General Bello Sarkin Yaki & Anor V Senator Abubakar Atiku Bagudu & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

Nwali Sylvester Ngwuta,  JSC

This appeal involves the consequence of failure to comply with the provisions of Paragraph I5 (1) of the 1st Schedule to the Electoral Act, 2010 as amended. It provides: “Para. 18 (1); PAGE| PAGE * Arabic 2 Within 7 days after the filing and service of the petitioner’s reply as 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 TF 008.” It is not in dispute that the last date for the appellants as petitioners to apply for the issuance of the pre-hearing notice was the 7th day of June 2015 nor is it in doubt that the appellants actually filed the application for the issuance of the pre-hearing notice on 8/6/2015, Paragraph 18 {3} gives the respondent a choice in case of failure by the petitioner to comply with paragraph 18 (1), between bringing the application for the issuance of pre-hearing notice or a motion on notice for an order dismissing the petition. Where both the petitioner and the respondent fail to bring the application, the Court or Tribunal shall dismiss the petition as abandoned. See paragraph 18 (4) which also provides that no application of extension of time to make the application shall be entertained. Paragraph 18 (5) forecloses the reopening of the petition once dismissed. It provides: “18 (5): Dismissal of a petition pursuant to sub-paragraphs 3 and 4 is final and the Tribunal or Court shall be functus officio” Election matters are time-bound and provisions fixing time for taking any steps are strictly construed to emphasise that time is of the essence in election petitions. Without the strict compliance with Paragraph 18 (1) reproduced above, any application for the issuance of pre-hearing notice or conduct of pre-hearing session will be exercise in futility for failure to comply with the pre-condition for same. See Okolo v. Union Bank (2004) 1 SC (Pt. 1) for effect of failure to comply with condition precedent provided by law or rule. Whether or not the motion to dismiss the petition was brought timely is a non-issue. The matter relates to the jurisdiction of the Tribunal to hear the petition and a challenge to jurisdiction can be brought at any stage of the proceedings. See Onik Motors v. Wema Bank (1983)6 SC 158. Even if the motion to dismiss the petition was not filed the Tribunal could have dismissed the petition by virtue of sub-paragraph 4 of paragraph 18 of the 1st Schedule to the Act. In a purely civil matter, the filing of a process a day after the period prescribed for the filing can be regularised on the application of the defaulting party. But in election matters, even a slight infraction of the rules, particularly those relating to time, can be fatal to the process filed. See Benson v. Allison (1955-56) WRNLR 58, Emerue v. Nkerenwen {1966} 1 AN NLR 63, Ige v. Olunloyo (1984) 1 SCNLR 158. An election petition is a proceeding sui generis. See Buhari v. Yusuf {2003) 6 SC (Pt. 11) 156. PAGE| PAGE * Arabic 3 In the circumstances, appellants could not have filed a motion for extension of time and if one had been filed it could not have been entertained by the Tribunal. See paragraph 18 (5) of the 1st Schedule to the Act (supra). Based on the above, the appeal was dismissed and the judgment of the Court below affirmed. 1st Respondent’s Cross-Appeal: The complaint here is that the appellant did not indicate on which of his two notices of appeal he predicated his appellants brief. Appellants conceded filing two different notices of appeal and did not elect to rely on either of the two processes. Appellants justified their action by reliance on the fact that the rules did not provide for election in such circumstances. This argument is untenable. Order 2 Rule 4 provides for service of Notice of Appeal’ and not notices of appeal. The phrase “… after the Notice of Appeal.. “does not envisage multiple notices of appeal. There are similar provisions in the High Court and Court of Appeal Rules. In any case, it is an affront to logic and common sense to argue that an appellant can file more than one notice of appeal without indicating on which one he relies. Be that as it may, the mere fact of filing multiple notices of appeal does not render the appeal incompetent. See Akuneziri v. Okenwa (2000) 12 SC (Pt. 11) 25, First Bank of Nigeria Plc v. T.S.A. Industries Ltd (2010) 4-7) SC (Pt. 1) 242. The 1st Respondent read the appellants’ brief and made a decision to rely on one of the two notices filed within time. Not only was the 1st Respondent not misled by the two notices of appeal, he did not disclose any injury he suffered for which he could seek redress. He cannot be heard to argue that another respondent elected to rely on the other notice of appeal. That the 2nd Respondent elected to rely on a different notice of appeal does not constitute an injury for which the 1st Respondent could seek redress. 1st Respondent made a knowing and understanding waiver of his right to demand on being served the appellants’ brief, on which of the two notices of appeal the appellants predicated their brief if he was in doubt. Cross-appeal of the 1st Respondent lacked substance and it was dismissed as unnecessary, 2nd Respondent’s Cross-Appeal: In his cross-appeal, the 2nd Respondent raised this single issue for resolution: “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 (1J of the Rules of Professional Conduct did not carry with it the consequence of rendering such legal document incompetent…” PAGE| PAGE * Arabic 4 The issue calls for application of Rule 10 (1) (2) and (3) of the Rules of Professional Conduct, 2007 effective from 1st April, 2015. The 2nd Respondent placed reliance on said rule hereunder reproduced: “Rule 10: (1) A lawyer acting in his capacity as a legal practitioner legal officer or adviser of any governmental 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, (2) For the purpose of this rule “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or, any similar documents. (3) If, without complying with the requirements of this rule a lawyer signs or files any legal documents as defined in sub-rule 2 of this rule, and in any of the capacities mentioned in sub-rule (2), the document so signed or filed shall be deemed not to have been properly signed or filed.” The documents in question here purportedly signed and filed by a lawyer in his capacity as legal practitioner did not have on it “a seal and stamp approved by the Nigerian Bar Association.” The process so signed and filed is a legal process within the intendment of Rule 10 (2) of the Rules. What is the consequence of a legal document signed and fifed in contravention of Rule 10 (1) in the Rules? The answer is as provided in Rule 10 (3) to the effect that “… the document so signed or filed shall be deemed not to have been properly signed or filed.” It is my humble view that the legal document so signed and/or filed is not null and void or incompetent like the case of a Court process signed in the name of a corporation or association (even of lawyers). See Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) SC 521 cited by the teamed Silk for 2nd Respondent/Cross-Appellant. The document, in terms of the Rule, is deemed not to have been properly signed or filed, but not incompetent as the 2nd Respondent assumed. It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met. It is akin to a legal document or process filed at the expiration of the time allowed by the rules or extended by the Court. In such cases, the filing of the process can be regularised by extension of time and a deeming order. PAGE| PAGE * Arabic 5 In the case at hand, the process filed in breach of Rule 10 (1) can be saved and it’s signing and filing regularised by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. Since this was not done the Court cannot take cognizance of a document not properly filed and the filing not regularised, I do not subscribe to the Respondent’s view that the rule does not provide any punishment for its breach. That the legal document is deemed not properly signed and filed is enough sanction for the breach of the rule. There is also the argument that the rule constitutes a curtailment of the right of appeal under the Constitution of the Federal Republic of Nigeria, 1999 (as amended). No right, including the right of appeal, is absolute. A pre-action notice has been held to be a condition for the exercise of the right to bring the action and not as abridgement of that right. See Anambra State Government & Ors v. Marcel & Ors (1996) 9 NWLR (Pt. 213) 115. It is for the above that we allowed the cross-appeal and set aside the judgment of the Court of Appeal. In conclusion, we dismissed the appeal as well as the 1st Respondent’s cross-appeal and allowed the cross-appeal of the 2 Respondent. It was ordered that parties bear their respective costs. REASONS FOR JUDGMENT DELIVERED ON 27th OCTOBER, 2015 (by Walter Samuel Nkanu Onnoghen. JSC ) I have had the benefit of reading in draft, the lead reasons for judgment of the Court delivered on Tuesday, the 27th day of October, 2015 by NGWUTA, JSC just delivered. I agree with the reasons given by my learned brother, NGWUTA, JSC and conclusions reached in the main appeal and the cross appeals and have nothing to add except in respect of the cross appeal of the 2nd respondent, which was allowed by the Court. The issue formulated by learned senior counsel for the 2nd respondent/cross appellant, A.J. OWONIKOKO, SAN in the brief of argument filed on 7/10/15 is as follows:- “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 (Grounds 1 and 2).” The decision of the lower court giving rise to this appeal is as rendered at page 1108 of vol. 2 of the PAGE| PAGE * Arabic 6 record of appeal, inter alia: “On the 2nd respondent’s preliminary objection, I also agree that neither the Rules of Professional conduct nor the circular issued by the Hon. Chief Justice of Nigeria on the use of stamps and seals by legal practitioners dictates the consequence of incompetence to the failure of the legal practitioner to apply his stamp and seal. The appellant’s failure to comply with the Rules of Professional Conduct does not however, whittle down their fundamental right to appeal under the Constitution of the Federal Republic of Nigeria 1999 (as amended) and certainly do not render the notice of appeal incompetent.” To begin with, it should be noted that rule 10 (1), (2) and (3) of the Rules of Professional Conduct 2007 is relevant to the determination of the issue under consideration and that there is no dispute between the parties as to the validity or constitutionality of the provisions of the Rules of Professional Conduct 2007. In other words, both parties are in agreement that the said rule is valid. What then does Rule 10 (1), (2) and (3) provide? It states thus: “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 instruments, agreements, deeds, letters, 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 sub-rule (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.” Emphasis supplied by me. From the provision of sub-rule (3) of rule 10 supra, it is very clear that the lower court is in error in holding that the Rules of Professional Conduct 2007 does not make provision for the consequences of failure by a legal practitioner to affix his seal and stamp to a document filed. The consequence, as provided therein is that ” the document so signed or filed shall be deemed not to have been property signed or filed,” I have to emphasis that the legal status of the rules of professional conduct in the legal profession made by the General Council of the Bar pursuant to section 1 of the Legal Practitioners Act, Laws of PAGE| PAGE * Arabic 7 the Federation of Nigeria 2004 is that of a subsidiary legislation since it is made by provision in a statutory enactment – see Fawehinmi vs NBA (No. 2) (1989) 2 NWLR (pt. 105) 558 at 614; (1989) 20 NSCC (pt. 11)43 at 69. By virtue of Section 18(1) of the Interpretation Act, a subsidiary legislation has the force of law. My attention has been drawn to the decision of this Court in a ruling rendered on the 12nd day of October, 2015 in appeal No. SC/665/2015 in which the Court held, inter alia, as follows:- “The issue of BAR stamp raised by Dr. Ayeni is in a circular which has been issued by the Hon. The Chief Justice of Nigeria to all Heads of Courts for the betterment of the Legal Practice in Nigeria. The circular has not metamorphosed into a Practice Direction, it cannot be a compulsory requirement for Wing process in a court of law as of now. Section 10 of the Legal Practitioners Rules of Professional Conduct (supra) relied upon by Dr. Ayeni is directory and not mandatory in nature. Failure to affix the Nigerian Bar Association stamp cannot, in my view, invalidate process filed in a court of law. ” It is clear that the first part of the above ruling deals with the effects of the circular issued by the Honourable the Chief Justice of Nigeria, which the court held does not have the status of a Practice Direction. The court is right in that the said circular is purely an administrative exercise by the Honourable, the Chief Justice of Nigeria directed at effective administration of the relevant Rules of Professional Conduct, 2007 by the various judiciaries in the country. It was not meant to bring into effect the provisions of the said Rules of Professional Conduct, 2007 neither is the enforcement of the said Rules dependent on the Chief Justice of Nigeria issuing such a circular or Practice Direction, The Rule haven been made by the appropriate authority with an assigned date of its coming into effect, does not need any further action by anyone to bring it into force, as there is no provision therein to suggest such a requirement. The next question has to do with the legal effect of non compliance as stated in sub rule (3) of Rule 10, inter alia “ ………. the document so signed or filed shall be deemed not to have been property signed or filed.” It must be borne in mind that the provision of the Rules of Professional Conduct, 2007are no substitute for substantive laws being a subsidiary legislation/enactment. What sub rule (3) supra is saying is that such non compliance renders the document so signed or filed voidable that is why it is said the document is “deemed not to have been properly signed or filed” In other words, the offending document/instrument can be remedied at any stage in the proceedings by an application for and production and fixing of the seal. That is what My Lord, PAGE| PAGE * Arabic 8 NGWUTA, JSC meant by saying that the situation is like filing a document out of time which can be subsequently remedied. It is for the above reasons that we held that the lower court was in error in holding the view that neither the Rules nor the Chief Justice of Nigeria circular dictates the consequence of the failure of a legal practitioner to apply his stamp and seal having regard to the provisions of sub rule (3) of Rule 10 of the Rules of Professional Conduct, 2007 and consequently allowed the appeal. However, the consequence of the said non compliance renders the document so filed voidable, not void which is subject to regularization upon application, even orally in the open court at any stage in the proceedings involved, even on appeal. It should be noted that the qualification to practice law as a legal practitioner is as provided under the Legal Practitioners Act which includes being called to Bar and enrolled at the Supreme Court of Nigeria as a legal practitioner. It is that qualification that entitles a legal practitioner to sign/frank any legal document either for filing in a Court of Law in a proceeding or otherwise, see Okafor vs Nweke (2007) 10 NWLR (pt. 1043) 521 etc. The above requirements constitute the substantive law on the issue. It follows, therefore, that the Provisions of Rules of Professional Conduct, 2007 is directed at the Legal Practitioner to provide evidence of his qualification to practice law in Nigeria in addition to his name being in the Roil at the Supreme Court of Nigeria. It therefore saves time needed for a search at the Supreme Court to determine the authenticity of the claim of the Legal Practitioner for being so qualified. The provisions of the Rules, I must repeat, is not a substitute for the substantive law on the matter that is why non compliance thereto renders the document involved/concerned voidable, not void or a nullity. In the circumstance it is only fair to the client, the legal profession and in the interest of justice that the Legal Practitioner involved be given opportunity to prove his call to Bar and enrollment at the Supreme Court of Nigeria by affixing his seal to the document involved at any stage in the proceeding including appeal or whenever an objection to the authenticity of the document is raised under the provisions of the said Rules of Professional conduct, 2007. In the instant case, there was no application to regularize the documents objected to. The learned counsel for appellant/1sl cross respondent to this cross appeal treated the provisions of the Rules with disdain and/or contempt, It is for the above reasons that the cross appeal of the 2nd respondent was allowed. Cross appeal allowed with parties to bear their costs. Cross appeal allowed.

SC 722 /2015