Hon. Kehinde Odebunmi & Anor. V. Ojo Oyetunde Oladimeji & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Lead Ruling)

The National Assembly Election Tribunal sitting at Ado-Ekiti on 26th June, 2012 delivered judgment in the election petition brought before it by the Appellants, as petitioners. The Tribunal in its considered judgment dismissed the petition challenging the return of the 1st Respondent, a candidate sponsored by the Action Congress of Nigeria (2nd Respondent) as the person duly elected in the Ijero-Ekiti West/Efon Federal Constituency II in Ekiti State in the election conducted by the 3rd – 8th Respondents.

The appeal came before us for hearing on 7th November, 2012 about 134 days since the judgment of the Tribunal appealed was delivered on 26th June, 2012.

On 5th October, 2012 (101 days after the judgment of the Tribunal delivered on 26th June, 2012), the 1st and 2nd Respondents brought an application for an order striking out “this appeal for lack of jurisdiction”. In the grounds for the application, the applicants stated inter alia that “the appeal was not heard within the stipulated 60 (sixty) days” from the date of the judgment appealed; that the judgment of the Tribunal was delivered on 26th June, 2012 and that election matters and appeals therefrom are sui generis and further that an appeal arising from the judgment of an Election Tribunal “is statutorily and constitutionally allowed to be heard and determined within 60 (sixty) days”. These facts were verified by the supporting affidavit.

There was no counter affidavit. The facts therefore remain unchallenged and/or uncontradicted. The law is trite: facts not disputed are taken as established and the court can act on such facts, See ODULAJA v. HADDAD (1973) II S.C. 35. The fact that the appeal, against the decision of the Election Tribunal delivered on 26th June, 2012, was not heard and determined by this court within sixty (60) days after the said 26th June, 2012 is unassailable. The Appellants made no effort to contradict this fact, I am enjoined to accept the fact as established, and I do so hold.

On these established facts counsel for 1st and 2nd Respondents submitted that the appeal has become incompetent by dint of Section 285(7) of the Constitution, 1999 as amended in the 2nd Alteration. He then urged us to strike it out, as it had elapsed by effluxion of time. He was supported in these submission and prayers by counsel for 3rd – 8th Respondents.

Mr. Omoniyi Idowu, relying on a number of cases including OKOLO v. UBN LTD. (2004) 3 NWLR (PT. 859) 89 at page 108 per NIKI TOBI, JSC, submitted, and I agree, that jurisdiction is the threshold of judicial power and jurisdiction. It is extrinsic to the adjudication and it cannot be waived by one or both parties to the dispute by connivance, acquiescence or collusion. Where the court lacks jurisdiction in any matter, the court is incompetent to adjudicate in the matter as between the parties before it. See, MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 357; SKENCONSULT NIG. LTD. v. UKEY (1982) 4 S.C. (PT.2) 131.Mr. Idowu further submitted, and I agree also, that where the words of the Constitution are clear and unambiguous, there is no further need to give them any other meaning than their ordinary natural and grammatical meaning. See; PDP v. OKOROCHA (2012) ALL FWLR (PT. 626) 449 at 485 – 486; ANPP v. GONI (2012) ALL FWLR (PT. 623) 1821 at 1850 – 1851.

It was pointed out in the written address of Mr. Idowu accompanying the motion on Notice, under consideration, that the Supreme Court, in a number of cases including C.P.C v. INEC (2012) ALL FWLR (PT. 617) 605 at 656 – 657; SHETTIMA v. GONI (2012) ALL FWLR (PT.609) 1008, had exhaustively interpreted Section 285(7) of the Constitution, as amended, to the effect that when an appeal from the judgment of an election tribunal is “not heard disposed of within (60) sixty days from the date of the decision/judgment – appeal lapses”, and that in that case the appeal is no longer “worthy of any further consideration”, as it has become academic to embark on such non fruitful exercise.

Section 285(7) of Constitution, as amended, provides –

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

The reply of Mr. Obafemi Adewale of Counsel to the Appellants is that Section 36(1) of the Constitution as amended, guarantees the right to fair hearing and further that the right of every person to have his matter or case heard is guaranteed by Section 7(1) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act. Counsel further submitted that Section 285(7) of the Constitution, as amended, violates Section 7(1) of the African Charter on Human and Peoples Right etc and Section 36(1) of the Constitution as it purports to abrogate the right of the Appellants to have their matter heard. Counsel concludes the interesting submission with a prayer that Section 285(7) of the Constitution, as amended, should be voided as it is in conflict with Section 7(1) of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act read together with Section 36(1) of the Constitution. He cited ITSUE v. S.E.C (2012) 2 NWLR (PT. 1284) 329 at 363 A – E for this preposition. This has to be so, counsel further submits, as Section and the 285(7) of Constitution, as amended, has encroached on the right of the judiciary to be independent and to further regulate its own proceedings. He remains adamant on this posture inspite of his attention being drawn to the numerous decisions of the Supreme Court on Section 285(7) Constitution, as amended. In response he submitted that those decisions were per incuriam; accordingly they are not binding on this court.

These audacious submissions are, in my firm view, quite misleading and the least ingenious. The decision or judgment of every court of law, on presumption of regularity by virtue of Section 168 of the Evidence Act, 2011, remains valid and binding until set aside. Where, contrary to what Mr. Adewale has submitted, the Law Lords at the Supreme Court render a judgment that appears per incuriam, it is only those Law Lords, and not any other mortal or court inferior to the Supreme Court, who can competently set it aside. Section 287(1) of the Constitution is very clear. The Court of Appeal and all Courts inferior to the Supreme Court are not only bound by the decision of the Supreme Court, they are under a clear obligation to enforce every decision of the Supreme Court.

Section 287(1) of the Constitution provides –

287(1). The decisions of the Supreme Court SHALL BE ENFORCED in any part of the Federation by all authorities and persons and BY COURT with subordinate jurisdiction to that of the Supreme Court.