The constitution of the Federal Republic of Nigeria 1999 as amended created three sets of courts in Nigeria to obtain justice. These courts are the High Court, the Court of Appeal, and the Supreme Court. In the hierarchy of courts, the Supreme Court is the highest in the land. In election and pre-election matters, appeals from Tribunals and Federal High Courts go to the Court of Appeal and from the Court of Appeal to the Supreme Court in some cases. 

The Supreme Court is the highest in Nigeria. The Constitution has allocated time for the adjudication of cases to these three sets of courts. For instance, 180 days and 60 days are allotted to the trial courts and the Court of Appeal, and the Supreme court, respectively, as can be seen in sections 285(10) and (11) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. 

The basis of the appellate jurisdiction of the Court of Appeal is to correct whatever errors the trial Federal High Court may have made in Pre-election matters and should there be errors committed by the Federal High Court and the Court of Appeal, the draftsman of our constitution allotted to the Supreme Court powers and jurisdiction to determine and correct such errors within 60 days.

But recently there have been worrying trends from the apex court, the Supreme Court in which the majesty of that court appears to have surrendered to the principle that if the trial Federal High Court failed to examine the merit of a case within 180 days, then such errors cannot be corrected on appeal even in cases where the justice of the matter deserves the exercise of the powers vested in the Court of Appeal and the Supreme Court not only by statutes but even the Constitution that created the rights of appeal and the appellate jurisdiction of these courts.

There is a need for the Supreme Court to revisit its stand as I will show anon. The right of appeal created by the Constitution was not donated not to be exercised. It is because the draftsman of our laws appreciated that errors such as not doing what the trial court was expected to do that the right of appeal was created.

Furthermore by sections 6, 233, and 235 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, whether the failure of the trial court and the Court of Appeal to comply with section 285(8) of the same Constitution cannot stop the Supreme Court from exercising its appellate jurisdiction. 

This is because the Constitution did not say that the failure of the trial court or the Court of Appeal to exercise their jurisdiction within 180 and 60 days respectively cannot be corrected by the Supreme Court. The Constitution did not say so and we cannot read into the Constitution what it did not say. 

The Constitution never intended to leave errors of the trial Federal High Court uncorrected. The Supreme Court of Nigeria cannot abdicate its majesty and finality under the guise that once the 180 days has elapsed then whatever errors the trial Federal High Court committed to not examining the merit of pre-election matters will remain uncorrected forever. 

No, it cannot be a correct approach to justice. The constitution cannot donate supervisory and appellate jurisdiction in the Supreme Court and it will engage in giving an interpretation that creates injustice in adjudication. Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, sets out the hierarchy of Nigeria’s judicature to exercise adjudicatory powers in all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

In respect of the adjudicatory powers mentioned in the Constitution, the grundnorm specifically sets out both the order of hierarchy and the procedure through which all claims must climb, by way of systemic and systematic review, before arriving at the Supreme Court. Section 84(14) of the Electoral Act, 2022 says pre-election matters be filed in the Federal High Court. 

Section 285(8) of the Constitution provides that: Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the tribunal or court in any pre-election matter or the competence of a petition itself is raised by a party, the tribunal or court shall suspend its ruling and deliver it at the stage of final judgment.

This section of the Constitution was interpreted by the Supreme Court in APP vs. Obaseki [2022] 13 NWLR 11 (Pt.1846) 1 at 41-42, where his lordship Ogunwumiji, JSC, put it in the most admirable erudition that: “By section 285(8) of the 1999 Constitution (as amended), every ruling that is capable of terminating an election petition in limine be it a preliminary objection or an interlocutory issue touching on the jurisdiction or competence of the court must be deferred or suspended until the final Judgment when both would be rendered together.
[d]
The provision of section 285(8) of the 1999 Constitution (as amended) is mandatory, as the word ‘shall’ used therein leaves no room for discretion. The mischief sought to be cured by the section is simply to prohibit the tribunal or court of first instance in election matters from truncating an election petition in limine based on any preliminary objection to the jurisdiction of the tribunal or court or competence of the petition. In the instant case, the Court of Appeal was wrong in scolding the trial tribunal for obeying the letters and spirit of the Constitution.”

Even though the mischief sought to be cured by section 285(8) of the Constitution is a situation whereby a court would deliver a ruling in limine, and a default judgment without considering the merit of the case or cases, experience has shown that some judicial officers of the trial court still breach this provision of the constitution.

If the trial court failed to consider an action on merit, why should the Court of Appeal and the Supreme Court refuse to correct the errors? Is it justice for the Court of Appeal and the Supreme Court to see an obvious error for which jurisdiction was donated to them by the Constitution for their lordships to shy away from their constitutional duties and responsibilities under the guise that 180 days have lapsed? What is the essence of jurisdiction donated to them? 

The powers of the Supreme Court and its jurisdiction were donated to check the excesses or errors of both the trial court and the Court of Appeal. That is the majesty of the Supreme Court. It is the apex court of the land. See sections 233 and 235 of the Constitution. Whilst section 233 empowers the Supreme court to adjudicate over decisions of the Court of Appeal, section 235 of the Constitution makes the decisions of the Supreme Court final. Final in the sense of finality. See Adegoke Motors (Nig.) Ltd vs. Adesanya & Ors. (1989) 3 NWLR (Pt. 109) 250 at 274. 

How appeals are being withdrawn or counsel is being advised to withdraw appeals based on the 180 days principle that appears concerning making the right of appeal to the Supreme Court meanless and options. The Supreme Court needs to revisit its stand on this issue before the trial court becomes Supreme Court in pre-election matters.

This is because some judex may deliberately decide not to decide the merit of matters for reasons other than justice. The Supreme Court cannot afford to set this policy or standard. To continue to say appeals cannot be heard to correct what the trial court failed to do or did not do within 180 days means that the trial court has become the final court in pre-election matters. 

The Supreme Court is a policy court. See Marwa vs Nyako (2012) 6 NWLR (Part 1296) 199. If the current position is not urgently reviewed and departed from it means that the Supreme court is unwittingly encouraging a very dangerous policy that trial courts can now wait until the end of their statutory allotted period to deliver their judgments, in which said judgments, they can raise issues suo motu and get rid of claims without hearing the merit of these cases and the possibility of such decisions being reviewed on appeal becomes impossible. 

That cannot be in the interest of justice. It cannot even be in the interest of the existence of the Supreme Court. It will not be in the interest of the majesty of the Supreme Court. No, it cannot be.

In Ebodaghe vs. Okoye (2004) 18 NWLR (Pt 905) 472 at 494 – 495, the Supreme Court made it clear that even in the face of a challenge to its jurisdiction, the court is duty bound to first resolve any issue of its majesty, to leave same intact. On this leg alone, to wit, the court’s majesty which must ring true at all times, the Supreme Court ought to and should review its current stand on the 180 days question of its jurisdiction to hear aggrieved parties. 

To be continued tomorrow
Okutepa is a Senior Advocate of Nigeria (SAN).