Time Limitation in Election Matters and The Question of  Justice 

 Section 36(1) of the 1999 Constitution of Nigeria,  (‘The Constitution’),  provides  for the right to fair hearing  and stipulates  that judges shall hear and determine matters  before them   ‘within a reasonable time” .   A component of this legal norm  as established in the famous English case of  R V. Sussex Justices, ex parte  McCarthy ( 1924) 1KB,254.  is the principle that judges owe an  obligation to ensure that  not only  must  justice  be  done, but  must   be seen to have been done in all cases.

The  case of  Senator Adeleke V. Gov Oyetola, (2019) is a typical example of  the negative effect  of the  current  legal regime on timeline  for  election cases in Nigeria. While affirming the majority decision of the Court of Appeal which had set aside the judgment of the tribunal,  the  Supreme Court observed that since the  tribunal’s judgment was nullified on the ground that Justice Obiora who read the lead judgment did not sit  on a particular day when some witnesses testified, the case  ought to have been remitted for re-trial . But  the Court would not  order a re-trial  of  the matter as it was   bound by  S. 285(6) and  (7) of the Constitution as amended by S. 29 of the Constitution of the Federal Republic of Nigeria ( First Alteration Act, No 1) of 2010  and  S. 9 of the Constitution of the Federal Republic of Nigeria, ( Second Alteration Act. No 2, of 2010), which limit the period of election cases at tribunals to 180 days and at the Appeal Court to 60 days.  This same provision is  reproduced ipsissima verba  by S. 134(2) of the Electoral Act 2010 ( as Amended).  The issue also played out before the Court of Appeal in   Mr. Bayo Adelabu Vs.  Gov. Seyi Makinde of Oyo State, (2019).  See also APC Vs. Umar & Ors ( 2019)8NWLR (PT 1675), 564.).

The  scenario created by the Supreme Court judgment which sacked Hon Emeka Ihedioha as the Governor of Imo State and installed Mr. Hope Uzodinma as the duly elected governor of Imo State has raised yet another dust as  to the desirability of the election time limit rule in the present  democratic dispensation.

The question which has  arisen  relate to whether the Supreme Court will ignore the time limit rule to entertain the application of Hon. Ihedioha to review its judgment or stick to status quo which invariably means retaining a  judgment  that has  been discovered by legal pundits as a miscarriage of justice.

Section 285(5) of the Constitution stipulates that every election petition shall be filed within 21 days after the date of the declaration of result of the election. By  subsection (6)  of S. 285, the tribunal is bound to deliver its judgment in writing within 180 days from the date of the filing of the petition, while by subsection (7) of same section,  an appeal arising therefrom shall be concluded within 60 days of the delivery of the judgment of the tribunal or court of appeal.  Similar provisions on time limit for pre –election cases are enshrined under S. 285(8), (11), (12), (14) of the  1999 Constitution as amended by the 4th Alteration Act, 2017.

One striking fact about S. 285(7) of the Constitution is that the 60 days time limit commences  from the date of judgment.  The draftsman of this Section did not take cognizance of :

a) The difficulties  legal  practitioners encounter  in obtaining certified true copies  of  judgments in our courts.

b). The time expended in the preparation and filing of the Notice of Appeal and the compilation of record of appeal .

Furthermore, it is also observed that S.285  which  placed a time limitation on  election cases did  not take into account the need  for an extension of  this  time in deserving circumstances.  Ordinarily, the law  is that where an  appellate Court  makes a finding that  the lower court was not properly  constituted like in Adeleke’s case,  the order to be made is not that of dismissal of the case but  a retrial before another panel .  ( See Ngige Vs. Obi ( No 1) (2012)  1NWLR (PT 1280) 40 C.A.   However, under the regime of  S. 285 of the 1999 Constitution, no provision exists for retrial in such circumstance.

Section 285(6)  & (7)  – As A  Constitutional Injustice

By S. 36 of the Constitution, litigants are granted the right of fair hearing within a reasonable time.  There is no definition of ‘a reasonable time’  under the Constitution.

 Commenting on the phrase, the US.Legal.com  states that :

Reasonable time refers to the amount of time that is fairly required to do whatever is required to be done, conveniently under the permitted circumstances .

 We submit that S.285(6), (7) and (8) of the Constitution by its   own provision has afforded ample ground  upon which to question the reasonableness of the time provided for election cases.  By S.  131 of the Evidence Act,  the onus of proof  lies on  a  Claimant in an action and under   S. 35 of the Act , where a crime is alleged in  an election matter,  the standard of proof  required is beyond reasonable  doubt.  ( See  Nwobodo V. Onoh ( 1984), 1SCNLR1 )  A   petitioner who was genuinely robbed of an electoral victory  is faced with multiple challenges ranging  from the burden of strict proof   and a   limited time frame  to discharge the burden.   To this end, we submit that S. 285(6),(7) and (8)  of the Constitution is in conflict  with  Section 36 of the Constitution.  The supreme Court had followed this reasoning in  Kadiya V Lar ( 1983)N.S.C.C.591   and Unongo V  Aku (1983) . )N.S.C.C.563,  where it relied on S. 33(1) of the 1979 which is in pari material with S. 36(1) of the  Constitution earlier cited  to declare   Ss. 129(3) and 140(2) of the Electoral Act  (which stipulated seven days time limit) as unconstitutional and void as they  conflict with  to S.  33(1) of the Constitution.

It is submitted that that S. 285(6) and (7) of the Constitution contradicts  S. 36 of the Constitution and the basic rule of natural justice in so far as   litigants are not given  fair trial. Where  cases are terminated without genuine trial in deference to the time limit rule, it only leads to injustice  from the very Constitution which was  promulgated to propagate justice in the land.

 Election Time Rule-A Recipe for Electoral Malpractice 

One of the factors that has aided rigging in elections in Nigeria is the fact of the  difficulty in proving electoral malpractices at the tribunals.  The onus of proof  is laid on the Petitioner with limited time. Due to the such time constraint,  the tribunals in practice  allot time to parties at trial . Must applications like recounting of votes and amendments  are not granted.  The implication is that only about  10% of total  cases filed  before tribunals are won by Petitioners  in election matters while about 90% are lost on technical grounds.    The effect of this scenario  is that elections are made a do or  die affair in Nigeria.  Every candidate to an election has formed the  mentality of  scheming one form of rigging device or the other just to  win election since he  knows that once a candidate is declared  a winner, it is difficult to upturn the victory  at the tribunal.

It is opined  that  the  only remedy to the current flaw  in our electoral system is an amendment to  S. 285  of the Constitution  and similar sections of the Electoral Act dealing on election time limit .  Such an amendment should  give the tribunal  or the appellate Court the powers to extend the period beyond the  stipulated time  either suo moto or by application of  either of the parties  to the action  supported by cogent reasons for the such application.  We believe that if this provision had existed, most petitioners  would have been given another opportunity for a   fair hearing.

It is submitted that the judiciary in Nigeria has a great role to play in curing the injustice created by the Constitutional provisions under review vide  the process of judicial activism.  The Judiciary must continue to play  vital role as a social activist in the Nigerian political terrain in a bid to develop  our nascent democracy . Late Chief Justice J.s Verma of India defined judicial activism as  the active process of implementation of the rule of law essential for the preservation of a functional democracy.  It is also described as  the ‘ philosophy of judicial decision –making whereby judges allow their personal views  about public policy  among other factors, to guide their decisions.    (Blacks’ Law Dictionary)

 In the United States of America,  judicial activism dates back to the  famous case of Marbury Vs. Madison 5US( 1Cranch)137  ( 1803). In Nigeria, it was  displayed  in  Adegbenro Vs. Akintola (1963)All NLR 305, Lakanmi Vs. A.G Western Nig (1970) NSCC 143.

It is the humble submission of this writer that recourse to judiciary activism remains the only means by which our judiciary will cure the current absurd situation created by the election time limit rule.

* Agadah is a legal practitioner with Ladi Ajose-Adeogun and Co at Victoria Island,  Lagos