Review of the Election Judicial Proceedings Practice Directions, 2022

By Festus Ogun

On July 19, 2022, the President of the Court of Appeal, Honourable Justice Monica Bolna’an Dongban-Mensen, issued the Election Judicial Proceedings Practice Directions, 2022. The Practice Direction contains far-reaching procedural provisions on election related (pre-election and election petition) matters and shall be applied and observed in proceedings at Election Tribunals, Appeals from Election Tribunal or a trial court (in pre-election matters) and Court of Appeal when sitting as a court of first instance.

IMPORTANCE OF ADHERENCE TO PRACTICE DIRECTION

The 1999 Constitution of the Federal Republic of Nigeria, as amended and the Court of Appeal Act conferred upon the President of the Court of Appeal the powers to make rules for regulating the practice and procedure of the Court of Appeal, including issuance of Practice Direction. Exercising the powers conferred upon him by the Constitution, the Court of Appeal Act and the Electoral Act, 2022 the President of the Court of Appeal issued the Judicial Proceedings Practice Directions, 2022 in respect of election related matters, including appeals.

Election and pre-election matters are sui generis, different and unique. It is a special proceeding different from ordinary civil proceedings, it is a proceeding that is of its own kind. It is very sensitive and time is of essence. See: LOKPOBIRI V APC (2021) 3 NWLR (Pt. 1764) 538. The foregoing underscores the importance of strictly adhering to the provisions of the Practice Direction. In OWURU v. AWUSE & ORS (2004) LPELR-7339(CA), the Court of Appeal emphasized that the Practice Direction has constitutional backing and must be strictly obeyedand cannot be circumvented.Our courts have consistently not shown any favour to any party not obeying the provision of the Practice Direction and this is usually because of the sui-generis nature of election related matters. Put simply, failure to comply strictly by the provisions of the Practice Direction could be very fatal and may vitiate the entire case of the defaulting party. See: OJUGBELE Vs LAMIDI (1999) 10 NWLR (Pt 621) 167

Having said that, we can then proceed to highlight the relevant provisions of the Practice Direction. Let’s go.

LIST OF WITNESS IN ELECTION PETITION

Paragraph 1 of the Practice Direction provides that the list of witnesses which shall be filed alongside election-petitions, as provided under paragraph 4(5) of the First Schedule of the Electoral Act, 2022 shall be deemed complied with where the identity of the witnesses are represented by initials, alphabets or both. This provision is also applicable to the Respondent’s reply and the list of witnesses filed. Clearly, the intendment of this provision is to temporarily conceal the identity of the witnesses and to protect them from possible attack. See: ABUBAKAR V. YAR’ADUA (2008) 19 NWLR (P6. 1120). Importantly, as held in YAKO V. JIBRIN (2019) LPELR-48971 (CA) (Pp. 23-28 paras E-A), even where the petitioner or respondent did not link the initials or alphabets to any of the witnesses during trial, the testimony of the witnesses will be accorded probative value.

SECURITY FOR COSTS AND ITS RETURN

Paragraph 3 of the Practice Direction makes provision for the deposit of N500,000.00 (Five Hundred Thousand Naira) by the petitioner to the Tribunal or Court of Appeal as security for costs. This is made pursuant to Section 2 of the First Schedule of the Electoral Act, 2022. Additionally, the Petitioner shall also deposit an additional N500,000.00 (Five Hundred Thousand Naira) to make up for the cost of service of notices, registered positing and other expenditures.

Furthermore, the money deposited shall be returned to the person in whose name it was deposited or to the person entitled to receive it. This shall be actualized by a filing a motion on notice alongside proofs that all just claim have been satisfied.

As provided by Section 2(4) of the First Schedule of the Electoral Act, 2022, non-payment of security for cost shall stall further proceedings on the election petition. The discovery of non-payment only serves to temporarily suspend the hearing of the Petition until the security for cost is paid/ and or until the Tribunal orders or directs otherwise. Thus, non-compliance with the requirement to pay security cost is an irregularity which will not lead to the nullification of the Petition as the irregularity is curable. See; NWAWUBA & ANOR v. OKAFOR & ORS (2015) LPELR-26020(CA); BIYU vs. IBRAHIM (2006) 8 NWLR (PT. 981) 1 at 49

PAGE, PAPER AND FONT SIZE FOR PROCESSES

Every Final Address filed in an election petition proceeding shall not exceed forty (40) pages. Likewise, a Written Reply on Points of Law shall not exceed 10 pages. An interlocutory application shall not exceed ten (10) pages while a Reply on Points of Law shall not exceed five (5) pages. The paper upon which the processes are printed shall be in 210mm by 297mm paper size (A4) and shall be typed in either Arial, Times New Roman or Tahoma with font size 14 and 1.5 line spacing.

Instructively, Section 5(d) of the Practice Direction provides that failure to comply with the provision above renders the process invalid.

TIME WITHIN WHICH TO FILE NOTICE OF APPEAL

Section 6 of the Practice Direction provides that a Notice of Appeal shall be filed Registry of the Tribunal or Court of Appeal within 14 days where the Appeal is in respect of an interlocutory decision and 21 days in respect of a final decision. In pre-election matters, however, a Notice of Appeal shall be filed at the Registry of the trial court within 14 days in both interlocutory and final decisions. Failure to file Notice of Appeal within the prescribed days from the date of judgment or ruling renders the Appeal incompetent and shall be struck out by the Court. See: ANPP V. GONI (2021) 7 NWLR (PT. 1298) 147 @ 182; SIJUWADE V. OYEMOLE (2010) ALL FWLR (PT. 513) 1407; OKOREAFFIA v. AGWU (2010) LPELR-8654(CA)

Upon receipt of the Notice of Appeal by the Secretary of the Tribunal or Registrar of the trial court, the Notice of Appeal shall be served on all the Respondents.

COMPILATION, TRANSMISSION AND SERVICE OF RECORDS

Upon filing of the Notice of Appeal, the Appellant shall pay prescribed fee for the compilation of the Record of Appeal and furnish as many copies as there are Respondents and 10 extra copies for the Secretary of Tribunal or Registrar of the trial court. Further, the Appellant shall pay a prescribed fee for the compilation of Records of Appeal and service of same on all the Respondents. Within 10 days of filing the Notice of Appeal, the Secretary of the Tribunal or Registrar of the trial court shall compile the records of appeal and serve same on the all parties.

It is important to add the by Section 18 of the Practice Direction, the compilation, transmission, filing and service of all processes in respect of an appeal shall be done electronically as stipulated under the Court of Appeal Rules, 2021.

BRIEF OF ARGUMENT: NOTABLE POINTS

The provision of Sections 10-15 of the Practice Direction is that within 7 days after the service of the Records of Appeal, the Appellant shall file his Brief of Argument at the court of Appeal. The Respondent shall within 5 days of service of the Appellant’s Brief of Argument file his Brief of Argument. If and where necessary, the Appellant may file a Reply Brief within 2 days of the service of the Respondent’s Brief of Argument.

Every Brief of Argument, either of the Appellant or Respondent, shall not exceed 40 pages. Additionally, the Reply Brief shall not exceed 15 pages. The paper upon which the processes are printed shall be in 210mm by 297mm paper size (A4) and shall be typed in either Arial, Times New Roman or Tahoma with font size 14 and 1.5 line spacing. Instructively, Section 14(c) of the Practice Direction provides that failure to comply with the provision above renders the violating brief invalid.

At the earliest date before the date set down for the hearing of the Appeal, the party who has filed a Brief of Argument or his counsel shall forward to the Registrar of the Court of Appeal a list of the law reports, textbooks and other authorities which Counsel intend to rely on at the hearing.

HEARING OF APPEAL

By Section 16 of the Practice Direction, oral adumberation will be allowed at the hearing of Appeal and 15 minutes shall be allowed for the arguments of each party, unless otherwise directed.

INTERLOCUTORY APPEAL AND STAY OF PROCEEDINGS

Section 19 of the Practice Direction provides that interlocutory appeals shall not operate as a stay of execution or form a ground for applying for a stay of proceedings before a Tribunal or trial court.

CONCLUSION

This Practice Direction serves to establish a more efficient framework for the administration of electoral justice. It is, therefore, important that the provisions are strictly obeyed, particularly because of the sui generis nature of election related matters. Practitioners and litigants alike are obligated to carefully observe the provisions of the Practice Direction which will certainly bring about efficient and smooth administration of electoral justice.

Festus Ogun, is the Managing Counsel at Festus Ogun Legal (FOLEGAL), Lagos. Email: festus@folegal.net


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