Election Petitions: Supreme Court Faults Constitutional Provisions
SAN FRANCISCO, May 21, (THEWILL) – The Supreme Court on Tuesday faulted Section 285(5)(b) of the Constitution which states that "an election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition."
Expressing frustration at the constitutional provision on election petitions which makes it mandatory for election tribunals to dispose petitions within 180 days, the court noted that many aggrieved politicians had lost their petitions on this technical ground alone.
The apex court therefore maintained that the only way to ensure that litigants' fair hearing was not violated was for the constitution to be amended.
Expressing the frustration of the court was a justice of the Supreme Court, Justice Mahmoud Mohammed, who said on Tuesday, that the apex court had received many complaints against its judgements upholding section 285(5)(b) of the Constitution.
Mohammed explained the helplessness of the Supreme Court in the face of Section 285(5)(b) of the Constitution after throwing out an interlocutory appeal filed by the Action Congress of Nigeria (ACN)'s governorship candidate in Ondo State, Chief Oluwarotimi Akeredolu, SAN.
Akeredolu was challenging the striking out of some paragraphs of his petition against the election of Governor Olusegun Mimiko of Ondo State.
Akeredolu had appealed to the Supreme Court after the election tribunal had struck out some paragraphs of his petition which were found to be defective.
His appeal to the Court of Appeal in Akure allowed his appeal in part, a situation that forced him to file a further appeal at the Supreme Court while Mimiko filed a cross-appeal.
But while the appeal was pending, the 180 days within which the tribunal must deliver its judgment lapsed.
Justice Mohammed said since Akeredolu’s appeal was caught by the provisions of Section 285(5)(b) of the Constitution, it would amount to embarking on an academic exercise to determine the merits of Akeredolu's appeal when the tribunal had already wound up and delivered its final judgment.
Delivering the lead judgment in the appeal, Justice Kumai Akaahs observed that: "It had been 192 days from the day of filing the petition. The tribunal no longer exists, having delivered its final judgment.
"This court can no longer make any order that will be binding on a non-existing tribunal."
The court largely upheld the arguments of Chief Wole Olanipekun, SAN who represented Mimiko.
And reacting to the disappointment of the legal team of Akeredolu at the court’s ruling , Justice Mohammed, who is the most senior justice in the panel, said: "There is a lot of complaints. There is nothing we can do. Unless the constitution is amended. We have delivered many judgments on these issues.
"Please bear with us. It is not our own making. It is extremely difficult to hear interlocutory appeals because of these provisions.
"We don't have legislative power to amend the provisions of the law."
But not many lawyers share Justice Mohammed’s position on the issue as some said the court should blame itself for foisting on itself an interpretation that did not accord with a community reading of several provisions of the constitution.
They maintained that the Supreme Court should not have extended the provisions of section 285 to interlocutory appeal, which is a right of appeal guaranteed by the constitution.
And delivering judgment in a similar appeal which also emanated from the Ondo state governorship election tribunal, Justice Mohammed Dattijo said the court had no jurisdiction to entertain the appeal and the cross appeal. He therefore struck out the appeal.
"Since the tribunal no longer exists, this court has no jurisdiction. This court can not exercise its jurisdiction in vain. To do so is to indulge in academic exercise, " Dattijo said.
According to the court, any order to be made must have been made on or before 9th of May 2013 when the tribunal delivered its judgment.
"Any order made after that day when the 180 days had passed is of no consequent," he added.
In her concurrent judgment, Justice Mary Peter-Odili said there was no live appeal.