In The Court of Appeal
(Lagos Judicial Division)
On Friday, the 20th day of April, 2012
Suit No: CA/L/EPT/NA/03/12
Before Their Lordships
KUMAI BAYANG AKAAHS....... Justice, Court of Appeal
JOHN INYANG OKORO....... Justice, Court of Appeal
RITA NOSAKHARE PEMU....... Justice, Court of Appeal
1. PRINCE SUNDAY BAMIDELE ADERONMU
2. LABOUR PARTY Appellants
1. INDEPENDENT NATIONAL ELECTORAL COMMISSIONER (INEC)
2. KAZEEM ALIU BABATUNDE
3. ACTION CONGRESS OF NIGERIA (ACN) Respondents
NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision of the National Legislative House Election petition Tribunal, Holden at Lagos (Coram Justice A. A. Nwagwe (Chairman); Justice N. S. Adeyanju (Member), Justice D. Z. Senchi (Member) of the 23rd of February, 2012 striking out the Appellants petition.
The first Tribunal had on the 17th of October, 2011 ordered a trial of the Appellants petition de novo on the merits.
But the Court of Appeal by its decision of the 14th of December 2011, set aside that Ruling of the first Tribunal of the 17th of October, 2011.
The facts culminating in the present appeal may be briefly put as follows:
On the 39th day of April 2011, the Appellants presented a petition before the National Assembly Election Tribunal holden at Lagos, challenging the victory of the 2nd Respondent in the election held on the 9th day of April 2011 into the seat of the Surulere II Federal Constituency of the House of Representatives (Pages 204 to 210 of the Record of Appeal.)
The sole ground for the Petition was that the 2nd Respondent was not qualified to be a candidate for election into the office as member of the Federal House of Representatives of the Federal Republic of Nigeria.
The 1st Respondent opposed the Petition vide reply filed on the 7th of June, 2011 praying the Honourable Court to dismiss the Petition (See Pages 159-170 of the Record of Appeal). The 2nd and 3rd Respondents also opposed the petition vide their reply filed on 20th of May, 2011. (See Pages 181 to 185 of the Record of Appeal).
Due to applications filed by the 1st, 2nd and 3rd Respondents, the Tribunal dismissed the petition on the ground that the Petitioners/Appellants' mode of application for issuance of pre-hearing notice was not in accordance with the provision of Paragraph 47(2) of the first schedule to the Electoral Act 2010 and also that the Tribunal had no jurisdiction to hear the petition, being, ab-initio, a pre-election matter.
The Appellant appealed the decision of the Tribunal and on the 14th of December 2011, the Court of Appeal, Lagos Division set aside the decision of the Tribunal and ordered that the petition be heard de novo.
At the reconstituted Tribunal for the hearing of the Petition de novo, the 2nd and 3rd Respondents filed a Notice of Preliminary Objection dated and filed on the 7th of February 2012 that the Tribunal lacks jurisdiction to entertain the Petition on the ground that the constitutional period for hearing of the petition had lapsed. The objection was upheld and the Petition was accordingly struck out.
The fulcrum of the Appellants' appeal is that by striking out their petition without a hearing on merits, they were denied their right to a fair hearing.
The gravamen of the Appellants' argument is that the right of fair hearing is their inalienable right which cannot be waived as a matter of their constitutional
At the Tribunal, the 2nd and 3rd Respondents had filed a Notice of preliminary Objection that the Tribunal lacks jurisdiction to entertain this petition. The 2nd Respondent is KAZEEM ALLIU BABATUNDE, while the 3rd Respondent is ACTION CONGRESS OF NIGERIA (ACN).
The Grounds upon which the objection is based are as follows;
1. The petition was filed on the 30th day of April, 2012.
2. By Section 285(6) of the Constitution of the Federal Republic of Nigeria (as amended), 2072, this Honourable Tribunal has 180 (One hundred and eighty) days from the date of filing of the Petition to hear and determine the Petition.
3. It is now 277 (Two hundred and seventy-seven) days since the Petition was filed'
4. By the very clear and unambiguous words of Section 285(6) of the constitution (as amended), the time to hear and determine this petition has expired and, therefore, of no moment,
5. The Tribunal is constitutionally barred from entertaining an election petition that has exceeded
180 days from the dote the petition was filed.
6. This Honourable Tribunal, by effluxion of time, lacks jurisdiction to entertain this petition..." (pages 1 - 2 of the Record of Appeal.
In a considered Ruling dated 23rd of February 2012, the Tribunal upheld the preliminary Objection and declined Jurisdiction. Accordingly Petition No.NA/LEGH/EPT/L/8/2011 filed on the 30th day of April 2011, was struck out. (Pages 60-73of the Record of Appeal.)
This prompted the present appeal, as the Appellants being dissatisfied with the decision of the Tribunal, promptly filed Notice of Appeal on the 29th of February, 2012 encapsulating two (2) Grounds of Appeal.
The two Grounds of Appeal shorn of their particulars are:
"The Honourable Tribunal (Corom) Justice A. A. Nwaigwe (Chairman), Justice N. S. Adeyanju (Member), Justice D. Z. Senchi (Member) herein after referred to as the "Honourable Tribunal" erred in law in striking out the Appellants Petition without a hearing on the merits and thereby denied the Appellants their fundamental rights to fair hearing under section 96 (1) of the 1999 Constitution (as amended)"
" The Honourable Tribunal erred in law in its application of the Supreme Court consolidated Appeals SC.7/2012 and S.C.2/2072 Between ANPP V. ALHNI GONI & 4 ORS AND ALHAJI SHETTIMA & ANOR V. ALHAJI GONI & ORS to the Appellants Petition which resulted in the striking out of the Appellants Petition without o hearing on the merits."
The Appellants hereby accordingly seek the following reliefs from this Honourable Court viz:
(a) An order setting aside the decision of the Honourable Tribunal of the 23rd February, 2012 striking out the Appellants Petition No. NA/L/LEGH/EPT/L/8/2011.
(b) An Order setting down the Appellants Petition in NA/LECH/EPT/L/8/2011 for hearing on the merits within 780 days of the order for rehearing before the Honourable Tribunal (Coram tustice A.A. Nwoigwe (Chairmon), Justice rule Adeyanju (Member) and Justice D. Z. Senchi (Member) or any other Election Petition Tribunal duty constituted in that regard. (Pages 74-76 of the Record of Appeal)'
The Appellants filed their Brief of Argument on the 14th of March 2012, settled by Ademola A. Adewale Esq,.
The Appellants had proffered one sole issue for determination which is
"whether by striking out the Appellants Petition without a hearing of the merits, the Appellants have not been denied a fair hearing which is both a constitutional and an inalienable right?'
The 1st Respondent - INEC filed no Brief of Argument
The 2nd and 3rd Respondents filed their joint Brief of Argument on the 19th of March, 2012. It is settled by Dr. Muiz Banire. They proffered a sole issue for determination.
"Whether the Tribunal was right to have struck out the petition on the Ground that the Tribunal lacks jurisdiction to entertain same."
On the 16th of April, 2012, learned counsel for the respective parties adopted their briefs of argument. A. A. Adewale Esq, submitting that the kernel of Appellants' brief is that there are two conflicting decisions of the Supreme Court, that is to say the Consolidated Appeal on ANPP VS. ALHAJI GONI & ORS and ALHAJT SHETTIMA VS. ALHAJT GONI & ORS (Re-Consolidated Appeals Nos SC.1/2012 And SC.2/2012) on the one hand and HOPE DEMOCRATIC PARTY VS. INEC (2009) 3-4 SC 706 @ 128. He stressed that the issue of fair hearing which they were denied cannot be discountenanced. He conceded that the word "SHALL" in Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 is mandatory.
On the part of the 2nd and 3rd Respondents, Dr. Muiz Banire, while adopting his Brief of Argument, argues that the fresh issues raised in the 2nd and 3rd Respondents' brief have not been answered. They are deemed admitted, he argues - referring to Order 18, Rule 10 of the Court of Appeal Rules 2011 which has this to say inter alia
"...where on Appellant fails to the a reply brief within the time specified in Rule 5, he shall be deemed to have conceded on the new points or issues arising from the Respondents' brief."
He urges Court to follow the case of ANPP VS. GONI which is the latest decision on the issue of the subject matter of this Appeal.
Learned counsel for the Appellants had argued that the issue of fair hearing, being fundamental where a party is denied the right to present his case, a decision reached in the absence of a fair hearing will not be allowed to stand, citing NTUKIDEM V. OKO (1986) 5 NWLR (PT.909; OTAPO V. SUNMONU (1987) 2 NWLR (PT.58) 606; UNONGO V. AKU (1983) 11 S.C. 729 @ 151-752 and BAKARE v. LSC SC (1992) 8 NWLR PT.262, 647.
Learned counsel for the Appellants had argued that the rule is captioned in the maxim "audi alterem partem", which is one of the twin pillars of the administration of Justice citing inter alia.
OGUNDOYIN V. ADEYEMI 2001 7 S.C. (PT.11) 98 @ 112
He argues that the Apex Court, that is to say, the Supreme Court, had held in a plethora of cases that where a party has been denied fair hearing, the entire proceedings, no matter how well conducted will amount to a nullity. Citing LEADERS & COY. LTD VS. BAMAIYI (2010) 12 S.C. (PT.IV) 55 AT 64; O. O. M.F. V. NACB (2008) 4 S.C. 95 @ 117.
Learned Counsel contends, that the instant matter relates to an Election petition, which is by nature "sui generis", but he wonders whether the sui generic nature of Election petitions exempts it from the fundamental principle of fair hearing? He answers this question in the negative citing HOPE DEMOCRATIC PARTY V. INEC. (2009) 3-4 S.C 706 @) 728, where the supreme court observed as follows:
"It should be noted that though Election Petitions are said to be sui generis, they are conceived with the Political right and obligations of the people - particularly those who consider their rights injured by the electoral process and need to ventilate their grievances". The Court went on to say that "any conclusion that tends to strike out an aggrieved party from the temple of justice by not hearing him on the merit ought not to be encouraged in the intent of peace and democracy".
Learned Counsel indeed cited a plethora of cases where the Apex Court had taken this stand on the issue. Learned Counsel submits that in striking out the Appellants Petition, the Tribunal placed heavy reliance on a latter in time, and recent case of ANPP V. ALHAJI GONI and ALHAJI SHETTIMA V. ALHAJI GONI & ORS (Consolidated Appeals No. SC.1/2072 and SC.2/2012)
He queries if the facts of the consolidated appeals are on all fours with the present appeal, for the application of the Principle of STARE DECISIS.
Learned Counsel had distinguished the facts and features of the ANPP V. GONI'S case and the present appeal.
That in respect of the ANPP V. GONI's case, the Supreme Court is the final. Court of Appeal, in respect of Governorship elections by virtue of Section 233 (2)(e) of the 1999 Constitutions (as amended), while in respect of the National Assembly Election, this Honourable Court is the final Court of Appeal by virtue of Section 246(1)(b) and (3) of the Constitution of the Federal Republic of Nigeria 1999.
Learned Counsel submits that the implication of the application of different constitutional provisions to the instant petition, in contradiction to the ANPP VS GONI'S case, is that at all times material, the Honourable Tribunal was duly bound to obey the decision and order of trial de novo of the Court of Appeal of the 14/12/2011, being the final decision allowed by the Constitution in respect of the National Assembly Election that heard the petition on the merits (Pages 149 - 158 of the Record of Appeal).
He submits that the Honourable Tribunal was in violation of the order of a Court of Appeal in respect of National Assembly Election, by striking out the said Petition.
Learned counsel submits that the Tribunal should have followed the Supreme Court decision in H.D.P. v. INEC 2009 3 - 4 SC. 106 @ 128 and not that of ANPP VS. GONI'S case.
He submits that the case of H.D.P VS INEC has not been overruled by the Supreme Court, but subsists.
Learned Counsel has argued that in view of the fact that the mandatory interpretation of the word "SHALL" in section 285(6) of the 1999 Constitution may lead to injustice and denial of fair hearing, the Honourable Tribunal ought to have followed the decision in ASSOCIATED DISCOUNT HOUSE VS. AMALGAMATED TRUSTEES LTD (2007) 7 SC 158, where it was held "that the use of the word "shall" in the constitution does not ipso facto make the provision mandatory' as doing so will frustrate or defeat the otherwise clear intention of the legislature to make the provision merely directory"'
He submits that the ANPP VS. GONI's case is not applicable to the Appellants petition. This is because the Court of Appeal constitutionally is the final court for appeals in erection to the National Assembly.
He submits that the Honourable Tribunal ought to have leaned in favour of granting the Appellants petition a hearing on the merits.
It is the argument of a learned counsel for the 2nd and 3rd Respondents that this appeal revolves around a construction of the Provisions of Section 235(5) of the Constitution of the Federal Republic of Nigeria (as amended).
He argues that the Apex Court, and indeed this Court, had decidedly held that the provisions of Section 285(6) and 285(7) of the 1999 Constitution are clear and unambiguous, and that the word "shall" as used in the said Section, is mandatory and admits of no discretion.
Learned Counsel had argued vehemently, the well established, convenient and expedient fact, that at the head of all Courts in Nigeria is the Supreme Court, and a fortiori all other Courts must bow to it by the principle of STARE DECISIS. Indeed, lower Courts are bound to follow the decisions of higher courts, and cannot in any way review the decision of higher courts, even if delivered per incuriam
He argues that it is now over 277 days, since the presentation of the petition before the Tribunal. Therefore the Tribunal was no longer in a position, to entertain the petition
That Section 285(6) of the Constitution is a subsequent provision in the Constitution, and indeed a later enactment.
He submits that the principle of fair hearing exists within the confines of the law as defined by law. It is not only defined but only exercisable within the dictates of the law. Thus the fair hearing of the Appellants in this concept is exercisable within the confines of Section 285(6) of the 1999 Constitution.
He submits that the express provisions of Section 285(6) of the 1999 Constitution of the Federal Republic of Nigeria, that a Tribunal shall deliver its Judgment within 180 days from the date of filing of the petition, must be obeyed.
The issue in this appeal is simply the Interpretation of Section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 287(1) of the Constitution of the Federal Republic of Nigeria 1999 has this to say
"The decision of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Court of Appeal"
By Section 29 of the Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010, the Constitution amended Section 285 in its subsection 6 thus-
"An election tribunal shall deliver its Judgment in writing within 180 days from the date of the filing of the petition"
This provision is subject to the provision of Section 287(1) of the Constitution of the Federal Republic of Nigeria 1999. This is because the decisions of the Supreme Court are based on their impeccable wisdom, having regard to the demands of Public Policy and good conscience, and the need to sanitize the democratic and political system, and indeed matters regarding election petitions.
This is because the principle of STARE DECISIS, is the very essence of the legal profession as we know it today. Without it, the legal profession would be out. The mischief which the provisions of Section 285(6) and (7) of the 1999 Constitution is meant to cure is the ensuring, in all its ramification, the quick dispensation and determination of election petitions. The fact that that section was inserted in the 1st Alteration Act means that the Constitution has encapsulated it. It was hitherto in the Electoral Act 2010. It was elevated to the pedestal of the Constitution.
To buttress the intention of the makers of the Constitution, as to the need for quick dispensation of Election Petition matters, the Apex Court in the unreported consolidated cases of ANPP V. ALHAJI MOHAMMED GONI & 4 ORS in Appeal No. SC./1/2012 and ALHAJI MOHAMMED GONI & 3 ORS in Appeal No.SC/2/2012, observed rightly in my view, that prior to the provisions of Section 285(6) of the Constitution of the Federal Republic of Nigeria 1999, there was no time limit for the hearing and determination of an election petition by election tribunals, or the appeals arising there from. That resulted in undue delay in the hearing and determination of election matters.
I agree, unreservedly with the submission of learned counsel for the 2nd and 3rd Respondents, that where the words of a statute are plain, clear and unambiguous, the statute must be given its natural and ordinary meaning - FRN V. DARIYE (2011) 13, NWLR (Pt.1265) 527 at 548 paragraphs e-f.
It is always desirable to apply the literal rule in the construction of a statute.
It is no gainsaying that the word "SHALL" in the provisions of Section 285(6) of the 1999 Constitution means SHALL and admits of no other meaning. It connotes a directive and not a discretion. It is not pliable, but it is fixed, even as truth is fixed. But where its application goes beyond the law to an issue of fundamental disrespect for decisions of the Apex Court, then this violates the values which the very provisions claim to protect. It then crosses all borders of decency and breaches the Rule of Law.
In ASSOCIATED DISCOUNT HOUSE V. ALMAGAMATED TRUSTEES LTD. (2007) 7 S.C. 769,it was held that the use of the word shall in the Constitution does not ipso facto make the provision mandatory, as doing so will frustrate or defeat the otherwise clear intention of the legislature to make the provision merely directory (See page 170).
I am of the view that, the meaning to be ascribed to the word "SHALL", would depend on the circumstances which that word finds itself.Learned Counsel for the Appellants has argued, that the striking out of the Petition by the Honourable Tribunal amounted to, they being denied the right to fair hearing. In other words, by the act of striking out of the petition, the petition could not be heard on the merits.
Now, Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, embodies the right of a citizen to approach the Court to hear whatever grievance he may have against any person, government or authority. It is one of the cornerstones upon which a democratic governance is built. Therefore, all persons who have legitimate complaints against Government or Authority must have their day in Court. It is one thing to afford a citizen a hearing, and at the end of it dismiss the case, and quite another to drive him away from the Judgment seat without a hearing.
Above is the general principle. But this Principle cannot stand on its own, but on a pedestal of something that is devoid of nullity.
You cannot complain of lack of fair hearing, when your foundation is faulty, or null and void. Thus, a decision or argument to violate the decision of the Supreme Court, would demonstrate utter disregard to the Rule of law. That decision cannot hold water, no matter how elegant it seems.The present petition, subject matter of this appeal was filed on the 30th of April 2011, and the decision of this Court was delivered on the 14th of December 2011. Clearly more than 180 days from the date of filing. This fact alone makes the petition expended and spent. The issue of fair hearing therefore has no foundation to hang on.
The Corpus of Judgments dished out by the Supreme Court in the recent past connotes that the 180 days stipulated by the Section 285(6) of the Constitution of Nigeria 1999 would start running from the time when the petition was' filed . ANPP VS. ALHAJI MOHAMMED GONI & 4 ORS (Supra); ALHAJI SHETTIMA VS MOHAMMED GONI & ORS SC/1/2012 and SC/2/2012 respectively; PEOPLES DEMOCRATIC PARTY VS. CONGRESS FOR PROGRESSIVE CHANGE & 41 ORS; DR. GOODLUCK EBELE JONATHAN & ANR VS. CONGRESS FOR PROGRESSIVE CHANGE & 40 ORS.The kernel of this appeal, as reflected in the Grounds of Appeal and the issues proffered by learned Counsel for the respective parties, is as to the Construction of Section 285(6) of the 1999 Constitution.
Yes, it is true that the Court of Appeal is the final Court for National Assembly petitions appeal. This however does not remove the fact that all other Courts, but the Supreme Court are subordinate to the Supreme Court. A lower Court, no matter the designation; or appellation, is bound by the decision of the Supreme Court, on the same issue in which the lower Court is approached to determine, even if the decision of the Supreme Court was given per incuriam. More particularly in situations, when the decision evolves around the question of the Grundnorm and Organic document of the land, which is the Constitution.
The Supreme Court is the highest Court in the land. That is why it is termed "SUPREME" just as GOD is the Supreme Deity of our existence. You just cannot fault something that is Supreme. It simply is above board. Its decisions are infallible and sacrosanct. They are unimpeachable.In the past, it is apparent that litigants and members of the Bar had capitalized on the provisions of the Electoral Act 2010 which gave no time limit for the hearing and determination of election petitions. The consequence was evident. It created chaos and uncertainty in the minds of the electorate. The Bar became complacent and the Tribunal Judges were inundated with spurious and useless applications that never came to an end. So much so, that these cases extended to the next nationwide General Elections. It simply became a helpless and ridiculous situation.
Certainly this was not the intendment of the legislature.
Therefore, any enactment which sought to cure this mischief and state of chaos became most welcome. The provisions of Section 285(5). If the 1999 Constitution (as amended) was simply welcome.
Judges are not law enforcement agents, but they must maintain the balance between the Executive, the Legislature, and indeed the Polity. They are watchdogs of the democratic process. They are akin to ombudsmen. Theirs is to sanitize the democratic structure by their decisions. And in doing this, they must apply and interpret the law and not make their own laws aside from that already put in place by Superior Courts of record. To allow this would be inviting anarchy in the Judicial realm and terrain.
At page 72 of the Record of Appeal, when the Honourable Judges of the Tribunal observed thus
"We are encouraged by this instructive decision of the Supreme Court and adopt same as our view in this matter. The section 285(6) (supra) is to ensure that election petitions are heard and determined expeditiously we so hold"
cannot be faulted.
In answering the sole issue from determination which is
"Whether by striking out the Appellants Petition without a hearing of the merits, the Appellants hove not been denied a fair hearing which is both a constitutional and inalienable right?"
The answer necessarily is in the negative. The issue is resolved in favour of the 2nd & 3rd Respondents and against the Appellant.
The result is that the petition is devoid of merit. The Honourable Tribunal was right to decline Jurisdiction as the time limit afforded the Petitioner to air his grievance had been expended and cannot be resurrected. The Petition became moribund.
The Appeal is hereby dismissed pursuant to Section 287(1) of the Constitution of the Federal Republic of Nigeria 1999 while the order striking out the petition made by the Honourable Tribunal is hereby affirmed with costs of N30,000.00 in favour of the 2nd & 3rd Respondents only.
K. B. AKAAHS, J.C.A.: I read the draft of the judgment of my Lord, Pemu, J.C.A with which I agree.
Earlier in Labour party v. Independent National Electoral Commission unreported decision in Appeal No.CA/L/EPT/NA/02/12 I had re-iterated the stand of the Supreme Court that for whatever reason if an election petition is not determined within 180 days from the date the petition is filed, that petition lapses. It is the same fate that happened to this petition.
The lower Court was therefore right to strike out the petition. The appeal lacks merit and I hereby dismiss it pursuant to Section 287 (1) of the 1999 constitution of the Federal of Nigeria. I also award costs of N30,000.00 in favour of the 2nd and 3rd Respondents.
JOHN INYANG OKORO, J.C.A.: I was obliged before now a copy of the judgment of my learned brother, Pemu, JCA just delivered and I agree that this appeal lacks merit and ought to be dismissed. In my judgment delivered earlier today in Labour Party v Independent National Electoral Commission (INEC) & 2 ors (unreported) in Appeal No. CA/L/EPT/02/12, made it abundantly clear that the decision of the Supreme Court in the consolidated appeal Nos. SC.1/2012 and SC.2/2012, ANPP v. Goni & 4 Ors and Shetimma & anor V. Goni & 3 ors unreported) is so clear and unambiguous that the 180 days provided under Section 285(6) of the 1999 Constitution (as amended) for the hearing and determination of election petition by an Election Petition Tribunal cannot be extended even by an hour. Thus, where an election Petition tribunal is unable to deliver its judgment on any petition filed before it within the 180 days allowed by the Constitution, there is nothing this court can do to review it. It is my view that the Tribunal was right to strike out the petition having lapsed after the 180 days. This appeal therefore, lacks merit and is hereby, dismissed. I also award costs of N30,000.00 in favour of the 2nd & 3rd Respondent only.
Chief R. A. Olaiya with him A. A. Adewale A. Adeleke Esq. For the Appelants
Dr Muiz Banire, P. Giwa (Mrs.) O. Ajibobal (Miss) and O. Elegushi Esq. For the Respondents