ADEWALE ARIBISALA & ANOR. V. SIMEON ADEREMI ADEYANJU & ORS.
(2008)LCN/2824(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of June, 2008
CA/IL/EPT/REP/7/2007
JUSTICES
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CENTUS CHIMA NWEZE Justice of The Court of Appeal of Nigeria
Between
1. ADEWALE ARIBISALA
2. PEOPLES DEMOCRATIC PARTY Appellant(s)
AND
1. SIMEON ADEREMI ADEYANJU
2. ACTION CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. INEC RETURNING OFFICER, EKITI NORTH FEDERAL CONSTITUENCY
5. RESIDENT ELECTORAL COMMISSIONER, INEC, EKITI STATE
6. ELECTORAL OFFICER, IKOLE L.G.
7. ELECTORAL OFFICER, OYE L.G. Respondent(s)
RATIO
THE JURISDICTION OF AN ELECTION TRIBUNAL TO DEAL WITH ELECTION MATTERS
It must be noted that the jurisdiction of an election tribunal to deal with election matters is of very special nature different from that in ordinary civil cases. The provisions for which special provisions are made under the Electoral Act and the Constitution. Any slightest default in complying with a procedural step which otherwise either could be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. Though it is imperative that the procedure laid out in the Electoral Act 2006 must be strictly complied with – the court has to be cautious so that the rules of evidence which should be strictly adhered to are not invoked or employed to perpetrate injustice as justice of a case must be the paramount consideration Buhari v. Yusuf (2003) 14 NWLR Pt. 847 Pg. 446; Abubakar v. INEC (2004) 1 NWLR Pg. 854 Pg. 207; Samamo v. Anka (2000) 1 NWLR Pt. 640 Pg. 283; Haruna v. Moddibo (2004) 16 NWLR Pt. 900. PER ADEKEYE, J.C.A.
THE POWER OF THE ELECTORAL TRIBUNAL TO ENLARGE TIME FOR DOING AN ACT OR TAKING ANY PROCEEDINGS
By virtue of Section 43(1) -E“lectoral Act 2006; and the Tribunal or court shall have power, subject to the provisions of Section 141 of this Act and paragraph 14 of this Schedule to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this Schedule. “
43 (2)
“An enlargement of time may be ordered although the application for the enlargement is not made until the expiration of the time appointed or allowed.”
By virtue of Section 49 (1) of the First Schedule to the Electoral Act 2006 –
“Non compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative except otherwise or implied, shall not render any proceedings void, unless the Tribunal or court so directs, but the proceedings may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner or on terms as the Tribunal or court deems fit and just the foregoing sections are not applicable to this appeal.” PER ADEKEYE, J.C.A.
THE GENERAL RULE ON AMENDMENT UNDER THE CIVIL PROCEDURE RULES
The General rule on amendment under the civil procedure Rules as was held in the Supreme Court case of IPADEOLA & ANOR VS. ABIODUN OSHOWOLE (1987) 5 S.C.N.J 200 at 203 is that it is within the power of the Court to grant an amendment even if the amendment would add to the existing cause of action or substitute there for a new cause of action provided the additional or the new cause of action arises out of the same or substantially the same facts as are contained in the pleadings.
In OJAH VS. OGBONI & ORS (1976) 1 N.M.L.R. P 95, the Supreme Court again was of the view that as a general rule, amendment should be allowed for purposes of determining the real questions to be tried between the parties unless such amendment will:-
(a) Prejudice, the Respondent or wrought injustice on him.
(b) The applicant is acting mala fides or by his blunder has caused the Respondent some injury by which he cannot be assuaged in monetary terms or costs. See OGUNTIMEHIN VS. GUBERE (1964) 1 ALL N.L.R. 176 and AMADI VS. THOMAS APLIN & CO. LTD. (1972) 1 ALL N.L.R. 409.
The object of Courts and indeed Election Tribunals is to decide the rights of parties and not to punish them for mistakes which they make and where an application for amendment is not fraudulent or intended to overreach; the Court ought to correct any errors or blunders committed by parties provided injustice is not done to the rival party.
Where for instance, prima facie a party has couched his pleadings in a manner which will not lead to the proper determination of the real question in controversy, it is his right to have it corrected provided that injustice is not done to his opponent. See the dictum of Bowen L.J. in Cropper Vs. Smith (1884) 26 Ch. D. 700, 710 and 711 which has been followed in several Supreme Court cases on amendment of pleadings.
The above not withstanding even under the General Principles enunciated above there are exceptions to the limit within which amendments can be granted.
Where, for instance an amendment is immaterial to the case, or is circumscribed by a statute as in our instant appeal where paragraph 14(2)(a) and (b) of the 1st Schedule to the Electoral Act, 2006, proscribes amendment in mandatory terms after the expiration of the time limited by Section 141 of the Electoral Act, 2006 for presenting Election petition which includes:-
(1) Introduction of any of the requirements of sub paragraph (1) of paragraph 4 of the 1st Schedule not contained in the original petition; or
(2) effects a substantial alteration of the ground for, or the prayer in, the election petition; or
(3) effecting a substantial alteration of or addition to, the statement of facts relied on to support of the ground for or sustenance of the prayer in the election petition.
In CHATJOK VS. KATTO (1993) 3 N.W.L.R. (Pt 594) 220, Section 88 of Decree No 36 which is in pari materia with the schedule that has fallen for interpretation, fell for interpretation where an amendment was sought after the time limited by the Decree and it was held that the petitioner could not amend the petition.
See again, UMAR VS. ONIKATA (1999) 3 N.W.L.R. (Pt 558) 400, where it was held that even though the High Court Civil Procedure Rules applied mutatis mutandis to election proceedings and amendment could be granted at any stage of the proceedings subject to terms or costs or otherwise as may be deemed just, by virtue of sub paragraph (2) of paragraph 15 of the schedule to Decree No. 38 of 1998 applications to amend, in relation to parties must be brought within 14 days as prescribed by Section 82 of the Decree. PER IGE, J.C.A.
O. O. ADEKEYE, J.C.A. (Delivering the Leading Judgment): The National Assembly elections in the Ekiti North Federal Constituency 1 of Ekiti State was held on the 21st of April 2007. At the return of the polls – the 1st Appellant – Adewale Aribisala was elected as the member for the Federal House of representatives representing the Ekiti North Federal Constituency 1. The 1st Appellant contested on the platform of the 2nd Appellant a registered political party, – the Peoples Democratic Party. The 1st and 2nd Respondents challenged the election by a petition filed on the 21st of May 2007 before the National Assembly/Governorship and Legislatives Houses Election Tribunal for Ekiti State. The 3rd – 7th Respondents were responsible for the conduct of the election held on the 14th of April 2007. The of the petition of the 1st and 2nd Respondents is on pages 1 -3 of the Record. The Respondents at the Tribunal filed their respective Replies to the petition. On the 12th of June 2007, the Appellants filed a Notice of Preliminary Objection to the competence of the election petition vide pages 17-24 of Record. The grounds of the objection are that the score of the 1st Respondent who claimed to have been a candidate at the election was not stated. Further that both the 1st and 2nd Respondents failed to state the reliefs and prayers sought from the Election Petition Tribunal as required by Paragraphs 4(1) (d) and 4(3) (a) of the First Schedule to the Electoral Act 2006.
On the 9th of July 2007, the 1st and 2nd Respondents filed an application seeking leave to amend their petition filed on 21st May 2007. The application for amendment was brought forty days after expiration of the time for presentation of their petition. The Appellants opposed this application for amendment by filing a counter affidavit and a written address vide pages 36 – 43 and 72 – 76 of the Record respectively.
The Appellants gave reasons for opposing the application for amendment as follows-
“(1) That leave to amend was predicated on the grounds that the Appellant had raised a legal challenge with the aim of establishing the incompetence of the petition.
(2) 1st and 2nd Respondents were guilty of unreasonable delay in bringing the application for amendment.
(3) The application to amend was aimed at introducing new facts in the election and if the prayer for amendment was granted it would result in effecting a substantial alteration of or addition to the statement of facts relied on to support the grounds. ”
The 3rd – 7th Respondents equally filed their respective counter affidavit and written address to oppose the motion for amendment. The Election Tribunal heard and granted the application on 9/9/2007 on the ground that the amendment sought did not introduce new issues so as to offend paragraphs 4 and 14 of the 1st Schedule to the Electoral Act 2006 – vide pages 184 -185 of the Record.
Aggrieved with the Tribunal’s decision to grant leave to the Petitioners to amend their petition filed on 21/5/07, the Appellants have appealed to this court. At the hearing of the appeal on 10/4/2008 the Appellants adopted and relied on their joint brief filed on 23/10/07. In this brief the Appellants identified one issue for determination as follows –
“Whether the Tribunal has the competence to allow the substantial or material amendment in the 1st and 2nd Respondents’ application for extension of time to amend the petition.”
The 1st and 2nd Petitioners/Respondents in their joint brief deemed filed on 10/4/08 adopted the only issue filed by the Appellants.
The 3rd – 7th Respondents in their joint Respondents’ brief deemed filed on the 10th of April 2008 settled three issues for determination as follows-
“(1) Whether the amendment sought to be made to the Petitioners’ petition vide the Petitioners’ motion on Notice filed on 9/7/07 and the proposed amended petition attached thereto sought to introduce a requirement or some requirements of sub-paragraph 1 of the Paragraph 4 of the 1st Schedule to the Electoral Act 2006 not contained in the original petition.
(2) Whether the Petitioners’ proposed amendment to the petition sought to effect a substantial alteration of the ground for the petition and a substantial alteration cannot be granted in a petition when there is a legal challenge to the competence of the petition. The learned counsel for this submission relied on the cases of Abimbola v. Aderoju (1999) 5 NWLR Pt. 601; Pg. 100; Ojukwu v. Onwudiwe (1984) 1 SCNLR Pg. 247 at pages 277-278; PDP v. Haruna (2004) 16 NWLR Pt. 900 Pg. 597 and Paragraph 14(2)(a)(i) of the First Schedule to the Electoral Act 2006.
In the original petition the 1st Respondent claimed to be a candidate of the 2nd Respondent and contested the said election while in the amended petition the 1st and 2nd Respondent averred that the 1st Respondent’s name was excluded from the list of the candidates for the election and by so doing have effected a material and substantial alteration of the petition. The learned counsel urged this court to allow the appeal and set aside the order of Election Tribunal granting leave to the 1st and 2nd Respondents to amend their petition.
The learned counsel for the 1st and 2nd Respondents, Mr. Fashakin responded that the argument of the Appellants is misplaced, given the available materials upon which the Tribunal granted the prayer. The amendment became necessary because the Petitioners/Respondents changed counsel. Their new counsel discovered that there were errors, mistake and irregularities in the petition, and applied for leave to amend the petition before the Tribunal. The learned counsel thereby submitted that under paragraphs 43(1) and 49(1) of the 1st Schedule to the Electoral Act 2006 and the guidelines, the Tribunal is vested with the discretionary power to grant an extension of time for bringing an application in deserving cases – like an amendment.
The lower Tribunal had exercised its discretion in granting the application judicially and judiciously. The 1st and 2nd Respondents disclosed that the amendment sought was within the contemplation of the parties in the original petition and the documents filed therein were punctuated with errors, mistakes and other mere irregularities that could occasion miscarriage of justice or inhibit the Tribunal from determining the real issues in controversy. In the original petition under the Grounds and Facts of the petition it was averred under (a) as follows-
“The 1st Petitioner was validly nominated as a candidate of the 2nd Petitioner for the House of Representatives Ekiti North Federal Constituency and unlawfully excluded from the said election. ”
The foregoing paragraph is irregular and erroneous and such irregularity could inhibit the determination of the real issues in controversy, the Tribunal granted the amendment to correct same.
The mistake was that of counsel and same must not be visited on the litigant. The alteration has not introduced new issues and/or substantially altered the facts of the petition. The amendment was made to the area referred to in the petition as –
“Grounds and Facts upon which this Petition relies” (Vide page 3 of the Record)”
The only ground of the petition is unlawful exclusion of the 1st Petitioner as the validly nominated candidate of the 2nd Petitioner.
The only relief claimed was tagged (b) under the grounds and facts namely-
“That the election was invalid by reason of and/or substantial non-compliance with the provisions of the Electoral Act 2006 and its guidelines.”
The learned counsel explained further that due to computer errors and omissions “Relief sought” was deleted as the title for the prayer and erroneously tagged (b). The letters (a) and (b) omitted was occasioned by error of computer printing and production as against the true representations of the Petitioners’ case. By Paragraph 27(1) and (2) of the 1st Schedule to the Electoral Act 2006, the particular relief is cognizable. The objection of the Appellants is a technicality fashioned to defeat the cause of justice. The learned counsel referred to cases: Nwobodo v. Onoh (2007) 3 EPR 180 at Pg, 190 R.15; Moddibo v. Haruna (2007) EPR 65 at 68; Paragraph 49(1) of the 1st Schedule to the Electoral Act 2006.
The cases relied upon by the Appellants like Jang v. Dariye (supra) is irrelevant. The 1st and 2nd Respondents urged this court to dismiss the appeal as lacking in merit.
The 3rd – 7th Respondents by way of Reply to the objection of the Appellants drew attention of court to the petition filed by the 1st – 2nd Respondents which did not seek any relief from the Tribunal. The petition ended with “Grounds upon which the Petition relies “. There was no prayer or relief in any part of the petition going by pages 1-3 of the Record. In the proposed amended petition at pages 117-129 of the Records – the Petitioners put in a new heading – “Relief sought” which was not in the original petition sought to be amended. The Petitioner did not comply with the mandatory provision of paragraph 4(1)(d) of the 1st Schedule to the Electoral Act 2006 in their original petition and they introduced it in their proposed amended petition. In the original petition filed on 21/5/07 the Petitioners relied on two grounds stated in paragraph 9 of the petition as-
“The grounds upon which the petition relies are –
(a) The 1st Petitioner was validly nominated as a candidate of the 2nd Petitioner for the House of Representatives in Ekiti North Federal Constituency and unlawfully excluded from the said elections.
(b) That the election was invalid by reason of and/or substantial non-compliance with the provisions of the Electoral Act 2006 and its guidelines. ”
In the Amended petition the Petitioners/Respondents stated only one ground for their petition as follows-
“The 1st Petitioner was validly nominated as a candidate of the 2nd Petitioner for the House of Representatives in the Ekiti North Federal Constituency 1 but unlawfully excluded from the said election. ”
The departure from the two grounds in the original petition to one ground in the amended petition has substantially altered the grounds on which the petition is based. The alteration affects the locus standi of the 1st Petitioner/Respondent. It changes the petition from that of a person who claimed to have been a candidate at and contested the election in question to that of a person who is only claiming that he did not contest the election because he was validly nominated but unlawfully excluded from the election. The substantiality of amendment have produced contradictory representations and also changed the entire cause of action in the proceedings. The amendment has brought about substantial alterations in the facts supporting the grounds of the petition.
In paragraph 1 of the original petition the 1st and 2nd Petitioners/Respondents averred as follows –
“Your 1st Petitioner Simeon Aderemi Adeyanju was a House of Representatives candidate in Ekiti North Federal Constituency 1 of Ekiti State at the National Assembly election held on 21st April 2007 and contested the said election on the sponsorship of his party Action Congress.”
In paragraph 1 of the Amended Petition the 1st and 2nd Petitioners/Respondent averred as follows-
“Your 1st Petitioner, Simeon Aderemi Adeyanju was a House of Representatives candidate of Action Congress for Ekiti North Federal Constituency 1 of Ekiti State for the National Assembly election held on 21st April 2007.”
In paragraph 1 of the original petition – the 1st Petitioner/Respondent averred that he actually contested the election in question, but in the amended petition alleged that he was only a candidate at the election. After the expiration of thirty days allowed to present an election petition, any amendment brought by the Petitioner must be subjected to what is allowed by Paragraph 14 (2) of the 1st Schedule to the Electoral Act 2006. The amendment allowed by the Tribunal on 7/9/07 had the undermention features-
(a) It introduced a requirement which was not in the original petition filed.
(b) It affected a substantial alteration of the grounds for the petition.
(c) It effected a substantial alteration of an addition to the statement of facts relied on to support the ground for the petition.
The 3rd – 7th Respondents finally submitted that the amendment allowed by the Tribunal contradicted the clear provisions of paragraph 14(2) of the 1st Schedule and Section 141 of the Electoral Act 2006 – and was thereby a nullity. The court is urged to allow this appeal.
I have painstakingly considered the submission of counsel for all the parties – both Appellants and Respondents in respect of the sole issue raised for determination in this appeal. As distinct from principles required for granting an amendment of pleadings in the ordinary civil proceedings, in an election petition in view of its distinct characteristics, amendment can only be granted as laid down in the Electoral Act 2006.
The enabling law is Paragraph 14(1) and (2) of the First Schedule to the Electoral Act 2006. Paragraph 14 of the First Schedule is captioned: ‘Amendment of Election Petition and Reply’.
Paragraph 14(1) states-
“Subject to sub-paragraph (2) of this paragraph the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words ‘any proceedings’ in these provisions there were substituted for the words ‘the election petition or reply’. ”
Paragraph 14(2)
After the expiration of the time limited by
(a) Section 141 of this Act for presenting the election petition, no amendment shall be made –
(i) Introducing any of the requirements of sub-paragraph 4 of this Schedule not contained in the original election petition filed or
(ii) Effecting a substantial alteration of the ground for, or the prayer in the election petition, or
(iii) Except anything which may be done under the provisions of sub-paragraph (3) of this Paragraph, effecting a substantial alteration of or addition to the statement of facts relied on to support the ground for or sustain the prayer in the election petition, and
(b) Paragraph 12 of the Schedule for filing the reply, no amendment shall be made –
(i) Alleging that the claim of the seat or office by the Petitioner is incorrect or false or
(ii) Except anything which may be done under the provisions of sub-paragraph (3) of this paragraph effecting any substantial alteration in or addition to the admissions or denials contained in the original reply filed or to the facts set out in the reply. ”
It must be noted that the jurisdiction of an election tribunal to deal with election matters is of very special nature different from that in ordinary civil cases. The provisions for which special provisions are made under the Electoral Act and the Constitution. Any slightest default in complying with a procedural step which otherwise either could be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. Though it is imperative that the procedure laid out in the Electoral Act 2006 must be strictly complied with – the court has to be cautious so that the rules of evidence which should be strictly adhered to are not invoked or employed to perpetrate injustice as justice of a case must be the paramount consideration Buhari v. Yusuf (2003) 14 NWLR Pt. 847 Pg. 446; Abubakar v. INEC (2004) 1 NWLR Pg. 854 Pg. 207; Samamo v. Anka (2000) 1 NWLR Pt. 640 Pg. 283; Haruna v. Moddibo (2004) 16 NWLR Pt. 900. The grouse of the Appellants and the 3rd – 7th Respondents are that as opposed to the submission of the Petitioners/Respondents that the amendment was meant to correct errors, mistakes and grammatical irregularities occasioned by counsel and computer printing and production, the amendment granted by the lower tribunal substantially and radically altered the grounds or prayers in the petition as follows:
(1) It added new facts to support ground (a) of the original petition contrary to paragraph 14(2) of the First Schedule to the Electoral Act 2006.
(2) Petitioners/Respondents failed to specify the relief sought in the original petition which is now introduced in the amendment and in breach of a statutory requirement – Paragraph 14(2)(a)(1) of the First Schedule.
(3) Application was brought forty days after the presentation oft he Electoral Petition contrary to Section 141 of the Electoral Act 2006 – which limited the period of amendment to 30 days.
(4) The amendment cannot be granted as it affects an omission to specify mandatory requirements of a petition which is being challenged to establish competency of the petition. Cases were referred to Ojukwu v. Onwudiwe (1984) 1 SCNLR Pg. 247 at pages 277-278; PDP v. Haruna (2004) 16 NWLR Pt. 900 Pg. 597.
The lower tribunal in its Ruling concluded that though there was an amendment to paragraph one of the original petition it has not introduced anything new to the proposed amendment so as to offend paragraphs 4 and 14 of the First Schedule. Further that the amendment in paragraph 3 has not introduced anything new into the petition going by paragraph 9 (b) of the original petition. Finally that the amendment to the relief sought, going by paragraphs 9(a) and (b) of the original petition has riot introduced any new substance. The lower Tribunal consequently over-ruled the objection. I agree and without belabouring the issue in this appeal that this court has to determine whether the amendment sought contravened paragraph 14(2) of the First Schedule to the Electoral Act 2006 and paragraph 4(1) of the First Schedule.
Paragraph 4(1) of the First Schedule provides as follows-
“An election petition under this Act shall-
(a) specify the parties interested in the election petition;
(b) specify the right of the Petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election, and
(d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the Petitioner. ”
By virtue of paragraph 4(1) (a) – (d) of the First Schedule to the Electoral Act 2006 mandatory contents of an election petition are specified.
The Applicants, the Petitioners/Respondents sought this amendment so as to comply with the mandatory content of a petition which was left out by the former counsel in the presentation of the petition. The new counsel discovered errors, mistakes and irregularities in the petition already presented by the former counsel. Of importance and equally note worthy is the fact that paragraph 14(2) (a) (1) does not allow any amendment introducing any requirements of paragraph (1) of Paragraph 4 of this schedule not contained in the original petition filed. As such amendment cannot be affected after the expiration of the 30 days for the filing of the petition by virtue of Section 141 of the Electoral Act 2006. The contents of the original petition are at pages 1 – 4 of the Record and the amended petition at pages 117 – 129 of the Record. A cursory comparison of both the original and amended petition reveal the under mentioned facts –
(1) The original petition did not plead the “Relief sought” by the Petitioners. It ended at grounds upon which the petition relies on. Whereas the amended petition pleaded relief sought properly.
It is however note worthy that the content of the Relief sought in the amended petition forms part of the grounds upon which the petition relies on in the original petition. There are no averments of new facts in the amended petition. The relief sought was already pleaded in paragraph 9(b) of the original petition and not an addition of a new fact.
Paragraph 1 of the original petition reads –
“Your 1st Petitioner Simeon Aderemi Adeyanju was a House of Representative candidate in Ekiti North Federal Constituency I of Ekiti State at the National Assembly election held on the 21st April 2007 and contested the said election on the sponsorship of his party Action Congress.”
In the amended petition paragraph 1 reads-
“Your 1st Petitioner Simeon Aderemi Adeyanju was a House of Representative candidate of Action Congress for Ekiti North Federal Constituency 1 of Ekiti State for National Assembly election held on the 21st April 2007. ”
In the original petition the 1st Petitioner averred that he contested the election of the 21st of April 2007 as a candidate of the Action Congress, whereas in the amended petition he averred that he was a House of Representative candidate of Action Congress for the National Assembly election held on the 21st of April 2007.
The 1st Petitioner abandoned the averment that he actually contested the election in paragraph one of the original petition for being a candidate at the election in the amended petition. This has to my mind constitutes a material alteration of the facts pleaded in the petition.
In paragraphs 9 (a) and (b) the Petitioners in the original petition have two grounds upon which the petition relies – but in the amended petition only one ground is retained – while paragraph 9 (b) has now become the relief sought in the petition. The Petitioners/Respondents failed to state the relief they are seeking from the Tribunal in the original petition. In the Amended petition the relief sought is averred contrary to the provisions of paragraphs 14(2)(a)(i) and 4(1)(d) of the First Schedule to the Electoral Act 2006.
I agree with the view that the alteration to the paragraphs 1 and 9 of the original petition has substantially affected the locus standi of the 1st Petitioner. The petition has changed from that of a person who claimed to have been a candidate at and contested the election to that of a person now claiming to have been validly nominated but was unlawfully excluded from the election.
Ground 9(b) is now the relief sought which is that the election was invalid by reason of and or substantial non-compliance with the provisions of the Electoral Act 2006 and its guidelines. The foregoing in the original petition is a cause of action which is that of non-compliance with the provisions of the Electoral Act 2006 and the exclusion of the 1st Petitioner from the election. The cause of action as represented in the amended petition is that of exclusion of the 1st Petitioner from the election. The above alteration will undoubtedly affect the fact in support of the grounds relied upon in the petition. Paragraph 9(b) in the Amended petition is not really pleaded as Relief Sought but bears all the trait of a ground on which the petition is based. There is no actual fact no relief sought in the amended petition. This contravenes Paragraph 4(1)(b) of the First Schedule.
Finally in paragraph 3 of the original petition the Petitioners pleaded that –
“The 2nd Petitioner sponsored the 1st Petitioner for the post of a Representative in the House of Representative at the National Assembly to represent Ekiti North Federal Constituency I Ekiti State.”
In paragraph 3 of the Amended Petition the Petitioners averred as follows-
“The 2nd Petitioner sponsored the 1st Petitioner for the post of a Representative in the House of Representative at the National Assembly to represent Ekiti North Federal Constituency I Ekiti State
When the Petitioners suspected that the 3rd Respondent was not going to allow the 1st Petitioner, as the 2nd Petitioner’s candidate in the said Federal Constituency and in the aforesaid election the Petitioners explored legal option which turned in their favour. The 3rd Respondent excluded the name of the 1st Petitioner from the list of the candidates for the election that held on 21st April 2007 and thus prevented him from participating in the election as a candidate of the 2nd Petitioner notwithstanding a court judgment directing them so to do and due notice thereof The enrolment of the said order in Suit FHC/AK/CS/32/07 Action Congress & Anr. v. INEC & Anr is hereby pleaded.”
By the foregoing the Petitioners introduced facts in the amended petition which was not contained in the original petition. This is a substantial alteration of the facts averred in the original petition. The Petitioners decided to plead evidence and not facts in the amended petition. Paragraph 14(1) and (2) of the First Schedule of the Electoral Act 2006 allows for the indulgence of an amendment to the Petition and Reply and that provisions of , the Civil Procedure Rules should apply, by virtue of Paragraph 50 of the First Schedule, the practice and procedure in the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules of the Federal High Court shall apply with such modification as may be necessary to render them applicable. The exercise of such right to amend is curtailed after the expiration of the time limited by Section 141 of the Electoral Act for presenting a petition and no amendment shall be made affecting Paragraph 4 (1) of the First Schedule to the Electoral Act not already in the original petition filed. The amendment to paragraphs 1, 3 and 9 of the original petition are in breach of the provisions of Paragraph 14(2) (a) (i) and (ii), and Paragraph 4(1) (b) and (d) of the First Schedule of the Electoral Act 2006. Moreso when the application was filed, the time for presenting a petition and making any amendment to same had lapsed. Under Section 141 of the Electoral Act the time is thirty days. After the period allowed by Section 141 of the Electoral Act – no amendment can be made to the petition beyond the scope of amendment allowed by paragraph 14(2) of the 1st Schedule to the Electoral Act 2006.
In the instant appeal the result of the election was declared on the 21st of April 2007. The time for presentation of the petition by the 1st and 2nd Respondents expired on the 21st of May 2007. They filed their application for an extension of time to amend their petition on the 9th July 2007, forty days after presentation of the petition.
The application ought not to have been entertained for being filed outside the statutory period. The Appellants had at that time challenged the competence of the petition by filing a Notice of Preliminary Objection for failure to specify the mandatory requirements of the petition in accordance with Paragraph 4(1) (b) and (d) of the First Schedule. It is the submission of the learned counsel to the Petitioners/Respondents that under paragraphs 43(1) and 49(1) of the 1st Schedule to the Electoral Act 2006 and the guideline, that the Tribunal is vested with the discretionary power to grant an extension of time for bringing an application in deserving cases like in the amendment now being sought. By virtue of Section 43(1) –
“lectoral Act 2006; and
The Tribunal or court shall have power, subject to the provisions of Section 141 of this Act and paragraph 14 of this Schedule to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this Schedule. “
43 (2)
“An enlargement of time may be ordered although the application for the enlargement is not made until the expiration of the time appointed or allowed.”
By virtue of Section 49 (1) of the First Schedule to the Electoral Act 2006 –
“Non compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative except otherwise or implied, shall not render any proceedings void, unless the Tribunal or court so directs, but the proceedings may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner or on terms as the Tribunal or court deems fit and just the foregoing sections are not applicable to this appeal.”
By the community reading of Section 141 of the Electoral Act 2006 and Paragraph 14 of the First Schedule to the Electoral Act applications for amendment of an election petition can be classified into two – namely:
(a) Applications before the expiration of the time allowed for presenting a petition provided under Section 141 of the E(b) Applications for amendment brought after the expiration of thirty days provided under Section 141 of the same Act.
Application for an amendment of a petition brought within the thirty days period for presenting an election petition can easily be granted – while an application for amendment brought after the expiration of thirty days is subject to restrictions provided under Paragraph 14(2) of the First Schedule to the Electoral Act 2006. In the instant appeal to allow the amendments granted by the lower court to stand will clearly and substantially affect the petition after the time limited by Section 141 of the Electoral Act 2006 had expired. The provision of Paragraph 14(2) (a) (i) – (iii) of the First Schedule divested the tribunal of jurisdiction to grant the proposed amendment to paragraphs 1, 3 and 9 of the original petition. Any amendment made in breach of the statutory requirements relating to amendment should not be allowed. See Udonte v. Bassey (1999) 5 NWLR Pt. 604 Pg. 610; Dang v. Dariye (2003) 15 NWLR Pt. 843 Pg. 436; Opia v. Ibru (1992) 3 NWLR
Pt. 231 Pg. 658; Yusuf v. Obasanjo (2003) 16 NWLR Pt. 847 Pg. 554; Okereke v. Yar’Adua (2008) 6 NWLR Pt. 1082 Pg. 37.
Finally there is still a dirth in the mandatory content of an election petition which is not in the original petition or proposed amended petition. In line with Paragraph 4(3)(a) of the First Schedule-
“The election petition shall further
(a) conclude with a prayer or prayers as for instance, that the Petitioner or one of the Petitioners be declared validly elected or returned having polled the highest number of lawful votes cast at the election or that the election may be declared nullified as the case may be.”
In the instant petition – such concluding prayer should have been hinged on nullification of the election as he w as validly nominated but unlawfully excluded from contesting.
In the final analysis the amendment granted by the lower Tribunal clearly contradicted the express provision 0f the Electoral Act 2006 – Paragraph 14(1) and (2) of the First Schedule and Section 141 of the Electoral Act. Accordingly, the application of the Petitioners/Respondents is statute barred and completely devoid of merit. This appeal is allowed. The Ruling of the lower Tribunal and the order made allowing amendment to the petition is set aside. Costs of N20,000.00 is awarded to the Appellants.
IGNATIUS IGWE AGUBE, J.C.A: I have had the privilege of reading in advance the draft of the judgment just delivered by my Lord the P.J. Adekeye, J.C.A. and there is no reason why I should differ from her reasoning and conclusion in this appeal.
Ordinarily, Election Tribunals are vested with inherent powers to enlarge time within which parties before them can do certain things. As far as Amendment of petition is concerned, paragraph 14 (1), of the 1st schedule to the Electoral Act 2006 confers the tribunal with powers to amend by the application of the Civil Procedure Rules.
The General rule on amendment under the civil procedure Rules as was held in the Supreme Court case of IPADEOLA & ANOR VS. ABIODUN OSHOWOLE (1987) 5 S.C.N.J 200 at 203 is that it is within the power of the Court to grant an amendment even if the amendment would add to the existing cause of action or substitute there for a new cause of action provided the additional or the new cause of action arises out of the same or substantially the same facts as are contained in the pleadings.
In OJAH VS. OGBONI & ORS (1976) 1 N.M.L.R. P 95, the Supreme Court again was of the view that as a general rule, amendment should be allowed for purposes of determining the real questions to be tried between the parties unless such amendment will:-
(a) Prejudice, the Respondent or wrought injustice on him.
(b) The applicant is acting mala fides or by his blunder has caused the Respondent some injury by which he cannot be assuaged in monetary terms or costs. See OGUNTIMEHIN VS. GUBERE (1964) 1 ALL N.L.R. 176 and AMADI VS. THOMAS APLIN & CO. LTD. (1972) 1 ALL N.L.R. 409.
The object of Courts and indeed Election Tribunals is to decide the rights of parties and not to punish them for mistakes which they make and where an application for amendment is not fraudulent or intended to overreach; the Court ought to correct any errors or blunders committed by parties provided injustice is not done to the rival party.
Where for instance, prima facie a party has couched his pleadings in a manner which will not lead to the proper determination of the real question in controversy, it is his right to have it corrected provided that injustice is not done to his opponent. See the dictum of Bowen L.J. in Cropper Vs. Smith (1884) 26 Ch. D. 700, 710 and 711 which has been followed in several Supreme Court cases on amendment of pleadings.
The above not withstanding even under the General Principles enunciated above there are exceptions to the limit within which amendments can be granted.
Where, for instance an amendment is immaterial to the case, or is circumscribed by a statute as in our instant appeal where paragraph 14(2)(a) and (b) of the 1st Schedule to the Electoral Act, 2006, proscribes amendment in mandatory terms after the expiration of the time limited by Section 141 of the Electoral Act, 2006 for presenting Election petition which includes:-
(1) Introduction of any of the requirements of sub paragraph (1) of paragraph 4 of the 1st Schedule not contained in the original petition; or
(2) effects a substantial alteration of the ground for, or the prayer in, the election petition; or
(3) effecting a substantial alteration of or addition to, the statement of facts relied on to support of the ground for or sustenance of the prayer in the election petition.
In CHATJOK VS. KATTO (1993) 3 N.W.L.R. (Pt 594) 220, Section 88 of Decree No 36 which is in pari materia with the schedule that has fallen for interpretation, fell for interpretation where an amendment was sought after the time limited by the Decree and it was held that the petitioner could not amend the petition.
See again, UMAR VS. ONIKATA (1999) 3 N.W.L.R. (Pt 558) 400, where it was held that even though the High Court Civil Procedure Rules applied mutatis mutandis to election proceedings and amendment could be granted at any stage of the proceedings subject to terms or costs or otherwise as may be deemed just, by virtue of sub paragraph (2) of paragraph 15 of the schedule to Decree No. 38 of 1998 applications to amend, in relation to parties must be brought within 14 days as prescribed by Section 82 of the Decree.
In this case since the Respondents then Applicants in the lower tribunal sought the amendment to include:-
(1) Relief sought when there was no such Relief in the original petition;
(2) Altered substantially the grounds for the petition and their locus standi;
(3) Introduced facts which substantially altered the facts originally pleaded;
(4) The amendment was brought 40 days after the presentation of their petition; the application for amendment was brought in patent violation of paragraph 14(2) of the 1st Schedule to the Electoral Act 2006 and paragraph 4(1)(b) and (d). of the First Schedule to the Act.
My Lord in the Lead Ruling is therefore on firm ground that the amendment is statute barred. In WELDON VS. NEAF (1887) 19 QBD 394 at 395, the point was emphasized that an amendment, the effect of which will revive a claim that is statute barred will not be allowed. See OBASANJO VS. FALAE (1999) 6 N.W.L.R. (Pt. 606) 183.
There is no need to belabour the point that Election Petition Proceedings are sui generis and that where the time for doing anything is limited by the provisions of the Electoral Act the time cannot be extended by the tribunal or the Appellate Court except a party fulfils the conditions laid down for the extension of time for the doing of the act.
On the whole, I agree completely with my Lord the PJ. that the amendment sought and granted in the lower tribunal changed the character of the original petition and in breach of section 141 of the Electoral Act and paragraphs 14 (2) (a) – (b) of the First Schedule to the Act and accordingly it ought to be dismissed.
The Appeal is also allowed and I abide by all the consequential orders setting aside the Ruling of the Lower Court including costs of N20,000.00 in favour of the Appellants.
CHIMA CENTUS NWEZE, JCA: My Lord, Adekeye JCA, graciously obliged me a perusal of the leading judgment just delivered. I am persuaded by its compelling reasoning and unanswerable conclusion.
The sequence of events that culminated in the present appeal has been admirably captured by my Lord in the said leading judgment. I will, therefore, not embark on any wearisome iteration of those events. However, I would like to make a few points in furtherance of my endorsement of His Lordship’s position.
In the first place, it can not be gainsaid that post – election adjudication has been accorded a primacy of place in our adversarial system of justice. This is due in part to the fact that election petitions attract emotional interests, PPA v Saraki (2007) 17 NWLR (Pt. 1064) 453, 479. Above all, they are said to be sui generi considering their public policy implications, Ngige v Obi (2006) 1 NWLR (Pt. 999) 1. In consequence, technical rules no longer play a dominant role in such proceedings, Ngige v Obi (2006) 1 NWLR (pt. 999) 1. That explains why technicalities will not be allowed to unduly fetter the jurisdiction of an election tribunal, Nwobodo v Onoh (2004) 10 WRN 27, 173.
However, with the advantage of hindsight, it has become evident that one ubiquitous feature of the administration of electoral justice is the question of delay in the disposal of petitions. Such delays, more often than not, eventuate from the unwholesome antics of some counsel who canvass all sorts of reasons just to filibuster proceedings. In an attempt to obviate such antics and to fast-track the administration of election adjudication, certain novel features have been introduced in the Constitutive Act. One of such features is the imposition of limitation periods for the amendment of pleadings.
Section 141 of the Electoral Act, 2006 has a terse, but far reaching provision: “an election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared”.
Paragraph 14 (2) (a) (i) (ii) and (iii) of the First Schedule to the Act impose restrictions on a petitioner who wishes to effect amendments to his petition. For their bearing on this appeal, the provisions are set out hereunder: 14
(2) After expiration of the time limited by:
(a) Section 141 of this Act for presenting election petition, no amendment shall be made:
(i) introducing any of the requirements of sub-paragraph (1) of paragraph 4 of this schedule and not contained in the original Election petition filed, or
(ii) effecting a substantial alteration of the ground for, or the prayer in, the election petition, or
(iii) except anything which may be done under the provisions of subparagraph (3) of this paragraph, effecting a substantial
alteration or addition to, the statement of facts relied on to support the ground for, or sustain the prayer in the election petition …
The above provisions trace their roots to section 132 and paragraph 14(2) of the First Schedule to the Electoral Act, 2002.
The 2002 Act fell for construction in many cases which the leading judgment has insightfully highlighted. I shall only refer to two of them to underscore the cogency of the provisions.
In Dickson v Balat (2004) 1 EPR 243 at 276, it was held that “the time prescribed by the Electoral Act in its section 132 for bringing an election petition is 30 days. And after the expiration of the period for presentation of an election petition no substantial or material alteration can he made to the petition”. Equally in Yusuf v Obasanjo (2004) 1 EPR 467 at 499, Tobi JSC did a joint interpretation of paragraph 14(2) of the First Schedule and section 132 of Electoral Act, 2002 (in pari materia with paragraph 14(2) and section 141 of the Electoral Act, 2006). He re-iterated the position that substantial amendments will not be allowed after the expiration of the period of thirty days following the presentation of the petition. As already shown in the leading judgment, the result of the election – the cassus belli in the proceedings that prompted this appeal – was declared on April 21, 2007. The time for presentation of the petition expired on May 21, 2007. The first and second respondents filed their application for extension of time to amend their petition forty days after the presentation of the petition. The comeuppance for their lethargy in bringing the application is that the lower Tribunal ought to have visited them with the restrictions provided under paragraph 14(2) supra. The Tribunal failed to do this. It rather wrongly assumed jurisdiction. That explains why the leading judgment set aside its ruling and the order made allowing the amendment to the petition. I entirely endorse this conclusion. I shall abide by the order for costs in favour of the appellants.
Appearances
Mr. Bamidele OmotosoFor Appellant
AND
Mr. Biodun Fashakin;
Mr. Ndue Melah;For Respondent
