HON. (ENGR) EME MUKORO & ANOR V. HON. TALEB AVWEROSUO OKPAKO TEBITE & ANOR
(2013)LCN/6264(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of June, 2013
CA/B/260/2012
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
1. HON. (ENGR) EME MUKORO
2. DEMOCRATIC PEOPLES PARTY (DPP) Appellant(s)
AND
1. HON. TALEB AVWEROSUO OKPAKO TEBITE
2. PEOPLES DEMOCRATTC PARTY (PDP) Respondent(s)
RATIO
THE POSITION OF LAW THAT GOVERNS THE MATTER OF REFERENCE FROM THE COURT OF APPEAL TO THE SUPREME COURT
Undoubtedly, it is the provision of Section 295(3) of the amended Constitution that governs the matter of reference from this Court to the Supreme Court. The provision reads thus: –
“Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of Appeal and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Court of Appeal as it deems appropriate.” PER LOKULO-SODIPE, J.C.A.
MEANING OF THE EXPRESSION “SUBSTANTIAL QUESTION OF LAW”
In the case of BAMAIYI V. A.G. FEDERATION (2001) 7 S.C. (Pt.II) 62. (2001) 12 NWLR Pt.727) the Supreme Court set out and adopted as a correct interpretation of the expression “substantial question of law” what the Federal Supreme Court said in relation to the expression in the case of Olawoyin & Others v. Police (No.2) (1961) 2 SCNLR 278; (1961) All NLR at p. 625 to wit:
‘It will be difficult to attempt an exhaustive definition of what is a substantial question of law. A useful guide in determining whether an issue of law is substantial is provided in a number of Indian decisions dealing with a similar phrase in the Indian Constitution. There it has been held that in order to be substantial, the issue must be such that there may be some doubt or difference of opinion as to what the law is. When no such doubt exists, or the law is established by a final Court of Appeal, or by all overwhelming consensus of judicial decisions the mere application of it to a particular set of facts does not constitute a substantial question of law, however important the issue may be on the decision of a particular case. Oheara v. C.P. Syndicate (1949) 4 D.L.R 20;…PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Lead Ruling): The motion of the Respondents/Applicants (hereafter simply referred to as “the Applicants”) dated 13/3/2013 and filed on the same date has been brought pursuant to Sections 6(6), 36, 246(3), 285(7) and 295(3) of the 1999 Constitution (as amended), Section 15 of the Court of Appeal Act, Cap. C 36 Laws of the Federation of Nigeria, 2004, Order 4 Rules 1 and 3, Order 7 Rules 1 and 10 of the Court of Appeal Rules, 2011 and under the Inherent jurisdiction of this Honourable Court. In the said motion on notice the Applicants pray for an order of this Court “Referring the questions set forth in the Schedule to this Motion on Notice to the Supreme Court for the decision of that court upon the said question.”
The two questions which the Applicants want this Court to refer to the Supreme Court, as set out in the Schedule to the motion (supra) are as follows: –
“1. Whether this election-related appeal can be heard by the Court of Appeal outside the statutory period of Sixty (60) days within which election appeals and such related matters can be determined as provided by the mandatory provisions of Section 285(7) of the 1999 Constitution (As Amended) and the case of SHETTIMA V. GONI (2011) 18 NWLR (PT.1279) S.C. PAGE 413 AT PAGES 451.452, PAMS. H-C; 471-472, PAMS. F-A amongst others.
2. Whether this Honourable Court, now sitting as a regular Court of Appeal, can be called upon again by the Appellants/Respondents to re-visit and adjudicate over its judgment delivered in its capacity as an Election Petition Appeal Tribunal on Monday, 19th December, 2011 in Appeal No. CA/B/EPT/DT/374/2011 – HON. TALEB A. O. TEBITE & ANOR V. MARVIN OJIGHO & 3 ORS, in utter violation and contravention of the clear, express and mandatory provisions of Section 246(3) of the 1999 Constitution (As Amended), the authority of EGHAREVBA V. ERIBO (2010) 9 NWLR (1199) (sic) PAGE 411 AT PAGE 441 PARAS. B-D and the decision of the Supreme Court in Appeal No.SC.479/2011 – DEMOCRATIC PEOPLES PARTY & ANOR. V. HON. TALEB AWEROSUO OKPAKO TEBITE & ORS. delivered on Thursday, the 9th day of February, 2012.”
The grounds of the application as set out in the motion (supra) are: –
“(1) By a Notice of Appeal dated and filed on the 18th day of July, 2012, the Appellants/Respondents herein are challenging the judgment of the Federal High Court delivered on Friday, the 29th day of June, 2012 dismissing the Appellants/Respondents’ suit in its entirety for lack of jurisdiction.
(2) By grounds 1 and 2 (amongst other grounds) of the said Notice of Appeal, the Appellants/Respondents are challenging the validity of the judgment of this Honourable Court delivered on Monday, 19th December, 2011 as an Election Petition Appeal Tribunal in Appeal No. CA/B/EPT/DT/374/2011 – HON. TALEB A. O. TEBITE & ANOR V. MARVIN OJIGHO & 3 ORS.
(3) This appeal, which is an election petition-related appeal, is challenging the decision of this Honourable Court delivered on Monday, 19th December, 2011 as an Election Petition Appeal Tribunal in Appeal No. CA/B/EPT/DT/374/2011 – HON. TALEB A. O. TEBITE & ANOR V. MARVIN OJIGHO & 3 ORS. well outside the statutory period of sixty (60) days as provided by the mandatory provisions of Section 285(7) of the 1999 Constitution (As Amended) as enunciated by the Supreme Court in the case of SHETTIMA V GONI (2011) 18 NWLR (PT.1279) S.C. PAGE 413 AT PAGES 451-452, PARAS. H-C; 471-472, PARAS. F-A amongst other enabling laws in that regard.
(4) By this appeal, which is an election petition-related appeal, the Appellants/Respondents are inviting this Honourable Court now sitting as a regular Court of Appeal, to re-visit and adjudicate over its judgment delivered in its capacity as an Election Petition Appeal Tribunal on Monday, 19th December, 2011 in Appeal No.CA/B/EPT/DT/374/2011 – HON. TALEB A. O. TEBITE & ANOR V. MARVIN OJIGHO & 3 ORS. in utter violation and contravention of the clear, express and mandatory provisions of Section 246(3) of the 1999 Constitution (As Amended) and the Supreme Court decision in Appeal No.SC.479/2011 DEMOCRATIC PEOPLES PARTY & ANOR. V. HON. TALEB AVWEROSUO OKPAKO TEBITE & ORS. delivered on Thursday, the 9th day of February, 2012.
(5) From the peculiar facts and circumstances of the Appellants/Respondents’ case, vis-a-vis the briefs of arguments filed by the parties to this appeal, the Appellants/Respondents appeal has raised recondite and Constitutional points of law which require the construction and interpretation of the provisions of Sections 246(3) and 285(7) of the 1999 Constitution (As Amended) amongst other enabling laws in that regard.
(6) It will serve the interest of justice, fair hearing and advancement of the law for this Honourable Court to refer these recondite and Constitutional points of law to the Supreme Court by way of case stated for the resolution of same by the Supreme Court as guaranteed under the provisions of Section 295(3) of the 1999 Constitution (As Amended).
(7) The resolution of these recondite and Constitutional points of law by the Supreme Court will determine whether or not the instant appeal is competent before this Honourable Court for this Honourable Court to re-adjudicate over the judgment of this Honourable Court delivered in its capacity as an Election Petition Appeal Tribunal on Monday, 19th December, 2011 in Appeal No. CA/B/EPT/DT/374/2011-HON. TALEB A. O. TEBITE & ANOR V. MARVIN OJIGHO & 3 ORS. which is the subject matter of this appeal.”
Given the contentious nature of the motion as evinced by the filing of a counter affidavit therein by the Appellants/Respondents (hereafter simply referred to as “the Respondents”), the Court on 15/4/2013 ordered the parties to file and exchange written addresses within a specified time frame and they duly complied with the order of Court in this regard.
Applicants’ written address dated 22/4/2013 and filed on the same date was settled by Chief E.L. Akpofure, SAN; Chief E. E. Esosuakpo and John Okoriko Esq. Respondents’ written address (undated) but filed on 26/4/2013 was settled by Ikhide Ehighelua Esq. The motion (supra) was entertained on 8/5/2013. In moving the motion, learned lead senior counsel for the Applicants, Chief E. L. Akpofure, SAN; relied on the supporting affidavit of the motion (supra) and also adopted and relied on the Applicants’ written address as hereinbefore identified, in urging this Court to grant the order prayed for therein. In the same vein, learned lead counsel for the Respondents, Ikhide Ehighelua relied on the 5 paragraph counter affidavit filed in the motion (supra) on 2/4/2013, as well as the written address of the Respondents as hereinbefore identified, in urging the Court to dismiss motion.
The questions which the Applicants want this Court to refer to the Supreme Court have been set out hereinbefore as well as the grounds relied upon by the Applicants in making the application for referral.
Dwelling on the motion (supra) in their written address, the Applicants set out the lone lssue for determination to be: –
“Whether the applicants herein have satisfied the conditions precedent to making a reference to enable this Honourable court grant this application in the interest of justice fair hearing and advancement of the law.”
The Respondent formulated three issues for determination in the motion (supra) in their written address. The issues are: –
“1. Whether the provision of Section 295(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) empowers the Court of Appeal to refer questions of constitutional interpretation to the Supreme Court in respect of provisions of the Constitution which the Supreme Court has already previously interpreted.
2. Whether the Court of Appeal can refer questions which do not arise from the appeal before the Court of Appeal to the Supreme Court.
3. Whether issues relating merely to the application of constitutional provisions as against the interpretation of constitutional provisions is referrable (sic) to the Supreme Court by the Court of Appeal.”
I consider it more expedient to resolve the motion (supra) upon the sole issue as formulated by the Applicants. This is because the three issues formulated by the Respondents can be conveniently considered under the lone issue formulated by the Applicants.
Dwelling on the issue they formulated, and having first set out the provision of Section 295(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and which shall hereafter be simply referred to as “the amended Constitution”, the Applicants submitted to the effect that the questions which they want this Court to refer to the Supreme Court are recondite and substantial questions of law. That it is clear that the said questions being sought to be referred involve/border on the construction, interpretation and application of the constitutional provisions in Sections 246(3) and 285(7) of the amended Constitution.
The Applicants submitted that by virtue of the clear and express provisions of Section 295(3) of the amended Constitution, this Court is empowered to do either of these two things. The first is that the Court can suo motu refer such substantial questions of law to the Supreme Court for its decision without an application from any of the parties to these proceedings; and (ii) the Court is duty bound to refer such substantial questions of law to the Supreme Court “if any party to the proceedings so requests”. That by virtue of the provision of Section 295(3) this Court must refer the substantial questions of law in the motion (supra) to the Supreme Court, as they (Applicants) being parties in the instant appeal have applied for the reference. This is particularly so as they (Applicants) have satisfied the conditions precedent to making a reference.
The Applicants cited the case of Federal Republic of Nigeria v. Ifegwu (2003) 15 NWLR (Pt. 842) 113 at 191-192 as laying down the conditions precedent to making a reference. The conditions as set out by the Applicants are: –
1. The question for reference must be as to the interpretation of the constitution.
2. The question must arise in the proceedings in connection with an issue before the court making the reference.
3. The matter for reference must involve a substantial question of law. The court making the reference must decide the substantiality of the question; and
4. The court making the reference to the higher court is not required to, and must not give an opinion of law on the question.
Dwelling on the first of the conditions, the Applicants submitted to the effect that the two questions they want referred to the Supreme Court for determination, relate to the interpretation and application of the provisions of Sections 246 (3) and 285 (7) of the amended Constitution.
Dwelling on the second of the conditions, the Applicants submitted to the effect that the questions they want referred have arisen in the instant proceeding in connection with an issue before this Court. It is their stance in this regard that it is indisputable that by this appeal (which is an election petition-related appeal) the Respondents are challenging the decision of this Court delivered on 19/12/2011 in its capacity as an Election Petition Appeal Tribunal in Appeal No. CA/B/DT/374/2011 – Hon. Taleb A. O. Tebite & Anor. V. Marvin Ojigbho & 3 Ors. In this regard, the Applicants referred to relief (c) as contained in Exhibit “4” which is a copy of the originating summons in Suit No. FHC/ASB/CS/35/2012- Hon. (Engr.) Eme Mukoro & Anor. v. Hon. Taleb Avwerosuo Okpako Tebite & 5 Ors. That this is the suit by which the Respondents are challenging the said judgment of this Court delivered on 19/12/2011 and in respect of which appeal has been filed well outside the statutory period of sixty (60) days as provided by the mandatory provisions of Section 285(7) of the amended Constitution. The Applicants also referred to Exhibit “6” which is a copy of the Notice of Appeal in this appeal filed since 18/5/2012 and said that the period from then till date is more than the statutory period of sixty (60) days within which an election petition-related appeal of this nature ought to have been determined as stipulated by the statutory provisions of Section 285 (7) of the amended Constitution.
Applicants submitted to the effect that from the facts and circumstances of this case, the subject matter of the Respondent’s appeal is a hybrid of both intra-party dispute, which is a pre-election matter and election petition appeal, which is a post-election related matter. The Applicants further submitted to the effect that from the circumstances of the Respondents’ case vis-a-vis the briefs of argument filed by both parties to this appeal, the Respondents appeal has raised recondite, constitutional and substantial questions of law which require the construction, interpretation and application of the provisions of Sections 246(3) and 285(7) of the amended Constitution amongst other enabling laws in that regard, The Applicants also referred to the depositions in paragraphs 26, 27, 28, 29 and 30, of the affidavit in support of the motion (supra) in aid of their stance.
The Applicants further submitted that from the Notice of Appeal and other court processes filed before this Court in this appeal, the issue has arisen in the course of this proceedings on the question as to whether or not this election-related appeal can be heard by this Court outside the stipulated period of sixty (60) day within which appeals and such election-related matters can be determined as provided by the provisions of Section 285(7) of the amended Constitution and other enabling laws in that regard. It is also the stance of the Applicants that the issue has equally arisen as to whether or not this Court now sitting as a regular Court of Appeal, can be called upon again by the Respondents to re-visit and re-adjudicate over its judgment delivered in its capacity as an Election Petition Appeal Tribunal on 19/12/2011 in Appeal No. CA/B/DT/374/2011 – Hon. Taleb A. O. Tebite & Anor. v. Marvin Ojigbho & 3 Ors. which is the subject matter of this appeal. In this regard the Appellants referred to Exhibit u3″ which is a copy of the judgment of this Court delivered on 19/12/2011. It is the stance of the Applicants that the issues they want referred have arisen in the proceedings in connect with the issues before this Court and the cases of Atake v. Afejuku (1994) 1 NWLR (Pt. 368) 379; and Bamaiyi v. A-G Federation (2001) 12 NWLR (Pt. 727) 468, were cited in aid. The Applicants stressed that one of the reliefs being sought by the Respondents is “A DECLARATION that the judgment of the Court of Appeal in Appeal No. CA/B/EPT/374/2011 delivered on 19/12/2011 which purported to hold contrary to the judgment of this Honourable Court in Suit No. FHC/ASB/CS/63/2011 that the 2nd plaintiff did not field a candidate for the April, 2011 general election for the Ughelli Constituency into the Delta State House of Assembly, is ultra vires the powers of the Elections Petitions Tribunal in Nigeria (whether on appeal or at first instance) and contrary to Section 285 of the Constitution of the Federal Republic of Nigeria and therefore null and void and of no effect in law”. The Applicants submitted that by this particular relief, the Respondents want this Court to remit this suit back to the trial court to determine the entire suit with the ultimate purpose of granting the relief in question. That it is glaring that the questions forming the subject matter of this application for reference has arisen in the proceedings in connection with the issues before this Court and therefore suitable for reference in accordance with the guideline stipulated by the Supreme Court.
Dwelling on the third of the conditions, the Applicants submitted that the need for the question to be referred to be “a substantial question of law” is clear and that what constitutes “a substantial question of law” is strictly a matter of law which borders on the provisions of the Constitution or any other law. In aid of this, the Applicants cited the case Senate of National Assembly v. Momoh (1983) 4 NCLR 269 at 300 per Nnaemeka-Agu JCA (as he then was). The Applicants submitted that it is for this Court to form an opinion as to whether the questions to be referred involve substantial question of law pursuant to the provision of Section 295(3) of the amended Constitution and that it is of no moment whether one of the parties thinks differently. The case of F.R.N. V. Ifegwu (supra) at 213 was cited in aid. In order to show the substantiality of the questions which they seek to be referred, the Applicants stated that what they want the Supreme Court to decide is whether or not an election-related suit like the instant one, is bound by the constitutional provisions of Sections 246(3) and 285(7) of the amended Constitution amongst other enabling laws in that regard which govern the conduct of election petition proceedings. That if the answer to the preceding question is in the affirmative, whether the Respondents’ Notice of Appeal filed since 18/7/2012, is not statute barred by reason of the fact that the period of sixty (60) days have elapsed. That these questions of law have not been pronounced upon in a binding decision by either this Court or the Supreme Court in respect of election-related matters (not election petitions/appeals).
The Applicants also submitted that the questions they want referred to the Supreme Court are substantial questions of law in that they are: –
(a) questions of general public importance or interest;
(b) questions which directly and substantially affect the rights of the parties to the proceedings, and
(c) still open questions in that they have not been pronounced upon in any binding decision of the Court of Appeal or the Supreme Court.
Stating that the questions they want referred qualify to be treated as substantial questions of law on not less than three separate and distinct grounds, the Applicants urged this Court to so hold, and to make the order for reference accordingly.
Dwelling on the fourth of the conditions, the Applicants submitted that at this stage of the application for reference, this Court is not required to, and must not give an opinion of law on the question. That the duty in this regard, is vested in the Supreme Court in dealing with the substantive questions of law being sought to be referred to the said Court. The Applicants further submitted that what is required of this Court at this stage is to ascertain and determine whether or not they have satisfied the conditions precedent to making a reference. That once it is clear that the conditions are satisfied, this Court must grant the application and the cases of Adesanya v. The President of the Federal Republic of Nigeria (1981)5 SC 112; (1981) 2 NCLR 358; and Ukaegbu v. A-G Imo State (1983) Vol.14 NSCC 160 at 164, were cited in aid.
Though the Respondents formulated three issues for the determination of the motion, I intend to consider them together. The Respondents submitted to the effect that it is obvious from the manner in which the Applicants have couched the questions they want this Court to refer to the Supreme Court that the provisions of Sections 246(3) and 285(7) have already been interpreted by the Supreme Court in the cases they cited in the instant motion.
It is the stance of the Respondents that once a provision of the Constitution has been interpreted by the Supreme Court, the only thing left for courts lower to the Supreme Court in the hierarchy of courts, is to apply that provision as interpreted by the Supreme Court. That this Court cannot properly refer a question regarding the interpretation to be accorded any provision of the amended Constitution to the Supreme Court, when the said Court has already interpreted the provision in question and the cases of Nkwocha v. Governor of Anambra State (1984) NSCC 484; Dasuki v. Miazu (2002); National Democratic Party v. INEC (2007) All FWLR (Pt. 358) 1124; Borno v. Adamu (1996) 1 NWLR (Pt.427) 681; FEDECO V. Goni (1985) 6 NCLR 144 Onagoruwa v. President of Federal Republic of Nigeria (1984) 5 NCLR 171; and Gamioba v. Esezi II (1961) 2 SCNLR 237; were cited in aid.
The Respondents further set out some of the cases wherein the provision of Section 285(7) of the amended Constitution had been interpreted and applied by the Supreme Court to be Ogboru v. Uduaghan (2012) All FWLR (Pt. 637) 658; Amadi v. INEC (2012) All FWLR (Pt. 621) 1415; C.P.C. V. INEC (2012) All FWLR (Pt.617) 605; P.D.P. V. C.P.C. (2011) All FWLR (Pt. 603) 1786; Shettima v. Goni (2012) AII FWLR (Pt. 609) 1007; and Abubakar v. Nasamu (2012) All FWLR (Pt. 630) 1207. The Respondents also set out some of the cases in which the provision of Section 246(3) of the amended Constitution has been interpreted and applied by both the Supreme Court and this Court to be: Ogboru v. Uduaghan (2012) All FWLR (Pt.610) 1206; Emordi v. Igbeke (2011) All FWLR (Pt. 580) 1262; INEC V. Ejezie (2011) All FWLR (Pt. 596) 452. Against the backdrop of the cases cited, the Respondents submitted that there is nothing novel about the interpretation of Section 285(7) of the Constitution which has been interpreted and reinterpreted by the Supreme Court in a plethora of cases. Therefore a reference by this Court of the question formulated by the Applicants to the Supreme Court when the same provision has already been interpreted by the Supreme Court will amount to nothing but “carrying coal to Newcastle”.
The Respondents also submitted that the provision of Section 295 of the amended Constitution is not meant to truncate or short circuit the judicial hierarchy whereby a court such as this Court will abdicate its judicial responsibility by turning the Supreme Court to a place where cases will be dumped as it were, in the name of reference and the case of Polyhumpson & Co. WA Ltd v. Gyimah (2008) 2 NWLR (Pt.1071) 213 at 230-231 was cited in aid.
The Respondents further submitted that the two questions the Applicants want referred to the Supreme Court are questions which do not arise from the proceedings in the instant appeal. The Respondents in this regard referred to the issues for determination which have been placed before this Court as contained in their Brief of Argument. The issues read thus: –
1. Whether the lower court was right when it failed/refused to resolve all the issues raised before it?
2. Whether a judgment of a court of law delivered without jurisdiction and therefore a nullity cannot be challenged by a subsequent legal action (grounds 1 and 2).
3. Whether the lower court was right to have held that the plaintiffs/appellants had no iota belief in their suit when no such issue was submitted to the court for adjudication (ground 4).
4. Whether the judgment of the lower court was not against the weight of evidence (ground 5).
Against the backdrop of their issues for determination in the instant appeal, the Respondents submitted to the effect that this Court cannot take issues before the lower court and which issues did not arise in the instant appeal and refer them to the Supreme Court. That for this Court to refer any question to the Supreme Court, such a question must not only be novel and substantial, but it must also be directly in issue in the proceedings before it. In other words, that academic questions or issues cannot be referred to the Supreme Court. The cases of Nkwocha v. Governor of Anambra State (supra); Gamioba v. Esezi II (supra); and Olawoyin v. C.O.P. (1961) NSCC 261 were cited in aid. The Respondents stressed that where a constitutional provision has been interpreted, the only thing left is the application of the provision to the suit before the court. That Section 295(3) of the amended Constitution only deals with interpretation in novel situations and not to the application of constitutional provisions and cited in aid Olawoyin v. State (supra). The Respondents stressed that the questions raised for referral to the Supreme Court do not at all arise out of the proceedings before this Court and therefore they do not arise from the instant proceedings as prescribed by Section 295(3) of the amended Constitution. That they are merely and purely academic, in nature. The Court was urged to refuse the Applicants’ motion and dismiss same with substantial costs for being a time wasting venture foisted by Applicants on this Court.
Undoubtedly, it is the provision of Section 295(3) of the amended Constitution that governs the matter of reference from this Court to the Supreme Court. The provision reads thus: –
“Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of Appeal and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Court of Appeal as it deems appropriate.”
It is in my considered view clear from the submissions of the parties to the motion before the Court as copiously highlighted hereinbefore,that they are ad idem on the position of law that reference of questions to the Supreme Court by this Court is not one that should be made for the mere asking. Given the plain and clear provision of Section 295(3) re-produced above, it is in my view beyond dispute that the question or questions as to the interpretation or application of the amended Constitution being sought to be referred to the Supreme Court by the Applicants in the instant motion must first be found by this Court to arise in the proceedings before it. It is after there is a finding in this respect in the affirmative that an opinion as to the substantiality of the question or question calls for expression.
What is before this Court is an appeal against the judgment delivered on 29/6/2012 by the Federal High Court (hereafter simply referred to as “the lower court”) presided over by Buba, J; in Suit No. FHC/ASB/CS/35/2012 – (ENGR) EME MUKORO & ANOR. V.CALEB AVWEROSUO OKPAKO TEBITE & ANOR. The judgment is attached as Exhibit “6” to the instant motion. The suit was initiated by way of Originating Summons and the questions submitted for the determination of the lower court and well as the reliefs sought in the suit are set out at pages 1 – 4 of the judgment and they read thus: –
“1. Whether a judgment of a Court of competent jurisdiction which has not been set aside is not valid, subsisting and enforceable?
2. Whether the judgment of this Honourable Court in Suit No: FHC/ASB/CS/63/2011 delivered on 5/5/2011 which has not been set aside or reversed by any superior court does not remain valid and subsisting until set aside?
3. Whether by virtue of the provisions of Section 87 of the Electoral Act 2010 (as amended), jurisdiction has not been vested on the Federal High Court of Nigeria and the High Courts of the Federal Capital Territory and the various State High Courts to determine pre-election disputes to the exclusion of Election Petitions Tribunals whether at first instance or at appellate levels?
4. Whether a judgment of a court of law delivered on a subject over which a court has no jurisdiction is not null,void and of no effect whatsoever?
5. Whether by virtue of Section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the jurisdiction of Election Petitions Tribunals in Nigeria (whether at first instance or at appellate level) extends to the determination of any question relating to nomination of candidates of Political parties?
6. Whether in view of the separate and independent jurisdictions conferred by Section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Election Tribunal sitting on appeal as an Election Petitions Appeal Tribunal can set aside or purport to set aside a judgment delivered by the Federal High Court in a pre-election suit?
The reliefs sought in the action by the Plaintiffs (now Respondents) are:-
“a) A Declaration that the judgment of this Honourable Court in Suit No. FHC/ASB/CS/63/2011 – Engr. Eme Mukoro & Anor V. Independent National Electoral Commission (INEC) & Anor is a valid and subsisting judgment same having not been set aside by any court of competent jurisdiction on appeal.
b) A Declaration that the Plaintiffs being beneficiaries of the judgment in Suit No: FHC/ASB/CS/63/2011 aforesaid are entitled to the full benefit and enjoyment of the fruits of the said judgment until same is set aside.
c) A Declaration that the judgment of the Court of Appeal in Appeal No: CA/B/EPT/374/2011 delivered on 19/12/2011 which purported to hold contrary to the judgment of this Honourable Court in Suit No: FHC/ASB/CS/63/2011 that the 2nd Plaintiff did not field a candidate for the April 2011 general election for the Ughelli Constituency into the Delta State House of Assembly is ultra vires the powers of the Election Petitions Tribunal in Nigeria (whether on appeal or at first instance) and contrary to Section 285 of the Constitution of the Federal Republic of Nigeria and therefore null and void and of no effect in law.
d) A Declaration that the certificate of return issued to the 1st Plaintiff pursuant to the judgment of this Honourable Court which is still valid and subsisting remains valid until the judgment on the basis of which the said certificate of return was issued to the 1st Plaintiff as the candidate of the 2nd Plaintiff for the April 2011 general election for Ughelli South Constituency of Delta State is set aside.
e) A Declaration that there can be only one valid certificate of return for one constituency in respect of one election and since the certificate of return issued to the 1st Plaintiff has not been invalidated it remains valid and supersedes any other certificate of return which emerges subsequently.
f) A Declaration that the 1st Plaintiff having been declared to be the candidate of the 2nd Plaintiff in respect of the April, 2011 election into Ughelli South Constituency of Delta State, is entitled to enjoy to the fullest the benefits of the said judgment.”
The lower court clearly did not find in favour of the Respondents. Indeed, the lower court found the Respondents’ suit to be an abuse of the court process and dismissed the same. Being aggrieved by the judgment of the lower court, the Respondents lodged an appeal against the same by a Notice of Appeal attached to the motion (supra) as Exhibit “6”. The Notice of Appeal contains five grounds of appeal and the relief which the Respondents as Appellants seek from this Court as stated in the Notice reads thus: “To allow the appeal, set aside the Judgment of the lower Court, and grant the prayers of the Plaintiffs/Appellants before the lower Court”
In arguing that the questions which the Applicants seek to be referred to the Supreme Court do not arise from the proceedings before this Court, the Respondents referred to the issues which they have formulated for the determination of the appeal (which have been re-produced hereinbefore) and contended to the effect that this Court cannot take cognizance of issues before the lower court and which have not arisen from the proceedings in the instant appeal and refer them to the Supreme Court. That a question or questions to be referred to the Supreme Court in the instant appeal must not only be novel and substantial but must also be directly in issue in the proceedings before this Court. The submissions of the Respondents regarding the questions which the Applicants seek to be referred to the Supreme Court, in my considered view clearly concedes that the said questions arise from the proceedings before the lower court.
I am of the considered view that the Respondents in arguing to the effect that the questions sought to be referred to the Supreme Court by the Applicants do not arise from the proceedings in the appeal, have not only conveniently overlooked the fact that they are by the instant appeal seeking or praying this Court to grant them the reliefs which they claimed before the lower court, but also that all the issues they have formulated for the determination of the appeal if resolved in their favour are designed to achieve the granting of the reliefs sought by them before the lower court by this Court.
Against the backdrop of this reasoning and having regard to the reliefs being claimed in the instant appeal, particularly relief (c), I cannot but agree with the Applicants that the questions which they want this Court to refer to the Supreme Court have indisputably arisen in the proceedings in the instant appeal. It is clearly not the position of the Respondents that the questions which the Applicants want referred to the Supreme Court do not arise at all from the proceedings before the lower court. The Respondents by wholly submitting their entitlement to the claims they had before the lower court to this Court for determination in the instant appeal, have also succeeded in donating to the Applicants the enabling situation to formulate the questions which they want referred to the Supreme Court from the proceedings in the instant appeal.
I now proceed to consider the substantially of the questions which the Applicants want this Court to refer to the Supreme Court. The Respondents have submitted that the Sections of the amended Constitution (namely, 246(3) and 285(7)) which the Applicants seek the Supreme Court to interpret by the questions they want referred, have been interpreted in many cases; hence there is nothing novel about the provisions of the Sections anymore that requires interpretation by the Supreme Court. The Respondents indeed submitted to the effect that the motion of the Applicants glaringly concedes that the Supreme Court has already interpreted the provisions of Sections 246(3) and 285(7) of the amended Constitution. This is against the backdrop of the cases which the Applicants cited in the motion (supra).
In the case of BAMAIYI V. A.G. FEDERATION (2001) 7 S.C. (Pt.II) 62. (2001) 12 NWLR Pt.727) the Supreme Court set out and adopted as a correct interpretation of the expression “substantial question of law” what the Federal Supreme Court said in relation to the expression in the case of Olawoyin & Others v. Police (No.2) (1961) 2 SCNLR 278; (1961) All NLR at p. 625 to wit:
‘It will be difficult to attempt an exhaustive definition of what is a substantial question of law. A useful guide in determining whether an issue of law is substantial is provided in a number of Indian decisions dealing with a similar phrase in the Indian Constitution. There it has been held that in order to be substantial, the issue must be such that there may be some doubt or difference of opinion as to what the law is. When no such doubt exists, or the law is established by a final Court of Appeal, or by all overwhelming consensus of judicial decisions the mere application of it to a particular set of facts does not constitute a substantial question of law, however important the issue may be on the decision of a particular case. Oheara v. C.P. Syndicate (1949) 4 D.L.R 20;…”
It would appear that it is in the case of PDP V. CPC [2012] 4 WRN 1, that the Supreme Court first interpreted the provisions of Section 285(5)-(7) of the amended Constitution.
Dwelling on the provisions in question at page 19 the Supreme Court, per Onnoghen, JSC; stated thus: –
“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 declaration of 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 the filing of the petition;
(7) An appeal from a decision of an Election Tribunal or Court of Appeal in an election matter shall be heard and disposed (sic) date of the delivery of judgment of the tribunal or Court of Appeal”.
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 constitutionally provided in section 285(5) – (7) of the 1999 Constitution (as amended), by interpretation of the sections or otherwise.”
(Underlining provided by me for emphasis).
Again, the Supreme Court dwelling on the provisions of the amended Constitution relating to election petition particularly Section 285(6) in the case of ANPP V. GONI [2012] 42 WRN 1, at page per Onnoghen, JSC; stated thus: –
“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 however well intentioned, neither can a court order create and confer jurisdiction on any court/tribunal on any matter where jurisdiction has not been conferred by statute or the constitution.
It is my considered opinion that by the lower court ordering a retrial by a tribunal which had ceased to have jurisdiction in a 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 appeals 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 vs Adm. Mutala 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 very worrisome that despite the decisions of this court since October, 2011 on the time fixed in the constitution some 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 one hundred and eighty (180) days assigned in the Constitution, without extending the time so allotted? Do courts have the vires to extend the time assigned by the constitution? The answer is obviously in the negative.
It should be constantly kept in mind that prior to the provisions of Section 255(6) of the 1999 Constitution, as amended; there was no time limit for the hearing and determination of an election petition by the election tribunals or the appeals arising therefrom. That situation resulted in undue delay in the hearing and determination of election matters. The amendment to the original Section 285 of the 1999 Constitution by allotting time within which to hear and determine election petition and appeals arising therefrom is designed to ensure expeditious hearing and conclusion of election matters in this country. If the decision of the lower court, in the circumstance of this case and the law, is allowed to stand as urged by the respondents it would reintroduce the earlier mischief which the amendment sought to correct. It will mean that the instant election petition can go on for another one hundred and eighty (180) days or more after the expiration of the original one hundred and eighty (180) days assigned by the constitution.
It is my considered view that the provisions of 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 moreso when it is a constitutional provision.’
(Bold and Underline provided by me for emphasis).
It would appear indisputable from the cases cited above and the portions reproduced therefrom that the provision of Section 285(7) has already been interpreted by the Supreme Court, as submitted by the Respondents. The same is the position in relation to the provision of Section 246(3) of the amended Constitution against the backdrop of the cases cited in the Applicants’ motion (supra) as well as other cases cited in the Respondents’ written address in relation to the said Section.
Given the fact that the Supreme Court has already interpreted the provisions of the amended Constitution upon which the Applicants have predicated or hinged the questions which they want this Court to refer to the Supreme Court, it would appear clear in the circumstance that there is patently nothing substantial in the said questions as the position of the law concerning the said Sections has been clearly stated by the Supreme Court.
It is most glaring from the questions which the Applicants want this Court to refer to the Supreme Court that what the Applicants are actually about is for the interpretation accorded the provisions of Sections 246(3) and 285(7) of the amended Constitution to be applied to the instant appeal which the Applicants have christened “election-related appeal” by the Supreme Court. It is in my considered view clear from the case of BAMAIYI v. A.G. FEDERATION (supra) that the desire of the Applicants in this regard,cannot clothe the questions with substantiality to warrant their reference to the Supreme Court.
I have hereinbefore reproduced some portions of the judgment of the Supreme Court in the case of ANPP V. GONI (supra). Against the backdrop of the admonition of the Supreme Court in the case,this Court had never shied away from away from applying the decisions of the Supreme Court or interpretation accorded to the provisions of the Constitution or Electoral Act 2010, and/or any other Statute by the Supreme Court as it is bound to do by law, in appropriate or deserving election related cases and/or situations. In this regard see the Ruling (unreported) delivered on 13th March, 2012, in APPEAL NO.CA/E/EPT/4M/2012 – ANDY EMMANUEL UBA V. APGA & ORS; in which this Court applied the pronouncement of the Supreme Court in the case of PDP V. CPG (supra); in striking out the application before it, having found the same to have arisen from a decision of this Court in an election appeal and as the period within which the Court could competently exercise jurisdiction over the said appeal, had expired. See also (i) HON. TONY COLLINS NWABUNWANNE V. HON. VICTOR JIDEOFOR OKOYE & ORS 2013 [2013] 3 WRN 116; wherein a motion for an order extending the time within which the Applicant may bring an application inter alia for an order setting aside the judgment of this Court in Appeal No. CA/E/EPT/53/2011 – HON. VICTOR JIDEOFOR OKOYE V. HON. TONY COLLINS NWABUNWANNE and 3 ORS, as the same was given without jurisdiction and is therefore a nullity, was struck out for lack of jurisdiction on the part of the Court, as it was found to the effect that the Applicant’s motion related to an election petition and particularly is directly in relation to the judgment of this Court delivered in an election petition appeal. In other words that the Applicant’s motion for extension of time is irretrievably and irredeemably an election petition/election petition appeal, related matter, even though it has been brought pursuant to the Rules of this Court; (ii) ENGR. OBORO K. PREYOR V. HON. MORO REGINALD DONBRAYE & ORS: IN RE – HON. MORO REGINARD DONBRAYE & ANOR. [2013] 6 WRN 57; and UDEH V. NWANKWO [2012] 32 WRN 29. To the extent therefore that the Applicants have patently disclosed the settled position of the Supreme Court in relation to the provisions of Sections 246(3) and 285(7) of the amended Constitution, and as it is glaring that it is only the application of the interpretation accorded the Sections to or in the instant appeal particularly to the reliefs being sought by the Respondents that the Applicants are really after or about, I certainly see nothing substantial in the questions and find that the questions which the Applicants want this Court to refer to the Supreme Court do not involve any substantial question of law.
In the final analysis, the motion brought by the Applicants fail and is hereby dismissed with N30,000.00 costs to the Respondents.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the Ruling just delivered by my learned brother AYOBODE OLUJIMI LOKULO-SODIPE, JCA. I agree with his Lordship’s reasoning and conclusion that the motion has no merit and ought to be dismissed and is hereby dismissed.
I want to add that the decisive argument for me is that there is nothing substantial or recondite in the questions sought to be transferred for interpretation to the Supreme Court. I must add that it is only in the legal practice of this country that counsel are allowed to use all manner of tactics to delay the hearing of an appeal. The questions sought to be referred to be Supreme Court have been settled by the apex court decisively on several occasions and there is no feature in this present case requiring a departure from the position hitherto held by the apex court. Moreover, the issues for determination submitted by the Respondents/Applicants for referral to the Supreme Court do not arise from the proceedings before this Court to warrant a referral to the apex court. This is because the issues identified for determination by the parties in this appeal are quite different from the questions sought to be referred to the Supreme Court. In the circumstances, this application is without merit and is hereby dismissed. I abide by the order as to costs in the lead judgment.
SIDI DAUDA BAGE, J.C.A.: I had the honour of reading in draft, the leading ruling of my learned brother A. O. LOKULO-SODIPE, JCA, for which I am in complete agreement with. The ruling is quite exhaustive on the recurring Referral to the Supreme Court, for its decision upon the question set forth in the application. I do not have anything more useful to add. I also agree after a very careful study of the questions set forth, in the present application that, there is no substantial question of law for this court to refer to the Supreme Court for decision. This application also fails before me, and I also dismiss it.
I abide by the order as to costs contained in the lead Ruling.
Appearances
Chief E. L. Akpofure SAN; with Henry Obafemi and V. O. IdiaphoFor Appellant
AND
Ikhide Ehighelua with A. E. AlagunFor Respondent
