NNAJI V. NDUBUISI (2023)

Background

This decision arose from a challenge to the Enugu State governorship election held on 18 March 2023. Uche Geoffrey Nnaji and the All Progressives Congress instituted an election petition against the return of Mba Peter Ndubuisi as winner. The petition was filed before the Governorship Election Petition Tribunal, Enugu State. A central procedural dispute concerned the petitioners’ application for the issuance of pre-hearing notice. The last pleading was served on the remaining respondents on 8 June 2023. However, the petitioners had filed an application for pre-hearing forms on 6 June 2023, before service of the final pleading on all respondents.

The tribunal held that the application was premature and incompetent. Because the petitioners did not make a competent application for pre-hearing notice within seven days after the close of pleadings, the tribunal dismissed the petition as abandoned under paragraph 18 of the First Schedule to the Electoral Act 2022. The Court of Appeal affirmed that decision. The petitioners then appealed to the Supreme Court.

At the Supreme Court, a further procedural defect emerged. The appellants’ brief was filed on 2 August 2023 but exceeded the forty-page limit imposed by paragraph 10(1)(a) of the Supreme Court Pre-Election and Election Appeals Practice Directions 2023. The brief contained either 47 or 55 pages, as described at different points in the ruling, but in any event exceeded the prescribed limit. The appellants had not obtained the Supreme Court’s prior permission to file a brief exceeding forty pages. After the 1st respondent objected, the appellants filed an application under Order 2 rule 31(1) of the Supreme Court Rules 1999 seeking leave to depart from the rules and an order deeming the already-filed brief properly filed and served.

Issues

1. Whether the Supreme Court had discretion to permit a written submission exceeding forty pages where prior leave had not been obtained.
2. Whether the acceptance of the brief by the registry could confer validity or competence on a process filed contrary to the Practice Directions.
3. Whether the appellants could rely on inadvertence of counsel as justification for non-compliance.
4. Whether the appeal had been abandoned by reason of the absence of a competent brief.
5. Whether the petition was properly dismissed as abandoned for failure to apply for pre-hearing notice within the prescribed period.

Ratio Decidendi

By a majority of four Justices to one, the Supreme Court dismissed the application and the appeal. The majority held that paragraph 10(1)(a) and paragraph 10(3) of the 2023 Practice Directions were clear and unambiguous. A written submission or reply in a pre-election or election appeal must not exceed forty pages, unless the Supreme Court has otherwise directed. A non-compliant submission is not to be accepted by the registry. The words “except otherwise directed by the Supreme Court” require a party to obtain the court’s direction before filing an excessive brief; a party cannot first breach the rule and subsequently seek retrospective endorsement.

The Court further held that although Order 2 rule 31(1) of the Supreme Court Rules permits enlargement of time or departure from the rules in the interest of justice, that general power could not be used to defeat the specific and strict regime governing election appeals. Election proceedings are sui generis, and their procedural time limits are ordinarily sacrosanct. Non-compliance with a mandatory condition precedent renders the step taken invalid.

The majority rejected the argument that registry acceptance validated the brief. Administrative receipt of a process cannot confer competence, legality or validity on an otherwise incompetent document. The Court also refused to treat counsel’s inadvertence as a sufficient excuse. The responsibility of counsel to comply with the Practice Directions was described as serious, and the resulting consequences fell on the appellants.

Court Findings

The Court applied the doctrine of stare decisis and relied on authorities including Maku v. Sule, Omisore v. Aregbesola, Hassan v. Aliyu, Wellington v. PDP and Umara v. Idriss. Those authorities establish that where a party fails to take a required step within the time prescribed in election proceedings, the court generally lacks power to extend the time retrospectively. Failure to file a competent appellant’s brief may amount to abandonment of the appeal. Consequently, the appellants’ appeal was dismissed for want of a competent brief.

The Court also affirmed the reasoning of the lower courts on the abandoned petition. Service of a process is a question of fact and law and cannot be presumed. Since the final pleading was not served on all respondents until 8 June 2023, the application for pre-hearing notice filed on 6 June was premature. The seven-day period began after the last service, and the appellants failed to make a competent application during that period. A tribunal cannot adjudicate on a petition treated by law as abandoned.

Dissenting Opinion

Ogunwumiju, J.S.C., dissented on the application concerning the excessive brief. In his view, paragraph 10(1) gave the Court discretion because it began with the words “except otherwise directed by the Supreme Court.” He reasoned that paragraph 10(3) only instructed the registry not to accept a non-compliant brief; it did not expressly declare such a brief invalid. Since the brief had in fact been accepted and filed within the time allowed, he would have treated the excess pages as an irregularity capable of being cured, particularly in the interest of substantial justice. He also relied on earlier decisions, including Emerhor v. Okowa and Makinde v. Adekola, where excessive pages had not resulted in striking out an accepted brief.

Although Ogunwumiju, J.S.C., expressed concern that strict procedural rules could prevent determination of the merits of an election dispute, he accepted that the existing Supreme Court authorities required the dismissal of the appeal. Justice Agim, J.S.C., similarly joined the majority result but made a notable call for reconsideration of the strict and inflexible application of procedural rules in election matters.

Conclusion

The Supreme Court dismissed the appellants’ application for leave to regularise their excessive brief and dismissed the appeal itself. The majority held that prior permission was essential before filing a brief exceeding forty pages, that registry acceptance could not cure the defect, and that the failure to comply with the time-bound election procedure rendered the appeal abandoned. Each party was ordered to bear its own costs.

Significance

Nnaji v. Ndubuisi reinforces the strict approach of the Nigerian Supreme Court to procedural deadlines and filing requirements in election litigation. It confirms that election appellants must comply precisely with the 2023 Practice Directions, especially the forty-page limit and the seven-day period for filing an appellant’s brief. It also demonstrates the continuing force of precedent in this area. At the same time, the dissenting reasoning and Justice Agim’s notable pronouncement highlight an important constitutional and jurisprudential debate: whether procedural rules intended to promote speedy election adjudication should be applied so strictly that they prevent courts from examining the substantive validity of a disputed election.