Legalpedia Citation: (2023-09) Legalpedia 39343 (SC)

In the Supreme Court of Nigeria

Holden At Lagos

Fri Sep 15, 2023

Suit Number: SC.CV/788/2023(R)

CORAM

Musa Dattijo Muhammad Justice, Supreme Court

Helen Moronkeji Ogunwumiju Justice, Supreme Court

Adamu Jauro Justice, Supreme Court

Tijjani Abubakar Justice, Supreme Court

Emmanuel Akomaye Agim Justice, Supreme Court

PARTIES

1. UCHE GEOFFREY NNAJI
2. ALL PROGRESSIVES CONGRESS (APC)

APPELLANTS

1. MBA PETER NDUBUISI
2. PEOPLES DEMOCRATIC PARTY
3. EDEOGA CHIJIOKE JONATHAN
4. LABOUR PARTY
5. NWEKE FRANK NNAEMEKA (JNR)
6. ALL PROGRESSIVES GRANR ALLIANCE (APGA)
7. INDEPENEDENT NATIONAL ELECTORAL COMMISSION

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

This is an application praying an order of this Court for departure from the Rules of this Court to file the Appellants’ brief of argument in this appeal exceeding 40 pages and deeming the Appellants/Applicants’ Brief of argument already filed exceeding 40 pages as properly filed and served. This was necessitated by the fact that the Supreme Court Pre-Election and Election Appeals Practice Direction 2023, mandates that Appellants written submission or reply to the submissions to be filed shall not exceed 40 pages and the Appellants brief of argument violated that provision. Added to this, the Appellant failed to file the brief within stipulated time.

This application was made under the Supreme Court rules but the learned Senior Counsel for the 1st respondent contented that the Appellants must bring their application under the Supreme Court Pre-election and Election Appeals Practice Direction, 2023 and not under the Supreme Court Rules 1999.

The trial Tribunal and the lower Court dismissed the Petition and appeal deeming the petition an abandoned petition due to the petitioners failure to ensure that service was effected before proceeding to file an application for the issuance of pre-hearing notice. Dissatisfied with the decision, the Appellant made the instant appeal.

HELD

Application dismissed (with one dissenting judgment)

ISSUES

Whether the Appellants/Applicants have shown in law and fact that they are entitled to the reliefs sought?

• Whether the Court below was right when the Court affirmed the decision of the Tribunal to dismiss the petition on the ground that the Appellants had abandoned the Petition?

RATIONES DECIDENDI

REPLY BRIEF – THE PURPOSE OF A REPLY BRIEF

It will be sufficient on my part to state that a reply on points of law is not meant to improve on the quality of a written address, it is mainly an opportunity to address new issues arising from the address of the Respondent… – Per Tijjani Abubakar, JSC

COURTS – CONDUCT OF COURTS WHERE THE PROVISION OF A STATUTE OR LAW IS CLEAR AND UNAMBIGUOUS

The law is very well settled that where a provision of a statute or law is clear and unambiguous, the duty of the Court is limited to construing the clear provisions by giving the words their plain, natural, and ordinary interpretation. Judicial inquiry terminates as soon as it appears clear that the language of the statute is clear plain and unambiguous see: AMAECHI V. INEC (2008) 5 NWLR (Pt. 1080) 227 SC. – Per Tijjani Abubakar, JSC

COURTS – CONDUCT OF COURTS WHERE A PARTY VIOLATES A CLEAR PROVISION OF LAW OR FAILS TO MEET A CONDITION PRECEDENT

Where a party on his own decides to act in flagrant disregard to the provisions of the law, he cannot turn around and seek for endorsement of an illegal act by the Court, such a party will obviously be left to his own device. The Appellants/Applicants decided to put the cart before the horse, this Court cannot endorse such brazen and flagrant disregard to its Rules. The law is fully settled that where there is a particular provision commanding that an act be done in a particular way as a condition precedent, if the act is not satisfied, the act carried out without satisfying condition precedent will be invalid.

Where a condition precedent is mandatory for doing an act, the failure to fulfill the pre-condition will render the act null and void. Failure to comply with condition precedent becomes more unpardonable where it is manifested in an election matter being time bound and sui generis.  – Per Tijjani Abubakar, JSC

PROCESS – WHERE THE REGISTRY OF THE COURT RECEIVES AN INVALID AND INCOMETENT PROCESS

…relating the submissions to a decision of this Court in MAKINDE, Paragraph 10(3) of the Supreme Court Pre-Election and Election Appeals Practice Direction 2023 is emphatic and explicit that a written submission or reply which does not comply with the provisions of this paragraph shall not be accepted by the registry for filing, the language of the law is very clear and unambiguous, mere receipt of an invalid and incompetent process by the registry of the Court cannot confer validity competence and legality on an otherwise, barren, sterile, void and incompetent process. – Per Tijjani Abubakar, JSC

BRIEF OF ARGUMENT – WHERE AN APPELLANT FAILS TO FILE BRIEF OF ARGUMENT WITHIN TIME

…the law is settled beyond any doubt that failure of an Appellant to file brief of argument within time can be likened to an abandonment of the appeal. In the instant case, the Appellants failed to file their brief of argument within time, the law must obviously take its Course, the appeal must be dismissed for failure to file brief, see OGBU V. URUM (1981) 4 SC 1. – Per Tijjani Abubakar, JSC

ELECTION PETITION – THE NATURE OF ELECTION PETITIONS

Election Petitions Proceedings being in a class of their own, time is of essence of the proceedings. Time limits provided, even by adjectival provisions, in such proceedings, are sacrosanct. Courts lack the competence of extending the limits thereunder provided for the taking of any steps in the proceedings. – Per M. D. Muhammad, JSC

 

STARE-DECISIS – THE IMPORTANCE OF SUBMITTING TO THE DOCTRINE OF STARE-DECISIS

Consistency in decisions provides for certainty and confidence in the adjudication process. In a moment like this, it is rewarding to readily submit to the doctrine of stare-decisis. We must refrain from deviating from principles earlier expounded by this Court in respect of similar facts and same or similar legislations. See ADISA V. OYINWOLA & ORS (2000) LPELR – 186 (SC).

In HON ATTORNEY GENERAL ABIA STATE & ORS V. ATTORNEY GENERAL OF FEDERATION (2022) LPELR – 57010 (SC) (P18 PARAS A-F). I had occasion to restate the principle thus:-

“The place of precedent, the doctrine of stare-decisis in adjudication, is an eminent one. The question of whether or not the decisions of this Court bind subordinate and indeed, the Court itself, is no longer open to argument. The doctrine directs that once a point of law has earlier been pronounced upon by a Court of competent jurisdiction, the Court and those subordinate to it are bound by such pronouncements on the very principle in a subsequent case. In the case at hand, if any of the sections to be interpreted had previously been interpreted, the Court would be bound by its earlier construction except if same is demonstrated to be reached per incuriam or is unjust to persist. For us, Section 287 of the 1999 Constitution (as amended) has codified this common Law doctrine.”  – Per M. D. Muhammad, JSC

ELECTION PETITIONS – WHETHER TIME CAN BE EXTENDED FOR STEPS TO BE TAKEN IN AN ELECTION PETITION

Now, in a seemingly endless chain of its decisions, this Court has settled the principle that in election proceedings where time is made of essence and steps had not been taken within the time provided, time cannot be extended for the steps to be subsequently taken. See HASSAN V. ALIYU (2010) LPELR – 1357 (SC) OMISORE V. AREGBESOLA (2015) LPELR – 24803 and KULLOMA UMARA V. ABDULLAHI IDRISS & ORS (2023) LPELR – 60097(SC).

In HON. USMAN IBRAHIM V. HON. LAWAL ADAMU USMAN & ORS, (2023) LPELR – 60315 (SC) at (pp 18-20 paragraphs F – C), the Court per Ogunwumiju JSC has held thus:-

“In the instant appeal, the Appellant filed his Respondent’s brief of argument out of time. He has conceded under issue one herein that he was served with the 1st respondent’s processes on 7th December, 2022. The Appellant waited till 14th December, 2022 to file a motion for extension of time to file his brief of argument. By the provisions of paragraph 12 of the Court’s below, Election Judicial Proceedings Practice Direction, 2022, a Respondent has only (5) days to file his Respondent’s brief. The Appellant’s argument that there were no provisions of the Practice Directions that precluded the Court below from extending time cannot stand as it is not supportable by the law as espoused in MAKU v. SULE(2022) 3 NWLR Pt. 1817 Pg. 231 at 258. See also OFORKIRE & ANOR v. MADUIKE & ORS (2003) LPELR 2269 (SC); SHARING CROSS EDUCATIONAL SERVICES v. UMARU ADAMU ENTERPRISES LTD & ORS (2020) LPELR-4956 (SC).”

My learned brother, Garba JSC, authoritatively debuts further in WELLINGTON V. POPLES DEMOCRATIC PARTY & ORS (2023) LPELR – 60003 (SC) at page 20, para B-E inter-alia as follows:-

“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 provision.” – Per M. D. Muhammad, JSC

PRELIMINARY OBJECTION – WHETHER A PRELIMINARY OBJECTION ESTOPS AN APPLICANT FROM TAKING STEPS TO REMEDY DEFECTS IN HIS PROCESS

In TSOKWA OIL v. BON (2002) 11 NWLR Pt. 777 Pg. 163, the Supreme Court held that a preliminary objection does not estop the Applicant from taking steps to remedy defects in his process. See also SHANU v. AFRIBANK Plc (2000) 10-11 SC Pg. 1. – Per H. M. Ogunwumiju, JSC

COURTS – CONDUCT OF THE COURT WHERE AN INFRACTION ROBS THE COURT OF PROCEDURAL COMPETENCE

My Lords, paragraph 10(1)(a) of the Supreme Court Practice Directions 2023 provides that a written submission or a reply to a written submission shall not exceed 40 pages. In paragraph 10(3) the Practice Directions stipulates that where the brief is not in compliance with paragraph 10(1)(a), the said brief should not be accepted by the Registry. It is clear that the Supreme Court Practice Directions 2023 in relation to what happens to a brief that violates the number of pages stipulated is still the same as the previous Practice Directions of this Court. The only “sanction” provided by the Practice Directions is that the brief should not be accepted by the Registry. Nowhere in paragraph 10 of the Practice Directions is the word “invalid” used in relation to a brief in excess of 40 pages. The case law in respect of briefs filed out of time in this Court is that such briefs are invalid particularly in election matters where time is of the essence and parties must not be tardy in filing relevant process.

This Court has held that where such a brief had in fact been accepted by the Registry of this Court, the excessiveness of the pages of the brief contrary to Paragraph 9(a) of the Practice Directions on Election Appeals (2010)”… is not enough reason to strike out the brief”. See EMERHOR & ANOR v. IFEANYIOKOWA & ORS (SUPRA). Recently, in MAKINDE v. ADEKOLA (SUPRA), the full Court Peter-Odili, Muhammad, Okoro, Nweze, Augie, Eko, Galumje JJSC all agreed, Eko JSC writing the lead and held as follows at Pg. 36 of the NWLR:

“The second ground for the preliminary objection is that the Appellants’ Brief exceeded 40 pages in breach of paragraph 9(b) of the said Practice Direction. The Court in PDP v. INEC (2012) 7 NWLR Pt. 1300 Page 538 and EMERHOR v. OKOWA (2010) 11 NWLR Pt. 1522 Page 1 at 24-25 had made pronouncements on similar objections predicated on briefs in excess of the prescribed pages. In both cases, it was held that once such briefs had been accepted for filing and had infact been duly filed, the ends of justice would not be met by striking out such processes, and that doing so would be too harsh to the erring party. The Court of justice, not being a Court of technicality will not readily jump at such option that inflicts hardships and injustice. The Notice of Preliminary Objection is not properly directed at the competence of the appeal. Rather, it is directed at the irregularity of the Briefs of Argument. Even if it had been properly directed at the competence of the appeal, since it is evidence based and there being no evidence establishing the substance of the objection, I will dismiss and overrule it. The preliminary objection is hereby overruled and discountenanced.”

I believe we are bound by the opinion expressed above. Not only that, we are bound by the very words of the Supreme Court Practice Directions 2023. The Practice Directions did not provide the extreme sanction of rendering the brief invalid by reason of non-compliance with the provisions relating to the number of pages of the brief filed. In fact, it has always been the case that the rules of practice in this Court are sometimes more lenient than the rules of practice in the lower Courts. This is not surprising as this Court is the Court of last resort. In any event, if the maker of the Supreme Court Practice Directions had intended such an extreme sanction as the invalidation of the brief for non-compliance with Paragraph 10(1)(a), the paragraph would have emphatically stated so. We cannot read into a directory or law what it does not expressly contain as we must interpret the words of the subsidiary legislation as precisely as stated. For instance, Paragraph 14(c) of the Election Judicial Proceedings Practice Directions, 2023 made for the Court of Appeal provides categorically that:

Any Brief of Argument which does not comply with the provisions shall be invalid.

In such a case, there is no discretion vested in the judicial officer but to invalidate the brief. The provisions of the Court of Appeal Practice Directions are different from the Supreme Court Practice Directions in relation to what happens to a brief in excess of the directed number. The position of this Court had always been that in the interest of justice, particularly in election matters, the Court would not visit the litigant with the extreme sanction.

​My Lords, an infraction which robs the Court of its procedural competence rather than its substantive competence can be cured. Where a Court has substantive jurisdictions and there is lack of competence because of a procedural hitch, such incompetence can be waived by the Court or the Court can allow the party in disobedience to cure same. See MOBIL PRODUCING NIG. v. LASEPA ​(2002) 18 NWLR Pt. 798 Pg. 1 at 32, ETI-OSA LOCAL GOVERNMENT v. JEGEDE (2007) 10 NWLR Pt. 1043 Pg. 537 at 555.

Strict interpretation of Section 285 of the 1999 Constitution (as altered) must not translate into the truncating or abortion of substantial justice. Where some of the rules of the Practice Directions if strictly interpreted will defeat the ends of justice, the Practice Directions or the Rules in the various legislations should be treated as an irregularity and not allowed to vitiate the proceedings. – Per H. M. Ogunwumiju, JSC

 

SERVICE – DUTY OF PARTY CLAIMING THAT SERVICE HAS BEEN EFFECTED TO ESTABLISH SAME BY EVIDENCE

Service of process is a matter of fact and law and cannot be presumed. It is incumbent on the party claiming that service had been effected to establish by evidence the date, time and on whom service was effected. – Per H. M. Ogunwumiju, JSC

SERVICE – WHERE AN APPLICATION FOR THE ISSUANCE OF PRE-HEARING NOTICE WAS MADE PRIOR TO THE SERVICE OF THE LAST LEADING PETITION

In MAKU v. SULE (2022) 3 NWLR Pt. 1817 Pg. 231 at 271-272 this Court held unequivocally that where an application for the issuance of pre-hearing notice was made prior to the service of the last pleading in the Petition, such an application would be incompetent. See also EZENWO v. FESTUS (NO. 2) (2020) 16 NWLR Pt. 1750 Pg. 324. – Per H. M. Ogunwumiju, JSC

COURTS – CONDUCT OF COURTS WHERE A RULE OF PRACTICE HAS BEEN GIVEN STRICT INTERPRETATION

All the arguments about the technicality of this provision and how it should not be used to stultify the proceedings cannot stand. This is a Court of justice and where a rule of practice has been given a strict interpretation or strictly administered, a Court of justice is bound to follow the case law and precedent on the issue. It seems to me that the settled position on this issue is that a Petitioner should wait like a hawk trying to abduct a chick to ensure that as soon as pleadings have closed in the petition, he must apply for prehearing forms within 7 days thereafter. Not a moment less or more. It is unfortunate that the diligence required was wanting in this case. – Per H. M. Ogunwumiju, JSC

PETITION – WHERE A RESPONDENT TAKES CERTAIN STEPS BEFORE ASKING FOR THE DISMISSAL OF A PETITION PURSUANT TO PARAGRAPH 18 (4) OF THE FIRST SCHEDULE

My Lords, the previous position of this Court has been that once the Respondent had taken certain procedural steps, before applying for the dismissal of the petition pursuant to paragraph 18(4) of the first schedule, the Courts by virtue of Paragraph 53 are to refuse the relief. SeeHARUNA YUNUSA SAEED & ANOR v. PATRICK IBRAHIM YAKOWA & 1 ORS (2012) 2 SCNJ 404 at 408-409; (2013) 7 NWLR Pt. 1352 Pg. 124. That position was changed by this Court as far back as SENATOR IYIOLA OMISORE v. OGBENI AREGBESOLA (2015) LPELR – 24803 Pg. 88- 89; (2015) 15 NWLR Pt. 1482 Pg. 205 to the effect that the sanction attached to the violation of Paragraph 18(1) does not contemplate an extension of time scenario and a petition cannot find solace in paragraph 53(1). – Per H. M. Ogunwumiju, JSC

PETITION – WHETHER A TRIBUNAL CAN ACT ON AN ABANDONED PETITION

A Tribunal cannot adjudicate on an abandoned petition. That has been the position of this Court. See OMISORE & ANOR v. AREGBESOLA & ORS (2015) LPELR 24803 (SC), OKEREKE v. YAR’ADUA & ORS (2008) LPELR- 2446 (SC), EZENWO v. FESTUS (NO. 2) (2020) 16 NWLR Pt. 1750 Pg. 324 and lately MAKU v. SULE (2022) 3 NWLR Pt. 1817 Pg. 231.

In MAKU v. SULE (SUPRA), My Lord Muhammad JSC in the lead judgment endorsed and adopted Nweze JSC in OMISORE v. AREGBESOLA (SUPRA) at Pages 88-89, Paragraph B-D of the LPELR thus:

“I find sufficient merit in the contention of the respondents here. I endorse the unanswerable submission that the Tribunal, having found that the said pre-hearing notice application was not filed within the time stipulated after close of pleadings pursuant to Paragraph 18(1) (supra), ought to have dismissed the petition under paragraph 18(4) (supra) as being abandoned, Enwezor v. INEC (2009) 8 NWLR (Pt. 1143) 223, 237; Okereke v. Yar’Adua [2008] 12 NWLR (Pt. 1100) 95; Dada v. Dosunmu [2006] 18 NWLR (Pt. 1010) 134, 166; Mohammed v. Martins Electronics ​(2009) LPELR-3708. It is not in doubt that the draftsperson of the said Act, aware of the obvious time constraints on the Tribunals dealing with election matters in complying with the timeframes therein, deliberately wove some new case management techniques into the Act with a view to empowering them (trial Tribunals) to control and manage the proceedings expeditiously. Paragraph 18(1) is one of such mechanisms. It is, thus, a deliberate device which erected time frames by calendaring the permissible periods for consummating or accomplishing certain steps within the time management regime created in the Act itself, Okechukwu v. INEC (supra). The consequence is that if a petitioner fails to consummate the issuance of prehearing notice [From TF007] within seven days, he cannot fall back on paragraph 53(1), a provision which because Paragraph 18(4) (supra) prohibits the extension of time, is inapplicable and, so, does not avail such a tardy petitioner.”

​Also, the concurring opinion of Odili, JSC pronounced on the position of the law at pages 271-272 of the NWLR. thus:

“The instant case falls squarely within the first segment of the provisions of paragraph 18 of the First Schedule to the Act. The petitioners/appellants’ second application dated and filed on 11th July, 2011 was simultaneously filed with the reply on the 3rd respondents reply.

The application was premature and therefore incompetent, having been filed in violation of the provisions of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 as amended. The consequence of such breach is captured in the case of AZUDIBIA v. INEC (2008) 4 LRECN 705 at 126 where it was held per Kekere-Ekun, JCA:

A process filed prematurely is a mere piece of paper without any legal consequence. A condition precedent to the filing of an application for issuance of prehearing notice is that pleadings must have closed or are deemed to have closed. Until the happening of the condition precedent, there can be no competent application for pre-hearing notice before the tribunal. In the circumstance, I have no doubt in my mind, that the answer to the first issue ought to be in the positive to the effect that the lower Tribunal was right to have dismissed the instant petition (EPT/ NS/GOV/04/ 2019) as an abandoned petition pursuant to paragraph 18 of the First Schedule to the Electoral Act, 2010 as amended.” – Per H. M. Ogunwumiju, JSC

 

ELECTORAL ACT – THE GOAL OF PARAGRAPH 18 (4) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT

However, I have always endorsed the opinion of the Court of Appeal in EZENDU v. JOHN (2012) 7 NWLR Pt. 1298 Pg. 21 where the penultimate Court held as follows:

“I am of the opinion that the Tribunal also erred in dismissing the appellant’s petition on the ground that the application, by the appellant, for the issuance of pre-hearing notice (Form TF007) was premature. If the Tribunal had calmly and painstakingly read the previous provisions of paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) it would been (sic) clear to it that the intention of the legislature is to ensure that parties are diligent in the prosecution and or defence of election petitions.

Paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended) is not intended to truncate a petition merely because the petitioner is ‘overzealous’ in the prosecution of his petition. That subparagraph is intended to punish a petitioner who is indolent in the prosecution of his petition.” – Per H. M. Ogunwumiju, JSC

JUSTICE – THE NEED FOR SUBSTANTIAL JUSTICE IN ADJUDICATION

Be that as it may, in considering the need to enthrone substantial rather than technical justice, the Court as a matter of urgency should walk back to its previous position in ABUBAKAR v. NASAMU (NO. 2) (2012) 17 NWLR Pt. 1330 Pg. 523 at 582. Therein, this Court held that:

“I must say even though the provisions of the First Schedule to the Electoral Act, 2004 are now of the status of statutory provisions, they are still, in the main, concerned with procedural matters aimed at smoothening out the process of determining election matters and not to hinder or impede their due administration. They have not by that baptism, so to speak, ceased to be tools as handmaids for the Courts to use in the expeditious hearing and doing justice in election matters. The Courts, I dare say, should not timorously succumb to technical objections as the instant one, with respect, that are fanciful and lacking in focus and even then deliberately designed to stultify the processes of moving the cases forward in the interest of justice. A simple process as contemplated as per Paragraph 18(1) which has been made to facilitate very expeditious hearing of election matters, has now been turned into a process for a quick kill of election matters albeit with respect by unwholesome practices and so run out of time the lives of the election petitions as they are time-limited by the Act, most of the time to the prejudice of the Petitioners; clearly in a manner not in consonance with the object of the Act nor within the intendment of the lawmaker and thus, deny doing substantial justice, particularly so where it matters most, that is to say, in dealing with election petition matters. The polity’s confidence in our system of adjudication is thereby greatly eroded to our chagrin. And so, doing substantial justice shall always be the watch-word of our Courts in election matters.” – Per H. M. Ogunwumiju, JSC

 

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Supreme Court of Nigeria pre-election and Election Appeals Practice Direction 2023.
3. Election Judicial Proceedings Practice Direction, 2022
4. Supreme Court Rules 1999 (as amended)
5. Electoral Act, 2022
6. Electoral Act, 2010
7. Electoral Act, 2004

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