IBRAHIM v. INEC & ORS
(2022)LCN/16823(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, November 04, 2022
CA/KN/272/2022(R)
Before Our Lordships
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
UMAR IBRAHIM APPELANT(S)
And
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION 2. ALL PROGRESSIVES CONGRESS 3. MUKHTAR ISHAQ YAKASAI RESPONDENT(S)
RATIO
WHETHER OR NOT RULES OF COURT ARE TO BE OBEYED
We have stated, several times, that the Rules of Court are to be obeyed, but that the Court cannot be enslaved by its Rules to act against the dictates of reason, justice and fair play, as the interest of substantial justice must be enthroned above the rules of technicalities, which work injustice and oppression. See the case of ACN Vs Lamido (2011) LPELR – 9174 (CA), where my lord, Ogbuinya JCA, said: “Where a strict adherence to the rules of Court or practice directions will constitute an albatross along the terrain of dispensing substantial justice, the Courts are mandated, by judicial authorities, to tilt towards the path of justice. The provisions of rules of Courts, afortiori practice directions, cannot be employed by the Courts to choke, annihilate, asphyxiate and strangle justice, which is man’s greatest interest in the passing earth. See UTC NIG Ltd Vs Pamotei (1989)2 NWLR (pt.103)244; Duke Vs Akpabuyo LG (2005)9 NWLR (pt.959)130; Dingyadi vs INEC (No.1) (2010)18 NWLR (pt.1224)1; See also the case of GOV. of Imo State & Ors vs E.F. Network Nig Ltd & Anor. (2016) LPELR – 40820 (CA), where we held: “… The Rules of Court are hand maids of the law to help the Court to do justice to the parties. It is not meant to be turned into a master or monster that works injustice, denying the parties of the rights given to them by the substantive law. See Ayoade Vs Spring Bank Plc (2013) LPELR – 20763; (2014) 4 NWLR (pt.1396) 93; Ugba Vs Suswan and Ors (2012) LPELR 8635; (2014) All FWLR (pt.723)1886.
It was further held in that case of INEC Vs Mbawike (supra) that:
“The basic principle of law is that, it is the object of the Court to decide the rights of the parties and not to punish them for mistakes they, make, in the litigation process, particularly, when the mistakes are real mistakes. It is a known fact that blunders must take place in the litigation process, because blunders are inevitable; it is not fair, in appropriate cases, to make a party in blunder to incur the wrath of the law at the expense of hearing the merits of the case.” The above profound liberal statement of the law, by my lord (even in election related matters) were not disturbed on appeal (ACN V LAMIDO & ORS (2012) LPELR 7825 (SC)), and in my opinion, is unassailable, and tends to agree with the provisions of Paragraph 53(1) of the 1st Schedule to the Electoral Act, 2010, as amended, to the effect that: “Non compliance with any of the provisions of this schedule, or with a rule of practice, for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deem fit or just.” See also Labour Party vs Bello and Ors (2016) LPELR – 40848 CA, ratio 7, on the worrisome use of technicalities to defeat justice.” PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgement): Appellant filed this Appeal on 16th September, 2022 against the Judgment of the Federal High Court Kano, in Suit No. FHC/KN/CS/157/2022, delivered on 5th September, 2022 by Hon. Justice M.N. Yunusa, wherein the learned trial Judge struck out the Suit, for having been filed in the Kano Division of the Federal High Court (FHC), not in Abuja Division; (that) it was filed in violation of the National Judicial Council (NJC) Policy Direction; thus not initiated by due process, (that) the trial Court lacked jurisdiction to entertain the Suit, and cannot determine or pronounce on the merit of the case.
At the trial Court, Appellant, as Plaintiff, had filed a Pre-election Suit, challenging the nomination/selection of the 3rd Respondent as the flagbearer of the 2nd Respondent for the House of Representatives election, representing Kano Municipal Federal Constituency in the forthcoming 2023 general elections. Appellant had obtained form, filled same, was screened and cleared to contest the primary election. He said that on the date fixed from the primary election, he went to participate in the election, but his name was wrongly excluded from the election; that he complained to the 2nd Respondent and requested for a fresh election, in line with the Electoral Ac and other extant laws, but was ignored, hence this Suit.
After hearing the parties and perusing the processes filed by them, including the neutral process filed by the 1st Respondent (INEC), the learned trial Court, struck out the Suit, for the reasons, stated above.
Appellant’s Notice of Appeal was filed on 15/9/2022, as per the endorsement on Page 683 of the Records of Appeal, which shows the Cashiers Stamp – PAID, on the process. Appellant transmitted the Records of Appeal to this Court on 24/10/2022, and filed his Brief of Argument on 25/10/2022.
When the Appeal came up on 28/10/2022, for hearing, the 2nd Respondent’s Counsel, A.L. Yusuf Esq, informed the Court that they were served with the Appellant’s Brief on the previous day – 27/10/2022, and so they were still within time to file the 2nd Respondent’s Brief. Counsel, however, raised a preliminary objection, orally, challenging the competence of the Appeal, on account of what he called, incompetent Records of Appeal, and urged us to strike out the Appeal.
2nd Respondent’s Counsel argued that the Records of Appeal was transmitted to this Court, outside the time limit of 10 days, given to the Registrar of the Lower Court to compile the Records; that that offended paragraph 9 of the Election Judicial Proceedings Practice Direction, 2022, made by the President of the Court of Appeal, Hon. Justice Monica B. Dongbam-Mensem; Counsel said that it was the duty of Appellant to ensure that the Records of Appeal was transmitted on time. Counsel added that, because the Records of Appeal was transmitted outside the time stipulated, the Brief filed by Appellant was incompetent, as it lacked a base – there not being any competent Records of Appeal. Therefore, he said 2nd Respondent did not need to file any Brief, as there was nothing to respond to. Counsel urged us to strike out the Appeal.
Counsel for the 1st Respondent, Mrs. R.I. Musa, urged us to exercise our discretion in the matter; that the 1st Respondent, who had filed a neutral process at the Lower Court, was ready to accept the decision of the Court.
The Counsel for 3rd Respondent, G.B. Haris Esq, aligned himself with the submission of the 2nd Respondent, and urged us to strike out the Appeal.
Responding, Appellant’s Counsel, U.F. Abdullahi Esq, said the objection, itself, was incompetent, because issues of jurisdiction which can be raised, orally, must relate to substantive law or issues of statutory jurisdiction of the Court, not to procedural matters, relating to rules and procedure of Court. He said that the Election Judicial Proceedings Practice Direction is only a means of directing the proceeding and proceedings in Court, and so is not substantive law, nor statutory provisions on the jurisdiction of this Court.
He further argued that, assuming, but without conceding, that such objection can be raised, orally, that it was not the duty of the Appellant to compile and transmit the Records of the Appeal within the time specified but that of the Secretary or Registrar of the lower Court; he said that once the Appellant had satisfied the conditions of appeal, stipulated (as was obvious in this case), the duty became that of the Registrar to compile and transmit the Records to this Court. He cited the paragraph 9 of the Practice Direction, and said that Appellant cannot be punished for the error or failure of the Registrar of the lower Court, and that the lapses of the Registrar cannot be visited on the Appellant. He added that the Records of Appeal, having been transmitted to, and received by the Registry of this Court, is deemed properly before this Court, for the Appeal to be heard on the merits. He relied on the case of Makinde Vs Adekola (2022) 9 NWLR (Pt.1834) 35 – 36 (SC).
Rejoining on points of law, the 2nd Respondent’s Counsel said the Practice Direction is not a mere procedural rules. On the case of Makinde Vs Adekola (supra), Counsel said the facts therefore are distinguishable from this case, on the claim that the fault was that of the Registrar, Counsel said Appellant was expected to be diligent, especially, this being a pre-election matter. He repeated his call for us to strike out the Appeal.
RESOLUTION OF THE ISSUE
Will it be proper to strike out this Appeal, because the Records of Appeal, compiled and transmitted to this Court by the Registrar of the Lower Court, was done outside the time stipulated by the Practice Direction of this Court? Application of this nature is better taken after due notice had been served on the other party, not orally, to avoid foisting a surprise on the opponent. But, because this is a Pre-election matter, of which time is of the essence – being a time bound matter, the 2nd Respondent was allowed to take the objection, orally, especially as the Respondents’ briefs were yet to be filed, to enable the Appeal to be heard, straight away. Moreover, this Court, on its own motion, can strike out an Appeal, once it is defective on the face of it. See Order 7 Rule 6 of the Court of Appeal Rules, 2021. See Uwazurike & Ors Vs A.G. Fed. (2007) LPELR – 3448 (SC); Umezinne Vs FRN (2018) LPELR – 46334 (SC).
Paragraph 9 of the Election Judicial Proceedings Practice Direction, 2022, states, as follows:
“The Secretary of the Tribunal or Registrar of the Lower Court shall, within a period of not more than ten (10) days of the receipt of the Notice of Appeal, cause to be compiled and served on all the parties, the Records of Appeal.”
The above provision places the duty/burden on the Secretary of the Tribunal or Registrar of the Lower Court to compile the Records, within a period of not more than 10 days, and to serve same on all the parties (including the Appellant). That Provision does not even suggest the date of transmission of the Records of Appeal to this Court; that it should be the same 10 days for compiling the Records imposed for compliance by the Tribunal or Lower Court.
It is of common knowledge that the date of completion of the compilation of the Records of Appeal by the lower Court, is usually earlier than the date of transmission of the Records to the Appellate Court. The two dates are, therefore, different. Neither the Appellant nor the Respondents has stated the date of which the compiled Records of Appeal was served on him/it, but I can see that the Records of Appeal was certified and stamped on 14/10/2022 by the Registrar of the lower Court, suggesting that that was the date the Registrar compiled the Records of Appeal (See Pages 1 and 2 of the Volume 1 and 491, 629, 631, 640, 645, 647, 656 – 659 – Volume 2 of the Records of Appeal, where the date “14th October, 2022” appear faintly on the stamp of the Court).
I think it is therefore safe to hold that the Registrar of the Lower Court compiled the Records of Appeal on 14th October, 2022, and transmitted same to this Court, on 24th October, 2022.
Obviously, that was done outside 10 days! But there is also an endorsement by the Registrar on the last Page of Volume 2 of the Records of Appeal, that is, Page 690, to the effect that Appellant had “duly complied with condition of appeal imposed on him/her in the Suit No. FHC/KN/CS/157/20022.” That means, the failure to compile the Records of Appeal was not due to the Appellant’s default to comply with the conditions of Appeal.
Appellant cannot therefore, in my view, be held responsible for the lapses of the Registrar of the lower Court to compile the Records within the time frame, and to transmit the Records of Appeal, to this Court, as that would be unfair and constitute injustice to Appellant, in the circumstances. The wrongs, errors and/or failure of the Registrar of the Court cannot be blamed on the litigant, and cannot be visited on him (the litigant). See the case of Ogwe & Anor Vs I.G.P. & Ors (2015) LPELR-24322 (SC), where it was held: “…a document or process is deemed duly filed when it is taken to the Court registry, assessed, by the officer assigned the responsibility and paid for. The appellant cannot be made to suffer for any shortfall. To do otherwise is to hold him to account for another person’s lapses. In C.C.B (Nig) Plc V. AG Anambra State and Anor (1992) 8 NWLR (Pt.261) 528 this Court per Olatawura JSC held at page as follows:- “…The Court will not visit the ‘sins’ of the Court Registry on a litigant or his counsel unless it was shown that the litigant and/or his counsel was a party therefore or had full knowledge of the sin or mistake and encouraged or condoned the act. Therefore, on the authorities, justice equity, fairness and good conscience must persuade me to hold further that this appeal deserves to succeed and it infact does.” (Underlining mine for emphasis). See also Dike V. Okorie (1990) 5 NWLR (Pt.151) 418 and Mohammed V. Musawa (supra) and Ede & Anor V. Mba (2011) 18 NWLR (Pt.1278) 236 at 266.” Per MUHAMMAD, JSC.
See also the case of Duke VS Akpabuyo L.G. (2005) LPELR-963 (SC):
“…the Court will not visit the “sin” of the Court’s registry, on a litigant or his counsel, unless, it was shown that the litigant and/or his counsel, was a party thereto or had full knowledge of the “sin”; or mistake, and encouraged/instigated/condoned/approved the said action/act.” Per OGBUAGU, JSC
In the case of INEC Vs Bonaventure Izunaso & Ors (2019) LPELR – 48446 (CA), where the issue of transmission of the Records by the secretary of the Tribunal or Registrar of the lower Court was also considered, this Court, per Nimpar, JCA, held:
“On the second issue challenging the record of appeal on the ground that it was transmitted beyond the time allowed, the simple answer is that the duty of transmitting Record is purely that of the secretary of the Tribunal and the duty does not shift like you have in normal civil proceedings where after the time allowed the Registrar of the lower Court to transmit, the duty automatically shifts on the appellant and he must do so within a number of days; and where the record gets transmitted out of time in a regular civil appeal, the appellant must seek to regularize it or it becomes incompetent.
In election petition proceedings the appellant has no duty at all; the secretary must compile and transmit the record within 10 days. The secretary of the Tribunal is a staff of the Court and any failure on his part remains the lapse and failure of the officers of the Court, which cannot be visited on the Appellant; an admonition by the Apex Court in the case of EDE & ANOR V MBA & ORS supra says: “…Certainly, the error committed by the Registry was an administrative error which was irregular. But, the most relevant question one would pose here is: should this Court allow an unsuspecting litigant to suffer as a result of the mistakes/omissions occasioned by the Registry staff certainly, no! I repeat and adopt what Olatawura, JSC (of blessed memory) said in the case of Cooperative and Commercial Bank Plc v. Attorney General Anambra State & Anor (1992) 8 NWLR (Pt.261) 528 at p 561; that: “It will be contrary to all principles to allow litigants to suffer the mistake of the Court Registry. In other words, the Court will not visit the “sin” of the Court’s Registry, on a litigant or his counsel, unless, it was shown that the litigant and/or his counsel was a party thereto or had full knowledge of the “sin” or mistake and encouraged or condoned the said act. Therefore, on the authorities, justice, equity, fairness and good conscience, must persuade me, to hold further, that this Appeal deserves to succeed and it in fact does.” As I have given a glimpse of some of the facts relied upon by the applicants above, I am of the opinion that once a party, such as the applicants herein, has performed creditably his own portion of responsibility of what he is required by the law to fulfill, in instituting an action, he should not be made to suffer the failure, blunders, or omissions of the Court Registry. It will be inequitable to do so.
I should also add, that the Practice Direction of this Court is a procedural guide, made by the Hon. President of the Court of Appeal, to assist the parties and the Registry of the Court in orderly and prompt presentation of Appeals for adjudication, in view of the time constraints in respect of time bound cases, in particular. The Practice Direction was, therefore, not intended to take away the right of proper adjudication, or of fair hearing of causes and matters, within the confines of substantial justice. The Practice Direction, like the rules of Court, are meant to assist the Court to do justice. See the case of INEC Vs Mbawike & Ors (2017) LPELR-41623 (CA), where we held:
We have stated, several times, that the Rules of Court are to be obeyed, but that the Court cannot be enslaved by its Rules to act against the dictates of reason, justice and fair play, as the interest of substantial justice must be enthroned above the rules of technicalities, which work injustice and oppression. See the case of ACN Vs Lamido (2011) LPELR – 9174 (CA), where my lord, Ogbuinya JCA, said: “Where a strict adherence to the rules of Court or practice directions will constitute an albatross along the terrain of dispensing substantial justice, the Courts are mandated, by judicial authorities, to tilt towards the path of justice. The provisions of rules of Courts, afortiori practice directions, cannot be employed by the Courts to choke, annihilate, asphyxiate and strangle justice, which is man’s greatest interest in the passing earth. See UTC NIG Ltd Vs Pamotei (1989)2 NWLR (pt.103)244; Duke Vs Akpabuyo LG (2005)9 NWLR (pt.959)130; Dingyadi vs INEC (No.1) (2010)18 NWLR (pt.1224)1; See also the case of GOV. of Imo State & Ors vs E.F. Network Nig Ltd & Anor. (2016) LPELR – 40820 (CA), where we held: “… The Rules of Court are hand maids of the law to help the Court to do justice to the parties. It is not meant to be turned into a master or monster that works injustice, denying the parties of the rights given to them by the substantive law. See Ayoade Vs Spring Bank Plc (2013) LPELR – 20763; (2014) 4 NWLR (pt.1396) 93; Ugba Vs Suswan and Ors (2012) LPELR 8635; (2014) All FWLR (pt.723)1886.
It was further held in that case of INEC Vs Mbawike (supra) that:
“The basic principle of law is that, it is the object of the Court to decide the rights of the parties and not to punish them for mistakes they, make, in the litigation process, particularly, when the mistakes are real mistakes. It is a known fact that blunders must take place in the litigation process, because blunders are inevitable; it is not fair, in appropriate cases, to make a party in blunder to incur the wrath of the law at the expense of hearing the merits of the case.” The above profound liberal statement of the law, by my lord (even in election related matters) were not disturbed on appeal (ACN V LAMIDO & ORS (2012) LPELR 7825 (SC)), and in my opinion, is unassailable, and tends to agree with the provisions of Paragraph 53(1) of the 1st Schedule to the Electoral Act, 2010, as amended, to the effect that: “Non compliance with any of the provisions of this schedule, or with a rule of practice, for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deem fit or just.” See also Labour Party vs Bello and Ors (2016) LPELR – 40848 CA, ratio 7, on the worrisome use of technicalities to defeat justice.”
I therefore see no merit in the oral objection by the 2nd Respondent, and same is dismissed, as the Records of Appeal are deemed properly before this Court, for the hearing of the Appeal.
The 2nd Respondent shall pay cost of Fifty Thousand Naira (₦50,000) to the Appellant.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead ruling of my learned brother ITA G. MBABA, JCA. I agree with his decision including the order as to costs.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the draft of the lead Ruling delivered by my learned brother, ITA G. MBABA, JCA. His Lordship has considered the issue raised before us and resolved the same ably.
When the appeal came up on the 28th/10/22 before us, the learned counsel to the 2nd respondent Yusuf Esq raised objection to the hearing of the appeal orally. That the appeal was dead on arrival. He submitted that the record of appeal was complied and transmitted out of time. That the Notice of Appeal was filed on the 16th/09/22 and the record was transmitted on the 24th/10/22, more than 10 days after the filing of the appeal. That the purported appellant’s brief of argument was of no moment. He urged the Court to struck out the appeal.
In his response, Ahmad Esq of learned counsel to the appellant submitted that the objection raised is incompetent. That the issue of jurisdiction that can be raised orally must relate to the substantive law or statutory jurisdiction of the Court. That the issue raised is on procedure. Counsel continued that assuming the objection is competent, the duty is on the Registrar to transit the record of appeal and not that of the appellant. That they filed the Notice of Appeal on time and paid the necessary fees on time relying on MAKINDE V. ADEKOLA (2022) 9 NWLR (Pt. 1834) 35.
In reply, Yusuf Esq submitted that their objection is founded on Section 9 of Practice Direction 2022 which is statutory.
Now, Section 9 of the Election Judicial Proceedings Practice Direction 2022 provides;
9. The Secretary of the Tribunal or Registrar of the lower Court shall, within a period of not more than ten (10) days of the receipt of the Notice of Appeal, cause to be complied and served on all the parties, the Record of Appeal.
This Court in IZE-IYAMU V. ACTION DEMOCRATIC PARTY & ORS (2021) LPELR- 54292 (CA) had reason to make a pronouncement in a similar circumstance with regards to Paragraph 9 of the Election Tribunal and Court Practice Directions 2011, which is impari materia with Section 9 (supra) as follows;
The Law is that the duty of compilation, transmission and service of record of proceedings in an election petition is that of the Secretary, the Tribunal who shall do so within 10 days of the receipt of the Notice Appeal. See Paragraph 9 of the Election Tribunal and Court Practice Directions, 2011. Once the Appellant has fulfilled his part of the obligation by paying the necessary prescribed fees, he cannot be held responsible for any omission in the Record or the manner of compilation of the record. See BUHARI V. YABO (2005) 29 WRN 75 at 83.
It is for this and the fuller reasons given by My Lord, Mbaba JCA that I also found no merit in the objection raised. The same is dismissed.
I abide by the consequential orders therein.
Appearances:
A. N. AHMAD, ESQ., with him, U. F. ABDULLATEEF, ESQ. and Z. A. MAIYAKI (MISS) For Appellant(s)
R. I. MUSA (MISS) – for 1st Respondent
A. L. YUSUF, ESQ., with him, A. AHMAD, ESQ. – for 2nd Respondent/Objector
G. B. HARIS, ESQ., with him, M. MUKHTAR, ESQ. – for 3rd Respondent For Respondent(s)
