HON. (BARR) MUSTAPHA AHMED V. ALIYU IBRAHIM GEBI ORS
(2012)LCN/5251(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of March, 2012
CA/J/EP/HR/9M/2012
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
HON. (BARR) MUSTAPHA AHMED Appellant(s)
AND
1. ALIYU IBRAHIM GEBI
2. CONGRESS FOR PROGRESSIVE CHANGE (CPC)
3. INDEPENDBNT NATIONAL ELECTORAL COMMISSION (INEC)
4. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
RATIO
WHETHER OR NOT THE COURT OF APPEAL CAN BEND THE CONSTITUTIONAL PROVISION IN RELATION TO ELECTION MATTERS
Thus, this court cannot bend the constitutional provision, which is supreme to all laws and rules by virtue of S. 1(1) and 1(3) of the 1999 Constitution (as amended), by applying the Rules of this Court under Paragraph 55 of the Electoral Act, (as it has been invited to do). I am of the firm view that Section 285 supersedes all rules of courts in Nigeria with regards to time to do anything in relation to election matters/proceedings. This was also the view of the Supreme Court in the consolidated Appeals of: Peoples Democratic Party (PDP) V. Congress for Progressive Change (CPC) & 42 Ors Appeal No. SC. 272/2011, and Dr. Goodluck Ebele Jonathan & 1 other V. Congress for Progressive Change (CPC) & 41 Others Appeal No. SC.276/2011 (Unreported). Judgment delivered on 31st October, 2011. Therein, Onnoghen, JSC, at page 14 of the judgment, stated emphatically thus:
“It is clear that by the use of the word “shall” in Section 285 (7) of the 1999 Constitution the framers of the Constitution meant to make and did make the provision mandatory as it admits of no discretion whatsoever. It means that the sixty (60) days allotted in Section 285 (7) of the 1999 Constitution (as amended) cannot be extended even for one second as the decision of the appellate court must be rendered “within” sixty (60) days of the delivery of the judgment on appeal.” In relation to Section 295 (5) (6) and (7) of the Constitution specifically, the learned jurist went on to hold as follows at pages 17-18 of the same judgment:
“I hold the considered view that in terms of time to do anything relating to an election petition or judgment thereon or arising there from, it is the above provisions that apply and that no court has the power to extend the times as constitutionally provided in section 285(5)-(7) of the 1999 constitution (as amended), by the interpretation of the sections or otherwise.” PER SANKEY, JC.A.
JUMMAI HANNATU SANKEY, JCA (Delivering the Leading Ruling): The Applicant herein filed a motion on notice on the 16th February, 2012, wherein he seeks the following reliefs from this Court:
1. An order granting leave to the Applicant herein to appeal against the judgment of the Bauchi state National and state Election Tribunal delivered on the 25th October, 2011 in Petition number NA/HR/EPT/03/2011 as an interested party.
2. An order joining the Applicant herein in this Appeal as an interested person by virtue of the judgment of the Federal High court No. 3, Abuja delivered by Hon. Justice Adamu Bello on 30th December, 2011.
3. And for such further or other orders this Honourable court may deem fit to make in the circumstances.
In response to this application, the 1st and 2nd Respondents filed a Notice of preliminary objection to the hearing of the application, the sole ground being:
“That the court of Appeal lacks jurisdiction to grant the reliefs sought in the application dated 6th January, 2012 and filed on 20th January 2012.”
When the matter came up for the hearing of the Applicant’s motion on the 7th February, 2012, learned senior counsel for the 1st and 2nd Respondents, Mr. Isiyaku, was invited to argue his objection since, as he submitted, it goes to the competence of the Court to entertain the Applicant’s motion.
The objection is raised pursuant to order 2 R 5 of the Rules of this court and S. 285 of the constitution of the Federal Republic of Nigeria, 1999 (as amended), [hereinafter referred to as the 1999 constitution (as amended)]. The ground of objection is that this court lacks the jurisdiction to grant the reliefs sought in the motion paper since the 60 days within which to appear and for same to be determined has lapsed. Learned senior counsel therefore submits that hearing the application will merely amount to an academic exercise.
Learned senior counsel further submits that pursuant to Section 285(7) of the 1999 Constitution (as amended), an Appeal from the decision of an Election Tribunal shall be heard and disposed of within 60 days from the date judgment was delivered. He contends that the word “shall” as appears in Section 285(7) of the Constitution is mandatory and takes precedence over the provisions of the Rules of this Court, being specific provisions. He relied on Emeje V. Positive (2010) 1 NWLR (Pt. 1174) 48 @ 75-76 (Paras D-D). Learned senior counsel, in consequence, submits that Section 285 (7) being a specific provision, overrides Paragraph 55 of the First Schedule to the Electoral Act, 2010 (as amended) and the Rules of this Court. Still on the same authority, he submits that matters in the case of elections are sui generis and thus urged the Court to decline jurisdiction to entertain the application.
On his part, learned counsel for the Applicant, Mr. Ndem, opposed the 1st and 2nd Respondents’ application consequent upon the objection, and also placed reliance on the same Section 285(7) of the 1999 Constitution (as amended). He submits that the gravamen of the substantive application of the Applicant is to challenge the jurisdiction of the Tribunal that delivered judgment on 25th October, 2011. He submits that the issue of jurisdiction can be raised at anytime, even at the Supreme Court for the first time. Learned counsel contends that all the decisions of the Supreme Court so far, on the provision of Section 285 of the 1999 Constitution (as amended) are distinguishable from this case because the other cases were fought by parties at the Tribunal. Learned counsel further contends that the Applicant in the instant case was not a party at the lower Tribunal and could not have been a party until now. He submits that, as a result, all the decisions of the Supreme Court on Section 285 of the 1999 constitution before now cannot form a binding precedent on this point. Learned counsel submits that for the doctrine of stare decisis to apply, the factual situation must be the same. He therefore contends that the novelty of this case has given rise to a unique situation which deserves a unique treatment.
In conclusion, learned counsel submits that, irrespective of Section 285(7) of the 1999 Constitution (as amended), a party interested is entitled to be granted leave to appeal upon the crystallization of his interest, and to be allowed to bring his appeal for a definitive pronouncement by this Court one way or the other. To shut him out at this stage, he contends, will amount to a breach of Section 36 of the constitution (as amended), (a critical component of which is opportunity), as well as Section 6(6) of the same Constitution (as amended).
Learned counsel for the 4th Respondent, Mr. Orakoto, did not oppose the hearing of the Applicant’s application as he was of the view that the preliminary objection of the 1st and 2nd Respondents is premature, there not being an Appeal yet before the Court. He relies on Order 10 Rule 1 of the Rules of Court, 2011, for when it is appropriate for a preliminary objection to be raised. Learned counsel also urged the court to overrule the preliminary objection.
The issue raised in the preliminary objection of the 1st and 2nd Respondents, in my humble view, essentially touches on the jurisdiction of this Court to entertain the application of the Applicant. The very first relief on the face of the motion paper requests that this court grants leave to the Applicant to file an Appeal against the decision of the Tribunal. Ordinarily, an appeal from the decision of the Tribunal is as of right, with no leave of court required. Section 246(1) (c) (i) of the 1999 constitution (as amended) is pertinent. However, in the face of ample proof, (both in the prayers on the face of the motion paper of the Applicant as well as in the Notice of Preliminary objection and its particulars, filed by the 1st and 2nd Respondents), that the time constitutionally provided for the hearing and determination of any appeal from the decision of the Tribunal in respect of election into the House of Representatives seat of the Bauchi Federal constituency has long since lapsed, the Applicant decided to seek leave to appeal. It is mutually agreed by the parties that judgment was delivered by the Tribunal on 25th October, 2011. By the provision in section 285(7) of the 1999 constitution (as amended), the special jurisdiction vested in the Court of Appeal to hear and determine appeals from the Election Tribunals is indisputably 60 days. Thus, in the instant matter, the time prescribed for a valid appeal to be heard and determined by this court from the decision of the Bauchi State National and State Election Petition Tribunal elapsed 60 days later, specifically on 24th December, 2011. It would therefore amount to an absurdity for this court to close its eyes to this factual situation on ground and purport to grant an Applicant leave to file an appeal against the decision of a Tribunal which ultimately the court cannot go on to entertain. The court resolutely declines to play the ostrich here, as it is invited to do, by ignoring the facts as well as the law as clearly spelt out in section 285(7) of the 1999 Constitution (as amended).
Learned counsel for the Applicant has sought to make the point that, his right having crystallized on the 30th December, 2011, (i.e. only after the Tribunal had delivered judgment on the petition), he was entitled to be granted leave to challenge the jurisdiction of the Tribunal to have entertained the petition. Granted that the Applicant herein has just been clothed with the toga of being the authentic PDP candidate, who should have contested the election with the 1st Respondent for the House of Representatives seat of the Bauchi Federal constituency by the Federal High court decision of 30th December, 2011; nonetheless, there cannot now be an Appeal against that decision of the Tribunal because it has been firmly foreclosed by Section 285(7) of the 1999 constitution (as amended), the peculiarity of the case notwithstanding. No exceptions are made to the 60 days provision in the constitution. Thus, this court cannot bend the constitutional provision, which is supreme to all laws and rules by virtue of S. 1(1) and 1(3) of the 1999 Constitution (as amended), by applying the Rules of this Court under Paragraph 55 of the Electoral Act, (as it has been invited to do). I am of the firm view that Section 285 supersedes all rules of courts in Nigeria with regards to time to do anything in relation to election matters/proceedings. This was also the view of the Supreme Court in the consolidated Appeals of: Peoples Democratic Party (PDP) V. Congress for Progressive Change (CPC) & 42 Ors Appeal No. SC. 272/2011, and Dr. Goodluck Ebele Jonathan & 1 other V. Congress for Progressive Change (CPC) & 41 Others Appeal No. SC.276/2011 (Unreported). Judgment delivered on 31st October, 2011. Therein, Onnoghen, JSC, at page 14 of the judgment, stated emphatically thus:
“It is clear that by the use of the word “shall” in Section 285 (7) of the 1999 Constitution the framers of the Constitution meant to make and did make the provision mandatory as it admits of no discretion whatsoever. It means that the sixty (60) days allotted in Section 285 (7) of the 1999 Constitution (as amended) cannot be extended even for one second as the decision of the appellate court must be rendered “within” sixty (60) days of the delivery of the judgment on appeal.” In relation to Section 295 (5) (6) and (7) of the Constitution specifically, the learned jurist went on to hold as follows at pages 17-18 of the same judgment:
“I hold the considered view that in terms of time to do anything relating to an election petition or judgment thereon or arising there from, it is the above provisions that apply and that no court has the power to extend the times as constitutionally provided in section 285(5)-(7) of the 1999 constitution (as amended), by the interpretation of the sections or otherwise.”Finally, in the peculiar circumstances that gave rise to the motion on notice, which has in turn drawn the ire of the 1st and 2nd Respondents to raise this preliminary objection, I find myself quite unable to lend credence and to activate a process that leads to nowhere. Since this Court cannot ultimately entertain any appeal arising from the decision of the Bauchi State National and House of Assembly Election petition Tribunal delivered on the 25th October, 2011, it would be foolhardy to grant the Applicant leave to file an Appeal against the said decision to this Court. In consequence, I find the preliminary objection raised to the hearing of the application to be quite timely and appropriate, as opposed to being premature.
In the result, I hold that there is merit in the objection, and do hereby sustain same. The preliminary objection raised to the hearing of the motion succeeds, and the said motion on notice for leave to appeal the decision of the Bauchi State National and State Election Petitions Tribunal delivered on the 25th October, 2011 is accordingly struck out. I make no order as to costs.
CLARA BATA OGUNBIYI, J.C.A: The subject matter sought to appeal has been overtaken by the provision of Section 285(7) of the Constitution as amended. Resurrecting some would amount to circumventing the constitutional provision which has the final say with the use of the word shall. My brother Sankey JCA has adequately dealt with the objection raised and I also endorse the reasoning and conclusion arrived thereat in the some terms. In the circumstance, I therefore strike out the application for leave to appeal against the said decision delivered on the 25th October, 2011 and abide by the orders made as to costs.
PHILOMENA MBUA EKPE, J.C.A: I have had the privilege of reading in draft the ruling of my learned brother J. N. Sankey JCA. I agree completely with the reasoning and conclusion therein.
I too hold that the preliminary objection raised herein succeeds. The application for leave to appeal against the decision of the Bauchi State National and State Election Petitions tribunal is hereby struck out.
I make no order as to costs.
Appearances
For Appellant
AND
For Respondent
