Chief Dr. Felix Amadi & Anor V. Independent National Electoral Commission & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.
This is an appeal against the judgment of the Court of Appeal Holden at Port Harcourt, delivered on 7th December, 2011, in which the court struck out appeal No.CA/PH/EPT/36/2011 for want of jurisdiction.
Following the Governorship Election conducted by the 1st respondent into the Office of Governor of Rivers State, on the 26th day of April, 2011, the 2nd respondent was returned as winner of the said election, haven pulled the highest number of votes cast at the election.
The 1st appellant was a candidate of the 2nd appellant for the said election and complained that they were unlawfully excluded from the election by the 1st respondent not including the name and logo of the 2nd appellant in the ballot papers used for the said Rivers State Governorship Election, as a result of which appellants filed petition no. EPT/GOV/3/2011 at the Governorship Election Tribunal sitting at Port Harcourt challenging the return of the 2nd respondent.
The grounds for the petition are that:-
- That the 1st respondent was validly nominated by the 2nd appellant as its candidate but unlawfully excluded by the 1st respondent from contesting the 2011 Governorship Election in Rivers State held on the 26th April, 2011.
- That the 2nd appellant, a duly registered political party was unlawfully excluded from contesting the 2011 Governorship Election in Rivers State held on the 26th April, 2011.
Appellants then claimed the following reliefs:-
a. A. declaration that the 1st appellant was validly nominated and sponsored by the 2nd appellant but was unlawfully excluded by the 1st respondent from the Rivers State Governorship Election held on 26th April, 2011
b. A declaration that the Rivers State Governorship Election conducted on 26th April, 2011 is invalid, null and void by reason of the unlawful exclusion of the 1st and 2nd appellants from the said election by the 1st respondent.
c. A declaration that the 2nd respondent was not duly elected or returned and his declaration as winner of the said election for the Rivers State Governorship Election is void and should be accordingly nullified by reason of the unlawful exclusion of the 1st and 2nd appellants from the election for the governorship of Rivers State conducted by the 1st respondent on 26th April, 2011.
d. A declaration that a re-run or fresh Governorship Election be conducted by the 1st respondent in Rivers State with the names and symbols of the appellants respectively duly included in the ballot papers and all relevant electoral materials.
e. An order nullifying the 2011 Rivers State Governorship Election held on 26th April, 2011 by reason of unlawful exclusion of the 1st and 2nd appellant’s names, symbol and logo from the ballot papers and other electoral materials including the result sheet by the 1st respondent.
f. An order cancelling, revoking and or withdrawing the certificate of returns issued by the 1st respondent in favour of the 2nd respondent.
g. An order restraining the 2nd respondent from being sworn in or otherwise acting as the Governor of Rivers State and from performing any function as the Governor of Rivers State based on his purported return as the winner of the Governorship election of the 26th April, 2011 wherein the 1st and 2nd appellants were unlawfully excluded from the said 2011 election by the 1st respondent.
At the conclusion of trial, the tribunal dismissed the petition of appellants in a judgment delivered on the 7th day of October, 2011.
Consequent upon the dismissal, appellants filed appeal No.CA/PH/EPT/36/2011 at the Court of Appeal holden at Port Harcourt on the 28th day of October, 2011.
Upon the completion of the processes, the appeal was fixed for hearing on the 7th day of December, 2011, on which day, the appeal was struck out for haven lapsed resulting in the instant appeal.
The issues for determination, as identified by learned counsel for appellants, AHAM EKE, EJELAM, ESQ in the appellants brief filed on 20th December, 2011 are as follows:-
”(i) whether the Court of Appeal was under a statutory obligation and duty to hear and determine the appellants’ appeal before it within the time prescribed by the constitution of the Federal republic of Nigeria, 1999 as amended.
(ii) if the answer to issue (1) above is in the affirmative, whether the failure of the Court of Appeal to hear and determine the appeal within the prescribed time and whether the absence of any fault on the part of the appellants such failure by the Court of Appeal does not amount to o denial of appellants’ right to fair hearing which entities them to a remedy for an order remitting it to the lower court for hearing on the merits”.
On his part, learned counsel for the 1st respondent JERRY ELUMEZE, Esq identified the following sole issue for determination in the brief filed on the 18th day of January, 2012:
“Whether the inability of the Court of Appeal to hear the appeal within sixty (60) days prescribed by Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 as amended amounted to a denial of the appellants’ right to fair hearing.”
On the other hand, the sole issue formulated by learned senior counsel for 2nd respondent, L. O FAGBEMI, SAN is:
“Whether or not the Court of Appeal was right in striking out the appellants’ appeal for affluxion of time”.
Learned senior counsel for the 3rd respondent, I. IMADEGBELO, SAN, puts the issue as follows:-
“Whether or not the Court of Appeal has jurisdiction to entertain or determine an appeal in an election petition matter that has lapsed under Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”
From the facts of the case and the grounds of appeal raised in this appeal, it is my view that the single issue formulated by learned counsel for the 1st respondent and reproduced supra best represents the issue in contention in this appeal.
It should be mentioned that learned counsel for the said 1st respondent has raised objection to the notice of appeal contending that the same is incompetent as the three grounds need leave of the court as they do not arise from nor relate to the decision appealed against.
In arguing the objection learned counsel cited and relied on Sections 233(2)(e) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereafter referred to as the 1999 Constitution as amended) in submitting that not all decisions of the Court of Appeal in Governorship Election appeal are appealable to this court as of right; that appeals as of right are limited to decisions on whether any person was validly elected to the Office of Governor; whether the terms of office of a Governor has ceased; whether any person has been validly erected to office of Governor, and whether the office of Governor has become vacant; that all other decisions are appealable by leave of court under Section 233(3) of the 1999 Constitution, (as amended); that the order striking out the appeal did not determine any of the questions under section 233(2)(e) of the 1999 Constitution (as amended).
It is the further submission of learned counsel that the implication of section 233(2)(e) is that matters excluded in the list therein are not appealable as of right, including an order striking out an appear; that appellants needed leave to appeal against the said order, which they failed to do.
It is also the contention of learned counsel that the grounds of appeal do not disclose a complaint against the decision of the lower court, relying on CCB Plc v. Eperi (2007) 3 NWLR (Pt.1022); Ikaro vs. Izunaso (2009) 4 NWLR (Pt.1130) 45 at 59; Ede v. Omeke (1992) 2 NWLR Pt.242 428 at 435; Aderounmu vs. Olowu 2000 4 NWLR Pt. 652) 253 at 265 -266, that the grounds of appeal do not attack the decision of the court but the court itself for not hearing the appeal before 7th December, 2011; that this court has jurisdiction to hear complaints against decisions of the lower court not to hear complaints against the conduct of the Court of Appeal; that the lower court is not in a position, not being a party to the appeal, to explain why the appeal was not heard within the stipulated time.
Learned counsel then urged the court to uphold the preliminary objection and strike out the appeal for being incompetent. In the reply brief filed on 24th January, 2012 learned counsel for the appellants submitted that under Section 233(e)(a) and (b) of the 1999 Constitution, (as amended), appellants have a right of appeal where the grounds of appeal involve allegations or complaints of breach of Chapter iv of the 1999 Constitution; that the provisions of Section 233(e) do not derogate from nor limit or exclude Section 233(a-b) of the 1999 Constitution; that the objection is misconceived and should be overruled.
I have carefully gone through the submissions of both counsels for the respective parties as well as the record of proceedings.
It is not in dispute that the decision of the lower court on appeal and reached on 7th December, 2011, is contained in a single sentence as follows:-
“The appeal has lapsed, it is accordingly struck out”. – see page 863 of the record.
The grounds of appeal against the above decision are in the notice of appeal filed on 15th December, 2011 and complain thus:-
”GROUND ONE
The lower court erred in law by not giving the appellants fair hearing when it failed to hear and determine the appeal filed by the appellants within the time prescribed by law.
PARTICULARS OF ERROR
(i) By virtue of Section 285(7) of the 1999 Constitution of Nigeria as amended, any 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 delivery of judgment of the Tribunal or Court of Appeal.
(ii) The Election Tribunal in the instant case delivered its judgment on the 7th day of October, 2011 against the appellants.
(iii) The appellants herein on the 28th day of October, 2011 filed their Notice of Appeal to the Court of Appeal against the decision of the Election tribunal.
(iv) The appellants subsequently filed their appellants’ Brief of Argument within ten (10) days of being served with the Appeal of Records as prescribed by the Election tribunal and Court Practice Directions, 2011.
(v) The 1st and 3rd respondents filed their respondent’s briefs on 2nd day of December, 2011 and served some on the appellants’ counsel.
(vi) The 2nd respondent did not file any respondent’s brief.
(vii) The sixty (60) days of the appeal was the 5th day of December, 2011 calculating from the date of judgment of the Election tribunal (7th October, 2011).
(viii) The schedule and fixing of the appeal for hearing on the 7th of December, 2011, by the Court of Appeal which was a day after the expiration of the sixty (60) days stipulated by the low for hearing and determination of such appeals and striking out of the appeal some day (7th December, 2011) is a manifest denial of the appellants’ right to fair hearing.
(ix) The Court of Appeal had on obligatory judicial duty to ensure that the appeal was heard and determined within the sixty (60) days stipulated by law particularly when it had the liberty to give its decision and reserve the reasons therefore to a later date as permissible to it under Section 285(8) of the Constitution of the Federal Republic of Nigeria as amended.
GROUND TWO
The lower court erred in law by not exercising its judicial power in accordance with the law when it fixed the appeal for hearing on, a day after it statutory life span of sixty (60) days had extinguished thereby denying the appellants their rights to fair hearing.
PARTICULARS OF ERRORS
(i) The appellants filed their appellants’ brief within the ten (10) days as prescribed by the Election Tribunal and Court Practice Direction, 2011.
(ii) The duty of fixture and scheduling of hearing of appeals is within the discretion of the lower court which must be exercised and discharged judicially and judiciously with a view to deteriorating() The appeal which breached the constitutional right of the appellants to fair hearing in accordance with the law.
(iii) The lower court is quite aware that being an Election Petition, it is obligatory in law for it to be heard and determined within the sixty (60) days prescribed by the constitution but it rather allowed the time to lapse and fixed some for hearing a day thereafter.
GROUND THREE
The lower court erred in law by not determining the appellants’ appeal on merit but rather allowed the appeal to be caught up by effluxion of time and thereby occasioned a breach of appellants’ right to fair hearing and constitutional right to appeal.
PARTICULARS OF ERROR
(i) The lower court failed to fix the appeal on or before the 6th day of December, 2011 being the sixty (60) days for hearing and determining such on appeal which judgment being appealed against was delivered on the 7th day of October, 2011.
(ii) The appeal was fixed in the cause list for hearing on the 7th day of December, 2011, a day after the appeal had lapsed.
(iii) The lower court on the said 7th day of December, 2011 when the appeal come up for hearing, agreed that the appeal lapsed on the 6th day of December, 2011 and proceeded to strike it out.
(iv) The fixture of the appeal on the day after it lapsed is a manifest denial and breach of the appellants’ right to fair hearing as enshrined in the constitution of the Federal Republic of Nigeria 1999 as amended.”
The question to be answered is whether from the ruling of the lower court on appeal and the grounds of appeal thereon – supra-appellants’ appeal is of right or with leave of the court first had and obtained To answer the question we need to look at the law relating to the issue. These are Sections 233(2) (a)(b) and (c), and 233(2)(e)(3) of the 1999 Constitution as amended.
Section 233(2) (a – c) of the 1999 Constitution provided as follows:-
(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases-
(a) where the grounds of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution,
(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter iv of the Constitution has been, is being or is likely to be, contravened in relation to any person”.
In addition to the above, Section 233 (2)(e) provided thus:
“decisions on any question:
(iv) Whether any person has been validly elected to the Office of Governor or Deputy Governor under this constitution”.
Finally Section 233 (3) provides that:
“Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court”.
From the above provisions, it is clear that a right of appeal enures to an appellant who appeals against the decision of the Court of Appeal on questions of law alone or where this complaint is that any of the provisions of chapter iv of the 1999 Constitution as amended (dealing with the fundamental rights) has been or is being threatened to be breached in relation to him or whether any person has been validly elected to the Office of Governor or Deputy Governor etc, etc, etc and as relevant to the facts of this case.
Can it be said, from the above provisions, that appellants’ appeal can only be competent if preceded by leave of court I have reproduced the ruling of the lower court and the grounds of appeal against it earlier in the judgment and l am of the view that the appellants have the right to appeal to this court particularly as the grounds of appeal are of law; involve interpretation or application of the constitution and breach of appellants’ right to fair hearing as contained in Chapter iv of the 1999 Constitution as amended.
Though the appeal cannot be said to be one that questions whether any person has been validly elected to the Office of Governor or Deputy Governor under the constitution it certainly involves the interpretation or application of the provisions of Section 285(7) of the 1999 Constitution as amended in so far as it deals with the issue of determination of election appeals within sixty (60) days of the judgment appealed against.
In short, it is my considered view that the appeal is competent as the same was filed as of right under the constitution. The preliminary objection of the 1st respondent is therefore overruled being misconceived and of no merit.
Turning now to the appeal, it is the submission of learned counsel for appellants that by the provisions of Section 285(7) and (8) of the 1999 Constitution, as amended, an appeal from the decision of an election tribunal shall be heard and disposed off within sixty (60) days from the date of the delivery of the judgment of the tribunal; that where a party’s case is not heard, it means his right to fair hearing has been breached, relying on Mains Ventures vs. Petroplast Ind. Ltd (2000) 4 NWLR (Pt.651) 151 at 167; that appellants did all that was required of them to have appeal heard within the sixty (60) days and that the lower court had between the 2nd and 6th December, 2011 within which to hear and determine the appeal – a period of four (4) days but failed to do so, thereby breaching the fundamental right of appellants to fair hearing; that appellants were denied opportunity to be heard and that the right to be heard cannot be waived nor taken away by statute, relying on Bamgboye vs Unilorin (1999) 10 NWLR (pt. 622) 290 at 355.
Finally, counsel urged the court to remit the case to the lower court to be heard and determined by another panel.
On his part, learned counsel for the 1st respondent submitted that the lower court did not fail to hear the appeal on 7th December, 2011 but was deprived of the jurisdiction to do so by the provisions of Section 285(7) of the 1999 Constitution as amended; that it was not the court that denied appellants the right to fair hearing, if any but Section 285(7) of the 1999 Constitution as amended and that appellants must first impugn the provisions of the said Section 285(7) before they can successfully contest their inability to be heard by the lower court; that the appeal haven lapsed cannot be resurrected by order of this court that it be heard by another panel of the court below and urged the court to dismiss the appeal.
On his part, learned senior counsel for the 2nd appellant referred to the provisions of section 285(7) of the 1999 constitution, as a mended and stated that it is not in dispute that the sixty (60) days allowed an appeal to be heard and determined had lapsed as at the time the appeal was struck out; that the above provision being in the nature of a statute of limitation, the fact that appellants had no hand/fault in the delay is immaterial, relying on SC/272/2011 and SC/276/2011, appeals between Peoples Democratic Party (PDP) vs. Congress for Progressive Change (CPC) and 41 Ors delivered on 31st October, 2011; that the issue of breach of the right of fair hearing does not arise this case; that appellants were responsible for the delay that resulted the appeal being statute barred that between the filing of the Notice of Appeal and appellants’ brief, appellant took almost fifty-one (51) days out of the sixty (60) days allotted for the hearing and determination of the appeal and urged the court to dismiss the appeal.
On his part, learned senior counsel for the 3rd respondent submitted that after the expiration of sixty (60) days the jurisdiction of the Court of Appeal is extinguished and the only appropriate order is one striking out the appeal as made by the lower court and urged the court to dismiss the appeal.
The main issue in the instant appeal centres on the effect of the provisions of Section 285(7) of the 1999 Constitution (as amended) on an appeal not determined within sixty (60) days particularly when the fault or inability to hear and determine same is not traceable to the appellant. The sub-issue is whether if such an appeal is struck out for haven lapsed the right of fair hearing of the appellant is thereby breached.
What then does Section 285(7) of the 1999 Constitution as amended provide It enacts thus:-
”(7) An appeal from a decision of an election tribunal or Court of Appeal in on election matter shall be heard and disposed of within sixty (60) days from the date of the delivery of judgment of the tribunal or Court of Appeal”.
The above provision is very clear and unambiguous and therefore needs no interpretation. It simply means what it says; that an appeal against the decision of an election tribunal or Court of Appeal in an election matter must be heard and determined within sixty (60) days of the date of the delivery of the judgment in question. The above is a constitutional provision and the words employed in crafting same commands mandatory compliance. There is no room for the exercise of any discretion in relation to the allotted time. Everything needed to deliver the judgment must be done and the judgment delivered “within” sixty (60) days of the date of the delivery of the judgment on appeal.The provisions of Section 285 (7) supra therefore must be applied to the facts of any given case as it admits of no interpretation whatsoever.
In the instant case, both parties by which I mean the appellants and respondents – are agreed that the appeal in question had lapsed by one day as at 7th December, 2011 when same was listed for hearing. That means that as at that date, the appeal had ceased to exist in law and could therefore not have been heard – it was dead in the eyes of the law and constitution.
It is very important to note that appellants are not challenging the constitutionality of the provisions of Section 235(7) of the 1999 Constitution, as amended but its application by the lower court to their appeal. In the circumstance, it is clear that the provision in question is valid and subsisting and binds all and sundry in this nation.
The question is whether the application of the provisions of Section 285(7) of the 1999 Constitution, as amended to the facts of this case, or any other case for that matter, can be said to amount to a denial of the right to fair hearing by the court
It is very clear that the provisions of Section 285(7) supra are in the mould of a statute of limitation but with a constitutional flavour. Does an application of a statute of limitation to a given factual situation rob the aggrieved party of the right to fair hearing I do not think so neither has learned counsel for appellants cited any authority in support of that contention.
This court has held that the provisions of Section 285(7) supra is like the rock of Gibraltar or Mount Zion which cannot be moved. The time provided therein is sacrosanct in the sense that it cannot be extended. Granted, for the purposes of argument only, that application of the provisions amounts to a denial of the right to fair hearing, which is not admitted by me, what would be the benefit to appellants in view of the fact that the sixty (60) days cannot be extended to accommodate the hearing of their appeal To me, I hold the considered view that the instant appeal is an exercise in futility in the present circumstances and realities. The court is not being asked to declare the provisions of Section 285(7) unconstitutional which means it remains valid. As long as it remains the law appeals relevant to that provision must necessarily be heard and determined within sixty (60) days of the delivery of the judgment on appeal otherwise the appeal would lapse.
The provision does not say that the appeal would not lapse if the inability to hear and determine same was not caused by the appellant or was caused by the court, or by any person of whatever description. Section 285(7) supra is clearly intended by the legislature to limit time not to extend time and it would be inappropriate, and in fact illegal, to interpret same to attain the effect of extending the time therein allotted which is clearly the intention of the appellants in the instant appeal. See the judgments of the court in the consolidated appeal Nos. SC/332/2011; SC/333/2011 and SC/352/2011 Alh. Kasim Shettima & Ors vs Alh. Mohammed Goni & Ors delivered on the 31st day of October, 2011 and another consolidated appeal Nos. SC/272/2011 and SC/276/2011 between Peoples Democratic Party (PDP) vs Congress for Progressive Change (CPC) & Ors also delivered on 31st October, 2011 and the most recent one delivered on 27th January, 2012 in the consolidated appeal Nos.SC/141/2011; SC/266/2011; SC/267/2011; SC/282/2011; SC/356/2011 and SC/357/2011 Brig. General Mohammed B. Marwa & Anr vs Adm Murtala Nyako & Ors.
It is very important to note that the provisions of Section 285(7) supra do not deny an appellant the right to fair hearing, just like every statute of limitation. It merely gives all parties and the court a time frame within which parties are to exercise their right to fair hearing in a relevant appeal. If for whatever reason the appeal is not heard within the allotted time frame it cannot be said that an appellant affected thereby has been denied his right to fair hearing. The provision is of strict liability and since the court has not been called upon to declare same unconstitutional it remains the law and binding on all and sundry.
By the way, what is the attitude of appellants to the expeditious hearing of the appeal at the lower court
It is not disputed that the appeal was to be heard and determined within sixty (60) days from the date of the delivery of the judgment by the Election Tribunal. So everyone involved in the matter – appellants, respondent and the court must beat the sixty (60) days dead line. The judgment of the tribunal was delivered on 7th October, 2011 and appellants had twenty-one (21) days within which to file their appeal which they did on 28th October, 2011 which was the very last day of the twenty-one (21) days allowed for the filing of the appeal. That apart, appellants did not file their appellant brief until the 25th day of November, 2011 which was ten (10) days to the end of the sixty (60) days from the date of judgment on appeal. It is therefore very clear that appellants were very tardy in prosecuting the appeal having regard to the time constraint involved.
In conclusion, I find no merit in this appeal which is accordingly dismissed by me. I affirm the ruling/judgment of the lower court delivered on the 7th day of December, 2011 in appeal No. CA/PH/EPT/36/2011. I, however, order that parties bear their respective costs.
Appeal dismissed.
SC.476/2011
