By Abdulhameed M. Aliyu Esq
On 9th February, 2023, BarristerNG.com via https://barristerng.com/download-judgment-machina-vs-lawan-the-controversial-supreme-court-decision/ published an unsigned and uncertified copy of the lead judgment of the Supreme Court of Nigeria delivered on 6th February, 2023 in Appeal No. SC/CV/1689/2022 – All Progressives Congress vs. Bashir Sheriff & 2 Ors.
From the online copy of the lead judgment, it revealed that five (5) Justices of the Supreme Court empanelled the Court namely Honourable Justice Chima Centus Nweze (who read the lead judgment), Honourable Justice Mohammed Lawal Garba, Honourable Justice Helen Moronkeji Ogunwumiju, Honourable Justice Adamu Jauro and Honourable Justice Emmanuel Akomaye Agim. As stated above, the Appellant in the Appeal is the All Progressives Congress (APC) while the Respondents are Bashir Sheriff, Ahmed Lawan and Independent National Electoral Commission (INEC).
It was an Appeal from the Court of Appeal, Abuja, which upheld the judgment of the Federal High Court, Damaturu Judicial Division in Yobe State. Since the delivery of the judgment of the Apex Court, the social media space has been agog with mixed emotional and analytical expression of concerns both for and against the three ratio two verdict. Courtesy of the above referenced online lead judgment, the writer was opportuned to read through and appraise the reasoning and findings of the Honourable Justices of the Supreme Court.
Although, the online copy of the lead judgment of the Apex Court resolved only number one (1) of the Appellant’s formulated issue in the appeal, thereby leaving out the other five issues of the Appellant as well as the two formulated issues of the 1st Respondent. For the clarity of any doubt, the Appellant’s issue number one (1) reads thus:
“Whether in the circumstances of the appeal before the Court below, especially with the allegation of fraud in the midst of other irreconcilable conflicts in the numerous affidavits, further affidavits filed by the parties in support of their various conflicting positions, the Court below was correct to hold that the trial Court was right to have adjudicated the 1st Respondent’s case on the 1st Respondent’s Originating Summons.”
The lead judgment solely resolved this issue against the 1st Respondent Bashir Sheriff, set aside the decision of the Court of Appeal and struck out his suit by finding that the Affidavits, Counter Affidavits and Further Affidavits of the parties including their accompanying exhibits revealed several allegations of fraudulent practices by both parties, hostile facts and irreconcilable conflicts, which Writ of Summons and not Originating Summons was an appropriate mode for commencement.
As rightly pointed out in the said judgment, the above has always been the position of the law from time immemorial and the reliance and quotations of Cotton L. J. in the cases of Re Powers, Lindsell v. Phillips (1885) 30 Ch. D 291 and Re Giles and Personal Advance Co. v. Michell (1890) 43 Ch. D 391 are apt and instructive on this procedural law of initiating the right mode to commence an action.
However, one may argue that election and pre-election matters are ordinarily sui generis i.e. ‘are in a class of their own’ by their very nature and therefore accommodate some exemptions to some of these general principles of law as regards mode of commencement, computation of time, time bound proceedings, no extension of time etc.
This is more so where it had become the practice for the Honourable Chief Judge of the Federal High Court of Nigeria to routinely release Practice Directions for Pre-election Matters towards the build up of any upcoming general poll in Nigeria. Of major concerns in any such Practice Directions of the Federal High Court for Pre-election matters is the extant prescribed mode to commence any pre-election, which has always been via Originating Summons and nothing else.For the benefit of the doubt, the Federal High Court (Pre-Election) Practice Directions, 2022 was published on 7th July, 2022 and referenced FHC/ABJ/INFO/036, which came to effect on Tuesday, 28th day of June, 2022.
Rule IV under the sub heading of ‘Filing of Processes’ reads thus;“(1) Every pre-election matter shall be commenced by an Originating Summons as specified in Forms 3, 4 or 5 of Appendix 6 to the Federal High Court (Civil Procedure) Rules with such variation as circumstances may require. (2) The Originating Summons shall be accompanied by: a. an affidavit setting out the facts relied upon; b. Copies of exhibits to the relied upon; c. a written address; d. An affidavit of non-multiplicity of action on the same subject matter.(3) A Respondent served with an Originating Summons shall within 7 days from the date of service of originating summons on him file the original copy of duly completed and signed Memorandum of Appearance as specified in Form 11 Appendix 6 of the Federal High Court (Civil Procedures) Rules with such modification or variations as the circumstances may require. (4) A Respondent served with an Originating Summons shall within 10 days of such service file in the registry of the Court, a Counter Affidavit and a written address, which may include any preliminary objections raised to the action. (5) An Applicant on whom a Respondent serves a defence, if the need arises, shall serve a Reply on that Respondent within 3 days of such service. (6) The Written Address shall be concise, typed in double spacing with font size of 12, numbered consecutively and shall not exceed 15 pages.”
I have painstakingly reproduced the above provision of the Rule IV of the FHC (Pre-Election) Practice Directions 2022 to establish the fact that the direction itself expressly provided for a specific mode of commencing pre-election matters i.e. via Originating Summons without any other alternative option whatsoever. Clearly, the rationale is not farfetched! Perhaps because it is ordinarily expected that any dispute arising from party primaries should majorly be centred around interpretation of documents to ascertain lawful winners nominated as candidate of any political party. After all, it is Section 84(14) of the Electoral Act, 2022 that donated locus to any aggrieved party in the selection or nomination of candidates of a political party to approach the Federal High Court for redress. It provides thus;
“Notwithstanding the provisions of this Act or Rules of a Political party, an aspirant who complains that ANY of the provisions of this Act and the Guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”
It is the writer’s view that the operational word in the above provision is ‘ANY’ as rightly emphasised, which connotes a wide blanket cause of action in pre-election matters, be it hostile facts, forgery, fraud and/or fraudulent allegations etc. There is no doubt that in the cause of preparing the Practice Directions, the Chief Judge of the Federal High Court is fully aware of this blanket cause of action emanating from pre-election activities of political parties before prescribing a single mode for the commencement of any such suit.
It is therefore inconceivable how and why pre-election disputes will not bear facts that are likely to be substantially hostile, especially where all parties in the suit are susceptible to justifying every actions and/or inactions, which they usually backed up with documentary evidence both for or against their respective claim and/or defence.
The question therefore is – why fault a litigant for adhering and complying with the only prescribed mode of commencing a sui generis matter i.e. pre-election matter in accordance with a duly issued Practice Direction under the hand of the Head of the Federal High Court?In practical, no registry of the Federal High Court will ordinarily accept, assess and process the filing process of a pre-election matter that is commenced under a different procedure other than the prescribed mode of Originating Summons as contained in the issued Practice Direction.
The frustrations meted on litigants and their Counsels are better imagined than experienced.Commencing, hearing and determining pre-election matters on Originating Summons ought to fall within the acceptable exceptions to the general applicable principles of the procedural law on the mode of commencement of a suit, the same way a motion on notice accompanied with affidavit and written address is the prescribed and applicable mode to seek the setting aside of a judgment obtained by fraud. It has never been the law that any alleged fraudulent means with which a judgment was allegedly procured has ever been subjected to Writ of Summons or calling of evidence. Rather, the Court has always indulge in resorting to deeper analysis of facts and documents in arriving at a decision on whether or not the allegation of fraud in the procurement of judgment had been established.
It is the writers’ humble view that there ought to be a departure from the current clinch by our Courts about the sweeping nature at which most pre-election matters are struck out on daily basis sequel to allegations on wrongful mode of commencing these suits due to hostile facts, conflicting documents etc. The reason is that if these trends are fully entrenched in our judicial precedence like a magic wand, it becomes needless to expressly prescribe a sole mode of commencing pre-election matters in the practice direction, when there are several options contained in the Federal High Court Rules.
The idea is to allow litigants and their counsels to introspect and decide which mode of commencement of their pre-election matter best suit their facts and documents to avoid hitting the brick wall at the Federal High Court, Court of Appeal or even Supreme Court. Parties and their counsel will take full responsibility for their failed suits held to be commenced via a wrong mode. The unnecessary blame game and avoidable criticism of our Judex who had discharged their heavenly duties would be minimized, if not completely prevented.
Abdulhameed M. Aliyu Esq. An Abuja Based Legal Practitioner 07036114698
