CORAM

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MARY PETER-ODILI

MOORE A. A. ADUMEIN     JUSTICE, COURT OF APPEAL

TANI YUSUF HASSAN     JUSTICE, COURT OF APPEAL

MOORE A. A. ADUMEIN     JUSTICE, COURT OF APPEAL

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PARTIES

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1. SEN. MOHAMMED ABDUSALAMI OHIARE2, ALL PROGRESSIVE CONGRESS (APC) APPELLANTS

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1. OGEMBE SALAU AHMED2. PEOPLES DEMOCRATIC PARTY (PDP)3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Applicant by way of an Originating Motion sought an order granting leave to the applicants to seek interpretation of the judgment of this honourable court delivered on Tuesday, the 2nd day of December 2015, to determine whether, by the said judgment, the Applicants were excluded from the fresh election ordered by this honourable court in this appeal on grounds that the Court of Appeal sitting as final court in this appeal, nullified the election and return of the 1st Applicant as member elected to represent the Kogi Central Senatorial District, Kogi State at the election conducted on the 28th March, 2015 and ordered the 3rd Respondent to conduct fresh election to the Kogi Central Senatorial District within 90 days among others. In opposition to the application, the 1st and 2nd Respondents filed a joint counter-affidavit contending that the period of 60 days for delivering a judgment in an election petition appeal cannot be extended by the court and therefore the court lacks jurisdiction to entertain the application which should be refused.

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HELD

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Application Struck Out

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ISSUES

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None

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RATIONES DECIDENDI

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COMPETENCE OF A COURT – CONDITIONS TO DETERMINE THE COMPETENCE OF A COURT

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“It is now settled law that before a court assumes jurisdiction over a cause or matter, it must have the legal competence so to do. And as it is well-known, there are conditions to determine whether a court is competent or not. One of the conditions is that there must be no feature in the cause or matter which prevents the court from exercising its jurisdiction. See the evergreen statement of Bairamian, F. J. in Madukolu v. Nkemdilim (1962) NSCC (Vol. 2) 374 at 379; where His Lordship, said, inter alia, that.
“…a court is competent when-
1. It is property constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another;
2. The subject matter is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. The case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.” PER M. A. A. ADUMIEN, J.C.A.<foo< p=””></foo<>

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JUDGMENT OF COURT – TIMEFRAME WITHIN WHICH JUDGMENT OF THE COURT OF APPEAL IN RESPECT OF APPEALS FROM AN ELECTION PETITION TRIBUNAL MUST BE DELIVERED

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“To be concise, the law is now settled that a judgment of the Court of Appeal in respect of an appeal from an election petition tribunal must be delivered within 60 (sixty) days from the date of delivery of the decision or judgment of the tribunal. It means that, save to correct accidental slips or mistakes, all applications, whether in interlocutory or post-judgment, must be considered and resolved within the 60 (sixty) days period stipulated in section 285 (7) of the Constitution of the Federal Republic of Nigeria 1999, (as amended).” PER M. A. A. ADUMIEN, J.C.A.<foo< p=””></foo<>

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DECISION OF COURT -TIME WITHIN WHICH TO GIVE JUDGMENT ON APPEALS FROM AN ELECTION TRIBUNAL- SECTION 285 (7) OF THE1999 CONSTITUTION

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“By the provisions of section 285 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) a decision of this court in respect of an appeal from an election petition tribunal, to this court must be delivered within 60 (sixty) days from the date the tribunal delivered its judgment” PER M. A. A. ADUMIEN, J.C.A.<foo< p=””></foo<>

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ELECTION PETITION – WHETHER TIME WITHIN WHICH TO FILE A PETITION CAN BE EXTENDED BY THE COURT

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“An election petition and an appeal arising from it are sui generis. Therefore, the times stipulated in the Constitution in respect of election petitions and appeals relating thereto are as solid as rock and cannot, under any guise, be extended by any court of law. See further, on this point, the case of Action Congress of Nigeria (ACN) & Anor. v. Independent National Electoral Commission (2013) 13 NWLR (Pt. 1370) 161 at 184. In the case of All Nigeria Peoples Party (ANPP) v. Aihaji Mohammed Goni & 4 Ors. (2012) 7 NWLR (Pt. 1298) 147 at 182 per Onnoghen, JSC the Supreme Court re-echoed the position of the law by stating 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.356/2011 and SC.357/2011: Brig. Gen. Mohammed Buba Marwa & Ors v. Adm. Murtala Nyako & Ors. delivered on 27th January, 2012, reported in (2012) 6 NWLR (Pt. 1296) 199 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.” PER M. A. A. ADUMIEN, J.C.A.<foo< p=””></foo<>

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)Court of Appeal Rules, 2011Supreme Court Rules, 1985 (as amended)

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