Christopher R.d. Ogolo V. Dagogo Eli Legg-jack & Ors (1999)

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PATS-ACHOLONU, J.C.A. 

The question posed in this appeal and to be determined by this court is whether the Election Tribunal effectively and conclusively determined the petition or aborted it on the premise that the 60 days prescribed by the Decree for the determination of a petition had lapsed. It is the case of the appellant that the petition was peremptorily wound upon the ground that the time limit allowed by the provisions of the law had expired and it lacked jurisdiction to continue with the proceedings of the case.

It must be pointed out that one great feature of the election petitions law is the essence of time. Public policy determines that an action by way of petition filed must be tried and concluded within a specified time frame work.

This being the case it goes without saying that the court would place strict construction on the provisions of the law. That being so, it will be remiss of any court to entertain interlocutory appeals. Section 86(c) of Decree No. 36 of 1998 to wit Local Government (Basic constitutional and Transitional Provisions) Decree 1998 states as follows:

“Notwithstanding any thing to the contrary that any enactment, notice of appeal to the constitutional court on an election petition shall be given within 7 days from the date or the decision appealed against”.

What impresses me with this provision is that an appeal must be made against the decision of the election petition.

The question that may readily come to mind of anyone is what nature of decision does the provision conjure. It would appear I think to be final decision, on the issues canvassed and agitated by the parties each trying to persuade the court according to the merits of the case and the strength of the advocacy on its side. It cannot be readily forgotten that the decision of the Court of Appeal is final and it must in my view be a decision based on the judgment given by the tribunal to declare unequivocally the rights of the parties.

What was the “decision” or order or ruling made or given by the Election Tribunal being complained about? On 22/2/99 counsel for the 1st respondent, Ukala Esq. asked the tribunal to strike out the petition as it lacks further jurisdiction to continue to enquire into the matter and having regard to the absence of the petitioner. The tribunal below then held as follows:-

‘This court now lacks jurisdiction to continue with the petition which is hereby struck out.”

Where the time prescribed by election petition states certain things should be done within a period of time and these are not done within the limit allowed or permitted by the statute the court purporting to exercise jurisdiction outside it is on a thankless and unworthy pursuit of its own. That was the position the tribunal below found itself. It found it could not in seriousness and in conformity with the tenor and intent of the law, arrogate to itself the powers to continue with proceedings. The striking out was caused by the effluxion of time. It was not made on the basis that parties having concluded their cases before the tribunal, the petition did not reach a final conclusion. The tribunal lacked jurisdiction to continue with the expiration of 60 days time limit granted by the Decree. Therefore there is strictly speaking no decision to which an appeal lies.

Can the court order a rehearing due to the inconclusiveness. Reference in this connection was made in case of Stanley v. Wabara (1998) 10 NWLR (Pt. 570) at 530 where in that case the Court of Appeal ordered a rehearing de novo before another tribunal.

The decision in that case was based on the provisions of Local Government (Basic Constitutional and Transitional Provisions) Amendment Decree No.2 of 1998. The specific provisions of the amended Decree which is now moribund were not stated in order to compare its provisions with the one in Decree No. 36. However it would seem to me that it is not the intention of the framers of the law that where time has expired the law court should invoke its awful interpretative power to resurrect something that is supposed to be extinct. When the time frame granted or given by the law has expired to the election petitioner, it should be no business of the court to tamper with the provisions and inject its own idea of what ought to have been conjectured by the law.

When two laws having been compared are identical and circumstances and facts surrounding them are the same, one can meaningfully and would add justifiably in keeping with the spirit of the law cite the other earlier case based on comparable statute. See Nwobodo v. Onoh (1984) 1 SCNLR 1 at 25.

The incidence of time constraint is the essence and characteristic of election petitions and any petition not heard in time is dead. In Akpan v. The State (1992) 6 NWLR (part 248) 439 at 458 it was held that where the law provides for the bringing of an action for example within a prescribed time frame or the hearing and determination of the same proceeding commenced after the time prescribed by statute are void.

The order striking out the petition as permitted by the law within which the tribunal had to dispose the case has elapsed due to effluxion of time was responsible for the petition not heard on its merit. It would have been impossible to take 17 witnesses and complete the case within the time allowed by law. That being the case there was no final decision determining the rights of the parties in stricto sensu.

In the final result the appeal is incompetent and is hereby struck out for good.

I make no order as to costs.

Other Citations: (1999)LCN/0527(CA)