CASE TITLE: NNAJI & ANOR v. NDUBUISI & ORS (2023) LPELR-61131(SC)
JUDGMENT DATE: 15TH SEPTEMBER, 2023
PRACTICE AREA: CIVIL PROCEDURE (APPEAL ARISING FROM ELECTION PETITION)
LEAD JUDGMENT: TIJJANI ABUBAKAR, J.S.C.
SUMMARY OF JUDGMENT:
INTRODUCTION:
This is a ruling on an application for leave to regularize a brief argument in an election petition appeal.
FACTS:
This is an application brought pursuant to Order 2 Rule 31(1) of the Supreme Court Rules, Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999, as amended, and under the inherent jurisdiction of this Court. In the application, applicants pray for:
- “An ORDER of this Court for departure from the Rules of this Court to file the Appellants’ brief of argument in this appeal exceeding 40 pages.
- An ORDER of Court deeming the Appellants/Applicants’ Brief of argument already filed exceeding 40 pages, as properly filed and served.
- AND for such further order or other orders as this Court may deem fit to make in the circumstances.”
The Appellant/Applicants’ grounds for the application are as follows:
- “The Appellants/Applicants’ brief of argument against the final judgment of the Court below in the election petition was filed on 2/8/2023.
- The Appellants/Applicants brief of argument exceeded 40 pages as required by the Supreme Court of Nigeria pre-election and Election Appeals Practice Direction 2023.
- By Order 2 Rule 31(1) of the Supreme Court Rules and Order 10 Rule 10(1) of the Supreme Court Pre-Election and Election Practice Direction, 2023, this Court has jurisdiction to grant leave to the Appellants to file and deem the Appeilants/Applicants Brief of Argument exceeding 40 pages as properly filed and served on the Respondents in the interest of justice.
- It is in the interest of justice to grant this application and the Respondents will not be prejudiced if this application is granted.”
Appellants/Applicants application filed by learned Senior Counsel Sir C. I. Enweluzo SAN on the 10th day of August, 2023 is supported by a nine-paragraph affidavit sworn to by Chimezie Njoku Litigation Assistant in the law office of the learned Senior Counsel for the Appellants/Applicants. The application is also supported by exhibit (Appellants brief of argument) and written address.
On behalf of the first Respondent, learned senior counsel Chief Wole Olanipekun, SAN filed a five-paragraph counter affidavit on the 18th day of August 2023, sworn to by Adoga Moses Counsel in the law firm of the learned senior counsel representing the first Respondent.
The learned Senior Counsel for the Appellants/Applicants also filed reply on points of law on the 25th day of August 2023. The remaining Respondents filed no documents in opposition to the application.
ISSUES FOR DETERMINATION:
The application was determined on:
“Whether the Appellants/Applicants have shown in law and fact that they are entitled to the reliefs sought.”
DECISION/HELD:
The application was dismissed. Hence, the appeal on which the application was based was accordingly deemed abandoned and also dismissed.
Ogunwumiju, JSC, however, dissented on the application by granting the same but also dismissed the appeal after considering the same on its merits.
RATIOS:
• APPEAL – REPLY BRIEF – Essence of a reply brief; whether a reply is meant to extend/improve the scope of argument/submission in the brief of the appellant
• ACTION – CONDITION PRECEDENT – Effect of non-compliance with condition precedent
• PRACTICE AND PROCEDURE – MISTAKE OF COUNSEL/COURT/REGISTRY – Whether mistake of counsel can avail a party where the required number of pages for brief of argument is exceeded without leave of Court in an election petition appeal to the Supreme Court
• PRACTICE AND PROCEDURE – COURT PROCESS(ES) – Whether the mere receipt of an invalid/incompetent/illegal process by the registry of Court can confer validity/competence/legality on a void/incompetent/illegal process
• APPEAL – BRIEF OF ARGUMENT – Effect of failure of appellant to file brief of argument/competent brief of argument
• ELECTION PETITION – TIME FRAME – Time within which an appellant must seek and obtain leave of Court to file brief of argument that exceeds 40 pages in an election petition appeal to the Supreme Court
• ELECTORAL MATTERS – COMPUTATION OF TIME – Whether timeframes in election-related matters can be extended
• APPEAL – BRIEF OF ARGUMENT – Effect of failure of appellant to file brief of argument/competent brief of argument
• ELECTORAL MATTERS – ELECTION – Need to reconsider current judicial approach in the application of rules of procedure in election matters
• PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION – Whether a preliminary objection can estop an applicant from taking steps to remedy defects in his process
• ELECTION PETITION – APPEAL ARISING FROM ELECTION PETITION – Whether the Supreme Court can exercise discretion to grant/refuse an application to countenance brief of argument exceeding 40 pages pursuant to Paragraph 10 of the Supreme Court Pre-Election and Election Appeals Practice Directions 2023
• ELECTION PETITION – APPEAL ARISING FROM ELECTION PETITION – Required number of pages for brief of argument in election petition appeal to the Supreme Court; effect of brief exceeding same without leave of Court
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