Hon. Gabriel Torwua Suswam V. Prof. Steve Torkuma Ugba & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

On the 2nd February, 2012, I made pronouncement in this appeal dismissing the same and then deferred the reasons for the judgment to a later date. These are now the reasons.

The facts culminating in this appeal stems from the Election Petition dated and filed on the 17th May, 2011 by the 1st and 2nd Respondents against the Appellant and the 3rd and 4th Respondents claiming about five reliefs in the main and two in the alternative.

Then, following the application for issuance of pre-hearing notice, the orders made by the Tribunal in respect thereof, and the order dismissing the 3rd Respondent’s Motion on Notice for dismissal of the Petition, an appeal was lodged before this Court which was heard and determined. Upon their dissatisfaction with the pronouncement of this Court, a further appeal was presented before the Supreme Court. In its judgment delivered on the 14th November, 2011, the Supreme Court made an order setting aside the decision of the Court of Appeal in the said appeal, and, further ordered that the Petition filed by the 1st and 2nd Respondents on 17/05/2011 be heard on the merits. The Tribunal then set its machinery in place for hearing of the Petition on the merits.

However, the Tribunal’s attempt to hear the Petition on the merits jammed a brick wall as it was confronted with a Motion on Notice filed by the Appellant herein on the 22nd November, 2011 praying the Tribunal for an order granting him leave to move his said Motion on Notice outside pre-hearing, and, for an order striking out the Petition on the ground that the Petition has elapsed by the operation of the Constitution. The basis for the said Motion as articulated therein is thus:

“a. By section 285 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended), an Election Petition Tribunal shall deliver its judgment in writing within 180 days from the date of filing of the Petition.

b. The Petitioners’ Petition was filed on the 17th day of May, 2011.

c. The 180 days prescribed for the hearing and delivery of judgment in the Petition lapsed on the 13th of November, 2011.

d. The Honourable Tribunal from 13/11/11 was robbed of the competence and jurisdiction to determining the Petition”.

Then, in its ruling delivered on the 8th December, 2011, after due consideration of addresses of respective Counsel for the parties, the Tribunal held that the provisions of section 285 (6) of the 1999 Constitution of Federal Republic of Nigeria do not preclude the Tribunal from hearing the Petition on the merits as ordered by the Supreme Court.

Following the pronouncement and being distraught with the same, the Appellant filed this appeal. Briefs of Argument were, however, filed and exchanged by the parties. Three issues were propositioned by the Appellant in his Brief of Argument settled by his leading Counsel, D.D. Dodo, S.A.N. They read thus:

“i. Whether the period of 180 days for the trial of the Petition runs from any other date than from the date of filing of the Petition.

ii. Whether the judgment of the Supreme Court dated 28th day of November, 2011 in appeal No. SC 360/2010-Steve Torkuma Ugba and others vs. Peoples Democratic Party & ors enables the trial Tribunal to assume jurisdiction to try the Petition beyond the jurisdiction to determine that the Petition is statute barred?

iii. Whether section 285(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) permits the hearing and determination of an election petition after 180 days from the date of filing of the Petition?”