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3PLR – GODSWILL OBOT AKPABIO & ORS V. SENATOR JOHN JAMES AKPANUDOEDEHE & ORS

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GODSWILL OBOT AKPABIO & ORS

V.

SENATOR JOHN JAMES AKPANUDOEDEHE & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON WEDNESDAY, THE 4TH DAY OF APRIL, 2012

CA/C/NAEA/GOV/30/2012

3PLR/2012/44 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

MOHAMMED LAWAL GARBA, JSC

UZO. I. NDUKWE-ANYANWU, JSC

S.D. BAGE, JSC

JOSEPH TINE TUR, JSC

ISAIAH OLUFEMI AKEJU, JSC

 

BETWEEN

  1. GODSWILL OBOT AKPABIO – CA/C/NAEA/GOV/30/2012
  2. NSIMA EKERE

AND

  1. SENATOR JOHN JAMES AKPANUDOEDEHE – CA/C/NAEA/GOV/49/2012
  2. DR. IMEH SAMPSON UMANAH
  3. ACTION CONGRESS OF NIGERIA (ACN) Appellants

 

AND

  1. SENATOR JOHN JAMES AKPANUDOEDEHE
  2. DR. IMEH SAMPSON UMANAH
  3. ACTION CONGRESS OF NIGERIA (ACN) – CA/C/NAEA/GOV/30/2012
  4. PEOPLES DEMOCRATIC PARTY (PDP)
  5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

    AND

    1. GODSWILL OBOT AKPABIO

  6. NSIMA EKERE
  7. PEOPLES DEMOCRATIC PARTY (PDP) – CA/C/NAEA/GOV/49/2012
  8. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondents

 

 

ORIGINATING STATE

Akwa Ibom State: Governorship Election Petition Tribunal

 

CONNECTED AREAS OF PRACTICE

  1. Election Law

 

MAIN ISSUES

 

 

CONSTITUTIONAL LAW– whether courts have the vires to extend the time assigned by the Constitution

 

 

ELECTION MATTERS– whether an election tribunal has jurisdiction to hear or try or continue the hearing or trial of any petition 180 days- whether an election tribunal has jurisdiction to subsequently set aside its ruling and strike out the petition

 

PRACTICE AND PROCEDURE– DOCTRINE OF STARE DECISIS- effect of a lower Court’s choice to ignore the decision of a higher Court

 

—————————–

 

  1. CASE LAW – JUDICIAL PRECEDENT: The implication of a lower court failing to follow the decision of a higher court

”In Cardoso V. Daniel (1936) 2 NWLR (Pt.20) 1 Aniagolu, JSC held at Page 23 that: “…Nothing but anarchy and chaos will emerge where a lower Court chooses to ignore the decision of a higher Court or refuses to follow the decision. It is in this spirit that Jibowu, Ag. F.C.J., held, in Jalo Tsamiya V. Bauchi Native Authority (1957) NRNLR 73 that a High Court must follow the decision of the West-African Court of Appeal even if it considers the decision to be given per incuriam.” His Lordship cited with approval the dictum of Lord Hailsham Lord Chancellor in Cassel & Co. Ltd. V. Broome & Anor (1964) 1 All E.R. 367 wherein the Lord Chancellor sitting in the House of Lords held at Page that: The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of Courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v. Bristol Aeroplane Co. Ltd. (1944) K.B. 718 offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom.” Per TUR, J.C.A(Pp. 26-27, paras. B-A)

 

  1. ELECTION PETITIONS – JURISDICTION: Whether an election tribunal has jurisdiction to hear any petition outside the 180 days period

”An election tribunal has no jurisdiction to hear or try or continue the hearing or trial of any petition outside the 180 days. That is the law on the interpretation of the provision of the constitution and good, bad, harsh, cruel or otherwise unpalatable, all authorities, persons and lower courts, are constitutionally bound by it. No amount of intellect, ingenuity, scholarship or brilliance, can change the law outside the Supreme Court or the legislature as far this court and all other courts in the country are concerned.” Per GARBA, J.C.A (Pp. 33-34, paras. G-B)

 

  1. PRACTICE AND PROCEDURE– COURT – JURISDICTION: Whether a court has jurisdiction to set aside its own judgment

”Once the Tribunal came to the conclusion that it wrongly assumed jurisdiction in the first instance it had the jurisdiction to subsequently set aside its ruling and strike out the petition. In Akinfolarin V. Akinnola (1994) 3 NWLR (Pt.335) 659 Iguh, JSC held at page 676-677 thus: “…In other words, an order or judgment of a Court of competent jurisdiction remains valid and binding unless and until it is set aside by the trial Court itself where it acted without jurisdiction or by an appeal Court” In Craig V. Kanseen (1943) 1 All E.R. 108 at 111 Greene M.R held that: “An order which can properly be described as a nullity is something which the person affected by it is entitled ex facie debito justitiae to have set aside. As far as the procedure for having it set aside is concerned the Court in its inherent jurisdiction can set aside its own order and an appeal is not necessary.” In Akinfolarin V. Akinnola supra Oputa, JSC also held at page 162 that: “Whether the court sets aside its own order or an appellate court does it, the point being made is that there must be an application to a court to have the order set aside otherwise the order subsists – Crafton Isaac v. Emery Robertson (1984) 3 WLR 705… Per TUR, J.C.A (Pp. 18-19, paras. F-E)

 

  1. CONSTITUTIONAL LAW – SECTION 285(6) OF THE CONSTITUTION: Interpretation of Section 285 (6) of the Constitution

”Do the courts have the vires to extend the time assigned by the Constitution? The answer is obviously in the negative.” To put the issue beyond further arguments, the apex court, per Rhodes-Vivour, JSC, in the same judgment had pointed out that: “180 days provided by Section 285 (6) of the Constitution is not limited to trials but also to denovo trials that may be ordered by an appellate court. For the avoidance of any lingering doubt, once a 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-hearing, 180 days shall at all times be calculated from the date the petition was filed.” Per GARBA, J.C.A (Pp. 29-30, paras. G-C)

 

MAIN JUDGMENT

 

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment):

The Independent National Electoral Commission conducted election into the office of Governor of Akwa Ibom State on the 26th day of April, 2011. Godswill Obot Akpabio contested the election to the office on the platform of the Peoples Democratic Party, his Deputy being Mr. Nsima Ekere. Senator John James Akpanudoedehe contested the same with his Deputy Dr. Imeh Sampson Umanah all of the Action Congress of Nigeria. At the close of voting the Independent National Electoral Commission declared Godswill Obot Akpabio and Mr. Nsima Ekere of the Peoples Democratic Party of Nigeria as having scored the highest number of lawful votes cast at the election, namely, 957,585 votes as against 163,449 polled by Senator John James Akpanudoedehe and Dr. Imeh Sampson Umanah of the Action Congress of Nigeria. The commission returned Godswill Obot Akpabio and Mr. Nsima Ekere as Governor and Deputy Governor respectively of Akwa Ibom State. Irked by this declaration Senator John James Akpanudoedehe, Dr. Imeh Sampson Umanah and the Action Congress of Nigeria (Petitioners) presented a joint petition before the Governorship Election Petition Tribunal holding at Uyo, Akwa Ibom State on the 16-05-2011 seeking the nullification of the election and return of the Governor and his Deputy on diverse grounds. The Respondents filed replies and subsequently brought an application that the petition should be struckout for procedural defects. The Tribunal heard arguments and struckout the petition. The ruling of the Tribunal was affirmed by the Court of Appeal, Calabar Division. There was a further appeal to the Supreme Court by the petitioners. On 14th November, 2011 the Supreme Court allowed the appeal and remitted the petition to the Tribunal that it may be determined on the merit. When the matter came back to the Tribunal the Respondents brought another preliminary objection on the grounds that the 180 days stipulated for the hearing of petitions under section 285(6) of the constitution of the Federal Republic of Nigeria, 1999 as altered had expired. That the Tribunal had no jurisdiction to continue with the hearing. Arguments were heard from learned counsel to the parties. On the 7th day of February, 2012 the Tribunal dismissed the preliminary objection on the grounds that the panel was bound by the decision of the Supreme Court to hear the petition on the merit. Aggrieved with the ruling the Respondents lodged an appeal to the Court of Appeal, Calabar Division on 08-02-2012 containing three grounds followed by Appellants’ Brief of Argument filed on 21-02-2012. Only one issue was set down for determination by this court in the Appellants’ Brief of Argument to wit:
“Whether the decision of the Tribunal of the 7th February, 2012, assuming jurisdiction over the petition filed on the 16th April, 2011 was not erroneous regard being had to the clear and unambiguous provisions of Section 286(6) of the constitution of the Federal Republic of Nigeria, 1999 (as Amended)?”
The learned Counsel to Senator John James Akpanudoedehe, Dr. Imeh Sampson Umanah and the Action Congress of Nigeria hereinafter referred to as the “1st-3rd Respondents/Petitioners” filed a Joint Brief on 23-03-2012. With leave of Court it was deemed properly filed and served on 27-03-2012. They set down the following lone issue for determination:

 

“Whether the Tribunal was right in dismissing the Appellants’ Notice of preliminary objection dated 6th January, 2012 on the ground that section 285 (6) of the Constitution as interpreted in consolidated cases of Shettima V. Goni; and PDP V. CPC Appeal Nos.352/2011; SC-333/2011 delivered on 31-10-2011 did not consider a situation where an appellate Court finds it expedient to send back to the Tribunal a Petition to be heard on the merit. This issue is derived from grounds 1, 2 and 3 of the Notice of Appeal.”

CA/C/NAEA/GOV/30/2012

 

The learned Counsel to the 1st-3rd Respondents/appellants raised a preliminary objection to the hearing of this appeal at pages 5-7 of their Joint Brief on the grounds that this appeal has become an academic exercise. This prompted the learned Senior Advocate of Nigeria, namely, Chief Bayo Ojo SAN to file Appellants’ Reply Brief on 27-03-2012 in order to respond to the issues raised by learned Counsel to the 1st-3rd Respondents. The peoples Democratic Party (4th Respondent) and the Independent National Electoral Commission (5th Respondent) differently represented by Counsel, did not file any Brief of Argument. So far are the facts of Appeal No. CA/C/NAEA/GOV/30/2012.
CA/C/NAEA/GOV/30/2012

 

In Appeal No. CA/C/NAEA/GOV/30/2012 Senator John Akpanudoedehe, Dr. Imeh Sampson Umanah and Action Congress of Nigeria hereinafter referred to as “the Appellants” filed Notice of Appeal on 01 -03 -2012 challenging the ruling of the Tribunal of 20-02-2012 in suo motu striking out the petition on the grounds that in line with the judgment of the Supreme Court in ANPP V. Goni & Alhaji Kashim Shettima & Anor V. Alhaji Mohammed Goni & 3 Ors in Appeals No.SC1/28/2012 and SC/2/20/2012 the Tribunal had no jurisdiction to continue hearing the petition. Ten grounds of appeal accompany the Notice of Appeal. The Appellant filed a brief of argument on 15-03-2012 setting forth six issues for determination. They are couched as follows;

 

“i.      Whether the Tribunal was right when it suo motu, struck out the petition without affording the Appellants any opportunity to be heard on the matter (Distilled from Ground 1 of the Notice of Appeal.)

 

  1. Whether the Tribunals construction and conclusion that Section 255(6) of the Constitution of Federal Republic of Nigeria (as amended) divests it of jurisdiction is correct and modifies the fair hearing requirement within a reasonable time under section 36(1) of the constitution of Federal Republic of Nigeria (as amended) (Distilled from Ground 5).

 

iii.      Whether the interpretation of section 9(7) of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act 2010 (now Section 285 (6) of the Constitution) as to oust the jurisdiction of the Tribunal is an unconstitutional interference with the independence of the judiciary and the foundational doctrine of separation of powers and fundamental human rights enshrined in the basic structure of the Constitution of the Federal Republic of Nigeria, 1999. (Distilled from Ground 9).

 

  1. Whether the Tribunal wrongly relied on ANPP V. Goni & Ors (Unreported Appeals No.SC/1/2012 and SC/2/2012) to strike out the Appellants’ petition on the ground that the 180 days under Section 285(6) of the 1999 Constitution (as amended) had expired and that it had no jurisdiction in the circumstances to entertain the petition. (Distilled from Grounds 2, 3, 6, 8).

 

  1. Whether the Tribunal was right when it struck out the petition despite the valid and competent order of re-trial made by the Supreme Court in SC/336/2011 (Distilled from Ground 4 of the Notice of Appeal).

 

  1. Did the Tribunal properly exercise its jurisdiction to review its decision on the issue of expiration of the 180 days for hearing the petition after holding on 7th February, 2012 that time begins to run afresh in cases where the Supreme Court had specifically ordered a re-trial of the petition on the merit? (Distilled from Ground 7 of the Notice of Appeal).”

 

The 1st-2nd Respondents’ Brief was filed by Chief Bayo Ojo SAN on 23-03-2012. The following issues were distilled for determination by this court namely:

 

“1.     Whether the trial Tribunal was right when it held that the Appellants’ Petition has abated by effluxion of time pursuant to Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the judicial interpretation thereof in the consolidated appeals in All Nigerian Peoples Party V. Alhaji Mohammed Goni & 4 ors V. Alhaji Kashim Shettima & 1 Or V. Alhaji Mohammed Goni & 3 ors (unreported) suit Nos. SC. 1/2012 and SC.2/2012 delivered on 17-02-2012. (Ground 2, 3, 4, 5 and 6 of the Notice of Appeal).

 

  1. Whether the trial Tribunal was right when it struck out the petition for want of jurisdiction. (Ground 1, 7 and 8 of the Notice of Appeal).”

 

Adekunle Oyesanya Esq. filed the 3rd Respondent’s Brief of Argument on 23-03-2012 distilling the following lone issue for determination:

 

“(a)    Was the Tribunal right to have struck out the petition in the circumstances in the face of the decision of the Supreme Court decision in the consolidated Appeals SC/1/2012: All Nigeria Peoples Party & ors v. Alhaji M. Goni & 4 ors. and SC/2/2012 Alhaji Kashim Shetima & 1 or. v. Alhaji M. Goni & 3 ors, which decisions the Tribunal was already seised of?”

 

Dr. Onyechi Ikpeazu SAN, OON filed Brief on behalf of the 4th Respondent – Independent National Electoral Commission on 19-03-2012 raising at page 3-5 therein preliminary objections to the hearing of this appeal. Kola Awodein SAN filed Appellants’ Reply to 3rd Respondent’s Brief of Argument on 28-03-2012 and the Appellant’s Reply Brief to 4th Respondent’s preliminary objection and Brief of Argument on 23-03-2012. This prompted Dr. Onyechi Ikpeazu, OON, SAN to file the 4th Respondent’s Reply Brief on points of law to the Appellants’ response to the preliminary objection on 27-03-2012.

 

On the 28-03-2012 when the appeal came up for hearing the Senior Advocate that settled the appellants’ brief filed what was termed “The Appellants’ Reply of Argument” the gist of which is that the 3rd Respondent was silent on some salient points raised in issues 2, 3, and 5 in the Appellants’ Brief of Argument. The effect in law is that the 3rd Respondent had conceded those issues. I shall elaborate the argument in considering the substantive appeal if the need arises.
When the appeal came up for hearing on the 28-03-2012 learned Senior Counsel appearing for the Appellants in Appeal No.CA/C/NAEA/GOV/30/2012, namely, Chief Duro Adeyele SAN, applied orally that the two appeals should be consolidated. In the absence of objection from learned Senior Advocate and Counsel appearing for the respective parties in the appeals, the application was granted. The two appeals were consolidated. Each Counsel adopted his brief of argument. Counsel that filed preliminary objection to the hearing of the appeals adopted their respective briefs of arguments and drew this Court’s attention to the preliminary objections in the briefs. Opposing Counsel responded accordingly. The consolidated appeals were reserved for judgment. I shall now rule on the preliminary objections.
CA/C/NAEA/GOV/30/2012

 

The argument in the 1st-3rd Respondents’ brief is that shortly after the Tribunal dismissed the Appellant’s application to strike out the petition dated 06-01/2012, the same Tribunal proceeded with pretrial proceedings but subsequently struck out the petition for lack of jurisdiction. The present appeal has become an academic issue.

 

That the Court should not embark on the determination of academic issues, citing Odedo V. INEC (2008) 17 NWLR (Pt.1117) 554; Attorney-General of the Federation V. ANPP (2003) 18 NWLR (Pt.851) 182 at 215. Learned Counsel urged the Court to strikeout the appeal. In the Appellants’ Reply Brief filed on 27-03-2012 it was contended on the authority of 7-UP Bottling Co. Ltd. & 2 Ors V. Abiola and Sons Bottling Co. Ltd. (2001) 13 NWLR (Pt.730) 469 that since the dismissal of the application to strike out the petition was based on an erroneous interpretation of Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, this occasioned a miscarriage of justice.
That the appeal is not an academic exercise but should be entertained on the merit, citing Adeogun V. Fashogbon (2008) 17 NWLR (Pt.1115) 149 at 180-181; Balonwu V. Governor, Anambra state (2009) 18 NWLR (Pt.1172) 13 at 39-40; Kaydee Ventures Ltd. V. Minister F.C.T. (2010) 7 NWLR (Pt.1192) 171 at 208.
The learned Senior Advocate drew this Court’s attention to Ground 7 of the 1st-3rd Respondents’ Notice of Appeal in Appeal No. CA/CA/AEA/GOV/49/2012 filed on 01-03-2012 and the accompanying brief at paragraphs 86-90 pages 36-37 where the 1st-3rd Respondents made heavy weather of the Tribunal’s ruling of 20-02-2012 as erroneous in law and also referred to the ruling of the Tribunal on 07-02-2012. That this was a concession that this appeal raises the live issue as to the correct interpretation of the provisions of Section 235(6) of the Constitution. It was further contended that the Tribunal merely took judicial notice of the decisions of the Supreme Court in ANPP V. Alhaji Kashim Shettima & 1 or. V. Alhaji Mohammed Goni & 3 ors. (unreported) consolidated Appeals No.SC.1/2012 and SC.2/2012 delivered on 17-02-2012 to strike out the petition without setting aside their earlier order made on 07-2-2012. That there existed two conflicting orders made by the Tribunal on 07-02-2012 and 20-02-2012. On the authority of Akinfolarin V. Akinola (1994) 3 NWLR (Pt.335) 659 at 679 the learned senior Advocate submitted that to uphold this preliminary objection was to give an opportunity to any person or group of persons to make mockery of the administration of justice wherein contentious issues as to the bindingness of the order of the Tribunal made on 07-02-2012 is raised. This should not be allowed in order to protect the development of constitutional democracy which would be possible only if the order of the Tribunal made on 07-02-2012 is set aside by this court: Akinfolarin V. Akinola supra pages 677-678, citing victor Rossek & ors. V. ACB & ors (1993) NWLR (Pt.312) 382 were cited in argument to further show that upholding the preliminary objection raised by the 1st-3rd Respondents will usher in anarchy as parties will be free to erect which order of the Tribunal to obey. Counsel contended that the need to set aside the order made by the Tribunal on 07-02-2012 makes this appeal a live issue hence this preliminary objection should be dismissed.

 

It is not in dispute that on the 07-02-2012 the appellants, application that the Tribunal should decline jurisdiction was dismissed reliance being placed on the provisions of section 285(6) of the constitution of the Federal Republic of Nigeria, 1999 as altered which reads as follows:

 

“(6)   An election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”

 

In the Notice of Appeal filed by the Appellants on 08-02-2012 the following reliefs were sought from the Court of Appeal, namely:

 

“4. RELIEFS SOUGHT:

Orders:

 

(1)     Allowing the appeal

 

(2)     Striking out Petition No.EPT/AKS/G0V/15/2011 filed on 16-05-2011 for want of jurisdiction, the time limited for the delivery of judgment in writing from the date of filing some having lapsed pursuant to section 285 (6) of the constitution of the Federal Republic of Nigeria, 1999 (As Amended).”

As at 07-02-2012 when the Tribunal clothed herself with jurisdiction there were decisions from the various Divisions of the Court of Appeal as to the correct interpretation of the provisions of Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999, for example Agboola Hosea Ayoola V. Dr. Wale Okediran & ors (unreported) Appeal No. CA/I/EPT/NA/37/2011 delivered by the Court of Appeal Ibadan Division on 24-01-2012; Udokpo V. Edet Archibong – Appeal No.CA/C/NAEA/257/2011 (unreported) delivered by the Calabar Division of the Court of Appeal on 17th day of November, 2011 and a host of others. The Tribunal adopted reasoning where a petition had been remitted by the Supreme Court to be heard on the merits, notwithstanding the expiry of the 180 days stipulated under Section 285(6) of the Constitution, the Tribunal could determine the petition on the merit. But after the delivery of this ruling the Tribunal subsequently took judicial notice of the Supreme Court judgments in ANPP V. Goni & Alhaji Kashim Shettima & Anor V. Alhaji Mohammed Goni & 3 Ors. Appeal Nos.SC1/28/2012 and SC2/20/2012 to strike out the petition thereby declining jurisdiction. Thus though the Tribunal assumed jurisdiction on 07-02-2012, on 20-02-2012 the petition was struckout on the application of the Respondents invariably or by implication, granting the appellants the relief earlier denied. Even if this Court should hold that the Tribunal erred in the interpretation of the provisions of Section 235(6) of the Constitution supra, the remedy to grant the appellants will be an order allowing this appeal, setting aside the orders of the Tribunal made on 07-02-2012 and striking out the petition. But that is what the Tribunal did on 20-02-2012. What then is the need to further pursue this appeal if not an academic exercise as argued by the learned Counsel to the 1st-3rd Respondents? I hold that no useful purpose will be served in pursing this appeal since the petition has been struck out by the Tribunal. The fact is that the prayer was to have the petition struck out. Though not initially granted, it was subsequently granted. The petition was removed from the cause list of the Tribunal. It is no longer a live issue before the Tribunal. I do not see the relevance of the authorities cited by the learned Senior Counsel to the appellants in resisting this objection when they have no factual bearing to this appeal.
In my humble view it does not matter upon whose application the petition was subsequently struck out by the Tribunal. Once the Tribunal came to the conclusion that it wrongly assumed jurisdiction in the first instance it had the jurisdiction to subsequently set aside its ruling and strike out the petition. In Akinfolarin V. Akinnola (1994) 3 NWLR (Pt.335) 659 Iguh, JSC held at page 676-677 thus:

 

“…In other words, an order or judgment of a Court of competent jurisdiction remains valid and binding unless and until it is set aside by the trial Court itself where it acted without jurisdiction or by an appeal Court”

 

In Craig V. Kanseen (1943) 1 All E.R. 108 at 111 Greene M.R held that:

 

“An order which can properly be described as a nullity is something which the person affected by it is entitled ex facie debito justitiae to have set aside. As far as the procedure for having it set aside is concerned the Court in its inherent jurisdiction can set aside its own order and an appeal is not necessary.”

 

In Akinfolarin V. Akinnola supra Oputa, JSC also held at page 162 that:

 

“Whether the court sets aside its own order or an appellate court does it, the point being made is that there must be an application to a court to have the order set aside otherwise the order subsists – Crafton Isaac v. Emery Robertson (1984) 3 WLR 705…”

 

In my judgment, the Tribunal having set aside its earlier ruling and struck out the petition and that is the principal relief being sought by the appellants in this appeal, an appeal is not necessary; it has become an academic exercise. For this reason I uphold the argument of the learned Counsel to the 1st-3rd Respondents that this appeal is a fruitless exercise. I make an order dismissing the substantive Appeal No. CA/C/NAEA/GOV/30/2012 on the authority of the unreported judgments of the Supreme Court in Hon. Gabriel Torwua Suswam V. Senator Daniel I. Saror & ors; Hon. Gabriel Torwua Suswam V. Senator Daniel I. Saror & Ors and Peoples Democratic Party V. Prof. Steve Torkuma Ugba & ors consolidated Appeals No. SC.62/2012; SC.62A/2012 and SC.63/2012 delivered on 29th day of March, 2012 where Onnoghen, JSC delivering the lead judgment of the Supreme Court in a similar vein held that:

 

“Having regards to the striking out of the petitions at the election Tribunal which petitions gave rise to the instant appears, it is clear that the appeals are now academic or overtaken by events.

Consequently, appeals Nos. SC.62/2012; SC.62A/2012 and SC.63/2012 are hereby dismissed.

Parties to bear their costs.”

I make no order as to costs.

APPEAL CA/C/NAEA/GOV/30/2012

 

The objection by the 4th Respondent to the hearing of this appeal is based on the fact that if the appeal succeeds, having regard to the prayers of the petitioners in the Notice of Appeal this Court should remit this petition to the Tribunal for hearing notwithstanding the expiry of the 180 days as provided under Section 235(6) of the Constitution supra. In the Notice of Appeal filed by the Appellants on 01-03-2012 challenging the ruling of the Tribunal of 20-02-2012 in striking out the appeal for lack of jurisdiction the appellants seek the following reliefs:

 

“i.      An order allowing the appeal of the Appellants and setting aside the ruling of the Tribunal bellow;

 

  1. An order setting aside the ruling of the Tribunal striking out the petitioners/Appellants petition;

 

iii.      An order striking out or dismissing the 1st and 2nd Respondents Application dated 19th day of February, 2012 as same is incompetent;

 

  1. An order that the Appellants’ petition be remitted to the Tribunal to be heard on the merit by another panel of justices and that in computing time for the hearing of the petition the period taken up by the process of this appeal be excluded and not calculated as part of the 180 days for the hearing of the same.

 

  1. For such further or other orders as the Honourable Court may deem fit to make in the circumstances.”

 

Learned Senior Advocate of Nigeria who appeared for the 4th Respondent referred to the cases of Attorney-General of Lagos State V. Dosunmu (1989) 3 NWLR (Pt.111) 552; Sofekun V. Akinyemi (1981) 1 NCLR 135 and F.B.N. plc V. T.S.A. Industries Ltd. (2010) 15 NWLR (Pt.1216) 247 and 274 as showing when a Court or Tribunal has the jurisdiction to entertain a petition, cause or matter. That the petition filed on 16-05-2011, by the provisions of Section 235(6) of the Constitution supra, the Tribunal should have delivered judgment within 180 days from that date. The learned Senior Counsel drew this Court’s attention to the consolidated judgment of the Supreme Court in ANPP V. Goni supra where the court held at page 22 that:

 

“…the time cannot be extended or expanded or elongated or in any way enlarged; that if what is done is not within the time so fixed, it lapses as the Court is thereby robbed of the jurisdiction to continue to entertain the matter.”

 

It was then submitted that since this appeal is a continuation of hearing of the petition before the Tribunal, this Court cannot go beyond the 180 days stipulated under Section 285(6) of the Constitution nor can this Court remit the petition to the Tribunal for further adjudication. The decision by the Supreme Court having binding effect on the Court of Appeal, the learned Senior Advocate urged that the appeal should be struck out.

 

In the Appellants’ Reply to the 4th Respondent’s preliminary objection and brief of argument filed on 23-03-2012 learned Senior Advocate of Nigeria drew this Court’s attention to issues 2 and 3 raised by 4th Respondent, namely, that the interpretation placed by the Tribunal on the provisions of section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as amended is an interference with the independence of the judiciary and the foundational doctrine of the separation of powers and fundamental rights enshrined in the basic structure of the constitution of the Federal Republic of Nigeria, 1999. That the Tribunal’s construction and conclusions that Section 285(6) of the constitution as amended supra divested her of jurisdiction is effoneous and violates the provisions of section 36(1) of the constitution supra regarding fair hearing within a reasonable time. Learned senior counsel argued that the constitution cannot be interpreted to modify, limit or extinguish the vested rights of the petitioners under Section 36(1) of the Constitution supra. Furthermore, the effect of the argument raised in the preliminary objection is to concede that the interpretation and construction placed on the provisions of Section 285(6) of the constitution supra by the Tribunal has resulted into injustice to the appellants.

 

This is because the Tribunal dismissed the petition in a hasty manner without giving the petitioners a fair opportunity to be heard, citing Plateau State V. Attorney-General of the Federation (2006) 3 NWLR (Pt.967) 346 at 419-420. Learned Senior Advocate of Nigeria contended that the appeal is not academic in nature as it relates to a constitutional issue as to the applicability of the provisions of Section 285(6) of the constitution supra and the decision in ANPP V. Goni supra. Counsel made reference to the reliefs sought in the Notice of Appeal which was that the appeal should be allowed and the petition remitted to the Tribunal for rehearing on the merit. Counsel urged that the preliminary objection should be struckout and the appeal be determined on the merit.
On the 27-03-2012, Dr. Onyechi Ikpeazu, OON, SAN filed the 4th Respondent’s Reply on points of law to the Appellants, Response to the preliminary objection. Learned Senior Advocate contended that it is the ultimate object of this appeal that matters, namely, that the appeal should be allowed and the petition remitted to the Tribunal for hearing. The provisions of Section 6(6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 dealing with inherent powers and sanctions of the Courts cannot be invoked to expand the time limited by section 285(6) of the Constitution as altered. This Court should not entertain the appeal on its merit so as not to violate the provisions of section 285(6) of the constitution supra. It was further argued that jurisdiction was very fundamental and forms the foundation and cornerstone of a litigation, citing Nigergate Ltd. V. Niger State Government (2008) 13 NWLR (pt.1103) 111 and Iloegbunam V. Obiora (2012) 4 NWLR (Pt.1291) 405 at 448. The question of jurisdiction can be raised at any time and must be determined as a matter of priority, citing Nwude V. Chairman, EFCC (2008) All FWLR (Pt.276) 740 at 756; Amao V. Alabi (2003) 15 NSCUR 132 at 144; State V. Okoye (2007) 16 NWLR (pt.1061) 607 at 618; Nyam V. Edem (2005) 4 NWLR (pt.915) 345 at 370.
Learned senior counsel argued that based on the cases of ANPP V. Goni supra and Action Alliance V. INEC & ors. SC.23/2012 delivered on 14-02-2012 not even the Supreme Court nor the Court of Appeal could extend the time stipulated under section 285 (6) of the constitution of the Federal Republic of Nigeria, 1999 for Tribunals to hear and determine election petitions. Learned senior Counsel urged that this Court should strike out the appeal.
In striking out the petition on 20-02-2012 the Tribunal held as follows:

 

“Court: In line with the judgment of the Supreme Court in ANPP V. Goni & Alhaji Kashim Shettima & Anor v. Alhaji Mohammed Goni & 3 ors in case No. SC.1/28/2012 & SC.2/20/2012. We humbly hereby strikeout the petition.”

 

The effect of the judgments of the Supreme Court was to divest the Tribunal of jurisdiction to continue to hear the petition after the expiry of the 180 days notwithstanding it had been remitted to the Tribunal by an appellate Court. What remained was for the Tribunal to enforce the judgments by declining jurisdiction. Section 287 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered provides 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.”

 

The Tribunal was bound to enforce the decisions of the Supreme Court in ANPP V. Goni and Alhaji Kashim Shettima & Anor. V. Alhaji Mohammed Goni & 3 ors., supra. The Tribunal acted rightly to have struck out the petition on 20-02-2012. If this appeal is entertained on the merit and the Court arrives at a decision that the Tribunal erred the order to be made would be to remit the petition to the Tribunal to hear it contrary to Section 285 (6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered and this will conflict with the decisions of the Supreme Court in ANPP V. Goni and Alhaji Kashim Shettima V. Alhaji Mohammed Goni & 3 ors. Supra. That will constitute judicial rascality or judicial impertinence. See Dalhatu V. Turaki & ors (2003) 110 LRCN 1572. Such an order will further violate the provisions of Section 257(1) of the Constitution of the Federal Republic of Nigerian 1999 as altered. It would further have the effect of the Court of Appeal reviewing the judgments of the Supreme Court upon which the Tribunal relied to strike out the petition. In Cardoso V. Daniel (1936) 2 NWLR (Pt.20) 1 Aniagolu, JSC held at Page 23 that:

 

“…Nothing but anarchy and chaos will emerge where a lower Court chooses to ignore the decision of a higher Court or refuses to follow the decision. It is in this spirit that Jibowu, Ag. F.C.J., held, in Jalo Tsamiya V. Bauchi Native Authority (1957) NRNLR 73 that a High Court must follow the decision of the West-African Court of Appeal even if it considers the decision to be given per incuriam.”

 

His Lordship cited with approval the dictum of Lord Hailsham Lord Chancellor in Cassel & Co. Ltd. V. Broome & Anor (1964) 1 All E.R. 367 wherein the Lord Chancellor sitting in the House of Lords held at Page that:

 

“The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of Courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v. Bristol Aeroplane Co. Ltd. (1944) K.B. 718 offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom.”

 

The 180 days for delivery of judgment having expired, even if this appeal should succeed the petition cannot be remitted to the Tribunal for hearing and determination. Here lies the difference between this appeal and the various judgments cited by the learned Senior Advocate of Nigeria appearing for the appellants. The matter of lack of jurisdiction to entertain petitions after the expiry of 180 days has been settled by the Supreme Court in the judgments the Tribunal relied upon to strike out the petition. For all these reasons this court will not embark on the futile exercise of proceeding to determine the appeal on the merit. The substantive appeal is dismissed on the authority of the unreported consolidated judgments of the Supreme Court in Hon. Gabriel Torwua Suswam V. senator Daniel I. Saror & ors; Hon. Gabriel Suswam V. senator Daniel I. Saror & ors and Peoples Democratic Party V. Prof. Steve Torkuma Ugba & ors (unreported), consolidated Appeals No. SC.62/2012; SC.62A/2012 and SC.673/2012 delivered on 29th day of March, 2012. I make no order as to costs.

MOHAMMED LAWAL GARBA, J.C.A:

 

I have read a draft of lead judgment written by my learned brother Joseph Tine Tur, JCA in these consolidated appeals and am in agreement with the rulings on the preliminary objections in the two appeals. By way of support, I wish to put in a few words thereon.

APPEAL NO. CA/C/GOV/EA/30/2012:

As stated in the lead judgment, this appeal arose from the decision of the Lower Tribunal delivered on the 7/2/2012 by which it dismissed the preliminary objection by the Appellants that the Respondents’ petition had lapsed by effluxion of the time provided by the provisions of Section 285 (6) of the 1999 Constitution (as altered). The Lower Tribunal primarily gave as reason for that decision, that it was bound by the order of retrial or trial denovo of the petition on the merit by the Supreme Court on the 14/11/2011 in appeal No. SC/236/2011: Senator Akpan Udoedehe V. Akpabio & Ors. It reasoned that the 180 days provided for in Section 285 (6) of the Constitution in respect of the petition did not commence from the date it was initially filed but from the date of the order of hearing on the merit by the Supreme Court. The Lower Tribunal had earlier laid the foundation for the above reasoning when it stated in the ruling, particularly at page 1510 of the Volume II of the record of the appeal before us that:-

“The question to ask at this stage is why did the Supreme Court make the order it granted on the 14th November, 2011, knowing fully well of the implication of such order in the light of the provisions of Section 285 (6) of the 1999 Constitution (as amended) and the plethora of authorities on that provision delivered by the Supreme Court itself.”

The Lower Tribunal then assumed jurisdiction over the petition and proceeded with the hearing denovo as ordered by the Supreme Court.

However, ten (10) days later, on the 17/2/2012 the same Supreme Court whose decisions binds all lower courts and tribunals in the judicial hierarchy in the country, delivered judgment in the consolidated appeals Nos. SC.1/2012 and SC.2/2012; ANPP v. MOHAMMED GONI & ORS. to the effect that once the 180 days provided for in Section 285 (6) of the Constitution from the date of filing a petition had expired, become spent, it cannot be extended by a court order howsoever nor can a court order create or confer jurisdiction on any court or tribunal on any matter in respect of that, petition. The apex court was apparently displeased with this court on the interpretation of the provisions of Section 285(6) of the Constitution when it lamented in the lead judgment that:-

“It is very worrisome that despite the decisions of this court since December, 2001 on the time fixed in the Constitution, some, justices of the lower court still appear not to have gotten the message. From where will the election tribunal get jurisdiction to entertain the retrial after the expiration of the one hundred and eighty (180) days assigned in the Constitution, without extending the time so allotted? Do the courts have the vires to extend the time assigned by the Constitution? The answer is obviously in the negative.”

To put the issue beyond further arguments, the apex court, per Rhodes-Vivour, JSC, in the same judgment had pointed out that:

“180 days provided by Section 285 (6) of the Constitution is not limited to trials but also to denovo trials that may be ordered by an appellate court. For the avoidance of any lingering doubt, once a 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-hearing, 180 days shall at all times be calculated from the date the petition was filed.”

Face with the above admonition by the apex court, the lower tribunal in compliance with the provisions of Section 287 (1) of the Constitution (as altered) which required that the decision of the Supreme Court shall be enforced by, inter alia, courts with subordinate jurisdiction in the country, had no legally and judicially, any other viable option but to cease the re-hearing or retrial ordered by the same court earlier, on ground of want of jurisdiction. In practical terms, from the date of said judgment by the apex court, all petitions not decided by any election tribunal within the 180 days from the date of filing thereof, whether at initial trial or on orders for retrial afresh, denovo, hearing or rehearing on the merit from any appellate court, had automatically lapsed thereby robbing of the tribunal of the requisite authority, vires or jurisdiction to continue proceedings therein.

In striking out the petition from which this appeal emanated, the lower tribunal only gave effect to the judgment of the Supreme Court, thereby sniffing the life of the petition and other issues or points arising therefrom. The substratum of the present appeal has effectively been destroyed by the “sudden death of the petition from which it arose and no useful benefit can ensue to any of the parties but, particularly the Appellants, in its determination on the merits. Indeed a consideration by this court of the merit of the appeal in the above circumstance, would be merely wasteful, useless, and an exercise in complete futility.

The decision by the lower tribunal to continue the hearing of the petition denovo was over taken and rendered ineffective by the later decision of the apex court delivered on the 17/2/2012. The decision appealed against for all practical purposes, ended and ceased to have legal force on the date the Supreme Court declared that the Lower Tribunal had no jurisdiction to continue with the retrial or hearing denovo of the petition in question. In fact, the preliminary objection or motion by the Appellants that was dismissed by the lower tribunal which decision resulted in the present appeal had sought for the striking out of the petition on the ground of want of jurisdiction on the part of the lower tribunal for the same reason given by the apex court in its decision. Very recently, the apex court had in the case of NWORA V. NWABUEZE (2011) 17 NWLR (1277) 699 at page 718, dealing with a similar situation as in the present appeal held that:-

“Where the substantive matter from which any other application or appeal stems from has been struck out or dismissed, as the case may be, then said other application or appeal on whatever based, are liable to be struck out or dismissed equally, since the livewire connecting the two causes has been severed and there is no way the application or appeal can survive independently.”

In the above premises, with the striking out of the petition from which this appeal enured, by the Lower Tribunal on the 20/2/2012, it has been rendered lifeless and no useful purpose would be served by its consideration on the merit. In the peculiarities of the appeal, it has been rendered purely academic and there is no duty on the court to embark on an academic exercise.

In the result, for the above and the fuller reasons set out in the lead judgment, I also find merit in the preliminary objection by the 1st – 3rd Respondents which succeeds accordingly. I join in upholding it and dismiss the appeal.
APPEAL NO. CA/C/GOV/EA/49/2012

This appeal as stated in the lead judgment is from the decision by the lower tribunal to enforce the decision of the Supreme Court in the consolidated appeals; SC 1/2012 and SC 2/2012, it may be recalled that the Lower Tribunal suo moto, taking judicial notice of the said decision by the apex court, had on the 20/2/2012, struck out the Appellants petition on the ground that it lacked the required judicial jurisdiction to continue with the hearing denovo or trial on the merit.

Let me say that the crucial primary issue that reasonably arises from the decision of the Lower Tribunal is:-

Whether the Lower Tribunal was right in law to have struck out the Appellant’s petition on the ground that it lacked the jurisdiction to continue with the retrial or hearing denovo ordered on the 14/11/2011 by the Supreme Court.

The secondary issue may be whether the Lower Tribunal was right to have suo moto and without affording the parties, particularly the Appellants a hearing, struck out the petition. The preliminary objection by the 4th Respondent’s on the ground that since the petition had lapsed by the provision of section 285(6) of the Constitution the appeal is an academic exercise. Without the need to waste verbiage, I should say right away that the decision by apex court in the consolidated appeals delivered on the 7/2/2012 is straight forward, in clear and unambiguous language. The lifespan and existence of any election petition before an election tribunal was limited to the period of 180 days prescribed by the provisions of Section 285 (6) of the Constitution at all times, from the date it was initially filed by a petitioners before the Tribunal. An election tribunal has no jurisdiction to hear or try or continue the hearing or trial of any petition outside the 180 days. That is the law on the interpretation of the provision of the constitution and good, bad, harsh, cruel or otherwise unpalatable, all authorities, persons and lower courts, are constitutionally bound by it. No amount of intellect, ingenuity, scholarship or brilliance, can change the law outside the Supreme Court or the legislature as far this court and all other courts in the country are concerned.

There is no dispute that the Appellants’ petition was fined on the 16/5/2012 and that the 180 days from the date of filing by the Appellants at the tribunal have since the 13/14 of November 2011, expired. The petition had automatically lapsed and is dead by the effluxion of time and the Lower Tribunal lacked the jurisdiction to try it, by the decision of the apex court irrespective of whether it was remitted by an appeal court for retrial hearing denovo. There are no two (2) ways about it. To purport to go on with the consideration of the merit of the appeal would be attempting to bring back to life that which the apex court had effectively pronounced dead. It would be futile enterprise that prudence would not allow this court to embark upon.

In the above circumstances, I am in complete agreement with my learned brother in the lead judgment that the preliminary objection is meritorious and deserves to be upheld. It is upheld by me for the above and more pungent reasons set out in the lead judgment which I adopt. The appeal is dismissed for being academic.

It would have been observed that we did not consider the issues raised by the parties in the respective appeal after upholding the preliminary objection in the appeals. We are aware of the general principle of law restated by the Supreme Court in many cases that this court being an intermediate court should consider, deal with and pronounce on all the issues placed before it by parties to an appeal. The most recent of such cases is OVUNWO V. WOKO (2011) 17 NWLR (1277) 522 at 5467.

However an exception was made by the apex court in cases that include F.M.H. v. CSA LTD (2009) 9 NWLR (1145) 193 at 220-1 where it was said that except or unless in clearest of cases, this court should endeavour to pronounce on all issues put before it. See also ADAH v. NYSC (2004) ALL FWLR (223) 1850; IFEANYICHUKWU (OSONDU) CO V. SOLEH BONEH (2000) 5 NWLR (656) 322.
There can be no clearer cases than a case in which the apex court had expressly stated that a tribunal lacks the jurisdiction to try or continue the trial or hearing of an election petition after the expiration of 180 days from the day it was filed. As a result, it would be fruitless to consider whether an election tribunal that declines jurisdiction over an election petition that had lasted more than 180 days from the date it was filed, was right or wrong in that decision. The law as declared by the apex court speaks for itself and leaves no room for argument on the issue.

In the circumstance, the duty of this court to consider the said issue abates for the issue is no longer, live for consideration by this court.

For the above reasons, we end the judgment in two (2) appeals with the determination of the preliminary objections which have effectively subsumed the issues in the appeals. I make no order on costs.

UZO I. NDUKWE-ANYANWU, J.C.A:

 

I was privileged to read in draft the judgments just delivered by my learned brother Joseph Tine Tur, JCA. As these consolidated appeal stand, there are no live issues left. The Tribunal lacked the necessary vires to continue with the Petition after the 180 days provided in S. 285 (6) of the 1999 constitution (as altered has expired by effuxion of time. See ANPP V. Goni and Alhaji Kashim Shettima & Anor V. Alhaji Mohammed Goni & 3 ors in Appeals No SC/1/28/2012 and SC/2/20/2012. (Unreported)

With the fuller reasons given in the lead judgments of my learned brother I too must dismiss these appeals. I abide by all the consequential orders contained in the lead judgment.

S. BAGE, J.C.A:

I agree.

ISAIAH OLUFEMI AKEJU, J.C.A:

I agree.

 

Law Nigeria Admin
Law Nigeria Admin

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