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ABBA KABIR YUSUF & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2019)

ABBA KABIR YUSUF & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2019)LCN/13715(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of July, 2019

CA/K/EPT/GOV/7/2019

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria

Between

1. ABBA KABIR YUSUF

2. PEOPLES DEMOCRATIC PARTY – Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

2. ABDULAHI GANDUJE

3. ALL PROGRESSIVES CONGRESS – Respondent(s)

RATIO

THE RULE OF STARE DECISIS

The rules of stare decisis do not allow Courts to apply the ratio of a case with little regard to the facts of the case before them, I hold. See All Progressives Congress v Independent National Electoral Commission (2015) 8 NWLR Part 1462 Page 531 at 583 Para D-G per M.D. Muhammad JSC; Interdrill (Nig) Ltd v United Bank for Africa PLC (2017) 13 NWLR Part 1581 Page 52 at 66 Para A-C per Nweze JSC; Dankwambo v. Abubakar (2016) 2 NWLR Part 1495 Page 157 at 181 Para B-D per Kekere-Ekun JSC. PER ADEFOPE-OKOJIE, J.C.A.

THE CARDINAL RULE OF INTERPRETATION

The cardinal principle of interpretation of statutes, inclusive of the Electoral Act, is that where the words used in a statute are clear and unambiguous the Courts should give them their ordinary natural and literal meaning, in order to establish the intention of the law maker. It is only where the ordinary or literal meaning of the clear and unambiguous words fail to bring out the intention of the lawmaker or leads to an absurdity that resort is had to constructive interpretation. See Dickson v Sylva (2017) 8 NWLR Part 1567 Page 167 at 233 Para D per Kekere-Ekun JSC; Lokpobiri v Ogola (2016) 3 NWLR Part 1499 Page 328 at 363 Para E-F per Onnoghen JSC (as he then was); Registered Trustees of the Airline Operators of Nigeria v Nigerian Airspace Management Agency (2014) 58 NWLR Part 1408 Page 1 at 41 Para B-C; (2015) All FWLR Part 762 Page 1786 at 1812 Para B-D per Okoro JSC. PER ADEFOPE-OKOJIE, J.C.A.

THE GENERAL LAW GOVERNING AMENDMENT OF PLEADINGS OR PROCESS OF COURT

?The general law governing amendment of pleadings or process of Court is that amendment is usually permitted and allowed at any stage of proceedings; once the same is done to bring out the real issues in controversy for determination by the Court, provided the opponent is not prejudiced, over-reached or made to suffer injustice in the process. See ? the recent decision of this Court on the issue, that is, case of Sunday Okorie Vs Christian Okorie CA/OW/262M/2013, delivered on 16/11/16, wherein we quoted the Supreme Court case of Eta Vs Dazie(Supra), where the Supreme Court said: The duty of a judge is to see that everything is done to facilitate the hearing of any action pending before him and whenever it is possible to cure and correct an honest or unintentional blunder or mistake in the circumstances of the case, and where such amendment will help to expedite the hearing of the action, without injustice to the other party. PER ADEFOPE-OKOJIE, J.C.A.

WHETHER OR NOT ELECTION PETITIONS ARE SUI GENERIS

And what is more, election petitions are sui generis and should be treated in that domain or realm. If Courts of law are bound to do substantial justice in ordinary civil matters how much less (sic) in an election petition, I should take the question to another level or layer and it is this. If Tribunals are bound to do substantial justice in election petitions, how much less (sic), a Presidential Election petition in which the whole country of Nigeria is one constituency. I do not think that the Court of Appeal was wrong in giving one extra kilometre to accommodate the 4th to 808th respondents. The Court did a good job and I commend the Justices.? See also Sa?eed v Yakowa (2013) 7 NWLR Part 1352 Page 124 at 145-146 Para H ? C, where it was held by the same Court, per Tabai JSC: The current and prevailing principle in the administration of justice is that where in the beginning or in the course of the proceedings, a party commits an omission or mistake in the laid down practice and procedure, it can be regarded as an irregularity which the Tribunal or Court can and should rectify or even ignore so long as it is satisfied that the omission or mistake occasions or is incapable of occasioning any injustice to the other party. This is the principle deliberately engrafted by the legislature into Paragraph 53(1), (2) and (4) of the First Schedule to the Electoral Act 2010 (as amended). In the instant case, the approach of the Court of Appeal was too restrictive and technical, capable of undermining the very ends of justice for which rules of procedure were made. The Court of Appeal had a duty to read the provisions of the First Schedule to the Electoral Act 2010 (as amended) holistically, and construe same widely and generously to give effect to the manifest intention of the provision to do substantial justice and not technical justice?.? PER ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.(Delivering the Leading Judgment): This is an interlocutory appeal against the Ruling of the Kano State Governorship Election Tribunal Coram Hon Justices Halima Mohammed, Sonia Akinbiyi and His Worship Gimba Alhaji Gabi, delivered on the 16th of July 2019 dismissing the Appellant?s application seeking leave of the Tribunal to add to the List of Witnesses, eight (8) witnesses whose witness statements accompanied the Petition but were omitted from the List of Witnesses. Dissatisfied with the Ruling, the Appellant filed a 7 ground Notice of Appeal on 16/7/2019.

?The facts relevant to this appeal are that the 1st Petitioner, 1st Appellant herein, was one of the 55 persons sponsored by their political parties and who contested the election to the office of the Governor of Kano State on 9th and 23rd March, 2019. After the election, the 2nd Respondent was declared the winner by the 1st Respondent. Dissatisfied by this return, the Appellants filed a Petition at the trial Tribunal, seeking declarations that they and not the 2nd Respondent, Abdulahi Ganduje, had scored the majority of the

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lawful votes cast, in consequence of which the 1st Appellant, Abba Kabir Yusuf should be returned as the duly elected Governor of Kano State. They also sought a declaration that the 2nd Respondent?s return as Governor of Kano State be declared a nullity and that the results of some polling units be cancelled and the valid votes cast in some units be restored. They further sought a nullification of the order for and the rerun conducted.

The Appellant?s Brief of Arguments, prepared by Asiwaju Adegboyega Solomon Awomolo SAN leading a team of Senior Advocates of Nigeria and other Counsel, and filed on 18/7/19, distilled the following issues for the Court?s determination:

1. Whether the Tribunal acted within its jurisdiction under Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) when it gave its ruling on interlocutory application that touched on the competence of the petition at the stage of pre-trial session.

2. Whether the Tribunal applied the proper rules of interpretation on the express provision of Paragraphs 4 (5) and 14 (2) (a) (i) & (ii) of the First Schedule to the Electoral Act 2010 (as amended)

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Section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999, the decisions of the Supreme Court and of Court of Appeal which were cited to the Tribunal and all of which are binding on the Tribunal.

The 1st Respondent?s Counsel, Adedayo Adedeji Esq in response, filed a Motion on 23/7/19 seeking for an order striking out Ground 1 of the Appellant?s Notice of Appeal and Issue 1 distilled therefrom, for not arising from the Ruling of the trial Tribunal. Arguments in respect of this application are contained in its Brief of Arguments filed on the same date, distilling therein the following issues for the Court?s determination, as follows:

1. Whether having regard to the nature of the application filed by the appellant the trial Tribunal was bound to have heard and deferred its ruling in respect of the appellant?s application to the end of trial and during judgment.

2. Whether having regard to the provisions of Section 285(5); paragraphs 4(5) (i) and paragraphs 14 of the First Schedule to the Electoral Act, the trial Tribunal has the requisite jurisdiction to grant an application

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for amendment of a petition outside the statutory period?

The issues for determination formulated for the 2nd Respondent by Chief M.N. Duru KSM in 2nd Respondent?s Brief of Arguments filed on 23/7/19, are the following:

1. Whether the Lower Tribunal was right in hearing and determining the Appellants? Motion on Notice dated and filed on 2nd July, 2019, at the Pre-trial Conference stage.

2. Whether the Tribunal applied the proper rules of interpretations on the express provision of Paragraphs 4 (5) and 14 (2) (a) (i) & (ii) of the First Schedule to the Electoral Act 2010 (as amended), Section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999, the decisions of the Supreme Court and of Court of Appeal which were cited to the Tribunal and all of which are binding on the Tribunal?

The 3rd Respondent?s Counsel, Dr. Alex Izinyon SAN, in 3rd Respondent?s Brief of Arguments filed on 23/7/19, similarly distilled two issues for the Court?s determination, as follows:

1. Whether the Trial Tribunal was not right to have held that the Appellants? motion on notice does not fall within the

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jurisdiction of the Trial Tribunal to grant same.

2. Whether the trial Tribunal was not right to have refused the Petitioners application for leave to amend the petition after failing to comply with the mandatory provisions of Paragraphs 4(5)(i)(a) and 14(2)(a) of the First Schedule of the Electoral Act 2010 (As Amended).

The learned Silk for the Appellants filed Replies to each of the Briefs of Arguments of the Respondents.

The issues formulated by all Counsel are similar, I note.

These issues, reformulated by me for simplicity and in inverse order, are the following:

1. Whether the trial Tribunal was correct in law to have found that the Appellant?s application was an application for amendment which it lacked the requisite jurisdiction to grant.

2. Whether having regard to the nature of the application filed by the Appellant the trial Tribunal was bound to have heard and deferred its ruling in respect of the Appellant?s application to the end of trial and during judgment.

The 3rd Respondent?s Motion seeking the striking out of Ground 1 and the issue based thereon shall be taken during the

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deliberation of the 2nd issue.

The 1st issue for determination accordingly is:

Whether the trial Tribunal was correct in law to have found that the Appellant?s application was application for amendment which it lacked the requisite jurisdiction to grant.

The learned Silk for the Appellant, citing Paragraphs 4(5), 5 and 14(1) of the First Schedule to the Electoral Act 2010 (as amended), has submitted that the trial Tribunal, in refusing the application, ignored the relevant statutes. Peripheral matters like the list of witnesses whose evidence was already on the record is a mere formality and deserves liberal and purposive interpretation. He emphasised Paragraph 14(2)(a) of the First Schedule, submitting that none of the Respondents pointed out that the addition to the list of witnesses, whose Statements on Oath were already frontloaded and accompanied the petition, amounted to any of the prohibited grounds under Paragraph 14(2)(a) (i)-(iii) Supra. It is not every conceivable amendment that must be refused after 21 days prescribed by Section 285(5) of the Constitution, Senior Counsel submitted. The amendment must be located within the law

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and what is expressly stated, to the exclusion of others not mentioned in the section. He cited the case of PDP v Edem (2016) 12 NWLR Part 1525 Page 106 on the purpose of frontloading and the list of witnesses. The application, he said, is merely seeking to correct an inadvertence by Counsel and a mere formality to bring the witnesses who are already standing in the records, to the list of persons to be called to give evidence. Rules of Court, he submitted, citing the case of Chime v Onyia (2009) 2 NWLR Part 1124 Page 1 at 52, are not to be slavish but in aid of justice.

The learned Silk pointed out that in spite of the fact of the absence in the List of Witnesses of those sought to be included and the filing by the Respondents? Counsels of various notices of preliminary objection to the petition, none of the Respondents noticed that the names of these 8 witnesses was not on the List of over 200 Witnesses that accompanied the petition. They shall thus not be prejudiced.

?

Senior Counsel pointed out that the decisions adopting a liberal interpretation in dealing with election cases came after the case of Oke v Mimiko relied upon by the

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Tribunal. Every case, he said, must be considered on its merit. He also pointed out that contrary to Oke v Mimiko relied upon by the trial Tribunal, the Appellant?s application was not for extension of time to file list of witnesses or for leave to call additional witnesses or to file their depositions and list of their names. It also did not seek for an amendment to the petition on any substantial ground, prayer or facts in the petition, distinguishing the decision of this Court in Chief Owuru v President Mohammadu Buhari. The learned Silk submitted that in the same case, the Court granted amendment on the face of the petition.

Submitting that the legislature, in its wisdom, prescribed a punishment for failing to include the list of witnesses a party wishes to call in proof of its case, both the Supreme Court and Court of Appeal, have taken a liberal interpretation of the requirement of list of candidates. He cited the cases of INEC v Iniama (2008) 8 NWLR Part 1088 at 182 and Abubakar v Yar?Adua (2008) 4 NWLR Part 1078 Page 465.

?

The 1st Respondent?s Counsel, Mr. Adedayo Adedeji, citing

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Paragraphs 4(5) (a) and 14 of the First Schedule to the Electoral Act Supra, as well as Section 285(5) of the 1999 Constitution, submitted the effect of these statutes to be that for a petition to be competent, it must be accompanied by a list of witnesses the Petitioner intends to rely on in the course of trial, which list is a crucial and fundamental accompaniment of the petition and cannot be separated therefrom. The list of witnesses filed being incompetent, the fundamental question is whether the Appellant can at this stage of the proceedings amend the said list of witnesses?

Responding in the negative, learned Counsel submitted that the effect of these statutory provisions is that all election petitions shall be filed within 21days from the date of declaration of result and that no amendment to the petition will be entertained outside the 21 day period. Having filed the application for amendment outside this period, the trial Tribunal lacked the requisite jurisdiction to exercise its discretion by granting the amendment sought. Being an application that seeks to amend a process that gives validity to the petition, the application amounted to also amending the Petition which

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cannot, by the said laws, be done outside the 21 days constitutionally stipulated. Counsel cited Oke & Anor v Mimiko & Ors (2013) LPELR ? 20645 (SC) and the unreported decision of Chief A. Owuru & Anor v President Muhammadu Buhari & 2 Ors Petition No: CA/A/PEPC/001/2019 delivered on the 25th of June 2019 and Mustapha v Gamawa & Ors (2011) LPELR ? 9226 (CA).

Learned Counsel submitted further that having filed and exchanged pleadings in respect of the petition, with an incomplete list of witnesses, the Appellant cannot at this stage seek to amend the said List of Witnesses. The Respondent?s Reply to the Petition was predicated on the List of Witnesses accompanying the Petition. The amendment at this stage will undoubtedly shut out the 1st Respondent from responding to their deposition. Having not listed them on their List of Witnesses the Respondents are not bound to answer to their depositions even though they were annexed to the Petition. The failure to include the 8 witnesses in the List of Witnesses signifies an abandonment of their depositions. He refuted the Appellant?s arguments that no objection was raised

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to this omission, submitting that an objection was raised to the absence of the name of one Alhaji Dr Yunusa Adamu Dangwani as not being on the List of Witnesses. It is therefore incorrect to submit that no objection was raised. The fact that objections were not raised in respect of the other witnesses at the prehearing stage, does not mean that the defect was not noticed and would not be raised at the appropriate time, Counsel submitted. As a matter of law such objections are best raised during trial while the witnesses are about to give evidence. In any event, even if no objection were raised, the application is not thereby rendered competent. He distinguished the case of Abubakar v Yar Adua (supra) contending that that case was decided on the basis of the Electoral Act of 2006 which had no time of 180 days like operates at present. In addition, that case was decided in 2008 and does not represent the current position of the law in light of the Supreme Court decision in Oke v Mimiko Supra and Owuru & Ors v President Muhammed Buhari & Ors Supra. Counsel also distinguished the case of PDP v Edem arguing that in that case, the Tribunal had earlier

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granted an order of inspection of electoral materials and it was consequent upon the order that the appeal was allowed granting leave for the filing of a deposition and not as in the instant case to amend the list of witnesses outside the mandatory 21 days. The fundamental point is that parties have joined issues in respect of the petition without the 8 witnesses on the list of witnesses. Granting the Appellant leave to amend this list will prejudice the Respondents, he submitted. Citing the case of G.C.M. Ltd v Travellers Palace Hotel [2019] 6 NWLR Pt.1669 Pg. 507 at 530-531 learned Counsel submitted that the literal rule of statutory interpretation is the first rule applied by Judges.

The learned Counsel to the 2nd Respondent, Chief M.N. Duru, in the 2nd Respondent?s Brief, proffered arguments on similar lines with the 1st Respondent?s Counsel, adding that the List of Witnesses remains an integral part of the Petition, the amendment of which is not a mere formality. Any attempt to alter the list of witnesses in an election petition amounts to an amendment of the petition, he submitted. The Appellants? contention that their application

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is not seeking to amend their Petition is unfounded and ought to be disregarded. Since the Appellants? Motion before the Lower Tribunal is seeking to add to their List of Witnesses, the same amounts to an application seeking to amend not just their List of Witnesses but indeed their Petition since the said List of Witnesses is an integral part of the Appellants? Petition. Citing Paragraph 14 (2) (a) and (b) of the Schedule to the Electoral Act 2010 (as amended) Supra, learned Counsel submitted that in the said provision the law is mandatory, by the use of the word ?SHALL? thereby not envisaging amendments of Petitions or its components in an election petition outside the period stipulated for filing same.

Senior Counsel further submitted that due to the sui generic nature of election petitions, Petitions or their accompanying Court processes cannot be amended after the time stipulated for filing same. This position of the law had been made clear for over a decade in a line of cases even long before the advent of timelines in the determination of election petitions and appeals. Citing ODU v. DUKE (NO.2) (2005) 10 NWLR (Pt. 932) 105

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at 142 ? 143, paragraphs G ? B, Counsel referred to the dictum of Muhammad JCA (as he then was) where it was held:

It follows that no amendment to such a petition will lawfully be effected outside the time the law allows for the presentation of the petition? To allow such an amendment would have meant allowing the presentation of an election petition outside the time the law provided for its presentation. The Tribunal is right to have refused the amendment.

The Tribunal, Counsel pointed out, dismissed the application on grounds of jurisdiction under Section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999 and the prevailing judicial interpretation which, it held, is strict rather than liberal and the hearing of the petition on the merit rather than on technicality.

It was learned Counsel?s further submission that sequel to the promulgation of the Fourth Alteration of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which gave rise to timelines in the determination of election petitions and appeals, the conduct of election petitions has become so

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regulated that strict adherence to the stipulated period for carrying out any procedural step is upheld, especially in amendment of pleadings in election petitions. It is not liberal like amendments in ordinary civil matters.

He referred to the case of MUSTAPHA v. GAMAWA (2011) 10 NWLR (Pt. 932) 105 at 142 ? 143, paragraphs G ? B, per Jauro JCA, where it was held:

Amendment of pleadings in ordinary civil suit is allowed at any stage? In election petitions however, considering its peculiar and sui generis nature, time is of great essence? Consequently, amendment in an election petition is subjected to restriction as to time limitation? Any attempt to amend the petition at that late stage is statute-barred hence futile, it is like an attempt to cure leprosy with cough syrup. The Tribunal was therefore right in refusing the grant of the two applications for amendment.

Counsel similarly cited the case of OKE v. MIMIKO (2013) LPELR ? 20645 (SC) pp. 20 ? 21, paras. C ? C as reflecting the current position, where it was held, per Muhammad JSC (now CJN), that:

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By the provisions of paragraph 14 (2) (a) and (b) of the Schedule to the Electoral Act 2010 (as amended), no amendment whatsoever shall be entertained by the tribunal after the expiration of the period within which to present an election petition.

This case, he said, was followed similarly in ADENIGBA v. OMOWORARE (2015) LPELR ? 40531 (CA) and OGBA v. VINCENT (2015) 9 LPLR ? 40719 (CA). Learned Counsel also relied on CA/A/PEPC/001/2019 BETWEEN: CHIEF A. A. OWURU & ANOR v. PRESIDENT MUHAMMADU BUHARI & 2 OTHERS.

He cited the unreported decision of APC v Marafa SC.337/2019 delivered on 25/5/19 but failed to make same available.

The application of the Appellants has thus reached a dead end, Counsel submitted. He distinguished the case of ABUBAKAR v. YAR?ADUA Supra, submitting that in that case, there was no constitutional timeline for the determination of an election petition. There was thus liberality, unlike the present state of the law.

?

The learned Silk, for the 3rd Respondent, Dr. Alex Izinyon SAN made similar submissions as the other Respondents, adding that the law, having

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prescribed what should be the content of an election petition, failure to comply with same is fundamental and detrimental to the petition. He cited AMAECHI V. INEC (2008) ALL FWLR (PT. 407) 1 AT 98, PARAS. C ? D where the Supreme Court held: ?If the law prescribes a method by which an act could be validly done, and such method is not followed, it means that that act could not be accomplished.?

Election petitions being sui generis, the same does not admit of addition or subtraction which amount to amendments. Giving the dictionary meaning of ?amendment? and quoting extensively from the cases of Oke v Mimiko and Owuru v Buhari Supra, the Senior Counsel posed as the crucial question, whether an amendment can be entertained by the trial Tribunal after the expiration of the period within which to present an election petition. He responded in the negative, submitting that the Appellants have reached a dead end of the law beyond which they cannot go. They should thus not be allowed to have a second bite at the cherry as the Respondents will be greatly over-reached.

?

The learned Silk rejected the submission of the Appellants that

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the application was not an amendment, relying on the dictionary meaning of the same and denying that the application was a mere formality. He submitted that just as the Appellants are caught by Sub Paragraph 5(a) of Paragraph 4(5) of the First Schedule of the Electoral Act (As Amended) they would also not be able to amend the Petition where there was failure to accompany the Petition with the written statements on oath or copies or list of every document to be relied upon. The operative word ?and? in the paragraph connotes that the mandatory requirement of one applies to the others and the precondition applies jointly. It is a settled principle that the word ?and? in such a statutory provision is conjunctive and not disjunctive like ?or?. He cited the case of BUHARI V. INEC (2008) 19 NWLR (PT. 1120) PG. 246 AT 368, PARAS D-G. Citing the case of ADEGBUYI V. MUSTAPHA & ORS (2010) LPELR-3600(CA) on the principles of frontloading and the importance of the provisions of Paragraph 1 (1) & (2) of the Practice Directions with the negative consequences of failing to comply, which, Senior Counsel submitted, is in pari

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materia with Paragraph 4(5) of the First Schedule of the Electoral Act 2010 (As Amended), he submitted that the fact that the Witness Statements on Oath have been frontloaded cannot therefore justify such an amendment. Thus, just as the Appellants cannot amend their list of documents to be relied upon at the hearing of their Petition, they cannot also amend the list of witnesses to be called. He distinguished the cases of ABUKAKAR V. YAR?ADUA and PDP v EDEM Supra cited by the Appellant?s Counsel.

Responding to the Respondents? Briefs of Arguments, the learned Silk, Chief Gboyega Awomolo submitted that the cases of Oke v Mimiko and Owuru v Buhari Supra cited are inapplicable, as the facts are different. In the latter case, the amendment sought could not be granted having been prohibited by a combined reading of Paragraph 4(1), 14 (1) and (2), as well as Section 285(5) of the Constitution (as amended), as such amendments constitute substantial amendments to the Petition. He cited the case of Charles Ehigie Airhiavbere Major General v Comrade Adams Aliyu Oshiomole (2012) LPELR 19787 (CA) where the Petitioner was permitted to add to his list

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of witnesses and substitute a witness deposition, which decision was affirmed by the Court of Appeal. Distinguishing the case of Oke v Mimiko, he submitted that in that case, what was sought was to file a list of additional witnesses and fresh depositions of the witnesses. Citing Charles Ehigie Airhiavbere Major General v Comrade Adams Aliyu Oshiomole Supra, the learned Silk submitted that with the wide discretion acknowledged by the Court of Appeal as reposed in the Tribunal in that case, it is a grave misconception to contend that there is no discretion whatsoever in the Tribunal to grant leave as prayed, which application falls within permissible exceptions.

The learned Silk cited in addition the case of APC v Mbawike (2017) LPELR-4143 CA per Mbaba JCA at 31-33 Para C-E submitting that there is a distinction between prohibited amendments to the Petition and amendment to accompanying processes like witness statements and list of witnesses. The Courts have identified that Paragraph 4(1) prescribes an absolute bar to change whereas Paragraph 4(5) prescribes what should accompany a petition. He referred to Mustapha v Gamawa Supra which gave the

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distinction. He also referred to Paragraph 53(4) of the First Schedule to the Act which expressly vests the Tribunal or Court with power to grant certain amendments. He cited the case of Sa?eed v Yakowa (2013) 7 NWLR Part 1352 Page 124 at 145-146 in advocating construction of the Electoral Act widely to do substantial as opposed to technical justice. All the paragraphs of the Electoral Act, he submitted, have equal power of force of law.

?

At the hearing of the appeal, the same learned Senior Counsels for the parties, inclusive of Chief O. E. B. Offiong for the 2nd Respondent, all leading senior Counsel, emphasized their contending positions.

The application filed by the Appellant before the lower Court was for the following:

1. AN ORDER of this Honourable Tribunal granting leave to the Petitioners/Applicants, to add to the list of witnesses, that accompanied the petition filed on the 11th day of April 2019, at page 126 to 140 of Volume 1, the names of 8(eight) persons whose witness depositions were frontloaded at pages 141 to 232 Volume 1 of the already filed Petition.

2. AN ORDER of this Honourable Tribunal granting leave to the

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Petitioners/Applicants to rely on the additional list of witnesses of the Petitioners/Applicants attached to this Application which contains the names of 8(eight) persons whose witness depositions have been frontloaded and filed on the 11th day of April 2019 along with the original petition at pages 141 to 232 of Volume 1.

3. AND AN ORDER deeming the additional list of Petitioner?s witnesses separately filed and served as duly filed and served for the purpose of proving the facts in the Petition at the hearing of the Petition.

4. AND such order or further orders as the Tribunal may deem fit in the interest of Justice.

Refusing the application, the lower Court, further to citing Paragraphs 4 (5) (a) and 14 (2) (a) of the First Schedule to the Electoral Act Supra and Section 285 (5), relied on a number of cases in which the word ?shall? was given a mandatory posture. It held that the liberal approach to issues of amendment before the Electoral Law gave way to stricter interpretation in subsequent cases, as Oke v Mimiko Supra, that by the provisions of Paragraph 14(2) (a) and (b) of the 1st Schedule, no amendment whatsoever shall

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be entertained by the Tribunal after the expiration of the period within which to present an election petition. It held that in the case of Owuru v Buhari Supra, a distinction was drawn between amendments based on typographical errors and amendments affecting the provisions of Paragraph 4, 5 (1) (a) of the 1st Schedule to the Electoral Act, 2010 (as amended). The case of APC and Anor V. Marafa & 179 Ors supra was also on the mandatory nature of the Electoral Act, i.e., the 1st Schedule to the Electoral Act and the Constitutional provisions.

It thereupon held:

“The appellate Courts having variously held that an addition in form of a list of witnesses to Paragraph 4 (5) (1) (a) of the 1st Schedule to the Electoral Act is an amendment which can change the face of the Petition, we so hold as we are bound by those decisions….this Tribunal lack (sic) the requisite discretion to grant the Petitioners/Applicants any extension of time to amend their Petition after failing to comply with Paragraphs 4 (5) (1) (a) and 14 (2) (a) of the First Schedule to the Electoral Act (as amended).. ?

?

In the appeal before us, the following facts are not

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in dispute, namely:

1. That the Appellants filed along with their Petition, a List of Witnesses.

2. That the List of Witnesses filed contained over 200 witnesses.

3. That Witness Statements on Oath of these witnesses were also filed along with the Petition.

4. That Witness Statements of the eight (8) witnesses sought to be included in the List of Witnesses were frontloaded and filed along with the Petition but omitted from the List of Witnesses filed by the Appellant.

The contention however is whether the names of these witnesses, whose evidence has already been frontloaded and filed along with the Petition, can be inserted by amendment into the List of Witnesses.

The statutes in question are Section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Paragraphs 4 and 14 of the First Schedule to the Electoral Act 2010 (as amended).

– Section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:

?An election petition shall be filed 21 days after the date of the declaration of result of the elections.?

– Paragraph 4 (5) (6) of the First Schedule to the Electoral Act Supra

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states the documents that must accompany an Election Petition, as follows:

Paragraph 4

(5) The election petition shall be accompanied by ?

(a) a list of the witnesses that the petitioner intends to call in proof of the petition;

(b) written statements on oath of the witnesses; and

(c) copies or list of every document to be relied on at the hearing of the petition.?

(6) A petition which fails to comply with sub-paragraph (5) of this paragraph shall not be accepted for filing by the secretary.

The paragraph of the First Schedule to the Electoral Act 2010 (as amended) that permits amendments to a Petition is Paragraph 14 which provides as follows:

?AMENDMENT OF ELECTION PETITION AND REPLY 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

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reply?.

(2) After the expiration of the time limited by ?

(a) Section 134 (1) of this Act for presenting the election, 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, or

(iii) Except anything which may be done under the provisions of subparagraph (2)(a)(ii) 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)(a)(ii) 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

26

reply.?

It is clear and without dispute, that by Paragraph 14(2)(a) of the First Schedule to the Electoral Act 2010 (as amended) Supra, that 21 days having expired from the date stipulated for presentation of the Petition, no amendment can be permitted to introduce the matters stipulated in Paragraph 4 (1) of the First Schedule which provides as follows:

?CONTENTS OF ELECTION PETITION

?4. (1) 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.?

It is also specifically stated in Paragraph 14(2) above, that no amendment can be granted after this period which seeks to effect ?a substantial alteration of the ground for, or the prayer in the election petition?.

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It is clear that Paragraph 14(2) of the First Schedule to the Electoral Act Supra, stipulating the prohibited amendments, is of no application to the instant suit, as the amendment sought is not an ?alteration of the ground for or the prayer in the election petition.? It is also not ?introducing any of the requirements of Subparagraph (1) of paragraph 4 of this Schedule not contained in the original Election petition filed.”

The question thus is that since the amendment sought by the Appellant is not barred by any of these provisions, what can the reason be for its refusal?

A number of authorities have been cited by the parties on this all important subject. In Oke v Mimiko No. 1 (2014) 1 NWLR Part 1388 Page 225, referred to by the lower Court and by Respondents as providing a bar to all amendments and as reflecting the current trend of strict interpretation of the said Schedule, I.T. Muhammad JSC (as he then was), reading the lead judgment held, at Page 247-248 Para G-H as follows:

“By the provision of Paragraph 14 (2) (a) and (b) of the 1st Schedule to the Electoral Act 2010 (as amended), no amendment whatsoever shall be

28

entertained by the Tribunal after the expiration of the period within which to present an election petition.?

The Court thereafter reproduced Paragraph 14(2) of the First Schedule.

Reference was also made by the learned Silk for the 3rd Respondent to the dictum by Galadima JSC at Page 257 Para B-C, concurring, that:

“The use of the word shall in Paragraph 14(2)(a) of First Schedule to the Electoral Act is mandatory and places a complete bar on any form of amendment to a petition filed and does not also allow for an exercise of discretion whatsoever.?

It is however clear from that case that what was in issue was an amendment to the Petition itself and not to any accompanying documents.

Indeed, this is clear from the lead Judgment of His Lordship I.T. Muhammad JSC (now CJN) where he held, in explaining the reason for this stance, at Page 249-250 Para G-D, as follows:

?It is obvious that the reliefs the applicants seek are based principally on grounds 1 and 3 to wit:

1. Some of the documents and other relevant facts needed in proof of the petition were not available to the petitioners at the time of filing.

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2. Other relevant facts relevant to these pleadings of the petitioners have also come to the knowledge and possession of the petitioners after the filing of this petition.

It must be noted that the Tribunal can only admit evidence where it is supported by the pleadings at this stage. This nature of evidence is so obvious, that it cannot be said that it has a space in the pleadings: Ogu v. Ekweremadu(supra). The petitioners/applicants had been consistent in their deposition that what they seek to introduce are facts which came to their knowledge after filing the petition, thus it cannot be said that what the petitioners seek to introduce is evidence based on facts already contained in the petition.

The point has to be made therefore that since it is obvious that the facts now sought to be introduced by the applicants raise new issues that were not contained in the petition, it has the tender (sic) of springing surprise at the respondent, this is more so that the respondents may not have a right to respond. This is because the time of filing pleading has lapsed. At any rate any evidence given which is at variance with averments in the pleadings go to

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no issue.”

Underlining Mine.

It is clear from the foregoing that what was in issue in Oke v Mimiko was an amendment to the Petition itself, for which the Supreme Court was insistent that Paragraph 14(2) of the First Schedule forbade.

The Senior Counsel for the 2nd Respondent, also cited in support of their contention, the case of Obi-Odu V. Duke (NO.2) (2005) 10 NWLR (Pt. 932) 105 at 142 ? 143, paragraphs G ? B, where the learned jurist, M.D. Muhammad JCA (as he then was), held:

It follows that no amendment to such a petition will lawfully be effected outside the time the law allows for the presentation of the petition? To allow such an amendment would have meant allowing the presentation of an election petition outside the time the law provided for its presentation. The Tribunal is right to have refused the amendment.

Underlining Mine

It is also clear from this statement of the learned Jurist that the amendment prohibited was to the Petition. What the Senior Counsel to the 2nd Respondent omitted to add, is the statement of His Lordship, M.D. Muhammad JCA (as he then was) in

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the paragraph following, giving the reason for their decision, where he said:

?What comes through is that the amendment prayed for by the Appellant could not be allowed not only because it was belated but also because same would be introducing some ?requirements of Sub-paragraph (1) of Paragraph 4? of 1st Schedule, not contained in original petition filed. The Appellant would by the amendment be effecting a substantial alteration of the ground for, or prayer in, the Election Petition.”

Underlining Mine.

In that case, what the Appellant, as Petitioner sought to amend, as aforesaid, was his petition, by adding a new paragraph to the particulars in support of the grounds of his petition, to the effect that the 1st Respondent?s qualifications or certificates listed in the Appellant?s Petition on which basis the 1st Respondent was cleared to contest the Governorship election, was false or forged. This, the Court rightly held could not be done.

The learned Counsel to the 2nd Respondent in support of their contention, has also cited the following statement from the case of Ogba v Vincent (2015) 9LPELR 40719

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(CA):

To allow a Petitioner to file an additional witness statement at any stage of the election petition proceeding, would destroy the regulated environment that must exist to ensure that both parties to the petition are expeditiously heard and the petition determined within 180 days from the date the petition was filed. Such an indulgence would remove the control of the pace of proceedings from the control of the Constitution, Electoral Act and the First Schedule of the Electoral Act and leaves it under the control of the whims and caprices of the parties thereby opening the gate for the filibusting (sic) of the proceedings and all kinds of abuses of the judicial process aimed at frustrating the expeditious determination of the election petition and blocking access to justice in election disputes.

Underlining Mine

What was sought in that case, as apparent above, is the filing of an additional witness statement.

The issues in that case were set out by Agim JCA, reading the lead judgment as follows:

“The question that arises at this juncture is whether the Tribunal properly exercised its discretion when it

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granted the petitioners leave to file additional statement on oath of 1st petitioner and an order deeming it as properly filed and served when the facts contained therein are not pleaded in any of the pleadings in the proceedings? My view is that it is an improper exercise of discretion to grant a party leave to file a witness additional written statement on oath that contains only facts that are not pleaded in any of the pleadings in the case. Since such a statement is meant to be adopted as the evidence-in-chief of the deponent when he shall testify as a witness in the case then admissibility of the evidence contained therein is a relevant consideration in deciding to grant or not to grant leave to file it. This is because no useful purpose would be served granting leave to a party to file a written statement on oath that cannot be adopted or admitted as evidence. The grant of such a leave would be an exercise in vain. A Court should not act in vain.?

Underlining Mine

That case, being in respect of the filing of an additional witness statement and in the con stated in the case above, is accordingly not apposite to the instant appeal

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before this Court.

Also cited by the learned Silk for the 2nd Respondent is the dictum of Jauro JCA in the case of Mustapha v Gamawa (2011) 10 NWLR Part 932 Page 105, at 143-143 Para G-B.

I will, however, set out the fuller quote of my learned brother, as it gives the reasoning behind their decision, as follows:

?By Section 134(1) of the Electoral Act 2010 (as amended), the petitioner has 21 days after the date of declaration of results within which to file his petition. It therefore follows that any substantial amendment or amendment relating to the contents of a petition as envisaged by Paragraph 4 of the First Schedule must be done within the 21 days limited for filing the petition. The two applications were filed long after the expiration of the 21 days limited for filing an election petition. The nature of the amendment sought by the petitioner was substantial in the sense that it related or was aimed at introducing the statutory requirements as to the contents of a petition and bringing in prayers/reliefs which were not part of the petition. The attempt to amend the petition at that late stage is statute barred hence futile, it is

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like an attempt to cure leprosy with cough syrup. The Tribunal was therefore right in refusing to grant the two applications for amendment.”

My learned brother, Jauro JCA, in the said case further, held:

?The combined effect of Section 134 and Paragraph 14 of the First Schedule to the Electoral Act 2010 (as amended) is to the effect that;

i. amendment could be made to on election petition even on matters of substance including the specified contents of on election petition in Paragraph 4 of the First Schedule if the application for amendment is brought before the expiration of number of days limited for filing an election petition.

ii. After the expiration of time limited for presentation of election petition, amendment will not be permitted if it seeks to introduce any of the statutory requirements as to the contents of a petition or make substantial alteration to the facts relied or prayers.

iii Amendment will be allowed after the expiration of time for filing a petition if it is aimed at correcting typographical errors, spelling mistakes or other errors which do not amount to introducing new issues, facts or additional

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substance to the petition?

Underlining Mine.

This case above is self explanatory and is no authority, I hold, for the proposition of the Respondents? Senior Counsel that no amendments can be made to accompanying processes outside the period of 21 days stipulated for presentation of the petition. Indeed, this decision runs counter to the stance of the Respondents, as it allows for amendments to the petition itself after the expiration of time for its filing, ?if it is aimed at correcting typographical errors, spelling mistakes or other errors which do not amount to introducing new issues, facts or additional substance to the petition.”

The learned Silk for the 3rd Respondent has quoted the statement made in the case of Marwa v Nyako (2012) LPELR ? 7837 (SC) by Onnoghen JSC (as he then was) at Page 36 Para D that:

?It is settled law that the time fixed by the Constitution for the doing of anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded, or stretched beyond what it states.”

?This statement, however had nothing to do with

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Paragraph 4 or 14 (or its equivalent) of the First Schedule to the Electoral Act 2010 (as amended) as clearly stated by His Lordship Onnoghen JSC (as he then was) in the said case, where he held:

?It should be noted that the main issue for determination from the trial Court to this Court remains when does the four year tenure granted by the Constitution to state governors particularly the 1st respondents in the appeals start to run: Is it from the 29th day of May, 2007, when they took their first Oaths of Allegiance and Office following the 2007 general elections which they were declared winners or the dates in 2008, when they took their second Oaths of Allegiance and Office following their winning the re-run election ordered by the Courts as a result of the nullification of their earlier election.?

That case is thus not apposite, I hold.

In ADENIGBA v. OMOWORARE (2015) LPELR ? 40531 (CA), cited by Respondents? Counsel and also cited in the case of Owuru v President Buhari Supra by his Lordship Lawal Garba JCA, what was in issue were applications for extension of time to call additional witnesses and to file additional

38

witnesses? statements after the time prescribed for bringing election petitions.

In the case of OGBA v. VINCENT (2015) 9 LPELR ? 40719 (CA) further cited by the Respondents, what was in contention was whether the Petitioner should be allowed to file an additional witness statement at any stage of the election petition proceeding.

All these cases are distinguishable, I hold, from the facts in this case.

Relied upon heavily by all the Respondents? Counsels and the trial Tribunal, is the recent unreported case of Owuru v Buhari CA/PEPC/001/2019 delivered on 18/7/19, for the proposition that once the period for filing a Petition has expired, no amendment whatsoever can be made to any document. They have referred this Court to the dictum of my learned brother, Mohammed Lawal Garba, reading the lead Ruling where he held as follows, at Page 25 of the Ruling:

?The Court has unequivocally ruled and firmly held that the Petition cannot be amended and the witness Statement on Oath (if any) already filed cannot equally be amended and no list of witness can be allowed to be brought in at this stage of the proceedings bearing in

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mind the prescription of Paragraph 14(2) of the 1st Schedule to the Electoral Act that statutorily forbids the type of amendments sought by the Petitioners in the earlier application brought by them.?

Also referred to by them is the statement also made by my learned brother in that judgment, that:

?For umpteen times a Petitioner is statutorily excluded from applying for an amendments of Paragraph 4(1) of the 1st Schedule to the Electoral Act to the original Election Petition or effecting a substantial alteration of the ground for or prayer in the Election Petition after the expiration of the prescribed time for the presentation or filing of the Petition. It is immutable Rule. The current application of the Petitioners/Applicants is moribund. See Chief Alex Olusola Oke v Dro Rahman Olusegun Mimiko (2014) 1NWLR Part 1388 Page 225 at 253 G-H to 254 (A_C per I.T. Muhammad JSC (now Ag. CJN).? (sic).

My learned brother, Lawal Garba JCA thereafter quoted the following dictum of His Lordship I.T. Muhammad JSC (now CJN) in the case of Oke v Mimiko Supra where His Lordship, I.T. Muhammad JSC (as he then was), held:

?Perhaps the

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only thing I may add is that the application placed before the Tribunal was, I think, an after-thought. It was orchestrated certainly with a view to over-reach. If there was an evidence which was fundamental to the determination of the petition, that evidence ought to have been placed willy-nilly before the Tribunal within the time limit specified by the Electoral Act or any other Act. That evidence ought to be regarded as the spinal cord of the petition. Even if it was being withheld by any person, there are several ways to go about placing same before the Tribunal. The Evidence Act is very clear on this. The petitioners ought to have resorted to that procedure. It was never done. I am in tandem with the learned SANs for the 1st and 2nd respondents in their submissions that the ground upon which the petitioners wanted to bring in facts that were not available to them at the time of filing the petition, is an admission by the petitioners that it was an attempt by them to introduce new facts which were not available at the time of filing the petition.

This clearly offends the provision of Paragraph 14(2)(a)and (b) of the Act referred to earlier. This is

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irrespective of the mode the petitioners/applicants approached the Court: whether for extension of time to do an act or for an amendment to the petition, the result is one and the same. It must have impact on the petition. The refusal of the application by the two Courts is quite justified. I am in total agreement with the concurrent decisions thereof which I affirm.?

Underlining Mine

It is again clear from this authority that what the Petitioners sought in Oke v Mimiko as I have earlier observed was to bring in new facts that were not in the Petition, clearly offending against Paragraph 14 of the 1st Schedule Supra.

To properly situate the decision of my learned brother, Mohammed Lawal Garba JCA in the Ruling above, it is necessary to refer to the earlier Ruling delivered by that Court on 25/6/19 and which the Applicant, Chief Owuru, sought surreptitiously to bring again, leading to the statement made by my learned brother in the Ruling of 18/7/19 above.

?In the earlier Ruling delivered between the same parties on 25th day of June 2019 by His Lordship, concurred to by all learned Justices, also unreported and which the learned Silk

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for the 3rd Respondent has kindly availed this Court with, the Petitioners had brought the following application before the Court:

?1. AN ORDER of 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 Deposition on oath of XXY, WBC and BBC, annexed hereto as Exh. A,B,C

3. AN ORDER deeming the amended process 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.?

The poser which came up before the justices, expressed in the said Ruling of Lawal Garba JCA of 25/6/19 above, was:

?Apparently, since the motion was brought on the 15/5/2019, it was brought after the expiration of the 21 days period provided for

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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 amendments/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, 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

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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.

? 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

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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. This is the position of the Apex Court in the unreported decision delivered on the 24/5/2019 in APC & ANOR. Vs. Marafa (supra) wherein Galinje, JSC, in the lead judgment at pages 29 ? 30, stated that:-

?it is in that regards that I had in Adenigba & Anor. Vs. Omoworare & Ors. (2015) LPELR 40531 (CA)? stated as follows:-

?Applications for extension of time and order to call additional witnesses and to file additional witnesses statements after the prescribed period for bringing election petitions are not permitted because election matters are time bound and by reason of their being sui generis the procedure in handling them are more strict than ordinary civil matters.”

The above being the statement of the law on the issue of filing or amendment of a petition to add list

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of witnesses and statements on oath of such witnesses, as in the prayer 2 of the present motion, after the expiration or outside the prescribed period for bringing election petitions, the prayer 2 of the Petitioners/Applicants has reached a dead end of the law beyond which it cannot go. It cannot be granted at this stage and is bound to fail.

In the result, the prayer 2 of the motion paper is refused and dismissed.

In the final result, the motion succeeds only in respect of prayer 1 which is hereby granted as prayed in consequence of which, the amended petition dated and filed on the 13/5/2019 reflecting the amendments/corrections of the clerical errors in the misplacement of words or letters, as sought in prayer 1, is deemed to have been duly filed and served.

The amended list of witnesses to be called at the hearing of the petition along with written statements on oath of the named witnesses, annexed to the amended petition, are hereby struck out.?

Underlining Mine

From the foregoing, it is evident that in addition to amending clerical errors, what the Petitioner in the case before the Presidential Election Petition Court

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sought, was to add to the list of witnesses the names and depositions on oath of three other witnesses. It is this second application for the addition of new witnesses and statements on oath outside the prescribed period for bringing election petitions that was refused.

The attempt by the Petitioner to vivify this earlier dismissed motion by couching it differently, was considered in the subsequent Ruling of 18/7/19, an abuse of the Court?s process.

The re-couched motion of the Petitioner in that case sought the following orders:

a. Allowing the originally listed 2nd witness file his amended statement on oath to reflect and confirm to the Court granted amended petition.

b. Allowing the originally listed 1st witness in the petition file amended Statement on Oath to confirm and reflect the Court granted amended petition

c. Allowing the originally listed and certified 1st witness use and adopt the alias and abbreviations of AM as alternate name for purpose of security and ease of adoption and testimony at the hearing of the petition.

It was this ?re-couched? motion that the Court, in its subsequent Ruling of 18/7/19

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referred to when it held:

?That what the Applicants seek to do is to introduce:

1. Fresh Statement on Oath of an additional witness.

2. Amendment of Statement on Oath of an existing witness.

3. Amendment of the Statement on Oath of first witness under the pretense to ?reflect and conform? to the amendment granted on 25th June, 2019.?

The Court rightly considered these to be ?substantial amendments?, which statement we agree with absolutely.

Courts have been adjured time and again to desist from applying the ratio in cases across board, irrespective of whether the facts are the same as the case under consideration. A case, I hold, is authority for what it actually decided. For an authority to bind any Court, the facts and the law in the subsequent case must be the same or similar to those which informed the earlier Court?s decision.

The rules of stare decisis do not allow Courts to apply the ratio of a case with little regard to the facts of the case before them, I hold. See All Progressives Congress v Independent National Electoral Commission (2015) 8 NWLR Part 1462 Page 531 at 583

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Para D-G per M.D. Muhammad JSC; Interdrill (Nig) Ltd v United Bank for Africa PLC (2017) 13 NWLR Part 1581 Page 52 at 66 Para A-C per Nweze JSC; Dankwambo v. Abubakar (2016) 2 NWLR Part 1495 Page 157 at 181 Para B-D per Kekere-Ekun JSC.

The cases relied upon by learned Counsel to the Respondents state in unequivocal terms the resistance of the Courts to amendments of Petitions after the expiry date of presenting the election petition.

The mistake Counsel to the Respondents appear to be making is to equate a Petition with the accompanying documents that are filed along with it, thus suggesting that any application for amendment or howsoever, in respect of the other documents listed in Paragraph 4 of the 1st Schedule is an amendment to the Petition, which they say is contrary to Paragraph 14 of the 1st Schedule to the Electoral Act Supra. This is clearly not so and the authorities relied upon by them certainly have not stated this.

Indeed, in the case of Mustapha v Gamawa (2011) LPELR 9226 (CA), relied upon by the Respondents, this Court, per Jauro JCA at Page 34-35 made this clear when His Lordship held as follows:

?Learned counsel

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argued that the statement on oath is part and parcel of the petition. The question that readily comes to mind is that, if the statement on oath forms an integral part of the petition what then is the need for transferring the prayers from the statement on oath to the petition.

Paragraph 4(5) of the First Schedule to the Act provides thus:

“4(5) The election petition shall be accompanied by:

(a) a list of the witnesses that the petitioner intends to call in proof of the petition

(b) written statements on oath of the witnesses; and

(c) copies or list of every document to be relied on at the hearing of the Petition”

It is glaringly clear from the above provision that an election petition is distinct and separate, but shall be accompanied by the items listed which includes the witness statement on oath.?

This Court also, in the case of PDP v Edem (2016) 12 NWLR Part 1525 Page 106, where an even further reaching application was made, cited Paragraph 4(5) of the First Schedule with regard to processes that should accompany an election petition and Paragraph 14(2) on amendments which could not be made, and held, per

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Oyewole JCA at Page 115-116 Para F-C:

?It is trite that unless it would result in absurdity, words of a statute are to be given their ordinary grammatical meaning. See GASSOL VS TUTARE (2013) 53.3 NSCQR 196.

It is clear that the statute in issue makes a clear distinction between the petition and what accompanies it. The pleadings and evidence to establish it.

I certainly do not agree with Mr. Ekong that amending the evidence is the same as amending the facts. The provisions of the law did not mix the two. The entire essence of front loading in election dispute adjudication is to achieve speedy dispensation of justice. Front loading evidence is not designed to obliterate the distinction between facts and the necessary evidence to establish those facts.

Mr. Ekong referred in this respect to the decision of the Supreme Court in GENERAL MUHAMMADU BUHARI vs INEC & ORS (supra). Even in that case, the Supreme Court made a distinction between the petition and the depositions meant to prove it.

Furthermore, it defeats the essence of justice where a party is allowed necessary opportunity to discover evidence to conduct his

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case but prevented from presenting the evidence gathered. Injustice is anathema in the temple of justice.?

It is thus clear, beyond dispute, and as held in the cases above, that documents that accompany a Petition are different from the Petition itself, with different principles applying to amendments of both. It is also clear that the circumscription of changes or alterations to the Petition as stipulated in Paragraph 14 of the 1st Schedule to the Electoral Act do not apply to documents filed along with the Petition, except of course, if the effect would be an alteration to the Petition or the incidents stated in Paragraph 4 of the 1st Schedule Supra.

In the case before my learned brother, Oyewole JCA, the 1st and 2nd Respondents had been granted leave to inspect the card reader machines, incident forms and other election material. They subsequently sought and were granted leave by the Tribunal to amend their list of witnesses to include the Petitioners and an expert witness, and to include the depositions of those additional witnesses. They were also granted leave for an amendment to reduce the number of witnesses on the list. They further

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sought a deeming order of the proposed amended list of the Petitioner?s witnesses and the written statements on oath of the additional witnesses as properly filed and served. Aggrieved by the grant of this leave, the Respondent appealed, resulting in the decision by Oyewole JCA above.

Paragraph 14(2) of the First Schedule to the Electoral Act Supra is clear, I hold, as to amendments that cannot be made after the period specified for presenting election petitions. These amendments prohibited are those which introduce any of the requirements of Subparagraph (1) of Paragraph 4 of the Schedule, which are not contained in the original petition.

?These amendments prohibited, contained in Paragraph 4 of the First Schedule to the Electoral Act 2010 (as amended) Supra and as contained in the Petition are the following, which:

(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

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and the ground or grounds on which the petition is based and the relief sought by the petitioner.

Also, prohibited, by Paragraph 14(2) (a) (ii) of the First Schedule to the Electoral Act Supra after the expiration of the said period, are amendments which ?effect a substantial alteration of the grounds for, or the prayer in the election petition.”

An application to amend a list of witnesses to include the names of those whose depositions were filed along with the petition, but omitted from the List of Witnesses, cannot, by any stretch of imagination, be termed ?an introduction? of the requirement in Paragraph 4 which are not contained in the Petition. They also cannot be described as ?effecting a substantial alteration of the ground for or the prayer in the election petition?.

There is a clear distinction between prohibited amendments to a Petition and amendment of accompanying processes, I hold.

?It is not every conceivable amendment either to the Petition or accompanying documents that must be refused after 21 days prescribed by Section 285(5) of the Constitution. Each case, I hold, must be decided on its

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own peculiar facts.

Indeed, in the case of Owuru v President Buhari Supra so heavily relied upon by them, the Court allowed amendments to the Petition itself, though filed after the 21 days prescribed for filing the same.

By the interpretation given to the words of these statutes, the Respondents, I hold, are importing into these statutes meanings that are not therein contained and outside the clear words employed by the legislators.

The cardinal principle of interpretation of statutes, inclusive of the Electoral Act, is that where the words used in a statute are clear and unambiguous the Courts should give them their ordinary natural and literal meaning, in order to establish the intention of the law maker. It is only where the ordinary or literal meaning of the clear and unambiguous words fail to bring out the intention of the lawmaker or leads to an absurdity that resort is had to constructive interpretation. See Dickson v Sylva (2017) 8 NWLR Part 1567 Page 167 at 233 Para D per Kekere-Ekun JSC; Lokpobiri v Ogola (2016) 3 NWLR Part 1499 Page 328 at 363 Para E-F per Onnoghen JSC (as he then was); Registered Trustees of the Airline Operators of Nigeria v Nigerian Airspace Management Agency (2014) ?

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8 NWLR Part 1408 Page 1 at 41 Para B-C; (2015) All FWLR Part 762 Page 1786 at 1812 Para B-D per Okoro JSC.

There is no ambiguity in the words of the statutes above, I hold.

Courts have been adjured to interpret the law within the con of its constitutive words and refrain from seeking the meaning of the statute outside the clear words employed by the legislators. See Nobis-Elendu v Independent National Electoral Commission ? (2015) 16 NWLR Part 1485 Page 197 at 224 Para D-E; (2015) All FWLR Part 812 Page 1505 at 1529 Para G per M.D. Muhammad JSC; Britannia U (Nig) Ltd v Seplat Petroleum Development Co. Ltd (2016) 4 NWLR Part 1503 Page 541 at 594 Para E-G; (2016) All FWLR Part 826 Page 398 at 441 Para D-G per Ngwuta JSC; Okotie- Eboh v Manager (2004) 18 NWLR Part 905 Page 242 at 186-187 Para H-B per Edozie JSC.

I disagree with the Respondents? Senior Counsels that cases after Oke v Mimiko Supra, gave restrictive interpretations to the Electoral Act with respect to amendments and the filing of processes.

In the case of APC v. Mbawike & ORS (2017) LPELR 4134 (CA) at Page

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30-35 my learned brother, Mbaba JCA on the issue of amendment held:

?The general law governing amendment of pleadings or process of Court is that amendment is usually permitted and allowed at any stage of proceedings; once the same is done to bring out the real issues in controversy for determination by the Court, provided the opponent is not prejudiced, over-reached or made to suffer injustice in the process. See ? the recent decision of this Court on the issue, that is, case of Sunday Okorie Vs Christian Okorie CA/OW/262M/2013, delivered on 16/11/16, wherein we quoted the Supreme Court case of Eta Vs Dazie(Supra), where the Supreme Court said:

?The duty of a judge is to see that everything is done to facilitate the hearing of any action pending before him and whenever it is possible to cure and correct an honest or unintentional blunder or mistake in the circumstances of the case, and where such amendment will help to expedite the hearing of the action, without injustice to the other party.

It is true that in Election Petition cases, the rules on amendment is much more regulated, in keeping with the sui generic nature of

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election mattersAs it were, the law bars amendment of the petition in the above areas (Paragraph 4(1) of the 1st Schedule) and amendment leading to substantial alteration of the grounds or prayers in the petition, or leading to substantial alteration of or addition to the statement of fact relied on to support of the ground(s) for or sustain the prayer in the petition. The above, stringent as it is, certainly, does not appear to suggest a blanket bar to amendment of the process, where such amendment relates to obvious errors (typographical, clerical or blunder of Counsel) which do not go to the root of the petition or are substantial enough to alter the case presented by the Petitioner; and where the error can be corrected, without over-reaching the other party; or giving advantage to petitioner; or visiting prejudice or injustice on the opponent?.The main substance of the amendment sought was to correct clerical blunders?..Of course, Appellant, in my view, was not over-reached by the application and was not misled by the errors, as it had filed its ReplyI think the amendment was necessary, in the circumstances,

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as it merely filtered away the obvious clerical and typographical errors from the Petition, to enable the Tribunal pursue the course of justice of the case.?

Underlining Mine

Indeed in the Ruling delivered on 25/6/19 in CA/A/PEPC/001/2019 Owuru v President Buhari, per Lawal Garba JCA, it was held that ?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.?

It is thus incorrect to state that cases subsequent to Oke v Mimiko gave restrictive interpretations to the Electoral Act in view of the shorter time spans. The principles in the earlier cases still remain true.

Indeed in the Ruling in Owuru v President Buhari Supra, the Court relied on the dictum

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of the Supreme Court given in 2009, in Hope Democratic Party vs. INEC & ORS (2009) LPELR 1375 (SC) at Page 24, per Onnoghen, JSC (as he then was), reading the lead judgment where His Lordship observed:-

?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.

In the earlier case of Airhiavbere v Oshiomhole & ORS (2012) LPELR-19787(CA), it was held, per Tom Shaibu Yakubu JCA at Pages 19 and 20 as follows:

?Unarguably, by virtue of Paragraph 4(5) of the First Schedule to the Electoral Act 2010 (as amended), a petitioner in an election petition, must, at the time of filing his petition, file along with it, contemporaneously, the list of the witnesses he intends to call in proof of the petition; written depositions/statements on oath of the witnesses and copies or list of every document to be relied on at the

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trial and hearing of the petition ?.However, where the petitioner, such as the appellant herein, in an application at his instance wishes to add some other witnesses into his petition, the Tribunal or Court, hearing the petition, possess the discretionary power to grant or refuse the application as the case may be, depending on the facts and circumstances of the particular case.?

In the case of Abubakar v Yar Adua (2008) 4 NWLR Part 1078 Page 465 the issue of non-compliance with regard to frontloading of witness depositions and list of such witnesses came up for determination. The Supreme Court held that failure to front load witness depositions and list of witnesses was a mere error that cannot defeat an election petition and which the Court should allow to be corrected.

The great Jurist, Niki Tobi JSC, at Pages 510-512 Para G-C in allowing the appeal in part, gave a profound directive on when non-compliance with the Rules should not stand in the way of doing justice. The importance and relevance of these directives, even though given before the Electoral Act of 2010 (as amended) remain evergreen and relevant and are set out

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in extenso, as follows:

?It is not every non-compliance with rules of Court that will vitiate the proceedings or do harm to the party in default. As a matter of our adjectival law, and by the state of the non-compliance rules, the Courts will regard certain acts or conducts of non-compliance as mere irregularity which could be waived in the interest of justice. Again, as a matter of our adjectival law, non-compliance rules in their aggregate content point more to this trend than the reverse position of a punitive nature against the non-complying party. The state of the law is more in favour of forgiving non-compliance with rules of Court, particularly, when such non-compliance, if waived, will be in the interest of justice.

The basic principle of law is that it is the object of the Court to decide the rights of the parties and not to punish them for mistakes they make in the litigation process, particularly when the mistakes are really mistakes. It is a known fact that blunders must take place in the litigation process and because blunders are inevitable, it is not fair, in appropriate cases, to make a party in the blunder to incur the wrath of

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the law at the expense of hearing the merits of the case. Rules of Court, which include here Practice Directions, are not intended to be ridiculously applied to a slavish point particularly if such an application will do injustice in the case.

In Eboh v. Akpotu (1968) 1 All NLR 220, Coker, JSC, said;

“It is not every irregularity that can nullify entire proceedings and it may well be open to a party claiming by virtue of an irregularity to contend that such irregularity does not materially affect the merits of the case or engender a miscarriage of justice.”

Rules of Court are meant to be obeyed of course that is why they are made. There should be no argument about that. But there is an important qualification or caveat and it is that their obedience cannot or should not be slavish to the point that justice in the case is destroyed or thrown overboard. The greatest barometer, as far as the public is concerned, is whether at the end of the litigation process, justice has been done to the parties. Therefore, if in the course of doing justice, some harm is done to some procedural rule which hurts the rule, such as

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Paragraph 7 of the Practice Directions, the Court should be happy that it took that line of action in pursuance of justice. This Court cannot myopically or blindly follow the Practice Directions and fall into a mirage and get physically and mentally absorbed or lost. Let that day not come.

The mere fact that the application was brought by the 4th to 808th respondents to call additional witnesses is clear that a mistake was committed somewhere when only two witnesses, were put in the list of witnesses. Should this Court punish the respondents for their mistake in such a big way of refusing them to call 213 witnesses? The answer is, No. That will be justice in inverted commas. That will be injustice. And I cannot sit in this Court to do injustice.

I am in entire agreement with the Court of Appeal when the Court held that full opportunity should be given to parties in the interest of justice without due regard to technicalities. Gone are the days when Courts of law were only concerned with doing technical and abstract justice based on arid legalism. We are now in days when Courts of law do substantial justice in the light of the prevailing circumstances of the case. It is my hope

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that the days of the Courts doing technical justice will not surface again.

And what is more, election petitions are sui generis and should be treated in that domain or realm. If Courts of law are bound to do substantial justice in ordinary civil matters how much less (sic) in an election petition, I should take the question to another level or layer and it is this. If Tribunals are bound to do substantial justice in election petitions, how much less (sic), a Presidential Election petition in which the whole country of Nigeria is one constituency. I do not think that the Court of Appeal was wrong in giving one extra kilometre to accommodate the 4th to 808th respondents. The Court did a good job and I commend the Justices.?

See also Sa?eed v Yakowa (2013) 7 NWLR Part 1352 Page 124 at 145-146 Para H ? C, where it was held by the same Court, per Tabai JSC:

?The current and prevailing principle in the administration of justice is that where in the beginning or in the course of the proceedings, a party commits an omission or mistake in the laid down practice and procedure, it can be regarded as an irregularity

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which the Tribunal or Court can and should rectify or even ignore so long as it is satisfied that the omission or mistake occasions or is incapable of occasioning any injustice to the other party. This is the principle deliberately engrafted by the legislature into Paragraph 53(1), (2) and (4) of the First Schedule to the Electoral Act 2010 (as amended). In the instant case, the approach of the Court of Appeal was too restrictive and technical, capable of undermining the very ends of justice for which rules of procedure were made. The Court of Appeal had a duty to read the provisions of the First Schedule to the Electoral Act 2010 (as amended) holistically, and construe same widely and generously to give effect to the manifest intention of the provision to do substantial justice and not technical justice?.?

Applying these authorities to the instant case, the omission of the Appellant to include in its List of Witnesses, eight (8) witnesses, whose evidence had already been frontloaded along with other documents required by Paragraph 4 of the 1st Schedule to the Electoral Act Supra, was patently a mere inadvertence.

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Paragraph 53(1) of the First Schedule to the Electoral Act Supra provides:

?Non-compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding 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 and on such terms as the Tribunal or Court may deem fit and just.”

The omission by the Appellants to put the 8 (eight) names of the witnesses in the List of Witnesses, as deposed to by them before the lower Court, was clearly an inadvertence, seeing that the witness statements of these witnesses had already been frontloaded along with over 200 others. The Court have over time sought not to punish litigants for what is clear to be the mistake of their Counsel. See Shell Petroleum Development Company of Nigeria Limited v. Agbara (2016) 2 NWLR Part 1496 Page 353 at 411 Para A-B (2016) All FWLR Part 825 Page 287 at 337 Para B-D per I.T. Muhammad JSC (now CJN)

The Respondents, it is clear, shall not be prejudiced by the grant of this

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application, as the witness statements of the eight witnesses whose names the Appellants? Counsel seeks to include in the list, are contained in the Record, having been filed on 11/4/19 along with the Appellant?s Petition, and which has been served on them.

The whole purpose of front loading of documents is to acquaint the other side in advance with the testimony of the witnesses and prepare against the same.

It was held in Adegbuyi V. Mustapha & ORS (2010) LPELR-3600(CA) cited by the learned Silk for the 3rd Respondent, as follows:

Front-loading is to ensure that there is no trial by ambush and to expedite the hearing. It is to enable the parties know not only the case they are to meet at the trial but also the oral and documentary evidence by which the case is to be proved. It affords the parties an opportunity at the pre-trial hearing session to object to certain documents at the earliest opportunity, to allow certain documents and/or to concede certain facts or issues where appropriate.”

?All the Respondents have filed their Replies to the Appellant’s petition on varying dates in May 2019. I thus see no prejudice to them by the grant of this application.

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In consequence, I resolve the 1st issue for determination in favour of the Appellant.

The trial Tribunal in this case, I accordingly hold, relying on the cases of Marwa Vs. Nyako; Oke Vs. Mimiko; Owuru V. President Buhari Supra in dismissing the application of the Appellant, was therefore in grave error.

It was also in error to have held:

?In conclusion therefore, having stated the position of the Law as it affects this application at hand, this Tribunal lack the requisite discretion to grant the Petitioners/Applicants any extension of time to amend their Petition after failing to comply with the mandatory provisions of paragraph 4 (5) (1) (a) and 14 (2) (a) of the First schedule to the Electoral Act (as amended).?

Having so resolved, I consider it unnecessary to deliberate on the 2nd issue, as to the competence of the 1st Ground of appeal and the competence of the 2nd issue for determination, as the success of the 1st issue for determination has rendered that issue no longer a live one and merely academic.

?

In consequence, this appeal succeeds. The Ruling of the lower Court

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delivered on 16/7/2019 is set aside.

The Motion filed by the Appellants is granted in the following terms:

1. Leave is granted to the Appellants to add to the list of witnesses that accompanied the Petition filed on the 11th Day of April, 2019 at pages 126 to 140 of the volume 1, the names of 8 (eight) persons whose witness depositions were front-loaded at pages 141 to 232 volume 1 of the already filed Petition.

2. Leave is also granted to the Appellants to reply on the additional list of the witness of the Petitioners/Applicants attached to the application which contains the names of the 8 (eight) persons whose witness depositions have been front-loaded and filed on the 11th April, 2019 along with the original Petition at pages 141 to 232 of the volume 1.

3. An Order is granted deeming the additional list of the Petitioners? witnesses separately filed and served as duly filed and served for the purpose of proving the facts in the Petition at the hearing of the Petition.

The parties are to bear their respective costs.

HUSSEIN MUKHTAR, J.C.A.: l have had a preview of the

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judgment just delivered by my learned brother, Oludotun Adebola Adefope-Okojie, J.C.A. I agree with the reasons for the conclusion that the appeal has merit and should be allowed.

For the eloquent appraisal and well articulated reasons in the judgment, which I adopt, I allow the appeal and subscribe to the consequential orders made in the judgment.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my Lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA, I agree.

SAIDU TANKO HUSSAINI, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my Lord, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, with whom I concur with the reasoning and conclusion, that the appeal has merit and it is allowed. The ruling delivered at the Tribunal, appealed against is set aside. The application made at the Tribunal by the appellants is granted in terms of the Orders contained in the lead Ruling. I also abide by the order as to cost.

 

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JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading the draft of the Judgment delivered by my learned brother, OLUDOTUN ADEFOPE- OKOJIE, JCA. She was indeed very painstaking and resourceful in the preparation of the judgment. All the authorities cited by the respective learned silks and other counsel which she did not find applicable to this appeal were satisfactorily and ably distinguished.

The substance of this appeal is of utmost importance in the area of amendment under the Electoral Act, 2010 (as amended). It is on this ground that I consider it necessary to add my voice to the reasoning of my Lord in her judgment.

It is not every amendment sought to be made to either the petition or accompanying documents in an election petition that cannot be allowed after 21 days. It is my considered view that the amendments that cannot be made as contemplated under the Electoral Act, 2010 (as amended) are those provided for in Paragraph 14(2)(a)(i) and (ii) of the 1st Schedule to the Electoral Act, 2010 (as amended). The amendment of list of witnesses to include witnesses whose depositions were filed along with the petition but omitted from the list of witnesses cannot

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be regarded as an introduction of the requirement of Paragraph 4 of the 1st Schedule as it does not constitute a substantial alteration of the ground for, or prayer in the petition. In my view, it comes within the exceptions provided for in Paragraph 14(2)(a)(iii of the 1st Schedule to the Electoral Act, 2010 (as amended).

I am therefore in complete agreement with my Lord that the trial Tribunal was in grave error in dismissing the Appellants’ application. The ruling is hereby set aside. In the stead of the dismissal, I grant the Appellants’ application as prayed in the motion paper at the trial Tribunal.

I abide by my Lord’s order that parties bear their respective costs.

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Appearances:

Adegboyega Awomolo, SAN with him, A. J. Owonikoko , SAN, M. K. Umar, Ado Dahiru, Yusuf Mohammed, Olajide Olaleye Kumuyi and Bashir Yusuf MuhammedFor Appellant(s)

Adedayo Adedeji with him, Abdulakkeem Audu, Ifeanyi Chukwurah for the 1st Respondent.

Offiong Offiong, SAN with him, S.H, Garun Gabbas, SAN, M.N, Duru, Ibrahim Muktar and Moses A. Falana for the 2nd Respondent.

Alex Izinyon, SAN with him, F.O. Izinyon and Alex Izinyon II for the 3rd Respondent

For Respondent(s)

Appearances

Adegboyega Awomolo, SAN with him, A. J. Owonikoko , SAN, M. K. Umar, Ado Dahiru, Yusuf Mohammed, Olajide Olaleye Kumuyi and Bashir Yusuf MuhammedFor Appellant

AND

Adedayo Adedeji with him, Abdulakkeem Audu, Ifeanyi Chukwurah for the 1st Respondent.

Offiong Offiong, SAN with him, S.H, Garun Gabbas, SAN, M.N, Duru, Ibrahim Muktar and Moses A. Falana for the 2nd Respondent.

Alex Izinyon, SAN with him, F.O. Izinyon and Alex Izinyon II for the 3rd RespondentFor Respondent