CHIEF A. A. OWURU & ANOR v. PRESIDENT MUHAMMADU BUHARI & ORS
(2019)LCN/13561(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/A/PEPC/001/2019(R)
RATIO
ELECTION PETITION: WITHIN WHICH PERIOD CAN A SERIOUS AMENDMENT BE ALLOWED IN AN ELECTION PETITION
The community purport of these provisions is that amendment to a petition or reply, effecting a substantial alteration of the ground for or the prayer in the petition or reply or introducing any of the requirements of the contents of the petition, shall not be allowed or permitted after the expiration of the time prescribed for the filing of the petition or reply as the case may be. See Oke vs. Mimiko (supra), Mustapha vs. Gamawa (supra), Odu vs. Duke (2002) (05) 10 NWLR (932) 105 at 142-143, Yusuf vs. Obasanjo (2003) 16 NWLR (847) 554 at 606, Ojukwu vs. Onwudiwe (2007) 3 EPR 892. PER MOHAMMED LAWAL GARBA, J.C.A.
ELECTION PETITION: AMENDMENTS OF MERE CLERICAL OR OTHER MINOR ERRORS: THE POSITION OF THE LAW
Amendments which seek to merely correct clerical, typing or minor errors or mistakes on the face of petition which do not affect, alter, change or add to the material facts upon which the grounds for or the reliefs sought in the petition were based, are not substantial and would not add to the petition what is not contained therein. Such amendment/s are infinitesimal to the substance of the petition, do not come within the purview of the provisions of Paragraph 14 (1) and (2) and can be allowed or permitted in appropriate cases. In Hope Democratic Party vs. INEC & Ors (2009) LPELR 1375 (SC) at page 24, Onnoghen, JSC, in the lead judgment of the Apex Court, had observed that: –
“Since the intention of the Electoral Act and other laws employed in litigation are geared towards ensuring that substantial justice is done to the parties at the expense of technicalities, any conclusion that tends to shut out an aggrieved party from the temple of justice by not hearing him on the merit ought not to be encouraged in the interest of peace and democracy”. PER MOHAMMED LAWAL GARBA, J.C.A.
AMENDMENTS: THE PRIMARY PURPOSE OF AN AMENDMENT IN PLEADINGS
The law is generally known that the primary purpose or aim of an amendment of pleadings is to bring or place all the material and relevant facts of a case before the Court for its decision on the merit and to prevent the justice of a cause from being defeated or unduly changed by minor slips, errors or mistakes which may arise from the inadvertence of Learned Counsel for the parties. Adesanoye vs. Adewole (2004) 11 NWLR (884) 414, Ogboru vs.-Ibori (2004) 7 NWLR (871) 192, Adeniran vs. Togunde (11) LPELR 3609 (CA) at page 14 – 15, G.L. Baker Ltd. Vs. Medwey Building and Supply Ltd. (1958) 1 NWLR 1216, Ogah vs. Ogboru (1976) 1 NMLR, 95, Yusuf vs. Obasanjo (supra), Ogidi vs. Egba (99) 10 NWLR (621) 42, Akaninwo vs. Nsirim (supra). PER MOHAMMED LAWAL GARBA, J.C.A.
WORDS AND MEANINGS: THE WORD SHALL : MEANING IN A STATUTE
The import of the deliberate use of the word “shall” in the provision is that a legal duty or obligation, by way of a command or exhortation, was mandatorily imposed on the Petitioner to meet the requirements set out therein at the time of presenting or filling his petition and does not envisage or admit of a discretion in compliance.
In Onochie vs. Odogwu (2006) 2 SCNJ 95 at 114, it was held by the Supreme Court that the word “shall” when used in a statute or Rules of Court makes it mandatory that the provision or rules must be obeyed or complied with. See also Ugwu vs. Ararume (2007) 12 NWLR (1048) 367 at 448, Ngige vs. Obi.(2006) 14 (999) 1, Nwankwo vs. Yar’Adua (2010) 12 (1209) 518 at 589, Governor, Ekiti State vs. Olubunwo (17) 3 NWLR (1551) 1 at 35. PER MOHAMMED LAWAL GARBA, J.C.A.
ELECTION PETITION: THE MANDATORY NATURE OF PARAGRAPH (5) (I) AND (5) (II) OF THE ELECTORAL ACT
The mandatory nature of the provisions of paragraph (5) (i) is made manifest by the provision of sub-paragraph (5) (ii) which provides penalty for failure to comply with the provisions, as a legal consequence. It states that: –
“A petition which fails to comply with sub-paragraph (1) of this paragraph shall not be accepted for filing by the Secretary”.
Being mandatory requirements, the list of witnesses a Petitioner intends to call in proof of his petition and the written statements on oath of such witnesses are part of the crucial components and fundamental accompaniments of the petition to be filed at the time of presenting the petition. This being so, any amendment which seeks to alter or add to the list of witnesses and statements on oath would be substantial alteration and addition to the petition and so had to be made within the prescribed time for presenting or filing the petition itself within 21 days after the declaration of the results of the Election. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1 CHIEF A. A. OWURU
2. HOPE DEMOCRATIC PARTY Appellant(s)
AND
1. PRESIDENT MUHAMMADU BUHARI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. ALL PROGRESSIVES CONGRESS (APC) Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Lead Ruling): By the motion filed on the 13/5/2019, the Petitioners pray the Court for the following reliefs: –
“1. AN ORDER of the this Honourable Court granting leave to The Petitioners/Applicant to amend/correct the clerical error in the misplacement of words or letters, “2nd” as “3rd” and vice versa in paragraphs 3, 7, 9, 10 (a) (b) (e) (k), 11, 12, 14 and 15 of the Election petition filed on the 7/3/2019.
2. AN ORDER of this Court granting leave to the Petitioners/Applicants to amend and add the list of witnesses the names and witness Deposition on oath of XXY, WBC and BBC, annexed hereto as Exh. A, B. C.
3. AN ORDER deeming the amended processes filed as properly filed and served on all the Respondents in this Election petition.
4. AND for such further order(s) as this Honourable Court may deem fit to make in the circumstances”.
Although the reliefs are not premised on any grounds, the motion is supported by an 11 paragraphs Affidavit deposed to by Yusuf Ibrahim; a Legal Practitioner in the Chambers of the 1st Petitioner, to which were
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attached, Exhibits A, B and C, and an Address which was adopted at the oral hearing of the motion on the 13/6/2019.
The 2nd Respondent filed a Counter-Affidavit on 15/5/2019 to oppose the motion, and the Address attached thereto was adopted at the hearing of the motion. The recent unreported decision of the Supreme Court in Appeal No. SC/377/2019; APC & Anor. Vs. Marafa & Ors., delivered on 24/5/2019 was referred to and relied on by the Learned SAN for the 2nd Respondent in urging the Court to refuse and dismiss the motion.
On their part, without prejudice to their respective motions for the striking out or dismissal of the petition, the Learned Senior Counsel for the 1st and 3rd Respondents said they do not oppose the grant of the motion.
In the main, the case of the Petitioners/Applicants as presented in the Affidavit in support of the motion and the Address is that the clerical/typographical errors they seek to correct on their petition resulted from inadvertence and are intended to reflect and represent the “true state of matters” to the Court to assist it in the due adjudication of the petition. It is also the Petitioners case that
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the amendments sought do not involve or constitute substantial amendment or alteration of the petition as envisaged under the provisions of Paragraph 14(1) and (2) of the First Schedule to the Electoral Act 2010 (EA). Among other cases, Akaninwo vs. Nsirim (2008) 3MJSC (no page provided), Yusuf vs. Obasanjo (2001) FWLR (185) 507 at 546 and Okereke vs. Yar’Adua (2008) 12 NWLR (1082) 37 at 51 were cited and relied on in urging the Court to grant the motion as prayed.
The case of the 2nd Respondent as contained in the Counter-Affidavit and the Address is that the Petitioners cannot add to the list of witnesses they seek to call as set out in their petition since doing so would constitute a material amendment of the petition after the expiration of the time to do so and cannot be made under the provisions of Paragraph 14 (1) and (2) of the First Schedule to the Electoral Act. The unreported decision of the Apex Court aforenamed, was cited as authority for the submission along with the cases of Oke vs. Mimiko (2013) LPELR ? 20645 (SC) and Mustapha vs. Gamawa (2011) LPELR ? 9226 referred to in the Address in support of the Counter-Affidavit. The
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Court is urged to refuse and dismiss the motion.
Paragraph 14 (1) and 2 of the First Schedule to the Electoral Act under which the motion was brought, provides for the time, extent and nature of amendments that could be made to an election petition that was filed or brought before the Court pursuant to the provisions of the Electoral Act. The provisions of the Paragraph 14 (1) and (2) are that: –
“14. (1) Subject to subparagraph (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 those provisions there were substituted the words “the election petition or reply”.(2) After the expiration of the time limited by ?
(a) Section 134 (1) of this Act for presenting the election petition, no amendment shall be made:
(I) introducing any of the requirements of subparagraph (1) of 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,
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or
(iii) except anything which may be done under the provisions of subparagraph (2) 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 subparagraph (2) of this paragraph, effecting any substantial alteration in or addition to the admissions or the denials contained in the original reply filed, or to the facts set out in the reply”.
The community purport of these provisions is that amendment to a petition or reply, effecting a substantial alteration of the ground for or the prayer in the petition or reply or introducing any of the requirements of the contents of the petition, shall not be allowed or permitted after the expiration of the time prescribed for the filing of the petition or reply as the case may be. See Oke vs. Mimiko (supra), Mustapha vs. Gamawa
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(supra), Odu vs. Duke (2002) (05) 10 NWLR (932) 105 at 142-143, Yusuf vs. Obasanjo (2003) 16 NWLR (847) 554 at 606, Ojukwu vs. Onwudiwe (2007) 3 EPR 892.
Apparently, since the motion was brought on the 15/5/2019, it was brought after the expiration of the 21 days period provided for the presentation/filing of the present petition under the provisions of Section 285 (5) of the 1999 Constitution (as altered) after the declaration of the results of the Election which it seeks to challenge, on the 27/2/2019 by the 2nd Respondent. What remains to be determined is whether the amendment/sought, constitute substantial alteration or addition to the petition that is envisaged by the provisions of Paragraph 14 (1) & (2) above.
Perhaps, I should say that what the clear provisions do not allow or permit, are such amendments that amount to substantial alteration, addition or change in the material facts presented in the petition which constitute and upon which grounds for or the relief sought in the petition were predicated. Amendments which seek to merely correct clerical, typing or minor errors or mistakes on the face of petition which do not affect, alter,
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change or add to the material facts upon which the grounds for or the reliefs sought in the petition were based, are not substantial and would not add to the petition what is
