Legalpedia Citation: (2023-07) Legalpedia 19588 (SC)

In the Supreme Court of Nigeria

Fri Feb 24, 2023

Suit Number: SC.CV/42/2023

CORAM

Mohammed Lawal Garba JSC

PARTIES

ANI GABRIEL PAUL WELLINGTON

APPELLANTS

PEOPLE’S DEMOCRATIC PARTY (PDP) & ORS

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, PRACTICE AND PROCEDURE, LIMITATION LAW

SUMMARY OF FACTS

As an aspirant, the Appellant had challenged the primary election conducted on the 25th May, 2022 for the selection/nomination of a candidate for the Akwa Ibon State Gubernatorial Election, 2023 at which the 2nd Respondent emerged and was declared the winner. He went before the Federal High Court, Uyo. The trial Court dismissed the Appellant’s suit as a result of which the Appellant filed an appeal against that decision in the Court of Appeal, Calabar, Division.

The appeal was later transferred to the Abuja Division of the Court below for hearing in the course of which, it was realized that the Appellant’s brief was filed outside the seven (7) days prescribed by the provision of Paragraph 10 of the Election Proceeding Practice Directions, 2022, though with an application for extension of time to file same. Consequently, the appeal was dismissed for lack of diligent prosecution.

The Appellant was aggrieved and hence the instant appeal.

HELD

Appeal dismissed

ISSUES

Whether the Court below breached the Appellant’s right to fair hearing by refusal to grant the motion for extension of time to file the Appellant’s brief and dismissing the Appellant’s appeal for want of diligent prosecution.

RATIONES DECIDENDI

ELECTION MATTERS – ELECTION MATTERS ARE STRICTLY GOVERNED AND REGULATED BY THE SPECIAL AND SPECIFIC RULES OF PRACTICE AND PROCEDURE IN THE COURTS

As a foundation, I would restate that election matters generally, though are a specie of civil matters, have their own different rules and regulations enacted specifically, to regulate and govern the procedure and practice to be used in the conduct of proceedings thereof due to their peculiar nature. Due to the timelines and limits prescribed by the Constitution and statutes within which they are to be determined at all levels of the judicial ladder, special and specific rules, regulations, practice directions are enacted pursuant to the relevant provisions of the Constitution and the statutes setting out details of the procedure to be adopted, time lines or limits within which steps must be taken by both the parties and the Courts as well within which processes must be filed in proceedings in order to ensure that the matters are initiated, heard/tried and finally determined/disposed of in compliance and line with the prescriptions in the Constitution and the statutes. That is, primarily, why election matters have been described and became known as “sui generis”, different from ordinary civil matters and in a class of their own since they are strictly governed and regulated by the special and specific rules of practice and procedure in the Courts. See Onitri v. Benson (1960) SCNLR 314 at 317, Oyekan v. Akinjide (1965) NWLR, 381 at 383, Obih v. Mbakwe (1984) 1 SCNLR, 192, Dickson v. Sylva (2017) 10 NWLR (pt. 1573) 299 (SC), PDP v. Ezeonwuka (2018) 3 NWLR (pt. 1606) 187 (SC), Toyin v. PDP (2019) 9 NWLR (pt. 1676) 50 (SC), Abubakar v. INEC(2004) 1 NWLR (pt. 854) 1, Eghareuba v. Eribo ​ (2010) 9 SCM, 121 and Ugba v. Suswam (2012) LPELR – 9726 (SC) – Wherein Ariwoola, JSC (now CJN) stated that:-

“….it must be pointed out once again, as it has been so pointed out by this Court and the Court below, wherever the need had arisen that an election matter is sui generis. That is, “of its own kind or class”. In other words, an election matter is unique and peculiar, different from civil matters. Hence, it should be handled specially.”

I should mention that a pre-election as provided for in Section 285 (9), (10), (11) and (12), and defined in Subsection (14) of the Constitution, is of the same sui generis nature as an election matter (petition) provided for in Subsections (4), (5), (6) and (7) of the same Section 285 in relation to the time lines or limits prescribed for both.– Per M. L. Garba, JSC

PRACTICE DIRECTIONS FOR ELECTIONS – PRACTICE DIRECTIONS FOR ELECTIONS ARE ISSUED PURSUANT TO ENABLING CONSTITUTIONAL PROVISIONS

The procedure to be adopted in respect of the filing, trials and determination of appeals by the Court below is set out in the specific rules and regulations, by way of Practice Directions, issued, made or enacted by the respective Heads of the Federal High Court and the Court below; i.e. the Chief Judge of the Federal High Court and the President of Court of Appeal (PCA), pursuant to the powers conferred and vested on each of them in the provisions of Sections 254 and 248 of the Constitution, respectively.

In the exercise of the powers conferred and vested on the President of the Court of Appeal under the provisions of Sections 243, 248 and 285 of the Constitution as well as the above Section 140 (2) (a) of the Act, the Hon. President Court of Appeal issued the Election Judicial Proceedings Practice Directions, 2022, dated 19th of July, 2022. (Practice Directions, 2022).

In pre-election matters, the ordinary and general civil procedure rules of a Court do not apply to regulate the proceedings, but rather the Practice Directions specifically and specially enacted and provided for the proceedings apply and indeed take precedent over and above the ordinary and general rules of civil procedure. Such ordinary and general rules of Court cannot be imported to supplant, whittle down or derogate from the specific provisions of the Practice Directions, on limitation of time within which steps are to be taken or processes to be filed in appeals before the Court below in respect of pre-election matters. The Practice Directions are issued or enacted pursuant to the enabling constitutional provisions, just the like the general civil procedure rules of Court below, and not made subject to the Rules for them to be resorted to in pre-election proceedings before that Court.

This Court, in Maku v. Sule (supra) per M. D. Muhammad, JSC in the Lead Judgment at page 258 of the Report, stated that:-

“Again, one notes with tremendous discomfort that the decision of this lower Court the respondents insist this Court affirms emanates from the Court’s application of Order 8 Rule 4 of the Court of Appeal Rules 2016, a general provision in respect of appeals, notwithstanding the existence of the more specific extant provision of the Election Tribunal and Court Practice Directions 2011 specially provided for to regulate appeals arising from Election Petition proceedings. The law is that any special and specific statutory provision excludes the general one.

In the case at hand, the specific provision of the Election Petition and Court Practice Directions specially provided for to regulate the instant suit must prevail over Order 8 of the Court of Appeal Rules which is a general provision on appeals to the lower Court. The special provision is interpreted as taking away the effect of the general provision. See Schroder v. Major (1989) 2 NWLR (pt. 101) 1 at 13, Kraus Thompson Organisation v. National Institute for Policy and Stategic Studies (2004) LPELR – 1714 (SC); (2004) 17 NWLR (pt. 901) 44 and Dr. Umar Ardo v. Admiral Murtala Nyako & ors. (2014) LPELR – 22878 (SC); (2014) 10 NWLR (pt. 1416) 591.

In Governor of Kaduna State v. Kagoma (1982) 6 SC 87 at 107 – 108, this Court per Fatayi Williams, CJN (as he then was) held thus:-

“It is now trite that where there are two enactments one making general provisions as in the case of the provision of Section 2 of the Commission of Enquiry Law (Cap 25) and the other making specific provision as in the case of the provision of Section 98 of Local Government Law (No. 1 of 1977) the specific provisions are by implication excluded from the general provision.”

It follows that the lower Court’s decision striking out appellants’ appeal pursuant to Order 8 Rules 4 and 6 of its Rules 2016 which derogate from the provision of the more specific and specially provision of the Election Tribunal and Court Practice Directions on appeals emanating from the trial tribunal is perverse. I so hold.” – Per M. L. Garba, JSC

PRACTICE DIRECTION – STRICT COMPLIANCE WITH PRACTICE DIRECTION BECOMES NECESSARY TO THE MEET PURPORT AND IMPORT OF CONSTITUTIONAL PROVISIONS

If the primary purport and import of the constitutional provisions on pre-election matters are to be met, satisfied and achieved, then strict compliance with the Practice Directions becomes absolutely necessary and even crucial in the hearing and determination of such appeals. The law remains that subsidiary legislation, such as the Practice Directions, issued, made or enacted pursuant to and in exercise of the power vested or conferred by the Constitution, enjoy the flavour and potency of the constitutional provisions under or pursuant to which they are issued, made or enacted. They could be said to be a mirror of the constitutional intention. See Akanbi v. Alao (1989) All NLR, 424 (1989) 5 SC, 1, Kalu v. Odili (1992) 5 NWLR (pt. 240) 130 at 173 (SC), Abia State University v. Anyaibe (1996) 3 NWLR (pt…) 439) 646 at 660.

In that regard, compliance with mandatory provisions of the Practice Direction issued, made or enacted pursuant to the provisions of the Constitution on or in relation to election or pre-election matters cannot seriously be said to be adherence to technicality since that argument would be in complete disregard to the sui generis nature of such matters which warranted the enactment of special and specific rules and regulations to govern and regulate them. It is the strict compliance with the special and specific rules and regulations or practice directions that will ensure that the clear intention and purpose of the constitutional provisions on election and pre-election matters of expeditious determination are met and achieved. – Per M. L. Garba, JSC

PRACTICE DIRECTION – COURTS HAVE NO POWER TO ENLARGE/ EXTEND THE TIME PRESCRIBED IN THE PRACTICE DIRECTION FOR FILING OF BRIEFS

I have, at the beginning of this judgment, set out the ruling of the Court below on the Appellant’s application for extension of time to file the Appellant’s brief in the appeal before it. Relying on the case of Maku v. Sule (supra) and its unreported decision in the case of Ekpoudom v. APC; appeal CA/ABJ/1055/2022, the Court below stated that it has no power to extend or enlarge the time prescribed in the Practice Directions for the filing of an Appellant’s brief in the appeal. The provisions of paragraph 10 of the Practice Directions provides that:- “10. Within a period of Seven (7) days after service of the Record of appeal, the Appellant shall file in the Court, his Brief of Argument in the appeal for service on the Respondent(s).” It is easily observed that these clear, plain and concise provisions are in line with the provisions of Section 285 (12) of the Constitution which provides that:- “(12) 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.” The community effect of these constitutional provisions and the Practice Directions is that the time lines or limits prescribed therein are to be strictly complied with by the deliberate employment and use of the word “shall” in both of them by the Legislative and the Hon. President, Court of Appeal.

This Court, in the case of Onochie v. Odogwu (2006) 2 SCNJ, 96 at 114, (2006) 6 NWLR (pt. 973) 65 at 89 – 90 restated the law that:-

“The use of the word “Shall” makes it mandatory that the rule or provision must be observed. The word “shall” is used to express a command or exhortation or what is legally mandatory. ”

See also Ngige v. Obi (2006)14 NWLR (pt. 999) 1, Ugwu v. Ararume (2007) 12, NWLR (pt. 1048) 365 at 441 (SC), Nwankwo v. YarAdua (2010) 12 NWLR (pt. 1209) 578, Chukwugor v. Chukwugor (2021) 15 NWLR (pt. 1799) 357 at 373 (SC). I would emphasize that the interpretation of the word “shall” employed and used in special and specific provisions of the Constitution and statutes on election and pre-election matters, being sui generis, has no other plausible meaning other than a word of command, exhortation and what is legally and strictly mandatory in compliance, excluding every discretion or choice. – Per M. L. Garba, JSC

LIMITATION PROVISION – NON-COMPLIANCE WITH LIMITATION PROVISION RENDERS ANY STEP TAKEN INVALID

Except where otherwise provided for in the Constitution or statutes, periods of time stipulated, prescribed and limited therein for the steps to be taken or processes to be filed, cannot be enlarged or extended after expiration, to enable the step or processes to be filed outside the limited periods, otherwise the purpose of the limitation would be frustrated and eventually defeated. See Akinnuoye v. Mil. Adm., Ondo State (1997) 1 NWLR (pt. 483) 564, Maku v. Sule (supra).

The primary purpose of limitation provision in the Constitution, statute or rules on election and pre-election matters that all steps to be taken in the proceedings must strictly comply with and be as provided in the period of time prescribed and limited therein without discretion or option, otherwise there will be non-compliance, violation and break of the provisions. Any non-compliance with the provision stipulating and prescribing time limits in proceedings in election and pre-election matters renders any step taken or processes filed after the expiration or outside the stipulated period of time, invalid under the provisions. – Per M. L. Garba, JSC.

ELECTION AND PRE-ELECTION MATTERS – CONDUCT OF PARTIES IN ELECTION AND PRE-ELECTION MATTERS – TWO OPTIONS

I have stated before now that except where a discretion was otherwise provided for in the application of special and special provisions of the Constitution statutes or other subsidiary legislations, on periods of time limited in election or pre-election matters, the limited periods are sacrosanct and like the “Rock of Gibraltar” in the conduct of the proceedings. Such limited periods of time cannot be extended beyond, outside of or after expiration. By the sui generis nature such proceedings, parties have only two (2) options:

(a) to comply with the stipulation/prescription on the periods of time limited; or

(b) hold their peace forever.

​Due to their sui generis nature and governed by specific and special rules enacted to regulate them, election and pre-election proceedings are such that the slightest non-compliance with a procedural step which otherwise could either be cured or condoned in ordinary civil proceedings, could result in fatal consequence for the defaulting party. See Buhari v. Obasanjo (supra), Magaji v. Balat (2004) 8 NWLR (pt. 876) 449, ANPP v. R.E.C. Akwa-lbom State (2008) 8 NWLR (pt 1090) 453. – Per M. L. Garba, JSC

PARTIES – WHEN PARTY FAILS TO COMPLY WITH STIPULATED TIME

I shall mention also that with the provisions of a statute or rules, enacted pursuant to the provisions of the Constitution to provide for limitation of time for steps to be taken or processes to be filed by the parties in the proceedings of a Court and a party fails or refuses to avail himself of the stipulated time, he can no longer claim and has no other right to be heard in respect of the step taken or process filed after the expiration of the limited period of time. The issue of denial of fair hearing by a party in such a situation does not arise. See Bowaje v. Adediwara (1976) 6 SC, 143, Owoniboys Tech. Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (pt. 199) 550, 559, Mini Lodge Ltd. v. Ngei (2009) 18 NWLR (pt. 1173) 254, Sosanya v. Onadeko (2005) All FWLR (pt. 255) 1000 at 1031, Mgbenwelu v. Olumba (2017) 5 NWLR (pt. 1558) 169. – Per M. L. Garba, JSC

PRACTICE DIRECTION – PRACTICE DIRECTION HAS NO PROVISION FOR JUDICIAL DISCRETION

The provisions of the Practice Directions do not contain any provision which permits or allows a judicial discretion for the Court below to extend or enlarge the timelines or periods of time specifically limited for the steps to be taken or processes to be filed in the appeals to which they apply, after the expiration such periods of time.

 

One of the established rules of interpretation of statutes is to exclude what is not stated therein, which is expressed in Latin as “expression unirous exclusion alterius.” See Udoh v’ H.M.B. (1993) 7 SCNJ, 244 (1993) 1 NWLR (pt. 304) 139, Obi v. INEC (2007) 11 NWLR (pt. 1046) 436, Ayowe v. Obasanjo (2006) All FWLR (pt. 334) 1967 at 1997.– Per M. L. Garba, JSC

 

CASES CITED

STATUTES REFERRED TO

1. Election Judicial Proceedings Practice Directions, 2023
2. Constitution of the Federal Republic of Nigeria 1999 (as amended)
3. Court of Appeal Rules 2021
4. Electoral Act 2022

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