*Full Federal High Court (Pre-election) Practice Direction

By JideAjani, General Editor

Consequent on developments in the political space and its potential for severe implications for the 2023 general elections, the National Chairman, Independent National Electoral Commission, INEC, Professor Mahmood Yakubu, disclosed that there are 600 pre-election cases in the courts. 

But it would seem that Hon. Justice John Terhemba Tsoho, the Chief Judge of the Federal High Court, perhaps, imbued with the power of clairvoyance, had anticipated such and, therefore, promulgated a Practice Direction on Tuesday, 28th June, 2022, for pre-election matters. 

However, some sections are being violated and hence the number of pre-election cases.  This report presents the full Practice Direction and how the courts  and INEC can bring sanity to the 2023 electioneering process.

It is clear from court documents from the Federal High Court, FHC, which have so far have shown that a number of pre-election suits filed and assigned by the Registry of FHC, (either by error of omission or commission or time differential between when the Practice Direction was issued and when cases were filed) completely undermined the FHC that should, in the first place, adhere to its own rules against multiplicity of suits. 

Rule 4 (2) states that “An originating summons shall be  accompanied by:

(d)” An affidavit of non-multiplicity of action on the same matter”.

As do other sections of the Practice Direction, the FHC can set the tone for sanity, but, first, details of the Practice Direction:

FEDERAL REPUBLIC OF NIGERIA FEDERAL HIGH COURT OF NIGERIA (PRE-ELECTION) PRACTICE DIRECTIONS 2022

THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED)FEDERAL HIGH COURT (PRE-ELECTION) PRACTICE DIRECTIONS,  2022

ARRANGEMENT 

OF RULES

Rule:

1.  Objectives and Guiding Principles

2.  Applicability

3.  Parties

4.  Filing of Process

5.  Service of Process

6.  Hearing

7.  Interlocutory  Applications

8.  Miscellaneous

9.  Interpretation

10.  Citation

11 . Commencement

THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED)FEDERAL HIGH COURT (PRE-ELECTION) PRACTICE DIRECTIONS, 2022

In exercise of the powers  conferred  on me by virtue of Sections  254,285 (9), (10) and (14)  of the Constitution  of the Federal Republic  of Nigeria 1999 (as amended),  Sections 29(5) and 84(14) of the Electoral Act,  2022  (as  amended)  and  all  other  powers  enabling  me  in  that behalf,  I,  JOHN  TERHEMBA   TSOHO,  the  Honourable,  the  Chief Judge, Federal  High Court,  issue the following  Practice  Directions  to the Federal High Court:

OBJECTIVES  

AND GUIDING PRINCIPLES

1.-(1)  The purpose of this Practice Directions is to-

(a)  provide  for a fair,  impartial  and expeditious  determination  of pre-election cases;

(b)  ensure that in all election matters, the parties focus on matters which are genuinely in issue;

(c)  minimize the time spent in dealing with interlocutory matters;

(d)  ensure that the possibility  of settlement  is explored  before the parties go into hearing;

(e)  minimize undue  adjournments  and  delays  in  the  conduct  of matters.

APPLICABILITY

2. -(1)   This  Practice  Directions  shall  apply  to  every  pre-election matter brought pursuant to the provisions of the Constitution of the Federal  Republic  of Nigeria  1999 (as amended)  and the Electoral Act, 2022 (as amended).

(2)  This Practice Directions shall apply notwithstanding  the provisions   of  the  Federal   High  Court  (Civil   Procedure) Rules, 2019.

(3)    The Chief Judge  of the Federal High Court may direct that matters  be  transferred  to  the  appropriate  Division  or  any other Division as may be reasonably practicable considering the given circumstances.

PARTIES

3.  A  party  challenging   the  conduct  or  outcome  of  a  Primary Election shall join as a Respondent in the suit, the person who emerged  winner  of  the  said  election  or  whose  name  was forwarded by his political party to the Independent National Electoral Commission (INEC).

FILING OF PROCESSES

4. -(1 )Every    pre-election    matter    shall   be   commenced    by   an Originating  Summons   as  specified  in  Forms  3,  4  or  5  of Appendix   6  to  the  Federal  High  Court  (Civil  Procedure) Rules, with such variations as circumstances may require.

(2) The Originating  Summons shall be accompanied by: 

(a)  an affidavit setting out the facts relied upon;

(b)  copies of exhibits to be relied upon;

(c)  a written address;

(d)  an affidavit  of non-multiplicity  of action  on the same subject matter.

(3) A Respondent served with an Originating Summons shall within7 (seven) days from the date of service of the Originating Summons on him, file the original and copy of a duly completed and signed  Memorandum  of Appearance  as specified  in Form11  Appendix  6  of  the  Federal  High  Court  (Civil  Procedure)Rules  with    such    modifications     or    variations     as    the circumstances may require.

(4) A Respondent served with an Originating Summons shall within 10 (ten) days of such service, file in the Registry of this Court, a counter affidavit and a written address, which may include any Preliminary Objection raised to the action.

(5) An Applicant  on whom a Respondent  serves a defence,  if the need  arises,  shall  serve  a Reply  on that Respondent  within  3 (three) days of such service.

(6) The Written Address shall be concise, typed in double spacing with  font  size  of  12;  numbered  consecutively  and  shall  not exceed 15 (fifteen) pages.

(7) Any  amendment  to  the  Originating  Summons  may  be  made with the leave of Court within 7 (seven) days of service of the Respondent’s Reply.

(8)  (i)  All  suits  wherein  the  cause  of  action  arose  in  a  Judicial Division and the relief seeks a declaration or to compel or restrain   person(s),   natural   or  legal   within  that  Judicial Division, with no consequence outside it, shall be filed, received or heard only within that Judicial Division.

PROVIDED  THAT  in other suits,  in so far as the  relief sought, or potential consequential order(s) or declaration(s) extend   beyond   the  Judicial  Division,   shall   be  filed  or received at Abuja and assigned by the Chief Judge.

(ii)  In all other matters, as may require the attention of the Chief Judge, he may in the appropriate circumstance assign same to an appropriate Judicial Division.

SERVICE OF PROCESS

5.-(1)  A party shall not serve a notice of an application on another party on the date scheduled for hearing.

(2)   To  ensure  speedy  dispensation  of  justice,  electronic  mail and other electronic  means may be employed by the Court in order to inform counsel of urgent Court and case events.

PROVIDED   THAT  such  notification  shall  be  given  at least forty-eight hours before the scheduled Court date.

(3)  In line with the provisions of Rule 5(2) of this Rule, parties are expected to furnish the Court Registrar with functional telephone numbers and e-mail addresses of themselves and their counsel.

(4) An application  for substituted  service shall be as provided for in the Rules of this Court.

HEARING

6.-(1)  Upon  the  close  of  exchange  of  processes   between  the parties, the Court shall within 7 (seven) days, set down the matter for hearing.

(2) The Court shall continue to accord priority to all pre-election matters until judgment is delivered.

(3) Where  a matter  comes  up  for  hearing  under  this  PracticeDirections and either of the parties is absent, the Court shall either suo motu or upon oral application  by the Counsel  for the party present,  order that the address of the party absent be deemed adopted if it is satisfied that the parties had notice of proceedings.

(4) The Court  and the parties  shall  prevent  unnecessary  delays and accordingly, not more than two adjournments shall be granted  to any party to an action covered  by the provisions of this Practice Directions.

PROVIDED  THAT no application for adjournment shall be entertained  on a day fixed for hearing.

(5)  Where  a  party  seeks  to  change  his  Counsel   during  the lifespan of a case, not more than two adjournments  shall be granted to him to so do.

(6)  Where it is expedient,  and in furtherance of the objectives of this  Practice  Directions,  the  Court  may  schedule  the time and date of hearing on such day and at such time as may be convenient  for the parties.

(7)  Counsel shall ensure that they are present in Court and ready to proceed with their case at all times.

(8) Where the provisions of Rule 6(7) of this Rule becomes impracticable  by    reason    of    ill-health    or    any    other unavoidable   incidence,   such  Counsel  shall  ensure  that  a Counsel  of  requisite   knowledge  of  the  issues  before  the Court is present in Court and ready to proceed with the case in his or her stead or apply that the case be heard virtually where practicable;  with the consent of parties. 

INTERLOCUTORY APPLICATIONS

7.- (1)    Every  application   for  Interlocutory  Orders  shall  be  on Notice, stating the Rule under which it is brought, the grounds  for the reliefs sought  and shall be supported  by an Affidavit and a Written Address.

(2)   The Respondent(s)  upon being served with the processes, shall have 5 (five) days within which to file processes in response   (if   any)   to  the  Motion   on   Notice   and  the Applicant  shall have 3 (three) days to file a Reply (if any)to the processes of the Respondent(s).

(3)    Pursuant   to   the   provision   of   Section   285(8)   of   the Constitution of the Federal Republic of Nigeria 1999 (as amended), ruling on Preliminary Objections and other interlocutory   issues  touching  on  the  jurisdiction  of  the Court  shall  be  suspended  and  delivered  at  the  stage  of final judgment;

PROVIDED  THAT where the objection relates to service of originating  processes,  the Court shall satisfy itself that the parties have been properly served before proceeding to determine the substantive Suit.

(4)     Every  application   for  extension  of  time  shall  be  by  a Motion on Notice and shall be supported  by an Affidavit setting   forth   good,   substantial,   cogent   and   verifiable reasons  for  failure  to  file  within  the  prescribed  period before time can be extended.

MISCELLANEOUS

8.  The Federal High Court (Civil Procedure) Rules, 2019 shall apply  to   any   issue   not   captured   under   this   Practice Directions.

INTERPRETATION

9.  Under this Practice  Directions,  pre-election  matters  are  matters as defined by Section  285(14) of the Constitution  of the Federal Republic of Nigeria 1999 (as amended).

CITATION

10.  This Practice  Directions  may be cited as the Federal High Court(Pre-Election)  Practice Directions, 2022.

COMMENCEMENT

11.  This Practice Directions shall come into effect from Tuesday, the 28th day of June, 2022.

MADE  at Abuja, this 28th day of June, 2022.

HON. JUSTICE JOHN  TERHEMBA TSOHO, THE HONOURABLE, THE CHIEF  JUDGE FEDERAL HIGH COURT  OF NIGERIA

The Issues

Whereas the pre-election Practice Direction came into effect on Tuesday, June 28, 2022, according to the records of the courts investigated by Vanguard, there were already, pre-election cases.

Investigations have revealed the following facts:

1. That DIG Ekpoudum vs Akpabio was first in time filed on Monday, 27th June, 2022 with 

Suit No: FHC / Abj/ CS/ 1000/2022 btw Udom Ekpoudom. V. APC & INEC.

This case was filed a day before the Practice Direction came into effect. 

2. Senator Godswill Akpabio, a lawyer and a man who insists he is committed to the rule of law and believes in the sovereignty of the courts, happened to have been part of the suit filed on Monday, 27th June, 2022.  

Whether due to time differential or an oversight, another suit was again filed on the matter in another court, thereby, violating Rule 4 (2) which states that “An originating summons shall be  accompanied by 4(2)(d)” An affidavit of non-multiplicity of action on the same matter”.  That is there is no room for multiple suits in the same matter.  This second case in Suit No: FHC/AbjCS /1011 /2022 btw APC & Akpabio .v. INEC  filed on 29/6/2022  (and INEC) as the only defendant

Curiously, it was only INEC that was sued and DIG Ekpoudum, who happened to be at the centre of it all and whose name is in INEC senatorial primary report that INEC repeatedly, in its press releases, said it stood by, was not sued in the matter, thereby, violating Rule 3, (which talks about Parties To A Suit) was violated. 

PARTIES Rule 3.  A  party  challenging   the  conduct  or  outcome  of  a  Primary Election shall join as a Respondent in the suit, the person who emerged  winner  of  the  said  election  or  whose  name  was forwarded by his political party to the Independent National Electoral Commission (INEC).

3.Whereas INEC was served  process on the DIG’s case, it refused or was unable to file any written response nor submitted the report submitted by its REC and was never represented by counsel throughout the suit despite being served with hearing notices. 

4.However, in the Akpabio’s suit with INEC alone as defendant, INEC filed processes and was represented by Counsel who was also present in court to get the judgment for compliance. 

The Questions

*How come the pre-election rule of non multiplicity of the same matter was missed and this same matter already pending in court 6, was again re-assigned to court 7 with a new suit number, the only difference in particulars? 

*Why did INEC fail to inform the court that the same matter was already pending in an earlier suit that INEC was part of as a defendant?

*Does this mean that there was no deposition to an affidavit of non multiplicity of the same matter as required by Rule 4(2)(d)?  And in the affirmative, what are the implications? 

*INEC must enforce the spirit and letters of  Section 84(13) of the Electoral Act 2022, on nomination of candidates by parties.

Section 84(13) provides the remedy, that ”Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue”.