THE SUPREME COURT VERSUS THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (FIRST ALTERATION) – MATTERS ARISING.
As I write, the Supreme Court of Nigeria is delivering its reason for the decision reached on 30th of October, 2019 in the Appeal by Atiku Abubakar & PDP against Muhammadu Buhari & Ors. 64 days after the Appeal was lodged in the Court.
This has raised some questions in my mind which I intend to share briefly in this article, with the hope that it will serve as my own form of citizen protest and total allegiance to the Federal Republic of Nigeria and our supreme law – the Constitution.
I will minimize the use of legal verbiages for the sake of communicating with all Nigerians. Also, this article is for posterity and is written in the best interest of our democracy and the need for our judiciary to be the ultimate fair gatekeepers of this form of government that we have chosen as a nation.
It is important to state, without equivocation, that the Supreme Court is a creation of the Nigerian Constitution with clear duties and responsibilities as the apex Court of the nation. The Court enjoys many dispensations as the final Court, one of which is that its decisions cannot be appealed to any other Court. This is one of the reasons why the decisions of the Supreme Court becomes a binding and enforceable law and therefore, must always be given with the interest of the nation at heart and in a manner that is not unlawful as it must conform with the dictates of the Constitution. Simply put, the Supreme Court is not above the Constitution and its rules cannot subvert or override any Constitutional provision (s).
The history of our Electoral jurisprudence is riddled with cases of delays and unending election petition cases that saw some decisions coming at such a time that the term of office for the election being challenged had either expired or about to. This necessitated further reforms in our electoral laws and in 2010, “Constitution of the Federal Republic of Nigeria (First Alteration) Act, 2010” was passed and soon became part of our Constitution. This alteration effectively addressed the challenges of delayed handling of election petitions when in amending Section 285 of the Constitution, it added subsections 5, 6, 7 and 8 to the existing subsections – see Section 29 of the Constitution of the Federal Republic of Nigeria (First Alteration) Act, 2010.
Now, subsection 7 of the amended section 285 of the 1999 Constitution (First Alteration) 2010 clearly provides thus:
“An appeal from a decision of an election tribunal or court shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal”
And subsection 8 of the same alteration provides thus:
“The Court in all appeals from election tribunals may adopt the practices of first giving its decision and reserving the reasons therefore to a later date.”
Now, we have seen where the Court derived the powers of giving its decision and reserving reasons to a later date. It is a constitutional power giving to the Court. It is important, for clarity, to state that whenever the reference to “Court” is made in an Election Petition, it refers to either the Court of Appeal or the Supreme Court, because these Courts do not sit as Tribunals – they sit pursuant to their Constitutional Jurisdictions on election Matters or as Appellate Courts. So, the reference to “Court” in subsection 7 of section 285 of the Constitution covers both the Court of Appeal and the Supreme Court. That means that, all Election Petition Appeals from a Tribunal to the Court of Appeal must be heard and disposed of within 60 days from the date the Tribunal Judgment was made and same goes for the Supreme Court. If the Court of first instance is the Court of Appeal, as it is for Presidential Election Petitions, then the Supreme Court will be constrained to hear and dispose of any Appeal from the Court of Appeal within 60 days from the date the Court of Appeal delivered its judgment. That was what transpired in the case of Atiku Abubakar & anor. Vs. Muhammadu Buhari & Ors.
In the case of Atiku Abubakar & anor. Vs. Muhammadu Buhari & Ors., the decision of the Court of Appeal was delivered on 11 September, 2019 and a computation of time will effectively make 60 days to elapse on 11 November, 2019, representing the time frame within which the Supreme Court must hear and dispose of the Appeal. However, the Supreme Court opted to keep the case alive up until today, being 15 November, 2019 – four days extra.
Now, my questions are – does the Supreme Court enjoy the liberty of amending, rewriting or adjusting the clear provision of the Constitution? Is the Supreme Court superior to the Nigerian Constitution?
I will try to resolve these questions by making reference to decisions of the Supreme Court on the subject matter and how the Court is to resolve clear Constitutional provisions.
The Supreme Court itself has had occasions to interpret the Constitutional provision limiting the time frame for the determination of cases and in one of the decisions, the Court went further to define a judgment. I will take the liberty of highlighting the decision of the Supreme Court in PDP v. Rochas Okorocha & Ors. (SC.17/2012).
The lead judgment was delivered by the distinguished Hon. Justice Nwali Sylvester Ngwuta, JSC and unequivocally stated thus:
“In the case at hand, the trial Tribunal delivered its judgment on 12/11/2011, the lower Court delivered its judgment on 6/1/2012 but gave its reasons for the judgment on 24/1/2012. The reason given outside the period of 60 days in s.285 (7) of the Constitution has a devastating effect on the judgment delivered within time on 6/1/2012. By the late delivery of the reasons for the judgment, the judgment rendered within time is rendered a nullity as the reasons for the judgment are inseparable from the judgment.”
He further stated thus:
“The defect in the appeal which prevents the Court from exercising its jurisdiction to hear and determine it is the fact that the reasons for the judgment were given outside the period of 60 days in s.285 (7) of the Constitution.”
As if that was not sufficient on this issue, another erudite jurist of the apex Court in that panel – Hon. Justice Olufunlola Oyelola Adekeye, JSC in agreeing with the lead judgment succinctly held thus:
“Though the decision of the court below of 6/1/12 was delivered within time, there were no reasons given for the conclusion. A complete judgment must set out the nature of the action before the court, the issues in controversy, review the cases for the parties, consider the relevant laws raised and applicable, make specific findings of fact and conclusion and give reasons for arriving at the decision. A judgment and the reasons for same go together. There is no valid judgment without reasons for same. Under Section 285 (7) the judgment and the reason must be delivered within 60 days an Appeal is supposed to be heard and disposed of. The reason of the Court of Appeal lapsed by 13 days hence they were given without jurisdiction. Any judgment however well written if given without jurisdiction is no judgment at all. An action or anything done after the expiration of the prescribed period is a nullity. Where the limitation of time is imposed in a constitution or statute unless they make provision for extension of time, the courts cannot extend time. The judgment of the lower court delivered on 6/1/12 and the reasons given on 24/1/12 are both nullified. They are void and without legal effect or consequences. They do not confer any legal right or obligation.”
The above holding did not make any exception for any Court when the learned Jurist said “where the limitation of time is imposed in a constitution or statute unless they make provision for extension of time, the COURTS cannot extend time.” The Supreme Court is not exempted from the provisions of the Constitution and therefore must abide by the requirement to operate within a given time.
On the part of the revered Hon. Justice Mary Ukaego Peter-Odili, JSC, my lord emphasized that the Supreme Court has no right or powers to rewrite the Constitution or amend same thus:
“These are Constitutional provisions which this court is not entitled to rewrite, amend, add to or subtract from. They are what they are and stated in such plain, unambiguous and clear language have to be given effect to however harsh or unsavory the result may be. This is because the legislature has written its intention clearly in print and having not given room to any guess work as to what they really wanted done, compliance to those words is the guiding light”
Interestingly, my lord the present Chief Justice of Nigeria was in the panel that unanimously delivered the apex Court’s judgment on the above mentioned case and, of course, agreed with the lead judgment.
Now, with the above clear interpretation of the provisions of the Constitution limiting the time for the Court, in this case the Supreme Court, to hear and dispose of an Appeal such as the one under review to be within 60 days, under what law or laws is the Supreme Court operating to dispose of this case on 64 days after the judgment of the Court of Appeal? I ask this question, especially in the light of the above decision of the apex Court which correctly held that a decision without reason within the time provided for such is a nullity.
The move by the Supreme Court to give its reasons out of time, for a decision given within time is, as held above, void and without legal effect or consequences and cannot confer any legal right or obligation. To even imagine that the apex Court of the nation will be engaged in frontally attacking the very Constitution that created it, is to realize that our judiciary is greatly challenged. The Supreme Court, being the apex Court of the land, must be seen to be leading by example. The Court must be a compass for all other Courts of the land.
The effect of the reasons that is presently being read 64 days after the cause of the Appeal arose cannot be a judicial exercise, as it undermine the very Constitution of the Federal Republic of Nigeria from which the Court derives its existence and powers and it is an act that will daily undermine our democracy.
Going by the clear provisions of the Constitution on the period within which the Supreme Court is expected to hear and dispose of this appeal, the ongoing sitting is an action in futility. It is sad that we have come to this level of total disregard for laws and values that are established to guarantee a fair dispensation of justice to all.
What hope is there in our judiciary for future political litigants or any other litigant that is up against the government?
Silas Joseph Onu
Abuja – Nigeria
15th November, 2019.
