APPELLANT’S CASE.
The Appellant formulated one issue for determination which is as follows;
“Was the learned Tribunal right in holding that he had jurisdiction to try and determine the petitions notwithstanding the fact that 180 days period stipulated by Section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria within which the Tribunal was entitled to hear and determine the petition had elapsed since 26/10/2011”.
The Appellant submits that Section 285 of the 1999 Constitution (as amended) is clear, unambiguous and mandatory in terms. It creates the Tribunal, provides for its composition, quorum and the time to hear and deliver judgment.
If further submits that Section 285 (6) of the 1999 Constitution admits no exception whatsoever and the 180 days provided by the Constitution had expired since 26th/10/2011 depriving the Tribunal or any other Court of the Jurisdiction to entertain the suit, so the learned Tribunal ought to have apply the plain meaning and struck out the Petition, especially when Supreme Court decisions were cited to that effect instead of relying on the dictum of Joseph Tin Tur, JCA in the case of Idiogesit Godwin Akpanudokpo V. Kenneth EdetArchibong.Unreported Judgment of the Court of Appeal in Suit No. CA/C/NAEA/257/11 that the 180 days referred to in the Section start to run, in matters of re-trials and remittances, from the date of delivery of the verdict by the Appellate Court.
The Appellant relied on the consolidated cases of ANPP V. Alh. Mohammed & 4 Ors.Unreported Judgment inSuit No.SC/2/2012 andAlh.KashimShettima & 1 Or. V. Alh. Mohammed Goni & 5 Ors.Also the case ofBrig. Mohammed BubaMarwa & Ors.V. Adm. MurtalaNyako & Ors.Delivered January, 2012 where Onnoghen, JSC in interpreting Section 285 (6) state that the time fixed by the Constitution is like the Rock of Gibraltar or Mount Zion which cannot be moved that time cannot be extended or expanded or elongated or in anyway enlarged; that if what is to be done is not done within the time so fixed, it lapses as the Court is thereby robbed of the jurisdiction to continue to entertain the matter.
The Appellant also submit that where the words of the Constitution is clear there is nothing to be interpreted and should be given it ordinary meaning, relying on the case of FRN V. Oshaon (2006) 2 SC (pt. 11) 1. Per Onnoghen JSC.
In addition, Counsel submits that where the provisions of the Constitution are mandatory, they must be strictly complied with and failure of compliance will render any contrary action a nullity.
On the issue of acting without jurisdiction, they cited the following cases Malukolu V. Nkemdilim (1962) 1 SCNLR 341; Dapianlong & 5 Ors. V. DariyeAnor. (2007) 4 SC (pt.111) 118 at 162-163.
On the rationale for Section 285(6) of 1999 Constitution. Cited PDP V. Mr. EyoNsaEkpo & 3 Ors. Unreported decision of the Court of Appeal, Calabar Division delivered on 21/07/2011, Akaahs, JCA.
The Appellant finally urged this Court to allow the appeal, make orders setting aside the decision of the Tribunal made in this case on the 12/01/2012 and also strike the petitions as having lapsed since 26/10/2011 being the 180 days from the date the petition was filed.
1ST RESPONDETN CASE.
The 1st Respondent submits that the Judgment in the case of ANPP V. Mohammed & 4 Ors. (supra) and ALh. KashimShettima & 1 Anor. V. ALh. Mohammed Goni & 5 Ors.Were delivered by the Supreme Court on 17th /02/2012 while the Tribunal delivered its Ruling in respect of the subject matter of the present appeal on 12th /01/2012.
The 1st Respondent raised a preliminary objection challenging the competency of this appeal and formulated a lone issue for determination.
“Whether adverting to the provision of Order 6 Rule 2 (1) of the Court of Appeal Rules 2011 which mandatory requires an appellant to state in his Notice of Appeal the names and address of all parties directly affected by the appeal, the Appellant’s Notice of Appeal dated 26th January, 2012 is competent?”
The 1st Respondent submits that the Appellant Notice of Appeal filed on the 26/01/2012 has on it the following persons;
- Arc. Aliyu P. S. Dankaro
- Action Congress of Nigeria
- Peoples Democratic Party
- INEC
- Resident Electoral Commissioner, Taraba State & 111 Ors.
The 1st Respondent submits that the appeal is incompetent and in flagrant violation of Order 6 Rule 2 (1) of the Court of Appeal Rules 2011 for not affording the Court any scintilla of opportunity to know who all the Respondents before it are.
It further submits that, the failure of the Appellant to comply with the statutory provisions or Rules of Court will deprive the Court the opportunity to entertain and adjudicate on the appeal, relying on the case of Uwazurike V. Att. General, Federation (2007) ALL FWLR (pt. 367) pg. 834 at 843.
The classified Respondents in the Notice of Appeal and the Appellants brief of argument are not the same because in the Notice of Appeal the Appellant named 5 Respondents and classified 108 others while in the Appellants brief of argument 4 Respondents were named and 114 others were classified.
On the preliminary objection, the 1st Respondent urge this Court to find in favour of the 1st Respondent and against the Appellant, decline jurisdiction on this appeal and strike out the Notice of Appeal dated 26/01/2012 as being incompetent.
ON THE MAIN APPEAL.
The 1st Respondent adopts the sole issue for determination as formulated by the Appellant at para. 3.2 page 3 of the Appellant’s brief of argument.
The 1st Respondent submitted that assuming but not conceding that the appeal is competent the Tribunal was properly guided when it relied on the case of Idiogesit Godwin AkpanUdokpo V. Kenneth EdetArchibong (supra)in dismissing the Appellant’s objection to the jurisdiction of the Tribunal.
The Tribunal delivered its ruling on the 12th/01/2012 following the case of Idiogesit (supra)delivered by Court of Appeal which was the highest Court of Nigeria that had interpreted Section 285 (6) of 1999 Constitution as it relates to retrial cases before the Supreme Court in the consolidated cases of ANPP V. Alh.Mohamed & 4 Ors. (supra) and Alh. KashimShettima & 1 Anor. V. Alh. Mohammed Goni & 5 Ors.Delivered its Judgment on the 17th/02/2012
The 1st Respondent submits that the tribunal is not clairvoyant as to pre-empt what the Supreme Court was to decide in a case that was not yet decided and in applying judicial precedent it will be impertinence for a lower Court to refuse to follow the decision of a higher Court, relying on the following cases Chief Effiong Le Nelson V. Chief OkonEbanga (1998) 8 NWLR (pt. 563) pg. 701, Oyewumi V. Ogunsesan (1990) 3 NWLR (pt. 137) pg. 182, P.N Emerah & Sons Ltd V. A. G. Plateau State (1990) 1 NWLR (pt. 147) pg. 788, Atolagbe V. Awumi (1997) 7 SCNJ1.
The 1st Respondent further submits that the issue of whether or not an Appellant who succeeded on an appeal should be given another grace of 180 days to prove his petition was a life issue before the Court of Appeal in Idiogesit’s case (supra).so pronouncement based on an issue in dispute in the supporting judgment of a Justice of the Court of Appeal cannot be an obitaas postulated by the learned Counsel to the Appellant.
4TH – 116 RESPONDENTS BRIEF.
The 4th to 116th Respondents adopt the issue for determination as submitted by the Appellant.
The 4th – 116th Respondents further concede to this appeal and in doing so adopt all submissions of the Appellant in their brief of argument and urge this Court to allow the appeal.
Appellant Reply Brief to the 1st Respondent Objection and Points of Law.
On preliminary objection,
The issue for determination from the preliminary objection raised by the 1st Respondent is;
“Whether there is non-compliance with Order 6 Rule 2 (1) of Court of Appeal Rules 2011, if so, whether this honourable Court is not empowered to proceed with hearing of the appeal under Order 20 Rules 2 and 3 of the Court of Appeal Rules 2011”
The Appellant submits that, the Notice of Appeal filed on 26/01/2012 is in compliance with the true construction with Order 6 Rule 2 (1) of the Rules of this Court and pages 366-367 of the record of proceedings the Notice of Appeal states the persons directly affected by the appeal wherein INEC, Resident Electoral Commissioner Taraba State & 111 Ors.
Appellant also submits that, the commission is the 4th Respondent in the appeal & all 111 Respondents are all officers of the commission and in considering the time for hearing and determination of appeal as provided by Section 285 (7) of the 1999 Constitution (as amended) and Section 137 (3) (a) and (b) of the Electoral Act, 2011 (as amended). The commission is representing itself and that of is officers.
The Appellant further submits that, assuming without conceding that Order 6 Rule 2 (1) of the Court of Appeal Rules 2011 is not complied with, Order 20 Rule 2 & 3 empower this Court to depart from its Rules in the interest of justice and urge this Court to invoked its powers in Order 20 Rule 2 & 3.
REPLY ON POINT OF LAW.
Appellant submits that, the submission made by the 1st Respondent in paragraph 4.3 of his brief of argument as at that time, was reached per incuriaagainst a clear provision of Section 285 (6) of 1999 Constitution (as amended). As stated in the case of ANPP V. Alh. Mohammed & 4 Ors. (supra) and Alh. KashimShettima & 1 Anor. V. Alh. Mohammed Goni & 5 Ors.Delivered by the Supreme Court on 17/02/2012.
Finally, urges this Court to allow this appeal.
Accordingly, struck out. With regard to the main appeal, it was contended o his behalf that the Tribunal, rightly, relied on the said decision of Udokpo V. Archibong (supra) in dismissing the Appellant’s objection to it jurisdiction.
It was pointed out that the tribunal could not have anticipated the above Judgments of the Apex Court and so had a duty to rely on the above Court of Appeal decision. Many cases were cited on the implication of the doctrine of stare decisis.
Somewhat curiously, it was contended that the above Judgments of the Apex Court cannot be the basis for setting aside the decision of the Tribunal since it relied on an authority which was binding on it. The only relevant issue canvassed in the reply brief is that Udokpo V Archibong (supra) was reached per incuriam as settled in the above decisions of the Apex Court.
REASONS FOR JUDGMENT.
This appeal raises a very interesting jurisprudential question. As shown above, by the time the present Appellant challenged the jurisdiction of the Tribunal to continue with the hearing of the petition, there was a decision of the Court of Appeal, Calabar Division: a decision which, due to the doctrine of precedent, the Tribunal was bound to comply with in its interpretation of Section 285 (6).
That prompted the submission of the first Respondent, that there was judicial interpretation of Section 285 (6) as it relates to re-trial cases, citing Udokpo V. Adrchibong (supra). The point was made that, at the time, it was the pronouncement of the penultimate Court in the country and in the absence of any opinion of the Supreme Court on the point, the Tribunal was well-guided. Several cases were cited on the impropriety of a lower Court refusing to abide by the decision of a higher Court because of its perception of such a decision as having been given per incuriam. Then came the altimate pronouncement of the apex like which likened the provision of section 285(6) to an immutable and immovable rock!
Before the amendment, section 285 (supra) did not envisage any limitation period for the hearing and determination of election petitions.
The provision, simply, read thus:-
1.There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether;
- Any person has been validly elected as a member of the National Assembly.
- The term of office of any person under this Constitution has ceased;
- The seat of a member of the Senate or a member of the House of Representatives has become vacant; and
- A question or petition brought before the election Tribunal has been properly or improperly brought.
2.The shall be established in each State of the Federation one or more election Tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any Court of Tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a Member of any Legislative House.
3.The composition of the National Assembly Election Tribunals, Governorship and Legislative Houses Election Tribunals shall be as set out in the sixth Schedule to this Constitution.
4.The quorum of an election Tribunal established under this section shall be the Chairman and two other members.
Litigants exploited above open-ended provisions to harass the Nigerian Judicature with endless election litigation outliving the life span of the seat contested for. This prompted the need to amend the section to cure the mischief of inordinate delay in the conclusion of election matters. The first amendment was effected by section 29 of the Constitution of the Federal Republic of Nigeria (First Alteration) Act, 2010. In the above cited cases, the apex Court, in “a poignant and captivating account, dripping with rare insights into sociological jurisprudence”, (per C.C. Nweze JCA),explained the factors that prompted the above sequence of amendment in these terms:-
“It should be constantly kept in mind that prior to the provisions of section 285 (6) of the 1999 Constitution, as amended; there was no time limit for the hearing and determination of an election petition by election Tribunals or the appeals arising there from. That situation resulted in undue delay in the hearing and determination of election matters. The amendment to the original section 285 of the 1999 Constitution, by allotting time within which to hear and determine election petition and appeals arising there from, is designed to ensure expeditious hearing and conclusion of election matters in this country. If the decision of the lower Court is allowed to stand as urged by the Respondents it would re-introduce the earlier mischief which the amendment sought to correct. It will mean that the instant election petition can go on for another one hundred and eighty (180) days assigned by the Constitution”.
That means, the time line amendment in section 285 (6) (supra), was a response to the mischief occasioned by the absence of time lines in the pristine provision of section 285 by which election matters were prosecuted in perpetuity.
That intendment of the amendment incarnated in section 285(6) (supra) is to ensure expeditious hearing and conclusion of election matters in this country. The Apex Court, almost exasperated by the failure of this Court to comprehend this trend, recast its decision in these forceful terms;
In Shettima and Anor. V. Goni and Ors:-
“It has also been held by this Court in a number of cases including appeal Nos. SC/141/2011: Brig. Mohammed BubaMarwa & Ors. V. MurtalaNyako & Ors. (delivered on January, 2012) that the time fixed by the Constitution is like the Rock of Gibraltar or Mount Zion which cannot be moved; that time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within the time so fixed, it lapses as the Court is hereby robbed of the jurisdiction to entertain the matter”
The Apex Court concluded thus in Shettima and Anor. V. Goni and Ors:
“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 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 this decision, section 285 (6) assumes the character of a statute of limitation.
In paragraph 4.3 of the first Respondent’s brief of argument, Counsel contended that the Calabar Division of this Court interpreted section 285(6) (supra) in relation to re-trial cases. According to him, as at the time of the said decision, it was the most authoritative interpretation of the said section, hence, in the absence of any contrary decision of the Apex Court, the Tribunal was well-guided by the said decision. The Appellant dismissed Udokpo V. Archibong (supra) as a decision “reached per in curio (sic) against the clear provision 285 (6) (supra)…”
This position is better expressed in the Judgment of the Apex Court per Rhodes-Vivour JSC who explained, subsequently, in Shettima and Anor V. Goni and Ors. that:-
“The 180 days provided by section 285(6) of the Constitution is not limited to trials but also to de novo trials that may be ordered by an Appeal Court. For the avoidance of any lingering doubt once an election petition is not concluded within 180 days from the date the petition was filed by the petitioner as provided by section 285(6) of the Constitution an election Tribunal no longer has jurisdiction to hear the petition, and this applies to re-hearings. 180 days shall at all times be calculated from the date the petition was filed”.
The implication of this position is that Udokpo V. Archibong (supra) approached the interpretation of the said section 285(6) form a flawed premise that was bound to impair the validity of its perception of the import of the section. The Tribunal found support for its conclusion in the said decision in Udokpo V. Archibong (supra).unfortunately, that decision has turned out to be a weakened interpretation of section 285(6) (supra). in consequence, the decision of the Tribunal must be considered in terms of the decision in Shettima and Anor V. Goni and Ors.
Confronted now with two converse decisions of the apex Court, should this court be at liberty to follow its earlier decision in Udokpo V. Archibong (supra).
As shown above, the first Respondent took the view that the CalabarDivision of the Court interpreted section 285(6) (supra) in relation to re-trial cases. According to him, as at the time of the said decision, it was the most authoritative interpretation of the said section, hence, in the absence of any contrary decision of the Apex Court, the Tribunal was well-guided by the said decision.
Forceful as this submission may be, it loses sight of the fact that the logic in that reasoning must cave in under the weight of its own contradiction. As at today, there are two Supreme Court decisions on the question in issue. They are ANPP V. Mohammed and Ors. (supra) and Shettima and Anor. V. Goni and Ors. (supra).
Just as the Tribunal was bound to follow the decision of this Court in Udokpo V. Archibong (supra), by the same doctrine of stare decisis.