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ALL PROGRESSIVE CONGRESS v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2019)

ALL PROGRESSIVE CONGRESS v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2019)LCN/13650(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of July, 2019

CA/IB/EPT/OY/SEN/04/19

 

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

ALL PROGRESSIVE CONGRESS (APC) Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. MOHAMMED KOLA BALOGUN
3. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)

RATIO

THE LEGAL MAXIM “EXPRESSIO FACIT CESSARE TACTITUM”

The law is settled that where there is express mention of certain things, then anything not mentioned is excluded, ?Expressio facit cessare tactitum?.
In Abioye v. Yakubu (1991)5 NWLR (pt. 190) 130 at 203, Bello CJN declared as follows, inter alia: ?I think that the first approach to interpretation is to look at it and examine the words in their natural meanings. In construing the provisions of a statute where the words are clear and unambiguous it is the word used that govern, per Karibi-White JSC in Atuyeye v. Ashamu (1987) 1 NWLR (pt. 49) 267/353.” PER TALBA, J.C.A.

THE CONCEPT OF ABUSE OF COURT PROCESS

The usual practice where an abuse of Court process is or is likely to be occasioned by the filing of many or more processes than is required, is for the Court to direct the party concerned to withdraw the subsequently filed process or excess processes. That would be in conformity with the doing of substantial justice as opposed to reliance on technicalities which leads to injustice. Justice can only be done or seen to be done if the substance of the matter rather than its form is examined. Mistakes or error can be made from time to time because of human weakness as nobody is infallible. But such mistakes should not be exploited and the party responsible should not be punished to the extent of depriving him from having his dispute with his adversary properly determined on the merits. See Nasco Management Services Ltd v. A.N. Amaku Transport Ltd (1999) 1 NWLR (pt. 588) 576 at 588; LSDPC v. Adeyemi (2002) 1 NWLR (Pt. 748) 268 AT 276 and Egolum v. Obasanjo (1999) 7 NWLR (pt. 611) 4 23. PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the National Assembly and State Houses of Assembly Election Petition Tribunal sitting in Ibadan, Oyo State, delivered on the 20th May, 2019 in Petition No EPT/OY/SEN/12/2019.

The petitioner now Appellant filed a petition in the National and State House of Assembly Election Tribunal on the 17th of March, 2019 challenging the declaration and return of the 2nd Respondent as the duly elected Senator representing Oyo South Senatorial District in the Election held on the 23rd day of February, 2019.

Upon being served with the petition on the 20th day of March, 2019, the 1st Respondent filed a reply on the 2nd day of April, 2019. The 1st Respondent also filed another reply on the 5th day of April, 2019. At the pre-hearing session, the 1st Respondent by a motion on notice dated and filed on the 2nd May, 2019 applied to withdraw the 1st Respondents reply to the petition filed on the 2nd April, 2019. In support of the motion on notice is an Affidavit with a written address.

?In opposition to the 1st Respondents motion, the Appellant

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filed a counter ? Affidavit and a written address on the 9th May, 2019. The 1st Respondent filed a Further Affidavit on the 10th May, 2019 with a written address.

After hearing the motion, the lower Tribunal in a considered ruling granted the 1st Respondents application and accordingly struck out the 1st Respondents reply filed on the 2nd April, 2019. The Appellant being aggrieved by the decision lodged this appeal vide a notice of appeal filed on the 23rd may, 2019, containing three (3) grounds of appeal.
See pages 230 ? 235 of the records.
At the hearing of this appeal on the 8th July, 2019, the Appellants counsel Kunle Sobaloju applied to withdraw the notice of preliminary objection filed on 19th June, 2019 and same was struck out. The Appellants counsel adopted and relied on the Appellants brief of argument filed on the 7th June, 2019. And the Appellants reply brief to the 1st Respondents brief filed on the 13th June, 2019. The 2nd and 3rd Respondents brief of argument were struck out by this court on the 5th July, 2019 along with the Appellants reply to the 2nd and 3rd Respondents brief of argument. The Court had earlier

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dismissed a motion on notice seeking for extension of time to file the 2nd and 3rd Respondents brief of argument.

Counsel to the 1st Respondent S. A. Osuolale adopted and relied on the 1st Respondents brief of argument filed on the 11th June, 2019. He also informed the Court that he filed additional authorities on the 17th June, 2019.

The Appellant distilled three (3) issues for the determination of this appeal, from the three (3) grounds of appeal thus:
1. Whether the Tribunal did not err in law by allowing the 1st Respondent to withdraw one of the two replies filed after the time limited for filing a reply under the electoral Act 2010 (as amended).
2. Whether the Tribunal did not err in law when it held that the petitioner has waived its right to object to the application of the 1st Respondent to withdraw one of the two replied filed.
3. Whether the two replies filed by the 1st Respondent does not amount to an abuse of Court process and whether the failure of the Tribunal to consider whether the replies filed amount to an abuse of the Court process or not occasioned a miscarriage of justice.

?The 1st Respondent equally

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distilled three issues for the determination of this appeal, thus:
1. Whether the Tribunal was not right when it held that the Appellant has waived its right to object to the application of the 1st Respondent to withdraw one of the two replies by filing a petitioners reply dated and filed 15/4/109 in response to the 1st Respondents reply filed on the 5th April, 2019.
2. Whether the Tribunal was not right when it failed to consider whether the replies filed amount to an abuse of the Court process or has occasioned a miscarriage of justice.
3. Whether the Tribunal was not right to grant the 1st Respondent application to withdrawn the 1st Respondents reply filed on the 2nd April, 2019.

?In the resolution of issues contained in the briefs of argument, an Appellate Court is not under a regimental duty to accept the issues formulated by the parties. An Appellate Court can and is entitled to reformulate issue or issues formulated by a party or parties or counsel in order to give it precision and clarity if it appears that the issues they formulated are awkward or not well framed. The purpose of refraining issue or issues is to lead to a more

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judicious and proper determination of an appeal. In other words the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. As long as the issue or issues reframed is/are anchored on the grounds of appeal. See Okoro v. State (1988) 5 NWLR (Pt. 94) 255; Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) 177; AIB Ltd v. IDS Ltd (2012) 17 NWLR (Pt. 1328) 1 and Peterside v. Fabara (2013) 6 NWLR (Pt. 1349) 156.

The three (3) issues contained in the Appellants and those contained in the 1st Respondents brief of argument are inter woven and inter wined so that all the issues can be resolved at the same time. The substratum of this appeal lies on one sole issue thus; whether the Tribunal was right in granting the 1st Respondents application to withdraw the 1st Respondents reply filed on the 2nd April, 2019. The issue of waiver and abuse of Court process can be subsumed into the lone issue. Therefore this appeal will be determined on the lone issue thus:
?Whether the Tribunal was right in granting the 1st Respondents application to withdraw the 1st Respondents reply filed on the 2nd April, 2019.”
?

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The Appellant counsel argued and submitted that election petition being sui generis certain permissible acts in normal/general suit are not permissible under election petition due to its peculiar nature. Learned counsel submitted that the question that begs for answer is would a party in an election petition be allowed to withdraw any of his pleadings at any time even after issues have been joined or when it is clear that the application is an application for substitution by way of amendment. He argued that the Respondent is only permitted to file a reply to the petition. And he referred to the provision of paragraph 10 (2) and 12 (1) of the First Schedule. He contended that from these provisions a Respondent is only allowed to file a reply and not two replies. He submitted that, it is trite that when words of a statute are plain and unambiguous such words should be given their ordinary and plain meaning. He relied on the following cases: Ndoma ? Egba v. Chukwuogor (2004) All FWLR (Pt. 217) 735 at 754; N.D.I.C v. Okem Ent Ltd (2004) All FWLR (Pt. 210) 1176 at 1234; P.D.P v. Sidi ? Ali (2004) All FWLR (Pt. 220) 1371 at 1386 and Ojokolobo v. Alamu (2004)

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All FWLR (Pt. 237) 579 at 606.

Learned counsel submitted that if a Respondent for reason best known to him filed two replies, he can only apply to withdraw one of the replies within the time he is allowed by the rules to file his reply i.e 21 days and cannot apply to withdraw any of the replies after the time he is allowed by the rules to file his reply, otherwise the petitioner will not know which reply to respond to. He submitted further that the failure of the 1st Respondent to apply timeously before the expiration of the time he is allowed to file a reply is fatal to his application.

On what constitute an abuse of Court process the learned counsel cited the following cases, thus: Hope Democratic Party v. Dr. Goodluck Ebele Jonathan (2011) LPELR 9054 and Hon. Moshood Adegoke Salvador v. INEC (2011) LPELR 14932.
?
The Appellants counsel submitted further that from the 1st Respondents Affidavit in support of the application to withdraw its reply filed on 2nd April, 2019, the reason for withdrawing the second reply was to correct typographical errors in the first reply which means that the two replies should be substantially the same save for

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corrected typographical errors. But that is not the case in this instant case. The second reply is substantially different from the first reply in form and content, which the Tribunal found to be true. He referred to the tribunal ruling at page 8. He then submitted that the Tribunal having found that the two replies are not substantially the same, such that the second reply filed cannot be said to seek to correct typographical errors. The Tribunal ought to have dismissed the application as it is based on falsehood. Learned counsel submitted that the reply filed on 2/4/19 was filed by a team of lawyers led by Okoli. F. N, while that of 5/4/19 was filed by a team led by Basohorun Reuben Famuyibo. The reply of 2/4/19 has a counter claim while that of 5/4/19 has no counter claim. The reply of 2/4/19 consist of 12 paragraphs while that of 5/4/19 consist of 25 paragraphs. Learned counsel argued that what the 1st Respondent sought to do is not just simply withdrawing one reply for the other but seeking to amend the reply of 2/4/19 substantially by way of substitution.
?
He said a party cannot be allowed to amend his reply after the time limited for doing so. The

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1st Respondent has 21 days to file its reply but filed the application on 2/5/19 which is outside 21 days provided under paragraphs 10 (2) and 12 (1) of the First Schedule to the Electoral Act, 2010 (as amended).

The 1st Respondent cannot by way of substitution amend its reply substantially after the time limited for filing a Respondents reply. Learned counsel submitted that the Tribunal erred when it held that: ?But the scenario here in this case is that the petitioner has waived his right to complain by filing a petitioners reply to the 1st Respondents reply dated and filed 15/4/19 which forms part of the pleadings in this case and which invariably concedes to the acceptability of only one reply from the 1st Respondent which is that of 5th April, 2019, the 2nd reply of the 1st Respondent.”

The learned counsel submitted that the Tribunal arrived at the findings due to improper appraisal of the materials before it. He said as at the time the petitioner filed its reply to one of the replies filed by the 1st Respondent there was no indication that the 1st Respondent intends to withdraw one of the replies and as such the petitioner was not

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in a position to decide whether to indicate in its reply if it has any objection to the withdrawal of one of the two replies. The petitioner can only be deemed to have waived his right to object to the application to withdraw one of the two replies if after being served with the application to withdraw the reply instead of objecting proceeded to file a reply to one of the replies sought to be withdrawn. The petitioner upon being served with the application to withdraw one of the two replies timeously filed a Counter ? Affidavit, as such the petitioner cannot be said to have waived its right to object to the application to withdraw one of the two replies.

Learned counsel submitted that the petitioner cannot be said to have waived its right to complain of an abuse of Court process and parties in a suit cannot agree to an abuse of Courts process. And that the principle of waiver cannot apply to abuse of Court process.

As to whether the filing of two replies by the 1st Respondent constitute an abuse of Court process the Appellants counsel submitted that the 1st Respondent after having filed the 1st Respondents reply on 2nd April, 2019, and without

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withdrawing same proceeded to file another 1st Respondent reply on 5th April, 2019 three days after filing the first reply. And as at the time the 1st Respondent filed the application to withdraw the first reply, there were two different replies before the Tribunal. He said the two replies were filed in response to the petition on the same subject matter and for the same purpose, which constitute an abuse of Court process.

Learned counsel submitted that the 1st Respondent is not entitle to select which process to save. The second reply filed is the cancerous process which has to be struck out. The failure of the 1st Respondent to withdraw the first reply before filing the second reply or timeously withdraw the first reply is fatal as the 1st Respondent cannot be said not to have intended to abuse the Courts process. The petitioner in its counter affidavit and written address, raised the issue that filing two replies by the 1st Respondent amounts to abuse of Court process. The Tribunal was duty bound to consider it and pronounce on same as failure to do so may amount to a denial of fair hearing. On the need for a Court to consider and determine all issues

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raised by parties the learned counsel cited the case of Baytide Nigeria Ltd v. Aderinokun & Ors. (2013) LPELR 19956 (CA) to buttress his argument. Learned counsel submitted that the failure of the Tribunal to consider and pronounce on the issue of abuse of the Court process raised by the petitioner is fatal and he urge this Court to so hold.

In their response the learned counsel to the 1st Respondent argued and submitted that it is trite that in election petition proceedings any application to set aside any irregularity or declare an action as nullity shall be made as soon as possible and the party making the application should not have taken fresh steps in the proceedings after knowledge of the defect. Learned counsel referred to paragraphs 53 (2) and (3) of the First Schedule to the Electoral Act, 2010 (as amended) which provides:
?(2) An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.<br< p=””

</br<

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(3) An application to set aside an election or a proceed pertaining thereto shall show clearly legal grounds on which the application is based.”

1st Respondents counsel submitted that the Appellant did not fulfill the requirement of Paragraph 53 (3) of the First Schedule of the Electoral Act. The Appellant did not file any application or raise any objection in the petitioners reply, it filed in response to the 1st Respondents reply filed on the 5th April, 2019. The Appellant did not file any application to set aside or strike out any of or both of the two replies filed by the 1st Respondent. The Appellant in contravention of Paragraph 53 (2) of the First Schedule to the Electoral Act 2010, has taken fresh step in the proceedings by filing its petitioners reply to the 1st Respondents reply of 5th April, 2019 and it failed to bring any application at all to challenge the irregularities. The Appellant had invariably concede to the acceptability of only one reply from the 1st Respondents which is that of 5th April, 2019, learned counsel cited the case of SPDC (Nig.) Ltd v. Edamkue & Ors. (2009) LPELR 3048 (SC) where the Supreme Court held thus:<br< p=””

</br<

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?Whether a party who consents or acquiesced to an irregular/wrong procedure can later on appeal complain of same if a counsel or party treats a document or procedure or matter as admissible or regular e.t.c, then he cannot be heard or be at liberty to object or complain later or before an Appellate Court.”

Learned counsel submitted that in the light of the above, the Appellant has waived any right it may have had by its failure to file any application or objection to the irregularities complained of. And by taking fresh step in the proceedings by filing a petitioners reply to the 1st Respondent reply of 5th April, 2019. And it was wrong for the Appellant to introduce at paragraph 26 of its counter ? Affidavit to the 1st Respondents application a prayer. Learned counsel cited the case of HYDRO Works Ltd. v. Rimi Local Govt (2002) FWLR (Pt. 110) 1887 (CA) and Bamaiyi v. State (2001) FWLR (pt. 46) 956.

On abuse of Court process learned counsel submitted that the Appellant did not place any material fact before the Tribunal to consider whether the replies amount to abuse of Court process as the Appellant did not

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disclose how it was prejudiced or misled by the two replies until one was struck out. He said for a matter to be construed as being an abuse of Court process it must not only be frivolous and vexatious, it must also be targeted or intended to harass, embarrass, intimidate or annoy the other party. He submitted that it is trite that it is the inequities, and the inconvenience the said process set out to achieve which constitute the abuse. He cited the case of Hope Democratic Party v. Dr. Goodluck Ebele Jonathan (2011) LPELR 9054 and Hon. Moshood Adegoke Salvador v. INEC (2011) LPELR 14932.

Learned counsel submitted that there was nothing before the trial Tribunal to consider as the Appellant failed refused and or neglected to disclose in its counter Affidavit any material to show that the two replies amount to abuse of Court process or that it was intended or targeted to harass embarrass, intimidate or annoy the Appellant.

On whether the Tribunal was right in granting the 1st Respondents application to withdraw the 1st Respondents reply filed on the 2nd April, 2019, the Learned Counsel submitted that the Electoral Act, 2010 and the First Schedule

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thereto did not provide that a Respondent cannot withdraw one reply where he filed more than one and did not provide any time frame within which a Respondent can withdraw same. He said the granting of the application for withdrawal is at the discretion of the Tribunal which the Tribunal exercised judiciously. The 1st Respondent filed the two replies within the time stipulated for filing the 1st Respondent reply to the Petition. And the 1st Respondent can only withdraw one of the replies at the pre-hearing session Learned Counsel referred to paragraph 47 of the first Schedule to the Electoral Act, 2010 (as amended) which provides:
?1. No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.”

Premised on the above provision the Learned Counsel submitted that the 1st Respondent can only be heard of its application to withdraw the reply of 2nd April, 2019 at the pre-hearing session and not before. The 1st Respondent having filed the two replies within time and bringing the application at the pre-hearing session is entitled to the grant of its

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application to withdraw the reply filed on 2nd April, 2019. He said the first Schedule or the Rules of Practice does not expressly or impliedly state that the 1st Respondent cannot withdraw one of the replies nor does it state that the two replies should be struck out, hence, it is a mere irregularity that can be rectified. He referred to paragraph 53(1) of the First Schedule to the Electoral Act, 2010 (as amended) which provides thus:
?Noncompliance 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 proceedings void, unless the Tribunal or Court so directs, but the proceedings may be set aside wholly or in part and on such terms as the Tribunal or Court may deem fit and just.”

Learned Counsel submitted that the Tribunal was right to grant the 1st Respondent application to withdraw the 1st Respondents reply filed on 2nd April, 2019. Learned Counsel relied on the case of Diamond Bank Ltd v. Partnership Investment Company Ltd & Anor. (2009) 18 NWLR (Pt. 117) 67 to buttress this argument. In this reply on points of Law the

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Appellants Counsel responded to two arguments of the 1st Respondent, thus;
1. That the 1st Respondent could only bring its application to withdraw the reply of 2nd April, 2019 at the pre-hearing session and not before.
2. That the Appellant did not state in its counter affidavit how it was misled or prejudiced by the 1st Respondents reply of 2nd April, 2019.

Learned Counsel submitted that there is nothing in paragraph 47 of the First Schedule of the Electoral Act, 2010 (as amended) that state that a party in an Election Petition cannot file an application before the pre-hearing session as argued by the 1st Respondents. He said the paragraph only talks about the time to move or hear motions and not the time for filing motion. He submitted that it is trite that when words of a statute are plain and unambiguous, such words should be given their ordinary and plain meaning. See: Ndoma-Egba v. Chukwuogor (2004) All FWLR (Pt. 217) 735 at 754; N.D.I.C v. Okem Ent Ltd (2004) All FWLR (Pt. 210) 176 at 1234; P.D.P v. Sidi-Ali (2004) All FWLR (Pt. 220) 1371 at 1386 and Ojokolobo v. Alamu (2004) AllFWLR (Pt. 237) 579 at 606.

?He said the provision

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of paragraph 47 is plain, clear and unambiguous and applies solely to the time of moving and hearing motions and not time for filing a motion/application. He submitted further that it is well settled that the court in its adjudicatory duties will not read into any law what was not expressly stated in the Constitution statute or enactment. See FRN v. Mohammed (2014) 19 WRN 1 at 32 and AH-Gen Fedn v. Guardian Newspapers ltd (1999) 5 SCNJ 324.

Learned Counsel submitted that the 1st Respondents argument that the Appellant did not state in its counter affidavit how it was misled or prejudiced by the 1st Respondents reply of 2nd April, 2019 is unattainable as any action or process in abuse of Court process is fatal and ought to be sanctioned by Court. He said the abuse of Court process can manifest itself in many forms and ways that no hard and fast rule can be laid for its application in all cases. It is not in all circumstances that the party raising the issue of abuse of Court process must have been misled or show that he has suffered any prejudice as argued by the respondent. See Iwuagolu V Azyka (2007) 5 NWLR (Pt. 1028) 631; Adeleke v. Osha (2006) 16 NWLR

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(Pt. 1006) 608; Senate President V Nzeribe (2004) 9 NWLR (Pt. 878) 251 and Dapianlong v. Dariye (No. 2) (2007) 8 NWLR (Pt. 1036) 332.

Learned Counsel submitted that a Court has the inherent power and duty to suo motu prevent abuse of its process. See Okorodudu v. Okoromadu (1977) 3 SC 21 and Hope Democratic Party v. Dr. Goodluck Ebele Jonathan (Supra).

Having appraised the submission of the two Learned Counsel on the issue before the Court, it is apt to look at the findings of the lower Tribunal which is the substratum of this appeal It reads thus:
?The Tribunal findings are as follows:
(1) The 1st Respondent?s 1st Reply is dated and filed 2nd April, 2019.
(2) The 1st Respondent?s 2nd Reply is dated and filed 5th April, 2019.
(3) The petition was served on 20th March 2019 from record of Court and so the 1st Reply of 1st Respondent was filed within 14 days and 2nd Reply within 17 days both filed within 21 days from service of petition as stipulated in paragraph 10 (2) of the first schedule to the Electoral Act.
?It is our view here that even though paragraph 14 (2) (b) of the 1st Schedule envisages 14

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days window or time frame as per paragraph 12 of the 1st Schedule, it will not shut out a Reply filed within 21 days which is the maximum time within which to file a Reply to petition and this petitioner counsel also conceded to.
It is a different issue if 1st Respondent filed a Reply after 21 days he would then be completely out of time and can only come by motion to amend under paragraph 14 of 1st Schedule dealing with Amendment of Election Petition and Reply, and paragraph 45 dealing with enlargement and abridgment of time. The import of paragraph 14 of 1st Schedule particularly sub paragraph 2 ?After the expiration of the time limited by? means in paragraph 14 (2) (b) that in the event time limited by paragraph 12 for filing a Reply (14 days) when it expires no amendment or substantial alteration to the earlier admissions or denials would be allowed except within 21 days as earlier reiterated.
In our view the jurisprudence of the draftsman was to stop shifting of post or approbating and reprobating by the party filing the new Reply in this case, 1st Respondent.
However, the 2nd Reply of 1st Respondent did not come as a surprise

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as the first and only Reply to 1st Respondent?s Reply filed by the Petitioner on receipt of both 1st and 2nd replies of 1st Respondent both filed 2nd and 5th April, 2019 a space of 4 days was followed by Petitioners Reply to 1st Respondent?s Reply dated and filed 15th April, 2019.”

I must say that the Ruling of the Tribunal is crystal clear and straight to the points canvassed before the Tribunal. The crux of the matter is whether the Tribunal was right in granting the application to withdraw the 1st Respondent?s Reply filed on 2nd April 2019. The Tribunal rightly found that the petition was served on the 1st Respondent on 20th March, 2019.
The 1st Respondent?s Reply was filed on 2nd April 2019 while the 2nd reply was filed on 5th April, 2019. The two replies were filed within (21) twenty one days allowed by paragraph 10 (2) of the First Schedule to the Electoral Act, 2010 (as amended). The Appellant?s Counsel submitted that by the provisions of paragraph 10 (2) and 12 (1) of the First Schedule to the Electoral Act 2010, the Respondent is only allowed to file a Reply and not two replies.
?However equally from

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the said provisions, the Respondent is not prohibited to file a subsequent Reply and to withdraw any previous one. The law is settled that where there is express mention of certain things, then anything not mentioned is excluded, ?Expressio facit cessare tactitum?.
In Abioye v. Yakubu (1991)5 NWLR (pt. 190) 130 at 203, Bello CJN declared as follows, inter alia: ?I think that the first approach to interpretation is to look at it and examine the words in their natural meanings. In construing the provisions of a statute where the words are clear and unambiguous it is the word used that govern, per Karibi-White JSC in Atuyeye v. Ashamu (1987) 1 NWLR (pt. 49) 267/353.”
Now the Appellants counsel argued and submitted that where the Respondent filed two replies he can only apply to withdraw one of the replies within 21 days. And that the failure of the 1st Respondent to apply timeously before the expiration of the time he is allowed to file a Reply is fatal to his application.
?However the Appellants counsel did not state any law or Rule which provide the time frame within which a Respondent can withdraw his Reply. I am not on the

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same page with the Appellant?s counsel. Rather I am on the same page with the argument of the 1st Respondent?s counsel that the 1st Respondent can only withdraw one of the replies at the pre-hearing session. The learned counsel relied on paragraph 47 of the First Schedule to the Electoral Act 2010 (as amended), which provides:
?(1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.”
From the above provision it is crystal clear that the time of filing the application is of no moment. What is important is that the motion can only be moved at the pre-hearing session. Therefore contrary to the submission of the Appellant?s counsel the motion to withdraw the Reply of 2nd April, 2019 was properly filed and it was properly moved at the pre-hearing session. Consequently the 1st Respondent is entitled to the granting of its application to withdraw the Reply of 2nd April, 2019 and I so hold.

The Appellants counsel raised so much dust on the issue of amendment by substitution learned counsel urged the Court to hold that the 1st

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Respondent cannot by way of substitution amend its Reply substantially after the time limited for filing a Respondent?s Reply. He argued that the replies filed on 2/4/19 and 5/4/19 are not the same and the difference is substantial. He said the Reply of 2/4/19 has a counter claim while that of 5/4/19 has no counter claim. The reply of 2/4/19 consist of 12 paragraph while that of 5/4/19 consist of 25 paragraphs. The Tribunal has adequately dealt with the issue. At page 227 of the record the Tribunal held thus:
?Two issues arise here
(1) If either 14 days had lapsed based on date of entering memorandum of appearance or 21 days maximum envisaged by the Electoral Act then the 1st Respondent ought not to be allowed to make substantial alterations to the Reply as they have clearly done in extended paragraphs which appear far more than typographical errors alone and they would have had to justify the Amendments by way of a motion to amend underlining relevant paragraphs and would need to convince Court that their amendment is not overreaching especially if petitioner had not responded by a Reply to 1st Respondents Reply but the scenario in this

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case is different as the petitioner has in no way been overreached and the argument boils down to an academic interjection …..”
Deducing from the foregoing reproduction it is obvious that filing of a Reply is to be made within 14 days of entering an appearance or 21 days maximum as envisaged by paragraph 12 (1) and 10 (2) of the First Schedule to the Electoral Act 2010 respectively. It is important to re-state that the 1st Respondents Reply filed on the 5th of April, 2019 was in consonance to Paragraph 12 (1) and 10 (2) of the First Schedule to the Electoral Act, 2010 (as amended). Consequently the issue of amendment by substitution does not arise and I so hold.
And more so the learned Tribunal was right in its finding that:
?——- the scenario in this case is different as the petitioner has in no way been overreached and the argument boils down to an academic interjection.?
While it is true that in election petition time is of essence, amendment can be granted in election petitions. See Alhaji Mohammed Dikko Yusuf and Anor v. Chief Olusegun Aremu Okikola Obasanjo and 56 Ors (2003) 16 NWLR (pt. 847) 554.

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The Appellant?s counsel contended that the Tribunal erred when it held that the petitioner has waived its right to complain by filing a petitioner?s Reply to 1st Respondent?s Reply dated and filed on 15/4/2019. The learned counsel submitted that the Tribunal arrived at the findings due to improper appraisal of the materials before it. Learned counsel submitted that as at the time the petitioner filed its Reply to one of the replies filed by the 1st Respondent there was no indication that the 1st Respondent intends to withdraw one of the replies and as such the petitioner as not in a position to decide whether to indicate in its Reply if it has any objection to the withdrawal of one of the two replies. And the petitioner on being served with the application to withdraw one of the two replies timeously filed a counter affidavit to the application to withdraw one of the two replies.
?In its Ruling at page 227 of the Record the Tribunal found as follows:
?The second issue arising is that by virtue of paragraph 53 (2) of the 1st Schedule of the Electoral Act ?An application to set aside an election petition or a proceeding

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resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceeding after knowledge of the defect?. But the scenario here in this case is that the petitioner has waived his right to complain by filing a petitioner?s Reply to 1st Respondent?s Reply dated and filed 15/4/2019 which forms part of the pleadings in this case and which invariably concedes to the acceptability of only one Reply from 1st Respondent which is that of 5th April 2019 the 2nd Reply of 1st Respondent. In SPDC (Nig) Ltd v. Edamkue & Ors cited by Petitioner?s counsel 2009 LPELR 3048 SC
The above findings of the Tribunal cannot be faulted hence it is grounded on law and facts. In the case of SPDC (Nig.) Ltd. v. Edamkue (supra) the Supreme Court held thus:
Whether a party who consents or acquiesced to an irregular/wrong procedure can later on appeal complain of same ? if a counsel or party treats a document or procedure or matter as admissible or regular e.t.c, then he cannot be heard or

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be at liberty to object or complain later or before an appellate Court.?
Paragraph 53 (2) of the First Schedule to the Electoral Act is very clear, it requires no further elucidation. It is trite that when the language of a written instrument is perfectly plain, no construction will be made to contradict the language. Quoties in verbis nulla est ambigunitas ibi nulla expositio contra verba expressa fienda est.
Waiver is the intentional and voluntary surrender or relinquishment of a known privilege and a right. It implies a dispensation or abandonment by a party waiving of a right or privilege that, at his option, he could have insisted upon. See Auto Import Export v. Adebayo (2005) 19 NWLR (Pt. 959) 44; Ariori v. Elemo (1983) 1 SCNLR 1 and Odua Invest. (1997) 10 NWLR (Pt. 523) 1.
The Appellant has no doubt waived its right by its failure to file any application or objection to the irregularities complained of and by taking fresh step in the proceedings by filing a petitioner?s Reply to the 1st Respondent?s Reply of 5th April 2019.
?The argument of the learned Appellant?s counsel that the Appellant filed a counter

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affidavit in opposition to 1st Respondent motion dated 2nd May, 2019 and filed on 2nd May, 2019 does not help the case of the Appellant. More so paragraph 16 of the said counter affidavit is a prayer which offends Section 115 (2) of the Evidence Act 2011.
Having waived its right the Appellant cannot be heard to complain on appeal. It is settled law that where an irregular procedure is adopted with the acquiescence of a party to a civil action, such adoption cannot be a ground of appeal. See Ojiegbe v. Okwaranyia (1962) All NLR 605; (1962) 2 SCNLR 358 and Sonuga v. Anadein (1967) 1 All NLR 91; also where a wrong procedure has been followed in filing a process and no objection was raised by the party that should have objected, the Court is entitled to proceed with the hearing despite the wrong procedure followed. See Obajinmi v. AG Western Nigeria (1967) 1 All NLR 31.
The Tribunal was right in its finding that the Appellant has waived its right and I so hold.

On the issue of abuse of Court process the Appellant?s counsel submitted that the 1st Respondent filed two replies, they were filed in response to the petition on the same subject and

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for the same purpose. He said nothing more is required for an abuse of Court process to be said to have occurred.
The usual practice where an abuse of Court process is or is likely to be occasioned by the filing of many or more processes than is required, is for the Court to direct the party concerned to withdraw the subsequently filed process or excess processes. That would be in conformity with the doing of substantial justice as opposed to reliance on technicalities which leads to injustice. Justice can only be done or seen to be done if the substance of the matter rather than its form is examined. Mistakes or error can be made from time to time because of human weakness as nobody is infallible. But such mistakes should not be exploited and the party responsible should not be punished to the extent of depriving him from having his dispute with his adversary properly determined on the merits. See Nasco Management Services Ltd v. A.N. Amaku Transport Ltd (1999) 1 NWLR (pt. 588) 576 at 588; LSDPC v. Adeyemi (2002) 1 NWLR (Pt. 748) 268 AT 276 and Egolum v. Obasanjo (1999) 7 NWLR (pt. 611) 4 23.
In this instant case, the 1st Respondent?s Reply was

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filed on 2/4/19 while the 2nd Reply was filed on 5/4/19. The two replies were filed within 21 days allowed by paragraph 10 (2) of the First Schedule to the Electoral Act 2010 (as amended).
The 1st Respondent applied to withdraw the Reply filed on 2/4/2019. The Appellant filed a petitioner?s Reply to the 1st Respondent Reply of 5/4/19. The Appellant are consequently and in the circumstances deemed to have waived whatever mistake or irregularity.
From the foregoing, I hold that there was no abuse of Court process in this instant case.

Courts are established to do substantial justice in cases before them. Justice can better be defined in terms of ethics and morality what is administered in our Courts and Tribunal is law and any reference to justice must necessarily imply justice according to the law. The Appellant as petitioner at the Tribunal should be eager to prosecute his petition on its merit.

The sole issue is resolved against the Appellant and in favour of the Respondent. The appeal lacks merit and same is dismissed. The Ruling delivered by the Tribunal on the 20th May, 2019 in petition No. EPT/OY/SEN/12/19 is hereby affirmed.

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HARUNA SIMON TSAMMANI, J.C.A.: I agree with my learned brother, Abubakar Mahmud Talba, JCA that this appeal has no merit and that it be dismissed. It is accordingly dismissed.

FOLASADE AYODEJI OJO, J.C.A.: I read the draft of the judgment just delivered in this appeal by my learned brother, Abubakar Mahmud Talba JCA. I agree with the reasoning and conclusion that this appeal lacks merit and should be dismissed.

The 1st Respondent who was also the 1st Respondent at the lower Tribunal filed two sets of Respondent’s Reply to the Petition on the 2nd of April, 2019 and 5th April, 2019 respectively. His counsel brought an application to withdraw the 1st Respondent’s reply filed on the 2nd of April, 2019 which application was granted.
The lower Tribunal in its Ruling held that by virtue of paragraph 53(2) of the 1st Schedule to the Electoral Act the Appellant had waived his right to complain when it filed its Petitioner’s Reply to 1st Respondent’s Reply on the 15th of April, 2019.
?The Appellant who was served with the two replies had two options.  He could file an application

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challenging the procedure adopted by the 1st Respondent or elect to join issues with her on any of the replies. The Appellant chose the latter option by filing a Petitioner’s Reply on the 15th of April, 2019 to the 1st Respondent’s Reply of 5th April, 2019. By so doing, he has joined issues with the 1st Respondent on its Reply of 5th April, 2019 and led her to believe she is desirous to have the petition determined on the 1st Respondent’s Reply of 5th April, 2019. The Appellant has by its conduct waived its right to complain about the earlier process filed on the 2nd of April, 2019. He can no longer either in law or equity turn round to complain that the 1st Respondent filed two sets of Respondents Reply instead of one.
In AMAECHI VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS. (2008) LPELR 446 AT 273 PARAGRAPH D – G Aderemi JSC held thus:
“But where as in the instant case, a person in dealing with another is confronted with two alternatives and mutually exclusive procedures in dealing with the case, between which he can make his election and he has voluntarily made his election in favour of one of the procedures to the exclusion of the

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other and he has, by that conduct led the other to believe that he was voluntarily adopting that particular line of approach he cannot in law and equity, afterwards resort to the cause which he has voluntarily declared his intention of rejecting. This in a nutshell is the simple explanation of principle of waiver.”
?The Appellant who voluntarily chose to join issues with the 1st Respondent’s Reply filed on the 5th of April, 2019 with the full knowledge of the earlier one filed on the 2nd of April, 2019 can no longer complain.

It is for the above and the fuller reasons given in the lead judgment that I also find this appeal completely devoid of merit.
This appeal is also dismissed by me. I abide by the consequential order in the lead Judgment.

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Appearances:

Kunle Sobaloju with him, O. A. AlakaFor Appellant(s)

S.A. Osuolale for the 1st Respondent.
2nd and 3rd Respondents was absent
For Respondent(s)

 

Appearances

Kunle Sobaloju with him, O. A. AlakaFor Appellant

 

AND

S.A. Osuolale for the 1st Respondent.
2nd and 3rd Respondents was absentFor Respondent