Court Of Appeal Cannot Extend Time For Hearing Election Petition – Supreme Court

The controversy surrounding the interpretation of Section 285(6) of the 1999 Constitution dealing with the period for the hearing and determination of petitions by election tribunals has now been laid to rest in two separate judgments delivered by the Supreme Court within the week. Section 285(6) of the 1999 Constitution provides that “An election tribunal shall deliver its judgment in writing within One Hundred and Eighty days (180) days from the date of filing the petition”.

 

There has been conflicting decisions by the Court of Appeal on whether a case remitted to tribunal for retrial or hearing on merits will have fresh 180 days or not. The Court of Appeal sitting in various divisions had delivered conflicting decisions on the issue.  In the case of Senator Mohammed Adamu Aliero against Senator Atiku Bagudu, the Sokoto Division of the Court of Appeal presided by Justice Amiru Sanusi had ruled that the 180 days was not extendable and struck Aliero’s petition. The same course was taken in the case of Dr Wale Okediran against Hosea Agboola at Ibadan Division presided by Justice RC Agbo.

 

The law seemed however to change when the same Court of Appeal at Enugu Division in the case of Dr. Chris Ngige against Prof. Dora Akunyili held to the contrary, affirming the decision of the lower tribunal that the 180 days period is extendable when a matter is remitted for hearing on merits.  The Court had described the appeal of Dr. Ngige’s appeal as ‘lacking in merit’.  Under the 1999 Constitution, the Appeal Court is the final Court for election to Legislative Houses.

 

The Supreme Court on Tuesday 14th February 2012 in the Oyo governorship case of Action Alliance Vs INEC dismissed the appeal by Action Alliance in which it sought for an order  allowing the appeal and remitting the case for hearing by a differently constituted tribunal.  In a Bench ruling delivered by Walter Onnoghen JSC, the Apex Court:

 

“The petition giving rise to this appeal was filed on 17th May 2011 and by the provisions of Section 285(6) of 1999 Constitution an election tribunal shall deliver its judgment in writing within one 180 days from the date of the filing of the petition.

The relief sought by the appellant includes an order that the petition be returned to the tribunal to be heard de novo by another panel.  As at today the 180 days has long lapsed and by the decisions of this Court the time stipulated in the Constitution cannot be extended which an order of retrial would tend to effect”

 

The Supreme Court on Friday re-affirmed its stance on the issue by laying to rest the controversy in Borno State Governorship petition involving All Nigeria Peoples Party [ANPP] against Alhaji Mohammed Goni.  In the said case, the trial tribunal had struck out the petition for wrong commencement of pre trial conference.  On appeal the Court of Appeal allowed the appeal and remitted the case for hearing on merits by which time the 180 days lapsed.  On a further appeal to the Supreme Court, the judgment of the Court of appeal was challenged on the ground that the Court of Appeal lacked jurisdiction to remit an expired case for hearing denovo before a different panel.

 

In a tone of finality, the apex Court in the leading judgment of Walter Nkanu Onnoghen allowed the appeal and held as follows:

 

“The question is not whether the lower Court has jurisdiction to hear and determine an appeal and give an order which the justice of the case demands but whether the Court can legally order a retrial of an election petition which by the admission of the 1st and 2nd respondents had lapsed.  What would be the effect of such an order?  Is not a clear case of an exercise in futility?”

 

While berating the Court of Appeal for refusing to take the hints from the previous decisions of the Supreme Court dealing with time frame for hearing petitions and appeals, the learned jurist further held:

 

“It is very worrisome that despite the decisions of this Court since October 2011 on the time fixed in the Constitution some of the justices of the lower Court still appear not to have gotten the message”.

 

The learned justice queried:

 

“From where will the election tribunal get the jurisdiction to entertain the retrial after the expiration of the 180 days assigned in the Constitution, without extending the time so allotted?  Do the Courts have the vires to extend the time assigned by the Constitution?  The answer is obviously in the negative”.

 

The import of the Supreme Court decision is that many of the tribunals in the Country will start winding up in obedience to the latest decision of the apex Court.  Prominent among cases that will be affected by the decision include the case of Prof. Dora Akunyili of APGA against Dr. Chris Ngige of ACN for Anambra Central Senatorial District, Prof.  Stephen Ugba of ACN against Gabriel Suswan of PDP for Benue State Governorship election, Senator James Akpan Udoedeghe of ACN against Godwill Akpabio of PDP for Akwa Ibom governorship.

 

Judicial watchers are of the opinion that unless the provision of Section 285(6) of the 1999 Constitution is further amended to exempt cases remitted for retrial, Petitioners in election tribunals have a sword of democles in Section 285(6) hanging over the necks.

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