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In election matters time is of essence

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JusticeIN THE SUPREME COURT OF NIGERIA
HOLDEN ATABUJA
ON FRIDAY, THE 13TH DAY OF NOVEMBER, 2015
BEFORE THEIR LORDSHIPS
W.S.N ONNOGHEN JUSTICE, SUPREME COURT
BODE RHODES-VIVOUR JUSTICE, SUPREME COURT
NWALI S. NGWUTA JUSTICE, SUPREME COURT
MARY U. PETER-ODILI JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT
MUSA D. MUHAMMAD JUSTICE, SUPREME COURT
CLARA B. OGUNBIYI JUSTICE, SUPREME COURT
SC. 722/2015
BETWEEN:
1. SENATOR BELLO SARKIN YAKI (RTD) APPELLANTS
2. PEOPLES DEMOCRATIC PARTY (PDP)
AND
1. SENATOR ATIKU ABUBAKAR BAGUDU
2. ALL PROGRESSIVES CONGRESS (APC) RESPONDENTS
3. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC)

Election matters are time-bound and provisions fixing time for taking any steps are strictly construed to emphasize that time is of the essence in election petitions. In a purely civil matter, the filing of a process a day after the period prescribed for the filing can be regularized 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.

So held the Supreme Court Holden in Abuja in a unanimous Ruling delivered by His lordship, Nwali S. Ngwuta, with his learned brothers Bode Rhodes-Vivour, Mary U. Peter- Odili, Olukayode Ariwoola, Musa D. Mohammed and Clara B. Ogunbiyi, JJSC concurring while allowing the appeal. The parties were represented by Henry Michael-Ihunde, (with him are; Messrs I. Mohammed, B. B. Orpin, B. Onamusi, D. M. Cephas, I. M. Oluwasina, S. E. Tobi, Keffas Gadzama, D. I. Onyekwere, C. U, Onyedima and M. S. Yusuf), for the Appellants; Ricky Tarfa, SAN., (with him; Messrs Y. C. Maikyau, SAN., J. O. Odubela, O. Joladiwo, K. U. Uwagbode, M. A. Osigwe, N. Obasi Obi, T. A. Rapu and M. Adelodun), for the 1st Respondent; A. J. Owonikoko, SAN., (with him; Lagalo D. Lagalo), for the 2nd Respondent/Cross-Appellant; S. O. Ibrahim, (with him; Messrs A. Sani, I. S. Mohammed, Akinyosoye Arosanyi, Jude D. Odey and C. S. Ogba), for the 3rd Respondent.

JUDGMENT
This appeal involves the consequence of failure to comply with the provisions of Paragraph 18 (1) of the 1st Schedule to the Electoral Act, 2010 (as amended). It provides:
Para. 18 (1): Within 7 days after the filing and service of the petitioner’s reply as the Respondent or 7 days after the filing and service of the Respondent’s reply, as the case may be, the petitioner shall apply for the issuance of prehearing notice as in Form TF 008.”

It is not in dispute that the last date for the Appellants as Petitioners to apply for the issuance of the pre-hearing notice was the 7th day of June 2015 nor is it in doubt that the Appellants actually filed the application for the issuance of the pre-hearing notice on 8/6/2015. Paragraph 18(3) gives the Respondent a choice in case of failure by the petitioner to comply with Paragraph 18(1), between bringing the application for the issuance of pre-hearing notice or a motion on notice for an order dismissing the 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 re-opening of the petition once dismissed. It provides: “18(5): Dismissal of a petition pursuant to subparagraphs 3 and 4 is final and the tribunal or court shall be functus officio.”

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 precondition for same – See: Okolo v. Union Bank (2004) 1 S.C. (Pt. I) 1 for effect of failure to comply with condition precedent provided by law or rule.
Whether or not the motion to dismiss the petition was brought timely is a non-issue. The matter relates to the jurisdiction of the tribunal to hear the petition and a challenge to jurisdiction can be brought at any stage of the proceedings – See: Bronik Motors v. Wema Bank (1983) 6 S.C. (Reprint) 94.

Even if the motion to dismiss the petition was not filed the tribunal could have dismissed the petition by virtue of sub-paragraph 4 of Paragraph 18 of the 1st

Schedule to the Act.
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 All NLR 63; Ige v. Olunloyo (1984) 1 S.C. (Reprint) 195. An election petition is a proceeding sui generis – See: Buhari v. Yusuf (2003) 6 S.C. (Pt. II) 156.
In the circumstances, Appellants could not have filed a motion for extension of time and if one had been filed it could not have been entertained by the tribunal.

See Paragraph 18 (5) of the 1st Schedule to the Act (supra).
Based on the above, the appeal was dismissed and the judgment of the court below affirmed.
1st Respondent’s Cross-Appeal:
The complaint here is that the Appellant did not indicate on which of his two notices of appeal he predicated his Appellant’s brief. Appellants conceded filing two different notices of appeal and did not elect to rely on either of the two processes. Appellants
justified their action by reliance on the fact that the rules did not provide for election in such circumstances.
This argument is untenable. Order 2 Rule 4 provides for service of notice of appeal and not notices of appeal. The phrase “… after the notice of appeal…” does not envisage multiple notices of appeal. There are similar provisions in the High Court and Court of Appeal Rules. In any case, it is an affront to logic and common sense to argue that an Appellant can file more than one notice of appeal without indicating on which one he relies.

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 S.C. (Pt. II) 25; First Bank of Nigeria Plc. v. T.S.A. Industries Ltd. (2010) 4-7 S.C. (Pt. I) 242. The 1st
Respondent read the Appellants brief and made a decision to rely on one of the two notices filed within time. Not only was the 1st
Respondent not misled by the two notices of appeal, he did not disclose any injury he suffered for which he could seek redress.
He cannot be heard to argue that another Respondent elected to rely on the other notice of appeal.
That the 2nd Respondent elected to rely on a different notice of appeal does not constitute an injury for which the 1st
Respondent could seek redress. 1st Respondent made a knowing and understanding waiver of his right to demand on being served the Appellants’ brief, on which of the two notices of appeal the Appellants predicated their brief if he was in doubt.
Cross-appeal of the 1st Respondent lacked substance and it was dismissed as unnecessary.

2nd Respondent’s Cross-Appeal:
In his cross-appeal, the 2nd Respondent raised this single issue for resolution:
“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…”
The issue calls for application of Rule 10(1) (2) and (3) of the Rules of Professional Conduct, 2007.
The 2nd Respondent placed reliance on said rule hereunder reproduced:

“Rule 10:
(1) A lawyer acting in his capacity as a legal practitioner legal officer or adviser of any governmental department of Ministry or any Corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp
approved by the Nigerian Bar

Association,
(2) For the purpose of this rule “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents. (3) If, without complying with the requirements of this rule a lawyer signs or files any legal documents as defined in sub-rule 2 of this rule, and in any of the capacities mentioned in sub-rule (2), the document so signed or filed shall be deemed not to have been properly signed or filed.”
The documents in question here purportedly signed and filed by a lawyer in his capacity as legal practitioner did not have on it “a seal and stamp approved by the

Nigerian Bar Association.” The process so signed and filed is a legal process within the intendment of Rule 10(2) of the Rules.
What is the consequence of a legal document signed and filed in contravention of Rule 10(1) in the Rules?
The answer is as provided in Rule 10(3) to the effect that “… the document so signed or filed shall be deemed not to have been properly signed or filed.” It is my humble view that the legal document so signed and/or filed is not null and void or incompetent like the case of a court process signed in the name of a corporation or association (even of lawyers) – See: Okafor v. Nweke (2007) 3 S.C.
(Pt. II) 55 cited by the learned silk for 2nd Respondent/ Cross-Appellant. The document, in terms of the Rule, is deemed not to have been properly signed or filed, but not incompetent as the 2nd Respondent assumed.

It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met. It is akin to a legal document or process filed at the expiration of the time allowed by the rules or extended by the court.
In such cases, the filing of the process can be regularised by extension of time and a deeming order. In the case at hand, the process filed in breach of Rule 10(1) can be saved and it’s signing and filing regularised by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. Since this was not done the court cannot take cognizance of a document not properly filed and the filing not regularised.

I do not subscribe to the Respondent’s view that the rule does not provide any punishment for its breach.
That the legal document is deemed not properly signed and filed is enough sanction for the breach of the rule.
There is also the argument that the rule constitutes a curtailment of the right of appeal under the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

No right, including the right of appeal, is absolute.
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.
It is for the above that we allowed the cross-appeal and set aside the judgment of the Court of Appeal.
In conclusion, we dismissed the appeal as well as the 1st Respondent’s cross-appeal and allowed the cross appeal of the 2nd Respondent. It was ordered that parties bear their respective costs.


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