Peoples Democratic Party (PDP) V. Arc. Austin Asema Achado & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M. B. DONGBAN-MENSEM, J.C.A (Delivering the Leading Judgment)

On 27th day of January 2012, I pronounced the unanimous decision of this Court pursuant to section 9(8) of the Constitution of the Federal Republic of Nigeria (second alteration) Act No. 2, 2010. This appeal fell to me to write the lead judgment in which I now give the reasons for my decision in dismissing the appeal filed.

This is an appeal by the 2nd Respondent/ Appellant against the ruling of the National/State House of Assembly election Tribunal sitting in Makurdi delivered on the 29th day of November, 2011 in the petition filed by the petitioners/Respondents against the election of held on 26th day of April, 2011.

Following the Gwer East/West House of Representatives election that took place on the 26th day of April, the 3rd Respondent was declared winner and returned as the Member representing Gwer East/ Gwer West House of Representatives. The Petitioners/Respondents being dissatisfied with the outcome of the election filed in Petition on the 17th day, of May 2011.

The 3rd Respondent and the Appellant challenged the jurisdiction of the trial tribunal to hear the Petition through their respective motions on notice on several grounds.

The Tribunal dismissed the petition based on the application of the 3rd Respondent. Aggrieved by the said decision, the petitioners appealed against the decision and the Court of Appeal reverted the petition to the tribunal for trial. During the re-trial, the Appellant and the 3rd Respondent herein raised before the Tribunal that by virtue of section 285(6) of the 1999 Constitution (as amended) and section 134(2) of the Electoral Act, 2010 (as amended) the Honourable tribunal has only 180 days from the dote of filing of this petition within which it must deliver its judgment and the 180 days has of ready lapsed with effect from the 13/11/11.

The Tribunal heard the applications of the Appellant and the 3rd Respondent and on 29/11/2011 refused the applications and held amongst other things that the 180 days within which to hear and determine the petition start to run from the time the Court of appeal made an order for retrial, Dissatisfied with the said ruling. The Appellant filed a notice of Appeal containing three grounds of appeal.

The Appellant submits that the following issues arise for determination:

Whether this petition NSHA/EPT/BN/REP/42/2011 has not lapsed on 12/11/2011 having regard to the provisions of section 285(6) of the 1999 Constitution (as amended) and section 134(2) of the Electoral Act, 2010 (as amended) and the Honourable Tribunal is deprived of the jurisdiction to hear same (ground one of the appeal.)

Whether the learned trial Tribunal is not bound to follow the interpretation of section 285(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) by the Supreme Court in SC. 332/2011: SC.333/2011: and SC. 352/2011 between Alhaji Kashim Shettima & Anor V. Alh. Mohammed Goni & 4 Ors (Supra) delivered on the 31st day of October, 2011 of Pages 21-24 in the petition (Ground 2 of the appeal) whether an order of re-trial is capable of reviving a petition that has lapsed by effluxion of time (ground 3 of the appeal)

The 1st and 2nd Respondents sole is:

Whether the 180 days period as provided by section 285(6) of the 1999 Constitution (as amended) con continue to run after the final decision of on election tribunal. (Ground one)

The 3rd Respondent filed no brief though duly represented.

The 4th to the 105 Respondents formulated a lone issue: