By Emmanuel O. Otumala
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EXCERPT
“But the spirit of justice does not reside in forms and formalities, nor in technicalities, nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and all its technical rules ought to be but a handmade of justice and legal inflexibility (which may be becoming of law) may, if strictly followed, only serve to render justice grotesque or even lead to outright injustice. The court will not endure that mere form or fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the case before it”- Justice Chukwudifu Oputa[1]
INTRODUCTION
In a recent judgment[2], the Supreme Court of Nigeria declared Senator Ahmed Lawan to be the All Progressive Congress’ (APC’s) candidate for the Yobe North Senatorial District in the upcoming election, defeating Bashir Sheriff Machina. This decision was received with mixed feelings by the members of the public. While some people decried the decision as unfair and wrong, others lauded it as just and fair. Regardless of which divide one sets up camp, both divides converge into one spot: the decision was made on a technicality;
In his lead decision, Justice Centus Nweze criticized Bashir Machina’s method of bringing the case before the Federal High Court Damaturu division by using an originating summons rather than a writ of summons. As a result, he ruled in favor of Senator Ahmed Lawan on this ground. This essay takes support from this hotly contested ruling in an effort to distinguish between substantive and technical justice and to determine which, in the event of a dispute, should prevail in court.
THE TECHNICALITY CONCEPT: ORIGINATING SUMMONS VERSUS WRIT OF SUMMONS DILEMMA
The Court of Appeal in Benedict Orji v Ozo Nne Illoputaife & Ors [2011] LPELR-9199 (CA) 24, Para A-E. relied on the 6th edition of the Black’s Law Dictionary to define technicality to mean “immaterial, not affecting the substantial rights, without substance.” Thus, any issue that does not focus on a party’s substantive right should be regarded as a technicality.
Justice Niki Tobi JCA (as he then was) offers an elaborate explanation of the “technicality concept” in the case of Adeniji v The State [1992] 4 NWLR (Part 234) 248 where he stated inter alia that: “A technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. A technicality arises if a party quickly takes an immediately available opportunity, however infinitesimal it may be, to work against the merits of the opponent’s case. In other words, he holds and relies tenaciously unto the rules of court with little or no regard for the justice of the matter. As far as he is concerned, the rules must be followed to the last sentences, the last words and the last letters without much ado, and with little or no regard to the injustice that will be caused the opponent. But where an issue affects the merits of the matter before the court, it cannot be reduced or downgraded to the level of technicality”. Per Niki Tobi JCA at 265. This definition has also been adopted by the Supreme Court in Yusuf V Adegoke & Anor (2007) LPELR – 3534 (SC).
One thing that must be inferred from this dictum is the existence of strict and technical rules that the court must adhere to in its pursuit of obtaining justice. There must be a distinction made between such rules, though: on the one hand, those that are technical rules but remote, and on the other, those that are reasonably proximate and affect the merits of a case.
It is important to understand the legal ramifications of this discrepancy. The former can be considered a minor technicality while the latter gets to the root of the matter and cannot be dismissed as such. Many court rulings and scholarly opinions have condemned the decision of lawsuits based on petty technicalities. Conversely, the rule against technicalities should not give a court of law a blank cheque to ignore an issue if it undermines the case’s core and foundation.
Our legal system considers the issue of jurisdiction to be fundamental, so when a party files a lawsuit in a court that lacks the authority to hear their claim, their case is likely to be “struck out” for lack of jurisdiction. In the event that the case is won at the trial court, the success is illusory as it is likely to be overturned on appeal. In cases of an election petition, “An election petition shall be filed within 21 days after the date of the declaration of result of the elections”[3]. Failure to file a petition within the stipulated time frame will amount to nullity and the Court’s ruling in favour of the opponent will not amount to injustice on the ground of technicality. This is because the moment an issue affects the merits of the entire case, and it is put under the carpet as being a technicality, the party in favour of which the issue arises, is denied justice as he returns home with injustice[4]
Returning to the matter at hand, the Supreme Court ruled against Bashir based on what can be termed technical justice. By applying technical justice, the majority (three) of the Justices decided the issue without giving adequate weight to the substantive law and, since the procedure was deemed to be flawed, the decision follows logically.
It is important to note that each superior court of record has its own set of rules that applies to it. These rules are referred to as the Rules of Court. By way of definition, Rules of Court are regulations formulated by the Court which stipulate the procedures that litigants must follow in court or to guide and regulate the conduct of cases filed before it.
The rules of court specify, among other things, the mode of commencing an action before that particular court. Before starting any case, it is expedient for the plaintiff to determine which court has the jurisdiction to hear their claim, after which they should get familiar with and abide by the Rules of that court.
Practically speaking, Machina had properly filed the original claim before the Federal High Court, which has the original jurisdiction to hear the case. However, Order 3 Rules 2 (b) of The Federal High Court (Civil Procedure) Rules, 2019 provides that a writ of summons shall be the form of commencing any proceedings where the claim is based on or includes an allegation of fraud. Contrary to this, Machina’s action was commenced by an originating summons—another mode of instituting an action.
Often employed in contentious matters, a writ of summons notifies the defendant of the commencement of an action against him and avails him the opportunity to enter an appearance and adduce evidence if he desires to dispute the claim. On the other hand, an originating summons is used to commence a proceeding where the evidence is primarily presented through documents and there is no significant disagreement as to their existence in the pleadings. See Sani v. Kogi State House of Assembly [2019] 4 NWLR (pt. 1661) 172, 183-184, Inakoju v Adeleke (2007) 4 Nwlr (Pt.1025) 423
In order to give the other party the opportunity to enter an appearance, call witnesses, and present evidence, Machina’s claim at the Federal High Court should have been initiated by a writ of summons. This is because there are allegations of fraud in his claim which are contestable at first glance. Therefore, his failure to commence the action by a writ of summons affects the due process jurisdiction of the Federal High Court and as stated earlier, the issue of jurisdiction is pivotal to the determination of any suit.
The burning question that demands an answer at this point is whether or not this irregularity is so minor and remotely connected to the main complaint or whether it is so fundamental and impacts the case’s merit that it should not be dismissed as a mere technicality.
SUBSTANTIVE JUSTICE AND FAIRNESS
The Ninth edition of the Black’s Law Dictionary defines Justice as the fair and proper administration of laws. It further defines substantial justice as “justice fairly administered according to rules of substantive law, regardless of any procedural errors not affecting the litigant’s substantive rights; a fair trial on the merits.”
From the foregoing, two things are worth noting: “fairness” and “determination of suit per the substantive law”.
As a general rule, Justice and fairness are complementary concepts that cannot be separated from one another. The doctrine of equity, which is now a part of Nigerian law[5] has its roots in fairness and holds that justice must be administered in accordance with what is just, right, and fair. The aphorism “justice must not only be done, but must also be seen to be done” is justified in light of this. No matter how legitimate a ruling was, the judge should constantly reflect on whether it produced a just and fair outcome. Consequently, in the case of Machina, would an unbiased third-party observer perceive justice to have been administered fairly? If the response to this question is not affirmatory, it could be argued that justice has not been served.
It is also important to note that two of the five justices who participated in the case issued a dissenting opinion based on the idea of applying substantive justice to the case by deciding it in line with The Electoral Act, the substantive legislation that governs election procedures. According to Justices Adamu Jauro and Emmanuel Agim, Senator Lawan was not properly elected as the party’s candidate at the legally held primaries. They concluded that the APC’s actions violated Section 84(5) of the Election Act. This is the case since the party decided to hold another primary election in June without canceling the May 28 election (which was not monitored by INEC).
It is clear from the outcome of the case—a majority verdict in favor of APC—that substantive law (and, implicitly, substantive justice) are being sacrificed on the altar of technicalities.
TECHNICAL JUSTICE OR FAIRNESS: RULES OF COURT OR THE ELECTORAL ACT
It has been established that justice might be understood in two senses, we have further assessed both interpretations, and found that the Supreme Court’s split decision is a reflection of both interpretations. We will now analyze which, in the event of a tie, should be given priority by the courts in the administration of justice.
The question of whether to prioritize technicality or substantive justice has been a long-standing debate in the legal profession. Proponents of technicality argue that strict adherence to legal rules and procedures is necessary to ensure consistency and predictability in the administration of justice. On the other hand, advocates of substantive justice contend that strict adherence to legal rules and procedures can result in unjust outcomes, particularly in cases where the law is rigid and inflexible.
At this point, it is worth emphasizing that the Supreme Court is the final arbiter of justice and that the Justices are the means by which justice is achieved. Justices often have to choose between technicality and substantive justice when exercising this enormous obligation that the law imposes on them. To arrive at a decision, it is important to consider the facts and circumstances of each case.
I am of the humble opinion that the Judge, as the head of his court, has the authority and discretion to lawfully change any rule of procedure that might obstruct justice. The Rules of Court are not sacred and cannot be construed in absolute terms. To guarantee that justice, the court’s principal goal, is accomplished, the court may prudently apply its rules as the circumstances demand. It is consequently common knowledge that the court will typically adopt a liberal interpretation of the relevant rules where strict adherence to them would be at odds with the main purpose for which the court was established. See Nishizawa Limited v. Jethwani (1984) 12 SC 234; Broadbank of Nigeria v. Olayiwola & Sons (2005) 1 SCM 65
This is not to say that the courts should completely shun the Procedures or the rules of court and focus strictly on substantive justice. As a matter of fact, to hold this opinion after relying heavily on Adeniji v State (supra) at the beginning of this essay will be contrary to logic. However, a plethora of judicial authorities as well as scholarly opinion have continued to prioritize substantive justice over technical justice except where such technicalities will amount to injustice on the other party.
In the landmark case of Akeredolu V Abraham & Ors (2018) LPELR- 44067 (SC), the Supreme Court held that, “Technicality in the administration of justice shuts out Justice. A man denied justice on any ground, much less a technical ground, grudges the administration of justice, it is, therefore, better to have a case heard and determined on merit than to leave the Court with a shield of ‘victory’ obtained on mere technicalities”
Earlier in Ogli Oko Memorial Farms Limited & Anor v. Nigerian Agricultural Cooperative Bank Ltd (2008) 4 SCNJ 436, the Supreme Court held that rules which enable a party to score a technical victory at the expense of a hearing on the merits will not be given its effect.
Kayode Eso JSC in The State V. Gwonto & 4 Others (1983) 1 S.C.N.L.R 142 at 160 stated inter alia that “the court has for some time now laid down as a guiding principle that it is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.”
It is pertinent to recount the judicial words on marble of his Lordship, Oputa JSC (as he then was) in Josiah v. The State[1985]1 NWLR (Pt. 1) 125 when he stated that, “Justice is not a one-way traffic. It is not for the appellant alone. Justice is not even a two-way traffic. It is really three-way traffic”. Justice for the appellant, the victim and the society. As a corollary, this raises three fundamental questions viz:
Will the appellant (APC) perceive this decision as justice or as a victory? Will Machina still maintain his faith in the Supreme Court as the last hope of the common man? Will a reasonable member of the society (especially of Yobe North Senatorial District whom Lawan seeks to represent) maintain that the Supreme Court has done justice?
CONCLUSION
The law’s overarching objective, which a judge must recognise, is the administration of justice. Hence, he must exercise extreme caution to make sure that the law and the justice in the particular case he is presiding over are consistent. The court should make sure that equity—which personifies justice—wins any “tussle” between formality and justice.
I believe that commencing the action with an originating summons has only a tenuous connection to the issues at hand, should not supersede the provision of the Electoral Act, and should not be the only factor used to determine the case. This conclusion is drawn from the issues raised and addressed above as well as the plethora of judicial authorities cited.
I am Emmanuel O. Otumala, a 400 level student of the faculty of law, University of Ibadan with keen interest in legal research.
[1] Bello v. A.G Oyo State [1986] 5 NWLR. 892 S.C at 835
[2] All Progressives Congress v. Bashir Sheriff & 2 ors SC/CV/1689/2022
[3] Section 132(7) of the Electoral Act
[4] Per NIki Tobi JCA in Adeniji v the State (supra) at 266
[5] By virtue of section 45(1) of the Interpretation Act
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