PEOPLES DEMOCRATIC PARTY (PDP) V. ARC. AUSTIN ASEMA ACHADO & ORS. (2012)

PEOPLES DEMOCRATIC PARTY (PDP) V. ARC. AUSTIN ASEMA ACHADO & ORS.

(2012)LCN/5135(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 7th day of February, 2012

CA/MK/EPT/46/2011

RATIO

PRACTICE AND PROCEDURE: WHETHER A COURT CAN TURN ITSELF INTO A LAW MAKING BODY

It is true, correct and incontrovertible that the Court cannot turn itself into a law making body that would amount to the usurpation of Legislative function. We cannot step into the shoes of the Legislators and do that which they ought to do, if it appears to us (Court) that they (Legislators) have done an incomplete job, we may observe the fact of the existence of a lacuna in the law and expect the Legislators will fill up the gap, but do no more. (Refer: A. G. Federation V. Abubakar (2007) 10 NWLR Pt. 1041 Pg. 1 92, INEC V. Musa (2003) I SC Pt. 1 Pg 106 @ 183). PER. M. B. DONGBAN-MENSEM, J.C.A

THE FUNDAMENTAL PRINCIPLE OF THE INTERPRETATION OF THE CONSTITUTION

The fundamental principle of the interpretation of the Constitution be interpreted in isolation when in search of the real intention of the Legislature in enacting the said provisions of the Constitution. (See Federal Republic of Nigeria v. Osahon (2006) 2 SCNJ 348 @ 369. Onu, (JCS) spelt out the principles in the following terms: “In interpreting statutory or constitutional provisions, such provisions should not be read in isolation of the other parts … the statute or Constitution should be read as a whole in order to determine the intendment of the makers . . . (Refer also Ade V. Oyinwola (2000) 10 NWLR 167 Pt. 116 @ 215.” In the case of INEC v. Musa (2003) I SC Pt. Pg. 106 @ 183, Niki Tobi, (JSC) held that the golden and main rule of the interpretation of statutes, including the Constitution, is the intention of the law-maker. (See also Buhari V. Yusuf (2004) IEPR 1 @ 25.) In the case of Shelim V. Gobang (2009) 12 NWLR Pt. 115 Pg. 435 Fabiyi, (JSC) advocated a “harmonious interpretation of the Constitutional provision which will tally with reason. My Lord (JSC) held that related sections of the Constitution ought to be interpreted together. (Refer: Rabiu V. The State (1980) 8 – 11 SC 130 @ 151 and Senator Abraham Adesanya V. The President of the FRN and Anor. (1981) 5 SC 112 @ 131, 321. And A. G. Lagos State V. Eko Hotels Ltd and 1 or (2006) 18 NWLR Pt. 1011 Pg.78 @ 458. The case of Tinubu V. IBM Securities Plc. (2001) FWLR (Pt. 77) Pg. 1003 @ 1003, Iguh, (JSC) re-echoed the need for a harmonious interpretation of the provisions of the Constitution and recommends a preference for such interpretation as would serve the interest of the Constitution and best carry out its object and purpose. Its relevant provisions must be read together and not dis-jointly and where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution. PER. M. B. DONGBAN-MENSEM, J.C.A

THE DEFINITION OF THE TERM JUDGEMENT

Now, it may be observed that the word “judgment” was used in the provisions of Section 285(6). However, the word “judgment” was not defined by the Constitution but Section 318(1) of the Constitution defines the word “decision” thus: “Decision’ means, in relation to a Court, any determination of the Court and includes judgment, decree, order, conviction, sentence or recommendation.” This definition was amplified by Onnoghen, (JSC) in the terms:- “Decision as defined in Section 318 of the 1999 Constitution is as it relates to a Court (and I may add tribunal) and it is clear that it is synonymous with the determination of the Court in the form of judgment, decree, order, conviction, sentence or recommendation. In other words, it is my considered view that the word “decision” therein means the some as a determination, judgment, decree, order, conviction, sentence or recommendation of a Court or tribunal, and I may add any quasi judicial Tribunal, authority or body…. I hold the view, therefore, that there is no legally cognizable difference between the words “decision” and “judgment” as used in section 285(7) of the 1999 Constitution as the learned senior Counsel for the Appellants would want us believe and hold. It is also of much importance to note that the words “decision” and “judgment” as defined in the said section 285(7) of the 1999 Constitution applies generally to the determination of a Court either in an interlocutory proceeding or in the final decision. The definition admits of no distinction between or trial can make an order either in an interlocutory proceeding or in the final decision and it would still be an order or decision or judgment of the Court by the provisions of section 285(7) of the 1999 Constitution. PER. M. B. DONGBAN-MENSEM, J.C.A.

THE GENERAL PRINCIPLE OF INTERPRETATION

The general principle of interpretation is that where the words used in a statute are clear and unambiguous, they must be given their plain and ordinary meaning. (Refer: Kalu V. Odili (1992) 6 SCNJ 76, African Newspapers Ltd. FRN (1985) NWLR Pt. 5 Although section 285(6) of the Constitution and section 142 of the Electoral Act confer a special jurisdiction on this Court to determine election matters timeously in precedence over all other cases or matters, the said provisions do not thereby curtail nor take away the powers of this Court conferred by section 246 of the Constitution nor section 15 of the Court of Appeal Act which repose wide powers in this Court. PER. M. B. DONGBAN-MENSEM, J.C.A

Justice

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

Justice

PEOPLES DEMOCRATIC PARTY (PDP)Appellant(s)

AND

1. ARC. AUSTIN ASEMA ACHADO
2. ACTION CONGRESS OF NIGERIA (ACN)
3. CHRISTINA ALAAGA
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
5. THE RETURNING OFFICER, HOUSE OF REPRESENTATIVE ELECTION FOR GWER EAST/GWER WEST ELECTION, BENUE STATE
6. THE RESIDENT ELECTORAL COMMISSIONER INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC), BENUE STATE
7. THE ELECTORAL OFFICER (INEC) GWER EAST LOCAL GOVERNMENT
8. THE ELECTORAL OFFICER (INEC) GWER WEST LOCAL GOVERNMENT
9. THE SUPERVISORY PRESIDING OFFICER (INEC) IKYOGBAJIR WARD, GWER EAST LOCAL GOVT.
10. THE SUPERVISORY PRESIDING OFFICER (INEC), MBABUR WARD, GWER EAST LOCAL GOVT.
11. THE SUPERVISORY PRESIDING OFFICER (INEC) MBAIKYU WARD, GWER EAST LOCAL GOVT.
12. THE SUPERVISORY PRESIDING OFFICER (INEC) MBAKYAAN WARD, GWER EAST LOCAL GOVT.
13. THE SUPERVISORY PRESIDING OFFICER (INEC) ISHOUGH WARD, GWER EAST LOCAL GOVT.
14. THE SUPERVISORY PRESIDING OFFICER (INEC) UGEE WARD, GWER EAST LOCAL GOVERNMENT
15. THE SUPERVISORY PRESIDING OFFICER (INEC) AVIHIJIME WARD, GWER WEST LOCAL GOVT.
16. THE SUPERVISORY PRESIDING OFFICER (INEC) AVIHIJIME WARD, GWER WEST LOCAL GOVT.
17. THE SUPERVISORY PRESIDING OFFICER (INEC) GBAANGE/TONGOV WARD, GWER WEST LOCAL GOVT.
18. THE SUPERVISORY PRESIDING OFFICER (INEC) IKYAGHEV WARD, GWER WEST LOCAL GOVT.
19. THE SUPERVISORY PRESIDING OFFICER (INEC) ITYOUGHATEE/ONJAHA WARD, GWER WEST LOCAL GOVT.
20. THE SUPERVISORY PRESIDING OFFICER (INEC) MBABUANDE WARD, GWER WEST LOCAL GOVT.
21. THE SUPERVISORY PRESIDING OFFICER (INEC) MBACHOHON WARD, GWER WEST LOCAL GOVT.
22. THE SUPERVISORY PRESIDING OFFICER (INEC) MBANYAMSHI WARD, GWER WEST LOCAL GOVT.
23. THE SUPERVISORY PRESIDING OFFICER (INEC) MBAPA WARD, GWER WEST LOCAL GOVERNMENT
24. THE SUPERVISORY PRESIDING OFFICER (INEC) SAGHEV WARD, GWER WEST LOCAL GOVT.
25. THE SUPERVISORY PRESIDING OFFICER (INEC) SAGHEV WARD, GWER WEST LOCAL GOVERNMENT.
26. THE SUPERVISORY PRESIDING OFFICER (INEC) SENGEV/YENGEV WARD GWER WEST LOCAL GOVT.
27. THE SUPERVISORY PRESIDING OFFICER (INEC) IKYOGBAJIR WARD, GWER WEST LOCAL GOVT.
28. THE WARD COLLATION OFFICER (INEC) MBABUR WARD, GWER EAST LOCAL GOVT.
29. THE WARD COLLATION OFFICER (INEC) MBAIKYU WARD, GWER EAST LOCAL GOVT.
30. THE WARD COLLATION OFFICER (INEC) MBAKYAAN WARD, GWER EAST LOCAL GOVT.
31. THE WARD COLLATION OFFICER (INEC) ISHOUGH WARD, GWER EAST LOCAL GOVT.
32. THE WARD COLLATION OFFICER (INEC) UGEE WARD, GWER EAST LOCAL GOVT.
33. THE WARD COLLATION OFFICER (INEC) AVIHIJIME WARD, GWER WEST LOCAL GOVT.
34. THE WARD COLLATION OFFICER (INEC) GAAMBE/USHIN WARD, GWER WEST LOCAL GOVT.
35. THE WARD COLLATION OFFICER (INEC) GBANGEE/TONGOV WARD, GWER WEST LOCAL GOVT.
36. THE WARD COLLATION OFFICER (INEC) IKYAGHEV WARD, GWER WEST LOCAL GOVT.
37. THE WARD COLLATION OFFICER (INEC) ITYOUGHEE/INJAHA WARD, GWER WEST LOCAL GOVT.
38. THE WARD COLLATION OFFICER (INEC) MBABUANDE WARD, GWER WEST LOCAL GOVT.
39. THE WARD COLLATION OFFICER (INEC) MBACHOHON WARD, GWER WEST LOCAL GOVT.
40. THE WARD COLLATION OFFICER (INEC) MBANYAMSHI WARD, GWER WEST LOCAL GOVT.
41. THE WARD COLLATION OFFICER (INEC) MBAPA WARD, GWER WEST LOCAL GOVT.
42. THE WARD COLLATION OFFICER (INEC) SAGHEV/UKUSU WARD, GWER WEST LOCAL GOVT.
43. THE WARD COLLATION OFFICER (INEC) SENGEV WARD, GWER WEST LOCAL GOVT.
44. THE WARD COLLATION OFFICER (INEC) SENGEV/YENGEV WARD, GWER WEST LOCAL GOVT.
67. THE PRESIDING OFFICER (INEC) AJINE LGED SCHOOL, IKYOGBA JIR WARD GWER EAST LOCAL GOVT.
68. THE PRESIDING OFFICER (INEC) RCM SCHOOL GYUNGU, MBABUR WARD GWER EAST LOCAL GOVT.
69. THE PRESIDING OFFICER (INEC) RCM SCHOOL IJATO, MBABUR WARD, GWER EAST LOCAL GOVT.
70. THE PRESIDING OFFICER (INEC) RCM SCHOOL IJATO, MBABUR WARD GWER EAST LOCAL GOVT.
71. THE PRESIDING OFFICER (INEC) IGBOR, MBAIYU WARD, GWER EAST LOCAL GOVT.
72. THE PRESIDING OFFICER (INEC) RCM SCHOOL KIMBIR, MBAKYAAN WARD GWER EAST LOCAL GOVT.
73. THE PRESIDING OFFICER (INEC) RCM SCHOOL UGEN, MBAKYAAN WARD GWER EAST LOCAL GOVT.
74. THE PRESIDING OFFICER (INEC) TOMATAR MARKET SQUARE, MBAKYAAN WARD GWER EAST LOCAL GOVT.
75. THE PRESIDING OFFICER (INEC) LGED SCHOOL ITARBO, MBAKYAAN WARD GWER EAST LOCAL GOVT.
76. THE PRESIDING OFFICER (INEC) LGED SCHOOL II TARBO, MBAKYAAN WARD GWER EAST LOCAL GOVT.
77. THE PRESIDING OFFICER (INEC) LGED SCHOOL SEGHER, MBAKYAAN WARD GWER EAST LOCAL GOVT.
78. THE PRESIDING OFFICER (INEC) RCM SCHOOL CHICHICHAN 11 ISHOUGH WARD, GWER EAST LOCAL GOVT.
79. THE PRESIDING OFFICER (INEC) TSE IKYAGH OPEN SPACE, UGEE WARD GWER EAST LOCAL GOVT.
80. THE PRESIDING OFFICER (INEC) LGED SCHOOL IGBILA I UGEE WARD GWER EAST LOCAL GOVT.
81. THE PRESIDING OFFICER (INEC) AKULEGA OPEN SPACE, UGEE WARD GWER EAST LOCAL GOVT.
82. THE PRESIDING OFFICER (INEC) JOR MARKET SQAURE, AVIHIJIME WARD, GWER WEST LOCAL GOVT.
83. THE PRESIDING OFFICER (INEC), UDAM COMPOUND, GAAMBE – USHIN WARD GWER WEST LOCAL GOVT.
84. THE PRESIDING OFFICER (INEC) NEAR GESA COMPOUND, GAAMBE – USHIN WARD GWER WEST LOCAL GOVT.
85. THE PRESIDING OFFICER (INEC) AGBAJA LEPROSY CLINIC, GAAMBE-USHIN WARD, GWER WEST LOCAL GOVT.
86. THE PRESIDING OFFICER (INEC) RCM SCHOOL IGBOJI, GAAMBE-USHIN WARD GWER WEST LOCAL GOVT.
87. THE PRESIDING OFFICER (INEC) AONDO GBUUSU COMPOUND, GBAANGE/TONGOV WARD GWER WEST LOCAL GOVT.
88. THE PRESIDING OFFICER (INEC) LGEA SCHOOL IGBAFU, GBAANGE/TONGOV WARD GWER WEST LOCAL GOVT.
89. THE PRESIDING OFFICER (INEC) TSE ADUDU COMPOUND GBAANGE/TONGOV WARD GWER WEST LOCAL GOVT.
90. THE PRESIDING OFFICER (INEC) TSE ADUDU COMPOUND GBAANGE/TONGOV WARD GWER WEST LOCAL GOVT.
91. THE PRESIDING OFFICER (INEC) NKST SCHOOL ATUKPU, IKYAGHEV WARD GWER WEST LOCAL GOVT.
92. THE PRESIDING OFFICER (INEC) LGEA SCHOOL TEMA, ITYOUGHATEE/INJAH WARD GWER WEST LOCAL GOVT.
93. THE PRESIDING OFFICER (INEC) UTIM COMPOUND, ITYOUGHHATEE/INJAHA WARD GWER WEST LOCAL GOVT.
94. THE PRESIDING OFFICER (INEC) TSE ACHAI COMPOUND, MBABUANDE WARD GWER WEST LOCAL GOVT.
95. THE PRESIDING OFFICER (INEC) NAGI MARKET SQUARE, MBACHONHON WARD GWER WEST LOCAL GOVT.
96. THE PRESIDING OFFICER (INEC) LGEA SCHOOL KWEGI, MBANYAMSHI WARD, GWER WEST LOCAL GOVT.
97. THE PRESIDING OFFICER (INEC) YAYUA COMPOUND, MBANYAMSHI WARD, GWER WEST LOCAL GOVT.
98. THE PRESIDING OFFICER (INEC) TSE UDEGHE COMPOUND, MBAPA WARD GWER WEST LOCAL GOVERNMENT
99. THE PRESIDING OFFICER (INEC) TSE AMEE COMPOUND, MBAPA WARD GWER WEST LOCAL GOVT.
100. THE PRESIDING OFFICER (INEC) IGBAHENA COMPOUND SENGEV WARD GWER WEST LOCAL GOVT.
101. THE PRESIDING OFFICER (INEC) ANBIAN MARKET SQUARE, SENGEV WARD GWER WEST LOCAL GOVT.
102. THE PRESIDING OFFICER (INEC) RCM SCHOOL IKYERKYAA, SENGEV WARD GWER WEST LOCAL GOVT.
103. THE PRESIDING OFFICER (INEC) ANBIAN 11 MARKETS SQUARE, SENGEV WARD GWER WEST LOCAL GOVT.
104. THE PRESIDING OFFICER (INEC) TSAV HEMBA COMPOUND, SENGEV/YENGEV WARD GWER WEST LOCAL GOVERNMENT
105. THE PRESIDING OFFICER (INEC) BUNAKA MARKET SQUARE SENGEV/YENGEV WARD GWER WEST LOCAL GOVT.Respondent(s)

M. B. DONGBAN-MENSEM, J.C.A (Delivering the Leading Judgment): On 27th day of January 2012, I pronounced the unanimous decision of this Court pursuant to section 9(8) of the Constitution of the Federal Republic of Nigeria (second alteration) Act No. 2, 2010. This appeal fell to me to write the lead judgment in which I now give the reasons for my decision in dismissing the appeal filed.
This is an appeal by the 2nd Respondent/ Appellant against the ruling of the National/State House of Assembly election Tribunal sitting in Makurdi delivered on the 29th day of November, 2011 in the petition filed by the petitioners/Respondents against the election of held on 26th day of April, 2011.
Following the Gwer East/West House of Representatives election that took place on the 26th day of April, the 3rd Respondent was declared winner and returned as the Member representing Gwer East/ Gwer West House of Representatives. The Petitioners/Respondents being dissatisfied with the outcome of the election filed in Petition on the 17th day, of May 2011.
The 3rd Respondent and the Appellant challenged the jurisdiction of the trial tribunal to hear the Petition through their respective motions on notice on several grounds.
The Tribunal dismissed the petition based on the application of the 3rd Respondent. Aggrieved by the said decision, the petitioners appealed against the decision and the Court of Appeal reverted the petition to the tribunal for trial. During the re-trial, the Appellant and the 3rd Respondent herein raised before the Tribunal that by virtue of section 285(6) of the 1999 Constitution (as amended) and section 134(2) of the Electoral Act, 2010 (as amended) the Honourable tribunal has only 180 days from the dote of filing of this petition within which it must deliver its judgment and the 180 days has of ready lapsed with effect from the 13/11/11.
The Tribunal heard the applications of the Appellant and the 3rd Respondent and on 29/11/2011 refused the applications and held amongst other things that the 180 days within which to hear and determine the petition start to run from the time the Court of appeal made an order for retrial, Dissatisfied with the said ruling. The Appellant filed a notice of Appeal containing three grounds of appeal.
The Appellant submits that the following issues arise for determination:
Whether this petition NSHA/EPT/BN/REP/42/2011 has not lapsed on 12/11/2011 having regard to the provisions of section 285(6) of the 1999 Constitution (as amended) and section 134(2) of the Electoral Act, 2010 (as amended) and the Honourable Tribunal is deprived of the jurisdiction to hear same (ground one of the appeal.)
Whether the learned trial Tribunal is not bound to follow the interpretation of section 285(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) by the Supreme Court in SC. 332/2011: SC.333/2011: and SC. 352/2011 between Alhaji Kashim Shettima & Anor V. Alh. Mohammed Goni & 4 Ors (Supra) delivered on the 31st day of October, 2011 of Pages 21-24 in the petition (Ground 2 of the appeal) whether an order of re-trial is capable of reviving a petition that has lapsed by effluxion of time (ground 3 of the appeal)
The 1st and 2nd Respondents sole is:
Whether the 180 days period as provided by section 285(6) of the 1999 Constitution (as amended) con continue to run after the final decision of on election tribunal. (Ground one)
The 3rd Respondent filed no brief though duly represented.
The 4th to the 105 Respondents formulated a lone issue:
Whether the Honourable Tribunal have the jurisdiction to entertain petition NSHA/EPT/REP/42/2011 more than 180 days after the conduct of the election that gave rise to the petition.
S. A. Udaga Esq., who holds the brief of Dr. A. A. Ijohor (SAN), set out the provisions of section 285(6) and 134(2) respectively of the Constitution and the Electoral Act 2010 each (as amended) as stipulating the life span of an election petition in very clear and unambiguous terms, Counsel cites the case of Maitsidau v. Chidari (2008)16 NWLR pt. 1114 Pg. 553 @ 575 which held that it is also firm established that….
It is also firmly established that where the words of a statute are clear, simple and unambiguous, they should be given their ordinary, plain meanings. Thereafter, they should be applied and effect given thereto. In the instant case the wordings and phraseology of Parag. 3(1), (2), (3) and 4 of the Election Tribunal Court Practice Directions, 2007 are plain, simple, unambiguous and crystal clear.
The learned Counsel cites the recent decisions of the Supreme Court in the twin appeals of Shettima v. Goni and as the authority which has interpreted the provision of section 285(6) of the Constitution (as amended).

Content that as clearly spelt out in the above decision, the provisions of section 285(5)(b) of the 1999 Constitution (as amended) as well section 134(2) of the Electoral Act, 2010 (as amended) are mandatory and not permissive as they admit of no discretion. This Court has a duty to apply them strictly without discretion as the provisions of those sections are mandatory and not permissive and admit of no discretion.

Upon the authority in Adeogan v. Fashogba (2008) 17 NWLR Pt 1116 149 @ 180 the learned Counsel submits that no live issue exists in this appeal because the time Constitution provided for the hearing and delivery of judgment in the petition which gave rise to this appeal has lapsed. Learned Counsel cites the case of Agbokobo v. Ine (2008) 18 NWLR (Pt. 1119) 464 @ 456-547 which declares as hypothetic or mere academic act. The petition which has since lapsed (See also Appeal No: SC. 7272/2012 & SC. 276/2011 between PDP v. CPC & 41 Ors) which held that appeals are no longer alive having died by effluxion of six (60) days allotted by section 285(7) of the 1999 Constitution…. And so has the issue in this appeal, maintains the learned Counsel.
Counsel quotes extensively, the decisions of the Supreme Court in the Shettima case in urging us to dismiss this appeal because the tribunal assumed jurisdiction in total disregard of the decision of the apex Court in Shettima’s case. Also cited and relied upon are the cases Ndili v. Akinsumade & 2 Ors (2000) 8 NWLR (Pt. 668) 293 AT 346-347, Dalhatu v. Turaki (2003) 15 NWLR (Pt. 823) Pg. 310 @ 336, Chief Great Ovedje Ogboru v. President Court of Appeal & Anor (2007) All FWLR (Pt. 369) 1221 @ 1231 and Ogolo V. Legg, Jack (1999) 8 NWLR (Pt. 613) @ 137 Per Pats-Acholonu, (JCA).
It is further the submission of the learned Counsel that section 285(6) of the Constitution which is a specific provision of the Constitution, must prevail over all other general provision of the Constitution (Refer: Dapialong v. Dariye (2007) 8 NWLR (Pt. 1036) 322 @ 414-415 and Ogidi v. State (2005) 5 NWLR (Pt. 9189) 286 @ 327:
The learned Counsel purports, upon their submission that by the combine provisions of section 285(6) of the 1999 Constitution (as amended) and section 134(2) of the Electoral Act, 2010 (as amended) petition has lapsed and the Honourable Tribunal no longer has jurisdiction to her and determine it and to allow this appeal and strike out the petition.
A. I. Wombo Esq. finds as untenable and legally myopic, under the rules of interpretation, the argument of the Appellant that the 180 days to hear the petition of the 1st Respondent has lapsed and therefore, the Tribunal should ignore the order of this Court.
The learned Counsel submits that section 285(6) should not be interpreted in isolation so as to render section 385(7) of same Constitution (Refer: Shelim V. Gobang (2009) 12 NWLR Pt. 115 Pg. 435 Fabiyi, (JSC), Tinubu V. IBM Securities Plc (2001) FWLR (Pt. 77) Pg. 1003 @ 1023, Iguh, (JSC) & INEC v. Musa (2003) TSC Pt. Pg. 106 @ 183, Niki Tobi, (JSC).
The learned Counsel maintains that it misleading to argue that upon the decision of the Supreme Court in Shettima’s case, the Tribunal should strike out the 1st Respondent’s petition.
Proceeds to distinguish the judgment of the apex Court in Shettima which facts are different from those of the present appeal. SC. 332 and SC. 333/2011 were against the ruling of the Court of Appeal Jos Division in the CA/J/EPT/GOV/151/2011 staying the ruling and Proceedings of the Borno State Governorship election Tribunal while SC. 352/2011 was against the decision of the court of Appeal delivered on the 26th day of September, 2011 in which the Court adjourned the pending appeal before it sine dine following the entry of SC. 332/2011 and 333/2011 at the Supreme Court.
In the instant case, Petitioners/Respondents’ Petition was dismissed by the Tribunal following the judgment of the Court of appeal in CA/MK/EPT/10/2011. Being dissatisfied with the judgment of the Court of appeal, the Petitioners/Respondents appealed to the Supreme Court and the Supreme Court allowed the appeal, set aside the decision of the Court of Appeal, restored the Petition and ordered that the petition be heard on the merit.
The issues and circumstances are also different, submits the learned Counsel. Counsel submits that whereas the Petition in Shettima’s case was still pending when the Supreme Court gave it verdict, the petition in this appeal had been dismissed consequently; the orders mode by the Supreme Court are different in the Alhaji Kashim Shettima & Anor V. Alh. Mohammed Goni & 4 Ors (Supra).
The learned Counsel cites and relies on the decision of this of this Court in Idongesit Godwin Akpon Udokpo vs. Keneth Edet Archibong & 2 Ors. in CA/C/NAEA/257/11 delivered on the 17th November, 2011, as representing the correct position in law in the circumstance of this appeal.
It is therefore, finally submitted that the hearing of this petition on the merits is within the jurisdiction of this Tribunal, the matter having been ordered by the Supreme Court to be heard on the merits. Hearing on the merits in this instance means hearing it de novo.
For the 4th to the 105th Respondents Mrs. N. D. Ter submits upon the clear provisions of section 285(6) of the 1999 Constitution and section 134(2) of the Electoral Act 2010 (as amended) that the instant appeal is statute barred, learned counsel maintains that since the petition has not been determined it has expired by the operation of law. The tribunal therefore, lacks the jurisdiction to entertain the petition.

The fundamental principle of the interpretation of the Constitution, (which is the ground norm is that no section or part of the Constitution should be interpreted in isolation when in search of the real intention of the Legislature in enacting the said provisions of the Constitution. (See Federal Republic of Nigeria v. Osahon (2006) 2 SCNJ 348 @ 369. Onu, (JCS) spelt out the principles in the following terms:
“In interpreting statutory or constitutional provisions, such provisions should not be read in isolation of the other parts … the statute or Constitution should be read as a whole in order to determine the intendment of the makers . . . (Refer also Ade V. Oyinwola (2000) 10 NWLR 167 Pt. 116 @ 215.”
In the case of INEC v. Musa (2003) I SC Pt. Pg. 106 @ 183, Niki Tobi, (JSC) held that the golden and main rule of the interpretation of statutes, including the Constitution, is the intention of the law-maker. (See also Buhari V. Yusuf (2004) IEPR 1 @ 25.)
In the case of Shelim V. Gobang (2009) 12 NWLR Pt. 115 Pg. 435 Fabiyi, (JSC) advocated a “harmonious interpretation of the Constitutional provision which will tally with reason. My Lord (JSC) held that related sections of the Constitution ought to be interpreted together. (Refer: Rabiu V. The State (1980) 8 – 11 SC 130 @ 151 and Senator Abraham Adesanya V. The President of the FRN and Anor. (1981) 5 SC 112 @ 131, 321. And A. G. Lagos State V. Eko Hotels Ltd and 1 or (2006) 18 NWLR Pt. 1011 Pg.78 @ 458.
The case of Tinubu V. IBM Securities Plc. (2001) FWLR (Pt. 77) Pg. 1003 @ 1003, Iguh, (JSC) re-echoed the need for a harmonious interpretation of the provisions of the Constitution and recommends a preference for such interpretation as would serve the interest of the Constitution and best carry out its object and purpose. Its relevant provisions must be read together and not dis-jointly and where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution.
Fortified with these pronouncements by the apex Court, I dare to interpret the almighty section 285(6) of the Constitution.
The provisions of section 285 are cast in mandatory terms as follows:
285(5) An election petition shall be filed within 21 days after the date of declaration of result of the election.
285(6) An election Tribunal shall deliver its judgment in writing within 180 days from the date of the filling of the petition.
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.
The Electoral Act as amended also has a time line provision made in rather uncompromising terms – as follows: Section
134 – 1) An election petition shall be filed within 21 days after the date of the declaration of results of the election.
(2) An election Tribunal shall deliver its judgment in writing within 180 days from the date of filing the petition
(3) An appeal from a decision of an Election Tribunal or Court shall be heard and disposed of within 60 days from the date of delivery of judgment of the Tribunal
There is no proviso to the vital provisions of section 285 of the Constitution to accommodate human exigencies. No provision is made in the event as in the instant case, an order of retrial is made. There is however, always a remedy in law where there exists a right. (See Per Uwais, (CJN) in Savannah Bank (Nig) Ltd V. Ajilo (2001) FWLR Pt. 75 Pg. 513 @ 542.
The Electoral Act has, by section 142 adapted the general Constitutional right of the citizens of Nigeria to appeal. In other words, the right of appeal along with all the attendant consequential orders is reserved and still reposes with this Court. It follows therefore that in considering an appeal in an election matter, the powers of the Court as Stated in Section 6(6)(b) of the Constitution and 15 of the Court of Appeal Act 2010 (as amended) remains intact.
A community reading of the provisions of the Constitution (as amended) pertaining to the right of citizens to appeal, section 285(6) inclusive, disclose that the only limitation placed by section 285(6) is that of time. In other words, this Court still retains its powers in all other respects as conferred by section 240 and expounded in the Court of Appeal Act 2010 (as amended). It therefore stands to reason that this Court, in the exercise of its jurisdiction in compliance with the provision of section 233(6) of the Constitution as expounded in section 134 of the Electoral Act, is at liberty to employ and exercise its powers under section 15 of the Court of Appeal Act. The only exception is where the mandatory days of 180 have lapsed, there is no remedy. Even if the only evidence placed before the Tribunal were all documentary, a situation where this Court can step into the shoes of the Tribunal, under section 15 of the Court of Appeal Act, we must refrain from so doing. (See Shettima’s case) It is my humble opinion that this Court cannot extend the 180 days in anyway once a petition has lapsed before a Tribunal.
However, once a decision has been taken and an Appeal filed, this Court is obligated to hear and determine the appeal within 60 days and make any order it deems requisite except that of extending time beyond 180 days for the Tribunal and 60 days for this Court. Thus, can Section 285(6) be interpreted strictly in terms of the clear and unambiguous words used in drafting the said Section? Yes and the section says of the expiration of 180 days an election petition filed within 21 days of an election must be concluded with a written judgment of the Tribunal. Now, how does this affect the right of parties before the Tribunal? The answer will place the instant appeal in prospective.
The process starts with an election which produces the candidate who is declared the winner by INEC. If the other contestants feel aggrieved, they must file election petitions within 21 days of the declaration of the results, failure to do so within the stipulated time forecloses any compliant about the result. Once filed within time other processes commence leading up to the hearing and the judgment of the Tribunal which must be delivered within 180 days. The petition can be determined in less than 180 days but not more than 180 days.
In other words, whatever witnesses the petitioner and Respondents have to call, such must conclude on such terms as are clearly provided for in the Schedule and the Tribunal must deliver its Judgment before the expiration of 180 days. Judgment in these terms means a decision of the Tribunal including Rulings.
The question that would arise here is whether the tribunal, had delivered its judgment in the petition in compliance with the provisions of Section 285(6) of the Constitution. Now, it may be observed that the word “judgment” was used in the provisions of Section 285(6). However, the word “judgment” was not defined by the Constitution but Section 318(1) of the Constitution defines the word “decision” thus:
“Decision’ means, in relation to a Court, any determination of the Court and includes judgment, decree, order, conviction, sentence or recommendation.”
This definition was amplified by Onnoghen, (JSC) in the terms:-
“Decision as defined in Section 318 of the 1999 Constitution is as it relates to a Court (and I may add tribunal) and it is clear that it is synonymous with the determination of the Court in the form of judgment, decree, order, conviction, sentence or recommendation. In other words, it is my considered view that the word “decision” therein means the some as a determination, judgment, decree, order, conviction, sentence or recommendation of a Court or tribunal, and I may add any quasi judicial Tribunal, authority or body…. I hold the view, therefore, that there is no legally cognizable difference between the words “decision” and “judgment” as used in section 285(7) of the 1999 Constitution as the learned senior Counsel for the Appellants would want us believe and hold.
It is also of much importance to note that the words “decision” and “judgment” as defined in the said section 285(7) of the 1999 Constitution applies generally to the determination of a Court either in an interlocutory proceeding or in the final decision. The definition admits of no distinction between or trial can make an order either in an interlocutory proceeding or in the final decision and it would still be an order or decision or judgment of the Court by the provisions of section 285(7) of the 1999 Constitution.
Thus once judgment is delivered within 180 days, the Tribunal is done. If however, hearing continues beyond 180 days, the petition abates of the expiration of 180 days and the Tribunal must take its hands off the petition which is irrevocably/irresustainably dead without remedy the tribunal becomes functus officio. At the expiration of 180 days neither the Tribunal nor this Court can extend the time or the life span of the petition. The candidate returned as duty elected by INEC can no longer be challenged.
The expiration of 180 days from the date of filling the petitions ends an era in the life span of the election that is Shettima vs. Goni’s case.
If a tribunal enters a judgment which displeases one of the candidates, another era begins with the filling of an appeal. Once an appeal is filed, a block of 60 days begins to run from the date of the pronouncement of the judgment by the Tribunal. When the appeal is heard and concluded within the stipulated 60 days, another era is ended.
In matters which end at the Court of Appeal, there is no further remedy, if this Court affirms the decision of the Tribunal.

If the decision of the Tribunal is over turned, and an order of retrial is made as in this appeal, another era begins before the Tribunal. In the interest of Justice and fair play, an order of retrial is often concluded with the consequential order of the fresh trial to be conducted by a differently constituted Tribunal.

The peculiar nature of this order of retrial is that it does not affect the filling of the petition which initiated the proceedings. It is the tribunal which has erred in such fundamental ways that have infringed on the rights of the petitioner. The petitioner must not be shut out. The law demands that in such circumstances, he must be heard on the merit.
My learned brother Garba, (JCA) of the Calabar Division, in the appeal No: CA/C/NAEA/297/2011 between; Senator Ita Solomon Gang V. I. Obong Nsima Umoh and 3ors. (Unreported Judgment delivered on Thursday, the 26th day of January, 2012) puts it this way:-
“In fact, the basis of the new trial on the merit was not connected and affected by the date of filing the petition, but the order by this Court which has nothing to do with the provisions of sections 285(6), as demonstrated earlier, and sp cannot be said to have extended the period of 180 days provided therein. The Court did not pretend or give the impression that it extended the said period but very clearly showed that it was exercising the legitimate and unquestionable jurisdiction vested in it by the Constitution. Which having done so in no certain terms, the tribunal had the constitutional duty to give effect to enhance the order mode by commencing the trial of the petition as ordered as provided for by the provisions of Section 287(2) of the Constitution (as alerted)…”
I agree entirely

I make bold to state that the provisions of section 36(1) of the 1999 Constitution (as altered) must not be superimposed on the provisions of 285(6) of the 1999 which is a special provision made to regulate the determination of election adjudication. To fall back on the provision of section 36(1) would be to plunge the notion back into the former days of endless election litigation. The special provisions of section 285(6), (7) and (8) of the Constitution (as amended) are sui generis, in a class of their own, it has provided the time frame within which election matters must be determined.
Standing solo, Section 285(6) is cast in very mandatory terms and why not? Election Tribunals have in the past, prior to the provisions in Section 285(6), heard election matters in perpetuity. Section 285(6) comes in to say no, election matters must be heard and determined within 180 days or abated. How is that a problem? 180 days is the maximum period allowed from the date of filling the petition, within which to hear and determine on election petition filed challenging the declaration of a person by INEC as the duly elected candidate in an election conducted of a time set aside for such exercise. To ensure compliance with the provisions of Section 285 (6) of the Constitution which is expounded in Section 134 (1-4) of the Electoral Act, a time-compact rule of procedure is also put in place in the Schedules to the Electoral Act. These provisions have been authoritatively addressed in the division of the Supreme Court in Shettima’s which has been cited and relied upon. This Court is bound by the said decision. The learned Counsel to the Appellant emphatically refers to the decision of the Supreme Court in the case of Peoples Democratic Party (PDP) and Congress for Progressive Change (CPC and 41 Ors (unreported.) SC. 272/2011 & SC. 276/2011) also Alhaji Kasim Shettima, Alhaji Zanna Umar Mustapha V. Alhaji Mohammed Goni And 4 Ors (unreported) doted 31/10/2011, interpreted section 285(5), (6) and (7) where Onnoghen, (JSC) held as follows:
By the provisions of section 285(6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as the 1999 Constitution as amended/altered)
An Election Tribunal shall deliver its judgment in writing within 180 days from the date of filing the petition.”
It is my considered view that the three provisions quoted above Supra are clear and unambiguous and by the principles of interpretation of statute, to the effect that where the words of any statute are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the constitution or statute, effect must be given to those provisions without recourse to any other consideration, they ought to be so treated.
By the ordinary meaning of the words used in the provision Supra, it is clear that: –
1. An Election Tribunal must, of necessity deliver its judgment in writing in on election petition within 180 days from the date of the filling of the petition.
2. An election petition and an appeal arising there from must be given accelerated hearing and must take precedence over all other cases or matters before the Tribunal or Court.
3. An interlocutory appeal shall not operate as a stay of proceedings nor shall form a ground for stay of proceedings before a Tribunal.
“All the above provisions emphasis the essential nature of an election matter, either at trial or on appeal which is that it is on urgent matter. The urgency involved in election matters advised the National Assembly to fix a time limit of 180 days in section 285(6)(b) of the 1999 Constitution (as amended) while section 142 of the electoral Act, 2010 (as amended) grant accelerated hearing to election petition and/or appeals arising therefrom.”
With due respect, I find nothing in this decision which States that this Court is incompetent to make an order of retrial in the exercise of its powers under the Constitution to the give effect to its decision. The two decisions cited and relied upon by the Appellants decide the issue of elongation of the 60 days for the hearing and determination of appeals from the election Tribunal by this Court. The apex Court made no pronouncement as to whether or not this Court can remit a case back for a trial de novo which in fact is the crux of this appeal.
Let me also point out that this appeal is not a challenge of the decision of this Court made on the 28th Oct. 2011. That order has been complied with by the Tribunal which resumed the trial of the matter de-novo and that is why, it was able to write the Ruling which is now being challenged before this Court.
Thus the issue before this Court now is not the validity of the order of a trial de novo. No, the issue is that of time. It is strictly a question of limitation of time which is an essential element in election matters. Right through the amended Electoral Legislation, time has been placed of a high pedestal in the Constitution (as amended) and so also in the 2010 Electoral Act (as amended).
There is no proviso to section 285 of the Constriction nor has section 134 of the Electoral Act 2011 (as amended). No doubt, this is rather too strict, but we are developing our electoral Jurisprudence. While so doing, the principles of separation of powers must be respected. Each of the three arms of government must be allowed to exercise their powers as they deem fit. Sections 285(6) of the Constitution and 134 of the Electoral Acts are both children of necessity, so, let them be. The Courts must apply them as they are. (See Per Aderemi, (JSC) Action Congress v. INEC (2007) 12 NWLR Pt. 1048 Pg. 222 @ 314) in on attempt to build and develop, there must be sacrifices.
A fresh trial order is not barred but the fresh trial must be concluded within the stipulated 180 days of section 285(6). If the situation were otherwise, there would have been a proviso to section 285 (6) excluding the application of the said section to cases in which orders of trial de novo are made. There is no such proviso! It is however not the responsibility of this Court to fill in the Legislative lacuna. We cannot even by a consequential order, amend the clear provision of the Constitution which has been further amplified in section 134 of the Electoral Act, 2010 (as amended).
A careful perusal of the 2010 Electoral Act, disclose a consistent and palpable attempt to place time within a nonnegotiable con Justice in the determination of electoral matters. Why? Past experiences led election matters to outlive the tenure of the offices contested for. In the amended Electoral Act of 2007, there was no time limit within which election matters were to be concluded. Hell was let loose, parties called one hundred witnesses in order to bite deep into as much of the four year tenure as Possible!
Distressed of the endless electoral litigation which inundated our nation in 2003 and 2007, the legislature in its wisdom elected to insert some amendments with a view to giving some certainty to the electoral Process. A respite was sought by the alteration of the Constitution of Nigeria of 1999 and amendment of the Electoral Act which introduced a time line. The amendment produces section 285.
We are still experimenting – see per Onnoghen (JSC) in the case of Shettima V. Goni.
The provision of section 285(6-7) is a part of the Constitution added by the instrument of amendment, a child of necessity in the hands of the Legislator. We cannot, out of sympathy; amend a bad or harsh law. (See Falae V. Obasanjo (1999) 6 NWLR pt. 606 pg. 293). In the Supreme Court, in the case of Peoples Democratic Party (PDP) Vs. Congress for Progressive Change & 41 Ors (unreported) dated 31/10/2011, interpreted section 285(5), (6) and (7) and held, per Onnoghen, (JSC):
“I hold the considered view that in terms of time to do anything relating to an election petition or judgment thereon or arising therefrom, it is the above provisions that apply and that no Court has the power to extend the times as constitutionally provided in section 285(5) (7) of the 1999 Constitution (as amended), by interpretation of the sections or otherswise”. (See Pages 17-18 of the judgment).

The Constitution is the ground norm of the law of our great nation Nigeria. Provisions contained therein are expounded in the relevant laws pertaining to each provision of the Constitution. In the instant appeal, the relevant law is the Electoral Act 2010 which was also amended to bring its provisions in tune with the alternations in the Constitution. Section 134 of the said Act as amended clearly set out in its subsections the specific time within which each stage of election litigation shall be taken and concluded. The purpose is to create predictability and put on envisioned end to Electoral litigation once commenced. This is requisite because the good people of Nigeria expect their elected Representatives to be of work in their respective legislative houses, not in Courts chasing after cases which last longer than the tenure of the office contested for.

The Schedule to the Electoral Act and the Practice Directions also further bear provisions which stimulate accelerated hearing of Electoral matters. (Parag. 55 of the 1st Schedule referred)

We have been invited to interpret and apply the provision of Section 285 (6) of the Constitution. The issue to be determined in this appeal is whether on order of a trial de novo is an order to elongate the 180 days of section 285(6) of the Constitution. Straight forward, I will answer this question in the negative. The reason is found in section 134 (1-4) of the Electoral Act which has clearly compacterlise the time for each stage of electoral adjudication. Time is not let loose. The tribunal has 180 days within which to hear and determine an election petition. An order of re-trial does not move an election matter from the provisions of section 285(6) to section 36(1) of the Constitution. No! Trial must be concluded within 180 days otherwise, the petition shall abate without remedy due to effluxion of time.

Accordingly, I do not subscribe to the argument that the interest of fair hearing requires on importation of the provisions of section 36 of the Constitution. Section 285(6) does not also take away the powers of this Court to order retrial de novo and on the merit, of a petition not properly heard and determined by the tribunal. An order of a trial de novo is an attribute, a hand maid of Justice made/donated by law to this Court to enhance the exercise of the powers of this Court to give directives to the Courts below or for the Supreme Court to give directives to this Court as to the manner of the conduct and hearing of a case not conducted in accordance with the law. I am fortified in this view, by the decision of the Supreme Court in Shettima V. Goni and PDP V. CPC wherein, the Apex Court.
It is my considered opinion that the issue is the interpretation and application of section 285 (6) of the 1999 Constitution (as amended)

It must be emphasized that no special/addition provision is made in the 1999 Constitution (as amended) or in the Electoral Act of 2010 (as amended), conferring a special jurisdiction on the Court of Appeal to hear and determine appeals arising from Election Tribunals. What this means is that the jurisdiction of this Court to hear and determined appeals from the Election Tribunals remain some as conferred by section 233 of the 1999 Constitution (as amended). Equally intact is the inherent jurisdiction conferred on this Court by section 6 (6) (b) of the same Constitution. The fundamental alteration made which touches on the jurisdiction of this Court is that of section 285 (7) which requires the Court to hear and determine election matters within 60 days (sixty days) as against the 90 days provided for by section 291(1) of the Constitution. Section 142 of the Electoral fortifies this humble opinion of mine by alluding to the provisions of section 294(1) in terms of accelerated hearing and precedence of election matters over other cases. Thus, the jurisdiction of the Court of Appeal has been redefined only in terms of time within which appeals in election matters must be determined as provided in section 285(7) of the Constitution.
Section 142 of the Electoral Act is a clear expression of the intendment of the Legislature to reserve the general appellate jurisdiction and powers of the Court of Appeal as it pertains to the time-line determination of electoral matters. In other words, section 285 cannot be interpreted as curtailing the powers of this Court to give effect to its decisions in the determination of the appellate rights of the citizens of Nigeria as it deems fit to make.
Thus, the time line/bar provisions of section 285 have not in any way streamlined the order that this Court can make what is streamlined is the time within which the Petitions and appeals shall be heard and determined. Accordingly, section 294 of the Constitution which provides 90 days within which a Court shall deliver its judgment after the final address of the learned Counsel both side has been reduced to 60 days by section 285(7).
It would appear absurd to hold that because the judgment of the Tribunal must be rendered within 180 days of the filling of the petition, all legitimate orders of this must be ignored. There is no feature of section 285, expressed or implied, which suggests such impunity in a profession of constituted, well regularized and institutionalized hierarchy like the legal profession. And least of all in the judiciary!
No doubt, the aspiration to the timeous determination of electoral matters filed in Courts are these of many well meaning Nigerians such aspiration must however not lead as to anarchy where established principles are thrown to the dogs. In favour “rushed Justice”. I hasten however to add that I find nothing fraudulent in a litigant who approaches this Court with an argument which he believes enhances his situation in an appeal. Applications may be made; it is for the Courts to interpret and apply the law to the facts. If litigants stay away and do not make radical demand of the Courts our laws will never develop.

I equally do not subscribe to the argument that the decision of this Court will be rendered nugatory in an election petition if it is held that a petition abates and cannot be heard for effluxion of time as argued by the learned Counsel to the 1st and 2nd Respondents. The genesis of all election cases is the conduct of on election which produces a winner and such an election remains valid until nullified by the order of a Court. If, before such an order is made, the petition abates by effluxion of time, the declaration of INEC stands tall and enforceable. The maxim in law is omnia praesummatur esse acta i.e. all things are presumed to have been correctly done. It is termed the presumption of regularity. (See Aliu Bello v. AG. of Oyo State (1986) 12 SC. 1)
I find the argument of the Appellant in this appeal unpalatable and unconvincing.
In view of the determination of issue one, I find a determination of issue 2 of the Appellant unnecessary. I find this appeal totally without merit and it is hereby dismissed.
The tribunal shall proceed with the determination of the petition on the merit as order by this Court.
A cost of N50,000 is hereby awarded to the 1st Respondent and against the Appellant. It is hereby so ordered.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read before now the decision of my learned brother, M.B. Dongban-Mensem, J.C.A., in the leading judgment and I totally agree with the reasoning and conclusion therein. I abide by the orders made in the leading judgment.
I only want to add that I only want to add that for proper comprehension and dissection of the provisions of section 285 subsection (6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and determination of the issues sifted herein, it is desirable that they be approached from three different perspectives.
The first approach is by drawing an analogy between the said section 285(6) and section 294(1) of the 1999 Constitution (as amended) which prescribed the period within which the Courts created by the said Constitution of 1999, shall deliver their judgments in the matters or suits before them, and, which I am entitled to take judicial notice of, by virtue of section 122 of the Evidence Act, 2011; secondly, by considering the said section 285(6) vis-a-vis the provisions of section 285(7) that granted the appellate Courts a period of sixty days to hear and determine appeals emanating from the decision or judgment of the Tribunal and the constitutionally guaranteed right of appeal of the party who is dissatisfied with the decision or judgment of the Tribunal; and, thirdly, by identifying the implications of the provisions of section 287(1) of the said Constitution which commanded every Court, authority or person to enforce the decision of the Supreme Court.
Now, considering the first approach and, for an in-depth appreciation of the wording of section 285(6); by drawing an analogy between the said section 285(5) and section 294(1) of the Constitution of the Federal Republic of Nigeria (as amended) which may have a burning effect of exposing the intendment of the Law makers and aid in ascertaining the purports of the two sections, it is imperative and, of immense necessity, to reproduce hereunder, the provisions of the said two sections thus:
“285 (6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the Petition”.
“294 (1). Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”.
There is clear manifestation in sections 285(6) and 294(1) respectively of the 1999 Constitution of Nigeria (as amended) as to what the election Tribunal and every Court created by the said Constitution were mandated to carry out by the respective sections. It is trite that the object of all interpretation is to discover the intention of the law makers which can only be ascertained from the words used in the section. Once the meaning is clear, the Courts are to give effect to it. The Courts are not to defeat the plain meaning of an enactment by importing into the section, the words that were never contemplated by the law makers. It was held in Nokes vs. Doncaster Amalgamated Collieries, Ltd (1940) A.C. 1014 at 1022 that where there are two choices of interpretation, the Courts must avoid the choice which would reduce the legislation to futility and should rather accept the other choice on the principle that the legislature would legislate only for purpose of bringing about an effective result. It is further of great necessity to ascertain the background leading to enactment of section 285 sub-section (6) of the 1999 Constitution of the Federal Republic of Nigeria.
It is a notorious fact that prior to the enactment of section 285 subsection (6) of the 1999 Constitution (as Amended), some election Petitions and election appeals lingered and dragged on to about three years due to some unending applications and deliberate attempts by the parties and their Counsel to delay hearing in the election proceedings and appeals arising therefrom and punctual delivery of judgments thereon by the Courts. Some, embarrassingly, were prolonged till 2011. It was against this background and agitation by Nigerians for amendment of the Constitution to prescribe a time limit within which hearing in an election petition could be concluded and judgment delivered therein, that, there were introduced into the Constitution, this section 285 (6) and other sections on the issue of time limit within which judgments in election petition proceedings shall be delivered. The period within which an election Tribunal shall deliver its judgment has been clearly and unambiguously defined unlike what was obtainable prior to the amendment of the Constitution 1999 and the Electoral Act. What the amendment secured was removing delay on the part of the Tribunal to hear and deliver judgment in any given election petition. It categorically defined the period within which the Election Tribunal shall deliver its judgment. So long as the Petition is pending before the Tribunal, and is not appealed against on any point that will state is being proceeded with at the Tribunal, it must be heard and judgment delivered thereupon by the Tribunal within 180 days from the date it was filed. As long as the Petition is pending thereat and has not left the adjudicative precincts of the Tribunal, the Tribunal must complete its adjudicative process thereon and deliver its judgment within 180 days.
Microscopic analysis of the wording of section 285(6) reveals a mandatory obligation placed on the election Tribunal to deliver its judgment within 180 days which shall be computed from the date of filing of the Petition. It is quite explicit in the said Constitution, that no mention whatsoever was made about the lifespan of the Petition unlike what obtains in the High Court (Civil Procedure) Rules of each State of the Federation, wherein the validity or lifespan of the Writ of Summons or any other originating process issued thereunder, were specifically stated to be a period of either 6 months or 12 months from the date of issuance. It is extravagantly clear that if the Legislators had intended an election Petition’s lifespan to be 5 months or the 180 days stated therein, whether, heard or not, it would have expressly, and, distinctly stated so in the said Constitution. Therefore, since there is complete silence on the lifespan of a petition in the said Constitution, it would amount to importing into the Constitution, words the Legislators never envisaged nor contemplated, if the 180 days mentioned therein, were construed to mean the inextensible lifespan of a petition.
It is instructive to note as I earlier demonstrated, that the unmistakable command given in section 285 (5) to election Tribunals is for them to deliver their judgments within 180 days. The emphasis in the said section is only on “delivery of judgment”, which must be accomplished within 180 days from the date of filing the petition. Also, the emphasis in section 294(1) of the Constitution with regard to regular courts established under the Constitution is on ‘delivery of their decisions not later than 90 days which are computed from the date of conclusion of evidence and final addresses of Counsel.
It is quite distinct in section 285(6) that the provision applies to only election Tribunals, it merely defined the period within which election Tribunals shall deliver their judgments in respect of election petitions pending before them and being heard by them without any interruption or intervening circumstances, such as appeals, just like the Courts established by the Constitution are commanded to deliver their decisions in writing not later than 90 days after the conclusion of evidence and final addresses. The said period of 180 days, undoubtedly applies to only election Tribunals. There is nothing suggestive of any other interpretation in the wording of the said section that the said period of 180 days given to the Tribunals is inclusive of the respective 60 days given to the Court of Appeal to hear appeals from the Tribunals and the Supreme Court in respect of appeals on gubernatorial and Presidential election petitions. Just like in the wording of section 294(1) of the 1999 Constitution (as amended), there is no restriction in section 285(6) of the said 1999 Constitution (as amended) precluding an appellate Court from ordering a retrial where the order is found most appropriate or excluding any retrial that may be ordered by appellate courts or stating the impermissibility of such retrial. The section simply commanded the Tribunal to deliver it’s own judgment within 180 days from the date the petition was filed, just like the manner in which section 294(1) commanded the regular courts established by the said Constitution to deliver their judgments not later than 90 days from the date of conclusion of evidence and final addresses of Counsel.
It is absolutely necessary for this Court to ascertain the connotation of the word “within” used in limiting the 180 days period. The word, “within” is described in Word Web as “not more or further than; “in the limits of”. Then in Oxford Advance Learner’s Dictionary, it is stated to mean “before a particular period of time has passed; during a particular period of time; not further than a particular distance from something; inside the range or limits of something; or inside something.” What all these dictate or portray is that the judgment of the election Tribunal must be delivered either before the expiration of the 180 days or on the last day of the 180 days i.e. on the 180th day from the date of filing the petition. It is glaringly obvious that the 180 days prescribed by section 285(6) relates to only the proceedings before the Tribunal. Another obvious point that worths mentioning is; all that the Tribunal is expected to achieve with regard to an election petition is the conclusion of its duty in the petition within the 180 days, meaning, therefore, that if before the expiration of the 180 days, the Tribunal made an order that would have the effect of terminating the proceedings in the petition or dismissing it for one reason or the other without actually conducting hearing in the election proceedings, the Tribunal has, by every connotation, complied with the period of 180 days prescribed. It is similar to the 90 days period given to the High Courts either at the Federal or State level, as part of the Courts created by the said Constitution of 1999, to deliver their judgments in any matter before them from the date of conclusion of evidence or final addresses of Counsel.
It is imperative to note that an appellate court does not conduct trials. It reviews documents/papers, exhibits and record of proceedings from the trial Court or Tribunal i.e., the record of appeal. After the record had been reviewed, it is also important to note that Court of Appeal or Supreme Court Justices have three main choices when making a decision, that is to say;
i. Affirm (agree with) the judgment of the lower Court’s decision or in the case of the Supreme Court affirm the judgment of the lower Court which means that the judgment is final or
ii. In the case of the Supreme Court, reverse (disagree with) the decision of the lower Court, meaning the Supreme Court’s decision must be carried out and/ or
iii. Remand the case, (send it back to the trial Court for further action and possible retrial).

Judgment is defined as the Court’s final determination of the rights and obligations of the parties in a case. It includes an equitable decree and any order from which an appeal lies. In legal parlance, it refers to a final finding, statement, or ruling based on a considered weighing of evidence.
Further, judgment is defined in law to include the determination by a Court of competent jurisdiction on matters submitted to it or the act of determining, as in Courts of law, what is conformable to law and Justice, also, the determination, decision or sentence of a Court or of a judge, deliver judgment i.e. its opinion. In Merrian Webster dictionary, judgment is also defined as a formal decision by a Court. Oxford Advanced Learner’s Dictionary defined it as including, the decision of a Court or a judge.
It is stark in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that it did not, and, has not, under any guise or pretence, rendered futile or null and void any decision of the Court of Appeal or the Supreme Court arising from election appeals delivered by them outside the 180 days period prescribed by section 285 (6) within which election Tribunal only, shall deliver its judgment, nor did it stipulate that any decision of the Court of Appeal or the Supreme Court arising from election Petition shall be null and void if delivered outside the 180 days period prescribed for the Tribunal to deliver its own judgment. Just like under the 1979 Constitution of the Federal Republic of Nigeria the Constitution rendered null and void any judgment delivered by any of the Courts created by the Constitution outside the mandatory 90 days (3 months) period. What the Constitution clearly prescribed in section 285 sub-section (7) of the said Constitution (as amended) is that;
“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.”
Further, when such approach introduced in the 1979 Constitution proved much hardship, the lawmakers then deemed it necessary to amend the Constitutional provisions in what to now, section 294 (5) of the 1999 Constitution (as Amended) which reads;
“294 (5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of sub-section (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of Justice by reason thereof”.
It became necessary to reproduce the above-stated provisions to establish the readiness of the lawmakers to expressly state when they intend to invalidate or void a proceeding or decision/judgment of a Court due to failure to deliver judgment within the period stipulated in the Constitution.
Already the Tribunal has been given 180 days within which to deliver it’s judgment. It follows, therefore, that if the Tribunal delivered it’s judgment on the very last day, the 180 days is to expire or elapse, then, the period of 60 days allotted to the Court of Appeal by section 285(7) of the Constitution aforestated, to hear and deliver it’s judgment in the appeal arising from that judgment of the election Tribunal delivered on the 180th day, shall commence from that last day. It is clear that the appellate Court’s period of 60 days to hear and dispose of the election appeal will start to run only from the date the Tribunal delivered it’s judgment, and not otherwise. By this scenario, it is explicit that the 180 days prescribed by the Constitution within which the Tribunal shall deliver its judgment in the petition do not comprise the 60 days respectively allocated to the Appellate Courts. The two sets of period are quite distinctive and do not run concurrently or conjunctively. The Appeal Court’s period would start counting from the date the Tribunal discharged its obligation by delivering a decision or judgment that would have the effect of bringing to an end before the Tribunal, every proceeding in the petition.
It is obvious that the 60 days period given to the Court of Appeal do not form part of the 180 days granted to the Tribunal to deliver it’s judgment, otherwise, the jurisdictional competence of the Court of Appeal specially entrenched in section 246(1)(b) (ii) and (iii) of the 1999 Constitution (as amended) to hear appeals from the decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal on any question as to whether-(ii) any person has been validly elected to the office of Governor or Deputy Governor, or (iii) the term of office of any person has ceased or the seat of any such person has become vacant; ought not to have been inserted therein and would have, from the inception, been scuttled. I completely resist the temptation to believing that the Law makers on the one hand guaranteed a party’s right of appeal against any decision of the Election Tribunal in an election petition he was distraught with, and, on the other hand robbed the same party of the right to the result or fruit of the appeal or the hallowed decision of the Court of Appeal or the Supreme Court, the Final Court of the land in respect of the same election petition.
If I may ask; is it possible for the Constitution to contradict itself, approbate and reprobate at the same time, and render futile or invalid the appellate Courts’ i.e. Court of Appeal and the Supreme Court’s functions/decisions in relation to election appeals heard by them within the respective 60 days given to them by the same Constitution? What then was the essence of enacting the provisions relating to appeals in election matters if the eventual decisions of the appellate Courts in that respect were supposedly ousted by the Constitution or that whatever order they might have handed down would have been ineffectual? I must say that I find myself unable to accept that proposition as the intendment of the law makers. What they strictly did was to regulate the period within which judgment at each stratum of court created by the Constitution is to be delivered but not the lifespan of the originating process that would set the machinery in motion.
It is an established fact and, a matter of common knowledge which this Court is bound to take judicial notice of, that where a High Court delivered its decision in an ordinary suit within the first 90 days it had under the Constitution to deliver it’s judgment, and the decision is appealed against to the Court of Appeal and even up to the Supreme Court with the result that the matter or case involved is remitted to the High Court for retrial or trial on the merits, and, retrial then commenced before the same High Court that previously heard and delivered its judgment in it. It has never been contended nor has it been enunciated in any case that, the trial Court, having previously delivered its first decision or judgment in the matter within 90 days from the date of final addresses of Counsel, no longer possess the authority in law to hear and the determine the same case the Court of Appeal or the Supreme Court, as the case may be, had remanded to it for retrial; or that the 90 days granted to it under the Constitution to deliver it’s judgment in respect of that suit had expired. There has never been any challenge against the said period of 90 days granted to the regular Courts. Furthermore, it has never been interpreted that the 90 days period given to the High Courts only once in a matter as is being contended thereat. The said 90 days period has never been interpreted to include the period given to the Appellate Courts to hear and deliver their judgments in appeals arising therefrom.
In Unongo vs. Aku, Uwais, JSC (as he then was) opined thus;
“I do not see how a reasonable person will have the impression that a party has a fair hearing where his petition which has been instituted within the time limit stipulated by the Electoral Act cannot be concluded because the time available to the court for the petition to be heard will not be sufficient for either or both parties to the petition to present their cases or will not allow the court at the close of the parties’ cases sufficient time to deliver its judgment. There can be no doubt that the provisions of sections 129 subsection (3) and 140 subsection (2) of the Electoral Act 1982 neither allow a petitioner or respondent reasonable time to have 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”.
Further, section 287 of the 1999 Constitution provides as follows:
“1. The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Court of Appeal.
2. The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Court of Appeal.
3. The decisions of the Federal High Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate with subordinate jurisdiction to that of the Federal High Court, a High Court and those other Courts, respectively”.
The aforestated section of the Constitution of 1999 (as Amended) is clear. It asserted affirming the supremacy of the decisions of the Supreme Court, commanding all and sundry, that is to say; all authorities, and persons and Courts with sub-ordinate jurisdiction to that of the Supreme Court to enforce the decisions of the Supreme Court.
Certainly, Election Tribunal is sub-ordinate to the Supreme Court and must, without any pretence, obey and enforce the decisions of the Supreme Court.
As I noted earlier, there is no specific provision of the Constitution ousting the decisions of the Court of Appeal and the Supreme Court the moment the 180 days granted to the election Tribunal to deliver its judgment in the proceedings before it had elapsed. One cannot then, in the absence of such provision read into the Constitution what was never intended by its makers. This would, obviously lead to mangled Justice and denying the citizens of this Country their constitutionally entrenched rights. It is on this basis I find no merit in this appeal and I hereby dismiss the same. I make no order as to costs.

REGINA OBIAGELI NWODO, J.C.A: I had read in draft the judgment of my learned brother, Dongban – Mensem JCA. I agree with the reasoning contained therein, which I adopt as mine and the conclusion that this appeal lacks merit. The cardinal principle of interpretation of the constitution is to reflect the intention of the framers. Where the word in a statute is clear and unambiguous, they should be given their plain and ordinary meaning as long as so doing will not lead to ambiguity. Section 285(6) of the 1999 constitution cannot be read in isolation of related sections in the constitution. For the fuller reasoning in the lead judgment I hold that this appeal lacks merit and is dismissed. I abide by the consequential order.
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Appearances

S. A. UdogoFor Appellant

AND

for the 1st and 2nd Respondents
P. A. Omengala
E. P Ochuokpa
K. A. Omenga

for the 3rd Respondents
E. P Echor
O. A. MomoduFor Respondent