PRINCE SHEGUN SAMUEL SAIKI V. OLORUNTOBA BAMIDELE SIMON & ORS.
(2010)LCN/3829(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of May, 2010
CA/B/EPT/152/2008
RATIO
APPEAL: EFFECT OF AN APPEAL AGAINST WRONGFUL REJECTION OF ADMISSIBLE EVIDENCE
It is a well settled principle of law that an appeal against wrongful rejection of admissible evidence is taken as an appeal against the final judgment on the basis that the rejection of the admissible evidence has adversely affected the appellant in the final judgment. On this legal position, reliance was placed on the provisions of Section 227 of the Evidence Act and the cases of:
(1) Aregbesola v. Oyinlola (2009) 14 NWLR (Pt.1162) p. 429;
(2) Nwobodo v. Onoh (1984) 1 SCNLR 1;
(3) Onwe v. Oke (2001) 3 NWLR (Pt.700) P. 405; and
(4) Ochei v. Isichei unreported Appeal No. CA/A/143/07 delivered on 17th March, 2009. PER OYEBISI F. OMOLEYE, J.C.A.
PROCEDURE: BASIC PRINCIPLE GUIDING AMENDMENT OF PROCESSES
The basic principle guiding amendment of processes is that, an application for amendment can be made at any stage of proceedings and before judgment. Therefore, it is not in doubt that parties are entitled to apply to amend their processes at any time before judgment. In the appellate courts, notices and grounds of appeal and briefs of argument: are akin to pleadings. Hence, the granting or refusal of an application to amend them, just like all applications is at the discretion of the court. PER OYEBISI F. OMOLEYE, J.C.A.
APPEAL: WHERE IS THE RIGHT TO APPEAL DERIVED FROM
Essentially, the right to appeal is derived from the Constitution of Nigeria. This right must not be infracted in any way. It is no wonder that this fact was borne in mind by the drafters of the rules of practice and procedure of this Court, that is, the Court of Appeal Rules, 2007. PER OYEBISI F. OMOLEYE, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
PRINCE SHEGUN SAMUEL SAIKI Appellant(s)
AND
1. OLORUNTOBA BAMIDELE SIMON
2. ACTION CONGRESS (AC)
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
5. RESIDENT ELECTORAL COMMISSIONER, INEC, EDO STATE
6. ELECTORAL OFFICER (INEC) AKOKO-EDO LOCAL GOVERNMENT AREA Respondent(s)
OYEBISI F. OMOLEYE, J.C.A. (Delivering the Leading Judgment): The application dated and filed on 7th January, 2010 by the Appellant (hereinafter referred to as the Applicant) was commenced by way of motion on notice. It is praying for the following orders:
1. An order granting the Appellant extension of time within which to appeal against the judgment of the Governorship and Legislative Houses Election Petitions Tribunal (panel 2) delivered on 14th April, 2008 in EDSA/EPT/19/2007.
2. An order granting the Appellant extension of time within which to seek leave to appeal against the judgment of the Governorship and Legislative Houses Election Petitions Tribunal (panel 2) delivered on 14th April, 2008 in EDSA/EPT/19/2007.
3. An order granting the Appellant/Applicant leave to appeal against the judgment of the Governorship and Legislative Houses Election Petitions Tribunal (panel 2) delivered on 14th April, 2008 in EDSA/EPT/19/2007.
4. An order granting the Appellant/Applicant leave to further amend the Appellant/Applicant’s Amended Notice of Appeal by filing two (2) Additional Grounds of Appeal numbered as Grounds 12 and 13 and the reliefs sought in the Further Amended Notice of Appeal exhibited in the affidavit in support of this application and marked Exhibit “1”.
5. An order to deem as properly filed and served, the Further Amended Notice of Appeal exhibited in the affidavit in support of this application and marked as Exhibit “1′ the appropriate filing fees having been paid.
The grounds upon which the application is predicated are that:
1. The lower Tribunal delivered a ruling on 29th January, 2008 rejecting Forms EC8B(i); EC8A(i); EC8D(i); EC8E(i) and Appellant’s Certificate of Return of House of Assembly Election tendered by the Appellant at the trial and judgment was delivered by the Lower Court on the 14th of April, 2008.
2. The Notice of Appeal was filed on the 3rd day of May, 2008 and amended by leave of this Honourable Court on 18th March, 2009.
3. Leave of this Honurable court is required to fur1her amend the Appellant/Applicant’s Notice of Appeal out of time.
4. The proposed amendment and additional grounds of appeal relate to the lower Tribunal’s rejection and/or exclusion of admissible evidence which occasioned a grave miscarriage of justice on the Appellant/Applicant.
5. The Appellant/Applicant in the original Notice of Appeal and Amended Notice of Appeal .appealed against the rejection of only EC8A(i) and did not appeal the rejection of the other documents by the lower Tribunal.
6. That the amendments sought to be made would assist this Honourable court in effectively determining all the issues in controversy in this appeal.
The application is supported by an affidavit of ten paragraphs dated 7th and filed along with the motion on 7th January, 2010. On 26th January, 2010 a further and better affidavit of eleven paragraphs was also filed by the Applicant in reply to the counter affidavit which contains four paragraphs, filed by the 1st & 2nd Respondents. Also annexed to the application is an Exhibit marked “Exhibit 1”. Exhibit 1 is the further amended notice of appeal.
In view of the contentious nature of this application, this Court made an order for written addresses to be filed by and exchanged between parties. The learned senior counsel for both parties complied with the said order.
On the 8th of March, 2010 when the application came before this Court for hearing, the learned senior counsel for the Applicant, A.O Alegeh SAN identified the Applicant’s written address in support of the application dated 14th January, 2010 filed on 15th January, 2010, and the reply written address which was filed along with a further and better affidavit on 26th January, 2010. All these processes were adopted and relied upon by the Applicant’s learned senior counsel.
It was submitted for the Applicant that he has a right of appeal to the Court of Appeal from the Tribunal as conferred by Section 246(1) of the Constitution of Nigeria. The exercise of this right of appeal includes the right to amend and supplement his existing Notice and Grounds of Appeal.
It is a well settled principle of law that an appeal against wrongful rejection of admissible evidence is taken as an appeal against the final judgment on the basis that the rejection of the admissible evidence has adversely affected the appellant in the final judgment. On this legal position, reliance was placed on the provisions of Section 227 of the Evidence Act and the cases of:
(1) Aregbesola v. Oyinlola (2009) 14 NWLR (Pt.1162) p. 429;
(2) Nwobodo v. Onoh (1984) 1 SCNLR 1;
(3) Onwe v. Oke (2001) 3 NWLR (Pt.700) P. 405; and
(4) Ochei v. Isichei unreported Appeal No. CA/A/143/07 delivered on 17th March, 2009.
In the original Notice of Appeal and Amended Notice of Appeal the Applicant appealed against the rejection of Form EC8A(i) only but inadvertently did not appeal against the rejection of the other documents, that is, Forms EC8B(i); EC8D(i); EC8E(i) and Applicant’s Certificate of Return of House of Assembly Election which were tendered and also rejected by the Tribunal at the same time. It was only recently when the Applicant retained the firm of Alegeh & Co. and upon review of the processes, that this error was discovered. The aim of this application is to rectify the error so that the grounds of appeal can fully capture the issues arising for determination in the Applicant’s appeal and enable this Court effectively determine all the issues in controversy.
It was further argued in favour of the Applicant that the two proposed grounds raise substantial and arguable grounds of appeal. And they are germane to the holistic determination of the said appeal. What is more, the current judicial trend is to allow parties ventilate all their grievances and not to allow technicalities to fetter the exercise of the constitutional right of appeal of a party. This is of greater importance in election matters where not only the rights of the parties are in issue but also the rights of the constituents who voted at the election. It was pointed out that even the rules of courts do not limit any time period for amendment of processes or filing of additional grounds of appeal.
In the present case, the record of appeal has already being transmitted to this Court and form part of the records of this Court which it is entitled to look at in the determination of the present application. Accordingly, the issue of jurisdiction has already been raised by leave of this Court earlier and ground 13 being sought to be added is to merely add to the scope of the jurisdictional objection and affords this Court the opportunity to deal with all the ramifications of the issue of jurisdiction. The learned senior counsel for the Applicant argued that the Respondents’ interest will not be adversely affected. For there is no element of surprise on the Respondents and they will not be overreached if this application is granted.
On the other part, the learned senior counsel for the 1st & 2nd Respondents Rickey Tarfa SAN identified the counter affidavit as well as the written address of the 1st & 2nd Respondents’ in opposing this application. He adopted and relied on them in urging this Court to dismiss the application. He contended that prayers 1 to 3 are incompetent and an abuse of court process as they are praying this Court to grant the Applicant leave and extension of time to file an appeal against the judgment of the Tribunal delivered on 14th April, 2008 when there is a subsisting appeal filed by him against the same judgment vide a Notice of Appeal dated and filed on the 3rd day of May, 2008. The said appeal is still extant and pending before this Court. Indeed, briefs have long been settled by all parties and the said appeal is ripe for hearing.
It was also submitted that, the copies of the original notice of appeal, the amended notice of appeal being sought to be further amended and the interlocutory ruling being appealed not having been annexed as exhibits render the application incompetent.
Regarding prayer 4, the learned senior counsel contended that it is also incompetent as this Court cannot permit the introduction of the proposed ground number 12 without the appropriate tripod prayers. This is because the proposed ground arose from an interlocutory ruling of the Tribunal and not the final judgment. That indeed the proposed ground number 13 is aimed at buying time since all the purported issues of jurisdiction being proposed to be raised therein are issues this Court has examined and dismissed in sister appeals.
Furthermore, the learned senior counsel argued that an appeal cannot lie against an interlocutory decision in an election matter. On this position, reliance was placed on the case of: Useni v. Duke (2004) 7 NWLR (Pt.871) p.116., and on the authorities of: (1) Bounwe v. R.E.C. (2006) 1 NWLR (Pt.961) P. 286 at p. 312, paras. G-H and (2) Jang v. Dariye (2003) 15 NWLR (Pt.843) Pgs. 462-463, paras. F-C, this Court lacks the jurisdiction to extend the time within which an appeal can be filed in an election matter. However, he stated that assuming without conceding that this Court has the requisite jurisdiction to extend time within which to file an election petition appeal, such an appeal is not granted as a matter of course. The Applicant must show good cause and reason why he did not file the appeal within the prescribed time or so Soon thereafter. And no such cogent reason(s) is/are contained in the supporting affidavit stating why the appeal against the ruling of the Tribunal of 29th January, 2008 was not filed within the twenty days allowed by Section 149 of the Electoral Act, 2006 and the Practice Directions, No.2, 2007. This argument was rested upon the, case of C.B.N. v. Ahmed (2001) 11 NWLR (Pt. 724) p. 369 at pgs. 391 – 392 paras. C – E. He stressed further that this application is a ploy aimed at frustrating the expeditious resolution of the main appeal in which long before now all the parties have filed their respective briefs of argument He submitted that although the case of: Ochei v. Isichei supra not relevant to the instant matter.
It is pertinent to state that the learned counsel for the 3rd :and 4th – 6th Respondents did not oppose this application.
The basic principle guiding amendment of processes is that, an application for amendment can be made at any stage of proceedings and before judgment. Therefore, it is not in doubt that parties are entitled to apply to amend their processes at any time before judgment. In the appellate courts, notices and grounds of appeal and briefs of argument: are akin to pleadings. Hence, the granting or refusal of an application to amend them, just like all applications is at the discretion of the court.
Before proceeding further in this ruling, I wish to state that I agree entirely with the submission of the learned senior counsel for the 1st & 2nd Respondents that, prayers 1 to 3 of the Application are most unnecessary in the given circumstances of this matter. The said prayers, commonly referred to as the trinity prayers apply to appeals that are not as of right. That is where the leave of court is required before a given decision can be appealed and if the proposed appellant is out of time, he/she will have to file the tree-pronged application for extension of time to apply for leave to appeal, have to appeal and extension of time to file the notice of appeal. In the instant matter, the Applicant herein has not only duly filed a notice and groun1s of appeal, the said notice and grounds of appeal has been amended by the leave of this Court prior to the instant application which is aimed at further amending the amended notice and grounds of appeal containing eleven grounds of appeal, by adding two more grounds thereto. When there is a valid and subsisting notice and grounds of appeal and what is being sought is to amend same, the trinity prayers are not required. All that is required is the leave of court to amend or file additional grounds of appeal. Therefore, I hold that prayers I to 3 are misconceived. They are discountenanced and hereby struck out accordingly.
What is left to tie determined is the merit of prayers 4 and 5. As alluded to above by me, it is trite law that, the granting or refusal of all applications including the instant one is not a matter of course but at the discretion of the court. And the exercise of the discretion must inevitably be judicial and judicious having regard to the peculiar facts and circumstances of each case placed before it. I am not unmindful of the fact that election matters are sui generis and time is of essence in their determination. Nevertheless they are a specie of, and subject to the rules of practice and procedure, employed in civil matters. Therefore, it is incumbent on an applicant in the shoes of the Applicant herein, to establish the merit of his exercise of the discretion of this Court in his favour. Albeit, it is the ultimate duty of the court to consider the affidavit evidence placed; before it in determining an application brought before it. And in the process, the court has a right to draw inferences from the affidavit evidence and arrive at its decision.
On the affidavit evidence placed before me in this matter, I take into cognisance all the six grounds upon which this application is hinged. I have reproduced these above. Furthermore, I have recourse to the supporting affidavit of the Applicant especially paragraphs 1 to 7 therein, and the two proposed additional grounds, that is, grounds numbers 12 and 13 contained in Exhibit 1 attached to the supporting affidavit. For purposes of clarity and ease of reference, I hereunder reproduce the said paragraphs 1 to 7 and the proposed ground Nos. 12 and 13 with their particulars respectively as follows:
1. That I am a Legal Practitioner in the law firm of Alegeh & Co. counsel to the Appellant! Applicant herein and by virtue of which I am conversant with the facts deposed herein.
2. That I have consent of the Appellant/applicant and that of my employers to depose to this affidavit.
3. That my employers have just been briefed by the Appellant/Applicant to prosecute this appeal 4. That upon being briefed to handle this appeal, I reviewed the Amended Notice and Grounds of Appeal, the Record of Appeal and the Appellant’s Amended Brief of Argument in this appeal.
5. That upon reading the record of appeal, I discovered that it is necessary to amend the grounds of appeal and file an additional ground of appeal to highlight the issues for determination in this appeal as well as assist this Honourable Court in effectively and expeditiously determining this appeal.
6. That leave of this Honurable Court is required to further amend the Appellant’s Amended Notice of Appeal.
7. That the Further Amended Notice of Appeal has been prepared and same is exhibited herein and marked EXHIBIT 1.
GROUND NO. 12
The Governorship and Legislative Houses Election Tribunal erred in law and occasioned a grave miscarriage of justice when it rejected Forms EC8A(i); EC8B(i); EC8D(i); EC8E(i) and Appellant’s Certificate of Return of House of Assembly Election tendered by the Appellant at the trial on the ground that aforesaid forms were not filed along with the 1st and 2nd Respondents reply to the Petition.
PARTICUALRS
(i) The aforesaid Forms EC8A(i); EC8B(i); EC8D(i); EC8E(i) and Appellant’s Certificate of Return of House of Assembly Election were pleaded by the parties to the Petition.
(ii) Issues were joined on the Forms EC8A(i);. EC8B(i); EC8D(i); EC8E(i) and Appellant’s Certificate of Return of House of Assembly Election.
(iii) EC8A(i); EC8B(i); EC8D(i); EC8E(i) and Appellant’s Certificate of Return of House of Assembly Election were listed in the 1st Respondent’s Reply to the Petition.
(iv). The admissibility of documentary evidence is based on relevance and the Forms EC8A(i); EC8B(i); EC8D(i); EC8E(i) and Appellant’s Certificate of Return of House of Assembly Election were relevant in the determination of the Petition.
(v) The absence of these documents weighed heavily in the mind of the Tribunal and greatly affected its final judgment.
(vi) The Tribunal’s judgment would have been different if the said documents had been admitted at the trial.
(vii) The wrongful exclusion of the documents occasioned a grave miscarriage of justice. GROUND NO. 13
The Lower Tribunal erred in law and occasioned a grave miscarriage of justice in hearing and determining the petition when the Petition was incompetent for want of jurisdiction.
(i) The grounds for bringing a petition are as set out in Section 145 of the Electoral Act 2006.
(ii) The Petition was not within the confines of Section 145 of the Electoral Act.
(iii) The jurisdiction of the Tribunal as specified by Section 140 of the Electoral Act, 2006 relates only to “undue election or undue return.”
(iv) The Tribunal found as a fact that the election was cancelled.
(v) Section 141 of the Electoral Act, 2006 specifies that an election petition must be filed within 30 days from the date the result of the election is declared.
Essentially, the right to appeal is derived from the Constitution of Nigeria. This right must not be infracted in any way. It is no wonder that this fact was borne in mind by the drafters of the rules of practice and procedure of this Court, that is, the Court of Appeal Rules, 2007. Order 6 rule 15 of the said Rules provides that, a notice of appeal may be amended by or with the leave of the Court at any time. Parties in this matter are “ad idem” that the Applicant has a valid and existing notice of appeal and as I stated above, the said notice of appeal by the order of this Court has even been amended. This present application is aimed at further amending same by way of including therein two additional grounds. It is not that the notice of appeal is to be filed for the first time and afresh. I agree with the submissions of the learned senior counsel for the Applicant that the two grounds being sought to be brought in are cogent and arguable. This is all that matters at this stage and not whether the grounds are meritorious and likely to succeed. Regarding the proposed ground 12, as can be gleaned from the record of appeal, the documents involved are already before this court and no oral evidence will be required to be adduced. The proposed ground 13 borders on the issue of jurisdiction of the Tribunal and it is trite that this issue can be raised at any stage of proceedings with or without: the leave of court. I believe the uncontroverted averment in the supporting affidavit that the Applicant has just engaged the services of a new counsel who understandably reviewed the entire processes already filed and in his entitled wisdom decided to file additional grounds of appeal. It is on this note that I refer to the case of: Chief of Defence Staff v. Adhekegba (2009) 13 NWLR (Pt. 1158) p. 332 at p. 363, paras. C – D, therein Bada, J.C.A. aptly captured the right of a party to and the power of courts ip relation to application for amendment of processes: His Lordship had this to say:
“An application for amendment is a right of the parties to enable them present their case in the way it… appears best to them once it does not occasion injustice to the other party. See the following cases: U.B.N. Ltd. v. Dafiaga (2000) 1 NWLR (Pt. 640) at 175; Stanley Aigbe & Anor. v. Lucky Erhabor & Anor. (1998) 7 NWLR (pt, 557) page 255.”
I agree with the learned senior counsel for the 1st & 2nd Respondents and there is no doubt that the Applicant has manifested a measure of dilatoriness in the pursuit of his appeal. Nevertheless, I am of the firm view and indeed it is my bounding legal duty to preserve the constitutional right of every citizen of this country of which the Applicant is one to appeal. And it is unusual for the courts to deny a citizen of this right. I do not see any reason to deny the Applicant leave to file the said two additional grounds of appeal in the given circumstance of this matter. Of a fact by the granting of this application the ends of justice will be met as this will afford all the parties the opportunity to vent their grievances as submitted by the learned senior counsel for the Applicant.
However, I have a grouse with prayer 5 of this application, that is, the prayer for the order of this Court to deem as properly filed and served, the Further Amended Notice and Grounds of Appeal, Exhibits 1, attached to the supporting affidavit. As I stated above, a party seeking an amendment of an existing notice of appeal must first obtain the leave of the court. See the case of: Ohajunwa v. Obelle (2008) 3 NWLR (Pt. 1073) p. 52 at pgs. 74-75, paras. H-A Galadima JCA had this say:
…A party seeking an amendment of the notice of appeal already tiled will first obtain leave of the court and thereafter tile an amended notice of appeal before canvassing argument in support of the issues raised therefrom in his brief of argument otherwise the grounds of appeal and the Issues raised therein are incurably incompetent. See Ekwulugo v. A.C.B. (Nig.) Ltd. (2006) 6 NWLR (Pt. 975) p. 30.
It follows and I hold that this instant application is not one in which a deeming order can be made. Consequently, prayer No.5 wrongly numbered 6 is refused and struck out accordingly: Based on my above line of reasoning and conclusion, this application is granted in terms of prayer No.4 only. It is hereby ordered as follows:
1. Leave is granted the Appellant/Applicant, Prince Shegun Samuel Saiki to further amend the Appellant’s Amended Notice and Grounds of Appeal by filing two additional grounds of appeal numbered Grounds 12 and 13 contained in Exhibit 1, attached to the affidavit in support of this application.
2. The Appellant’s Further Amended Notice and Grounds of Appeal shall be filed and duly served within seven days from today.
3. It is further ordered that, the 1st & 2nd Respondents shall be entitled to the costs of this application which I assess at the sum of Ten Thousand Naira against the Applicant.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft the lead ruling of my learned brother OMOLEYE, JCA, I entirely agree with all the reasons and conclusions set out therein. I also abide by all the consequential orders of my learned brother in the lead ruling, including the order for costs.
CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.: I agree entirely with the lead Ruling delivered by my learned brother, OYEBISI F. OMOLEYE, JCA. There is therefore no need to dwell further on the said Ruling. I also abide by the order as to costs.
Appearances
A. O. Alege SAN with him Mrs. N. I. Ekunwe and Miss R. O. EnaboinoFor Appellant
AND
Rickey Tarfa SAN with him R. I. D. Okezie and K. D. Umeanadu for the 1st and 2nd Respondents
F. Imafu for the 3rd Respondent
P. O. Osemwenkha for the 4th-6th RespondentsFor Respondent
