HASSAN ANTHONY SALEH V. ONJEH DANIEL DONALD & ORS
(2012)LCN/5126(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of February, 2012
CA/MK/EPT/43/2011
RATIO
PRACTICE AND PROCEDURE: WHETHER A CAN TURN ITSELF INTO A LAW MAKING BODY
It is true, correct and incontrovertible that the Court cannot turn itself into a law making body that would amount to the usurpation of Legislative function. We cannot step into the shoes of the Legislators and do that which they ought to do, if it appears to us (Court) that they (Legislators) have done an incomplete job, we may observe the fact of the existence of a lacuna in the law and expect the Legislators will fill up the gap, but do no more. (Refer: A. G. Federation V. Abubakar (2007) 10 NWLR Pt. 1041 Pg. 192, INEC V. Musa (2003) ISC Pt. 1 Pg 106 @ 183). PER. M. B. DONGBAN – MENSEM, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF THE INTERPRETATION OF THE CONSTITUTION
The fundamental principle of the interpretation of the Constitution, (which is the ground norm is that no section or part of the Constitution should be interpreted in isolation when in search of the real intention of the Legislature in enacting the said provisions of the Constitution. (See Federal Republic of Nigeria v. Osaton (2006) 2 SCNJ 348 @ 369. Onu, (JCS) spelt out the principles in the following terms: “In interpreting statutory or constitutional provisions, such provisions should not be read in isolation of the other parts … the statute or Constitution should be read as a whole in order to determine the intendment of the makers …. (Refer also Ade V. Oyinwola (2000) 10 NWLR 167 Pt. 116 @ 215.” In the case of INEC v. Musa (2003) ISC Pt. Pg. 106 @ 183, Niki Tobi, (JSC) held that the golden and main rule of the interpretation of statutes, including the Constitution, is the intention of the law-maker. (See also Buhari v. Yusuf (2004) IEPR 1 @ 25). In the case of Strelim V. Gobang (2009) 12 NWLR Pt. 115 Pg. 435 Fabiyi, (JSC) advocated a “harmonious interpretation of the Constitutional provision which will tally with reason. My Lord (JSC) held that related sections of the Constitution ought to be interpreted together. (Refer: Rabiu V. The State (1980) 8 – 11 SC 130 @ 151 and Senator Abraham Adesanya V. The President of the FRN and Anor. (1981) 5 SC 112 @ 131, 321. And A. G. Lagos State v. Eko Hotels Ltd. and 1 or (2006) 18 NWLR Pt. 1011 Pg. 78 @ 458. The case of Tinubu V. IBM Securities Plc (2001) FWLR (Pt. 77) pg. 1003 @ 1023, Iguh, (JSC) re-echoed the need for a harmonious interpretation of the provisions of the Constitution and recommends a preference for such interpretation as would serve the interest of the Constitution and best carry out its object and purpose. Its relevant provisions must be read together and not dis-jointly and where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution. PER. M. B. DONGBAN – MENSEM, J.C.A.
JUSTICES
MONICA BOLANAAN DONGBAN – MENSEM Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
HASSAN ANTHONY SALEH Appellant(s)
AND
1. ONJEH DANIEL DONALD
2. ACTION CONGRESS OF NIGERIA (ACN)
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
5. RESIDENTIAL ELECTORAL COMMISSIONER (BENUE STATE)
6. THE RETURNING OFFICER, ADO/OGBADIBO/OKPOKWU FEDERAL CONSTITUENCY Respondent(s)
M. B. DONGBAN – MENSEM, J.C.A. (Delivering the Leading Judgment): On 27th day of January 2012, I pronounced the unanimous decision of this Court pursuant to section 9(8) of the Constitution of the Federal Republic of Nigeria (second alteration) Act No. 2, 2010. This appeal fell to me to write the lead judgment in which I now give the reasons for my decision in dismissing the appeal filed.
The Appellant filed this appeal against the Ruling of the National/State House of Assembly Election Tribunal Holden in Makurdi Benue State which assumed jurisdiction in the hearing and determination of the election petition of the Respondent upon an order of retrial ordered by this Court. The facts leading to this appeal as stated by the Appellant are as follows: (see Appellants brief Pg 24).
2.1 The Petitioners (now -1st and 2nd Respondents), on 29th of April, 2011 filed a Petition at the Registry of the National/State Houses of Assembly Election Tribunal Holden in Makurdi Benue State against the Declaration of the Appellant as winner of the 09-14-2011 National Election into the House of Representatives representing Ado/Ogbadibo/Okpokwu Federal Constituency of Benue State by the 5th Respondent.
2.2 In answer to the petition, the Appellant filed his reply to the petition as well as took out a Notice of Preliminary Objection to the effect that the tribunal lacks the jurisdiction to entertain the petition.
2.3 The trial of this matter however commenced on the 4th of July, 2011 after the Tribunal decided to take the Notice of Preliminary Objection along with the Final Address. On the 4th of August, 2011 the Tribunal heard the preliminary objections and took final written addresses in respect of the trial.
2.4 Even though the Tribunal upheld the objection and struck out the petition, it still considered the substantive suit and arrived at the same conclusion after doing so.
2.5 Aggrieved by the decision of the trial Tribunal, the 1st and 2nd Respondents appealed to the Court of Appeal, Makurdi Judicial Division which heard the appeal and delivered its judgment on the 28th day of October, 2011 allowing the appeal, setting aside the decision of the trial Tribunal and ordering that the petition be heard by another panel of the National Assembly Election Tribunal.
2.6 Upon the judgment of the Court of Appeal dated 28th day of October, 2011 hearing notices were served on parties for the hearing of the petition to continue on the 14th day of November, 2011.
2.7 On 11th November, 2011, the Appellant filed a motion dated 9th November, 2011 challenging the jurisdiction of the Tribunal to hear the petition on the ground that by virtue of section 285(6) of the 1999 Constitution (as amended) the 180 days from the date of filing of the petition within which it must deliver its judgment had already lapsed with effect from the 27/10/11. The motion was heard on 17th November, 2011.
2.8 In its ruling delivered on 29/11/11 the tribunal dismissed the Appellant’s motion. This appeal is against the ruling.
The Appellant formulated two issues for determination in this appeal from the four grounds of appeal filed (see 123-127 of the record for this appeal) The issues are:-
APPELLANT ISSUES:
1. Whether the Construction of section 285(6) of the 1999 Constitution (as amended) by the Tribunal to the effect that an order for retrial by the Court of Appeal revives the petition, does not amount to a judicial amendment or judicial contravention of the express provisions of Section 285 (6) of the Constitution (as amended). (Grounds 1, 2 and 4)
2. Whether the trial Tribunal was right in dismissing the application of the Appellant on the ground that the order of retrial by the Court of Appeal makes it mandatory for the tribunal to hear the petition even if there is any feature in the petition that robes the Tribunal of jurisdiction. (Ground 3)
The 1ST and 2ND Respondents formulated a lone issue as follows:-
Whether the lower Tribunal in the peculiar and special circumstances of this case was not right in its application of section 285(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the way it did to the effect of peculiar and special circumstances of an instance where after a full trial conducted within Section 285(5) the Constitution of the Federal Republic of Nigeria 1999 (as amended) the said trial is nullified and a fresh trial ordered.
Although there were other Respondents who were duly represented by their learned Counsel in Court, they filed no briefs.
The issues formulated by the Appellants shall be those upon which this appeal shall be determined.
The learned Counsel for the Appellant sets out the provisions of section 285(6) which provision is said to stipulate the life span of an election petition filed under the Electoral Act 2010 (as amended). Upon the authority of the case of Maitsidua V. Chidari (2008) 16 NWLR Pt. 1114 pg. 553 @ 575, the learned Counsel submits that the wordings of section 285(6) of the 1999 Constitution are plain, simple, unambiguous and crystal clear and should be accorded their plain, simple and natural meaning which will certainly be that the petition has by the operation of law expired and as a result, the Tribunal lacks the jurisdiction to determine same.
Learned Counsel submits that the said section had been interpreted by the Supreme Court in the very recent unreported judgment in the consolidated appeals No SC. 333/2011, SC. 333/2011 & SC. 352/2011 between Alh. Kashim Shettima & Anor V. Mohammed Goni and others, (pages 21-24) Also cited and relied upon is the decision of the Supreme Court in the unreported case in the consolidated appeals No. SC. 722/2011 and SC. 276/2011 between PEOPLES DEMOCRATIC PARTY (PDP) vs. CONGRESS FOR PROGRESSIVE CHANGE & 41 ORS (unreported) dated 31/10/2011, interpreted section 235(5), (6) and (7) and held, per Onnoghen, (JSC): that of Alero v, Bagudu etc. of the Sokoto Division was aslo cited however, very unreported, the judgment was not available to us.
Following these decisions of the Apex Court, learned Counsel submits that the wordings of section 285(6) are mandatory and not permissive as they admit of no discretion on the part of the Court or Tribunal and the Tribunal was under a duty to apply them. It is also the case of the Appellant that an intervening event between the accrual of a cause of action cannot have the effect of pushing the cause of action forward. The case of Humber A. G. Benue state (2000) 3 NWLR Pt. 649 pg. 419 @ 439 is cited in support. Counsel maintains that the time provided for the hearing and determination of the petition as per the provisions of section 285(6) of the 1999 Constitution (as amended) continued to run during this periods. That the petition which had thereby abated could not be revived by the order of this court as the Tribunal decided. The cases of Falae v. Obasanjo (1999) 6 NWLR pt, 6000 pg. 283 at 290, A. G. Federation V. Abubakar (2007) 10 NWLR (Pt. 1041) Pg. 1 @ 92, Action Congress v. INEC (2007) 12 NWLR (Pt, 1048) P. 222 @ 314-315 are all relied upon to buttress the argument of the Appellant on the literal principle of interpretation of section 285(6).
It is the considered view of the learned Counsel for the Appellant that the Tribunal erred when it rejected or ignored the date of the filling of the petition for the computation of the 180 days as provided by section 285(1), (3) & (4) and section 285(5) which sets 21 days within which to file an election petition after the date of the declaration of the result of the election. That the tribunal fell into a grave error when it failed to follow and apply the decision of the Supreme Court in the consolidated (unreported) Appeal No: SC. 272/2011 and SC. 276/2011 between PDP v. CPC and Dr. Goodluck Ebele Jonathan v. CPC, which strictly interpreted and applied the 60 days fixed for determining election appeals provided for in section 285(7) of the constitution in construing the 180 days. To hold otherwise, and thereby extend the time, maintains the learned counsel would amount to judicial legislation. Reliance is again placed on the (unreported) judgment of the apex court in Alh. Kashim Shettima & Anor v. Mohammed Goni and others on the 31/10/2011 in PDP v. CPC supra, (see also Ogbehor v. Danjuma Mallah v. Kachalla & Lamido V. Turaki).
The case of Alhaji Kashim Shettima and Anor v. Alh. Mohammed Goni and 4 ors (unreported, consolidated appeals No, SC. 332/2011 SC. 333/2011 and SC. 352/2011). Onnoghen, (JSC) held that the provisions of section 285 (6) are clear and unambiguous and must be given their ordinary meaning. I am bound by this decision and I find nothing mysterious about the said Constitutional mandate which was further expounded in sections 134 (1-4) and 142 of the Electoral Act 2010 (as amended).
Upon these principles the learned Counsel argues that the hearing of the petition was not what section 285(6) sought to address but rather addresses the jurisdiction of the tribunal which must deliver its judgment after 180 days from the date of filling the petition.
The tribunal is therefore wrong in assuming jurisdiction to hear the petition afresh in spite of the expiration of 180 days and thereby extending the time provided by section 285(6). Responding, the learned Counsel for the 1st and 2nd Respondents describes the argument of the Appellant as a misconception of the decisions of the Supreme Court in Alhaji Kashim Shettima & Anor V. Alh. Mohammed Goni, also Peoples Democratic Party (PDP) and Congress for Progressive Change (CPC and 41 Ors (unreported.) SC. 272/2011 & SC.276/2011). The learned counsel maintains that the invitation extended to the Supreme Court in the said case of Shettima v. Goni was to strictly interpret section 285(6).
Learned Counsel submits and makes the distinction between the two cases in that, in the instant appeal, there was first compliance with the provisions of section 285(7) of the Constitution as amended but not so in Shettima’s case. In other words, in Shettima’s case, the filling and hearing of the appeal was yet to be concluded within 60 days when the time expired and the apex Court held that time could not be extended. In this appeal on the contrary, the filling, hearing and judgment were all concluded within the 180 days of section 285(6). Upon an appeal after the conclusion and determination of the petition, the entire proceedings were set aside as null and void. A fresh trial was ordered by the Court, learned Counsel submits that the first trial, its entire proceeding and the judgment cannot be clothed with the toga of finality to bar subsequent or fresh trial where particularly as in the instant case, the said trial and its entire proceeding where found not to have been conducted within the ambit of the law. This is because the intention of the law maker is that the trial and the proceeding contemplated to be conducted within 180 days will be done within and in accordance with the law. I agree. For if it were to be so, the said trial and its entire findings would not have been set aside (Refer: Ekpo v. Calabar Local Govt. & Anor 1993 NWLR PT. 281 PG. 324 @ 347). Submits that interpreting and applying section 285(6) of the Constitution of the Federal Republic of Nigeria (1999) as amended in narrow, strict and iron cast manner as being canvassed by the Appellant here will not only lead to absurdity but result to injustice which the order of a retrial sought to remedy. Learned counsel cites Ojukwu v. Obasanjo (2004) All FWLR PT. 222 1666 @ 1701 – 1702 PARAG. F. A. where the Supreme Court per Onu, (JSC) held:
“thus, where literal interpretation of a word or words used in any enactment will result in an absurdity or injustice, it will be the duty of the Court to consider the enactment as a whole with a view to ascertaining whether the language of the enactment is capable of any other fair interpretation, or whether it may not be desired to put a secondary meaning on such a language or even so adopt a construction which is not quite strictly grammatical,” (Refers also to the decision of the Calabar Division of this court in appeal No. CA/NAE/257/2011 unreported judgment delivered on Thursday, November 17th, 2011 as per Tur, (JCA))
The best approach, maintains the learned Counsel is to construe and apply sections 285(6), 36(6) and 246 all of the Constitution of the Federal Republic of Nigeria (1999) as amended together in order to get the intention of the drafters of the Constitution. (Refer: Federal Republic v. Ese (1981) 2 N. C. R. 167 @ 175-179.) which held that the constitution is a single document and every part of it must be considered as far as relevant in order to get the true meaning and intent of any particular portion of the enactment.
It is further the Counsel’s submission that once a petition has been struck out or dismissed or is ordered to be retired, that order has invariably revived and given a new life’ Section 285(6) of the Constitution of the Republic of Nigeria (1999) as amended can no longer be relevant for the purpose of computation of time within which judgment is to be delivered. The fresh 180 days will start to run from the date the right of the 1st and 2nd Respondents to have the petition heard de novo is restored by the order of the Court. (Refer: Nwakwo v. Yar’dua (2011) 13 NWLR PT. 1269 81 @ 132, Oladipo v. Oyelami (1989) 5 NWLR PT. 120 PG 2010 and BABATUNDE V. OLATUNJI & ORS (2000) 3 NWLR PT. 646 557 @ 573.)
Thus, submits the learned Counsel, the tribunal, armed with the positive and clear order of this Court allowing the appeal in whole and setting aside the entire findings of the first tribunal and ordering the petition be heard on the merit had no choice in the matter. (See Oladipo v. Oyelami (1989) 5 NWLR Pt. 120 @ 221 Kutigi, (JCA)) (as he then was) held;
“it is well settled that court’s orders and decision are meant to be obeyed and carried out subject only to stay of execution which is itself an order of court. No court will knowing act in vain.”
The learned Counsel urged us to follow the decision of the Calabar division and dismiss this appeal.
I agree with the forceful submission of the learned Counsel for the Appellant that in the circumstance of this case this Court cannot legislate.
It is true, correct and incontrovertible that the Court cannot turn itself into a law making body that would amount to the usurpation of Legislative function. We cannot step into the shoes of the Legislators and do that which they ought to do, if it appears to us (Court) that they (Legislators) have done an incomplete job, we may observe the fact of the existence of a lacuna in the law and expect the Legislators will fill up the gap, but do no more. (Refer: A. G. Federation V. Abubakar (2007) 10 NWLR Pt. 1041 Pg. 192, INEC V. Musa (2003) ISC Pt. 1 Pg 106 @ 183)
The fundamental principle of the interpretation of the Constitution, (which is the ground norm is that no section or part of the Constitution should be interpreted in isolation when in search of the real intention of the Legislature in enacting the said provisions of the Constitution. (See Federal Republic of Nigeria v. Osaton (2006) 2 SCNJ 348 @ 369. Onu, (JCS) spelt out the principles in the following terms:
“In interpreting statutory or constitutional provisions, such provisions should not be read in isolation of the other parts … the statute or Constitution should be read as a whole in order to determine the intendment of the makers …. (Refer also Ade V. Oyinwola (2000) 10 NWLR 167 Pt. 116 @ 215.”
In the case of INEC v. Musa (2003) ISC Pt. Pg. 106 @ 183, Niki Tobi, (JSC) held that the golden and main rule of the interpretation of statutes, including the Constitution, is the intention of the law-maker. (See also Buhari v. Yusuf (2004) IEPR 1 @ 25).
In the case of Strelim V. Gobang (2009) 12 NWLR Pt. 115 Pg. 435 Fabiyi, (JSC) advocated a “harmonious interpretation of the Constitutional provision which will tally with reason. My Lord (JSC) held that related sections of the Constitution ought to be interpreted together. (Refer: Rabiu V. The State (1980) 8 – 11 SC 130 @ 151 and Senator Abraham Adesanya V. The President of the FRN and Anor. (1981) 5 SC 112 @ 131, 321. And A. G. Lagos State v. Eko Hotels Ltd. and 1 or (2006) 18 NWLR Pt. 1011 Pg. 78 @ 458.
The case of Tinubu V. IBM Securities Plc (2001) FWLR (Pt. 77) pg. 1003 @ 1023, Iguh, (JSC) re-echoed the need for a harmonious interpretation of the provisions of the Constitution and recommends a preference for such interpretation as would serve the interest of the Constitution and best carry out its object and purpose. Its relevant provisions must be read together and not dis-jointly and where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution.
Fortified with these pronouncements by the apex Court, I dare to interprete the almighty section 285(6) of the Constitution.
The provisions of section 285 are cast in mandatory terms as follows:
285(5) An election petition shall be filed within 21 days after the date of declaration of result of the election.
285(6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filling of the petition.
285(7) An appeal from a decision of an election tribunal or Court shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal.
The Electoral Act as amended also has a time line provision made in rather uncompromising terms – as follows: Section
134 – 1) An election petition shall be filed within 21 days after the date of the declaration of results of the election.
(2) An election Tribunal shall deliver its judgment in writing within 180 days from the date of filing the petition.
(3) An appeal from a decision of an Election Tribunal or Court shall be heard and disposed of within 90 days from the date of delivery of judgment of the Tribunal
There is no proviso to the vital provisions of section 285 of the Constitution to accommodate human exigencies. No provision is made in the event as in the instant case, an order of retrial is made. There is however, always a remedy in law where there exists a right. (See Per Uwais, (CJN) in Savannah Bank (Nig) Ltd. V. Ajilo (2001) FWLR Pt. 75 Pg. 513 @ 542.
The Electoral Act has, by section 142 adapted the general Constitutional right of the citizens of Nigeria to appeal. In other words, the rights of appeal along with all the attendant consequential orders are reserved and still repose with this Court.
It follows therefore that in considering an appeal in an election matter, the powers of the Court as stated in Section 6(6)(b) of the Constitution and 15 of the Court of Appeal Act 2010 (as amended) remains intact.
A community reading of the provisions of the Constitution (as amended) pertaining to the right of citizens to appeal, section 285(6) inclusive, discloses that the only limitation placed by section 285(6) is that of time. In other words, this Court still retains its powers in all other respects as conferred by section 240 and expounded in the Court of Appeal Act 2010 (as amended). It therefore stands to reason that this Court, in the exercise of its jurisdiction in compliance with the provision of section 233(6) of the Constitution as expounded in section 134 of the Electoral Act, is at liberty to employ and exercise its powers under section 15 of the Court of Appeal Act. The only exception is where the mandatory days of 180 have lapsed, there is no remedy. Even if the only evidence placed before the Tribunal were all documentary, a situation where this Court can step into the shoes of the Tribunal, under section 15 of the Court of Appeal Act, we must refrain from so doing. (See Shettima’s case). It is my humble opinion that this Court cannot extend the 180 days in anyway once a petition has lapsed before a Tribunal. However, once a decision has been taken and an appeal filed, this Court is obligated to hear and determine the appeal within 60 days and make any order it deems requisite except that of extending time beyond 180 days for the Tribunal and 60 days for this Court. Thus, can Section 285(6) be interpreted strictly in terms of the clear and unambiguous words used in drafting the said Section? Yes and the section says at the expiration of 180 days an election petition filed within 21 days of an election must be concluded with a written judgment of the Tribunal.
Now, how does this affect the right of parties before the Tribunal? The answer will place the instant appeal in prospective.
The process starts with an election which produces the candidate who is declared the winner by INEC. If the other contestants feel aggrieved, they must file election petitions within 21 days of the declaration of the results, failure to do so within the stipulated time forecloses any compliant about the result. Once filed within time other processes commence leading up to the hearing and the judgment of the Tribunal which must be delivered within 180 days. The petition can be determined in less than 180 days but not more than 180 days. In other words, whatever witnesses the petitioner and Respondents have to call, such must conclude on such terms as are clearly provided for in the Schedule and the Tribunal must deliver its Judgment before the expiration of 180 days. Judgment in these terms means a decision of the Tribunal including Rulings.
The question that would arise here is whether the tribunal had delivered its judgment in the petition in compliance with the provisions of Section 285(6) of the Constitution, Now, it may be observed that the word “judgment” was used in the provisions of Section 285(6). However, the word “judgment” was not defined by the Constitution but Section 318(1) of the Constitution defines the word “decision” thus:
“Decision’ means, in relation to a Court, any determination of the Court and includes judgment, decree, order, conviction, sentence or recommendation.”
This definition was amplified by Onnoghen, (JSC) in the terms:-
“Decision as defined in Section 318 of the 1999 Constitution is as it relates to a Court (and I may add tribunal) and it is clear that it is synonymous with the determination of the Court in the form of judgment, decree, order, conviction, sentence or recommendation. In other words, it is my considered view that the word “decision” therein means the same as a determination, judgment, decree, order, conviction, sentence or recommendation of a Court or tribunal, and I may add any quasi judicial tribunal, authority or body… I hold the view, therefore, that there is no legally cognizable difference between the words “decision” and “judgment” as used in section 285(7) of the 1999 Constitution as the learned senior Counsel for the Appellants would want us to believe and hold.
It is also of much importance to note that the words “decision” and “judgment” as defined in the said section 285 (7) of the 1999 Constitution applies generally to the determination of a Court either in an interlocutory proceeding or in the final decision. The definition admits of no distinction between or trial can make an order either in an interlocutory proceeding or in the final decision and it would still be an order or decision or judgment of the Court by the provisions of section 285(7) of the 1999 Constitution.
Thus once judgment is delivered within 180 days, the Tribunal is done. If however, hearing continues beyond 180 days, the petition abates at the expiration of 180 days and the Tribunal must take its hands off the petition which is irrevocably/irresustainably dead without remedy, the tribunal becomes functus officio. At the expiration of 180 days neither the Tribunal nor this Court can extend the time or the life span of the petition. The candidate returned as duly elected by INEC can no longer be challenged.
The expiration of 180 days from the date of filling the petitions ends an era in the life span of the election that is Shettima vs. Goni’s case.
If a tribunal enters a judgment which displeases one of the candidates, another era begins with the filling of an appeal. Once an appeal is filed, a block of 60 days begins to run from the date of the pronouncement of the judgment by the Tribunal. When the appeal is heard and concluded within the stipulated 60 days, another era is ended.
In matters which end at the Court of Appeal, there is no further remedy, if this Court affirms the decision of the Tribunal. If the decision of the Tribunal is over turned, and an order of retrial is made as in this appeal, another era begins before the Tribunal. In the interest of justice and fair play, an order of retrial is often concluded with the consequential order of the fresh trial to be conducted by a differently constituted Tribunal.
The peculiar nature of this order of retrial is that it does not affect the filling of the petition which initiated the proceedings. It is the tribunal which has erred in such fundamental ways that have infringed on the rights of the petitioner. The petitioner must not be shut out. The law demands that in such circumstances, he must be heard on the merit.
My learned brother Garba, (JCA) of the Calabar Division, in the appeal No. CA/C/NAEA/297/2011 between: Senator Ita Solomon Gang V. I. Obong Nsima Umoh and 3ors. (Unreported Judgment delivered on Thursday, the 26th day of January, 2012) puts it this way:-
“In fact, the basis of the new trial on the merit was not connected and affected by the date of filing the petition but the order by this Court which has nothing to do with the provisions of sections 285(6), as demonstrated earlier, and sp cannot be said to have extended the period of 180 days provided therein. The Court did not pretend or give the impression that it extended the said period but very clearly showed that it was exercising the legitimate and unquestionable jurisdiction vested in it by the Constitution. Which having done so in no certain terms, the tribunal had the constitutional duty to give effect to enhance the order made by commencing the trial of the petition as ordered as provided for by the provisions of Section 28.7(2) of the Constitution(as alerted)…”
I agree entirely
I make bold to state that the provisions of section 36(1) of the 1999 constitution (as altered) must not be super-imposed on the provisions of 285(6) of the 1999 which is a special provision made to regulate the determination of election adjudication. To fall back on the provision of section 36(1) would be to plunge the nation back into the former days of endless election litigation. The special provisions of section 285(6), (7) and (8) of the Constitution (as amended) are sui generis, in a class of their own, it has provided the time frame within which election matters must be determined.
Standing solo, section 285(6) is cast in very mandatory terms and why not? Election Tribunals have in the past, prior to the provisions in Section 285(6), heard election matters in perpetuity. Section 285(6) comes in to say no, election matters must be heard and determined within 180 days or abated. How is that a problem? 180 days is the maximum period allowed from the date of filling the petition, within which to hear and determine an election petition filed challenging the declaration of a person by INEC as the duly elected candidate in an election conducted at a time set aside for such exercise. To ensure compliance with the provisions of section 285 (6) of the constitution which is expounded in section 134 (1-4) of the Electoral Act, a time-compact rule of procedure is also put in place in the schedules to the Electoral Act, These provisions have been authoritatively addressed in the division of the supreme court in Shettima’s which has been cited and relied upon. This court is bound by the said decision. The learned counsel to the Appellant emphatically refers to the decision of the Supreme Court in the case of Peoples Democratic Party (PDP) and Congress for Progressive Change (CPC and 41 ors (unreported.) SC. 272/2011 & SC. 276/2011) also Alhaji Kasim Shettima, Alhaji Zanna Umar Mustapha v. Alhaji Mohammed Goni and 4 ors (unreported) dated 31/10/2011, interpreted section 285(5), (6) and (7) where Onnoghen, (JSC) held as follows:
By the provisions of section 285(6) (b) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as the 1999 Constitution as amended/altered).
An election tribunal shall deliver its judgment in writing within 180 days from the date of filing the Petition.”
It is my considered view that the three provisions quoted above supra are clear and unambiguous and by the principles of interpretation of statute, to the effect that where the words of any statute are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the constitution or statute, effect must be given to those provisions without recourse to any other consideration, they ought to be so treated.
By the ordinary meaning of the words used in the provision supra, it is clear that:-
1. An election tribunal must, of necessity deliver its judgment in writing in an election petition within 180 days from the date of the filling of the petition.
2. An election petition and an appeal arising there from must be given accelerated hearing and must take precedence over all other cases or matters before the tribunal or Court.
3. An interlocutory appeal shall not operate as a stay of proceedings nor shall form a ground for stay of proceedings before a tribunal.
All the above provisions emphasise the essential nature of an election matter either at trial or on appeal which is that it is an urgent matter. The urgency involved in election matters advised the National Assembly to fix a time limit of 180 days in section 285(6)(b) of the 1999 Constitution (as amended) while section 142 of the electoral Act, 2010 (as amended) grant accelerated hearing to election petition and/or appeals arising therefrom.”
With due respect, I find nothing in this decision which states that this Court is incompetent to make an order of re-trial in the exercise of its powers under the Constitution to give effect to its decision, The two decisions cited and relied upon by the Appellants decide the issue of elongation of the 60 days for the hearing and determination of appeals from the election tribunal by this court. The apex court made no pronouncement as to whether or not this Court can remit a case back for a trial de novo which in fact is the crux of this appeal.
Let me also point out that this appeal is not a challenge of the decision of this court made on the 28th Oct. 2011. That order has been complied with by the Tribunal which resumed the trial of the matter de-novo and that is why, it was able to write the Ruling which is now being challenged before this Court.
Thus the issue before this Court now is not the validity of the order of a trial de novo. No, the issue is that of time. It is strictly a question of limitation of time which is an essential element in election matters, Right through the amended electoral Legislation, time has been placed at high pedestal in the constitution. (As amended) and so also the 2010 Electoral Act (as amended).
There is no proviso to section 285 of the Constitution nor has section 134 of the Electoral Act 2011 (as amended), No doubt, this is rather too strict, but we are developing our electoral Jurisprudence. While so doing, the principles of separation of powers must be respected. Each of the three arms of government must be allowed to exercise their powers as they deem fit.
Sections 285(6) of the Constitution and 134 of the Electoral Acts are both children of necessity, so, let them be. The Courts must apply them as they are. (See per Aderemi, (JSC) Action Congress v. INEC (2007) 12 NWLR Pt. 1048 Pg.222 @ 314) in an attempt to build and develop, there must be sacrifices.
A fresh trial order is not barred but the fresh trial must be concluded within the stipulated 180 days of section 285(6). If the situation were otherwise, there would have been a proviso to section 285 (6) excluding the application of the said section to cases in which orders of trial de novo are made. There is no such proviso! It is however not the responsibility of this Court to fill in the Legislative lacuna. We cannot even by a consequential order, amend the clear provision of the Constitution which has been further amplified in section 134 of the Electoral Act, 2010 (as amended).
A careful perusal of the 2010 Electoral Act discloses a consistent and palpable attempt to place time within a nonnegotiable con in the determination of electoral matters. Why? past experiences led election matters to outlive the tenure of the offices contested for. In the amended Electoral Act of 2007, there was no time limit within which election matters were to be concluded. Hell was let loose, parties called one hundred witnesses in order to bite deep into as much of the four year tenure as Possible!
Distressed at the endless electoral litigation which inundated our nation in 2003 and 2007, the legislature in its wisdom elected to insert some amendments with a view to giving some certainty to the electoral process. A respite was sought by the alteration of the Constitution of Nigeria of 1999 and amendment of the Electoral Act which introduced a time line. The amendment produces section 285.
We are still experimenting – see per Onnoghen (JSC) in the case of Shettima V. Goni.
The provision of section 285(6 -7) is a part of the Constitution added by the instrument of amendment, a child of necessity in the hands of the Legislator, We cannot, out of sympathy; amend a bad or harsh law. (See Falae v. Obasanjo (1999) 6 NWLR pt. 606 pg, 283). In the Supreme Court, in the case of Peoples Democratic Party (PDP) Vs. Congress For progressive Change & 41 Ors (unreported) dated 31/10/2011, interpreted section 285(5), (6) and (7) and held, per Onnoghen, (JSC):
“I hold the considered view that in terms of time to do anything relating to an election petition or judgment thereon or arising therefrom, it is the above provisions that apply and that no court has the power to extend the times as constitution provided in section 285 (5) (7) of the 1999 Constitution (as amended), by interpretation of the sections or otherswise”. (See pages 17-18 of the judgment).
The Constitution is the ground norm of the law of our great nation Nigeria. Provisions contained therein are expounded in the relevant laws pertaining to each provision of the Constitution. In the instant appeal, the relevant law is the Electoral Act 2010 which was also amended to bring its provisions in tune with the alterations in the Constitution. Section 134 of the said Act as amended clearly set out in its subsections the specific time within which each stage of election litigation shall be taken and concluded. The purpose is to create predictability and put an envisioned end to electoral litigation once commenced. This is requisite because the good people of Nigeria expect their elected representatives to be at work in their respective legislative houses, not in Courts chasing after cases which last longer than the tenure of the office contested for.
The Schedule to the Electoral Act and the Practice Directions also further bear provisions which stimulate accelerated hearing of electoral matters, (Parag. 55 of the 1st Schedule referred)
We have been invited to interprete and apply the provision of section 285 (6) of the constitution. The issue to be determined in this appeal is whether an order of a trial de novo is an order to elongate the 180 days of section 285(6) of the Constitution. Straightforward, I will answer this question in the negative. The reason is found in section 134 (1-4) of the Electoral Act which has clearly compacterlise the time for each stage of electoral adjudication. Time is not let loose. The tribunal has 180 days within which to hear and determine an election petition. An order of re-trial does not move an election matter from the provisions of section 285(6) to section 36(1) of the Constitution. No! Trial must be concluded within 180 days otherwise, the petition shall abate without remedy due to effluxion of time.
Accordingly, I do not subscribe to the argument that the interest of fair hearing requires an importation of the provisions of section 36 of the Constitution, Section 285(6) does not also take away the powers of this Court to order retrial de novo and on the merit, of a petition not properly heard and determined by the tribunal. An order of a trial de novo is an attribute, a hand maid of justice made/donated by law to this Court to enhance the exercise of the powers of this Court to give directives to the Courts below or for the Supreme Court to give directives to this Court as to the manner of the conduct and hearing of a case not conducted in accordance with the law, I am fortified in this view, by the decision of the Supreme Court in Shettima V. Goni and PDP v. CPC wherein, the Apex Court.
It is my considered opinion that the issue is the interpretation and application of section 285 (6) of the 1999 Constitution (as amended)
The general principle of interpretation is that where the words used in a statute are clear and unambiguous, they must be given their plain and ordinary meaning. (Refer: Kalu v. Odili (1992) 6 SCNJ 76, African Newspapers Ltd. FRN (1985) Although section 285(6) of the Constitution and section 142 of the Electoral Act confer a special jurisdiction on this Court to determine election matters timeously in precedence over all other cases or matters, the said provisions do not thereby curtail nor take away the powers of this Court conferred by section 233 of the Constitution nor section 15 of the Court of Appeal Act which repose wide Powers in this Court.
It must be emphasized that no special/additional provision is made in the 1999 Constitution (as amended) or in the Electoral Act of 2010 (as amended), conferring a special jurisdiction on the Court of Appeal to hear and determine appeals arising from Election Tribunals. What this means is that the jurisdiction of this Court to hear and determine appeals from the Election Tribunals remain same as conferred by section 233 of the 1999 Constitution (as amended).
Equally intact is the inherent jurisdiction conferred on this Court by section 6 (6) (b) of the same Constitution. The fundamental alteration made which touches on the jurisdiction of this Court is that of section 285 (7) which requires the Court to hear and determine election matters within 60 days (sixty days) as against the 90 days provided for by section 294(1) of the Constitution. Section 142 of the Electoral fortifies this humble opinion of mine by alluding to the provisions of section 294(1) in terms of accelerated hearing and precedence of election matters over other cases. Thus, the jurisdiction of the Court of Appeal has been redefined only in terms of time within which appeals in election matters must be determined as provided in section 285(7) of the Constitution.
Section 142 of the Electoral Act is a clear expression of the intendment of the Legislature to reserve the general appellate jurisdiction and powers of the Court of Appeal as it pertains to the time-line determination of electoral matters, In other words, section 285 cannot be interpreted as curtailing the powers of this Court to give effect to its decisions in the determination of the appellate rights of the citizens of Nigeria as it deems fit to make.
Thus, the time line/bar provisions of section 285 have not in any way streamlined the order that this Court can make what is streamlined is the time within which the petitions and appeals shall be heard and determined. Accordingly, section 294 of the Constitution which provides 90 days within which a Court shall deliver its judgment after the final address of the learned Counsel both side has been reduced to 60 days by section 285(7).
It would appear absurd to hold that because the judgment of the Tribunal must be rendered within 180 days of the filling of the petition, all legitimate orders of this must be ignored. There is no feature of section 285, expressed or implied, which suggests such impunity in a profession of constituted, well regularized and institutionalized hierarchy like the legal profession. And least of all in the judiciary!
No doubt, the aspiration to the timeous determination of electoral matters filed in Courts are these of many well meaning Nigerians such aspiration must however not lead as to anarchy where established principles are thrown to the dogs. In favour “rushed justice”. I hasten however to add that I find nothing fraudulent in a litigant who approaches this Court with an argument which he believes enhances his situation in an appeal.
Applications may be made; it is for the Courts to interprete and apply the law to the facts. If litigants stay away and do not make radical demand of the Courts our laws will never develop.
I equally do not subscribe to the argument that the decision of this Court will be rendered nugatory in an election petition if it is held that a petition abates and cannot be heard for effluxion of time as argued by the learned Counsel to the 1st and 2nd Respondents. The genesis of all election cases is the conduct of an election which produces a winner and such an election remains valid until nullified by the order of a Court. If before such an order is made, the petition abates by effluxion of time, the declaration of INEC stands tall and enforceable. The maxim in law is omnia praesummatur esse acta i.e. all things are presumed to have been correctly done. It is termed the presumption of regularity. (See Aliu Bello v. A.G. of Oyo State (1986) 12 SC. 1)
I find the argument of the Appellant in this appeal unpalatable and unconvincing
In view of the determination of issue one, I find a determination of issue 2 of the Appellant unnecessary. I find this appeal totally without merit and it is hereby dismissed.
The tribunal shall proceed with the determination of the petition on the merit as order by this Court.
A cost of N50, 000 is hereby awarded to the 1st Respondent and against the Appellant. It is hereby so ordered.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read in advance the leading judgment of my learned brother, M.B. Dongban-Mensem, J.C.A, which I find illuminating and it critically examined the issues therein. I am in complete agreement that the appeal should be dismissed for lacking in merit.
I only want to add that for proper comprehension and dissection of the provisions of section 285 sub-section (6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and determination of the issues sifted herein, it is desirable that they be approached from three different perspectives.
The first approach is by drawing an analogy between the said section 285(6) and section 294(1) of the 1999 Constitution (as amended) which prescribed the period within which the Courts created by the said Constitution of 1999, shall deliver their judgments in the matters or suits before them, and, which l am entitled to take judicial notice of, by virtue of section 122 of the Evidence Act, 2011; secondly, by considering the said section 285(5) vis-a-vis the provisions of section 285(7) that granted the appellate Courts a period of sixty days to hear and determine appeals emanating from the decision or judgment of the Tribunal and the constitutionally guaranteed right of appeal of the party who is dissatisfied with the decision or judgment of the Tribunal and, thirdly, by identifying the implications of the provisions of section 287(1) of the said Constitution which commanded every Court, authority or person to enforce the decision of the Supreme Court.
Now, considering the first approach and, for an in-depth appreciation of the wording of section 285(6); by drawing an analogy between the said section 285(6) and section 294(1) of the Constitution of the Federal Republic of Nigeria (as amended) which may have a burning effect of exposing the intendment of the Law makers and aid in ascertaining the purports of the two sections, it is imperative and, of immense necessity, to reproduce hereunder, the provisions of the said two sections thus:
“285 (6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the Petition”.
“294 (1). Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”.
There is clear manifestation in sections 285(5) and 294(1) respectively of the 1999 Constitution of Nigeria (as amended) as to what the election Tribunal and every Court created by the said Constitution were mandated to carry out by the respective sections. It is trite that the object of all interpretation is to discover the intention of the law makers which can only be ascertained from the words used in the section. Once the meaning is clear, the Courts are to give effect to it. The Courts are not to defeat the plain meaning of an enactment by importing into the section, the words that were never contemplated by the law makers. It was held in Nokes vs. Doncaster Amalgamated Collieries, Ltd (1940) A.C. 1014 at 1022 that where there are two choices of interpretation, the Courts must avoid the choice which would reduce the legislation to futility and should rather accept the other choice on the principle that the legislature would legislate only for purpose of bringing about an effective result. It is further of great necessity to ascertain the background leading to enactment of section 285 sub-section (6) of the 1999 Constitution of the Federal Republic of Nigeria.
It is a notorious fact that prior to the enactment of section 285 subsection (6) of the 1999 Constitution (as Amended), some election Petitions and election appeals lingered and dragged on to about three years due to some unending applications and deliberate attempts by the parties and their Counsel to delay hearing in the election proceedings and appeals arising therefrom and punctual delivery of judgments thereon by the Courts. Some, embarrassingly, were prolonged till 2011. It was against this background and agitation by Nigerians for amendment of the Constitution to prescribe a time limit within which hearing in an election petition could be concluded and judgment delivered therein, that, there were introduced into the Constitution, this section 285 (6) and other sections on the issue of time limit within which judgments in election petition proceedings shall be delivered. The period within which an election Tribunal shall deliver its judgment has been clearly and unambiguously defined unlike what was obtainable prior to the amendment of the Constitution 1999 and the Electoral Act. What the amendment secured was removing delay on the part of the Tribunal to hear and deliver judgment in any given election petition. It categorically defined the period within which the Election Tribunal shall deliver its judgment. So long as the Petition is pending before the Tribunal, and is not appealed against on any point that will state is being proceeded with at the Tribunal, it must be heard and judgment delivered thereupon by the Tribunal within 180 days from the date it was filed. As long as the Petition is pending thereat and has not left the adjudicative precincts of the Tribunal, the Tribunal must complete its adjudicative process thereon and deliver its judgment within 180 days.
Microscopic analysis of the wording of section 235(6) reveals a mandatory obligation placed on the election Tribunal to deliver its judgment within 180 days which shall be computed from the date of filing of the Petition. It is quite explicit in the said Constitution, that no mention whatsoever was made about the lifespan of the Petition unlike what obtains in the High Court (Civil Procedure) Rules of each State of the Federation, wherein the validity or lifespan of the Writ of Summons or any other originating process issued thereunder, were specifically stated to be a period of either 5 months or 12 months from the date of issuance. It is extravagantly clear that if the Legislators had intended an election Petition’s lifespan to be 5 months or the 180 days stated therein, whether, heard or not, it would have expressly, and, distinctly stated so in the said Constitution. Therefore, since there is complete silence on the lifespan of a petition in the said Constitution, it would amount to importing into the Constitution, words the Legislators never envisaged nor contemplated, if the 180 days mentioned therein, were construed to mean the inextensible lifespan of a petition.
It is instructive to note as I earlier demonstrated, that the unmistakable command given in section 285 (5) to election Tribunals is for them to deliver their judgments within 180 days. The emphasis in the said section is only on “delivery of judgment”, which must be accomplished within 180 days from the date of filing the petition. Also, the emphasis in section 294(1) of the Constitution with regard to regular courts established under the Constitution is on ‘delivery of their decisions not later than 90 days which are computed from the date of conclusion of evidence and final addresses of Counsel.
It is quite distinct in section 285(6) that the provision applies to only election Tribunals, it merely defined the period within which election Tribunals shall deliver their judgments in respect of election petitions pending before them and being heard by them without any interruption or intervening circumstances, such as appeals, just like the Courts established by the Constitution are commanded to deliver their decisions in writing not later than 90 days after the conclusion of evidence and final addresses. The said period of 180 days, undoubtedly applies to only election Tribunals. There is nothing suggestive of any other interpretation in the wording of the said section that the said period of 180 days given to the Tribunals is inclusive of the respective 60 days given to the Court of Appeal to hear appeals from the Tribunals and the Supreme Court in respect of appeals on gubernatorial and Presidential election petitions. Just like in the wording of section 294(1) of the 1999 Constitution (as amended), there is no restriction in section 285(6) of the said 1999 Constitution (as amended) precluding an appellate Court from ordering a retrial where the order is found most appropriate or excluding any retrial that may be ordered by appellate courts or stating the impermissibility of such retrial. The section simply commanded the Tribunal to deliver it’s own judgment within 180 days from the date the petition was filed, just like the manner in which section 294(1) commanded the regular courts established by the said Constitution to deliver their judgments not later than 90 days from the date of conclusion of evidence and final addresses of Counsel.
It is absolutely necessary for this Court to ascertain the connotation of the word “within” used in limiting the 180 days period. The word, “within” is described in Word Web as “not more or further than; “in the limits of”. Then in Oxford Advance Learner’s Dictionary, it is stated to mean” before a particular period of time has passed; during a particular period of time; not further than a particular distance from something; inside the range or limits of something; or inside something.” What all these dictate or portray is that the judgment of the election Tribunal must be delivered either before the expiration of the 180 days or on the last day of the 180 days i.e. on the 180th day from the date of filing the petition.
It is glaringly obvious that the 180 days prescribed by section 285(6) relates to only the proceedings before the Tribunal. Another obvious point that worths mentioning is; all that the Tribunal is expected to achieve with regard to an election petition is the conclusion of its duty in the petition within the 180 days, meaning, therefore, that if before the expiration of the 180 days, the Tribunal made an order that would have the effect of terminating the proceedings in the petition or dismissing it for one reason or the other without actually conducting hearing in the election proceedings, the Tribunal has, by every connotation, complied with the period of 180 days prescribed. It is similar to the 90 days period given to the High Courts either at the Federal or State level, as part of the Courts created by the said Constitution of 1999, to deliver their judgments in any matter before them from the date of conclusion of evidence or final addresses of Counsel.
It is imperative to note that an appellate court does not conduct trials. It reviews documents /papers, exhibits and record of proceedings from the trial Court or Tribunal i.e., the record of appeal. After the record had been reviewed, it is also important to note that Court of Appeal or Supreme Court Justices have three main choices when making a decision, that is to say;
i. Affirm (agree with) the judgment of the lower Court’s decision or in the case of the Supreme Court affirm the judgment of the lower Court which means that the judgment is final or
ii. In the case of the Supreme Court, reverse (disagree with) the decision of the lower Court, meaning the Supreme Court’s decision must be carried out and/or
iii. Remand the case, (send it back to the trial Court for further action and possible retrial).
Judgment is defined as the Court’s final determination of the rights and obligations of the parties in a case. It includes an equitable decree and any order from which an appeal lies. In legal parlance, it refers to a final finding, statement, or ruling based on a considered weighing of evidence.
Further, judgment is defined in law to include the determination by a Court of competent jurisdiction on matters submitted to it or the act of determining, as in Courts of law, what is conformable to law and justice, also, the determination, decision or sentence of a Court or of a judge, deliver judgment i.e. its opinion. In Merrian Webster dictionary, judgment is also defined as a formal decision by a Court. Oxford Advanced Learner’s Dictionary defined it as including, the decision of a Court or a judge.
It is stark in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that it did not, and, has not, under any guise or pretence, rendered futile or null and void any decision of the Court of Appeal or the Supreme Court arising from election appeals delivered by them outside the 180 days period prescribed by section 285 (6) within which election Tribunal only, shall deliver its judgment, nor did it stipulate that any decision of the Court of Appeal or the Supreme Court arising from election Petition shall be null and void if delivered outside the 180 days period prescribed for the Tribunal to deliver its own judgment. Just like under the 1979 Constitution of the Federal Republic of Nigeria the Constitution rendered null and void any judgment delivered by any of the Courts created by the Constitution outside the mandatory 90 days (3 months) period. What the Constitution clearly prescribed in section 285 sub-section (7) of the said Constitution (as amended) is that;
“An appeal from a decision of an election Tribunal or Court shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal.” Further, when such approach introduced in the 1979 Constitution proved much hardship, the lawmakers then deemed it necessary to amend the Constitutional provisions in what to now, section 294 (5) of the 1999 Constitution (as Amended) which reads;
“294 (5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of sub-section (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof”.
It became necessary to reproduce the above-stated provisions to establish the readiness of the lawmakers to expressly state when they intend to invalidate or void a proceeding or decision/judgment of a Court due to failure to deliver judgment within the period stipulated in the Constitution.
Already the Tribunal has been given 180 days within which to deliver it’s judgment. It follows, therefore, that if the Tribunal delivered it’s judgment on the very last dry, the 180 days is to expire or elapse, then, the period of 60 days allotted to the Court of Appeal by section 285(7) of the Constitution aforestated, to hear and deliver it’s judgment in the appeal arising from that judgment of the election Tribunal delivered on the 180th day, shall commence from that last day. It is clear that the appellate Court’s period of 50 days to hear and dispose of the election appeal will start to run only from the date the Tribunal delivered it’s judgment, and not otherwise. By this scenario, it is explicit that the 180 days prescribed by the Constitution within which the Tribunal shall deliver its judgment in the petition do not comprise the 60 days respectively allocated to the Appellate Courts. The two sets of period are quite distinctive and do not run concurrently or conjunctively. The Appeal Court’s period would start counting from the date the Tribunal discharged its obligation by delivering a decision or judgment that would have the effect of bringing to an end before the Tribunal, every proceeding in the petition.
It is obvious that the 60 days period given to the Court of Appeal do not form part of the 180 days granted to the Tribunal to deliver it’s judgment, otherwise, the jurisdictional competence of the Court of Appeal specially entrenched in section 246(1)(b) (ii) and (iii) of the 1999 Constitution (as amended) to hear appeals from the decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal on any question as to whether-(ii) any person has been validly elected to the office of Governor or Deputy Governor, or (iii) the term of office of any person has ceased or the seat of any such person has become vacant; ought not to have been inserted therein and would have, from the inception, been scuttled. I completely resist the temptation to believing that the Law makers on the one hand guaranteed a party’s right of appeal against any decision of the Election Tribunal in an election petition he was distraught with, and, on the other hand robbed the same party of the right to the result or fruit of the appeal or the hallowed decision of the Court of Appeal or the Supreme Court, the Final Court of the land in respect of the same election petition.
If I may ask; is it possible for the Constitution to contradict itself, approbate and reprobate at the same time, and render futile or invalid the appellate Courts’ i.e. Court of Appeal and the Supreme Court’s functions/decisions in relation to election appeals heard by them within the respective 60 days given to them by the same Constitution? What then was the essence of enacting the provisions relating to appeals in election matters if the eventual decisions of the appellate Courts in that respect were supposedly ousted by the constitution or that whatever order they might have handed down would have been ineffectual? I must say that I find myself unable to accept that proposition as the intendment of the law makers. What they strictly did was to regulate the period within which judgment at each stratum of court created by the Constitution is to be delivered but not the lifespan of the originating process that would set the machinery in motion.
It is an established fact and, a matter of common knowledge which this Court is bound to take judicial notice of, that where a High Court delivered its decision in an ordinary suit within the first 90 days it had under the Constitution to deliver it’s judgment, and the decision is appealed against to the Court of Appeal and even up to the Supreme Court with the result that the matter or case involved is remitted to the High Court for retrial or trial on the merits, and, retrial then commenced before the same High Court that previously heard and delivered its judgment in it. It has never been contended nor has it been enunciated in any case that, the trial Court, having previously delivered its first decision or judgment in the matter within 90 days from the date of final addresses of Counsel, no longer possess the authority in law to hear and determine the same case the Court of Appeal or the Supreme Court, as the case may be, had remanded to it for retrial; or that the 90 days granted to it under the Constitution to deliver it’s judgment in respect of that suit had expired. There has never been any challenge against the said period of 90 days granted to the regular Courts. Furthermore, it has never been interpreted that the 90 days period given to the High Courts only once in a matter as is being contended thereat. The said 90 days period has never been interpreted to include the period given to the Appellate Courts to hear and deliver their judgments in appeals arising therefrom.
In Unongo vs. Aku, Uwais, JSC (as he then was) opined thus;
“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 the parties’ cases sufficient time to deliver its judgment. There can be no doubt that the provisions of sections 129 subsection (3) and 140 subsection (2) of the Electoral Act 1982 neither allow a petitioner or respondent reasonable time to have fair hearing, nor give the court the maximum period of 3 months to deliver its judgment after hearing a petition as envisaged by sections 33 subsection (1) and 258 subsection (1) of the Constitution, respectively”.
Further, section 287 of the 1999 Constitution provides as follows:
“1. The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Court of Appeal.
2. The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Court of Appeal.
3. The decisions of the Federal High court, a High court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate with subordinate jurisdiction to that of the Federal High Court, a High Court and those other Courts, respectively”.
The aforestated section of the Constitution of 1999 (as Amended) is clear. It asserted affirming the supremacy of the decisions of the Supreme Court, commanding all and sundry, that is to say; all authorities, and persons and Courts with sub-ordinate jurisdiction to that of the Supreme Court to enforce the decisions of the Supreme Court.
Certainly, Election Tribunal is sub-ordinate to the Supreme Court and must, without any pretence, obey and enforce the decisions of the Supreme Court.
As I noted earlier, there is no specific provision of the Constitution ousting the decisions of the Court of Appeal and the Supreme Court the moment the 180 days granted to the election Tribunal to deliver its judgment in the proceedings before it had elapsed. One cannot then, in the absence of such provision read into the Constitution what was never intended by its makers. This would, obviously lead to mangled Justice and denying the citizens of this Country their constitutionally entrenched rights. It is on this basis I find no merit in this appeal and I hereby dismiss the same. I make no order as to costs.
REGINA OBIAGELI NWODO, J.C.A: I had the privilege to read in advance the judgment of my learned brother, DONGBAN-MENSEM, J.C.A. I agree with the reasoning contained therein and the conclusion arrived thereat dismissing the appeal.
I abide by all consequential order in the lead judgment.
Appearances
Audu Anuga
M. Emenbe
T. Gbashima
O. G Obande
P. A. Omengala
Jonathan AkemeFor Appellant
AND
D. D. Dodo (SAN)
T. M. Agboh
Mr. S. Adetunji, P. A. Omengala
Jonathan Akeme, E. P. Echor
and O. A. MomoduFor Respondent
