DR. WAKIL CHIBOK (PEOPLE DEMOCRATIC PARTY) V. PETER BIYE GUMTHA & ORS
(2011)LCN/4907(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of November, 2011
RATIO
ELECTION PETITION: ATTITUDE OF THE APPELLATE COURT TO APPEALS FROM THE DECISION OF THE TRIAL TRIBUNAL THAT HAS LAPSED ITS LIFE SPAN AS PROVIDED UNDER THE PROVISIONS SECTION 285(6) AND (7) OF THE 1999 CONSTITUTION (AS AMENDED)
It is however worthy of note that since this appeal emanates from the decision of the trial tribunal, it is pertinent on the part of this court to make a pronouncement on the issue raised suo motu concerning the life span of this appeal since the said issue is the Raision d’etre of this appeal, it has to be dealt with first before any other issue can be considered. Section 285(6) of the 1999 Constitution (as amended) reads as follows: “An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.” Again in Section 285(7) it has also been clearly stated thus: “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 delivery of judgment of the tribunal or Court of Appeal. In the case before us, the tribunal delivered its judgment on the 7th day of October, 2011. The Appellant however filed his notice of appeal within time on the 16th day of October, 2011, and his brief was dated and filed on the 24th October, 2011 and 25th October, 2011 respectively. Going by the provisions of section 285(6) of the Constitution (as amended), the 180 days allowed the Tribunal to deliver its judgment expires on 28th day of October, 2011. Learned counsel for the Appellant has urged this Court to examine the appellants grievances and albeit make a pronouncement on the error committed by the Tribunal. He however sought to withdraw prayer 3 of his relief seeking to remit the appeal back to the tribunal. It will be noted that all parties, the Appellant inclusive, agree that time indeed has lapsed and the trial can no longer be resorted to. The academic exercise which learned Counsel is calling on this court to embark on is indeed an exercise in futility. This court can neither afford the time nor the energy to carry on such a futile task considering the fact that it is presently inundated with a huge volume of election appeal matters awaiting decisions which will lapse if not taken timeouslv. In conclusion I hold the view that this appeal has lapsed having been caught up by effusion of the 180 days allotted by section 285(6) of the 1999 Constitution (as amended) and is hereby struck out. PER PHILOMENA MBUA EKPE, J.C.A.
CA/J/EP/HR/195/2011
JUSTICES:
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
DR. WAKIL CHIBOK (PEOPLE DEMOCRATIC PARTY) – Appellant(s)
AND
1. PETER BIYE GUMTHA
2. ALL NIGERIA PEOPLES PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory decision of the National and State Houses of Assembly Election Tribunal for Borno State (herein referred to as the “tribunal”, sitting in Abuja in Petition No. BO/EPT/NA/HR/1/2011 delivered on the 7th day of October, 2011.
The brief facts of the case are that the 1st Appellant was sponsored by the 2nd Appellant and contested in the election to the House of Representatives for Chibok/Damboa/Gwoza Federal Constituency held on the 9th day of April, 2011.
The 1st Respondent was candidate of the 2nd respondent in the said election and was declared and returned as winner of the election by the 3rd Respondent who conducted the election.
Dissatisfied with the result of the election, the Appellants on the 29th day of April, 2011 filed a Petition challenging the result of the election and seeking the relief set out in the Petition.
The 1st and 3rd Respondent filed their reply to the Petition on 20th May, 2011 while the 2nd Respondent filed his reply to the Petition on 1st June, 2011. The Appellants, who were served the 2nd Respondent’s reply to the petition on 2nd June, filed a Petitioner’s reply thereto on 8th June, 2011.
The 1st and 3rd Respondent filed their reply to the Petition on 20h May, 2011, while the 2nd respondent filed his reply to the Petition on 1st June, 2011. The appellants who were served the 2nd Respondent’s reply to the petition on 2nd June, 2011, filed a Petitioner’s reply thereto on 8th June, 2011.
On 15th June, 2011 the Appellants applied to the Tribunal for the issuance of pre-hearing notices as in forms TF007 and TF008. This application was served on all the Respondents on 16th June, 2011.
The Tribunal issued and served on all the parties Forms TF 007 and TF 008 and slated the pre-hearing session for 30th June, 2011. The 1st Respondent filed his answers to TF 008 on 23rd June, 2011.
However, security concerns in Maiduguri at that time forced the Tribunal on 22nd June, 2011 to adjourn sitting sine die before the pre-hearing session could commence. The Tribunal reconvened and recommenced hearing in Abuja on 5th August, 2011.
On 6th July, 2011 the 1st Respondent filed a motion in the Tribunal challenging the competence or otherwise of the reply of 8th June, 2011, the application of 15th June, 2011 and Forms TF 007 and TF 008. The 2nd Respondent filed a motion on 8th August, 2011 challenging the competence or otherwise of the application of 15th June, 2011, and Forms TF 007 and TF 008, while the Appellants filed a motion on 9th August, 2011 to amend the application of 15th June, 2011.
The three motions above were all contested, and the Tribunal heard arguments on the motions on 18th August, 2011, and reserved ruling on the three motions for 7th September, 2011 but ruling was eventually delivered in the three motions on 12th September, 2011.
In his ruling on the Respondents motions of 6th July, 2011 and 8th August, 2011 respectively, the Tribunal refused both motions waiver as grounds of refusal. While in his ruling on the Appellants’ motion of 9th August, 2011 the Tribunal Chairman categorically stated that the Respondents had by their actions waived their rights to complain on any perceived irregularities in the proceedings. Thereafter the Chairman of the Tribunal adjourned the petition for pre-hearing.
On 23rd September, 2011 the 1st Respondent filed a Notice of Appeal against the ruling of 12th September, 2011.
The pre-hearing session commenced on 21st September, 2011 and in the process the 1st Respondent orally raised again the issue of the competence or otherwise of the reply of 8th June, 2011 and the Chairman and both Members of the Tribunal directed counsel to address them on the same issue.
On 26th September, 2011 counsel addressed the Tribunal on the issue consequent upon which the Tribunal proceeded to deliver a ruling on 7th October, 2011 the subject of this Appeal.
Briefs have been exchanged by all the parties and learned counsel for the appellant in his submission before this court stated that notice of appeal was filed on the 16th day of October, 2011 with 10 grounds of appeal formulated. Appellant’s brief was filed on the 25th day of October, 2011. In his brief he raised 8 issues for determination out of the 10 grounds of appeal. Appellant’s reply brief to the 1st Respondents brief was deemed properly filed on the 14th day of November, 2011.
It was at this juncture and while Learned Counsel for the Appellant was making his submission that the Court called upon counsel to address it on the competence of this appeal. The Court however observed that the petition, the subject matter of this appeal was filed on the 29th day of April, 2011. Vide page 4 of the record. And further observed that in view of Section 285(6) of Constitution (as amended) the life span of an election petition is 180 days from the date of filing of the petition.
Learned Counsel for the Appellant, however submitted that the life span of 180 days is in respect of the tribunal of trial which must give its final judgment within 180 days but that this Court has sixty (60) days to pronounce on appeal before it. He further stated that they are two separate issues one distinct from the other.
Learned Counsel however acknowledged the fact that the issue before the Tribunal is spent, due to effusion of time, but he is asking the Court to make a pronouncement on the error committed by the tribunal. He further urged the Court to examine the grievances of the Appellant and proceed to make a pronouncement thereon. He then sought to withdraw prayer 3 of his relief which is seeking to remit the appeal back to the tribunal in view of the recent Supreme Court decision on the computation of time.
In reply, Learned Counsel for the 1st Respondent, M. S. Ibrahim Esq stated, that the petition is spent by virtue of section 285(6) of the Constitution (as amended). He further referred to the recent Supreme Court decision in the consolidated suits SC/272/2011 and SC/276/2011 between the PEOPLE DEMOCRATIC PARTY (PDP) and the CONGRESS FOR PROGRESSIVE CHANGE (CPC) and 41 others delivered on the 31st day of October, 2011. That this authority conspicuously provides that section 285(6) of the Constitution (as amended) is inalienable and referred to pages 17 and 18 of the unreported Ruling, and that on the strength of that, this Court is enjoined to dismiss the appeal in its entirety as having been overtaken by time.
Also replying in the same vein Learned Counsel for the 2nd Respondent, S. O. Babakeke submitted that in view of Section 285(5) and Section 285(6) for the Constitution (as amended) and the facts and circumstance of this appeal, the issue has become purely academic and hypothetical. He again stated that the issue is further compounded by the fact that learned Counsel for the appellant having removed the prayer to remit the matter back to the tribunal; there is no longer everything to deliberate on, any other argument being futile and academic. He then urged the court to strike out the appeal.
All Learned Counsel however proceeded to prosecute this appeal, by adopting their various briefs and making all relevant submissions. It is however worthy of note that since this appeal emanates from the decision of the trial tribunal, it is pertinent on the part of this court to make a pronouncement on the issue raised suo motu concerning the life span of this appeal since the said issue is the Raision d’etre of this appeal, it has to be dealt with first before any other issue can be considered. Section 285(6) of the 1999 Constitution (as amended) reads as follows:
“An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”
Again in Section 285(7) it has also been clearly stated thus:
“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 delivery of judgment of the tribunal or Court of Appeal.”
In the case before us, the tribunal delivered its judgment on the 7th day of October, 2011. The Appellant however filed his notice of appeal within time on the 16th day of October, 2011, and his brief was dated and filed on the 24th October, 2011 and 25th October, 2011 respectively. Going by the provisions of section 285(6) of the Constitution (as amended), the 180 days allowed the Tribunal to deliver its judgment expires on 28th day of October, 2011. Learned counsel for the Appellant has urged this Court to examine the appellants grievances and albeit make a pronouncement on the error committed by the Tribunal. He however sought to withdraw prayer 3 of his relief seeking to remit the appeal back to the tribunal.
It will be noted that all parties, the Appellant inclusive, agree that time indeed has lapsed and the trial can no longer be resorted to. The academic exercise which learned Counsel is calling on this court to embark on is indeed an exercise in futility. This court can neither afford the time nor the energy to carry on such a futile task considering the fact that it is presently inundated with a huge volume of election appeal matters awaiting decisions which will lapse if not taken timeouslv.
In conclusion I hold the view that this appeal has lapsed having been caught up by effusion of the 180 days allotted by section 285(6) of the 1999 Constitution (as amended) and is hereby struck out. No order as to cost.
CLARA BATA OGUNBIYI, J.C.A.: I agree.
MASSOUD ABDUL-RAHMAN OREDOLA, J.C.A.: I agree.
Appearances
K. J. Ntafa,
J. S. Mshelia &
D. Saleh For Appellant
AND
U. Tatama,
M. Ibrahim,
B. Kalleh
Amos Tori Esq., For Respondent
