⦿ CASE SUMMARY OF:
Chief Dr. Felix Amadi & Anor v. Independent National Electoral Commission & Ors. (2012) – SC
– Fair hearing;
– Election petition;
– Nullification if an election;
1. Chief Dr. Felix Amadi;
2. African Political System (APS)
1. Independent National Electoral Commission (INEC);
2. Chibuike Rotimi Amaechi;
3. Peoples’ Democrattc Party (PDP)
⦿ LEAD JUDGEMENT DELIVERED BY:
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.
* FOR THE APPELLANT
– Aham Eke-Ejelam Esq.
* FOR THE RESPONDENT
– J. Elumeze;
– L. O. Fagbemi, SAN;
– Imadegbelo, SAN.
⦿ FACT (as relating to the issues)
This is an appeal against the judgment of the Court of Appeal Holden at Port Harcourt, delivered on 7th December, 2011, in which the court struck out appeal No.CA/PH/EPT/36/2011 for want of jurisdiction.
Following the Governorship Election conducted by the 1st respondent into the Office of Governor of Rivers State, on the 26th day of April, 2011, the 2nd respondent was returned as winner of the said election, haven pulled the highest number of votes cast at the election. The 1st appellant was a candidate of the 2nd appellant for the said election and complained that they were unlawfully excluded from the election by the 1st respondent not including the name and logo of the 2nd appellant in the ballot papers used for the said Rivers State Governorship Election, as a result of which appellants filed petition no. EPT/GOV/3/2011 at the Governorship Election Tribunal sitting at Port Harcourt challenging the return of the 2nd respondent.
The grounds for the petition are that:
1. That the 1st Appellant was validly nominated by the 2nd appellant as its candidate but unlawfully excluded by the 1st respondent from contesting the 2011 Governorship Election in Rivers State held on the 26th April, 2011.
2. That the 2nd appellant, a duly registered political party was unlawfully excluded from contesting the 2011 Governorship Election in Rivers State held on the 26th April, 2011.
Among several declarations, they sought for a nullification of the election that brought in the 2nd Respondent.
At the conclusion of trial, the tribunal dismissed the petition of appellants in a judgment delivered on the 7th day of October, 2011.
Consequent upon the dismissal, appellants filed appeal No.CA/PH/EPT/36/2011 at the Court of Appeal holden at Port Harcourt on the 28th day of October, 2011.
Upon the completion of the processes, the appeal was fixed for hearing on the 7th day of December, 2011, on which day, the appeal was struck out for haven lapsed resulting in the instant appeal.
1. An objection, by the 1st respondent, to the notice of appeal contending that the same is incompetent as the three grounds need leave of the court as they do not arise from nor relate to the decision appealed against.
1. Whether the inability of the Court of Appeal to hear the appeal within sixty (60) days prescribed by Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 as amended amounted to a denial of the appellants’ right to fair hearing?
⦿ HOLDING & RATIO DECIDENDI
[PRELIMINARY OBJECTION: OVERRULED]
1. THE PRELIMINARY OBJECTION WAS OVERRULED.
i. It is clear that a right of appeal enures to an appellant who appeals against the decision of the Court of Appeal on questions of law alone or where this complaint is that any of the provisions of chapter IV of the 1999 Constitution as amended (dealing with the fundamental rights) has been or is being threatened to be breached in relation to him or whether any person has been validly elected to the Office of Governor or Deputy Governor etc, and as relevant to the facts of this case. Can it be said, from the above provisions, that appellants’ appeal can only be competent if preceded by leave of court? I have reproduced the ruling of the lower court and the grounds of appeal against it earlier in the judgment and l am of the view that the appellants have the right to appeal to this court particularly as the grounds of appeal are of law; involve interpretation or application of the constitution and breach of appellants’ right to fair hearing as contained in Chapter iv of the 1999 Constitution as amended. Though the appeal cannot be said to be one that questions whether any person has been validly elected to the Office of Governor or Deputy Governor under the constitution it certainly involves the interpretation or application of the provisions of Section 285(7) of the 1999 Constitution as amended in so far as it deals with the issue of determination of election appeals within sixty (60) days of the judgment appealed against. In short, it is my considered view that the appeal is competent as the same was filed as of right under the constitution. The preliminary objection of the 1st respondent is therefore overruled being misconceived and of no merit.
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANTS BUT IN FAVOUR OF THE RESPONDENTS.
i. This court has held that the provisions of Section 285(7) supra is like the rock of Gibraltar or Mount Zion which cannot be moved. The time provided therein is sacrosanct in the sense that it cannot be extended. Granted, for the purposes of argument only, that application of the provisions amounts to a denial of the right to fair hearing, which is not admitted by me, what would be the benefit to appellants in view of the fact that the sixty (60) days cannot be extended to accommodate the hearing of their appeal? To me, I hold the considered view that the instant appeal is an exercise in futility in the present circumstances and realities. The court is not being asked to declare the provisions of Section 285(7) unconstitutional which means it remains valid. As long as it remains the law appeals relevant to that provision must necessarily be heard and determined within sixty (60) days of the delivery of the judgment on appeal otherwise the appeal would lapse. The provision does not say that the appeal would not lapse if the inability to hear and determine same was not caused by the appellant or was caused by the court, or by any person of whatever description. Section 285(7) supra is clearly intended by the legislature to limit time not to extend time and it would be inappropriate, and in fact illegal, to interpret same to attain the effect of extending the time therein allotted which is clearly the intention of the appellants in the instant appeal.
ii. It is very important to note that the provisions of Section 285(7) supra do not deny an appellant the right to fair hearing, just like every statute of limitation. It merely gives all parties and the court a time frame within which parties are to exercise their right to fair hearing in a relevant appeal. If for whatever reason the appeal is not heard within the allotted time frame it cannot be said that an appellant affected thereby has been denied his right to fair hearing. The provision is of strict liability and since the court has not been called upon to declare same unconstitutional it remains the law and binding on all and sundry.
iii. It is not disputed that the appeal was to be heard and determined within sixty (60) days from the date of the delivery of the judgment by the Election Tribunal. So everyone involved in the matter appellants, respondent and the court must beat the sixty (60) days dead line. The judgment of the tribunal was delivered on 7th October, 2011 and appellants had twenty-one (21) days within which to file their appeal which they did on 28th October, 2011 which was the very last day of the twenty-one (21) days allowed for the filing of the appeal. That apart, appellants did not file their appellant brief until the 25th day of November, 2011 which was ten (10) days to the end of the sixty (60) days from the date of judgment on appeal. It is therefore very clear that appellants were very tardy in prosecuting the appeal having regard to the time constraint involved. In conclusion, I find no merit in this appeal which is accordingly dismissed by me.
Sections 233(2)(a)(b) and (c), and 233(2)(e), 233(3), of the 1999 Constitution as amended;
Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
Adisa v. Oyinwola (2000) 10 NWLR (pt.674) pg.116 at pg.217, this court held – “Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. Where therefore by the use of clear and unequivocal language capable of only one meaning anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be.”
⦿ NOTABLE DICTA
Everything needed to deliver the judgment must be done and the judgment delivered “within” sixty (60) days of the date of the delivery of the judgment on appeal. The provisions of Section 285 (7) supra therefore must be applied to the facts of any given case as it admits of no interpretation whatsoever. – Onnoghen, JSC. Amadi v. INEC (2012)
Having filed his appeal leaving only four days for the court to hear and determine the matter, he ought to have done everything within his power to collect a date for hearing and not wait until same had to be communicated to him on the telephone by a staff of the Registry of the Court of Appeal. The learned counsel had himself to blame for exhausting all the period required for filing the appeal. He did not have to exhaust the entire 21 days prescribed by law in filing his notice of appeal. The 7th of December 2011 fixed for his appeal might have been done in error he could have rectified it through his vigilance in checking up the date of hearing at the Registry from time to time. Equity aids the vigilant and not the indolent. – Adekeye, JSC. Amadi v. INEC (2012)
An action instituted after the expiration of the prescribed period is said to be statute-barred. The essence is that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute. Therefore a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation Law had elapsed. The conspicuous effect of a Limitation Law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. – Adekeye, JSC. Amadi v. INEC (2012)
No court can perform a duty not vested in the court by the Constitution. Moreover, the task of the court is to decide what the law is and not what it ought to be. – Adekeye, JSC. Amadi v. INEC (2012)
The right to fair hearing under Section 36(1) of the 1999 Constitution as applicable in the determination of civil rights and obligation of citizens is a trial conducted according to all legal rules formulated to ensure that justice is done to all parties. The court is expected to provide a conducive atmosphere for parties to exercise their right to fair hearing. The right to fair hearing is a question of opportunity of being heard. – Adekeye, JSC. Amadi v. INEC (2012)
The constitutional role of the superior court under the constitution is to interpret the law and not to usurp the role of the legislature in law making. A judex is to expound the law and not to expand the law. – Adekeye, JSC. Amadi v. INEC (2012)
It must be emphasized that although the courts have great powers yet these powers are not unlimited. They are bound by some lines of demarcation; courts are creatures of statutes and the jurisdiction is therefore conferred, limited and circumscribed by the statutes creating it. – Adekeye, JSC. Amadi v. INEC (2012)
The Constitution is the Supreme Law. The Groundnorm. It states in clear terms the basic rights of the people, their expectations, and obligations of Government. It spells out how the people would be governed, and sets up institutions for good government. Judges would do well to study it and keep themselves abreast of frequent amendments made to it. – Rhodes-Vivour, JSC. Amadi v. INEC (2012)
The tribunal gave judgment on 7/10/2011. The appellant filed his appeal on 28/10/11 and his brief on 25/11/2011, leaving the Appeal Court with barely ten days to hear the appeal. A close examination of the dates above reveals that learned counsel for the appellants did not handle the petition with diligence. He appears to have in the circumstances denied himself fair hearing. – Rhodes-Vivour, JSC. Amadi v. INEC (2012)