A Critique of the New Supreme Court Rules and Sundry Legal Anomalies (Part 1)

Introduction 

The immediate past Chief Justice of Nigeria (Hon. Justice Ariwoola) ought to be remembered for the parting gift of sorts which he handed to the Court, Lawyers and litigants in the form of the Supreme Court Rules, 2024. Enacted on the eve of his departure in August 2024, the Rules have been broadly welcomed by stakeholders for harmonising the disparate rules of practice and procedure applicable in that Court (the last iteration of the Rule, in 1985 and the sundry practice directions which have been added to it since then) into what is hopefully a harmonious whole. Is that hope misplaced or is it deserved? Are the Rules (or any of their provisions) problematic, anomalous or even outrightly ultra vires (and therefore, invalid) vis-à-vis relevant standards and norms such as the Constitution, the Legal Practitioners Act and the African Charter on Human & Peoples rights? Let us find out, but first, the usual preliminaries.

Practice and Procedure of the Supreme Court of Nigeria

By virtue of Section 236 of the Constitution, the Chief Justice of Nigeria is empowered to make rules of practice and procedure applicable in the Supreme Court.  Those powers are however, not at large, but are to be exercised subject to the provisions any Act of the National Assembly. That statute is the Supreme Court Act, Section 9 of which provides that “subject to the provision of any other enactment, the practice and procedure of the Supreme Court shall be in accordance with this Act and rules of court”.

What Difference do the New Rules Make?

As previously noted, the new Supreme Court Rules (SCR) have been broadly welcomed by all and sundry, given the public’s perception that they introduced innovations to the court’s justice delivery toolkit. As ever, however, the devil is in the details and we shall see to what extent, if any, the Rules live up to the hype. In this regard, I believe at least three of the supposed innovations of the Rules give room for not a little concern. I am referring here to the provisions dealing with costs, right of audience, conditions for prosecuting appeals and restrictions within the exercise of such rights by a party. We take them seriatim.

Costs

The new Rules provide that not only will Counsel who supposedly engage in abuse of court process be penalised with punitive costs to be paid personally by such Counsel (including those acting for State/Federal Government and public institutions), any Counsel who defaults in making such payments will not have the right of audience in any superior court in Nigeria. I believe this is problematic, for at least two reasons. To start with, the right to Counsel of one’s choice – in criminal cases – is a fundamental right under Section 36(6)(c) of the Constitution. To that extent, it is clear that to deny a suspect or accused person of that right on the ground that the Counsel is in default of certain costs awarded against him, would violate this constitutional right (which, by the way, is also guaranteed under Article 7 of the African (Charter).

Beyond that, however, the Legal Practitioners Act also provides (in Section 5 thereof) that a legal practitioner shall have the right of audience in all courts of law in Nigeria. That right is subject to only one condition under the Act: payment of annual practicing fee by such legal practitioners. The Act is silent on any default by a legal practitioner to pay costs, as a ground for denying him audience in court: expressio unius est exclusio alterius: the express mention of one thing in a statute implies the exclusion of others, which might

otherwise be included. See ATT-GEN. OF THE FEDERATION v ABUBAKAR (2007) ALL FWLR Pt. 375 Pg.405 at 553B.

Right of Audience

Yet another problematic provision of the Rules, is the one which limits the number of Counsel appearing in any given case before the Apex Court. Under the new Rules, this is pegged at 6, including a Senior Advocate where there are more than one Senior Advocate, the number of Counsel is pegged at a maximum of 8. I believe this is an undue fetter on a party’s right to Counsel of his or her choice, which, in criminal cases, is a fundamental right. No rule of court can abridge or curtail a fundamental right under the Constitution, or the African Charter. 

Not even an Act of the National Assembly. The Constitution is supreme and, next to it, is the African Charter. See ABACHA v FAWEHINMI (2000) 6 Pt. 660 Pg. 228 at 315 and IGP v ANPP (2007) 18 NWLR Pt. 1066 Pg. 457 at 500C.

Furthermore, however, this particular provision of the new Rules is too sweeping, as it extends beyond the Supreme Court to all superior courts of record in Nigeria. By virtue of Section 6(5) of the Constitution, such courts includes the Court of Appeal, the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, the High Court of a State, Sharia Court of Appeal of the FCT, the Sharia Court of Appeal of States, Customary Court of Appeal of the FCT and of the States. I believe it is anomalous for this provision of the new Rules to purport to apply to these other courts, because it is trite law that rules of practice enacted for one court only apply to that court, and cannot apply to other courts: See NNEJI v CHUKWU (1988) 3 NWLR Pt. 81 Pg. 184 at 205 per Oputa, JSC. A head of court is only empowered to enact rules of procedure applicable to that court, and no other: TUKUR v GOVERNMENT OF GONGOLA STATE (1988) 1 NWLR Pt. 117 Pg. 39 at 50.

Conditions of Appeal

Another anomalous provision of the new Rules, in my view, is the requirement for a prospective Appellant to provide a bond or guarantee that he will diligently prosecute the appeal. This is novel stipulation, is a condition for hearing the appeal. A similar provision is the requirement of an undertaking by the Appellant to pay damages to the Respondent, in the event that the appeal is unsuccessful. I believe that both stipulations are problematic, as they impose undue fetters on the exercise of the right of appeal. The Apex Court has repeatedly frowned upon such restrictions, on the right of access to court. See UGWU v ARARUME (2007) 12 NWLR Pt. 1048 Pg. 367 at 450 per Niki Tobi, JSC, where it was held as follows:

“Right of access to court is a constitutional right, which is guaranteed in the Constitution, and no law… can subtract from or derogate from it or deny any person of it.” See also GLOBAL EXCELLENCE v DUKE (2007) 16 NWLR Pt.1059 Pg.22, and Article 7 of the African Charter on Human and Peoples rights. 

No Stay of Proceedings in Interlocutory Appeals

On the stipulation of the Rules that the Apex Court will never grant applications for stay of proceedings in interlocutory appeals, the Apex Court appears to have departed from its long standing tradition of not denying a party x(be he the Appellant or the Respondent) the opportunity of being heard, for fear that such attitude might cause a temporary delay in the disposal of the case”. See NNEJI v CHUKWU (Supra) at Pg. 200 per Wali, JSC.

Such a shift in the policy of the Apex Court is worrisome, because it transcends the practice and procedure of the court and impinges on the fundamental issue of access to court, fair hearing and to have one’s cause heard, all of which are implicitly recognised and guaranteed under the Constitution and the African charter as aforesaid. 

Elections

The provisions of the Rules in election related appeals are also problematic, for the simple reason that election matters being sui generis, the relevant prescriptions are to be found in the Electoral Act, 2022, specifically, Section 140 thereof, which provides as follows:

“(1) The rules of procedure to be adopted for election petitions and appeals arising therefrom shall be as set out in the first schedule to this Act;

“(2) The President of the Court of Appeal may issue practice directions to the-

(a) Court of Appeal in respect of pre-election and post-election

(b) Election tribunal, in respect of post-election matters”.

Curiously, however, the Act is silent on the Chief Justice of Nigeria.

In other words, it doesn’t confer a similar power on the CJN in respect of electoral appeals to the Apex Court, as it does on the President of the Court of Appeal. Whether it is deliberate or out of oversight, is hard to fathom. What is clear is that, by virtue of the combined provisions of Items 22 and 68 of the Exclusive Legislative List, read along with Paragraph 2(b) or Part III of the Second Schedule to the Constitution, the National Assembly possesses the exclusive power to legislate on the practice and procedure in election-related litigation. To the extent that the National Assembly has not delegated that power to the CJN in the same way as it did to the President of the Court of Appeal, the implication is that the National Assembly did not intend to do so, but, rather, to reserve it to itself in appeals at the Supreme Court in electoral matters, on the maxim expressio unius est exclusion alterius aforesaid and that the provisions of the first schedule to the Act have covered the field in such appeals at the Apex Court. The upshot of this is that the prescriptions of the new Rules in electoral appeals at the Apex Court are ultra vires, the Hon. CJN, with the greatest respect. See ATTORNEY-GENERAL OF ABIA STATE v ATTORNEY-GENERAL OF THE FEDERATION (2002) 6 NWLR Pt. 763 Pg. 264 at 369 & 391, Per Kutigi, JSC and Uwais, CJN respectively. (To be Continued).

THOUGHT FOR THE WEEK 

“The Supreme Court is the last line of defence for the separation of powers, and for the rights and liberties guaranteed by the Constitution.”(Brett Kavanaugh)

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