All Nigerian Peoples Party & Ors. V. Alhaji Mohammed Goni & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is a consolidated appeal against the judgment of the Court of Appeal, holden at Jos, in appeal NO. CA/J/EPT/GOV/227/2011 delivered on the 23rd day of December, 2011 in which the court allowed the appeal of the 1st and 2nd respondents and ordered that the election petition filed by the said respondents be tried on the merit by an Election Tribunal to be constituted by the appropriate authority.

On the 26th day of April, 2011 elections were held into the office of state governors in Nigeria including Borno state in which the 1st respondent was the governorship candidate of the 2nd respondent for the Office of Governor of Borno State. The appellant in SC/1/2011, ALL NIGERIA PEOPLES PARTY (ANPP), a registered political party who is also 3rd respondent in SC/2/2011 sponsored the 1st and 2nd appellants in SC/2/2011 as Governor and Deputy Governor in the aforesaid election.

At the end of the election, the 4th respondent in both appeals (INEC) declared appellants in SC/2/2011 as the winners of the said election, having scored the majority of lawful votes cast at the election and satisfied other constitutional and/or statutory requirements. 1st and 2nd respondents in both appeals were dissatisfied with the result of the election and consequently filed an election petition at the Governorship Election Tribunal which was set up for Borno State. The petition was filed on 17th May, 2011 and was assigned No. BO/EPT/GOV/1/2011.

In the course of the proceedings 1st and 2nd respondents filed a motion ex-parte for the issuance of pre-hearing notice which was opposed by appellants on the 2nd day of August, 2011 and the ruling thereon was adjourned to 10th August, 2011. The tribunal ruled that an ex-parte application was not a proper procedure for the issuance of a pre-hearing notice and struck out the application.

The 1st and 2nd respondents were not satisfied with that ruling and consequently appealed against same in appeal No. CA/J/EPT/GOV/55/2011.

Later in the proceedings parties were invited by the tribunal to address it on the issue as to whether there was anything left of the petition having regards to its ruling of 10th August, 2011 as a result of which invitation appellants and other respondents in the petition filed applications in which they sought for the dismissal of the petition on the ground that it had been abandoned pursuant to the provisions of paragraph 18(4) and (5) of the 1st schedule to the Electoral Act, 2010, as amended.

The 1st and 2nd respondents, as petitioners in the petition, also filed an application for an order extending time within which to apply for pre-hearing notice. All the applications were taken together and the ruling adjourned to 20th September, 2011. Meanwhile, the appeal against the ruling of 10th August, 2011 was fixed for hearing on 21st September, 2011 which date was later brought forward to 19th September, 2011 on which date the Court of Appeal ordered the trial tribunal not to deliver its ruling fixed for 20th September, 2011.

The order of the Court of Appeal of 19th September, 2011 arresting the judgment of the tribunal scheduled for 20th September, 2011 resulted in appeals to this court in appeal Nos. SC/332/2011 and SC/333/2011 which eventually resulted in the appeal by 1st and 2nd respondents being adjourned sine die by the lower court to await the outcome of appeal Nos. SC/332/2011 and SC/333/2011. The order was made on 26th September, 2011 resulting in an appeal NO. SC/352/2011 by the 1st and 2nd respondents herein. Appeal Nos. SC/332/2011, SC/333/2011 and SC/352/2011 were later consolidated by this court at the conclusion of which hearing the court allowed the appeals of the appellants and that of the 3rd respondents and ordered that the trial tribunal should continue with the proceedings. Appeals NO. SC/352/2011 was dismissed by this court in the consolidated judgment delivered on the 31st day of October, 2011.

As a result of the above judgment, the trial tribunal gave its rulings on the various applications then pending before it on the 12th day of November, 2011. The application by the 1st and 2nd respondents to file pre-hearing notice out of time was dismissed and there is no appeal against that ruling. The petition was dismissed following the applications of the appellants and the 3rd and 4th respondents on the ground that it had been abandoned which resulted in an appeal filed on 17th November, 2011 by the 1st and 2nd respondents which was allowed by the lower court on 23rd December, 2011. There was a preliminary objection raised by the appellants against the appeal of the 1st and 2nd respondents at the lower court on two main grounds: namely on the ground that the appeal was incompetent and that it had become an academic exercise which objections were overruled.

The issues for determination in these appeals are as follows:-

In SC/1/2012, learned counsel for the appellant, Dr. Alex A. Izinyon, SAN, in the appellant brief filed on 10th January, 2012 identified four issues viz:-

“(1) Whether the learned justices (sic) of the Court of Appeal were right in law when they held that the appellants entire Notice of Preliminary Objection was not meritorious consequently dismissed same.

(2) Whether having regards to Section 285(5)(b) (sic) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the learned justices of the Court of Appeal were right in law to have remitted the 1st and 2nd respondents’ petition to another panel to be reconstituted…

(3) Whether considering the circumstances surrounding the 1st and 2nd respondent’s petition and the Supreme Court of Nigeria decision in the consolidated appeal Nos. SC/332/2011; SC/333/2011 and SC/352/2011, the learned justices of the Court of Appeal were right in law when they held that the tribunal was in error in dismissing the 1st and 2nd respondents’ petition as having been abandoned by relying on its previous ruling of 10th August, 2011.

(4) Whether the judgment of the learned justices of the Court of Appeal delivered on 23rd December, 2011 is not a nullity by virtue of Section 233(2)(e)(i); section 235 and section 285(5)(d) (sic) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). ”

On his part, Yusuf Ali, SAN for appellants in SC/2/2012 identified the following issues for determination in the brief of argument filed on 6th January, 2012.

“i. Whether the court below was not wrong in overruling the various objections raised to the competence of the Grounds of Appeal contained in the Notice of Appeal filed by the 1st and 2nd respondents herein before the court below.

ii. Whether the court below was not wrong in relying on the ruling of the trial tribunal of 10th August, 2011 to come to the conclusion of allowing the 1st and 2nd respondents’ appeal when there was no valid appeal extant against the said ruling of 10th August, 2011 and the appeal the subject matter of the Court of Appeal’s decision was based purely on the ruling of the trial tribunal on the 12th November, 2011 which dismissed the petition of the 1st and 2nd respondents as an abandoned petition under the provision of the Electoral Act, 2010 as amended.

iii. Whether the court below was not wrong having regard to the mandatory provisions of section 285(5) of the Constitution of the Federal Republic of Nigeria, 2011 (sic) as amended to have ordered that a new election tribunal be constituted to hear the petition of the 1st and 2nd respondents on the merit, after the mandatory one hundred and eighty (180) days prescribed by the constitution for the hearing and determination of the petition from the date it was filed had lapsed, by effluxion of time.

iv. Whether the court below was not wrong by overruling the objection of the appellants on the ground that the appeal of the 1st and 2nd respondents before the court below was hypothetical and academic having regard to the provisions of the Constitution and decided authorities on this point”.

It is very clear that the four issues identified for determination in both appeals are very much the same in substance.

Learned senior counsel for the 1st and 2nd respondents in both appeals raised two preliminary objections to the grounds of appeal in which he urged the court to strike out all the grounds of appeal and consequently dismiss the appeal on the grounds that:-

“(a) the leading judgment of the Court of Appeal delivered by M.A. Owoade, JCA is not contained in the record of appeal,

(b) what is contained in the record of appeal at pages 2942 – 2943 is the note of the Court of Appeal as to the delivery of the judgment of the court on 23rd of December, 2011,

(c) all the four grounds of appeal contained in the notice of appeal do not flow from the note of judgment.”

In respect of the 2nd preliminary objection which appears to be in the alternative, learned senior counsel urged the court to strike out grounds 2, 3, 4 and 5 on the grounds that:-

“(a) Grounds 2 and 3 of the notice of appeal raise questions of mixed law and fact.

(b) By Section 233(3) of the 1999 Constitution, leave of the Court of Appeal or this court is required to file and argue a ground of appeal raising a question of mixed law and fact.

(c) The appellants have neither sought nor obtained leave of the Court of Appeal of this court to file and argue the condemned grounds.

(d) In the premises, this court has no jurisdiction to entertain the grounds.”

Learned senior counsel for the appellant in SC/2/2012 filed a reply brief on 24/1/2012 in which he pointed out that a supplementary record of appeal was filed in which the omitted lead judgment of the lower court was brought before this court by the lower court and urged the court to take judicial notice of same.

It should be noted that at the oral hearing of the appeal on the 24th day of January, 2012 learned senior counsel for the 1st and 2nd respondents/objectors did not dispute the fact that he had been duly served with the said supplementary record. That being the case coupled with the fact that the supplementary record containing the said lead judgment is before this court, I consider it a waste of time to comment any further on the first objection as the same has legally ceased to be in contention. It is accordingly dismissed.

On the second objection, in relation to SC/1/2012, it is important to note that it does not attack ground 1 of the Grounds of Appeal neither did learned senior counsel proffer argument in relation respect of the second objection but attacked grounds 2 and 3 only. What this means is that grounds 1, 4 and 5 of the Grounds of Appeal are valid and therefore can sustain the appeal – granted that grounds 2 and 3 are defective for want of leave to appeal.

However, from a cursory look at the grounds of appeal, it is very clear that they are purely of law as they call for application of law to the facts as established in the case.

In any event, the main-issue that calls for determination in the appeals and which will be decided anon is:

“Whether the court below was not wrong having regards to the mandatory provisions of Section 285(6) of the Constitution of the Federal Republic of Nigeria, 2011 (sic) as amended to have ordered that a new election tribunal be constituted to hear the petition of the 1st and 2nd respondents on its merit, after the mandatory one hundred and eighty (180) days prescribed by the constitution for the hearing and determination of the petition from the date it was filed had lapsed by effiuxion of time”.

There is however a sub-issue which is whether the lower court has the vires/jurisdiction to base its decision on the ruling of the trial tribunal of 10th August, 2011 in coming to the conclusion to allow the appeal against the decision of the trial tribunal of 12th November, 2011.

The issues being as above, there are clearly issues of law as there is no dispute on the relevant facts. In short, the objection is clearly misconceived and is consequently overruled.

In arguing the main issue, learned senior counsel for the appellant in SC/2/2012, Yusuf Ali, SAN stated that it is not disputed that the petition was filed at the tribunal on 17th May, 2011 and by the provisions of Section 285(5) of the 1999 Constitution it ought to have been heard and determined within one hundred and eighty (180) days of its filing; that the time the lower court made the order remitting the case to another tribunal for hearing de novo on 23rd December, 2011, a period of two hundred and twenty-one (221) days had lapsed between the filing of the petition and the date the retrial was ordered; that the lower court was in error in overruling the preliminary objection of the appellant on the provisions of Section 285(6) of the 1999 Constitution as it affects the appeal then pending before it; that the provisions of Section 285(6) of the 1999 Constitution, as amended are mandatory and clear and unambiguous and ought to be given effect – relying on Okenwa vs Military Governor of Imo State (1997) 6 NWLR (Pt. 507) 136 at 157; Odeneye vs Efunuga (1990) 1 NWLR (Pt. 164) 618 at 624; PDP vs INEC (1999) 11 NWLR (Pt. 626) 200; Shettima vs Goni (unreported) delivered on 31st October, 2011; that the lower court cannot rely on any provisions of its Rules to extend time constitutionally prescribed and urged the court to resolve the issue in favour of the appellant and allow the appeal.

In respect of SC/1/2012 the issues relevant to Issue 3 in. SC/2/2012 are Issues 2 and 4 which are as follows:-

“(2) Whether having regards to Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 134(2) of the Electoral Act, 2010 (as amended) the learned justices of the Court of Appeal were right in law to have remitted the 1st and 2nd respondent petition to another panel to be reconstituted…

(4) Whether the judgment of the learned justices of the Court of Appeal delivered on 23rd December, 2011 is not a nullity by virtue of Section 233(2)(e)(i); Section 235 and Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)…”

In arguing the issues, learned senior counsel for the appellant submitted that the lower court was in error when it allowed the appeal of the 1st and 2nd respondents and remitted the matter to the tribunal to be heard by another panel contrary to the provisions of Section 285(6) of the 1999 Constitution as amended and Section 134(2) of the Electoral Act, 2010 as amended; that where the provisions of an Act are clear and unambiguous they must be given their plain and ordinary meaning, relying on Fawehinmi vs IGP (2002) 7 NWLR (Pt. 606) at 678: Sumonu vs Oladokun (1996) 8 NWLR (Pt.467) 387 at 419; A-G Fed. Vs. Abia State (2002) 6 NWLR (Pt.264) 365; that the relevant operative words in the relevant sections are “shall”, “within” and “from the date of the filing of the petition”; that the use of the word “shall” in a statute connotes mandatory observance of the provisions considered, relying Onoche vs Odogwu (2006) 6 NWLR (Pt. 975) 65 at 89 and that they mean simply that an election petition must be heard and determined within one hundred and eighty (180) days of the filing of the petition; that the petition filed on 17th May, 2011 lapsed on 13th November, 2011 being one hundred and eighty (180) days of the filing of the petition; that since the petition lapsed by 13th November, 2011, it was wrong for the lower court to have remitted same to an election tribunal to be constituted for hearing de novo; that to agree with the lower court means a petition will go on and on following each appeal and an order of retrial which is contrary to the intention of the law makers and the express provisions of the law and constitution and urged the court to allow the appeal.

In his reaction to the argument on the issue, learned senior counsel for the 1st and 2nd respondents, Tayo Oyetibo, SAN conceded that one hundred and eighty (180) days had lapsed after the filing of the petition as at the date the order of retrial was made by the lower court but argued that the said effluxion of time does not remove the jurisdiction of the lower court to entertain the appeal and give orders as the justice of the case demands.

It is the contention of learned senior counsel that the correct interpretation of the provisions of Section 285(6) of the 1999 Constitution, (as amended) when read along with Section 246 of the said constitution which confers jurisdiction on the lower court to entertain appeal from the decisions of the Governorship Election Tribunal, it is clear that the court is not to interpret the said Section 285(6) of the 1999 Constitution, as amended, to stultify the provisions of the said Section 246 of the said Constitution; that the interpretation urged by the appellants will lead to absurdity as the same would rob the lower court of the jurisdiction vested in it by Section 246 of the 1999 Constitution, relying on Idehen vs Idehen (1991) 6 NWLR (Pt.198) 382 at 418: Savannah Bank Nig. Ltd vs Ajilo (1989) 1 NWLR (Pt. 97) 305 at 326: that if an election tribunal delivers its judgment in an election matter within one hundred and eighty (180) days, Section 285(6) has achieved its objective as a result of which Section 246 of the Constitution comes into operation; that on the operation of the said Section 246 of the Constitution, the Court of Appeal is entitled to exercise all the judicial powers of the Federation as vested in it by Section 6(1) of the Constitution, which powers include the power to order a retrial pursuant to Section 15 of the Court of Appeal Act, and Order 4 Rule 9 of the Court of Appeal Rules, 2011; that in acting under Section 6(1) and 246 of the Constitution, the Court of Appeal is not to be inhibited by the provisions of Section 285(6) of the Constitution because Section 246 is not superfluous; that the decisions of this court in PDP vs CPC and Shettima vs Goni cited and relied upon by the appellant are not relevant to this case as they deal with interlocutory appeals whereas Section 285(6) of the Constitution as argued by respondents is in respect of a final decision of the tribunal and urged the court to resolve the issue against the appellants and dismiss the appeals.

I must point out from the onset that the above submission of learned senior counsel is based completely on a situation where the election tribunal concluded hearing and delivered its decision within one hundred and eighty (180) days as provided by the Constitution. It does not address the issue as to if the tribunal failed to do so within the time allotted, whether there will be need to have resort to the provisions of Section 246 of the 1999 Constitution as amended.

The Section of the 1999 Constitution as amended relevant to the determination of the substantive issue before this court is Section 285(6) which Provides as follows:-

“(6) An election tribunal shall deliver its judgment in writing within one hundred and eighty (180) days from the date of the filing of the petition”.

The above provision is very clear and unambiguous and therefore needs no construction or interpretation. The law is settled that in a situation as this the duty of the court is simply to apply the provision as it exists; that is to give the words their plain and ordinary meaning.

The above being the law, it follows that an election tribunal, in an election petition matter, must deliver its decision/judgment/ruling/order in writing within one hundred and eighty (180) days from the date the petition was filed. It means the judgment cannot be given a day or more or even an hour after the one hundred and eighty (180) days from the date the petition was filed. In the instant case, the 1st and 2nd respondents do not dispute the cardinal fact that as at the time the lower court ordered a retrial of the election petition, the one hundred and eighty (180) days allowed for the hearing and determination of the petition had lapsed. At page 26 paragraph 7.1 of the 1st, and 2nd respondents’ brief of argument deemed filed on 24/1/2012, learned senior counsel for the said respondents had these to say; inter alia:-

“The 1st and 2nd respondents do not disputes (sic) the fact that one hundred and eighty (180) days had lapsed after the filing of their petition at the time the court below heard their appeal…” but went on to pose a question as to whether “…that fact without more remove the jurisdiction of the court to entertain the appeal and give orders which the justices of the case demand”

The question is not whether the lower court has jurisdiction to hear and determine an appeal and give order which the justice of the case demands but whether the court can legally order a retrial of an election petition which, by the admission of the 1st and 2nd respondents had lapsed. What would be the effect of such an order Is it not a clear case of an exercise in futility

I am compelled by circumstances beyond my control to state, without fear of contradiction as same has been settled by a long line of authorities, that jurisdiction is a creation of statute or the constitution. Jurisdiction is therefore not inherent in an appellate court neither can it be conferred on a court by order of court.

Section 285(1) & (2) of the 1999 Constitution established and conferred jurisdiction on election tribunals in the following terms: “(1) There shall be established for each state of the Federation and the Federal Capital Territory, one or more election tribunals to be known us the National and State Houses of Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether.

(a) any person has been validly elected as a member of the National Assembly; or

(b) any person has been validly elected as a member of the House of Assembly of a state.

(2) There shall be established in each state of the Federation an election tribunal to be known as the Governorship Election Tribunal which shall to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a state.” In the instant case the jurisdiction of the Election Petition Tribunal and that of the Court of Appeal to hear and determine appeals from the said tribunals is statutory and constitutional, see Section 246(1)(b) & (c) and Section 285(1) & (2) supra of the 1999 Constitution.

However, the jurisdiction so conferred on the lower court to hear appeals from the relevant tribunals is circumscribed in relation to the time/period within which the said appeals must be heard and determined vide the provisions of Section 285(7) of the 1999 Constitution supra.

With regards to the election tribunal the time within which the jurisdiction so conferred on it is to be exercised/carried out is provided for in Section 285(6) of the 1999 Constitution which enacts thus:-

“(6) An election tribunal shall deliver its judgment in writing within one hundred and eighty (180) days from the date of the filing of the petition”.

It follows that where a tribunal fails to comply with the above provisions the jurisdiction to continue to entertain the petition lapses or becomes spent and cannot be extended by any court order howsoever well intentioned, neither can a court order create and confer jurisdiction on any court/tribunal on any matter where jurisdiction has not been conferred either by statute or the constitution.

It is my considered opinion that by the lower court ordering a retrial by a tribunal which had ceased to have jurisdiction in the matter it attempts to create jurisdiction in the said tribunal by operation of a court order which is not only very erroneous but unacceptable.

It has been held by this court in a number of cases including consolidated appeal Nos. SC/141/2011; SC/266/2011; SC/267/2011; SC/282/2011; SC/356/2011 and SC/357/2011: Brig. Gen Mohammed Buba Marwa & Ors vs Adm. Murtala Nyako & Ors delivered on 27th January, 2012 that the time fixed by the constitution is like the rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within the time so fixed, it lapses as the court is thereby robbed of the jurisdiction to continue to entertain the matter.

It is very worrisome that despite the decisions of this court, since October, 2011 on the time fixed in the constitution some of the justices of the lower court still appear not to have gotten the message. From where will the election tribunal get the 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.

It should be constantly kept in mind that prior to the provisions of Section 285(6) of the 1999 Constitution, as amended; there was no time limit for the hearing and determination of an election petition by the election tribunals or the appeals arising therefrom. That situation resulted in undue delay in the hearing and determination of election matters. The amendment to the original Section 285 of the 1999 Constitution by allotting time within which to hear and determine election petition and appeals arising therefrom is designed to ensure expeditious hearing and conclusion of election maters in this country. If the decision of the lower court, in the circumstance of this case and the law, is allowed to stand as urged by the respondents it would reintroduce the earlier mischief which the amendment sought to correct. It will mean that the instant election petition can go on for another one hundred and eighty (180) days or more after the expiration of the original one hundred and eighty (180) days assigned by the constitution.

It is my considered view that the provisions of Section 285(6) supra is like a statute of limitation which takes away the right of action from a party leaving him with an unenforceable cause of action. The law may be harsh but it is the law and must be obeyed to the letter more so when it is a constitutional provision.

On the issue as to whether the lower court was in error in relying on the ruling of the trial tribunal delivered on 10th August, 2011 in coming to conclusion to allow the appeal of the 1st and 2nd respondents when there was no valid appeal extant against the said ruling, it is not disputed that the decision of the trial tribunal on 10th August, 2011 struck out the application of 1st and 2nd respondents, then petitioners before the tribunal for issuance of pre-hearing notice, on the ground that the application was made ex-parte rather than by motion on notice; that the decision resulted in appeal No. CA/J/EP/GOV/151/2011 before the lower court which appeals was held by this court in the consolidated appeal Nos. SC/332/2011; SC/333/2011 and SC/352/2011 in the judgment delivered on the 31st day of October, 2011 to have lapsed by effluxion of time, by virtue of the provision of Section 285(7) of the 1999 Constitution thereby leaving that decision by the tribunal extant/valid/subsisting. It does not matter if the decision is in law erroneous. Once there is no successful appeal against same, it remains a valid decision.

I have carefully gone through the record and cannot see where and how the tribunal relied on its earlier decision of 10th August, 2011 in coming to its decision of 12th November, 2011 in dismissing the petition of the 1st and 2nd respondents for abandonment as submitted by learned senior counsel for the 1st and 2nd respondents. Even if the tribunal did that, it will not be wrong as the decision of 10th August, 2011 had not been set aside by an appellate court of competent jurisdiction. The decision of 10th August, 2011 therefore remained binding on the parties and the tribunal that rendered it.

In any event, at the time the complaint against the ruling of 10th August, 2011 was being raised before the lower court, that court had lost jurisdiction to entertain same by effluxion of time, by virtue of the provisions of Section 285(7) of the 1999 Constitution, as amended.

Granted without conceding that the lower court could entertain a complaint against the decision of the tribunal of 10th August, 2011 in an appeal against the decision of the same tribunal rendered on 12th November, 2011 and in the process set aside the said decision of 10th August, 2011 as it did, it would still be an exercise in futility as the time constitutionally allotted for hearing and determining the petition by the tribunal had long expired by operation of Section 285(6) of the 1999 Constitution. The result is therefore obviously of no legal benefit for the 1st and 2nd respondents.

The lower court was therefore in error in delving into the matter in the circumstances of this case.

In conclusion, I find merit in the appeals which are hereby allowed. The decision of the lower court delivered on the 23rd day of December, 2011 which set aside the decision of the Borno State Governorship Election Petition Tribunal delivered on 12th November, 2011 is hereby set aside. In its place it is hereby ordered that the said decision/judgment/ruling of the said tribunal delivered on 12th November, 2011 dismissing the 1st and 2nd respondents’ election petition be and is hereby restored and affirmed.

Appeal Nos. SC/1/2012 and SC/2/2012 are hereby allowed.

It is further ordered that parties bear their costs.

Appeals allowed.

SC.1/2012 (Consolidated)