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Nigeria: How Strict Adherence to Rule of Law Can Salvage 2023 Elections

*Full Federal High Court (Pre-election) Practice Direction

Consequent on developments in the political space and its potential for severe implications for the 2023 general elections, the National Chairman, Independent National Electoral Commission, INEC, Professor Mahmood Yakubu, disclosed that there are 600 pre-election cases in the courts.

But it would seem that Hon. Justice John Terhemba Tsoho, the Chief Judge of the Federal High Court, perhaps, imbued with the power of clairvoyance, had anticipated such and, therefore, promulgated a Practice Direction on Tuesday, 28th June, 2022, for pre-election matters.

However, some sections are being violated and hence the number of pre-election cases. This report presents the full Practice Direction and how the courts and INEC can bring sanity to the 2023 electioneering process.

It is clear from court documents from the Federal High Court, FHC, which have so far have shown that a number of pre-election suits filed and assigned by the Registry of FHC, (either by error of omission or commission or time differential between when the Practice Direction was issued and when cases were filed) completely undermined the FHC that should, in the first place, adhere to its own rules against multiplicity of suits.

Rule 4 (2) states that “An originating summons shall be accompanied by:

(d)” An affidavit of non-multiplicity of action on the same matter”.

As do other sections of the Practice Direction, the FHC can set the tone for sanity, but, first, details of the Practice Direction:

FEDERAL REPUBLIC OF NIGERIA FEDERAL HIGH COURT OF NIGERIA (PRE-ELECTION) PRACTICE DIRECTIONS 2022

THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED)FEDERAL HIGH COURT (PRE-ELECTION) PRACTICE DIRECTIONS, 2022

ARRANGEMENT

OF RULES

Rule:

1. Objectives and Guiding Principles

2. Applicability

3. Parties

4. Filing of Process

5. Service of Process

6. Hearing

7. Interlocutory Applications

8. Miscellaneous

9. Interpretation

10. Citation

11 . Commencement

THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED)FEDERAL HIGH COURT (PRE-ELECTION) PRACTICE DIRECTIONS, 2022

In exercise of the powers conferred on me by virtue of Sections 254,285 (9), (10) and (14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Sections 29(5) and 84(14) of the Electoral Act, 2022 (as amended) and all other powers enabling me in that behalf, I, JOHN TERHEMBA TSOHO, the Honourable, the Chief Judge, Federal High Court, issue the following Practice Directions to the Federal High Court:

OBJECTIVES

AND GUIDING PRINCIPLES

1.-(1) The purpose of this Practice Directions is to-

(a) provide for a fair, impartial and expeditious determination of pre-election cases;

(b) ensure that in all election matters, the parties focus on matters which are genuinely in issue;

(c) minimize the time spent in dealing with interlocutory matters;

(d) ensure that the possibility of settlement is explored before the parties go into hearing;

(e) minimize undue adjournments and delays in the conduct of matters.

APPLICABILITY

2. -(1) This Practice Directions shall apply to every pre-election matter brought pursuant to the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act, 2022 (as amended).

(2) This Practice Directions shall apply notwithstanding the provisions of the Federal High Court (Civil Procedure) Rules, 2019.

(3) The Chief Judge of the Federal High Court may direct that matters be transferred to the appropriate Division or any other Division as may be reasonably practicable considering the given circumstances.

PARTIES

3. A party challenging the conduct or outcome of a Primary Election shall join as a Respondent in the suit, the person who emerged winner of the said election or whose name was forwarded by his political party to the Independent National Electoral Commission (INEC).

FILING OF PROCESSES

4. -(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 variations 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 be 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 within7 (seven) days from the date of service of the Originating Summons on him, file the original and copy of a duly completed and signed Memorandum of Appearance as specified in Form11 Appendix 6 of the Federal High Court (Civil Procedure)Rules with such modifications or variations as the circumstances may require.

(4) A Respondent served with an Originating Summons shall within 10 (ten) days of such service, file in the Registry of this Court, a counter affidavit and a written address, which may include any Preliminary Objection 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 (three) 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 (fifteen) pages.

(7) Any amendment to the Originating Summons may be made with the leave of Court within 7 (seven) days of service of the Respondent’s Reply.

(8) (i) All suits wherein the cause of action arose in a Judicial Division and the relief seeks a declaration or to compel or restrain person(s), natural or legal within that Judicial Division, with no consequence outside it, shall be filed, received or heard only within that Judicial Division.

PROVIDED THAT in other suits, in so far as the relief sought, or potential consequential order(s) or declaration(s) extend beyond the Judicial Division, shall be filed or received at Abuja and assigned by the Chief Judge.

(ii) In all other matters, as may require the attention of the Chief Judge, he may in the appropriate circumstance assign same to an appropriate Judicial Division.

SERVICE OF PROCESS

5.-(1) A party shall not serve a notice of an application on another party on the date scheduled for hearing.

(2) To ensure speedy dispensation of justice, electronic mail and other electronic means may be employed by the Court in order to inform counsel of urgent Court and case events.

PROVIDED THAT such notification shall be given at least forty-eight hours before the scheduled Court date.

(3) In line with the provisions of Rule 5(2) of this Rule, parties are expected to furnish the Court Registrar with functional telephone numbers and e-mail addresses of themselves and their counsel.

(4) An application for substituted service shall be as provided for in the Rules of this Court.

HEARING

6.-(1) Upon the close of exchange of processes between the parties, the Court shall within 7 (seven) days, set down the matter for hearing.

(2) The Court shall continue to accord priority to all pre-election matters until judgment is delivered.

(3) Where a matter comes up for hearing under this PracticeDirections and either of the parties is absent, the Court shall either suo motu or upon oral application by the Counsel for the party present, order that the address of the party absent be deemed adopted if it is satisfied that the parties had notice of proceedings.

(4) The Court and the parties shall prevent unnecessary delays and accordingly, not more than two adjournments shall be granted to any party to an action covered by the provisions of this Practice Directions.

PROVIDED THAT no application for adjournment shall be entertained on a day fixed for hearing.

(5) Where a party seeks to change his Counsel during the lifespan of a case, not more than two adjournments shall be granted to him to so do.

(6) Where it is expedient, and in furtherance of the objectives of this Practice Directions, the Court may schedule the time and date of hearing on such day and at such time as may be convenient for the parties.

(7) Counsel shall ensure that they are present in Court and ready to proceed with their case at all times.

(8) Where the provisions of Rule 6(7) of this Rule becomes impracticable by reason of ill-health or any other unavoidable incidence, such Counsel shall ensure that a Counsel of requisite knowledge of the issues before the Court is present in Court and ready to proceed with the case in his or her stead or apply that the case be heard virtually where practicable; with the consent of parties.

INTERLOCUTORY APPLICATIONS

7.- (1) Every application for Interlocutory Orders shall be on Notice, stating the Rule under which it is brought, the grounds for the reliefs sought and shall be supported by an Affidavit and a Written Address.

(2) The Respondent(s) upon being served with the processes, shall have 5 (five) days within which to file processes in response (if any) to the Motion on Notice and the Applicant shall have 3 (three) days to file a Reply (if any)to the processes of the Respondent(s).

(3) Pursuant to the provision of Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), ruling on Preliminary Objections and other interlocutory issues touching on the jurisdiction of the Court shall be suspended and delivered at the stage of final judgment;

PROVIDED THAT where the objection relates to service of originating processes, the Court shall satisfy itself that the parties have been properly served before proceeding to determine the substantive Suit.

(4) Every application for extension of time shall be by a Motion on Notice and shall be supported by an Affidavit setting forth good, substantial, cogent and verifiable reasons for failure to file within the prescribed period before time can be extended.

MISCELLANEOUS

8. The Federal High Court (Civil Procedure) Rules, 2019 shall apply to any issue not captured under this Practice Directions.

INTERPRETATION

9. Under this Practice Directions, pre-election matters are matters as defined by Section 285(14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

CITATION

10. This Practice Directions may be cited as the Federal High Court(Pre-Election) Practice Directions, 2022.

COMMENCEMENT

11. This Practice Directions shall come into effect from Tuesday, the 28th day of June, 2022.

MADE at Abuja, this 28th day of June, 2022.

HON. JUSTICE JOHN TERHEMBA TSOHO, THE HONOURABLE, THE CHIEF JUDGE FEDERAL HIGH COURT OF NIGERIA

The Issues

Whereas the pre-election Practice Direction came into effect on Tuesday, June 28, 2022, according to the records of the courts investigated by Vanguard, there were already, pre-election cases.

Investigations have revealed the following facts:

1. That DIG Ekpoudum vs Akpabio was first in time filed on Monday, 27th June, 2022 with

Suit No: FHC / Abj/ CS/ 1000/2022 btw Udom Ekpoudom. V. APC & INEC.

This case was filed a day before the Practice Direction came into effect.

2. Senator Godswill Akpabio, a lawyer and a man who insists he is committed to the rule of law and believes in the sovereignty of the courts, happened to have been part of the suit filed on Monday, 27th June, 2022.

Whether due to time differential or an oversight, another suit was again filed on the matter in another court, thereby, violating Rule 4 (2) which states that “An originating summons shall be accompanied by 4(2)(d)” An affidavit of non-multiplicity of action on the same matter”. That is there is no room for multiple suits in the same matter. This second case in Suit No: FHC/AbjCS /1011 /2022 btw APC & Akpabio .v. INEC filed on 29/6/2022 (and INEC) as the only defendant

Curiously, it was only INEC that was sued and DIG Ekpoudum, who happened to be at the centre of it all and whose name is in INEC senatorial primary report that INEC repeatedly, in its press releases, said it stood by, was not sued in the matter, thereby, violating Rule 3, (which talks about Parties To A Suit) was violated.

PARTIES Rule 3. A party challenging the conduct or outcome of a Primary Election shall join as a Respondent in the suit, the person who emerged winner of the said election or whose name was forwarded by his political party to the Independent National Electoral Commission (INEC).

3.Whereas INEC was served process on the DIG’s case, it refused or was unable to file any written response nor submitted the report submitted by its REC and was never represented by counsel throughout the suit despite being served with hearing notices.

4.However, in the Akpabio’s suit with INEC alone as defendant, INEC filed processes and was represented by Counsel who was also present in court to get the judgment for compliance.

The Questions

*How come the pre-election rule of non multiplicity of the same matter was missed and this same matter already pending in court 6, was again re-assigned to court 7 with a new suit number, the only difference in particulars?

*Why did INEC fail to inform the court that the same matter was already pending in an earlier suit that INEC was part of as a defendant?

*Does this mean that there was no deposition to an affidavit of non multiplicity of the same matter as required by Rule 4(2)(d)? And in the affirmative, what are the implications?

*INEC must enforce the spirit and letters of Section 84(13) of the Electoral Act 2022, on nomination of candidates by parties.

Section 84(13) provides the remedy, that “Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue”.

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