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ELECTION PETITIONS AND APPEAL COURT

By NBF News
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Before the amendments, election cases and appeals took several years before conclusion. In most cases, the respondents (mostly the incumbents) would almost serve out their tenures when final judgements were delivered, as witnessed in Ekiti, Anambra, Osun and other states. In the amendments, the legislators in their wisdom introduced Section 285(6) and (7) of the 1999 Constitution (as amended). The subsections provides as follows:

(6) 'An election tribunal shall deliver its judgement in writing within 180 days from the date of the filing of the petition'. A similar restriction placed by subsection (7) of Section 285 of the Constitution provides that: 'An appeal from a decision of the election tribunal or court shall be heard and disposed off within 60 days from the date of the delivery of judgment'.

The above provisions of the Constitution is also adopted verbatim by Section 134(2) and (3) of the Electoral Act 2010. An interpretation of the foregoing provisions of the law no doubt assumes on a petition the following meanings:

* An election tribunal has no power whatsoever to sit beyond 180 days from the date of the filing of the petition.

* Appeal Court in an election matter has no jurisdiction to entertain an appeal beyond 60 days from the date of the delivery of judgement of the tribunal appealed against.

Thus, by implication, once an election petition is filed, or an appeal is lodged against the decision of an election tribunal, both the petitioner / appellant, the respondents themselves as well as the tribunal itself would be counting days and dates because the matter should be determined on or before the expiration of the duration prescribed by, Sections 285 (6) and (7) of the Constitution and 134(2) and (3) of the Electoral Act.

One unique factor about these Sections of the law is that they use the word 'shall' which connotes an obligation, compulsory and hence same is mandatory and must be strictly complied with. (See Onochie v Odogwu (2006) 6 NWLR (975)65SC, Ngige v Obi (2006)14NWLR (PT999)1CA, Vibelko (Nig) Limited v NDIC (2006) 12 NWLR (PT994) 280CA.

Another Constitutional provision worthy of note herein is Section 285(8). In the first instance, Section 285(8) of the Constitution only avails the Court of last instance. Thus in governorship appeal, it applies only to the Supreme Court and in the case of the National and State Houses of Assembly at the court of Appeal which is the final terminus.

This provision did not give any further time to an election tribunal since the limitation rule enshrined in Section 285(6) and (7) of the Constitution, and Section 134(2) and (3) of the Electoral Act, requires the delivery of judgment 'in writing' within the stipulated time. A 'judgment in writing' presupposes a written and concluded judgement. Furthermore, a court that gives its decision and adjourns to another date to give reasons for its decision cannot be said to have concluded that matter until such reasons are given.

Therefore, it is submitted that in an election matter where the final court of appeal decides to deliver its decision and fixes another date to give the reasons for that decision, it must perform that task within the stipulated time of 90 days allowed by law.

Now, the question is whether on electoral matters, can the election tribunal or Appeal Court extend the time for its sittings in the interest of justice beyond the time prescribed by law.

The answer is NO because such extension is unconstitutional and illegal in the eye of the law. Besides ignorance, sentiment and emotion are no excuses in law. That is why it behoves on the petitioners and their counsels to get their acts right before filing petitions against election results to make their case watertight and strong. Such acts include having correct witnesses, incontrovertible evidences, and following due processes as enshrined in the law to avert losing out on technicalities. Paragraph 45(1) of Schedule 1 of the Electoral Act empowers the tribunal to extend time for doing any act or taking any proceedings on such terms as the justice of the case may require. This provision, however, did not avail a tribunal which finds itself running out of time as this paragraph is made subject to Section 134 of the Electoral Act which fixes the time limit of the tribunal. Besides, Paragraph 45(1) of Schedule 1 of the Electoral Act is inferior to Section 285 of the Constitution and thus cannot override the Constitutional provision (See Section 1 of the Constitution).

In the same vein, the said paragraph 45 of the First Schedule of the Electoral Act is inferior to Section 134 of the Electoral Act and thus cannot alter, override, supersede or amend it. Besides, it is not a known legal norm that a Court should extend its own lifespan in matters which have been fixed by law neither would an appellate court have such power either to grant such extension to a tribunal.

Therefore, it is obvious that extension of time is not in the contemplation of both Section 285(6) and (7) of the Constitution and Section 134 (2) and (3) of the Electoral Act.

So, it is worrisome and baffling where the Justices of Appeal Court in some states, especially as regard to cases emanating from Anambra tribunals derived the constitutional power to order for retrial of such cases at the tribunals after the constitutional 180 days provided in the Constitution for such have elapsed.

Such decisions are against the Constitution that created the Appeal Court in the first instance. It is obvious in law that every judgment must be based on the provisions of the law and judicial precedents which are lacking in this case.

There is urgent need for proper interpretation of the Section 285 of the Constitution by the Supreme Court, even though it is unambiguous. But it appeared the justices of the Appeal Court have lost their bearing legally.

No matter whatever informed their decision, such decisions for retrial of cases at the tribunals after the stipulated 180 days were illegal; null and void as far the amended 1999 constitution is concerned.

It is obvious that if some petitioners are given one year, they will still not prove their cases beyond reasonable doubt, those with good and watertight petitions could prove their cases within 180 and 60 days at the Tribunal and Court of Appeal respectively.

The actions of the Appeal Court call for concern and investigation before they plunge the judiciary into another round of crisis, especially with the prevailing crisis of confidence in the sector already.

Mr ISIEGBOR OGEBOR, a legal practitioner wrote from Warri, Delta State.