PEOPLES DEMOCRATIC PARTY (PDP) VS IBRAHIM UMAR & ORS
April 3, 2025GRACE AYAKPO EKIOTENNE VS INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
April 3, 2025Legalpedia Citation: (2019) Legalpedia (CA) 76101
In the Court of Appeal
HOLDEN AT LAGOS
Tue Aug 20, 2019
Suit Number: CA/ L/856/2019
CORAM
PARTIES
1. LANRE OKUNLOLA 2. ALL PROGRESSIVES CONGRESS
1. OLATUNJI ABIOLA SHOYINKA2. INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
Upon the return of the 1st Respondent as the duly elected candidate in an election conducted by the 2nd Respondent for the membership of the House of Representatives for the Surulere II Federal Constituency, the Appellant filed a petition before the Tribunal challenging the said return. Parties filed several applications; the Appellant filed four applications, two were filed on the 24th April, 2019; one prayed for an order striking out the Statement of Defence of the 2nd Respondent, while the other prayed for the issuance of pre-hearing notice. The other two applications filed on 10th May 2019, sought an order to amend the Motion of 24th April 2019, wherein the Appellants applied for issuance of pre-hearing notice and for the said amended Motion to be deemed as properly filed; while the other was the said Amended Motion, which inter alia, sought an order for enlargement of time to file the Reply to the 1st Respondents Reply and enlargement of time to apply for pre-hearing notice. The application of the 1st Respondent was filed on 3rd May 2019 and it sought, among others, for orders striking out the Appellants Reply to the Reply of the 1st Respondent and also for the Petition to be dismissed on the ground that the said Reply and the application for issuance of pre-hearing notice were filed out of time. The 2nd Respondents application which was filed on 14th May 2019 prayed, inter alia, for an order of the Tribunal striking out the Appellants application for issuance of pre-hearing notice and dismissal of the Petition, since the application for issuance of pre-hearing notice was not filed within the stipulated time. All three applications were heard together and the Tribunal delivered separate rulings. The instant appeal is in respect of the Ruling on the Appellants’ Motion for amendment. The Appellants lodged the instant appeal, contending that the Tribunal having granted their application to amend denied them fair hearing by not hearing their Amended Motion of 10th May2019, which it deemed as properly filed, before proceeding to rule on the Respondents applications which it granted and dismissed the Appellants Petition. The 1st Respondent was equally dissatisfied with the Ruling of the Tribunal granting the Appellants application to file the Amended Motion and consequently filed a cross appeal.
HELD
Appeal Struck Out, Cross Appeal Allowed
ISSUES
Whether the Tribunal was right to have exercised its discretion in favour of granting the application to amend the Motion.
RATIONES DECIDENDI
RIGHT OF APPEAL- EXERCISE OF THE RIGHT OF APPEAL FROM DECISIONS OF THE NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION PETITION TRIBUNAL
“Now, an election petition is sui generis . It is in a class by itself. It is different from a common law civil action: Abubakar vs. Yaradua (2008) LPELR (51) 1 at 22, Buhari vs. Yusuf (2003) LPELR (812) 1 at 18-19 and PDP vs. Ezeonwuka (2017) LPELR (42563) 1 at 68-69. Section 246 (1) (b) of the 1999 Constitution provides that appeals shall lie as of right to this Court from decisions of the Tribunal. It is instructive that unlike the provisions of the Constitution on appeals in common law civil actions (see for instance Sections 241 and 242 of the Constitution ), there is no dichotomy in Section 246 (1) (b) as to the decision being final or interlocutory or the grounds of appeal being grounds of law alone or grounds of mixed law and facts. In recognition of the sui generis nature of election petitions, the Constitution, the grundnorm, has conferred the right to appeal as of right from decisions of the Tribunal without the finicks of whether the decision is final or interlocutory or whether the grounds of appeal are grounds of law alone or grounds of mixed law and facts. In the words of Garba, JCA in Odon vs. Amange (2008) LPELR (4681) 1 at 13-14:
“I should also point out that the objection taken on grounds 2, 4 and 6 as being on interlocutory decisions of the lower tribunal and therefore require leave of Court, is misconceived because Section 246 (1) (b) (i) of the 1999 Constitution of the Federal Republic of Nigeria confers a right of appeal as of right to the Appellant against the decision of the lower tribunal to this Court. The provisions are thus:
246 (1) An appeal to the Court of Appeal shall lie as of right from: –
(b) decisions of the National Assembly Election tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether;
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution .
DECISION OF COURT – WHETHER RULINGS OR DECISIONS MADE AT THE PRE-TRIAL CONFERENCE QUALIFIES AS DECISIONS OF A TRIBUNAL
“It should be noted that the rulings or decisions made at the pre-trial conference were made in the course of the hearing of the Appellant’s petition and so qualify as decisions of the lower tribunal which fall within the meaning of decision in Section 318 of the 1999 Constitution of the Federal Republic of Nigeria . An appeal against any of those decisions is therefore as of right and requires no leave of Court. See Aburime V. Abumere (2002) 10 NWLR (776) 441, Uzodinma V. Udenwa (2004) ALL FWLR (213) 1813”.
GROUNDS OF APPEAL – WHETHER A FAILURE TO INDICATE THE GROUNDS OF APPEAL FROM WHICH AN ISSUE FOR DETERMINATION IS DISTILLED RENDERS THE ISSUES INCOMPETENT AND LIABLE TO BE STRUCK OUT
“Without a doubt, the 2nd Respondent did not indicate the grounds of appeal from which the issues it distilled for determination were derived. While it is desirable to have so indicated, I do not think that it is a failure which would render the issues incompetent and liable to be struck out as the Appellants have contended. It is a mere inelegance that is not fatal. See Union Bank Ltd vs. Odusote Book Stores Ltd (1995) 9 NWLR (PT 421) 558 at 563, Hanseatic International Ltd vs. Usang (2002) 13 NWLR (PT 784) 376 at 401-402, Nigerian Ports Plc vs. Beecham Pharmaceutical Pte Ltd (2012) 18 NWLR (PT 1333) 454 at 480 and Diamond Bank Plc vs. Opara (2018) LPELR (43907) 1 at 8-9.”
REFRAMING ISSUES FOR DETERMINATION – PURPOSE OF REFRAMING ISSUES FOR DETERMINATION
“The purpose of reframing the issues is to have a more judicious and proper determination of an appeal, that is, to narrow the issues in controversy in the interest of accuracy, clarity and brevity. See Unity Bank Plc vs. Bouari (2008) ALL FWLR (PT 416) 1825 at 1846-1847. In the words of Uwaifo, JSC in Musa Sha (Jnr) vs. Da Rap Kwan (2000) 5 SCNJ 101 at 127:
The purpose of framing or re-framing an issue or issues, it is stated: is to lead to a more judicious and proper determination of an appeal. The purpose of formulating it or them, is in order to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity.
MOTION ON NOTICE – WHETHER A MOTION ON NOTICE CAN BE AMENDED
“Now, this is what my learned brother, Agim, JCA stated in the said case at pages 16 and 18 of the Report:
Motion on Notice can be amended like any other process of Court. I do not agree with the Learned Counsel for the respondent that it can only be amended by substitution. It can be amended by insertions and alterations therein or by substituting it with a fresh motion. In practice, where a party files a fresh process or motion to substitute an earlier one, he applies to withdraw the earlier one. Where a fresh motion is filed to be heard in place of a pending motion, the applicant is at liberty to withdraw the earlier motion and upon such withdrawal, it would be struck out, so that the fresh motion can be heard”.
“SUBJECT TO” – INTERPRETATION OF THE PHRASE “SUBJECT TO” IN ORDER 56 (1) FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES
“Without a doubt, the phrase, subject to, which is employed in Order 56 (1) is an expression which when used in an enactment introduces a condition, a restriction, a limitation, a proviso. It subordinates the provisions of the subject stipulation to the section or enactment empowered by reference thereto and which is intended not to be diminished by the subject stipulation. The expression generally implies that what the stipulation is subject to shall govern, control, and renders the provision to which it is subject conditional upon compliance with or adherence to what is prescribed in the provision referred to. See NDIC vs. Okem Enterprises Ltd (2004) 7 MJSC 74 at 122-123, Texaco Panama Incorporation vs. Shell Petroleum Development Corporation Of Nigeria Ltd (2002) 14 WRN 121 at 134 and Ebhota vs. PIPDC (supra)”.
ORDER OF COURT – IMPORT OF ORDER 56 (1) FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES
“Order 56 (1) stipulates thus:
Subject to particular Rules, the Court may in all causes and matters make any order which it considers necessary for doing justice, whether the order has been expressly asked for by the person entitled to the benefit of the order or not”.
“SUBJECT TO” – INTERPRETATION OF THE PHRASE “SUBJECT TO” IN ORDER 56 (1) FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES
“It is instructive that the phrase employed in the above provision is subject to particular Rules as opposed to subject to these Rules. This is a subtle but significant indication that the Rules to which the stipulation have been subjected to are other Rules other than the Federal High Court (Civil Procedure) Rules. This is in contradistinction to the use of the expression subject to these Rules which have been used in other stipulations like Order 3 Rule 1 , Order 20 Rule 1 and Order 26 Rule 1 , to mention a few; denoting subjection and subordination to the provisions of the Federal High Court (Civil Procedure) Rules”.
INTERPRETATION OF STATUTE – RULE GOVERNING THE INTERPRETATION OF STATUTE
“It is a cardinal rule of construction that in seeking to interpret a particular provision of an enactment, one does not take the provision in isolation but one should approach the question of the interpretation on the footing that the provision is part of a greater whole and construe the same not in isolation but in conjunction with other related provisions. See Chime vs. Ude (1996) LPELR (848) 1 at 51, Mobil Oil (Nig) Plc vs. IAL 36 INC. (2000) LPELR (1883) 1 at 24 and Rivers State Govt vs. Specialist Konsult (2005) LPELR (2950) 1 at 35.
AMENDMENT OF PROCESSES – AIM OF AMENDMENT OF PROCESSES
“In ordinary common law civil actions, our adjectival laws allow a party to alter or amend his processes in such manner and on such terms as may be just, provided that such amendment is necessary for the purpose of determining the real question in controversy between the parties. The aim of an amendment is to elicit the issue really in controversy between the parties and thereby avoid injustice that would arise but for the amendment, provided that the amendment does not introduce a new cause of action and that the opposite party is not overreached or in any way prejudiced thereby. See Ogidi vs. Egba (1999) 10 NWLR (PT 621) 42 at 71 and Shell Petroleum Development Co. Ltd vs. AMBAH (1999) 3 NWLR (PT 593) 1 at 10”.
COURT – OBJECT OF A COURT
In the oft-cited English case of Cropper vs. Smith (1883) 26 CH. D 700 at 711 , Bowen, L. J. stated:
It is a well-established principle that the object of a Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights, I know of no kind of error or mistake which, if not fraudulent or intended to overreach the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace…it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of rights.
See also Yusuf vs. Obasanjo (2003) 14 NWLR (PT 841) 446 and Akinsanya vs. Ajeri (1997) 12 NWLR (PT 531) 99 at 108.
AMENDMENT OF COURT PROCESSES – PRINCIPLES GOVERNING AMENDMENT OF COURT PROCESSES
“The Courts have in a long list of decided cases established the basic principles governing amendment. Basically, an amendment for the purposes of determining the real questions in controversy between the parties ought to be allowed by the Court unless such amendment will entail injustice. See Adetutu vs. Aderohunmu (1984) 1 SCNLR 515; Amadi vs. Aplin (1972) 4 SC 228; Ojah vs. Ogboni (1976) 4 SC 69 and Ogidi vs. Egba (supra) . In Alsthom S. A. vs. Saraki (2000) FWLR (PT 28) 2267 , Achike, JSC (of blessed memory) stated at page 2276 as follows:
Amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected, in the interest of justice, ensuring always that no injustice is occasioned to the other party. The weight of judicial authorities leans in favour of allowing a party to amend its legal processes whenever the need arises in order to ensure that the real matter in controversy between the parties, shorn of manifest errors, mistakes and slips, is adequately brought to focus and determined, with the proviso, however, that the right of adversary party is neither unduly compromised nor unredressed.
Also reported in (2000) 14 NWLR (PT 687) 415 at 424.
In his own contribution, Karibi-Whyte, JSC, at page 2280 stated:
The basic principle governing the grant of leave to amend is for the purpose of determining the real issue or issues in controversy between the parties… The Courts have always followed the established principle that the fundamental object of adjudication is to decide the rights of the parties, and not to impose sanctions merely for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.
Also reported in (2000) 14 NWLR (PT 687) 415 at 427.
See also UBN PLC vs. Sparkling Breweries Ltd (1997) 3 NWLR (PT 491) 29 at 48 49.
The above underscores the liberal approach of the Courts in ordinary common law civil actions. But this matter is not an ordinary common law civil action. It is an election petition, which is sui generis. Therefore, the application for amendment has to be considered against this background; regard being had to the fact that time is of the essence in election petition cases and the right to extend time or amend processes has been limited by the provisions of Paragraphs 14, 16 and 18 of the First Schedule to the Electoral Act”.
AMENDMENT – INSTANCES WHERE AN AMENDMENT WILL NOT BE GRANTED
“Generally, even though the pendulum tilts in favour of granting amendments, an amendment can be refused in deserving cases. The materiality of the amendment must be carefully considered in the peculiar facts of each case. An amendment will not be granted where it will not avert or cure the defect in the proceedings; where an amendment is not material but is an inconsistent or useless amendment, it will not be granted. Equally, an amendment will not be granted to create a suit where none existed. See Okolo vs. Union Bank (1999) LPELR (2464) 1 at 12-13, Jessica Trading Co. Ltd vs. Bendel Insurance (1993) LPELR (1608) 1 at 14-16, Iweka vs. SCOA (Nig) Ltd (2000) LPELR (1563) 1 at 14-15, Ozigbo vs. Registered Trustees Of Ezi Oganiru Social Club Of Nigeria (2008) LPELR (8542) 1 at 9-10 and Nwandu vs. Egwuagu (2014) LPELR (41076) 1 at 12-16”.
AMENDMENT OF COURT PROCESS – WHETHER AN AMENDMENT CAN BE GRANTED TO INCORPORATE PRAYERS FOR ENLARGEMENT OF TIME TO CURE THE DEFECT OF NOT HAVING ACTED IN A TIMELY MANNER
“Paragraph 16 (2) of the First Schedule to the Electoral Act stipulates that the time for filing the Reply to a Respondents Reply shall not be extended. Equally, Paragraph 18 (4) of the First Schedule to the Electoral Act provides that an application for extension of time to apply for pre-hearing notice shall not be filed or entertained. Therefore it seems that, in the peculiar circumstances of this matter, an amendment of the Motion of 24th April 2019 in order to include prayers for enlargement or extension of time, is a useless amendment which will not cure the defect in the proceedings and ought not to have been granted by the Tribunal.
Equally, by Paragraph 18 (4) of the First Schedule to the Electoral Act , where the application for pre-hearing notice is not made within time, the Petition is deemed as abandoned. Abandon has been judicially interpreted to mean to desert, surrender, forsake, cede, relinquish or give up absolutely with intent of never again resuming ones right or interest. See Ndoma-Egba vs. Chukwuogor (2004) LPELR (1974) 1 at 28-30, Abue vs. Egbelo (2017) LPELR (43483) 1 at 12-13, ACN vs. Amaewhule (2011) LPELR (14264) 1 at 27 and Ali vs. Osakwe (2010) LPELR (3743) 1 at 55 . Given the legal consequence of a Petition being abandoned for not applying for pre-hearing notice within time, and all that will be left will be an order of dismissal under Paragraph 18 (4) ; the cause of action in the election petition had in such circumstances been relinquished and given up absolutely. To therefore grant an application for amendment to include a prayer for enlargement or extension of time to apply for pre-hearing notice is akin to granting an amendment to resurrect or create a suit that no longer existed, having been abandoned”.
AMENDMENT OF A MOTION ON NOTICE – WHETHER A FAILURE TO AMEND A MOTION ON NOTICE AMOUNTS TO A VIOLATION OF THE RIGHT TO FAIR HEARING
The question of violation of the right to fair hearing therefore does not arise as there is no Amended Motion that the right to be heard on can be founded upon: Sosanya vs. Onadeko (2005) 2 SC (PT II) 13 and Dickson Ogunseinde Virya Farms Ltd vs. Societe Generale Bank Ltd (2018) LPELR (43710) 1 at 11 and 23-24 “.
ACADEMIC QUESTIONS – ATTITUDE OF COURTS TO ACADEMIC QUESTIONS
“Courts do not engage in the determination of academic questions. In Plateau State vs. A-G Federation (2006) 3 NWLR (PT 967) 346 at 419 , Tobi, JSC stated:
A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to the practical situation of human nature and humanity.
Furthermore, in Abubakar vs. Yaradua (2008) 4 NWLR (PT 1078) 465 at 497, Tobi, JSC stated:
An academic matter in a suit is one which is raised for the purpose of intellectual argument qua reason which cannot in any way affect the determination of the live issues in the matter. It is merely to satisfy intellectual prowess qua intellect. It is a matter which is theoretical and not related to practical situation.
See also Ezeanya vs. Okeke (1995) 4 NWLR (PT 388) 142 at 165 and Global Transport Oceanico S.A. vs. Free Enterprises (NIG) (2001) LPELR (1324) 1 at 19 -20”.
CASES CITED
None
STATUTES REFERRED TO
Court of Appeal Rules, 2016|Electoral Act, 2010 as amended|Federal High Court (Civil Procedure) Rules|
