Supreme Court Rules 2024: Why the Reliance on Stale Constitutional Provision?
This article by Learned Senior Advocate, Sonny Ajala, discusses the new 2024 Supreme Court Rules, its notable innovative provisions, and the concern raised about its Order 4 Rule 16, with regard to the seeking of the leave of the Supreme Court to appeal against the decision of the Court of Appeal in civil matters in which leave is necessary, citing the fact that there is no foundation for same in the 1999 Constitution of Nigeria (as altered)
Introduction
The immediate past Chief Justice of Nigeria, Hon. Justice Olukayode Ariwoola, GCON, on August 1, 2024 signed the Supreme Court Rules, 2024 thereby repealing the 1985 Rules. The 2024 Rules became operationalised on August 15, 2024 when it was published in the Official Gazette, though the soft and hard copy became accessible to members of the public and legal practitioners in the first week of October, 2024.
Notable Innovative Provisions
The innovative provisions of the 2024 Rules, have received commendable reviews from legal scholars and legal practitioners. One of the innovations is Order 3 Rules 1 and 2 that codified digital/electronic service of court process via the electronic mail (email) address, GSM telephone number (whatsapp) or other available mode of communications. It is debatable if the Supreme Court version on electronic mode of service is an improvement of Order 7 Rule 11 (1) of the High Court of the Federal Capital Territory Civil Procedure Rules, 2018 that provides that; ‘Where service of an originating process is required by this Rules or any other enactment and the court is satisfied that prompt service cannot be effected, the court may upon application by the Claimant make such order for substituted service as may seem just’. Sub-clause e (i) of Order 7 Rule 11 (2) of the FCT High Court Rules stipulates further; ‘Email or any other scientific device now known or later developed and courier service or any other means convenient to the court’. Some analysts are of the view that the innovative sub-section e (i) of Order 7 Rule 11 (2) of the FCT High Court is radical, far-reaching and futuristic in content and context.
The other notable innovation of the Supreme Court new Rules, is the cognition of electronic signature as provided in Order 3 Rule 9(2) which aligns the Apex Court Rules with Sections 84C, 84D and 93 of the Evidence Act, 2011 as amended in 2023 that recognises electronic signature as acceptable and satisfies the requirement of the law for a human signature. Order 12 Rules 3, 4 and 5 of the 2024 Supreme Court Rules are significant too, as litigants and Counsel are forewarned of consequences of initiating appeal that is likely to be adjudged as an abuse of the Court’s process. Under this new regime, an adjudged abuser of the court process may be liable to pay the minimum punitive costs of N2million in civil appeal to the successful party. Where a Counsel is adjudged to have allowed himself prosecute a frivolous appeal, the punitive costs to be imposed is clearly stated and personally on the Counsel. State Counsel or any Counsel acting pursuant to a fiat of the Hon. Attorney-General of the Federation or of a State or a Counsel representing institutions such as the Police, the EFCC, the ICPC, etc is not spared from the imposition of punitive costs when the circumstance permits. Keen watchers of the justice sector believe that the regime of foreseeable and specific punitive costs imposable upon the infraction of the new Rules, will, to a large extent, deter the filing of appeals with scant substance and thereby, reduce drastically the workload/docket of the Apex Court.
Concern
However, despite the innovative milestones in the new Rules, concern has been expressed by the legal community over Order 4 Rule 16 of the 2024 Supreme Court Rules, that provides for leave of the Supreme Court to appeal against the decision of the Court of Appeal in respect of any civil or criminal proceedings in which leave to appeal is necessary…; The question remains, what is the basis, foundation or authority for the said Order 4 Rule 16 that provides for the mechanism of granting leave to appeal in ‘any civil appeal?
The Apex Court is a creation of the law, particularly Section 230 of the 1999 Constitution of the Federal republic of Nigeria as altered. Before the Second Alteration Act, 2010, Section 233(3) of the 1999 Constitution stated thus; ‘Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court. But, the Second Alteration Act, 2010; expunged sub-sections 3 and 4 of the hitherto Section 233 of the 1999 Constitution and leaving only sub-sections 1 and 2 as component of Section 233 of the of the 1999 Constitution as altered.
By the deed of the legislature (the Second Alteration Act, 2010), appeals from the Court of Appeal to the Supreme Court on civil matters became restricted as of right on questions of law alone. The said Section 233(2)(a) of the 1999 Constitution as altered provides that; ‘An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases: where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.
Effectively, by the Second Alteration Act, 2010 that repealed and deleted sub-sections 3 and 4 of Section 233 of the Constitution that hitherto provided for leave to appeal in civil matters against the decision of the Court of Appeal to the Apex Court, the Apex Court was divested of the power to entertain and grant leave to appeal in civil matters as the extant Section 233 that has only sub-sections 1 and 2 has no provision for the Supreme Court to entertain an application for leave to appeal in civil matters.
Since the courts derive their powers and jurisdiction from the Constitution or statute establishing it, the absence of such power or similar provision such as S.233(3) that was repealed by Second Alteration Act, 2010, the Supreme Court Rules 2024 with respect has no basis or foundation from the grundnorm to provide for application for leave, let alone granting leave to appeal. In Fasakin Foods v Shosanya 26 NSCOR, (Part 2) 641 at page 661-662, the Supreme Court, restated the law thus; ‘The Constitution, as has been well settled, is Supreme; the Organic or fundamental law and it is the grundnorm of Nigeria’. Stressing the import of courts to carry on their duties within the constitutional corridor, the Supeme Court, in the case of Oloruntoba-Oju & 4 Ors v Abdul-raheem & 3 Ors (2009) 5-6 S.C. (Pt. 11) 57 at 86-87 held that; ‘The jurisdiction of a court or tribunal is not inferred or imagined, but statutory. Courts are set up under the Constitution, Decrees, Acts, Laws and Edicts, they cloak the Courts with the powers and jurisdiction of adjudication. If the Statutes do not grant Jurisdiction to a Court or tribunal, the Court and the parties cannot by consent endow it with Jurisdiction. The Jurisdiction of a Court is confined, limited and circumscribed by the Statute creating it’.
Instructively, when an occasion presented itself on the construction of Section 233 of the 1999 Constitution as altered by the Second Alteration Act, 2010, the Apex Court of the land did not hesitate to give the seal of imprimatur to the repeal of the hitherto sub-sections 3 and 4 of Section 233 in the case of Shittu v PAN Ltd (2018) 15 NWLR (Pt. 1642), 195, at page 210 when it stated that; ‘…by virtue of section 233(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, the Supreme Court can only hear appeals where the ground of appeal involves questions of law. The Supreme Court no longer has jurisdiction to hear appeals where the ground of appeal involves questions of mixed law and facts. Appeals on grounds of mixed law and facts end at the Court of Appeal’
With the emphatic pronouncement of the Apex Court in 2018 in the case of Shittu v PAN Ltd (Supra) that sub-sections 3 and 4 of Section 233 of the Constitution have been repealed, it is therefore of serious concern that the explanatory note to Order 4 Rule 16 of the new Supreme Court Rules is anchored on Section 233(4) of the 1999 Constitution that no longer exists. It is trite that the courts cannot amend the Constitution suo moto as was held by the Apex Court in Dapianlong v Dariye (2007) 30 NSCQR, 1022 at page 1087 that, ‘It is settled law that the court cannot amend the Constitution, neither can they change the words’.
By the extant constitutional order and judicial pronouncement, there is no foundation for Order 4 Rule 16 of the new Supreme Court Rules that provided for leave to appeal against the decision of the Court of Appeal in civil matters where necessary. It is hoped the framers of the Supreme Court Rules, 2024 will for the sake of the certainty of the substantive and the adjectival law do the needful, to align the Rules of the Apex Court with the grundnorm of the land.
Dr Sonny Ajala, SAN, Abuja
