In The Court of Appeal
(Enugu Judicial Division)
On Monday, the 26th day of March, 2012
Suit No: CA/E/EPT/8/2012
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
1. PROFESSOR DORA AKUNYILI
2. ALL PROGRESSIVE GRAND ALLIANCE Appellants
And
1. DR. CHRIS NWABUEZE NGIGE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondents
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered on 21/2/2012 by the National and State Houses of Assembly Election Tribunal, Awka, Anambra State (hereafter simply referred to as "the Tribunal"), striking out the Appellant' Petition No. EPT/AN/NAE/SE/26/2011 hereinafter simply referred to as "the Petition") on the ground that the Tribunal no longer had the jurisdiction to continue to adjudicate on the Petition which had already over spent its constitutional 180 days from the date it was filed -i.e. 17/5/2011.
The Appellants as Petitioners instituted the Petition on 17/5/2011 before the Tribunal challenging the declaration and return of the 1st Respondent as the winner of the election to the Senate of the Federal Republic of Nigeria for Anambra Central Senatorial District held on 9/4/2011 with a re-run into some Wards and Polling Units held on 26/4/2011. The 1st Appellant contested the questioned election on the platform of the 2nd Appellant; while the 1st Respondent contested the said election on the platform of the Action Congress of Nigeria. The grounds of the Petition as set out in paragraph 7 thereof are: -
"(a) That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
(b) That the election was invalid by reason of non-compliance with the provision of the Electoral Act and the manual made thereunder."
The prayers of the Appellants as set out in the Petition read thus:-
"1.
(i) That it be declared that upon a proper computation of the lawful votes cast at the election the subject matter of this Petition, the return of the 1st Respondent as the winner of the Election to the Senate held on the 9th April, 2011 with a rerun election in some Wards and Polling Units on 26th April, 2011 for Anambra Central Senatorial District is null and void in that the 1st Respondent was not elected by majority of lawful votes cast at the election.
(ii) That the return of the 1st Respondent as the winner of the said election be set aside.
(iii) That it be declared that the Petitioners scored the highest number of valid votes cast at the questioned election and that the 1st Petitioner ought to have been returned as the winner of the election.
(iv) That the 1st Petitioner be returned as having been duly elected by majority of lawful votes cast at the Election to the Senate held on the 9th April, 2011 with a rerun election in some Wards and Polling Units on 26th April, 2011 for Anambra Central Senatorial District.'
The Appellants as Petitioners pray in the ALTERNATIVE that:-
"2.
(A) The questioned election was invalid by reason of non compliance with the provision of the Electoral Act and the Manual for Election Officials 2011 made pursuant to Section 153 of the Electoral Act in that -
(i) The number of registered voters in the two Polling Units in the constituency where the election did not hold to wit; Orubuchi Kindergarten II Polling Unit, code No. 004, Nkpor ward II, Dunukofia Local Government Area and Central Primary School I Polling Unit, code No. 003, Abba ward in Njikoka Local Government Area is in excess of the margin of win by votes of the 1st Respondent and a return could not in the circumstances have been made.
(ii) The total number of registered voters in Polling Units where the election is void by reason of OVER-VOTING as set out in paragraphs C(I), (II), (III), (IV), (V), (VI), (VII), (VIII), (IX), (X), (X1), (XII), (XIII), F(III), (IV) and H(a), (b), (c), (d) and (e) of the petition is in excess of the margin of win of the 1st Respondent and a rerun cannot be made in the circumstances.
(iii) The total number of registered voters where the election was marred by various malpractices which substantially affected the result of the election as set out in paragraph E of this petition is in excess of the margin of win by votes of the 1st Respondent and a return cannot be made in the circumstances.
(B) By reason of paragraph 2A(I)(II) and (III) above, the Petitioners pray that the questioned election be nullified and a re-run ordered."
The Respondents in the Petition duly filed their respective Replies to the Petition and the Appellants equally filed their "Petitioners' Replies" to the respective Replies filed by the Respondents. The Petition was struck out by the Tribunal on 20/10/2011 for failure of the Appellants to file and serve Form TF 008. On 16/11/2011 this Court allowed the Appellants' appeal against the ruling of the Tribunal striking out the Petition on 20/10/2011. In allowing the appeal, this Court restored the Petition to the Cause List of the Tribunal for it to be heard on the merit. On 28/11/2011, the Tribunal ruled upon an application brought by the 1st Respondent seeking for the striking out of the Petition on the ground of effluxion of time having regard to section 285(6) of the 1999 Constitution (as amended). In the ruling, the Tribunal not only held to the effect that the 180 days for the determination of the Petition had not expired, but also that a fresh 180 days accrued to the Petition from 16/11/2011 when it was remitted to the Tribunal for "fresh hearing". Being aggrieved by the ruling of the Tribunal delivered on 28/11/2011, the 1st Respondent appealed against the same. This court on 26/1/2012 in a summary judgment dismissed the appeal of the 1st Respondent.
In the course of hearing the Petition, the Supreme Court of Nigeria, in February, 2012 delivered judgments in Appeal No. SC.23/2012 Action Alliance v. INEC; and consolidated Appeals Nos. SC.1/2012 and 5C.2/2012 - ANPP v. Goni; & Shettima v. Goni. In the course of the proceedings before the Tribunal on 21/2/2012, the attention of the Tribunal was drawn to the decisions of the Supreme Court in the ealier mentioned cases and the Tribunal urged to terminate proceedings in the Petition without further ado. Learned lead senior counsel for the Appellants opposed the application that the Tribunal should terminate proceedings in the Petition. The grounds of objection were that the decisions of the Supreme Court in question were inapplicable to the issue of 180 days in the circumstances of the Petition, and that the previous decisions of the Tribunal and this Court on the question of 180 days, constituted issue estoppels which could not be revisited. Suffice it to say that the Tribunal in its ruling appealed against, felt bound by the decisions of the Supreme Court in the earlier mentioned cases and held to the effect that it no longer had jurisdiction to continue with the hearing of the Petition which had over spent its constitutional 180 days. Consequently the Tribunal declared all previous proceedings in the Petition from the day it was returned for "re-trial" by this Court, a nullity and also struck out the petition.
The Appellants being dissatisfied with the striking out of the Petition by the Tribunal lodged an appeal against the Ruling of the Tribunal in that regard. Appellants' Notice of Appeal dated 23/2/2012 was filed on 24/2/2012. The Notice of Appeal contains nine grounds of appeal. The grounds of appeal shorn of their respective particulars read thus: -
"GROUNDS OF APPEAL
1. The Honourable Tribunal erred in law when it struck out the Appellants (sic) Petition on the ground that it lacked jurisdiction to continue to adjudicate on it, the 180 days prescribed by S. 285(6) (sic) of the 1999 Constitution having expired.
2. The learned tribunal erred in law in striking out the Appellants (sic) petition on the ground that it lacked jurisdiction to continue to adjudicate on it.
3. The Honourable Tribunal erred in law in striking out the Appellants (sic) petition on the ground that it lacked jurisdiction to continue to adjudicate on it, when its decision of 28th November, 2011 and that of the Court of Appeal on 26th January, 2011 were extant/valid/subsisting having not been set aside by any court.
4. The Honourable Tribunal erred in law in striking out the Appellant (sic) petition on the basis of the decision of the Supreme Court in SC/1/12 and SC/2/12 (sic) ANPP V GONI & ORS and SHETTIMA & ANOR V GONI & ORS (unreported) delivered on 17th February, 2012.
5. The Honourable Tribunal erred in law in striking out the Appellants (sic) Petition on the ground that it lacked jurisdiction to continue with it.
6. The tribunal erred in law in striking out the Appellants (sic) petition on the ground that it lacked jurisdiction to continue to adjudicate over it.
7. The Honourable Tribunal erred in law in striking out the Appellants (sic) petition on the basis of the decision of the Supreme Court in SC/1/12 and SC/2/12 ANPP V GONI & ORS and SHETTIMA & ANOR V GONI & ORS (unreported) delivered on 17th February, 2012 which was clearly inapplicable.
8. The Honourable Tribunal erred in law when it held that;
"Consequently all previous proceedings in this petition from the day it was returned for retrial by the Court of Appeal is a nullity".
9. The Honourable Tribunal erred in law in striking out the Appellants (sic) petition when the decision of the Tribunal on 28th November, 2011 and that of the Court of Appeal on 26th January, 2012, had not been reversed by any court."
The relief sought by the Appellants as set out in the Notice of Appeal reads: -
"That the appeal be allowed and the petition which is part heard be remitted for conclusion of trial before the same tribunal."
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. Appellants' Brief of Argument is dated 5/3/2012 and filed on the same date. The Appellants also filed Reply Briefs to the respective Briefs of Argument of the 1st and 2nd Respondents. Both Reply Briefs are dated 14/3/2012 and filed on 15/3/2012. Appellants' Brief of Argument was settled by O.A. Obianwu, Esq. (SAN); Hipo Onwuegbuke, Esq.; G.B. Obi, Esq.; T.U. Oguji, Esq.; Uzoamaka Ilobi (Mrs.); Chidozie Ogunji, Esq.; Chief (Mrs.) V.E. Okonkwo; and C.N. Abiakam. The Reply Briefs filed by the Appellants were settled by the aforementioned legal practitioners with the addition of N. Owoh (Miss). The 1st Respondent's Brief of Argument dated 7/3/2012 and filed on 8/3/2012 was settled by Rickey Tarfa, SAN; Chief Niyi Akintola, SAN; Chief Emeka Ngige, SAN; N.H. Nwankwo, Esq.; B.N. Nwachukwu (Mrs.); Hon. Bona Oraekwe; Ngozi Udodi (Ms); and P.E. Okoye, Esq. The Brief of Argument of the 2nd Respondent dated 9/3/2012 and filed on the same date was settled by Prof. Ilochi Okafor, SAN; and O.J. Nnadi, SAN. The appeal was entertained on 19/3/2012.
At the hearing of the appeal, learned lead senior counsel for the 2nd Respondent having first informed the Court that the 2nd Respondent filed a Notice of Preliminary Objection in the appeal, duly argued the same with learned counsel for the other parties in the appeal responding. Learned lead senior counsel for the 1st Respondent equally informed the Court that a Respondent's Notice has been argued in the said Respondent's Brief of Argument. Thereafter respective learned counsel for the parties adopted and relied on the Briefs of Argument of their clients as hereinbefore identified, in support of their various positions in the appeal.
The sole issue for the determination of the appeal as formulated by the Appellants in their Brief of Argument from the nine grounds of appeal hereinbefore set out reads: -
"Whether the decision of the Tribunal terminating the proceedings on the ground that the 180 days prescribed by section 285(6) of the 1999 Constitution had lapsed is correct."
The 1st Respondent equally formulated a sole issue for determination in the appeal in his Brief of Argument. The sole issue which was distilled from grounds 1 - 8 of the nine grounds of appeal reads: -
"Whether the lower Tribunal in the face of clear and unequivocal pronouncements by the Supreme Court in Action Congress Vs INEC and consolidated cases of ANPP Vs Goni/Shettima Vs Goni, supra as well as Section 287(1) of the 1999 CFRN (as amended) properly declined jurisdiction to continue with the case."
The sole issue formulated for determination in the appeal from the nine grounds of appeal by the 2nd Respondent in its Brief of Argument reads thus: -
"Whether the Tribunal was right in the light of the decisions of the Supreme Court of 14th February, 2012 in Appeal No. SC 23/2011: ACTION ALLIANCE V. INEC and SC/1/2012, SC/2/2012 Consolidated, ANPP V. GONI delivered on 17th February, 2012 in holding that the Tribunal has lost jurisdiction to continue as at 21st February, 2012 with the hearing of the petition filed on 17th May, 2011 and thereby striking out the petition for being constitutionally barred from being heard and judgment delivered in writing by the Tribunal after the lapse of 180 days from the date of filing the petition."
I will first consider the merit or otherwise of the preliminary objection of the 2nd Respondent. This is against the backdrop of the settled position of law that the purpose of a preliminary objection to an appeal is to contend that the appeal is defective or incompetent. Accordingly, if the preliminary objection is sustained, the appeal would no longer be heard and if already heard (as in the instant situation) the appeal will not be considered on the merit. In other words, a successful preliminary objection to an appeal terminates or aborts the consideration of the appeal on the merit. See OKONKWO V. UBA PLC (2011) 16 NWLR Pt. 1274) 614; and HON. CHUKWUKA (CHUCHU) ONYEMA V. MR. AFAM OGENE (2012) 1 WRN 94.
The Notice of Preliminary Objection filed in the appeal by the 2nd Respondent is at pages 5 - 6 of its Brief of Argument. The argument in support of the objection and which learned lead senior counsel for the 2nd Respondent adopted and relied upon in arguing the said objection, runs from paragraphs 4.01 - 4.08 on pages 6 - 11 of the party's Brief of Argument. In the Notice of Preliminary Objection, the 2nd Respondent (hereafter simply referred to as "the Objector") indicated that on or before the hearing of the appeal, it shall pray the Court for the following:-
"(1) An order striking out the Appeal and or relief that the petition which is part heard be remitted for conclusion of trial before the same tribunal."
The grounds of objection as set out in the Brief of Argument of the Objector are:-
"(i) This court has no jurisdiction under any circumstance to order trial de novo or continuation of trial of any petition including the petition the subject of this appeal and judgment delivered in writing after 180 days of the filing of the petition as prayed by the Appellants in their relief before this court.
(ii) The records of the court show that the petition was filed on 17th May, 2011. (iii) 180 days expired on 23rd November, 2011.
(iv) The court cannot order continuation of hearing of the petition. The 180 days expired on 23rd November, 2011 assuming but without conceding that the appeal has merit.
(v) The success of any appeal without the power to grant the relief prayed for by the Appellant/Appellants which would result in de novo trial or continuation of trial of the petition renders the appeal an academic exercise.
(vi) Courts do not embark on academic exercise in the light of section 285(6) of the 1999 Constitution of Nigeria."
Dwelling on the preliminary objection, the Objector submitted that the decisions of the Supreme Court to the effect that Section 285(6) of the 1999 Constitution (as amended) (hereafter simply referred to as "amended Constitution") is sacrosanct and cannot be extended by one day, are not only binding on this Court, but also that all other decisions of this Court that run contrary to decisions of the Supreme Court concerning the section, are no longer binding on the Court. The cases of Dalhatu v. Turaki (2003) 15 NWLR (Pt.843) 310 at 336; and Idris v. ANPP (2008) 8 NWLR (Pt. 1088) 1 at 120-121, were cited in aid. In the premises, the Objector submitted that this Court cannot grant the relief which will make it possible for the Petition to be heard again, whether by way of continuation of hearing as prayed by the Appellants, or by de novo trial, or any other order howsoever couched, to make the impossible happen, i.e. the hearing of the Appellants' Petition after the expiration on 23/11/2011 of the 180 days from the date of its filing, on 17/5/2011, Decisions of the Supreme Court in the unreported cases of Mrs. Margery Okadigbo v. Prince John Okechukwu Emeka & 2 Ors delivered on 27/1/2012; ANPP v. Alhaji Mohammed Goni delivered on 17/2/2012 in consolidated Appeals Nos. SC.1/2012 and SC.2/2012, were cited in aid of the position taken by the Objector with portions of the decisions considered relevant, set out in extenso in the Objector's Brief of Argument.
Furthermore, the Objector submitted that since the decisions of the Supreme Court bind this Court, there is no jurisdiction in this Court to grant the relief sought in the appeal as this Court cannot run away from the fact that the life span of the Appellants' Petition had come to an end by effluxion of time. It is also the submission of the Objector, that where a court has no jurisdiction to entertain a claim or relief, the appeal though in exercise of the Appellants' right of appeal becomes academic, as the appeal will not bear any fruit or result in the further hearing of the petition. That in the circumstances the instant appeal has become academic. The cases of Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 478 at 500; UBN Plc v. Blues Continent Products Ltd (2002) 12 NWLR (Pt. 781) 424 at 434 and 436; and Asafa Foods Factory v. Alraine Nig. Ltd (2002) 12 NWLR (Pt. 781) 353 at 368 were cited in aid. The ruling (unreported) of this Court delivered on 13/3/2012 in APPEAI NO. C/E/EPT/4M/2012 - ANDY EMMANUEL UBA V. ALL PROGRESSIVES ALLIANCE (APGA) & ORS. was also cited in support of the preliminary objection.
Emeka Ngige SAN, learned lead senior counsel for the 2nd Respondent associated himself with the submissions of the Objector as highlighted above, and further cited the case of Jidda v. Kachallah (1999) 4 NWLR (Pt. 599) 426 at 433 - 434 in aid of the preliminary objection.
The Appellants responded to the Objector's preliminary objection in their Reply Brief to the Brief of Argument of the said Objector. It is the submission of the Appellants that the preliminary objection has no merit. The Appellants said that the issue of the Petition having lapsed on 17th May, 2011 (sic) is a negation of the judgment of this Court delivered on 26/1/2012 and which affirmed the decision of the Tribunal. That the decision remains extant valid and cannot be reversed by any subterfuge. That by virtue of the provision of Section 246(3) of the amended Constitution, the decision of this Court is final and cannot be reviewed or re-opened under any guise. In the premises, the Appellants submitted that the decision of the Supreme Court in the Okadigbo case said to have been delivered on 27/1/2012 as well as the decisions in Dalhatu v. Turaki and Idris v. ANPP (both supra) do not apply to the instant case. This is particularly so as no appeal lies to the Supreme Court against the decision of this Court of 26/1/2012 given the finality conferred on it by the Constitution. It is also the submission of the Appellants that the fresh arguments of the Objector in paragraphs 4.03 - 4.07 of its Brief of Argument constituted an abuse of process insofar as they seek to reverse the decision of this Court of 26/1/2012. Lastly, the Appellants submitted that the submission that the instant appeal is academic has no basis as this Court is bound by its decision of 26/1/2012 which is unaffected by the judgments relied upon by the Objector i.e. 2nd Respondent.
It is not in doubt that this Court as submitted by the Appellants is the final appellate court in respect of election matters save for election petitions relating to presidential and gubernatorial elections. In gubernatorial election matters this Court is an intermediate appellate court; while this Court is a tribunal of first instance in respect of presidential election petition.
Undoubtedly, this Court is not the only court saddled with the interpretation of the provisions of statutes relating to election matters. The Tribunal in the course of entertaining election petitions routinely interprets provisions of the amended Constitution relating to election matters as well as those of the extant Electoral Act. The Supreme Court of Nigeria is the final appellate court in respect of presidential and gubernatorial elections by virtue of the amended Constitution. By virtue of this position, the Supreme Court has had cause to interpret some provisions of the amended Constitution relating to election matters as well as those of the extant Electoral Act. It needs not be said that where the Supreme Court has interpreted any provision of the Constitution or statute relating to any matter and particularly election matters (the instant appeal being an election appeal) and there is any contrary interpretation of the same provision by this Court, or any other court or tribunal, such contrary interpretation must give way to the interpretation accorded that provision by the Supreme Court. This is what the doctrine of precedent or stares decisis demands or dictates.
The Supreme Court in recent times has had cause to interpret some provisions of the amended Constitution relating to election matters particularly the provisions of Section 285(5) -(7) thereof. In the case of PDP V. CPC (2011) LPELR- SC.272/2011 (CON). (2011) All FWLR (Pt.603) 1786, the Supreme Court dwelling on Section 285(5) - (7) (supra) stated per Onnoghen, JSC; thus:-
"I hold the considered view that in terms of times to do anything relating to an election petition or judgment thereon or arising therefrom, it is the above provisions that apply and that no court has the power to extend the times as constitutionally provided in section 285(5) - (7) of the 1999 Constitution (as amended), by interpretation of the sections or otherwise."
The decision in the above mentioned case was delivered on 31/10/2011.
Again, the Supreme Court had cause to dwell on the provision of Section 285(6) of the amended Constitution amongst others in the case of ANPP V. GONI (2012) LPELR - SC.1/2012 (Consolidated). One of the issues considered in the case reads:-
"Whether the court below was not wrong having regard to the mandatory provisions of section 285(6) of the Constitution of the Federal Republic of Nigeria, 2011 (sic) as amended to have ordered that a new election tribunal be constituted to hear the petition of the 1st and 2nd respondents on the merit, after the mandatory one hundred and eighty (180) days prescribed by the constitution for hearing and determination of the petition from the date it was filed had lapsed, by effluxion of time."
I consider it expedient to re-produce some portions of the lead judgment delivered on 17/2/2012 by Onnoghen, JSC; in relation to the above quoted issue, in the case. At pages 4 -5, his Lordship stated thus:-
"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 eight (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 on 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 (180) days from the date the petition was filed. It means that 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......................
With regards to the election tribunal the time within 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 by statute or the constitution.
It is my considered opinion that by the lower court ordering a retrial by a tribunal which had ceased to have jurisdiction in a matter it attempts to create jurisdiction in the said tribunal by operation of a court order which is not only very erroneous but unacceptable.
It has been held by this court in a number of cases including consolidated appeals Nos. SC/141/2011; SC/266/2011; SC/267/2011; SC/282/2011; SC/356/2011 and SC/357/2011: Brig. Gen. Mohammed Buba Marwa & Ors vs Adm. Mutala 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 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 the jurisdiction to continue to entertain the matter.
It is very worrisome that despite the decisions of this court since October, 2011 on the time fixed in the constitution some justices of the lower court still appear not to have gotten the message. From where will the election tribunal get the jurisdiction to entertain the retrial after the expiration of the one hundred and eighty (180) days assigned in the constitution, without extending the time so allotted? Do courts have the vires to extend the time assigned by the constitution? The answer is obviously in the negative.
It should be constantly kept in mind that prior to the provisions of Section 285(6) of the 1999 Constitution, as amended; there was no time limit for the hearing and determination of an election petition by the election 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 petition and appeals arising therefrom is designed to ensure expeditious hearing and conclusion of election matters in this country. If the decision of the lower court, in the circumstance of this case and the law, is allowed to stand as urged by the respondents it would reintroduce the earlier mischief which the amendment sought to correct. It will mean that the instant election petition can go on for another one hundred and eighty (180) days or more after the expiration of the original one hundred and eighty (180) days assigned by the constitution.
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."
I do not think the Appellants can with any seriousness contend that the Supreme Court of Nigeria did not interpret the provision of Section 285(6) of the amended Constitution in the above cited cases. The position of the Supreme Court in the cases under reference is that the provision of Section 285(6) (supra) is not hairsplitting, as it is plain and unambiguous. That all that is required when a court is confronted with the provision is to simply give effect to it. The Supreme Court therefore simply applied the words of the provision to the facts of the cases in which the decisions cited above were made.
The Appellants would appear to be of the strong view that this Court being the final appellate court in respect of the instant election Petition and having accorded the provision of Section 285(6) (supra) an interpretation that is now clearly at variance with the position of the Supreme Court in respect of the same self provision, is not bound by the position of the Supreme Court thereon.
I am of the considered view that the Appellants given their stance, are in serious misapprehension of the finality conferred by the amended Constitution on the decisions of this Court in respect of election petitions (save presidential and gubernatorial election petitions). The law is that the decisions of this Court are generally binding on it until overruled by the Supreme Court. However there are exceptions to this doctrine of stare decisis. They are:-
"a. The court will refuse to follow a decision of its own which although not expressly overruled cannot in its opinion stand with a decision of the Supreme Court,
b. Is not bound to follow a decision of its own if given per incuriam.
c. The court is entitled to decide which of two conflicting decisions of its own it will follow.
d. Where the previous decision was decided without jurisdiction"
See KUPOLATI & ANOR. V. OKE & ORS. (2009) All FWLR (Pt. 486)1858: and ONWARD ENTERPRISES LTD. V. MV "MATRIX" & ORS. (2010) All FWLR (Pt.543) 1817.
In the instant case, all the parties are ad idem that the Appellants' Petition was filed on 17/5/2011. In any case, this much is clear from the record of appeal. It is also clear as crystal that the Tribunal on 28/11/2011, not only ruled to the effect that the 180 days for the determination of the Petition as stipulated by the amended Constitution, had not expired, but also that a fresh 180 days accrued to the Petition from 16/11//2011 when it was remitted to it (Tribunal) by this Court for "fresh hearing". It is therefore incontrovertible from the ruling of the Tribunal that the Petition was given another lease of life of 180 days from 16/11/2011. The decision of the Tribunal in this regard the Appellants have strenuously maintained was upheld by this Court. It would however appear not to be in dispute that if the constitutional 180 days given the Tribunal within which to determine the Petition to finality from 17/5/2011 when it was filed is calculated, the same would have expired on 23/11/2011.
The pertinent question is, whether this Court being now confronted with the unequivocal or clear position of the Supreme Court concerning Section 285(6) (supra) as shown in the cases cited before now, can on the ground of the finality of its decisions in election petitions matters (save those of presidential and gubernatorial) properly continue to hold on to its interpretation of the provision of the said section 285(6) (supra). I am of the considered view that this Court cannot properly do this. This is because the position of the Supreme Court on the provision of the said Section 285(6) has glaringly struck a fatal blow to the previous decisions of this Court in relation to the said provision such that the interpretation accorded the provision by this Court cannot now stand or be said to be correct law.
The Tribunal in its ruling of 21/2/2012 clearly relied on the decisions of the Supreme Court relating to the position of Section 285(6) (supra), in nullifying all the proceedings conducted in the Petition from the time it was returned to it for "re-trial" and ended up striking out the Petition. While I cannot stop myself from making the observation that this Court never ordered a "re-trial" in the Petition (as there was no initial trial therein that was set aside or vitiated by this Court), what I consider pertinent for resolution against the backdrop of the grounds of the preliminary objection to the instant appeal, is whether or not the Tribunal acted rightly in relying on the decisions of the Supreme Court brought to its notice, in eventually striking out the Petition. Again, it is my considered view that inasmuch as this Court itself, cannot properly refuse to apply the decisions showing the position of the Supreme Court in respect of Section 285(6) (supra) in appropriate situations, the Tribunal too cannot properly refuse to do so, even in the face of any previous contrary decisions of this Court on the matter. This is so because the Tribunal like any other court is expected in law to apply "correct law" and where it becomes obvious to the Tribunal as in the instant case, that the position of this Court in respect of Section 285(6) (supra) cannot stand with that of the Supreme Court on the matter, it has no choice but to bow to the position of the Supreme Court in the matter as this Court too must do, despite the finality of the decision of this Court in relation to the instant Petition.
Before now, I have quoted in extenso portions of the lead judgment delivered by Onnoghen, JSC; in the consolidated Appeals Nos. SC.1/2012 & SC.2/2012. It is clear therefrom that the provision of Section 285(6) (supra) though harsh, must be strictly applied and that there is no safe haven or protection for an election Petition that is not determined to finality within the constitutional period of 180 days from the date it was filed before the Tribunal. His Lordship even went to the extent of admonishing Justices of this Court for not applying the said provision as the Supreme Court has always done. The Tribunal by striking out the Petition on 21/1/2012 given its finding that it had over spent its constitutional 180 days from the date it was filed, has thereby simply applied the decisions of the Supreme Court, as the Supreme Court wants them applied to Petitions that are not determined within the time frame provided for that purpose by the amended Constitution.
Finally, and as argued by the Objector, the prayer or relief sought by the Appellants cannot be granted even if the appeal were to succeed. In my considered view, it has been sufficiently demonstrated that given the position of the law as declared by the Supreme Court in relation to Section 285(6) (supra), the Tribunal undoubtedly had lost the jurisdiction to continue to entertain the Petition upon its clocking 180 days on 23/11/2011. It would therefore not only amount to deliberately discountenancing the decisions of the Supreme Court to the effect that no court by its order can extend or enlarge the constitutional period of 180 days assigned by the amended Constitution for the determination of a petition from its date of filing, should this Court grant the relief, but doing so could attract serious admonition from any quarters and also put the courts into serious ridicule before the public which enjoy blowing conflicting positions taken by the courts out of proportion.
In the final analysis, the preliminary objection of the 2nd Respondent to the appeal succeeds and is hereby sustained. Accordingly, the Appellants' appeal must be and is hereby struck out.
I make no order as to costs.
ADAMU JAURO, J.C.A: I agree.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I agree.
Appearances
O.A. Obianwu, SAN,
H.C. Onwuegbuke;
G.B. Obi;
T.U. Oguji; and
N.R. Owoh (Miss) For the Appelants
Emeka Ngige (SAN),
B.N. Nwachukwu (Mrs.);
Ngozi Udodi (Ms);
Bona Oraekwe;
P.E. Okoye;
C.F. Odigbo (Miss);
S.N. Ogar
O.J. Nnadi (SAN),
S.O. Ibrahim (CLO, INEC);
O. Ikoroha (SLO, INEC);
F.U. Abazuonu; and
B. Fakoya (Miss) For the Respondents