BELLO BAR’AU GUSAU V ALL PROGRESSIVES CONGRESS (APC) 3 ORS SUPREME COURT OF NIGERIA SC. 125/2018 DECIDED ON THE 21ST OF FEBRUARY 2019

[Retrospective Legislation] – [Meaning of] – [Duty on Court when Legislation is Retrospective]

ISSUE FOR DETERMINATION:

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.

FACTS:

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. The 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 1^st and 2^nd 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”,

2.       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.

3.       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).

4.       Whether it is not right to nullify the said primaries on grounds of unlawful exclusion of the plaintiff there-from.

5.       Whether the plaintiff is not entitled to a refund of the sum paid or expended in the primaries.

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 that 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 1^st – 3^rd defendants center on pre-primary election matters and which is entirely the affair of the 1^st defendant and not justiciable before this court and as such lack Jurisdiction to entertain the reliefs sought against the 4^th defendant which is only ancillary. On the above Principal (sic), the Objections of the 1^st and 3^rd 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 1^st 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.

HELD:

On when a statute operates retrospectively:

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. In the instant case, the decision of the Court of Appeal was made on the day the 4^th Alteration Act bringing into being Section 285 (II) of the Constitution was signed into law and so the matter was ongoing since the alteration being procedural was caught up retrospectively and it was no defence to the situation that the action was already in existence before the change was made to the constitutional provision in section 285.

NIGERIAN CASES REFERRED TO IN THE JUDGEMENT:

• Adesanoye v. Adewole (2000) 9 NWLR (Pt. 671) 127
• Afolabi v. Gov., Oyo State (1985) 2 NWLR (Pt. 9) 734
• F.B.N. v. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt. 1216) 247
• Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56
• H.D.P. v. Obi (2011) 18 NWLR (Pt. 1278) 80
• Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547
• INEC v. Ogbadibo L.G. (2016) 3 NWLR (Pt. 1498) 167
• Marwa v. Nyako (2012) 6 NWLR (Pt. 1296) 199.
• Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458
• Nwora v. Nwabueze (2019) 7 NWLR (Pt. 1670) 1
• Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377
• S.P.D.C.N. v. Amadi (2011) 14 NWLR (Pt. 1266) 157
• Salim v. C.P.C. (2013) 6 NWLR (Pt. 1351) 501
• Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223

FOREIGN CASES REFERRED TO IN THE JUDGMENT:

• The Ydun (1899) 236
• King v. Dharma (1905) 2 KB 335

NIGERIAN STATUTES REFERRED TO IN THE JUDGMENT:

• Constitution altered by 4th Alteration Act. No. 21, 2017, S. 285(11)

BOOKS REFERRED TO IN THE JUDGMENT:

• Francis Bennion’s Statutory Interpretation 2^nd Edition
• Maxwell on Interpretation of Statute, 12^th Edition

FULL JUDGMENT

AUGIE, J.S.C. (Delivering the Leading Judgment):

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. See S.P.D.C.N. v. Amadi (2011) 14 NWLR (Pt. 1266) 157; Mohammed & Anor v. Olawunmi & Ors (1990) 4 SCNJ23 (1990) 2 NWLR (Pt. 133) 458. 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. See 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 4^th 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) 199, 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.

To be clear, the issue in this appeal is whether the amendment to section 285 of the 1999 Constitution by the said 4^th Alteration Act, affects substantive law or it affects purely procedural matters 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) 734 SC. See also Maxwell on the Interpretation of Statutes, 12^th 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.”

It is a cardinal principle 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. 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 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.

Applying the rule of stare decisis and guided by the principle confirmed in Ojokolobo v. Alamu (supra), this court took a firm stand on the effect of the said 4^th Alteration Act and struck out some appeals relating to pre-elections matters in respect of the 2015 Elections, and these include appeal No 5SC. 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 Marshal/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. Han. 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 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.

Appeal Dismissed.

LIST OF COUNSEL:

Ugo Udoji, Esq., with Vincent Odje, Esq., for the Appellant.

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

Murtala Abdulrasheed, Esq. with B. S. Kpenkpen, Esq., for the 2^nd Respondent Muhammad K. Ndanusa, Esq., for the 3^rd Respondent.

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