Anthony Ogwugwua Agadah makes a case for the review of the time allowed for election petition.
Section 36(1) of the 1999 Constitution of Nigeria, ('The Constitution'), provides for the right to fair hearing and stipulates that judges shall hear and determine matters before them 'within a reasonable time" . A component of this legal norm as established in the famous English case of R V. Sussex Justices, ex parte McCarthy ( 1924) 1KB,254. is the principle that judges owe an obligation to ensure that not only must justice be done, but must be seen to have been done in all cases.
The case of Senator Adeleke V. Gov Oyetola, (2019) is a typical example of the negative effect of the current legal regime on timeline for election cases in Nigeria. While affirming the majority decision of the Court of Appeal which had set aside the judgment of the tribunal, the Supreme Court observed that since the tribunal's judgment was nullified on the ground that Justice Obiora who read the lead judgment did not sit on a particular day when some witnesses testified, the case ought to have been remitted for re-trial . But the Court would not order a re-trial of the matter as it was bound by S. 285(6) and (7) of the Constitution as amended by S. 29 of the Constitution of the Federal Republic of Nigeria ( First Alteration Act, No 1) of 2010 and S. 9 of the Constitution of the Federal Republic of Nigeria, ( Second Alteration Act. No 2, of 2010), which limit the period of election cases at tribunals to 180 days and at the Appeal Court to 60 days. This same provision is reproduced ipsissima verba by S. 134(2) of the Electoral Act 2010 ( as Amended). The issue also played out before the Court of Appeal in Mr. Bayo Adelabu Vs. Gov. Seyi Makinde of Oyo State, (2019). See also APC Vs. Umar & Ors ( 2019)8NWLR (PT 1675), 564.).
The scenario created by the Supreme Court judgment which sacked Hon Emeka Ihedioha as the Governor of Imo State and installed Mr. Hope Uzodinma as the duly elected governor of Imo State has raised yet another dust as to the desirability of the election time limit rule in the present democratic dispensation.
The question which has arisen relate to whether the Supreme Court will ignore the time limit rule to entertain the application of Hon. Ihedioha to review its judgment or stick to status quo which invariably means retaining a judgment that has been discovered by legal pundits as a miscarriage of justice.
Legal Regime on Time Limitations in Election Petitions
Section 285(5) of the Constitution stipulates that every election petition shall be filed within 21 days after the date of the declaration of result of the election. By subsection (6) of S. 285, the tribunal is bound to deliver its judgment in writing within 180 days from the date of the filing of the petition, while by subsection (7) of same section, an appeal arising therefrom shall be concluded within 60 days of the delivery of the judgment of the tribunal or court of appeal. Similar provisions on time limit for pre -election cases are enshrined under S. 285(8), (11), (12), (14) of the 1999 Constitution as amended by the 4th Alteration Act, 2017.
One striking fact about S. 285(7) of the Constitution is that the 60 days time limit commences from the date of judgment. The draftsman of this Section did not take cognizance of :
a) The difficulties legal practitioners encounter in obtaining certified true copies of judgments in our courts.
b). The time expended in the preparation and filing of the Notice of Appeal and the compilation of record of appeal .
Furthermore, it is also observed that S.285 which placed a time limitation on election cases did not take into account the need for an extension of this time in deserving circumstances. Ordinarily, the law is that where an appellate Court makes a finding that the lower court was not properly constituted like in Adeleke's case, the order to be made is not that of dismissal of the case but a retrial before another panel . ( See Ngige Vs. Obi ( No 1) (2012) 1NWLR (PT 1280) 40 C.A. However, under the regime of S. 285 of the 1999 Constitution, no provision exists for retrial in such circumstance.
Section 285(6) & (7) - As A Constitutional Injustice
By S. 36 of the Constitution, litigants are granted the right of fair hearing within a reasonable time. There is no definition of 'a reasonable time' under the Constitution.
Commenting on the phrase, the US.Legal.com states that :
Reasonable time refers to the amount of time that is fairly required to do whatever is required to be done, conveniently under the permitted circumstances .
We submit that S.285(6), (7) and (8) of the Constitution by its own provision has afforded ample ground upon which to question the reasonableness of the time provided for election cases. By S. 131 of the Evidence Act, the onus of proof lies on a Claimant in an action and under S. 35 of the Act , where a crime is alleged in an election matter, the standard of proof required is beyond reasonable doubt. ( See Nwobodo V. Onoh ( 1984), 1SCNLR1 ) A petitioner who was genuinely robbed of an electoral victory is faced with multiple challenges ranging from the burden of strict proof and a limited time frame to discharge the burden. To this end, we submit that S. 285(6),(7) and (8) of the Constitution is in conflict with Section 36 of the Constitution. The supreme Court had followed this reasoning in Kadiya V Lar ( 1983)N.S.C.C.591 and Unongo V Aku (1983) . )N.S.C.C.563, where it relied on S. 33(1) of the 1979 which is in pari material with S. 36(1) of the Constitution earlier cited to declare Ss. 129(3) and 140(2) of the Electoral Act (which stipulated seven days time limit) as unconstitutional and void as they conflict with to S. 33(1) of the Constitution.
It is submitted that that S. 285(6) and (7) of the Constitution contradicts S. 36 of the Constitution and the basic rule of natural justice in so far as litigants are not given fair trial. Where cases are terminated without genuine trial in deference to the time limit rule, it only leads to injustice from the very Constitution which was promulgated to propagate justice in the land.
Election Time Rule-A Recipe for Electoral Malpractice
One of the factors that has aided rigging in elections in Nigeria is the fact of the difficulty in proving electoral malpractices at the tribunals. The onus of proof is laid on the Petitioner with limited time. Due to the such time constraint, the tribunals in practice allot time to parties at trial . Must applications like recounting of votes and amendments are not granted. The implication is that only about 10% of total cases filed before tribunals are won by Petitioners in election matters while about 90% are lost on technical grounds. The effect of this scenario is that elections are made a do or die affair in Nigeria. Every candidate to an election has formed the mentality of scheming one form of rigging device or the other just to win election since he knows that once a candidate is declared a winner, it is difficult to upturn the victory at the tribunal.
It is opined that the only remedy to the current flaw in our electoral system is an amendment to S. 285 of the Constitution and similar sections of the Electoral Act dealing on election time limit . Such an amendment should give the tribunal or the appellate Court the powers to extend the period beyond the stipulated time either suo moto or by application of either of the parties to the action supported by cogent reasons for the such application. We believe that if this provision had existed, most petitioners would have been given another opportunity for a fair hearing.
It is submitted that the judiciary in Nigeria has a great role to play in curing the injustice created by the Constitutional provisions under review vide the process of judicial activism. The Judiciary must continue to play vital role as a social activist in the Nigerian political terrain in a bid to develop our nascent democracy . Late Chief Justice J.s Verma of India defined judicial activism as the active process of implementation of the rule of law essential for the preservation of a functional democracy. It is also described as the ' philosophy of judicial decision -making whereby judges allow their personal views about public policy among other factors, to guide their decisions. (Blacks' Law Dictionary)
In the United States of America, judicial activism dates back to the famous case of Marbury Vs. Madison 5US( 1Cranch)137 ( 1803). In Nigeria, it was displayed in Adegbenro Vs. Akintola (1963)All NLR 305, Lakanmi Vs. A.G Western Nig (1970) NSCC 143.
It is the humble submission of this writer that recourse to judiciary activism remains the only means by which our judiciary will cure the current absurd situation created by the election time limit rule.
Agadah is a legal practitioner with Ladi Ajose-Adeogun and Co at Victoria Island, Lagos