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INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS.
IN THE COURT OF APPEAL OF NIGERIA
ON THURSDAY, THE 17TH DAY OF NOVEMBER, 2011
BEFORE THEIR LORDSHIPS
CLARA BATA OGUNBIYI, JCA
MASSOUD ABDULRAHMAN OREDOLA, JCA
PHILOMENA MBUA EKPE, JCA
NUHU GIDADO – Appellants
U.B.D arazo Esq. – For Appellant
Kingsley Ossuh Esq.,
Yakubu Galadima Esq. – For Respondent
ELECTION PETITION – COMPUTATION OF TIME:- Computation of time relating to an appeal on an election petition matter or judgment thereon – Application of Section 285(7) of the Constitution – Whether mandatory and no court has the power to extend the time provided in that section by any liberal interpretation
ELECTION PETITION – COMPUTATION OF TIME – RULES OF COURT:- Nature of rules of court as subsidiary legislation far below constitutional provisions which are consequently supreme – Rules of court which are contrary to Section 285(5), (6) and (7) of the election – Whether can apply to election matters or be declared valid
CONSTITUTIONAL LAW – S.285 (7) OF THE 1999 CONSTITUTION:- Interpretation of the provision of Section 285(7) of the constitution – Appeal from a decision of an election tribunal – Limitation of period during which same shall be heard – Duty of court thereto
PHILOMENA MBUA EKPE J.C.A. (Delivering the Leading Judgment):
The appeal came up on the 19th day of October, 2011 for learned counsel to address this Court on the issue of competence of this appeal in view of section 285(7) of the Nigerian Constitution of 1999 (as amended). Learned Counsel for the Appellant, U. B. Darazo conceded that the judgment appealed against was delivered on the 11th day of August, 2011. That the notice of appeal was filed on the 29th day of August, 2011 which was within the time frame allowed in law to file such an appeal. That the record of appeal was compiled and transmitted to this Court on the 12th day of September, 2011 and the Appellant was served with the said record on the 10th day of September, 2011.
Learned Counsel further informed the Court that the Appellant’s brief of argument was filed on the 19th day of September 2011. Learned Counsel then submitted that by virtue of Section 285(7) of the Nigerian Constitution 1999 (as amended), this Appeal shall be heard and disposed of within 60 days of the date of the judgment being appealed against. Counsel proceeded and formulated a single issue for determination to wit.
“Whether having regard to Section 285(7), Section 294(1), Section 4(8) and section 36 (1) of the 1999 Constitution (as Amended) the jurisdiction of this Court can be ousted and this appeal abated.” That looking at the sections of the Constitution referred to above, the said Section 285(7) in as much as it seeks to deny parties their fundamental right to fair hearing under the Constitution, by putting a time frame of limitation, should be declared null and void. He then cited the decided case of Unongo vs Aku (1983) 23 NSCC 563 – 591 at 569 as an authority on the point being made. He contended that in the cited case, an Electoral Act was placed pari pasu with the Constitution and the Act was declared null and void. He then urged the court to take cognisance of Section 4(8) of the 1999 Constitution which deals with the powers of the National Assembly to make laws in its consideration and construction of Section 285(7) of the 1999 Constitution.
In his reply, Mahmud Uthman Esq., Learned Counsel for the 1st and 2nd Respondents clearly stated that Learned Counsel for the Appellant had failed to provide sufficient reasons why this Court should not be bound by Section 285(7) of the 1999 Constitution as amended. That the authority of Unongo (supra) cited by Learned Appellant’s Counsel is against the Appellant himself because it was the provision of the Electoral Act, 1982 that was set aside and not constitutional provisions per se. That also important is Section 4(8) and 36(1) of the Nigeria Constitution (As Amended.) Counsel further submitted that even if there is a conflict, this court cannot declare those provisions null and void. He then concluded that what the Appellant’s Counsel is asking for is ultra vires the jurisdiction of this Court. He then urged the Court to decline jurisdiction and dismiss the appeal as having lapsed.
In the same vein, Learned Counsel for the 3rd Respondent, Kingsley Ossuh Esq. submitted that there is indeed no conflict between sections 294(1) and Section 285(7) of the Nigeria Constitution and that Section 285(7) is not an ouster clause but a clear and unambiguous provision which simply sets a time frame for the determination of election appeals. Counsel again submitted that Section 285 (7) does not remove the power of this court to hear and determine election appeals within the time frame as allowed by law. That on the question of fair hearing, Section 285(7) of the Constitution does not deprive the Appellant of the right to be heard. He reiterated the fact that the Appellant has according to records actually exercised this right by filing this appeal. He again emphasized the fact that the time frame had expired and then urged the court to declare the authority of Unongo (supra) relied upon by the appellant as in applicable. He urged us to dismiss the appeal.
Learned Counsel for the 4th and 5th Respondents Hassan T. Fajimite Esq in his response, stated that counsel for the Appellant misconceived Section 285(7) of the Constitution (as amended). He aligned himself with the submission of counsel for the 1st to 3rd Respondents. He submitted that with regards to Section 294(1) of the Constitution, it is clear that that provision is a general provision for time within which judgments are to be delivered. That Section 285(7) unlike Section 294(1) is specific in giving a time frame for hearing and determining election matters on appeal. That the general provision does not detract from a specific provision and that a specific provision will always prevail.
Counsel further stated that election matters are sui generis, and time remains of essence at every stage including the determination of appeal matters. That reference to section 36(1) is unnecessary. He further contended that Section 36 (1) of the 1999 Constitution also makes provision for fair hearing within a reasonable time frame as provided in section 285(7). He then contended that the Court is bound by that provision and has no discretion in the matter. He cited the case of Ogochukwu Vs Emeragwa (1999) 4 LRECN 214 at 218 also reported in (1999) 5 NWLR (Pt 608) 179 at 183. He finally submitted that this appeal having not been heard and determined within the time frame stipulated by law, that the same has lapsed. It is now incompetent and this Court no longer has the jurisdiction to determine it.
I have gone over the provision of Section 285(7) of the 1999 Constitution (as amended) with a fine tooth comb, and I have since found that the words used therein are clear, unambiguous, quite simple and straight forward. For emphasis, I shall reproduce Section 285(7) of the constitution to give a clearer picture of the discourse canvassed by learned counsel for the parties as reviewed above.
“An Appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal.”
From the foregoing, it is my view that the words used herein are not subject to any form of rules of interpretation and are to be given their natural meaning. In other words, the natural meaning of the words used is that appeals from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and determined within sixty (60) days from the date of the judgment/decision appealed against.
In the recent case of PEOPLE DEMOCRATIC PARTY (PDP) AND CONGRESS FOR PROGRESSIVE CHANGE (CPC) and 31 Ors Unreported SC.272/2011 and SC.276/2011 of 31st October 2011, the Supreme Court was quite emphatic on the interpretation and use of the word “shall” in Section 285(7) of the 1999 Constitution. In the words of Onnoghen JSC, he stated thus:
“It is clear that by the use of the word “shall” in Section 285(7) of the 1999 Constitution the framers of the Constitution meant to make and did make the provision mandatory as it admits of no discretion whatsoever. It means that the sixty (60) days allotted in Section 285(7) of the 1999 Constitution (as amended) cannot be extended even for one second as the decision of the appellate Court must be rendered “within” sixty (60) days of the delivery of the judgment on appeal. The Learned jurist in his judgment went further to state that the sixty (60) days allotted in Section 285(7) of the 1999 Constitution includes Saturday, Sundays and public holidays, and court vacations since if it was the intention of the framers of the Constitution to exclude those days, they would have so stated in clear and unambiguous terms. The Supreme Court further opined that the only exception may be where the last day of the sixty (60) days happens to fall on a Sunday or a public holiday then the action contemplated in Section 285(7) of the 1999 Constitution (as amended) can be completed on the next working day as indeed settled by a plethora of cases.
Learned counsel for the Appellant, U.B. Darazo Esq. urged the court to declare null and void, the provision of Section 285(7) of the Constitution as it seeks to deny parties their fundamental right to fair hearing by putting a time limitation on properly filed appeal matters. He also cited the case of Unongo Vs Aku (Supra) where an electoral act was declared null and void having been placed pari pasz with the Constitution.
I have painstakingly read that case and I have discovered that the Court in that case declared certain provisions of the Electoral Act null and void to the extent of their inconsistency with the Constitution. Needless to say, that it was not the sections of the Constitution that were declared null and void as this Court or any other Court has no power to oust any section of the Nigerian Constitution which is the groundnorm and holds sway over all other laws.
It will be recalled that the judgment sought to appeal against was delivered on the 11th day of August 20ll and the law by virtue of Section 285(7) has allowed sixty days (60) from the 11th of August for the Appeal to be determined and needless to state that that date has since expired. This appeal cannot therefore remain valid indefinitely as that would be tantamount to defeating the purpose of the provision which is clearly aimed at curtailing the unnecessary delays arising from election matters to the embarrassment of both members of the legal profession, the judiciary and the nation in general.
I am quite convinced that the intention of the framers is to stem the practice of these unnecessary delays in election matters and it is the duty of everyone to ensure compliance with the law by acting within the allotted time frame. It is indeed a sacrifice that we must all collectively make in the interest of our nascent democracy. I must also hasten to add that rules of court have the status of subsidiary legislation far below constitutional provisions which are consequently supreme. No rules of Court which are contrary to Section 285(5), (6) and (7) can apply to election matters or be declared valid.
The Sections enact thus:
“1. An election petition shall be filed within twenty-one (21) days after the date of the declaration of result of the elections;
Apart from the provision of section 285(7) of the Constitution Learned Appellant’s counsel also referred to other sections of the Constitution in order to buttress his argument. I shall however reproduce those sections of the Constitution to further elucidate on Counsel’s arguments.
The Sections mentioned above enact thus:
Section 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 alt parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
Section 4(8) Save as otherwise provided by this constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.
Section 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.
It is pertinent to state that Section 294(1) of the Constitution pertains to general matters either civil or criminal in our various Courts. Counsel must not lose sight of the fact that the appeal before us is an election appeal and being sui generis does not fall under the general provision of Section 294(1) of the Constitution where decisions are to be delivered within ninety (90) days after the conclusion of evidence and final addresses.
Again Section 4(8) precludes the National Assembly from enacting any law which seeks to oust the jurisdiction of a Court of Law or judicial tribunal. Even if there is any conflict which I have failed to see, this court still is not seized of any powers to declare any of the constitutional provisions null and void. The appellant is merely asking for powers that are ultra vires the jurisdiction of this Court.
Section 36(1) as referred to by counsel is also inapplicable. Learned Counsel has not been estopped from filing his appeal. The only mischief involved is that the appeal is incapable of being heard and determined within the time frame allowed by the Constitution. He can only be granted fair hearing if he comes within the ambit of the Laws. Any contrary interpretation in that vein would greatly undermine the purport and intention of Section 285(7) of the Nigerian Constitution and would in future cause absurdity and confusion which the Constitution would rather avoid.
I hold the considered view that in terms of computation of time relating to an appeal on an election petition matter or judgment thereon, Section 285(7) of the Constitution must apply and no court has the power to extend the time provided in that section by any liberal interpretation .
In the circumstance, I find myself unable to accept or rise up to the invitation of counsel to declare those sections of the Constitution null and void. In conclusion, I hold the view that this appeal having arisen from a decision of the Tribunal delivered on the 11th day of August, 2011 has lapsed after 60 days on 10th day of October, 2011. The appeal is no longer alive and has died by effusion of the sixty (60) days allowed by Section 285(7) of the 1999 Constitution (as amended.)
The appeal is hereby struck out and I make no order as to costs.
CLARA BATA OGUNBIYI, J.C.A:
MASSOUD ABDULRAHMAN OREDOLA, J.C.A: