Time Limit for Delivery of Judgement in an Election Appeal

In the Supreme Court of Nigeria

Holden at Abuja

On Thursday, the 28th day of September, 2023

Before Their Lordships

Mohammed Lawal Garba

Helen Moronkeji Ogunwumiju

Adamu Jauro

Tijjani Abubakar

Emmanuel Akomaye Agim

Justices, Supreme Court

SC/CV/858/2023

Between

PEOPLES DEMOCRATIC PARTY (PDP)                                        APPELLANT

And

1.  ARC. EZEKIEL NYA-ATOK

2. HON. UDOMAH JAMES UDUAK

3. AFRICAN DEMOCRATIC CONGRESS

4. INDEPENDENT NATIONAL ELECTORAL COMMISSION

5. PASTOR UMO BASSEY ENO

6. BASSEY ALBERT AKPAN

7. YONG PROGRESSIVE PARTY                 RESPONDENTS

8. AKAN UDOFIA

9. ALL PROGRESSIVES CONGRESS

10. SENATOR JOHN JAMES AKPANUDOEHEHE

11. NEW NIGERIA PEOPLES PARTY

12. UDUAK UDOH

13. LABOUR PARTY

(Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC)

Facts

The Appellant filed an appeal against the decision of the Court of Appeal, Abuja Judicial Division delivered on 18th August, 2023 in Appeal No. CA/C/EP/GOV/AK/02/2023. The crux of the appeal was related to the outcome of the gubernatorial election in Akwa Ibom State, which took place on 18th March, 2023. Being dissatisfied with the outcome of the election, the 1st – 3rd Respondent filed a Petition at the Akwa Ibom Governorship Election Tribunal. On 12th June, 2023, the Akwa Ibom State Governorship Election Tribunal dismissed the 1st – 3rd Respondent’s Petition on the ground that the Petition was incompetent, for the failure of the 1st – 3rd Respondent to pay adequate security for costs and other requisite fees at the time they filed the Petition as required under the Electoral Act 2022 and the Election Judicial Proceedings Practice Direction 2023. Dissatisfied with the decision of the Election Tribunal, the 1st – 3rd Respondent appealed to the Court of Appeal. In its judgement delivered on 18th August, 2023, the Court of Appeal set aside the decision of the Akwa Ibom Election Tribunal. Aggrieved, the Appellant filed an appeal before the Supreme Court.

Part of the Appellant’s grouse with the decision was that the appeal at the Court of Appeal was determined outside the 60 days prescribed by Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the “Constitution”). The Appellant also complained that the Court of Appeal’s decision to set aside the decision of the Tribunal, was based on a wrong interpretation of the applicable provisions of the Electoral Act 2022 and the Election Judicial Proceedings Practice Direction 2023

In line with the Rules of the Court, respective Counsel for the parties filed and exchanged their briefs of argument in which they canvassed arguments in support of their respective positions

Issue for Determination

In its determination of the appeal, the Court considered the following issue submitted by the Appellant for determination to wit:

Whether having regard to provisions of Section 285(7) of the Constitution, the judgement of the lower court is a nullity, having been delivered more than sixty (60) days from the date of delivery of judgement of the Tribunal.

Arguments

At the hearing of the appeal, the Apex Court, in light of the issue raised by the Appellant which bordered on the timeframe for delivery of judgement, inquired from the Counsel for the 1st – 3rd Respondent whether, in fact, the said judgement delivered by the Court of Appeal was outside or after the expiration of the period of time prescribed by the provisions of Section 285(7) of the Constitution.

In reaction, counsel for the 1st – 3rd Respondent confirmed to the Apex Court that the judgement delivered by the Court of Appeal was indeed, delivered eight days outside the statutory sixty (60) days prescribed by the Constitution. Counsel for the 1st – 3rd Respondent did not join issues on this point, and stated further that he was aware of the consequence of the violation or breach of Section 285(7) of the Constitution. 

Counsel for the 4th Respondent as well as Counsel for the 5th Respondent leading the respective Counsel for the other Respondents, all confirmed that the judgement of the lower court was delivered outside the timeframe prescribed by the Constitution and conceded to the appeal.

On his part, Counsel for the Appellant argued that the judgement of the Court of Appeal was invalid in law, for having been delivered outside the statutory 60-day period allowed under Section 285(7) of the Constitution. Counsel urged the Apex Court to set aside the judgement of the Court of Appeal delivered on 18th August, 2023.

Court’s Judgement and Rationale

In determining the appeal, the Supreme Court considered the clear provisions of Section 285(7) of the 1999 Constitution which prescribes as follows:

“285 (7) An appeal from a decision of an election matter shall be heard and disposed of within 60 days from the date of the delivery of the Judgement of the Tribunal or the Court of Appeal.”

The Court held that the above-mentioned Section 285(7) of the 1999 Constitution has been interpreted and applied by the Court in several decisions, and reasoned that the position of the law on the consequence of non-compliance with Section 285(7) of the 1999 Constitution was common knowledge. The Apex Court held that Section 285(7) of the 1999 Constitution is couched in mandatory terms as a limitation of time provision, the breach of which renders a decision delivered outside the stipulated period of time invalid, null and void on the ground of lack of the requisite jurisdiction of the court to deliver judgement after the expiration of the period prescribed therein.  The Court held that the Tribunal delivered its decision on 12th June, 2023 and the 60 days earmarked by the Constitution elapsed on 10th August, 2023; however, the Court of Appeal delivered its judgement on 18th August, 2023, well outside the 60 days earmarked by the Constitution. The Court referred to its decision in PDP v Okorocha (2012) 15 NWLR (Pt. 1323) 205 in holding that any judgement which fails to comply with the 60 days stipulated in Section 287(5) of the 1999 Constitution as amended within which to hear and dispose of an appeal matter is not a valid judgement however well written, and the absence of jurisdiction is irreparable in law. The Court held that the decision of the Court of Appeal on 18th August 2023 was a nullity, having been delivered without jurisdiction and in gross violation of the provisions of Section 287(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Apex Court thus set aside the judgment of the Court of Appeal.

Appeal Allowed. 

Representation

Mofesomo Tayo Oyetibo, Esq. and Victor O. Atang Esq. for the Appellant.

Aliyu A. Agene, Esq., G. Ojike, Esq. for the 1st – 3rd Respondent.

Abdul Mohammed, SAN, Olanrewaju Akinsola, Esq. and A. G. Bello, Esq. for the 4th Respondent.

Uwemedimo Nwoko, SAN, Ime Edem-Nse, Esq. and Ikechukwu Duru, Esq. for the 5th Respondent.

T. Falola, Esq. with K. B. Mohammed, Esq. and H. Obile, Esq. for the 6th Respondent.

C. N. Nwigwe with I. S. Utuk for the 7th Respondent.

Aderemi Oguntoye with B. B. Lawal and S. O. Ladipo for the 10th  and 11th Respondent.

Mohammed Adelodu Esq. with E. Egbewole Esq. for the 8th and 9th Respondent.

O. Salami with C. Ademulegun, Esq. for the 12th and 13th Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)