HON. EKERE AFIA & ANOR v. HON. EMMANUEL E. EKPENYONG & ORS
(2012)LCN/5390(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of May, 2012
CA/C/NAEA/272/2011
RATIO
JURISDICTION: IMPORTANCE OF JURISDICTION
A court will only have jurisdiction where no features exist that prevent it from exercising its jurisdiction. see Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; Sken Consult vs. Ukey (1981) 1 SC 6.
The jurisdiction of court is a fundamental and threshold factor in any adjudication, as no court can conduct any proceedings without jurisdiction and if it does, the whole proceedings will be a nullity no matter how well conducted it otherwise might have been. See Ukwu vs. Bunge (1997) 8 NWLR (Pt.518) 527; A.G. Lagos State vs. Dosumu (1989) 3 NWLR (pt. 111) 552; Dapiarong vs. Dariye (2007) 8 NWLR (pt. 1036) 332; A.G. Federation vs. Abubakar (2008) 16 NWLR (pt. 1112) 135; Umanah vs. Attah (2006) 17 NWLR (Pt. 1009) 503. It is for the reason of the significance of jurisdiction that the courts consider it a bounden duty to determine an objection thereto at the earliest opportunity and before going into other issues in the matter. see Governor, Kwara State vs. Dada (2011) vol. 5-7 MJSC (pt. 1) 113; Sani vs. Okene L.G. Traditional Council (2008) All FWLR (pt.409) 464, Elabanjo vs. Dawodu (2006) All FWLR (pt. 328) 676. PER ISAIAH OLUFEMI AKEJU, J.C.A.
ELECTION PETITION: JURISDICTION OF THE APPEAL COURT TO HEAR AND DETERMINE APPEALS FROM THE ELECTION TRIBUNAL WITHIN 60 DAYS
The jurisdiction of this court in respect of election matters statutorily donated by Section 246 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereinafter called the Constitution).
That jurisdiction has however been clearly circumscribed by the provision of Section 285 (7) of the Constitution which says that:
285 (7) “An appeal from a decision of an election tribunal or court shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal.
For the reasons articulated by the appellants, the appeal could not be heard and determined within 60 days, which by simple arithmetic ended on 9th January, 2011.:
What then is the way forward? The only way open to this court is to follow and apply the decison in PDP V. CPC (2011) Vol. 10 MJSC 1, and Shettima vs. Goni (2011) vol.10 MJSC 53 to the effect that the provision of section 285 (7) of the Constitution is clear and does not require any interpretation at all, it must be given the natural meaning which is that an appeal from a decision of an Election Tribunal or Court of Appeal in an election matter must mandatorily be heard and determined within 60 days from the date of judgment/decision of the Tribunal or court of Appeal.
The period of 60 days which include Saturdays, Public Holidays and even Court vacations cannot be extended by court.
The effect of not complying with Section 285(7) as further held in those cases is that an appeal not determined within the stipulated period of 60 days becomes dead and cannot be resuscitated by any ingenuity. The court has lost the vires to determine the appeal and ipso facto, matters incidental or related thereto. This court as a court with subordinate jurisdiction to the Supreme Court is bound to bow to, follow and apply the decision of the Supreme Court especially as so provided by Section 287 (1) of the Constitution.
There cannot be sentiment and/or sympathy about it. PER ISAIAH OLUFEMI AKEJU, J.C.A.
ELECTION: CIRCUMSTANCES THE COURT OF APPEAL IS THE FINAL COURT IN ELECTION MATTERS
Again, I have to state that by virtue of Section 146 (3) of the Constitution, this court is the final bus stop as far as the appeals on decisions of Election Tribunals of House of Representative election the type of which this appeal involves.
See: Umaru vs. Aliyu (2011) vol. 1 & 2 MJSC 182. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES:
MUHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. HON. EKERE AFIA
2. PEOPLES DEMOCRATIC PARTY (PDP) – Appellant(s)
AND
1. HON. EMMANUEL E. EKPENYONG
2. ACTION CONGRESS OF NIGERIA (ACN)
3. RESIDENT ELECTORAL COMMISSION AKWA IBOM STATE
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Lead Ruling): The Appellants filed a Motion on Notice on 6th January, 2012 under Section 295 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), And order 7 Rule 1 of the Court of Appeal Rules, 2011 for the following:
“An order of court referring the question as to the interpretation and application of Sections 246 (1) (b) (1) and 285 (7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) for the opinion of the Supreme Court and particularly to state a case to the Supreme Court on:
(a) whether by the provisions of Section 246 (i) (b) (1) of the Constitution of the Federal Republic of Nigeria, an appellant requires extension of time to file an appeal against the interlocutory decisions of the National Assembly Election Tribunal.
(b) The real intention of the Constitutional provisions in Section 285 (7) of the Constitution of the Federal Republic of Nigeria, 1999.
(c) Whether interventions of majeure, force workers strike action, judicial actions, cause and convenience will evoke, the punitive effect of Section 285 (7) of the Constitution of the Federal Republic of Nigeria, 1999 against a diligent appellant.
(d) whether the inherent powers vested on the court in Section 6 (6) (a) of the Constitution of the Federal Republic of Nigeria (as amended) cannot apply to remedy the punitive effect of Section 285 (7) of the Constitution of the Federal Republic of Nigeria 1999 on the Appellants in the circumstance of delay in the hearing and determination of an Election Appeal by reason of intervention of force majeure, strike action and or judicial actions/inconvenience.”
The motion was filed with an affidavit of 10 paragraphs in support.
The learned counsel for the Appellants, Otu Iwang Esq. filed a written Address on 26th March, 2012. The 1st respondent filed a counter Affidavit on 15th February, 2012 and the learned counsel, Samuel Ikpo Esq. also filed a Reply to the Appellants’ Address on 3rd April, 2012. The 3rd and 4th Respondents filed a Counter affidavit on 24th April, 2012, but on 19th April, 2012, the 3rd and 4th respondents filed a NOTICE OF PRELIMINARY OBJECTION challenging the jurisdiction of this court to entertain the Appellants’ appeal. The objection has been based upon the following grounds:
“1. The judgment of the trial tribunal was delivered on the 21st day of October, 2011 and Appellants were entitled to file their Notice of Appeal within 21 days and the appeal to be determined within 60 days from the date of the decision by virtue of Section 285(5) and 285 (7) of 1999 Constitution as amended.
2. By virtue of Section 246 (3) of 1999 Constitution the Court of Appeal is a final court in respect of National Assembly Election Petition Tribunal.
3. Appellants’ motion filed on 6th day of January, 2012 is incompetently file (sic) and it is filed outside the period of limitation law and this Honourable Court is incompetent to make orders sought as the said motion by virtue of Section 285 (7) of the 1999 Constitution (as amended) is statute barred and the said motion filed on 6/1/2012 be dismissed.
4. There is no appeal before this Honourable Court on the basis of which to predicate the motion, nay the prayers in Appellants’ motion filed on 6/1/2012.”
At the hearing of the application on 25th April, 2012, the learned counsel for the appellants relied on the processes filed in respect of the motion while learned counsel for the 1st respondent also placed reliance on his own written address, the learned counsel for the 3rd and 4th respondents, Lazarus Izabi-Undie Esq. had referred the court to the Notice of Preliminary objection by him and relied thereon with the Written address filed therewith, and urged court to dismiss the application and the entire appeal. The 3rd and 4th respondents shall now be more conveniently called the Respondents.
It is clear from the preliminary objection of the respondents as set out earlier in this ruling that it is a challenge to the competence of the appellants’ appeal before this court, and ipso facto a challenge to the jurisdiction of this court to adjudicate or continue to adjudicate over same. A court will only have jurisdiction where no features exist that prevent it from exercising its jurisdiction. see Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; Sken Consult vs. Ukey (1981) 1 SC 6.
The jurisdiction of court is a fundamental and threshold factor in any adjudication, as no court can conduct any proceedings without jurisdiction and if it does, the whole proceedings will be a nullity no matter how well conducted it otherwise might have been. See Ukwu vs. Bunge (1997) 8 NWLR (Pt.518) 527; A.G. Lagos State vs. Dosumu (1989) 3 NWLR (pt. 111) 552; Dapiarong vs. Dariye (2007) 8 NWLR (pt. 1036) 332; A.G. Federation vs. Abubakar (2008) 16 NWLR (pt. 1112) 135; Umanah vs. Attah (2006) 17 NWLR (Pt. 1009) 503. It is for the reason of the significance of jurisdiction that the courts consider it a bounden duty to determine an objection thereto at the earliest opportunity and before going into other issues in the matter. see Governor, Kwara State vs. Dada (2011) vol. 5-7 MJSC (pt. 1) 113; Sani vs. Okene L.G. Traditional Council (2008) All FWLR (pt.409) 464, Elabanjo vs. Dawodu (2006) All FWLR (pt. 328) 676.
The crux of the respondents’ preliminary objection is that there is no appeal before this court upon which the appellants’ motion can be premised, since the period of 60 days within which this court is to hear and determine the appeal had expired, also that this court being the final court in matters concerning House of Representatives election, the request for reference of issues to the Supreme Court is not proper.
The brief background of this appeal is that the 1st appellant contested the election conducted by the 3rd and 4th respondents on 9th April, 2011 into the House of Representatives seat for Uyo Federal constituency in Akwa Ibom State. He was sponsored by the 2nd appellant. The 1st respondent also contested the election as the candidate sponsored by the 2nd respondent. The 3rd and 4th respondents declared the 1st respondent the winner of the election on 10th April, 2011 and he was accordingly returned. Aggrieved by the declaration, the appellants filed Election Petition No. EPT/AKS/HR/07/2011 on 3rd May, 2011 at the National/State House of Assembly Election Tribunal, Uyo, (hereinafter called the Tribunal) which in its judgment of 21st October, 2011 dismissed the petition. Not satisfied, the appellants filed a Notice And Grounds of Appeal on 10th November, 2011 in addition to that filed on 9th November, 2011 against some interlocutory decisions of the Tribunal.
The jurisdiction of this court in respect of election matters statutorily donated by Section 246 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereinafter called the Constitution).
That jurisdiction has however been clearly circumscribed by the provision of Section 285 (7) of the Constitution which says that:
285 (7) “An appeal from a decision of an election tribunal or court shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal.
For the reasons articulated by the appellants, the appeal could not be heard and determined within 60 days, which by simple arithmetic ended on 9th January, 2011.:
What then is the way forward? The only way open to this court is to follow and apply the decison in PDP V. CPC (2011) Vol. 10 MJSC 1, and Shettima vs. Goni (2011) vol.10 MJSC 53 to the effect that the provision of section 285 (7) of the Constitution is clear and does not require any interpretation at all, it must be given the natural meaning which is that an appeal from a decision of an Election Tribunal or Court of Appeal in an election matter must mandatorily be heard and determined within 60 days from the date of judgment/decision of the Tribunal or court of Appeal.
The period of 60 days which include Saturdays, Public Holidays and even Court vacations cannot be extended by court.
The effect of not complying with Section 285(7) as further held in those cases is that an appeal not determined within the stipulated period of 60 days becomes dead and cannot be resuscitated by any ingenuity. The court has lost the vires to determine the appeal and ipso facto, matters incidental or related thereto. This court as a court with subordinate jurisdiction to the Supreme Court is bound to bow to, follow and apply the decision of the Supreme Court especially as so provided by Section 287 (1) of the Constitution.
There cannot be sentiment and/or sympathy about it.
The appeal of the appellants therefore became spent, statute-barred and consequently dead on 9th day of January, 2012 and it should be allowed to rest after this ritual of its burial today.
The motion filed on 6th January, 2012 is for reference of some issues to the Supreme Court under Section 295 (3) of the Constitution. That application is, in my view grossly misconceived. This is because a court can only apply Section 295 of the Constitution where and when it is still vested with jurisdiction over the cause or matter in respect of which such a question as to the interpretation of the Constitution has arisen. Again, I have to state that by virtue of Section 146 (3) of the Constitution, this court is the final bus stop as far as the appeals on decisions of Election Tribunals of House of Representative election the type of which this appeal involves.
See: Umaru vs. Aliyu (2011) vol. 1 & 2 MJSC 182.
My humble view is that to accede to the appellants’ request in their motion filed on 6th January, 2012 is to embark on a jamboree or a mere futility.
The consequence is that the motion filed on 16th January, 2012 is unmeritorious and it is dismissed.
The final conclusion is obvious, and it is that the objection of the respondents has succeeded and it is upheld. I hold upon the unreported judgments of the Supreme Court in consolidated appeals Nos. SC.62/2012, SC.62A/2012 and SC.63/2012 Hon. Gabriel Torwua Suswan vs. Senator Daniel I. Saror & Ors; Hon. Gabriel Suswan v. Daniel Saror & Ors. and Peoples Democratic Party v. Prof. Steve Torkuma Ugba & Ors delivered on 29th March, 2012, that the two appeals of the appellants become spent, statute barred and dead are dismissed I make no order as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead ruling written by my learned brother I. O. Akeju, JCA, and the views expressed therein as well as the conclusions reached on both the objection to the motion and the appeals, are the same with mine.
Just for emphasis, I would like to point out that the questions raised in the motion for reference to the Supreme Court by the Applicants relate to, in respect of and arise from the appeals filed against the decision of the Election Tribunal delivered on the 21/10/2011 which by the operation of the provisions of Section 285(7) of the 1999 Constitution (as altered), had to be determined within 60 days from that day.
The Supreme Court had, in the cases of PDP v CPC and Shettima v Goni, cited in the lead ruling, made it clear that an election appeal from the decision of an Election Tribunal not decided within the time prescribed in the provisions of the Section, would lapse or abate and the court would lose and lack the jurisdiction to continue to hear such an appeal.
The provisions of Section 285 (7) limit the time within which an appeal must be determined by the use of the words “shall” therein, thereby leaving no room for discretion and so an appeal not determined within the period of time limited, becomes time or statute barred. The law is now firmly established that where the limitation of time is imposed in a statute, decree or edict, unless the statute, decree or edict makes provision for extension of time, the courts cannot under any circumstance, extend the time. See CPC v INEC (2011) 12 MJSC (Special Edition), 105 at 126; PDP v CPC and SHETTIMA v GONI, where the Supreme Court in dealing with application of the provisions of Section 285 (7) of the Constitution, had stated that:-
“In any event, at the time the complaint against the ruling of 10th August, 2011 was being raised before the lower court that court, had lost jurisdiction to entertain same by effluxion of time by virtue of the provisions of section 285 (7) of the 1999 Constitution, as amended.”
In the present motion, this court lost jurisdiction over the appeals in issue by the effluxion of 60 days prescribed in Section 285 (7) from the date which the decisions of the Election Tribunal were delivered. For the main appeal against the decision delivered on the 21/10/2011, the 60 days ended by the 20th or 21st January, 2011 from which date, the said appeal had abated, lapsed and for all practical judicial purposes, dead and non existence since the court had lost and therefore lacked the judicial authority and power howsoever, to continue to hear it for the purpose of determination. The only step the court could take or have taken after that day, was formally pronounce the demise or death of the appeal by dismissing it for being statute or time barred. Consequently, no other process ancillary or connected to the appeal can properly be determined by the court in the absence of the requisite jurisdiction.
Although the motion was filed before the effluxion of the time limited in Section 285 (7) in respect of the appeal, by the 25/4/2012 when it was heard, the period of time had expired twice and so the court had effectively lost its jurisdiction over the appeal in respect of which it was filed. By the date of hearing, the motion had lost its foundation as the court no longer had the jurisdiction over it.
In any event the questions to be referred to the Supreme Court by this court under the provisions of Section 295 (3) of the Constitution (as altered), are questions which arise in the course of the proceedings in an appeal before the court, and NOT questions which the parties or their counsel formulate on their own and submit to the court, asking it to refer them to the Supreme Court. See Obayogie v Oyowe (1994) 5 NWLR (346) 637; Bello v Attorney-General, Lagos State (2006) ALL FWLR (324), 1954 at 1977. The position was put thus by this court in the case of Ibori v Ogboru (2004) 12 NWLR (895) 154-
“The criteria governing a reference are provided by Section 295 (3) of the 1999 Constitution. The question or questions to be referred must
a) relate to or concern the interpretation or the application of any provisions of the Constitution;
b) have arisen in the proceedings before the court and; in the opinion of the court involve a substantial point of law; and
d) not be hypothetical.”
Having lost jurisdiction over the appeal by the effluxion of time limited under section 285 (7), the court did not proceed with the appeal and so the question could not have properly arisen in the course of the proceedings in the appeal for the purpose of reference under section 295 (3).
For the above and the further reasons set out in the lead ruling which I adopt, I join in upholding the objection and dismissing the appeals and the motion.
Parties to bear their respective costs.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft from the judgment just delivered by my learned brother Isaiah Olufemi Akeju, JCA I am in total agreement that this court lacks the necessary vires to continue with this appeal as presently constituted.
The Respondents filed a Preliminary Objection challenging the jurisdiction of this court as per S. 285 (7) of the 1999 Constitution (as altered)
“An appeal from a decision of an election tribunal or court shall be heard and disposed of within 50 days from the date of the delivery of judgment of the tribunal.”
The judgment of the Tribunal in EPT/AKS/HR/07/2011 delivered on 21st October, 2011 is by S. 285(7) expected to be disposed off on appeal within 60 days. These 60 days expired on the 9th January, 2012. On the expiry on that date the court is robbed of jurisdiction to deal with this appeal in anyway what so ever. See the Supreme Court cases of PDP. Vs. CPC (2011) Vol 10 MJSC page 1 and Shettima vs. Goni 2011 Vol 10 M SSC page 53.
Where the Supreme Court held, that the 60 days donated by the Constitution is sacrosanct. There is no room for extension of the time to hear and determine this appeal beyond the number of days prescribed in S. 285 (7).
For this and the more comprehensive reasons in the lead judgment, the appeal is unmeritorious and hereby dismissed.
For avoidance of doubt this appeal ends its journey here at the Court of Appeal. All election appeals from both the State Assemblies and the National Assembly all end in the Court of Appeal, by virtue of S.146(3) of the 1999 Constitution (as altered).
I abide by all the consequential orders in the lead judgment.
Appearances
Otu Iwang Esq. For Appellant
AND
Samuel Ikpo Esq. For Respondent
