Senator John Akpanudoedehe & Ors. V. Godswill Obot Akpabio & Ors. (2012)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C. 

This appeal is in the main asking the court to depart from its decision in ANPP v Goni (supra) and other decisions in its interpretation of section 285 (6) of the Constitution as amended. The 1st and 2nd respondents on one part and the 4th respondent each filed a Preliminary objection and had the arguments embedded in their Briefs of Arguments. The 3rd respondent did not file a preliminary objection, but aligned to the raising of those objections and anchoring on the arguments.

Chief Bayo Ojo SAN for the 1st and 2nd respondents submitted that the appellants are estopped from filing this appeal seeking that their petition be remitted back to the trial tribunal for hearing, the status of a petition after 180 days of the date of it being filed having been conclusively resolved against their interest in ANPP v. Goni (supra).

Dr. Onyechi Ikpeazu SAN for the 4th respondent contended that jurisdiction is a creation of statute and to an appellate court, an appeal is regarded as continuation of hearing and so where a cause of action is extinguished by operation of law, no appeal can subsist with respect to a spent cause of action.

The appellants’ response in these objections is that to the extent that section 285(6) of the constitution dealing with election petition is construed have a devastating effect on the provision of Section 36 of the constitution then that Section requires for its validity to have been enacted under section 9(3) of the constitution and not as it was done by the legislature here under section 9(2). That section 285(6) cannot and must not be read in isolation from the provisions of other Sections of the constitution especially section 246, 36, 285 (7), (8) and 6(6) of the same constitution. That as the new sections 285(7) and (8) themselves preserve the right of appeal in both interlocutory and final appeals it must stand to reason that the powers of the Appellate court in exercise of its appellate jurisdiction which included the power to apply the principle of fair hearing under section 36 and the power to order a retrial in this case.

Having heard learned counsel for the 1st and 2nd respondents, Chief Bayo Ojo SAN, the learned counsel to the 3rd respondent, Mr. Oyesanya and Dr. Onyechi Ikpeazu SAN for the 4th respondent and the appellant whose reply were made available by Chief Awodein SAN in line with the written brief in the Preliminary objections and Reply on point of law. What comes out clear is the matter of whether or not there is a live issue regarding the petition at the trial tribunal on which this court can make an order for retrial. The basic obstacle to deal with is the fact of the 180 days created by section 285(6) of the constitution that a petition thereof must be started and concluded, computation starting from date of filing. On this fact it cannot be challenged that the 180 days have expired. What appellant is asking for is for this court standing on the principte of fair hearing under Section 36 of the Constitution to order for a full trial at the Tribunal on the Gubernational Election of 2011.

Section 285 (6) of the constitution provides thus:

“An Election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”

The wordings of that provision above stated are clear and unambiguous and the meaning and purport thereof having been severally decided by this court and that is that it is not for this court to extent the period of 180 days at court of first instance and 60 days on appeal since this court cannot take the place of the legislature and amend the constitutional provision whenever it feels like. See Ogboru v. Uduaghan (2011) 17 NWLR (pt.1277) 727, ANPP v Goni in the unreported judgment of this court in SC1/11 and SC2/11.

This court is being persuaded to apply section 36 of the constitution to depart from its previous decisions and interpretation of section 285(6). This submission is indeed a beautiful academic rendition and the point has to be made and forcefully too that matter of fair hearing only applies where the suit is still alive not a dead one as in this case which death occurred by exfluxion of time, the 180 days having been exhausted. As this court held in Rosseck v. ACB Ltd (1993) 8 NWLR (Pt.312) 382 at 442, no ground exist which warrant a departure from the earlier decisions in interpretation of section 285(6) of the Constitution with the time expiration of the trial tribunal, the implication being that there is therefore no foundation on which this court can do what the appellant is urging it.

This appeal and what is intended fall within the sphere of an abuse of court process as it is a clear academic exercise glaring to all. It is on that basis that I uphold the preliminary objection raised by counsel for the respondents. I dismiss the appeal.

Parties to bear own costs.

SC.154/2012