Barr. Ayodele Musibau Kusamotu V. All Progressives Congress & Ors (2019)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the decision of the Court of Appeal, Abuja Division, referred to hereinafter as the Court below, in appeal No. CA/A/313/2017. The appellant had appealed to the Court below on 3rd May 2017 against the ruling of the Federal High Court, the trial Court, sitting in Abuja over suit No. FHC/ABJ/CS/1038/2017, delivered on the 10th April 2017. By the ruling at the instance of the 2nd respondent as the 2nd defendant, the trial Court ordered that the suit commenced by the appellant as plaintiff be tried by pleadings to be filed and exchanged by the parties.
Dissatisfied, the appellant herein appealed to the Court below which, in allowing the appeal, concluded its judgment at page 1241, vol.2 of the record of appeal thus: –
“On the whole, this appeal succeeds as it has merit. It is accordingly allowed. Accordingly, I hereby set-aside the ruling of the Federal High Court in suit No.FHC/ABJ/CS/1038/2014 delivered on 10-4-17 by J.T. Tsoho granting the 2nd Respondent’s application for an order that the parties to (sic) file pleadings in the suit. It
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is hereby ordered that the trial Court proceed to hear and determine the originating summons together with all the pending objections by the 1st and 2nd defendants to the competence of the suit and the validity of the amended originating summons forthwith.
It is hereby further ordered that the said hearing by the trial Court shall be accelerated and shall be day by day.” (Underlining supplied for emphasis).
It is against the foregoing decision that the appellant has appealed to this Court on a notice filed on the 23/5/18 containing eight grounds.
The appeal was argued in this Court on the 21/11/2018 and judgment reserved for today 15/02/2019.
The reliefs the appellant seek by his appeal are as contained in paragraph four (4) of his notice of appeal which reads: –
“To allow the appeal; set aside the part complained of the judgment of the Lower Court made on the 19th day of January 2018; to declare the appellant as the only authentic and sole candidate of the 1st Respondent; to issue and order directing the speaker House of Representatives to swear in the Appellant as a member representing Ifelodun/Boripe/Odo-Otin Federal
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Constituency Osun State with all the rights and privileges attached thereto; to issue an order directing the 2nd Respondent to refund to the Appellant all salaries allowances, estacodes and benefits so far received
OR ALTERNATIVELY
To order the 1st Respondent to conclude the process of its on-going primaries.”(Underlining supplied for emphasis).
It is instructive to note that appellant’s suit on the basis of which he urges the foregoing reliefs is a pre-election matter the merit or otherwise of which is yet to be determined. It is also significant to recall that the lower Court, conscious of the fact that time is of essence of the suit, had ordered that it be given accelerated hearing.
On the 4th of June 2018, before the instant appeal was heard on the 21/11/18 and judgment reserved for 15/02/19, the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No 21) Act 2017 on being assented to by the President, further amended Section 285 of the Constitution by specifically providing in Subsection 12 thereof thus:-
“(12)An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.”
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Section 285 of the 1999 Constitution as amended confers jurisdiction on this Court to hear and determine the instant appeal. The Section by the foregoing clear and unambiguous subsection has set up definite time frame within which the jurisdiction must be exercised. By the sub-section, this Court must hear and determine appeal arising from Election Petition within sixty (60) days of the filing of the appeal.
In Mallam Abubakar & Ors V. Saidu Usman Nasamu & Ors (2012) LPELR-7826 (SC) this Court while considering a similar provision held per Onnoghen JSC (as he then was) thus:-
“The words employed by the legislature in Section 285(7) and (8) of the 1999 Constitution are very simple and straight forward and unambiguous and therefore admit of no special construction or interpretation. They simply mean what they plainly stated. Subsection (7) of the Section 285 means simply that it is obligatory on the Court of Appeal or the Supreme Court to hear and determine an appeal arising from an Election Petition matter within sixty (60) days from the date of the delivery of judgment by the Election Tribunal or Court
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of Appeal. The Provision makes no distinction between an interlocutory decision of the Tribunal and the final decision of the tribunal or Court of Appeal. Also, to be noted is the use of the words “shall” and “within” in the said subsection which means that the provision is mandatory as it admits of no discretion whatsoever. The word “within” means a decision rendered by the affected Court outside the assigned sixty (60) days is null and void.” See also Alhaji Kashim Shetima & Anor V. Alhaji Mohammed Goni (2011) LPELR-417 (SC).
Before the enactment of the CFRN 1999 (Fourth Alteration No 21) Act 2017 on 4th June 2018, time frame had not been provided for the hearing and determination of appeals arising from decisions in pre-election matters. With the provision of the time frame under Subsection 12 of Section 285 of the 1999 Constitution as so altered, appeals from pre-election causes, like those that have arisen from election petitions which have similarly been provided for under Subsection 7 of the very Constitution, must be heard and determined within sixty (60) days by the Court of Appeal or the Supreme Court as the case may be. Neither of the two Courts can, for
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whatever reason, extend the time provided for under Subsection 12 of Section 285 of the 1999 Constitution as amended. It is mandatory to comply with the provision. To extend the time provided by the subsection for the hearing and determination of appeals arising from pre-election matters is for the Court to embark on judicial legislation, a condemnable act. See Senator John Akpanudoedehe & Ors V. Godswill Obot Akpabio & Ors (2012) LPELR-9728 (SC), Chief Felix Amadi & Anor V. Independent National Electoral Commission (2012) LPELR-7831 (SC) and Ugba & Ors V. Suswam (2012) LPELR-9726 (SC).
It would be legitimate to suggest that before this appeal is determined, since the applicability of Section 285(12) of the 1999 Constitution as amended had not been addressed by the parties in their respective briefs and it is the Court that raises the issue, parties to the appeal need to be heard by the Court before the appeal is disposed of on the basis Section 285(12) of the 1999 Constitution as amended.
It is also legitimate to insinuate that since the appeal had been filed before the enactment of Subsection 12 of Section
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285 of the 1999 Constitution as amended, it will amount to giving retrospective effect to the subsection.
As legitimate as these concerns may be, they are, in the particular circumstance of this appeal, not unsurmountable. They can easily be assuaged.
As a general rule, it is most inappropriate and irregular for a Court to take up and decide a point without hearing parties or their counsel. This Court has posited that ordinarily a Court has no business whatsoever in dealing with a matter not before it. No matter how clear an issue raised by the Court appears to be, it should not be resolved without hearing the parties. See Bola Tinubu V. IMB Securities Plc (2001) 12 SCM 73, Victino Fixed Odds Ltd V. J. Ojo & ors (2010) 4 SM 127 and Goke Olaolu V.Federal Republic of Nigeria (2015) LPELR 24778 (SC). However, to all general rules there are always exceptions!
In this regard the principle has to be restated that the need to give parties a hearing when a court raises an issue suo motu may not be necessary where (i) the issue pertains to the court’s jurisdiction (ii) the parties ignored or are unaware of a statute that has being on the case and by virtue of the
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statutory provision the Court is expected to take judicial notice (iii) on the face of the record serious questions of the fairness of the proceedings is manifest. See Omokuwajo v. FRN (2013) 9 NWLR (Pt 1359) 300 at 332, Victino Fixed Odds Ltd v. Joseph Ojo and Ors (2010) 3 SC (Pt 1) 1, Gbagbarigha V. Toruemi & Anor (2013) 31 WRN 35 at 51- 52.
The instant appeal raises a jurisdictional question: the competence of this Court to hear and determine the appeal outside the time provided for by Section 285 (12) of the 1999 Constitution as amended. The appeal was filed on 23/5/18 more than two hundred and sixty-six 266 days ago. Such appeals must by Section 285(12) of the 1999 Constitution be heard and determined within sixty (60) days from the date of filing them. The Section is immutable and compliance with it mandatory. In essence being an appeal against a decision on a pre-election matter, with time for its hearing and determination having lapsed, has become statute-barred. The Court lacks the jurisdiction to entertain same as at 21/11/18 when it was heard and judgment reserved for today 25/02/2019.
Finally, the powers vested in National Assembly by
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Section 4 of the 1999 Constitution with respect to any matter included in the Exclusive Legislative are absolute and exclusive.
ltems 22 of Part I of the Second Schedule which contains the Exclusive Legislative list empowers the National Assembly, to the exclusion of any other body, to make laws in respect of election and election related matters thus: –
“22 Election to the offices of President and Vice President or Governor and Deputy Governor and any other office to which a person may be elected under this Constitution excluding election to a Local Government Council or any office in such council.”
The National Assembly in the exercise of its exclusive legislative power by virtue of Section 4 of the 1999 Constitution in relation to the foregoing item altered Section 285 of the Constitution by inserting Subsection 12 to the Section for the first time. The alteration became operative on the 7th of June 2018 when it was assented to by the President.
Certainly, appellants cause of action predates the alteration. There is undeniably this argument that the alteration should not commence earlier than the time of its enactment. Since
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appellant’s cause of action predates the enactment of the sub-section the subsection, it is part of the argument, should not be given retrospective effect by extending its scope to matters that had occurred earlier to its coming into being.
Certainly, this is a very legitimate concern. Courts frown on retrospective legislation which they consider to particularly impinge upon the concept of fair hearing. Being dutifully aware of the doctrine of separation of powers, however, the Courts have always recognised the overriding constitutional function of the legislature to make and amend laws including their revocation. The Courts limit themselves to the task of interpreting the laws, amendments or revocation to give effect to the intention of the legislature. Thus, where the intention is clear and ambiguous, the Courts have always interpreted the provision of the legislation to reflect such intention. See Adesanoye V. Adewole (2002) 9 NWLR (Pt 671) 127; Ahmed V. Kassim (1958) SCNLR 28; Adejumo V. Military Governor Lagos State (1972) 3 SC 124 and Ojokolobo V. Alamu (1987) 3 NWLR (Pt 61) 377.
In particularly Ojokolobo V. Alamu (supra) this Court has
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held that Subsection 12 to Section 285 which stipulates time frame within which proceedings may be taken and concluded and couched in such clear and unambiguous terms must be so construed. The provision is adjectival and must operate as such notwithstanding the retrospective effect it may have on accrued rights of the party such as the appellant herein. See also the recent decision of this Court restating and abiding by the principle in the Court’s recent decision in Appeal No. SC. 307/2018 between Obayemi Toyin V. Arogundade Samuel Musa and 4 ors delivered on the 18th January 2019.
It is for the foregoing that I find the instant appeal filed on 23/5/2018, two hundred (200) days more than the sixty (60) days Section 285 (12) allows for it to be heard and determined to be statute-barred. This Court lacks the jurisdiction of hearing and determining the appeal. It is accordingly hereby struck out.
The appellant must blame himself. It is his case and he chose to go about it in an irresponsible and non-chalant way. It is a pre-election cause arising from the 2015 general elections. Inspite of his success at the lower Court, he
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approached this Court which, as laughable as the appeal is, cannot constitutionally close its gate against the appellant. The Fourth Alteration Act No. 21 2017 has facilitated the appropriate platform and it is dutifully, hereby applied.
Counsel have a duty to assist the Court in fast tracking the hearing and determination of cases. Where they recklessly fail to do so, the Court must appropriately react.
The respondents are entitled to the cost of this appeal, put at five hundred thousand to each of them, same to be paid personally by the appellant counsel who woefully failed in his duty to his client and more so to the court.
SC.126/2018