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General Bello Sarkin Yaki (Rtd) & Anor V. Senator Abubakar Atiku Bagudu & 2 Ors

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General Bello Sarkin Yaki (Rtd) & Anor V. Senator Abubakar Atiku Bagudu & 2 Ors

Supreme Court – November, 2015
Legalpedia Electronic Citation LER[2015]
SC:722/2015
Areas of Law: 
APPEAL, ELECTION PETITION, LAW OF EVIDENCE, LEGAL PRACTITIONER, LEGISLATION, PRACTICE AND PROCEDURE
Summary of Facts
The Petitioners now Appellants filed a petition against the 1st Respondent, 2nd Respondent People Democratic Party (P.D.P) and 3rd Respondent the Independent National Electoral Commission (INEC) with respect to the gubernatorial election held on the 11th April 2015 to the office of Governor of Kebbi State wherein the 1st Respondent was returned as elected. The Petitioners/Appellants prayed the trial Tribunal to hold that the1st Respondent be declared not qualified to contest in the election and that the election was marred with irregularities, violence, over-voting and non-compliance with the provision of the Electoral Act. The Respondents at different time during the proceedings filed their replies to the petition. The Petitioners/Appellants at the Tribunal conceded that their reply to the Respondents replies where filed out of time and that the Tribunal lacked jurisdiction to grant extension of time to regularize them. The 1st Respondent brought a motion on notice praying the Tribunal to strike out the Petitioners/Appellants reply to 1st Respondent and consequently strike out the petition as abandoned not having filed the application for issuance of pre-hearing notice within 7 days of the close of pleadings. In its ruling, the Tribunal dismissed the Petitioners/Appellant’s petition as abandoned. Dissatisfied with the ruling of the Tribunal the Petitioners/Appellants appealed to the Court of Appeal which upheld the decision of the Tribunal and dismissed the appeal on the grounds that the petition was abandoned and that the 1st Respondents reply to the petition was filed out of time. The Appellants have further appealed to the Supreme Court, whilst the 1st and 2nd Respondents also cross appealed on grounds that the Appellants/Cross-respondents did not indicate at the lower court which of the two Notices of Appeal they relied on and that the court made no pronouncement on the issue which is a breach of the provisions of paragraph 10 and 11(a) of the Election Tribunal and Court Practice Directions 2011 and that the notice of appeal and processes not having being stamped nor affixed with the seal of the legal practitioner was incompetent respectively.
Held
Appeal Dismissed
1st Respondent’s Cross- Appeal Dismissed
2nd Respondent’s Cross Appeal Allowed
Issue For Determination
2nd Respondent’s Cross Appeal
  • Whether the Court of Appeal was right to hold that failure of a legal document to have affixed to it a stamp/seal as mandated by Rule 10 (1) of the Rules of Professional Conduct did not carry with it the consequence of rendering such legal document incompetent…
Rationes
PRE-HEARING NOTICE – EFFECT OF FAILURE TO APPLY FOR THE ISSUANCE OF PRE-HEARING NOTICE IN AN ELECTION PETITION
“Where both the petitioner and the respondent fail to bring the application, the Court or Tribunal shall dismiss the petition as abandoned. See paragraph 18 (4) which also provides that no application of extension of time to make the application shall be entertained. Paragraph 18 (5) forecloses the reopening of the petition once dismissed. It provides:
“18 (5): Dismissal of a petition pursuant to sub-paragraphs 3 and 4 is final and the Tribunal or Court shall be functus officio” PER N.S. NGWUTA, J,S.C
ELECTION MATTERS – NATURE OF ELECTION MATTERS
“Election matters are time-bound and provisions fixing time for taking any steps are strictly construed to emphasise that time is of the essence in election petitions. Without the strict compliance with Paragraph 18 (1) reproduced above, any application for the issuance of pre-hearing notice or conduct of pre-hearing session will be exercise in futility for failure to comply with the pre-condition for same. See Okolo v. Union Bank (2004) 1 SC (Pt. 1) for effect of failure to comply with condition precedent provided by law or rule.” PER N.S. NGWUTA, J.S.C
ELECTION MATTERS – A SLIGHT INFRACTION OF THE RULES IN ELECTORAL MATTERS UNLIKE CIVIL ACTIONS IS FATAL TO THE PROCEEDING
“In a purely civil matter, the filing of a process a day after the period prescribed for the filing can be regularised on the application of the defaulting party. But in election matters, even a slight infraction of the rules, particularly those relating to time, can be fatal to the process filed. See Benson v. Allison (1955-56) WRNLR 58, Emerue v. Nkerenwen (1966) 1 AN NLR 63, Ige v. Olunloyo (1984) 1 SCNLR 158. An election petition is a proceeding sui generis. See Buhari v. Yusuf (2003) 6 SC (Pt. 11) 156.PER N.S. NGWUTA, J.S.C
NOTICE OF APPEAL -THE FILING OF MULTIPLE NOTICES OF APPEAL DOES NOT RENDER AN APPEAL INCOMPETENT
“Be that as it may, the mere fact of filing multiple notices of appeal does not render the appeal incompetent. See Akuneziri v. Okenwa (2000) 12 SC (Pt. 11) 25, First Bank of Nigeria Plc v. T.S.A. Industries Ltd (2010) 4-7) SC (Pt. 1) 242.”PER N.S. NGWUTA, J.S.C
PRE-ACTION NOTICE – NATURE OF A PRE- ACTION NOTICE
“A pre-action notice has been held to be a condition for the exercise of the right to bring the action and not as abridgement of that right. See Anambra State Government &Ors v. Marcel &Ors (1996) 9 NWLR (Pt. 213) 115.”PER N.S. NGWUTA, J.S.C
RULES OF PROFESSIONAL CONDUCT – STATUS OF THE RULES OF PROFESSIONAL CONDUCT
“I have to emphasis that the legal status of the rules of professional conduct in the legal profession made by the General Council of the Bar pursuant to section 1 of the Legal Practitioners Act, Laws of the Federation of Nigeria 2004 is that of a subsidiary legislation since it is made by provision in a statutory enactment – see Fawehinmi vs NBA (No. 2) (1989) 2 NWLR (pt. 105) 558 at 614; (1989) 20 NSCC (pt. 11)43 at 69.” PER S. N. ONNOGHEN, J.S.C
SUBSIDIARY LEGISLATION- SUBSIDIARY LEGISLATION HAS THE FORCE OF LAW
“By virtue of Section 18(1) of the Interpretation Act, a subsidiary legislation has the force of law.”PER S. N. ONNOGHEN, J.S.C
LEGAL PRACTITIONER – QUALIFICATION TO PRACTICE LAW AS A LEGAL PRACTITIONER
“It should be noted that the qualification to practice law as a legal practitioner is as provided under the Legal Practitioners Act which includes being called to Bar and enrolled at the Supreme Court of Nigeria as a legal practitioner. It is that qualification that entitles a legal practitioner to sign/frank any legal document either for filing in a Court of Law in a proceeding or otherwise, see Okafor vs Nweke (2007) 10 NWLR (pt. 1043) 521 etc. The above requirements constitute the substantive law on the issue.
It follows, therefore, that the Provisions of Rules of Professional Conduct, 2007 is directed at the Legal Practitioner to provide evidence of his qualification to practice law in Nigeria in addition to his name being in the Roll at the Supreme Court of Nigeria. It therefore saves time needed for a search at the Supreme Court to determine the authenticity of the claim of the Legal Practitioner for being so qualified. The provisions of the Rules, I must repeat, is not a substitute for the substantive law on the matter that is why non compliance thereto renders the document involved/concerned voidable, not void or a nullity.”PER S. N. ONNOGHEN, J.S.C
LEGAL PRACTITIONER – IMPLICATION OF AFFIXING A LEGAL PRACTITIONER’S SEAL ON DOCUMENTS
“It is only fair to the client, the legal profession and in the interest of justice that the Legal Practitioner involved be given opportunity to prove his call to Bar and enrollment at the Supreme Court of Nigeria by affixing his seal to the document involved at any stage in the proceeding including appeal or whenever an objection to the authenticity of the document is raised under the provisions of the said Rules of Professional conduct, 2007.PER S. N. ONNOGHEN, J.S.C
LEGAL PROCESSES – STATUS OF A LEGAL PROCESS WITHOUT THE LEGAL PRACTITIONER’S STAMP OR SEAL
“In this appeal this court says that legal processes without stamp or seal are voidable. That is to say such documents are deemed not to have been properly signed and not that they are invalid. Such documents are redeemed and made valid by a simple directive by the judge or the relevant authority at the time of filing the voidable document for erring counsel to affix stamp and seal as provided for in Rule 10 of the Legal Practitioners Act.” PER O. RHODES-VIVOUR, J.S.C
NOTICE OF APPEAL – A NOTICE OF APPEAL AS AN ORIGINATING PROCESS MUST BE SIGNED, STAMPED AND SEALED
“A Notice of Appeal is the originating process at an appellate court and the Notice of Appeal is clearly within the ambit of legal documents described in Rule 10(2) as many similar documents’ which must be signed, stamped and sealed. Therefore a Notice of Appeal not found with these components is an incompetent Notice of Appeal depriving the court of the jurisdiction to determine the appeal on the merit This within what was provided under the Legal Practitioners Act, Laws of the Federation 2004 (as amended) and the Rules of Professional conduct, rule 10(3). In this regard the case of FBN Plc v Maiwada & Ors (2013) 5 NWLR (Pt. 1348) 444 per Fabiyi JSC at 488 is helpful.” PER M. U. PETER-ODILI, J.S.C
LEGAL PRACTITIONERS- DUTY OF THE SUPREME COURT TO PROTECT THE PUBLIC FROM FAKE LEGAL PRACTITIONERS
“It is in keeping with these policy statements of this court that there is the need, an urgent one at that to protect the entire public from fakes parading themselves as legal practitioners and also the safe guarding of the profession itself which has been regulated and it is not for an individual lawyer or litigant to decide which regulation is an offhand directive that could be complied with or not. See Labaiyi v Anretiola (1992) 8 NWLR (Pt. 258) 139; Oloruntoba-Oiu v Abdul Raheem A Ors.(2009) LPELR 2596”.PER M. U. PETER-ODILI, J.S.C
RULES OF PROFESSIONAL CONDUCT – EFFECT OF NON–COMPLIANCE WITH THE RULES OF PROFESSIONAL CONDUCT
“Any non-compliance with the Rule 10(2) of RCP, with the circular of the Chief Justice of Nigeria as a reiteration is visited with the sanction that the process is without competence. It cannot be excused by talking of the inalienable right of a litigant to appeal as that right has to be exercised within the necessary prescribed Rules of legal practice.”PER M. U. PETER-ODILI, J.S.C
CONCURRENT FINDING OF FACT BY TWO LOWER COURTS -INSTANCES WHERE AN APPELLATE COURT WOULD INTERFERE WITH THE CONCURRENT FINDINGS OF FACT BY LOWER COURTS
“The law is trite and well settled in plethora of decided authorities that the court will not ordinarily interfere with such findings as it is not a matter of course. In other words, there must be special circumstance shown such as a violation of some principle of law or procedure or where such findings are shown to be perverse or patently erroneous and a miscarriage of justice will result if they are allowed to stand. See the case of Nsirim V. Nsirim 2001 FWLR Pt.96 P.433 at 445 per Iguh, JSC. See also R-Benkay Nigeria Ltd V. Cad bury Nigeria Pic 2012 All FWLR (Pt.631) Page 1450 at 1467.” PER C. B. OGUNBIYI, J.S.C
CONDITION PRECEDENT – FAILURE TO FULFILL A CONDITION PRECEDENT MANDATORY FOR DOING AN ACT, RENDERS THE ACT OF NON EFFECT
“The general rule is, where a condition precedent is mandatory for doing an act, the failure to fulfill that pre-condition will obviously render of non effect the doing of any act subsequent without first fulfilling the pre-condition. The mandatory nature of the foregoing requirement is made even more compelling in election matters which are (sui generes) of a special nature and where the Laws regulating same are so stringent and refusing any room for shifting position.”PER C. B. OGUNBIYI, J.S.C
Statutes Reffered To:
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