CORAM

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PARTIES

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BARR. AYODELE MUSIBAU KUSAMOTU APPELLANTS

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1. ALL PROGRESSIVES CONGRESS

2. HON. ADEYINKA AJAYI

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Plaintiff/Appellant had appealed to the Court of Appeal, Abuja Division,against the ruling of the Federal High Court. By the ruling of the trial court, at the instance of the 2nd Defendant/Respondent, the court ordered that the suit commenced by the Plaintiff/Appellant be tried by pleadings to be filed and exchanged between parties. This prompted an appeal to the lower court which allowed same and set aside the ruling of the trial court. In addition to ordering an accelerated hearing, it further ordered that the trial Court proceed to hear and determine the originating summons together with all pending objections by the 1st and 2nd Defendants to the competence of the suit and the validity of the amended originating summons. The Appellant has appealed to this court against that decision, However before the instant appeal was heard on 21/11/18 and judgment reserved for 15/02/19, the President on the 4th of June 2018 assented to the Constitution of the Federal Republic of Nigeria 1999(Forth Alteration, No 21)Act 2017 and further amended Section 285 of the Constitution by specifically providing in Subsection 12 that an appeal from a decision of a Court in a pre-election matter be heard and disposed of within 60 days from the date of filing the appeal. Neither of the party addressed the issue of the applicability of Section 285(12) of the 1999 Constitution as amended, however the court raised the issue that the appeal was filed on 23/5/18 more than two hundred and sixty- six days ago, being an appeal against a decision on pre-election matter, with time for its hearing and determination having lapsed, it has become statute barred.

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HELD

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Appeal Struck Out

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ISSUES

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None

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RATIONES DECIDENDI

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ELECTION PETITION TIME FRAME WITHIN WHICH AN APPELLATE COURT CAN EXERCISE ITS JURISDICTION TO DETERMINE AN APPEAL ARISING FROM ELECTION PETITION

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“Section 285 of the 1999 Constitution as amended confers jurisdiction on this Court to hear and determine the instant appeal. The Section by the foregoing clear and unambiguous subsection has set up definite time frame within which the jurisdiction must be exercised. By the sub-section, this Court must hear and determine appeal arising from Election Petition within sixty (60) days of the filing of the appeal.
In Mallam Abubakar & Ors V. Saidu Usman Nasamu & Ors (2012) LPELR-7826 (SC) this Court while considering a similar provision held per Onnoghen JSC (as he then was) thus:-v
“The words employed by the legislature in Section 285(7) and (8) of the 1999 Constitution are very simple and straight forward and unambiguous and therefore admit of no special construction or interpretation. They simply mean what they plainly stated. Subsection (7) of the Section 285 means simply that it is obligatory on the Court of Appeal or the Supreme Court to hear and determine an appeal arising from an Election Petition matter within sixty (60) days from the date of the delivery of judgment by the Election Tribunal or Court of Appeal. The Provision makes no distinction between an interlocutory decision of the Tribunal and the final decision of the tribunal or Court of Appeal. Also, to be noted is the use of the words “shall” and “within” in the said subsection which means that the provision is mandatory as it admits of no discretion whatsoever. The word “within” means a decision rendered by the affected Court outside the assigned sixty (60) days is null and void.” See also Alhaji Kashim Shetima & Anor V. Alhaji Mohammed Goni (2011) LPELR-417 (SC).” –

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DETERMINATION OF APPEALS FROM DECISIONS IN PRE-ELECTION MATTERS WHETHER APPELLATE COURTS CAN EXTEND THE TIME FRAME WITHIN APPEALS ARISING FROM DECISIONS IN PRE-ELECTION MATTERS CAN BE HEARD AND DETERMINED.

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“Before the enactment of the CFRN 1999 (Fourth Alteration No 21) Act 2017 on 4th June 2018, time frame had not been provided for the hearing and determination of appeals arising from decisions in pre-election matters. With the provision of the time frame under Subsection 12 of Section 285 of the 1999 Constitution as so altered, appeals from pre-election causes, like those that have arisen from election petitions which have similarly been provided for under Subsection 7 of the very Constitution, must be heard and determined within sixty (60) days by the Court of Appeal or the Supreme Court as the case may be. Neither of the two Courts can, for whatever reason, extend the time provided for under Subsection 12 of Section 285 of the 1999 Constitution as amended. It is mandatory to comply with the provision. To extend the time provided by the subsection for the hearing and determination of appeals arising from pre-election matters is for the Court to embark on judicial legislation, a condemnable act. See Senator John Akpanudoedehe & Ors V. Godswill Obot Akpabio & Ors (2012) LPELR-9728 (SC), Chief Felix Amadi & Anor V. Independent National Electoral Commission (2012) LPELR-7831 (SC) and Ugba & Ors V. Suswam (2012) LPELR-9726 (SC).” –

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RAISING AN ISSUE SUO MOTU INSTANCES WHERE IT IS UNNECESSARY TO GIVE PARTIES HEARING WHEN A COURT RAISES AN ISSUE SUO MOTU

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“As a general rule, it is most inappropriate and irregular for a Court to take up and decide a point without hearing parties or their counsel. This Court has posited that ordinarily a Court has no business whatsoever in dealing with a matter not before it. No matter how clear an issue raised by the Court appears to be, it should not be resolved without hearing the parties. See Bola Tinubu V. IMB Securities Plc (2001) 12 SCM 73, Victino Fixed Odds Ltd V. J. Ojo & ors (2010) 4 SM 127 and Goke Olaolu V.Federal Republic of Nigeria (2015) LPELR 24778 (SC). However, to all general rules there are always exceptions!
In this regard the principle has to be restated that the need to give parties a hearing when a court raises an issue suo motu may not be necessary where (i) the issue pertains to the court’s jurisdiction (ii) the parties ignored or are unaware of a statute that has being on the case and by virtue of the statutory provision the Court is expected to take judicial notice (iii) on the face of the record serious questions of the fairness of the proceedings is manifest. See Omokuwajo v. FRN (2013) 9 NWLR (Pt 1359) 300 at 332, Victino Fixed Odds Ltd v. Joseph Ojo and Ors (2010) 3 SC (Pt 1) 1, Gbagbarigha V. Toruemi & Anor (2013) 31 WRN 35 at 51- 52.” –

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POWERS OF THE NATIONAL ASSEMBLY STATUS OF THE POWERS OF THE NATIONAL ASSEMBLY WITH RESPECT TO MATTERS ON THE EXCLUSIVE LEGISLATIVE LIST

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“Finally, the powers vested in National Assembly by Section 4 of the 1999 Constitution with respect to any matter included in the Exclusive Legislative are absolute and exclusive.” –

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RETROSPECTIVE LEGISLATION ATTITUDE OF COURT TO RETROSPECTIVE LEGISLATION WHICH IMPINGE UPON THE CONCEPT OF FAIR HEARING

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“Courts frown on retrospective legislation which they consider to particularly impinge upon the concept of fair hearing. Being dutifully aware of the doctrine of separation of powers, however, the Courts have always recognised the overriding constitutional function of the legislature to make and amend laws including their revocation. The Courts limit themselves to the task of interpreting the laws, amendments or revocation to give effect to the intention of the legislature. Thus, where the intention is clear and ambiguous, the Courts have always interpreted the provision of the legislation to reflect such intention. See Adesanoye V. Adewole (2002) 9 NWLR (Pt 671) 127; Ahmed V. Kassim (1958) SCNLR 28; Adejumo V. Military Governor Lagos State (1972) 3 SC 124 and Ojokolobo V. Alamu (1987) 3 NWLR (Pt 61) 377.”
In particularly Ojokolobo V. Alamu (supra) this Court has held that Subsection 12 to Section 285 which stipulates time frame within which proceedings may be taken and concluded and couched in such clear and unambiguous terms must be so construed. The provision is adjectival and must operate as such notwithstanding the retrospective effect it may have on accrued rights of the party such as the appellant herein. See also the recent decision of this Court restating and abiding by the principle in the Court’s recent decision in Appeal No. SC. 307/2018 between Obayemi Toyin V. Arogundade Samuel Musa and 4 ors delivered on the 18th January 2019.” –

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COUNSEL DUTY OF COUNSEL TO COURTS

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“Counsel have a duty to assist the Court in fast tracking the hearing and determination of cases. Where they recklessly fail to do so, the Court must appropriately react.” –

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APPEAL MODE OF EMPLOYING A REPLY ON POINTS OF LAW

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“Appellant has a right to reply on points of law arising from the respondent’s brief See Kalu V. State (2017)14 NWLR (Pt. 1586) 522 SC. It cannot be employed to repeat arguments in the main briefs or to make a better brief. See Brown V. State (2017) 4 NWLR (Pt. 1556) 341 SC.” –

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POWERS OF THE COURT OF APPEAL LIMITATIONS IN THE EXERCISE OF THE POWERS OF THE COURT OF APPEAL

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“Section 15 of the Court of Appeal Act provides:
“The Court of Appeal may from time to time make any order necessary to determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its …in any question which the Court of Appeal thinks fit to determine before trial Judgment in the appeal, and may make an interim action or grant any injunction which the Court below is authorized to make or grant and may direct as necessary inquiry or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceeding as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the passage of such re-hearing or may give such other directives 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 the Court’s appellate jurisdiction, and the case to be re-heard by the Court of competent jurisdiction.” (Underlining mine).
This wordy and all-embracing provision is not without limitation. The Court of Appeal:
“cannot have full” jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of appeal as a Court of first instance…” –

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PRESUMPTION AGAINST RETROSPECTIVE CONSTRUCTION APPLICABILITY OF THE PRESUMPTION AGAINST RETROSPECTIVE CONSTRUCTION

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“The said Section 285 (12) provides for hearing and disposal of all pre-election matters within 60 days. The provision applies to all the appellate Courts. Although the appeal before the Court of Appeal was filed before the 4th Alteration was assented to by the President the proceedings at the Court of Appeal became statute barred because the appeal was not concluded within 60 days from the date the appeal was filed. This Court in Ojokolobo v. Alamu (1987) 2 NSCC 991 at 1006; (1987) 3 NWLR (Pt. 61) 377 held per Nnamani JSC (of blessed memory) at p. 394 that: –
“.it is settled law that the presumption against retrospective construction has no application to enactments which only affect procedure and practice of the Courts.” –

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LEGISLATION ATTITUDE OF COURT TO THE RETROSPECTIVE EFFECT OF THE PROVISION OF SECTION 285 (12) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

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“With respect to the retrospective effect of the fourth alteration, of the 1999 Constitution of the Federal Republic of Nigeria (No.21) (as amended), I hold the view that flowing also from the decision of this Court in the case of Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377, the argument against retrospective effect of the said provision is of no moment. Indeed, I hold the view that in the light of the provision of Section 285 (12) of the 1999 Constitution, a judgment delivered in an appeal from a pre-election matter, outside the 60 days allowed by law, is null and void as such judgment is delivered without jurisdiction.” –

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CASES CITED

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None

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (4th Alteration No. 21) Act 2017

2. Court of Appeal Act, 2016

 

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