⦿ CASE SUMMARY OF:
Paul Iyorpuu Unongo v. Aper Aku & Ors. (1983) – SC
by NSA PaulPipAr
⦿ AREA OF LAW
– Election petition;
– Time limit election;
– Breach of separation of powers;
Paul Iyorpuu Unongo
1. Aper Aku;
2. Alfred Torkula [Chief Federal Electoral Officer, Federal Electoral Commission, Benue State];
3. Joseph K.I. Ugela (The Returning Officer).
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Chief F.R.A. Williams, S.A.N.
* FOR THE RESPONDENT
– Dr. M. Odje, S.A.N.
⦿ FACT (as relating to the issues)
Both the appellant and the 1st respondent were candidates in the governorship election that was held in Benue State on 13th August, 1983. The 1st respondent was declared winner by the 3rd respondent. Consequently the appellant brought an election petition in Benue State High Court at Makurdi against the respondents. In the petition the appellant prayed thus: “…that it may be determined that the said Aper Aku was not duly elected or returned and that the votes purportedly cast for him in the Ankpa, Oju, Vandeikya, Kwande, Katsina-Ala, Bassa, Dekina, Idah and Gboko Local Government Constituencies were void, and that the said Paul Iyorpuu Unongo was duly elected and ought to have been returned. In the alternative your petitioner prays that the whole election conducted on the 13th day of August, 1983 be declared null and void and a fresh election ordered.”
In his reply the 1st respondent raised the following defences in paragraph 13 (ii) thereof: “13. the 1st respondent shall at the trial of this petition contend that; (ii) the entire petition be struck-out in that – (a) by virtue of section 267 (1) of the Constitution of the Federal Republic of Nigeria, 1979 the 1st respondent as incumbent Governor of Benue State cannot be sued; (b) the petition is incurably defective by reason of non-compliance with the provisions of section 125 of the Electoral Act 1982.”
The 2nd and 3rd respondents also raised inter alia the following defence in paragraph 9(3) of their joint reply – “9. At the hearing of the petition the Honourable Tribunal shall be urged to: (3) To (sic) strike out the entire petition on the ground that it is not proper before the court as it fails to comply with the mandatory provisions of section 125 of the Electoral Act by not conforming with Form EC 10 in the Schedule to the Act.”
When the petition came up for hearing before the High Court, these defences were raised by the respondents as preliminary objections. The objections were upheld and the petition was struck-out. Subsequently an appeal was filed against that decision by the appellant in the Federal Court of Appeal.
The appeal was allowed in its entirety and when the Federal Court of Appeal came to consider what consequential order it should make it made the following observations (as per Ogundare, J.C.A.): “In view however, that under section 140(2) of the (Electoral) Act the petition has abated and the lower court would no longer have jurisdiction to hear it this Court is unable to exercise its power under section 16 of the Federal Court of Appeal Act, 1976 and (sic) send the petition back to the trial court for hearing and determination. The position of complete helplessness in which this Court now finds itself as regards the appropriate relief due to the appellant upon the success of his appeal before us arises not as much because of the time bar prescribed by sections 129(3) and 140(2) of the Act but because the learned trial judges had not taken the elementary caution of deciding the case on the merits within the period permitted by the Act.”
Dissatisfied with the inability of the Federal Court of Appeal to remit the case to the High Court for the petition to be heard and determined on its merits, the appellant further appealed to this Court.
1. The Federal Court of Appeal erred in law in failing to uphold the submission that sections 129(3) and 140(2) of the Electoral Act 1982 are unconstitutional.
2. The Federal Court of Appeal erred in law in failing to observe that the before-mentioned provisions of the Electoral Act constitute an unwarranted interference in the affairs of the courts of judicature.
⦿ HOLDING & RATIO DECIDENDI
1. GROUND 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENTS.
i. Accordingly the provisions of sections 129(3) and 140(2) of the Electoral Act, 1982 which limit the time for disposing of election petitions by the courts are in my view ultra vires the National Assembly and therefore null and void. It was for these reasons that I agreed on 30th September 1983 that this appeal should be allowed with N300.00 costs against each of the respondents and that the petition should be remitted to the Benue High Court, Makurdi to be heard and determined on its merits with utmost despatch.
2. GROUND 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENTS.
i. There can be no doubt that the provisions of sections 129 subsection (3) and 140 subsection (2) of the Electoral Act 1982 neither allow a petitioner or respondent reasonable time to have fair hearing, nor give the court the maximum period of 3 months to deliver its judgment after hearing a petition as envisaged by sections 33 subsection (1) and 258 subsection (1) of the Constitution, respectively.
S. 4(8), 237(1), 6 of the Constitution of the Federal Republic of Nigeria 1999;
⦿ SOME PROVISION(S)
S. 119(4) of the Electoral Act 1982: A petition to question an election or result shall be presented to the competent High Court not later than 14 days from the date that the result of the election is declared.
S. 135 of the Electoral Act 1982: A reply to the petition shall be filed by the respondent not later than 6 days after the date on which the petition was served on the respondent.
S. 139(1) of the Electoral Act 1982: Every petition shall be tried in public and subject to the provisions of this section the time of and place of the trial of a petition shall be fixed by the court. Notice of the time and place of the trial shall be given by the Registrar at least 10 days before the day fixed for the trial.
S. 129 (3) of the Electoral Act: Proceedings before a High Court in the case of a petition in respect of the office of President or Vice-President, Governor, Deputy-Governor or in respect of any of the Legislative Houses shall be completed not later than 30 days from the date of the election concerned.
Section 140 subsection (2) of the Electoral Act: A petition filed before the High Court in respect of any election shall be disposed of by the Court not later than 30 days from the date of such election and any election petition not so disposed of shall be time barred and such petition shall be deemed null and void.
⦿ RELEVANT CASE(S)
Isiyaku Mohammed v Kano Native Authority (1968) 1 All N.L.R at p. 426 that a fair hearing involves a fair trial and that – The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case.
Board etc. v. Stout (1893) 163 Ind 53, 35 NE 683, 22 LRA 398: “courts are an integral part of government, and entirely independent, deriving their powers directly from the Constitution in so far as such powers are not inherent in the very nature of the judiciary. A court of general jurisdiction whether named in the (constitution or established in pursuance of the provisions of the constitution cannot be directed or impeded in its functions by any of the other departments of the government. The security of human rights and the safety of free institutions require the absolute integrity and freedom of action of courts.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It follows that where an election result gets to be known on the very day the election takes place, if all the actions to be taken by the parties to a petition under sections 119(4) and 135 of the Electoral Act, 1982 were carried out on the last day allowed by the Act in each case and allowance were made for the mandatory 10 days under section 139 of the Act before the hearing of the petition; then the trial court must dispose of the petition on the very day that it was fixed for hearing. This is notwithstanding the number of witnesses the parties wish to call or the complexity of the petition. If the trial court is unable to hear all the evidence to be adduced and give its judgment on the same day, the petition lapses. On the other hand where the result of the election was not known until a day or more after the election day, which had in fact been the case, any prospective election petition in that respect would become statute barred under section 140(2) of the Act before it even gets filed in the court. This, to say the least, is very absurd and indeed defeats the intention of the Constitution and the Electoral Act itself, which is to enable an aggrieved candidate in an election to seek redress in Court. – Uwais, JSC. Unongo v. Aper (1983)
Moreover, it is a cardinal rule of interpretation that a general provision does not diminish the force of a special provision generalia specialbus non deregent. – Uwais, JSC. Unongo v. Aper (1983)
This gives the Registrar power to fix notice of the time and place of trial at least 10 days before the day fixed for the trial. If, therefore, one adds the first 14 days along with the 6 days for entering appearance and filing reply, and 10 days minimum for fixing a day for trial, the number of days added up would be 30 days. It is, therefore, apparent that by the time pleadings are completed the time limitation under section 140(2) of the Electoral Act 1982 quoted above would have been reached and any subsequent action shall be deemed null and void. In other words the provision of section 119(1) of the Electoral Act 1982 which confers jurisdiction to hear and determine such election petition shall have been ousted. – Sowemimo, JSC. Unongo v. Aper (1983)
If, therefore, any portion of any Act enacted by the National Assembly infringes section 33(1) and thereby ousts the jurisdiction of a court of law to hear and determine a matter then there is a breach of section 4(8) of the Constitution of the Federal Republic of Nigeria 1979, and to that extent the provision of section 140(2) of the Electoral Act 1982 which ousts the jurisdiction of a competent High Court to hear and determine election petition in conformity with the provisions of section 33 (1) and section 258 of the Constitution of the Federal Republic of Nigeria is, therefore, unconstitutional. To the extent therefore that it limits the exercise of judicial functions by a competent court of law, it is void. – Sowemimo, JSC. Unongo v. Aper (1983)
One of the powers which has always been recognised as inherent in court has been the right to control their internal proceedings and to so conduct the same that the rights of all suitors before them may be safe-guarded in such a manner that all parties are given ample opportunity to prosecute or defend the cases for or against them without let or hindrance. The old adage that delay of justice is denial of justice has the same force as the maxim that hasty or hurried justice is also a denial of justice. On this account any statute which prescribes time limit within which a trial court must try and determine cases or within which an appeal court must hear and determine appeals is inconsistent with the provisions of sections 4(8) and 6(6)(b) of the Constitution and is therefore void by virtue of section 1(3) of the Constitution. – Bello, JSC. Unongo v. Aper (1983)
In conclusion, I hold that sections 129(3) and 140(2) of the Electoral Act, 1982 constitute fetters and clogs in the exercise of the jurisdiction of an election court and are inconsistent with the provisions of sections 4(8), 6(6)(a) and 237 of the Constitution and are in this respect void. In the same vein, section 132(1) in so far as it provides “and the decision of the Federal Court of Appeal on the appeal shall be given not later than 7 days from the date on which the appeal was filed” and section 132(2) in so far as it enacts: “and the decision of the Supreme Court on the appeal shall be given not later than 7 days from the date on which the appeal was filed” are inconsistent with the appellate jurisdiction of the Federal Court of Appeal and the Supreme Court. Accordingly, the provisions of the two sub-sections which I have put in italics in this paragraph are void. – Bello, JSC. Unongo v. Aper (1983)
One of the powers which has always been recognised as inherent in courts which are protected in their existence, their powers, and jurisdiction by constitutional provisions, has been the right to control the order of business, and to so conduct the same that the rights of all suitors before them may be safeguarded. This power has been recognised as judicial in nature and as being a necessary appendage to a court organised to enforce rights and redress wrongs. The principles of separation of powers prohibits the legislature not only from exercising judicial functions but also from unduly burdening or interfering with the judicial department in its exercise thereof. – Obaseki JSC. Unongo v. Aper (1983)
The court cannot be made or directed to sacrifice justice on the altar of speed. Justice the end result of fair hearing and the length of time a fair hearing takes has to make allowance for the full and free exercise of the right of the parties to present their cases through their witnesses and counsel, and the obligation of the judges to give full and effective consideration to the evidence led and the addresses of counsel, if any, in their decisions. Any law that deprives the courts of their power and right to do justice to all who seek justice in the courts is unconstitutional and void. – Obaseki JSC. Unongo v. Aper (1983)
Under the principle of separation of powers enshrined in our Constitution, the three organs of government are independent, equal and co-ordinate. No department is controlled by the other although each acts as a check on the other. The powers granted to the Judiciary under the Constitution are extensive and section 6 of the Constitution taken together with other provisions of the Constitution are designed to ensure an independent judiciary equipped and ready to act as a protection to the individual against arbitrariness whether from the executive or legislative branches of government. That is clearly the intention of the framers of the Constitution. There is therefore no express provisions in the Constitution entitling the legislative branch of government to interfere with or dictate to the judiciary the manner in which the judicial function must be performed. – Obaseki JSC. Unongo v. Aper (1983)