JOHN KADIYA v. SOLOMON DAUSHEP LAR & ORS
In The Supreme Court of Nigeria
On Friday, the 25th day of November, 1983
SC.99/1983
RATIO
THE DOCTRINE OF SEPARATION OF POWER
The doctrine of separation of powers is the bulwark or anchor on which the survival of this nation as a nation must depend. While each arm of Government must need respect the other arm in the interest of the smooth running of governmental machinery, such respect must never degenerate to the level of one arm being allowed to usurp or impinge on the exclusive domain of the other as spelt out in the Constitution. PER IRIKEFE J.S.C.
TIME WITHIN WHICH PETITION MUST BE DISPOSED OF
Section 140(2) of the Electoral Act 1982 provides as follows: “A petition filed before the High Court in respect of any election shall be disposed of by the court not later than 30 days from the date of such election and any petition not so disposed of shall be time barred and such petition shall be deemed null and void.” PER OBASEKI J.S.C.
JUSTICES
GEORGE SODEINDE SOWEMIMO Justice of The Supreme Court of Nigeria
AYO GABRIEL IRIKEFE Justice of The Supreme Court of Nigeria
MOHAMMED BELLO Justice of The Supreme Court of Nigeria
ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria
KAYODE ESO Justice of The Supreme Court of Nigeria
ANTHONY NNAEMEZIE ANIAGOLU Justice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
Between
JOHN KADIYA Appellant(s)
AND
- SOLOMON DAUSHEP LAR
2. CHIEF FEDERAL ELECTORAL OFFICER
FOR PLATEAU STATE ALHAJI GARBA L. UMARU
3. THE RETURNING OFFICER ALHAJI SHETTIMA GANA Respondent(s)
SOWEMIMO, C.J.N. (Presiding and Delivering the Judgment of the Court): In SC.95/1983, Paul Unongo vs. Aper Aku and others delivered this morning, we have stated extensively our reasons for declaring as unconstitutional the periods of time fixed for hearing and determining of Election Petitions before Courts of Law. Reference was made to the provisions of section 4(8), section 33(1) and section 258 of the Constitution of the Federal Republic of Nigeria 1979. I have also agreed with the judgment of the Federal Court of Appeal, Jos in setting aside the preliminary objections. I do not agree with the circumstances on which that Court decided in expressing its helplessness in remitting the case to the High Court, Benue State for it to be tried on the merits.
The helplessness expressed by the Federal Court of Appeal in remitting this present appeal to the High Court, Jos is similar to that expressed in the Benue High Court case and that case was remitted to the High Court for it to be tried on the merits.
There is one outstanding matter which concerns the dialogue between the Chief Judge, Plateau State, Jos and the learned counsel for the petitioner, Mr. Kehinde Sofola, SAN., and which was confirmed by Mr. G. O. K. Ajayi, SAN., the learned counsel for the first respondent in that case on the 12th of September, 1983. Because of this dialogue, I thought that tempers rose high that certain things which ought not to have been said were uttered between the Chief Judge and Mr. Kehinde Sofola and I therefore thought that this case should be remitted to be heard afresh before another panel in which the Chief Judge would not be a member. I did not intend this to be a reflection on the judiciary at all because I believe that the judiciary in Nigeria will continue to be absolutely impartial in the discharge of its duties.
I would therefore in this circumstance disregard as reasons for this judgment all that took place at the first hearing of the election petition and hope that it will be regarded as closed.
It is for this reason that I regard the judgment of the Federal Court of Appeal, Jos, for failure to send the case back to the High Court, Jos for retrial as erroneous.
I therefore ordered that the case be remitted for rehearing with dispatch before a new panel of the Plateau High Court, Jos, and that it should be heard on the merits.
IRIKEFE, J.S.C.: I adopt the lead reasons just read by my learned brother, Sowemimo, C.J.N. By way of emphasis I would like to comment as follows:
In this matter, the Federal Court of Appeal lamented its helplessness or inability to send the case back to the court of trial for a hearing de novo after it had allowed the appellant’s appeal. This helplessness derives from the express provisions of the Electoral Act, 1982 which stipulate the time within which an election petition must be heard in a court of law. This issue was dealt with by us earlier this morning in the case of Paul Unongo vs. Aper Aku & Ors.- SC.95/83. In this case sections 4(8), 33 (1) and 258 of the Constitution of Nigeria, 1979 were considered.
Also considered were sections 129(3) and 140(2) of the Electoral Act, 1982. To the extent that the National Assembly had enacted a time limitation within which an election petition was to be disposed of in court, we held that the said provisions cited above were unconstitutional, null and void and of no effect whatsoever as being ultra vires the powers of the National Assembly. While the competence of the National Assembly under section 73 of the Constitution to legislate on matters appertaining to elections is undoubted, such power does not and cannot extend to include a power to impose a time limitation within which a court of law established under the Constitution must conclude the hearing of a case.
The doctrine of separation of powers is the bulwark or anchor on which the survival of this nation as a nation must depend. While each arm of Government must need respect the other arm in the interest of the smooth running of governmental machinery, such respect must never degenerate to the level of one arm being allowed to usurp or impinge on the exclusive domain of the other as spelt out in the Constitution.
I agree that, this case should be heard de novo on the merit by the High Court of the Plateau State. I agree also for the reasons stated by the Chief Justice that the Chief Judge State (Obi-Okoye) is not to participate in the re-hearing.
BELLO, J.S.C.: We allowed the appeal in this petition on 30th September 1983 and remitted the suit to the High Court, Jos for hearing and determination on its merits. I now state my reasons.
The appellant was one of the unsuccessful candidates at the gubernatorial election held in Plateau State on 13th August, 1983. The result of the poll was declared on 16th August 1983 and the 1st respondent was returned as having won the election.
On 29th August 1983, which was within the time permitted by section 119(4) of the Electoral Act 1982, the appellant filed a petition in the High Court of Plateau State against the return complaining that the 1st respondent had not been duly returned and prayed that he, the appellant, ought to have been returned. There was some delay in the service of the petition on the 1st respondent who was eventually served on 8th September, 1983. Consequently, because section 135 of the Act granted the 1st respondent 6 days from the date of service within which to file his reply, the last date for filing the reply was 14th September, 1983.
However, sections 129(3) and 140(2) of the Act provide that such a petition must be tried and determined within 30 days from the date of the election and if it has not been so determined the petition shall become void. By reason of the provisions of the two sections 12th September 1983 was the last surviving day of the petition. It ceased to exist on 13th September 1983.
On account of the aforestated time factor, when the petition came for trial on 12th September 1983, the 1st respondent had not filed his reply because he still had 2 days within which to do so. The petition was therefore not ripe for trial and on that account the High Court did not proceed with the trial on that day.
In an ordinary civil case a time factor in so far as it relates to filing a statement of defence would not create any serious problem at all. The court would simply adjourn the hearing of the suit to a date after the expiry of the time within which to file the defence. In respect of this petition on appeal, the High Court could not exercise its power to adjourn to any date since the petition would by operation of the law become void on 13th September 1983. So it did and the High Court did not try and determine it.
On appeal to the Federal Court of Appeal by the appellant herein, although that court was inclined to allow the appeal and remit the petition to the High Court for trial on its merits, it nevertheless dismissed the appeal on 28th September 1983 on the ground that it could not exercise its powers under sections 16 and 27 of the Federal Court of Appeal Act, 1976 (i.e. to remit the petition to the High Court or the Appeal Court itself to try it) since sections 129(3) and 140(2) had invalidated the petition with effect from the 13th September 1983.
It is crystal clear from the facts and circumstances of this suit that sections 129(3) and 140(2) of the Electoral Act ousted the jurisdiction vested by sections 6 and 237 of the Constitution in the High Court of Plateau State to hear and determine this election petition on appeal. The two sections also deprived the appellant of his constitutional right to a fair hearing within a reasonable time of his petition guaranteed under section 33(1) of the Constitution. Accordingly, sub-section 3 of section 129 and sub-section 2 of section 140 of the Act are unconstitutional and void. In my reasons for judgment in Unongo v. Aper Aku & Ors. suit S.C.95/1983, delivered this morning, I stated my full reasons for invalidating the two sub-sections.
I think the circumstances of this petition further reinforce my reasons therein.
Finally, I endorse the reasons stated by Sowemimo, C.J.N. in his reasons for judgment for excluding Okoye, C.J. from the panel for the trial of the petition.
OBASEKI, J.S.C.: I agree with the reasons for judgment by my learned brother, Sowemimo, C.J.N.
The appellant who was the unsuccessful N.P.N. sponsored candidate at the Gubernatorial election held in Plateau State on the 13th day of August, 1983 filed his petition challenging the declaration that the 1st respondent, Solomon Daushep Lar was duly elected or returned. He filed the petition on the 29th day of August, 1983.
When on the 12th day of September, 1983 which was the 30th day after the said election, the matter came up for hearing before the election panel of the Plateau State High Court consisting of Obi Okoye, C.J., Emefo, J. and Soluade, J., the court struck out the petition on the ground that section 140(2) of the Electoral Act cannot be met. The Particular record of proceedings reads:
“Petitioner present, 2nd and 3rd respondents present 1st respondent not served with petition etc. K. Sofola, SAN. (with him R. D. Gumut and other counsel) for petitioner.
Sofola asks the court to strike out the case.
Court: Petition struck out, section 140(2) of Electoral Act cannot be met.”
Section 140(2) of the Electoral Act 1982 provides as follows:
“A petition filed before the High Court in respect of any election shall be disposed of by the court not later than 30 days from the date of such election and any petition not so disposed of shall be time barred and such petition shall be deemed null and void.”
In a similar vein, section 129(3) of the Electoral Act 1982 provides as follows:
“Proceedings before a High Court in the case of a petition in respect of the office of President or Vice-President, Governor or Deputy Governor, or in respect of any of the Legislative Houses shall be completed not later than 30 days from the date of the election concerned.”
The High Court in effect struck out the petition because it could not be disposed of within 30 days from the date of the Gubernatorial election of 13th day of August, 1983 as provided by sections 129(3) and 140(2) of the Electoral Act, 1982.
The petitioner was therefore denied a hearing by the court. This intolerable situation was the direct result of the provisions in the two sections of the Electoral Act referred to and set out above. It appears there was a bit of debate in the court which necessitated an earlier ruling of the court which reads:
“We hold that this case is not ripe for hearing. The Electoral Act allows the 1st respondent specific time to enter appearance and file a reply after service of the petition. The petition will only be ripe for hearing after the filing of a reply or expiry of the time to do so. We do not agree that it is justice to hear the petition now, because today, at the close of the petitioner’s case, the 1st respondent can insist for his subsisting statutory right to enter appearance and file a reply. Our view of the law is that the suit is not ripe for hearing and accordingly we cannot now hear any evidence. The 1st respondent must not be deprived of his opportunity or right under the Act. We therefore decline to proceed with the hearing at this point of time. (N.S. time now is 10.50 a.m.)”
Aggrieved, the petitioner appealed against the decision to the Federal Court of Appeal on 7 grounds the 1st and main ground being that:
“the court below erred and on the facts by refusing to hear the petition having regard to the provision of section 140(2) of the Electoral Act, 1982, which renders an election petition null and void if the High Court does not hear and decide the election petition within the statutory period of 30 days of the date of election which date of election in the instant case was 13th August, 1983.” At the conclusion of the hearing, the Federal Court of Appeal dismissed the appeal.
Still aggrieved, the petitioner appealed, against the decision of the Federal Court of Appeal, to this Court on 6 grounds, ground 6 of which reads:
“The provisions of section 129(3) and 140(2) of the Electoral Act 1982 are inconsistent with the provisions of the Constitution and are therefore unconstitutional and void.”
This ground was also argued before us in the case of Paul Iyorpuu Unongo v. Aper Aku and others, SC.95/1983 on the 30th day of September, 1983. That appeal in that case was allowed on that day and the full reasons for the judgment was delivered by this Court this morning. Therein this Court declared sections 129(3) and 140(2) of the Electoral Act 1982 unconstitutional, null and void and remitted the case to the trial court for hearing on the merits.
Following the decision in that case, I allowed the appeal in this case on the 30th day of September, 1983, set aside the decisions of the Federal Court of Appeal and the High Court striking out the petition and remitted the petition to the High Court of Plateau State, Jos, for hearing on the merits with the utmost despatch.
ESO, J.S.C.: I have had the advantage of a preview of the reasons just read by the learned Chief Justice of Nigeria in this case and I agree with him especially having regard to the reliance on the reasons given in the case of Paul Iyorpuu Unongo v. Aper Aku SC.95/1983.
As regards the incident that happened in the court which did not form part of the record of the court but a record of which has been brought to the notice of this court, through the affidavit of Alhaji Haruna Abubakar, one of the learned counsel who appeared with Mr. Kehinde Sofola SAN. counsel for the appellant, I agree it is quite unfortunate such altercation which gives an appearance of one of the parties not likely to obtain justice from the court, should have taken place between the learned Chief Judge and learned Senior Advocate Mr. Kehinde Sofola.
The course of justice has however been served by sending the case back to the High Court without the Chief Judge sitting on the proceedings. It is a primary axiom of our law that justice should not only be done but be glaringly seen to be done. Anything less than this will not serve the course of justice which this Court has full responsibility to guard most jealously.
The learned Chief Justice has said in the reasons he has read the action of this Court is not meant as a censure on the judiciary itself. I agree with this.
ANIAGOLU, J.S.C.: I have been privileged to read in draft the reasons for judgment just delivered by my learned brother Sowemimo, Chief Justice of Nigeria and I agree. The earlier antecedent facts surrounding the petition have been set out in the reasons for judgment of Bello and Uwais, JJ.S.C. which also had been made available to me in draft. I need not therefore go over them again. I am concerned here with the exclusion order on the Chief Judge.
The background to the matter was, as the learned Chief Justice explained, the unpleasant dialogue between the Chief Judge and Mr. Kehinde Sofola, SAN., in his attempt to get the election tribunal, presided over by the Chief Judge, to commence the hearing of the election petition filed by the petitioner against the election of the 1st respondent who happened to be the Governor of the State, in the gubernatorial election held for that State. The dialogue was exhibited by, and annexed to the affidavit of a legal practitioner who appeared for the petitioner with Mr. Kehinde Sofola, SAN., one Alhaji Haruna Abubakar. It is unnecessary to set it out. From all that transpired as gathered from the appeal papers, the appellant and his counsel must have been extremely worried by reason of sections 129(3) and 140(2) of the Electoral Act 1982 which set time limits for the conclusion of the hearing of an election petition after which such an election petition would be time barred and therefore null and void. As at that date this Court had not yet declared those sections as unconstitutional – a declaration which was subsequently made in SC.95/1983, Paul Unongo vs. Aper Aku and Ors.
It was Lord Greene who once explained that justice is best done by a Judge who holds the balance between the contending parties without himself taking part in their disputations. Where he does to the contrary
“he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict”.
(Yuill v. Yuill (1945) 1 All E.R. 183 at 189).
In Jones v. National Coal Board (1957) 2 All 15 E.R. 155 at 159, Lord Denning, in approving the above view of Lord Greene, said that if the trial Judge went beyond his assigned duty of hearkening, with patience and gravity, to the evidence (and, if I may add, to the contentions of counsel on both sides)-
“he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well”
Those were cases of excessive interruption by a trial Judge in cross-examination, but the principle appears to be the same.
As the Chief Justice rightly remarked, tempers must have risen high between the Chief Judge and Mr. Kehinde Sofola. From the records of this appeal, it was clear that Mr. Sofola felt, from the attitude of the Chief Judge, that he was unduly favouring the 1st respondent, Mr. Solomon Lar. This was spelt out in the judgment of the Federal Court of Appeal (Abdullahi, J.C.A.) who recorded Mr. Sofola as submitting before that Court as follows:
“He asserted that 1st respondent was seeking to secure a substantial personal advantage with the active collaboration of the court, particularly the Presiding Chief Judge”. (Italics mine).
On the other hand, the learned Chief Judge, from the dialogue between the two, felt he had to apply the law as it stood, the provisions of sections 129 and 140 of the Electoral Act, notwithstanding. With the confrontational setting thus created between the Chief Judge and petitioner’s counsel, it became obvious that the atmosphere was not one in which justice in the petition would appear manifestly to be done with the Chief Judge presiding, and since he must preside if he was a member of the panel, his membership of the panel must be discharged.
This was my reason, after setting aside the judgment of the Federal Court of Appeal, for ordering a rehearing on the merits by a panel of Judges of the High Court of Jos of which the Chief Judge (Obi-Okoye, C.J.) must not be a member.
UWAIS, J.S.C.: I have had the advantage of reading in draft the reasons for judgment read by my learned brother Sowemimo C.J.N. I agree with the reasons.
The appellant filed his petition in the High Court of Plateau State, Jos on 29th August, 1983 and service was effected on the 2nd and 3rd respondents without difficulty. However the petition could not be served on the 1st respondent, who was the incumbent Governor of Plateau State, despite attempts made on three different days, namely, 1st and 2nd and 5th September, 1983. On 7th September, 1983 an ex-parte motion for substituted service which was filed by the appellant, was heard and granted. The substituted service on the 1st respondent was effected on 8th September 1983 by an advertisement of the petition in the New Nigerian.
The petition which was fixed for hearing on 12th September, 1983 came up for hearing on that day. The 1st respondent was represented by counsel who inter alia raised the preliminary point that the 1st respondent was yet to file a reply to the petition and that the 1st respondent had three more days to his advantage to do so in accordance with the provision of section 135 of the Electoral Act 1982 which allowed him six days after the date of the service of the petition. As the petition would become statute barred after the hearing date by virtue of the provisions of section 140 subsection (2) of the Electoral Act, 1982 which states:
“A petition filed before the High Court in respect of any election shall be disposed of by the court not later than 30 days from the date of such election and any election petition not so disposed of shall be time barred and such petition shall be deemed null and void.”
learned counsel for the appellant asked the High Court to hear the petition, notwithstanding the absence of a reply by the 1st respondent, since the 2nd and 3rd respondent had filed their replies.
After a dialogue followed between learned counsel for the appellant and the learned presiding Judge (Obi-Okoye C.J.) of a panel of three Judges of the High Court, a ruling was given by the High Court in which it declined to proceed with the hearing of the petition because, as it held, the petition “was not ripe for hearing”.
Aggrieved by the ruling the appellant appealed to the Federal Court of Appeal but lost. He therefore appealed further before us. He argued that in view of our decision in the case of Paul I. Unongo v Aper Aku & 2 Ors (unreported) Suit No. SC.95/1983 judgment delivered on 30th September, 1983 and the reasons for judgment given today, section 140 subsection (2) of the Electoral Act, 1982 was null and void by reason of its being unconstitutional and unjustified encroachment by the Legislature on the independence of the Judiciary as a separate arm of government under the Constitution of the Federal Republic of Nigeria, 1979, Mr. Ajayi, learned Senior Advocate for the 1st respondent, rightly in my view, conceded the point. I would like here to humbly repeat the observations I made in Unongo’s case earlier today:
“There can be no doubt that it is within the province of the National Assembly to prescribe the practice and procedure to be followed by a court which hears an election petition. For section 111 subsection (1)(c) of the Constitution provides
‘111- (1) The National Assembly make provisions as respects –
(c) powers, practice, and procedure of the competent High Court in relation to any such application.’
but such power cannot, in view of the constitutional doctrine of separation of powers amongst the three arms of government, that is the Executive, Legislature and Judiciary, extend to the limitation of the time within which a case properly instituted in court can be heard and determined. If the power were so to apply, as it indeed applies under the Electoral Act, (1982), then it would, in my opinion be ultra vires because it amounts to unconstitutional interference with judicial function.”
“There can be no doubt that the provisions of section 129 subsection (3) and 140 subsection (2) of the Electoral Act, 1982 neither allow a petitioner or respondent reasonable time to have a fair hearing, nor give the court the maximum period of 3 months to deliver its judgment after hearing a petition as envisaged by sections 33 subsection (1) and 258 subsection (1) of the Constitution, respectively.
Accordingly the provisions of sections 129(3) and 140 (2) of the Electoral Act, 1982 which limit the time for disposing of election petition by the courts are in my view ultra vires the National Assembly and therefore null and void.”
I would like to observe further that the National Assembly has power under section 73 of the Constitution to legislate in respect of election petitions but such power does not extend to prescribing or limiting the time within which the courts must hear and determine an election petition.
The next point taken by Mr. Sofola, learned Senior Advocate for the appellant was that the case should be remitted to the High Court to be heard, but that in view of the remarks made by the learned Chief Judge who presided he (the learned Chief Judge) should be excluded from the panel of Judges which would hear the case. Mr. Ajayi did not oppose the request on the ground that it did not matter to the 1st respondent which Judges constituted the trial court.
In the Federal Court of Appeal Mr. Sofola challenged the record of the proceedings in the High Court, by filing on affidavit sworn to by his junior, who was with him in the trial court, to show that the record was incomplete as it did not contain the dialogue which took place between Mr. Sofola and the presiding Chief Judge. No counter-affidavit was filed to dispute the truth or accuracy of the affidavit and Mr. Ajayi confirmed that the affidavit was substantially accurate.
I do not think it is necessary to reproduce here the dialogue but suffice it to say that by allowing himself to be drawn into unnecessary exchanges with counsel for the petitioner the learned Chief Judge inadvertently made certain remarks which were unfortunate and should not have been made. I agree with the observation made in this respect by my learned brother Sowemimo C.J.N. and would therefore refrain from commenting any further.
It was for these and the reasons given by the learned Chief Justice of Nigeria that I agreed on 30th September, 1983 that this appeal should be allowed and the decision of the Federal Court of Appeal should be set-aside. And that the appellant’s petition be remitted to the Plateau State High Court, Jos to be heard on the merits with despatch with an order that the learned Chief Judge of Plateau State should not be a member of the panel that would hear the petition.
Appeal allowed.
Appearances
Mr. Sofola S.A.N. with him K.S. Sofola For Appellant
AND
G.O.K. Ajayi S.A.N. with him D. Segun and S.O. Shonibare
2nd and 3rd absent, served. For Respondent
