ALL PROGRESSIVE CONGRESS & ANOR v. PEOPLES DEMOCRATIC PARTY & ORS
(2019)LCN/13757(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of August, 2019
CA/C/NAEA/291/2019
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
1. ALL PROGRESSIVE CONGRESS (APC)
2. HON. VICTOR ETIM ANTAI Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY(PDP)
2. HON. NSE EKPENYONG
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION(INEC)
4. RESIDENT ELECTORAL COMMISSSIONER AKWA IBOM STATE Respondent(s)
RATIO
WHETHER OR NOT PRELIMINARY OBJECTION SHOULD BE DETERMINED BEFORE THE SUBSTANTIVE ISSUE
As required by the rules and practice of this Court, the preliminary objection must be taken first because the import of an objection if it succeeds is to terminate the appeal in limine and without any determination on the merit, see KLM ROYAL DUTCH AIRLINES VS. ALOMA (2017) LPLER- 42588 (SC) where KEKERE-EKUN, JSC said:
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe vs. Ofomata (2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe vs. Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. vs. Ango (2001) 15 NWLR (Pt.734) 627; Muhammed vs. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.” PER NIMPAR, J.C.A.
WHETHER OR NOT A DECISION CAN BE SET ASIDE MERELY BECAUSE IT WAS FOUNDED ON A WRONG LAW WHEN THERE IS A LAW IN EXISTENCE WHICH COULD NOT SUPPORT THE DECISION
It is trite that a decision cannot be set aside merely because it was founded on a wrong law when there is a law in existence which could support the decision and the decision is in itself correct; see KWARA STATE JUDICIAL SERVICE COMMISSION VS. TOLANI (2019) LPELR- 47539 (SC) wherein the apex Court said thus:
“Again for emphasis is that an appellate Court such as this Apex one, will not reverse the decision of the Court below simply because the conclusion and decision were reached from a wrong reason. This is so because once the decision is correct the wrong channel or route through which that decision was made would not scuttle the said conclusion. See The State vs. John Ogbubunjo (2001) 1 SCNJ 86 at 106 per Onu JSC.” Per PETER-ODILI, J.S.C”. PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This interlocutory appeal is against the Ruling of the National and States Assembly Election Petition Tribunal sitting at Uyo, Akwa Ibom State delivered on the 26th day of June, 2019 wherein the Tribunal (Coram: Hon. Justice J. M. Ijohor?Chairman; Hon. Justice B. L. Dalyop ? Member 1 and Hon. Justice C. K Nwankwo ? member 2) dismissed an application brought by the Appellants seeking to amend their Petition No. EPT/AKS/SHA/28/19 by correcting what they claimed is a typographical error in certain paragraphs of the petition. Dissatisfied with the said decision, the Appellants filed a Notice of Appeal on the 8th day of July, 2019 setting out a single ground of appeal.
Facts leading to the appeal are simple and straight forward. The Appellants are petitioners in an Election Petition challenging the return of the 2nd Respondent in the election conducted on the 23rd February, 2019 and 9th March 2019 to represent Oron/Mbo/Okobo/UrueOffong/Oruko and UdungUko Federal Constituency. The 3rd Respondent conducted the election.
?The 4th Respondent was
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initially a party to the petition but was subsequently struck out by order of Court and no longer a party to this appeal.
The Appellants during the pretrial session in an application by way of a Motion on Notice filed on the 17th June, 2019 sought the following orders:
1. AN ORDER amending paragraph 7 and 77 of the petition by deleting the typographical error ?Uyo? at paragraph 7, page 5 line 3 and paragraph 77 page 22 line 20 and replacing it with the word ?Oron?.
2. AND FOR SUCH OTHER ORDER(S) as the Honourable Court may deem fit to make in the circumstance of this application.
The grounds upon which the application was founded are thus:
i. It is a non-contentious typographical error and the amendment (sic).
ii. It does not affect the substance of the Petition.
The application was vehemently opposed and on a careful consideration, the Tribunal refused the application and thus this appeal.
?
The Appellants filed their Appellants? Brief on the 24th July, 2019 and it was dated the same day. The brief was settled
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by M. E. NWOSUEGBE, ESQ., The Appellant?s brief presented a sole issue for determination in this appeal as follows:
Whether this Honourable Tribunal was right in holding that the Petitioners/Appellants are not entitled to an amendment because the time has lapsed, contrary to judicial decisions of this revered apex Court.
The 1st Respondent?s Brief settled by EMMANUEL O. AKPAN, ESQ., It was filed 29th July, 2019 but dated 27th July, 2019 and it distilled an issue for determination as follows:
Whether or not the lower Tribunal erred in law to by (sic) refusing the Appellant?s application to amend the petition?
The 2nd Respondent?s Brief settled by ELDER BASSEY WILLIE, ESQ., it was dated 29th July, 2019 and filed on the same day. It also distilled a sole issue as follows:
Whether the Honourable Tribunal was right in not allowing the Petitioners to amend their originating process.
The 3rd Respondent?s Brief settled by CLEMENT IMOH, ESQ., is dated and filed the 29th day of July, 2019. It also argued a single issue as follows:
The 3rd Respondent also gave notice of a preliminary objection at page 4 of
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the brief with arguments incorporated in the main brief particularly at pages 4-6 of the Brief. The objection seeks the determination of an issue donated as follows:
Whether having regards to Section 242(1) of the 1999 Constitution of Nigeria as Amended the Appellants Notice of Appeal dated 2nd day of July 2019 and filed 8th day of July, 2019 is competent and ought not to be struck out?
?
The 3rd Respondent proffered arguments in respect of the Objection and submitted that Section 242(1) of the 1999 Constitution requires that leave be sought and obtained in an interlocutory appeal on mixed law and facts and none was sought and obtained in this case in hand contrary to Rule 6(2) of the Court Rules, 2016. He referred to the contention of the Appellants that the application was to correct clerical errors and not substantial issues which makes the appeal one on issue of facts and not law. He reviewed the single ground of appeal and submitted that the Appellant alleged an error in law and misdirection in refusing the application to amend the originating process beyond 21 days after it had been filed. Furthermore, 3rd Respondent submitted that Paragraph 5 of
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Particulars to the ground of appeal mentioned the amendment contemplated by the law, which is an issue of fact and not law, relied on ASOGWA VS. PDP (2013) 7 NWLR PT. 1353 207 which held that prior leave is required for interlocutory appeals on grounds of mixed law and facts, hence the appeal here is incompetent having been filed without leave first sought and obtained and contrary to Section 233(3) of the 1999 Constitution (as amended).
Arguing further, the 3rd Respondent contended that the Notice of Appeal being the foundation of an appeal and initiating process, it must be competent because a defective Notice of Appeal, cannot support a competent appeal, citing IKUEPENIKAN VS. STATE (2015) 9 NWLR (PT. 1465) 518 and DANIEL VS. INEC (2015) 9 NWLR (Pt. 1463) 113.
?
Another area of objection is that the Notice of Appeal complained about a judgment when in fact, it was a ruling appealed against which was delivered on the 22nd day of June, 2019 and referred to paragraph 2 of the Notice of Appeal. It was argued that paragraph 2 contradicts paragraph 4 which seeks to set aside the Ruling of the trial Tribunal. A position the 3rd Respondent submits is
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contrary to Order 7 Rule 2(1) of the Court?s Rules and citing KENNETH NDUKA AGBAKWURU & ORS. VS. LABOUR PARTY & ORS. (unreported) in Suit No: CA/OW/EPT/45/2011 delivered on 27th February, 2012 per TSAMMANI, JCA wherein the Court held that it is a requirement of Order 6 Rule 2(1) that a valid Notice of Appeal must state the decision complained of; whether the whole decision or a part thereof. Thus failure to correctly state the part of the decision makes the Notice of Appeal defective and incompetent; and liable to be struck out. The Court is urged to strike out the Notice of Appeal filed on the 8th day of July, 2019.
The Appellant responded to the Respondents? Briefs individually by the filing of Appellant?s Replies. The Reply to the 1st Respondent is dated 2nd August, 2019 and filed on the same day. The Reply to the 2nd and 3rd Respondents are also dated and filed on the 2nd August, 2019.
?
The Appellants responded to the objection taken by the 3rd Respondent in their Reply Brief particularly at pages 1-3 of the Reply Brief. In response, the Appellants contended that the objection is misplaced and not in tune with the sui
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generis nature of election petitions because procedure for leave was not contemplated as it will impede time bound nature of the petitions. They reproduced Section 246(1) of the Constitution of the Federal Republic of Nigeria which makes appeals a matter of right from any decision of the Election Tribunal, relying onKENNEDY VS. INEC (2009) 1 NWLR (PT. 1123) 614 and ORUBU VS. NEC (1988) 5 NWLR (PT. 94) 323.
On the question whether it was a ruling or a judgment appealed against, the Appellants submitted that it was a slip which cannot render the Notice of Appeal defective. Furthermore, they referred the Court to the case of SHETTIMA VS. GONI (2011) LPELR- SC.322/2011 wherein the words decision and judgment was defined as provided in Section 285(7) of the 1999 Constitution to refer to either interlocutory or final determination and admits of no distinction between ruling and judgment. Referring to the Notice of Appeal, they submitted it is competent and the objection is incompetent.
RESOLUTION OF THE PRELIMINARY OBJECTION
As required by the rules and practice of this Court, the preliminary objection must be taken first because the import of an
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objection if it succeeds is to terminate the appeal in limine and without any determination on the merit, see KLM ROYAL DUTCH AIRLINES VS. ALOMA (2017) LPLER- 42588 (SC) where KEKERE-EKUN, JSC said:
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe vs. Ofomata (2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe vs. Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. vs. Ango (2001) 15 NWLR (Pt.734) 627; Muhammed vs. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.”
?
The principal objection brought by the 3rd Respondent is on the failure of the Appellants to seek leave to appeal, the ruling
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appealed against being an interlocutory appeal and on mixed law and fact. The fact remains that this appeal is rooted in Section 246(1) (b) of the Constitution which gives a right of appeal from decisions of the National and State Houses of Assembly Election Tribunals, it says thus:
?246(1) an appeal shall lie as of right from-
(b) Decisions of the National and States Houses of Assembly Election Tribunals;?
The appeal here is not one grounded on in Sections 240-245 of the 1999 Constitution. The National and States Houses of Assembly Election Tribunal is not any of the courts mentioned in Sections 241-245 of the Constitution, the provision under which the objection is taken. It is a special Tribunal/Court with a clear Constitutional provision in Section 246 of the Constitution. This section does not contemplate the requirement for leave to appeal on any ground or on grounds other than grounds of law. Furthermore, the Appellants hit the nail on the head when they submitted that the requirement to seek leave cannot be accommodated in appeals under Section 246(1) (b) which are pointedly on election matters and it is beyond argument that
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these are special class of cases which are commonly known as sui generis and also have inelastic time lines for steps to be taken. There is therefore, no statutory or procedural provisions requiring a prior leave to appeal against interlocutory decisions where the grounds are grounds of fact or mixed law and fact. The objection on this point is misconceived and is hereby discountenanced.
The 3rd Respondent?s second objection is principally on the alternate use of the words ?Judgment? and ?Ruling? in the Notice of Appeal. As argued by the Appellants, Section 246(1) (b) did not distinguish between Ruling and Judgment and the apex Court considered what the word decision as used in the 1999 Constitution contemplates, it said:
“It is also of much importance to note that the words “decision” and “judgment” as defined in the said Section 285(7) of the 1999 Constitution applies generally to the determination of a Court either in an interlocutory proceeding or in the final decision. The definition admits of no distinction between interlocutory and final proceedings/decisions. A Court or tribunal can make an order either in an
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interlocutory proceeding or in the final decision and it would still be an order or decision or judgment of the Court by the provisions of Section 185(7) of the 1999 Constitution.” See SHETTIMA & ORS VS. GONI & ORS. (2011) LPELR-417, Per Onnoghen, JSC (as he then was).
Flowing from above the use of the word judgment in place of Ruling cannot affect the Notice of Appeal and render it incompetent; it is not one of the features that qualify a Notice of appeal as competent. The contention of the 3rd Respondent is frivolous and a mere technicality which cannot be countenanced to defeat a valid appeal. This aspect of the objection is also misconceived and is hereby discountenanced.
MAIN APPEAL
The Court shall adopt the sole issue presented by the Appellants for determination in this appeal. It is not too different from the issues formulated by the Respondents except for the difference in semantics as used by the different parties. The issue adopted for determination states thus:
Whether this Honourable Tribunal was right in holding that the Petitioners/Appellants are not entitled to an amendment because the time has lapsed, contrary to
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judicial decisions of this revered apex Court.
The Appellants in arguing the sole issue submitted that the amendment sought before the Tribunal below was not substantial or capable of changing the character of the petition and therefore incapable of taking the Respondents by surprise and it should have been granted. They argued that the amendments sought was to correct typographical or clerical errors in the petition before the trial Tribunal, referred the Court to the case of APC VS. MBAKWE & ORS. (2017) LPELR-(incomplete citation) which they submitted is on all fours with the present appeal. They contended that bringing the application after the period fixed for submission of petitions is not a bar to granting the application citingPDP VS. EDEM & ORS. (2015) LPELR- 40606 (CA) approving the grant of such applications. The Appellants further submitted that the application sought to substitute the word ?Uyo? with ?Oron? in some paragraphs of the petition, particularly paragraph 7 and 77 of the petition is a typographical error. They questioned the decision of the trial Tribunal and rationalize that the error was because the
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cases of APC VS. MBAKWE (supra) and YUSUF VS. OBASANJO (2003) 16 NWLR (PT. 847) 532 cited to the trial Tribunal were not followed.
The Appellants also expected the trial Tribunal to take judicial notice of Result sheet attached to the petition to see that the constituency named therein, relying on Section 1122(1) (2) (sic) of the Evidence Act, the case of MMA INC VS. NMA (2012) LPELR-20618 (SC) to submit that reference to a document makes the document part of the pleadings and also AMAECHI VS. INEC (2008) LPELR-446 (SC) on when a Court must take judicial notice of a fact making it unnecessary to prove such a fact. They urged the Court to allow the appeal.
The 1st Respondent in response submitted that the trial Tribunal did not err in refusing the application because amendment of election petitions are not granted as a matter of course because Paragraph 14(2) of the First Schedule to the Electoral Act, 2010 as Amended bars amendments to election petition after the period set for the presentation of a petition and observed that though Section 134 of the Electoral Act has been deleted, it was elevated to a higher pedestal by being inserted in the
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Constitution as Section 285(5). He argued that being a constitutional provision; the Tribunal cannot be faulted merely on the ground that Section 134 of the Electoral Act had been deleted. Learned Counsel argued that deleting Section 134 of the Electoral Act did not open a flood gate for indiscriminate amendments to petitions, relied on OGBA VS. VINCENT & ORS. (2015) LPELR-40719 which abhorred a similar application to amend the petition by adding additional list of witnesses and held it would destroy the regulated environment controlling election petitions. Arguing further, the 1st Respondent submitted that election petitions are sui generis and require strict compliance with statutory provisions and referred the Court to the decision inOSHIOMOLE VS. AIRHIAVBERE (2013) 7 NWLR (PT. 1353) 376 at 404 requiring parties to adhere to statutory provisions as inadvertence or omissions can be costly and defeat the petition, relying on OKE VS. MIMIKO (NO.1) (2015) 1 NWLR (PT. 1388) 225 at 262 which held that the tribunal will not overlook minor defects or irregularities in election petitions and therefore the trial tribunal was right because the amendment sought
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was brought outside the period allowed by law, being 21 days. The 1st Respondent also referred to the interpretation of Paragraph 14(1) (2) of the First Schedule to the Electoral Act in the case of OKE VS. MIMIKO (supra).
Arguing particularly on the amendment, the 1st Respondent contended that to substitute Oron Federal Constituency for Uyo Federal Constituency is an attempt to set up a fresh petition and such should only take place within 21 days allowed for filing of petitions. Furthermore, it argued that it is an attempt to revive a dead petition and an amendment cannot be allowed to revive an incompetent petition, citing FAPOHUNDA VS. OLUWASOLA (1999) 3 NWLR (PT. 575) 531.
Continuing to argue against the appeal, the 1st Respondent contended that the amendment if allowed would over reach it coming after the period allowed for amendments and because it cannot react to the new facts introduced by the Appellants. It submitted that even in normal civil cases, once a Respondent would be over reached, the amendment should not be allowed as held in CHIEF F. A. ADEKANYE VS. GRAND SERIES LTD. (2007) ALL FWLR (PT. 387) 855 and OJAH & ORS. VS. OGBONI & ORS
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(1976) 11 SC 61 at 71. It also referred the Court to the application seeking to dismiss the petition currently pending ruling brought by the 2nd Respondent which is directly on the same subject matter as reflected in the Supplementary Record before the Court.
On the exercise of the Court?s discretion under the general principles of amendment, it argued that it is conditional that the grant of the application does not occasion miscarriage of justice, relied onAKANINWO VS. NSIRIM (2008) 9 NWLR (PT. 1093) 439 at 475; ALSTHOM S.A. VS. SARAKI (2000) 14 NWLR (PT. 687) 415 at 429 and DOMINION FLOUR MILLS LTD. VS. ABIMBOLA GEORGE (1960) LLR 53 to buttress the point that the discretion is exercised upon settled principles as established in the cases cited above. It finally urged the Court to dismiss the appeal.
The 2nd Respondent in arguing the issue submitted that by a community reading of Section 285(5) of the Constitution and Paragraph 14 (1) (2) of the First Schedule to the Electoral Act, the petitioners cannot amend their petition in a manner that is substantial and fundamental; particularly one that seeks to cure a fundamental defect and
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more so, when an application touching on the same subject matter is now pending ruling. That the application seeking to amend the petition is an attempt to foist a state of helplessness on the Tribunal. He sought to distinguish the case of APC VS. MBAKWE (supra) relied upon by the Appellants and concluded that granting the application would prejudice him having applied to striking out of the petition for being incompetent and relied on FAPOHUNDA VS. OLUWASOLA (supra). He emphasized the sui generis nature of election petitions citingNYESOM VS. PETERSIDE (2016) 2 KLR (PT. 380) 1181; (2016) 7 NWLR (PT. 1512) 452 and OSHIOMOLE VS. AIRHIAVBERE (2013) 7 NWLR (PT. 1353) 376 and OKE VS. MIMIKO (2013) LPELR-20645 . He further submitted that Oron Federal constituency and Uyo Federal Constituency are existing constituencies duly recognized and therefore the error was not a typographical error. He submitted that parties are to strictly comply with statutory provisions. He also defined a typographical error and finally urged the Court to dismiss the appeal.
The 3rd Respondent in opposing the appeal made submissions in respect of the sole issue it distilled implying that the
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application to amend the petition is indirectly seeking extension of time for the appellants to file their petition afresh and Section 285(5) of the 1999 Constitution prescribes 21 days from declaration of results to file a petition and the time had lapsed by the time the application to amend the petition was filed. He referred the Court to the case ofOKE VS. MIMIKO (supra) to support the view that election petitions are sui generis and because time is of essence, citing OSUNBOR VS. OSHIOMOLE (2007) 1 NWLR (PT. 1065) 32; ODON VS. BARIGHA-AMANGE (NO.1) (2010) 12 NWLR (PT. 1207) 1. He argued that amendments to election petitions are subject to restrictions of substantiality and time lines. He argued that any substantial amendment must be made within 21 days allowed as held in ODU VS. DUKE (NO.2) (2005) 10 NWLR (PT. 932) 105. He finally urged the Court to dismiss the appeal because the amendment was coming beyond the time allowed and it will be over reached if granted.
The Appellants filed their replies to the respective Respondents? Briefs as identified earlier in this judgment. In response to the 1st Respondent?s arguments, the Appellants
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submitted that because the 1st Respondent did not file a counter affidavit or its own application to challenge the competence of the petition, it cannot argue that it will be over reached if the amendment is allowed. They submitted that the Court must give the words of the statute its clear and ordinary meaning in followingTEXACO PANAMA INC VS. SPDC NIG LTD(2002) LPELR-314 (SC) and the extant Electoral Act did not bar amendments and more so, Section 134 of the Act has been deleted. Furthermore, that the first Schedule cannot override the principal provisions of the Act, citing AFRIBANK VS. AKWARA (2006) 5 NWLR (Pt. 974) 619 to contend that rules cannot override statutory provisions of the law. They submitted that upon the removal of Section 134 of the Electoral Act, the prevailing regulation on amendments is the Federal High Court Rules which allows amendments at any time before judgment. He submitted that the authorities cited by the 1st Respondent are not relevant and they tried to distinguish them from this case. They agreed that election petitions are sui generis and the approach is to hear them on their merits rather than on technicalities, citing
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HDP VS. INEC & ORS. (2009) LPELR-1375 (SC) to submit that typographical errors can be corrected and Section 285(5) of the Constitution should be given effect without any extrinsic aid to its interpretation.
In reaction to the 2nd Respondent?s brief, the Appellants submitted that paragraph 14 (2) referred to a non-existent law thus the stringent condition controlling amendments no longer exist and the law cannot compel the impossible as held inADENIYI VS. IFELODUN LOCAL GOVERNMENT & ORS. (2018) LPELR- 44050(CA). Also that Rules of Court are not as sacrosanct as statutory provisions. They argued that the trial Tribunal ignored settled principles of law and the Respondents were not misled by the typographical error. They further argued that the Constitution does not forbid amendments and that the Court cannot go outside the definitions given in the law. On the claim by the Respondents that they would be over reached, the Appellants argued otherwise.
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On the 3rd Respondent?s Brief, the Appellants further argued that the provisions of the 1st Schedule to the Electoral Act cannot override the provisions of the Electoral Act and where there
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is a conflict, then the principal Act takes precedent and relied on AFRIBANK VS. AKWARA (supra) that rules are not sacrosanct. They repeated arguments in response to the first two Respondents? Briefs which were summarized earlier in this judgment; it will serve no useful purpose to repeat them here.
RESOLUTION
The application giving rise to the ruling appealed against was to amend the petition after 21 days on the understanding of the Appellants, that it was an innocuous application meant to correct typographical errors. What the Appellants considered as typographical errors touch on the Federal Constituencies of Oron and Uyo, these are 2 different and legally recognized separate constituencies in Akwa Ibom State. The trial Tribunal dismissed the application on the simple ground that it was brought after 21 days and therefore contrary to Section 134 of the Electoral Act. It is clear from the amendment made to the Electoral (Amendment) Act 2010 No.10 that Section 134 has been deleted. It is therefore a non-existent section of the Electoral Act. However, it must be acknowledged that part of the former Section 134 of the Electoral Act has been
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incorporated into the 1999 Constitution as Section 285(5). Without a mention in Paragraph 14 of the 1st Schedule to the Electoral Act is a clear reflection of poor draftsmanship one must say. It would therefore be wrong to say that the entire provision no longer exists and that it cannot be invoked. The apex Court in the case of OKE VS. MIMIKO (supra) in clear terms acknowledged the altered position of Paragraph 14 to the Electoral Act vis-a vis the provision of Section 285(5) of the 1999 Constitution and held:
“More importantly, Section 285(5) of the 1999 Constitution (as amended) provides that: “An election petition shall be filed within 21 days after the date of the declaration of result of the elections.” The use of the word “shall” in the Section 285(5) supra connotes a “command or mandatory obligation”. It places a complete bar on any form of amendment to a petition filed and does not also allow for an exercise of discretion: See Ugwu vs. Ararume (2007) 12 NWLR (Pt. 1048) 367 at 510 – 511; Onochie vs. Odogwu (2006) 2 [94] at 114: (2006) 6 NWLR (Pt. 975) 65; Bamaiyi vs. Attorney General of Federation (2001) 12 NWLR (Pt. 727) 468 at 497.”Per GALADIMA, J.S.C
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The apex Court applied the extant state of the law to dismiss an appeal seeking to amend a petition after the expiration of 21 days. The issue is therefore settled.
The trial Tribunal merely erred in placing reliance on a deleted section of the Electoral Act and not a completely non-existent provision. It is trite that a decision cannot be set aside merely because it was founded on a wrong law when there is a law in existence which could support the decision and the decision is in itself correct; see KWARA STATE JUDICIAL SERVICE COMMISSION VS. TOLANI (2019) LPELR- 47539 (SC) wherein the apex Court said thus:
“Again for emphasis is that an appellate Court such as this Apex one, will not reverse the decision of the Court below simply because the conclusion and decision were reached from a wrong reason. This is so because once the decision is correct the wrong channel or route through which that decision was made would not scuttle the said conclusion. See The State vs. John Ogbubunjo (2001) 1 SCNJ 86 at 106 per Onu JSC.” Per PETER-ODILI, J.S.C”
?The provision stipulating a time limit to filing of a petition and by extension barring
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substantial amendments exist and with greater force in the 1999 Constitution. Furthermore, being a constitutional provision, its non-mention in Paragraph 14 of the First Schedule to the Electoral Act cannot make it inapplicable as seen in the case of OKE VS. MIMIKO (supra). Case law having settled the issue of not allowing substantial amendments after 21 days, the issue cannot be reactivated by the non-mention of the restriction in Paragraph 14 of the First Schedule to the Electoral Act or the Federal High Court Civil procedure Rule applicable to the trial Tribunal.
The argument of the Appellants that because the deleted Section 134 is no longer part of the Act, the said Paragraph 14 upon which Section 134 would have received its efficacy concerning amendment became lame is therefore untenable. Indubitably, the Electoral Act is also subject to Section 285(5) of the 1999 Constitution (as Amended) and even without its mention in the Electoral Act, the implication is that no substantial amendments can be allowed after 21 days has been affirmed.
?The main issue here is whether the amendments sought are substantial or such that it can be made after 21 days
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allowed for the filing of a petition. It would be unrealistic and contrary to law to make a categorical statement that no amendment can be made to a petition. The Constitution did not say so and there is no such statutory provision, however, what the Constitution, Electoral Act and the case law posit in the authorities cited by the parties is that the grant of such applications is basically dependent on the nature of the amendment sought and the time it is sought to be made among other considerations such as whether the Respondents would be over reached. The 1st Schedule to the Electoral Act provides for amendments to a petition by Paragraph 14(1) (2) it says:
?(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 election petition or a reply to the election petition as if the words ?any proceedings? in those provisions there were substituted the words ?the election petition or reply?.
(2) After the expiration of the time limited by-
(a) Section 134(1) of this Act for presenting the election petition, no amendment
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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 (3) of this paragraph, effecting a substantial alteration of or addition to, the statement of facts relied on to support the ground for, or sustain the prayer in the
(iv) 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 the Subparagraph (2) (a) (ii) of this paragraph, effecting any substantial alteration in or addition to the admissions or denials contained in the original reply filed, or to the facts set out in the reply.
?The gravamen of the issue should, to my mind, dwell on the nature or substance of the amendment. Here, the Appellants suggested it was a mere
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typographical error sought to be corrected and relied heavily on the authority of APC VS. MBAKWE (supra) where senatorial was replaced by state constituency and replacing ?them? with ?her?. They contended that the facts are similar with the case in hand. In that case the name and the definite identity of the constituency remained Isiala Mbano and the question was substituting ?senatorial? with ?state? constituency. The reverse is the case here, the name of the constituency is not the same, as ?Oron? is not the same as ?Uyo? which is reflected in paragraphs 7 and 77 of the petition and there is another Constituency with UYO as part of its identity. The two are different and existing Federal constituencies, Appellants seek to rename the constituency as ?ORON/OKOBO/UDUNG/UKO/MBO/URUEFONG-OROUKO Federal Constituency. The petition in issue here mentioned two different constituencies in one petition and that makes it a substantial issue because the question is which of the two constituencies is the petition addressing becomes a major issue. It cannot be a mere typographical error; it is
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the core, crux, essence and root of the petition. There cannot be an election petition without a constituency in issue. It is the return in respect of the constituency that the petition questions. There is nothing wrong with the spelling of the words Oron or Uyo which were correctly spelt as found in the Constitution. I agree with the Respondents when they said it will amount to setting up a new petition after 21 days allowed to file a petition and because amendments take effect from the date of the process sought to be amended. See the case of ODU VS. DUKE (No. 2) (supra) which held that any substantial amendment to an election petition must be made within 21 days allowed for the filing of a petition. To tag the amendment minor is to also suggest the errors can be over looked and it will not affect the petition.
Furthermore, the Respondents all contended that the amendment will over reach them because they have no way of amending their replies to the petition to traverse the amendment, moreso, there is a pending ruling on same issues. The apex Court, per Tobi, JSC (of blessed Memory) explained the phrase over reach in the case of NIWA VS. SPDC (NIG.)LTD. ?
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(2008) LPELR- 1963 (SC) in the following manner:
”Overreach means to circumvent, outwit or get the better of something by cunning or artifice. It also means to defeat one’s object by going too far. It connotes smartness on the part of a party in the litigation to defeat his opponent by a thoroughly organized plan to frustrate the intention and intendment of the adverse party. An overreaching conduct is an inequitable conduct because it is not fair and just.”
The Appellants cannot be in a more virtuous position to say that the Respondents cannot be over reached; to allow the amendment will amount to a miscarriage of justice. They consistently and affirmatively made it clear that the amendment will be over reaching their interest. Furthermore, the 2nd Respondent stoutly contended that they had filed motion seeking to strike out the petition on the issue contending that is grounded on 2 different Federal constituencies and the motion was taken and is awaiting ruling. That is confirmed by the Supplementary record transmitted by the 2nd Respondent, see page 35 of the Supplementary Record. Furthermore, the Appellants did not contest it therefore
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agreeing that an application touching on the subject matter was adjourned for ruling. It will determine the competence of the petition. Would it then be equitable, just and fair that the Appellants would want to steal a match against the 2nd Respondent particularly? The Court frowns at such action and consider it unethical of the Appellants as prodded by their counsel to take such a step. Parties having submitted the issue to the trial Tribunal and who in obeying the law deferred ruling, the Appellants cannot be allowed to want to foist a situation of helplessness on the Tribunal by asking the same Tribunal to grant the application when the ruling is pending. The application on this score alone is unmeritorious and liable to be dismissed.
It will breach the fundamental principles of Natural Justice which demands that parties be given equal opportunities at a hearing. This is also in line with settled principles of amendments in general, civil proceedings. Amendments generally are not granted as matter of course, that was settled in the case of AKANINWO VS. NSIRIM (supra); ALSTHOM S.A. VS. SARAKI (supra). Any amendment that will over reach the other party
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cannot be granted.
Coming home to election petitions, once the time set for the filing of an election petition expire, the petition cannot be amended in a substantial manner as being sought by the Appellants in the trial tribunal below. The apex Court admonished petitioners to be careful in the manner they draft petitions in election matter because of the strict statutory provisions stipulating time lines, see the case of OSHIOMOLE VS. AIRHIAVBERE (supra) which held thus:
“Parties are bound to strictly comply with the dictates of the enabling statutes in drafting their pleadings and presentation of the petition as inadvertence or omissions can be costly as same will not be tolerated in election proceedings. See:Obih vs. Mbakwe (1984) 1 SCNL 192; Buhari vs. INEC (2008) 4 NWLR (Pt. 1078) 546.”
There is therefore no discretion that the Tribunal can exercise after 21 days to allow a substantial amendment, see OKE VS. MIMIKO (supra) in which the apex Court held:
?In view of the delicate nature of election matters, it will not overlook seemingly minor defects or irregularities as would the ordinary civil causes. The rule of the game is not
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strictosensu the same. It is the enabling statutes for instance that determines the jurisdiction of any adjudicatory body as in this case whereof the Electoral act is the governing legislature that guides and directs all workings of an Election petition tribunal in election matters placed before it. Where the workings of the Act place mandatory compliance any exercise of discretion will be without jurisdiction and therefore a nullity.?
As contended by the Respondents, the amendment sought is substantial and is coming after 21 days, therefore it cannot be allowed; see OKE VS. MIMIKO (supra) which relied on Paragraph 14(1) (2) of the First Schedule to the Electoral Act and recognized Section 285(5) of the Constitution in categorically saying that no amendment shall be entertained after 21 days which will substantially alter the petition. Doing so is without jurisdiction and cannot be allowed to stand, see also FAPOHUNDA VS. OLUWASOLA (supra).
?The Appellant also argued that the Tribunal should take judicial Notice of the result sheets pleaded in the petition to find that the Constituency referred to was one and not the two mentioned in the
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petition. The question before the Tribunal was whether the amendment sought was grantable fundamentally because 21 days had lapsed and as contended by the Respondents, it would over reach them. It was not a situation the Tribunal could take judicial notice to grant an application that is out rightly not grantable. Confounding the issue is the pending ruling in which the issues in the amendment sought are the kernel of the determination. That submission is untenable and must be discarded. Election petitions are sui generis and do not accommodate some of the general principles applicable in civil proceedings. It is guided by strict statutory provisions and substantial amendment is one area with strict provisions.
Finally the sole issue is resolved against the Appellant. The appeal lacks merit and is hereby dismissed. The Ruling of the National Assembly and House of Assembly Tribunal delivered on the 26th June, 2019 is hereby affirmed.
I make no order as to cost.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to
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read, in draft, the leading judgment delivered by my learned brother: YARGATA BYENCHIT NIMPAR, JCA. I agree fully with the reasoning and conclusion in it. I, too, dismiss the appeal. I abide by tie consequential orders decreed in the leading judgment.
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Appearances:
H. A. Bello, Esq., M. E. Nwosuegbe, Esq., Prince E. Uwa Umoh, Esq., Anthony Udonsa, Esq. for the AppellantFor Appellant(s)
Emmanuel O. Akpan, Esq., for the 1st Respondent
Elder Bassey Willie, Esq., for the 2nd Respondent.
Clement Imoh, Esq., for the 3rd Respondent.For Respondent(s)
Appearances
H. A. Bello, Esq., M. E. Nwosuegbe, Esq., Prince E. Uwa Umoh, Esq., Anthony Udonsa, Esq. for the AppellantFor Appellant
AND
Emmanuel O. Akpan, Esq., for the 1st Respondent
Elder Bassey Willie, Esq., for the 2nd Respondent.
Clement Imoh, Esq., for the 3rd Respondent.For Respondent