JOHN I. OGBU V. BEST WOKOMA
June 10, 2025BENJAMIN OYAKHERE VS STATE
June 10, 2025Legalpedia Citation: (2005) Legalpedia (CA) 50355
In the Court of Appeal
Thu Jul 7, 2005
Suit Number: CA/B/176/2003 (R)
CORAM
RABIU DANLAMI MUHAMMAD JUSTICE, COURT OF APPEAL.
MUHAMMAD SAIFULAHI MUNTAKA-COOMASSIE JUSTICE, COURT OF APPEAL.
AMINA ADAMU AUGIE JUSTICE, COURT OF APPEAL.
DENNIS ONYEJIFE EDOZIE JUSTICE, COURT OF APPEAL.
PARTIES
SILAS BOUNWE APPELLANTS
1. RESIDENT ELECTORAL COMMISSIONER, DELTA STATE & 13 ORS.2. HON PRINCE ERIJO RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant/Applicant brought an application before the court pursuant to Order 3 rules 15 and 16 of the Court of Appeal Rules, praying for an order striking out or dismissing the Respondents’ notice for being unmaintainable, an order that the Court departs from its previous decision which dismissed the Appellant’s application to amend the processes filed in this appeal and for an order for leave to amend the existing notice of appeal by substituting a fresh notice of appeal or by filing additional ground of appeal. The Respondents urged the court to dismiss the application on the grounds that the court has no power to amend any process filed before it, and in election petition, time is of the essence amongst others reasons. The Respondent further stated that the court will only depart from its previous decision where the previous decision is occasioning injustice and that was not the situation in this present case.
HELD
Application dismissed
ISSUES
None
RATIONES DECIDENDI
RIGHT TO FAIR HEARING – RIGHT TO FAIR HEARING IS A DUAL CARRIAGE WHICH INURES TO BOTH PARTIES
“Right to a fair hearing is a dual carriage way. It inures to both parties.” PER N. S. NGWUTA, J.C.A
URGENCY OF ELECTORAL MATTER– URGENCY ON ELECTORAL MATTERS IMPOSES A DUTY ON THE COURT OR TRIBUNAL HEARING ELECTORAL MATTERS TO HEAR THE MATTER EXPEDITIOUSLY
“The need for urgency on electoral matters imposes a duty on the court or tribunal hearing electoral matters to hear the matter expeditiously by restricting the parties to the time frame in the Electoral Act, 2002, rather than a duty to abridge time.”PER N. S. NGWUTA, J.C.A
RULES FOR AMENDMENT OF ELECTION PETITION –WHETHER THE TARDINESS OF A LEARNED COUNSEL OR THE MISTAKE OF THE REGISTRY IN FILING THE APPLICATION FOR SUBSTANTIAL AMENDMENT AT THE EXPIRATION OF THE TIME ALLOWED FOR SAME WILL BE ACCOMMODATED
“In view of the essentiality of time, tardiness of learned Counsel or the mistake of the registry in filing the application for substantial amendment at the expiration of the time allowed for same cannot be accommodated. See Jang v. Dariye (2003) 15 NWLR (Pt.843) 436 at 445,”PER N. S. NGWUTA, J.C.A
LIMITATION OF TIME IN ELECTION MATTER – EFFECT OF THE PROVISIONS LIMITING THE TIME WITHIN WHICH A PARTY MAY PRESENT AN ELECTION
‘‘The provisions limiting the time within which a party may present election petition and/or apply to amend processes filed in an appeal or extension to file any process are designed to check the excess and abuse capable of resulting from the fact that an election petition or appeal therefrom has no time limit within which it must be determined, but is capable of dragging on for the duration of the term for which the questioned election was conducted.’’ PER N. S. NGWUTA, J.C.A
AMENDMENT IN ELECTION PETITION APPEALS – WHETHER AMENDMENT CAN BE GRANTED IN ELECTION PETITION APPEAL
“Amendment can be granted in election petition appeals, depending however, on the timing of the application for amendment. See section 132 of the Electoral Act, 2002, and Alhaji Mohammed Dikko Yusufu and Anor. v. Chief Olusegun Aremu Okikiola Obasanjo and 56 Ors.”PER N. S. NGWUTA, J.C.A
DECISION OF COURT – WHERE A COURT HAS DECIDED ON AN ISSUE AND THE DECISION OF THE COURT IS EMBODIED IN SOME FORM OF JUDGMENT THE COURT CANNOT REOPEN THE MATTER
“It is trite that where a court has decided on an issue and the decision of the court is embodied in some form of judgment or order that has been made effective as in the instant case, then the court cannot reopen the matter and substitute a different decision in place of the one which has been recorded, except of course it could be shown that same has been obtained by fraud or there was a fundamental defect which goes to the issue of jurisdiction and competence of the court on the day it made the order.” PER. U. M. ABBA-AJI, J.C.A
ABRIDGMENT OF TIME – WHEN CAN TIME BE ABRIDGED?
“Time can be abridged within the time stipulated by the rules for doing anything in the proceedings, but a party who has run out of time cannot ask that time be abridged, for he is out of time. He can only ask for enlargement of time.”PER N. S. NGWUTA, J.C.A
ENHANCEMENT OF URGENCY IN ELECTION PETITION – RELEVANT RULES IN ELECTION PETITION ARE ISSUED IN MANDATORY FORMS TO ENHANCE URGENCY OF TIME
‘‘As a matter of deliberate policy to enhance urgency, election petition are expected to be devoid of procedural clogs that cause delay in the disposition of substantive disputes, hence, the relevant rules are issued in mandatory forms. I am fortified in my view with the decision in the following cases, Samamo v. Anka (2000) 1 NWLR (Pt. 640) 283: Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446 and Abubakar v. INEC (2004) 1 NWLR (Pt. 854) 207’’. PER. U. M. ABBA-AJI, J.C.A
DECISION OF COURT –WHETHER THE COURT OF APPEAL IS BOUND TO REFUSE TO FOLLOW A DECISION OF ITS OWN
“There is no provision in the rules governing precedent in this court as to which of its previous decisions it should follow. Nonetheless, it has been established by a number of authorities that it can decide which of its previous conflicting decisions to follow, and it is also bound to refuse to follow a decision of its own, which though not expressly overruled by the Supreme Court, this court is of the opinion that it will not stand with the decision of the Supreme Court and/or the decision is reached per incuriam. See Braithwaite v. Maritime Spain African Lines S.A. (2000) FWLR (Pt. 26) 1817, (2000) 5 NWLR (Pt. 707) 596; Odido v. The State (1994) 3 NWLR (Pt. 333) 504 at 511; Ali Peters v. Atigwe David & 3 Ors. (1999) 5 NWLR (Pt. 603) 486 at 496, & Akinade v. N.A.S.U. & 16 Ors. (1999) 2 NWLR (Pt. 592) 570 at 581.” PER A. A. AUGIE, J.C.A
RESOLUTION OF CONFLICT BETWEEN THE RULES OF COURT AND A PROVISION OF THE ACT – A CONFLICT BETWEEN THE CIVIL PROCEDURE RULE AND ANY PROVISION OF THE ACT WILL BE RESOLVED IN FAVOUR OF THE ACT
“Where there is a conflict between the civil procedure rule and any provision of the Act, the conflict will be resolved in favour of the Act. See Alhaji Mohammed Dikko Yusuf &Anor. v. Chief Olusegun Aremu Okikiola Obasanjo& 56 Ors. (2003) 16 NWLR (Pt. 847) 554, (2003) 50 WRN 1, where the Supreme Court held that by paragraph 50 of the 1st Schedule to the Electoral Act, 2002, the (Civil Procedure) Rules of the Federal High Court can only be applied to the extent that the electoral Act allows or permits. By paragraph 51, the court will fall back on its practice and procedure relating to appeal in the court subject however to two limitations –
(1) the application of the Court of Appeal Practice and Procedure relating to appeals is subject to the provisions of the Electoral Act, 2002.
(2) The court shall have regard to the need for urgency on electoral matters”. PER N. S. NGWUTA, J.C.A
ELECTORAL MATTER – NATURE OF ELECTORAL MATTER
“Election matter is in a class by itself (sui-generis) and has to be determined in strict compliance with the electoral Act. See Engr. Alhaji Magaji Abdullahi v. Alhaji Kabir Ibrahim Gaya (1992) 21 LRECN 144 at 146, Obih v. Mbakwe (2005) 50 WRN 106 Sc.”PER N. S. NGWUTA, J.C.A
AMENDMENT OF PROCESS – BASIS OF THE TIME FRAME WITHIN WHICH TO APPEAL OR APPLY TO AMEND AND INTRODUCE SUBSTANTIAL FACTORS TO A PETITION OR REPLY
“The time frame within which to appeal and apply to amend process introducing substantial factors to the petition or reply is based on public policy, the principle of which is to protect public interest and reject whatever is injurious to the public welfare or is against the public good. See Total (Nig.) Plc. v. Ajayi (2004) 3 NWLR (Pt.860) p. 270 at 275.”PER N. S. NGWUTA, J.C.A
DEPARTURE FROM A PREVIOUS DECISION OF COURT –WHETHER THE COURT CAN DEPART FROM ITS PREVIOUS DECISION IN THE SAME PROCEEDINGS?
“It therefore follows that the court cannot depart from its previous decision, be it final or interlocutory, in the same proceeding, even if the appellant had established a case for such departure.”PER N. S. NGWUTA, J.C.A
DECISION OF COURT –WHETHER THE COURT IS BOUND BY ITS PREVIOUS DECISION
“It is trite law that this court is bound by its previous decisions.”PER A. A. AUGIE, J.C.A.
ELECTION PETITION – NATURE OF AN ELECTION PETITION
‘‘The proceeding of an electoral body is strict. Election petition and the rules applicable to it and its procedure are unique. It is the reason why election petitions are described as sui generis. They are different from other proceedings. They are neither allied to civil/nor to criminal proceedings. They stand on their own bound by their rules made under the law. Defects or irregularities which in other proceedings are not sufficient to affect the validity of the claim are not so in an election petition. An election petition has peculiar features which make it sui generis and quite apart from that, there is need for urgency in electoral matters as time is always of the essence.’’ PER. U. M. ABBA-AJI, J.C.A
ESSENTIALITY OF TIME IN ELECTORAL MATTERS – SIGNIFICANCE OF ESSENTIALITY OF TIME IN ELECTORAL MATTERS
“The essentiality of time in electoral matters imposes a duty on the court, the parties and their counsel to dispose of same expeditiously even though the Electoral Act, 2002, imposes no time frame within which it must be determined.”PER N. S. NGWUTA, J.C.A
SUBSTANTIAL AMENDMENT – SUBSTANTIAL AMENDMENT WILL NOT BE ALLOWED AFTER THE EXPIRATION OF 30 DAYS FROM THE DATE OF DECLARATION OF THE ELECTION RESULT
“See Alhaji Mohammed Dikko Yusufu and Anor. v. Chief Olusegun Aremu Okikiola Obasanjo and 56 Ors. (supra), where the Supreme Court held that substantial amendment will not be allowed after the expiration of 30 days from the date of declaration of the election result.”PER N. S. NGWUTA, J.C.A
PREVIOUS DECISION OF A COURT –WHETHER A LOWER COURT WILL FOLLOW ITS PREVIOUS DECISION THAT IS SHOWN TO BE IN CONFLICT WITH THE DECISION OF AN APEX COURT
“It will amount to judicial rascality and an exhibition of recklessness bordering on contempt for the court to follow its previous decision, if any, which is shown to be in conflict with the decision of the apex court on the same issue.”PER N. S. NGWUTA, J.C.A
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999Court of Appeal RulesElectoral Act, 2002 as amended
