GRUPO Pretest
8. CONCLUSIONES Y RECOMENDACIONES.
Section 285 (8) provided: „The Court in all final appeals from election tribunal may adopt the practice of first giving its decision and reserving the reasons therefore to a latter date.‟ Due to an initial lack of appreciation of the import of these new provisions, several appeals from Election Petition Tribunals were lost at the Court of Appeal mainly on the grounds that by the time the judgments of the Court of Appeal were delivered, and the reasons given, the 60days stipulated for such delivery by the Constitution had already elapsed.
The novelty of section 285 (8) caused so much confusion at several divisions of the Court of Appeal, as most of the decisions were actually delivered within the 60 days time frame, but reserving the reasons for the decision to later dates which in most instances were given after
89 2010 (as amended)
90 1999 as amended
165 the 60 days stipulation. The Supreme Court itself appreciated the confusion caused by the novelty of this provision when it stated in Abubakar v Nasamu,91per Onnoghen JSC:
It should be noted also that it is an already long time practice of the Supreme Court in the exercise of its jurisdiction, to adopt the practice of giving judgments to a later date. The practice is therefore not novel to the Supreme Court though the same cannot be said of the Court of Appeal.
For the Court of Appeal, it is a novel practice hence, the apparent confusion.
However, in all such instance where the Court of Appeal delivered its judgment without the reasons in support thereof, the Supreme Court held such decision/judgments to be invalid, null and void. That both the decision/judgments together with the reasons for the said judgment must be delivered within the 60 days constitutional provisions, particularly in Gubernatorial Election appeals, since the Court of Appeal in such appeals was just an intermediate court whose decision was no longer final, but appealable.
In an appeal involving the Taraba State Gubernatorial Election in Senator Joel Danlami Ikenga & Ors v People Democratic Party & 4Ors,92 the petitioner, who was the ACN candidate in the 2011 Gubernatorial Electoral in Taraba State, lost to his opponent Pharmacist Danbaba Danfulani Suntai of the PDP; filed an election petition challenging the return of the winners. The tribunal delivering its judgment, within 60days, dismissed the appeal but failed to give its reasons for the judgment the same day. In further appeal to the Supreme Court, the Petitioner/Appellant challenged the jurisdiction or power of the appeal Court to give its judgment and reserve the reasons for a later date when it was not the final court in respect of the Gubernatorial election petition, and not being the Supreme Court of Nigeria. The appellant further sought for an order for a rehearing of the appeal by a different panel of the Court of Appeal.
The Supreme Court allowed the appeal and declared the judgment of the Court of Appeal a nullity on the grounds that judgment delivered without the supporting reasons was no judgment. However the relief for rehearing of the Appeal by a different panel of the Court of Appeal was refused on the grounds that by section 285 (7), the period for hearing of the appeal had already lapsed. In the circumstance, the judgment of the Trial Tribunal was
91 [2012] ALL FWLR (pt 230) 1208 at 1234
92 [2012] ALL FWLR (pt 628) 837
166 affirmed as if it had not been appealed against at all. Per Mohammed JSC who delivered the lead judgment:
This action on the part of the Court of Appeal rendered its judgment a nullity in the absence of the reasons for the judgment resulting in leaving intact the judgment of the trial election petition tribunal delivered on 10th November, 2011 affirming the election and return of the 2nd and 3rd respondents as Governor and Deputy Governor respectively of Taraba State in the election to the office of Governor of Taraba State conducted by the 4th and 6th respondents on 26th April, 2011. In other words, the judgment of the Court of Appeal delivered on 6th January, 2012 without reasons for the judgment is indeed a nullity in the absence of the reasons for the judgment to provide the necessary materials from which the appellant may raise the grounds of appeal challenging the decision of that court in exercising their constitutional right of appeal. This is because the judgment of the court and reasons are inseparable partners in law as it is the judgment and the reasons therefore that constitute a valid judgment of the court. As for the relief of rehearing of the appeal by a different panel of the Court of Appeal sought by the appellants in this court, that relief cannot be granted because the 60days under subsection (7) of section 285 of the Constitution of the Federal Republic of Nigeria, 1999 within which the appellant‟s appeal must be heard and determined had already lapsed, as the judgment of the election petition tribunal giving rise to the appeal was delivered since 10th November, 2011. It will therefore be a futile exercise, in my view, granting that relief.
As earlier stated, many Gubernatorial election petition appeals and even presidential appeals failed at the Supreme Court on account of these novel provisions because of an initial lack of appreciation of the import and application, such other cases include:
167 Congress for Progressive Change v Yuguda.93 This was an appeal by the candidate of the CPC resulting from its challenge of the return and declaration of Malam Ise Yuguda as winner of the governorship election.
Peoples Democratic Party v Congress for Progressive Change.94 This was an appeal arising from the challenge by the CDC and its candidate against the return and declaration of Dr.
Goodluck Ebele Jonathan as the President of the Federal Republic of Nigeria.
Chief Dr. Felix Amadi v Independent National Electoral Commission. 95This was an appeal by the candidate of the African Political System (APS) arising from the Election Petition challenging the return of Chibuike Rotimi Amaechi as Governor of Rivers State in the 2011 April election.
Chief Great Ovedge Ogbaru &Anor v Dr. Emmanuel Uduagha. 96 This was an appeal by the candidate of Democratic People Party (DPP) against the declaration of the PDP candidate, Dr. Uduagha as the Governor Delta State.
PDP v Chief Anayo Rochas Okorocha.97This was an appeal by the PDP challenging the return and declaration of the All Progressive Grand Alliance candidate, Chief Okorocha as winner and Governor of Imo state.
CPC v INEC.98This was an appeal by Congress for Progressive Change against the declaration and return of Pharm. Danbaba Suntai of the PDP as the winner and Governor of Taraba State.
93 [2012] ALL FWLR (pt 651) 1466
94 [2011] ALL FWLR (pt 603) 1786
95 [2012] All FWLR (pt 621) 1415
96 [2012] ALL FWLR (pt 637) 658
97 [2012] ALL FWLR (pt 626) 449
98 (2013) ALL FWLR (PT 685) 605
168 6.14. Why The Court of Appeal is No Longer The Final Court in All Governorship
Election Petition
Before the 2011 amendment of the Constitution, by Section 246 (3),99 decisions of the Court of Appeal on Gubernatorial Elections, from decisions of an Election Tribunal were final. It was not appealable to the Supreme Court. However, that section has been amended. And the provisions of Section 233(1)(e)100 which hitherto did not include Governorship appeals to the Supreme Court has now reflected therein.
Section 233(1)101provides:
1. The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Court of Appeal.
2. An appeal shall lie from decisions of the Court of Appeal to the Supreme court as of right in the following cases…..
(a) decisions on any question……….
i. Whether any person has been validly elected to the office of Governor or Deputy Governor in this Constitution.
ii. Whether the term of office of a Governor or Deputy Governor has ceased.
iii. Whether the office of Governor or Deputy Governor has become vacant.
This new provision is only in respect of Governorship appeals. It does not relate to the National Assembly and House of Assembly appeals. Decision of the Court of Appeal in such matters shall remain final and are not appealable to the Supreme Court. Some petitioners have made the mistake of construing the provision as granting a right of access to the Supreme Court in National Assembly petitions.
99 CFRN 1999 (as amended)
100 Ibid
101 ibid
169 In Okadigbo v Emeka,102 an election petition appeal involving the Anambra North Senatorial Seat was appealed to the Supreme Court. The Supreme Court struck out the appeal on the ground that it had no jurisdiction over such appeals. Per Chukuma –Eneh JSC;103
This means that the lower court is the final court in the appeal arising from the National and State Houses of Assembly Election Tribunal. Therefore this court lacks the jurisdiction to entertain such appeals vis-a-vis election petition from the lower court. It is the final court in such matters whether rightly or wrongly decided.104
The above provisions are by no means exhaustive of the numerous provisions introduced by the newly amended 1999 Constitution. But the abovesaid provisions had become the most pronounced and recurrent provisions relative to electoral matters and relevant to this work.
102 (2012) ALL FWLR (pt 623) 1869
103 Supra p. 1881 paragraph 17
104 U O Udom supra p. 173-181
170 CHAPTER SEVEN
THE JUDICIARY IN THE EVOLUTION OF A CONSTITUTIONAL DEMOCRACY : FOCUS ON NIGERIA
At this point the researcher will examine the nature of the Nigerian legal system. The judiciary does not operate in vacuum, but within the framework of a legal system. The Nigerian legal system in this sense consists of the totality of the laws or legal rules and the legal machinery which obtains within Nigeria as a sovereign and independent African country. As a result of its historical antecedents, Nigeria is classified under the common law system. The implication of this system to the judiciary is that it has imbibed the tradition of stare decisis which enjoins that earlier decisions should be binding authorities for subsequent cases. It is that principle of law that decisions of higher courts are binding on the lower court and also decisions of courts of coordinate jurisdiction are also binding on those courts.1 The courts in which the decision is given may depart from it only in special cases while the courts below it are strictly bound by that decision.
Furthermore, as a prerequisite for the smooth operation of the doctrine of precedent, Nigeria has a well-structured hierarchy of courts as earlier adumbrated, with the Supreme Court of Nigeria being the final court of the land. Moreover, the Nigerian legal process is accusatorial or adversary in nature. Here courts that is, the judges, are advised to be detached from disputants and to maintain a neutral stand as uninterested umpires relying on the arguments from both sides for their final decisions. Under the Nigerian law, an accused is presumed innocent until proven guilty. The prosecution is required to prove his case beyond reasonable doubt. A judge will offer little or no assistance to the prosecution in securing conviction of an accused person. In the candid opinion of the Supreme Court, it is contrary to the expected role of a judge as an impartial umpire and against the spirit of fair hearing, for him to descend into the arena of conflict or act for any of the parties. According to Nnaemeka Agu J.S.C:
There are certain fundamental norms in the system of administration of justice we operate. That system in the adversary system in contradiction to the inquisitorial system …. Basically, it is the role of the judge to hold the balance between the contending parties and to decide the case on the evidence brought by both sides and in accordance with those roles of judges. Under no circumstances must the judge under the system do
1 C Okonkwo, Introduction to Nigerian Law (London: Smith and Maxwell 1950) p. 40
171 anything which can give the impression that he has descended into the
arena as obviously, his sense of justice will be obscured.2