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Yaki v. Bagudu

  1. SENATOR BELLO SARAKIN YAKI (RTD)
  2. PEOPLES’ DEMOCRATIC PARTY (PDP)

V

  1. SENATOR ATIKU ABUBAKAR BAGUDU
  2. ALL PROGRESSIVES CONGRESS (APC)
  3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

SUPREME COURT OF NIGERIA

WALTER SAMUEL NKANU ONNOGHEN JSC ( Presided )

OLABODE RHODES-VIVOUR JSC

NWALI S. NGWUTA JSC (Read the Lead Judgment)

MARY U. PETER-ODILI JSC

OLUKAYODE ARIWOOLA JSC

MUSA DATTIJO MUHAMMAD JSC

CLARA BATA OGUNBIYI JSC

SC. 722/2015

FRIDAY, 13 NOVEMBER 2015

APPEAL - Findings of lower courts - Where concurrent - Attitude of court to

APPEAL - Issues before the Court of Appeal - Duty on to consider all Failure to so consider - Attitude of Supreme Court to

APPEAL - Issues for determination - Appeal courts formulating Propriety of

APPEAL - Notice of appeal - Appellant who files more than one notice of appeal - Attitude of court to

COURT - Court of Appeal - Issues before - Duty on to consider all Failure to so consider - Attitude of Supreme Court to

ELECTION PETITION - Electoral Act, 2010, paragraph 18(1) of the 1 st Schedule thereto - Non-compliance with - Failure of respondent to timeously file motion on notice to dismiss petition in consequence of - Irrelevance of

ELECTION PETITION - Pre-hearing notice - Paragraph 18 of the 1st Schedule to the Electoral Act, 2010 - Non-compliance with - Effect -  Extension of time within which to comply - Impossibility of

ELECTION PETITION - Pre-hearing notice - Paragraph 18 of the 1st Schedule to the Electoral Act, 2010 - Non-compliance with Sa’eed v. Yakowa (2013)  All FWLR (Pt. 692) 1650, (2013)  7

NWLR (Pt. 1352) 124 and Adeyemi v. Melaye (unreported) CA/

A/EPT/350/2015 - Distinction of from the instant case

ELECTORAL MATTERS - Time - Essence of therein

JUDICIAL PRECEDENT - Mega Progressive Peoples Party v. I.N.E.C. SC. 665/2015 - Distinction of from the instant case

JUDICIAL PRECEDENT - Sa’eed v. Yakowa (2013) All FWLR (Pt. 692) 1650, (2013) 7 NWLR (Pt. 1352) 124 and Adeyemi v. Melaye (unreported) CA/A/EPT/350/2015 - Distinction of from the instant case

LEGAL PRACTITIONERS - Rules of Professional Conduct, 2007 Rationale of - How interpreted

LEGAL PRACTITIONERS - Rules of Professional Conduct, 2007 - Status of - Section 18 of the Interpretation Act considered

LEGAL PRACTITIONERS - Rules of Professional Conduct, 2007, Rule 10  - Ambit of

LEGAL PRACTITIONERS - Seal and stamp of legal practitioners on documents as provided for by Rule 10 of the Rules of Professional Conduct, 2007 - Non-compliance with - Effect

LEGAL PRACTITIONERS - Seal and stamp of on documents as stipulated under Rule 10, Rules of Professional Conduct, 2007 Rationale for

PRACTICE AND PROCEDURE - Seal and stamp of legal practitioners on documents as provided for by Rule 10 of the Rules of Professional Conduct, 2007 - Non-compliance with - Effect

PRACTICE AND PROCEDURE - Seal and stamp of legal practitioners on documents as stipulated under Rule 10, Rules of Professional Conduct, 2007 - Rationale for

STATUTE - Electoral Act, 2010, 1st Schedule thereto, paragraph 18 thereof - Non-compliance with - Effect - Extension of time within which to comply - Impossibility of

STATUTE - Electoral Act, 2010, paragraph 18(1) of the 1st Schedule thereto - Non-compliance with - Failure of respondent to timeously file motion on notice to dismiss petition in consequence of Irrelevance of

STATUTE - Rules of Professional Conduct, 2007 - Rationale of - How interpreted

STATUTE - Rules of Professional Conduct, 2007 - Status of - Section 18 of the Interpretation Act considered

STATUTE - Rules of Professional Conduct, 2007, Rule 10 - Ambit of - Rationale for

Issues:

  1. Whether the Court of Appeal was right to uphold the decision of the tribunal that the petition in this case was abandoned and liable to dismissal when the application for pre-hearing notice was found to have been made on 12 June 2015 outside the mandatory 7 days from the close of pleadings.
  2. Whether Court of Appeal was right in holding that the petitioners’ reply to 1st respondent’s reply was incompetent and that failure to apply for pre-hearing notice within the statutory time limit meant there was no pre-hearing session which rendered the petition liable to dismissal.
  3. Whether the Court of Appeal had abdicated its judicial duty in that, it failed to determine the objection raised by the 1st respondent/cross-appellant, on the effect of the appellants’ failure to elect the particular notice of appeal upon which the appellants’ brief of argument filed on 27 August 2015 before the Court of Appeal was based, thereby breaching the 1st respondent/cross-appellant’s right to fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria 1999.
  4. Whether having regard to the mandatory provisions of the Election Tribunal and Court Practice Direction, 2011, more particularly paragraphs 10 and 11(1) thereof, coupled with the failure by the appellants to indicate the particular notice of appeal upon which the appellants’ brief of argument filed on 27 August 2015 was based, the Court of Appeal properly assumed jurisdiction to hear and determine the appellants’ appeal to the Court of Appeal?
  5. Whether the Court of Appeal was right to hold that failure of a legal document to have affixed to it a stamp/seal as mandated by Rule 10(1) of the Rules of Professional Conduct did not carry with it the consequence of rendering such legal document incompetent.

Facts:

Dissatisfied with the election and return of the 1st respondent as the Governor of Kebbi State in the gubernatorial election conducted by the 3rd respondent, the appellants filed a joint petition at the election tribunal. The appellants contended that the 1st respondent was not qualified to contest the election, being allegedly guilty of non-judicial indictment by some companies he was believed to be associated with and on grounds of over-voting, irregularities, violence and non-compliance with the Electoral Act, 2011 as amended.

After pleadings had been settled, the appellants applied for the issuance of pre-hearing notice out of time. The 1st respondent consequently filed a motion on notice praying the tribunal to strike out the petition for non-compliance with paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended). Consequently, the tribunal struck out the petition as having been abandoned.

Aggrieved, the appellants appealed to the Court of Appeal. The 1st respondent filed a preliminary objection contending that the appeal was incompetent as the appellant filed two notices of appeal, and did not indicate which one he relied on. The Court of Appeal dismissed both the appeal and cross-appeal. In its judgment, the Court of Appeal held that the failure of a legal document to have affixed to it, a stamp and seal as mandated by Rule 10 of the Rules of Professional Conduct, 2007, does not render it incompetent. The petitioners/appellants appealed to the Supreme Court, while the 1st and 2nd respondents filed cross-appeals.

In determining the appeal, the Supreme Court considered the following statutes:

Paragraph 18(1), (3), (4) and (5) of the 1st Schedule to the Electoral Act, 2010 as amended which provides:

Paragraph 18(1)

“Within 7 days after filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply. As the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF008.

Paragraph 18(3)

The respondent may bring the application in accordance with sub-paragraph (1) where petitioner fails to do so, or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.

Paragraph 18(4)

Where the petitioner and the respondent fail to being an application under this paragraph the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.

Paragraph 18(5)

Dismissal ot a petition pursuant to this subparagraph is final, and the tribunal or court shall be functus officio.” Rule 10(1)(2) and (3) of the Rules of Profession Conduct, 2007, ( which commenced in 2015), which provides as follows :

“10(1) A lawyer acting in his capacity as a legal practitioner legal officer or adviser of any Government department of Ministry or any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.

10(2) for the purpose of this rule, “legal documents” shall include pleadings, affidavits, depositions, applications, instrument, agreements deeds, letter memoranda, reports legal opinions or any similar documents.

10(3) If, without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined in subrule (2) of this rule and in any of the capacities mentioned In sub-rule (1), the document so signed or filed shall be deemed not to have been properly signed or filed.”