The supreme court’s decision in Zailani v Gumau & 2 ORS: Does time run or fly in the pre-election matter?
CASE REVIEW
By Bizibrains Okpeh*
Abstract
In the exercise of its interpretative jurisdiction in Zailani v Gumau, the Supreme Court dismissed the Appellant’s appeal, having reckoned with the day the cause of action arose in computing time in order to ascertain the liveliness of the Appellant’s action. This was against prior and subsequent decisions of the Supreme Court. This review centres on the interpretation of the word “from” for the purpose of determining whether or not a pre-election matter is statute-barred as per the provision of Section 285 Subsection 9 of the Constitution of the Federal Republic of Nigeria, 1999 as amended by the Fourth Alteration Act, No.21 of 2018 (“the Constitution”) vis-à-vis the provisions of extant statutes such as the Interpretation Act Cap I7 Laws of the Federation of Nigeria, 2004 (“the Act”) and precedents. It recommends the need for consistency of Supreme Court decisions. When the court strikes its gavel on the bench of justice, it should not be perceived to sound hot and echo coldly at the same time.
1. Introduction
There is no gainsaying that the Supreme Court is the final court under the Nigerian legal system.[1] But the Supreme Court is not final because it is infallible. On the contrary, it is infallible because it is final.[2] In the exercise of its adjudicatory and interpretative powers under the Constitution[3] and respecting pre-election matters, the Supreme Court has rendered various decisions, some of which, with respect, seems to be “inconsistent” with established precedents of the same court and extant legislation. This is true of the Supreme Court’s decision in Zailani v Gumau.[4]
This is not to say that the Supreme Court does not have the vires to depart from its previous decision, especially where the decision is given per incuriam,[5] or guided by the canons of interpretation,[6] especially the purposive rule,[7] employ such interpretation or construction of the law as would ensure substantial justice between the parties before it.[8] In fact, the Supreme Court, being the final court in the land, cannot revisit its decision once delivered, except under very special circumstances such as if the previous decision is proved wrong, if the previous decision is given per incuriam, and if the previous decision is proved to be perpetuating injustice.[9]
This notwithstanding, when the dice fall on the interpretation of the word “from” in Section 285 Subsection 9 of the Constitution for the purpose of ascertaining whether or not a pre-election matter is statute-barred, the numbers appear to show that the Supreme Court continues to struggle whether to include or exclude the day the cause of action arose. This writer is not ignorant of the fact that election, a fortiori, pre-election matters are sui generis[10] and electoral law requires absolute compliance therewith, especially with respect to the time of taking certain steps under the law.[11] However, while there must be compliance with the time of taking certain steps under any law, more so, electoral law, it is the inclusion or failure to exclude the day the cause of action arose, as in Zailani’s case, that has given rise to so many “inconsistencies” and injustices.
It is, therefore, respectfully submitted that once the two variables, that is, the day when the cause of action arose and the day when the action is filed, which are issues of fact as per the parties’ pleadings and/or affidavits, are determined or ascertained, there should then be some measure of certainty as to the mode of interpreting or arriving at whether or not the action is within or without the limitation time as prescribed by the Constitution. This is (or should be) largely, if not conclusively, amenable to a uniform or universal formulation or construction.
2. Brief Facts of the Case
In Zailani v Gumau & 2 Ors,[12] the Appellant, as plaintiff at the Federal High Court Abuja, hereinafter referred to as the trial court, commenced suit No. FHC/ABJ/CS/1257/2018 on the 31st day of October 2018 against the Respondents, being the defendants, seeking upon the determination of certain questions, the following relief, inter alia,
“(1) A declaration that the decision of the 2nd defendants appeal committee sitting in Abuja and made on the 17th October 2018, upon plaintiffs appeal against the illegal conduct of the Bauchi South Senatorial District primary elections by which the appeal committee upheld the plaintiffs’ prayer for nullification of the selection of the 1st defendant as the candidate of the 2nd defendant for the Bauchi South Senatorial District general elections but returned the plaintiff as the winner of the election is binding on all persons, authorities, organs and bodies of the 2nd defendant party.
(3) An order directing to forward the name of the plaintiff to the 3rd defendant as its Senatorial Candidate for the Bauchi South Senatorial District and directing the 3rd defendant to accept the name as APC Senatorial Candidate for the 2019 general elections.”[13]
The Appellant, having sought and obtained the trial court’s leave, served the 1st Respondent the originating and other processes by substituted means, to wit, through the Clark of the National Assembly at the Three Arms Zone, National Assembly Complex Abuja. The Appellant’s case is that as a card-carrying member, he contested the 2nd Respondent’s (All Progressive Congress – APC) Bauchi South Senatorial primary election held on the 3rd October 2018. He had complied with all the necessary requirements. While leading with 157,000 votes and with only the result of one Local Government Area to be declared, the 1st Respondent was returned the winner of the primary election by the 2nd Respondent.
Aggrieved, the Appellant in a petition dated 4th October 2018 urged the 2nd Respondent’s appeal committee to declare him the winner of the primary election. Despite the committee’s decision on the 17th October 2018 returning him as the winner of the primary election, the Appellant further asserted that the 2nd Respondent failed to forward his name as its flag bearer in the forthcoming Senatorial election to the 3rd Respondent (Independent National Electoral Commission – INEC).
The trial court, Nyako, J. presiding, on the 12th February 2019 entered judgment for the Appellant. Dissatisfied with the trial court’s decision, the 1st Respondent appealed. The 1st Respondent’s appeal to the Court of Appeal was upheld in the court’s judgment delivered on 12 April 2019. The Court of Appeal found to the effect that;
“No matter how brilliantly coined the claim and reliefs sought by the 1st respondent (that is, plaintiff/appellant), the cause of action in this matter arose on the 3rd October 2018, the day the primary election was held. This suit was filed on the 31st October, 2018. As at the institution of this appeal, [sic: suit] the 14 days within which to file the action had lapsed. This appeal [sic: suit] is statute-barred and this court lacks the jurisdiction to entertain it, having not been filed within the 14 days prescribed period. It is accordingly struck out.”[14]
Dissatisfied with the decision of the Court of Appeal, the Appellant appealed to the Supreme Court. One of the issues for determination was “1. Whether the appellant’s suit at the trial court was filed outside the 14 days from the date his cause of action arose to have been declared statute-barred by the lower court within the meaning of the provisions of section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).”
3. The Decision of the Supreme Court
Having found that the Court of Appeal was in error to have held that the cause of action that gave rise to the Appellant’s action occurred on 3 October 2018, the day the primary election was held, instead of 17 October 2018, the day the Appellant’s name was wrongfully substituted for the 1st Respondent’s, the Supreme Court, nevertheless, upheld the decision of the Court of Appeal and dismissed the Appellant’s appeal on the ground that even from the latter date, that is, 17 October 2018, the Appellant’s action was not instituted within 14 days as stipulated under Section 285 Subsection 9 of the Constitution. The Supreme Court, per Muhammed, JSC, held thus;
“In the instant case, the appellant’s complaint, being his wrongful substitution, was the event, decision or act that occurred on 17th October 2018. From 17th October to 31st October, 2018 [when the appellant filed his action] was 15 days … and for the purpose of section 285(9) of the Constitution, as amended, the suit was, therefore, statute-barred since it was not filed within 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”[15]
Echoing the lead judgement of Muhammad, JSC, Eko, JSC, put it succinctly and undoubtedly thus;
“As rightly found in the lead judgment of my learned brother, Musa Dattijo Muhammad, JSC, which judgment I had a preview of and I hereby adopt, the suit of the appellant was statute-barred. The lower court had though found wrongly that the cause of action arose earlier on 3rd October, 2018. In actuality, the cause of action arose on 17th October, 2018. From thence to 31st October, 2018 when the appellant approached the trial court was 15 days, and for the purpose of section 285(9) of the Constitution, 1999, as amended, the suit was, therefore, statute-barred since the suit was not filed within 14 days from the date of the occurrence of the event, decision and action complained of in the suit.” The appellant’s complaint being his wrongful substitution, was the event, decision or act that occurred on 17th October, 2018. From the said 17th October (the date inclusive) to 31st October, 2018 is 15 days.”[16]
4. Analysis and/or Review of the Case
As seen in the above excerpt of the judgement in Zailani’s case, the Appellant appeal to the Supreme Court failed, having been adjudged as instituted one day outside the statutory period of 14 days as required by the Constitution, in this instance, the date the cause of action arose inclusive. But is this decision consistent with the law or prior and subsequent decisions of the Supreme Court? It is considerably difficult to answer this question in the affirmative.
To further buttress this considerable difficulty, barely one month after the above decision was delivered,[17] the Supreme Court, on Friday, 5 July 2019, in the similar case of Garba v APC[18]delivered another judgment where it excluded the date the cause of action arose thus;
“From the passage I have reproduced above (that is the Appellant’s originating summons)… I am satisfied that the cause of action occurred on the 7th of October, 2018. The appellant’s suit was filed on the 29th of October, 2018, 22 days [excluding the 7th October] after the conduct of the primary election. Clearly, the action was filed outside the prescribed period and it is therefore statute-barred.”[19]
While the decision of the Supreme Court in the Garba case was/is right, it is the exclusion of the date the cause of action arose in computing time that is of relevance to this review. In one case the Supreme Court included the date the cause of action arose and in another case it excluded it. Where then does the law stand? As far as this writer can see, the position of the law is considerably clear. Section 285 Subsection 9 of the Constitution of the Federal Republic of Nigeria, 1999 as amended by the Fourth Alteration Act, No.21 of 2018provides that
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of.”[20]
While it is not in doubt that this alteration or amendment was necessitated by the need to dispense with pre-election matters timorously, what seems to have resulted in “inconsistent” decisions by the court remains the construction of the word “from” in the enactment.
But we can only turn to the law for proper guidance. Under the Interpretation Act,
“A reference in an enactment to a period of days shall be construed – (a) where the period is reckoned from a particular event, as excluding the day on which the event occurs;”[21] Furthermore, “Whereby an enactment any act is authorized or required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.”[22]
Therefore, it is trite that, except there is anything to the contrary on the face of a statute or instrument, in construing or interpreting the word “from,” the mentioned date is usually excluded as opposed to the interpretation of the word “on” where the mentioned date is reckoned with. Now, does the Interpretation Act apply to the Constitution?
Again, we can only turn to the law for proper guidance. The Interpretation Act applies to the provisions of any enactment except in so far as the contrary intention appears in the Act or the enactment in question.[23] However, the Act further provides that
“Nothing in this Act shall be construed as purporting to prejudice the provisions of the Constitution of the Federal Republic of Nigeria 1999.”[24]
Thus, the words or phrases used in the Constitution can only be properly construed or interpreted in accordance with the Constitution itself.[25] Therefore, to the extent that there is no contrary intention in the Constitution, “The Interpretation Act shall apply for the purpose of interpreting the provision of this [the] Constitution,”[26]including Section 285(9) thereof.
Since the word under consideration is “from” and there being no contrary intention under the Constitution, the ordinary reasonable man observing the proceedings in the gallery would have expected the Supreme Court to exclude 17 October 2018, the day the cause of action arose in Zailani’s case. This would have resulted in a different and perhaps most appropriate decision in the suit. But the Supreme Court did otherwise. Nevertheless, in respect of pre-election matters, it cannot be concluded or reasonably argued that, under Zailani’s case, the Supreme Court laid down a new principle (or general precedent) to the effect that in interpreting the word “from” for the purpose of determining whether or not a pre-election action is statute-barred as per the provision of Section 285(9) of the Constitution, the date the cause of action arose “shall” be reckoned with. If this were so, the immediate subsequent decision of the Supreme Court in Garba v APC[27] should not have departed from Zailani’s case.
But whether by “flip-flopping” the Supreme Court decided to “err” on the right side of the law or correct its previous “error” suo motu, this “inconsistency” has given birth to difficulty as to which of the two recent cases stated above creates a binding precedent on the lower courts. This notwithstanding, it suffices to say that when there are seemingly conflicting decisions of the Supreme Court on the same or similar issue, the latest in time prevails.[28]Thus, the decision in Garba’s case, which is in tone with extant legislation and numerous precedents, should be preferred (and it is indeed preferred) to Zailani’s.
5. Conclusion
Though it is now almost elementary, it can not be overemphasized that the Supreme Court is the highest and final court in the adjudication of disputes in Nigeria. As God is the Supreme Judge of the heavenly court, so is the Supreme Court a judicial god unto itself much so that no appeal can lie from its decision to any other court, except to itself in certain circumstances (and they are not many) where according to law, it chooses to question its own decision. But unlike God who is infinite in all perfections, the Supreme Court, with the utmost respect, is most imperfectly perfect. Hence, the Supreme Court continues to deliver judgments that, sometimes, seem to defy the logic of existing laws and precedents, never mind that the law is what the court says it is.[29] Although “the prophecies of what the courts will do in fact and nothing more pretentious are the law,”[30] it will make for a better legal regime, I humbly think, for the courts to always prophesy as though they are possessed with the spirit of the law.[31]
This review examined the judgement of the Supreme Court in Zailani v Gumau vis-à-vis the limitation statute in pre-election matters, that is, Section 285(9) of the Constitution and the correct interpretation of the word “from” thereof in relation to the Interpretation Act. It finds that the Supreme Court made perhaps “conflicting” findings in two recent (2019) decisions delivered almost at the same time respecting the interpretation of the word “from” to determine when time starts running in pre-election matters. In the final analysis, Section 285(9) of the Constitution is there for the timeliness, to ensure that pre-election matters are instituted and concluded before substantive elections, and to ensure that in pre-election matters, time runs against litigants, nevertheless, it does not fly against time.
*Okpeh is a lawyer, writer, researcher, and disability rights advocate. Reach him at bizibrains@gmail.com
[1] The Constitution, Section 235; Ikpeazu v PDP (2017) LPELR – 42611; Omidiran v Orabeku (2013)LPELR – 20527
[2] Adegoke Motors v Adesanya (1939) 13 NWLR (Pt.109) 250 at 275
[3] The Constitution Section 6
[4] Zailani v Gumau & 2 Ors [2020] 2 NWLR (Pt.1709)452
[5] Oshoboja v Amida (2009) LPELR – 2803 at 30
[6] The canons of interpretation are the judge-made rules developed by the court to aid in the interpretation or construction of statutes, quite apart from the interpretation sections of the statutes or the Interpretation Act. They include the literal rule, mischief rule, golden rule, and purposive rule.
[7] The purposive rule of interpretation entails that in the interpretation or construction of statutes, the court is at liberty to take into cognisance external aids so as to achieve the general purpose or objectives of the statutes.
[8] Amaechi v INEC (2008) 5 NWLR (Pt.1080)227 at 324,344 and 349; Dapianiong v Dariye ( 1989) 13 NWLR (Pt.109) 250 at 275
[9] Oshoboja v Amida supra; Veepee Ind. Ltd. v Cocoa Ind. Ltd. (2008) LPELR – 3461; Effiom v State ( 1995) LPELR-1026
[10] Buhari v INEC (2008) LPELR – 814; Stephen v Moro (2019) LPELR – 48406
[11] Oke v Mimiko (2013) LPELR – 20645; Hassan v Aliyu (2010) LPELR – 1357
[12] Supra
[13] Supra
[14] Bold and Italics mine for emphasis.
[15] Zailani v Gumau [2020] 2 NWLR (Pt.1709)452 (underline mine for emphasis);
See also Idiagbon v APC [2019] 18 NWLE (Pt. 1703) 102 120-124
[16] Zailani v Gumau [2020] 2 NWLR (Pt.1709)452. (Underline mine for emphasis).
[17] It was delivered on Friday, 21 June 2019
[18] [2020] 2 NWLR (Pt.1708)345 at 360
[19] Supra; Ibrahim v Abdallah [2019]17 NWLR (Pt.1701)293 at 314; Daniel v Ayala [2019]18 NWLR (Pt.1703)25 at 40
[20] Italics and underline mine for emphasis.
[21] Interpretation Act Section 15(2)
[22] Ibid Section 15(3)
[23] Interpretation Act Section 1
[24] Interpretation Act Section 37(2)
[25] Obusez v Obusez (2007) LPELR – 2197; Olafisoye v FRN (2004) LPELR – 2553 at 85
[26] The Constitution, Section 318(4)
[27] Supra
[28] Osakue v Federal College of Education (Technical) Asaba [2010]10 NWLR (Pt.1201)1
[29] Holmes, O.W. “The Path of the Law” (1987) 10 Harvard Law Review 457
[30] Ibid
[31] Okpeh, B. “Of Justice Okon and the Order that Nwafor-Orizu Produce a Certificate of Mental Fitness Before Appearing Before the Court: Matters Arising” Available at https://thenigerialawyer.com/of-justice-okon-abang-and-the-order-that-nwafor-orizu-produce-a-certificate-of-mental-fitness-before-appearing-before-the-court-matters-arising-by-bizibrains-okpeh/ Accessed 10/9/2021
