INDEPENDENT NATIONAL ELECTORAL COMMISSION v. ABBA KABIR YUSUF & ORS

SC.972/2019 (CONSOLIDATED)

                                                         

AREAS OF LAW:

APPEAL, CONSTITUTIONAL LAW, COURT, ELECTION PETITION, EQUITY, INTERPRETATION OF STATUTE, JUSTICE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, STATUTE

SUMMARY OF FACTS

This is an appeal against the decision of the Court of Appeal, Kaduna Division delivered on 29 July 2019, allowing the interlocutory appeal against the ruling of the Kano State Governorship Election Tribunal. The brief facts are that the 1st Respondent herein was the candidate of the 2nd Respondent in the 2019 Governorship Election held in Kano State on the 9th and 23rd of March 2019 respectively. After the conduct of the election by the Appellant, the 3rd Respondent was declared the winner of the said election having scored the majority of lawful votes cast at the election. Being dissatisfied with the result of the election, the 1st and 2nd Respondents filed a Petition before the trial tribunal on the 11th of April 2019, challenging the outcome of the said election. After the exchange of pleadings and during the pre-hearing session, Mr. Abba Kabir Yusuf and the Peoples’ Democratic Party (PDP) (now 1st and 2nd Respondents) had sought leave of the Tribunal to add to the list of witnesses the names of eight (8) witnesses, whose witness statements accompanied the petition but the names were omitted in the list of witnesses. The trial tribunal adjourned for ruling before the commencement of trial. In a well-considered ruling, the 1^st and 2^nd Respondents’ application was refused in its entirety. Being dissatisfied with the trial Tribunals’ ruling, the 1st and 2nd Respondents appealed against the said ruling to the Court of Appeal Kaduna Judicial Division, which set aside the dismissal by the Tribunal and allowed the appeal by granting the motion. The Appellant felt dissatisfied with the judgment of the lower Court and has appealed against same                                           

HELD

Appeal Dismissed

ISSUE FOR DETERMINATION

• Whether the learned Justices of the Court of Appeal were right in holding that adding names of witnesses whose depositions were already frontloaded with the Petition and are before the Tribunal, to the list of witnesses of the petition within the purview of the 1st Schedule to the Electoral Act 2010 (as amended)?

 

RATIONES

ELECTION PETITION, PRACTICE AND PROCEDURE

AMENDMENT OF AN ELECTION PETITION – CIRCUMSTANCE WHEN AN AMENDMENT TO AN ELECTION PETITION WILL BE ALLOWED

“A collective reading of Section 134(1) of the Electoral Act which has been enacted as Section 285(5) of the Constitution , Paragraphs 4(1) and 14(1) and (2) of the First Schedule to the Electoral Act would prohibit an amendment if there is any alteration to the petition which affects the contents of the petition as laid out in Paragraph 4(1). The corollary to this is that the amendment will be allowed provided the alteration is not as to substance of the grounds upon which the petition is brought.” PER K. B. AKA’AHS, J.S.C.

 

ELECTION PETITION, PRACTICE AND PROCEDURE

AMENDMENT OF AN ELECTION PETITION – INSTANCE WHEN THE AMENDMENT OF AN ELECTION PETITION WILL BE REFUSED

“Delivering the leading judgement, I. T. Muhammad JSC (as he then was) dismissing the appeal stated at pages 252-253 supra:

‘I am in tandem with the learned SANs for the 1st and 2nd respondents in their submissions that the ground upon which the petitioners wanted to bring in facts that were not available to them at the time of filing the petition, is an admission by the petitioners that it was an attempt by them to introduce new facts which were not available at the time of filing the petition. This clearly offends the provision of Paragraph 14(2)(a) and (b) of the Act referred to earlier… The refusal of the application by the two Courts is quite justified’.”

– PER K. B. AKA’AHS, J.S.C.

 

ELECTION PETITION, PRACTICE AND PROCEDURE, LAW OF EVIDENCE

AMENDMENT OF ELECTION PETITION – WHETHER AN AMENDMENT TO FILE A WITNESS DEPOSITION AFTER THE EXPIRATION OF THE TIME PERMITTED FOR THE FILING OF AN ELECTION PETITION MAY BE GRANTED

“I am firmly of the view that where a witness deposition is sought to be filed after the expiration of time for the filing of a petition, that deposition cannot be made part of the facts upon which a petition can be proved but if the deposition was filed before the expiration of time for bringing the petition, an amendment can be made to allow a witness who deposed to the facts to adopt the deposition as his evidence and be cross- examined as happened in the instant appeal.” PER K. B. AKA’AHS, J.S.C.

 

 

ELECTION PETITION, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE

AMENDMENT OF ELECTION PETITION – BASIC PRINCIPLE GUIDING THE COURT WHEN AN AMENDMENT IS SOUGHT

“I shall reiterate the basic principle guiding the Court when an amendment is sought within the contemplation of the Electoral Act as provided in Paragraph 14 (2) (a) and (b) of the 1st Schedule to the Electoral Act 2010 (as amended) and related to Section 285 (5) of CFRN . It is that no amendment whatsoever shall be entertained by the tribunal after the expiration of the period within which the present an election petition. Bringing into view the use of the word “shall” in Section 285 (5) CFRN , the connotation is a command or mandatory obligation which places a complete bar to any form of amendment to the petition filed and has no room for an exercise of discretion in that regard. See Oke & Anor V Mimiko & Ors. (2013) LPELR- 20645 (SC); Ugwu V Ararume (2007) 12 NWLR (PT.1048) 367 at 510; Onochie V Odogwu (2006) 6 NWLR (PT.975) 65; Bamaiyi V Attorney General Of Federation (2001) 12 NWLR (PT.727) 468 AT 497.” PER M. U.PETER-ODILI, J.S.C.

 

ELECTION PETITION, COURT, PRACTICE AND PROCEDURE

AMENDMENT OF ELECTION PETITION – DUTY OF COURT TO DO JUSTICE TO PARTIES RATHER THAN PUNISH THEM FOR MISTAKES AND BLUNDERS

“That general rule to amendment concerning petitions stated above, then comes the question whether the mandate would be applied in all circumstances, blindly unadvisedly irrespective of certain features that would make the Court go into the definition of an amendment in such a way that the Court would say that such an application is not grantable no matter what. I think not, my humble opinion based on the fact that an application which ordinarily would be refused off hand would need to be given a second look before the decision. This is because the basic principle of law is that it is the object of the Court to decide the rights of the parties and not punish them for mistakes they make in the litigation process particularly when the errors are indeed and really mistakes which can never be taken out of human operations. Of a fact is that blunders must take place in the litigation process and since blunders are inevitable being part of human nature, it is not fair in an appropriate instance as in the case at hand to make a party in the blunder to incur the wrath of the law at the expense of hearing the merits of the case. See Abubakar V Yar’adua (2008) 4 NWLR (PT. 1078) 465 at 510-512 per Tobi JSC.” PER M. U.PETER-ODILI, J.S.C.

INTERPRETATION OF STATUTES, COURT, PRACTICE AND PROCEDURE

PRINCIPLES OF INTERPRETATION OF STATUTE – DUTY OF COURTS IN THE INTERPRETATION OF STATUTE

“Without question, the Court is enjoined to interpret statutes as they are without going outside it to bring in what the Court would think was intended. I shall refer to some dicta of this Court in that wise. See Obi V INEC & Ors. (2007) LPELR-2166 (SC) wherein Aderemi JSC put it admirably thus:-

‘The intention of the legislature, or put bluntly, the intention of National Assembly at the Federal level or the State House of Assembly at the State level, is not to be judged by what is in its mind but by its expression of that mind couched in the words of the statute. If at the end of the interpretative exercise carried out on the provisions of statute or constitution, a judex’s personal conviction as to where the justice and rightness of the matter lies is returned, that would make the judiciary lose its credibility, authority and its legitimacy…’ 

 

Interestingly, the appellant cited G.C.M. Ltd V Travellers Palace Hotel (2019) 6 NWLR (PT.1669) 507 at 530-531 per Augie JSC:

“There are also three basic rules of statutory-interpretation – the Literal Rule is the first rule applied by judges. Here, Judges rely on the exact wording of a statute for the case. They will be read literally and the judges will take the ordinary and natural meaning of a word and apply it, even if doing so, creates an absurd result. The next rule is the Golden Rule, which is a modification of the Literal Rule, to be used to avoid an absurd outcome. It is used where the literal rule produces a result, where lawmakers intention would be circumvented, rather than applied. This rule was defined by Lord Wensleydale in Grey v Pearsons case (1857) as: ‘The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no farther. The last rule is the mischief rule, which gives Judges the most discretion of all and it is intended to rectify “mischief” in the statute and interpret the statute justly. The four principles to follow were expressed in Heydon’s case (1958) as follows: – 

(i) What was the common law before the making of the Act?

(ii) What was the mischief and defect for which the common law did not provide? 

(iii) What remedy parliament hath resolved and appointed to cure the disease of the common wealth? The true reason of the remedy, and then the office of the Judges is to make such construction as shall suppress the mischief and the advance remedy. In addition to these three rules of statutory interpretation, there are other rules that are held to apply when determining the meaning of a statute, and these include: 

(i) The statute is presumed not to bind the Constitution; 

(ii) Statutes do not operate retrospectively in respect to substantive law (as opposed to procedural law); – see translegal.com 

(iii) They do not interfere with legal rights already vested; 

(iv) They do not oust the jurisdiction of the Courts; and 

(v) They do not detract from constitutional law or international law see translegal.com.’”

– PER M. U. PETER-ODILI

COURT, PRACTICE AND PROCEDURE

RULES OF COURT – DUTY OF COURT TO AVOID STRICT ADHERENCE TO THE RULES OF COURT IN SITUATIONS WHERE IT WOULD LEAD TO INJUSTICE

“Therefore, along those lines, I would restate what is already trite and that is that Rules of Court are meant to be obeyed and that is why they are made. That does not justify that one or the Court becomes slavish to its obedience to the extent that justice is destroyed, jettisoned or thrown overboard. What I am trying to put across is that this Court would not myopically or blindly follow the Practice Direction to the point of missing the road to the justice expected in a given case. See Eboh V Akpotu (1968) 1 ALL NLR 220 per Coker JSC.” PER M. U.PETER-ODILI, J.S.C.

ELECTION PETITION, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

AMENDMENT OF ELECTION PETITION – WHETHER THE EFFECT OF REFUSING AN AMENDMENT TO BRING IN THE NAMES OF WITNESSES WOULD AMOUNT TO A MISCARRIAGE OF JUSTICE

“The ensuing effect of refusing the amendment to bring in the names of these witnesses whose statements or depositions were already in, would definitely in my view be a miscarriage of justice and the full application of technical and abstract justice based on arid legalism to the loss of substantial justice. That is not what the law or its practice is all about. See Ikpeazu V Otti (2016) 8 NWLR  (PT.1543) 55.” PER M. U.PETER-ODILI, J.S.C.

ELECTION PETITION, EQUITY, JUSTICE, PRACTICE AND PROCEDURE

ELECTION PETITIONS – APPLICATION OF THE RULES OF EQUITY AND JUSTICE TO THE HEARING OF ELECTION PETITIONS

“Elections petitions, I agree, are sui generis and time is of essence. Because of the time constraints minor clerical or typing mistakes, that are quite innocuous, are bound to be made. The petitions are heard and determined in the Courts of Justice, even though they are called Election Petitions Tribunals. The rules of equity, ensuring substantial justice, are applicable in regular Courts as well as Election Petition Tribunals. One of such rules of equity is equity looks at the substance and not the form.” PER E. EKO, J.S.C.

COURT, JUSTICE, PRACTICE AND PROCEDURE

COURT – DUTY OF COURT TO DO SUBSTANTIAL JUSTICE BY HEARING THE MERITS OF THE CASE THAN PUNISHING PARTIES FOR MISTAKES COMMITTED BY THEM

“In the game of “Draft” the rule of “touch and play”, which prevents a player resiling from accidental touch on the seed, may hold sway. In the tribunal or Court of Justice the rule that holds sway is one that leans towards doing substantial justice. The learned jurist, Niki Tobi, JSC espousing the opinion of this Court in Abubakar V. Yar’adua (2008) 4 NWLR (pt. 1078) 465 had put it lucidly thus at page 511:

‘The basic principle of law is that it is the object of the Court to decide the right of the parties and not to punish them for mistakes they make in the process, particularly when the mistakes are really mistakes. It is known fact that blunders are inevitable, it is not fair, in appropriates cases, to make a party in the blunder to incur the wrath of the law at the expense of hearing the merits of the case.’”

• PER E. EKO, J.S.C.

COURT, PRACTICE AND PROCEDURE

RULES OF COURT – WHETHER RULES OF COURT MUST BE APPLIED EVEN WHEN SAME WILL DO INJUSTICE

“Rules of Court, which include here Practice Directions, are not intended to be ridiculously applied to a slavish point, particularly if such an application will do injustice. In Eboh V. Akpotu (1986) 1 All NLR 220 Coker, JSC, said:

‘It is not every irregularity that can nullify entire proceedings and it may well be open to a party claiming by virtue of an irregularity to contend that such irregularity does not materially affect the merits of the case or engender a miscarriage of justice’.”

PER E.EKO, J.S.C.

LAW OF EVIDENCE

PLEADINGS – PURPOSE OF PARTICULARS IN PLEADINGS

“It is elementary that in pleadings, particulars must be given and the adversary must not be taken by surprise, which, if not specifically pleaded might take the opposite party by surprise. See Per UWAIS, J.S.C in Buhari & Anor V. Obasanjo & Ors (2005) LPELR-815(SC).” PER U.M.A. AJI, J.S.C.

ELECTION PETITION, STATUTE

ELECTION PETITION – PURPORT AND PURPOSE OF SECTION 285(5) OF THE 1999 CONSTITUTION (AS AMENDED) AND PARAGRAPH 14(2) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT

“The purport and spirit of the provisions of Section 285(5) of the 1999 Constitution (as amended) and Paragraph 14(2) of the First Schedule to the Electoral Act, is to give timeliness and orderliness to election petition matters which are time-bound and sui generis. These provisions are to forestall unnecessary applications that will clog the case and bring tactical delays and extemporaneous procrastination from adverse parties. To over-stretch this will amount to denying oxygen to a dying man to survive.” PER U.M.A. AJI, J.S.C.

LAW OF EVIDENCE, COURT, PRACTICE AND PROCEDURE

PLEADINGS – JUDICIAL POWERS OF COURT TO ALLOW AMENDMENT OF PLEADINGS

Per I DIGBE J,S.C. Okeowo  & Ors V. Migliore & Ors (1979) LPELR-2441(SC) counseled that:

‘As is well known, the common rule of pleadings is that a party is bound by his own pleading. The strict application of this rule is capable sometimes of leading to miscarriage of justice, hence the Courts have been invested with wide powers of amendment of pleadings. And so under general powers of amendment vested in them, the Courts, for the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in proceedings before them can, at any stage of the said proceedings either of their own motion or on the application of any of the parties thereto, order any document in the proceedings to be amended on such terms as to costs as may appear to them to be just..”

• PER U.M.A. AJI, J.S.C.

COURT, PRACTICE AND PROCEDURE

RULES OF PROCEDURE – DUTY OF COURT TO DO SUBSTANTIAL JUSTICE BY AVOIDING MINOR SLIPS AND MISTAKES WHICH WOULD ACT AS OBSTACLES TO JUSTICE

“Rules of procedure and Courts must not be seen as taskmasters but aimed at achieving substantial justice as against technical justice. It will rather be injustice to the 1st and 2nd Respondents to be denied the testimony and evidence of the witnesses they have presented earlier simply because the time for amendment is over. The time for closing amendments is not applicable to such minor slips and errors but to such ones that are capable of altering and substantially affecting the case and pleadings of the parties. Cases as well as Courts are manned and handled by humans and not angels that such minor slips are bound to feature up that may not need to go through the rigours of amendments envisaged in the above laws relied upon by the Appellant.” PER U.M.A. AJI, J.S.C.

STATUTES REFERRED TO:

Constitution of the Federal Republic of Nigeria

Electoral Act 2010