SENATOR ALOYSIUS ETUK & ORS. V. DR. ANNY T. ASIKPO & ORS.
(2012)LCN/5606(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of January, 2012
CA/C/NAEA/310/2011 (Consolidat
RATIO
JUDICIAL PRECEDENT: THE RULE OF STARE DECISIS IN RELATION TO ELECTION TRIBUNALS
I shall begin a consideration of this appeal by referring to the lead judgment delivered by Uzo. I. Ndukwe-Anyanwu, JCA in Idongesit Godwin Akpan Udokpo vs. Kenneth Edet Archibong & Ors. unreported Appeal No. CA/CA/NAEA/257/2011 delivered on 17th day of November, 2011. There my Lord ordered at page 20 lines 1 – 14 and page 21 lines 1 – 7 as follows:
“Suffice it to say that the Rule of Stare Decisis is not made in vain. There is hierarchy in the courts. A Court is duty bound to follow the decision of a higher Court. As soon as the decision of a higher Court is brought to the notice of the tribunal it has no choice but to follow it.
The decision in Aliyu Ibrahim Gebi v. Alhaji Garuba Dahiru & 3 Ors (supra) is therefore binding on the Tribunal. The Tribunal ought to have .followed it in reaching its decision.
I therefore resolve this issue in favour of the Appellant. The 2 issues articulated by the Appellant are both resolved in his favour. The appeal is meritorious and therefore allowed.
The judgment of the Tribunal delivered on 12th October, 2011 is hereby set aside. The Petition No. EPT/AKS/HR/1/2011 is remitted for the second time to be heard de novo by a panel differently constituted. It is also further ordered that Forms TF007 and TF008 are to be issued as a consequential order flowing directly from the judgment. See Inakoju vs. Adeleke (2007) 4 NWLR (Pt.1025) page 432; Liman vs. Mohammed (1999) 9 NWLR (Pt.617) page 116; A.G. Fed. Vs. AIC Ltd. (2000) 6 SC page 175.
I make no orders as to costs.”
The effect of the above judgment and order is that Petition No. EPT/AKS/HR/1/2011 was remitted for the second time to be heard de novo by a panel differently constituted. In my concurring judgment I held that:-
“I have read in advance the judgment delivered by any Lord, Uzo. I. Ndukwe-Anyanwu, JCA and I concur that this appeal should be allowed and the petition remitted once more for retrial on the merit.
In his concurring judgment, my Lord Akeju, JCA held as follows:-
“…It is an undisputed fact in this appeal that on 16th September, 2011 this Court allowed an appeal by the same appellant herein in respect of the same Election Petition No. EPT/AKS/HR/1/2011 and ordered a retrial of the petition on the merit. The Tribunal has failed to comply with that order of this Court.
Consequently, I agree that this appeal succeeds and I allow it. I abide by the order remitting the petition for hearing de novo as in the lead judgment. “
I envisaged this kind of argument likely to resurface at the tribunal which may once again come before the Appeal Court. That is precisely what has happened in this appeal. I then held as follows:
“…I shall add some comments of mine because the appeal raises an interesting issue relating to the jurisdiction of Election Tribunals to entertain petitions remitted to them by appellate Courts for hearing or trial de novo namely, whether the 180 days stipulated under section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered for delivering judgment having expired, they shall decline jurisdiction to entertain the petition.”
This issue arose because learned Counsel to the 1st Respondent had argued that the 180 days for delivery of judgment by the Tribunal having expired, the petition filed on 30-04-2011 had lapsed since 29-10-2011 I hence the Appeal Court lacked jurisdiction to entertain the appeal. That the Tribunal would also lack the jurisdiction to entertain the petition if an order was made by the Court of Appeal for trial de novo. Counsel cited the provisions of Section 285(6) of the Constitution supra in argument. Having considered the arguments and decided authorities by the Supreme Court I answered the argument at page 7 of the judgment as follows:
“In my humble view when an appeal Court remits a petition for trial or hearing de novo, the second trial supersedes the first that had been set aside on appeal. In en election petition this will enable the parties to reprove their respective cases within the 180 days stipulated by Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered.”
Thereafter, I still held at page 14 of the judgment that, “…I abide by all the orders made by my Lord.” Thus the issue was the legal effect of an appeal Court ordering a retrial or rehearing de novo which was not an issue raised by any of the parties in the consolidated appeals Nos.SC.332/2011, SC.333/2011 and SC352/2011 before the Supreme Court. Nowhere did I hold that the Tribunal could on application or suo motu extend the time prescribed under Section 285(6) of the Constitution for the delivery of judgment. Neither did Anyanwu, JCA nor Akeju, JCA say so. In the lead judgment my Lord Anyanwu, JCA held as follows:
“Section 285(6) of the 1999 Constitution (as amended) expects the petition filed to start running and final judgment delivered on the petition within 180 days. The 180 days in this petition filed on 30th April, 2011 should expire on the 27th October, 2011. After this date the Tribunal has no jurisdiction to hear this petition in any form or manner.”
See page 11 lines 7 – 12 of judgment.
I do now see how it can be said that my concurring judgment constituted obiter dicta when the reasoning flowed from the arguments of learned counsel in that appeal which I had to pronounce upon. Even if it was an obiter dicta I shall refer to the judgment of Lord Goddard C.J., in Zeidman vs. Owen (1950) 1 All E.R. 290. His Lordship was sitting in the Kings Bench Division with Lynskey, J., Both were confronted with the opinion of Lord Greene M.R., in Elderton vs. United Kingdom Totalisator Co. Ltd. (1945) 2 All E.R. 624 wherein the Master of the Rolls had expressed an opinion in the Court of Appeal that football pools were not pool betting transactions within the meaning of the Betting and Lotteries Act, 1934. This conflicted with the earlier decision of the Kings Bench Division which held the contrary view in Stovell vs Jameson (1939) 4 All E.R. 76. Lord Goddard C.J., held at page 291 of the judgment that:
“…The Court of Appeal in that case was considering Section 26 of the Act, and not Section 3, so LORD GREEN’s observations were obiter and it is not suggested that they ere binding on this Court, though, naturally we should pay great attention to what the learned Master of the Rolls said and, if we thought that the dicta, though obiter, expressed the true construction of the Act, we should feel we ought to follow them.”
The question is: What if the appeal emanated from a decision of the tribunal to the Court of Appeal and subsequently to the Supreme Court, for instance in Governorship elections, and a retrial is ordered by the Supreme Court or a rehearing of the appeal before the Court of Appeal. Will an inferior tribunal or the Court of Appeal have the audacity to disobey the orders or directives of the Supreme Court that is manned by the leaned Justices who are presumed to know the law and constitutional provisions? In my judgment, to decline jurisdiction will constitute a violent attack on the provisions of Section 257(1) (2) and (3) of the Constitution supra which reads as follows:
“287(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 Supreme Court.
(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 other Courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other Courts, respectively.”
The Supreme Court remitted the petition of Senator J. Akpanudoedehe & 2 Ors vs Godswin Akpabio & 3 Ors in suit No.CA/C/NAEA/GOV/173/2011 of 15-09-2011 and Professor Steve Ugba vs PDP & Ors in Appeal No. SC/360/2011 for hearing de novo that they be determined on the merit by the Election Tribunals. The tribunals are yet to conclude hearing despite the expiration of the 180 days stipulated by Section 285(6) of the altered Federal Constitution, 1999. The framers of the Federal Constitution of Nigeria, 1999 have provided that:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
One among the many principles of democracy and social justice embedded in Section 14(1)(c) of the 1999 Federal Constitution as altered is the participation by the people in their government which shall be ensured by the State in accordance with the provisions of the Constitution. Participation in government includes the obligation to vote and the right to be voted for at any election. These constitute the civil rights and obligations of the citizens of this country especially of voting age. Where a dispute has arisen out of that process the questions are to be determined by the Election Tribunals as provided under Section 285(1) to (8) of the altered 1999 Federal Constitution. This will be upon the filing of a petition by an aggrieved party within 21 days after the date of the declaration of result of the elections under Section 285(5) of the altered Constitution. The tribunal has 180 days to deliver judgment from the date of filing the petition under Section 285(6) of the altered Constitution.
The Constitution contains provisions that govern the Election tribunals when exercising their original jurisdictions and further recognizes the duties imposed on the Courts of Appeal while exercising their appellate jurisdictions. No where has the Constitution provided that one provision of the Constitution is superior or supreme over the other as rightly argued by learned Counsel to the 1st and 2nd Respondents. If that was intended the draftsman could have used such phrases as “without prejudice to the foregoing provisions of this Constitution.” (See Section 36(2); “provided that…” (Section 39(2)); or “subject to the provisions of this Constitution..” (Section 43) of the 1999 Federal Constitution as altered, etc. For this reason Section 1(1) of the Constitution supra provides as follows:-
“1(1) This constitutes is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” PER JOSEPH TINE TUR, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
SENATOR ALOYSIUS ETUK CA/C/NAEA/310/2011
AND
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC). CA/C/NAEA/311/2011
AND
PEOPLES DEMOCRATIC PARTY (PDP) CA/C/NAEA/312/2011 Appellant(s)
AND
1. DR. ANNY T. ASIKPO
2. CONGRESS FOR PROGRESSIVE CHANGE (CPC)
3. PEOPLES DEMOCRATIC PARTY (PDP) CA/C/NAEA/310/2011
4. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
AND
1. DR. ANNY T. ASIKPO
2. CONGRESS FOR PROGRESSIVE CHANGE (CPC)
3. SENATOR ALOYSIUS ETUK CA/C/NAEA/311/2011
4. PEOPLES DEMOCRATIC PARTY (PDP)
AND
1. DR. ANNY T. ASIKPO
2. CONGRESS FOR PROGRESSIVE CHANGE (CPC) CA/C/NAEA/312/2011
3. SENATOR ALOYSIUS ETUK
4. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
JOSEPH TINE TUR, J.C.A.: Three Appeals have emanated against the ruling of the National Assembly/Legislative Houses Election Tribunal holden at Uyo, Akwa Ibom State delivered on the 29th day of November, 2011.
The facts are that the Independent National Electoral Commission conducted elections for Akwa Ibom West Senatorial in the National Assembly on the 9th day of April, 2011. Senator Aloysius Akpan Etuk of the Peoples Democratic Party was returned as duly elected having polled 383, 607. Dr. Anny T. Asikpo of the Congress for Progressive Change polled 9,172. There were other candidates at the election who are lot aggrieved with the declaration or returns hence are not parties in this appeal.
Being aggrieved with the decision of INEC, Dr. Anny T. Asikpo and the Congress for Progress Change presented a petition before the tribunal on 30-04-2011. Upon filing and exchange of pleadings a preliminary objection to the competence of the petition was raised by the 1st and 2nd respondents. Having heard arguments the tribunal struck out the petition without a hearing on the merit. Dr. Anny T. Asikpo and the Congress for Progressive Change appealed to the Court of Appeal, Calabar Division. On 13-10-2011 the appeal was allowed and the Court directed that the petition be heard on the merit before another Election Tribunal. When the petition came before a newly constituted Tribunal the panel suo motu called for addresses from Counsel as to the interpretation of the provisions of Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, namely, whether by effluxion of time, the tribunal had no jurisdiction to entertain the petition notwithstanding that it had been remitted by the Court of Appeal for retrial. Having listened to arguments from learned Counsel the Tribunal held at page 1422 lines 3 – 19 of the printed record as follows:
“Tine Tur, JCA in his said concurring judgment firmly and emphatically rejected the arguments being put forward by the Respondents herein as the learned Justice of Appeal dearly stated that such arguments should not be entertained to deny the Petitioners’ right to have their case heard and determined on the merits.
This is also the position of the Supreme Court in the unreported decision in Suit No. SC/360/2011 PROFESSOR STEVE UGBA VS. PDP VS. OTHERS where Dahiru Musdnpher C.J.N. 180 days after the election petition considered in the case was filed, ordered the petition to be heard on the merits.
The refrain of the appellate Courts is so resoundingly clear that election petition must be heard on the merits, we cannot but echo and chorus that refrain.
In any event, the Order of the Court of Appeal made on the 13th October, 2011 in respect of this petition is that it be heard de novo and this Tribunal is bound to follow that order as it is not open to a lower Court to disagree with the decision of the higher Court. Osakwe vs FCE (Technical) Asaba (2010) All FWLR (Pt.552) 1601 at 1625. This is also the position of Section 287(2) of the 1999 Constitution (as amended) which enjoins inferior Courts to follow decisions of superior Courts.
This Tribunal accordingly has .jurisdiction lo hear this petition on the merits. ”
Being aggrieved with the above ruling all the respondents in the Tribunal have lodged appeals before this Court in the following manner: CA/C/NAEA/319/2011 viz. Senator Aloysius Etuk vs. Dr. Anny T. Asikpo & Ors. The Notice of Appeal was filed on 12-12-2011; CA/C/NAEA/311/2011 viz Independent National Electoral Commission vs. Dr. Anny T. Asikpo & Ors. The Notice of Appeal was filed on 12-12-2011; and CA/C/NAEA/312/2011 viz Peoples Democratic Party (PDP) vs. Dr. Anny T. Asikpo & Ors. The Notice of Appeal was filed on 12-12-2011. Briefs of arguments were filed and exchanged followed by Reply briefs from 1st and 2nd Respondents. When the three appeals came up for hearing on the 23rd day of January, 2012 learned Counsel to the Respondents urged the Court to strike out the Notice of Appeal as incompetent for reasons set out in the Notice of Preliminary Objection. The reasons were canvassed in each brief filed by the Respondent’s learned Counsel. In case the preliminary objection failed learned Counsel urged that the appeal be dismissed on the merit.
Learned Counsel to each appellant replied to the argument in the preliminary objection in their respective briefs of argument. Since the preliminary objection, if it succeeds, will lead to the striking out of the Notices of Appeal filed in each appeal, and this will go to the root of this appeal. I intend to consider the preliminary objection before delving into the substantive appeal if the law and good reasons so dictate. This is because for the appellants to be heard by this Court there must be a competent Notice and grounds of appeal which must relate to the decision appealed against and must further relate to the ratio decidendi. See Egbe vs Alhaji (1990) 1 NWLR (Pt.128) 546 at 590 cited in Saraki vs Kotoye (1992) 9 NWLR (Pt.264) 156 at 184 and Chami vs UBA (2010) 6 NWLR (Pt.1191) 474 at 500 and a host of others cases similarly decided
At the hearing of this appeal an application was made by Umoh Esq, of counsel appearing for the appellant in Appeal No. CA/C/NAEA/312/2011 that the three appeals be consolidated having emanated from the same ruling. There was no opposition from learned Counsel appearing for the other parties hence the Court ordered that the three appeals be consolidated. Since the arguments against the hearing of the three appeals is predicated on the same grounds of objection, and having consolidated them, I believe time and energy shall be saved if a ruling in any of the appeals will cover the other two appeals.
The preliminary objection is as follows:
“TAKE NOTICE that the 1st and 2nd Respondents (Dr. Anny T. Asikpo and Congress for Progressive Change (CPC) herein hereby raise a preliminary objection to the hearing of the Appellant’s appeal in that the Appellant’s herein mentioned appeal is incompetent and this Honourable Court lacks the jurisdiction to hear and determine the appellant’s appeal on the following grounds:
“1. The entire appeal of the Appellant is academic, hypothetical and speculative in that there was no appeal against the ratio decidendi of the decision of the tribunal said to be appealed against in this appeal, which was hinged on the principal reason and ground that the tribunal by virtue of Section 287(2) of the Constitution was bound to obey the order of the Court of Appeal made on the 13th October, 2011 in respect of the petition that it be heard de novo.
2. The entire appeal is incompetent as the two grounds of appeal of this appeal which are the only grounds in this appeal, never flowed from the decision of the Tribunal below as the Tribunal neither held that “an order for trial de novo by the Court of Appeal was intended to create a new lifespan for the petition outside the 180 days from the date of filing given to the petition under Section 385)(6) of the Constitution of the Federal Republic of Nigeria, 1999” nor did the Tribunal ever decided that it will not follow the decision of the Supreme Court in consolidated Appeal Nos. SC.272/2011 and SC.276/2011 PDP vs. CPC and Jonathan vs. CPC delivered on 31-10-2011 neither did the ground of appeal specified how the Tribunal worked on any assumption or deduction.
3. The two issues formulated for determination in the Appellant’s brief of argument are incompetent as they are too wide and merely seeking for advisory opinion of this Honourable Court as to “whether the order by the Court of Appeal for trial de novo can extend or enlarge the lifespan of a Constitution of the Federal Republic of Nigeria, 1999” and “whether the trial Tribunal was not wrong in refusing to follow the decision of the Supreme Court in the PDP vs. CPC and Jonathan vs. CPC (SC.272/2011 and SC.276/2011) on the meaning of Section 285(6) and (7) of the 1999 Constitution as amended.”
The same preliminary objection covers the Grounds of Appeal in CA/C/NAAE/311/2011 and CA/C/NAAE/312/2011.
“GROUNDS OF APPEAL
The Learned Trial Judges of the Election Tribunal erred in law when they assumed jurisdiction to entertain the petition that is statute barred.
PARTICULARS OF ERROR:
(a) section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides for 180 days from the date of filing of a petition within which the Tribunal should hear and determine the petition.
(b) The petition was filed on 30-04-2011 and 180 days provided for its hearing and determination elapsed on 27-10-2011.
(c) As at 29-11-2011, when the lower tribunal delivered its ruling insisting on going on with the petition the petition was 33 days outside the time allowed for it hearing by the Constitution.
GROUND 2: ERROR IN LAW
The learned trial judges of the Election Tribunal erred in law when they held that an order to hear the petition de novo made by the Court of Appeal have extended the life time of the petition beyond the Constitutional time frame stipulated by Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
PARTICULARS OF ERROR:
(a) An order of the Court of Appeal to hear petition on the merit does not nullify the Constitutional provision which stipulates specific time limitation within which the petition is to be heard and determined.
(b) As at 13-10-2011 when the Court of Appeal delivered its judgment remitting the petition to be heard de novo, the petition was still alive.
(c) The 180 days provided by Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is specific, precise, mandatory and sacrosanct. It cannot be extended by the Court or tribunal.
GROUND 3: ERROR IN LAW
The learned Judges of the Election Tribunal erred in law when they relied on the concurring “comment” of His Lordships Tur, JCA which was at variance with the lead judgment of Ndukwe-Anyanwu, JCA and that of the Supreme Court in the unreported consolidated Appeal No. SC.272/2011 and SC.276/2011; PDP vs. CPC., thereby going contrary to the doctrine of stare decisis.
PARTICULARS OF ERROR
(a) The doctrine of stare decisis is inapplicable to a concurring judgment which is to in agreement with the lead judgment.
(b) The lead judgment of Ndukwe-Anyanwu, JCA in Appeal No. CA/C/NAEA/257/2011; Udokpo vs. Archibong agreed that the time provided by Section 285 of the Constitution for the hearing of election matters cannot be extended.
(c) The tribunal left the decision of Ndukwe-Anyanwu, JCA in the lead judgment and followed the concurring comment of Tur, JCA which is to the effect that the 180 days provided by Section 285(6) of the 1999 Constitution (as amended) could be extended with an order of re-hearing.
(d) The tribunal also ignored the decision of the Supreme Court in PDP vs CPC (supra) on the constitutional time frame for hearing a petition.
The summary of the argument by the learned Counsel appearing for the 1st & 2nd Respondents is to the effect that the entire appeal is academic, hypothetical and speculative in that there is no appeal against the ratio decidendi of the decision of the tribunal or that issues formulated for determination did not flow from the said grounds cannot be supported having regard to the Notice and Grounds of Appeal read along with the emulative reasons given by the tribunal for assuming jurisdiction to entertain the petition notwithstanding the expiration of the 180 days provided by the provisions of Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. A combined reading of the grounds of appeal will show therefore that the appellants are attacking the cumulative reasons for the tribunal assuming jurisdiction to hear the petition outside the constitutionally provided period of 180 days. That is neither academic, hypothetical nor speculative. The grounds of appeal flow from the ruling of the tribunal. I hereby dismiss this preliminary objection. I shall hear each appeal on the merit.
APPEAL NO. CA/C/NAEA/310/2011
The appellant formulated the following two issues for determination to wit:
“1. Whether the order for trial de novo by the Court of Appeal was capable of extending the lifespan of a petition beyond the 180 days stipulated for it by Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) (Ground 1).
2. Whether the trial Tribunal was not wrong in refusing to follow the decision of the Supreme Court in the PDP vs CPC and Jonathan vs CPC (SC.272/201I and SC.276/2011) on the meaning of Section 285(6) and (7) of the 1999 Constitution as altered. (Ground 2).
The 1st and 2nd Respondents formulated the following lone issue for determination to wit:
“Whether the appellant’s appeal is competent in the .face of the preliminary objection herein raised?”
The issues for determination in Appeal No. CA/C/NAEA/311/2011 and CA/C/NAEA/312/2011 are to the same effect.
The 1st and 2nd Respondents set out the following issues for determination:
“(3) Whether the order by the Court of Appeal for trial de novo can extend or enlarge the lifespan of petition beyond 180 days mandatorily provided by Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Ground 1)
(4) Whether the lower Tribunal has jurisdiction to hear and determine any petition after the expiration of 180 days from the filing of the petition accorded it by Section 285(6) of the 1999 Constitution (as amended) based on the unreported decision of the Supreme Court in the PDP vs CPC and Jonathan vs. CPC (SC.272/2011 and SC.276/2011 on the meaning of Section 285(6) and (7) of the 1999 Constitution as amended. (Grounds 2 & 3).”
From a close examination of the issues formulated by appellants and the 1st and 2nd Respondents in each of the consolidated appeals it can be seen that the issue boils down to what shall be the role of an election tribunal upon the petition being sent bask for retrial by an appellate Court notwithstanding the expiry of the 180 days provided under Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered for such trials. Should the tribunal decline jurisdiction or proceed as directed by the Court of Appeal or the Supreme Court as the case may be, to hear the petition and deliver judgment within the stipulated Period of 180 days?
In arguing the appeal in CA/C/130/2011 Nwoko Esq, of Counsel to the appellant, relying on the Supreme Court case of Peoples Democratic Party and Dr. Goodluck Jonathan and the Congress for Progressive Change & Ors in consolidated appeals No.SC.272/2011 and SC.276/2011 delivered on 31-10-2011 argued that the wordings of Section 285(6) and (7) of the Constitution of the Federal Republic of Nigeria, 1999 as altered were clear and should be given their natural and ordinary meanings as happened in the consolidated judgments decided, by the Supreme Court. That the Tribunal should have followed the consolidated judgments of the Supreme Court but not Idongesit Godwin Akpan Udokpo vs Kenneth Edet Archibong & Ors (Unreported), delivered by the Court of Appeal, Calabar Division on 17-11-2011 wherein I held in my concurring judgment that on a trial de novo the petitioner has to marshall evidence and obtain judgment from the Tribunal within 180 clays as provided under Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered.
On issue two it was argued that the concurring judgment by me in Idongesit Godwin Akpan Udokpo vs Kenneth Edet Archibong & Ors supra was an obiter dictum which should not have been followed by the Tribunal. Learned Counsel urged this Court to allow this appeal, set aside the ruling of the Tribunal and accordingly, strike out the petition. The same or similar arguments were adumbrated by Hon. Ehiogie West-Idahosa Esq, for the appellant in CA/C/NAEA/311/2011 and G.A. Umoh Esq, for the appellant in CA/A/NAEA/311/2011 hence I need not reproduce same in this appeal
S.C. Peters of Counsel to the 1st and 2nd Respondents replied to the arguments of the learned Counsel to the appellants as follows: That the facts before this Court are not the same as those in the consolidated appeals upon which the Supreme Court adjudicated. That what was before the Tribunal in this appeal was a petition the Court of Appeal had directed or remitted to be heard on the merit which was not so in the consolidated appeals that came before the Supreme Court. Counsel submitted that at no time did the Supreme Court hold that the provisions of Section 287(2) was subject to Sections 285(6) and (7) or vice versa of the Constitution of the Federal Republic of Nigeria, 1999 nor that an order for hearing de novo made by an appeal Court should be disobeyed by a tribunal.
Learned Counsel further submitted that Section 285 of the Constitution has no supremacy over any other provision in the constitution hence the draftsman did not employ the phrase “Notwithstanding anything to the contrary in any provision of this Constitution” or “subject to…” being phrases that are often employed to subject one provision to another in a law or constitution. Counsel referred to the meaning of the phrase “a judgment on the merit” given by Ayoola in Akuneziri vs. Okenwa (2000) 15 NWLR (Pt.691) 526 at 539 paragraphs “G – H”. Learned Counsel saw no conflict in the opinion expressed by Anyanwu, JCA in the lead judgment with that I expressed as a concurring judgment in Idongesit Godwin Akpan Udokpo vs. Kenneth Edet Archibong & Ors., supra. On the whole this Court was urged to dismiss the appeal to enable hearing of the petition to commence before the Tribunal. Similar arguments were repeated in appeals. No. CA/C/NAEA/311/2011 and CA/C/NAEA/312/2011 by Counsel appearing for the appellants and similarly responded to by learned Counsel to the 1st and 2nd Respondents.
I shall begin a consideration of this appeal by referring to the lead judgment delivered by Uzo. I. Ndukwe-Anyanwu, JCA in Idongesit Godwin Akpan Udokpo vs. Kenneth Edet Archibong & Ors. unreported Appeal No. CA/CA/NAEA/257/2011 delivered on 17th day of November, 2011. There my Lord ordered at page 20 lines 1 – 14 and page 21 lines 1 – 7 as follows:
“Suffice it to say that the Rule of Stare Decisis is not made in vain. There is hierarchy in the courts. A Court is duty bound to follow the decision of a higher Court. As soon as the decision of a higher Court is brought to the notice of the tribunal it has no choice but to follow it.
The decision in Aliyu Ibrahim Gebi v. Alhaji Garuba Dahiru & 3 Ors (supra) is therefore binding on the Tribunal. The Tribunal ought to have .followed it in reaching its decision.
I therefore resolve this issue in favour of the Appellant. The 2 issues articulated by the Appellant are both resolved in his favour. The appeal is meritorious and therefore allowed.
The judgment of the Tribunal delivered on 12th October, 2011 is hereby set aside. The Petition No. EPT/AKS/HR/1/2011 is remitted for the second time to be heard de novo by a panel differently constituted. It is also further ordered that Forms TF007 and TF008 are to be issued as a consequential order flowing directly from the judgment. See Inakoju vs. Adeleke (2007) 4 NWLR (Pt.1025) page 432; Liman vs. Mohammed (1999) 9 NWLR (Pt.617) page 116; A.G. Fed. Vs. AIC Ltd. (2000) 6 SC page 175.
I make no orders as to costs.”
The effect of the above judgment and order is that Petition No. EPT/AKS/HR/1/2011 was remitted for the second time to be heard de novo by a panel differently constituted. In my concurring judgment I held that:-
“I have read in advance the judgment delivered by any Lord, Uzo. I. Ndukwe-Anyanwu, JCA and I concur that this appeal should be allowed and the petition remitted once more for retrial on the merit.
In his concurring judgment, my Lord Akeju, JCA held as follows:-
“…It is an undisputed fact in this appeal that on 16th September, 2011 this Court allowed an appeal by the same appellant herein in respect of the same Election Petition No. EPT/AKS/HR/1/2011 and ordered a retrial of the petition on the merit. The Tribunal has failed to comply with that order of this Court.
Consequently, I agree that this appeal succeeds and I allow it. I abide by the order remitting the petition for hearing de novo as in the lead judgment. ”
I envisaged this kind of argument likely to resurface at the tribunal which may once again come before the Appeal Court. That is precisely what has happened in this appeal. I then held as follows:
“…I shall add some comments of mine because the appeal raises an interesting issue relating to the jurisdiction of Election Tribunals to entertain petitions remitted to them by appellate Courts for hearing or trial de novo namely, whether the 180 days stipulated under section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered for delivering judgment having expired, they shall decline jurisdiction to entertain the petition.”
This issue arose because learned Counsel to the 1st Respondent had argued that the 180 days for delivery of judgment by the Tribunal having expired, the petition filed on 30-04-2011 had lapsed since 29-10-2011 I hence the Appeal Court lacked jurisdiction to entertain the appeal. That the Tribunal would also lack the jurisdiction to entertain the petition if an order was made by the Court of Appeal for trial de novo. Counsel cited the provisions of Section 285(6) of the Constitution supra in argument. Having considered the arguments and decided authorities by the Supreme Court I answered the argument at page 7 of the judgment as follows:
“In my humble view when an appeal Court remits a petition for trial or hearing de novo, the second trial supersedes the first that had been set aside on appeal. In en election petition this will enable the parties to reprove their respective cases within the 180 days stipulated by Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered.”
Thereafter, I still held at page 14 of the judgment that, “…I abide by all the orders made by my Lord.” Thus the issue was the legal effect of an appeal Court ordering a retrial or rehearing de novo which was not an issue raised by any of the parties in the consolidated appeals Nos.SC.332/2011, SC.333/2011 and SC352/2011 before the Supreme Court. Nowhere did I hold that the Tribunal could on application or suo motu extend the time prescribed under Section 285(6) of the Constitution for the delivery of judgment. Neither did Anyanwu, JCA nor Akeju, JCA say so. In the lead judgment my Lord Anyanwu, JCA held as follows:
“Section 285(6) of the 1999 Constitution (as amended) expects the petition filed to start running and final judgment delivered on the petition within 180 days. The 180 days in this petition filed on 30th April, 2011 should expire on the 27th October, 2011. After this date the Tribunal has no jurisdiction to hear this petition in any form or manner.”
See page 11 lines 7 – 12 of judgment.
I do now see how it can be said that my concurring judgment constituted obiter dicta when the reasoning flowed from the arguments of learned counsel in that appeal which I had to pronounce upon. Even if it was an obiter dicta I shall refer to the judgment of Lord Goddard C.J., in Zeidman vs. Owen (1950) 1 All E.R. 290. His Lordship was sitting in the Kings Bench Division with Lynskey, J., Both were confronted with the opinion of Lord Greene M.R., in Elderton vs. United Kingdom Totalisator Co. Ltd. (1945) 2 All E.R. 624 wherein the Master of the Rolls had expressed an opinion in the Court of Appeal that football pools were not pool betting transactions within the meaning of the Betting and Lotteries Act, 1934. This conflicted with the earlier decision of the Kings Bench Division which held the contrary view in Stovell vs Jameson (1939) 4 All E.R. 76. Lord Goddard C.J., held at page 291 of the judgment that:
“…The Court of Appeal in that case was considering Section 26 of the Act, and not Section 3, so LORD GREEN’s observations were obiter and it is not suggested that they ere binding on this Court, though, naturally we should pay great attention to what the learned Master of the Rolls said and, if we thought that the dicta, though obiter, expressed the true construction of the Act, we should feel we ought to follow them.”
The question is: What if the appeal emanated from a decision of the tribunal to the Court of Appeal and subsequently to the Supreme Court, for instance in Governorship elections, and a retrial is ordered by the Supreme Court or a rehearing of the appeal before the Court of Appeal. Will an inferior tribunal or the Court of Appeal have the audacity to disobey the orders or directives of the Supreme Court that is manned by the leaned Justices who are presumed to know the law and constitutional provisions? In my judgment, to decline jurisdiction will constitute a violent attack on the provisions of Section 257(1) (2) and (3) of the Constitution supra which reads as follows:
“287(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 Supreme Court.
(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 other Courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other Courts, respectively.”
The Supreme Court remitted the petition of Senator J. Akpanudoedehe & 2 Ors vs Godswin Akpabio & 3 Ors in suit No.CA/C/NAEA/GOV/173/2011 of 15-09-2011 and Professor Steve Ugba vs PDP & Ors in Appeal No. SC/360/2011 for hearing de novo that they be determined on the merit by the Election Tribunals. The tribunals are yet to conclude hearing despite the expiration of the 180 days stipulated by Section 285(6) of the altered Federal Constitution, 1999. The framers of the Federal Constitution of Nigeria, 1999 have provided that:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
One among the many principles of democracy and social justice embedded in Section 14(1)(c) of the 1999 Federal Constitution as altered is the participation by the people in their government which shall be ensured by the State in accordance with the provisions of the Constitution. Participation in government includes the obligation to vote and the right to be voted for at any election. These constitute the civil rights and obligations of the citizens of this country especially of voting age. Where a dispute has arisen out of that process the questions are to be determined by the Election Tribunals as provided under Section 285(1) to (8) of the altered 1999 Federal Constitution. This will be upon the filing of a petition by an aggrieved party within 21 days after the date of the declaration of result of the elections under Section 285(5) of the altered Constitution. The tribunal has 180 days to deliver judgment from the date of filing the petition under Section 285(6) of the altered Constitution.
The Constitution contains provisions that govern the Election tribunals when exercising their original jurisdictions and further recognizes the duties imposed on the Courts of Appeal while exercising their appellate jurisdictions. No where has the Constitution provided that one provision of the Constitution is superior or supreme over the other as rightly argued by learned Counsel to the 1st and 2nd Respondents. If that was intended the draftsman could have used such phrases as “without prejudice to the foregoing provisions of this Constitution.” (See Section 36(2); “provided that…” (Section 39(2)); or “subject to the provisions of this Constitution..” (Section 43) of the 1999 Federal Constitution as altered, etc. For this reason Section 1(1) of the Constitution supra provides as follows:-
“1(1) This constitutes is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
In my humble view the Court of Appeal was not, as contended by the learned counsel appearing for the appellants, extending the 180 days within which the Tribunal shall hear the petition and deliver judgment under Section 285(6) of the altered Constitution. The Court of Appeal had no such powers; neither could the tribunal extend the time within which to deliver judgment. But the Court of Appeal having declared the ruling or decision of the tribunal as unsatisfactory and thereby aborting same, a miscarriage of justice having been established by the appellants, the only remedy that could meet the justice of the case was to order a rehearing or retrial de novo. In Spencer Bower and Turner On Res Judicata 2nd edition (1969) Article 168 at page 135 the learned authors have set out in clear terms the purport of a retrial:
“No finding of the Court or of a jury of a trial which has proved abortive, a new trial having being directed, will give rise to a valid plea of estoppels. And a decision of the Court setting aside the verdict of a jury, or setting aside a judgment entered pursuant thereto, and directing a new trial, will result in either party being estoppels per rem judicatam by anything held on the facts in the judgment in which the new trial is ordered, for the judgment must be read as deciding no more than that, the first trial being unsatisfactory, the issues tried therein should be resubmitted to the Court for fresh consideration.”
This opinion was approved by the Supreme Court in Fadiora vs. Gbadebo (1975) 1 LRN 97 per Idigbe, JSC (of blessed memory) who, after considering other authorities came to the following conclusion at page 104 of the judgment as follows:
“…what exactly is the implication and effect of an unconditional or unqualified order for trial de novo by the Court of Appeal on a case on appeal before that Court? We think that in trials de novo the case must be proved a new or rather reproved de novo, and therefore, the evidence and verdict given as well as the judge’s findings, at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of. The Court of second trial, therefore, is entitled to and, indeed, must look at the pleadings before it in order to ascertain and decide the issues joined by the parties before it on their pleadings…”
His Lordship concluded at page 105 of the judgment as follows:-
“Finally, in Smith vs. Stroud (1926) 42 TLR 372 it was also held that where a Court of Appeal orders that the entire judgment given by the trial judge be set aside and a new trial granted to the parties with a direction that costs on the abandoned counterclaim should abide the decision of the judge on the new trial, the counterclaim is revived and must be tried together with the claim. These cases set out above made it clear that in law the effect of an order for new trial is to allow the parties to reprove their case.”
Also in Cardoso vs. Daniel (1986) 2 NWLR (Pt.20) 1 Coker J.S.C. held at page 18 that:
“In conclusion, it is my view that the effect of a retrial on the merits is to allow the plaintiffs the liberty to adduce evidence to prove their case on the pleadings and for the defendant to challenge that case by evidence, if necessary and or on the law, other than on the issue of res judicata which land earlier been raised and finally decided. In short, a retrial on the merits means that the plaintiffs are free to prove their case and are not barred from doing so by the plea of res judicata.”
See also Ayantade vs. Ogundokun (1978) 10 FCA 296 at 207; Abortsi vs. Avelete 12 WACA 422.
When the Court of Appeal set aside the ruling of the lower tribunal on 27-10-2011 and remitted it for trial without conditionalities, the legal effect was that the Court of Appeal was directing the new tribunal to embark on a new or fresh hearing and determination of the issues joined by the parties in their respective pleadings, the first trial having been held as unsatisfactory and aborted. The further effect was as if no trial had taken place and judgment delivered within the 180 days stipulated under Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Thus the petition filed within 21 days after the declaration of results of the elections under Section 134(1) of the Electoral Act, 2010 as amended, which the Tribunal had struck out or even if dismissed had been revived and replaced on the Tribunal’s Cause list for hearing and determination within the period of 180 days from the day of the order made by the Court of Appeal.
When a case, petition or an appeal struck out is relisted on the orders of a Court of trial or an appeal Court it is not a new suit, petition or appeal but is still the old one. See Kassim vs Ebert (1966) NNLR 75. Time will not run against the relisted suit, petition or appeal. It will be absurd for the lawmaker to grant a tribunal 180 days within which to deliver its judgment in writing from the date of the filing of the petition under Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered but when a retrial on the merit is ordered by an Appeal Court, an inferior tribunal would disobey that order by refusing to hear the petition anew, or in the alternative, curtail the 180 days meant for retrial. Could the legislature have intended such a consequence? I do not think so.
In Maxwell On the Interpretation of Statutes, 12th edition by P. St. J. Langan, p.116 the learned authors have stated the law to be as follows:
“Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are “fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law.”
The legislature could not have intended that the petitioner should be shut out from the temple of justice when an appellate Court orders that the Tribunal should rehear the petition on the merit or de novo because of effluxion of time. In Mostyn vs Fabrigas (1775-1802) All E.R. Reprint 266 objection was taken by learned Counsel appearing on behalf of the Respondent that the Court had no jurisdiction to entertain the claims before it. Lord Mansfield C.J-, answered that:
“In every plea to the jurisdiction, you must state another jurisdiction.”
If the Tribunal is not to rehear the petition remitted it by the Appellate Court, the onus is on the party raising objection to disclose what other venue the grievances of the petitioner shall be heard and determined on the merit. The framers of the Constitution of the Federal Republic of Nigeria, 1999 as altered have provided inter alia in the preamble that the Constitution is, “…for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the Unity of our people.” Daniel John Meador & Jordana Simone Berstein have summarized in a few words the role of appellate Courts in the following language:
“Appellate Courts are among the most important institutions of governance in the United States. Through their review of trial Court and administrative agency decisions they ensure that those bodies function lawfully and that litigants receive justice under the law. Moreover, they provide authoritative interpretations of statutory and constitutional provisions and control the shaping of the common law in response to ever changing circumstances; they are thus the major sources of law.”
See Appellate Courts in the United States (1999) cited by the learned authors of Blacks Law Dictionary, 8th edition pages 378 – 379.
If the argument by learned counsel to the appellants is accepted there will be no need or basis for an aggrieved party before the Tribunal to appeal to the Court of Appeal. This is because whatever order the appellant obtains on appeal will be rendered unenforceable by effluxion of time. An aggrieved party will have resort to self-help; public or private peace will be breached.
Besides’ it will introduce judicial anarchy in that inferior tribunals will refuse to obey the lawful orders of Appellate courts when a retrial is ordered, This will be an assault on the time-honored principle of stare decisis. That will have disastrous consequences for this great nation and make mockery of the Nigerian judicial system in the eyes of the local and international community. In Nafiu Rabiu vs The State (1980) 2 NCR 117 Sir Udo Udoma, JSC (of blessed memory) laid down in clear terms the principles to adopt in the construction or interpretation of provisions of the constitution when there arises a major constitutional issue such as we have at hand. His Lordship reasoned at pages 132 to 133 of the judgment as follows:
“My Lords, in my opinion, it is the duty of this Court to hear constantly in mind the fact that the present Constitution has been proclaimed the supreme law of the land; that it is a written; organic instrument meant to serve not only the present generation, but also several generations yet unborn; that it was made, enacted and given to themselves by the people of the Federal Republic of Nigeria in their Constituent Assembly – for which reason, and because it is autochthonous, it of necessity claims superiority to and over and above any other Constitution ever devised for the governance of this country – the unwarranted intermeddlesomeness of the military authority with some of its provisions notwithstanding; that the function of the Constitution is to establish a framework of principles of government, in broad and general terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore mere technical rules of interpretation of statutes are to some extent inadmissible in so far as they would defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this Court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.
My Lords, it is my view that the approach of this Court to the construction of the Constitution should be, as it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. I do not conceive it to be the duty of this Court so to construe any of the provision of the Constitution as to defeat the obvious ends the Constitution was designed to serve, where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
These views were approved by the Supreme Court in Senator Abraham A. Adesanya vs. President of the Federal Republic of Nigeria & 1 Or. (1981) 5 SC 112 where Fatayi-Williams, CJN held at page 132 – 133 that:
“In the Nigerian con, it is better to allow a party to go to Court and to be heard than to refuse him access to our Courts. Non-access, to my mind, will stimulate the free-for-all in the media as to which law is constitutional and which law is not! In any case, our Courts have inherent powers to deal with vexatious litigants or frivolous claims. To re-echo the words of learned hand, if we are to keep our democracy, there must be one commandment – thou shall not ration justice!
Moreover, as Barwick, CJ pointed out in Attorney-General vs Commonwealth of Austrslia (1975) 135 CLR page 1 at page 17;
“The only true guide and the only course which can produce stability in constitutional law is to read the language of the constitution itself, no doubt generously and not pedantically but as a whole.” (The underlining is mine)
The seeds of democracy were sown by the fathers of the Constitution of the Federal Republic of Nigeria, 1999 as altered by providing in Section 14(1) that:
“14(1) The Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice.”
Let that seed of democracy germinate and grow on the principles of unity and harmony, Freedom, Equality and Justice as enshrined in the preamble to the Constitution. Acceding to the argument of the appellant’s learned Counsel will defeat the principles of government enshrined in the constitution which will not accord with the dictates of justice. If justice is to be done the Tribunals and the Courts of Appeal must ensure that petitions are heard and determined on their merit within the frame work of the law and constitution’ The Respondents in this appeal should not be shut out from the temple of justice based on mere technical rules of interpretation of statutes. The constitution is the supreme law of the land, a written, organic instrument meant to serve not only the present generation’ but also several generations yet unborn. There is no joy in constantly amending the constitution when power exists in the tribunals, trial and appellate Courts to do justice and equity by judicial interpretation. The rules to apply when interpreting the provisions of a law or statute are not the same when constitutional provisions are under consideration. See PDP vs INEC (1999) 7 SCNJ 297. Moreover, the constitutional provisions are to be read as a whole and not in isolation. See Obi vs INEC (2007) 1116 at 1190; Obayuwana vs Governor, Bendel State (1982) 12 SC 147 at 211. This will enable the Court or tribunal to determine the true intention of the law giver. I wish to refer to the opinion expressed by Dias: Jurisprudence, 4th edition page 164 where the learned author reasoned as follows:
“When considering the birth and continued life of stare decisis it is necessary to keep in mind the distinction between it and the broad doctrine of precedent. One factor common to both is the need to do justice. If people are required to settle their disputes by peaceful process rather than by resorting to self-help, which is a prime consideration in the dawn of society, such process should dispense what they feel is justice in the situation complained of as being unjust. In order to do this, it is essential to foster confidence in its impartiality and in the judges who administer it; and this has given rise to the fundamental principle that like cases should be treated alike. Judgments are pronounced on the facts of individual cases and the chance that the facts of even two cases will be identical in every particular is so remote that, as a practical matter, similarities and dissimilarities can only be viewed on the basis of generalizations and classification of facts into types. So the requirement that like cases should be treated alike reduces itself to minimizing arbitrariness and caprice in the perception of similarities and dissimilarities. This is achieved up to a point by using previous cases as paradigms furnishing broad type-situations. In this way lines of similar decisions evolve in time, like cases following upon each other, and eventually it becomes possible to look back along those lines and to extract common principles.”
It may be recalled that this petition was filed on 30-04-2011 within the 21 days stipulated by Section 285(6) of the Constitution as altered and determined by the tribunal within 180 days prescribed by Section 285(7) of the same Constitution as altered. The order made by the Court of Appeal on 13-10-2011 directing that the petition be re-heard by the Tribunal on the merit did not involve the filing of a new petition. The rehearing will be based on the petition filed on 30-04-2011 which the Tribunal did not satisfactorily hear hence the Court of Appeal aborted same and made the consequential orders now once again the subject matter in this appeal. The end result is to further prolong the hearing of the petition on the merit. These are the very tactics and antics that necessitated the relevant provisions of the law and constitution to be altered by prescribing time for the hearing of petitions and delivery of judgment by the Tribunal and the rendering of judgment by the appellate Courts. That may further explain why the law maker provided that an interlocutory appeal shall not preclude the Tribunal from continuing with the hearing of the petition on the merit within the stipulated time frame.
In my judgment the 180 days prescribed for delivery judgment by a tribunal extends to the petitioner whose petition has been remitted to the Tribunal for rehearing de novo except, otherwise determined by appellate Court of Appeal. If that is not so, there will be injustice to the petitioner and this will lead to a miscarriage of justice. I wish to draw Counsel’s attention to what Cotton L.J., said in Polini vs. Gray (1879) 12 Ch.D. 438 at 446:
” …where there is en appeal about to be prosecuted the litigation is to be considered as not at an end… ”
Again in Wilson vs Church (No.2) 12 Ch.D. 454 Cotton L.J., held at page 558 that:
“…I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal if successful is not nugatory. …Acting on the some principles, I am of the opinion that we ought to take core that if the House of Lords should reverse our decision (and we must recognize that it may be reversed) the appeal ought not be rendered nugatory.”
In Adegoke Motors Ltd. vs Adesanya (1989) 5 SC 113 at 117 Oputa, JSC held that:
“Generally, an appeal is regarded as a continuation of the original suit rather than the inception of a new action…”
See Chief Imam Y.P.O. Shodeinde & Ors vs. The Registered Trustees of the Ahmadiyya Movement -In-Islam (1980) 1 – 2 SC 99 at 106; Eyesan vs Sanusi (1984) NSCC 271 at 282.
In my humble view the arguments of learned Counsel to the appellants is an ingenious and calculated attempt to render nugatory the order made by the Court of Appeal so that the petition will not be heard on the merit. That is not justice. I see no merit in these arguments. All the three appeals have failed and are dismissed. The Tribunal is to proceed and hear the petition on the merit. I make no order as to costs.
UZO I. NDUKWE ANYANWU, JCA: I had the privilege of reading before now the judgment just delivered by my learned brother J.T. Tur, JCA. I agree with his reasoning.
Section 285(5) – (8) of the 1999 Constitution (as altered) were additions to the principal sections to ensure the expeditious filing and disposition of Election Petitions within the shortest possible time.
S.285(5) allows only 21 days for the filing of petition for an aggrieved person. Section 285(6) provides for the hearing and delivery of judgment within 180 days from the date of filing. Section 285(7) provides for 60 days for an appeal from the Tribunal to be disposed off from the date judgment was delivered. All these subsections are standing on their own and not subject to each other.
These subsections seek therefore to abridge the life span of a petition from the date an election was conducted to the date of the final judgment on Appeal. A tribunal that has given its judgment rightly or wrongly within the 180 days provided by s’ 285(6) of the Constitution (as altered) has fulfilled all the intentions of S.285(6).
An appeal court that has heard an appeal and delivered its judgment within 60 days is within its own jurisdiction so to do. The court of Appeal is also within its jurisdiction to make consequential orders flowing from its judgment.
The constitution as it were did not limit the type of orders that court an Appeal would make following its judgment delivered within 60 days provided in Section 285(7). Such orders may include that of retrial as in the instant case for the just adjudication of a Petition
Notwithstanding that the 180 days provided by the S.285(6) has expired, the Appeal Court should not hesitate to make all orders for the just adjudication of a Petition’ where a Court of Appeal makes an order that
“the petition is sent back to the Tribunal for a trial de novo”,
It means starting afresh in all its ramifications. This subsequent order of retrial is a consequential order which is removed from the ambit of S.285(6).
An appellant who succeeds on appeal and an order made that his Petition be heard on the merit cannot enjoy his success if the time frame provided for in S.285(6) is adhered to, to include petitions sent back for retrial.
An appellate court will make an order for retrial of a case, where the retrial will not lead to a miscarriage of justice, or where the court, exercising its appellate jurisdictions, cannot adequately do justice to the case, or where from the circumstances of the case, it is just to make such an order. See Abusomwan Vs. Aiwerioba (1996) 4 NWLR pt 441 page 130.
An appellate court will order for a retrial of a matter where there has in fact been a previous trial that though was properly conducted but which is vitiated by an error in law or procedure. See Yahaya Vs. State (2002) 3 NWLR pt 754 page 289.
A successful Appellant cannot enjoy a Pyrrhic Victory. He ought to enjoy the fruits of his victory. Where a Petitioner/Appellant has done everything, the law requires him to do, he should not be ambushed by a skewed interpretation of S.285(6). The law should not be reduced to an engine of fraud to deny a successful litigant the fruits of his success.
For this and the more robust reasoning and conclusions in the lead judgment I also dismiss the appeal and abide by all the consequential orders in the lead judgment including that as to costs.
ISAIAH OLUFEMI AKEJU, JCA. I had the privilege of reading the draft of the lead judgment of my learned brother, Joseph Tine Tur, JCA. My learned brother has incisively treated the issues involved in the three appeals that were consolidated at the hearing on 23rd January, 2012.
The three appellants had shown their dissatisfaction with the ruling delivered by the reconstituted National And State House of Assembly Election Tribunal sitting at Uyo, Akwa Ibom State on 29th November, 2011, that it had jurisdiction to hear the petition remitted by this court for trial de novo.
The tribunal had held inter alia:
“In any event the order of the Court of Appeal made on the 13th October 2011 in respect of this petition is that it be heard de novo and this Tribunal is bound to follow the order as it is not open to a lower court to disagree with the decision of the higher court.”
Apart from the decision in Osakwe vs. FCE (Technical) Asaba (2010) All FWLR (Pt. 552) 1601, the Tribunal also relied on Section 287(2) of the Constitution of the Federal Republic of Nigeria, 1999 which provides:
“The decision 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 the Court of Appeal.”
The word “shall” used in the above provision connotes mandatoriness, as it is the law that when the word “shall” is used in an enactment, it usually expresses mandatoriness or command. See Diokpa Onochie vs’ Odogwu (2006) All FWLR (Pt. 317) 544; Amokeodo vs. I.G.P. (1999) 5 SCNJ 1.
The Tribunal felt emboldened by the above provision and refused to disobey the order of this court contained in its judgment of 13th October, 2011 that the petition be heard de novo as a result of which the tribunal itself was constituted.
In the face of the above provision, it was not open to the tribunal as it was urged, to disobey, disrespect or refuse to carry out the order of this court contained in the judgment of 13th October, 2011 that the petition be heard de novo.
The provisions of Section 287 of the Constitutions are, in my humble view designed to make the courts that are lower in the judicial hierarchy to recognize, and not only obey the courts that are higher in hierarchy but to also ensure that the orders of the higher courts are enforced, and the tribunal correctly allowed itself to be guided by the provision.
In Okonji vs. Dr. Mudiaga & Ors. (1985) 10 SC 267 at 268 – 269 Kayode Eso JSC stated inter alia that:
“In the hierarchy of the court in this country, as in all free common law countries, one thing is to clear, however learned a lower court considers itself to be and however contemptuous of the higher court, the lower court is still bound by the decision of a higher court.”
This statement by Eso JSC was quoted with approval by Ogbuagu JSC in Ogunsola vs. NICON (2010) 13 NWLR (Pt. 1211) 225; (2010) All FWLR (Pt.536) 423. At page 433 (All FWLR) Fabiyi JSC has this to say:
“It is my considered view that the court below commendably withstood the untoward prompting by the appellant to disobey the directives of this court. It would have been an affront if the court below had fluted the clear and unambiguous directives given it by this court. In short the court below was on a firm ground in its ruling in which it refused the application and dismiss it. I endorse the same.”
I believe that the tribunal in the instant case was right in its ruling, and it is for the foregoing, and the fuller reasons given by my learned brother that I concur with the conclusion in the lead judgment that the appeals are devoid of merit and I accordingly dismiss them. I abide by the consequential order and I make no order as to costs.
Appearances
U. Nwoko & O.B. AkpanFor Appellant
AND
S.C. Peters
G.A. Umoh & D. Okokon Esq.
E. West Idahosa,
Jacob AkpongFor Respondent
