IMPERATIVES FOR SPEEDY AND EFFICIENT DISPENSATION OF JUSTICE WITHIN THE BROADER FRAMEWORK OF THE RULE OF LAW IN NIGERIA: AN APPRAISAL OF THE CONCEPT OF FRONTLOADING OF EVIDENCE

 IMPERATIVES FOR SPEEDY AND EFFICIENT DISPENSATION OF JUSTICE WITHIN THE BROADER FRAMEWORK OF THE RULE OF LAW IN NIGERIA: AN APPRAISAL OF THE CONCEPT OF FRONTLOADING OF EVIDENCE

A PUBLIC LECTURE

IN HONOR OF LATE GRANVILLE ISETIMA ABIBO SAN, KSC

DELIVEREDB BY

SIR BIOBELE ABRAHAM GEORGEWILL, JCA, DSSRS Ksc.

HOLDEN AT

THE NBA HOUSE

BANK ROAD, OPPOSITE THE RIVERS STATE HIGH COURT

PORT HARCOURT

ON

MONDAY14^TH DAY OF JUNE 2021

IMPERATIVES FOR SPEEDY AND EFFICIENT DISPENSATION OF JUSTICE WITHIN THE BROADER FRAMEWORK OF THE RULE OF LAW IN NIGERIA: AN APPRAISAL OF THE CONCEPT OF FRONTLOADING OF EVIDENCE.¹

IN HIS HONOR

Let us all kindly stand up briefly and sing in memory of the great departed soul, late GRANVILLE ISETIMA ABIBO, Senior Advocate of Nigeria, Knight of Saint Christopher, in whose honor we are all gathered here and who has travelled to that far distant Country from which none ever returns that he may continue to sleep and rest in perfect peace until the resurrection morning, Amen.

“Asleep in Jesus; ‘Oh Granville sleep’, From which none ever wakes to weep; A calm and undisturbed repose; Unbroken by the last of foes”

 “Asleep in Jesus; ‘Oh Granville rest’, Whose waking is supremely blessed; No fear, no woe, shall dim the hour, That manifest the Savior’s power”

“Asleep in Jesus; Time nor space, Debars this precious hiding place; On Indian plains or Lapland snows; Believers find the same REPOSE”²

It does not matter how, where or when we die. It does not matter how, where or when we are buried. What matters is that all believers like GRANVILLE ISETIMA ABIBO no matter how when or where they died or are buried will find the same SWEET REPOSE and the same PERFECT REST in the LORD! May the departed soul of our brother, husband, father, uncle, friend and colleague, the late GRANVILLE ISETIMA ABIBO, SAN, KSC, continue to rest in perfect peace, Amen.

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1, By Sir Biobele Abraham Georgewill JCA, DSSRS,  Ksc of the Court of Appeal, Benin Division, Lord Chancellor, Diocese of Niger Delta, Church of Nigeria Anglican Communion, Former Chairman, Presidential Investigation Panel on Rules of Engagement by the Nigerian Armed Forces in the Fight Against Insurgency and Militancy in Nigeria, Immediate Past Chairman, Sierra Leone Presidential Commission of Inquiry on allegation of Corruption Against the Government of President Dr. Ernest Bai Koroma from 2007 – 2018.

2. Sacred Songs and Solos, Compiled by Ira Sankey, Reprinted in 1981 by Marhall, Morgan & Scott, Londo; Hymn No. 1036, Written by Magaret Mackay; Music by William B. Bradbury

Now, let us talk about law! Welcome to my paper!!

INTRODUCTION

In the invitation extended to me by the Public Lecture Planning Committee in Honour of late GRANVILLE ISETIMA ABIBO SAN, KSC and signed by SIR COSMAS IK. ENWELUZO, SAN, the Chairman of the Committee, I was requested to choose a topic to write on in honour of the departed legal colossus.

In arriving at the topic discussed in this paper, I recall the professional life of excellence of the late GRANVILLE ISETIMA ABIBO SAN, KSC, and his resolute belief in the Rule of law. He was a consummate practitioner of the law, which he used as an instrument of social engineering throughput his brief but impactful stay on mother earth before his sudden and incomprehensible departure to the world beyond!

He was a stickler for speedy and expeditious dispensation of justice. I had in several instances, including handling of cases in the Courts, had close contact with him before my elevation to the High Court Bench in 2002. He was my senior in the legal profession but he was very accommodating to us his juniors. It is for his love for expeditious and just dispensation of justice that I had narrowed down my gaze on the topic of this paper, emphasizing as it were the imperatives for speedy and efficient dispensation of justice within the broader frame work of the Rule of Law. In other words, no matter how desirable is the need for speedy and expeditious dispensation of justice it must be situated with the broader framework of the doctrine of the Rule of law. Thus, any form of process or procedure to be introduced by way of reform to enhance speedy and expeditious dispensation of justice, such as the frontloading system introduced some while ago, it must not in any way impede the observance of the principles embedded in the doctrine of the Rule of law. Let me explain!

In the zeal to ensure speedy dispensation of justice, care must be taken to protect the rights of the litigant that it is not crushed in the rush for quick justice. I recall that in October 2018, I had been invited to deliver a lecture as Key Note Speaker on the imperatives for speedy dispensation of justice and the place of trial within trial in the administration of criminal justice in Edo State. In the course of the preparation of my paper, I discovered that the then Chief Judge of the State had issued a practice direction in which trial within trial had been abolished to expedite hearing and determination of criminal cases in view of the sometimes obvious delays occasioned by trial within trial in the expeditious dispensation of criminal justice in Nigeria. This directive may seem on the surface to be laudable as engendering speedy dispensation of criminal justice but was it in sync with the more fundamental imperatives of the doctrine of the rule of law that ensures that a person who is standing criminal trial is not hampered in his defence against the crime for which he is standing trial, particularly in view of the requirement of the law³ that a statement ascribed to an accused person and which is confessional in nature shall only be admissible if it was made voluntarily.

It follows therefore, that the onus of proving that a confessional statement was made voluntarily for it be admissible in evidence, where it is objected to on the ground that it was not made voluntarily, lies on the Prosecution. This directive was simply to take away this ingrained right of an accused person in a criminal trial in which the Prosecution intends to rely on a confessional statement. This is clearly not one in sync with the doctrine of the rule of law. In my delivery of the paper on Friday, 26^th day of October 2018 before the Honourable Judges of the Edo State Judiciary, I made this point very clear and in no unmistaken terms in my paper to the then Chief Judge of Edo State, Happily, the then Chief Judge, Hon Justice Esohe Frances Ikponmwen, FCJEI, now in blissful retirement, was a listening Chief Judge and thus that part of the ‘Practice Direction’ outlawing the holding of trial within trial was with immediate effect itself outlawed and expunged from the practice direction. Several instances of such infractions on the principles of the rule of law abound in our laudable zeal to ensure speedy and expeditious dispensation of justice, whether in criminal or civil cases in Nigeria.

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3. See Section 29 of the Evidence Act 2011. See also State V. Sani 2018 LPELR 234 SC

THE DOCTRINE OF RULE OF LAW

The doctrine of rule of law is a concept that has been with the world for well over 25 centuries when it was first propounded by the great philosopher and thinker Aristotle. However, in modern contemporary jurisprudence, Prof A. V. Dicey is commonly regarded as the greatest exponent of the concept of rule of law.  By simple or general definition, rule of law is defined or can be described as the condition in which all members of the society including the rulers and the ruled accept the authority of the law.⁴ It can also be defined as a legal principle of general application sanctioned by the recognition of authorities and usually expressed in the form of a maxim or logical proposition.⁵ The concept of rule of law thus implies that no man is punishable or can be made to suffer except for a breach or infraction of law committed and established in the ordinary legal manner before ordinary Court of the land.⁶ In this vein it is instructive to call to mind the immortal words of Prof A. V. Dicey, who described the concept of rule of law as simply thus:

 “The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness of prerogative or even of wide discretionary authority on the part of government”⁷

The rule of law is embedded principally in the two fundamental principles of natural justice, namely; a. let the other party be heard, audi alterem patten,  and b. one cannot be a judge in his own cause, nemo judex incasua sua.  Under the rule of law everyone is equal before the law and all including the rulers and the ruled are subject to the laws of the land and none is above the law. The citizen is entitled to the observance of the principles of natural justice in the determination of any question involving his rights and obligations under the law. There must be no sacred cows before the law in the enforcement of the rule of law.

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4, See A. Hornby; Oxford Advanced Learners Dictionary Ed. Sally Wehmeier Oxford University Press (2000) @ p. 13.

5. See Black’s Law Dictionary 8^th Edition.
6. See Prof A. V. Dicey: Introduction to the study of law of the Constitution 10^th Edition Macmillan Education Ltd. 1959 @ p. 202:
7. Ibid @ p. 202:

In Nigeria, the Supreme Court had in clearly unmistaken terms established that fair hearing is not only a common law requirement but also a statutory and constitutional requirement that must be observed by all judicial and quasi – judicial bodies charged with the sacred duty of determining the rights and obligations of the citizen. See Garba & Ors. V. University of Maiduguri⁸

The concept of rule of law finds easy expression in yet another term “justice”, which must not only be done at all times but must be seen as having been done. The rule of law is thus targeted principally at the strict observance of the law of the land by all and sundry, the rulers and the ruled, to the end that justice prevails in the land. It is an anathema to the rule of force or arbitrariness in governance. It is a recipe for justice for all, the irreducible minimum for the observance of the laws of the land for the good of all and for justice for all to prevail in the land. The rational for this position of law was most remarkably explained by the Supreme Court in Godwin Josiah V. The State ⁹ where the erudite Oputa JSC., had opined that “justice”:

“Is not a one way traffic. It is not for the appellant only. Justice is not even two way traffic. It is really three way traffic. Justice for the appellant accused of a heinous crime of murder, justice for the victim, the murdered man, the deceased, “whose blood is crying to heaven for vengeance” and finally justice for the society at large. The society whose social norms and values had been desecrated and broken by the criminal act complained of” ¹⁰

­­­­­­­­­­­By the precepts of the rule of law all are equal before the law and the law is not a respecter of any person. It envisages and ensures if it is adhered to that governance is about the overall interest of the public as distinguished from a factional or tyrannous rule embedded in the interest of a single class of individual.

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8. (1986) 1 NWLR (Pt. 18) 550.
9. (1985) 1 NWLR (Pt. 11) 125
10. Ibid @ p. 141.

It propagates the notion of equality of all before the law without regards to social status, official position, education or wealth and of justice that is both blind and even handed. This implication of the concept of rule of law was most aptly captured by the Supreme Court in Kalu V. The State ¹¹ where the inimitable Oputa JSC, had opined thus:

“It should be one and the same even handed justice, blind to all social distinctions and disparities in wealth and status and no respecter of persons”¹²

The rule of law denotes absolute supremacy or predominance of law and thus inhibits the existence of arbitrary policies and actions by the rulers against the ruled. It postulates that the law should be respected even by the rulers who enacted it and thus governance shall be in accordance with the provisions of the Constitution and other regular laws of the land. Under the concept of rule of law, the Constitution is the supreme law, the grund norm from which all other laws in the land derives their validity and lawful existence. The rule of law abhors in its totality the rule of force or fear. The rule of law, or more aptly the observance of the laws of the land, must be the guiding code in the daily life of both the rulers and the ruled and none whosoever is exempted from the observance of the laws of the land. This is indeed the true essence of the concept of rule of law. The Supreme Court rose up to the challenge of upholding the supremacy of the rule of law over and above the rule of force or fear when in 1986 it deprecated in very clear strong terms the use of force by the rulers against the ruled in the celebrated case of Military Government of Lagos State V. Odumegwu Ojukwu¹³ In his characteristic blunt manner, his lordship, Oputa JSC., had aptly observed thus:

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11. (1987) 1 NWLR (Pt. 90) 503.
12. Ibid @ p. 561.

13., (1986) 1 NWLR (Pt. 18) 621

 “The rule of law presupposes (i) that the state is subject to the law, (ii) that the judiciary is a necessary agency of the rule of law, (iii) that Government should respect the right of individual citizen under the rule of law., (iv) that to the judiciary is assigned both by the rule of law and by our constitution the determination of “all actions and proceedings relating to matters in dispute between persons or between Government or an authority and any person in Nigeria”^13a

In sum, the rule of law according to Prof A. V. Dicey in his lectures delivered at the University of Oxford as a Venetian Professor of English law presupposes three crucial indices, namely; a. absolute supremacy of the law as opposed to arbitrary use of force or power, b. principle of equality before the law, c. individual rights vis a vis constitutional provisions.¹⁴ However, looking at the three crucial indices of rule of law as propounded by Prof A. V. Dicey, it cannot fit into all ramifications of every legal system without qualification as in reality the position is not as simple as Prof A. V. Dicey puts it, particularly in Nigeria. More so when the concept of regular law as delineated by Prof A. V. Dicey is not only difficult to decipher but also appears to be very amorphous. What can also be termed arbitrary power is equally nebulous and highly subjective and this is so because there are instances of executive actions clearly authorized by regular law of the State but yet which go against the Constitution of the land. It is also of very common occurrences that in most legal systems within the Common Wealth of Nations, defined privileges and immunities are conferred on certain category of persons.¹⁵

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13a. ibid @  p. 630.

14. See Prof A. V. Dicey, Op Cit @ p. 202.
15. See Sir William Holdsworth’s review of Wade’s Introduction to Dicey 9^th Ed. 55 LGR 585; The Crown Proceedings Act 1947; The Constitution of Nigeria 1999 as amended; The Diplomatic Immunities and Privileges Act 2004; Legislative Houses (Power and Privileges) Act 2004. See also “Rule of Law & Justice System in Nigeria: The Common Law and Islamic Jurisprudential Approach” by A. A. Owoade, Lecturer, Department of Islamic Law, Faculty of Law, University of Ilorin, Ilorin, Nigeria published in the Confluence Journal of Jurisprudence & International Law of the Department of Jurisprudence & International Law, Faculty of Law, Kogi State University, Anyigba; “The Rule of Law & Anti – Corruption Crusade in Nigeria” by Niki Tobi JSC., Lecture delivered at the 9^th Justice Idigbe Memorial Lecture at Akin Deko Auditorium, University of Benin City, Nigeria on 6^th August 2008.

AN APPRAISAL OF THE CONCEPT OF FRONTLOADING OF EVIDENCE

Having dealt albeit briefly with the concept of rule of law, the broader area of law from which the specific topic for this discourse was derived, it must always be borne in mind, and I always do, that:

“Justice is much more than a game of hide and seek, It is an attempt, our human imperfections notwithstanding, to discover the truth.” ¹⁶

In the quest for speedy and efficient dispensation of justice, the jurisdictions of several States of Nigeria and many other Nations of the world had readily adapted the innovative outcome in the reports of the Lord Wolfe’s Commission in England to meet local circumstances to keep pace with modern trend in civil litigation the world over, particularly within the Common Wealth of Nations, notably England. To this end many of the jurisdictions of the Federal and States in Nigeria, including Election Petition Tribunals and Courts, have adopted and adapted the finer deserving aspects of the Lord Wolfe’s Commission’s Report as would suit their desired goal of attaining expeditious dispensation of justice to their people, particularly the litigating public.

These efforts had culminated into the promulgation of Rules of Courts in the several States in Nigeria and the Federal Capital Territory incorporating desired aspects of the Lord Wolfe’s Commission’s report, notably and perhaps the most radical, pragmatic, proactive and justice friendly amongst these adaptations is the introduction of the innovative concept of front loading of evidence by way of filing written statements on Oath of witnesses and attaching copies or listing of documents intended to be relied upon at the trial of the Suit or Election Petition or matter or cause to the end that expeditious dispensation of justice in our Courts of trial and Election Tribunals and Courts are achieved.

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16. Per Oputa JSC, in Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 @ p. 269.

In this discourse, we are not going to be concerned so much with the rationale for the adaptation of the concept of front loading of evidence into the Jurisprudence of civil litigation in the several States in Nigeria and the Federal Judiciaries, including Election Tribunals and Courts, as in my view such would no longer serve any useful purpose, but we are rather mostly concerned with taking a hard critical look at the practice and procedure of front loading of evidence to see how far the adaptation of this innovative concept of front loading of evidence has met or is meeting the objective of ensuring speedy and efficient administration of justice to the various peoples of Nigeria in their different States by means of expeditious hearing and determination of their cases by the Courts.

THE RULES OF THE HIGH COURTS AND THE ELECTION TRIBUNALS

In the High Court Rules of the various Stats in Nigeria¹⁷ that has adapted the concept of front loading of evidence, for a Plaintiff or Claimant (or a Petitioner in an Election Petition) it is usually provided, as nearly as possible, inter alia thus:

1. All Civil Proceedings commence by writ of summons (or an Election Petition) shall be accompanied by:

1. Statement of Claim.
2. List of Witnesses to be called at the trial.
3. Written Statements on oath of the witnesses; provided that in the case of a witness under Subpoena a witness summary shall be sufficient.

In this rule, witness summary means:

1. Evidence if known which would otherwise be included in a witness statement or

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17. See for example Order 3(2)(1) and (2) and (3) and Order 3(2) and (3) and Order 17 (1) of the Rules of the High Court of Rivers State 2010; Order 2(2) of the Anambra State High Court Civil Procedure Rules; Order 3(2) of the Lagos State High Court Civil Procedure Rules 2004; Order 2(2) of the Benue State Hugh Court Civil Procedure Rules; Order 2(2) of the Kwara State Hugh Court Civil Procedure Rules.

1. If the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.

 

1. Copies of every document to be relied upon at the trial; provided that dispute survey plans need not be filed at the commencement of the suit but shall be filed within such time as may be ordered by the Court upon any application made under sub rule 2 of this Rule.

2. In land matters, a Claimant or Plaintiff may file a Motion on Notice along with the Originating process for leave to enter land in dispute for the purposes of making dispute survey plan for the suit.

3. Where a Claimant or Plaintiff fails to comply with the Rule 2(1) above, his Originating process shall not be accepted for filing by the Registrar.

On the part of a Defendant (or Respondent in an Election Petition), it is usually provided, as near as possible, inter alia thus:

“The Statement of defence (or Reply in Election Petition) shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and their written statements on oath”  

  In Post – Election disputes, the First Schedule to the Electoral Act 2010 as amended and the Election Tribunals and Court Practice Directions 2011 specifically incorporated the concept of frontloading of evidence into post – election litigations. ¹⁸

LEGAL EFFECT OF FRONT LOADING

Since the adaptive introduction of the system of front loading of evidence and documents in the High Court Rules of virtually all the States of the Federation of Nigeria and in the Federal Judiciaries and Election Tribunals, these salient provisions

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18. See paragraph 4 (5)(i)(a)-– (c) of the First Schedule to the Electoral Act 2010 as amended and Paragraphs 1 and 2 Election Tribunal and Court Practice Directions 2011.

of the Rules have come up before the Courts for scrutiny and interpretation both as to their purport and legal effect in civil proceedings in the Courts of trial. Predominantly, questions have arisen as to whether these front loading provisions introduced by employing the word “shall” are mandatory and must be strictly complied with or substantially to confer validity on the processes of the parties, either as Plaintiff or Claimant or Defendant or Respondent?

In INEC V. Iniama ¹⁹ the Court of Appeal faced with the question whether compliance with the front loading provisions must be total or substantial, towed the line of substantial justice and held firmly that once these provisions are substantially complied with, it is sufficient. His lordship Prof Owoade JCA, had aptly opined thus:

“The only punishment for disobedience being the inability of the Petitioner to rely on a document not attached or listed as required by the provision” ²⁰

In the aftermath of the 2007, 2011, 2015 and 2019 General Elections, more especially after the 2007 and 2011 General Elections, the various Election Tribunals were inundated with objections to competence of Petitions on grounds of lack of total compliance with these front loading provisions and as many objections were overruled they were also taken on appeals to the Court of Appeal, which rose to the challenge and in most appeals rejected such grounds of appeals which were mainly grounded or based on the use of the word “shall” in the front loading provisions but rather leaning on the part of substantial justice and holding that substantial compliance was sufficient.

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19. (2008) 8 NWLR (Pt. 1008) 182.
20. Ibid @ pp. 200 – 201.

The corollary to the clear position of the law as above readily reveal to every legally discerning mind that where there is either a total lack of compliance or at least a substantial compliance with the front loading provisions of the Rules or Practice Directions, it is fatal to the competence of the Suit or Election Petition as the case may be..²¹ It would thus appear that failure to attach copies of documents or at least listing them in the list of documents sought to be relied upon would result in a rejection of such documents if sought to be tendered in evidence except where exceptional circumstances is shown to the satisfaction of the Court or Tribunal.²²

A cursory look at the provisions of Order 2(1)(c) of the Rules of the High Court 2010 of Rivers State, which is similar to the provisions in the High Court Rules of the several other States that have adapted the concept of front loading of evidence as a case study, it readily reveals a potential source of contention as to whether must a Claimant or Plaintiff or a Petitioner as the case may be list the names of even witnesses he intends to call on subpoena and whether none listing of the names of such witnesses is fatal to the competence of the Suit or Election Petition as the case may be?  There is also the issue as to who should sign the summary of evidence of a witness to be subpoenaed? Is it the Claimant or Plaintiff or Petitioner or his Counsel or the witness to be subpoenaed that should sign the summary of evidence of the witness to be subpoenaed? Happily, as to the issue of listing of names of witnesses to be subpoenaed, this potential source of contention was promptly nipped in the bud and it has been held, and quite rightly too in my view, that none listing of the names of witnesses intended to be called on subpoena is not fatal to the competence of the Suit or Petition.²³

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21. See Okereke V. Yar’Adua (2008) All FWLR (Pt. 398) 37. See also Oraekwe & Anor. V. Chukwuka & Ors (2012) 1 NWLR (Pt. 1280) 169 @ p. 200; Ukpo V. Ngaji & Ors (2010) 1 NWLR (Pt. 1174) 175 @ p. 200.
22. See Haastrup Olatunji V. Gbede Waheed & Ors (2012) 7 NWLR (Pt. 1298) 24 @ p. 51. See also ACN V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 @ p. 580.
23. See Olaniyan V Oyewole(2008) ALL FWLR (Pt. 399) 503.

On the issue of signing of the summary of evidence of witness to be called on subpoena, it is my view that since the very essence of a summary of evidence is that the witness is not available to voluntarily give his evidence by way of a written statement on oath or that the witness needed some form of compelling authority of the Order of the Court to be able to officially appear to give evidence in the Suit or Election Petition, the summary of the evidence or facts on which such a witness is to testify at the trial as contemplated under the Rules should be signed by the Counsel to the Claimant or Plaintiff or Petitioner who prepared and filed the processes or at worst the Claimant or Plaintiff or Petitioner should sign since in all probability the witness to be subpoenaed may not be readily available to do so.²⁴

Not quite far into the application of the frontloading system in the Election Tribunals it became apparent that there were potential dangers to witnesses whose names are listed by the parties with the possibility of attacks or inducement of such witnesses by the adversary.

To ameliorate this situation and to allay the fears of prospective witnesses, the then President of the Court of Appeal, Hon Justice Umaru Abdullahi, CFR promptly issued an amended Practice Directions²⁵ in which the use of acronym such as XYZ etc., were permitted to be used in place of names of potential witnesses in their written statement on oath to avoid the danger of increasing cases of threats to potential witnesses and real likelihood of inducement of witnesses by opponents²⁶

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24. See for instance Order 3(2)(c)(i) and (ii) of the Rivers State High Court Rules 2010
25. See paragraph b(1) of the Election Tribunals and Court Practice Amended Directions 2007
26. For a more detailed reading on the interpretations and legal effects of the frontloading provision; See Civil Procedure in Nigeria; Federal High Court and FCT Abuja High Court Volume 1 by S. T. Hon, SAN; published by Pearl Publication, 2008 @ pages 148 – 161.

CHALLENGES IN FRONT LOADING

Over the several years that have passed since the introduction of the frontloading of evidence in civil proceedings in our High Courts, a great deal of remarkable improvement in the dispensation of justice have been noticed generally and leading to more speedy  determination of cases and thus making justice available to the litigating public with less delays. In several cases, the new regime of frontloading and its openness have readily brought to the forefront cases which are completely lacking in reasonable cause of action or filed frivolously and merely to buy time.

This new regime of openness has lend credence to the foresightedness of great jurists such as Niki Tobi, JSC, who in far back 1992 as a Justice of the Court of Appeal had in Albion Construction Ltd V. Rao Investment & Property Ltd.²⁷ opined aptly thus:

“While the doors of the Court are open to all through the day for litigants with genuine grievances to pursue their legitimate claims, the same door will be shut against litigants who are mere busy bodies……antagonizing the judicial  process in precipitation and for the fun of it.” ²⁸

It is in the openness of the frontloading system that every card is laid bare on the litigation table and thus it is much easier to see who is a genuine litigant with a legitimate claim or who is a fun seeking antagonizing litigant. If the wisdom of Niki Tobi JCA, (as he then was) in the above case was uncanny, then the wisdom of Oputa JSC, was most prophetic when he succinctly and poignantly opined in Ajide V. Kelani ²⁹ thus: 

“Justice is much more than a game of hide and seek, It is an attempt, our human imperfection notwithstanding, to discover the truth.”³⁰

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27,. (1992) 1 NWLR (Pt. 219) 583.

28., Ibid @ p. 585.

29. Supra
30. @ p. 269.

How so prophetic! Without the openness ensured by the frontloading system, justice has for long e been seen as a game of hide and seek by many litigants, in some instances a writ of summons and an application for injunction are filed and for the next ten years or more no statement of claim is filed while the Claimant plays hide and seek with the right of the Defendant. No wonder then, Uwaifo JSC, that erudite jurist had in Jolayemi V. Alaoye ³¹ opined thus:

“I realized that the Defendant need not prove anything if the Plaintiff has not succeeded in establishing his case at least prima facie in order that the necessity of the Defendant to confront the case may arise.”³²

What better way could the Court readily preview the case of the parties but for the openness now fostered by the concept of frontloading of evidence and documents of the parties long before the trial of the suit? None other way that I can see!

 

In the light of the obvious gains of the frontloading system, it does appear to me that frontloading of evidence has come to stay and in my humble view shall outlive several amendments to the rules of courts in the years and generations to come after us. In L.M.P Industry Ltd V. U.H.S.L Ltd ³³ Galumje JCA (as he then was) readily approved the application of the frontloading system in the Lagos State High Court Civil Procedure Rules 2004

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31. 18 NSQR (Pt. 11) 654
32. ibid @ p. 203
33. (2011) 7 NWLR (Pt. 1247) 519

PRACTICE AND PROCEDURE

What obtains today in most jurisdictions by way of practice and procedures relating to the concept of frontloading in the provisions of the Rules of Courts need a close critical look at with a view to identifying the several loopholes that have surfaced over the years since its introduction as far back as 2004 in Lagos State and 2006 in Rivers State and subsequently in virtually all the other States of the Federation and the FCT Abuja and also the Federal High Court, in order to proffer some suggestions to ameliorate them. Let us examine some of these loopholes anon.

LACK OF COMPETENT STATEMENTS ON OATH

It often occurs that a Claimant or Defendant had frontloaded statements on oath that are found to be imcompetent, the question will readily arise: Is such a suit or defence incompetent if this issue was raised before the trial or is it a failure of evidence if this issue was raised at the close of trial? In discussing this issue, I think I should first distinguish between the varieties of statements of oath the Courts have over the years been inundated with by parties and see how these statements on oath affect the competence or merit of the claim or defense of the affected party.

Who therefore, in law is authorized to sign a statement of oath of a witness and where should it be so signed? This question seems so innocuous but in practice it is fast becoming a formidable question. In many cross examinations in the Courts conducted by adept cross examining Counsel, so much have been revealed. In some cases the witness in the witness stand who had adopted a written statement on oath in his name is made to admit that he never signed the statement of oath. In other cases, witnesses are cross examined to show that their names or initials were merely written on the statement on oath either by their Counsel or Clerks in their Counsel’s Chambers. There are yet some other cases in which witnesses are cross examined to show that they never appeared before the Commissioner for Oaths to depose to their statement on oath which are signed by them either in the comfort of their own offices or homes or in the offices of their Counsel.

It is my humble view these practices, which are now rampant and almost taken for granted, are very improper in law and not the way to practice the frontloading provisions of the Rules of Courts.³⁴ In deed what is envisaged and intended is a statement on oath deposed to by the witness himself and signed by him in person before the Commissioner for Oaths and nothing less or nothing else should suffice. The current pervading practice of doing otherwise is one in clear breach of the frontloading provisions and should no longer be condoned, encouraged or tolerated. Lawyers must rise up to the occasion and insist on due compliance with the provisions of the Rules and the requirements of the Oaths as to the taking of Oaths in the Courts.

In several cases, some parties have lost their case on this ground due to no fault of theirs but having entrusted their hopes and safety on legal procedures in the hands of their Counsel, who when it matters most on their being battered in cross examination are in no position to offer any comfort or protection to their Client in the witness box. I think the solution lies in the much needed resolution by lawyers to do it just right and simple and thereby saving their Clients the trauma of being exposed as liars in the Court under the intense heat of cross examination.

THE WORDS OF SWEARING

There is also the issue of the place of the words of swearing in the statements on oath of witnesses. In practice, there are so many varieties of the forms the words of swearing takes in witnesses’ statements on oath. In some statements on oath, the witness if he is the Claimant ends it with a reproduction of the reliefs claimed and signs off the deponent’s column. In others, the witness states: ‘I make this Oath in good faith’ and signs off the deponent’s column. Yet, in some others, the  witness states: ‘I make this Oath in good faith conscientiously believing the same to be true correct by virtue of the Oaths Act’ and signs off the deponent’s column.

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34. For instance, see Order 3(2)(1)(c) and 17 (1) Rivers State High Court Rules 2010,and in the equavalent provisions in the Rules of other jurisdictions in Nigeria.

In all these instances, it would appear, though taken for granted by Counsel, there are varying   degrees of consequences, some very disastrous on the case of the litigant, whether as Claimant or Defendant.

Let us now examine the legal consequences of these varieties of statements on oath on the outcome of the cases of the litigants. To examine this issue, it is pertinent to reproduce the relevant provisions of the Oaths Act ³⁵ and the 1^st schedule thereto as follows:

‘’It shall be lawful for any Commissioner for Oaths, Notary public or any other person authorized by this Act to administer an oath to take and receive the declaration of any person voluntarily making the same before him in the form set out in the first Schedule to this Act.’’

By the First schedule, it is in turn provided that affidavit and other declaration shall be sworn thus:

‘’I………. do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the same to be true and by virtue of the Oaths Acts.’’

Happily, the above provisions of the Oaths Act have been the subject of interpretation by the Appellate Courts in several decided cases and it is to some of these decided cases that I shall now turn my attention to see how the Appellate Courts have interpreted these provisions with a view to applying the same to the interpretation of these provisions in this discourse as it relates to the front loading provisions of the Rules of Courts.  A calm reading of the various decisions of the Appellate Courts on the interpretation of these provisions would readily reveal an oscillation between a strict or liberal interpretation and sometimes also a paradigm shift from technical justice to substantial justice in the interpretation and effect of these provisions.

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35. See Section 13 of the Oaths Act

In the first class of interpretation requiring strict compliance with the above provisions of the Oaths Act is the very popular case of NNB Plc. V. I.B.W Enterprises Ltd.³⁶ In law afidavit being a statutory declaration before a person authorized to administer Oath or take declaration must be in the form as set out in the First Schedule 1 to the Oaths Act, which requires the words of swearing and thus failure to comply with same is taken as fatal to the affidavit and renders the same incompetent. ³⁷

However, a clear case of paradigm shift from strict compliance with the above provisions of the Oaths Act is the second class of liberal interpretation requiring substantial compliance hinged principally on the need for substantial justice override strict technicality in the interpretation of the above provisions of the Oaths Act as amply demonstrated in the case of Lonester Oil Drilling Nig. Ltd. V. Triveni Eng. Ind. Ltd.³⁸ where it was held that substantial compliance with the above provisions of the Oaths Act would suffice and thus even an attempt at swearing such as stating “ I make this Oaths in good faith” will suffice to save and sustain the affected affidavit. With this latter position of the Law, it is very clear that where a statement on Oath carries the words of swearing either strictly or substantially in cpmpliance, such as “I make this oath in good faith”, it would not be held fatal and can sustain both the competence and merit of the case of the affected party.

But would a statement on Oath which totally lacks the words of swearing such as in concluding with the reliefs sought and if there be no other statement on oath of any other witness in strict or substantial compliance with the Oaths Act sustain a Suit or a Statment of defence, as the case may be,  as being competent? I certainly do not think so! In my humble view, and I believe I am right, such a Suit or Stament of defence is doomed or bound or programmed to fail abi-intio.

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36. (1998) 6 NWLR (Pt. 558) 446.

37, See also Maraya Plastics Ltd. V. Inland Bank (2002) NWLR (Pt. 765) 109 @ p. 117.

38. (1999)1 NWLR (Pt. 559) 622.

CHALLENGING INCOMPETENT STATEMENTS ON OATH

Lets us now consider the stage at which the issue of non – compliance of the statement of Oaths with the Oaths Act is raised and the respective consequnces on the Suit or claim or defence as the case may be. It would appear that if the issue was raised before trial and if all the statements on oaths of the witnesses are lacking either in strict or substantial compliance with the Oaths Act, then the suit or statment of defence would be incompetent and liable to be struck out.

However, where the issue of competence of the statements on oath was raised at the close of trial at the address stage, it would appear that different consequences would follow. It is now very trite in our law that pleadings are no evidence and thus any fact pleaded but on which on there is no evidence led at trial is taken as abandoned and not proved. In this context therefore, it would appear that where an objection to the competence of statements on oath is taken at the address stage and upheld the claim of the Claimant or the defense of the defendant, as the case may be, stands unsupported by evidence since pleading does not constitute evidence.

It is my humble view therefore, that such failure if raised before trial it  should be treated as mere non-compliance with the Rules of the Courts³⁹ and may be taken as mere rregularity, which at best may result into the striking out of the suit or the statemnt of defence.  However, where such failure is raised at the close of trial at the address stage, it should treated as failure of evidence and since in law pleading does not constitute evidence such a failure being a failure of evidence and not being mere irregularity should result into a dismissal of the claims of the Claimant or a rejection of the defence of the Defendant, as the case may be. In either case, the other party would win or lose on the merit.

39. See for instance: Order 3 (2) or Order 3 (2) (1) of the Rivers State High Court Rules 2010

The law is well settled that it  is not enough to merely present a perfect or near perfect case at the trial but failing to take interest in all the minute details of the preparation of the case or defence for filing because in law one fatal failure in the preparation of the case or defence can abruptly bring a well prosecuted or defended case to an alarming disastrous end for being incompetent and in law no amount of sentiment of substantial justice can come to the aid of such a party, for as Kayode Eso JSC, the great jurist puts it succinctly in AG. Lagos State  V. Dosunmu ⁴⁰ thus:

“Without jurisdiction, the laborers therein, that is both parties and counsel on the one hand and the Judge on the other hand, labor is vain” ⁴¹

Interestingly, the current trend in judicial thought is to consider issues of jurisdiction,  or more aptly lack of jurisdiction, as no longer an issue of mere tecvhnicality but as substantial justice. In Okwudiri V. COP & Ors.⁴², Kobani J., had lamented thus:

“I would have love to uphold substantial justice over technicality but even then the trend of judicial thought today is that jurisdiction is no longer mere technicality but substantial.” ⁴³

In the light of the above effect of lack of jurisdiction on an otherwise meritorious case, it is important that in the practice of the concept of frontloading of evidence system in the Courts, Practitioners of the law must take time to see what is being frontloading for their Clients in the processes filed to determine whether it is a worthless piece of paper going by the name of Statement on Oath or it is legally a Statement on Oath.

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40., (1989) 3 NWLR (Pt. 181) 500

41., Ibid @ p. 552

42., (2004) 4 RHCR 757

43., Ibid @ p. 766

However, since in law the need for substantial justice far outwieghts the rigours of technicality, once there is substantial compliance a claim or defence would not suffer the indignity of being thrown out or rejcetd on the altar of mere technicality but should rather be decided on the merit in view of the overriding need for substantial justice in the due administration of justice in this Country, for as Oputa, JSC, the icon of judicial positivism in Nigeria puts it succinctly in Aliu Bello V. AG. Oyo State⁴⁴ thus: 

 “The picture of law and its technical rules triumphant and justice prostrate may no doubt, have its admirers. But the spirit of justice does not reside in forms and formalities nor in technicalities nor is the triumph of justice to be found in successfully making one’s way between pitfalls of technicality.” ⁴⁵

The choice to successsfully prepare processes for filing under the concept of frontloading of evdience in line with the requirements of the law is really that of the Pratitioners of the law to make on behalf of their Clients, who completely rely on the expertise on issues of the law and practice being the masters of the law.

ADDITIONAL WITNESS AT CLOSE OF OPPONENT’S CASE.

I must not fail to mention a new trend in the practice and procedure of frontloading system that is gradually taking and returning us back to the era of hide and seek game of justice in the appliaction of the frontloading of evidence in the Courts as now very rampant  by way of applications to call further witness at the close of the opponent’s case.  Most often than not once the application for such leave to call further witness is granted, it is used solely as a means of overreaching the case of the other party who had already closed his case and in some instances even  fresh documentary evidence are introduced under that subtle guise of calling further evdience.

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44. (1986) 2 NWLR (Pt. 145) 528
45. Ibid @ p. 556

It is my humble but firm view in this regard,that while there may be deserving cases in which further or additional evidence may be allowed by the Courts to be called on application of a party but the resort to filling fresh statements on oath in the name of additional evidence at the close of the opponent’s case merely to overreach him must be discouraged and curtailed or reduced to the barest irreducible minimum and should be allowed in only very deserving cases if should it be tolerated at all.

REPLICATING PLEADINGS AS STATEMENTS ON OATH

Let me also, in a discourse of this nature, say a word or two on another vexing issue of statements on oath in the Courts are now becoming virtually verbatim repetitions of the pleadings of the respective parties. This has often, though silently, given rise in the minds of the Courts as to whether as between the pleadings and the statements on Oath of the witnessses, which is the pleading and which is the evidence in support and proof of the facts as pleaded in the Statement of Claim or Staement of Defence, as the case may be? On the onset this salient issue would appear to be a very simple and innocuous one but on a deeper scrutiny it reveals on the contrary a disturbing legal scenario and here is how it could become and has become a disturbing legal scenario! Pleadings by law is not to contain evidence but to contain the facts of the case precisely and concisely stated and averred to and on which at the trial relevant and admissibvle oraland documentary evdience may be led in proof thereof.

When therefore, the statements on oath, which ordinarily ought to be the evidence in proof of the facts contained in the pleading, turns out verbatim repitition of the facts as pleaded in the pleading, the question readily arises; is the pleading simply the  the evidence and if so can a pleading contain evidence in law? Regrettably, since the innovative adaptation of the concept of frontlaoding of evdience in the High Court Rules of virtually all the States of the Federation and the Federal Capital Territory of Abuja and the FederalHigh Courtr and alos the Election Tribunals. it would appear that this has become the common practices in our Courts. It is my respectful view that this practices though now common and fast gaining ground in our Courts must nto only be discouraged but must be stopped because in most instances it leaves the case of the party open to abrupt termination if objection is succefully raised that the pleading is incompetent having contained only evidence as contained in the statements on oath of the witnesses and should be struck out.⁴⁶

TENDERING FRONTLOADED DOCUMENTS

Over the years sionce the implementation of the consept of the frontloading of evidence and documents intended to be relied upon by the parties began way back 2004 in Lagos State Judiciary and spread through the Judiciaries of the various States of the Federation and the Fedaral Judiciary, it has been noted, regrettably however, that there is the alarming dimension in the increasing trend of many Practitioners of the law seeking to tender the photocopies of documents as attached to the pleadings on the list of documents to be relied upon as evidence at the trial without giving any consideration or thought to the rules of admissibility of documentary evidence in the litigation process.

In law, photocopies of documents attached to the list of documents to be relied upon by a party is at best, in my view, merely to serve as notice to the other party of the documents which the party shall seek to rely upon at the trial subject to its passing the litmus test of admissibility of documentary evidence at the trial befoe the Court. For example, a photocopy of a public document even though frontloaded can by no stretch of imagination be admissible in evidence merely because it was so frontloaded. This is so because in law only the original or a certify true copy of public document is admissible in evidence. Thus a public document may be pleaded and relevant but if it is a mere photocopy as attached to the party’s pleading is sought to be tendered at the trial it is in law clearly inadmissible in evidence and not even the service on the other party of a notice to produce it render it sufficient to be admissible in evidence.

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46., See Idris V. ANPP (2008) 8 NWLR (Pt. 1088) 1 @ pp. 97 and 153, where the Court of Appeal regarded a statement on oath of witness as mere pleadings and not evidence and remains useless if not supported by evidence at the trial.

It is therefore, of utmost importantance that Practitioners of law do give adequate thoughts and consideration to the hallmarks of admissibility, the tripod on which admissibility stands in our law in the preparation and presentation of the cases of their Clients. The litmus test  for admissibility of evidence, oral or documentary are; relevancy, pleading and no debilitating feature rendering a document though relevant and pleaded but yet inadmissible in law. It is only and only if a document satisfies these tripod requirements that such a document is admissible and not merely that it was listed and a photocopy of it was frontloaded. This is the crux of the matter for hardly would a photocopy attached to list of documents under the frontloading system pass this litmus test of admissibility without the proper foundation laid for its admissibility at the trial proper.⁴⁷  In Ajao V. Ambrose ⁴⁸ Coker JSC, had opined thus

“The combined effect of the subsection is that in the case of Public Document the only type of secondary evidence permissible is a certify true copy of the document and none other”⁴⁹

In practice, to the consternation of the Courts, some Practitioners of law would even apply to extract the photocpy of documents attached to the pleading of the party for the purposes of tendering them at the trial.  It is no doubt very tardy, in  my  view  for  a Ccounsel  to  request  the Court  to permit him to tear off  or extract the  photocopies  of  documents  frontloaded  to  the  pleading  and to  hand over  same to Counsel for purposes of tendering them in evidence at the trial. This is so because, Counsel ought to and should  have  in  their  custody  the admissible form of  each of the types of documents  already  frontloaded by them and  which they intend  to  seek  to  render  at  the  trial  proper.

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47., See Sections 87, 88, 89 (e), 102, 104 and 105 of Evidence Act 2011. See also Lambert V. Nigerian Navy (2006) 1 MWLR (Pt. 980) 514.

48., (1969) 1 NMLR 25

49., Ibid @ p. 30,

This is the irreducible minimum procedure whenever and at whatever stage documents  are  sought  to  be  tendered  in  evidence either at the stage of pre – trial or trial proper. Happily, this  trend  is  mostly  seen  in cases  conducted by inexperience and often times junior Lawyers, who  it  appear  are  always  eager  to  run  out  of  the  Court  to  attend to  other parhaps more immediate financially rewarding matters when  a little  patience  in the Courts  to  listen  and watch  their  senior  colleagues  conduct  matters  could  readily enrich  their  understanding  of the  practice  and  procedures  before the Courts  more  than  any  law book  can  teach  them.

In  my  over 19 years experience on  the  Bench , right through the High Court Bench to the Court of Appeal, by the mercy, grace and benevolence of God, in the  application  of  the innovative concept of frontloading  of evidence, very  few Senior  Lawyers  have  also  made  the  attempt  to  tender  photocopies of documents merely attached to the pleadings of the parties.  I do  not  consider  it  a  problem  with senior  members  of  the  Bar but  it is of utmost importance that they find time to teach and  insist  on  junior  members  of  the  Bar  to learn and do the  right  things always In the Court. The junior members of the Bar are the future face of the Legal Professsion and it is the bourden duty the senior members of the Bar owe to the profession and the due administration of justice in this Country, Nigeria.

OTHER MATTERS IN ATTAINING SPEEDY DISPENSATION OF JUSTICE:

REDUCTION OF PRE – ELECTION LITIGATIONS

I find the provisions of Sections 31(5) and 87 (1) of the Electoral Act 2010 (as amended) as unnecessarily meddlesome, intrusive and needless interference with the internal affairs of Political parties on questions which are clearly political in nature and should therefore, be preserved for the Political parties to decide with finality politically without the meddlesomeness of the Courts. Thus, in my view, a law authorizing and thereby emboldening ‘a person’ who believes that a declaration made by a Candidate in INCE Form CF001 and submitted to INEC is false and wants to challenge the declarations made by a Candidate to do so is a receipt for disaster and should be amended and expunged without any further delays to insulate the Courts from delving into matters in Pre – election cases, which are already part of the qualifications and non – qualifications of Candidates and are subject to challenge in an Election Petition by a Candidate in an Election, than to open a duplicitous floodgate, as has been open, for a deluge of pre – election litigations by every Tom, Dick and Harry!

It is my view that such a provision must either be expunged or amended to limit it to any candidate in an election and should be as part of an Election Petition to obviate the recourse to countless Pre – election matters which usually now outlive the Election itself and in some cases even the Election Petitions. The provisions on qualification, and by implication non qualifications, as spelt out in the Constitution of Nigeria 1999 (as amended) and as earlier set out in this paper, are enough and can even be amended if need be to accommodate this ground to put paid to this open vista for ‘a person’ to commence a Pre – election matter over disqualification of a Candidate, when that person is not even a member of the Political party affected nor a Candidate of any of the other registered Political parties.

To my mind, and I so strongly believe it to be so, this is a misplaced locus standi! In Audu Abudu Ganiyu V. Kadiri Sunday Oshoakpemhe & Ors⁵⁰, I had cause to reiterate inter alia thus:

    “The provision of Section 31(5) of the Electoral Act, 2010 (As Amended), talks of ‘a person’ and is the 1^st Respondent not within the meaning ‘a person’ in Nigeria? The Appellant did not say so!….Thus, it would appear that going by the succinct provisions of Section 31(5) of the Electoral Act, 2010 (As Amended).…the meaning of “a person” as used in Section 31(5) of the Electoral

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50. Unreported decision of the Court of Appeal Benin Division in Appeal No. CA/B/12A/2021 delivered on March 8, 2021,

   Act 2010 (as amended) presupposes any person, including the 1^st Respondent, since it appears to be open – ended to all and at the same time inclusive of all and without any restriction or exclusion. Thus, whether or not one is a member of a Political Party or any particular Political party, as in the instant appeal, a PDP Card carrying member challenging the qualification of a candidate of the APC, is of no moment as the law allows the 1^st Respondent so to do!”

Now, if the provisions of Chapter II of the Constitution of Nigeria 1999 (as amended) dealing with clear socio – economic rights of the Citizenry is made non – justiciable⁵ and the Society is coping well with it, I do not see any reason, and justifiably so, why the law should not make all matters touching on and arising from the management of the Constitution of a Political party as Non Justiciable. I believe such a step, though radical in nature but very beneficial and laudable is one sure means for the drastic reduction of Judicial interventions and or interferences in the internal affairs of Political parties in Nigeria, and would also be accommodated by the society to ensure the reduction to the barest minimum of Pre – election matters in Nigeria.

The Judiciary is never hungry for jurisdiction and therefore, where there is no jurisdiction it would not go out of its way to assume jurisdiction. For example, it has been the settled position of the law that the provisions of Chapter II of the Constitution of Nigeria 1999 (as amended), notwithstanding their importance dealing with the socio – economic rights of the Citizenry, are non – justiciable unless and until the Legislature legislates on any aspect of it to make it justiciable and it has ever since remained so and no Court had ever dabbled into it no matter how overzealous or altruistic such interventions would have been for the interest and benefit of the people of this Country being brazenly deprived of their socio – economic rights by Government after Governments at all levels in this Country.⁵¹

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51. See generally, Onuoha V. Okafor (1983) NSCC 494; Alegbe V. Oloyo (1983) NSCC 315; Balarabe Musa V. PRP (1981)2 NCLR 453; Dalhatu V. Turaki (1981)2 NCLR 763; Inakoju V. Adeleke (2003)7 SC 1; AGF V. Abubakar (2002) 14 NWLR (Pt. 788) 466; AC V. INEC (2007)1 SC (Pt I) 1; Ugwu V. Ararume (2007)12 NWLR (Pt. 1048) 222, and Amaechi V. INEC (2007)12 NWLR (Pt. 1048) 367.

It would appear that both Sections 87 (1) and 31(5) of the Electoral Act 2010 (as amended),  are the two principal sources of Pre – Election Matters in Nigeria, would serve no further useful purposes if the far reaching amendments being suggested in this Paper are accepted and adopted and all issues arising under Sections 31(5) & (6) and 87 (1) of the Electoral Act 2010 (as amended), are vested either in the Political Party or the Political Parties Commission and or INEC to deal with finality as political questions and therefore, non – justiciable. In such an Electoral System or regime, such cases as Amaechi V. INEC⁵² and all other cases in that line of authorities would have been rendered needless and unnecessary if there is the suggested legal mechanism to investigate and sanction Political Parties for failure to observe internal democracy and abiding by their Constitution with the possible sanction of proscription. In such circumstances, Chibuike Rotimi Amaechi and others in his shoes would not have in the first place been denied of the ticket but for lack of internal democracy and complete absence of sanction for such conducts by Political Parties.

Thus, Sections 31(5) and 87(1) of the Electoral Act 2010 (as amended) are, in my view, completely unnecessary since issues bordering on qualifications and disqualifications of Candidates at an Election in Nigeria have already been comprehensively dealt with in the Constitution of Nigeria 1999 (as amended) and therefore, allowing ‘a person’ to challenge a Candidate before the election proper is held is completely distractive.

There is therefore, the serious or dire need in Nigeria for the expansion of the frontiers of the ‘Political Question’ doctrine and thereby making the provisions of the Constitutions of Political parties as Non Justiciable. There is also the further urgent and almost imperative need to outlaw Pre – election matters in the body polity and electoral system in Nigeria by causing appropriate amendments to the

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52. (2007)12 NWLR (Pt. 1048) 367

Electoral Act 2010 (as amended) to that effect. There is also the need, in my humble view, to limit and restrict the right to challenge the outcome of any elections conducted under the Electoral Act 2010 (as amended) to only the Political party and or Candidate that was declared in the second position or first runner up to the Political party and or Candidate declared the winner and returned as elected by the Electoral Umpire at any given elections in Nigeria.

LIMITING LEVELS OF APPEALS

There is the urgent need in Nigeria for Constitutional limitation of the level of appeals in both Pre – and Post – Elections litigations. It is suggested that all appeals arising from all Pre – election matters, in addition to the laudable Constitutional time lines for their expeditious hearing and determination, if there still be any need in law for such matters largely based on political questions within the supremacy of Political parties to determine with finality, to still be allowed to inundate the Courts, should end at the Court of Appeal, notwithstanding the issue or issues canvassed therein by the parties. There should be no further appeal from the decisions of the Court of Appeal in Pre – election matters to the Supreme Court.

In respect of Post – election litigations, it is suggested that, in addition to the laudable Constitutional time lines for their expeditious hearing and determination, all appeals arising from decisions of the Election Petition Tribunals in respect of elections into the National Assembly, Office of Governor and the State Houses of Assemblies should end at the Court of Appeal, notwithstanding the issue or issues canvassed therein by the parties. There should be no further appeal from the decisions of the Court of Appeal in such Post – election matters to the Supreme Court. However, in respect of Presidential Election, since the Court of Appeal serves as the Court of First instance, the appeal as it is presently the law should continue to lie to the Supreme Court for final determination.

AMAGALM OF JUSTICES AND JUDGES IN ELECTION TRIBUNALS

There is the need to reduce the time, energies and resources as well as tensions in the land over Post – election matters by Constitutionally providing for an amalgam of Justices and Judges to sit together as the Election Petition Tribunal and their decisions reached thereon on any Election Petition within the Constitutional time lines of 180 days as final, and therefore, not subject to any appeals. To this end, in constituting the various Election Petition Tribunals, Justices and Judges shall be drawn from all the hierarchy of Courts in Nigeria into each Election Petition Tribunal or Court and making their decision once given final. This will obviate the huge resources and time and space usually allocated in Nigeria for myriads of Election Petition Tribunals and Courts on appeals to Post – Election litigations to the detriment of other equally, if not more important, National and Citizenry based issues in the Courts, which takes the back seat and play the second fiddle to Post – election Matters.

Thus, for all Councilors and Chairmen Elections, all Election Petitions, qualified to be heard by an Election Petition Tribunal, should be heard and determined by an Election Petition Tribunal made up of three persons, including a High Court Judge as Chairman, one Chief Magistrate and one Legal Practitioner as members and their decision, which must be reached within 90 days, shall be final. For all States Houses of Assembly and National Assembly Elections, all Election Petitions, qualified to be heard by an Election Petition Tribunal, should be heard and determined by an Election Petition Tribunal made up of three persons, including one including a Justice of the Court of Appeal as Chairman and two High Court Judges as members and their decision, which must be reached within 180 days, shall be final. For all Governorship and Presidential Elections, all Election Petitions, qualified to be heard by an Election Petition Tribunal, should be heard and determined by an Election Petition Tribunal made up of five persons, including a Justice of the Supreme Court as Chairman, two Justices of the Court of Appeal and two Judges of the High Court as members and their decision, which must be reached within 180 days, shall be final.

 

In my view there is absolutely no need for the dissipation of so much energies, huge resources and the limited available judicial time to be spent all on Post – election litigations running all the way through the Judicial hierarchy from the Election Petition Tribunals to the Court of Appeal and in some cases to the Supreme Court to the huge detriment of all other cases involving equally and most importantly the lives. livelihood, wellbeing, rights, obligations and liabilities of the vast majority of the people of Nigeria, when all Post – election matters can and should be dealt with decisively and with finality by an amalgam of Justices and Judges from all the level of hierarchy of Courts once and for all. In truth, it is the same Justices and Judges that would still hear all these Post – election matter and their unending appeals in the staggered manner it is presently being done in Nigeria.

The above suggestion seems radical and even revolutionary in a sense, but it open to debate and fine tuning as a way forward in speedy dispensation of justice in pre and post – election litigations in Nigeria. It would appear, from my close study of the determination of Presidential Election Petitions during my international assignment in Sierra Leone, that an amalgam of Justices from the Supreme Court of Sierra Leone, Justices from the Court of Appeal of Sierra Leone and Judges from the High Court of Sierra Leone are empaneled at once as the Presidential Election Petition Tribunal to hear and determine all Presidential Election Petitions once and for all and with finality, with no room for any appeals.

INCREASE IN THE COMPOSITION OF THE APPELLATE COURTS

With the consistent and persistent deluge of matters in the administration of appellate justice in Nigeria, and the resultant obvious delays in the dispensation of appellate justice to the people of this Country, I strongly believe the time has come for the consideration of increase in the composition of membership of the Appellant Courts, namely: the Supreme Court and the Court of Appeal, to meet the exigencies of the times! What is paramount now is no longer about the importance usually attached to positions occupied by few person, and thence militating against any idea of increase in number of person occupying such offices, but rather fundamentally the imperative to make speedy and expeditious dispensation of appellate justice available to the people of this Country, which had long, and till now, been a mirage! In most cases affecting the ordinary people it takes like forever for them to obtain appellate justice through the Court of Appeal to the apex Court, the Supreme Court, with some case lingering on for a decade or more before justice is rendered to the litigants.

To this end it is humbly, but with the highest sense of responsibility, suggested that whilst the number of Justices of the Court of Appeal be increased to 150 Justices on equal representation of 4 Justices per State of the Federation, including the FCT, the number of Justices of the Supreme Court be increased to 37 Justices on equal representation of I Justice per State of the Federation, including the FCT.

CONCLUSION

I have in this brief paper tried to show some of the apparent loopholes in the practice and procedure of the laudable provision relating to frontloading of evidence in civil proceedings in the High Courts of the various jurisdictions and Election Petition Tribunals in Nigeria. I have also made some suggestion on the way forward, which I hope will be open for discussions and improved upon by the array of eminent practitioners of the law here gathered today both in honour of and in memory of one of the finest legal practitioners of our time, the late GRANVILLE ISETIMA ABIBO SAN, KSC.  

It is my hope that the issues raised would be critically considered by the all and sundry with a view to fine tuning the Practice and Procedure of the concept of frontloading of evidence as is presently practiced in the various jurisdictions in Nigeria in order to contibute to the maximization of the objectives of the front loading system in Nigeria for the overall betterment of the due administration of justice in this Country.

APPRECIATION

It has been a privilege for me to prepare and present this Paper. I hereby express my deepest appreciation to the Public Lecture Planning Committee in Honour of late GRANVILLE ISETIMA ABIBO SAN, KSC under the indefatigable leadership of one of our own and very best at the Port Harcourt Bar, SIR COSMAS IK. ENWELUZO, SAN. I also extend my appreciation and continued condolences to the wife and children of our departed colleague, late SIR GRANVILLE ISETIMA ABIBO SAN, a consummate ‘Bar Man’ in while on his sojourn on Mother Earth!  I acknowledge and appreciate all the Writers and Scholars, whose works I had used in the preparation of this paper for the guidance offered by their very enriching works. However, I bear full responsibility for every errors or omissions in the contents of this paper. In all, it has been a most refreshing and rewarding time with such distinguished participants. To God, Be all the Glory, Amen.

I am done and I thank you all once again for your attention! .

Sir Biobele Abraham Georgewill JCA, DSSRS, Ksc

Court of Appeal, Benin Division

Pro Chancellor, SouthGate University, Windhoek, Namibia

Lord Chancellor, Diocese of Niger Delta, Church of Nigeria Anglican Communion

Former Chairman, Presidential Investigation Panel of Rules of Engagement by the Nigerian Armed Forces in the Fight Against Insurgency and Militancy

Immediate Past Chairman, Sierra Leone Presidential Commission of Inquiry on allegation of Corruption Against the Government of President Dr. Ernest Bai Koroma from 2007 – 2018