By J. S. Okutepa SAN

The constitution of the Federal Republic of Nigeria 1999 as amended created basically three sets of courts in Nigeria for the purposes of obtaining justice. These courts are the High Courts, the Court of Appeal and the Supreme Court.

In the hierarchy of courts the Supreme Court is the highest court in the land.

In election and pre-election matters, appeals from Tribunals and Federal High Court go to the Court of Appeal and from Court of Appeal to the Supreme Court in some cases.

The Supreme Court is the highest court in Nigeria. The Constitution has allocated time for adjudication of cases to these three set of courts. For instance 180 days and 60 days are allotted to the trial courts or and Court of Appeal and the Supreme court, respectively, as can be seen in section 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 of recent there have been worrying trends from the apex court, the Supreme Court in which the majesty of that court appears to have been 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 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 day has elapsed then whatever errors the trial Federal High Court committed in 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 interpretation that create 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 virtue of 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. 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 on the basis of 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.”

Despite the fact that 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.

In the event that the trial court failed to consider an action on the merit why should the Court of Appeal and the Supreme Court refused 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 has lapsed. What is the essence of jurisdiction donated to them.

The powers of the Supreme Court and it’s jurisdiction was 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.

Clearly the manner in which appeals are being withdrawn or counsel are being advised to withdraw appeals on the basis of the 180 days principle appears with respect to make the right of appeal to the Supreme Court meanless and otios. The Supreme Court needs to revisit it’s stand on this issue before 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, so as 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 it’s current stand on the 180 days question on it’s jurisdiction to hear aggrieved parties.

The jurisdiction of the Supreme Court under section 233 of the Constitution cannot be traded under the guise of 180 days. That jurisdiction, on its own, encapsulates, by

constitutional imperative, the entirety of proceedings from the trial court, to the court of Appeal and issues raised before the Supreme Court, even if for the first time. It is the law that an appeal is a continuation of hearing. See Trustees, A.O. N. vs N.A.M.A. [2014] 8 NWLR (Pt. 1408) 1 at 30 paras. G-H.

In Adegoke Motors Ltd. vs. Adesanya (1989) 3 NWLR (Pt.109) 250 at 266, his lordship Oputa, JSC as he then was now of blessed memory held that:“Generally, an appeal is regarded as a continuation of the original suit rather than the inception of a new action. Because of this, in an appeal, parties are normally confined to their case as pleaded in the court of first instance. They are not

allowed to make a new and different case on appeal. They are not allowed to raise in such appeal new issues without the express leave of court or to proffer new evidence without such a leave. An appeal, being a judicial examination by a higher court of the decision of an inferior court, it follows that such examination should normally and more appropriately be confined to the facts and issues that came before the inferior court for decision.”

Since an appeal is a continuation of the case as instituted in the trial court it is submitted that any and all errors can and should be corrected by the Supreme Court. That is the basis of the Appellate jurisdiction donated to this the Court of Appeal and the Supreme Court by the Constitution. See Ezomo vs. A.G. Bendel State (1986) 4 NWLR (Pt. 36)448; Ogunremi vs. Dada (1962) 1 ALL NLR (Pt. 4) 663, 2 SCNLR 417; Adewoyin vs. Adeleye (1962) 2 NLR (Pt. 1) 108; 1 SCNLR 91.

The point being made is that the combined reading and construction of the appellate jurisdiction of the Supreme Court as donated by the Constitution read together with section 22 of the Supreme

Court Act, does not admit that those who approached the Supreme Court should not be sent home with barren justice as it appears to be the policy of the Supreme Court presently. Section 22 of the Supreme Court Act as an Act of parliament draws strength and constitutional force from section 233 of the Constitution and therefore and it does not a stand lone.

In the exercise of its constitutional jurisdiction of appeal the Supreme Court can do what the trial court can do within the 60 days window granted by the Constitution even if section 22 of the Supreme Court Act does not exist, or had not been enacted. The Supreme Court is not only the highest Court of the land but a court of policy and it does not accord with logic of justice for the construction being advanced that once 180 days had expired then in the exercise of its appellate jurisdiction the Supreme Court cannot do what the trial court failed to do.

The Supreme Court has in the most admirable quest for justice done what it appears it does not want to do now in many deserving cases. There are decisions of the Supreme Court that do not support the current stand of the Supreme Court. For instance in Appeal No: SC/CV/1353/2022, Nwite vs PDP & Ors, delivered on 9th December, 2022, the Supreme Court despite the fact that the 180 days had passed, acting pursuant to its appellate jurisdiction and in aid of justice reviewed the evidence and reached a different conclusion from the trial court, thereby allowing the

appeal. In election petition appeals the Supreme Court had in aid of justice heard and determined issues that trial tribunal failed to adjudicate on. See Nyesom vs. Peterside (2016) LPELR – 40036(SC) at at 22-23. In this case, Mr Ukala, SAN, had urged it upon the Supreme court that substantive issues were not pronounced on by the lower courts. The Supreme Court, having expressly found that the 180 days the lower court had elapsed held that:

“I therefore agree with learned counsel for the appellant that the ruling delivered on 9/9/2015 was without jurisdiction. It is a nullity. It is therefore follows that the appellant’s right to fair hearing was breached as there is no resolution of issue submitted for determination in the application. Having found that the ruling delivered on 9/9/2015 was a nullity, its constitutes good

ground for setting aside the entire proceeding before the tribunal. However, having regard to the fact that this is an election matter which is sui generis and time bound and the fact that it would not be possible for the parties to return to the tribunal having regard to section 285(6) of the 1999 Constitution, I deem it proper in the interest of Justice to consider the appeal on the merits.

Again in Mato vs Hember (2018) 5 NWLR (Pt.1612) 258, it was a matter where the 180 days allotted to the trial court had not only lapsed, the trial court had refused to consider the merit of the appellant’s case. The Court of Appeal in that case also refused to enter the merit of the appeal, dismissing same on technical grounds. On appeal to this court, the appellant invoked section 22 of the Supreme Court Act and at 288-289 of the report, the Supreme court set out the conditions an appeal must meet before section 22 of the Supreme Court can be invoked.

This is what the Supreme Court said : “Certain conditions must exist before the Supreme Court can exercise the wide power conferred on it by Section 22 of the Supreme Court Act. The conditions include the following:

(a) availability of the necessary materials to consider and adjudicate in the matter;

(b) the length of time between the disposal of the action at the trial court and the hearing of the appeal; and

(c) the interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial for rehearing and the hardship such an order would cause on either of both parties in the case”

Thereafter, the Supreme court invoked its powers and their lordships in the most admirable candor in delivering justice in the judgment held that:

“The situation in the instant case makes it imperative for this court to invoke its powers under section 22 of the Supreme Court Act to hear this case”

I have gone this length to demonstrate the need for the Supreme Court to revisit the policy that Once 180 days have passed and the trial court in breach of the constitution decided not to consider the merit of the case in a judgment or rulings in interlocutory applications or the trial courts raised issues that truncated the merit of the case or wrongly held that because it upheld jurisdictional points, there will be no need considering the merit of the case, the Supreme Court in the final appeals to it should and ought to assume jurisdiction to determine the merit of the case. This is the only way the Supreme Court will not unwittingly grant unbridled judicial policy or license to the trial

courts to continue to engage in judicial terror or tyranny.