Are the Supreme Court Election Practice Directions Valid?

Introduction

Ever since their enactment by the Chief Justice of Nigeria on the 1st day of February, 2023, the Supreme Court Pre-Election and Election Appeals Directions 2023, have been the extant rules guiding the practice and procedure in respect of election petitions and pre-election matters on appeal to that court. Few have questioned their status – let alone validity – as the prevailing wisdom (or assumption) is that they are, ex facie, valid, given the status of their author, the highest judicial official in the country – the Chief Justice of Nigeria. 

The Directions themselves bear this out, as they proclaim that they were enacted pursuant to Sections 233(2)(e) and 236 of the 1999 Constitution (along with Order 10 Rule 2 of the Supreme Court Rules). So, what is the problem? Don’t those provisions support the power which the Hon. CJN purported to exercise, or do the relevant statutory provisions detract from those and impinge on the validity of the Directions? Let us find out, but, first, an examination of the enabling provisions under which the Directions were enacted.

Relevant provisions

• Starting with Section 233(2)(e) of the Constitution, it provides as follows: “An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases: “decisions on any question:-

i. Whether any person has been validly elected to the office of President or Vice – President under this Constitution;

ii. Whether the term of office of President or Vice-President has ceased;

iii.Whether the office of President or Vice-President has become vacant;

iv. Whether any person has been validly elected to the office of Governor or Deputy-Governor under this Constitution;

v. Whether the term of office of Governor or Deputy-Governor has ceased;

vi. Whether the term of office Governor or Deputy Governor has become vacant’’

Section 236: “subject to the provisions of any Act of the National Assembly, the Chief Justice of Nigeria may make rules for regulating the practice and procedure of the Supreme Court”

The reference to “any Act of the National Assembly” in the foregoing provision necessarily invites attention to the Electoral Act, 2022, Section 140 of 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)nCourt of Appeal, in respect of pre-election and post-election appeals; and 

b)Election Tribunal, in respect of post-election matters” 

Paragraph 55 of the First Schedule to the Electoral Act, 2022 provides that: 

“Subject to the provisions of this Act an appeal to the Court shall be determined in accordance with the practice and procedure relating to civil appeals in the Court of Appeal or the Supreme Court, as the case may be, regard being had to the need for urgency in electoral matters”.

It can be seen that the phrase “subject to” is common to both of these provisions. It is settled that, whenever that phrase is used in a statutory provision:

“The intention, purpose and legal effect is to make the provisions of the section inferior, dependent on, or limited or restricted in application to the section to which they are made subject to. In other words, the provisions of the latter section shall govern, control and prevail over the provisions of the section made subject to it. It renders the provisions of the subject section subservient”: see OLORUNTOBA-OJU v ABDULRAHEEM (2009) 13 NWLR Pt.1157 Pg. 83 at 138G, per Adekeye, JSC. 

The Apex Court further held in N.D.I.C. v OKEM ENT. LTD (2004) 10 NWLR Pt. 880 Pg.107 @183B (per Uwaifo, JSC), that: “(the phrase) ‘subject to’ introduces a condition, a restriction, a limitation, a proviso . . . It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended to be diminished by the subject section”.

The foregoing are buttressed by the provisions of Items 22 and 68 of the Exclusive Legislative List in Part 1, as well as Paragraph 2(b) of Part III, both of the Second Schedule to the 1999 Constitution, which confer exclusive power on the National Assembly to enact rules of practice and procedure of courts of law in proceedings pertaining to or connected with elections to the offices of President, Vice-President, Governor, Deputy-Governor, Senators, etc.

Juxtaposing them with those of Section 140 of the Electoral Act, 2022 (which, as it would be recalled, stipulate that the rules of procedure to be adopted in election petitions and appeals therefrom, shall be as set out in the First Schedule thereto). I submit that the inescapable conclusion is that, unless otherwise expressly stated (as in Section 140(2) of the Electoral Act 2022 which I shall presently address), the National Assembly has reserved for itself the power to enact rules of practice and procedure applicable in election-related proceedings.

I believe the sole exception to the foregoing is Section 140(2) of the Electoral Act 2022, which, it can be recalled, empowers the President of the Court of Appeal to issue Practice Directions applicable in that court, pertaining to pre-election matters, post-election appeals, as well as in election tribunals, in post-election matters. It is instructive that, no such power is conferred on the Chief Justice of Nigeria by the National Assembly: the maxim is: expressio unius est exclusio alterius (the express mention of a thing in a statute implies the exclusion of others which otherwise might be included: See OKOROAFOR v EMEKA (2015) 34 WRN Pg. 45 at  129, C.A).

Furthermore, even though the subject Directions expressly provide (in Paragraph 1 thereof) that they are applicable to election-related appeals in the Supreme Court, it is, however, settled that, a subsidiary legislation cannot contradict or override a principal statute: AKANNI v ODEJIDE (2004) All FWLR Pt. 218 Pg. 827 at 853E and KENNEDY v INEC (2009) 1 NWLR Pt. 1123 Pg. 614 at 642D.

Does that mean that there is a lacuna in the applicable law, in terms of the practice and procedure in appeals in electoral matters at the Supreme Court? Far from it. This is because, as it can be recalled, Paragraph 55 of the First Schedule to the Electoral Act 2022 has taken care of the situation, by categorically stating that such appeals are to be determined in accordance with the practice and procedure relating to civil appeals in that court. The only qualification to this provision is that, regard should be had to the need for urgency in such matters. Other than that, the normal rules applicable to ordinary civil appeals in the Supreme Court, are also applicable to electoral appeals. 

This view might appear to fly in the face of the received wisdom that, electoral proceedings are sui generis. Well, I believe, as they say, that, it is what it is. We cannot change the language of the law, when its intention is clear and unambiguously expressed. In such a case, the task of the interpreter is simply to give effect to the law, even if it leads to uncomfortable results or consequences. As was held in ST. JOHN SHIPPING CORP v J. RANK LTD (1975) 1 Q.B. 267 at 282 (referred to, with approval in IFEZUE v MBADUGHA (1984) 1 SCNLR 427): “One must not be deterred from enunciating the correct principle of law because it may have startling, or even calamitous results”. 

Conclusion  

The upshot of the foregoing is, with the utmost respect and diffidence, that the Supreme Court Pre-Election and Election Appeals Practice Directions 2023 are inconsistent, not only with the Electoral Act 2022, but, more importantly, with the 1999 Constitution. In making this startling submission, I concede (as before), that Section 236 of the Constitution empowers the CJN to make rules of practice and procedure applicable in the Supreme Court. I, however, hasten to add – again, as previously submitted – that that power is not at large, but is to be exercised “in accordance with any Act of the National Assembly”. The National Assembly has enacted such a law. That law is the Electoral Act, 2022, the relevant provisions have been discussed above. None of them empowers the Hon. CJN to make the subject Directions. Rather, it is the President of the Court of Appeal who is conferred with such power (albeit, in relation to appeals in that Court and in election tribunals)

This situation is clearly anomalous and, as I stated before, discloses a yawning lacuna in the law which is yearning to be filled. The competent body or authority to do so, is the National Assembly. Until that is done, election-related appeals at the Supreme Court ought to be determined in accordance with the Supreme Court Rules applicable to ordinary civil proceedings, vide Paragraph 55 of the First Schedule to the Electoral Act, 2022 as aforesaid.