Election appeals to Supreme Court in great risk

By: Sebastine T. Hon, SAN, is an Abuja based private legal practitioner.

There exist serious lacunae in both the amended Constitution of the Federal Republic of Nigeria and the procedural laws of the Supreme Court with respect to appeals to that court arising from election petitions.
The first of such lacunae is the non-existence in the Supreme Court of Election Appeals Practice Directions, which are supposed to define timelines of appellate procedures and processes in such a way as to enable the Supreme Court determine appeals arising from election petitions within 60 days, as stipulated under Section 285(7) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. This subsection provides thus:
(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of delivery of judgment of the tribunal or Court of Appeal.
From the above provision, the Supreme Court must, per force ad legem, determine all election appeals within 60 days; otherwise, such appeals will automatically lapse.
In spite of this very weighty constitutional provision, however, my lord the CJN has not yet, as has been done by the President of the Court of Appeal, enacted practice directions that would regulate in a fast track manner, appeals to the Supreme Court in such a way as to ensure that election appeals are determined within 60 days as laid down by the constitution itself.
Without such practice directions, litigants before the Supreme Court will fall back on the regular Supreme Court Rules, which will clearly defeat the purport and intendment of Section 285(7) of the constitution. For instance, under the regular court rules of the Supreme Court, an appellant has 10 weeks within which to file his brief of arguments; while a respondent has 8 weeks to file his respondent’s brief. After that, the appellant still has 4 weeks to file his reply brief. This brings the total number of days for filing of briefs alone to 154, which is far in excess of the 60 days within which the Supreme Court must determine an appeal on an election matter before it. Also, under the Court of Appeal Practice Directions, 2011, briefs are not to be more than 30 pages, which again is aimed at fast tracking appellate processes in election matters, with a view to achieving the legislative mischief introduced in Section 285 of the amended constitution. This innovation introduced at the Court of Appeal is worthy of emulation by the Supreme Court.
The CJN should immediately draw up practice directions fashioned in such a way as to achieve speedy dispensation or determination of appeals from election matters; otherwise the intendment of section 285(7) of the constitution will be defeated.
The second issue of national importance is whether, when a retrial has been ordered by the Court of Appeal or the Supreme Court, the initial period of 180 days the first trial tribunal had to hear and determine an election petition will still be reckoned with or not. For Section 285(6) of the constitution provides thus:
(6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
The constitution, however, is loudly silent on whether this period of 180 days will be reckoned with when a retrial before another tribunal is ordered. This is where the appellate courts, particularly the Supreme Court which is the conscience of the nation, must step in immediately and proactively. Even if by way of obiter dictum, the Supreme Court should, as a matter of utmost urgency, make a pronouncement clarifying this constitutional gap, to avoid incorrect and mischievous interpretations, which if not checked timely, are capable of derailing our democracy.
I personally subscribe to the interpretation that a retrial, if ordered, will still span through the constitutional 180 days. The reasons are twofold: (a) A retrial, as the name suggests, is a fresh trial, which in law should have all the trappings of a full trial, nothing more nothing less; (b) Any other interpretation will defeat the intendment of the amendments introduced in the new Section 285 of the constitution. The lawmakers did not intend and could not have intended to limit the traditional powers of the Supreme Court and the Court of Appeal to make relevant consequential orders in deserving cases, in this case, ordering retrials. And as canvassed above, once such retrials are ordered, they are to, by force of law, wear the full robes of a normal trial.
Therefore, all stakeholders, particularly the CJN, should take immediate steps to nip these potentially combustible situations in the bud.

Sebastine T. Hon, SAN, is an Abuja based private legal practitioner.