Paul Iyorpuu Unongo V. Aper Aku & Ors. (1983)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C. 

Both the appellant and the 1st respondent were candidates in the governorship election that was held in Benue State on 13th August, 1983. The 1st respondent was declared winner by the 3rd respondent. Consequently the appellant brought an election petition in Benue State High Court at Makurdi against the respondents. In the petition the appellant prayed thus:

“….that it may be determined that the said Aper Aku was not duly elected or returned and that the votes purportedly cast for him in the Ankpa, Oju, Vandeikya, Kwande, Katsina-Ala, Bassa, Dekina, Idah and Gboko Local Government Constituencies were void, and that the said Paul Iyorpuu Unongo was duly elected and ought to have been returned.

In the alternative your petitioner prays that the whole election conducted on the 13th day of August, 1983 be declared null and void and a fresh election ordered.”

In his reply the 1st respondent raised the following defences in paragraph 13 (ii) thereof:

“13 the 1st respondent shall at the trial of this petition contend that;

(ii) the entire petition be struck-out in that –

(a) by virtue of section 267 (1) of the Constitution of the Federal Republic of Nigeria, 1979 the 1st respondent as incumbent Governor of Benue State cannot be sued;

(b) the petition is incurably defective by reason of non-compliance with the provisions of section 125 of the Electoral Act 1982.”

The 2nd and 3rd respondents also raised inter alia the following defence in paragraph 9(3) of their joint reply –

“9. At the hearing of the petition the Honourable Tribunal shall be urged to:

(3) To (sic) strike out the entire petition on the ground that it is not proper before the court as it fails to comply with the mandatory provisions of section 125 of the Electoral Act by not conforming with Form EC 10 in the Schedule to the Act.”

When the petition came up for hearing before the High Court, these defences were raised by the respondents as preliminary objections. The objections were upheld and the petition was struck-out. Subsequently an appeal was filed against that decision by the appellant in the Federal Court of Appeal.

The appeal was allowed in its entirety and when the Federal Court of Appeal came to consider what consequential order it should make it made the following observations (as per Ogundare, J.C.A.):

“In view however, that under section 140(2) of the (Electoral) Act the petition has abated and the lower court would no longer have jurisdiction to hear it this Court is unable to exercise its power under section 16 of the Federal Court of Appeal Act, 1976 and (sic) send the petition back to the trial court for hearing and determination.

The position of complete helplessness in which this Court now finds itself as regards the appropriate relief due to the appellant upon the success of his appeal before us arises not as much because of the time bar prescribed by sections 129(3) and 140(2) of the Act but because the learned trial judges had not taken the elementary caution of deciding the case on the merits within the period permitted by the Act.”

Dissatisfied with the inability of the Federal Court of Appeal to remit the case to the High Court for the petition to be heard and determined on its merits, the appellant further appealed to this Court. His notice of appeal contains only two grounds of appeal. These read –

“(1)The Federal Court of Appeal erred in law in failing to uphold the submission that sections 129(3) and 140(2) of the Electoral Act 1982 are unconstitutional in that;

(i) they infringe and are inconsistent with the liberty contained in section 258 of the Constitution regarding the period within which a Court of law is to deliver judgment;

(ii) they infringe the right of the appellant to a fair hearing within a reasonable time.

(2) The Federal Court of Appeal erred in law in failing to observe that the before-mentioned provisions of the Electoral Act constitute an unwarranted interference in the affairs of the courts of judicature.

Particulars of Error

(a) Once a court of law is seised of a controversy the period of time reasonably necessary for the hearing and determination of that controversy ought to be a matter within the exclusive competence of the courts;

(b) It is not competent for the National Assembly or any other legislative house to prescribe for a court of law the time within which the hearing and determination of a cause or matter shall be completed.”

Arguing the first ground of appeal, Chief Williams, learned Senior Advocate for the appellant referred to the time limits given under sections 119 subsection (4), 135 and 139 subsection (1) of the Electoral Act, 1982 and submitted that if the various actions to be taken under those sections were delayed until the last day in each case, a petition in a governorship election would not be ready for hearing until 31 days after the declaration of the result of the election. In which case, the petition would have become statute barred under section 129 subsection (3) of the Electoral Act, 1982 which provides that all election petitions must be disposed of not later than 30 days from the date of the election concerned.

He argued further that the constitutional doctrine of separation of powers among the departments of government is that each department is independent of the other. Therefore, he submitted that it is unconstitutional to use legislation to control the exercise of judicial functions except to the extent that such control by the legislature is expressly authorised by the Constitution. He cited in support of the submission the American case of State of Indiana Ex. Re. Andrew Kostas v E.W. Johnson 168 A.L.R. 1st Series, 1118 at p. 1120. 35

Finally, Chief Williams contended that the appellant is not challenging the time limit within which a petition is to be brought or a reply is to be filed as those are matters of practice and procedure which are within the scope of the competence of the National Assembly under sections 111 subsection (1)(c), 216, 233 and 239 of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as the “Constitution”).

In his reply, Dr. Odje, learned Senior Advocate for the 1st respondent submitted that the provisions under the Electoral Act pertaining to the commencement or determination of proceedings or appeals are all within the purview of the power of the National Assembly to regulate practice and procedure. Relying on the decision of the Federal Supreme Court in Onitiri v. Benson, 5 F.S.C. 150 at p. 154, he contended that proceedings in election petitions are special and distinct from ordinary civil proceedings and that is why specific time is prescribed for the determination of petitions by the courts concerned. To buttress the contention he referred to section 164 (2) of the Constitution which prescribes a specific time within which an election for the office of Governor must be held; and argued that the provisions of sections 129 subsection (3) and 140 subsection (2) of the Electoral Act, 1982 are consistent with the Constitution. He concluded the argument by reference to section 147 subsection (5) of the Electoral Act which he said gives discretion to a court to continue with the proceedings in a petition even where the time prescribed by the Act had expired.

Mr. Uji, learned Attorney-General of Benue State, for the 2nd and 3rd respondents associated himself with the submissions made by Dr. Odje.

Now sections 119 subsection (4), 135 and 139 subsection (1) of the Electoral Act, 1982 provide as follows:

“119 (4) A petition to question an election or result shall be presented to the competent High Court not later than 14 days from the date that the result of the election is declared ….”

“135. A reply to the petition shall be filed by the respondent not later than 6 days after the date on which the petition was served on the respondent.”

“139 (1) Every petition shall be tried in public and subject to the provisions of this section the time of and place of the trial of a petition shall be fixed by the court. Notice of the time and place of the trial shall be given by the Registrar at least 10 days before the day fixed for the trial..”

It is clear from the foregoing that the Electoral Act, 1982 envisages the thirty-days from the date when an election result is known may legitimately elapse before a petition arising from the election becomes ready to be heard by a court seised with the petition. But section 129 subsection (3) of the Electoral Act, 1982 provides that all election petitions before a High Court must be completed by the thirtieth day from the date of the election. The section reads:

“129 (3) Proceedings before a High Court in the case of a petition in respect of the office of President or Vice-President, Governor, Deputy-Governor or in respect of any of the Legislative Houses shall be completed not later than 30 days from the date of the election concerned.”

And section 140 subsection (2) of the Act provides:

“A petition filed before the High Court in respect of any election shall be disposed of by the Court not later than 30 days from the date of such election and any election petition not so disposed of shall be time barred and such petition shall be deemed null and void.”

It follows that where an election result gets to be known on the very day the election takes place, if all the actions to be taken by the parties to a petition under sections 119(4) and 135 of the Electoral Act, 1982 were carried out on the last day allowed by the Act in each case and allowance were made for the mandatory 10 days under section 139 of the Act before the hearing of the petition; then the trial court must dispose of the petition on the very day that it was fixed for hearing. This is notwithstanding the number of witnesses the parties wish to call or the complexity of the petition. If the trial court is unable to hear all the evidence to be adduced and give its judgment on the same day, the petition lapses. On the other hand where the result of the election was not known until a day or more after the election day, which had in fact been the case, any prospective election petition in that respect would become statute barred under section 140(2) of the Act before it even gets filed in the court. This, to say the least, is very absurd and indeed defeats the intention of the Constitution and the Electoral Act itself, which is to enable an aggrieved candidate in an election to seek redress in Court.

There can be no doubt that it is within the province of the National Assembly to prescribe the practice and procedure to be followed by a Court which hears an election petition. For section 111 subsection (1)(c) of the Constitution provides –

“111 (1) The National Assembly make provisions as respects –

(c) powers, practice and procedure of the competent High Court in relation to any such application.”

but such power cannot in view of the constitutional doctrine of separation of powers amongst the three arms of government, that is the Executive, Legislature and Judiciary, extend to the limitation of the time within which a case properly instituted in a court can be heard and determined. If the power were so to apply, as it indeed applies under the Electoral Act, then it would, in my opinion, be ultra vires because it amounts to unconstitutional interference with judicial functions.

In the American case of State of Indiana Ex Rel Kostas v E.W. Johnson (supra) at p. 1122 the Supreme Court of the State of Indiana referred to an earlier case where the following observation was made:

“Courts are an integral part of the government, and entirely independent, deriving their powers directly from the Constitution, in so far as such powers are not inherent in the very nature of the judiciary. A court of general jurisdiction, whether named in the Constitution or established in pursuance of the provisions of the Constitution, cannot be directed, controlled, or impeded in its functions by any of the other departments of the government.”

It was argued by Dr. Odje that because section 164(2) of the Constitution provides that an election to the office of Governor “shall be held on a date not earlier than 60 days and not later than 30 days before the expiration of the term of office of the last holder of that office,” the limitation of time to 30 days made by sections 129 subsection (3) and 140 subsection (2) of the Electoral Act, 1982 for the disposal of an election petition, is consistent with the Constitution. I am unable to see the relationship between the sections. Section 164 sub-section (2) of the Constitution merely states the period during which the election to the office of Governor is to be conducted, while sections 129(3) and 140(2) of the Electoral Act deal with the limitation of time for the disposal of any petition arising from or after the election.

By Section 147 subsection (5) of the Electoral Act, 1982:

“No failure to comply with this Part of this Act as to the time for the giving of notice or the doing of any act, matter or thing other than as to the time for filing a petition or lodging any appeal shall avoid any proceeding, and in any proper case the proceedings may with the consent of the court be amended or otherwise dealt with so as to give proper effect thereto; but if any proceedings are avoided, they shall, if commenced, be set aside in whole or in part, as the case may require.”

It seems to me that there are general provision relating to practice and procedure affecting a defaulting party to a petition but not the power of a Court to extend the limitation of time under sections 129 subsection (3) and 140 subsection (2) of the Electoral Act, 1982 whose provisions are special and mandatory in nature. Moreover it is a cardinal rule of interpretation that a general provision does not diminish the force of a special provision – generalia specialbus non deregent.

Therefore the submission made by Dr. Odje that section 147 subsection (5) gives discretion to courts to continue with the proceedings in a petition even where the time prescribed lapses is untenable.

The argument of Chief Williams on the second ground of appeal is short. He referred to sections 33 subsection (1) and 258 of the Constitution and submitted that the parties to an election petition must be given reasonable time to present their cases. He argued that the provisions of the Electoral Act which give 30 days for the disposal of petitions are inconsistent with the provisions of section 258 of the Constitution and are therefore null and void.

Dr. Odje, in his reply, contended that section 258 subsection (1) of the Constitution deals with the maximum time within which a court must deliver its judgment.

He submitted that ”fair hearing” under section 33 subsection (1) of the Constitution is synonymous with hearing within reasonable time; and contended that by virtue of section 73 subsection (1)(a)(i) of the Constitution, the National Assembly has the power to make rules for High Courts in respect of election petition.

Now, section 33 subsection (1) of the Constitution states:

“33 (1) In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

And section 258 subsection (1) of the Constitution provides:

“258 (1) Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final address….”

It has been said by this Court in Isiyaku Mohammed v Kano Native Authority (1968) 1 All N.L.R at p. 426 that a fair hearing involves a fair trial and that –

”The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case.”

I do not see how a reasonable person will have the impression that a party has a fair hearing where his petition which has been instituted within the time limit stipulated by the Electoral Act cannot be concluded because the time available to the court for the petition to be heard will not be sufficient for either or both parties to the petition to present their cases or will not allow the court at the close of the parties’ cases sufficient time to deliver its judgment. There can be no doubt that the provisions of sections 129 subsection (3) and 140 subsection (2) of the Electoral Act 1982 neither allow a petitioner or respondent reasonable time to have fair hearing, nor give the court the maximum period of 3 months to deliver its judgment after hearing a petition as envisaged by sections 33 subsection (1) and 258 subsection (1) of the Constitution, respectively.

Accordingly the provisions of sections 129(3) and 140(2) of the Electoral Act, 1982 which limit the time for disposing of election petitions by the courts are in my view ultra vires the National Assembly and therefore null and void.

It was for these reasons that I agreed on 30th September 1983 that this appeal should be allowed with N300.00 costs against each of the respondents and that the petition should be remitted to the Benue High Court, Makurdi to be heard and determined on its merits with utmost despatch.

SOWEMIMO, C.J.N.: I agree with the reasons for the judgment just delivered by my learned brother, Uwais, J.S.C. I wish, however, to make the following comments:-

I indicated on the 30th September, 1983, when this appeal was dismissed that I would give reasons today.

The appeal came before this Court from a decision of the Federal Court of Appeal, Jos, which held that the High Court of Benue State, sitting at Makurdi, was in error in holding that an election petition filed by the appellant was incompetent because the first respondent, being a Governor, was under the Constitution immune from civil proceedings.

In conclusion the Federal Court of Appeal stated:-

“My Lords, in view of all I have said above it is my conclusion that the learned judges of the High Court, Makurdi, are clearly in error to have struck out the appellant’s petition for the reasons given by them.

What now remains to consider is the consequential order this court can make in the circumstance. In paragraph 4 of the appellant’s notice of appeal the consequential reliefs sought from this court are for orders (a) restoring the first respondent to the petition proceedings and (b) restoring the petition and ordering resumption of hearing in the trial court with directions, if necessary, that any necessary amendments be allowed.

As regards the first relief there can be no difficulty in granting it. Having held that the first respondent was wrongly struck off the petition it follows that he remains a party to the petition as a respondent thereof.

It is with the second consequential relief that difficulties seem to have arisen.

If this were an ordinary civil proceeding I would not have hesitated to invoke the powers of this court under section 16 of the Federal Court of Appeal Act 1976 and send the case back to the court for it to be heard and determined on its merits. But we are faced with sections 129 (3) and 140(2) of the Act. This is now the third question I high- lighted in the early part of this judgment. These two sections of the Act read thus:-

‘129 (3) – Proceedings before a High Court in the case of a petition in respect of the office of President or Vice-President, Governor or Deputy Governor or in respect of any of the legislative houses shall be completed not later than 30 days from the date of the election concerned. 140(2)

– A petition filed before the High Court in respect of any election shall be disposed of by the court not later than 30 days from the date of such election and any election petition not so disposed of shall be time barred and such petition shall be deemed null and void. (Italics ours)

Having said as much, it is patent that by virtue of section 140(2) the appellant’s petition would, by now, have abated and I can find no useful purpose in sending it back to the lower court for hearing and determination. I can find no provision in the Act nor am I aware of any authority nor has this court been referred to any to the effect that the time allowed for the hearing and determination of an election petition ceases to run during the period an appeal against a trial court’s ruling or judgment remains undetermined. That, in effect, is the submission of Mr. Anyamene but, according to him, he has no authority in support of this interesting submission. With respect to learned counsel, I cannot accept this submission. The position of complete helplessness in which this court now finds itself as regards appropriate relief due to the appellant upon the success of his appeal before us arises not so much because of the time bar prescribed by sections 129(3) and 140(2) of the Act but because the learned trial judges had not taken the elementary caution of deciding the case on the merits within the period permitted by the Act.”

The main submission in the appeal before us was that sections 129(3) and 140(2) of the Electoral Act 1982 contravene section 33(1) of the Constitution.

Section 129(3) of the Electoral Act 1982 reads:

“Proceedings before a High Court in the case of a petition in respect of the office of President or Vice-President, Governor or Deputy Governor or in respect of any of the legislative houses shall be completed not later than 30 days from the date of the election concerned.”

Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 reads:

“In the determination of his civil rights and obligations, including any question determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law-

(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and

(b) contains no provision making the determination of the administering authority final and conclusive.

(3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public.”

Learned counsel for the appellant drew our attention to the provisions of section 258(1) of the Constitution which reads:-

“(1) Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses, and furnish all parties to the case or matter determined with duly authenticated copies of the decision on the date of the delivery thereof.”

There is no doubt in reading all these sections, to which references have been made, that it is open for determination, whether in the exercise of the judicial functions of a court of law, a breach of its establishment has been committed against the provisions of section 4(8) of the Constitution which reads:-

“Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.”

It is the submission of Chief F.R.A Williams, SAN. the learned counsel for the appellant, that by limiting or fixing a time for the hearing of and determination of a civil right by court of law, the National Assembly has no competence whatsoever to make laws which have the effect of ousting jurisdiction of any court of law. It is the further submission of the learned counsel that the effect of sections 140(2) of Electoral Act 1982 is unconstitutional, because it ousts the jurisdiction of a court of law in exercise of its powers in conformity with section 33(1) of the Constitution of the Federal Republic of Nigeria 1979, read along with section 4(8) of the Constitution.

Section 140(2) of the Electoral Act 1982 reads:-

“2 – A petition filed before the High Court in respect of any election shall be disposed of by the court not later than 30 days from the date of such election and any election petition not so disposed of shall be time barred and such petition shall be deemed null and void.”

In dealing with the time limit specified in the section which I have just quoted, one has to look at the other provisions of the Electoral Act of 1982, which deal with the procedure for getting election petitions to the point at which a hearing has to be fixed by a court of law. I refer first to section 119(4) which reads:-

“(4) A petition to question an election or result shall be presented to the competent High Court not later than 14 days from the date that the result of the election is declared and shall be commenced.

(a) in the case of the election of President or Vice- President, in the Federal High Court established in the place where the capital of the Federal Republic of Nigeria is situated;

(b) in the case of the election of Governor or Deputy Governor of a State, in the High Court established in the place where the capital of the State is situated at; and

(c) in all other cases, the High Court of the State established for or having jurisdiction in the Senatorial district, Federal Constituency or State Constituency for which the candidate was elected.”

This gives a petitioner 14 days to file his election petition following the date when the election result has been declared. I next refer to section 134(2)(3)(4):-

“(2)In the notice of presentation of the petition the Registrar shall state a time, not later than 3 days after the date of service of the notice, within which the respondent shall enter an appearance.

(3) Subject to the provisions of this section, the notice and copy of the petition and any other documents to be delivered to the respondent before he enters appearance shall be served on him personally or in any other manner prescribed by the Court.

(4) Where the respondent intends to oppose the petition he shall within the time limit allowed in the notice of presentation of the petition which shall not exceed 3 days enter an appearance by filing with the Registrar a memorandum of appearance stating that he intends to oppose the petition and giving the name and address of his legal practitioner, or stating that he acts for himself as the case may be. The memorandum of appearance shall be signed by the respondent, and may be filed by him or any legal practitioner acting for him.”

This provision gives a respondent 3 days to enter an appearance after serving on him the petition. Section 135 reads:-

“Any reply to the petition shall be filed by the respondent not later than 6 days after the date on which the petition was served on the respondent.”

This gives the respondent 6 days after a date on which the petition was served on him to file a reply. I now refer to section 139(1) of the Electoral Act 1982 which reads:-

“Every petition shall be tried in public and subject to the provisions of this section the time and place of the trial of a petition shall be fixed by the court. Notice of the time and place of the trial shall be given by the Registrar at least days before the day fixed for the trial –

(a) by pasting the notice on the court’s notice board; and

(b) by sending a copy of the notice by registered post or messenger to the petitioner’s address for service and to the respondents’ address for service if known, and by delivering a copy to the Commission.”

This gives the Registrar power to fix notice of the time and place of trial at least 10 days before the day fixed for the trial. If, therefore, one adds the first 14 days along with the 6 days for entering appearance and filing reply, and 10 days minimum for fixing a day for trial, the number of days added up would be 30 days. It is, therefore, apparent that by the time pleadings are completed the time limitation under section 140(2) of the Electoral Act 1982 quoted above would have been reached and any subsequent action shall be deemed null and void. In other words the provision of section 119(1) of the Electoral Act 1982 which confers jurisdiction to hear and determine such election petition shall have been ousted.

It may be necessary to refer to the powers of the National Assembly with regard to the enactment of laws. It is not disputed whatsoever that by virtue of item 21 of the Exclusive Legislative List in the Second Schedule to the Constitution of the Federal Republic of Nigeria Part 1, the National Assembly was competent to pass the Electoral Act 1982. The National Assembly is given powers to also pass laws relating to any matter incidental or supplementary to any matter mentioned in item 21 – see Item 67 of the Exclusive Legislative List. In part III of the Second Schedule which deals with supplementary and interpretation, section 2 reads:-

“In this Schedule, reference to incidental supplementary matters include, out prejudice to their generality, reference to …. (b) jurisdiction, powers,- practice and procedure of the courts of law.”

This, therefore, shows the limitation of the legislative powers of the National Assembly.

If, therefore, any portion of any Act enacted by the National Assembly infringes section 33(1) and thereby ousts the jurisdiction of a court of law to hear and determine a matter then there is a breach of section 4(8) of the Constitution of the Federal Republic of Nigeria 1979, and to that extent the provision of section 140(2) of the Electoral Act 1982 which ousts the jurisdiction of a competent High Court to hear and determine election petition in conformity with the provisions of section 33 (1) and section 258 of the Constitution of the Federal Republic of Nigeria is, therefore, unconstitutional. To the extent therefore that it limits the exercise of judicial functions by a competent court of law, it is void.

I have, therefore, come to the conclusion that the Federal Court of Appeal, whilst right in setting aside the decision of the election petition tribunal of the High Court of Makurdi in Benue State were not helpless in not exercising their power to order a retrial of the petition on the merits at the appropriate High Court. These are my reasons why I allowed the appeal and sent the case back for trial on the merits to the election petition tribunal of the Benue State High Court sitting at Makurdi and to deal with it with despatch.

IRIKEFE, J.S.C.: I had the advantage of a preview of the lead reasons for judgment just read by my learned brother, Uwais, J.S.C. in which the salient features of the case are lucidly set out. The said reasons and conclusions accord with mine.

I wish merely to add that in addition to sections 129(3) and 140(2) of the Electoral Act, 1982, sections 132(1) and 132(2) thereof are also unconstitutional, null and void.

BELLO, J.S.C.: We allowed the appeal in these proceedings on 30th September, 1983 and remitted the petition to the High Court, Makurdi, for hearing on the merits.

I now state my reasons for doing so.

The appellant was one of the unsuccessful candidates for the election to the office of Governor of Benue State held on 13th August, 1983 at which the 1st respondent, who was then the incumbent Governor of the State, was returned as having been duly elected to the office in accordance with the provisions of section 164(7) of the Constitution. The appellant was not satisfied with the return and so he filed a petition in the High Court, Makurdi, within the time prescribed under section 119(4) of the Electoral Act, 1982. He questioned the validity of the return and prayed that it might be determined that the 1st respondent had not been duly elected or returned but that the appellant had been duly elected and ought to have been returned. In the alternative, he prayed that the election should be declared null and void and a fresh election ordered.

The petition was duly served on the respondents who entered appearances and filed their replies. All the pre-trial formalities were completed by 6th September, 1983 when the petition was fixed for trial. On that day preliminary objections on the competence of the petition were taken by learned counsel for the respondents and argued before the High Court. In a reserved ruling delivered on 7th September 1983, the three judges that constituted the court for the trial of the petition struck out the 1st and 2nd respondents from the suit in respect of the 1st respondent on the ground of the immunity accorded to a Governor by section 267 of the Constitution and in the case of the 2nd respondent on the ground that section 121 of the Electoral Act did not authorise his joinder. The court further held the petition as invalid for not having complied with the provisions of section 125 of the Act in that the name of the occupier of the address of the petitioner for service was not stated in the petition and also the petition was addressed to the Registrar of the court instead of being presented by the petitioner.

On appeal to the Federal Court of Appeal by the appellant against the aforesaid ruling, that court had no difficulty in setting aside the ruling after it had held that the immunity granted to a Governor under section 267 of the Constitution did not extend to election petition proceedings and that neither the omission to insert in the petition the name of the occupier of the petitioner’s address for service nor the fact that the petition had been addressed to the Registrar invalidated the petition.

However, in considering what was the proper consequential relief to grant, the court per Ogundare, J.C.A. who delivered the lead judgment, concurred with by the 4 other Justices observed:

“It is with the second consequential relief (i.e. restoring the petition and ordering resumption of hearing in the trial court) that difficulties seem to have arisen.

If this were an ordinary civil proceeding I would not have hesitated to invoke the powers of this Court under section 16 of the Federal Court of Appeal Act, 1976 and send the case back to the lower court for it to be heard and determined on its merits. But we are faced with sections 129(3) and 140(2) of the Act.” (i.e. the Electoral Act, 1982.)

After having given consideration to the validity or otherwise of the two sub-sections vis-a-vis sections 4(8) and 33(1) of the Constitution, the Federal Court of Appeal concluded that the two sub-sections did not offend the provisions of section 4(8) of the Constitution because the sub-sections did not oust the jurisdiction of the trial court but only set time limit of 30 days within which the court must complete the trial of the petition. It further held that the two sub-sections were not inconsistent with section 33(1) of the Constitution since, in its view, the two sub-sections did not inhibit the appellant’s right to fair hearing within a reasonable time. The lead judgment summarised the conclusion of the court thus:

‘The net result is that it is my judgment that the orders of the Benue State High Court, Makurdi made on 7th September, 1983 to the effect that the petition itself be struck off are erroneous in law and are hereby set aside. In view however, that under section 140(2) of the Act the petition has abated and the lower court would no longer have jurisdiction to hear it this court is unable to exercise its power under section 16 of the Federal Court of Appeal Act, 1976 and send the petition back to the trial court for hearing and determination.

Since this appeal otherwise succeeds even though by operation of law, the appropriate consequential order could not be made by this Court, the order for costs made in the lower court ought, in the interest of justice, to be set aside and it is here set aside.”

To the appellant his victory at the Federal Court of Appeal was fruitless and negatory. So it seems to me. The judgment of that court did not bear any fruit which the appellant as the successful party to the appeal has the right to enjoy. On that account he further appealed to this Court.

The only issue canvassed at the hearing of the appeal before us is the constitutional validity of sections 129(3) and 140(2) of the Electoral Act, 1982. The two questions posed for determination are: whether the two sub-sections are inconsistent with exercise of the judicial powers vested in the courts by section 6 of the Constitution and secondly whether the two sub- sections are also inconsistent with the provisions of the fundamental right of the appellant guaranteed under section 33(1) of the Constitution.

In the United States of America it is trite rule of constitutional law that in consequence of the principle of separation of governmental powers embodied in the Constitutions of the United States and of the several States any statute by which the Legislature attempts to hamper judicial functions of the courts or to interfere with the discharge of judicial duties or to unduly burden the exercise of judicial functions is unconstitutional and void unless the Constitution of a State so permits.

Thus statutes which prescribed and fixed the time limits within which certain cases must be tried and determined by the courts or limited the time within which appeals must be heard and determined were held unconstitutional and void: see State of Indiana ex rel Kostas v Johnson 168 A.L.R. 1118 and the several cases cited therein.

Now, the principle of separation of the powers of the Federal Republic of Nigeria was well entrenched in our Constitution which under section 4 vests the legislative powers of the Federation in the National Assembly and under section 6 vests the judicial powers of the Federation in the courts specified therein. It is pertinent to state that the National Assembly is not a sovereign Parliament. Its legislative powers are limited by express provisions of the Constitution. Sections 1(3), 4(8), 6(6) (a), 6(6) (b) and 33(1) of the Constitution are germane to the issue on appeal.

The sections provide:

“1 (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.

4 (8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or a judicial tribunal established by law 6 (6) The judicial powers vested in accordance with the foregoing provisions of this section –

(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;

(b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating hereto, for the determination of any question as to the civil rights and obligations of that person;

33 (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” (Italics ours)

This Court had occasion to consider the scope of the first limb of section 4(8) of the Constitution in Attorney-General of Bendel State v. Attorney-General of the Federation & 22 Ors. (1982) 3 N.C.L.R 1 at p.4D wherein Fatai-Williams, C.J.N. as he was then, said:

“By virtue of the provisions of section 4(8) of the Constitution, the courts of law in Nigeria have the power, and indeed, the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural, as laid down in the relevant provisions of the Constitution. If there is any such infraction, the courts will declare any legislation passed pursuant to it unconstitutional and invalid.”

I may, for the purpose of emphasis, reiterate the opinion I expressed in that case to the effect that the courts ought not to entertain and must not entertain their jurisdiction under section 4(8) over the conduct of the internal proceedings of the National Assembly unless the Constitution makes provisions to that effect. I said at p.46:

“I would endorse the general principle of constitutional law that one of the consequences of the separation of powers, which we adopted in our Constitution, is that the court would respect the independence of the legislature in the exercise of its legislative powers and would refrain from pronouncing or determining the validity of the internal proceedings of the legislature or the mode of exercising its legislative powers. However, if the Constitution makes provisions as to how the legislature should conduct its internal affairs or as to the mode of exercising its legislative powers, then the court is in duty bound to exercise its jurisdiction to ensure that the legislature comply with the constitutional requirements.”

As the courts respect the right of the legislature to control its internal affairs so the Constitution requires the legislature to reciprocate in relation to the jurisdiction of the courts. It may be observed that sections 73(1)(c), 111(1)(c), 233 and 239 of the Constitution empower the National Assembly or a House of Assembly, as the case may be, to make laws for regulating the practice and procedure of the Federal High Court and the High Court of a State. It seems to me, if in the purported exercise of the powers under these sections, the National Assembly makes any law which hampers, interferes with or fetters the jurisdiction of a court of law such law shall be void for being inconsistent with the provisions of the second limb of section 4(8). The dictum of Aniagolu, J.S.C. in Dr. Sofekun v. Chief Akinyemi & 3 Ors. (1980) 5-7 S.C.1 at p.25 to 30 is apt:

“It is essential in a constitutional democracy, such as we have in our country, that for the protection of the rights of citizens, for the guarantee of the rule of law which includes according fair trial to the citizen under procedural regularity, and, for checking arbitrary use of power by the executive or its agencies, the power and jurisdiction of the courts under the Constitution must not only be kept intact and unfettered but also must not be nibbled at. To permit any interference with, or a usurpation of, the authority of the courts, as aforesaid, is to strike at that bulwark which the Constitution gives and guarantees to the citizens, of fairness to him, against all arbitrariness and oppression. Indeed, so important is this preservation of, and non-interference with, the jurisdiction of the courts that our present Constitution (Decree No.25 of 1978) has specifically provided (see s. 4(8) that neither the National Assembly nor a House of Assembly shall ‘enact any law that ousts or purports to oust the jurisdiction of a court of law or a judicial tribunal established by law’.”

The provisions of section 6(6) (a) of the Constitution to which I have earlier referred clearly indicate that the judicial powers vested in the courts shall extend, notwithstanding anything to the contrary in the Constitution, to all inherent powers and sanctions of a court of law. One of the powers which has always been recognised as inherent in court has been the right to control their internal proceedings and to so conduct the same that the rights of all suitors before them may be safe-guarded in such a manner that all parties are given ample opportunity to prosecute or defend the cases for or against them without let or hindrance. The old adage that delay of justice is denial of justice has the same force as the maxim that hasty or hurried justice is also a denial of justice. On this account any statute which prescribes time limit within which a trial court must try and determine cases or within which an appeal court must hear and determine appeals is inconsistent with the provisions of sections 4(8) and 6(6)(b) of the Constitution and is therefore void by virtue of section 1(3) of the Constitution.

Furthermore, any law which deprives or tends to deprive any person a fair hearing within a reasonable time by a court in the determination of his civil rights or obligations is inconsistent with section 33(1) of the Constitution and is also void.

What is a “reasonable time” within the purview of the sub-section is a matter to be determined on the circumstances of every case. I may venture to generalise, however, that undue delay and undue haste or hurry cannot by any standard be said to be reasonable and consequently either constitutes an infraction of the provisions of section 33(1) of the Constitution.

It remains to consider the provisions of sections 129(3) and 140(2) of the Electoral Act, 1982 which are the subject matter of the appeal and also section 132 of the Act which is ancillary to the appeal. The sections provide:

“Section 129(3) Proceedings before a High Court in the case of a petition in respect of the office of President or Vice- President, Governor or Deputy Governor or in respect of any of the Legislative Houses shall be completed not later than 30 days from the date of the election concerned……….

Section 140(2) A petition filed before the High Court in respect of any election (shall be disposed of by the court not later than 30 days from the date of such election and any election petition not so disposed of shall be time barred and such petition shall be deemed null and void).”

“Section 132(1) Any appeal to the Federal Court of Appeal pursuant to section 130 of this Act shall be filed in the Federal Court of Appeal not later than 14 days from the date of the decision of the High Court and the decision of the Federal Court of Appeal on the appeal shall be given not later than 7 days from the date on which the appeal was filed.

(2) Any appeal to the Supreme Court pursuant to section 131 of this Act shall be filed in the Supreme Court not later than 14 days from the date of the decision of the Federal Court of Appeal and the decision of the Supreme Court on the appeal shall be given not later than 7 days from the date on which the appeal was filed. (Italics mine).

The provisions of section 129(3) and 140 (2) are clear. In no uncertain terms, the sections direct the High Court before which an election petition has been filed to try and determine the petition within 30 days from the date of such election and if, for any reason whatsoever, the court is unable to do so then the petition lapses.

It becomes void. The petitioner will get no relief at all. The gravamen of the inequity of the time limit of 30 days for the trial of a petition may be better appreciated by close examination of the other provisions of the Act which fix times for the pretrial process. Section 119(4) allows a petitioner 14 days from the date the result of the election is declared to file his petition while section 135 grants 6 days to the respondent from the date the petition was served on him to file his reply. Furthermore, section 139 requires the Registrar to give to the parties notice of the time and place of trial at least 10 days before the day fixed for the trial. It is a notorious fact that respondents resort to all dubious means in order to avoid service of the petitions on them with a view to defending the petitions by the passage of time under sections 129(3) and 140(2). Having regard to the complexity of a petition against gubernatorial election, it may take more than 30 days to complete the pretrial formalities in some cases. It appears to me that unless a petitioner is extra vigilant and agile and the trial court works with speed under great stress such election petition can hardly be tried justly and fairly before it becomes void by virtue of the provisions of the two sections. It Is obvious in this appeal that the two sections in question have not only the effect of ousting the jurisdiction of the High Court of Benue State to try election petitions conferred on it by section 237 of the Constitution but have also caused substantial injustice to the petitioner. As I have shown earlier, the Federal Court of Appeal would have remitted the petition to the High Court for hearing on the merits but did not do so because the High Court had ceased to have jurisdiction in consequence of the provisions of the sections.

In conclusion, I hold that sections 129(3) and 140(2) of the Electoral Act, 1982 constitute fetters and clogs in the exercise of the jurisdiction of an election court and are inconsistent with the provisions of sections 4(8), 6(6)(a) and 237 of the Constitution and are in this respect void. In the same vein, section 132(1) in so far as it provides “and the decision of the Federal Court of Appeal on the appeal shall be given not later than 7 days from the date on which the appeal was filed” and section 132(2) in so far as it enacts: “and the decision of the Supreme Court on the appeal shall be given not later than 7 days from the date on which the appeal was filed” are inconsistent with the appellate jurisdiction of the Federal Court of Appeal and the Supreme Court. Accordingly, the provisions of the two sub-sections which I have put in italics in this paragraph are void.

Finally, I further hold that sections 129 (3) and 140(2) deprived the petitioner of his fundamental right to fair hearing guaranteed by section 33(1) of the Constitution and on this account the two sub-sections are also unconstitutional and invalid.

OBASEKI, J.S.C.: On the 30th day of September, 1983, I allowed this appeal and reserved my reasons for judgment till today. I now give my reasons.

I have had the advantage of reading in advance the draft of the reasons for judgment just delivered by my learned brother, Uwais, J.S.C. Those reasons accord with mine. However, I am of the opinion that the constitutional importance of the judgment is such that my supporting comments are vital and necessary. The issues for determination in the appeal were:

“(1) whether the Federal Court of Appeal having determined that the election panel of the High Court, Makurdi erred in striking out the appellant’s petition on the grounds of objection raised by the 1st respondent to wit:

(1) that by virtue of section 267(1) of the Constitution of the Federal Republic of Nigeria 1979 the 1st respondent as incumbent Governor of Benue State cannot be sued; and

(2) the petition is Incurably defective by reason of non- compliance with the provisions of section 125 of the Electoral Act, 1982″

it was constitutionally restrained by the provisions of section 129(3) and section 140(2) from exercising its powers of ordering a trial of the petition on the merits by the High Court of Justice of Benue State at Makurdi and remitting the case to that court to carry out the order.”

Associated with this issue are the subsidiary issues of:

“(1) whether the provisions of section 129 and section 140(2) of the Electoral Act 1982 are In conflict with the provisions of sections 33 and 258 of the Constitution of the Federal Republic of Nigeria; and

(2) whether the said provisions of section 129(3) and section 140(2) of the Electoral Act are in breach of the doctrine and principles of separation of powers enshrined in the Constitution of the Federal Republic of Nigeria 1979 sections 4, 5 and 6.”

It is appropriate and apposite before proceeding further with this judgment to observe the comments of the Federal Court of Appeal delivered by Ogundare, J.CA who read the lead judgment which reads:

“In view however that under section 140(2) of the Electoral Act the petition has abated and the lower court would no longer have jurisdiction to hear it, this court is unable to exercise its power under section 16 of the Federal Court of Appeal Act, 1976 and (sic) send the petition back to the trial court for hearing and determination.

The position of complete helplessness in which this court now finds itself as regards the appropriate relief due to the appellant upon the success of his appeal before us arises not as much because of the time bar prescribed by sections 129(3) and 140(2) of the Act but because the learned trial judges had not taken the elementary caution of deciding the case on the merits within the period prescribed by the Act.” (Italics ours)

With the greatest respect to the learned Justice of the Court of Appeal, I find myself unable to agree with him that the cause of the helplessness of the Federal Court of Appeal was the failure to take the elementary caution of deciding the case on the merits within the period prescribed by the Act. It is not unknown that some of the cases decided on the merits which went on appeal have been remitted to the court of trial for trial de novo after the decision of the trial court on the merits had been set aside. It appears to me that the helplessness of the Federal Court of Appeal was wholly, in this instant appeal matter, the creation of the provisions of section 129(3) and section 140(2) of the Electoral Act, 1982 the constitutionality of which, in the view held by the Federal Court of Appeal, was unquestionable.

It is necessary at this junction to examine the provisions of these two sections of the Electoral Act, 1982. Section 129(3) reads:

“Proceedings before a High Court in the case of a petition in respect of the office of President or Vice-President, Governor or Deputy Governor or in respect of any of the Legislative Houses shall be completed not later than 30 days from the date of the election concerned.” (Italics ours).

In other words, filing of the petition, the filing of the replies by the respondents, the filing of the replies to the respondents’ replies, the hearing of the evidence led by the petitioner and his witnesses, the hearing of the evidence led/or given by the respondents and their witnesses, the hearing of the addresses of counsel and the consideration of the evidence and addresses of counsel and the writing of and delivery of the judgment by the trial judges should all be completed not later than 30 days from the date of the election concerned.

More devastating are the provisions of section 140 of the Electoral Act, 1982.

In particular, subsection 2 of section 140 reads:

“A petition filed before the High Court in respect of any election shall be disposed of by the court not later than 30 days from the date of such election and any election petition not so disposed of shall be time barred and such petition shall be deemed null and void.” (Italics ours).

It is therefore obvious and clear from the provisions of section 140(2) of the Electoral Act that the election petition which could have been remitted to the High Court at Makurdi was killed instantly by that section on the appeal being allowed and the striking out order set aside, 30 days having elapsed from the date of the election. When by section 130 of the Electoral Act 1982 and section 220(1) of the 1979 Constitution, provision for a right of appeal from a High Court to the Federal Court of Appeal was made, the question may be asked whether an order for trial on the merits or retrial or trial de novo was excluded from the powers the Federal Court of Appeal was to exercise on the determination of the appeal. Section 16 of the Federal Court of Appeal Act 1976 spells out the powers the Federal Court of Appeal may exercise and included among the powers are the powers to remit a matter to the court below for the purpose of re-hearing. Expressly, the section provides:

“The Court of Appeal may from time to time make any order necessary determining the real question in controversy in the appeal and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the court of appeal as court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or in the case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be reheard by a court of competent jurisdiction.” (Italics ours).

In other words, those provisions of the Electoral Act, 1982 deprived the Federal Court of Appeal of its jurisdiction to make the proper or appropriate order in exercise of its powers under section 16 of the Federal Court of Appeal Act and all inherent powers and sanctions of a court of law. Those sections interfere with the judicial powers vested in the courts (High Court, Federal Court of Appeal and the Supreme Court) by section 6(1) and (2) of the 1979 Constitution and as amplified by section 6(6)(a) and(b) of the said Constitution which reads:

”The judicial powers vested in accordance with the foregoing provisions of this section –

(a) shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;

(b) shall extend to all matters between persons or between government or authority and any person in Nigeria, and to all actions and proceedings, relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

By providing that any election petition not disposed of within 30 days of the election concerned shall be time barred and that such petition shall be deemed null and void, the competent High Court and in this case the High Court of Benue State has been deprived, albeit indirectly, of the jurisdiction conferred by section 237(1) of the Constitution to enquire into such question whether the 1st respondent has been validly elected to the office of Governor; and the Petitioner has been deprived of the right to pursue the question already raised and have the question determined by the court. This act of the National Assembly is expressly forbidden by the 1979 Constitution section 4(8). This section 4(8) of the Constitution of the Federal Republic of Nigeria provides:

“Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law” (Italics ours)

I may observe that the 1979 Constitution, in conferring the jurisdiction on the competent High Court did not oust the jurisdiction so conferred if it was not completely exercised within a specified number of days on any matter validly before the Court. By enacting the provision of section 140(2) and 129(3), the National Assembly has, in my view, enacted a law that ousts the jurisdiction of the competent High Court to hear and determine the question whether a person has been validly elected, in this case whether the 1st respondent has been validly elected to the office of Governor of Benue State, raised in a petition validly before it if the petition is not disposed of within 30 days from the day of the election.

Those two sections, in my view, seriously breached the doctrine of separation of powers and section 4(8) of the 1979 Constitution. They are therefore void. See section 1(3) of the 1979 Constitution.

The Electoral Act 1982 did not stop there. It went ahead to restrict the Federal Court of Appeal and the Supreme Court to 7 days from the date of filing the appeal within which each court shall give its decisions. The restrictions was imposed by section 132(1) and (2) of the Act.

The section reads:

“(1) Any appeal to the Federal Court of Appeal pursuant to section 130 shall be filed in the Federal Court of Appeal not later than 14 days from the date of the decision of the High Court and the decision of the Federal Court of Appeal on the appeal shall be given not later than 7 days from the date in which the appeal was filed.” (Italics ours).

“(2) Any appeal to the Supreme Court pursuant to section 131 of this Act shall be filed in the Supreme Court not later than 14 days from the date of the decision of the Federal Court of Appeal and the decision of the Supreme Court on the appeal shall be given not later than 7 days from the date in which the appeal was filed.” (Italics ours).

In other words, the National Assembly has ordered the Federal Court of Appeal to hear an appeal and give its decision within 7 days of filing of the appeal in that court. Similarly, the Supreme Court must hear an appeal and give its decision within 7 days of filing of appeal in the Supreme Court.

These provisions also constitute interference in the judicial functions of the Federal Court of Appeal and the Supreme Court and seriously breached the doctrine of separation of powers. The implication of the provision is clear. It is that if the appeal is not heard and a decision is not given within 7 days of the filing of the appeal, the Federal Court of Appeal or the Supreme Court would no longer have jurisdiction to hear the appeal. The section is therefore in breach of section 4(8) of the Constitution. In so far as the section prescribes time for hearing and determination of the appeal, the two subsections, i.e. subsections (1) and (2) of section 132 are null and void.

During the oral hearing, Chief F.R.A. Williams, SAN. learned counsel for the appellant, in support of his submission that it is unconstitutional for the legislature to enact laws stipulating the time within which the courts should completely exercise their judicial powers, cited the case of State of Indiana Ex Rel Andrew Kostas v. Emsley W. Johnson 168 A LR 1118 at 1120-1122. It was a decision of Indiana Supreme Court, United States of America. That Court decided that:

“Any act by which the legislature attempts to hamper judicial functions or interfere with the discharge of judicial duties is unconstitutional and void.”

I find the facts of the case almost on all fours with the instant appeal and so I intend to examine it to ascertain whether it is of any assistance. The short facts in the Headnote read:

“A statute applicable to trial of questions of fact by the court providing that when any issue of fact or law is submitted to the court for trial and taken under advisement by the judge, the judge shall not, except in case of severe illness of himself or his family, hold the issue under advisement for more than sixty days, and that if he fails to determine within 90 days after having taken the same under advisement, the submission shall, upon application of a party to the action or his attorney, filed in the office of the clerk of court and called to the attention of the judge before announcement of the decision of the issue, be thereupon withdrawn and the judge disqualified to hear or determine any of the issues in the cause which shall then be heard by a special judge appointed under regulations prescribed in cases where a judge is disqualified for hearing in a given cause, is, to the extent that it attempts to fix the time within which a court shall rule upon an issue submitted to it unconstitutional and void as a legislative interference with judicial functions.” (Italics ours).

Young, J. delivering the judgment of the State Supreme Court said at p.22:

“Section 1 of Act 3 of the Constitution of Indiana reads as follows:

‘The powers of the Government are divided into three separate departments; the legislative, the executive including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this constitution provided’……..

Of this section, Judge Elliott said in State ex rel Hovey v. Nobel, supra 118 Ind at page 352 21 NE at page 245,4 LRA 101,10 Am St Rep 143

“……The effect of this provision is to vest in the courts the whole element of sovereignty, known as the judicial, established by the constitution, and the laws enacted under it except in a few instances where powers of a judicial nature are expressly lodged elsewhere ” In the same case, 118 Ind. at page 355, 21 NE at page 246, 4 LRA 101, 10 AM St Rep 143 the following words from an Illinois case are quoted with approval. “If there is any one proposition immutably established …… I had supposed it to be that the judiciary department is absolutely independent of the other departments of government”. In Board v. Albright (1907) 168 Ind. 564, 578, 81 NE 578, 582, the following language is quoted from Board etc. v. Stout (1893) 163 Ind 53, 35 NE 683, 22 LRA 398; “courts are an integral part of government, and entirely independent, deriving their powers directly from the Constitution in so far as such powers are not inherent in the very nature of the judiciary. A court of general jurisdiction whether named in the (constitution or established in pursuance of the provisions of the constitution cannot be directed or impeded in its functions by any of the other departments of the government. The security of human rights and the safety of free institutions require the absolute integrity and freedom of action of courts.”

By these provisions of the Constitution, the three departments of government are made equal, co-ordinate and independent, Lafayette M. & B.R. Co. v. Gerger (1870) 34 Ind. 185, and no department of the government can be controlled or embarrassed by another department of the government, unless the Constitution so orders. State v. Shumaker (1928) 200 Ind 716, 721, 164 NE 408, 63 ALR 218. Any act by which the legislature attempts to hamper judicial functions or interfere with the discharge of judicial duties is unconstitutional and void. 16 CJS, Constitutional Law S 108 p. 298, 11AM Jur p. 908. The principles above enunciated have been applied to statutes undertaking to fix the time within which courts shall act in certain cases or matter Rottschaefer or Constitutional Law, p. 53. Atchison T & S F.R. Co. v. Long (1926) 122 Okla 86,88,251 P 486; Schario v. State (1922) 105 Ohio St. 535, 138 NE 63, 64; Riglander v. Star Co. (1905) 98 App Div 101, 90 NYS 772,774,775, affirmed, 181 NY 531, 73 NE 1131. In each of the cases just cited, legislation attemping to require judicial action within periods named held unconstitutional and void as legislative interference with judicial functions.”

One of the powers which has always been recognised as inherent in courts which are protected in their existence, their powers, and jurisdiction by constitutional provisions, has been the right to control the order of business, and to so conduct the same that the rights of all suitors before them may be safeguarded.

This power has been recognised as judicial in nature and as being a necessary appendage to a court organised to enforce rights and redress wrongs. The principles of separation of powers prohibits the legislature not only from exercising judicial functions but also from unduly burdening or interfering with the judicial department in its exercise thereof. See Rottschaefer on Constitutional Law page 53.

In Schario v. State 105 Ohio St. 535,138 NE 64 cited with approval by Young, J. in State Ex Rel Kostas v. Johnson (supra) the court used the following language:

“We hold therefore, that a provision of law mandatory in its terms, intention, and character, requiring the court in the exercise of a jurisdiction duly conferred upon it to hear or determine the cause within 30 days from the time within which it is filed in court, or submitted to court is an unreasonable and unconstitutional invasion of judicial power and therefore void.”

The Nigerian courts, in my opinion, have been made by the 1979 Constitution to be the judge of how they can best expedite judicial business before them.

The court cannot be made or directed to sacrifice justice on the altar of speed. Justice the end result of fair hearing and the length of time a fair hearing takes has to make allowance for the full and free exercise of the right of the parties to present their cases through their witnesses and counsel, and the obligation of the judges to give full and effective consideration to the evidence led and the addresses of counsel, if any, in their decisions. Any law that deprives the courts of their power and right to do justice to all who seek justice in the courts is unconstitutional and void. In my view, sections 129(3) and 140(2) also infringe the rights of fair hearing and the principles of justice enshrined under our 1979 Constitution and are, therefore, Void.

The 1979 Constitution was aware of the need for justice according to law in a democratic society and expressly provided in section 258(1):

“Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof”

Fair hearing is a right guaranteed by section 33(1) of the Constitution which reads:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”

Section 33 and section 258(1) of the 1979 Constitution enable justice to reach everyone in the society and as the Constitution of the Federal Republic of Nigeria 1979 is supreme (see section 1(1) the Electoral Act 1982 is void to the extent of its inconsistence with the Constitution. The appellant is entitled to fair hearing and the court is entitled to its independence in the conduct of the hearing.

It was for the above reasons and those ably stated in the reasons for judgment just delivered by my learned brother, Uwais, J.S.C. that I allowed the appeal, set aside the order of the Federal Court of Appeal refusing to remit the petition to the High Court of Benue State, Makurdi for trial on its merit and remitted the petition to the Makurdi High Court for trial on the merits.

ESO, J.S.C.: I have had the advantage of a preview of the reasons which have been given in this case by Uwais, J.S.C. and I agree with those reasons.

The provisions of the Electoral Act that came for construction before this Court are sections 129(3) and 140(2).

These two provisions are as follows:

“129 (3) Proceedings before a High Court in the case of a petition in respect of the office of President or Vice-President, Governor or Deputy Governor or in respect of any of the Legislative Houses shall be completed not later than 30 days from the date of the election concerned.”

“140 (2) A petition filed before the High Court in respect of any election shall be disposed of by the Court not later than 30 days from the date of such election and any election petition not so disposed of shall be time barred and such petition shall be deemed null and void.”

As this matter touches on the all important principles of separation of powers and fair hearing, I intend to add a few words of my own.

The Constitution of the Federal Republic of Nigeria 1979 which is hereinafter referred to as the Constitution is very unique compared with the previous Constitutions, in that the executive, the legislature and the judicature are each established as a separate organ of government. There is what can be termed a cold calculated rigidity in this separation: see sections 4, 5 and 6 of the Constitution which establish the Legislature the Executive and the Judicature respectively. The real connecting link among these three is that they provide checks and balances on one another. But though there are these checks and balances one cannot and must not usurp the functions of the other. The checks and balances are certainly to preclude the exercise of arbitrary power. In Myers v. United States 272 US.52

Brandeis, J. of the U.S. Supreme Court put it thus –

”The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power.”

I do not claim to know the reason for the adoption of the doctrine in the U.S. Constitution but it seems to me that in so far as our Constitution is concerned observance of the doctrine is meant to promote both efficiency and preclude exercise of arbitrary power. Actually, whether one or both of these aims succeed depends on the three arms of averment but more in my view on the judiciary bringing it home to all the functionaries concerned at every opportunity.

I have stressed the importance of the power of the judiciary in this direction as that power would appear to me to have been strengthened by s.4(8) of the Constitution which provides –

“(8) Save as otherwise provided by this Constitution the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.”

Thus courts of law have jurisdiction on the exercise of powers by the legislature and yet the legislature cannot pass any law that would oust the jurisdiction of the court. Indeed this provision is deliberate and it stemmed from the reaction of the Nigerian politician which has its genesis after the decision of the Judicial Committee of the Privy Council in the case of Akintola v. Adegbenro 1963 A.C. 614, when as a result of non-toleration of the decision by the politician Legislature abolished appeals to the Privy Council.

Now to come back to the point in issue in this ease what the provisions of the Electoral Act s.129(3) and s.140(2) tend to do is to inhibit the exercise of judicial functions, to wit, hearing a ease within the time a court of law believes it can reasonably hear it, preparation of and delivering judgments in the ease. It is the absolute prerogative of the judiciary and they are matters within its absolute competence to determine the time the justice of a case demands hearing and determination of a case. Any provision that tends to interfere, in any form, with that power is unconstitutional. The only restraining factors as regards the period it shall deliver its judgments are provided for in the Constitution itself. See section 258(1) of the Constitution which sets a maximum of three months, after the conclusion of evidence and final addresses in a case, to furnish all parties to the cause with duly authenticated copies of the decision of the Court.

Sections 129(3) and 140(2) of the Electoral Act are complete negation of the provision of s.258(1) and also section 6 of the Constitution and therefore they are unconstitutional and are hereby so declared.

In so far as fair hearing is concerned s.33 (1) of the Constitution provides –

“33(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

What is fair hearing In Isiyaku Mohammed v. Kano N. A. 19681 All N.L.A. 42 Ademola, C.J.N. delivering the judgment of the Supreme Court said and I respectfully adopt this dictum –

“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two.

The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case.” What justice can be done, or seen to be done by a reasonable person, when the litigants have been enjoined by law, even before they start on the preparation of their case that the proceedings shall be completed within 30 days from the date, not even of commencement of their action but of the election concerned [s.129(3) of the Electoral Act] Or that the Court has only 30 days from the date of the election to dispose of the action [s.140(2) of the Electoral Act] Surely this is in contravention of s.33 of the Constitution which provides for fair hearing of a case.

It was for all these reasons and the reasons so clearly given by my brother, Uwais, J.S.C. that I allowed the appeal on 30th September, 1983 and declared s.129(3) and s.140(2) of the Electoral Act 1982 unconstitutional and remitted the petition for fresh hearing by the High Court of Benue State.

NNAMANI, J.S.C.: I had a preview of the reasons for judgment just delivered by my learned brother, Uwais, J.S.C. and I agree entirely with them. I shall only add a short comment.

The appeal in this suit centred around the unconstitutionality or otherwise of sections 129(3) and 140(2) of the Electoral Act No.8 of 1982. These sections provide as follows:-

“129 (3) Proceedings before a High Court in the case of a petition in respect of the Office of President or Vice-President, Governor or Deputy Governor or in respect of any of the Legislative Houses shall be completed not later than 30 days from the date of the election concerned 140 (2). A petition filed before the High Court in respect of any election shall be disposed of by the Court not later than 30 days from the date of such election and any election petition not so disposed of shall be time barred and such petition shall be deemed null and void”

Although the Federal Court of Appeal, Jos Judicial Division allowed the appeal of the appellant herein against the ruling of the Benue State election court, that Court, i.e. the Federal Court of Appeal, felt unable to make the necessary consequential order of remitting the petition to the Benue State High Court for a retrial on its merits holding that its hands were tied by the provisions of the Electoral Act set down above which provisions it held constitutional. In its lead judgment as per Ogundare, J.C.A. the court concluded as follows:-

“It is with the second consequential relief that difficulties seem to have arisen.

If this were an ordinary civil proceeding I would not have hesitated to invoke the power of this Court under section 16 of the Federal Court of Appeal Act, 1976 and send the case back to the lower court for it to be heard and determined on its merits. But we are faced with sections 129(3) and 140(2) of the Act. This is now the third question I highlighted in the early part of this judgment Mr. Anyamene learned Senior Advocate of Nigeria has submitted before us that these two sections are invalid as offending sections 4(8), 33(1) and 258(1) of the Constitution. Section 4(8) prohibits ouster of jurisdiction of a court and section 258(1) deals with the time limitation for the delivery by a court, of its decision.

With respect to the learned Senior Advocate, I do not see how section 129(3) and 140(2) can be said to offend against the above sections of the Constitution in that (i) they do not oust the jurisdiction of the court and (ii) they provide for delivery of judgment within and not outside the time permitted under the Constitution Can it be said that sections 129(3) and 140(2) of the Act inhibit appellant’s right to a fair hearing within a reasonable time’ It is not disputed that the High Court of Benue State, Makurdi is a court established by law and constituted in such manner as to secure its Independence and impartiality.’

It is equally not the case that the appellant was denied a fair hearing.

Nor has he shown that he could not prosecute his petition within 30 days limit imposed by sections 129(3) and 140(2) if the petition had proceeded to hearing on 7/9/83 rather than being struck out on that day …..”

From the submissions of Chief F.R.A Williams, learned Senior Advocate of Nigeria who appeared for the appellant, there are two main principles of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter simply referred to as the Constitution) which in my view the impugned sections of the Electoral Act i.e.129(3) and 140(2) violate. These are the principle of separation of powers and fair hearing within a reasonable time. With regards to the first, the principle of separation of powers is fundamental to our residential Constitution. The Constitution both at the Federal and State levels makes provision for 3 great departments of State – The Legislature, Executive and Judiciary. Provisions have been made in the Constitution as to the powers and functions of each department.

With respect to the Judiciary for instance, sections 6(1), 6 2 and 6(6)(b) provide as follows:

“6 (1) The judicial powers of the Federation shall be vested in the courts for which this section relates being courts established for the Federation.

6 (2) The judicial powers of a State shall be vested in the courts to which this section relates being courts established for a state….

6 (6) (b) The judicial powers vested in accordance with the foregoing provisions of this section – (b) shall extend to all matters between persons, or between governments or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”

Under the principle of separation of powers enshrined in our Constitution, the three organs of government are independent, equal and co-ordinate. No department is controlled by the other although each acts as a check on the other. The powers granted to the Judiciary under the Constitution are extensive and section 6 of the Constitution taken together with other provisions of the Constitution are designed to ensure an independent judiciary equipped and ready to act as a protection to the individual against arbitrariness whether from the executive or legislative branches of government. That is clearly the intention of the framers of the Constitution.

There is therefore no express provisions in the Constitution entitling the

legislative branch of government to interfere with or dictate to the judiciary the manner in which the judicial function must be performed. The exercise of judicial functions and the organization of judicial action, except in so far as the Constitution has made provisions on them, must be left to the courts. The period necessary to complete hearings in a case having regard to the nature of that case, the preparations and research necessary before judgment is given are all matters within judicial control with which the legislature cannot and ought not to interfere. It is as if to underline the importance attached to the judicial role that the Constitution in the second part of section 4(8) provided as follows:-

” and accordingly the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction or a court of law or a judicial tribunal established by law.”

In State of Indiana Ex Rel Andrew Kostas vs. Emsley W. Johnson Jnr. 168 A.L.R. 1st Series p.1118, at p.1123 Young, J. quoted with approval a statement in Riglander v Star Co. (1904) 98 App. Div 101 in these words

“One of the powers which has always been recognised as inherent in courts, which are protected in their existence, their powers, and jurisdiction by constitutional provisions has been the right to control its order of business and to so conduct the same that the rights of all suitors before them may be safeguarded.

This power has been recognised as judicial in its nature, and as being a necessary appendage to a court to enforce rights and redress wrongs”.

Also in Schario v State (1922) 105 Ohio St 535, 138 NE63, 64 [(cited in Kostas case)] the Court was of the view ”that a provision of law mandatory in its terms intention and character, requiring the court in the exercise of a jurisdiction duly conferred upon it to hear or determine a case within 30 days from the time within which it was filed in court, or submitted to the Court is an unreasonable and unconstitutional invasion of judicial power and therefore void”

This is precisely what sections 129(3) and 140(2) of the Electoral Act have sought to do. By it the legislature is setting to the courts a time limit within which they must complete proceedings in election petitions and deliver judgments. This is an unwarranted and unlawful interference with judicial powers and action. Various provisions of the Constitution (See sections 216, 233 and 239) vest power in the National Assembly or the House of Assembly as the case may be to make laws regulating the practice and procedure of one Superior Court of record or the other.

With particular reference to elections, the Constitution identified the competent High Court for the various elective offices in section 237 while in section 111(1) (c) it empowered the National Assembly to make provision in respect to the powers, practice and procedure of the competent High Court. Under Item 21 of the Exclusive Legislative List, 2nd Schedule Part 1 of the Constitution, the National Assembly is empowered to make laws with respect to election to the offices of President and Vice- President or Governor and Deputy Governor and any other office to which a person may be elected under the Constitution. The issue is therefore not about the power of the National Assembly to make laws for the conduct of the said elections, nor is its competence to make provisions for the times within which election petitions are to be filed, the manner in which they are to be filed etc. in question (see section 119 of the Electoral Act). What is in issue is the legislature’s departure from these matters which are largely procedural to more substantive issues touching on judicial powers and action. In this connection, I must state that I am unable to accept the submission of learned Senior Advocate of Nigeria, Dr. M. Odje, appearing for the 1st respondent that such matters as time for determination of proceedings and disposal of the matters on appeal are matters of procedure which the National Assembly is competent to regulate.

Finally on this point, the Constitution had itself set whatever restraint on the courts it thought necessary with respect to time within which judgments are to be delivered. (See sections 33(7) and 258(1) of the Constitution). In particular section 258(1) provides as follows:

“Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof.”

It was contended that all that this provision has done is set a maximum period within which the courts must deliver their judgments and that the National Assembly which set 30 days in section 140(2) has stipulated a period within this time schedule.

I find it difficult to accept this argument. Section 258(1) is worded such that a discretion is left with the courts as to when within the 3 months limit a decision can be handed down. The effect of sections 129(3) and 140(2) of the Electoral Act 1982 is to remove that discretion. In my view they are not only an interference with the powers of the courts but amount to an imposition! They are therefore inconsistent with the provision of section 258(1) of the Constitution. Furthermore they are also contrary to the intendment of section 6 of the Constitution.

Before leaving this part of the suit, I may add that although this issue was not fully argued before us, I am of the view that for the same reasons those portions of section 132 sub-sections (1) and (2) of the Electoral Act 1982 which impose a 7 day limit on the Supreme Court and the Federal Court of Appeal for delivery of their decisions are also void as being inconsistent with section 258(1) of the Constitution. Indeed that this is so is borne out by the attitude of this Court in Chief Jim Ifeanyichukwu Nwobodo v. Chief Christian C. Onoh S.C.96/1983 (unreported and delivered on 8th October, 1983); and Chief Akin Omoboriowo and 1 Or. v. Chief M. Adekunle Ajasin S.C. 98/1983 (unreported and delivered on 15th October, 1983).

The second principle referred to earlier in this judgment is to be found in section 33(1) of the Constitution. It provides as follows:-

“In the determination of his civil rights and obligations including any questions or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.

The fundamental right of fair hearing within a reasonable time is basic to the concept of the rule of law. Briefly put, it assumes that a litigant would be allowed sufficient time in court to put forward his case. In other words, he would be allowed sufficient time to call such witnesses or tender such documents as he deems necessary for the purpose of proving his case in court., What is reasonable or sufficient time for this purpose ought to be left in the discretion of the court to determine according to the circumstances of each case. In R. Ariori & Ors and Muraino B. O. Elemo & Ors. (1983) 1 S.C. 13 this Court dealt at length with fair hearing and whether this right could be waived. Obaseki, J.S.C. in his judgment defined “reasonable time” within the meaning of section 33(1) of the Constitution in these words which are apposite

“Reasonable time must mean the period of time which, in the search for justice, does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable persons to be done.”

Since this suit deals with elections, and taking all the circumstances into account, are 30 days as provided by sections 129(3) and 140(2) of the Electoral Act 1982 “reasonable time” within which there can be fair hearing of the contentions of the parties I think not. The Federal Court of Appeal had argued that election petitions were proceedings of a special nature and that abridgment of time was necessary if the constituents are to know their representative at the earliest possible time. I do agree that public policy demands that there should be such speed in determining such issues, but the process by which it can be achieved must be such as will involve no infraction of the Constitution. In any case, could the Court of Appeal be right in holding that 30 days limit was not outrageous having regard to the circumstances Sections 129(3) and 140(2) of the Electoral Act put a limit of days from the date of the election on the period for any proceedings in a High Court in an election petition. By the combined effect of sections 119(4), 135 and 139 of the Electoral Act it is clear, as was very graphically demonstrated by Chief Williams in this Court, that even if the petition was filed a day after declaration of the result of the election concerned, and even when it is assumed that the result of that election was released a day after the election (which was never the case in the last general elections), the total period before the petition could come to trial is 31 days! In other words, it was not even a question of reasonable time to ensure a fair trial within section 33(1) of the Constitution, but rather a question of no time at all for a trial! It seems clear to me therefore that sections 129(3) and 140(2) of the Electoral Act 1982 violated the right guaranteed the citizen by section 33(1) of the Constitution and to that extent are void.

It was for these reasons, and for the more detailed reasons contained in the judgment of Uwais, J.S.C. to which I had earlier made reference, that I allowed this appeal on 30th September, 1983, declared sections 129(3) and 140(2) of the Electoral Act, 1982 unconstitutional and remitted the petition to the High Court of Benue State for hearing with despatch on its merits.

Appeal allowed.

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SC.95/1983