CORAM

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HON. JUSTICE OYEBISI F. OMOLEYE (JP)

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PARTIES

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GARBA G. HAMMAN JULDE APPELLANTS

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ABDULSALAM GAMBO MUBARAKALL PROGRESSIVE CONGRESS (APC)INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The application was filed pursuant to Order 4 Rule 1 and Order 7 Rule 8 of the Court of Appeal Rules 2016 and under the inherent jurisdiction of the Honourable Court seeking the leave of court to amend an alleged defective notice of appeal. The challenge of the Notice of Appeal is that it was not served on the 1st Respondent before the Records of Appeal were transmitted to this court. The 1st Respondent in opposing the application filed a counter affidavit and submitted that a defective Notice of Appeal cannot be amended. The Applicant/Appellant in his response submitted that the non service has been cured by the provisions of the Rules of this court under Order 2 Rule 1 (a) and (b) of the Court of Appeal Rules, 2016, also by Order 2 Rules 7 and 8 and that the 1st Respondent had conceded to the issue of non service of the Notice of Appeal, therefore it is late to raise same at the stage of the present application.

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HELD

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Application granted

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ISSUES

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None

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RATIONES DECIDENDI

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NOTICE OF APPEAL – WHETHER A NOTICE OF APPEAL CAN BE AMENDED

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“It is trite that a Notice of Appeal which is not incompetent per se can be amended at any stage of the proceedings. An appeal is a Constitutional Right and the courts would not easily deny such a right by objections or oppositions to such amendment that would delay the hearing of an Appeal, more so as also observed by both Learned Counsel in this application to the effect that the substantive appeal is a pre-election matter in which time is of the essence. The parties and indeed the court would not have the luxury of ample time in a regular appeal that enjoys maximum time within which to determine the appeal.” –

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COURTS – WHETHER COURTS ARE PERMITTED TO DELVE INTO THE SUBSTANTIVE ISSUES IN AN APPLICATION PRECEDING THE MAIN MATTER

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“Considering the authorities would touch on the substantive appeal and the objection therein, the courts are not permitted to delve into the substantive issues in an application preceding the main matter. No doubt the application was brought close to the end of the life span of this appeal but the Appellant/Applicant’s counsel who was briefed not too long ago is also operating under a limited frame of time as well as this court that has to conclude the proceedings and arrive at a decision sooner or later, time constraint has to be borne by all the parties and the court considering the position of the time frame within which to determine the appeal as imposed by the Constitution to which we are all bound.” –

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GROUNDS OF APPEAL- INSTANCE WHERE EXISTING GROUNDS OF APPEAL MAY BE AMENDED IN A NOTICE OF APPEAL

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“Where an appeal is competent, as in this case where the Notice of Appeal was filed on 7/2/19, it is a valid Notice of Appeal, the existing grounds of appeal may be amended by alteration, addition or a subtraction, in the present case, an addition to the original grounds of appeal already filed. See, Awote & Ors Vs. Owodunni & Anor (1986) 5 NWLR (PT 46) 941. But, where an appeal is not competent such as where leave to appeal ought to be sought and granted was not obtained, no valid amendment can be made because one cannot put something on nothing. The Applicant has paid the necessary fees for amendment, which may be amended by or with the leave of the court at any time. See, Coker Vs. UBA PLC (1997) LPELR – 880 (SC) and South Atlantic Petroleum Ltd Vs. Minister Of Petroleum Resources (2013) LPELR – 21892 (SC) to the effect that there is no set time limit within which leave for an amendments is to be sought and/or granted.” –

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CASES CITED

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None

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended)|Court of Appeal Rules 2016|

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