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Peoples Democratic Party V. Chief Anayo Rochas Okorocha & Ors (2012) LLJR-SC

Peoples Democratic Party V. Chief Anayo Rochas Okorocha & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

The rescheduled Governorship election was conducted by the 3rd Respondent, the Independent National Electoral Commission (INEC) throughout the Federation on the 26th day of April 2011. The appellant, the Peoples Democratic Party (PDP) sponsored a candidate at the election in Imo State. The 1st Respondent was sponsored at the election by his party, the All Progressive Grand Alliance (APGA).

From the appellant’s point of view election was conducted in all the Local Government Areas of the State except Ngor Okpala Local Government Area as well as some Wards and Polling Units in three other Local Government Areas.

Appellant claimed that its candidate scored 310,106 votes against the 305,263 scored by the 1st Respondent, the candidate of the 2nd Respondent. According to the appellant, rather than declare its candidate as the winner of the election, the 5th Respondent cancelled the election on 27th April 2011 and the 3rd Respondent scheduled a supplementary election for the 6th May 2011 in Ngor Okpala, Oguta, Ohaji/Egbema and Mbaitoli Local Government Areas and Orji Ward 1 of Owerri North Local Government Area of the State.

On the other hand, the Respondents claim that as a result of widespread thuggery and violence and the slim margin between the candidate of the appellant, Chief Ikedi Godson Ohakim and the 1st Respondent, Chief Anayo Rochas Okorocha vis-a-vis the number of registered voters who had not voted in the four Local Government Areas of Ngor Okpala, Oguta, Mbaitoli and Ohaji/Egbema and one ward, i.e. Orji Ward 1 in Owerri North Local Government Area of the State, a supplementary election was scheduled for the affected four Local Government Areas and Orji Ward 1 in Owerri North LGA.

The appellant and its candidate did not participate in the supplementary election. The 3rd-11th Respondents returned the 1st Respondent as having scored a majority of lawful votes cast at the election and declared him duly elected Governor of Imo State.

In its petition before that Governorship Election Petition Tribunal constituted for Imo state, the appellant challenged the return of the 1st Respondent as elected Governor of Imo State on the following grounds:

“(1) The election of 26th April 2011 was conclusive and was won by its candidate Chief Ohakim.

(2) The supplementary election of 6th May 2011 was not necessary, and

(3) The election of 6th May, 2011 was conducted in breach of S.178 (2) of the constitution of the Federal Republic of Nigeria 1999 (as amended).”

The Respondents contested the petition. The appellant’s petition was dismissed. The appellant appealed to the court of Appeal Owerri sitting at Abuja.

The lower Court dismissed the appeal with N50,000.00 costs in favour of the 1st and 2nd Respondents.

Aggrieved by the judgment of the Court below, the appellant appealed to this Court on 17 grounds from which the following three issues were distilled for determination in the appellant’s brief of argument:

“1. Considering the facts and circumstances of this case vis-a-vis the relevant constitutional and statutory provisions, whether or not the lower Court was, not in grave error in holding that the 3rd -11th Respondents properly cancelled the Governorship election in the affected Local Governments on 26th April 2011 and/or purported to have postponed same to 6th May, 2011 (Grounds 1, 2, 7, 8, 9, 11 and 14).

  1. Having regard to the clear and unambiguous constitutional and statutory provisions relating to the time limit for the holding of a Governorship election particularly section 178(2) of the Constitution and Section 25(8) of the Electoral Act 2010, whether the lower court was not in serious error in affirming the supplementary election held by the 3rd Respondent in the disputed Local Governments on 6th May 2011. (Grounds 3, 4, 5, 6, 13 and 16).
  2. Juxtaposing the pleadings of parties with the admissible evidence led, whether the lower Court did not arrive at a wrong conclusion and decision in dismissing the appeal before it. (Grounds 10, 12, 15 and 17)”

In their joint brief of argument, the 1st and 2nd Respondents filed a notice of preliminary objection to the hearing of the appeal and argued same in the brief. They formulated the following two issues for determination:

“1. Whether the lower Court correctly construed the relevant provisions of the constitution of the Federal Republic of Nigeria 1999 (as amended), the Electoral Act and INEC Guidelines in affirming the decision of the trial Tribunal that the election of 26th April, 2011 were inconclusive, and that the supplementary election held on 6th May 2011 to conclude the Imo State Gubernatorial election was not unconstitutional, or in breach of relevant provisions of the Electoral Act. (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 13, 14 and 16).

  1. Whether the lower Court arrived at the wrong conclusion and decision in dismissing the appeal before it. (Grounds 10, 12, 15 and 17).
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In their own joint brief, the 3rd-11th Respondents framed the following two issues for determination:

“(1) whether in view of available facts with respect to the nature of the election of Governorship of Imo State conducted on the 26th April, 2011, the Court of Appeal was right in holding that the 3rd-11th Respondents rightly declared the said election as inconclusive. (Distilled from Grounds 1, 2, 7, 8, 9, 10, 11, 12, 14, 15 and 16).

(ii) Whether the Court of Appeal was right in affirming that the supplementary election of 6th May, 2011 was held in compliance with the provisions of the constitution of the Federal Republic of Nigeria 1999 (as amended), the Electoral Act 2010 (as amended) and other enabling laws. (Distilled from Grounds 3, 4, 5, 6, 13 and 17).

Learned Senior Counsel leading for the appellant, filed replies to the 1st and 2nd and 3rd-11th Respondents’ briefs of argument. In his reply to the 1st and 2nd Respondents’ brief, learned Senior Counsel also responded to the argument on preliminary objection raised by the 1st and 2nd Respondent.

Learned Senior Counsel for the parties adopted, and relied or, their respective briefs of argument at the hearing of the appeal.

At the conference on this appeal on 22/2/2012, it was discovered that the trial Tribunal delivered its judgment in the appellant’s petition on 12th November, 2011. The lower Court pronounced its judgment in the appeal against the judgment of the trial Tribunal on 6th January, 2012 but gave its reasons for the judgment on the 24th day of January, 2012, some 73 days from the date the trial Tribunal delivered its judgment.

For obvious reason, learned lead Counsel for the parties were invited to address, on the validity vel non of the judgment against which this appeal was filed in view of the provisions of S.285 (7) and (8) of the Constitution of the Federal Republic of Nigeria 1999 (as altered). As expected, learned Senior Counsel for the parties, each with his, promptly responded.

Chief Olanipekun of the Inner Bar who is lead Counsel for the appellant in his argument reminded the Court that none of the parties raised the issue which the Court required learned Counsel to address, adding that the Court is not competent to resolve an issue not submitted to it by either party. He argued that the judgment of the Court in the appeal No. SC.14/2012 Abbubakar & Anor v. Saidu Nasamu & Anor delivered on 24/2/2012 is not applicable to this appeal. He relied on Cardoso V. Daniel (1986) 7 SC 491 He argued that a judgment of a Court is valid until it is set aside by a Court of competent jurisdiction.

He referred to S.294 (5) of the Constitution and Ifezue v. Mbadugha (1984) SCN LR 427. Learned Senior Counsel argued that the appellant will be denied justice if the appeal is not determined on the merit. He referred to Bello v. A-G Oyo State (1986) 5 NWLR (Pt.457) 828 and relied on the latin maxim: ubi jus remedium. He referred to the enrolled order of the lower Court at pages 1347-1347 of the record. He urged the Court to hear and determine the appeal on the merit.

Learned Senior Counsel leading for the 1st and 2nd Respondents, Chief Akintola, SAN referred to S.285 (7) and (8) of the Constitution (supra) and said that the issue raised by the Court is an issue of jurisdiction. He referred to S.233 (2) paragraph E of the Constitution and contended that the lower Court is not the final Court in Governorship election appeals. Learned Counsel referred to the record and said that the judgment of the lower Court was delivered on 6/1/2012 and reasons for the judgment was given on 24/1/2012. He referred to Ord. 8 r. 12 (5) of the Supreme Court Rules for the power of the Court to raise an issue suo motu provided parties are given the opportunity to address the Court on the issue as was done in this case. He urged the Court to strike out the appeal.

Learned lead Counsel for 3rd-11th Respondents, Dr. Izinyon, SAN said the issue raised by the Court is jurisdictional and argued that the Court is competent to raise the issue even though it was not raised by either party. He referred to SSD Construction v. NNPC (2011) 9 NWLR (Pt. 1252) page 317 at 332 and 335. He contended that the lower Court had jurisdiction on 6/1/2012 when it pronounced its judgment but had no jurisdiction on 24/1/2012 when it gave its reasons for the judgment. He urged the Court to strike out the appeal and relied on the judgment of the Court delivered on 24/2/2017 in appeal No. SC.14/2012 Consolidated. He referred to Ord. 8 r. 4 (5) of the Supreme Court Rules (as amended).

In reply, learned Senior Counsel for the appellant, Chief Olanipekun, SAN said that the lower Court had jurisdiction when it delivered its judgment on 6/1/2012 and that the reasons for the judgment given on 24/1/2012 did not affect the validity of the judgment.

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Section 285 (7) and (8) of the Constitution (supra) is hereunder reproduced:

“S.285 (7): An appeal from a 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.

S.285 (8): The Court, in all final appeals from an election Tribunal or Court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.”

The language of the provisions reproduced above is clear and unambiguous and the words therein ought to be given their ordinary and plain grammatical meanings. See Agbiti v. The Nigerian Navy (2011) 206 LRCN 181 at 230f; Tariola v. Williams (1982) 7 SC p.27; Mobil v. FBIN (1977) 3 SC p.53. S.285 (7) is clear and needs no elucidation.

In S.285 (7), “The Court” refers to the Court of Appeal an appellate Court. The Court is the Court of Appeal hearing appeal arising from of Assembly and National Assembly elections. Such appeals are filed at the Court referred to as the Court of Appeal.In appeals arising from the decisions of the Court of Appeal in election petitions arising from the Presidential and Governorship election petitions the Court in the final appeals is the Supreme Court. In the final appeals, the Court may deliver its decision and give reasons for the decision at a later date. Be that as it may, the reasons for the judgment of the Court in the appeal must be given within the 60 days stipulated in S.285 (7) of the Constitution.

Where the Court of Appeal is not the Court hearing the final appeal, it is not competent to deliver its decision and give reasons for same later. This is because there is right of appeal and unless the reason is given along with the judgment; the party aggrieved by the judgment may not have all the materials he needs to appeal within time.

Now a decision and the reasons for it are one and the same thing. None is valid or can exist without the other. It follows that the Court, in the final appeal, though empowered to deliver its decision and give reasons for it at later date, must give the reasons within the 60 days in S.285 (6) of the Constitution.In the case at hand, the trial Tribunal delivered its judgment on 12/11/2011, the lower Court delivered its judgment on 6/1/2012 but gave its reasons for the judgment on 24/1/2012. The reasons given outside the period of 60 days in S.285 (7) of the Constitution has a devastating effect on the judgment delivered within time on 6/1/2012. By the late delivery of the reasons for the judgment, the judgment rendered within time is rendered a nullity as the reasons for the judgment are inseparable from the judgment.

At the expiration of the 60-day period within which it must deliver its judgment, the Court of Appeal became functus officio and so the respondents do not have to show that the reasons given outside the 60 days occasioned a miscarriage, unlike the situation under S.294 (5) of the Constitution. See Ariori & Ors v. Elemo (1985) 1SC 13; Ojokoloko & Ors v. Alamu & Ors (1987) 7 SC (Pt. 1) 124.

I am aware of such cases as John v. Black (1985) 4 NWLR (Pt. 90) 539 and Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 to the effect that an appellate Court has no jurisdiction to give judgment outside the grounds of appeal and the oral argument of learned Counsel on both sides. As argued by the learned Silk for the appellant, the issue was not raised by any party but learned Counsel for the parties have been given the opportunity to be heard and were in fact heard on the issue raised suo motu by the Court.

I do not accept the argument of learned Senior Counsel for the appellant that the reasons given on 24/1/2012 do not adversely affect the judgment delivered on 6/1/2012. Learned Counsel for the appellant relied on the latin maxim: ubi jus ibi remedium. Yes, where there is a right the law provides a remedy.

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What is the appellant’s right and what is his remedy in this case In my view, his right is his constitutional right to appeal against the judgment of the lower Court. His remedy is the exercise of that right. The exercise of that right does not guarantee the success of the appeal or even the hearing and determination of the appeal on the merit. The appeal cannot be heard if it is incompetent.

Learned Senior Counsel for the Appellant questioned the competence of this Court to raise the issue of non-compliance with the provision of S.285 (7) and (8) of the Constitution. Both learned Senior Counsel for the 1st and 2nd set of Respondents argued that the issue raised is a constitutional matter and the Court is competent to raise it provided parties are given the opportunity to be heard.

The Court hearing a matter, whether as a Court of first instance or an appellate Court has a duty to ensure that the processes by which a party seeks relief before it comply with the relevant provisions of the applicable law. It may raise an issue suo motu provided that if the issue so raised is one on which the matter will be disposed of, learned Counsel for the parties must be heard on it before decision is taken.

A Court of record must jealously guard the judicial process from being ridiculed or scandalized and for the purpose of achieving a just, equitable and expeditious dispensation of justice. See Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt.1224) p.154. In the quest for justice, the Court can glean through its records and all processes transmitted to it in respect of the appeal to ensure compliance with the law and rules.

It would have been an act of disservice to the administration of justice if the Court had closed its eye to the defect in the judgment appealed against and proceed to determine the appeal on its merit. This would have been in conflict with other recent decisions of this Court on S.285 of the Constitution and the conflicting judgments would have made the law uncertain. See SC.141/2011; SC.766/11; SC.267/11; SC.282/2011; SC.356/2011 and SC.35…/2011 (Consolidated) in which judgment was given on 27/1/2012 and SC.14/2012; SC.14A/2012; SC.14B/2012 and SC.14C/2012 (Consolidated) which judgment was delivered on 24/2/2012.

It is the duty of the Court to ensure its own competence and the competence of any matter brought to it for adjudication. One of the elements constituting the competence of a matter before a Court and ipso facto the competence of that Court to hear it is that “the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction.” See Agbati v. the Nigerian Navy (supra); Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348.The defect in the appeal which prevents the Court from exercising its jurisdiction to hear and determine it is the fact that the reasons for the judgment were given outside the 60 days in S.285 (7) of the Constitution.

Section 294 (5) of the Constitution (supra) invoked by learned Senior Counsel for the appellant is of no avail in this case. It is a general provision which is not applicable to election matters in which time is of essence and which are governed by the restrictive provisions in S.285 of the Constitution.

The judgment is a nullity and I so declare. Consequently, the appeal against it is struck out.

For the avoidance of doubt and to forestall a rush to the Court for interpretation of, or consequential order arising from, the judgment or both, I hasten to add that the judgment of the Election Petition Tribunal in Imo State delivered on 12th November, 2011 is subsisiting.

Parties to bear their costs.


SC.17/2012

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