Meyer and Allen's Three Component Model

This is the most prominent and revolutionary provision that was introduced into the 1999 Constitution⁵⁰even though the amendments took effect in January, 2011. Section 285 (6)⁵¹provides: “An election Tribunal shall deliver its judgment in writing within 180 days from the date of filing of the petition. The Supreme Court exhaustively considered the novelty of this provision and its implication in the locus classicus of ANPP V Goni⁵² and from the pronouncements of the apex court the following very vital attributes are to be noted of the section.

In interpreting this new provision, the Supreme Court made it clear that the provision is of very strict application. That being a constitutional provision no court has the discretion to extend the time provided therein, when the Constitution itself had no provision for extension of time. Neither the Court of Appeal nor indeed the Supreme Court has the power to extend time once the 180days has caught up with a petition at the Election Tribunal before delivery of its judgment.

As earlier noted, the 180days is to be calculated from the date of filing of the petition. It is totally immaterial that the appellate court had ordered a retrial or that the trial was starting de novo. Once the 180 days is up, the petition must end automatically at whatever stage of the proceeding the Tribunal was engaged in.

The petition naturally lapses and the Tribunal is thereby robbed of the jurisdiction to continue to entertain the matter. There can be no extension even for one day.⁵³ In the words of Onnoghen, JSC, ⁵⁴

The above being the law, it follows that an Election Tribunal in an Election petition matter must deliver its decision/judgment/ruling/order in writing within one hundred and eighty (180)days from the date the petition

50 Ibid

51 Ibid

52 [2012] ALL FWLR (pt 625) 1821

53 ANPP V Goni supra

54 Ibid p. 1845, paragraphs A, H and E

156 was filed. It means the judgment cannot be given a day or more or even an

hour after the one hundred and eighty days from the date petition was filed……… it is my considered view that the provision of section 285 (6) is like a statute of limitation which takes away the right of action from a party leaving him with an unenforceable cause of action. The law may be harsh but it is the law and must be obeyed to the latter more so when it is a constitutional provision……. The time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved, that the time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within the time so fixed, it elapses as the court is thereby robbed of the jurisdiction to continue to entertain the matter.

Other recent election petitions that have been victims of section 285 (6) of the Constitution include Udoedeghe v Godswill Akpabio,⁵⁵ Udenwa v Uzodinma,⁵⁶ Shettima v Goni⁵⁷ etc From the above decision of the Supreme Court, it can be seen that not even a remittal from an appellate court nor an order for a trial de novo could be considered exceptional or compelling enough for a shifting of position in respect of the said section 285(6).

A petition filed pursuant to section 285 (6) is now more like a ship without an anchor or a malfunctioned Mac Truck on the highway, which once the key is put in the ignition, the gas pedal throttles itself at full speed with the driver having the only objective to reach the set destination, no matter the extenuating circumstances, nor accidents that may happen on the way. In such a situation, there is no doubt that there are bound to be casualties along the way.

Many limitation statutes make provision for extension of time in exceptional circumstances for example the limitation laws in respect of contract in the various States of the Federation make provision for extension of time under specified circumstance. Even the Constitution too has made provision for exercise of discretion and possibility of extension of time in section 294 (1) of the Constitution which is a limitation law in respect of the 90days stipulation for delivery of judgment by the superior courts of records.

55 (2013) ALL FWLR (pt 673) 1

56 [2013] ALL FWLR (pt 674) 1

57 [2012] ALL FWLR (pt 606)1008

157 Section 294 (5) provides:

The decision of a court shall not be set aside or treated as a nullity solely on the ground of non compliance with the provision of sub section (1) of the section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.⁵⁸

Such provision for extension of time give a human face to a legislation and allow for unforeseen circumstance that are never lacking in the conduct of human affairs. Of greater worry is the fact that the section did not contemplate the process of appeal and the possible outcome of a challenge of the decision of an Election Tribunal at the appellate court which could result in de novo trial.

The Question is: Is section 285(6)⁵⁹ not unconstitutional for rendering electoral appeals impossible or constituting an instrument for miscarriage of Justice? Section 285(6) is in conflict with relevant provisions of the Constitution, giving right of appeal in election petition cases. The section renders the right of appeal practically impossible to be exercised in many instances. To that extent it can be said that section 285 (6) though a constitutional provision, is itself unconstitutional.

The Blacks Law Dictionary⁶⁰ defines unconstitutional as „contrary to or in conflict with a Constitution especially the US Constitution. The Law is unconstitutional because it violates the first amendment free speech guarantee.‟

In otherwise, a law is unconstitutional when it violates any right guaranteed by the Constitution. section 246(1)(b)&(c)⁶¹ gives a right of appeal to any party arising from the decision of an Election Tribunal to the Court of Appeal and where the appeal is in respect of a Governorship elections, the parties have a further right of appeal to the Supreme Court by virtue of section 233 (1) (e) of the 1999 Constitution.⁶²

By virtue of section 285 (7),⁶³ a right of appeal is exercisable and extinguished immediately after 60days of the decision of an election tribunal. This right is not only in respect of a final

58 Constitution

59 ibid

60 Garner op cit p. 1527

61 Ibid

62 as amended

63 CFRN 1999(as amended)

158 decision of the Tribunal but includes all interlocutory appeals arising therefrom. Furthermore, the period of time stipulated in section 285⁶⁴ includes weekends, public holidays and vacation periods. In PDP V CPC, ⁶⁵ both senior counsel in the matter had made strong suggestions urging that Sundays, public holidays and the period of court vacations ought to be exempted from the calculation of time in section 285 of the Constitution. The court however responded to the above suggestion as follows, per Onnoghen JSC:

Would that not defeat the purpose of the provision which is clearly aimed at curtailing the inordinate delays arising from election matters where some learned counsel engaged in delay tactics resulting in long delays in the hearing and conclusion of election matters to the embarrassment, not only of the legal profession in particular, but the nation in general.

If the appeal is in respect of the National or State House of Assembly election, the right of appeal extinguishes at the Court of Appeal. However, if the appeal is in respect of a Governorship election, the parties still have another 60days from the date of delivery of judgment by the Court of Appeal to proceed to the Supreme Court and have the appeal heard and concluded within the said 60days. It is submitted that the said section 285 (6), in trying to arrest a mischief has created another mischief. Perhaps of greater impact than the one it was enacted to address. Section 285 (6) as adumbrated in many decisions of the Supreme Court was enacted to address the unending and embarrassing delays that had been the bane of election petition cases and the appeals arising therefrom.

Section 285 (6) by providing for a period of 180 days within which an Election Tribunal shall deliver judgment in any election petition without envisaging what possibly could happen on an appeal against such decision of the Tribunal has indirectly rendered an appeal on election petition impracticable or a mere academic exercise. It has equally constituted a vehicle or instrument for miscarriage of justice. This is so because when one calculates the different periods stipulated in section 285 (6) and 285 (7), it can be seen that the 180days stipulated for conclusion of an election petition is most unrealistic and practically impossible to attain, given the fact that the appellate court may reverse the decision of the election tribunal and order for a retrial. For example, in an election petition involving a Governorship election, the period of 180days stipulated in the Constitution is tantamount to a period of six months. The period of 60days for appeal to the Court of Appeal and thereafter another 60days to the

64 Ibid

65 [2011] ALL FWLR (pt 603) 1786-1799

159 Supreme Court is altogether a period of four months. Out of this six months allotted for the petition, issues of services (which sometimes may need application for substituted service), entry of appearance, filing of defence, pre-hearing session, etc are likely to consume not less than one month with utmost diligence from all concerned. The period of five (5) months is therefore left for the actual trial, addresses and oral summation of counsel, and finally the writing and delivery of the judgment.

With utmost diligence, the tribunal cannot conclude all the above and still leave a reasonable time for the process of appeal. Yet by section 246 and 233⁶⁶ the Court of Appeal and the Supreme Court have the authority to exercise all the judicial powers of the Federation as vested on them by section 6 (1).⁶⁷ Such powers include the powers to set aside the decisions of the lower courts or tribunal and the power to order retrial or de novo trials pursuant to section 15⁶⁸or section 22⁶⁹ respectively.

The question now is: Of what benefit or effect is a retrial order or trial de novo to the successful appellant after an exhaustive appeal when the Constitution itself has rendered same unenforceable by limitation of time in section 285 (6) without a consideration or contemplation of the possibility of such a retrial being ordered by the appellate court?

A party who proceeds on appeal after judgment of an Election Tribunal under the present circumstance is already embarking on a doomed voyage. Even if the Tribunal should dismiss an election petition on technical ground as was the case concerning many governorship elections sequel to 2011 general elections, with a good number of months left for appeal, an aggrieved party instituting an appeal against such is still embarking on a perilous journey. For by the time he eventually gets the judgment of the Supreme Court in his favour (which most time will be just about the end of the four months for conclusion of the appeals) setting aside the decision of the trial tribunal, the 6months stipulated for consideration and delivery of judgment in the matter would have elapsed. The whole process of appeal is thus rendered academic and of no practical use.⁷⁰

Section 285 (6) has left the Supreme Court with not much room in the consideration of appeals from Appeal courts arising from election tribunal, than affirming the decisions of election tribunals on grounds that with the effluxion of time it would serve no useful purpose

66 Ibid

67 Ibid

68 Court of Appeal Act, 2011

69 Supreme Court Act,2012

70 CPC v INEC supra at p. 651, paragraph 11

160 setting aside the decisions of election tribunals as there would be no jurisdiction in such tribunals to consider a retrial de novo over such petition. In ANPP v Goni,⁷¹ the lead counsel to the appellant, Tayo Oyelibo SAN has argued strenuously that a refusal to order a de novo trial with a fresh 180days, tantamount to making an election tribunal the final court in respect of election petitions. The researcher is inclined to align with the submission of the learned SAN. There is no doubt that the implication of a decision given by a trial tribunal, especially in full trials, on the merits, is that such a decision will stand as final, notwithstanding whatever decision would be arrived at on appeal.

A few examples of where the appellate courts found themselves helpless will suffice. In the ANPP V Goni⁷² case, the Court of Appeal had set aside the decision of the trial tribunal and remitted the matter for a de novo trial but this could not be realised because of the effluxion of the 180 days time limit in section 285 (6). The tribunal‟s decision became final.

In Ikenga V PDP,⁷³ the Court of Appeal also reversed the decision of the trial tribunal but due to effluxion of time the retrial order could not be carried out, in the circumstance the tribunal‟s decision remained as final.

The clear implication of Section 285 (6)⁷⁴ as it presently stands is that it has rendered many appeals on election petition matters impossible, impracticable and unrealizable even though the right of appeal in such matters are provided for in the Constitution. In other words the said provisions of section 285(6) are in conflict with the right of appeal in sections 246 (1) (b)

& (c) and 233 (1) (e).⁷⁵

Where a provision of a statute renders activation of a constitutional provision impossible, such a provision is said to be unconstitutional. In the case of Unogu v Aku & Ors,⁷⁶ the Supreme Court held that the provision of 30days for conducting and completion of election cases provided under sections 129 (3) and 140 (2) of the then Electoral Act⁷⁷was unconstitutional and accordingly knocked same out of the provisions. The provision as it presently stands, no doubt being constitutional provision cannot be knocked out by the Supreme Court because of the supremacy of the Constitution. It can only be knocked out by an amendment of the Constitution by the National Assembly.

71 Supra

72 Supra

73 Ikenga v PDP [2012] ALL FWLR (pt 628) 837

74 CFRN 1999 (as amended)

75 Ibid

76 (1983) 14 NSCC 563

77 1983

161 Furthermore, given the experience encountered in respect of the provision, where appeals that were reversed and remitted could not be continued by the tribunal, it can be validly argued that section 285 (6)⁷⁸ has constituted a vehicle or an instrument for miscarriage of justice. In, Akpan v BOB,⁷⁹ the Supreme Court gave an instance of when a miscarriage of justice is said to occur per Muhammed, JSC:

I think, a miscarriage of justice can only be said to present itself to a court of law when that court, after examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favourable to the appealing party would have been reached in the absence of the error complained of.

Applying the above meaning of miscarriage of justice as given by the apex court, it can then be agreed that a situation where an appellate Court, finds the decision of a trial tribunal erroneous and reverses same or sets same aside, with an order that a retrial be conducted, which retrial could not be carried out (and which possibly could have resulted in a different result from what it earlier was) definitely qualifies to be termed a miscarriage of justice.

However, unless the appellate court assumes the jurisdiction of the trial tribunal and embarks on a fresh evaluation of evidence on appeal, and declares its own independent findings and superimposes its own judgment on that of the Tribunal, the essence of appealing a tribunal‟s judgment is totally defeated once the appellate court decides to remit back a petition for a second trial either by the same panel of tribunal justices or a different panel given the time usually lost in reconstituting.