GUSUA V ALL PROGRESSIVES CONGRESS

GUSUA V ALL PROGRESSIVES CONGRESS


The Supreme Court 

Holden at Abuja

On Thursday, the 21st day of February, 2019


APPEAL NO: SC.125/2018

CITATION NO:


BEFORE THEIR LORDSHIPS

MARY UKAEGO PETER-ODILI  JSC

CHIMA CENTUS NWEZE  JSC

AMINA ADAMU AUGIE  JSC

EJEMBI EKO  JSC

SIDI DAUDA BAGE  JSC


Between

BELLO BAR’AU GUSAU 

(Appellant)

AND

1.ALL PROGRESSIVES CONGRESS (APC)

2.ALH. SHABA LAFIAGI

(Chairman Gubernatorial Screening Committee, North West Region of All Progressives Congress (APC) for and behalf of the Committee)

3 ALHAJI ABDULAZIZ ABUBAKAR YARI

4 .INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

(Respondents)


PRONOUNCEMENTS

A. PRACTICE AND PROCEDURE

  1. Preliminary Objection– When a Preliminary Objection should be taken in an appeal

“The position of the law is that a Preliminary Objection must be taken first before determining the merit of an Appeal since its purpose is to terminate hearing of an Appeal in limine either partially or totally  S.P.D.C.N. V. Amadi (2011) 14 NWLR (Pt. 1266) 157, Mohammed & Anor V. Olawunmi & Ors (1990) 4 SCN123. In other words, the Court should first consider a Preliminary Objection raised during an Appeal, as a successful Preliminary Objection may have the effect of disposing of the Appeal – FBN V. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt. 1216) 247.” Per Augie JSC

B. STATUTORY INTERPRETATION

  1. Amendment of statute– Effect of an amended provision which affects a substantive law as opposed to that which affects a procedural matter

“The general principle is that if the provision of the amendment is an enactment of substantive law then the operation thereof cannot be retrospective and must be prospective. However, if the amendment is a matter of procedure then in that case its operation is retrospective. Per Augie JSC

  1. Statutory Interpretation– Distinction between a prospective and retrospective law

“A law is said to be “prospective”, as opposed to “retrospective”, when it is applicable only to cases that will arise after its enactment. Whilst a retrospective law is one that is to take effect, in point of time, before it was passed. There is a presumption that the Legislature does not intend what is unjust, so Courts lean against giving certain statutes retrospective operation. They are construed as operating only in cases or on facts, which come into existence after the statutes were passed, unless a retrospective effect is clearly intended  see Afolabi V. Gov., of Oyo State (1985) 2 NWLR (Pt. 9) 74 SC. See also Maxwell on the Interpretation of Statutes, 12th Ed., wherein it is stated as follows – Perhaps no rule of construction is more firmly established than thus  that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to [its] language. If the enactment is expressed in language, which is fairly capable of either interpretation, it ought to be construed as prospective only. The rule has – – two aspects, for it, “involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation that its language renders necessary”.

In Francis Bennion’s Statutory Interpretation 2nd Ed., it is stated thus: The essential idea of legal system is that current law should govern current activities. Elsewhere in this particular work, a particular Act is likened to a floodlight switched on and off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow’s backwards adjustment of it.

Such, we believe, is the nature of law – – The true principle is that lex prospicit non respicit (law looks forward not back). As Willies, I., said retrospective legislation is “contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transaction carried on upon the faith of the then existing law”. Per Augie JSC

  1. Statutory Interpretation– Application of a new law in procedural matters by the Appellate courts after an appeal has been made

“However, in as much as an appellate Court cannot take into account a new law, brought into existence after the Judgment appealed against has been rendered, because the rights of the litigants are determined under the law in force at the date of the Suit; matters of procedure are different, and the law affecting procedure is always retrospective  see Ojokolobo V. Alamu (1987) 3 NWLR (Pt. 61) 377 at 396-397 SC, wherein this Court per Bello, ON., observed as follows on this issue: “it is a cardinal principal of our law that a statute operates prospectively and cannot apply retrospectively unless it is made to do so by clear and express terms or it only affects purely procedural matters and does not affect the rights of the Parties.”

After reviewing some English authorities, he concluded as follows  “decisions seem to me to show that a statute making provisions for “time” within which judicial proceedings can be taken is retrospective. I cannot see any good reason why a statute prescribing the time within which a Court should dispose of proceedings ought not be so construed. The fact that the time limit prescribed by Section 258 is a constitutional provision cannot be a valid reason because we have been applying the ordinary rules of interpretation of statutes in the interpretations of the several provisions of our Constitutions past and present.

In The Ydun (1899) 236, which Bello, CJN., considered in Ojokolobo V. Alamu, the Court held that the Act [Public Authorities Protection Act], which provided that an action for negligence against any public officer must be commenced within 6 months next after an act complained of, was an Act dealing with procedure only and applied retrospectively. Vaughan Williams L. J. stated as follows at page 246 of the Report I also agree that the Act is retrospective, for though, no doubt, the general rule of construction is that “nova constitutio futuris forman imponere debet non praeteritis.” It is pointed out in Moon v. Dirden (1) that rule of construction yields to a sufficiently expressed intention of the Legislature that the enactment shall have a retrospective operation, and there is abundant authority that the presumption against a retrospective construction has no application to enactments which affect only procedure and practice of the Courts.”

He also relied upon the observation of Lord Alverstone, CJ., in The King v. Dharma (1905) 2 K.B 335 at 338, on the issue of “time”, as follows –

“The rule is clearly established that apart from any special circumstances appearing on the face of the statute – – statutes which make alterations in procedure are retrospective. It has been held that a statute shortening time within which proceedings can be taken is retrospective (2) The Ydum – – and it seems to me that it is impossible to give any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective. If the case could have been brought  within the principle that unless the language is clear a statute ought not to be construed so as to create new disabilities or obligations, or impose new duties in respect of transactions which were complete at the time when the Act came into force. Mr. Smith would have been entitled to succeed; but when no new disabilities or obligation has been created by the statute, but it only alters the time within which proceedings may be taken, it may be held to apply to offences completed before the statute was passed. That is the case here. This statute does not alter the character of the offence, or take away any defence which was formerly open to the prisoner. It is a mere matter of procedure, and according to all the authorities it is, therefore, retrospective.”

So, alterations in procedure are retrospective, and more importantly, as far as this Appeal is concerned, statutes shortening or extending time within which proceedings may be taken, is retrospective  see Ojokolobo V. Alamu (supra), decided by a full Panel of seven Justices of this Court, wherein this Court made that point abundantly clear.” Per Augie JSC

 

 

  1. Statutory Interpretation– Exception to the presumption against a retrospective construction

“True, indeed, the presumption against a retrospective construction has no application to enactments which only affect, the procedure and practice of the Courts, per Williams, L. J. in The Ydun (1899) 236,246, approvingly, adopted in Ojokolobo and Ors v Alamu and Anor [1987] 2 NSCC 995, 1006. Recently, this Court, recently, dealt with this issue in Nwora and Ors v. Nwabueze and Ors (Appeal No.SC589/2016, decided on February 15, 2019). According to the Court, [per Nweze, JSC]:

Both in England and in Nigeria, superior Courts have made it, abundantly clear that the applicable law to a cause of action is the law prevailing at the time the cause of action arose notwithstanding that the law had been revoked at the time the action is being tried, Smith v. Callander (1901) AC 297; Re Snowdon Colliery Co, Ltd.(1992) 94 LJ Ch 1305; Governor of Oyo State v. Folayan [1995] 9 SCNJ 50, 64; Mustapha v. Governor of Lagos State [1987] 2 NWLR (pt.58) 539; Aremo II v Adekanye and Ors [2004] 7 SC (pt.11) 28, 37-38;(2004) LPELR -544 (SC); Alao v. Akano [1988] 1 NWLR (pt.71)431; Uwaifo v. Attorney General Bendel State [1982] 7 SC 124.” Per Nweze JSC

  1. Statutory Interpretation– On the rule governing practice and procedure in the court

On the other hand, since there is no vested right in any course of procedure, Costa Rica v. Erlanger (1874) 3 Ch. D 69, the rule governing practice and procedure is the rule in force at the time of trial or the application is heard, unless there is any provision to the contrary, Owata v Anyigor [1993] 2 NWLR (pt. 276) 380,391;G-H;[1993]2 SCNJ1, 10-11; Rossek and Ors v. ACB Ltd and Ors [1993] 10 SCNJ 20; Agbajo v. A.G for the Federation [1986] 2 NWLR (pt. 23) 528; Uwaifo v. AG, of Bendel State [1982].7 SC 124; [1983] 4 NCLR 1; Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping and Transport Agencies Ltd [1987] 1 NWLR (pt.49) 212; Olaniyi v. Aroyehun [1991]5 NWLR (pt.194) 652, 691. Thus, where the procedure is altered, he must proceed according to the altered manner, Attorney-General v. Sillem (1864) 10 H.L.C.704.” Per Nweze JSC

  1. Statutory Interpretation– What determines the rights of parties in litigation on one hand and what governs practice and procedure in litigation

“In all, it is a fundamental principle of our law that rights of parties in an issue in litigation are decided on the basis of the substantive or organic law in force at the time of the act in question. This distinguishes them from adjectival or procedural law where the rule governing practice and procedure is the rule in force at the time of trial or the application is heard, unless there is any provision to the contrary, Lami koro Ojokolobo and Ors. v. Lapade Alamu and Anor [1987] 3 NWLR (pt.61) 377; Kpema v. The State [1986]1 NWLR (pt.17) 396; Obadiara v. Uyigwe [1986] 3 SC 39; Adeyeye v. Ajiboye [1987] 3 NWLR (pt.61) 432, 444.” Per Nweze JSC

 


LEAD JUDGMENT DELIVERED BY AUGIE, J.S.C. 


In his bid to become the first Respondent’s Gubernatorial Candidate for Zamfara State at the 2015 General Elections, the Appellant bought the Expression of Interest Form of the Party for N500, 000. 00 and paid the mandatory sum of N500, 000, 000.00. However, due to a Petition written against him that he was not a Member of the first Respondent, the Appellant was not allowed to participate in the Primary Election.

Whereupon, Appellant took out an Originating Summons at the Federal High Court, which he later amended, with the leave of Court. In the Amended Originating Summons, he presented four Questions, and sought four main and two alternative Reliefs. The Questions are:

  1. Whether it was right or even lawful for the 1st and 2nd Defendants after screening, clearing the Plaintiff to enable him contest the APC Gubernatorial Primaries in Zamfara State, to retrieve the Certificate from him and disqualify him from the said contest on the ground that they received a “complaint” from the party in the State not signed by the Chairman stating thus-

“A complain (sic) received from Party Executive Gusau Local Government that one Bello Bar’au from Galadima Ward that he claim(sic) membership of APC and record shows from his Unit to Local Government Level that he is not a register (sic) member of APC likewise in the State Party Office and also he is not participating in any party activities from Unit to State level”.

1.1. Whether after releasing the Certificate of Clearance or Screening to the Plaintiff by the 2nd Defendant, the later (sic)had not become functus officio with regard to the Zamfara State pre-gubernatorial primary screening of the former by dint of Article 12 of the APC 2014 Gubernatorial Guidelines.

  1. Assuming, without conceding that the committee has the powers to disqualify after issuing certificates of clearance, whether it does not amount to an infringement of the Plaintiff’s right to fair hearing for them to act on an (sic) Petition without first calling on him to respond thereto or even showing same to him before proceeding to disqualify him in violation of his right to fair hearing under Section 36 of the 1999 Constitution (as amended).
  2. Whether it is not right to nullify the said Primaries on grounds of unlawful exclusion of the Plaintiff there-from.
  3. Whether the Plaintiff is not entitled to a refund of the sum paid or expended in the Primaries.

The Appellant prayed the trial Court for the following Reliefs-

  1. A DECLARATION that the seizure/withholding of the certificate of clearance of the Plaintiff by 1st and 2nd Defendants on 2/12/2014 in Kaduna having already issued same to the said Plaintiff on the 30/11/2014 indicating/signifying and or authenticating a successful screening and clearance on the ground that they subsequently received a Petition after the screening is ultra vires their powers, unlawful, unconstitutional, unwarranted, unjustifiable and usurpation of the powers of the Court and, therefore, null and void of no effect whatsoever.
  2. An ORDER compelling the 1st and 2nd Defendants to forthwith return the Plaintiff’s Certificate of Clearance to him.
  3. An ORDER restraining the 3rd Defendant from presenting, parading himself as the gubernatorial candidate of 1st Defendant on the strength of the December 4, State Congress of Zamfara State APC Primary Election on the ground that the exclusion of the Plaintiff who was validly nominated and cleared from contesting the Gubernatorial Primaries after being issued with a certificate of clearance by the same committee nullified the exercise and the result thereof
  4. An ORDER restraining the 1st and 4th Defendants from presenting, accepting, recognizing and or treating the 3rd Defendant as a Gubernatorial Candidate of 1st Defendant for the purpose of the February 2015 general elections or any other election and or to contest for the office of Zamfara State Governor upon or resulting from the said December 4, APC State Congress in Zamfara State or Primary elections.

ALTERNATIVELY:

  1. An ORDER of injunction compelling the 4th Defendant to accept, publish, recognize, declare and certify the Plaintiff as the candidate voted for by the Electorates in the Zamfara State Governorship elections held on 11/4/2015 and Ipso facto the winner of the said election.
  2. An ORDER awarding the Plaintiff the additional sum of N2,000,000.00 which he spent in the Pre-primary campaign for the Governorship election to the office of Governor of Zamfara State in APC.

Apart from the second Respondent, who did not enter appearance or file any processes, and fourth Respondent, who entered appearance, but did not file any processes, the first and third Respondents not only filed their respective Counter-Affidavits to the Originating Summons, the two of them also filed Notices of Preliminary Objection challenging the competency of the Suit on the ground inter alia that the Appellant lacked locus standi to institute same and the Court had no jurisdiction.

In his Judgment delivered on 8/12/2015, the learned trial Judge, Anyadike, J., upheld the said Objections, and concluded as follows –

The reliefs against 1st – 3rd Defendants center on pre-primary election matters and which is entirely the affairs of the 1st Defendant and not justiciable before this Court and as such I lack Jurisdiction to entertain the reliefs sought against the 4th Defendant which is only ancillary. On the above Principal (sic), the Objections of the 1st and 3rd Defendants are hereby sustained. Since the Plaintiff lacks locus standi to approach the Court in the first place, and since the matter is not justiciable coupled with the fact that this Court lacks Jurisdiction to entertain same, the matter ends there and there is no need to look into the merits.

The Appellant appealed, but the Court of Appeal dismissed his Appeal, and in its Judgment delivered on 7/12/2017, it also explained that –

The issue of locus standi is a condition precedent to the determination of a case on merit. Where a Plaintiff has no locus standi to bring a Suit, the Suit becomes incompetent and the Court lacks jurisdiction to entertain it, the only Order to make in the circumstance is that of dismissal – – The Appellant did not participate in the Primaries conducted by the 1st Respondent for the election of a candidate to represent it at the Gubernatorial election for the Governorship of Zamfara State  Having not participated in the Primaries, the Appellant cannot come within the ambit of the provisions of Sections 156 and 87(9) of the Electoral Act. 2011. The lower Court could only be seised of jurisdiction to adjudicate on the Suit filed by the Appellant if he had participated in the Primaries conducted by the 1st Respondent — The decision arrived at by the learned trial Judge is unassailable.

The Appellant has now appealed to this Court with a Notice of Appeal containing three Grounds of Appeal. The Parties filed their respective Briefs of Argument, but the fourth Respondent also raised a Notice of Preliminary Objection “contesting the competence of this Appeal on the ground that the Appeal is statute barred”, in its Brief of Argument.

The position of the law is that a Preliminary Objection must be taken first before determining the merit of an Appeal since its purpose is to terminate hearing of an Appeal in limine either partially or totally  S.P.D.C.N. V. Amadi (2011) 14 NWLR (Pt. 1266) 157, Mohammed & Anor V. Olawunmi & Ors (1990) 4 SCN123. In other words, the Court should first consider a Preliminary Objection raised during an Appeal, as a successful Preliminary Objection may have the effect of disposing of the Appeal – FBN V. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt. 1216) 247.

In this case, the fourth Respondent by its Objection is saying that this Appeal is statute barred as it was filed outside the time prescribed in Section 285(11) of the Constitution, as altered by the 4th Alteration Act No. 21, 2017 that took effect from 17/6/2018 and provides that:

An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the Judgment appealed against.

It pointed out that Appellant filed his Notice of Appeal on 12/1/2018, one month and five days after Court of Appeal delivered its Judgment, and citing Marwa V. Nyako (2012) 6 NWLR (Pt. 1296) 200, wherein this Court held that “the time fixed in the Constitution is like the Rock of Gibraltar, it never shifts”, it urged this Court to dismiss the Appeal.

It also submitted, citing Hassan V. Aliyu (2010) 17 NWLR (Pt. 1223) 547, Salim V. CPC (2013) 6 NWLR (Pt. 1351) 501, Wambai V. Donatus (2015) All FWLR (Pt. 752) 1673, Gwede V. INEC (2014) LPELR- 23763 (SC) and INEC V. Ogbadibo Local Government & Ors (2015) LPELR-24839(SC), that pre-election matters are sui generis and time is of the essence; and that it is trite that where a Party files an appeal out of time, it is considered stale and cannot be resolved by the Court.

The Appellant argued in his Reply Brief that as good as the cases cited are for what they decided, they are not relevant in this Appeal, as Fourth Respondent failed to interrogate the date the 4th Alteration providing the said Section 285(11) of the Constitution became law viz the date the Court below gave Judgment as well as date of filing this Appeal in this Court; and that it also failed to interrogate whether that provision is stated to have a retrospective or retroactive application.

He further argued that the said provision having not been stated to have retrospective application and having become law more than six months after the decision appealed against, will not have any effect on the competency or otherwise of this Appeal as anything to the contrary will be unjust, irrational and even unconscionable on the part of the law makers for a person to suffer a constitutional disability that never existed at the time he filed an appeal, citing Hope Democratic Party V. Peter Obi & 5 Ors. (2012) ALL FWLR (Pt. 612) 1620 at 1634. He also cited Adesanoye V. Adewole (2000) FWLR (Pt. 14) 2387 on the general principles governing the retrospective operation of a statute.

To be clear, the Issue in this Appeal is whether the amendment to Section 285 of the 1999 Constitution by the said 4th Alteration Act, affects substantive law or it affects purely procedural matter because there is a marked difference between them in terms of consequences.

The general principle is that if the provision of the amendment is an enactment of substantive law then the operation thereof cannot be retrospective and must be prospective. However, if the amendment is a matter of procedure then in that case its operation is retrospective.

A law is said to be “prospective”, as opposed to “retrospective”, when it is applicable only to cases that will arise after its enactment. Whilst a retrospective law is one that is to take effect, in point of time, before it was passed. There is a presumption that the Legislature does not intend what is unjust, so Courts lean against giving certain statutes retrospective operation. They are construed as operating only in cases or on facts, which come into existence after the statutes were passed, unless a retrospective effect is clearly intended  see Afolabi V. Gov., of Oyo State (1985) 2 NWLR (Pt. 9) 74 SC. See also Maxwell on the Interpretation of Statutes, 12th Ed., wherein it is stated as follows –

Perhaps no rule of construction is more firmly established than thus  that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to [its] language. If the enactment is expressed in language, which is fairly capable of either interpretation, it ought to be construed as prospective only. The rule has – – two aspects, for it, “involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation that its language renders necessary”.

In Francis Bennion’s Statutory Interpretation 2nd Ed., it is stated thus:

The essential idea of legal system is that current law should govern current activities. Elsewhere in this particular work, a particular Act is likened to a floodlight switched on and off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow’s backwards adjustment of it.

Such, we believe, is the nature of law – – The true principle is that lex prospicit non respicit (law looks forward not back). As Willies, I., said retrospective legislation is “contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transaction carried on upon the faith of the then existing law”.

However, in as much as an appellate Court cannot take into account a new law, brought into existence after the Judgment appealed against has been rendered, because the rights of the litigants are determined under the law in force at the date of the Suit; matters of procedure are different, and the law affecting procedure is always retrospective  see Ojokolobo V. Alamu (1987) 3 NWLR (Pt. 61) 377 at 396-397 SC, wherein this Court per Bello, ON., observed as follows on this issue:

“it is a cardinal principal of our law that a statute operates prospectively and cannot apply retrospectively unless it is made to do so by clear and express terms or it only affects purely procedural matters and does not affect the rights of the Parties.”

After reviewing some English authorities, he concluded as follows

“decisions seem to me to show that a statute making provisions for “time” within which judicial proceedings can be taken is retrospective. I cannot see any good reason why a statute prescribing the time within which a Court should dispose of proceedings ought not be so construed. The fact that the time limit prescribed by Section 258 is a constitutional provision cannot be a valid reason because we have been applying the ordinary rules of interpretation of statutes in the interpretations of the several provisions of our Constitutions past and present.

In The Ydun (1899) 236, which Bello, CJN., considered in Ojokolobo V. Alamu, the Court held that the Act [Public Authorities Protection Act], which provided that an action for negligence against any public officer must be commenced within 6 months next after an act complained of, was an Act dealing with procedure only and applied retrospectively. Vaughan Williams L. J. stated as follows at page 246 of the Report I also agree that the Act is retrospective, for though, no doubt, the general rule of construction is that “nova constitutio futuris forman imponere debet non praeteritis.” It is pointed out in Moon v. Dirden (1) that rule of construction yields to a sufficiently expressed intention of the Legislature that the enactment shall have a retrospective operation, and there is abundant authority that the presumption against a retrospective construction has no application to enactments which affect only procedure and practice of the Courts.”

He also relied upon the observation of Lord Alverstone, CJ., in The King v. Dharma (1905) 2 K.B 335 at 338, on the issue of “time”, as follows –

“The rule is clearly established that apart from any special circumstances appearing on the face of the statute – – statutes which make alterations in procedure are retrospective. It has been held that a statute shortening time within which proceedings can be taken is retrospective (2) The Ydum – – and it seems to me that it is impossible to give any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective. If the case could have been brought  within the principle that unless the language is clear a statute ought not to be construed so as to create new disabilities or obligations, or impose new duties in respect of transactions which were complete at the time when the Act came into force. Mr. Smith would have been entitled to succeed; but when no new disabilities or obligation has been created by the statute, but it only alters the time within which proceedings may be taken, it may be held to apply to offences completed before the statute was passed. That is the case here. This statute does not alter the character of the offence, or take away any defence which was formerly open to the prisoner. It is a mere matter of procedure, and according to all the authorities it is, therefore, retrospective.”

So, alterations in procedure are retrospective, and more importantly, as far as this Appeal is concerned, statutes shortening or extending time within which proceedings may be taken, is retrospective  see Ojokolobo V. Alamu (supra), decided by a full Panel of seven Justices of this Court, wherein this Court made that point abundantly clear.

Applying the rule of stare decicis, and guided by the principle confirmed in Ojokolobo V. Alamu (supra), this Court took a firm stand on the effect of the said 4th Alteration Act and struck out some Appeals relating to pre-elections matters in respect of the 2015 Elections, and these include Appeal No SC.308/2018: Obayemi Toyin V. PDP & Ors, struck out on 18/1/2019, and the following struck out on 23/1/2019:

– SC.1058/2018: Senator Atai Aidoko V. Air Vice Marshall Isaac M. Alfa,

– SC.1018/2018: Hon. Sabo Nakudu & Anor V. Alh. Musa Suleiman & Anor,

– SC.826/2018: Joseph Irimagha V. Randolph I. O. Brown & 2 Ors, and

– SC.1246/2018: Hon. Olujide Adewale Lawrence V. Hon. Sumbo Olugbemi.

As it is, this Appeal must suffer the same fate because the Appellant filed his Notice of Appeal in this Court outside the period of 14 days, prescribed in Section 285 (11) of the Constitution, as altered by the 4th Alteration Act No. 21 of 2017, which makes it a retrospective law.

The Preliminary Objection raised by the fourth Respondent is sustained, and this Appeal, being statute barred, is hereby struck out. The Parties shall bear their respective costs.


PETER-ODILI, J.S.C.

I agree with the judgment just delivered by my learned brother, Amina Adamu Augie JSC and to register the support I have in the reasonings from which the decision came, I shall make some comments.

This is an appeal over the judgment of the Court of Appeal or Lower Court or Court below, Kaduna Division, Coram: Ibrahim Shata Bdliya, O. A. Adefope-Okojie and Amina A. Wambai JJCA affirming the decision of Evelyn Anyadike J delivered on the 8th December, 2015 at the Federal High Court, Kaduna.

The background facts leading to this appeal are well set out in the lead judgment and so I shall not repeat them except for when the occasion warrants a reference to any part thereof.

On the 28th November, 2018 date of hearing, learned counsel for the appellant, Ugo Odoji Esq. adopted the brief of argument filed on 3/45/2018 and in it were crafted two issues for determination which are thus: –

ISSUE 1:

Whether the failure of the Court of Appeal to pronounce on the issues formulated and presented for determination did not amount to denial of fair hearing, more so, when one of the issues challenged the competence of the Notice of Preliminary Objection argued before the Federal High Court, sustained and upon which the appellant’s Originating Summons was dismissed (Ground 1).

ISSUE 2:

Whether the Court of Appeal was right in holding that the appellant was not as aspirant under Section 156 of the Electoral Act, 2010 and consequently denying him locus standi to sue over the wrong done him. (Grounds 2 and 3 argued together).

The appellant also filed a reply brief filed on 26/11/18 and deemed filed on 28/11/18.

Patrick Oganwu Esq., learned counsel for the 1st respondent adopted the brief of argument filed on 8/5/2018 and in it was identified a single issue for determination, viz-

Whether the Court below was right to have held that the appellant lacks the requisite locus standi to maintain the suit and the relief sought therein as canvassed in the appellant’s originating summons.

Learned counsel for the 2nd respondent, Muritala Abdul-Rasheed Esq. adopted the brief of argument filed on 31/5/2018 and in it was raised a sole question which is as follows: –

Whether the appellant has the requisite locus standi to institute this suit having not participated in the primary Election of the 1st respondent.

Learned counsel for 3rd respondent, Muhammad K. Ndanusa Esq. adopted the brief of argument filed on 11/6/18 and deemed filed on the 28/11/18 and in it raised a sole issue as follows: –

Whether the lower Court was right in dismissing the appellant’s appeal on the ground that the appellant has no locus standi to institute the suit before the Lower Court.

For the 4th respondent, learned counsel, Abdul Mohammed Esq. adopted the brief of argument filed on 23/11/18 and deemed filed on 28/11/18 and raised a Preliminary Objection argued in the brief and in the alternative crafted a single issue for determination as follows: –

Whether the cases of PDP v Sylva (2012) 13 NWLR (Pt.1316)85 and Ardo v Nyako (2014) 10 NWLR (Pt.1416) 596 apply to this case, having regard to the appellant’s cause of action and reliefs sought at the trial. (Distilled from the two grounds of Appeal).

It needs no saying that the Preliminary Objection raised and argued by the 4th respondent must first be tackled before anything else as the competence of the appeal is challenged and the follow up is the vires of the Court to proceed.

PRELIMINARY OBJECTION:

The 4th respondent/Objector contends that the objection is premised upon Section 285 (11) of the Constitution of the Federal Republic of Nigeria 1999, (Fourth Alteration, No.21) Act 2017 by which provision the appeal is statute barred being filed outside the time prescribed by the said Constitution.

Learned counsel for the objector submitted that the judgment of the Court of Appeal was delivered on the 7th December 2017 and the Notice of Appeal was filed on 12th January, 2018, one month and 5 days after the said judgment of the Court of Appeal. That it is trite that where a party files an appeal out of time the appeal is stale and cannot be resolved by the Court. He cited Marwa v Nyako (2012) 6 NWLR (Pt.1296) 200; Hassan v Aliyu (2010) 17 NWLR (Pt.1223) 547; Salim v CPC (2013) 6 NWLR (Pt.1351) 501 at 254- 255; Wambai v Donatus (2015) All FWLR (Pt.752) 1673 at 1696; Gwede v INEC (2014) LPELR-23763 SC; INEC v Ogbadibo L. G. & Ors (2015) LPELR-24839 (SC).

That the appeal being statute barred should be dismissed. He cited several judicial authorities.

In response, learned counsel for the appellant submitted that the alteration on which the objector is relying was signed into law on 7th June, 2018 and since the law has no retrospective effect would not affect the present appeal. He cited Hope Democratic Party v Mr. Peter Obi & Ors (2012) ALL FWLR (pt.612) 1620 at 1634,1635, 1637; Adesanoye & Ors v Prince Francis Gbadebo Adewole (2000) FWLR (pt.14) 2387.

That the Objection lacks merit.

This preliminary objection seeking the invocation of a statute of limitation being the 4th Alteration providing Section 285 (11) of CFRN to the effect that by implication this appeal had become statute barred on account thereof.

Section 285 (11) CFRN provides thus: –

“An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.”

That law in the alteration must be cited in con and not outside the facts of facts of a given and the question is whether this case falls in the category so covered by the Alteration. It is true that the decision of the Court below was on the day the 4th Alteration bringing into being Section 285 (11) CFRN was signed into law and so the matter was ongoing since the alteration being procedural is caught up retrospectively and it is no defence to the situation that the action was already in existence before the change was made to the Constitutional provision in Section 285.

The Supreme Court had at various times been called upon to decide similar situations and one that freshly comes to mind is the case of the Hope Democratic Party and Mr. Peter Obi & 5 Ors (2012) All FWLR (Pt.612) 1620 at 1634 Paras. B-E, 1635 Paras. A-B, 1637 Paras. B-C which I shall quote elaborately for full effect thus: –

“The applicable law to an action is the law existing or that existed at the time the cause of action arose and not the law in force when the action was instituted or decision reached. In the instant case, where the law in operation when the petition was filed was the constitution before the amendment, under which the Court of Appeal was the final Court in matters related to governorship elections, the Supreme Court declined jurisdiction in the appeal emanating therefrom. (P.1635, paras. F-G) Per. ONNOGHEN JSC (P.1634,Paras. B-E, P.1635, paras. A-B, P.1637, Paras. B-C).

“It is not in dispute that at the time the election of 6 February 2010 was conducted, both the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999 (before the amendments) were the laws in force and governed the process and proceedings arising therefrom. This is in accord with common sense as a law yet to be in existence cannot have effect on rights and/liabilities existing prior to its creation/commencement. It is the contention of the respondents that the law governing the cause of action at the time the petition was filed, and the appeal determined thereon is Section 246 (3) of the original Constitution of the Federal Republic of Nigeria, 1999. On the other hand, appellant’s position is that following the 2nd amendments to the Constitution of the Federal Republic of Nigeria,1999 which counsel for appellant contends came into effect on 29th November 2011, the applicable law is Section 233(2)(e)(iv) of the Constitution of the Federal Republic of Nigeria, 1999 as amended/altered. It is very clear and I state without fear of contradiction that whereas Section 246 (3) of the original Constitution of the Federal Republic of Nigeria, 1999 (supra) made the Court of Appeal the final Court of Appeal in relation to matters arising from Governorship election petitions, Section 233 (2) (e) (iv) of the Constitution of the Federal Republic of Nigeria, 1999 as amended (supra) grants a right of appeal to an aggrieved party in a governorship election matters to appeal against the decision of the Court of Appeal in relation thereto, which was hitherto the Court of final appeal as clearly provided in Section 246 (3) of the original Constitution of the Federal Republic of Nigeria, 1999 and reproduced earlier in this judgment to the Supreme Court “under this constitution” In this case, it is not in dispute that the cause of action arose from the governorship Election of Anambra State conducted on 6 February 20120 under the Electoral Act, 2006; that the cause of action was ventilated by appellant at the Anambra State Governorship Election Petition Tribunal which rendered its decision thereon on 27 June 2010 resulting in an appeal to the Court of Appeal filed on 14 August 2010 which appeal was dismissed by that Court on 24th February 2011″.

A law yet to be in existence cannot have effect on rights and liabilities existing prior to its creation or commencement. In the instant case, where the law relied on by the petitioner came into force after the cause of action, the Supreme Court held that the law was inapplicable. (P.1634, para. C) Per ONNOGHEN JSC: (pp. 1635-1636, paras H-B, PP.1636, Paras E-A, P. 1637, Paras B-C, E-G).

“The above question having been answered, the next is when did the Constitution of the Federal Republic of Nigeria, 1999, as amended, came into force/operation The answer to that question is the pivot of the resolution of the issue of the relevant law/constitutional provision applicable to the facts and circumstances of this case. Both parties agreed that the Constitution of the Federal Republic of Nigeria, 1999, as amended, was signed by Mr. President on 10 January 2011 which date can be verified from the document in question From the provisions of Section 58 (1) of the Constitution of the Federal Republic of Nigeria, 1999, original and as amended, and the Section 2 (1) of the interpretation Act, Cap.123, Laws of the Federation of Nigeria, 2004 other supra, it is clear and I hereby hold that the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, came into force/effect on 10th January 2011 when Mr. President of the Federal Republic of Nigeria signed same and not on any other date, whether stated on the body of the document or elsewhere as there is no evidence that the president withheld his assent to the bill as envisaged in sub-Section (5) of the said Section 58 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

That apart, to hold that the commencement date of the Constitution of the Federal Republic of Nigeria, 1999, as amended is the 29th November 2010 which is a date prior to the signing of the bill into an Act would be very absurd and contrary to law, particularly the section of the constitution referred to supra and that the interpreted Act.

Secondly, such a holding would mean that the Constitution of the Federal Republic of Nigeria, 1999 is made to apply retrospectively implication which is equally frowned upon by law: Utih v Onoyivwe (1991) 1 NWLR (Pt.166) 166… In this case, it is not in dispute that the cause of action arose from the governorship election of Anambra State conducted on 6th February 2010 under the Electoral Act, 2006; that the cause of action was ventilated by appellant at the Anambra State Governorship Election petition Tribunal which rendered its decision thereon on 27June 2010 resulting in an appeal to the Court of Appeal filed on 14 August 2010 which appeal was dismissed by that Court on 24 February 2011… Applying the principle of law stated supra to the facts of this case, it is clear and I hereby hold that the laws applicable to this case are the Electoral Act, 2006 and the relevant provisions of the constitution of the Federal Republic of Nigeria, 1999 before the amendment being the laws in existence when the cause of action arose in this case. The above being the case, it is my further view that by operation of Section 246 (3) of the original constitution of the Federal Republic of Nigeria 1999, as it existed prior to the amendments in 2011 the Court of Appeal is the final appellate Court on governorship election petition matters, there being no right of appeal in a party aggrieved of its decision to the Supreme Court.”

The case of Peter Obi (supra) above quoted extensively does not operate herein in the light of the change brought about the alteration which is Section 285 (11) and so the objection cannot be discountenanced. Indeed this Court had in SC.307/2018 and SC.308/2018 interpreted the said Section 285 (11) of the Constitution to having retrospective effect with the procedural content in line with the case of Ojokolobo v Alamu (1987) NWLR (Pt.61) 397.

There is no gainsaying that the appeal is now stale having been filed one month and five days after the judgment of the Court of Appeal. This Court cannot donate jurisdiction to itself or competence to an appeal already spent. See Marwa v Nyako (2012) 6 NWLR (1296) 100; Hassan v Aliyu (2010) 17 NWLR (pt.1223) 547; Salim v CPC (2013) 6 NWLR (pt.1351) 501 at 254; INEC v Ogbadibo & Ors (2015) LPELR-24839; Gwede v INEC (2014) LPELR-223763; Wambai v Donatus (2015) All FWLR (Pt.752) 1673 at 1696.

The implication is that the preliminary Objection based on the Alteration to the Constitution with particular reference to Section 285(11) has dealt a death blow to the appeal, which objection having merit is upheld. The appeal is consequently struck out. I abide by the consequential orders as made.


NWEZE, J.S.C.

I had the advantage of reading the draft of the leading judgement which my Lord, Augie, JSC, delivered now. I agree with His Lordship that, being statute-barred, must be struck out.

True, indeed, the presumption against a retrospective construction has no application to enactments which only affect, the procedure and practice of the Courts, per Williams, L. J. in The Ydun (1899) 236,246, approvingly, adopted in Ojokolobo and Ors v Alamu and Anor [1987] 2 NSCC 995, 1006. Recently, this Court, recently, dealt with this issue in Nwora and Ors v. Nwabueze and Ors (Appeal No.SC589/2016, decided on February 15, 2019). According to the Court, [per Nweze, JSC]:

Both in England and in Nigeria, superior Courts have made it, abundantly clear that the applicable law to a cause of action is the law prevailing at the time the cause of action arose notwithstanding that the law had been revoked at the time the action is being tried, Smith v. Callander (1901) AC 297; Re Snowdon Colliery Co, Ltd.(1992) 94 LJ Ch 1305; Governor of Oyo State v. Folayan [1995] 9 SCNJ 50, 64; Mustapha v. Governor of Lagos State [1987] 2 NWLR (pt.58) 539; Aremo II v Adekanye and Ors [2004] 7 SC (pt.11) 28, 37-38;(2004) LPELR -544 (SC); Alao v. Akano [1988] 1 NWLR (pt.71)431; Uwaifo v. Attorney General Bendel State [1982] 7 SC 124.

On the other hand, since there is no vested right in any course of procedure, Costa Rica v. Erlanger (1874) 3 Ch. D 69, the rule governing practice and procedure is the rule in force at the time of trial or the application is heard, unless there is any provision to the contrary, Owata v Anyigor [1993] 2 NWLR (pt. 276) 380,391;G-H;[1993]2 SCNJ1, 10-11; Rossek and Ors v. ACB Ltd and Ors [1993] 10 SCNJ 20; Agbajo v. A.G for the Federation [1986] 2 NWLR (pt. 23) 528; Uwaifo v. AG, of Bendel State [1982].7 SC 124; [1983] 4 NCLR 1; Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping and Transport Agencies Ltd [1987] 1 NWLR (pt.49) 212; Olaniyi v. Aroyehun [1991]5 NWLR (pt.194) 652, 691. Thus, where the procedure is altered, he must proceed according to the altered manner, Attorney-General v. Sillem (1864) 10 H.L.C.704.

In all, it is a fundamental principle of our law that rights of parties in an issue in litigation are decided on the basis of the substantive or organic law in force at the time of the act in question. This distinguishes them from adjectival or procedural law where the rule governing practice and procedure is the rule in force at the time of trial or the application is heard, unless there is any provision to the contrary, Lami koro Ojokolobo and Ors. v. Lapade Alamu and Anor [1987] 3 NWLR (pt.61) 377; Kpema v. The State [1986]1 NWLR (pt.17) 396; Obadiara v. Uyigwe [1986] 3 SC 39; Adeyeye v. Ajiboye [1987] 3 NWLR (pt.61) 432, 444.

My Lords, I adopt my above reasoning as part of my reasoning in this Contribution. It is for these, and the more elaborate, reasons in the leading judgement that I, too, shall enter an order striking out this appeal. Appeal struck out. I abide by the consequential orders in the leading judgement.


EKO, J.S.C.

I had a preview of the judgment just delivered in this appeal by my learned brother, AMINA ADAMU AUGIE, JSC. I agree this appeal is now statute barred, and it is accordingly struck out.

The preliminary objection is sustained. The parties shall bear their respective costs.


BAGE, J.S.C.

I have had the benefit of reading in draft the lead Judgment of my learned brother Amina Adamu Augie, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The Preliminary Objection raised by the 4th Respondent is sustained and the appeal is hereby struck-out.


Appearances:

Ugo Udoji, Esq. with him, Vincent Odje, Esq.

For  Appellant(s)

Patrick E. Oganwu, Esq. with him, U. O. Sule, Esq., Abdulrazak Alfa, Esq. and Hafsa I. Usman, Esq. for the 1st Respondent.

Muntala Abdulrasheed, Esq. with him, B. S. Kpenkpen, Esq. for 2nd Respondent.

Muhammad K. Ndanusa, Esq. for 3rd Respondent.

Abdul Mohammed, Esq. with him, Sanusi Musa, Esq., Shamsuddeen M. Hussaini, Esq. and Abdulssalam Saleh, Esq. for 4th Respondent