In The Court of Appeal

(Ekiti Judicial Division)

On Friday, the 30th day of November, 2012

Suit No: CA/EK/EPT/1/2012

Before Their Lordships

JIMI OLUKAYODE BADA....... Justice, Court of Appeal

EJEMBI EKO....... Justice, Court of Appeal

MODUPE FASANMI....... Justice, Court of Appeal

Between

1. HON. KEHINDE ODEBUNMI

2. PEOPLES DEMOCRATIC PARTY (PDP)  Appellants

And

1. OJO OYETUNDE OLADIMEJI

2. ACTION CONGRESS OF NIGERIA (ACN)

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION

4. RESIDENT ELECTORAL COMMISSIONER, EKITI STATE

5. THE RETURNING OFFICER EKITI WEST/EFON/IJERO LGA BYE ELECTION

6. RETURNING OFFICER, EKITI WEST LGA

7. RETURNING OFFICER, EFON LGA

8. RETURNING OFFICER, IJERO LGA

9. NIGERIA POLICE FORCE

10. INSPECTOR GENERAL OF POLICE

11. COMMISSIONER OF POLICE, EKITI STATE Respondents

EJEMBI EKO, J.C.A. (Delivering the Lead Ruling): The National Assembly Election Tribunal sitting at Ado-Ekiti on 26th June, 2012 delivered judgment in the election petition brought before it by the Appellants, as petitioners. The Tribunal in its considered judgment dismissed the petition challenging the return of the 1st Respondent, a candidate sponsored by the Action Congress of Nigeria (2nd Respondent) as the person duly elected in the Ijero-Ekiti West/Efon Federal Constituency II in Ekiti State in the election conducted by the 3rd - 8th Respondents.

The appeal came before us for hearing on 7th November, 2012 about 134 days since the judgment of the Tribunal appealed was delivered on 26th June, 2012.

On 5th October, 2012 (101 days after the judgment of the Tribunal delivered on 26th June, 2012), the 1st and 2nd Respondents brought an application for an order striking out "this appeal for lack of jurisdiction". In the grounds for the application, the applicants stated inter alia that "the appeal was not heard within the stipulated 60 (sixty) days" from the date of the judgment appealed; that the judgment of the Tribunal was delivered on 26th June, 2012 and that election matters and appeals therefrom are sui generis and further that an appeal arising from the judgment of an Election Tribunal "is statutorily and constitutionally allowed to be heard and determined within 60 (sixty) days". These facts were verified by the supporting affidavit. There was no counter affidavit. The facts therefore remain unchallenged and/or uncontradicted. The law is trite: facts not disputed are taken as established and the court can act on such facts, See ODULAJA v. HADDAD (1973) II S.C. 35. The fact that the appeal, against the decision of the Election Tribunal delivered on 26th June, 2012, was not heard and determined by this court within sixty (60) days after the said 26th June, 2012 is unassailable. The Appellants made no effort to contradict this fact, I am enjoined to accept the fact as established, and I do so hold.

On these established facts counsel for 1st and 2nd Respondents submitted that the appeal has become incompetent by dint of Section 285(7) of the Constitution, 1999 as amended in the 2nd Alteration. He then urged us to strike it out, as it had elapsed by effluxion of time. He was supported in these submission and prayers by counsel for 3rd - 8th Respondents.

Mr. Omoniyi Idowu, relying on a number of cases including OKOLO v. UBN LTD. (2004) 3 NWLR (PT. 859) 89 at page 108 per NIKI TOBI, JSC, submitted, and I agree, that jurisdiction is the threshold of judicial power and jurisdiction. It is extrinsic to the adjudication and it cannot be waived by one or both parties to the dispute by connivance, acquiescence or collusion. Where the court lacks jurisdiction in any matter, the court is incompetent to adjudicate in the matter as between the parties before it. See, MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 357; SKENCONSULT NIG. LTD. v. UKEY (1982) 4 S.C. (PT.2) 131.Mr. Idowu further submitted, and I agree also, that where the words of the Constitution are clear and unambiguous, there is no further need to give them any other meaning than their ordinary natural and grammatical meaning. See; PDP v. OKOROCHA (2012) ALL FWLR (PT. 626) 449 at 485 - 486; ANPP v. GONI (2012) ALL FWLR (PT. 623) 1821 at 1850 - 1851.

It was pointed out in the written address of Mr. Idowu accompanying the motion on Notice, under consideration, that the Supreme Court, in a number of cases including C.P.C v. INEC (2012) ALL FWLR (PT. 617) 605 at 656 - 657; SHETTIMA v. GONI (2012) ALL FWLR (PT.609) 1008, had exhaustively interpreted Section 285(7) of the Constitution, as amended, to the effect that when an appeal from the judgment of an election tribunal is "not heard disposed of within (60) sixty days from the date of the decision/judgment - appeal lapses", and that in that case the appeal is no longer "worthy of any further consideration", as it has become academic to embark on such non fruitful exercise.

Section 285(7) of Constitution, as amended, provides -

An appeal from the decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal.

The reply of Mr. Obafemi Adewale of Counsel to the Appellants is that Section 36(1) of the Constitution as amended, guarantees the right to fair hearing and further that the right of every person to have his matter or case heard is guaranteed by Section 7(1) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act. Counsel further submitted that Section 285(7) of the Constitution, as amended, violates Section 7(1) of the African Charter on Human and Peoples Right etc and Section 36(1) of the Constitution as it purports to abrogate the right of the Appellants to have their matter heard. Counsel concludes the interesting submission with a prayer that Section 285(7) of the Constitution, as amended, should be voided as it is in conflict with Section 7(1) of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act read together with Section 36(1) of the Constitution. He cited ITSUE v. S.E.C (2012) 2 NWLR (PT. 1284) 329 at 363 A - E for this preposition. This has to be so, counsel further submits, as Section and the 285(7) of Constitution, as amended, has encroached on the right of the judiciary to be independent and to further regulate its own proceedings. He remains adamant on this posture inspite of his attention being drawn to the numerous decisions of the Supreme Court on Section 285(7) Constitution, as amended. In response he submitted that those decisions were per incuriam; accordingly they are not binding on this court.

These audacious submissions are, in my firm view, quite misleading and the least ingenious. The decision or judgment of every court of law, on presumption of regularity by virtue of Section 168 of the Evidence Act, 2011, remains valid and binding until set aside. Where, contrary to what Mr. Adewale has submitted, the Law Lords at the Supreme Court render a judgment that appears per incuriam, it is only those Law Lords, and not any other mortal or court inferior to the Supreme Court, who can competently set it aside. Section 287(1) of the Constitution is very clear. The Court of Appeal and all Courts inferior to the Supreme Court are not only bound by the decision of the Supreme Court, they are under a clear obligation to enforce every decision of the Supreme Court.

Section 287(1) of the Constitution provides -

287(1). The decisions of the Supreme Court SHALL BE ENFORCED in any part of the Federation by all authorities and persons and BY COURT with subordinate jurisdiction to that of the Supreme Court.

The history and purpose of the enactment of Section 285(7) of Constitution, as amended, were clearly stated in ANPP v. GONI (2012) FWLR (PT. 623) 1821 wherein Onnoghen, JSC at page 1847 B - F stated -

It should be constantly kept in mind that prior to the provision of Section 285 (5) of the 1999 Constitution there was no time limit for the hearing and determination of an election petition by the tribunals or the appeals arising therefrom. That situation resulted in undue delay in the hearing and determination of election matters. The amendment to the original Section 285 of the 1999 Constitution by allotting time within which to hear and determine election petitions and appeals arising therefrom is designed to ensure expeditious hearing and determination of election matters in this country.

It was held in the above decision of the Supreme Court also that:

the time fixed by the Constitution is like the rock Gibraltar or Mount Zion which cannot be moved; that the time cannot extended or expanded or elongated or in any way enlarged that if what is to be done is not done within the time so fixed, it lapses as the court is thereby robbed of its jurisdiction to continue to entertain it. See also C.P.C.V. INEC (2012) ALL FWLR (PT. 617) 605 at 656 - 657 D-A.

The numerous decisions of the Supreme Court are binding on this court and the parties to this appeal.

Section 285(7) of the Constitution, as amended, is very clear in its language and intent. Once a party to an election petition is aggrieved by the decision of the election tribunal and he intends to appeal the decision to this court the preparation, hearing and determination of the appeal must be concluded within sixty (60) days of the decision or judgment of the election tribunal; otherwise, the appeal lapses. The operative words are- "within sixty (60) days from the date of delivery of the judgment". If the appeal is not heard and determined within sixty (60) days as directed by the Constitution, the appeal becomes spent and is no longer worthy of any further consideration.

Considering such an appeal or cause after the effluxion time is completely academic without any practical utilitarian value to all the parties thereto. See; SHETTIMA v. GONI (Supra) at page 1046.

Mr. Adewale had robustly, albeit erroneously, submitted that in view of the right to have his matter or cause heard by the court of law guaranteed by Section 7 (1) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act read together with Section 36(1) of the Constitution, as amended, Section 285 (7) of the Constitution, as amended, is invalid and a nullity. I do not think any reasonable court of law will submit to this phantasm nor will be it carried away by the fallacy inherent in the submissions. In the first place, the provisions of sub-section (7) of Section 285 of the Constitution were introduced later in time for a purpose, as Onnoghen, JSC stated in ANPP v. GONI (Supra). The amendment was subsequent to the original provisions of Section 36(1) and 285 of the same Constitution. Clearly, the National Assembly exercised its sovereign parliamentary powers to introduce sub-section (7) to section 285 of the Constitution by way of amendment quite cognizant of the existence of Section 36(1) of the same Constitution. I do not think the National Assembly intended that the right to fair hearing under Section 36(1) should circumscribe the jurisdiction of the Election Tribunals, Court of Appeal or the Supreme Court vested or conferred by the constitution in election matters. The right guaranteed by Section 36(1) of Constitution enures and it is potentiated only if the court or tribunal established by law is vested with jurisdiction to adjudicate. While the right to fair hearing or jurisdiction under Section 36(1) of the Constitution is merely procedural; jurisdiction vested in the tribunal or the Court of Appeal under Section 285 of the Constitution as amended is extrinsic and a substantive jurisdiction. It was further suggested by Mr. Adewale of counsel to the Appellants that if Section 285(7) of the Constitution, as amended, is in conflict with the provisions of Section 7(1) of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act, the provisions of the latter prevail. This submission completely ignores the constitutional supremacy clause in Section 1(1) & (3) of the Constitution, as amended. The provisions as are as follows-

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

(2)----

(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.

The African Charter on Human and People's Rights (Ratification and Enforcement) Act, as demonstrated in ABACHA v. FAWEHINMI (2004) 4 SCNJ 400 at 423, even though it has international flavor, is not superior to the constitution. It is inferior to Constitution like any other statute enacted by the National Assembly. It was an international treaty domesticated or incorporated into the municipal laws of the Federation by dint of Section of Section 12(1) of the Constitution which provides:

12(1). No treaty between the Federation and any other country shall have the force of law except to the extent to which such treaty has been enacted into law by the National Assembly.

The provisions of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act apply subject to, and to the extent permitted by, the National Assembly which can modify or repeal it. The validity of another Statute or Act of the National Assembly is not determined by the mere fact that the Act or Statute violates or is in conflict with the African Charter on Human and People's Rights (Ratification and Enforcement) Act See; ABACHA v. FAWEHINMI (Supra) at 423.

Appellants' counsel clearly was erroneous in his submissions that Section 285(7) of the Constitution, as amended, is invalid and a nullity to the extent that it violates the right of the Appellants to have their matter or cause heard guaranteed by Section 7(1) of the African Charter on Human and People's Rights (Ratification and Enforcement) Act read together with Section 36(1) of the Constitution, as amended.

The regime of Section 285(7) of the Constitution, as amended, remains extant. It has rendered the appeal of the appellants against the decision or judgment of the Election Tribunal delivered on 26th June, 2012 incompetent and nugatory; the appeal having not been heard and determined within sixty (60) days from the said 26th June, 2012. The appeal has lapsed by effluxion of time. It is accordingly, hereby struck out.

Costs assessed at N50,000.00 are hereby awarded to the 1st and 2nd Respondents/Applicants against the 1st and 2nd Appellants/Respondents jointly and/or severally

JIMI OLUKAYODE BADA, J.C.A.: I have the privilege of reading before now the draft of the Lead Judgment of my learned brother, EJEMBI EKO, J.C.A. just delivered. The issues for determination of the appeal have been meticulously dealt with. I agree with My Lord's reasoning and conclusion.

Judgment was delivered by Election Tribunal in this case on 26th day of June, 2012, Section 285(7) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus:

"An appeal from a decision of an Election Tribunal or Court shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal."

This appeal came up for hearing on 7/11/2012. The period between 26/6/2012 and 7/11/2012 is definitely more than 60 days allowed by the Constitution.

I agree with my Lord that the appeal has lapsed by effluxion of time, and it is also struck out by me.

MODUPE FASANMI, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother Ejembi Eko, J.C.A.

Section 285(7) of the 1999 Constitution as amended has fixed the hearing and determination of appeal to he concluded within 60 days of the decision or judgment of the election tribunal otherwise the appeal lapses. The judgment of the Tribunal appealed against was delivered on 26th June, 2012. The appeal on the decision under consideration came before the court for hearing on the 7th of November, 2012. This is clearly out of time by any calculation.

I agree entirely with the reasoning and conclusion contained in the lead judgment, I also abide by the consequential order as to costs.

Appearances

Obafemi Adewale, Esq., with Dr. Foluke Dada, Ezekiel Agunbiade Esq., Bunmi Olugbade, Esq., Adeyemi Adewunmi Esq. and Iyabosade Olumide – Ojo (Mrs.)    For the Appelants

Omoniyi Idowu, Esq. with A. Adeoye, Esq. and Lawal O. Alabi Esq. for 1st and 2nd Respondents/Applicants

Oso Adetunji Esq. – for 3rd – 8th Respondents     For the Respondents