SAHEED RAHUF KEKERE-EKUN v. MONSURU ALAO OWOLABI AND 160 ORS (2010)

SAHEED RAHUF KEKERE-EKUN v. MONSURU ALAO OWOLABI AND 160 ORS

(2010)LCN/3674(CA)

In The Court of Appeal of Nigeria

On Monday, the 26th day of May, 2008

CA/L/EPT/LAS/NA/07/08

RATIO

PLEADINGS: ESSENCE AND NATURE OF AMENDMENT OF PLEADINGS

Amendment is an essential handmaid of justice. Amendments are of different types depending on the nature and extent of the proposed amendment. (Refer: Black’s Law Dictionary supra @ Pg.89).

The germaine purpose of amendment is to attain justice and fair play (Refer: – Okafor Vs Ikeanyi (1979) 3 – 4 SC 90 @ 106, University of Lagos Vs Aigoro (1989) 1 NWLR Pt.1 Pg.143 @ 148.

The general purpose of an amendment in ordinary cases is to bring the pleadings within the scope of the evidence adduced in Court. That is the type of amendment which generally can be made at any time before judgment as by correcting an otherwise obscure averment and making same more explicit. That type of amendment seldom causes any prejudice as in adjudicatory discomfort/inconvenience to the other party.

The other kind of amendment which would normally elicit an objection is that which seeks to introduce new subjects e.g. by the alteration and or inserting new matters in the pleadings/notice of grounds of appeal. Such an amendment is allowed before the parties join issues as in the filing and exchange of pleadings. The third kind which could be vehemently objected to is that which introduces new subjects at the time the evidence of both parties have been adduced and the matter closed, perhaps for address. The adduction of additional oral evidence is often involved. Sometimes, entirely new averments which radically change the content of the case could be involved and are often referred to as amendment by substitution. The objection of the opponent could be very well founded in that the probability of the opponent being prejudiced is ominous.

A fourth kind is one after Judgment at the instance of the Judge or upon observation by learned Counsel at the pronouncement of the Judgment in most cases to correct a slip in the Judgment itself (See generally, First Bank of Nigeria Plc Vs May Med. Clinics and Diagonistics Centre and Anor. (1996) 9 NWLR (Pt.471) P.201, Paragraph D.)

One undeniable feature of amendment is the delay it causes in the quick dispensation of justice. The argument is then advanced that justice must not be sacrificed on the alter of speed, The counter-part of which is that justice delayed is justice denied.

These principles are modified in electoral matters. (Refer:- Engr. Nura Khalil vs Alh. Umaru Musa Yar’Adua and 7 Ors. (2003) 16 NWLR (Pg.446) @ 482 and Alh. Mohammed Dikkko Yusuf and Anor Vs Chief Olusegun Aremu Okikiola Obasanjo and 56 Ors. (2003) 16 NWLR (Pt.847) Pg.532 @ 547). Speed is an essential element in election matters. Entire communities as opposed to individuals, are involved, Election matters are sui generis, in a special class, This explains why there is an Electoral Act which incorporates a procedure for the determination of electoral cases. PER MONICA BOLNA’AN DONGBAN-MENSEM J.C.A.

ELECTORAL MATTERS: EXPEDICIOUS NATURE OF ELECTORAL MATTERS

The case of Femi Ikuomola Vs Alh. Ganiyu Alani Ige and 3 Ors. (supra) recognizes the expedicious nature of electoral matters and resorted to the Rules of the Court of Appeal with moderate modification. In the said case, the Notice of Appeal and the brief were required to be filed on the same date with military dispatch. Election matters were to be and indeed were heard and determined within 30 days (Refer:- section 132 of the Electoral Decree). An application which seeks to enlarge an otherwise abridged time by double the period allowed is most certainly not comparable with the situation in the Ikuomola case (supra).

In a nation where election matters can linger on for four years, a strict adherence to Practice Directions as to time is imperative. In the circumstance, such adherence cannot be tantamount to uplifting technicality over the interest of justice. I respectfully posit that obedience of and the application of the Practice Direction would rather uphold the interest of justice This I humbly reason, explains the purport of the decision of the Supreme Court in the case of Nigerian Airports Authority Vs Chief Okaro (1995) 6 NWLR (Pt.403) Pg.510 @ 522-523; (1995) 7 SCNJ – Per Uwais, JSC.

A provision allowing amendment, which no doubt causes delay would therefore be out of tone with the Practice Directions No 2 of 2007. From the inception of an election petition to its conclusion and then to the appeal, time is abridged. The special procedure of front-loading at the trial Court is a time saving device. PER MONICA BOLNA’AN DONGBAN-MENSEM J.C.A.

JUSTICE

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

SAHEED RAHUF KEKERE-EKUN Appellant(s)

AND

1. MONSURU ALAO OWOLABI AND 160 ORS.
2. INDEPENDENCE NATIONAL ELECTORAL COMMISSION (INEC) AND 159 ORS.Respondent(s)

MONICA BOLNA’AN DONGBAN-MENSEM J.C.A.: (Delivering the Leading Judgment): The application filed on the 10th April 2008 and argued before us on the 12th day of May 2008 seeks the following reliefs:-
“(1) AN ORDER allowing the Appellant to amend the grounds of appeal in the Notice of Appeal herein in terms of Exhibit “B” to the Affidavit hereto titled “Proposed Amended Grounds of Appeal;
(2) AN ORDER deeming as having been properly filed and served the Amended Grounds of Appeal already filed herein;
(3) AN ORDER for extension of time within which the Appellant/Applicant may file and serve his Appellant’s Brief of Argument herein;
(4) AN ORDER deeming the Appellant’s Brief of Argument already filed herein as having been properly filed and served; AND SUCH FURTHER and/or other Order or Orders as may seem fit in the circumstances”.
The application has, filed in its support, an affidavit of nine (9) paragraphs to which are annexed four exhibits marked A – D. Special reliance is placed on paragraphs 3 – 7 which paragraphs convey the reasons for the amendment.
When the learned senior Counsel for the Applicant Mr. B.A.M. Fashanu introduced the subject, his learned brother in silk, Prof. Osipatan indicates his reservation about the 1st prayer which seeks an amendment of the grounds of appeal.
The learned senior Counsel for the Applicant cites order 6 Rule 4 of the Court of Appeal Rules 2007 and Rule 51 of the Rules of Procedure of the Electoral Act 2006 as the guo-warranto of the relief sought in prayer one; for amendment of the grounds of appeal. Also cited in support of the application is the case of Solanke Vs Somefun (1974) 1 SC 141. The learned senior Counsel later forwarded additional authorities after the matter was adjourned for Ruling. These are: –
(1) Densa Eng. Works Ltd. Vs U.B.N. Plc. (1999) 1 NWLR (PT.585) 162
(2) Femi Ikuomola Vs Alh. Ganiyu Alani Ige and 3 Ors (1992) 4 NWLR (Pt236) Pg.511 @ 520H (CA)
(3) University of Lagos Vs Aigoro (1984) A.N.L.R 394 @ 416 (SC) and Page 89 of the eighth Edition of Black’s Law Dictionary in which the definition of amendment by substituting was highlighted.
It is the submission of the learned senior Counsel that an amendment can be by substitution not merely by adding, altering and subtraction and that when an amendment is done, it dates back to the date of filing the process. The learned senior Counsel urged us to jettison technicality and determine the appeal on the merit by allowing the substitution of the grounds of appeal.
It was also the submission of the learned senior Counsel that the appeal was filed within time therefore, a refusal of this application will not affect the appeal.
The learned senior Counsel for the 1st Respondent, Prof. Osipitan submits that the Court of Appeal Rules 2007 is not applicable and that the provisions of Rule 51 is superceded by the Practice Direction No.2 of 2007.
The learned senior Counsel maintains that the rules regulating the electoral process are meant for expedious disposal of election matters and that even Rule 51 recognizes that.
It was further the contention of the learned senior Counsel for the 1st Respondent in the alternative, that the nature of the amendment is to take out the grounds of appeal entirely and substitute them with another set of grounds of appeal. The moment those grounds are taken out, postulates the learned senior Counsel, there is no notice of appeal. Since all the grounds are new, the appeal is filed out of time, There is no prayer for an extension of time to file the appeal and even if there were, such an application will be invalid as there is no provision for extension of time, The learned silk cites the unreported decision of the Port Harcourt Division of this Court in the appeal of Daniel Igbrubia and Anor. Vs Samuel W. Igbrubia and 3 Ors in support of his submission. A copy of the decision which was pronounced on the 10th day of December 2007 was later supplied by the learned senior Counsel. The learned senior Counsel urges us to dismiss the application.
Mr. Ezekhome for the 2nd – 161st Respondents aligned himself intoto with the submission of the learned senior Counsel for the 1st Respondent. The learned Counsel submits further that the application is incompetent and should not be granted. The learned Counsel states that the rules of Court are meant to be obeyed, Order 51 and Solanke Vs Somefun’s case (supra) concern amendment of processes generally. Election Petition is a special matter and amendment is not the same thing as substitution.
Responding on points of law, the learned senior Counsel for the Applicant maintains that the practice direction does not supercede a Rule of Court. The learned senior Counsel also dismissed the decision of the Port Harcourt Division in Daniel Igbrubia (supra) as having been made per incuriam, there being decisions of the Supreme Court to the contrary. Let me comment briefly here, that a learned Counsel of whatever status is incompetent to declare a decision of this Court to be per incuriam without having read the said judgment in full. Further, a learned Counsel can only submit and commend to a competent Court to hold a decision as being per incuriam. It is the Courts which have the prerogative to adjudge.

Amendment is an essential handmaid of justice. Amendments are of different types depending on the nature and extent of the proposed amendment. (Refer: Black’s Law Dictionary supra @ Pg.89).
The germaine purpose of amendment is to attain justice and fair play (Refer: – Okafor Vs Ikeanyi (1979) 3 – 4 SC 90 @ 106, University of Lagos Vs Aigoro (1989) 1 NWLR Pt.1 Pg.143 @ 148.
The general purpose of an amendment in ordinary cases is to bring the pleadings within the scope of the evidence adduced in Court. That is the type of amendment which generally can be made at any time before judgment as by correcting an otherwise obscure averment and making same more explicit. That type of amendment seldom causes any prejudice as in adjudicatory discomfort/inconvenience to the other party.
The other kind of amendment which would normally elicit an objection is that which seeks to introduce new subjects e.g. by the alteration and or inserting new matters in the pleadings/notice of grounds of appeal. Such an amendment is allowed before the parties join issues as in the filing and exchange of pleadings. The third kind which could be vehemently objected to is that which introduces new subjects at the time the evidence of both parties have been adduced and the matter closed, perhaps for address. The adduction of additional oral evidence is often involved. Sometimes, entirely new averments which radically change the content of the case could be involved and are often referred to as amendment by substitution. The objection of the opponent could be very well founded in that the probability of the opponent being prejudiced is ominous.
A fourth kind is one after Judgment at the instance of the Judge or upon observation by learned Counsel at the pronouncement of the Judgment in most cases to correct a slip in the Judgment itself (See generally, First Bank of Nigeria Plc Vs May Med. Clinics and Diagonistics Centre and Anor. (1996) 9 NWLR (Pt.471) P.201, Paragraph D.)
One undeniable feature of amendment is the delay it causes in the quick dispensation of justice. The argument is then advanced that justice must not be sacrificed on the alter of speed, The counter-part of which is that justice delayed is justice denied.
These principles are modified in electoral matters. (Refer:- Engr. Nura Khalil vs Alh. Umaru Musa Yar’Adua and 7 Ors. (2003) 16 NWLR (Pg.446) @ 482 and Alh. Mohammed Dikkko Yusuf and Anor Vs Chief Olusegun Aremu Okikiola Obasanjo and 56 Ors. (2003) 16 NWLR (Pt.847) Pg.532 @ 547). Speed is an essential element in election matters. Entire communities as opposed to individuals, are involved, Election matters are sui generis, in a special class, This explains why there is an Electoral Act which incorporates a procedure for the determination of electoral cases.
The Hon, President of the Court of Appeal has also in compliance with Section 148 of the Electoral Act and in recognition of the sui generis status of electoral matters, issued out Practice Directions to guide proceedings in the Court when election appeals are involved.
If the ordinary procedures where fully applicable, there would have been no need for practice directions.
Further, it is instructive that a large part of the Practice Directions No.2 of 2007 have to do with the abridgment of time in all the major steps to be taken in the hearing of Election Appeals These are all measures taken to ensure the timeous disposal of election appeals. Section 148 of the Act (supra) provides as follows:-
“148. Without prejudice to the provisions of section 294 subsection (1) of the Constitution of the Federal Republic of Nigeria 1999, an election petition and an appeal arising therefrom under this Act shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or Court.”
The case of Femi Ikuomola Vs Alh. Ganiyu Alani Ige and 3 Ors. (supra) recognizes the expedicious nature of electoral matters and resorted to the Rules of the Court of Appeal with moderate modification. In the said case, the Notice of Appeal and the brief were required to be filed on the same date with military dispatch. Election matters were to be and indeed were heard and determined within 30 days (Refer:- section 132 of the Electoral Decree). An application which seeks to enlarge an otherwise abridged time by double the period allowed is most certainly not comparable with the situation in the Ikuomola case (supra).
In a nation where election matters can linger on for four years, a strict adherence to Practice Directions as to time is imperative. In the circumstance, such adherence cannot be tantamount to uplifting technicality over the interest of justice. I respectfully posit that obedience of and the application of the Practice Direction would rather uphold the interest of justice This I humbly reason, explains the purport of the decision of the Supreme Court in the case of Nigerian Airports Authority Vs Chief Okaro (1995) 6 NWLR (Pt.403) Pg.510 @ 522-523; (1995) 7 SCNJ – Per Uwais, JSC.
A provision allowing amendment, which no doubt causes delay would therefore be out of tone with the Practice Directions No 2 of 2007. From the inception of an election petition to its conclusion and then to the appeal, time is abridged. The special procedure of front-loading at the trial Court is a time saving device.
The contention of the learned senior Counsel that the Practice Directions of the Hon. President cannot supercede the rules of procedure to the Act is a plausible argument. The Supreme Court has however declared to the contrary. The cases cited by the learned senior Counsel are not very helpful. The cases of Solanke Vs Somefun (supra) and Ikuomola Vs Ige (supra) are not applicable in the instant application. In the case of Lagos University (supra), the application before the Court was as to the constitutional status of the Practice Direction, not the status of the Practice Direction vis-a-vis the Rules enacted with the Act. In the case of AfriBank Nig Plc Vs Mr. Chima Akwara in (2006) 5 NWLR (Pt.974) Pg.619 @ 655, the Supreme Court declared that … “the Practice Directions of the Hon. President of the Court of Appeal in Election matters has the force of law although it constitutes the rules of Court in election petitions appeals … and cannot be circumvented”
The question to ask nonetheless is if amendments were an acceptable feature of the electoral process, why is there a condition attached to the provisions in Rule 51 of the Electoral Procedure Rules?
Rule 51 provides that in the application/adoption of the rules of practice and procedure in the Court of Appeal and the Supreme Court, “regard” should be “..had to the need for urgency on electoral matters,” a re-echo of section 48 of the Act 2006.
Rule 49 (4) which seems to allow amendment is coached in these terms:-
“49 (4)
An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or Court”
It is my humble view that the insertion of the phrase ” … if it is possible at the time … ” clearly indicates that there is a time when it is not possible. The caveat which ends the provisions of Rule 51 is also as to time, (emphasis mine).
Further, the spirit of the 2007 Rules of the Court of Appeal is also for the timeous determination of appeals. The economization of time, the premium usage of time is therefore the theme of electoral procedural rules. Under the 2007 Rules of this Court, there is a serious consequence for the failure to comply with the time provided for taking steps; dismissal is the fate of such appeals (Refer Order 8 Rules 4 and 18). These Rules are of course applied judicially and judiciously as the facts and circumstances of each case warrant.
The essence of time must necessarily be implied in the non-provision for amendment of the Notice of Appeal in the Practice Directions No, 2 of 2007. Even if the ordinary rules of this Court where to apply I dare say with respect that amendment must be done within the period of 21 days allowed to file the appeal. The Supreme Court has also held that in election matters an application for amendment must be made within the time provided by the rules, (Refer: – the case of Alh. Mohammed Dikko Yusuf vs Obasanjo (2003)16 NWLR (Pt.847) Pg.554 @ 636-637).
Has the applicant placed himself favourably before this Court to deserve the exercise of discretion to his advantage?
The learned senior Counsel cites the provisions of orders 6 Rule 4 and 7 Rule 10 as implied supplements to the Practice Directions No.2 of 2007.
Both rules repose in the Court, the discretion respectively to allow the Appellant to amend the grounds of appeal and to enlarge the time within which to do that which he needs to do. Order 7 Rule 10 (2) states the conditions upon which the discretion can be exercised. To exercise this discretion judicially and judiciously, we must dispassionately apply the rules to the facts deposed to in the affidavit in support of the application.
The affidavit which consists of nine paragraphs was deposed to by one Ukpabio Okon, Male, Nigerian citizen and litigation clerk of 8 St. Agnes Street Yaba, Lagos State.
Paragraph 6 (i) cites the late procurement of the Judgment of the Tribunal while 6 (ii) shows that the learned senior Counsel was represented in Court when the Judgment was pronounced. Paragraph 6 (iv) states the reason for the amendment which is to “reframe” and “replace” the grounds of appeal already filed.
Are these good and substantial reasons? First and foremost, it is well known to all learned Counsel participating in electoral proceedings, that time is of the essence of the proceedings. Why will a diligent learned Counsel not ensure that sufficient notes are taken from the Judgment pronounced?
The next hurdle the Appellant must cross and as rightly alluded to by Prof. Osipitan SAN for the 1st Respondent, is the competence of the Notice of Appeal if all the grounds are substituted. The learned senior Counsel for the Appellant has admitted that what he seeks to do is to substitute and replace entirely the original grounds of appeal and insert completely new set. To the layman, this could be seen as a very easy task. In law however, it is an easy task with fatal consequences.
The legal implication of such an act is that when the old grounds of appeal are removed, the Notice of Appeal would have no legal legs, no support to stand on. The new grounds of appeal will be coming in outside the prescribed time. My learned brother Garba JCA of the Port Harcourt Division captures the implication aptly as follows: –
“… What the applicants admittedly seek to do is to abandon the original grounds of appeal and in place thereof bring in fresh and completely new grounds of appeal. That is not an amendment of the Notice of Appeal but abandonment of such notice because it is the grounds that provide the life for the Notice of Appeal to properly exist and be legally valid and competent.”
(Refer: Igbrubia Vs Igbrubia (supra) @ pg.16).
There is no application placed before us for an order extending the time within which to file the appeal let alone deem same as duly filed and served. The learned senior Counsel for the 1st Respondent posits that even if there were such an application, it would be invalid as there is no provision to enlarge the time to appeal.
Prof. Osipitan SAN for the 1st Respondent and Mr. Ezekhome for the 2nd-161st Respondents each respectively submit that in the circumstance, the application is incompetent. They each urge us to dismiss the application.
A discretion to enlarge the time within which an act can be done is exercised for the attainment of a positive result. However, the exercise of discretion will lead to an absurdity if it produces no valuable remedy. That discretion must be exercised judicially and judiciously requires the employment of good reason and vision in the interest of justice. In the circumstance, the vision is blurred by incompetent processes and propositions. Justice will not be served if a discretion is exercised in futility without a remedy conferred nor would this Court be competent to exercise a discretion without authority. “Authority” here refers to a competent application being placed before the Court within the provisions of the Rules of the Court. (Refer: University of Lagos and Anor. Vs Aigoro (1984) A.N.L.R. 394 @ 416 (SC)).1st Respondent nor the learned Counsel for the 2nd – 161st Respondent. Perhaps they merited no response: the assertions.
It follows therefore that these prayers are superfluous. That which has been properly done need not be repealed. The said prayers are accordingly hereby struck out as incompetent. This however, is to fulfill all righteousness.
How can a learned senior Counsel who has declared his grounds of appeal as incompetent and seeks to replace all suddenly make a turn around back to the old grounds?
A party cannot approbate and reprobate. There must be certainty in litigation. The true position in law is that there is no appeal before us in the absence of an application for an extension of time to appeal. Such an application will of course be invalid.
Costs follow Events, consequently, a cost of N30,000.00 is awarded to each set of the Respondents and against the Appellant/Applicant.

PAUL ADAMU GALINJE, J.C.A.: I have read before now the ruling just delivered by my Learned brother Dongban-Mensem J.C.A. J.P, and I agree with the reasoning constrained therein and the conclusion arrived thereat.
My Learned brother has extensively dealt adequately with all the issues raised in this application in such a way that any further comment by me will amount to a repetition of the reasoning and conclusion in the lead ruling. Accordingly the application for extension of time filed on the 10th of April 2008 is refused and dismissed along with prayers 3 and 4. Having dismissed the application aforesaid there is no appeal before this Court.
I abide by the order of cost made in the lead judgment.

ADAMU JAURO, J.C.A.: I have read in draft the lead ruling of my learned brother, Dongban- Mensem JCA, just delivered. The ruling has beautifully and meticulously dealt with all issues raised and canvassed in the application. I am in agreement with the views and conclusions, reached therein.
The application herein seeks for an order amending the grounds of appeal in the notice of appeal, deeming the amended grounds of appeal as properly filed and served, and an extension of time to file and serve appellants brief of argument and an order deeming same as having been properly filed and served. The last two prayers are hinged on the first two prayers, in that the brief of argument sought to be filed canvassed arguments in respect of the grounds of appeal, sought to be amended.
The courts have a very wide discretion in granting or refusing leave to amend, which must be exercised judicially and judiciously. The rationale for granting leave to amend is to correct the mistakes and blunders made by parties, with a view to determining the real issues in controversy between them. An amendment will therefore not be allowed for the asking, nor will it be arbitrarily prevented. In general, the law has laid down requirements to be satisfied before leave to amend can be granted. The grant of an application for amendment is therefore not at large, and the courts will refuse to grant it in the following situations; namely where:
a) the amendment will cause injustice to a party to the proceedings;
b) the amendment will surprise or cause embarrassment to the other party;
c) the applicant is acting mala fide;
d) the applicant by his blunder has done some injury to the respondent which cannot be compensated by costs or otherwise;
e) the amendment has the effect of changing the action into one of a substantially different character;
f) the amendment will not cure the defect in the proceedings;
g) the amendment is inconsistent and useless;
h) the amendment is not material;
i) the amendment is capable of causing undue delay to the case.”
See Oduwaiye Vs Oresanya (1968) NMLR 430; First Bank of Nigeria Plc Vs May Med. Clinics & Diagnostics Centre & Anor (1996) 9 NWLR (Pt. 471) Pg. 201 and Daniel Igrubia & Anor Vs Samuel Igrubia & 3 Ors(unreported ruling of Port Harcourt division of this court in appeal No. CA/PH/EPT/334M/2007 dated 10th December, 2007)
In election cases the requirements are more stringent because of the peculiar nature of election cases, being sui generis and time is of great essence. This explains why the Practice Directions No.2 of 2007, provided for 21 days within which to file an election appeal. The applicant herein has applied to withdraw the original grounds in the notice of appeal filed, and substitute them with new grounds. To allow that will undoubtedly not only change the character of the complaint against the decision of the lower tribunal as contained in the notice of appeal and thereby surprise, and even overreach the respondents but is against the spirit of the Practice Directions No.2 of 2007.
For the above and the fuller reasons given in the lead ruling, which I hereby adopt as mine, I also dismiss prayers 1 and 2, while prayers 3 and 4 are hereby struck out. I also abide by the consequential order as to costs.
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