EXAMINING THE CONTROVERSIES SURROUNDING THE EXTENSION OF TIME FOR A DEFENDANT TO FILE DEFENCE IN PRE-ELECTION MATTERS.[i]
It is expected that in litigations before our courts, there may arise certain circumstances wherein a party, for the purpose of this discussion, a defendant, fails to file his defense[ii] to the Plaintiff’s action within the time provided by the Practice Directions. It is not surprising that these questions have pervaded our courts in the current pre-election litigation season. Whilst some Plaintiffs have simply allowed the defendant to move these applications unopposed, some have seriously opposed the applications for extension of time brought by the defendants. More disturbingly, some courts, yes indeed, courts have raised the issue of the competence of extension of time to file a defence at the trial court, suo motu, in their judgments. In this piece, the writer examines the various constitutional, statutory and Practice Directions’ provisions, vis-à-vis their interpretations by the appellate courts to make recommendations for proper judicial attitude thereto.
TIME TO FILE A DEFENCE AT THE FEDERAL HIGH COURT IN A PRE-ELECTION MATTER.
The saying that pre-election and election petition matters are sui generis (in a class of its own) is not just a fanciful cliché. It is a deeply rooted principle in our jurisprudence and this explains the often changing dynamics that comes with these cases at each electoral cycle. This is because specific and special provisions are enacted by the legislature to regulate and govern the procedure and practice in these spheres.[iii] To the best of the writer’s knowledge, we do not know of any Act of the National Assembly that receives the level of heightened public scrutiny and frequent amendments than the Electoral Act. Ditto for the Practice Directions made pursuant thereto. This explains why even the Federal High Court (Pre-election) Practice Direction was amended TWICE in June and July 2026.
By virtue of Paragraph 7 (5) of the Federal High Court (Pre-election) Practice Direction, 2026 (as amended), the time for provided to file a defence is as follows:
“A Respondent served with an Originating Summons shall within ten (10) days of service, file in the Registry of this Court, a Counter affidavit and written address, which may include any preliminary objection raised to the action.”
It is settled law that based on settled principles of interpretation of statutory provisions, words used in statute including Rules of court or practice directions ought to be given their literal meanings. This proposition of the law is why some practitioners and the courts hold the view that time cannot extended for a party, whether Plaintiff or defendant, to file any process in a pre-election matter.
JUDICIAL ATTITUDE TO THE OPERATION OF PRACTICE DIRECTIONS
Generally, the courts have developed several Practice Directions for various causes of action in our courts. These include, for the Federal High Court, the Federal High Court Practice Directions (On Trial of Terrorism cases) 2022, Federal High Court (Criminal) Practice Directions, 2013, Federal High Court (Federal Inland Revenue Service) Practice Directions, 2021; and at the Court of Appeal, Court of Appeal (Fast track) Practice Directions, 2021, Court of Appeal COVID-19 Practice Directions, 2021 and the Court of Appeal Practice Directions on Pre-election, Election and Political Parties’ Leadership Matters, 2021, Election Judicial Proceedings Practice Directions, 2023, amongst others.
Similarly, at the Supreme Court, there are provisions for Practice Directions which includes the recently provided Supreme Court (Mandatory Upload Of Electronic Copies Of Processes, Record Of Appeal, And Other Matters) Practice Directions, 2026.
The philosophy underpinning the creation of these Practice Directions is basically to expedite the hearings and determination of cases/appeals that emanate in each of these areas of adjudication or guide the procedures of the courts to accelerate or enhance justice delivery. As a result, it has been held that Practice Directions of the various courts have a force of law like the rules of court.[iv] The only exception where provisions of the Practice Directions may not be enforced is where they are in conflict with the provisions of the Constitution or the statute creating the court. In Ari v. Yerima[v], the Supreme Court reaffirmed this point thus:
“A practice direction is inherently cloaked with a force of law, like all subsidiary legislations. However, where a practice direction appears to be in conflict with a provision of the Constitution or a statute or a substantive rule of court, it would be devoid of any force of law. Paragraph 4(1) of the Federal High Court (Pre-Election) Practice Direction s, 2022 requires that matters shall be commenced by originating summons. But Order 3 rule 2(b) of the Federal High Court (Civil Procedure) Rules, 2019 provides that where a suit is based on or includes an allegation of fraud, it must not be commenced by originating summons. The Federal High Court (Pre-Election) Practice Directions, 2022 is analogous to a subsidiary legislation by the operation of section 18 of the Interpretation Act. [Owners of M.V. Arabella v. N.A.I.C. (2018) 11 NWLR (Pt. 1097) 182 referred to.]”
From the above analysis, it can be safely submitted that where the provisions of a Practice Direction has not run afoul of the provisions of the Constitution, the enabling statute or the rules of court, its provisions are naturally binding and enforceable in proceedings before our courts.[vi]
CAN A COURT EXTEND TIME TO FILE DEFENCE IN A PRE-ELECTION MATTER?
In answering this question, it is important to state unequivocally that while the position as to extension of time for a Plaintiff to file a pre-election matter is firmly settled in law, the position regarding the state of the law on filing a defence continues to be a subject of debate. It is the writer’s view that this controversy lingers because while there is a constitutionally prescribed limit for a Plaintiff to present a pre-election matter, no such constitutional bar exists for a defendant.
By virtue of section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), any person intending to present a pre-election matter shall do so within fourteen (14) days of the accrual of his cause of action. It provides:
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
This provision has been serially litigated and by settled judicial authorities, any action taken by a Plaintiff in commencing his action outside the 14 days, nominates his case as a candidate for dismissal. The statutory days is likened metaphorically to Mount Uhud or the Rock of Gibraltar which cannot be moved or extended for any reason. Authorities are legion, but see the apex court decision in Eze v. Umahi[vii] where it was held thus:
“Any pre-election matter or action filed or initiated after the expiration of the fourteen days stipulated under section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999, within which such an action is to be filed or commenced, would be and is legally incompetent to deprive a trial court of the requisite jurisdiction to adjudicate over it. It is the right to employ the judicial process of a court of law to seek relief that is taken away by the failure to commence an action within the period of time prescribed by a limitation of action provision in the Constitution or other statute/law. [NPA Plc v. Lotus Plastics Ltd. (2005) 19 NWLR (Pt. 959) 158; Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649; Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637 referred to.]”
Thus, there is no iota of doubt in pre-election litigation that once a Plaintiff files his action outside the constitutionally provided period, the suit is statute barred and worthy of dismissal. Now, in relation to the defendant, there is NO constitutionally provided timeline within which the defendant is expected to enter a defence in pre-election matter under the 1999 Constitution. Neither is it contained in any of the Schedules to the Constitution. It is a settled principle of constitutional or statutory interpretation that the express mention of a thing excludes all others. See Ajayi v. Adelami.[viii]
On the contrary however, the Federal High Court (Pre-election) Practice Directions (Amendment), 2026 provides for time within which a Respondent to a pre-election matter may file his defence to the action. See Paragraph 7 (5) of the Practice Directions (supra).
Now, also worthy of note is that the same Practice Directions, as the subsidiary legislation that guides and provides for time limit for filing a defence, further provides at Paragraph 12 (4) as follows:
“Every application for extension of time shall be by a Motion on Notice and shall be supported by an Affidavit setting forth good, substantial, cogent and verifiable reasons for failure to file within the period prescribed before the time can be extended.”
Based on the foregoing, it is not in dispute whatsoever that the Practice Directions (Amendment) 2026, expressly provides for application for extension of time for the parties. What has however been in issue in recent times is whether the extension of time provided by the Practice Directions is in relation to a substantive defence (like the counter affidavit to the originating summons or a statement of defence) or interlocutory applications like a preliminary objection and other interlocutory matters. Some practitioners argue that the Federal High Court can only extend time to file preliminary objections or other interlocutory applications. Once a defence is out of the time provided by the Practice Directions, time cannot be extended for such defendant.
The authorities for most who are of the former school of thought are the cases of APC & ANOR V. IROAKAZI (2023) LPELR 60211 (CA); UMARA v. IDRISS (2023) 13 NWLR (PT.1909) 187; HON. KINGSLEY ECHENDU V. HON. OZURIGBO UGONNA & ORS (2022) LPELR 58890 (CA).
It is the writer’s respectful opinion that most of these decisions usually cited by these proponents do not represent what was actually decided in those cases. In Iroakazi’s case (supra), the court held that the counter affidavit and written address of the defendants filed out of time were incompetent because there was no leave of court sought and obtained to file out of time. Adefope Okojie, JCA, cited with approval the dictum of the trial Judge as follows:
“The lower Court, in its judgment, at Pages 360-361 of the Record of Appeal, noted:
“The Appellants were served with the Originating Summons on the 29th August 2022 but that they filed their Counter Affidavit and Written Address on the 25th November 2022 while the 3rd Defendant was served on the 11th October, 2022 and he filed his Counter Affidavit on the 24th October 2022. From the date of service of the Originating Summons on the 1st, 2nd and 3rd Defendants to the date of filing their Counter Affidavit and Written Address in opposition to the Originating Summons were more than 10 days and the 1st, 2nd, and 3rd Defendants did not seek for leave of this Court to do same.”
Thus, the trial court rightly refused to countenance the counter affidavit and written address filed out of time by the defendants without any motion for extension of time to so file and be deemed as properly filed. Therefore, this case, in the writer’s humble view, cannot be a good law to argue that time cannot be extended for a defendant in a pre-election matter.
Ditto for the case of Umara v. Idris (supra). This case even related to an application for extension of time to seek leave to appeal in a pre-election matter. It never decided facts relating to the filing of a defence in a pre-election matter. The general principles of electoral jurisprudence restated in the case do not have the damaging effect some lawyers have ascribed to this particular authority.
Lastly, the closest authority that has been severally relied upon by this school of thought is the Echendu v. Ugonna (supra). In that case, the Court of Appeal indeed held as follows:
“…On the 6th July, 2022, the 1st Cross-Respondent filed a further affidavit/Reply in Response to the Cross-Appellant’s counter affidavit and this gave a period of 8 (eight) days from the 29th July, 2022. This contravened the provisions of order 4 rule 5 of the Federal High Court (Pre-election) Practice Direction, 2022 which provides for three (3) days within which to file the said further affidavit/Reply from the 29th June 2022 when he was served with the counter affidavit. The law is elementary, that rules of court must be obeyed and this is so in the interest of justice. Kalu v. Odili & Ors (1992) LPELR 1653 (SC). The suit, the subject matter of this appeal being a substantive suit, and not an interlocutory application, the 1st Cross-Respondent’s further affidavit having been filed out of time stipulated by the extant rules of Court, filed about 8 days after the three days period stipulated in the Practice Direction, same was filed out of time and the time cannot be extended.
The Court below was wrong to have held that extension of time within which to file process such as a further affidavit in the substantive suit in election matters is contemplated under the extant Federal High Court (Pre-election) Practice Direction, 2022. In pre-election matters, time is of essence. It cannot be extended for whatever reason.”
The writer most humbly concedes that the provisions of the FHC Practice Directions 2022 are substantially in pari materia with those of the Practice Directions (Amendment) 2026. The law is settled that pieces of legislations so similar will be interpreted in similar fashion. See Ndukwe v. Ayu[ix]
Despite the profound holdings of the Court of Appeal in the Echendu’s case, a few things clearly jump out of the authority. First, the case is about a Plaintiff seeking extension of time to file a further affidavit and reply on points of law in a pre-election. Under the Federal High Court (Civil Procedure) Rules, 2019, from which the Practice Directions derive vitality, filing of a further affidavit and reply on points of law is not expressly provided for.[x] In practice however and by judicial authorities, it’s allowed with the leave of court, or where it’s not objected to by opposing counsel.
Second, what was considered in this case is in relation to Plaintiff, who by the way already has a substantive application pending before the court for determination. It does not relate to a defendant whose substantive and “originating” defence is his counter affidavit to the originating summons. It is the writer’s considered view that while it may sound equitable to refuse to extend time for a Plaintiff to file further processes in response to a defence served on him, the outlook is different when it relates to a defendant whose entire defence is being rejected on the basis of a misconceived strict interpretation of the Practice Directions.
Thus, where a defendant shows cogent, reasonable and verifiable reasons why he is out of time to file a defence in a pre-election matter, the dictates of fair hearing by virtue of section 36(6) of the 1999 CFRN ought to kick in naturally. Using a narrow interpretation of the Practice Directions to shut out a potential defence that may provide better clarity to the court in doing justice to the parties is, in my respectful view, slavish adherence to technicalities at the expense of substantial justice.
More so, like it has been stated earlier in this piece, any provisions of the Practice Direction that contravenes the provisions of the Constitution or any enabling law shall be void to the extent of its inconsistency. Surprisingly, in the current dispensation, the Practice Directions has expressly provided for extension of time, giving the Judges the unhinged discretion to exercise based on individual applications before them.
It is therefore the writer’s respectful view that on the state of our laws, there is no statutory or judicial impediment to the grant of an application for extension for a defendant in a pre-election matter. This explains why different judges have taken different stances when the question arises before them. I am of the firm view that a trial court can lawfully extend time for a defendant where cogent and believable reasons are adduced by the Applicant.
RECENT JUDICIAL ATTITUDE
As alluded to in the introductory paragraphs, different judges have taken different positions on granting extension of time to defendants in the pre-election cases before them. The Federal High Court, Minna, in many of the pre-election cases before that court has refused the Applicants the leave sought once an objection is raised to the motion.[xi]
Before the Federal High Court, Yola, the case of Hon, Mustapha Usman v. ADC & 2 Ors.[xii] added an extraordinary twist to this issue. In that case, the 1st Defendant filed its Counter affidavit and written address out of time, with a motion for extension of time. At the hearing, all the respondents to the motion for extension of time did not object to the grant of the motion. The ruling on the motion was deferred to judgment stage by the court. The learned trial Judge, in his well-considered judgment however raised the issue of competence of the motion for extension of time suo motu, ruled upon it, and dismissed the defence of the 1st defendant.
Although the Court subsequently, despite discarding the defence of the 1st Defendant, dismissed the Plaintiff’s case on the merits, the 1st defendant cross-appealed the part of the decision dismissing its counter affidavit and written address in CA/YL/214A/2026 between African Democratic Congress v. Hon. Mustapha Usman & 2 Ors. Yours faithfully, in the said cross-appeal, argued that the lower court was wrong to have refused to extend time for the 1st defendant when there was no opposition to the motion.
The Court of Appeal, Abuja Division, coram F.O. OHO, O.A. ADEGBEHINGBE & N.O. DIMGBA, JJCA, in its judgment in Appeal Nos. CA/YL/214A/2026/CA/YL/214/2026, between Hon. Mustapha Usman v. African Democratic Congress & 2 Ors. delivered on 9th November, 2026 regarding the cross-appeal held as follows:
“The mandatory nature of timelines in pre-election matters is further reinforced by the decisions such as OKORIE & ANOR v. INEC & ORS (2024) LPELR 62468 (CA), NUNGWA V. BOKO & ORS (2029) LPELR 48194 (CA), INEC v. LP & ORS (2023) LPELR 60019 (CA), and OLUGBILE V. INEC & ORS (2023) LPELR 59931 (CA), all of which affirm that constitutional and statutory timelines in electoral matters are sacrosanct and cannot be extended.
Therefore, the trial court was absolutely right in dismissing the Cross-Appellant’s application for extension of time, as the reasons provided did not meet the stringent requirements of Paragraph 12 (4) of the Federal High Court (Pre-Election) Practice Direction, 2026 (amendment), especially considering the sui generis nature of pre-election litigation.”
From the above findings of the Court of Appeal this week, it is crystal clear that the rigid, unyielding stance of many that time cannot be extended for whatever reasons is not correct. What the Court has now affirmed is that the Applicant must give cogent and compelling reasons why that discretion should be exercised in his favour.
In the case leading to the above appeal, the reason given by the Applicant was that originating processes were misplaced in the office of the National Legal Adviser of the political party before it was eventually found and sent to counsel. It was the writer’s argument in that cross appeal that the Practice Directions expressly provides for extension of time in pre-election matters, urging the court to overrule the decision of the trial Judge that time can never be extended under any guise.
Although the learned Justices of the Court of Appeal, with due respect, shied away from pronouncing on the propriety of the learned trial Judge raising this issue suo motu and resolving same against the cross-appellant, the Court of Appeal however affirmed that the reasons were not compelling enough in the circumstance – not that the discretion does not exist in law.
The writer is therefore of the humble view that if an Applicant provides cogent, reasonable and verifiable reasons for the indulgence sought, an application for extension of time can be rightly made by a defendant in a pre-election matter. After all, were that right non-existent, the Court of Appeal ought to have struck down the provisions of the Practice Directions as being in conflict with any statutory provision in force in Nigeria.
CONCLUDING THOUGHTS
It is no longer news that the extant procedural rule book of pre-election matters, the Federal High Court (Pre-election) Practice Directions (Amendment) 2026, has been amended twice this year. Remarkably, in both amendments, the provision relating to the power of court to extend time has been retained in two amended Practice Directions. In my considered view, if the drafters of the Rules do not intend to permit the court to extend time for parties in deserving circumstances, they would not have retained those provisions.
Furthermore, it is reasonable to conclude that since the Constitution has provided for a period of 180 days for a trial court to hear and determine a pre-election matter, is it unreasonable to assume that the makers of rules are aware of the intrigues that surrounds pre-election litigation in Nigeria, starting from service of originating processes, et all. Since the Practice Directions has stated that pre-election matters shall be commenced by originating summons, along with accompanying processes, a defendant is expected to within 10 days of being served to file a defence, the length of time available for the trial court to hear and determine the suit does not suggest a strict and unyielding timeline to file processes, particularly a defence on the merits.
If one contrasts this position with that of the Practice Directions applicable before the Court of Appeal and Supreme Court, the reasons for the strict timelines before those are clearly justifiable. Both Appellate Courts, have only sixty (60) days from the date of filing of the notice of appeal to hear and determine the appeal. While the Federal High Court, on the other hand, has six months (180 days). It therefore makes perfect sense when the Election Judicial Proceedings Practice Directions, 2023, applicable to pre-election and election petitions appeals expressly stated at Paragraph 13 thereof that:
“No time specified in these Rules shall be extended by the Court.”
It is submitted that the several authorities of the appellate courts emphasizing the unyielding timelines of pre-election are mostly against these contextual backgrounds. More so, there is a specific provision in their Rules that prohibits extension of time under their rules. The writer is therefore of the firm view that trial courts should be wary of applying judicial authorities willy-nilly without contextualizing the circumstances in those cases. The law is that a case is an authority for only what it decides. The principle was reaffirmed by the apex court recently in Opene v. NJC[xiii] citing with approval the case of Obasi v. Mikson Est. Ind. Ltd.[xiv]
While this piece is not aimed at encouraging laxity on the part of defendants who appear in pre-election matters, it is important to draw the attention of our courts to the fact that it’s high time they stopped to tie their own hands where no law has done so. After all, owing to the sensitive nature of pre-election matters, any court should be more interested in the truth and justice of the case presented before it rather than shutting out a potential defence, due to a procedural error whose remedy also exists in our laws.
- A. Badmos, Esq.
Managing Partner,
Bushrah Attorneys,
Abuja, Nigeria.
(Tweets on X (formerly twitter) via @MrBadmos_)
[i] Abdulkabir A. Badmos, Esq. LLB (Hons.) (Ife), LLM (Lagos) Notary Public.
[ii] The use of “defence” herein refers to either a Counter-affidavit to an originating summons OR a statement of defence in case of a writ. The question of the propriety of commencing a pre-election matter by a writ of summons is another discussion altogether.
[iii] Jonathan v. INEC (2025) 3 NWLR (PT.1978) 1 SC P. 65, PARAS C-E.
[iv] Adams v. Umar (2009) 5 NWLR (Pt. 1133) 41 (CA) (P. 107, paras. A-B
[v] (2023) 15 NWLR (Pt. 1906) 1 (SC) (Pp. 30-31, paras. E-B).
[vi] See also, Edevie v. Orohwedor (2023) 8 NWLR (Pt. 1886) 219 (SC).
[vii] (2023) 6 NWLR (Pt. 1880) 383 (SC) (P. 417, paras. E-G).
[viii] (2025) 20 NWLR (Pt. 2022) 21 (SC).
[ix] (2023) 5 NWLR (PT.1877) 309 (SC).
[x] Order 26 Rules 3 & 4 of the Federal High Court (Civil Procedure) Rules, 2019.
[xi] See Jazu v. Dada (FHC/MN/CS/46/2026) judgment delivered on 23rd September, 2026; Abubakar Shehu v. ADC & 5 Ors (FHC/MN/CS/78/2026) delivered on 27th October, 2026.
[xii] Judgment delivered on 10th September, 2026 (FHC/YL/CS/15/2026).
[xiii] (2026) 16 NWLR (PT.2064) 161 (SC) Per Iheme-Nwosu, JSC (Pp.206-207, paras H-C)
[xiv] (2016) 16 NWLR (Pt. 1539) 335
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