HON. MRS. BECKIE ORPIN v. HON. AARON SHAWON M. JP & ORS
(2019)LCN/12881(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/MK/194/2017
RATIO
COURT AND PROCEDURE: WHETHER THE COURT SHOULD BE MORE CONCERNED ABOUT ACADEMIC ISSUES THAN RESOLVING DISPUTE.
“As it is well known, Courts of law are not the proper fora for the ventilation of academic issues. Also, as the Supreme Court has consistently stated, courts should, on no account, spend precious judicial time on issues that are academic. Instead, they should determine live issues and those are issues that would meet the ends of justice. See Saraki V FRN (2016) LPELR-40013(SC) 64-65, F-A, per Muhammad, JSC; FRN V Dairo (2015) LPELR-24303(SC) 49-50, F-e, per Nweze, ‘SC; & Mamman V FRN (2013) LPELR-20082(SC) 11-12.” PER JUMMAI HANNATU SANKEY, J.C.A.
CONSTITUTION: WHETHER THE TIME PRESCRIBED BY THE CONSTITUTION CAN BE EXTENDED
“See also Marwa V Nyako (2012) LPELR-7837(SC) 64, G where Onnoghen, JSC (now CJN) again emphasized the paramountcy of the provisions of the Constitution in the scheme of things, as follows: It is settled law that the time fixed by the Constitution for the doing of anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded or stretched beyond what it states.” PER JUMMAI HANNATU SANKEY, J.C.A.
INTERPRETATION: STARE DECISIS
“By the doctrine of judicial precedents otherwise known as stare decisis, this Court is duty bound to faithfully follow and apply the findings of the Supreme Court in this decision to the facts of this case, which are virtually on all fours. See Dakan V Asalu (2015) LPELR-24687(SC) 27-27; Odi V Osafile (1985) 1 NWLR 17.” PER JUMMAI HANNATU SANKEY, J.C.A.
INTERPRETATION: STATUTE OF LIMITATION
“This provision falls within the meaning of a statute of limitation as defined by the Supreme Court in Texaco Panama Incorporation V SPDC (Nig) Ltd (2002) FWLR (Pt. 96) 579, 611, E-F. Therein, Mohammed, JSC held:
A statute of limitation is one which provides that no Court shall entertain proceedings for the enforcement of certain right if such proceedings were set on foot after the lapse of a definite period of time… A cause of action is statute-barred if it is brought beyond the period laid down by the statute within which such action must be filed in Court.?
In the con of the Appeal now before us, a cause of action includes a right of appeal. A limitation statute, once it has run out, takes away the right to seek remedy in the enforcement of the accrued right in Court, leaving the right bare and untouched. The right remains, but the means to enforce it is extinguished for all times. See ACN V INEC (2013) LPELR-20300(SC) 16-17; Ibrahim V JSC, Kaduna State (1998) 14 NWLR (Pt. 584) 1 (SC); & P.N. Udoh Trading Co. Ltd V Abere (2001) FWLR (Pt. 57) 900.”PER JUMMAI HANNATU SANKEY, J.C.A.
INTERPRETATION: WHEN AN ACTION IS STATUTE BARRED
“The consequence of a statute limitation was restated in Hassan v. Aliyu & ors (2010) LPELR-1357(SC) at page 89 of the E- Report, per Adekeye, JSC. thus: “When an action is statute-barred, the plaintiff who might have had a cause of action loses the right to enforce the cause or action by judicial process because period had elapsed. An action commenced after the expiration of the statutory period within which an action must be brought is not maintainable. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being instituted before the Court.” PER ONYEKACHI AJA OTISI, J.C.A.
JURISDICTION: WHERE A COURT ACTS WITHOUT JURISDICTION
” I find it expedient and necessary at this stage to suo motu raise an issue which touches on the competence of the Appeal itself and therefore the jurisdiction of the Court to hear and determine same. This is undoubtedly because where a Court acts without jurisdiction, all its efforts are in vain and the proceedings of the Court, no matter how well conducted, are a nullity. Therefore, in order not to embark on a futile exercise, notwithstanding that due to the lack of diligence of learned Counsel for the 1st Respondent, the 1st Respondent’s preliminary objection was deemed abandoned, the issues of jurisdiction sought to be raised therein are still live issues which cannot be ignored…As aforesaid, I believe it is imperative to consider and decide on the weighty issue of jurisdiction raised suo motu by the Court before any consideration is given to the main Appeal on its merits. This is invariably because once there is any feature in the case that would prevent the Court from hearing the case, by the decision of the Supreme Court in the locus classicus in Madukolu V Nkemdilim (1962) All NLR 362, it would be foolhardy to embark upon an exercise that may turn out to be an exercise in futility. It is only after the issue of jurisdiction is settled affirmatively that further consideration can be given to issues raised in the Appeal on their merits, where necessary.” PER JUMMAI HANNATU SANKEY, J.C.A.
STATUTE:INTERPRETATION OF RETROSPECTIVE OPERATION OF STATUTE
“Indeed, it is an elementary principle of interpretation in the construction of statutes that it is against an interpretation which gives a statute a retrospective operation so as to impair an existing right or obligation. See Afolabi V Governor, Oyo State (1985) NWLR (Pt. 91) 734, where the Supreme Court held that no statute shall be construed to have retrospective operation unless such construction appears very clearly in the provisions of the statute, arising therefore by necessary and distinct implication; and that Courts lean against interpreting a statute to deprive a party of an accrued right.” PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
HON. MRS. BECKIE ORPIN Appellant(s)
AND
1. HON. AARON SHAWON M. JP
2. ALL PROGRESSIVES CONGRESS, BENUE STATE CHAPTER
3. BENUE STATE INDEPENDENT ELECTORAL COMMISSION (BESIEC) Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A.(Delivering the Leading Judgment):
This Appeal is against the Judgment of the High Court of Justice, Benue State sitting at Gboko delivered on 09-06-17, Coram Kwahar, J. Therein, Judgment was given in favour of the Applicant (1st Respondent herein) but against the 1st to 3rd Respondents therein (now 2nd Respondent, 3rd Respondent and Appellant).
The brief facts leading to the Appeal may be summarised as follows: The Applicant before the lower Court, Hon. Aaron Shawon M. JP (now 1st Respondent), concurrently filed two initiating Court processes, to wit: a Writ of Summons and an Originating Summons before the lower Court. In the Originating Summons, he posed a myriad of questions to be answered by the Court, and then sought the following eight (8) reliefs from the lower Court as follows:
1.A DECLARATION that the purported disqualification of the applicant from contesting in the APC Chairmanship Primaries for Gboko Local Government of Benue State slated for 20th April, 2017 was in violation of Article 7 (viii), 9.3 and 18 of the APC Constitution, 2014 (as amended) as well as Article 2, 3, 7 & … (illegible) of the APC Guidelines for the Nomination of Candidate for Local Government Elections 2017.
2.A DECLARATION that on a community reading of the provisions of Articles 9.1 (i) 9.2 (m) 9 … (illegible) 18C (m) and 31(1) (2) & (3) of the APC Constitution 2014 (as amended) and Articles 2, 3, 4, 5, 6, 7, 10 & 12(1) of the APC Guidelines for the Nomination of Candidate for the Local Government Elections 2017 interpreted vis-a-vis Section 42(10) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the unilateral and arbitrary adoption of the candidacy of the 3rd Respondent by the APC Screening Committee and the disqualification of the applicant from contesting in the APC Chairmanship Primaries for Gboko Local Government Council on the ground of gender was illegal, unconstitutional, null and void.
3.A DECLARATION that in the face of the unlawful and illegal disqualification of the applicant from contesting in the APC Chairmanship Primaries for Gboko Local Government Benue State slated for the 20th April, 2017, the conduct of the said primaries without the APPLICANT is an exercise in futility and a nullity.
4.AN ORDER OF PERPETUAL INJUNCTION restraining the 1st respondent from presenting and putting forth the 3rd Respondent to the 2nd respondent as the party?s Chairmanship Candidate for Gboko Local Government Council in the 3rd June, 2017 Local Government Elections in Benue State.
5.AN ORDER restraining the 2nd respondent from dealing with or otherwise recognizing the 3rd Respondent as the APC Chairmanship Candidate for Gboko Local Government in the 2017 Local government Elections in Benue State.
6.AN ORDER restraining the 3rd Respondent from parading herself/holding herself out in any manner or guise whatsoever as the nominated Chairmanship Candidate of the 1st Respondent for Gboko Local Government of Benue State for the 2017 Local Government Elections the State.
7.AN ORDER directing the 1st Respondent to re-schedule and organize fresh Chairmanship Primaries in Gboko Local Government Council of Benue State fielding the Applicant as a candidate in the said primaries and giving the Applicant proper security cover.
8.ANY OTHER OR SUCH FURTHER ORDER(S) this Honourable Court may deem fit to make in the circumstances of the case.
In his supporting affidavit to the Originating Summons, the Applicant (now 1st Respondent) stated that he was disqualified and so excluded from participating in the Primary Election that produced the 3rd Respondent (now Appellant) as the consensus candidate of the All Progressives Congress (APC) on the ground of gender.
Upon being served with the Court processes of the Applicant (1st Respondent herein), learned Counsel for the 1st and 3rd Respondents therein (now the 2nd Respondent and Appellant), filed a Motion on notice wherein they raised a preliminary objection to the hearing of the Appeal. Therein, they prayed the Court to strike out the name of the 1st Respondent from the suit and also sought an Order dismissing or striking out the suit for want of competence. Contemporaneously, learned Counsel filed a counter affidavit challenging an application for an interlocutory injunction filed by the Applicant.
Also, learned Counsel for the 2nd Respondent therein (now 3rd Respondent) filed a counter affidavit as well as Notice of Preliminary Objection challenging the jurisdiction of the lower Court to hear the suit as constituted on the ground that the 1st and 2nd Respondents therein were not juristic persons. The Applicant’s Counsel responded to the two preliminary objections and the counter affidavits of the Respondents on points of law.
Upon hearing the objections and the substantive suit together, the lower Court dismissed both objections as well as the responses to the application offered by the Respondents; and proceeded to enter Judgment in favour of the Applicant (now 1st Respondent). The learned trial Judge concluded as follows at page 210 of the Record of Appeal:
The reliefs prayed for on the face of the originating summons are granted and for emphasis AN ORDER is made directing the 1st Respondent to re-schedule and/or organize fresh Chairmanship primaries in Gboko Local Government Council of Benue State fielding the Applicant as candidate in the said primaries within 30 days from today.
Dissatisfied with this decision, the Appellant filed her first Notice of Appeal on 09-06-17 and then a subsequent Notice on 13-06-17, wherein she complained on five (5) and six (6) grounds respectively. These were further amended by an Amended Notice of Appeal filed on 16-02-18 but deemed filed on 11-02-19, wherein the Appellant complained on 13 grounds.
In the 1st Respondent’s Brief of argument filed on 14-02-19, the 1st Respondent incorporated a preliminary objection against the hearing of the Appeal. The objection is said to be based on Section 2(12) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017. Therein, it is contended that this Court lacks jurisdiction to entertain further proceedings in the Appeal and same should be dismissed on the following grounds:
1. The appeal is statute barred.
2. The appeal is against a decision in a pre-election matter and must be heard and determined within 60 days.
3. The Appellant’s Notice of Appeal was filed on 09/06/2017 and is yet to be determined.
4. The time for the hearing and determination of the appeal has elapsed.
5. This Honourable Court lacks the jurisdiction to entertain the appeal.
At the hearing of the Appeal on 28-02-19, learned Counsel for the Appellant, F.A. Nomor Esq., proceeded to argue the Appeal by adopting the Appellant’s Brief of argument filed on 16-02-18 in urging the Court to allow the Appeal. At this stage, rather belatedly after the Appeal had been duly argued by the Appellant’s Counsel, learned Counsel for the 1st Respondent sought to argue his preliminary objection. However, since the Appeal had already been argued, the preliminary objection had lost its status/standing as a preliminary issue which ought to have been raised and canvassed before the Appeal was argued. Thus, even though arguments thereon had been incorporated in the 1st Respondent’s Brief of argument, the arguments were deemed to have been abandoned by the 1st Respondent’s Counsel. The preliminary objection is therefore struck out.
As a result of this turn of events, learned Counsel for the 1st Respondent, I.A. Ututu Esq., was obliged to simply adopt his submissions in respect of the substantive Appeal in the 1st Respondent’s Brief of argument filed on 14-02-19, in urging the Court to dismiss the Appeal. The 2nd and 3rd Respondents on their part did not file any Brief of argument and so did not respond to the Appeal.
In arguing the Appeal, the Appellant formulated three issues for determination and the 1st Respondent adopted the issues. The issues are therefore adopted by the Court in the resolution of the Appeal. They are set out as follows:
1. Was the trial Court right to have assumed jurisdiction and determined the suit? (Grounds 1, 2, 3, 4, 7, 8, 9, 10, 11, 12 and 13)
2. Was the trial Court right in relying on the oral submissions of the 1st Respondent?s Counsel in opposition to Appellant?s damaging affidavit and written address in support of her preliminary objection? (Ground 5)
3. From the weight of competing admissible evidence before the trial Court, was its decision granting the 1st Respondent’s relief correct? (Ground 6)
Even so, after due consideration of the issues thrown up for the resolution of the Appeal vis-a-vis certain obvious issues touching on the jurisdiction of this Court to hear the Appeal, which issues are apparent from the face of the Appeal and the processes filed thereto, I find it expedient and necessary at this stage to suo motu raise an issue which touches on the competence of the Appeal itself and therefore the jurisdiction of the Court to hear and determine same. This is undoubtedly because where a Court acts without jurisdiction, all its efforts are in vain and the proceedings of the Court, no matter how well conducted, are a nullity. Therefore, in order not to embark on a futile exercise, notwithstanding that due to the lack of diligence of learned Counsel for the 1st Respondent, the 1st Respondent’s preliminary objection was deemed abandoned, the issues of jurisdiction sought to be raised therein are still live issues which cannot be ignored.
It goes without saying that jurisdiction is a threshold matter which must be decided once it rears up its head, either through any of the parties or by the Court itself. It is the live-wire of any case without which it cannot survive. It is for this reason that on 19-03-19, after the Appeal had been argued on 28-02-19, this Court invited learned Counsel for the respective parties to address it on the following issue touching on jurisdiction:
Whether or not this Appeal No. CA/MK/194/2017, which was filed on 09-06-17 against the Judgment of the High Court of Justice, Benue State in suit number GHC/20/2017 delivered on 09-06-2017 in a pre-election matter, and which Appeal was heard by this Court on 28-02-19, is competent in view of the provision of Section 285(12) of the Constitution of the Federal Government of Nigeria, 1999 (Fourth Alteration, No. 21) Act of 2017.
In his oral address to the Court, learned Counsel for the Appellant, Nomor Esq., submits that since the Appeal was filed on 09-06-17, long before the Fourth Alteration Act, No. 21, 2017, whose commencement date is 07-06-18, came into effect, the provisions of the Act can only affect the rights of persons which came into effect after it was enacted. He submits that a Constitution, like other statutes, operates prospectively and not retrospectively unless it is expressly provided to be otherwise. There is no such express provision in the Act for a retrospective application. Reliance is placed on Olaniyi V Aroyehun (1991) LPELR-2566(SC) 64065, C-D.
Learned Counsel also urged the Court not to place reliance on the recent decision of the Supreme Court in Obayemi Toyin V PDP (Unreported) Appeal No. SC.308/2018, Judgment delivered on 18-01-19 because it only makes reference to a procedural law or a practice of the Court, and thus does not relate to the substantive provisions of the Constitution.
In response, learned Counsel for the 1st Respondent, Ututu Esq., submits that this Appeal is spent and statute barred, and so the Court lacks the necessary jurisdiction to proceed with its determination. He relies on Section 285(12) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration, No. 21) Act, 2017. He contends that the Appeal was filed on 09-06-17 and was finally heard on 28-02-19, a period of one year and nine months thereafter. For the interpretation of the provision, reliance is placed on the decision of the Supreme Court in Obayemi Toyin V PDP & 3 others (Unreported) Appeal No. SC.308/2018, Judgment delivered on 18-01-19. It is contended that the Supreme Court held that all Appeals not determined within 60 days are spent and must be struck out; and that the said provision applies retrospectively. The decision in Olaniyi V Aroyehun (supra) relied on by Counsel for the Appellant was distinguished since it did not pronounce on Section 285(12) of the Fourth Alteration Act, and thus has no relevance to the facts of this Appeal. Counsel therefore urged the Court to strike out the Appeal.
Findings:
Based on the oral submissions of learned Counsel for the Appellant and the 1st Respondent on the issue of jurisdiction raised suo motu by the Court, I hereby make my findings. As aforesaid, I believe it is imperative to consider and decide on the weighty issue of jurisdiction raised suo motu by the Court before any consideration is given to the main Appeal on its merits. This is invariably because once there is any feature in the case that would prevent the Court from hearing the case, by the decision of the Supreme Court in the locus classicus in Madukolu V Nkemdilim (1962) All NLR 362, it would be foolhardy to embark upon an exercise that may turn out to be an exercise in futility. It is only after the issue of jurisdiction is settled affirmatively that further consideration can be given to issues raised in the Appeal on their merits, where necessary.
The preamble to the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017, reads thus:
AN ACT TO ALTER THE PROVISIONS OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 TO PROVIDE TIME FOR THE DETERMINATON OF PRE-ELECTION MATTERS: AND FOR RELATED MATTERS.
Its commencement date is stated therein as being 7th day of June, 2018. The relevant provisions of the Act to this issue are contained broadly in Section 2(c) of the Fourth Alteration Act, which provide inter alia as follows:
2. Section 285 of the Principal Act is further altered by
(c) inserting, after subsection (8), new subsections (9)-(14)
… … … … … …
(12) An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.
This provision falls within the meaning of a statute of limitation as defined by the Supreme Court in Texaco Panama Incorporation V SPDC (Nig) Ltd (2002) FWLR (Pt. 96) 579, 611, E-F. Therein, Mohammed, JSC held:
A statute of limitation is one which provides that no Court shall entertain proceedings for the enforcement of certain right if such proceedings were set on foot after the lapse of a definite period of time… A cause of action is statute-barred if it is brought beyond the period laid down by the statute within which such action must be filed in Court.?
In the con of the Appeal now before us, a cause of action includes a right of appeal. A limitation statute, once it has run out, takes away the right to seek remedy in the enforcement of the accrued right in Court, leaving the right bare and untouched. The right remains, but the means to enforce it is extinguished for all times. See ACN V INEC (2013) LPELR-20300(SC) 16-17; Ibrahim V JSC, Kaduna State (1998) 14 NWLR (Pt. 584) 1 (SC); & P.N. Udoh Trading Co. Ltd V Abere (2001) FWLR (Pt. 57) 900.
In respect of the instant Appeal, it is an admitted fact and therefore not in dispute between the parties that the Appeal before this Court emanated from a pre-election matter determined at the High Court of Justice, Benue State sitting in Gboko. It pertains to the Primary Election conducted by the All Peoples Congress (APC) to elect the candidate of the Party to contest election into the office of the Chairmanship of Gboko Local Government of Benue State. The 1st Respondent?s complaint was that he was disqualified and so excluded from participating in the Primary Election of the Party on the ground of his gender, and so did not participate in the said Primary Election.
In addition, parties are ad idem on the following: the date on which the Judgment of the lower Court was delivered; the date on which the Appeal before this Court was filed; and the date on which the Appeal (which is yet to be determined) was finally heard. Thus, from the Record of Proceedings, it is indisputable that the Judgment of the lower Court in this pre-election matter was delivered by the lower Court on 09-06-17. Thereafter, the Appellant filed the instant Appeal on the same day, 09-06-17. The Appeal was finally heard by this Court on 28-02-19. It is therefore incontestable that the hearing of the Appeal, which is being determined today by this Judgment, was done outside the time limited and/or circumscribed by Section 285(12) of the Constitution as altered by Section 2(c) of the Fourth Alteration Act, No. 21 of 2017.
The next point of contention between the contending parties vide the submissions of learned Counsel is the applicability or otherwise of the relevant provisions of the Constitution (Fourth Alteration, No. 21) Act (supra) to this Appeal, given the facts of the Appeal. Whereas learned Counsel for the 1st Respondent contends that the Appeal is statute-barred by virtue of Section 285(12) of the Constitution, learned Counsel for the Appellant argues that the provisions of the Act cannot be applied retrospectively to this Appeal, but prospectively. Thus, he argues that since the Appeal was filed on 09-06-17, before the coming into force of the Act on 07-06-18, the Appeal is not statute-barred.
Indeed, it is an elementary principle of interpretation in the construction of statutes that it is against an interpretation which gives a statute a retrospective operation so as to impair an existing right or obligation. See Afolabi V Governor, Oyo State (1985) NWLR (Pt. 91) 734, where the Supreme Court held that no statute shall be construed to have retrospective operation unless such construction appears very clearly in the provisions of the statute, arising therefore by necessary and distinct implication; and that Courts lean against interpreting a statute to deprive a party of an accrued right. However, the Supreme Court in its recent decisions has since held that statutes which make alterations to procedure only take immediate and retrospective effect, unless otherwise expressly stated. See Obayemi Toyin V Arogundade Samuel Musa & 3 others (Unreported) Appeal No. SC.307/2018, Judgment delivered on 18th January, 2019 by I.T. Muhammad, JSC; & Obayemi Toyin V Peoples Democratic Party & others (Unreported) Appeal No. SC.308/2018, Judgment delivered on 18th January, 2018 by I.T. Muhammad, JSC.
In the latter case of Obayemi Toyin V Peoples Democratic Party & others (supra), a similar scenario as the one now before this Court, was presented to the learned Justices of the Supreme Court. The facts leading to the Appeal disclosed that in a pre-election matter commenced before the Federal High Court, Ado-Ekiti on 10-04-15, the Court delivered its Judgment on 04-07-2016, wherein all the reliefs of the Appellant were granted. Dissatisfied with the decision, the 1st Respondent appealed to the Court of Appeal, Ado-Ekiti Judicial Division on 29-12-2017 and the decision of the Federal High Court was set aside. Being dissatisfied, the Appellant now appealed to the Supreme Court vide a Notice of Appeal filed on 23-03-2018.
In addition to the filing and exchanging of Briefs of arguments by the respective parties, learned Counsel for the 3rd and 4th Respondents before the Supreme Court filed a Notice of Preliminary Objection raising an objection to the hearing of the Appeal. It read as follows:
1. The Appeal is statute barred
2. Appeal against a decision on pre-election matter must be heard and determined within 60 days
3. The appellant?s notice of appeal was filed on 23rd March, 2018 and yet to be determined
4. The time for hearing and determination of the appeal has elapsed
5. This Hon. Court lacks jurisdiction to entertain the appeal.
As in this case, the Objector therein argued that the Appeal having been filed on 23-03-18, and same having been served on the 1st Respondent on 07-06-18 (being the 76th day after the process was filed), the time allowed by law for the Supreme Court to hear and determine the Appeal had lapsed and the Court was without jurisdiction to entertain it, the Appeal having not been heard and concluded within 60 days of filing the Notice of appeal. It was however the contention of the Appellant therein that Section 2(12) of the Constitution (1999) (Fourth Alteration, No. 21) Act, 2017 was not applicable to the Appeal which was filed on 23-03-18, long before the Fourth Alteration was assented to by the President of the Federal Republic of Nigeria on 01-06-18. Counsel also argued that the Act cannot operate retrospectively but prospectively.
However, the Supreme Court, while agreeing with learned Senior Counsel for the Appellant that generally, provisions of the Constitution and other statutes do not operate retrospectively, held that election matters are sui generis and as such, they are governed by their own special laws. Thus, by the express provision of Section 2(12) of the Constitution (Fourth Alteration) Act, 2017, the Appeal having not been heard and determined within the 60 days after Judgment was delivered by the lower Court, a period circumscribed by the Fourth Alteration Act; the Court was divested of jurisdiction to entertain the Appeal. The Appeal was therefore struck out.
In respect of the retrospective operation of the provisions of the Fourth Alteration Act (supra) to the Appeal, Eko, JSC in his contributory Judgment wherein he agreed with the lead Judgment, held that since the effect of Section 285(12) of the Constitution (as altered) shortening the period within which proceedings may be concluded, is procedural, it takes immediate effect and applies retrospectively. For a better enunciation of this aspect of the law, hear directly from his lordship at pages 4 to 6 of his Contributory Judgment:
Earlier in Afolabi V Governor, Oyo State (1985) NWLR (Pt. 91) 734 this Court restated the law, holding that no statute shall be construed to have retrospective operation, unless such construction appears very clearly in the provisions of the statute, arising therefore and by necessary and distinct implication…
However, statutes that make alterations to procedure have been held by English Courts to have immediate effect unless otherwise expressly stated. It was held in Re-Athlumney (1898) 2 QB 547 at 551-552; West V Gwynee (1911) 2 CH. 1 at 15, that statutes that make alterations to the practice and procedure of a Court can be construed to have immediate and retrospective effect. In the Republic of Costa Rica V Erlanger (1974) 3 Ch.D 62 it was held, providing the rationale for the principle, to be settled law that the presumption against retrospective construction has no application to enactments which only affect procedure and practice of Courts, as no person has a vested right in the course of procedure. Of particular note is the King V Chandra Dharma (1905) 2 KB 335 at 338; (1904) All ER 570 at 571 in which it was poignantly stated that statutes that alter the time within which proceedings may be taken and concluded are procedural. They do not alter the character of the cause of action, or the act constituting the offence. Since they merely shorten the time of the proceedings, they are procedural and are to be construed to have retrospective or immediate effect. (Emphasis supplied)
The learned Lord went further to refer to and rely on a prior decision of the Supreme Court in Ojokolobo V Alamu & others (1987) NWLR (Pt. 61) 397; (1987) SC (Pt. 1) 124; (1987) 18 NSCC 991, wherein the English cases earlier referred to were cited with approval. Therein, the Supreme Court in construing the effect of Section 258 (now Section 294) of the Constitution, 1979 by Section 6 of the Constitution (Suspension and Modification)(Amendment) Decree No. 17 of 1985 with effect from 7th July, 1982, held that the new subsections (4) and (5) did not operate retrospectively to affect Judgments delivered three months after final addresses prior to the passage of the amendments such as to nullify them. By the same token, that sanction against Judicial Officers for non-compliance with Section 258(1) of the 1979 Constitution cannot be retrospective. Even then, Eko, JSC went further to draw attention to the intriguing finding of the Supreme Court in that case decided as far back as the year 1987, at pages 7-8 of his Judgment as follows:
The point was however made loud and clear in the Ojokolobo case that a statute making provision for ‘time’ within which proceedings in Court can be taken or concluded can be construed to have immediate or retrospective effect or operation. Bello, JSC (as he then was) specifically did not see why a statute prescribing time within which proceedings should be disposed of or concluded, as in the instant case, should not be so construed. (Emphasis supplied)
By the doctrine of judicial precedents otherwise known as stare decisis, this Court is duty bound to faithfully follow and apply the findings of the Supreme Court in this decision to the facts of this case, which are virtually on all fours. See Dakan V Asalu (2015) LPELR-24687(SC) 27-27; Odi V Osafile (1985) 1 NWLR 17.
Having settled the issue of the applicability of Section 285(12) of the Constitution (as altered) retrospectively, it simply follows that an Appeal in a pre-election matter from the decision of a Court must be heard and determined within sixty (60) days from the date of the delivery of the Judgment appealed against. This is a Constitutional provision and the words employed in crafting them command mandatory compliance. There is no room for the exercise of any discretion in relation to the allotted time. Everything needed to be done for the Appeal to be heard and for Judgment to be delivered within sixty (60) days must be done; otherwise the right to appeal is extinguished. Where in any legislation there is a time limit, that time limit must be complied with. The Court ceases to have jurisdiction once the time envisaged expires.
In order to further underline the essence of time limitation, the Supreme Court in the case of Abubakar V Nasamu (2012) LPELR-7826(SC) 29, per Onnoghen, JSC (now CJN), magisterially intoned thus when interpreting similar provisions limiting time in Section 285(7) and (8) of the 1999 Constitution (as altered):
It is settled law that the time fixed by the Constitution, which is the fundamental or supreme law of the land, cannot be altered, extended, expanded, elongated, etc, by any Court in the purported exercise of a discretion to that effect.
See also Amadi V INEC (2012) LPELR-7831(SC) 22-23, per Onnoghen, JSC (now CJN); & Akpan V Archibong (2011) LPELR-4281(CA).
The upshot of all I have laboured to say is that this is a pre-election Appeal which is undoubtedly time bound. The Appeal, having not been heard and determined within the period prescribed by Section 285(12) of the 1999 Constitution (as altered), is statute-barred. This Court is therefore bereft of jurisdiction to hear and determine it. In other words, the Appeal is spent and dead on arrival by reason of effluxion of time, the 60 days prescribed for hearing and determining same having long elapsed. There is therefore no foundation upon which this Court can do what the Appellant is urging it to do. Accordingly, I hold that the Appeal is statute-barred by virtue of Section 285(12) of the Constitution of the Federal Republic of Nigeria, 1999, as altered by the Fourth Alteration Act, No. 21 of 2017.
Having so held, this Court is hamstrung as well as barred from hearing and determining the Appeal on its merits, more so that this is a pre-election Appeal, whose proceedings are sui generis, governed by special provisions of law. Thus, any limitation of time expressed in a statute must be strictly observed and stringently applied.
It may be expedient at this stage to remind Counsel and litigants alike of the enduring words of Onnoghen, JSC (now CJN) from the hallowed temple of the Supreme Court, wherein he impressed on all Courts, Counsel and litigants alike of the mandatory nature of the application of the limitation of time prescribed in Section 285 of the Constitution (as altered) in the case of ANPP V Goni (2012) LPELR-7830(SC) (Consolidated) 31-33, A-C:
With regard to the election tribunal, the time within which the jurisdiction so conferred on it is to be exercised/carried out is provided in Section 285(6) of the 1999 Constitution which enacts thus:- (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?. 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 and confer jurisdiction on any court/tribunal on any matter where jurisdiction has not been conferred either by statute or the constitution. It is my considered opinion that the lower Court ordering a retrial by tribunal which had 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… that the time fixed by the Constitution is like the rock of Gibralter 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.(Emphasis supplied)
My learned lord, in expounding the rationale and spirit behind the passage of the limitation laws in election matters further had this to say at page 11 of the same E-Report:
It should be constantly kept in mind that prior to the provisions of Section 285(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 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 more so when it is a constitutional provision.
(Emphasis supplied)
See also Marwa V Nyako (2012) LPELR-7837(SC) 64, G where Onnoghen, JSC (now CJN) again emphasized the paramountcy of the provisions of the Constitution in the scheme of things, as follows:
It is settled law that the time fixed by the Constitution for the doing of anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded or stretched beyond what it states.
Thus, Section 285(12) of the Constitution (as altered) in conjunction with a similar provision as to time limited for determining Appeals in Section 285 (7) thereof, seeks to protect not only the right and interest of the parties to pre-election and election matters, but also that of the electorate who have a right to expect that pre-election and election matters be resolved expeditiously so that whoever has the peoples? collective mandate should settle down to dispense to them the dividends of democracy by a diligent discharge of their duties; instead of going back and forth to the Courts for the better part of their terms of office. A departure from the decision of the Supreme Court on Section 285(12) of the Constitution (as altered) in the instant Appeal, would amount to a violation of the Constitution which every Judge has taken a solemn oath to protect.
Having found that this Appeal is statute-barred by reason of the provision of Section 285(12) of the 1999 Constitution (Fourth Alteration, No. 21) Act, 2017, this conclusion in my view, obviates the need of a further dissipation of judicial energy on the issues presented for the determination of the Appeal which, by reason of my finding on Section 285(12) of the Constitution (as altered), have now become otiose, or at best, academic. As it is well known, Courts of law are not the proper fora for the ventilation of academic issues. Also, as the Supreme Court has consistently stated, courts should, on no account, spend precious judicial time on issues that are academic. Instead, they should determine live issues and those are issues that would meet the ends of justice. See Saraki V FRN (2016) LPELR-40013(SC) 64-65, F-A, per Muhammad, JSC; FRN V Dairo (2015) LPELR-24303(SC) 49-50, F-e, per Nweze, ‘SC; & Mamman V FRN (2013) LPELR-20082(SC) 11-12.
Since this Court is therefore without jurisdiction to delve into the realm of academic issues, not being an academic institution, I decline to venture in where angels fear to tread. Suffice it to simply say that on the Issue of the time limit of 60 days prescribed by Section 285(12) of the 1999 Constitution (as altered), the Supreme Court has spoken! It has the final word. I am bound.
Accordingly, this Appeal NO. CA/MK/194/2017 shall be and is hereby Struck out on the ground of incompetence, Same being statute barred. Parties shall bear their costs.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Judgment just delivered by my learned Brother, Jummai Hannatu Sankey, JCA, in which this appeal was struck out. I agree with, and adopt as mine, the resolution of the issues raised therein as ably set out by my learned Brother. I will only make few comments in support.
The Supreme Court, per Edozie, JSC in Aremo Il Vs Adekanye (2004) ALL FWLR (Pt.224) 2113 at 2132 -2133, (2004) LPELR (SC) at page 17 of the E-Report expounded the effect of a statute of limitation thus:
“Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribe such periods and regulate the subsistence of causes or action are known as statutes of limitation.
Where a statute of limitation prescribes period. Where an action is statute barred a plaintiff, who might
Otherwise have had cause of action loses right enforce it by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed: See the cases Eboigbe v NNPC(1994) 5 NWLR (PT.347) 649; Odubeko V. Fowler (1993) 7’NWLR. (pt.308) 637. Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt.174) 379: Ekeogu v Aliri (1991) 3 NLWR (PT.179) 258.”
The consequence of a statute limitation was restated in Hassan v. Aliyu & ors (2010) LPELR-1357(SC) at page 89 of the E- Report, per Adekeye, JSC. thus:
“When an action is statute-barred, the plaintiff who might have had a cause of action loses the right to enforce the cause or action by judicial process because period had elapsed. An action commenced after the expiration of the statutory period within which an action must be brought is not maintainable. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being instituted before the Court.”
By virtue of the provisions of Section 285(12) of the 1999 Constitution (Fourth Alteration, No. 21) Act, 2017, and, having regard to the decision of the Apex Court in Obayemi Toyin v PDC & Ors Appeal No SC.308/2018 (Unreported), delivered onJanuary 8, 201 8, which, by the doctrine of stare decisis is binding on this Court, this appeal is statute barred and can only be struck out.
For these reasons and for the more comprehensive reasons given by my learned Brother, I also strike out this appeal and abide by the orders made.
JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance the judgment which has just been delivered by my learned brother Sankey JCA.I entirely agree with the reasoning contained therein and the conclusion arrived threat.
Section 2 (c) of the Constitution of the Federal Republic of Nigeria,1999 (Fourth Alteration No.21) Act, 2017 provides, inter alia, that,
Section 285 of the Principal Act is further altered by
c. inserting, after subsections (8)” now subsections (9)?(14)
(12) An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days the date of filing the appeal,”
The provision is clear and requires no construction. An appeal that springs from a decision of a Court in a pre-election matter must be heard and disposed of within 60 days from the date of the filing of the same. If the appeal is not heard and determined within the stipulated period, it lapses automatically and the Court loses its jurisdiction or competence to adjudicate or further adjudicate on the appeal. appeal was filed on 9/6/2017 and was heard on 6/3/2019, almost two years after it was filed. This is outside the period stipulated in the provision quoted above. The appeal therefore lapses and the court automatically loses the competence to continue with it.
As has been demonstrated in the judgment of my learned brother, the fact that this appeal was filed on 9/6/2017 while the Fourth Alteration Act came into force on 7/6/2018 is immaterial as the appeal, a pre-election matter, being sui generis is caught by the alteration. This is especially so as the provision is procedural and therefore has retrospective effect.
This appeal having been caught by Section 285(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) has become statute — barred and the jurisdiction of this Court has lapsed. The provision is immutable and the Court cannot wriggle or skate its way out of it. See Abubakar v Nasamu (2012) LPELR – 7826 (SC) 29, & ANPP v Goni (2012) & LPELR -7830 (SC) 31- 33 and Ugba v Suswam (2014) 14 NWLR (pt. 1427) 26& 312.
I therefore agree with my lord that this appeal should be struck out for being statute – barred. I hereby also strike it out.
I abide by the order as to costs in the lead judgment.
Appearances:
F.A. Nomor, Esq. with him, G. A. Iorvenda, Esq. and T.M. Iorkua, Esq.For Appellant(s)
I.A. Ututu, Esq. for the 1st Respondent.
2nd, 3rd and 4th Respondents not representedFor Respondent(s)
