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HON. GABRIEL TORWUA SUSWAM
PROF. STEVE TORKUMA UGBA & ORS.
IN THE COURT OF APPEAL OF NIGERIA
ON THURSDAY, THE 16TH DAY OF FEBRUARY, 2012
BEFORE THEIR LORDSHIPS
M.B. DONGBAN-MENSEM, JCA
THERESA NGOLIKA ORJI-ABADUA, JCA
R.O. NWODO, JCA
HON. GABRIEL TORWUA SUSWAM – Appellant(s)
ELECTION PETITION – TIME FOR DELIVERY OF JUDGMENT:- Duty of election petition to adjudicate over a petition before it within 180 days and give its judgment thereto – Basis of – How computed – Effect of failure thereto
CONSTITUTIONAL LAW – JUDICIARY AND INTERPRETATION OF THE CONSTITUTION – SECTION 285(5) AND 294(1) OF THE 1999 CONSTITUTION:- Duty of Nigerian tribunals/courts in the adjudication of matters before them – General duty of every court/tribunal to give its judgment in writing within ninety days of conclusion of evidence and final addresses – Specific futy of every election petition to conclude its proceedings and deliver its judgment in writing within 180 days of the filing of the petition – Whether mandatory duties – Basis of
PRACTICE AND PROCEDURE – COURT – APPELLATE COURTS:-Proper role of appellate courts – Three choices an appellate court must restrict itself to in the review of a decision from an inferior court – Duty of appellate court to restrict itself only final finding(s), statement(s), or ruling(s) based on a considered weighing of evidence by a trial court
PRACTICE AND PROCEDURE – APPELLATE COURTS:- Proper treatment of judgment of trial courts
PRACTICE AND PROCEDURE – JUDGMENT AND ORDERS:- Judgment of a trial court – Meaning of – How ascertained
INTERPRETATION OF STATUTE – RULES OF INTERPRETATION:- Duty of court in the interpretation of statute – Rule that the Courts are not to defeat the plain meaning of an enactment by importing into the section, the words that were never contemplated by the law makers – Proper treatment thereto
WORDS AND PHRASES – “JUDGMENT”: Definition of “Judgment”
WORDS AND PHRASES – “WITHIN”: Meaning of “within”
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment):
On the 2nd February, 2012, I made pronouncement in this appeal dismissing the same and then deferred the reasons for the judgment to a later date. These are now the reasons.
The facts culminating in this appeal stems from the Election Petition dated and filed on the 17th May, 2011 by the 1st and 2nd Respondents against the Appellant and the 3rd and 4th Respondents claiming about five reliefs in the main and two in the alternative.
Then, following the application for issuance of pre-hearing notice, the orders made by the Tribunal in respect thereof, and the order dismissing the 3rd Respondent’s Motion on Notice for dismissal of the Petition, an appeal was lodged before this Court which was heard and determined. Upon their dissatisfaction with the pronouncement of this Court, a further appeal was presented before the Supreme Court. In its judgment delivered on the 14th November, 2011, the Supreme Court made an order setting aside the decision of the Court of Appeal in the said appeal, and, further ordered that the Petition filed by the 1st and 2nd Respondents on 17/05/2011 be heard on the merits. The Tribunal then set its machinery in place for hearing of the Petition on the merits. However, the Tribunal’s attempt to hear the Petition on the merits jammed a brick wall as it was confronted with a Motion on Notice filed by the Appellant herein on the 22nd November, 2011 praying the Tribunal for an order granting him leave to move his said Motion on Notice outside pre-hearing, and, for an order striking out the Petition on the ground that the Petition has elapsed by the operation of the Constitution. The basis for the said Motion as articulated therein is thus:
“a. By section 285 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended), an Election Petition Tribunal shall deliver its judgment in writing within 180 days from the date of filing of the Petition.
Then, in its ruling delivered on the 8th December, 2011, after due consideration of addresses of respective Counsel for the parties, the Tribunal held that the provisions of section 285 (6) of the 1999 Constitution of Federal Republic of Nigeria do not preclude the Tribunal from hearing the Petition on the merits as ordered by the Supreme Court.
Following the pronouncement and being distraught with the same, the Appellant filed this appeal. Briefs of Argument were, however, filed and exchanged by the parties. Three issues were propositioned by the Appellant in his Brief of Argument settled by his leading Counsel, D.D. Dodo, S.A.N. They read thus:
“i. Whether the period of 180 days for the trial of the Petition runs from any other date than from the date of filing of the Petition.
iii. Whether section 285(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) permits the hearing and determination of an election petition after 180 days from the date of filing of the Petition?”
The 1st and 2nd Respondents in turn, excogitated three issues for determination of this Court thus:
“1. Whether it was with right for the lower Tribunal to have assumed jurisdiction to entertain the Petition in view of the express order of the Supreme Court that the Petition be heard on the merit.
In the Appellant’s Brief of Argument, the three issues formulated therein were argued together.
It was contended therein that the lifespan of a Petition cannot be extended beyond 180 days in any circumstances. Learned Senior Counsel reproduced the provisions of section 285 (6) of the Constitution of Federal Republic of Nigeria, 1999 (as Amended), and paragraph 2 (1) of Schedule 5 of the Local Government (Basic Constitutional and Traditional Provisions) Amended Decree No. 36 of 1998. He made reference to the cases of Ifezue vs. Mbadugha (1984) 1 ANLR 256, Ugwu vs. Ararume & Ors. (2007) J.S.C. Part 1 p. 88, Prince Obiandu Ohochukwu vs. Boniface Emeregwa & Anor (1999) 5 NWLR Part 602 179, per Pats-Acholonu J.C.A. (as he then was); and Aderemi J.C.A (as he then was); Falae vs. Obasanjo (1999) 3 LRECN 154 at 160 or (1999) 6 NWLR Part 606 283 per Musdapher J.C.A. (as he then was) Aboye vs. Udoh (1999) 3 LRECN 536; Tejuosho vs. Omojowogbe (1988) 7 NWLR Part 559 628; Abari vs. Hose & ors (1999) 3 LRECN 586; Sola vs. Ojo & ors (1999) 1 LRECN 79; Waziri vs. Danboyi (L999) 4 LRECN 1, PDP vs. CPC & Ors in the unreported judgment of the Supreme Court of Nigeria delivered on the 31st October, 2011 in SC/272/2011 and SC/276/2011, in which Nafiu Rabiu vs. The State (1980) 8-11 at 130 at 151, Rosseck vs. A.C.B. Ltd (1993) 8 NWLR Part 312 382 at 498, Krau Thompson Organization vs. NIPSS (2004) 7 NWLR Part 901 44, Fawehinmi vs. Inspector General of Police (2007) 7 NWLR Part 767 606 were referred to.
Counsel, also, placed reliance on Shetima vs. Goni (unreported decision of the Supreme Court of Nigeria delivered on the 31st day of October, 2011 in consolidated appeals SC. 332/333 and SC. 352/2011, Orubu vs. INEC (1988) 5 NWLR (Pt. 94), 3232, Adewunmi vs. Ekiti State (2002) 2 NWLR Part 751 474.
Learned Senior Counsel, again turned to the decisions in P.D.P. vs. C.P.C. & 41 Ors. (supra), Tabik Investment Ltd vs. G.T.B. Plc. (2011) 17 NWLR Part 1276 240 at 257 and Lawal vs. G.B. Ollivant (1972) 3 SC 124 and submitted that where the provision of the Constitution is clear as in section 285 sub-sections (5), (6) and (7), the Court, in interpreting the same should give to it, its plain and ordinary meaning.
Learned Senior Counsel contended that the power to legislate does not reside with the Courts, that legislative powers are exclusively vested in the legislature. He referred to sections 4 and 6 of the 1999 Constitution and the cases of Tanko vs. the State (2009) 4 NWLR Part 1131 430 at 452 C-H, Paul Iyorpuu Unongo vs. Aper Aku & Ors (1983) 11 SC 129 at 147, 175-176 and 183, Prof. Steve Torkuma Ugba & Ors vs. P.D.P. & Ors in the unreported judgment of the Supreme Court dated 14/11/2011 in SC/360/2011, and, stated that it has never been decided by the Supreme Court that computation of 180 days mentioned in section 285 (6) of the Constitution should commence from any other date than the date of filing the Petition.
He submitted that the outer boundaries of the time bar created in section 285 (6) and 285 (7) of the 1999 Constitution (as Amended) used the following terms as demarcating points of the time bars created; Judgment’ as opposed to ‘heard’. The crucial distinction between the two points is that 285(6) of the 1999 Constitution (as Amended) targets the jurisdiction of the tribunal directly while 285 (7) of the 1999 Constitution (as Amended) targets the proceedings alone. ‘Hearing’ is an intervening event while’ judgment is a terminal one. He expressed that the expectation that an appeal should be conducted within 180 days therefore is a reasonable inference.
He contended that the general powers in section 287 (2) of the 1999 Constitution that compelled compliance with Court of Appeal judgments cannot be held to apply without amending section 2S5 (6) of the said Constitution (as Amended) which is a specific provision. Learned Senior Counsel argued that the rights of a successful litigant in an appeal from the decision of an election Tribunal by virtue of section 285 (6) of the Constitution (as Amended) is extinguished where the judgment sought to be enforced falls outside 180 days.
It is the submission of the Learned Senior Counsel that where no doubt exists that the law maker has unambiguously expressed the intention to deprive the citizen of a vested right, the legal presumption that he did not intend to do so will no longer be invoked by Courts. In such instances, notwithstanding the harsh language and effect of the provision which provides to deprive the said rights, the Courts are duty bound to give effect to the intention of the law maker and still dispassionately apply the provisions. He cited the cases of Kalango vs. Governor of Bayelsa State (2009) 1-2 SC Part II p.117 at 131-132 paragraphs 15-25 and at 137-138 paragraphs 20-5, Anisimiwic vs. Foreign Compensation (1969) 2 AC 147 at 170, Nwosu vs. Imo State Environmental Sanitation Authority & Ors. Attorney-General of Bendel State vs. Aideyan (1989) 9 SC127; (1939) 4 NWLR Part 118 p. 646 at 674, Odi vs. Osafile (1985) 1 NSCC 14; in support.
He argued that, a new 180 days is available, does not arise from any provision of the Constitution and in fact amounts to an elongation of the 180 days provided in section 285 (6) of the 1999 Constitution (as Amended) as it has the effect of adding to the number of days provided for therein.
He, therefore, submitted that notwithstanding, whether the decision of the previous tribunal is final, it does not provide the basis for the activation of another 180 days. The only interpretation that will be consistent with section 285 (6) of the 1999 Constitution (as Amended) is rather that, notwithstanding the finality of the decision of any previous panel, any other decision or judgment of any subsequent panel is still required to be delivered within 180 days from the date the petition was filed. This is because, notwithstanding the reference to Judgment in the singular in section 285 (6) of the 1999 Constitution (as Amended) that the term also includes any other additional number of final decisions or judgments that the same tribunal renders. He further referred to the cases of Adisa vs. Oyinwola (2000) 10 NWLR Part 674 p. 116, Attorney-General, Federation vs. Abubakar (2007) 10 NWLR Part 1041 p. 1 at p. 92 paras B-D; p. 99 para E; p. 123 paras. E-G and p. 180 paras. C-E; Magor & St. Melions Rural District Council vs. Newsport Corporation (1951) 2 ALL E.R. 839 at 841; Action Congress vs. INEC (2007) 12 NWLR Part 1048 p. 222 at 314-315 paras. H-B; Ojokolobo vs. Alamu (1987) 3 NWLR 377, Onagoruwa vs. State (1993) 7 NWLR Part 49 at 109; Araka vs. Egbue (2003) 7 SC 75 at 85; and Idongesit Godwin Akpan Udokpo vs. Kenneth Edet Archibong (unreported) Appeal No. CA/C/NAEA/257/11 and further emphasized that the Courts lacked the powers to embark on judicial legislation. Learned Senior Counsel then urged this Court to allow the appeal and dismiss the petition.
With respect to 1st and 2nd Respondents’ Brief of Argument, issue No. 1 was argued separately while issues two and three were argued together.
Regarding issue No. 1; whether it was not right for the lower Tribunal to have assumed jurisdiction to entertain the Petition in view of the express order of the Supreme Court that the Petition be heard on the merit; Learned Senior Counsel for the 1st and 2nd Respondents; Oluwarotimi Akeredolu, SAN; submitted that the order of the Supreme Court remitting this petition to the Tribunal for hearing on the merits is binding on the Tribunal as well as the parties and the same must be obeyed.
He stressed that the only way the Appellant could have denuded the order or its effect was to appeal against same, if he could possibly do so, and, get the Supreme Court to vacate the order. He expressed that the duty of the Tribunal is to obey the command of section 287 (1) of the 1999 Constitution.
He contended that section 287 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) enjoins in mandatory terms all authorities, persons and courts with subordinate jurisdiction to that of the Supreme Court to, not only, obey but, enforce decisions of the Supreme Court in any part of the Federation, Benue State and the lower Tribunal inclusive. He cited the cases of Atolagbe & 1 Or vs. Awuni & 2 Ors. (1997) 8 NWLR Part 522 536, Ndili vs. Akinsumade & 2 Ors. (2000) 8 NWLR Part 668 293 at 345-347 paras. G-A; Dalhatu vs. Turaki (2003) 15 NWLR Part 843 310 at 336; Chief Great Ovedje Ogboru vs. President Court of Appeal & Anor (2007) ALL FWLR Part 369 1221 at 1231; Ogboru vs. Iboru (2005) 13 NWLR Part 942 319 at 429-430, paras H-B; Ogunsola vs. Nicon (1998) 11 NWLR Part 575 683 at 692 D-E and submitted that in the absence of section 287 (2) of the Constitution, it is the law that when Appeal Court remits a case to the trial or lower Court for a retrial or re-hearing, the appellate Court normally gives a directive order as to how the re-trial or rehearing is to be conducted. In this petition, the directive order of the Supreme Court is that the petition be heard on the merit. The Tribunal had a duty not to disobey the order.
He also submitted that since the Supreme Court ordered that this Petition be heard on the merits, any attempt to circumvent or sidetrack that order would, not only amount to a direct assault on the power, and, wisdom of that Court, it would, also, amount to judicial insubordination and impertinence.
He further submitted that the lower Tribunal was right to have dismissed the Appellant’s application calling upon her to disobey the order of the Supreme Court by not hearing the petition on the merits. He, therefore, urged this Court to resolve this issue in favour of the 1st and 2nd Respondents.
Dealing with issues Nos. 2 and 3, the learned Senior Counsel stressed that the panacea to the issue of 180 days rests squarely on the interpretation and application of section 285 (6), 285 (7) and other relevant provisions of the 1999 Constitution of Nigeria (as Amended) and decisions of the Court of Appeal and Supreme Court. He cited the cases of Shelim vs. Gobang (2009) 12 NWLR Part 1156 page 435 at 453 paras B-E; Tinubu vs. IMB Securities Plc (2001) FWLR Part 77 1003 at 1023 A-B; in support.
Counsel stressed that section 285 (6) of the 1999 Constitution (as Amended) should not be interpreted in isolation so as to render section 285 (7) of same Constitution moribund. He stated that whereas section 285 (6) stipulates 180 days from the date of filing a petition for an election Tribunal to deliver its judgment, section 285 (7) gives an aggrieved party a right of appeal against such a decision. An appeal Court in hearing such an appeal is empowered to affirm or reverse the decision of the Tribunal or Court of Appeal (if appeal right extends to the Supreme Court) and make any consequential order(s). He then posed the questions, “Assuming, the Tribunal gives its judgment on the 180th day and the aggrieved party exercises his/its right of appeal to the Court of Appeal or even up to the Supreme Court, if the Court of Appeal allows the appeal, would the successful party get a hollow judgment in his favour?
Will the Appeal Court in allowing the Petitioner’s appeal become so helpless as to give a hollow and ineffectual judgment in favour of the appellants? Could that have been the intention of the legislature in enacting sections 285(6) and 285 (7)? He answered the same in the negative by relying on the cases of Unongo vs. Aku (1983) 2 SCNLR 332, (1983) 5 NCLR 262 (1983) 11 SC 129 at page 195, Prince Obiandu Ohochukwu vs. Boniface Emeregwa & Anor (supra), INEC & Anor vs. Musa & 4 Ors (2003) 3 NWLR Part 806 72 at 201 paras. A-B. The learned Senior Counsel emphasised that section 285(5) of the 1999 Constitution (as amended) should not be interpreted in a manner as to make it superior to section 285(7) of the same Constitution or vice versa. He maintained that both sections are equal in strength and constitutionality, therefore, they must be read together so as to ascertain the intendment of the makers of the Constitution.
He further stressed that it is not correct that it is in every situation where the wordings of a statute are plain, clear and unambiguous, that they are given their literal and grammatical interpretation due to the exceptions to that rule. He referred to the cases of Attorney-General of Lagos State vs. Eko Hotels Ltd & 1 Ors (2006) 18 NWLR Part 1011 378 at 458 paras A-D; Peoples Democratic Party & 1 Or vs. Independent National Electoral Commission & 4 Ors (1999) 11 NWLR Part 626 200 at 261 paras. B-C; Ojukwu vs. Obasanjo (2004) ALL FWLR Part 222 1666 at 1701-1702; Attorney-General Abia State & 35 Ors vs. Attorney-General of the Federation (2003) 4 NWLR Part 809 124 at 230 paras C-E; A-G Ondo State vs. A-G Federation (2001) FWLR Part 79) 1431 at 1486 paras A-B. Learned Senior Counsel equally placed reliance on the decision in Savannah Bank Nig Ltd vs. Ajilo (2001) FWLR Part 75 513 at 543-544 where the Supreme Court per Uwais, CJN; clearly expressed that where the Constitution bestows a right on its citizen and does not expressly take away or provide how the right should be lost or forfeited in the circumstance, we have the duty and indeed the obligation to ensure that the guaranteed right is not lost or denied the citizen by construction that is narrow and not purposive. The Supreme Court went further to opine that the established practice of the Court is; where the constitutional right in particular, and indeed any right in general, of a citizen is threatened or violated, it is for the Court to be creative in its decision in order to ensure that it preserves and protects the right by proving remedy for the citizen. The case of Unilag Dev. Co. Ltd vs. Adeshigbin (2001) FWLR Part 42 114 at 151 paras F-G was, also, adhered to. He further persuaded this Court to embrace the Golden rule of interpretation in interpreting section 285(6) of the 1999 Constitution (as amended).
The attention of this Court was further drawn to the Supreme Court decision in Appeals Nos. SC.332/2011; SC. 333/2011 and SC. 352/2011- Between Alhaji Kashim Shettima & anor vs. Alhaji Mohammed Goni & 4 ors delivered on the 31st October, 2011 cited by the Appellant’s Senior Counsel, in which it was asserted that inferior Courts are bound by the decisions of Superior Courts where the facts, issues and circumstances are the same. He, then, distinguished the present case from the Shettima’s case, and, further said that the Supreme Court’s comment in Shettima’s case is an obiter dictum, as it did not arise from any of the grounds of appeal before it. Learned Senior Counsel, then, invoked the decisions in Panalpina World Transport Nig. Ltd vs. Glenyork Nig. Ltd (2009) ALL FWLR Part 455 1617 at 1806 paras D-E, Odugbo vs. Abu (2001) 14 NWLR Part 732 45 and insisted that the Supreme Court’s decision in Alhaji Kashim Shettima and Alhaji Mohammed Goni is not binding on this Court.
He, however, made reference to the decisions in Indongesit Godwin Akpan Udokpo vs. Keneth Edet Archibong & 2 ors in Appeal No. CA/C/NAEA/257/11 delivered on the 17th November, 2011, per Tur, JCA; and Ndukwe Anyanwu, JCA; which he asserted was decided on section 285(6) of the 1999 Constitution (as amended). He further referred to Unongo vs. Aku (supra). The learned Senior Counsel further referred to the cases of Bello vs. Attorney-General, Oyo State (1986) 12 SC 1, (1986) 5 NWLR Part 45 p. 828, (1986) 2 NSCC 1257 at 1267, 1270, 1276, 284-1285, 1290, 1293, 1295, 1297, 1298, 1299, 1300 and 1301 and Sambo vs. Aliero (2010) ALL FWLR Part 541 p. 1569 at 1590 paras C-F where Adeisun vs. Fashogbon (2008) 17 NWLR Part 1115 L49 at 190 and H.D.P. vs. INEC (2009) S NWLR Part 1143 297 at pages 324 and 330; were referred to, and, in which it was stated that ” besides the doctrine of fair hearing as encapsulated in section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, the Constitution has provided for the right of the appellants to approach the courts and on their being heard over their grief and establishing their case, will obtain the appropriate reliefs against any person, government or authority. This right must not be aborted midstream by peremptorily terminating their cases. Declining jurisdiction over the instant appeal appeals on the basis of the reason provided by the 1st and 2nd Respondents is to deny the Petitioners their constitutionally guaranteed right of having their legitimate complaints heard and determined one way or the other…No Court properly so called offers itself for such a negative purpose. The right of the litigant to ventilate his grief including his right of appeal against a judgment given against him has always been jealously guarded by the Courts. The Courts in such circumstances do not allow their jurisdictions to be manipulated.”
Further relying on the cases of Paul Cardoso vs. John Bankole Daniel & Ors (1986) 2 NWLR Part 201 at 45, Fadairo vs. Gbadebo (1973) 1 L.R.N. 97 at 108 and Babatunde vs. P.A.S. & T.A. Ltd (2007) ALL FWLR Part, the Learned Senior Counsel explicated that the order made by the Supreme Court that the petition be heard on the merits is the same as ordering a retrial before a new Panel. The Supreme Court stated in Babatunde’s case (supra), “that it was wrong of the trial Court to say that the earlier part-heard trials were part of the records before the court. Hearing on the merits, in this instance, means hearing it de novo. He, therefore, urged that this appeal be dismissed with punitive costs. Finally, Counsel submitted that the hearing of the petition on the merits is within the jurisdiction of the lower Tribunal, the matter having been ordered by the Supreme Court to be heard on the merits.
This Court further took note of the submissions presented in the Appellant’s Reply Brief on points of law. The cases referred to are similar to the ones referred to in the Appellant’s Brief of Argument. They are as follows: Cocoa Merchants Ltd vs. Commodities Sales Ltd (1993) 1 NWLR Part 271 p. 627 at 636, Unongo vs. Aku (supra) and Udokpo vs. Archibong (supra) in support.
It needs to be mentioned that the 3rd and 4th Appellants did not file any Brief of Argument in this appeal, and, as such, they did not have right of audience at the hearing of the appeal.
I have meticulously scrutinised the issues excogitated by the Appellant and the 1st and 2nd Respondents in their respective Brief of Argument, and I feel it appropriate to consider together, issue No. 3 framed by the Appellant and issue No. 1 distilled by the 1st and 2nd Respondents.
For proper comprehension and dissection of the provisions of section 285 sub-section (6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and determination of the issues sifted herein, it is desirable that they be approached from three different perspectives.
The first approach is by drawing an analogy between the said section 285(6) and section 294(1) of the 1999 Constitution (as amended) which prescribed the period within which the Courts created by the said Constitution of 1999, shall deliver their judgments in the matters or suits before them, and, which I am entitled to take judicial notice of, by virtue of section 122 of the Evidence Act, 2011; secondly, by considering the said section 285(6) vis-a-vis the provisions of section 285(7) that granted the appellate Courts a period of sixty days to hear and determine appeals emanating from the decision or judgment of the Tribunal and the constitutionally guaranteed right of appeal of the party who is dissatisfied with the decision or judgment of the Tribunal and, thirdly, by identifying the implications of the provisions of section 287(1) of the said Constitution which commanded every Court, authority or person to enforce the decision of the Supreme Court.
Now, considering the first approach and, for an indepth appreciation of the wording of section 285(6); by drawing an analogy between the said section 285(5) and section 294(1) of the Constitution of the Federal Republic of Nigeria (as amended) which may have a burning effect of exposing the intendment of the Law makers and aid in ascertaining the purports of the two sections, it is imperative and, of immense necessity, to reproduce hereunder, the provisions of the said two sections thus:
“285 (6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the Petition”.
“294 (1). Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”.
There is clear manifestation in sections 285(5) and 294(1) respectively of the 1999 Constitution of Nigeria (as amended) as to what the election Tribunal and every Court created by the said Constitution were mandated to carry out by the respective sections.
It is trite that the object of all interpretation is to discover the intention of the law makers which can only be ascertained from the words used in the section. Once the meaning is clear, the Courts are to give effect to it. The Courts are not to defeat the plain meaning of an enactment by importing into the section, the words that were never contemplated by the law makers. It was held in Nokes vs. Doncaster Amalgamated Collieries, Ltd (1940) A.C. 1014 at 1022 that where there are two choices of interpretation, the Courts must avoid the choice which would reduce the legislation to futility and should rather accept the other choice on the principle that the legislature would legislate only for purpose of bringing about an effective result. It is further of great necessity to ascertain the background leading to enactment of section 285 sub-section (6) of the 1999 Constitution of the Federal Republic of Nigeria. It is a notorious fact that prior to the enactment of section 285 subsection (6) of the 1999 Constitution (as Amended), some election Petitions and election appeals lingered and dragged on to about three years due to some unending applications and deliberate attempts by the parties and their Counsel to delay hearing in the election proceedings and appeals arising therefrom and punctual delivery of judgments thereon by the Courts. Some, embarrassingly, were prolonged till 2011. It was against this background and agitation by Nigerians for amendment of the Constitution to prescribe a time limit within which hearing in an election petition could be concluded and judgment delivered therein, that, there were introduced into the Constitution, this section 285 (6) and other sections on the issue of time limit within which judgments in election petition proceedings shall be delivered. The period within which an election Tribunal shall deliver its judgment has been clearly and unambiguously defined unlike what was obtainable prior to the amendment of the Constitution 1999 and the Electoral Act. What the amendment secured was removing delay on the part of the Tribunal to hear and deliver judgment in any given election petition. It categorically defined the period within which the Election Tribunal shall deliver its judgment. So long as the Petition is pending before the Tribunal, and is not appealed against on any point that will state is being proceeded with at the Tribunal, it must be heard and judgment delivered thereupon by the Tribunal within 180 days from the date it was filed. As long as the Petition is pending thereat and has not left the adjudicative precincts of the Tribunal, the Tribunal must complete its adjudicative process thereon and deliver its judgment within 180 days.
Microscopic analysis of the wording of section 285(6) reveals a mandatory obligation placed on the election Tribunal to deliver its judgment within 180 days which shall be computed from the date of filing of the Petition. It is quite explicit in the said Constitution, that no mention whatsoever was made about the lifespan of the Petition unlike what obtains in the High Court (Civil Procedure) Rules of each State of the Federation, wherein the validity or lifespan of the Writ of Summons or any other originating process issued thereunder, were specifically stated to be a period of either 6 months or 12 months from the date of issuance. It is extravagantly clear that if the Legislators had intended an election Petition’s lifespan to be 6 months or the 180 days stated therein, whether, heard or not, it would have expressly, and, distinctly stated so in the said Constitution. Therefore, since there is complete silence on the lifespan of a petition in the said Constitution, it would amount to importing into the Constitution, words the Legislators never envisaged nor contemplated, if the 180 days mentioned therein, were construed to mean the inextensible lifespan of a petition. It is instructive to note as I earlier demonstrated, that the unmistakable command given in section 285 (6) to election Tribunals is for them to deliver their judgments within 180 days. The emphasis in the said section is only on “delivery of judgment”, which must be accomplished within 180 days from the date of filing the petition. Also, the emphasis in section 294(1) of the Constitution with regard to regular courts established under the Constitution is on ‘delivery of their decisions not later than 90 days which are computed from the date of conclusion of evidence and final addresses of Counsel.
It is quite distinct in section 285(6) that the provision applies to only election Tribunals, it merely defined the period within which election Tribunals shall deliver their judgments in respect of election petitions pending before them and being heard by them without any interruption or intervening circumstances, such as appeals, just like the Courts established by the Constitution are commanded to deliver their decisions in writing not later than 90 days after the conclusion of evidence and final addresses. The said period of 180 days, undoubtedly applies to only election Tribunals. There is nothing suggestive of any other interpretation in the wording of the said section that the said period of 180 days given to the Tribunals is inclusive of the respective 60 days given to the Court of Appeal to hear appeals from the Tribunals and the Supreme Court in respect of appeals on gubernatorial and Presidential election petitions. Just like in the wording of section 294(1) of the 1999 Constitution (as amended), there is no restriction in section 285(6) of the said 1999 Constitution (as amended) precluding an appellate Court from ordering a retrial where the order is found most appropriate or excluding any retrial that may be ordered by appellate courts or stating the impermissibility of such retrial. The section simply commanded the Tribunal to deliver it’s own judgment within 180 days from the date the petition was filed, just like the manner in which section 294(1) commanded the regular courts established by the said Constitution to deliver their judgments not later than 90 days from the date of conclusion of evidence and final addresses of Counsel.
It is absolutely necessary for this Court to ascertain the connotation of the word “within” used in limiting the 180 days period. The word, “within” is described in Word Web as “not more or further than; “in the limits of”. Then in Oxford Advance Learner’s Dictionary, it is stated to mean” before a particular period of time has passed; during a particular period of time; not further than a particular distance from something; inside the range or limits of something; or inside something.” What all these dictate or portray is that the judgment of the election Tribunal must be delivered either before the expiration of the 180 days or on the last day of the 180 days i.e. on the 180th day from the date of filing the petition. It is glaringly obvious that the 180 days prescribed by section 285(6) relates to only the proceedings before the Tribunal. Another obvious point that worths mentioning is; all that the Tribunal is expected to achieve with regard to an election petition is the conclusion of its duty in the petition within the 180 days, meaning, therefore, that if before the expiration of the 180 days, the Tribunal made an order that would have the effect of terminating the proceedings in the petition or dismissing it for one reason or the other without actually conducting hearing in the election proceedings, the Tribunal has, by every connotation, complied with the period of 180 days prescribed. It is similar to the 90 days period given to the High Courts either at the Federal or State level, as part of the Courts created by the said Constitution of 1999, to deliver their judgments in any matter before them from the date of conclusion of evidence or final addresses of Counsel.
It is imperative to note that an appellate court does not conduct trials. It reviews documents /papers, exhibits and record of proceedings from the trial Court or Tribunal i.e., the record of appeal. After the record had been reviewed, it is also important to note that Court of Appeal or Supreme Court Justices have three main choices when making a decision, that is to say;
iii. Remand the case, (send it back to the trial Court for further action and possible retrial).
Judgment is defined as the Court’s final determination of the rights and obligations of the parties in a case. It includes an equitable decree and any order from which an appeal lies. In legal parlance, it refers to a final finding, statement, or ruling based on a considered weighing of evidence.
Further, judgment is defined in law to include the determination by a Court of competent jurisdiction on matters submitted to it or the act of determining, as in Courts of law, what is conformable to law and justice, also, the determination, decision or sentence of a Court or of a judge, deliver judgment i.e. its opinion. In Merrian Webster dictionary, judgment is also defined as a formal decision by a Court. Oxford Advanced Learner’s Dictionary defined it as including, the decision of a Court or a judge.
It is stark in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that it did not, and, has not, under any guise or pretence, rendered futile or null and void any decision of the Court of Appeal or the Supreme Court arising from election appeals delivered by them outside the 180 days period prescribed by section 285 (6) within which election Tribunal only, shall deliver its judgment, nor did it stipulate that any decision of the Court of Appeal or the Supreme Court arising from election Petition shall be null and void if delivered outside the 180 days period prescribed for the Tribunal to deliver its own judgment. Just like under the 1979 Constitution of the Federal Republic of Nigeria the Constitution rendered null and void any judgment delivered by any of the Courts created by the Constitution outside the mandatory 90 days (3 months) period. What the Constitution clearly prescribed in section 285 sub-section (7) of the said Constitution (as amended) is that;
“An appeal from a decision of an election Tribunal or Court shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal.”
Further, when such approach introduced in the 1979 Constitution proved much hardship, the lawmakers then deemed it necessary to amend the Constitutional provisions to what is now, section 294 (5) of the 1999 Constitution (as Amended) which reads;
“294 (5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of sub-section (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof”.
It became necessary to reproduce the above-stated provisions to establish the readiness of the lawmakers to expressly state when they intend to invalidate or void a proceeding or decision/judgment of a Court due to failure to deliver judgment within the period stipulated in the Constitution.
Already the Tribunal has been given 180 days within which to deliver it’s judgment. It follows, therefore, that if the Tribunal delivered it’s judgment on the very last day, the 180 days is to expire or elapse, then, the period of 60 days allotted to the Court of Appeal by section 285(7) of the Constitution aforestated, to hear and deliver it’s judgment in the appeal arising from that judgment of the election Tribunal delivered on the 180th day, shall commence from that last day. It is clear that the appellate Court’s period of 60 days to hear and dispose of the election appeal will start to run only from the date the Tribunal delivered it’s judgment, and not otherwise. By this scenario, it is explicit that the 180 days prescribed by the Constitution within which the Tribunal shall deliver its judgment in the petition do not comprise the 60 days respectively allocated to the Appellate Courts. The two sets of period are quite distinctive and do not run concurrently or conjunctively. The Appeal Court’s period would start counting from the date the Tribunal discharged its obligation by delivering a decision or judgment that would have the effect of bringing to an end before the Tribunal, every proceeding in the petition.
It is obvious that the 60 days period given to the Court of Appeal do not form part of the 180 days granted to the Tribunal to deliver it’s judgment, otherwise, the jurisdictional competence of the Court of Appeal specially entrenched in section 246(1)(b) (ii) and (iii) of the 1999 Constitution (as amended) to hear appeals from the decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal on any question as to whether-(ii) any person has been validly elected to the office of Governor or Deputy Governor, or (iii) the term of office of any person has ceased or the seat of any such person has become vacant; ought not to have been inserted therein and would have, from the inception, been scuttled. I completely resist the temptation to believing that the Law makers on the one hand guaranteed a party’s right of appeal against any decision of the Election Tribunal in an election petition he was distraught with, and, on the other hand robbed the same party of the right to the result or fruit of the appeal or the hallowed decision of the Court of Appeal or the Supreme Court, the Final Court of the land in respect of the same election petition.
If I may ask; is it possible for the Constitution to contradict itself, approbate and reprobate at the same time, and render futile or invalid the appellate Courts i.e. Court of Appeal and the Supreme Court’s functions/decisions in relation to election appeals heard by them within the respective 60 days given to them by the same Constitution? What then was the essence of enacting the provisions relating to appeals in election matters if the eventual decisions of the appellate Courts in that respect were supposedly ousted by the Constitution or that whatever order they might have handed down would have been ineffectual? I must say that I find myself unable to accept that proposition as the intendment of the law makers. What they strictly did was to regulate the period within which judgment at each stratum of court created by the Constitution is to be delivered but not the lifespan of the originating process that would set the machinery in motion.
It is an established fact and, a matter of common knowledge which this Court is bound to take judicial notice of, that where a High Court delivered its decision in an ordinary suit within the first 90 days it had under the Constitution to deliver it’s judgment, and the decision is appealed against to the Court of Appeal and even up to the Supreme Court with the result that the matter or case involved is remitted to the High Court for retrial or trial on the merits, and, retrial then commenced before the same High Court that previously heard and delivered its judgment in it, it has never been contended nor has it been enunciated in any case that, the trial Court, having previously delivered its first decision or judgment in the matter within 90 days from the date of final addresses of Counsel, no longer possesses the authority in law to hear and the determine the same case the Court of Appeal or the Supreme Court, as the case may be, had remanded to it for retrial; or that the 90 days granted to it under the Constitution to deliver it’s judgment in respect of that suit had expired. There has never been any challenge against the said period of 90 days granted to the regular Courts. Furthermore, it has never been interpreted that the 90 days period given to the High Courts is only once in a matter as is being contended hereat. The said 90 days period has never been interpreted to include the period given to the Appellate Courts to hear and deliver their judgments in appeals arising therefrom.
In Unongo vs. Aku, Uwais, JSC (as he then was) opined thus;
“I do not see how a reasonable person will have the impression that a party has a fair hearing where his petition which has been instituted within the time limit stipulated by the Electoral Act cannot be concluded because the time available to the court for the petition to be heard will not be sufficient for either or both parties to the petition to present their cases or will not allow the court at the close of the parties’ cases sufficient time to deliver its judgment.
There can be no doubt that the provisions of sections 129 subsection (3) and 140 subsection (2) of the Electoral Act 1982 neither allow a petitioner or respondent reasonable time to have fair hearing, nor give the court the maximum period of 3 months to deliver its judgment after hearing a petition as envisaged by sections 33 subsection (1) and 258 subsection (1) of the Constitution, respectively”.
Further, section 287 of the 1999 Constitution provides as follows:
“1. The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Court of Appeal.
The aforestated section of the Constitution of 1999 (as Amended) is clear. It asserted and affirmed the supremacy of the decisions of the Supreme Court, commanding all and sundry, that is to say; all authorities, and persons and Courts with sub-ordinate jurisdiction to that of the Supreme Court to enforce the decisions of the Supreme Court.
Certainly, Election Tribunal is sub-ordinate to the Supreme Court and must, without any pretence, obey and enforce the decisions of the Supreme Court.
As I noted earlier, there is no specific provision of the Constitution ousting the decisions of the Court of Appeal and the Supreme Court the moment the 180 days granted to the election Tribunal to deliver its judgment in the proceedings before it had elapsed. One cannot then, in the absence of such provision read into the Constitution what was never intended by its makers. This would, obviously lead to mangled Justice and denying the citizens of this Country their constitutionally entrenched rights. It is on this basis I find no merit in this appeal and I hereby dismiss the same. I make no order as to costs.
M. B. DONGBAN – MENSEM: I Agree.
REGINA OBIAGELI NWODO, J.C.A.: I had the opportunity to read before now the lead judgment of my learned brother, ORJI ABADUA J.C.A. I agree with the reasoning contained therein and the conclusion arrived thereat dismissing the appeal.
The language of Section 285(6) of the Constitution is specific on time within which the Tribunal must give a decision. The directive on the Election Tribunal is to deliver judgment within 180 days whether in respect of an interlocutory decision or final judgment. The 180 days is to run from the date of filing of petition. Therefore whether the hearing is concluded or not before the Tribunal, once the 180 days lapses the period for delivery of judgment cannot be extended. However when the decision arising from an interlocutory application goes to the Appellate Court, and the Court of Appeal or Supreme Court orders a retrial, the 180 days will commence from the date of the order. It cannot be otherwise when there is a community reading of the Section 285 of the Constitution. It must be read as a whole and interpreted broadly.
For the above and the fuller reasoning in the lead judgment I also dismiss this appeal.
Chief E.K. Ashiekaa with J.S.I. Anchase Esq, Musa Tenden Esq., S.A. Udaja Esq., T.T. Igba Esq, N.L. Ikyaagba (Mrs.) and F.T. Kusugh Esq., – For Appellant
S.A. Okumah Esq., with S.A. Ngavan Esq., M.I. Atagha Esq., J.I. Abasag Esq., J.K. Mrida Esq., J.T. Agor Esq., C.I. Iornogu Esq., A.I. Wombo Esq., T.R. Tombowua Esq., M.T. Assoh Esq., J.A. Gbagir Esq., E.Z. Agbakor Esq., T.M. Agbor Esq. and P.S. Agbaagu Esq
Chief S. Akuma, SAN, with Chief John J.A. Ochoga, C.A. Gbele Esq., G.E. Ukaegbu Esq., P.N. Jooji (Mrs.) and C.T. Mue Esq.
A.C. Uchin (Mrs.) with V.M. Tsesande Esq., and S.I. David (Miss) – For Respondent