In The Court of Appeal

(Enugu Judicial Division)

On Thursday, the 29th day of March, 2012

Suit No: CA/E/EPT/2/2012

 

Before Their Lordships

AYOBODE OLUJIMI LOKULO-SODIPE....... Justice, Court of Appeal

ADAMU JAURO....... Justice, Court of Appeal

SAMUEL CHUKWUDUMEBI OSEJI....... Justice, Court of Appeal

 

 

Between

MR. AFAM OGENE    Appellants

And

1. HON. CHUKWUKA (CHUCHU) ONYEMA

2. PEOPLES DEMOCRATIC PARTY (PDP)

3. RETURNING OFFICER OGBARU FEDERAL CONSTITUENCY

4. THE RESIDENT ELECTORAL COMMISSIONER ANAMBRA STATE (INEC)

5. INDEPENDENT NATIONAL ELECTORAL COMMISSION         Respondents

                     

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): The appeal herein and the cross appeal are against the judgment of the National and State Houses of Assembly Election Petition Tribunal Anambra State, holden at Awka, delivered on 9th February, 2012, wherein the tribunal nullified the return of 1st Respondent as the member representing Ogbaru Federal Constituency.

 

The facts of the case can be compressed as follows: The Appellant and the 1st Respondent were amongst the candidates that contested the Federal House of Representatives election for Ogbaru Federal Constituency, Anambra State, held on 9th April, 2011 with a re-return in Ogwuikpele Ward held on 6th May, 2011. Upon the conclusion of the said election, the Appellant was declared and returned as the winner with 10,153 votes. Dissatisfied with the declaration and the return of the Appellant, the 1st Respondent challenged same vide a petition date d 24th May, 2011 and filed the same day. The case of the petitioner was that there was no justifiable reason for the cancellation of the result in Ogwuikpele Ward. It was the petitioner's case that he scored 1854 votes to the 1st Respondents 121 votes in Ogwuikpele Ward and that when this score is added to the total score in the constituency, that is 8048 votes for the petitioners and 9757 for the Appellant, the petitioner would have emerged the winner with 9905 votes as against 9878 votes for the Appellant. The Respondents on their part contended that the petitioner was not a candidate for Peoples Democratic Party but that of Action Congress of Nigeria and that the election in Ogwuikpele Ward was marred by violence, hence inconclusive which necessitated the cancellation of the election in Ogwuikpele Ward.

 

The petitioner prayed for the following reliefs in paragraph 12 of the petition as contained on page 5 of the record, namely:

 

"(A) A declaration of the Honourable Tribunal that the 1st respondent who was declared winner of the election to the Ogbaru Federal Constituency did not win the same with a majority of the lawful or valid votes cast in the election.

 

(B) A declaration of court that the 5th respondent had no cogent or verifiable reasons for failing to announce the result of the election of 9/4/2011 and to declare the petitioner winner based on the results already declared by the presiding officers in the polling units all over the Ogbaru Federal Constituency after the said election of 9/4/2011 which the petitioner won with 9905 votes to the 1st respondent's 9878 votes.

 

(C) A further order of court compelling the INEC to issue a certificate of return to the petitioner forthwith as having won the election held on 9/4/2011.

 

(D) A declaration of court that any other election conducted by the INEC on any other day than 9/4/2011 in the Ogwuikpele Ward or the entire Ogbaru Federal Constituency was null and void and of no effect."

 

 

 

In the course of pre-hearing session, the petition was struck out on 11th July, 2011. An appeal challenging the striking out of the petition was filed vide a notice of appeal dated 13th July, 2011. See pages 263 to 266 of the record. On 9th September, 2011 an order was made by this court, remitting the petition for adjudication by another panel. See pages 267 to 268 of the record. In the course of hearing, the 3rd to 5th Respondents challenged the jurisdiction of the tribunal based on effluxion of time, as provided in section 285(6) of the 1999 Constitution (as amended) to the effect that 180 days expired on 28th November, 2011. The tribunal in a ruling delivered on 30th November, 2011 dismissed the application and proceeded with the case. See pages 483 to 489 and the supplementary record. Upon the conclusion of proceedings, the tribunal in its judgment delivered on 9th February, 2012 nullified the declaration and return of the 1st Respondent now Appellant and declared the Petitioner now 1st Respondent as the winner of the election. See pages 680 to 721 of the record.

 

Distressed by the aforementioned decision, the 1st Respondent now Appellant challenged same via two Notices of Appeal. The first notice of appeal was dated and filed on 10th February, 2012 while the second notice of appeal was dated 13th February, 2012 and filed on 15th February, 2012. See pages 722 to 742 of the record. The Appellant however, abandoned the initial notice of appeal filed on 10th February 2012, and relied on the one filed on 15th February, 2012. The notice of appeal filed on 10th February, 2012 having been abandoned is accordingly struck out. The notice of appeal relied upon is anchored upon twenty two grounds of appeal. The 3rd to 5th Respondents also challenged the decision of the tribunal by a notice of cross appeal dated and filed 20th February, 2012. The said notice of cross appeal is anchored upon eleven grounds of appeal. See pages 743 to 754 of the record.

 

In compliance with the Rules of Court and Election Tribunal and Court Practice Direction 2011, briefs of argument were filed and exchanged. The 1st Respondent filed a notice of preliminary objection against the appeal and the Cross Appeal. The two notices of preliminary objection were both dated 16th March, 2012 and filed the same day. The Appellants brief in respect of the appeal is dated 1st March, 2012 and filed on the 2nd March, 2012. The Appellant also filed a reply brief to 1st Respondents brief which is dated 13th March, 2012 and filed on 14th March, 2012. The 1st Respondents brief is dated 9th March, 2012 and filed the same day. The 2nd Respondents brief dated 7th March, 2012 was filed on 8th March, 2012. The 3rd to 5th Respondents brief of argument dated 9th March, 2012 was filed the same day. As for the Cross Appeal, the Cross Appellants brief dated 2nd March, 2012 was filed the same day. The Cross Appellant also filed a Reply brief dated 14th March, 2012 and filed the same day. The 1st Cross Respondent's brief dated 9th March, 2012 was filed the same day. The 2nd Cross Respondent's brief dated 9th March, 2012 was filed the same day.

 

On the 19th March, 2012 the date fixed for hearing the appeal, Mr. Chuma Oguejiofor leading I. Onuamah Esq., and A. Agbo Esq., started by arguing the preliminary objection against the appeal and the cross appeal, and urged that both be struck out for being incompetent. Mr. A.C. Anaenugwu for the appellant, responded to the preliminary objection and adopted the Appellant's brief and Reply brief in urging the court to allow the Appeal. Mr. Chuma Oguejiofor also adopted the 1st Respondent's brief in urging the court to dismiss the appeal. Mr. Clems Ezika leading M. Onwuemena Esq., and H.O. Eneweru Miss for the 2nd Respondent, adopted the 2nd Respondent's brief in urging the court to dismiss the appeal. Mr. O.J Nnadi SAN leading S.O. Ibrahim Esq., O. Ikoroha Miss, F.U. Abazuonu Esq., and B. Fakoya Miss for the 3rd to 5th Respondents/Cross Appellants, adopted the 3rd to 5th Respondents brief in the main appeal. Learned senior counsel responded to the preliminary in the cross appeal and adopted the Cross Appellants brief and Reply brief in urging the court to allow the cross appeal. Mr. Chuma Oguejiofor leading I. Onuamah Esq., and A. Agbo Esq., for the 1st Cross Respondent, adopted the 1st Cross Respondents brief in urging the court to dismiss the Cross Appeal. Mr. Clems Ezika leading M. Onwuemena Esq., and H.O. Eneweru Miss for the 2nd Cross Respondent, adopted the 2nd Cross Respondent's brief in urging the court to dismiss the cross appeal.

 

 

 

A convenient starting point is from the preliminary objection challenging the competence of the main appeal. Mr. Chuma Oguejiofor argued the preliminary objection orally and contended that the appeal is incompetent and same be struck out, based on the following grounds.

 

(i) That on the face of the notice of appeal, the 1st Respondent was referred to as Petitioner hence rendering the notice of appeal incompetent.

 

(ii) That issue one be struck out because on 18th November, 2011 there was a ruling by the tribunal which was not appealed against within 60 days.

 

(iii) That issue two be struck out as the ruling on the admissibility of exhibits A - A15 was delivered on 19th November, 2011 yet no appeal was filed within 60 days.

 

(iv) That issue three be struck out based on failure to appeal against the ruling of 30th November, 2011.

 

On the whole, learned counsel urged the court to strike out the appeal for being wholly incompetent.

 

In response, Mr. A.C. Anaenugwu stated that the notice of preliminary objection dated 16th March, 2012, as it relates to the appeal is incompetent.

 

Learned counsel contended that the notice of preliminary objection was served on him in the morning of the very day fixed for hearing the appeal, namely 19th March, 2012. Learned counsel argued that by virtue of Order 10 Rule 1 of the Court of Appeal Rules, 2011, the said Notice of Preliminary Objection is incompetent as it has not satisfied the three days notice provided for in the Rules. In the event of the earlier argument not succeeding, learned counsel submitted that there was no ruling delivered on 18th November, 2011. Learned counsel contended that issue two is not on admissibility of the exhibits but on probative value of the exhibits. Learned counsel urged that the preliminary objection be overruled.

 

The Notice of Preliminary Objection herein is dated 16th March, 2012 and filed the same day. The appeal herein was argued on Monday, 19th March, 2012. The Appellant contended that he was served the notice of preliminary objection in the morning of Monday 19th March, 2012 when the appeal was to be argued. The 1st Respondent has not disputed the fact that the notice of preliminary objection was served on the Appellant on that same Monday 19th March, 2012, when the appeal was to be argued. Order 10 Rule 1 of the Court of Appeal Rules 2011, provides that a respondent intending to rely upon a preliminary objection to the hearing of an appeal, shall give the appellant three clear days notice therefore before the hearing of the appeal. The purpose and wisdom of giving the notice of the preliminary objection is to notify the appellant before the hearing of his appeal in order to enable him prepare and meet the objection at the hearing of the appeal and to avoid any surprises. See Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166 ot 169, Tiza & Anor v. Begha (2005) ALL FWLR (Pt. 272) 200 at 210. Arewa Textiles Ltd. v. Abdullahi & Brothers Musawa Ltd. (1998) 6 NWLR (Pt.554) 508, Agbaka v. Amadi (1999) 11 NWLR (Pt.572) 16. Okolo v. UBN. Ltd. (1998) 2 NWLR (Pt. 539) 618. The effect of non-compliance with the requirement as to notice, is provided for in Order 10 Rule 3 of the Rules of Court. In the instant case, the Notice of Preliminary Objection was neither served three clear days in advance nor argued in the 1st Respondent's brief. Having failed to satisfy the requirement as to notice, the notice of preliminary objection is incompetent and is hereby struck out. See Oforkire v. Maduike (sapra).

 

Having cleared the preliminary objection, a consideration of the appeal will now be made. The Appellant on page 11 of his brief of argument, identified four issues for determination as follows:

 

"(i) Whether the Tribunal was correct in its conclusion on the issue of locus standi of the 1st Respondent - GROUNDS 3, 20 and 22.

 

(ii) Whether the Tribunal was correct in upholding and according probative value to EXHIBITS A, A1 - A15 and declaring the 1st Respondent the winner of the questioned election - GROUNDS 1, 2, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 18 and 19.

 

(iii) Whether the judgment of the Tribunal is not a nullity having been delivered in breach of Section 285(6) of the 1999 Constitution - GROUND 21.

 

(iv) Whether the Tribunal was correct in determining the issue of the validity of the Appellant's certificate of return which was not an issue on the pleadings filed - GROUND 17."

 

The 1st Respondent on his part, distilled two issues for determination on page 5 of his brief of argument. The two issues are hereby reproduced thus:

 

"(1) Whether the Honourable Court has the jurisdiction to entertain the Appeal (From Ground 21).

 

And

 

(2) Whether the Petitioner/appellant is entitled to the judgment made in his favour by the trial tribunal."

 

The 2nd Respondent on page 4 of its brief of argument, adopted the issues for determination as formulated by the appellant. The 3rd to 5th Respondents on page 5 to 6 of their brief of argument, nominated six issues for determination as follows:

 

"(1) Whether the judgment of the Tribunal delivered in writing on 9th February, 2012 was delivered pursuant to Section 285(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and is therefore valid, competent and made within the jurisdiction of the Tribunal when the petition was filed on 24th May, 2011. (Ground 21 of the Notice of Appeal).

 

(2) Whether the Tribunal was right in admitting the polling unit results for Ogwuikpele Ward tendered as exhibit A, A1 - A15 by the Petitioner (as witness) and in relying on the said exhibits A, A1 - A15 to return the Petitioner/Respondent as the winner of the election conducted on 9/4/2011 and setting aside the re-run election of 6th May, 2011 conducted by the Cross-Appellants. (Grounds 1, 2, 6, 7, 8, 16, 18 and 19 of the Notice of Appeal).

 

(3) Was the Tribunal right in holding that Exhibits E1 to E10 tendered by RW1 in rebuttal of Exhibits A, A1 - A15 tendered by PW1 was an afterthought and thereby refused to ascribe probative value on the said exhibits E1 to E10 (Ground 4, 9, 14).

 

(4) Was the Tribunal right in ignoring exhibit 'C' which is the form EC8E(1) used in the conduct of the election which clearly shows that the Petitioner was a candidate of Action Congress of Nigeria in the Election and that the Petitioner/Respondent is not entitled to the relief he claimed and the Tribunal had no jurisdiction to grant the relief claimed by the Petitioner/Respondent under the Electoral Act 2010 (as amended). (Grounds 3 and 20 of the Notice of Appeal).

 

(5) Whether the Tribunal was right in holding that there was no proof of violence on the date of election on Ogwuikpele Ward on 9/4/2011 and that the standard of proof is proof beyond reasonable doubt in an election petition (Ground 10, 11, 13 and 15).

 

(6) Was the Tribunal right in holding that the re-run election conducted by the 3rd to 5th Respondents for Ogwuikpele Ward was a nullity (Grounds 12 and 17)."

 

 

 

I have painstakingly perused all the issues for determination submitted by the parties and I am of the view that the issues as formulated by the Appellant are quite comprehensive. Hence the issues as formulated by the Appellant will be adopted in resolving this appeal. I however intend starting with issue number three as distilled by the Appellant, because it constitutes a challenge to the jurisdiction of the tribunal, hence it will be treated first.

 

Issue III

 

"Whether the judgment of the Tribunal is not a nullity having been delivered in breach of Section 285(6) of the 1999 Constitution - Ground 21."

 

This issue was argued on pages 27 to 30 of the Appellant's brief of argument and it was contended that the judgment was a nullity having been delivered outside the 180 days prescribed by Section 285(6) of the 1999 Constitution (as amended). Learned counsel conceded that the tribunal refused an application brought by 3rd to 5th Respondents challenging its jurisdiction upon the expiry of the 180 days. Learned counsel however submitted that the Appellant is now challenging the final decision of the tribunal on the ground that it was delivered outside the 180 days, as provided by Section 285(6) of the 1999 Constitution (as amended). Learned counsel argued that by virtue of Order 4 Rule 5 of the Court of Appeal Rules, 2011, the court is not limited by reason of an interlocutory order from which there is no appeal. In support, reference was made to the following cases.' Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt. 668) 197 at 218 - 219, Okobia v. Ajanya (1998) 6 NWLR (Pt. 554) 348 at 364 - 365, Iweka v. SCOA Ltd. (2000) 7 NWLR (Pt. 664) 665.

 

Learned counsel stated that the petition in this case was filed on 24th May, 2011 and it lapsed on 28th November, 2011, hence the judgment delivered on 9th February, 2012 is a nullity. Learned counsel argued that the judgment delivered on 9th February, 2012 is a nullity having been delivered beyond the 180 days prescribed by Section 285(6) of the 1999 Constitution (as amended). In support, reference was made to the case of A.N.P.P. v, Goni & Ors. and Shettima & Anor v. Goni (Unreported) SC.1/2012 and SC.2/2012 delivered on 17th February, 2012. Learned counsel urged the court to hold that the decision of the tribunal was a nullity having been delivered in breach of Section 285 of the 1999 Constitution (as amended).

 

The 1st Respondent responded to this issue under his issue number one, as argued on pages 5 to 10 of the 1st Respondent's brief. Learned counsel stated that a ruling on the issue of 180 days was delivered on 30th

 

November, 2011 and there was no appeal filed challenging same. Learned counsel submitted that by Section 285(7) of the 1999 Constitution (as amended), an appeal from a decision of an election tribunal must be heard and disposed of within 60 days from the date of judgment of the tribunal.

 

Learned counsel argued that the 60 days from 30th November, 2011 have long expired, thereby making the notice of appeal filed on 15th February, 2012, incompetent.

 

Learned counsel made reference to Section 318(1) of the 1999 Constitution (as amended) as to the meaning of a "decision". Learned counsel argued that the definition in Section 318(1) of the Constitution admits no distinction between interlocutory and final decisions. In support, reference was made to Alhaji Kashim Shettima & Anor v. Alh. Mohammed Goni & 4 Ors (unreported) Nos. SC.332/2011, SC.333/2011 and SC.352/2011 dated 31st October, 2011 and Chief (Dr.) Felix Amadi & Anor v. INEC & 2 Ors. (Unreported) No. SC.476/2011 of 3rd February, 2012.

 

Learned counsel urged the court to hold that ground 21 is incompetent and the court has no jurisdiction to hear this appeal. The 2nd Respondent advanced identical arguments as the 1st Respondent in response to this issue. The 2nd Respondent argued the response under its issue number three as argued on pages 6 to 8 of the 2nd Respondent's brief. Learned counsel urged the court to hold ground 21 as incompetent, having been filed outside 60 days. Learned counsel also relied on the same authorities as cited by the 1st Respondent and contended that the appeal is incompetent and urged that the issue be resolved in favour of the 2nd Respondent.

 

The 3rd to 5th Respondents responded to the issue under their issue number one as argued on pages 7 to 14 of the 3rd to 5th Respondent's brief. Learned counsel submitted that Section 285(5)(6) and (7) of the 1999 Constitution (as amended) is a statute of limitation. In support, reference was made to P.D.P. v. C.P.C. & 41 Ors. (Unreported) consolidated appeals numbers SC.272/2011, SC.276/2011 delivered on 31st October, 2011.  Learned counsel argued that it is not the duty of the courts to fill the lacuna in any legislation but to interpret and give effect to the legislation. In support, reference was made to Araka v. Egbue (2003) 17 NWLR (Pt.848) 1 at 26, Awuse v. Odili (2005)16 NWLR (Pt. 952) 416 at 488. Learned counsel submitted that the judgment of the tribunal delivered on 9th February, 2012 far outside the 180 days prescribed by Section 285(6) of the Constitution is a nullity. In support, reference was made to Mrs. Margery Okadigbo v. Prince John O. Emeka (unreported) number SC.331/2011, A.N.P.P. V. Alhaji Mohammed Goni & Ors. (unreported) consolidated appeals numbers SC.1/2012 and SC.2/2012 delivered 17th February, 2012, Amadi & Anor v. INEC & Ors. (supra), Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348, Saleh v. Mouguno (2003) 1 NWLR (Pt. 801) 221, Ajao v. Ajao (1986) 5 NWLR (Pt. 45) 802. Learned counsel submitted that all the decisions of the Supreme Court earlier cited are to the effect that an election tribunal must deliver its judgment in writing within 180 days from the date of filing the petition. Learned counsel argued that failure to deliver the judgment within 180 days from the date of filing the petition constitutes a breach of Section 285(6) of the 1999 Constitution (as amended), thereby rendering the judgment delivered a nullity. Learned counsel stated that the petition was filed on the 24th May, 2011 and by 26th November, 2011 it was 180 days hence expired, but judgment was delivered on 9th February, 2012, a period of about 255 days from the date of filing the petition. Learned counsel posited that on the authority of the Supreme Court decisions cited, the judgment was a nullity having been delivered 255 days from the date of filing the petition, which was far outside the 180 days in breach of Section 285(6) of the 1999 Constitution (as amended). Learned counsel urged the court to so hold and resolve the issue in favour of the Appellant.

 

The foregoing so far reflects the submission of counsel representing the parties in this appeal, on the issue under consideration. The relevant provision of the 1999 Constitution (as amended) that comes into focus under this issue is Section 285(5)(6) and (7) and hereby reproduced thus:

 

Section 285(5):

 

"An election petition shall be filed within 21 days after the date of declaration of result of the election"

 

Section 285(6):

 

"An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition"

 

Section 285(7):

 

"An appeal from a 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 above reproduced constitutional provisions have been interpreted by the apex court in a plethora of cases. See P.D.P. v. C.P.C. & 41 Ors (Unreported) consolidated appeals numbers SC.272/2011, SC.276/2011 delivered 31st October, 2011, Mrs Margery Okadigbo v. Prince Okechukwu Emeka & 2 Ors. (Unreported) No. SC.331/2011 delivered 27th January, 2012, ANPP v. Alhaji Mohamed Goni & Ors (Unreported) consolidated appeals Nos. SC.1/2012, SC.2/2012, delivered on 17th February, 2012, Malam Abubakar Abubakar & Ors. v. Saidu Usman Nasamu & Ors. (Unreported) consolidated appeals Nos. SC.14/2012, SC.14A/2012, SC.14B/2012, SC.14C/2012, Dr. Felix Amadi v. INEC & Ors. (Unreported) SC.476/2011 delivered on 3rd February, 2012. In all the aforementioned decisions cited, the apex court has been very clear and categorical to the effect that no court or tribunal can go beyond the prescribed time limit within which to determine an election petition or an appeal relating to an election petition.

 

In A.N.P.P. v. Goni (supra), the apex court, per my noble lord Onnoghen, JSC stated thus at pages 16 to 17 of the judgment:

 

"The Section of the 1999 Constitution as amended relevant to the determination of the substantive issue before this court is section 285(6) which provides as follows:

 

(6) An election tribunal shall deliver its judgment in writing within one hundred and eighty (180) days from the date of the filing of the petition"

 

The above provision is very clear and unambiguous and therefore needs no construction or interpretation. The law is settled that in a situation as this, the duty of the court is simply to apply the provision as it exists, that is to give the words their plain and ordinary meaning.

 

The above being the law, it follows that an election tribunal in an election petition matter, must deliver its decision/judgment/Ruling/order in writing within one hundred and eighty days from the date the petition was filed. It means the judgment cannot be given a day or more or even an hour after the one hundred and eighty (180) days from the date the petition was filed."

 

His lordship on page 21 further stated thus:

 

"With regards to the election tribunal, the time which the jurisdiction so conferred on it is to be exercised/carried out is provided for in section 285(6) of the 1999 Constitution which enacts thus:

 

(6) An election tribunal shall deliver its judgment in writing within one hundred and eighty (180) days from the date of the filing of the petition"

 

It follows that where a tribunal fails to comply with the above provisions, the jurisdiction to continue to entertain the petition lapses or becomes spent and cannot be extended by any court order however, well intentioned, neither can a court order create and confer jurisdiction on any Court/Tribunal on any matter where jurisdiction has not been conferred either by statute or the constitution."

 

On page 24, His lordship concluded thus:

 

"It is my considered view that the provisions of section 285(6) (supra) is like a statute of limitation which takes away the right of action from a party leaving him with an unenforceable cause of action.  The law may be harsh but it is the law and must be obeyed to the letter; moreso when it is a constitutional provision."

 

My noble lord, Rhodes-Vivour, JSC in the same case stated thus:

 

"180 days provided by section 285(6) of the Constitution is not limited to trials but also to de novo trials that may be ordered by an appeal court. For the avoidance of any lingering doubt, once an election petition is not concluded within 180 days from the date the petition was filed by the Petitioner as provided by Section 285(6) of the Constitution, an election Tribunal no longer has jurisdiction to hear the petition, and this applies to re-hearings. 180 days shall at all times be calculated from the date the petition was filed."

 

 

 

There are two things that are not disputed by the parties to this appeal and as borne out by the record of appeal namely:

 

(i) The petition upon which this appeal is anchored was filed in the registry of the tribunal on 24th MAY, 2011.

 

(ii) The judgment in respect of the petition was delivered by the tribunal on 9th FEBRUARY, 2012 a period of about 255 days from the date of filing the petition.

 

The response of the 1st and 2nd Respondents did not frontally attack the issue on its merit, but the argument advanced was like a preliminary objection to ground 21 of the grounds of appeal. The petition filed on 24th May, 2011 celebrated its 180th day anniversary on the 26th November, 2011.

 

Admittedly, there was ruling delivered on 30th November, 2011 and no appeal has been filed against the said ruling. My understanding of ground 21 of the grounds of appeal, is that it is a challenge to the final judgment of the tribunal which was delivered outside the 180 days. I am fortified on this view, by the particulars of the said ground as contained on page 740 of the record and hereby reproduced thus:

 

"Ground Twenty One:

 

............................................

 

............................................

 

...........................................

 

...........................................

 

...........................................

 

Particulars:

 

1. The Petition was filed on the 24th day of May, 2011.

 

2. The Tribunal delivered judgment in the petition on the 9th of February, 2012.

 

3. The judgment of the Tribunal was delivered without jurisdiction and is a nullity."

 

The 1st and the 2nd Respondent just danced around the ruling delivered on 30th November, 2011 and contended that ground 21 is incompetent. I do not see anything wrong with ground 21 of the grounds of appeal.

 

The judgment in this petition was delivered on the 9th February, 2012, that is to say about 255 days from the date of filing the petition. The 1st and 2nd Respondents have cleverly and with dexterity avoided saying anything as to the fate of a judgment in an election petition delivered 255 days after filing the petition, that is to say well outside the 180 days prescribed by Section 285(6) of the 1999 Constitution. I think the simple question begging for an answer, is the legal effect of a judgment in an election petition delivered outside 180 days prescribed by Section 285(6) of the 1999 Constitution (as amended). On the effect of the time limit prescribed by the Constitution, my lord, Onnoghen, JSC had this to say in ANPP v. Goni (supra) on page 22 as follows:

 

"It has been held by this court in a number of cases including consolidated appeal Nos. SC/141/2011; SC/266/2011; SC/267/2011; SC/282/2011; SC/35612011 and SC/357/2011: Brig. Gen. Mohammed Buba Marwa & Ors vs. Adm. Murtala Nyako & Ors. delivered on 27th January, 2012 that the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or elongated or in anyway 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 the jurisdiction to continue to entertain the matter."

 

On the effect of failure to comply with the limitation as to time, prescribed by Section 285(6) of the 1999 Constitution (as amended), I wish to further reproduce what my lord Onnegben, JSC stated on pages 21 and 24 of ANPP v. Goni (supra), for emphasis even at the expense of repetition:

 

"With regards to the election tribunal, the time which the jurisdiction so conferred on it is to be exercised/carried out is provided for in section 285(6) of the 1999 Constitution which enacts thus:

 

(6) An election tribunal shall deliver its judgment in writing within one hundred and eighty (180) days from the date of the filing of the petition"

 

It follows that where a tribunal fails to comply with the above provisions, the jurisdiction to continue to entertain the petition lapses or becomes spent and cannot be extended by any court order however, well intentioned, neither can a court order create and confer jurisdiction on any Court/Tribunal on any matter where jurisdiction has not been conferred either by statute or the Constitution."

 

At page 24:

 

"It is my considered view that the provisions of section 285(6) (supra) is like a statute of limitation which takes away the right of action from a party leaving him with an unenforceable cause of action. The law may be harsh but it is the law and must be obeyed to the letter; moreso when it is a constitutional provision"

 

In view of the foregoing, the judgment of the tribunal which was delivered 255 days from the date of filing the petition, is in clear confrontation and affront with Section 285(6) of the 1999 Constitution (as amended), which prescribes 180 days. The effect of such a grave constitutional breach is to render the judgment delivered by the tribunal on 9th February, 2012 a nullity. The issue for determination under consideration is hereby resolved in favour of the Appellant.

 

Having resolved issue number three in favour of the Appellant, it will be a needless academic exercise to venture into considering the other issues for determination. In conclusion, I find merit in the appeal, it succeeds and is hereby allowed. The judgment of the tribunal delivered on 9th February, 2012 in petition number EPT/AN/NAER/HR/54/2011 is hereby set aside for being a nullity. Consequently, election petition number EPT/AN/NAE/HR/54/2011 is hereby struck out.

 

As for the Cross-appeal, having set aside the judgment upon which the cross appeal is anchored for being a nullity, the Cross appeal becomes otiose, spent and an academic exercise and is hereby struck out.

 

There will be no order as to costs.

 

 

 

A.O. LOKULO-SODIPE, J.C.A.: I agree.

 

 

 

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I agree.

 

 

                                         

Appearances

                                                             

Mr. A.C. Anaenugwu    For the Appelants

                                                             

Mr. Chuma Oguejiofor,

I. Onuamah Esq.,

Agbo Esq.,

Mr. Clems Ezika,

M. Onwuemena Esq.,

H.O. Eneweru Miss

Mr. O.J. Nnadi SAN,

S.O. Ibrahim Esq., CLO (INEC),

O. Ikoroha Mrs. SLO (INEC),

F.U. Abazuonu Esq., and

B. Fakoya Miss    For the Respondents