Between a clinch and a catch -22 procedural efficiency, statutory deadlines and the quest for substantive justice in Nigeria pre-election law.

Abstract

The Nigerian electoral landscape is uniquely characterised by a compressed judicial timeline for the resolution of pre-election disputes.The increasing use of time limits in election-related matters has assumed constitutional flavour as Section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) contains express provisions relating to time limits for both pre-election and post-election matters. By virtue of these constitutional provisions and the Electoral Act, 2022, pre-election matters must be commenced and concluded within a 180-day period. This stringent timeframe represents a legislative response to the imperativeness of electoral certainty and the expeditious resolution of disputes before the main polls. In judgments reminiscent of the Biblical instruction to 'touch not my anointed', courts have treated these statutory periods and time limitations as untouchable and inviolable. This much is beyond doubt to anyone with the faintest acquaintance with electoral law and practice in Nigeria. ​The Supreme Court, in ANPP v Goni, affirmed the constitutional time frame of being a rock of Gibraltar or mount Zion which cannot be changed, extended or elongated. This constitutional inviolability is well-settled. However, in recent times, the application of the Constitutional stipulation of time frame has been extended to rules and practice direction of the court, which are subsidiary legislations to the Constitution. This extension demonstrated through an analysis of Akan Ekpe Okon v PDP & 2 Ors, where the timelines were given no exceptions, despite the fact that the individual who was meant to file the process was kidnapped, has created a troubling jurisprudential development that threatens the very essence of substantive. Simultaneously, to give effect to the constitutional and statutory mandate for speedy resolution, the Chief Judge of the Federal High Court, pursuant to the powers conferred on him, issued the Federal High Court (Pre-Election) Practice Directions, 2022. A central feature of this Practice Directions is the directive in Paragraph 4 that all pre-election matters shall be commenced by way of an Originating Summons. The stated rationale is sound on its face: an originating summons procedure, being predicated on affidavit evidence without the need for oral testimony and cross-examination, is inherently faster than a Writ of Summons, which involves pleadings, discovery, and a full trial. The objectives of the Practice Direction, as articulated in its preamble, are to “provide for a fair, impartial and expeditious determination of pre-election cases; ensure that in all election matters, the parties focus on matters which are genuinely in issue” and, very importantly, “minimize undue adjournments and delays in the conduct of matters.” ​Yet, this quest for procedural efficiency has collided headlong with a fundamental and long-standing principle of Nigerian jurisprudence: those cases involving contentious or disputed facts are unsuitable for determination by Originating Summons. The Supreme Court has consistently held that where facts are riotously in dispute, a Writ of Summons, leading to a full trial with viva voce evidence (oral evidence) and cross-examination, is the appropriate vehicle for . This paper argues that the mandatory imposition of the Originating Summons procedure for all pre-election matters, irrespective of the factual contentiousness of the dispute, creates a profound inconsistency within the Nigerian legal system. It elevates a procedural rule which is ordinarily designed as a handmaiden to, above the substantive justice it is meant to serve, thereby trapping litigants in a procedural Catch-22 where adherence to the Practice Directions can lead to the fatal failure of their case. The choice of the phrase ‘Catch-22’ is deliberate and apt as it describes a situation of circular logic wherein a litigant is confronted with mutually conflicting requirements, such that compliance with one necessarily constitutes violation of the other. This is precisely the predicament of the Nigerian pre-election litigant who is faced with either complying with the Practice Directions by using Originating Summons and facing the risk of the suit being struck out for improper commencement where facts are contentious; or using the procedurally appropriate Writ of Summons and facing immediate challenge for violating the Practice Directions. This is no longer a mere conundrum; it has crystallised into an untenable paradox demanding urgent judicial and legislative resolution.