HON. BARAMBU UMARU KAWUWA & ANOR v. PEOPLES DEMOCRATIC PARTY & ORS (2016)

HON. BARAMBU UMARU KAWUWA & ANOR v. PEOPLES DEMOCRATIC PARTY & ORS

(2016)LCN/8157(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of February, 2016

CA/YL/EPT/GMB/HR/76/2015(R)

RATIO

APPEAL: APPEAL FROM ELECTION TRIBUNAL: WHETHER APPEALS FROM THE ELECTION TRIBUNAL INVOLVING ELECTIONS INTO THE NATIONAL AND STATE HOUSE OF ASSEMBLY LIES SOLELY TO THIS COURT AND WHETHER ANY DECISION GIVEN BY THE COURT IS FINAL

The law is now very well settled that appeals from the Election Tribunal involving elections into the National and State House of Assembly lies solely to this Court and that any decision given by this Court, whether rightly or patently wrongly, though regrettably if wrongly, is final and there is no appeal to any other Courts of law in the land. In other words, this Court is indeed the Court of last resort and the last bus stop on all appeals from the Election Tribunals involving elections into the National and State Houses of Assembly. In this wise, this Court as far as appeals against the decisions of the said Election Tribunals involving elections into legislatives houses are concerned is infallible because its decisions are final. That is the law! See Sections 246 (1) and (3) of the Constitution of Nigeria 1999 as amended, which latter sub Section provides succinctly thus:
(3): The decision of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly Election Petitions shall be final. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

ELECTORAL PETITION; THE TIME LIMITATION FOR EVERY ELECTION PETITION TO BE HEARD

In law by virtue of the clear provisions of Section 285(6) and (7) of the Constitution of Nigeria 1999 as amended, every Election Petition must be determined within 180 days from the date of the filing of the Petition, while every appeal against the decision of the Election Tribunal must be heard and determined within 60 days from the date of the judgment appealed against and thus by the 15/11/2015, the time limit allowed by law for determination of any issues arising from the Election Petition filed by the 1st and 2nd Respondents against the return of the 1st Applicant had elapsed by effluxion of time.
In law, these time lines as stipulatedand prescribed by the Constitution of Nigeria 1999 as amended have since been described as akin to the Rock of Gibraltar and Mount Zion, which cannot be moved. In other words, once these prescribed periods elapse, every issue touching on election petitions and its outcome, no matter how meritorious it may be if considered on the merit had become stale, spent and merely academic, hypothetical and indeed speculative in the extreme. In such circumstances, therefore, it would clearly constitute an abuse of the process of Court to raise any such issue after the expiration of these time lines. I therefore, consider it pertinent at this stage in this ruling to take a guided tour of the succinct principles of law in the several decided cases on the several issues arising from this application, intending as it were, calling on this Court to review its own final decision by way of setting it aside on the ground that it was given without any jurisdictional competence in this Court. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

COURT: JURISDICTION; THE EXCLUSIVE JURISDICTION OF THE COURT OF APPEAL TO HEAR ELECTION MATTERS

In Dr. Ahmed Mohammed Salik V. Alhassan Uba Idris & Ors (2014) LPELR 22909 (SC) @ Pp. 28-29; Onnoghen, JSC., had opined succinctly thus:
“From the reliefs claimed by the Petitioners before the Tribunal and the grounds on which they are claimed, it is very clear that the claim was an election matter within the jurisdiction of the Tribunal concerned. It is not a pre-election matter as contended by learned counsel for the Appellant. I hold the further view that even if it were a pre-election matter, once it was filed in an Election Tribunal and relates to National Assembly Election as in the instant case, by the provisions of Section 246(1)(b) and (3) of the Constitution of Nigeria 1999 as amended the Court of Appeal is the last bus stop for the Appellant.” per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

PRACTICE AND PROCEDURE: APPLICATION FOR EXTENSION OF TIME; THE IMPLICATION OF THE FAILURE TO FURNISH SUFFICIENT MATERIAL SHOWING GOOD REASON FOR THE DELAY BY AN APPLICANT

The law is very well settled that in an application for extension of time, failure to furnish sufficient material showing good reason for the delay by an applicant is fatal to such an application and thus no such indulgence as by way of an extension of time would be granted to such an Applicant, such as the Applicants in the instant application. Equity it has been said time and time again does not aid the indolent as it is only out to aid the vigilant! per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

Justice

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

1. HON BARAMBU UMARU KAWUWA
2. ALL PROGRESSIVES PARTYAppellant(s)

AND

1. PEOPLES DEMOCRATIC PARTY
2. HON ISMAILA MUAZU HASSAN
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Lead Ruling):As part of the General Elections held in Nigeria in 2015, the 3rd Respondent, Independent Electoral Commission (INEC) conducted Elections into the Akko Federal Constituency of Gombe State into the Federal House ofRepresentatives, Abuja on 28/3/2015. At the conclusion of the exercise the 3rd Respondent declared the 1st Applicant as the winner of the said Election. The 1st and 2nd Respondents by an Election Petition No: EPT/GMB/HR/4/2015: Peoples Democratic Party & Anor V. Hon Barambu Umaru Kawuwa & Ors filed on 18/4/2015 before the National and State House of Assembly Election Tribunal Gombe unsuccessfully challenged the validity of the return of the 1st Applicant, which judgment dismissing the Election Petition filed by the 1st and 2nd Respondents was delivered on 15/9/2015.

?The 1st and 2nd Respondents had by an appeal filed on 22/9/2015, successfully challenged and won partly the appeal against the judgment of the said Election Tribunal, which by an unanimous judgment of this Court delivered on 29/10/2015, set aside the judgment of the said Election

Tribunal and in its stead declared the 1st Applicant herein as not being qualified to contest the said election as candidate of the 2nd Respondent and consequently nullified both the declaration and return of the 1st Applicant and the questioned election and ordered the 3rd Respondent, INEC herein to conduct a fresh election into the Akko Federal Constituency of Gombe in the Federal House of Representatives Abuja within 90 days from the date of the judgment of this Court.

Now, by Section 246(1) of the Constitution of Nigeria 1999 as amended, appeals from decisions of the said Election Tribunal vested with jurisdiction to hear and determine Election Petitions against the declarations made by INEC in elections into the National and State Houses of Assembly lies to this Court and by virtue of Section 246(3) of the 1999 Constitution of Nigeria as amended, the decisions of this Court on appeals from the said Election Tribunals on elections into the National and States Houses of Assembly is final and thus subject to no further appeal to any other Court in the land.

?By the combined provisions of Sections 246(1); 246(3); 285(5); 285(6) and 285(7) of the

Constitution of Nigeria 1999 as amended andParagraph6 of the Election Tribunal and Court Practice Directions, 2011,together with the facts in the affidavit in support, counter affidavit and further and better affidavit, I find the following facts as sacrosanct in this application, namely:
1. For an Election conducted into the Akko Federal Constituency of Gombe State into the Federal House of Representatives on 28/3/2015 and which results were declared on 28/3/2015, an Election Petition challenging its outcome must be filed within 21 days from 28/3/2011.
2. The Election Petition filed by the 1st and 2nd Respondents on 18/4/2015 challenging the outcome of the said Election was filed within the 21 days period as prescribed by law.
3. The Election Tribunal had 180 days from 28/4/2015 to hear and deliver its judgment on the Election Petition filed by the 1st and 2nd Respondents, and which judgment dismissing the Petition of the 1st and 2nd Respondents was delivered on 15/9/2015 within the 180 days period as prescribed by law.
4. The 1st and 2nd Respondents filed their appeal against the judgment of the Election Tribunal on 22/9/2015 within the

21 days period as prescribed by law.
5. By the delivery of the judgment of the Election Tribunal on 15/9/2015, the 60 days period prescribed by law for the determination of the appealed expired on 15/11/2015.
6. The appeal filed by the 1st and 2nd Respondents against the judgment of the Election Tribunal was determined by this Court on 29/10/2015 within the 60 days period as prescribed by law.
7. The judgment of this Court on appeals from the Election Tribunal involving Elections into the National Assembly as in the instant application is final.

My lords, having set out as above the detailed back ground facts leading to the filing of this application, let me now proceed to consider the present application filed by the Applicants on 25/1/2016.

By an application filed on 25/1/2016, the Applicants are seeking the following reliefs, namely;
a. An order enlarging the time within which the Applicants can apply to set aside the judgment of the Court of Appeal in Appeal No: CA/YL/EPT/GMB/76/2015, same having been decided in absence of jurisdiction.
b. An order of this Court setting aside its order in Appeal No: CA/YL/EPT/GMB/76/2015

delivered on the 29th day of October 2015……….
c. And for such orders as this Court may deem fit to make in the circumstances.

The grounds of the application running into 13 prolix grounds are to the effect that this Court lacks the jurisdiction to have made the order of nullification of the election of the 1st Applicant, which nullification was therefore null and void in that the issue of qualification or non qualification to contest an election is a Constitutional matter.

?In support of the application is an 11 paragraphs affidavit deposed to by one Aminu Abdulrahman, litigation officer in the law firm of Garba U. Shehu & Co., learned counsel for the Applicants. There is also further and better affidavit of 9 paragraphs. The gist of the facts as deposed to therein is that the Election Petition filed by the 1st and 2nd Respondents against the election and return of the 1st Applicant was based on educational qualification and the fact that the 1st Applicant did not resign his membership of the PDP, the 1st Respondent herein, before contesting under the platform of the APC, the 2nd Applicant herein. The National and State House of

Assembly Tribunal dismissed the Petition, which judgment was subsequently set aside by this Court and the 3rd Respondent herein, INEC ordered to conduct fresh election within 90 days into the affected Akko Federal Constituency. In the circumstances, therefore the Election Petition based on qualification outside those stipulated and presecribed by the Constitution of Nigeria 1999 as amended is outside the purview of the jurisdictional competence of this Court to entertain and thus the judgment so entered by this Court was an invalid one given without jurisdiction and therefore liable to be set aside.

It is pertinent and worthy of note that the Applicants neither exhibited the Petition filed by the 1st and 2nd Respondents to at least show the grounds of the Petition nor did they exhibit the judgment of this Court they are desirous of setting aside.
In response, the 1st and 2nd Respondents filed a counter affidavit of 21 paragraphs deposed to by one Jones Umeh Esq., counsel in the law firm of Kanu, Kanu & Co., counsel for the 1st and 2nd Respondents. The gist of the facts deposed therein is that this Court acted within its powers and

jurisdiction in entertaining and determining the appeal against the judgment of the said Election Tribunal and in making the orders made in its judgment of 29/10/2015.
The judgment which was readily available and collected upon its due certification had since 27/1/2016 been duly executed with the conduct of the fresh election by the 3rd Respondent, INEC as ordered by this Court and therefore there was no longer any judgment to be set aside.

At the hearing of this application by this Court on 5/2/2016, both the Applicants, the 1st and 2nd Respondents and 3rd Respondent were represented by their respective counsel, though the 3rd Respondent did not file any process in this application.
Garba Shehu Esq., with A. Aminu Esq., V. I. Bobo Esq., and M. Hammanwa Esq., learned counsel for the Applicants had submitted on issue one that Section 65(2) of the 1999 Constitution of Nigeria as amended deals with qualification to House of Representative while Section 66(1) provides for disqualification and contend that the 1st Application was disqualified on grounds of having not resigned from PDP before contesting under the platform of APC, which ground is not

part of the provisions of the 1999 Constitution or the Electoral Act for disqualification of a candidate. Counsel referred to Section 138 of the Electoral Act 2010 as amended and relied on Torzoor V. V. Otom Ioraer unreported Appeal No, SC 928/2015 delivered on 15/1/2016.

Learned counsel further submitted that the jurisdiction of Tribunal or Court on election matters can only be exercised on issues that comes up at the time of the election or issues concerning the disqualification of the candidate under Section 66(1) of the Constitution. Counsel relied on CPC V. Umar (2012) 2 NWLR (Pt. 1315) 605 @ p. 630 and contended that both the Tribunal and Court of Appeal had no jurisdiction to entertain a Petition questioning the nomination of a candidate. Counsel relied on Ucha V. Onire (2011) 4 NWLR (Pt. 1237) 386 @ p. 425.

Learned counsel submitted that the issue of whether the 1st Applicant did not resign his membership of PDP before joining the APC to contest the election is a ground challenging the nomination of the 1st Applicant and therefore this Court acted without jurisdiction in disqualifying the 1st Applicant as that ground is a pre-election matter.

Counsel referred; See ? ( Ibrahim V. Umar 2012) 7 NWLR (Pt. 1300) 507 @ P. 536, and contended that the resultant judgment is thus a nullity and urged the Court to resolve issue one in favour?of the Applicants.

On issue two, learned counsel submitted that the application is borne out of the facts in the affidavit and by the Rules of Court an applicant is expected to apply to set aside a judgment given without jurisdiction within 10 days but that the failure to do so within the time is not in disrespect to the Court and contend that the Court is under a duty to do justice notwithstanding the non compliance with the Rules of this Court.

Learned counsel submitted that it is not the length of delay that matters but for an applicant to show that he has strong reasons for his failure to apply within time and contended that the Court has the power to set aside its judgment given without jurisdiction. Counsel relied on Adegeke Motors Ltd V. Adesanya (1989) 3 NWLR (Pt. 109) 250 @ p. 270 and contended that in law a person affected by a judgment which is a nullity is entitled to have it set aside ex debito justitia since in law the Court has the inherent

jurisdiction to set aside its own judgment or orders made without jurisdiction. Counsel relied on Adeyemi Bero V. LSDPC (2013) 8 NWLR (Pt. 1356) 238 @ P. 309.

Learned counsel for the 1st and 2nd Respondents adopted the two issues as identified by the learned counsel for the Applicants and on issue number 2, submitted that this is an election appeal arising from the Lower Tribunal sitting in Gombe State and which clothed this Court with jurisdiction to determine the appeal within 60 days and by the judgment of the Court delivered on 29/10/2015, this appeal has been determined and concluded with by the final Court in appeals arising from the Lower Tribunal on elections into the National Assembly and thus in law cannot be reopened by way of application seeking to set aside the judgment since Election Petitions are sui generis and time bound.
Counsel relied on Onuaguluchi V. Ndu (2001) 7 NWLR (Pt. 712) 309 @ p. 321. Learned counsel also submitted that the Applicants have not showed by their affidavit and further affidavit evidence any special circumstances to warrant the setting aside of the judgment and urged the Court to dismiss the

application.

Learned counsel submitted on issue No. 1 that by Sections 65 and 66 of the 1999 Constitution as amended, once a candidate is not qualified under Section 65 of the Constitution, he can be disqualificatied by a Court as it is not the responsibility of the 3rd Respondent INEC to disqualify a candidate and contended that in law once a candidate is not qualified under Section 65, the Lower Tribunal as well as the Court of Appeal on appeal has the jurisdiction vide Section 138(1)(a) of the Electoral Act 2010 as amended and Section 246(91) of?the Constitution and urged the Court to hold that the case of Tarzor V. Ortom (Supra) which was delivered on 15/1/2016 and thus latter in time than the decision of this Court delivered on 29/10/2015 is inapplicable as having no retrospective effect in law and urged the Court to dismiss the application for lacking in merit.

Learned counsel for the 3rd Respondent adopted the submissions of counsel for the 1st and 2nd Respondents and also urged the Court to dismiss the application for lacking in merit.

On the issue raised suo motu by the Court, learned counsel for the Applicants submitted that the application is

not an abuse of Court process because the issue raised is a constitutional issue and contended that if the Court finds that the ground of disqualification is not within the provisions of the Constitution, then the entire proceedings and judgment is a nullity and the issue of time lines would become inconsequential.

On his part, learned counsel for the 1st and 2nd Respondents submitted that by virtue of Section 285(6) and (7) of the 1999 Constitution of Nigeria as amended the application is a grossviolation of the provisions of the Constitution and thus an abuse of Court process and contended that the time lines of 180 days and 60 days respectively havelong since been exhausted and therefore this application is grossly an abuse of the process of this Court and should be dismissed.

Learned counsel for the 3rd Respondent aligned himself with the submissions of counsel for the 1st and 2nd Respondents and also urged the Court to dismiss the applications.
I have taken time to study and given due and dispasionate consideration to the affidavit, further affidavit and counter affidavit evidence of the respective parties. I have also calmly reviewed

the submissions of counsel to the respective parties, noting carefully the several decided cases relied upon by them. It would appear that this application raises nothing new or recondite as all the issues raised and canvassed therein have at one time or the other confronted the Courts and very clear pronouncements made thereon by the Apex Court and this Court in several decided cases as are replete in the law reports. I shall therefore, in the consideration of this application be carefully guided by the settled positions of the law on the various issues canvassed in this application by the parties.

?The law is now very well settled that appeals from the Election Tribunal involving elections into the National and State House of Assembly lies solely to this Court and that any decision given by this Court, whether rightly or patently wrongly, though regrettably if wrongly, is final and there is no appeal to any other Courts of law in the land. In other words, this Court is indeed the Court of last resort and the last bus stop on all appeals from the Election Tribunals involving elections into the National and State Houses of Assembly. In this wise, this

Court as far as appeals against the decisions of the said Election Tribunals involving elections into legislatives houses are concerned is infallible because its decisions are final. That is the law! See Sections 246 (1) and (3) of the Constitution of Nigeria 1999 as amended, which latter sub Section provides succinctly thus:
(3): The decision of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly Election Petitions shall befinal??

Constitution of Nigeria 1999 as amended have since been described as akin to the Rock of Gibraltar and Mount Zion, which cannot be moved. In other words, once these prescribed periods elapse, every issue touching on election petitions and its outcome, no matter how meritorious it may be if considered on the merit had become stale, spent and merely academic, hypothetical and indeed speculative in the extreme. In such circumstances, therefore, it would clearly constitute an abuse of the process of Court to raise any such issue after the expiration of these time lines. I therefore, consider it pertinent at this stage in this ruling to take a guided tour of the succinct principles of law in the several decided cases on the several issues arising from this application, intending as it were, calling on this Court to review its own final decision by way of setting it aside on the ground that it was given without any jurisdictional competence in this Court.

In Dr. Ahmed Mohammed Salik V. Alhassan Uba Idris & Ors (2014) LPELR 22909 (SC) @ Pp. 28-29; Onnoghen, JSC., had opined succinctly thus:
“From the reliefs claimedby the Petitioners

before the Tribunal and the grounds on which they are claimed, it is very clear that the claim was an election matter within the jurisdiction of the Tribunal concerned. It is not a pre-election matter as contended by learned counsel for the Appellant. I hold the further view that even if it were a pre-election matter, once it was filed in an Election Tribunal and relates to National Assembly Election as in the instant case, by the provisions of Section 246(1)(b) and (3) of the Constitution of Nigeria 1999 as amended the Court of Appeal is the last bus stop for the Appellant.”

In Attorney General of Plateau State V. Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 346 @ P. 419; Tobi JSC, had brilliantly waxed thus:
“A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity. A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high on guesses. As Courts

of law are not established to adjudicate on guesses but on facts, such actions are struck out. A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a “mirage”to deceive the defendant and the Court as to the reality of the Cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought.”

My lords, the issue of the finality of the decisions of the Court of Appeal on Election Petitions involving Elections into the National and States Houses of Assembly has long been laid to a final rest in our law as settled upon by the Supreme Court in a plethora of decided cases as are replete in our law reports and so until the provision of Section 246(3) of the Constitution of Nigeria 1999 (as amended) is further amended to the contrary or otherwise, the Court of Appeal remains to all intents and purposes the final bus stop, the Court of last resort in all matters touching on Elections into the National and States Houses of Assembly in Nigeria. See Senator Joy Emordi V. Alphonsus Igbeke (2011) 4 SC (Pt. 11) 107 @ p. 115. See also Rev. Hyde

Onaguluchi V. Ndu (20017) 7 NWLR (Pt. 712) 309.
In Salik V. Idris & Ors (Supra) @ p. 29, Aka’ahs JSC., had succinctly pronounced with finality on this issue and reprimanded counsel thus:
“Contrary to the position taken by the Appellant that Petition No. EPT/KNS/HR/23/2007 ought not to have been filed before the Election Tribunal which consequently robbed the Court of Appeal of jurisdiction to entertain Appeal No. CA/K/EP/NA/19/2008, the Petition was properly filed before the Tribunal. A fortiori, the Court of Appeal is clothed with jurisdiction under Section 246 of the 1999 Constitution to hear the appeal and such terminate in the Court of Appeal … “The decisions of the Court of Appeal in respect of appeal arising from Election Petitions shall be final.’The amendment to this Section which allowed appeals to get to the Supreme Court only affected the Election of the Governor or Deputy Governor. As the Election being questioned is an Election to the National Assembly, this Court lacks jurisdiction to entertain the appeal…The Appellant is fully aware that this appeal is a wild goose chase. If he is not, the learned

counsel representing him ought to have known better and advised him accordingly.
Alas this is not the case knowing fully well that Election tenure of all those elected in 2007 ended in 2011, it was senseless for learned counsel to argue that there is still a subsisting benefit to be derived from this appeal. The appeal is time wasting and the Appellant must be damnified in cost to serve as a deterent to would be litigants. I wish to say that I will not hesistant to order cost to be personally borne by the counsel if this type of practice re – occurs in future. For the mean time the Appellant is to pay cost of N250,000.00 to each set of Respondents in the Appeal.”
See also Adepoju V. Yinka (2012) 1 SC 125 @ p. 147; A G Plateau V. A G Federation (2006) 25 NSCQLR 179.
Again in Salik V. Idris (Supra), Peter – Odili JSC., had so clearly illustrated the absurdity of raising issues on matters that had become stale and spent thus:
“??Clearly what I have attempted above is clearly within the realm of an academic speculation as its very best and with hypothetical questions brought out, with this Court mindful of the fact that such questions

are not to be given answers to or for adjudication since the questions do not relate to live issue in litigation. It is evident what is before the Court in this appeal is a spent process, a dead issue or matter to which no right or benefit can inure on the victorious party. I ask myself; to what purpose do we tarry on therefore in the prevailing circumstances? I refer to Odedo V. INEC 2008) 17 NWLR (Pt. 1117) 554 @ p. 600; Okotie-Eboh V. Manager (2004) 13 NWLR (Pt. 905) 242 @ p. 284. The appeal before the Court is certainly an exploratory venture with neither radar nor compass. A situation that should remain in the imagination where a person would delve in a wandering game in his mind and not set it out into involving the Court in a wasteful exercise.”
Now, when it is provided by law that the decisions of this Court astouching on all matters arising from the judgment of the Election Tribunal on matters involving Elections into the National and State Houses of Assembly Election Tribunals by virtue of Section 246 (3) of the Constitution of Nigeria 1999 as amended is final, it simply means just that and there is no amount of legal sophistory

that can whittle down the enormous power of finality of the decisions of this Court in such matters, whether interlocutory or substantive, it is final. It is indeed the last bus stop where every passenger must disembark as there is no more forward journey to go. It is simply put a journey to no where! See Rev Hyde Onuaguluchi V. Mr. Ben Collins Ndu & Ors (2001) 7 NWLR (Pt. 712) 309, where Uwaifo JSC., had explained in simple terms the enormity of the power of finality of the decision of the Court of Appeal in matters involving elections into the National and State Houses of Assembly thus:
“It must be emphasised that such finality applies also to every interlocutory decision or decision taken in respect of a matter or on issue concerning or arising from the decision reached in the appeal. No appeal shall lie from it to any other Court even if it is patently wrong….Once such decision is final it cannot be subject of an appeal to the Supreme Court. The word “final”in this regard means that the journey of the case is concluded, terminated, completed and is without further appeal. The intention of the said Decree was to make the Court

of Appeal the Court of last resort in matters pertaining to Election to the National Assembly. A prayer addressed to the Court of Appeal in such matters to set aside its decision when refused is treated exactly like the decision in the appeal, it is not appealable; it is final”
The provisions of Sections 246(1) & (3) and S. 285(6) & (7) of the Constitution of Nigeria 1999 as amended are very clear, plain and unambigious and should be given their ordinary meaning while construing them so as to give clear effect to, and not to defeat, the clear intention of the makers of the law. See Mobil V. FBIN (1977) 3 SC 53. See also Toriola V. Williams (1982) 7 SC 25; Agbiti V. The Nigerian Navy (2011) 206 LRCN 18; Hon. John Obafemi & Anor V. PDP & Ors (2013) LPELR 20351 (CA); Emordi V. Igbeke (2011) LPELR 1136 (SC).
By the succinct provisions of Section 246(3) of the Constitution of Nigeria 1999 as amended the decision of this Court now sought to be set aside for whatever reason or ground or basis is made final and thus in law no longer open to be revisited not withstanding whether the decision is right or patently wrong, it is

final. It is indeed finished and it is all over! In Emordi V. Igbeke (supra) @ p.10, Fabiyi JSC., puts it so succinctly thus:
“Briefly put, the word “final”as employed in the applicable Section 246(3) connotes conclusiveness; point never to be revisited”
See also Awuse V. Odili (20030 18 NWLR (Pt. 851) 116; Onuaguluchi V. Ndu (20001) 7 NWLR (Pt. 712) 309; Okonkwo V. Ngige (2007) 12 NWLR (Pt. 1047) 191; Alao V. ACE Ltd (2000) 9 NWLR (Pt. 610) 264.

In such circumstances as in the instant application, an appeal or application treating such a decision of the Court of Appeal as not being final but subject to further appeal or liable to be set aside, outside the statutory 60 days for all matters arising from the judgment of the Election Tribunal as prescribed by Section 285(7) of the Constitution of Nigeria 1999 as amended is in my finding a senseless, wasteful and ill-fated journey which is akin to a tale full of sound and fury signifying absolutely nothing! It is indeed an abuse of the process of this Court which must neither be tolerated nor condone, particularly when done by a counsel who should or at least ought

to know better than the litigants to have advised them against such folly. See Akintunde V. Ojo (2002) 4 NWLR (Pt. 757) 284. See also Jimoh V. Starco Nig Ltd (1998) 7 NWLR (Pt. 558) 522; Arubo V. Aiyeleru & Ors (1993) 3 NWLR (Pt. 280) 126.

The present application made outside the time lines prescribed by the Constitution rendered the entire application incompetent, time wasting, spent, stale and not worthy of any consideration on the merit as in my view this Court lacks the jurisdictional competence to review or indeed do anything touching on and concerning its judgment outside the 60 days limitation period imposed on it by virtue of Section 285(7) of the Constitution of Nigeria, which time line cannot be moved, enlarged, elongated or extended to clothe this Court with any further powers or jurisdiction to embark on this journey to no where or voyage of discovery foisted on it by the Applicants.

My lords, at this juncture, let us pause awhile and hear what the Apex Court said in ANPP & Ors V. Alhaji Mohammed Goni & Ors (2012) LPELR 8730 (SC), per Onnoghen JSC., @ pp. 31 ? 33 thus:
?With regards to the Election Tribunals,

the time within which the jurisdiction so conferred on it is to be exercised/carried out is provided for in Section 285(6) of the 1999 Constitution as amended…. It follows that where the Tribunal fails to comply with the above provisions, the jurisdiction to continue to entertain the Petition lapses or becomes spent and cannot be extended by any Court howsoever well intentioned, neither can a Court create and confer jurisdiction on any Court/Tribunal on any matter where jurisdiction has not been conferred by Statute or the Constitution……..It has been held by this Court in a number of cases……….that the time fixed by the Constitution is like the Rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or elongated or in any way enlarged …….It is my considered view that the provision of Section 285(6) of the Constitution is like a Statute of Limitation which takes away the right of action from a party leaving him with an unenforceable cause of action. The law may be harsh but it is the law and must be obeyed to the letter, more so when it is Constitutional Provision”
See also Afam Ogene V. Hon.

Chukwuka Onyema (2012) LPELR 9774 (CA)
In Election Petitions and Appeals, time is of the real essence and thus being sui generis there is no extension of the time lines as prescribed either by the Constitution of Nigeria 1999 as amended as in Sections 285 (6) & (7) or the provisions of the 1st Schedule to the Electoral Act 2010 as amended or the Election Tribunals and Court Practice Directions 2011. See Ngige V. INEC (2015) INWLR (Pt. 1140) 281. See also Okechukwu V. INEC (2014) 9 SCNJ 46.

Having dispassionately considered the entire circumstances and facts of this case in the light of the very clear provisions of Sections 246(1) & (3); 285(6) & (7) of the Constitution of Nigeria 1999 as amended, I am of the firm view that this application as unsupported by both the facts and the law is completely an abuse of the process of this Court and thus deserving of the prompt sanction of this Court as by way of it being struck out. See Ntuks V. NPA (2007) 130 NWLT (Pt. 1051) 392 @ pp. 419-420, where it was firmly stated that:
“Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and

precipitate action in the judicial process for the sake of action qua litigation merely to waste valuable litigation time…..The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity orrecklessness??
My lords, what better words can be used to describe this application premised and founded on gross frivolity, merely intended to, and had indeed achived, the wasting of the scarce and precious judicial time of this Court on such an issue which to all intents and purpose was not meant to serve any useful purpose and was indeed “DOA”?? dead on arrival and I unhesitantly so pronounce it dead on arrival. See also Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 @ p. 188, where the Supreme Court had opined inter alia thus thus:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions ……It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only

regarded generally as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice.”

It is thus as crystal clear as the light of day that this application is highly misconceived and an affront on the clear provisions of the Constitution of Nigeria 1999 as amended, the very law the applicants apparently but clearly in futility, relies upon for their highly vexatious application. A cursory glance at the well considered unanimous judgment of this Court in this appeal would have readily cleared the misconceptions induced in the counsel for the Applicant to file such a reckless, pretentious and frivolous application at the behest of his clients.

Now, if assuming that the litigants do not know the very well settled position of the law on the various issues so unconsciounably canvaased by the applicants in this application, can the same be said of their learned counsel? I think not. I consider this kind of application so glaringly unsupported by both the facts and law as not only constituting a gross abuse of the process of this Court but also a

clear indictment on the counsel for the Applicants. I say no more!

On the merit, in an application of this nature seeking an extension of time within which the Applicants can apply to set aside the judgment of this Court, it behoves on them to furnish before the Court such relevant and sufficient material showing the existence of good and sufficient reason as would justify their delay in bringing this application within time. See Lawal V. UBA PLC (2008) 12 NWLR (Pt. 1102) 704 @ p. 706.

So, did the Applicants on the strength of their depositions, even made on their behalf by a litigation officer in their counsel??s law firm on such crucial issues of facts, furnished any sufficient credible material showing good reason justifying the seemingly inordinate degree of delay, in view of the time lines as prescribed by law making time of the real essence, as would warrant the intervention of this Court to grant the relief for extension of time in their favour?

In their scanty affidavit in support of 11 paragraphs, not a single reason was given for their delay in bringing this application as is expected of such supplicant invoking the equitable

power of discretion of this Court to be exercised in their favour. This alone ought ordinarily to be the end of this application for it to be a closed chapter. However, a cursory glance at the grounds for the application, which is certainly not the affidavit evidence of facts in support of this application, it was stated in ground 11 thus:
11. The Applicants/Respondents made several attempts unsuccessfully to obtain the judgment of this Honourable Court in this appeal at all material times to the filing of thisapplication??

Now, for an application the Applicantsconcedeto the knowledgethat ought to be filed within 10 days as stated in their ground 10, was the reason given in ground 11 a justification of the inordinate delay of well over 80 days from the date of 29/10/2015 when the judgment sought to be set aside was delivered by this Court in the presence of Oladele Oyelami Esq., of counsel for the 1st Applicant as 1st Respondent therein and A. R. Williams Esq., of counsel for the 2nd Applicant as 2nd Respondent therein? I will answer this poser anon!

But first what did the Respondents say on this issue of unavailability of the judgment of

this Court and as between the respective parties who is telling the truth on this crucial issue of fact in this application?

In paragraph 14 of the Counter Affidavit of the 1st and 2nd Respondent, they not only denied the allegation of the Applicants in ground 11, though not even made part of the Affidavit in support, they proceeded to depose to the fact that they applied and obtained certify true copy of the said judgment without delay and which they annexed as Exhibit RCA 1 to their Counter Affidavit.

Having considered the affidavit and counter affidavit evidence of the parties and bearing in mind that the Applicants did not even depose to any fact of any difficulty in obtaining a certify true copy of the judgment save making it the ground 11 of their application, I am minded to and I believe the unchallenged deposition of fact by the 1st and 2nd Respondents that a certify true copy of the said judgment of this Court was readily available for collection and was so collected by the 1st and 2nd Respondents.

?I do not therefore, believe the Applicants that they indeed made any attempt at collecting a certify true copy of the said judgment from the

Registry of this Court as no such application to the Registry of this Court was even furnished in this application. In my finding therefore, they lied and merely fabricated such lies to merely deceive and mislead this Court in the consideration of this application. I therefore, have no difficulty rejecting such a false ground 11 put forward as constituting any valid ground for this application seeking the indulgence of this Court as by way of an extension of time.

?It does appear that the Applicants went into a deep slumber from 29/10/2015 when the judgment sought to be set aside was delivered until 25/1/2016 when they apparently woke up from their slumber to find that the fresh election into the Akko

Federal Constituency as ordered by this Court in its judgment to be conducted by the 3rd Respondent, INEC was at hand as deposed to in paragraphs 18 and 19 of the Counter Affidavit of the 1st and 2nd Respondents and when it was too late in the day. In law, an application for extension of time is not granted as a matter of course but must be granted only on good and sufficient reason shown for the delay, failing which it stands to be refused and dismissed. See N. A. Williams V. Hope Rising Voluntary Funds Society (1982) 1 SC 1 @ p. 145.

?At any rate, excerpts from the judgment now sought to be set aside would readily reveal that this Court thoroughly considered the provisions of Sections 65 and 66 of the Constitution of Nigeria 1999 as amended dealing with the qualifications and disqualification of Candidates, in the light of the facts, circumstances and evidence in the Record of Appeal before arriving at the firm findings and conclusion, in the exercise of the plenitude of its power and jurisdictional competence conferred on it by Section 246(1) & (3) of the Constitution of Nigeria 1999 as amended, that the 1st Applicant having not been duly sponsored

by a Political Party, and there being no independent candidacy under the Nigerian Constitution of 1999 as amended, was not a person qualified to contest the questioned Election into Akko Federal Constituency of Gombe State into the Federal House of Representatives Abuja and his purported return was consequently set aside and nullified and a fresh election between qualified candidates only to be conducted by INEC was accordingly so ordered. In my finding therefore, this Court has and had indeed exercised its jurisdiction in the hearing and determination of the appeal against the judgment of the said Election Tribunal, which it also rightly allowed and nullified the purported return of the 1st Applicant, a decision which by law is final and cannot be revisited by any Court in the land, including this Court.
My lords, hereunder are the excerpts from the judgment of this Court, of which I incidentally wrote the lead unanimous judgment of this Court, and now sought to be set aside on the ground of lack of jurisdiction in this Court, which ground I have already found was baseless and only within the figment of the imagination of the Applicants and their counsel,

who though ought to have known better but did not know too, to have heard and determined the Appeal against the judgment of the National and State Houses of Assembly Tribunal Gombe, which had earlier heard and determined the Election Petition filed by the 1st and 2nd Respondents against the return of the 1st Applicant thus:
??My Lords, having held that the 1st Respondent failed to prove that he resigned from the 1st Appellant, the PDP before contesting the election of 28/3/2015 as a candidate of the 2nd Respondent, the APC, what then is the legal effect of this finding of fact on the eligibility or qualification of the 1st Respondent to contest the election of 28/3/2015, which he contested as a candidate of the 2nd Respondent, the APC while having not resigned his membership of the 1st Appellant, the PDP in the light of the specific provisions of Section 65(2)(b) of the Constitution of Federal Republic of Nigeria, 1999, as amended? Now, by Section 65 (2) (b) of the 1999 Constitution of Nigeria as amended, it is provided as follows: 65(2): A person shall be qualified for election under Subsection (1) of this section if:- He is a member of a

Political party and is sponsored by that party.?? Paragraph (b) of the Subsection 1 of Section 65 referred to in Section 65 (2), provides thus: 65 (1): Subject to the provisions of Section 66 of the Constitution, a person shall be qualified for election as a member of: – (b): The House of Representative if he is a citizen of Nigeria and has attained the age of 30 years. By the succinct provisions of Section 65 (2) (b), of the Constitution of Nigeria 1999 as amended, it is unambiguously clear that in Nigeria there is yet no place for independent candidacy in our National Elections into the Senate and House of Representatives. It follows therefore, that a person can only be eligible and qualified to contest an election into the House of Representative if and only if he is a member of a political party and is sponsored by that party. Does the requirement of Section 65 (2) (b) of the Constitution of Nigeria 1999 as amended amount in law to a qualification for intending candidates for election into the House of Representative in Nigeria? I think it does.
This is so because the word “qualification”is defined to mean the

possession of qualities or properties (such as fitness or capacity) inherently or legally necessary to make one eligible for a position or office or to perform a public duty orfunction??. See Blacks law Dictionary 8th Edition…. Interestingly,but very crucially, by Section 65 (2) (b) of the Constitution of Nigeria 1999 as amended, it is not enough that an intending candidate for election is a members of a Political party but most importantly he must in addition be sponsored not by just ??a politicalparty?? but by that politicalparty?? of which he is a member. In other words a personcannot be a member of say Political Party A but sponsored as a candidate at an election into the House of Representative by ??Political Party B…….Consequently, the case of the Appellants as had been made out on the resolution of the 1st issue for determination above in their favour is that the 1st Respondent who is a member of the PDP, the 1st Appellant having not resigned his membership of the PDP, is not eligible or qualified to contest the election of 28/3/2015 into the Akko Federal Constituency Gombe State in the

House of Representative sponsored by the 2nd Respondent, APC which is not ?that party? to which he belonged asprescribedunder Section 65 (2) (b) of the Constitution of Nigeria 1999 as amended………… Having resolved the first issue for determination in favour of the Appellants against the Respondents and holding firmly that the 1st Respondent having not resigned from the 1st Appellant before contesting the election of 28/3/2015 as a candidate of the 2nd Respondent in contravention of Section 65 (2) (b) of the Constitution of Nigeria 1999 as amended and thus rendered not eligible or qualified to contest the election of 28/3/2015 under the platform of the 2nd Respondent as alleged and proved by the Appellants, I have asked myself if there is still any life issue left in the 2nd to 6th issues for determination in this appeal?………… My reason for so asking myself is not far too seek and it is because once as it has been found that the 1st Respondent was not qualified to contested the election of 28/3/2015, no matter the level of education he attains and even if it was to the Ph.d degree, the terminalacademicsdegree, it would amount to

naught. So also are the other issues of allegations of certificate forgery whether made out or not against the 1st Respondent by the Appellants are all of no moment any longer in this appeal.
In my view all these issues are no longer of any utilitarian value. They have been rendered merely academic.?

My lords, I have taken the pains to reproduce in this judgment the above excerpts with the hope that the counsel to the Applicants might see for himself the futility of this venture he had embarked upon at the behest of the Applicants and I am assured in my mind that counsel for the Applicants has seen the futility of this ill ? advised application. I say no more!

At the hearing of this Appeal, our attention was drawn to the decision of the Supreme Court in Appeal No: SC.928/2015, Rt. Hon Prince Terhemen Tarzoor V. Ortom Samuel Ioraer & 2 Ors delivered on 15/1/2016 to contend that this Court had no jurisdiction to have heard and determined the appeal bordering on the Petition of the 1st and 2nd Respondents alleging non qualification of the 1st Applicant outside Sections 65 and 66 of the Constitution of Nigeria 1999 as amended.

Happily, though yet unreported, copies of the said judgment of the Supreme Court were graciously made available to us by the learned counsel for the Applicants and we commend him for this.

We have taken time to go through the said judgment and it does appear to us that the Supreme Court did not make any such pronouncement that an Election Petition challenging the election of a candidate on grounds of non qualification or disqualification is outside the jurisdictional competence of the Election Tribunals and the Court of Appeal on appeal. In law, to hold that a candidate cannot challenge the election of another candidate on grounds relied upon does not in any way oust the jurisdiction of the Court. In my view what it means is that the case is without merit and the only authority that can so decide is the Court and not the parties by themselves.

?To contend therefore, as is being urged upon us by the Applicants is to say that once a party?s case lacks merit it robs the Court of its jurisdiction. That certainly is not the decision in the Supreme Court under reference as the Supreme Court did not so hold that the Court of Appeal lacked jurisdiction

to have entertained the appeal but rather affirmed the judgment of the Court of Appeal. In law, a judgment given without jurisdiction cannot be affirmed but rather it is liable to be set aside and struck out as invalid, null and void.
?
In the case under reference, the Supreme Court per Ngwuta JSC., had stated inter alia thus:
?Section 138 (1) states the grounds for questioning an election. Section 177 of the Constitution enumerates in (a) ? (d) what qualifies a person for election to the Office of Governor of a State. Section 182 of the Constitution list grounds for disqualification for election to the Office of Governor of a State. To determine whether a person is qualified/disqualified to contest an election in terms of Section 138(1)(a) of the Electoral Act, resort must be had to Sections 177 and 182 of the Constitution. Section 177 settles the question of qualification while Section 182 determines the question of disqualification to contest election.
In other words, the issue of qualification and disqualification, once raised as per Section 138 (1) of the Electoral Act is determined with reference to Section 177 of the

Constitution in case of qualification and Section 182(1) in case of disqualification.?

Now, while Sections 177 and 182 of the Constitution of Nigeria 1999 as amended are in respect of the Office of a Governor of a State, the equivalent provisions for a member of the National Assembly are Sections 65 and 66 of the said Constitution. These Sections deal clearly with qualification and disqualification of a person seeking to contest election into the National Assembly and therefore, in my view, failure to satisfy the provisions of Section 65 amounts to disqualification or more aptly put the person not being qualified to contest the election. The difference between not being qualified and being disqualified is like the difference between six and half a dozen!

?A Petition grounded on facts constituting a violation of Section 65 of the Constitution, as aptly raised and proved by the 1st and 2nd Respondents against the election of the 1st Applicant in this appeal as determined by this Court on 29/10/2015, is one clearly competent and within the plenitude of power and jurisdiction of this Court to hear and determine and I so hold. In my finding

therefore, the judgment of this Court delivered on 29/10/2015 was one given in the due exercise of the jurisdiction conferred on this Court by Section 246(1) of the Constitution of Nigeria 1999 as amended and thus valid in law to all intents and purposes according to law and therefore, cannot be set aside.

The judgment of a Court is not invalid, null and void merely because the looser thought or said or wishes so! It is only void or null or invalid if the law says so and it is shown or proved to be so. Mere wishes alone would not suffice, for if wishes were horses even beggars would ride too!

I have no difficulty therefore, holding that this application is frivolous, vexatious and reckless. It is also bereft of any iota of merit and is thus liable to be dismissed in its entirety. I am minded to award cost to be personally borne by the counsel to the Applicants but I have exercised great restraint in so doing and would therefore, damnify the Applicants in huge cost for this sort of application merely brought to waste the precious judicial time of this Court saddled with so many live appeals to be heard and determined expeditiously in the interest of

efficient and effective dispensation of justice to those who truly desire and deserve it.

My lords, the beauty of the law on the enormity of the finality of the decisions of this Court by virtue of Section 246(3) of the Constitution of Nigeria 1999 as amended is that even this decision refusing to set aside our own judgment is itself final and not subject to any review by way of appeal or application to set it aside. See Rev Hyde Onuaguluchi V. Mr. Ben Collins Ndu & Ors (2001) 7 NWLR (Pt. 712) 309, where Uwaifo JSC., had pronounced on this issue emphatically and with finality thus:
?It must be emphasised that such finality applies also to every interlocutory decision or decision taken in respect of a matter or on issue concerning or arising from the decision reached in the appeal……….A prayer addressed to the Court of Appeal in such matters to set aside its decision when refused is treated exactly like the decision in the appeal, it is not appealable; it is final

In the result, this application, which was clearly “?DOA”, dead on arrival, and lacking in merit is hereby dismissed in its entirety. There shall be

cost of N200,000.00 against the Applicants in favour of each of the 1st and 2nd Respondents only.

JUMMAI HANNATU SANKEY, J.C.A.:My learned brother, Biobele Abraham Georgewill, JCA, obliged me with the draft of the leading Ruling just delivered on the motion on notice filed by the Applicants on 25-01-16. His lordship dealt with the issues meticulously and exhaustively. I agree with the reasoning and conclusion, and to underscore my concurrence, I shall make just a few remarks.

I do not think anything could be farther from the truth than the contention of learned Counsel for the Applicants that in relation to time within which to apply to set aside the decision of this Court, such it could be expanded, extended or enlarged in election matters such as this. Thus, the invitation to this Court to assume jurisdiction over an Appeal that has since become extinct, outside the 60 days delineated for this Court to determine all aspects of the Appeal from the lower Tribunal, is at once baseless and unfounded.
I have to stress the point that a Court will only have the necessary competence to hear and determine a matter if

the same is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. See Madukolu V Nkemdilim (1962) 2 SCNLR 341; Anambra State V. AG Federation (1993) 6 NWLR (Pt. 302) 692.

?The relevant law applicable in respect of an action is the law in force at the time the cause of action arose. In this instance, the facts reveal that the Judgment of the lower Tribunal was delivered on 15-09-15, within the 180 days prescribed while the Judgment of this Court, in an Appeal from the Tribunal, was rendered on 29-10-15; also well within the prescribed 60 days. The relevant laws governing the hearing of Appeals in this Court are Section 285(7) and Section 246(3) of the 1999 Constitution (as amended). Section 246(3) makes the Court of Appeal the final Court for the hearing of election and election related matters. The Applicants? heavy reliance on the decisions in Adegoke V Adesanya (1989) 3 NWLR (Pt. 109) 250; & Adeyemi-Bero V LSDPC (2013) 8 NWLR (Pt. 1356) 238 at 309; which, (while good law), are cases in civil matters, to submit that this Court has jurisdiction, is both misplaced and a misconception, as

Counsel has virtually overlooked the fact that this is an election matter for which there are Constitutional provisions making it time bound.

It must also always be foremost in the consciousness of litigants and their Counsel that election matters are sui generis and thus out of the league of regular civil cases. As a result, time is of the essence as this specie of cases are time-bound by virtue of the Constitutional provisions contained in Sections 285(5) (6) and (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended. Consequently, no Tribunal and/Court worth its salt would permit litigants to approach it lackadaisically by way of piecemeal applications.
For the avoidance of doubt, Section 285(7) of the 1999 Constitution (as amended) is cast in stone in these mandatory terms as follows:
“285(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.”
There is no proviso to Section 285(7) of the 1999 Constitution (as amended) to accommodate any human

exigencies as it is couched in absolute terms. The simple, straightforward and unambiguous words used in the foregoing provisions disclose its proper status as a Limitation Law. And it is the law that where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus, an action instituted after the expiration of that period is said to be statute barred. Where the limitation of time is imposed in a statute, decree or edict, unless the said statute, decree or edict makes provision for an extension of time, the Courts cannot extend the time. An action filed outside the period lapses due to the effluxion of time. See Congress for Progressive Change V INEC (2011) LPELR-SC.426/2011; Osun State V Danlami Nig. Ltd (2007) ALL FWLR (Pt. 365) 438; Jallco Ltd V Owoniboys Tech. Serv. Ltd (1995) 4 NWLR (Pt. 391) 531.

This is the fate of this interlocutory application filed by the Applicants. It is statute barred and cannot legally resuscitate the Appeal. This is more so as the affidavit filed along with the motion on notice makes no

attempt to explain the reason(s) for presuming to bring this application long after the time limited for hearing and determining Election Appeals had lapsed. This Appeal is therefore no longer a live issue in view of the provision of Section 285(7) of the 1999 Constitution (as amended).

The Constitution is the Supreme law of the land; therefore the provisions are superior to every provision embodied in any Act or law and are binding on all persons and authorities in Nigeria. The failure to follow any of the provisions renders the steps taken unconstitutional, null and void. Such act must be set aside by the Court. The Applicants have filed this application to set aside the Judgment of this Court contrary to the provision of Section 285(7) of the Constitution. Consequently, this Court is under a duty to dismiss same as the application is no longer a live issue in view of the provision of Section 285(7) of the 1999 Constitution (as amended). See Hope Democratic Party V Obi (2011) LPELR-SC.280/2011; INEC V Musa (2003) 3 NWLR (Pt. 805) 72; AG Abia State V AG Federation (2002) 5 NWLR (Pt. 763) 264; AG Ondo State V AG Federation (2002) 9 NWLR (Pt. 772) 222;

Adisa V Oyiwola (2000) 10 NWLR (Pt. 674) 116; & Adediran V Interland Transport Ltd (1991) 9 NWLR (Pt. 214) 155. Having resolved that this Court is without jurisdiction to entertain this application, it is bound to be dismissed.

It is therefore my considered opinion that, in the instant application, this Court cannot extend the 60 days in any way once the Appeal has lapsed before this Court. Where the mandatory 60 days have lapsed, there is no remedy, as this Court is devoid of the requisite jurisdiction to extend the life-span of the Appeal in any way and by any means. In other words, this Court lacks the power to bring back to life and assume jurisdiction over a matter which had since died at the port of embarkation at the ripe old age of 60 days on 15-11-15. The authorities on this are legion. See Saleh V Donald (2012) LPELRCA/MK/EPT/43/2011; Ugba V Suswam (2012) LPELR-SC.191/2012
(Consolidated); & Ogene V Onyema (2012) LPELR-CA/E/EPT/2/2012.
The erudite Jurist, Onnoghen, JSC, had this to say in ANPP V Goni (2012) LPELR-SC.1/2012 (Consolidated) at pages 31-33 on this issue:
??It follows that where a tribunal fails to comply

with the above provisions the jurisdiction to continue to entertain the petition lapses or becomes spent and cannot be extended by any Court order howsoever well-intentioned, neither can a Court order create or confer jurisdiction on any Court/tribunal on any matter where jurisdiction has not been conferred by statute or theConstitution. It is my considered opinion that by the lower Court ordering a retrial by a tribunal which ceased to have jurisdiction in the matter it attempts to create jurisdiction in the said Tribunal by operation of a Court order which is not only very erroneous but unacceptable. It has been held by this Court in a number of cases including Consolidated Appeal Nos. SC/141/2011; SC/266/2011; SC/267/2011; SC/282/2011/SC/356/2011 and SC/357/2011: Brig. Gen. Mohammed Buba Marwa & Ors V Adm. Murtala Nyako & Ors. Delivered on 27th January, 2012 that the time fixed by the Constitution is like the Rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within the time so fixed, it lapses as the Court is thereby robbed

of the jurisdiction to continue to entertain the matter… It is my view that Section 285(6) (supra) is like a statute of limitation which takes away the right of action from a party leaving him with an unenforceable cause of action. The law may be harsh but it is the law and must be obeyed to the letter; more so when it is a constitutionalprovision??(Emphasis supplied)
Since it is now common-place and widely accepted that election matters are sui generis and thus time is of the essence, it goes without saying that Section 285 (5) (6) and (7) of the 1999 Constitution makes them time-bound. They are thus removed from the nature of ordinary civil proceedings. That has been the rationes decidendi behind the decisions emanating from the Apex Court that time shall not be extended beyond the Constitutional time-frames circumscribed by the Constitution as well as the requirement of time set down in the Rules of Procedure and Practice Directions guiding the filing of processes in Courts handling election matters. In regard to Election matters, time shall begin to run in the peculiarity of the Constitution of the Federal Republic of Nigeria, 1999 (as

amended), the Electoral Act, 2010 (as amended) and the Election Tribunal and Court Practice Directions, 2011, from the date of the act.
Therefore, as a matter of deliberate policy to enhance urgency, Election Petitions are expected to be devoid of the procedural clogs that cause delay in the conclusion and termination of the substantive dispute. See Ngige V INEC (2015) 1 NWLR (Pt. 1440) 281 @ 292-293; Okechukwu V INEC (2014) 9 SCNJ 47 @ 77-78; Daramola V Aribisala (2009) LPELR-8515(CA); Orubu V INEC (1998) 5 NWLR (Pt. 94) 323; Balogun V Odumosu (1999) 2 NWLR (Pt. 592) 590 at 597.
Once again, in Peoples Democratic Party (PDP) V Congress for Progressive Change (CPC) (2011) LPELR-2909(SC) 1 at 25-26, Onnoghen, JSC, in these momentous words, held as follows:
“??… I must say that rules of Court have the status of subsidiary legislation far below constitutional provisions which sit at the apex of the hierarchy and consequently supreme. Secondly, no Court rules which are contrary to Section 285(5), (6) and (7) can apply to election matters or be valid. The sections enact as follows (5) an election petition shall be filed within

twenty one (21) days after the date of the declaration of the result of the elections; (6) an election tribunal shall deliver its Judgment in writing within one-hundred and eighty (180) days from the date of filing 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 sixty (60) days from the date of the delivery of Judgment of the tribunal or Court ofAppeal??
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 no Court has the power to extend the times as constitutionally provided in Section 285(5)-(7) of the 1999 Constitution (as amended), by interpretation of the sections orotherwise??(Emphasis supplied)
Finally, Ogunbiyi JSC also, in her characteristic forthrightness, lucidity and eloquence, articulated the principle of law for better understanding in this way in Ugba V Suswan (2014) LPELR-SC. 191-191A/2012 (CONSOLIDATED):
By the very nature of the application before us, it is my strong view that a

general impression is created that the effect and finality of Section 285(6) and (7) of the Constitution have not been comprehended/recognized at all or fully understood.
This is in view of the incessant recurrence of the applications made and calling upon the Court to revisit or set aside its earlier decisions. I need to quickly add that this Court had, in various judicial pronouncements, interpreted on the constitutional finality of the foregoing provisions which cannot be questioned for whatever reason. Therefore, the apt and pertinent question to pose at this juncture is: in view of the limitations and constraints imposed on this Court and the rights of the applicants by the provisions of Section 285(6) and (7) of the Constitution as amended, is this Court clothed with jurisdiction to make the orders sought by the applicants, that their appeals be heard on the merits? That is to say in other words, taken for granted that the application for setting aside succeeds. The poser question, I must say is purely hypothetical in view of the earlier conclusion arrived at and refusing the setting aside of the ruling delivered on 8th June, 2012… By reference

therefore, it goes without saying that the jurisdictional competence of the Tribunal under Section 285(6) cannot by any reason exceed the 180 days allotted. It remains sacrosanct and can neither be added to nor subtracted from.
With the Constitution being the final authority, any attempt to derogate there from would be met by a brick wall which cannot be penetrated through. From the foregoing, it follows that the absence of jurisdiction is indeed futile. I wish to further state that jurisdiction which is a creation of statute serves an authenticating mandate; it is also obvious that where a statute does not create jurisdiction, then it does not exist. Further still and on the foregoing authority of ANPP V Goni (supra), the immutable nature of Section 285(6) was again restated and guaranteed by Onnoghen, JSC at pages 192-193 when he said:
“Despite the decisions of this Court since October, 2011 on the time fixed by the Constitution, some of the Justices of the lower Court still appear not to have gotten the message. From where will the election Tribunal get the jurisdiction to entertain the retrial after the expiration of the… 180 days

assigned in the Constitution without extending the time allotted? Do the Courts have the vires to extend the time assigned by the Constitution?
The answer is obviously in the negative… It is my considered view that the provision of Section 285(6)… is like a statute of limitation which takes away the right of action from a party leaving him with an unenforceable cause of action. The law may be harsh but it is the law and must be obeyed to the letter.”
The implication of the foregoing restatement by his lordship is very explicit, clear and simple and needs no further interpretation. In other words, the provision of the Constitution had spoken, there cannot be an addendum or another re-opening of the case with the intention to add there to or to subtract there from… The present application is nothing but mere academic… The principle of law is also well entrenched in our judicial system… that where an action or an appeal has no utilitarian value to the appellant, any judgment given in his favour will certainly render such an appeal or action merely academic, which this Court had warned consistently, without mincing words, that such

venture should not be embarked upon…
Consequently, it is therefore evident that the setting aside of the ruling as sought on the relief will in no way salvage or benefit the course of theapplicants?? case, whichapplication did not lie within the jurisdictional competence of this Court by reason of expiration of time. Put differently, the applicants… will not in the circumstance of this application enjoy any practical or utilitarian value from the decision because this Court has no power to determine the Appeal in issue, with same having become constitutionally barred… For instance and borrowing from the words of Tobi, JSC, the learned Jurist in the case of Inakoju V Adeleke (2007) 4 NWLR (Pt. 1025) 423 had this to say at page 597:
??The Courts become helpless when the Constitution itself provides ouster clauses such as Section 188. In such a situation, the Courts hold their heads and arms in despair and desperation. They can only bark but cannot bite.
Their jurisdiction is to give effect to the ouster clause because that is what is in the Constitution or what the Constitution says??
Following from the foregoing

therefore, the supremacy of the Constitution is obvious as being the only instrument which is imbued with absolute power to create and confer jurisdiction.
It is the ultimate and can be compared to none… On a community reading of the foregoing conclusions arrived there at, it is evident that the constitutional effect of Section 285(6) and (7) has been well pronounced by this Court times without number in a plethora of authorities. The subsequent recurrence of suits filed and seeking to overreach the Constitutional interpretation of the Section thereof is of great concern. Clarion calls are made in loud and clear terms that there must be an end to litigation. It is unfortunate that the call appears as if it is a lone voice sounding only in the wilderness and not within human hearing. Decisions in case law are meant to speak volumes both in the given situation and for future guidance. Counsel is well advised to desist from filing unnecessary suits which are merely academic and yielding no benefits but mere waste of quality time. The application at hand in my view is purely academic and therefore frivolous, vexatious and an abuse of Court process.”??

(Emphasis supplied)

I bow to the wisdom in this decision coming from the Apex Court of the land, even as I am bound by it. It speaks eloquently to this application and, as such, it is wholly applicable to the facts and circumstances thereof. Therefore, by the profusion of authorities at our disposal, this Court is precluded from acknowledging such a process, as the one under consideration, seeking an order setting aside the Judgment of this Court delivered in line with Section 285(7) of the 1999 Constitution (as amended), which application is certainly not grounded in any law. I therefore find no reason to disturb the findings of this Court now sought to be set aside by this application.

Having thus resolved that this Court is without the vires to entertain this application, it shall no longer be necessary to delve into the first issue formulated for determination. In sum, this application is frivolous, unconstitutional and, being outside the jurisdiction of this Court, it is accordingly dismissed. Finally, I would be failing in my duty if I do not remind litigants that Courts of law are meant for the serious business of litigation. They are

not places to indulge in gambling or fantasies.
In the final analysis, this Court lacks jurisdiction and I have no hesitation in dismissing the Appeal for the more detailed reasons enunciated in the lead Judgment. I abide by the order as to cost.

SAIDU TANKO HUSSAINI, J.C.A.:
I had the advantage of reading in draft the Ruling just delivered by my Lord, Georgewill, JCA. My Lord has addressed all salient issues raised in this application and I agree with him that the same lacks merit and ought to be dismissed.
The application, Motion Notice dated 22nd January, 2016 and filed on 25/1/2016 in accordingly hereby dismissed. I also abide by other consequential orders contained in the lead ruling.

Appearances

Garba Shehu, Esq. with him, A. Aminu, Esq. V. I. Bobo, Esq. and M. Hammana, Esq.For Appellant

AND

L. A. Haruna, Esq. for 1st and 2nd Respondents.

M. U. Sabo, Esq. holding the brief of Nenford Kundum, Esq. for 3rd Respondent.For Respondent