SEN. DANIEL I. SAROR & ANOR V. HON. GABRIEL TORWUA SUSWAM & ORS
(2012)LCN/5236(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of March, 2012
CA/MK/EPT/07/2012
JUSTICES
M. B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
REGINA O. NWODO Justice of The Court of Appeal of Nigeria
Between
1. SEN. DANIEL I. SAROR
2. ALL NIGERIA PEOPLE’S PARTY (ANPP) Appellant(s)
AND
1. HON. GABRIEL TORWUA SUSWAM
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. COMMISSIONER OF POLICE, BENUE STATE Respondent(s)
RATIO
WHETHER OR NOT THE TIME FIXED BY THE CONSTITUTION FOR DETERMINATION OF AN ELECTION MATTER CAN BE EXTENDED
It has been held by this Court in a number of cases including consolidated appeal Nos. SC/141/2011.; SC/266/201; SC/267/2011… Bri. Gen. Mohammed Buba Marwa & Ors vs. Adm. Murtala Nyako & Ors delivered on 27th January, 2012 that the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within time so fixed, it lapses as the Court is thereby robbed of the jurisdiction to continue to entertain the matter.
It is very worrisome that despite the decisions of this Court, since October, 2011 on the time fixed by the constitution some of the Justices of the lower Court still appear not to have gotten the message. From where will the election Tribunal get jurisdiction to entertain a retrial after the expiration of the one hundred and eighty (180) days assigned in the constitution, without extending the time so allotted? Do Courts have the vires to extend time assigned by the constitution? The answer is obviously in the negative.” PER ORJI-ABADUA, J.C.A.
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The record before this Court depicts that on the 26th April, 2011, the 3rd Respondent, in compliance with the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) conducted an election to the office of the Governor of Benue State in which the 1st Appellant, the 1st Respondent and other candidates participated on the platform of their respective political parties. At the conclusion of the election, the 1st Respondent was declared and returned as the winner of the same. Being distraught with the result of the election and in consequence thereof, the Appellants filed an election Petition before the Governorship Election Tribunal, Benue State, sitting at Markudi on the 17th May, 2011, to which the Respondents responded by filing their respective Replies to the Petition. The record further portrays that at the hearing of the said Petition, Preliminary Objections were, individually, raised by the Respondents which were upheld by the Tribunal. Then appeals were lodged against the same before this Court which were allowed. The said decisions were appealed against to the Supreme Court, which, after hearing the same on 28/11/11 dismissed them and, then, ordered that hearing of the petition be conducted before another panel of Judges. It was based on the said Supreme Court judgment that the petition was restored to the Tribunal.
However, at the resumed hearing of the Petition before the Tribunal, and, in particular, on the 12th December, 2011, the Appellants, as Petitioners, filed a Motion on Notice for judgment on the pleadings in their favour against the Respondents. The application was supported by an affidavit of fourteen paragraphs deposed to by the 1st Appellant. He averred at paragraphs 8 to 12 of the said affidavit, the following:-
“8. That on 28/11/2011, the Supreme Court, upon the appeals of the 1st and 2nd Respondents, dismissed the appeals and affirmed the judgment of the Court of Appeal.
9. That the petition initially had two grounds but it has been restored only in relation to ground one thereof.
10. That all the paragraphs or sub-paragraphs in the petition and documents/information referring to ground one are therefore the only ones relevant to the determination of the petition.
11. That with the failure of the consolidated preliminary objections of the Respondents relating to ground one of the petition, only portions of their respective replies relating to ground one are relevant to their defence of the petition.
12. That I was informed by my Counsel, C.S. Orpin Esq. of Glorious Lord’s chambers, 8, Konshisha Street, High Lever, Markudi, in his office on Monday, 12/12/2011 at 9:00 am and I verify believe him as follows:
(i) That my said Counsel has carefully considered the pleadings of the respective Respondents as they relate to ground one of the petitions.
(ii) That based on his assessment of the quality of the said pleadings of the Respondents, this application has become inevitable to save the honourable Tribunal the expense of an unnecessary full trial.
13. That it is in the interest of justice to grant this application.
14. That I depose to this affidavit in good faith and in accordance with the Oaths Act”.
The said Motion on Notice was moved, heard and considered by the said Tribunal, at the end, of which it opined thus;
“This application can be determined under a very narrow compass to wit “whether having regard to the state of the pleadings, especially the allegation contained in the Petition whether we can give judgment on the pleadings without the Petitioner leading evidence to prove the allegations raised at the petition”.
In this particular regard we wish to point out that the sole ground upon which the Petition is predicated is on the allegations of certificate forgery follows “the 1st Respondent never submitted any forged certificate or any false facts in his personal data Form CF001 to the 3rd Respondent for Election. The Educational qualification indicated in CF001 by the 1st Respondent are all genuine and authentic”.
Similarly, the 2nd Respondent in his reply in paragraph 3 denied paragraphs 8(i) and (ii). We quote it here in extenso, “The 2nd Respondent denies paragraph 8(i) and (ii) of the Petition and could put the Petitioners to the strictest proof of the averments therein. The 2nd Respondent denies that the 1st Respondent presented any forged certificate to the 3rd Respondent. The 2nd Respondent further states that all the Educational qualification indicated in INEC Form CF001 are genuine and met the Educational requirements for a person seeking Election under the office of Governor of a State. The 2nd Respondent further states that the Election was conducted substantially in accordance with the provision of the Electoral Act and that non-compliance complained of by the Petitioners (which is denied is not such as) will invalidate the result of the said Election”.
The 3rd and 4th Respondents in their replies also denied or traversed the averment of the Petitioners and aligned with 1st and 2nd Respondents in their Counter-Affidavit.
Taking together the forgoing pleadings or traversed by the 1st, 2nd, 3rd and 4th Respondents, can it be rightly said with the position of the 1st and 2nd Respondents stated that the Petitioners allegation of certificate forgery against the 1st Respondent was admitted or ineffectively denied.
From the con or tenor of the portions of the two replies by the 1st and 2nd Respondents replies quoted above, we are of the view that there is a positive denial/traverse of the allegations raised in the Petition by the Respondents. Issues are joined on the pleadings effectively which calls for the trial of this petition on the merit.
We are not oblivious of the authorities ably cited by the petitioners counsel and the learned counsel for the Respondents in this matter. Parties has (sic) gone full blast to argue their case, which may have the temptation to make us dabble into the substantive suit at this preliminary stage we shall resist that temptation. See the case of Okomo vs. Umoetuk (2004) 10 NWLR part 882 page 526.
In effect and for the umpteenth time, we hold that the traverse of the Respondents are not evasive as issues has been effectively joined in this matter.
In effect the application for judgment in default of effective pleadings hereby fails and it is hereby dismissed. There shall be no order as to cost”.
Being dismayed with the above pronouncement, the Appellants, immediately, appealed against the same which they hinged on three grounds of appeal, thus;
“1. The Governorship Election Tribunal erred in law when it held that the Respondents had adequately joined issues with the Appellants on their pleadings and this error has occasioned a substantial miscarriage of justice.
2. The Governorship Election Tribunal failed to properly evaluate the evidence before it when it arrived at the finding that the Appellants were not entitled to judgment on their pleadings.
3. The ruling of the Governorship Election Tribunal dismissing the motion for judgment on the pleadings is against the weight of evidence”.
The parties then filed and exchanged their Briefs of Argument. However, by an application filed by the Appellants on 7/3/12, the Appellants were granted leave to amend their Notice of Appeal and Brief of Argument by changing the numbering of the parties, particularly, the 5th Respondent thereon to be renumbered as No.4. The said application was heard on 8/3/12, the same date this appeal was heard. As a result, the Appellants’ Amended Notice of Appeal and Amended Appellants’ Brief were filed on the same date. In the Amended Appellants’ Brief, the Appellants distilled a lone issue from their three grounds of appeal in the like manner:
“Whether the Learned Justices of the Governorship Election Tribunal were not wrong in holding that the Petitioners were not entitled to judgment on their pleadings regard been (sic) had to the pleadings of all the respective parties.”
The 1st Respondent, in his reaction, via his principal Learned Senior Counsel, D.D. Dodo, SAN, filed a Notice of Preliminary Objection that the appeal be dismissed for want of jurisdiction in view of the recent decisions of the Supreme Court in Action Alliance vs. Independent National Electoral Commission & 4 Ors in appeal No. SC. 23/2012 delivered on 14/2/12 (unreported) and the consolidated appeals in All Nigeria Peoples Party vs. Alhaji Kashim Shettima and Alh. Mohammed Goni & 2 Ors in appeals Nos. SC. 1/2012 and SC. 2/2012 delivered on 17th February, 2012. It was premised on the fact that this appeal has become academic in view of the fact that the Petition giving rising to this appeal has lapsed/expired by the operation of the Constitution and consequently, this Court lacks the jurisdiction to hear this appeal.
The 1st Respondent’s Notice of Preliminary Objection was further anchored on the grounds that:
(a) By Section 285 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), an election Tribunal shall deliver its judgment in writing within 180 days from the date of filing of the petition.
(b) The Appellants Petition was filed on the 17th day of May, 2011.
(c) The 180 days prescribed for the hearing and delivery of judgment in the Appellants’ petition lapsed on the 13th of November, 2011.
(d) On the 28th day of November, 2011, when the Supreme Court ordered that the Appellants’ be heard on the merits, the 180 prescribed by the Electoral Act had already lapsed leaving the Appellants with a spent and unenforceable cause of action before the trial Tribunal.
(e) This honourable Court lacks the jurisdiction to hear this appeal for being academic because from the 13/11/11, the Tribunal was robbed of the competence and jurisdiction to determine the Appellants’ petition which gave rise to this appeal.
(f) From the 13/11/11 there was no longer any live issue in both the petition which gave rise and is the basis of this appeal and the appeal itself.
(g) This honourable Court determines only live issues and not academic issues.
(h) It is necessary to save the honourable Court the trouble of dissipating energy and resources in deciding an appeal over a subject matter that lapsed on 13/11/11.
(i) The honourable Court should not be made to act in vain.
The 1st Respondent, however, in his Brief of Argument, adopted before this Court by Chief E.K. Ashiekaa, propounded one issue for the determination of this Court in the Preliminary Objection raised by him which reads thus;
“Whether this appeal has not become an academic exercise having regard to the expiration of the petition which gave rise to the appeal, the petition having lapsed on 13/11/11, by the operation of section 285 (6) of the 1999 Constitution (as amended) in view of the recent decision of the Supreme Court in Action Alliance vs. Independent Electoral Commission & 4 Ors in appeal No. SC. 23/2012 delivered on 14/2/12 (unreported) and the consolidated appeals in All Nigeria Peoples Party vs. Alhaji Kashim Shettima & anor and Alh. Mohammed Goni & 2 Ors in appeals Nos. SC. 1/2012 and SC. 2/2012 delivered on 17th February, 2012”.
In the same vein, the 2nd Respondent in its Brief of Argument settled by its Learned Senior Counsel, Chief Solo U. Akuma, SAN, but, adopted at the hearing of this appeal, by C.A. Gbehe Esq. advanced a Notice of preliminary Objection against this appeal on the justification;
i. That this appeal has become an academic exercise as the Tribunal under the current state of the Law no longer has jurisdiction to entertain this Petition.
ii. That this honourable Court lacks jurisdiction to hear this appeal since the Tribunal has lost jurisdiction to hear the petition.
iii. That the Supreme Court has settled the issue of the jurisdiction of election Tribunals, to hear election matters outside 180 days from the date it was filed.
iv. That the proceedings leading to this appeal was conducted outside the 180 days allowed under section 285 (6) of the 1999 constitution and without jurisdiction.
On the other hand, Learned Senior Counsel for the 2nd Respondent projected one issue for the determination of this Court in the appeal, i.e. “whether the Appellants were entitled to judgment on the basis of their Pleading”.
The 3rd Respondent did not raise any preliminary objection but, it however, presented one issue for the determination of this Court in the appeal thus;
“Whether the honourable Tribunal was right when it held that there is a positive denial/traverse of the allegations raised in the petition by the Respondents.”
The 4th Respondent did not file any Brief of Argument.
At the hearing of this appeal, the Appellants, via their Counsel, C. S. Orpin Esq., intimated that they could not file a Reply Brief due to time constraint. He rather offered his reply orally to the jurisdictional question raised in the Notice of Preliminary Objections filed by the 1st and 2nd Respondents respectively.
It is distinct in the Notice of Preliminary Objection filed by the 1st and 2nd Respondents respectively, that the jurisdictional competence of this Court to hear this appeal has been astutely challenged, therefore, it will be incongruous to proceed to the determination of the issues excogitated in the parties respective Briefs in the appeal. Prudence demands that the issue of jurisdiction be determined first.
In the 1st Respondent’s contention in respect of his preliminary objection, the recent unreported Supreme Court decisions in Action Alliance vs. Independent National Electoral Commission & 4 Ors delivered on the 14th February, 2012 and the consolidated appeals of All Nigeria Peoples Party vs. Alhaji Kashim Shettima & anor and Alh. Mohammed Goni & 2 Ors in Appeal Nos. SC. 1/2012 and SC. 2/2012 delivered on the 17th February, 2012 were referred to.
The Learned Senior Counsel quoted excerpts from the leading judgment of Onnogher, J.S.C. thus;
“With respect to the election Tribunal the time within which the jurisdiction so conferred on it is to be exercised/carried out as provided for in section 285 (6) of the 1999 Constitution which enacts thus:
‘(6) An election Tribunal shall deliver its judgment in writing within one hundred and eighty (180) days from the date of filing of the petition.
It follows that where a Tribunal fails to comply with the above provisions the jurisdiction to continue to entertain the petition lapses or becomes spent and cannot be extended by any Court howsoever well intentioned, neither can a Court order create and confer jurisdiction on any Court/Tribunal on any matter where jurisdiction has not been conferred either by statute or the Constitution.
It is my considered opinion that by the lower Court ordering a retrial by a Tribunal which had ceased to have jurisdiction in the matter it attempts to create jurisdiction in the said Tribunal by operation of a Court order which is not only very erroneous but unacceptable.
It has been held by this Court in a number of cases including consolidated appeal Nos. SC/141/2011.; SC/266/201; SC/267/2011… Bri. Gen. Mohammed Buba Marwa & Ors vs. Adm. Murtala Nyako & Ors delivered on 27th January, 2012 that the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within time so fixed, it lapses as the Court is thereby robbed of the jurisdiction to continue to entertain the matter.
It is very worrisome that despite the decisions of this Court, since October, 2011 on the time fixed by the constitution some of the Justices of the lower Court still appear not to have gotten the message. From where will the election Tribunal get jurisdiction to entertain a retrial after the expiration of the one hundred and eighty (180) days assigned in the constitution, without extending the time so allotted? Do Courts have the vires to extend time assigned by the constitution? The answer is obviously in the negative.”
In the light of the above, learned Senior Counsel argued that this appeal has become an academic exercise having regard to the expiration of the Petition which gave rise to the appeal. He urged this Court to strike out or dismiss this appeal for want of jurisdiction.
Arguing in respect of the 2nd Respondent’s preliminary objection, its Learned Senior Counsel, firstly made reference to the decision in the case of Bank of Ireland vs. UBN Ltd (1998) 10 NWLR part 569 page 22 and stressed that jurisdictional issue can be raised at any time even on appeal. He reproduced the provisions of section 285(6) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and then referenced the Supreme decisions in Action Alliance vs. INEC (unreported) in Appeal No. SC. 23/2012, PDP vs. CPC & Ors (unreported) in consolidated Appeals Nos. SC. 272/2011 and SC. 276/2011, Alh. Kashim Shettima & Anor vs. Alh. Mohammed Goni & 4 Ors (unreported) in consolidated Appeals Nos. SC. 332/2011, SC. 333/2011 and 352/2011, Brig Gen. Mohammed Buba Marwa & Anor vs. Admiral Murtula Nyako & Ors (unreported) in consolidated Appeals Nos. SC. 141/2011, SC. 256/2011, SC. 267/2011, SC. 282/2011, SC. 356/2011 and SC. 357/2011, Chief Dr. Felix Amadi & Anor vs. INEC &2 ors (unreported) in appeal No. SC.476/2011, and reminded this Court of the Supreme Court’s unwavering stance that no Court or Tribunal in our Justice System has an iota of jurisdiction to conduct any proceedings outside the period prescribed by the Constitution for the determination of any matter before it. He further made reference to the recent decision of the Supreme Court in (unreported) Appeals Nos. SC. 1/2012 and SC. 2/2012, ANPP vs. Alh. Mohammed Goni & 4 ors and Alh. Kashim Shettima & Anor vs. Mohammed Goni & 3 ors wherein His Lordship, Onnoghen, J. S. C., in the leading judgment of the Court, referred to its previous decisions in consolidated appeals Nos. SC. 141/2011, SC. 266/2011, SC. 267/2011, SC. 282/2011, SC. 356/2011 and SC. 357/201- Brig Gen.Mohammed Buba Marwa & Anor vs. Admiral Murtula Nyako & Ors (unreported) and urged this Court to dismiss the appeal for being an academic exercise and lacking in merit.
In the Appellants’ Reply which was done orally with the permission of this Court, learned Counsel submitted that this case is distinguishable from the afore-stated decisions of the Supreme Court in A.C. v. INEC (supra) and ANPP vs. Goni (supra), in that, on the date the Supreme Court made the order for trial of the Petition before another panel of Judges, the said Petition was already, 195 days, the Supreme Court was aware of the anomaly, and yet, made the order remanding the case for trial before the Tribunal. He further argued that the issue raised in the preliminary objection had already been decided by this Court in appeal Nos. CA/MK/EPT/02/2012 and CA/MK/EPT/03/2012 respectively and from which appeals are now pending before the Supreme Court. He persuaded that it is appropriate to await the Supreme Court’s decision on the point. He argued that by this preliminary objection, the decision of the Supreme Court is being pre-empted. He then urged that the preliminary objection be discountenanced.
In considering this preliminary objection, it must be observed that the objection raised, their grounds, the incontestable and indubitable legal issues propounded by Learned Senior Counsel for the 1st and 2nd Respondents respectively had been thoroughly considered and assimilated by this Court, and, without hesitation or vacillation and mince of words, this Court is, by every implication, and, in every sense of the word, in view of the principle of stare decisis, bound by the spectacular and landmark decision of the Supreme Court in ALL NIGERIAN PEOPLES PARTY (ANPP) & 2 ors vs. ALHAJI MOHAMMED GONI & 8 ors (2012) LPELR-SC. 1/2012 (Consolidated). Onnoghen, J. S. C., in the leading judgment in the case, opined that “where a tribunal fails to comply with the above provisions the jurisdiction to continue to entertain the petition lapses or becomes spent and cannot be extended by any court order howsoever well intentioned, neither can a court order create and confer jurisdiction on any court/tribunal on any matter where jurisdiction has not been conferred either by statute or the constitution. By the lower court ordering a retrial by a tribunal which had ceased to have jurisdiction in the matter it attempts to create jurisdiction in the said tribunal by operation of a court order which is not only very erroneous but unacceptable.”
By the above breathtaking pronouncement of the apex Court, and, if I may add, reproach or reproving of this Court by the apex Court, this Court wonders what learned Counsel for the Appellants expects it to do. The Oracle has spoken, and, has finally put to rest the seeming higgledy-piggledy opinions of this Court regarding the all important provisions of section 285 sub-section (6), and, in passing, subsections (7) and (8) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended).
It does not require any microscopic examination to detect that the date of filing the Petition in question, the determinant of this Court’s jurisdiction to make any order for retrial or hearing on the merits, in the election petition appeal, by the decision of the Supreme Court, was the 17th May, 2011. By the unambiguous and mandatory provisions of section 285(6) of the 1999 Constitution (as amended), the Governorship Election Tribunal, sitting in Makurdi, had only 180 days from the date of filing the said Petition i.e. 17/5/2011, to deliver it’s judgment therein. Obviously, by the provisions of the said section 285(5) of the 1999 Constitution (as amended), the 180 days within which the said Tribunal was to deliver it’s judgment in the Petition, expired on the 13th November, 2011 notwithstanding any order for retrial or hearing on the merits made by the Appellate Court.
It is indubitable by the unmistakable interpretation of the said section by our revered Supreme Court, that the said 180 days explicitly prescribed by the Constitution is inextensible, irrespective of whether hearing in the Petition was concluded by the Tribunal with in the 180 days or not, or whether indeed hearing was concluded and judgment delivered within the said period of 180 days, but, the aggrieved party appealed against the said judgment of the Tribunal to the Appellate Court, with the Appellate Court, after hearing the appeal within the 50 days allotted to it by the Constitution to hear and dispose of the appeal from the date of the delivery of the judgment of the Tribunal, but, outside the Tribunal’s 180 days, then, remanded the Petition and ordered that it be heard on the merits or be retried. It means, therefore, that the minute, the 180 days expired by effluxion of time, as in the instant matter, no Jupiter can resuscitate or resurrect it or reset the period no matter the order made by the Court of Appeal within its own 60 days to hear and dispose of the appeal. It needs be observed that argument of Learned Counsel for the Appellants in Reply is nothing but puerile in that nothing stops this Court from ruling on this issue of 180 days in the appeal which is completely different from Appeal No. CA/MK/EPT/02/2012 and CA/MK/EPT/03/2012 which were in respect of different appeals. As many times as it is raised in completely different appeals, so shall this Court decide on it on the different occasions? Again, it is apparent in the Supreme Court’s decision on 28/11/11 ordering that the Petition be heard before another panel of Judges at the Election Tribunal, that the issue of 180 days having, then, expired was not specifically raised before the Supreme Court and considered.
It is, therefore, clear that with the said period of 180 days having elapsed, and, by the decisions of the Supreme Court, this Court does not possess any scintilla of jurisdiction to make any order over a Petition that is non-extant. In the light of the decisions of our Law Lords in the aforementioned cases, this Court has no alternative than to dismiss this appeal as lacking in merit. Since the Petition in question had assumed the nature of a statute-barred action, this appeal will be and is hereby dismissed. There will be no order as to costs.
M.B. DONGBAN-MENSEM, J.C.A: I Agree.
REGINA OBIAGELI NWODO, J.C.A: I had the privilege to read before now the judgment of my learned brother Orji Abadua, JCA just delivered. His lordship has lucidly dealt with the issues that I agree with the reasoning contained therein and the conclusion arrived thereat upholding the objection. I also dismiss this appeal.
Appearances
C.S. Orpin Esq;For Appellant
AND
Chief E.K. Ashiekaa with S.A. Udaga Esq; T.T. Igba Esq; Kenneth Ula Esq; N.L. Ikyaagba (Mrs) and F.T. Kusugh Esq;
C.A. Gbehe Esq; with U.K. Sulah Esq; and P.N. Jooji (Miss)
E.P. Echor Esq; holding the brief of N.D. Ter (Mrs)
M.A. Agber Esq; with John Adejumo Esq.; State Counsel, D.D.P.P Ministry of Justice, Benue StateFor Respondent
