Hon. Idi Shehu Tiyin & Anor V. Alhaji Hamza Gawo & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Lead Ruling)

A brief background to this ruling is as follows: A petition was filed at the National and State House of Assembly Election Tribunal, Bauchi, State by the 1st and 2nd Respondents against the declaration of the 1st Appellant as the winner of the election held on 28th April, 2011 for the seat of member representing Warji Constituency in the Bauchi State House of Assembly.

In its judgment delivered at the close of trial on the 15th November, 2011, the lower Tribunal entered judgment in favour of the 1st and 2nd Respondents. Being dissatisfied with the decision of the Tribunal, the 1st and 2nd Appellants filed an Appeal to this Court on the 30th November, 2011, complaining on twelve grounds, wherein they seek an order of Court setting aside the judgment of the lower Tribunal and dismissing the petition.

When the Appeal arose for hearing on the 7th February, 2012, the Court wondered whether there was still a live appeal before it, regard being had to the date on which the judgment of the lower Tribunal was delivered, and invited counsel to address it on the issue. Thus, learned senior counsel for the Appellants, Mr. Okafor, submitted that, while being aware of the provision of Section 285 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), [hereinafter referred to as the 1999 Constitution (as amended)], which provides for the disposal of an appeal from the decision of the Tribunal within sixty (60) days from the date of judgment, the Supreme Court has held that any law limiting a Judicial Officer to a specific time within which to render judgment or to hear a case is bad law. For this, learned senior counsel relied on the decision in the case of Unongo V Aku (1983) 2 SCNLR 332. He submits that where, as in this Appeal, parties have done all that is within their power to have their case heard by the Court, but due to circumstances beyond the control of the Court, (as in this case, the nation-wide industrial action), and the case could not be heard, the Court should bend over backwards to accommodate such cases provided they were ready for hearing before the expiration of the sixty (60) day limit.

It is worth noting that even though all the Respondents were served, they were not in court, neither were they represented by counsel.

Section 285 (7) of the 1999 Constitution (as amended) provides thus:

“An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within sixty (60) days from the date of the delivery of the judgment of the tribunal or Court of Appeal”.

In the instant appeal, it is evident from the Record of Appeal, as well as from the Notice of Appeal filed by the Appellants, that judgment in the petition at the lower Tribunal was delivered on the 15th November, 2011. Learned senior counsel does not contest the fact that from the 15th November, 2011, (when judgment was delivered), to the 7th February, 2012 when this appeal came up for hearing, sixty (60) days had elapsed. This is manifest and indisputable. It is however the contention of learned senior counsel that the Court should be flexible enough to accommodate the Appeal since the Appeal lapsed due to reasons beyond the control of both the Court and the parties, i.e. due to the nation-wide industrial action embarked upon by civil servants.

The law is since settled that where the words of the constitution or a statute are plain, clear and unambiguous, they must be given their natural and ordinary meaning, as there is, in effect, nothing to interpret. Equally settled is the principle of law which states that the Constitution of the Federal Republic of Nigeria is supreme and binding on all authorities and persons throughout the Federal Republic of Nigeria. It is both elementary and fundamental that any other law which is inconsistent with its provisions is void to the extent of such inconsistency and must give way as the constitution must prevail.

In the instant case, the words in Section 285 (7) of the 1999 Constitution are plain, explicit, unequivocal and unambiguous. They are also mandatory as can be seen by the use of the word “shall”. What this means is that all petitions arising from the decisions of an Election Tribunal shall compulsorily be heard and disposed of within the period of sixty (60) days provided by law. Period!

Indeed, this issue arose for decision in the consolidated Appeals of Peoples Democratic Party (PDP) v. Congress for Progressive Change (CPC) & 42 others Appeal No. SC.272/2011 and Dr. Goodluck Ebele Jonathan & 1 Other v. Congress for Progressive Change (CPC) & 41 Others Appeal No. SC.276/2011 (Unreported) Judgment delivered on 31st October, 2011. Therein, my noble lord, Onnoghen, JSC, held thus at page 74 of the Judgment:

“It is clear that by the use of the word “shall” in Section 285 (7) of the 1999 Constitution the framers of the Constitution meant to make and did make the provision mandatory as it admits of no discretion whatsoever. It means that the sixty (60) days allotted in Section 285 (7) of the 1999 Constitution (as amended) cannot be extended even for one second as the decision of the appellate court must be rendered “within” sixty (60) days of the delivery of the judgment on appeal”.

By virtue of the doctrine of stare decisis, this decision of the Supreme Court interpreting Section 285 (7) of the 1999 Constitution (as amended) is binding on this Court. Sixty (60) days is sixty (60) days and admits of no flexibility or exercise of discretion by the Court.

This is even more so when one takes into account the mischief this constitutional provision was intended to cure. Election matters were going on interminably and endlessly to the detriment of parties, the courts as well as the general members of the public who, quite understandably, were keenly and avidly interested in knowing the outcome of the elections and who their elected representatives were. Evidently, the spirit behind the provision was to curtail these incessant and inordinate delays that attended the hearing and disposal of proceedings relating to election matters. The intention of the drafters of the law is to ensure that election matters are heard and concluded with dispatch and with the minimum possible delay. It is no wonder that the learned Onnoghen, JSC went on to hold, for the avoidance of doubt, in relation to Section 285 (5), (6) and (7) of the 1999 constitution (as amended) at pages 17 – 18 of the judgment thus: