Dr. Alex Izinyon, SAN

BY the definition section in   Section 494 of ACJA, using the ejusdem generis rule, “the Court” referred in Section 306 are those listed in Section 494 of ACJA.  At the risk of over simplicity, Oxford Dictionary of English defines “the” as denoting one or more people or things already mentioned or assumed to be common knowledge. It is a definite article.

Therefore “the Court” used in Section 306 of ACJA refers to the court mentioned in Section 494 of ACJA, viz the Federal Courts which are the Federal High Court, High Court of the FCT, Magistrates Court and Area Courts manned by legal practitioners in the FCT.

These are court of first instance or trial court and cannot be interpreted to include Court of Appeal or the Supreme Court. After all the express mention of one thing implies the exclusion of other or of the alternative  – “expressio unius est exclusio alterius.”

The power of the Supreme Court as the final court in the judicial hierarchy to order a stay of proceeding especially against the background of an undertaking by prosecution that they will not undermine the substratum of the appeal cannot be said to be illegal by virtue of section 306 of ACJA.

By the simple and elementary doctrine of separation of power flowing from the French Jurist Montesquieu the National Assembly lacks the power under the Constitution to make any laws, to curtail the power of the Court of Appeal or Supreme Court vested under the Constitution.

To argue that section 306 of ACJA oust the Supreme Court to order stay of proceeding is contrary to the separation of powers which has been settled in legion of cases by the Supreme Court.  See A-G ABIA  V.  A-G FEDERATION (2002) 6 NWLR (PT. 763) 264; UGWU  V.  ARARUME (2007) 12 NWLR (1048) 367.

Indeed to interpret Section 306 of ACJA as applicable to the Supreme Court is to render nebbish the inherent power of the Supreme Court.

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It must be noted that not even under the Military gladiators was this countenanced as the Supreme Court ventured to castigate and lampoon legislative judgment as seen in LAKANMI  V.  AG WEST (1971) ALL NLR (PT. 1) 201, though it was described as a banana peel (Prof. Abiola Ojo) as it was rendered nugatory by a subsequent Decree, but the legal bravery of the Supreme Court in the face of the military tyranny was commendable and salutable.

In England, the famous jurist and legendary legal icon Lord Denning, MR in SEAFORD COURT ESTATES LTD V. ASHER (1949) 2 KB 481 opined strongly that decision which a Court or Tribunal will arrive at are not such matter that any parliament however technicality empowered it may be that can completely provide for.

In 1981 the Supreme Court cut down such invasion by the National Assembly which sought to curtail or regulate the powers of the Court in the absence of a Principle Enactment or Act.

This was the case of PAUL UNONGO  V.  APER AKU & ORS. (1981 – 1990) LRECN 1, where it reiterated the doctrine of separation of powers, the independence of the Judiciary and frown at ouster and maintained the Supreme Court has inherent powers to control its internal proceeding pursuant to Section 6(6) of the 1979 Constitution and that the National Assembly lacks the powers to legislate on matter of rule of practice and procedure for election petition in the absence of any principal enactment.

However with the advert and delay in electoral litigation in order to take care of this delay in electoral litigations, the 1999 Constitution was amended spelling out the lifespan for electoral litigations such as 180 days from the date of declaration of result for the tribunal to conclude and deliver Judgment and 60 days from the date of delivering of such judgment on those on appeals within which judgment must be delivered.

See Section 29 of the 1st Alteration and Section 285 of the Constitution. The Supreme Court has no hesitation in giving its legal imprimatur to this Constitutional amendment in the case of ANPP  V. GONI (2012) 2 LRECN  440 the first case to test the validity of the lifespan of electoral litigation.