) of the Constitution.
IN the recent case of MALLAM ABUBAKAR & ORS. V NASAMU & ORS. delivered on 24/2/2012 in SC/14/2012 the Supreme Court in a unanimous judgment had cause to again interpret the provision of section 285(7) of the constitution (as amended) Onnoghen, JSC in his leading judgment had this to say:
”In my judgment, the words deployed 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 state. Subsection (7) of 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 delivery of judgment by the election tribunal a 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 (60) days is null and void.”
This decision is binding on this court. See BAGGUDU V. FRN (2004) NWLR (PT. v. 853) 182; ODUGBO V. ABU (supra).
The applications to strike out this appeal on the ground that it has lapsed have merit as I am not in the least persuaded by the objections to the applications.
This appeal as well as the other appeal consolidated with it, i.e. CA/OW/EPT/55/2011, CA/OW/EPT/56/2011, CA/OW/EPT/57/2011, CA/OW/EPT/58/2011 and CA/OW/EPT/59/2011 have lapsed having not been disposed of within 60 days after delivery of the respective judgments appealed against as stipulated by section 285 (7) of the 1999 Constitution (as amended).
Each is accordingly struck out for want of jurisdiction by this court.
UWANI MUSA ABBA AJI, J.C.A.: I agree
MOJEED A. OWOADE, J.C.A.: I agree.
ADAMU JAURO, J.C.A.: I agree.
HARUNA M. TSAMMANI, J.C.A.: I agree.
Appearances
Chief M. I. Ahamba, SAN with him C. A. Izerie (Mrs.), E. N. Khie Esq., C. C. Okoroafor Esq., T. E. Nwokedi Esq., A. E. Anuforom (Miss) and K. O. Ahamba Esq. for the Appellants/Respondents in EPT/60.
A.A. Malik Esq, for the 1st Respondent/Applicant in EPT/60.
Afam Obi Esq, for the 2nd Respondent/Applicant/Respondent.
Chika Udeozor Esq. for the Appellant/Respondent in EPT/55,
Okey Amechi, SAN, with him A. C. Okoraofor Esq. and Grant Osu Esq. for the 1st Respondent/Applicant in EPT/55.
C. N. Ijoma Esq. holding the brief of M. O, Onyeka Esq. for the 2nd Respondent/Appellant in EPT/55.
A.C. Chioma Esq. for the 3rd Respondent/Applicant in EPT/55.
O.O. Amuzie Esq. for the Appellants/Respondents.
Dr. Livy Uzoukwu, SAN with him are G. I. Chionye Esq., A. S. Kolawole Esq. for the 1st Respondent/Applicant.
C.N. Ijoma Esq. holding the brief of M. O. Onyema Esq. for the 2nd Respondent/Applicant in EPT/56.
A.C. Chioma Esq. for the 3rd Respondent/Applicant in EPT/56.
U. V. Enwere Esq. for the Appellant/Respondent in EPT/57.
N. A. Nnawuti Esq. with S. C. Imo Esq. and N. A. Anike Esq., J. A. Okereke Esq. for the 1st Respondent/Applicant in EPT/57.
O. N. Agbodike Esq. holding the brief of Chief C. O. Akaolisa Esq. for the 2nd Respondent/Applicant in EPT/57.
E. O. Onyema Esq. for Appellants/Respondents in EPT/58.
K.C.O. Njemanze, SAN with him A.I. Ariche (Mrs.), K. Anyanwuebere Esq. and C.
H. Ajaere (Miss) for the 1st Respondent/Applicant in EPT/58.
I.J. Eguakun Esq. for the 2nd and 3rd Respondents/Applicants.
Emeka Ejiaba Esq. with Obinna Nnaka Esq. for the Appellant/Respondent.
Chief Bon-Nwakanma, SAN with him Prince Oriji Nwafor Orizu Esq., Emeka O.
Nwagwu Esq., A.I. Nwachukwu Esq., Obinna John-Agbasi Esq. and Kelechi Bon-Nwakanma Esq. for the 1st Respondent/Applicant in EPT/59.For Appellant
AND
Chief M. I. Ahamba, SAN with him C. A. Izerie (Mrs.), E. N. Khie Esq., C. C. Okoroafor Esq., T. E. Nwokedi Esq., A, E. Anuforom (Miss) and K. O. Ahamba Esq. for the Appellants/Respondents in EPT/60.
A.A. Malik Esq, for the 1st Respondent/Applicant in EPT/60.
Afam Obi Esq, for the 2nd Respondent/Applicant/Respondent.
Chika Udeozor Esq. for the Appellant/Respondent in EPT/55,
Okey Amechi, SAN, with him A. C. Okoraofor Esq. and Grant Osu Esq. for the 1st Respondent/Applicant in EPT/55.
C. N. Ijoma Esq. holding the brief of M. O, Onyeka Esq. for the 2nd Respondent/Appellant in EPT/55.
A.C. Chioma Esq. for the 3rd Respondent/Applicant in EPT/55.
O.O. Amuzie Esq. for the Appellants/Respondents.
Dr. Livy Uzoukwu, SAN with him are G. I. Chionye Esq., A. S. Kolawole Esq. for the 1st Respondent/Applicant.
C.N. Ijoma Esq. holding the brief of M. O. Onyema Esq. for the 2nd Respondent/Applicant in EPT/56.
A.C. Chioma Esq. for the 3rd Respondent/Applicant in EPT/56.
U. V. Enwere Esq. for the Appellant/Respondent in EPT/57.
N. A. Nnawuti Esq. with S. C. Imo Esq. and N. A. Anike Esq., J. A. Okereke Esq. for the 1st Respondent/Applicant in EPT/57.
O. N. Agbodike Esq. holding the brief of Chief C. O. Akaolisa Esq. for the 2nd Respondent/Applicant in EPT/57.
E. O. Onyema Esq., for Appellants/Respondents in EPT/58.
K.C.O. Njemanze, SAN with him A.I. Ariche (Mrs.), K. Anyanwuebere Esq. and C.
H. Ajaere (Miss) for the 1st Respondent/Applicant in EPT/58.
I.J. Eguakun Esq. for the 2nd and 3rd Respondents/Applicants.
Emeka Ejiaba Esq. with Obinna Nnaka Esq. for the Appellant/Respondent.
Chief Bon-Nwakanma, SAN with him Prince Oriji Nwafor Orizu Esq., Emeka O.
Nwagwu Esq., A.I. Nwachukwu Esq., Obinna John-Agbasi Esq. and Kelechi Bon-Nwakanma Esq. for the 1st Respondent/Applicant in EPT/59.
Chief A. T. Udechukwu Esq. for the 2nd and 3rd Respondents in EPT/59.For Respondent
