KENNETH NDUKA AGBAKWURU & ANOR v. HON. RAPHEAL NNANNA IGBOKWE & ANOR
(2012)LCN/5148(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of February, 2012
CA/OW/EPT/45/2011 (R)
RATIO
THE STATUTORY PROVISION ON THE DELIVERY OF JUDGEMENT BY AN ELECTION TRIBUNAL
Now, let us come to the ordinary interpretation of the provision of Section 285 (6) of the Constitution itself. It says
“(6) An election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”
As it stands, this provision mandates an Election Tribunal in which a petition has been filed to deliver its written judgment within 180 days of the filing of the petition and does not in any way affect the powers of the court of Appeal under Section 246 of the constitution and Section 15 of the court of Appeal Act to re-hear the matter on appeal and order the reversal or correction of the decision of the Tribunal.
Now, it is true that the Supreme Court in the Shettima vs. Goni case (supra) made remarks about the inability of the Lower Court (that is the Court of Appeal) to entertain any further jurisdiction on the interlocutory appeal before the supreme court on the ground that the appeal is caught by the constitutional time limit. In the Shettima vs. Goni case (supra) the following passage appeared in the lead judgment delivered by Onnoghen, JSC. at pages 41 – 43. “There is no dispute that the decision given rise to Appeal No. CA/J/EPT/GOV/151/2011 was made by the trial tribunal on the 10th day of August, 2011. Also, not in dispute is the fact that sixty (60) days from the date of that decision expired on 9th October, 2011. The legal effect of the expiration of the sixty (60) days prior to the determination of the appeal before the lower court is to extinguish the appeal and with the order of the Lower Court made on 26th September, 2011, the subject of the instant appeal being an interlocutory order made in the said appeal. Learned senior counsel for the appellants has not denied the fact that the appeal pending at the Lower Court had expired hence his alternative contention that the instant appeal is against the decision of that Court made on 26th September, 2011. I hold the view that the argument is of no moment particularly when one considers the fact that the appellants are calling on this Court to invoke its powers under section 22 of the Supreme Court Act to hear and determine the very expired appeal… PER. MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. KENNETH NDUKA AGBAKWURU
2. LABOUR PARTY – Appellant(s)
AND
1. HON. RAPHEAL NNANNA IGBOKWE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Lead Ruling): On Friday, the 25th day of November, 2011, this court delivered judgment in Appeal No.CA/OW/EPT/45/2011 wherein it allowed the appeal of the Appellants (now Respondents to the instant motion). Tsammani JCA, who read the lead judgment in the appeal ordered as follows:
(a) It is declared that the 1st Petitioner/Appellant was validly nominated but was unlawfully excluded from the election held on the 9/4/2011 for the seat of member representing Ahiazu/Ezinihite Federal Constituency in the Federal House of Representatives of the Federal Republic of Nigeria.
(b) That the election of the 1st Respondent is therefore declared as null and void.
(c) That the 2nd Respondent is ordered to conduct fresh election for the seat of member representing Ahiazu/Ezinihite Federal Constituency in the Federal House of Representatives of the Federal Republic of Nigeria, with 1st Petitioner/Appellant as a candidate on the platform of the 2nd Petitioner/Appellant.
(d) That the fresh election shall be conducted within ninety (90) days from today.
By a motion on notice dated 28/11/2011 and filed on 29/11/2011 Hon. Raphael Nnanna Igbokwe the 1st Respondent to the appeal now Applicant prayed the court pursuant to Section 285 (6) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) for.
“An order setting aside and or rescinding the orders/judgment of the Honourable Court dated 25th November, 2011, delivering (sic) judgment in the Election Petition instituted by the Petitioners/Appellants at the Imo State Legislative House Election Tribunal for being a nullity. And for such further order and or orders as the Honourable Court may deem fit to make in the circumstances.”
The grounds upon which the application was brought are as follows:
The petition of the Petitioner/Appellant was filed at the Tribunal below on 29th April, 2011.
2. By Ruling dated 29th day of September, 2011, the legislative Houses Election Tribunal, Imo State, upheld the preliminary objection that the petition was incompetent and therefore it has no jurisdiction to continue to hear it and deliver judgment.
3. The Petitioner/Appellant appealed against the Ruling which dismissed the petition.
(i) By the operation of the provision of S. 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the 180 days limited for hearing and giving judgment in the petition elapsed on the 25th day of October, 2011.
(iii) Briefs were filed and the 1st Respondent/Applicant herein raised the issue that this Honourable Court can no longer deliver judgment in the petition (not in the appeal) since the time limited for doing go had elapsed.
(iv) We were compelled to draw the attention of this Honourable Court to the decisions of the Supreme Court in Appeal Nos. SC 332/2011, SC 333/2011 and SC 352/2011 consolidated. Alhaji Kashim Shettima & Anor. Vs. Alhaji Mohammed Goni & 4 Ors., and (1) All Nigeria Peoples Party (2) Alhaji Mohammed Goni & 2 Anor v. Alhaji Kashim Shettima & 3 Ors. Consolidated and it’s sister appeal and Appeal Nos. SC/272/2011, and SC/276/2011 Peoples Democratic Party v. Congress for progressive Change etc.
(v) It is beyond argument that under the doctrine of judicial precedent which is a hallmark of the administration of justice in this country, this Honourable Court is bound by the determination/pronouncement of the Supreme Court on any issue before this Honourable Court.
(vi) The Honourable Court cannot use S.15 of the Court of Appeal Act to violate the provision of the Constitution. Such act would be unconstitutional null and void.
(vii)The judgment of the Honourable Court dated 25th day of November, 2011 which nullified the election of the 1st Respondent/Applicant herein is, with the greatest respect, given per incuriam.
(viii) It is in the interest of justice to grant this application to set aside and or rescind the judgment/orders of this Honourable Court dated 25h day of November, 2011 in which it delivered the judgment in the election petition outside the 180 days limited by the Constitution.
The Applicant’s motion is supported by a 13 paragraph affidavit and a five paragraph further Affidavit deposed to by the Applicant himself.
On 19/12/2011, learned senior counsel for the 1st Respondent/Applicant filed a Written Address in support of the motion to set aside. On the 19th day of January 2011, when the motion to set aside came up for hearing, Mr. D.C. Denwigwe SAN who presented the case of the 1st Respondent/Applicant adopted the Applicant’s Written Address and made extensive oral adumbrations thereon. Dr. Chukumaeze for the 3rd Respondent and Mr. Ozoani for the Appellants/Respondents made only oral presentations as they did not file any Written Addresses.
When the written and oral submissions of the learned senior counsel for the Respondent/Applicant are taken together, two related issues that are said to have arisen from this application are as follows.
(a) Whether at the time the Court of Appeal delivered its judgment on 25/11/2011, the Appellants/Respondents petition was not statute barred.
(b) Whether the Section 15 power of the Court of Appeal can be invoked where time to try the petition has elapsed under the Constitution.
Mr. D.C. Denwigwe SAN, in a very brilliant exposition traced the history of limitation clauses for the delivery of judgments in Election Petition cases to the decision of the Supreme Court in the case of Paul Unongo vs. Aper Aku (1983) 11 SC 129 at 175-176. In a nutshell, he submitted that as at the date the judgment of the Court of Appeal was delivered on 25/11/2011, the Appellants petition was statute barred and that for that reason, the Court of Appeal would not have the jurisdiction under section 15 of the court of Appeal Act to do what the trial Court or the court below had been dispossessed of jurisdiction to do.
Counsel placed reliance amongst other cases on the unreported Court of Appeal decision in Idongesit Godwin Akpan Udokpo v. Kennet Edet Archibong & 2 Ors. Appeal no. CA/C/NAEA/257/11 delivered on 17/11/2011 at the Calabar Division of the Court of Appeal in support of the above propositions of law. It was further argued on behalf of the 1st Respondent/Applicant that the decision of 25th November, 2011 which was delivered more than 180 days from the date of the filing of the petition on 29/4/2011 is contrary to sections 285 (6) and (7) of the Constitution of the Federal Republic of Nigeria and also against the decision of the Supreme Court on the same issues in Appeal Nos. SC/332/2011, SC/333/2011 and SC/352/2011 that is the consolidated unreported decision of 31st October, 2011 in the case of Shettima & Ors. v. Goni & Ors.
Learned counsel for the 1st Respondent/Applicant also stressed the mandatory provisions of Sections 285(6) and (7) of the 1999 Constitution (as amended) from the interpretation given to the said provisions by the Supreme Court again in the consolidated decision between PDP vs. CPC and Dr Ebele Jonathan & Anor.Vs. CPC & 40 Ors. Unreported SC/272/2011 and SC 276/2011 where it was held that the sixty (60) days allotted to the Supreme Court to deliver judgments in election petition appeals cannot be extended even for a second. 1st Respondent’s counsel further referred us to the case of Obi vs. INEC (2007) 11 NWLR(Pt.1046) 565 at 639 and submitted that the Court of Appeal can exercise the powers of the Lower Tribunal pursuant to Section 15 of the Court of Appeal Act if amongst other things the lower or trial court had the legal power to adjudicate in the matter before the Appellate Court entertained it.
In other words, for the court of Appeal to have exercised its section 15 power to deliver or review the judgment of the Tribunal on 25/11/2011 the Tribunal itself must have jurisdiction as at that date. Since the lower court if it was sitting would have lost the jurisdiction to deliver judgment in the matter long before the 25/11/2011, there was no power of the lower court left for the court of Appeal to assume in the matter on 25/11/2011. Therefore, said 1st Respondent’s counsel, the decision of this court delivered on 25/11/2011 is unquestionably a nullity.
Counsel submitted that the judgment of this court delivered on 25/11/2011 is accordingly unconstitutional, null and void and ought to be set aside to avoid an obvious miscarriage of justice.
He referred to the cases of Igwe vs. Kalu (2002) 14 NWLR (Pt.787) 435, Ukachukwu vs. UBA (No.2)(2005) 9 NWLR(pt.930) 370, Bello vs. INEC. (2010) 8 NWLR (Pt.1196) 342 at 379-380, Adegoke Motors Ltd vs. Adesanya (1989) 3 NWLR (Pt.109) 250 at 273, Osakwe vs. Federal College of Education (Technical) (2010) 10 NWLR (pt. 1201) 1 at 32 and submitted that there is an inherent power in the court to set aside its judgment (a) when the judgment was given in the absence of jurisdiction (b) when the judgment is a nullity, in which case a person affected by an order of court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. Learned senior counsel for the 1st Respondent added that this court is obliged under the doctrine of stare decisis to follow the authoritative interpretations of the provisions of Section 285 (6) and (7) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) by the Supreme Court in the cases
aforementioned. On this, counsel referred to the provision of Section 287 (1) of the 1999 Constitution to the effect that “the decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and person, and by courts with subordinate jurisdiction to that of the Supreme Court.”
Dr. Chukuma Eze of Counsel to the 3rd Respondent associated himself with the submission made by the learned senior counsel to the 1st Respondent/Applicant. He further relied on the decision of the Supreme Court in the case of Inakoju vs. Adeleke (2007) All FWLR (Pt. 553) 3 at 195 and reiterated the point earlier made in the Written Address of the 1st Respondent that the lower court must have jurisdiction on a matter on which to exercise the Section 15 power of the Court of Appeal.
In reply to the above, Mr. Ozoani for the Appellant/Respondent also referred to the provisions of Section 285 (6) and (7) of the 1999 Constitution (as amended) and emphasized the use of the word ‘decision’ in Section 318 of the Constitution as a determination. He argued that under the provisions of the Constitution the Tribunal has a period of 180 days within which to determine the petition while the Appeal Court also has a period of sixty (60) days within which to determine an appeal on such a petition. That, in the instant case both the judgments of the Tribunal in the petition and the judgment of the Court of Appeal in the appeal in the petition were delivered within the respective periods stipulated for the delivery of the judgments.
Counsel submitted that since both the Tribunal and the Court of Appeal delivered their judgments within the time stipulated, none of the courts was in excess of jurisdiction and therefore there is no basis to set aside the judgment of the Court of Appeal as being a nullity.
The central question in this application is whether the Court of Appeal was right to have delivered its judgment in the appeal in the petition on 25/11/2011 when in fact the 180 days to try the petition at the Tribunal itself had expired before that date. Put in another way, in the exercise of his powers of review under Section 15 of the Court of Appeal Act, is the Court of Appeal bound to act within the 180 days stipulated to try a petition under the provision of Section 285 (6) of the 1999 Constitution (as amended).
In my humble opinion and in spite of the spirited efforts of the learned senior counsel for the 1st Respondent/Applicant the answer to the first and main question in this enquiry is in the affirmative. This shall be demonstrated anon.
First, the parties are not in dispute as to the fact that the Tribunal delivered its judgment in the petition that culminated into appeal No. CA/OW/EPT/45/2011 within the 180 days stipulated for the Tribunal under the Constitution to deliver its judgment, nor was it in dispute that the Court of Appeal also delivered the judgment in the said Appeal No.CA/OWEPT/45/2011 within the 60 days stipulated for the court under the constitution to deliver its judgment in election appeals. By the above fact, the cases of Idongesit Godwin Akpan Udokpo vs. Kenneth Edet Archibong & 2 Ors.(supra) and P.D.P vs. C.P.C. & 42 Ors. (supra) cited and relied upon by the Respondent/Applicant are distinguishable and are inapplicable to the facts and circumstances of the present case. This is because, both the Udokpo vs. Archibono and the P.D.P. vs. C.P.C. cases(supra) deal with the expiration of the sixty (60)days for an Appeal Court to deliver judgment in an election petition under Section 285 of the 1999 Constitution (as amended). To the contrary, the question in the instant case is whether the court of Appeal after complying with its stipulated sixty(60) days in which it is required to deliver its judgment in an election appeal must also deliver its judgment within the 180 days stipulated for the Tribunal. In coming to the above position the learned senior counsel for the 1st Respondent/Applicant placed heavy reliance on the decision of the Supreme Court in the consolidated Appeal Nos. SC.332/2011, SC.33/2011 and SC 352/2011 between Shettima & Anor. Vs. Goni &4 Ors. (supra) to say that once the lower court’s jurisdiction to entertain the petition under 285 (5)-(6) of the Constitution has elapsed, any appeal against that lower court’s decision which will result in the reversal or correction of the lower court that has lost jurisdiction by effluxion of time would be statute barred.
Now, let us come to the ordinary interpretation of the provision of Section 285 (6) of the Constitution itself.
It says
“(6) An election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”
As it stands, this provision mandates an Election Tribunal in which a petition has been filed to deliver its written judgment within 180 days of the filing of the petition and does not in any way affect the powers of the court of Appeal under Section 246 of the constitution and Section 15 of the court of Appeal Act to re-hear the matter on appeal and order the reversal or correction of the decision of the Tribunal.
Now, it is true that the Supreme Court in the Shettima vs. Goni case (supra) made remarks about the inability of the Lower Court (that is the Court of Appeal) to entertain any further jurisdiction on the interlocutory appeal before the supreme court on the ground that the appeal is caught by the constitutional time limit.
In the Shettima vs. Goni case (supra) the following passage appeared in the lead judgment delivered by Onnoghen, JSC. at pages 41 – 43.
“There is no dispute that the decision given rise to Appeal No. CA/J/EPT/GOV/151/2011 was made by the trial tribunal on the 10th day of August, 2011. Also, not in dispute is the fact that sixty (60) days from the date of that decision expired on 9th October, 2011. The legal effect of the expiration of the sixty (60) days prior to the determination of the appeal before the lower court is to extinguish the appeal and with the order of the Lower Court made on 26th September, 2011, the subject of the instant appeal being an interlocutory order made in the said appeal. Learned senior counsel for the appellants has not denied the fact that the appeal pending at the Lower Court had expired hence his alternative contention that the instant appeal is against the decision of that Court made on 26th September, 2011. I hold the view that the argument is of no moment particularly when one considers the fact that the appellants are calling on this Court to invoke its powers under section 22 of the Supreme Court Act to hear and determine the very expired appeal…
That, apart, the instant appeal if it succeeds, on the merit would result in the setting aside of the order of the lower court adjoining the hearing of appeal. No. CA/J/EPT/GOV/151/2011 sine die thereby resulting in the consequential order that the appeal be put back on the cause list of either the Lower Court or this Court if the application to invoke Section 22 of Supreme Court Act is granted, to be dealt with accordingly. In either case it would be an exercise in futility as both Courts no longer have the jurisdiction to deal with the matter complained of …”
The appeal in the Shettima vs. Goni case (supra) got to the Supreme Court as an interlocutory appeal in the pendency of both a ‘filed petition’ before the Tribunal and an adjourned appeal before the Court of Appeal. Meanwhile, at the time of hearing the interlocutory appeal at the Supreme Court, the 60 days for the Court of Appeal to hear the pending appeal had expired by effluxion of time.
The circumstances of the Shettima vs. Goni interlocutory appeal is different from that of the present case where (1) We are concerned with a situation of the judgment of the Court of Appeal from a final decision of the Election Petition Tribunal (2) Given the result unlike the Shettima vs. Goni case (supra) that the Election Petition Tribunal became functus officio and has indeed totally put its hand off the ‘filed petition’. In this respect, unlike the Shettima vs. Goni case any reversal or corrective order by the Court of Appeal has nothing to do with the ‘filed petition’ which has in fact been disposed off by the Tribunal. Here, the combined effect of the provisions of Section 246 and 6 (1) of the 1999 Constitution (as amended), Section 15 of the Court of Appeal Act and Order 4 Rule 9 of the Court of Appeal Rules 2011 empower the Court of Appeal to make fresh orders in relation to the filed petition’.
In other words, a community reading and harmonius interpretation of Section 285 (6) and Section 246 of the Constitution would produce the following.
(i) An Election Tribunal hearing a petition shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
Once this has been done, Section 285 (6) has achieved its objectives and therefore will allow Section 246 of the Constitution to begin to operate.
(ii) In the operation or application of Section 246 of the 1999 Constitution (as amended) the Court of Appeal is entitled to exercise all the judicial powers of the Federation as vested in it by Section 6 (1) of the Constitution. The judicial powers of the Court of Appeal include power to rehear the case in whole or in part pursuant to Section 15 of the Court of Appeal Act and Order 4 Rule 1 of the Court of Appeal Rules.
The learned counsel to the 3rd Respondent in this case in support of the 1st Respondent’s/Applicant’s case also referred to the decision of the Supreme Court in the case of Inakoju & Ors. Vs. Adeleke & Ors (2007) All FWLR (Pt. 2) 1 at 105 as authority for the proposition that the Court of Appeal can exercise its Section 15 power if only the High Court has jurisdiction in the matter. And, that accordingly jurisdiction of the High Court is a precondition for the invocation of the provision of Section 15 of the Court of Appeal Act. The above represents the undisputed position of the law. However, in the instant case, it could not be said that the Lower Tribunal did not have jurisdiction, when in fact it had acted within its jurisdiction by disposing of the ‘filed petition’ before it within the stipulated 180 days period in Section 285 (6)of the1999 Constitution (as amended).
Rather, than been against the case of the Appellant/Respondent in this case, the case of Inakoju vs. Adeleke (supra) strengthens the Appellant’s/Respondent’s case as regard the wide interpretation given to the then Section 16 now Section 15 of the Court of Appeal Act. The Supreme Court therein (page 104) endorsed its earlier decision in Jadesimi vs Okotie Eboh (1986) 1 NWLR (Pt. 16) 264 where Karibi- Whyte JSC, said at page 274:
“Concisely stated, the powers of the Court of Appeal with respect to the determination of appeals before it is by way of re-hearing. The word re-hearing in the context means a hearing on the printed records by re-examining the whole evidence both oral and documentary tendered before the trial court and forwarded to it. It means an examination of the case as whole. The Appeal court is entitled to evaluate the evidence and may reject conclusion of the trial judge from facts which do not follow from the evidence or may be regarded as perverse. Those are very wide powers which enable the appellate court to exercise all the powers of a court of first instance”
See also, Okoya vs Santili (1990) 2 NWLR (Pt.130) 172, Union Bank of Nigeria Ltd v. Fajebe Foods and Poultry Farms (1994) 5 NWLR (Pt.344) 325, Chief Igiebon v. Omorejie (1993) 2 NWLR (Pt.276) 398, Kokoro Owo v. Ogunbambi (1993) 8 NWLR (Pt.313) 627.
In the circumstance, this court did not act in excess of jurisdiction in hearing and giving orders that fresh election shall be conducted in Appeal No. CA/OW/EPT/45/2011. The Application of the 1st Respondent to set aside the judgment in Appeal No. CA/PW/EPT/45/2011 is accordingly refused.
Respondent/Applicant’s motion dated 28/11/2011 and filed on 29/11/2011 is hereby dismissed.
There shall be no orders as to Costs.
UWANI MUSA ABBA AJI, J.C.A.: I have had the advantage of reading in draft the lead Ruling of my learned brother M.A. Owoade, JCA just delivered.
I agree entirely with the reasons and conclusion that this Court did not act in excess of its jurisdiction in hearing and giving Orders that fresh election shall be conducted in Appeal No. CA/OW/EPT/45/2011.
My learned brother exhaustively considered all the Issues raised in the application to the extent that I have nothing useful I can add. I adopt same as mine. The application is also refused by me and it is accordingly dismissed.
HARUNA M. TSAMMANI, J.C.A.: I was privileged to have read before now the Ruling delivered by my learned brother, M. A. Owoade, JCA.
I agree with the reasoning and conclusion therein, and adopt same as mine. I also abide by the consequential order(s) made therein.
Appearances
Emeka O. Ozoani, Esq. with Ifeoma Osudike, Esq. (Miss) For Appellant
AND
Emeka O. Ozoani, Esq. with Ifeoma Osudike, Esq. (Miss) for the Appellants/Respondents
Chief Bon Nwakanma SAN, with D.C. Denwigwe SAN, B.I. Ojimadu, Esq.
G.O. Nwaebo, Esq. and Obinna John Agbasi, Esq. for the 1st Respondent/Applicant
Dr. U.U. Chukwumaezen Esq. with L.C. Onumajuru, Esq. for the 3rd Respondent. For Respondent
