Should Our Laws Operate Retrospectively? An Analysis Of The Recent Supreme Court Decisions On Pre-Election Dispute By Oluwatosin Sofowora

Introduction

In a Federation like Nigeria where checks and balances is stressed, the roles of the three arms of government are clearly defined in the Constitution. The legislative power of the Federal Republic of Nigeria, vested in the National Assembly and the House of Assembly, is to make laws for the peace, order and good government of the Federation or any part thereof.[1] Invariably, the legislative powers of the National Assembly and House of Assembly extends to amendments or alteration of statutes already made. This power is however not without limits; the seemingly prodigious powers of the legislature is subject to the supremacy of the constitution. More so, the judiciary, acting as a watchdog to the legislature has the power to question the legality of a legislation and appropriately interpret same.[2]

Recently, the 1999 Constitution of the Federal Republic of Nigeria (as amended) has been tweaked to include a Fourth Alteration Act[3] primarily making additions to the provisions of section 285 of the Constitution. The new provisions of the Fourth Alteration to the Constitution introduced the time limits within which pre-election cases should be filed, decided and appealed. The Supreme Court has, in its usual preponderant manner, as the apex court of the land interpreted the Fourth Alteration to the Constitution to be applicable to all pre-election cases that preceded the said Fourth Alteration, thereby having a retrospective effect.

This article seeks to explore the judicial interpretations on the recent Fourth Alteration to the Constitution that same should operate retrospectively. The fairness and legality of retrospective laws, especially as regards the retrospective connotation given to the Fourth Alteration to the Constitution, is what draws the discomfiture of the writer.

Meaning of Retrospective and Prospective laws

In ordinary parlance the words ‘retrospective’ or ‘retroactive’ are used interchangeably to mean backward-looking.[4] The word retrospective when used with reference to legislations may mean: effecting an existing contract or reopening of the past, closed and completed transactions; or affecting accrued rights and remedies; or affecting procedure. A retrospective law is one that is to take effect at the point in time before it was passed. In other words, a retrospective law affects or influences past actions that occurred before the law was enacted. It applies to those Acts of the legislature, which are made to operate upon some subject, contract, crime or proceeding which existed before the passage of the Act.

A retrospective or retroactive law is also called an ex post facto law; a Latin phrase meaning “from a thing done afterward.” It refers to a law that applies retroactively, thereby criminalizing a conduct that was legal when originally performed. The prohibition of ex post facto laws has been entrenched in most nations’ Constitutions and Bill of Rights.[5] It is however, worthy of note that the prohibition of ex post facto laws as enshrined in various world Constitutions are restricted to criminal laws.[6] In fact, by section 4 (9) of the Constitution of the Federal Republic of Nigeria;

“Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect”.

Thus, the express provision of the Constitution of Nigeria prohibits ex post facto laws as it relates only to criminal offences. Further, the Constitution explains what it means by ‘retrospective effect’, when it includes as one of the fundamental rights guaranteed to an accused person, that no person shall be held to be guilty of a criminal offence on account of any act or omission that did not at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.[7]

A prospective law, on the other hand, is simply one that is applicable only to cases that will arise after its enactment.[8] Statutes applicable retrospectively is explained properly by Francis Bennion’s Statutory Interpretation[9] 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…”

Principle Governing Operation of Retrospective Laws

The age long Latin principle that lex prospicit not respicit, which translates to mean the law looks forward, not backward has been engrafted in various statutes, the grundnorm inclusive. The courts of law have also upheld this principle as sacrosanct.  The general principle of law is that the applicable law to an action is the law existing or the law that existed at the time the cause of action arose and not the law in force when the action was instituted. See Hope Democratic Party v. Peter Obi & 5 ors (2011) 18 NWLR (Pt. 1278) 80 at 100 and Adesanoye v. Adewole (2000) 9 NWLR (Pt. 671) 127. Thus, where a law was enacted or amended during the cause of prosecuting a matter, the applicable law ought to be the law in existence at the time the cause of action arose.

In the Hope Democratic Party’s case, at the time the petition was filed, the law in operation, which was the Constitution (before it was amended) provided that the Court of Appeal was the final court in matters relating to governorship elections. The Court of Appeal had dismissed their petition on 24^th February, 2011 and they appealed to the Supreme Court, relying on the amendments to the Constitution which took effect on 10^th January, 2011. The said amendments had granted a right of appeal to an aggrieved party in a governorship election dispute to appeal to the Supreme Court. The Supreme Court was quick to jettison arguments of the Appellants and dismissed the inappropriate appeal since the law applicable to the parties were the Electoral Act, 2006 and the Constitution before the amendments, being the law in existence when the cause of action arose in the case. Emphatically, the Supreme Court per Onnoghen, J.S.C (as he then was) stated thus;

“… This is in accord with common sense as a law yet to be existence cannot have effect on rights and/liabilities existing prior to its creation, commencement…”

Furthermore, in the case of Miscellaneous offences Tribunal v. Okoroafor (2001) FWLR (Pt. 81) 1730 at 1756, the Supreme Court pointed out that no statute shall be construed so as to have a retrospective operation unless such a construction appears very clearly in terms of the Act or arises by necessary and distinct implication. It is important to note that the necessary and distinct implication must be in accordance with fairness and justice.

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.

Exceptions to the General Rule

Although it is a cardinal principle of law that statutes are to operate prospectively and ought not to apply retrospectively, where by the express terms or provisions of the statute, it is to operate retrospectively, then such statute must operate retrospectively. Thus one exception is where a retrospective effect of the law is clearly intended from the words of the statute.

A second exception is where the statute or amendment affects procedural matters. 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.[10]

The case of Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 at 396-397 paras. H-A per Bello, CJN (as he then was) made an observation on the exception to the general rule governing the operation of retrospective laws as follows;

“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.”

Recent Cases on Retrospective Application of the Law

• Gusau v. APC (2019) 7 NWLR (Pt. 1670) 185.

In this case, the appellant had taken out an originating summons at the Federal High Court over his participation at the primary election of his party in 2015, which was struck out on the ground that the appellant inter alia lacked locus standi to institute the action. On appeal, the Court of Appeal dismissed the appeal, upholding the decision of the trial court, resulting to an appeal at the Supreme Court. The appeal to the Supreme Court was however filed on 12^th January, 2018, one month and five days after the decision of the Court of Appeal delivered on 7^th December, 2017, hence a Preliminary Objection “contesting the competence of the appeal on the ground that the appeal is statute barred”.

The case of the respondent, which the Supreme Court agreed with, was that the appeal was statute barred because 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^th June, 2018. The said Alteration 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.”

• Kusamotu v. A.P.C. (2019) 7 NWLR (Pt. 1670) 52.

Similar to the case supra, the Supreme Court struck out the case of the appellant for being statute barred following the Constitution of the Federal Republic of Nigeria, 1999 (4^th Alteration No. 21) Act 2017 which provides in section 285 (12) as follows:

“An appeal from a decision of a court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing the appeal.”

In this instant case, although the appeal before the Court of Appeal was filed before the 4^th Alteration to Constitution was assented to by the President, the proceedings at the Court of Appeal became statute-barred because the appeal was not concluded within 60 days from the date the appeal was filed.

Conclusion                                                                                                                     

It is the writer’s submission that where no express stipulation of a retrospective effect is made in a legislation or an amendment to such legislation, courts should consider whether applying such legislation retrospectively would impair rights a party possessed when he did the act, whether it would increase a party’s liability for past conduct, or whether it would impose new duties with respect to transactions already completed.

The clear provisions of the Fourth Alteration to the Constitution, undoubtedly, makes no stipulation that its provision be applied retrospectively or otherwise. A cursory look at the decided cases reveal that the retrospective effect given to the said Fourth Alteration impinged the rights of the concerned parties to prosecute their respective cases. It impaired their right to appeal against decisions of lower courts, a constitutionally guaranteed right by section 233 and 240 of the Constitution, which they had before the alteration to the Constitution took effect. It also increased the parties’ liability and duty to file appeals within a certain time frame with respect to appeals that had been filed already.

Author’s Biography

Name: Oluwatosin Sofowora

Oluwatosin is a young brilliant lawyer. She obtained her LL.B with first class honours from the prestigious University of Ibadan. She has worked as a Trainee- Associate in Wole Olanipekun & Co where she displayed her academic prowess and innovatory skills.

[1] See section 4 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (CFRN).

[2] See section 4 (8) of the CFRN; Abacha v. Fawehinmi (2000) 4SC (Pt. 11); Bolonwu v. Gov Anambra State (2009) 18 NWLR (Pt. 1172) 13.

[3] No. 21, 2017.

[4] Thesaurus.com

[5] See Article 1, Section 9, Clause 3 (with respect to federal laws) & Article 1, Section 10 (with respect to state laws) of the US Constitution; Article 5, section XXXVI of the Brazilian Constitution; Section 11 of the Canadian Charter of Rights and Freedoms; Article 103 of the German basic law; article 20(1) of the Indian Constitution.

[6] See the early case of Calder v. Bull, 3 U.S. (3 Dall.) 386, where the Supreme Court decided that the phrase, as used in the Constitution (that is ex post facto laws) was a term of art that applied only to penal and criminal statutes.

[7] Section 36 (8) CFRN.

[8] Gusau v. APC (2019) 7 NWLR (Pt. 1670)185 at 193 para. C

[9] 2^nd Edition

[10] Gusau v. APC (2019) 7 NWLR (Pt. 1670) 185 at 194 paras B-C Per Augie, J.S.C.