By Awa Kalu, SAN
Accordingly, section 285(5) of the Constitution provides that ‘An election petition shall be filed within 21 days after the date of the declaration of result of the elections’. Section 285(6) states that ‘An Election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition”.

By virtue of section 285(7), “An appeal from a decision of an Election Tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal or Court of Appeal”.

*Awa Kalu, SAN

The subsection which has prompted the question, that is, whether the Supreme Court has shackled itself, is section 285(8) by which it is provided that ‘The Court in all final appeals from an Election Tribunal or Court may adopt the practice of first giving its decision and reserving the reason therefore to a later date”.

It is necessary to emphasize that the provisions quoted above have come before the Courts in several cases and are some of the subsections that have yielded the now famous allusion to Mount Zion and the Rock of Gilbraltar. It will pay dividends for the discerning to bear in mind that Mount Zion is a place of refuge while the Rock of Gilbraltar is one of the favorite tourist destinations in the world.

It is in the public domain that each of the latter subsections of section 285 has created problems probably not contemplated by those who concluded the amendments to the constitution.

For instance, when the Constitution prescribes 21 days for a person aggrieved by the result of an election to file a petition, it was not within the contemplation of the law makers that a presidential or gubernatorial election petition would require a more generous time line.

The reality of the matter is that a large number of lawyers prefer to appear for the Respondents having regard to the constraints encountered in gathering the evidence that a petitioner would require to initiate proceedings in election petition proceedings.

Thus, while a petitioner in respect of an election to the House of Assembly of a state or even the National Assembly may be at peace with the 21 days, it would be invidious to imagine that any legal practitioner, no matter his legal wizardry, would prepare a fool proof challenge to the result of a presidential election within that period having regard to the fact that the entire country, for such an election is treated as one constituency.

Similarly, with regard to the election to the office of Governor of a State, the entire state concerned is one constituency. When the petition is dutifully filed within the time line, the next obstacle is that the petitioner would be expected to navigate the petition through the procedural and evidential labyrinths of a hearing and then achieve a determination of the matter within 180 days.

You have to bear in mind that the hearing does not begin until pleadings have been closed and the pre-hearing sessions have been concluded with a Report issued by the Tribunal signposting the appropriate steps to be taken to move the matter forward.

Now, some preliminary steps which were weighty enough to warrant an order of re-trial of the petition brought petitioners to their knees when the apex court decided that a petitioner had not more than one hour beyond the 180 days for the hearing and determination of the petition.

Accordingly, if the petition took, say, 179 days to travel through the Tribunal and to the Court of Appeal where an order for a hearing de novo was made, then that would be the end of the road for the petitioner. According to the present state of our jurisprudence, rather than be a place of habitual resort for fun seeking tourists, our constitution, as the judicial equivalent of the famed rock, would be a place for ignominy.

To cap the difficult and invidious path presently trod by petitioner, an appeal arising from any petition must be heard and disposed of within 60 days reckoned from the date on which the judgment appealed from was delivered.

What I have found particularly instructive is the divergence in phraseology between section 285(6) and 285(7) of the constitution. While section 285(6) states that in respect of an election petition at the Tribunal, the Tribunal must hear the petition and deliver its “judgment in writing” within 180 days, section 285(7) directs that an appeal arising from such a judgment must be heard and disposed of within 60 days.

There is nothing said about a judgment in writing. Thus, it may be argued that what section 285(7) contemplates is quite different from the scenario created in section 285(6). The Court of Appeal or Supreme Court if appropriately seized with an election appeal is expected in section 285(8) to give its decision and may reserve its reasons for the decision to a later date.

Having regard to the judgments delivered by the Supreme Court in the appeals arising from governorship elections in Kebbi, Imo and Delta States, the attitude of the Supreme Court is that the Court of Appeal, not being a final court in governorship election appeals, is not competent to give a decision without providing the reasons for that judgment.

Any judgment given within time but with reasons for the judgment given outside the 60 days, is invalid and a nullity and no appeal can be founded on such a judgment. More fundamental is the decision of the Supreme Court in PDP v. Rochas Okorocha in which the Court of Appeal in its decision given on the 6th January, 2012 dismissed the appellant’s appeal but gave its reasons for the decision on the 24th January, 2012 – a period of 13 days outside the 60 days time line provided by the constitution.

The appellant, notwithstanding the fact that the reasons for the judgment had not been given, filed its notice of appeal and took steps to compile the record of appeal and transmit same to the Supreme Court. On the date fixed for the hearing of the appeal, the apex court heard and granted an application filed by the appellant for the purpose of adding additional grounds of appeal to the original grounds and regularizing all other processes before the court.

On a later date, all the counsel to the parties were invited by the court to address it on the effect of the approach of the Court of Appeal in giving its decision within 60 days but giving the reasons for the decision out of time. As would be expected, the submissions of counsel were divergent.

In the end, the Supreme Court by the unanimous judgments of five well respected Justices of the Court decided that the judgment of the Court of Appeal was void and upon striking out the said judgment, then took the extraordinary step of affirming the judgment of the trial Tribunal.

Inevitably, lawyers have pointed out that being an intermediate court, as between an Election Tribunal in a gubernatorial election petition and the Supreme Court, the apex court is bereft of jurisdiction to comment on the judgment of the Tribunal having struck out its judgment.

This is largely because a broken bridge leads to nowhere. The judgment of the Court of Appeal in respect of the Election Petition, is that bridge and once the judgment is struck out as was done in the Imo election appeal, the bridge is ineffective for ferrying the apex court to anywhere near the Tribunal judgment.

Perhaps, it may serve an insightful purpose were a backward glance to be cast on the position of litigants caught by a similar provision of the 1979 Constitution by which a court of law had 90 days, from the date of closing final addresses, to deliver its judgment.

In Ifezue v. Mbadugha & Anor (1984) N.S.C.C vol.15, 314, the Supreme Court by a majority decision, interpreted the provision as mandatory. This led to severe distress across the land. Several decisions were declared null and void and matters which had taken several years to conclude, were commenced de novo.

It is necessary to state that the decision was followed in many other cases including Odi v. Osafile (1985) 1 NWLR (pt.1) 17. It is also necessary to state that Mohammed Bello, JSC, dissented vigorously in both cases and others and his insight into the injustice occasioned to litigants by such a rigid approach to the interpretation of the Constitution led the then Federal Military Government to promulgate the Constitution (suspension and modification) Decree 1985 which moderated the effect of section 285(1) of the then 1979 Constitution.

Later decisions such as S.B.N. Ltd v. S. Ind. O. Corporation (2009) 8 NWLR (pt.1144) 491 and S.P.D.C (Nig.) Ltd. v. Ekwems (2009) 4 NWLR 229 though based on section 294 of the 1999, Constitution (similar to S. 285 of the 1979 Constitution) have held that a judgment decided outside the 90 day limit would not be invalidated unless the person complaining shows that the judgment has occasioned a miscarriage of justice.

Perhaps, some of those who amended the Constitution to enable the Court inflict such incalculable pain on litigants will tow the line taken by the military by the 1985 Decree to ameliorate the noxious and deleterious effects of the obstacles to justice inserted as sections 285(6), (7) and (8) of the Constitution.

It is now time for me to apply a time-worn judicial Cliché which permits me to confirm that I have had the advantage of reading before now the judgments delivered by the noble justices of the Supreme Court in the governorship election appeals arising from Kebbi, Imo and Delta States and rather than ‘agree’, I regret that the judgments appear debilitating to a fair and just consideration of electoral justice.

I would urge. Their Lordships, most respectfully, to take a closer look at the separate but concurring judgment of Hon. Justice Mary Peter-Odili, JSC in the Imo case in which she hinted very loudly that “At the lower court, the 3rd – 11th Respondents, whose action and/or inaction was/were and still are being primarily challenged made some interesting submissions and/or admissions which, ordinarily would have resolved the entire matter in favour of the appellant, had the lower court painstakingly weighed and considered the said submissions qua admissions. In paragraphs 4.18 and 4.19 brief appearing on page
s 1297-1298 of the record, it was submitted, amongst others that: (i) Election in the four Local Governments was canceled by the 3rd-11th Respondents. (ii) Upon cancellation, the Respondents rescheduled supplementary election for 6th May, 2011.

(iii) The said election was cancelled because it was marred by serious incidence (sic) of thuggery and violence. (iv) It was further cancelled as a result of the narrow margin of 4,842 votes against an outstanding number of more than 45,133 registered voters who had not voted.

(v) Pursuant to (iv) supra, 3rd Respondent could not declare the person leading at the election of 26th April, 2011 as the winner’.

What a difference a less constricting interpretation of section 285(8) of the Constitution would have made to the merits of that case. However, we may take consolation from the truism in the dictum of Eso, JSC., as he then was indicating that the Supreme Court is infallible because it is final but not final because it is infallible.