HON. FAROUK MUSTAPHA v. ALH. BABAYO GARBA GAMAWA & ORS (2011)

HON. FAROUK MUSTAPHA v. ALH. BABAYO GARBA GAMAWA & ORS

(2011)LCN/4784(CA)

In The Court of Appeal of Nigeria

On Monday, the 5th day of September, 2011

CA/J/EP/SN/130/2011

RATIO

AWARD OF COST: WHETHER THE AWARD OF COST IS WITHIN THE COURT’S DISCRETION

As admitted by all parties, the award of cost is discretionary by the court and to be made within the parameters set down by the law. The cost awarded to the Respondents is not against the settled principles of law and neither excessive. The cost awarded was based on sound legal reasoning and we find no reason whatsoever to interfere with the award made. PER ADAMU JAURO, J.C.A

INTERPRETATION OF STATUTE: THE COMBINED EFFECT OF SECTION 134 AND PARAGRAPH 14 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT 2010 (AS AMENDED)

The said provision is hereby reproduced in verbatim: – “14(2) After the expiration of the time limited by- (a)Section 134(1) of this Act for presenting the election petition, no amendment shall be made: i. introducing any of the requirements of subparagraph (1) of paragraph 4 of this Schedule not contained in the original Election petition filed, or ii. Effecting a substantial alteration of the ground for or the prayer in the election Petition 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, the statement of facts relied on to support the ground for or sustain the prayer in election petition; and” 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 substance to the petition. See P.D.P. v Haruna (2004) 16 NWLR (Pt. 900) 597, Yusuf v Obasanjo (2003) 16 NWLR (Pt. 847) 532. See also Electoral Law and Practice in Nigeria 1st Edition, by Aderemi Olatubera. PER ADAMU JAURO, J.C.A

AMENDMENT IN ELECTION PETITION: WHETHER APPLICATIONS FOR AMENDMENT IN AN ELECTION PETITION PROCEEDING IS SUBJECTED TO RESTRICTION AS TO TIME LIMITATION

APPLICATIONS BROUGHT UNDER A WRONG STATUTE: WHETHER THE FACT THAT A PARTY BRINGS AN APPLICATION UNDER A STATUTE OTHER THAN THE APPLICABLE ONE WILL DISENTITLE HIM TO THE RELIEFS SOUGHT

On the issue of wrong law, the fact that a party brings an application under a statute other than the applicable one does not disentitle him to reliefs as long as the relief he is seeking is provided for by any written law, common law or even equity. See Falobi V Falobi (1976) 9-10 SC 1 at 13-14, Majekodunmi V Wapco Ltd (1992) 1 NWLR (pt.219) 566. PER ADAMU JAURO, J.C.A

CHANGE OF COUNSEL: WHETHER THE LEAVE OF COURT MUST BE SOUGHT BEFORE A LITIGANT CAN CHANGE HIS COUNSEL

A litigant has every right to be represented by a counsel of his choice. In the event of change of counsel, leave of court is not necessary, all that is required is to notify the court. See Akumo V Ezikpe (2001) 8 NWLR (pt. 716) 547. PER ADAMU JAURO, J.C.A

JUSTICES

MONICA BOLNAAN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED M. SAULAWA Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

HON. FAROUK MUSTAPHA Appellant(s)

AND

1. ALH. BABAYO GARBA GAMAWA
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. THE RESIDENT ELECTORAL COMMISSIONER INDEPENDENT NATIONAL ELECTORAL COMMISSION BAUCHI STATE
4. THE RETURNING OFFICER, BAUCHI NORTH SENATORIAL DISTRICT, BAUCHI STATE.
5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

ADAMU JAURO, J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling of the National and State House of Assembly Election Petition Tribunal, Bauchi State delivered on 7th July, 2011 on petition number NA/SEN/EPT/BAU/06/2011, wherein the said petition was struck out.
The facts culminating in this appeal can be briefly summarized thus:
The appellant as petitioner in the tribunal was a Senatorial candidate for the Action Congress of Nigeria (ACN). The 1st Respondent on the other hand, was sponsored by the 2nd Respondent, Peoples Democratic Party (PDP). The appellant, the 1st Respondent and three other candidate contested the Bauchi North Senatorial District elections held on 9th April 2011 in Bauchi State. Upon the conclusion of the elections the 3rd and 4th Respondents acting on behalf of the 5th Respondent declared and returned the 1st Respondent on 10th April, 2011 as the winner of the election and Senator-elect for Bauchi North Senatorial District.
Distressed and piqued by the declaration and return of the 1st Respondent as the winner of the election, the appellant challenged some in the tribunal by a petition dated and filed on 29th April, 2011. The petition was anchored on two grounds namely, that the 1st Respondent was not elected by a majority of lawful and valid votes cast at the election and secondly that the election was invalid by reason of corrupt practices or non compliance with the provisions of the Electoral Act 2010 (as amended). The petition was served and a conditional appearance entered by the 1st Respondent. Other Respondents also entered their appearances.
Mr. Achimugu, on behalf of the second Respondent, by a motion dated 16th May 2011 and filed on 17th May 2011, prayed for the striking out of the petition. The ground upon which the application was anchored, was that the petition does not contain any relief or prayer, therefore in breach of paragraph 4(1)(d) and 4 (3)(a) of the 1st Schedule to the Electoral Act 2010 (as amended). Prince Lateef Fagbemi SAN on behalf of 1st Respondent, also filed a reply to the petition and a preliminary objection on 20th May, 2011. The preliminary objection was based on five grounds which included failure to state the reliefs sought in the petition. The petitioner on the other hand, filed two applications for amendment dated 21st May, 2011 and 26th May, 2011 respectively. The four applications were taken together during the pre-hearing session. In a reserved and considered ruling delivered on 7th July, 2011, the Tribunal refused the applications for amendment. The petition was also struck out for being incompetent on the ground of failure to state any relief in breach of paragraph 4(1)(d) and 4(3)(a) of the 1st Schedule to the Electoral Act 2010 (as amended).
Aggrieved and dissatisfied by the aforementioned ruling, the petitioner now appellant challenged some vide a notice of appeal dated and filed 13th July, 2011. The notice of appeal is premised on ten grounds of appeal. In line with the Rules of Court and Election Tribunal and Court Practice Directions 2011, briefs of argument were filed and exchanged. The appellants brief dated 25th July, 2011 was filed on 26th July, 2011, while the Appellant’s reply brief to 3rd – 5th Respondent’s brief was filed on 5th August 2011, while the Reply to 1st Respondents brief was filed on the 10th August, 2011. The 1st Respondents brief filed 8th August 2011, was by order of this court deemed filed on 10th August, 2011. The 3rd to 5th Respondents joint brief of argument was filed on 1st August 2011.
On 17th August 2011, the date fixed for hearing the appeal, learned Counsel for the appellant applied for the appeal to be heard on the appellants brief and that of 1st, 3rd to 5th Respondent’s brief. Learned counsel argued that the 2nd Respondent be deemed to have conceded to the appeal having filed no brief. There being no objection to the application by the learned counsel for the 1st and 3rd to 5th Respondents, the court directed that the appeal be argued based on the existing briefs of argument.
Mr. Joe Dappa for the appellant, adopted and relied on the appellants brief and the two reply briefs filed. Learned counsel submitted that ground 8 of the grounds of appeal was not argued, hence urged that the said ground be struck out as abandoned. Learned counsel further argued that issue 3 of the 1st Respondents brief founded on ground 8, be also struck out. In concluding, learned counsel urged the court to allow the appeal and set aside the ruling of the tribunal and remit the petition for hearing on the merit based on the amended petition dated 26th May, 2011 and filed 27th May, 2011.
Mr. Hassan T. Fajimite for the 1st Respondent, adopted and relied on the 1st Respondents brief learned counsel stated that 4 issues had been formulated for determination and argued seriatim. Learned counsel urged the court not to discountenance issue 3 of the 1st Respondent’s brief, learned counsel submitted that the case of Okereke V Yar’adua is quite distinguishable from the peculiar facts of this case. In concluding learned counsel urged the court to dismiss the appeal and uphold the decision of the lower tribunal. Mr. Mahmud Usman for the 3rd to 5th Respondent’s adopted and relied on the joint brief of argument filed by the 3rd to 5th Respondent’s, learned counsel stated that three issues for determination had been raised on page six of the brief. Learned counsel, in response to the contention of the appellant that the 3rd to 5th Respondents’ have no locus to file brief, submitted that the 3rd to 5th Respondents have the necessary focus to file brief. In concluding learned counsel urged that the appeal be dismissed as lacking in merit.
The appellant nominated ten issues for determination on pages 5 and 6 of the appellant’s brief of argument. The said issues are hereby reproduced, thus:
“1 Whether the Tribunal was right and within its jurisdiction when it delivered a consolidated ruling in respect of two applications to amend by the Petitioner and two applications to strike out by the 1st and 2nd Respondents. (Relates to Ground one of Appeal)
2. Whether the Tribunal was right and within its jurisdiction when it consolidated the Petitioner’s motions to amend with the 1st and 2nd Respondents Motions to strike out suo moto and without notice and consent of the Petitioner. (Relates to Ground Two of Appeal)
3. Whether a Witness Statement attached to a Petition does not form part of the contents of a valid Petition. (Relates to Ground Five of Appeal)
4. Whether on accidental error in the insertion of reliefs or prayers in a written Deposition attached to a Petition instead of the foot end of a Petition cannot be corrected by amendment.
(Relates to Ground Six of Appeal)
5. Whether a Petition is rendered incompetent by reason of a curable accidental error in inserting the reliefs or prayers in a written Deposition attached to the Petition instead of the Petition, (Relates to Ground Seven of Appeal)
6. Whether the Tribunal was right when it held the Petition incompetent on the basis of incompetent objections taken to it. (Relates to ground Nine of Appeal)
7. Whether the Tribunal was right when it held the Petition incompetent without first determining or making on order in respect of the Petitioners application dated 20/05/2011 to amend. (Relates to Ground Three of Appeal)
8. Whether the Petitioner was not denied his right to fair hearing when his Petition was held irreparable without first considering and determining his application to amend dated 26/05/2011. (Relates to Ground Four of Appeal)
9. Whether given the circumstances of this the cost awarded in the sum of N200,000.00 in favour of the 1st and 2nd Respondents is right. (Relates to Ground Ten of Appeal).
10. Whether the Tribunal was right when it foiled to consider and make specific findings on the submission that under the extant Electoral Act the reliefs to be granted are automatic. (Relates to Ground Eight of Appeal)”
The 1st Respondent on the other hand, distilled 4 issues for determination on pages 3 and 4 of the 1st Respondent’s brief. The said issues we hereby reproduced thus:
“1 WHETHER the trial tribunal ordered the consolidation and/or heard together all the four applications severally filed by the petitioner on the 21st day of May, 2011 and 27th May, 2011: by the 1st Respondent on the 10th June, 2011 and by the 2nd Respondent on the 17th May, 2011 and whether the failure or neglect of the tribunal to hear separately and/or deliver separate rulings on each of the said applications occasioned any miscarriage of justice to the Appellant to warrant the setting aside of the tribunal ruling of 7th July, 2011? (Predicated on ground 1, 2, 3 and 4 of the Notice of Appeal).
2. WHETHER either or both motions filed by the petitioner on 21st May, 2011 and 27th May, 2011 ought to have been granted by the trial tribunal in the circumstances of the petition? (Predicated on grounds 5 and 6 of the Notice of Appeal).
3. WHETHER the Appellant’s petition no: NA/SEN/EPT/BAL/06/11 filed on the 29th April, 2011 is not incompetent by reason of lack of prayer or relief on the face of the petition and was therefore rightly struck out by the tribunal in limine? (Predicated on grounds 7, 8 of the Notice of Appeal).
4. WHETHER the trial tribunal’s order as to cost against the Appellant in favour of the 1st and 2nd Respondents was not proper or lawful in the circumstance of the petition? (Predicated on ground 9 of the Notice of Appeal)”.
The 3rd to 5th Respondent’s on their part identified three issues being apt and germane for determination on page 6 of their joint brief argument. The issues are hereby reproduced thus:
“a. Whether the lower Tribunal was right considering the variety of applications before it to have delivered a single ruling which determined the life of the petition in limine (Distilled from grounds 1, 2 and 3 of Notice of appeal)
b. Whether the lower Tribunal was right when it held that the Appellant had no competent petition and whether the said incompetent petition can be amended as at the time the application for amendment was filed (Distilled from grounds 5, 6, 7, and 9 of the Notice of Appeal).
c. Whether having regard to the circumstances of this case and the records of proceedings, the lower Tribunal can be said to have denied the Appellant his right to fear hearing. (Distilled from ground 4 of the Notice of Appeal).”
By way of prologue and before delving into the issues raised for determination in this appeal, a consideration will briefly be made on some preliminary issues. The first is the application by the appellant to deem ground 8 of the grounds of appeal as abandoned, having proffered no argument in respect of some. There being no objection to the application by the Respondents, ground 8 of the grounds of appeal and issue number ten distilled from the said ground are hereby struck out. The 1st Respondent’s issue number 3 is predicated on grounds 7 and 8 of the grounds of appeal.
Ground 8 having been abandoned and struck out, the 1st Respondent cannot frame an issue from an abandoned ground of appeal. See Eke V Ogbando (2006) 18 NWLR (Pt. 1012)506. Issue 3 as formulated by the 1st Respondent was distilled from a competent and incompetent ground of appeal. It is therefore not for the court to conduct a surgical operation in order to sieve the arguments in respect of the competent ground and abandoned those in respect of the incompetent ground, as doing so will amount to descending into the arena of the brawl. Consequently issue number three of the 1st Respondents brief having been distilled from a competent and incompetent ground is accordingly incompetent and is hereby struck out. See Honika Sawmill Nig. Ltd v. Hoff (1994) 2 NWLR (pt.326) 252, Korede v. Adedokun (2001) FWLR (pt.65) 421, INEC v. ACTION CONGRESS (2009) 2 NLR (pt.1126) 524.
The next preliminary issue, is the prayer made by the appellant for amending the relief column of the notice of appeal. There being no objection to the application by the Respondents, the application is granted as prayed in the interest of justice. See Order 20 Rule 2 of the Court of Appeal rules 2011.
This appeal to my mind raises three fundamental questions, namely:
“(1) Whether the Petition as constituted and filed in the tribunal contained reliefs or Prayers as envisaged by paragraph 4(1)(d) and 4(3) (a) of the First Schedule to the Electoral Act, 2010 (as amended)
(2) Whether an amendment to the petition can be allowed to transpose prayers/reliefs from the statement on Oath of a witness to the petition outside the time limited by the Electoral Act 2010 for the filing of a petition.
(3) Whether a petition filed without stating the prayers or reliefs sought as envisaged by Paragraph 4(1)(d) and 4(3) (a) of the First Schedule to the Electoral Act 2010 (as amended) is competent”.
This appeal therefore hinges or oscillates within the narrow compass of the three questions stated above. However for the purpose of completeness, the issues as formulated by the appellant will be adopted in resolving this appeal. It should however be noted that the ten issues formulated by the appellant have now been reduced to nine, having struck out issue 10. Issues 1, 2, 7, 8 and 9 will be taken together, while issues 3,4,5 and 6 will follow.
ISSUES 1, 2, 7, 8 AND 9
The contention of the appellant under these issues is that the tribunal was wrong to have consolidated the two applications to amend the petition and the two applications to strike out the petition. As a consequence of the consolidation, learned counsel contended that the tribunal only determined the objections taken to the petition but did not determine the applications to amend dated 20/5/2011 and 26/5/2011. Learned counsel argued that the consolidation breached Order 11 Rules 1 and 2 of the Federal High Court (Civil procedure) Rules 2009. Learned Counsel further argued that no consolidation notice was served on any of the parties to afford parties an opportunity of being heard in support or opposition to the consolidation. In support, reference was made to the following cases: Balogun V Lagos Executive Dev. Board (1963) LLR 13, Daws V Daily Sketch & Daily Graphic 1960)1 WLR 126 learned Counsel further argued that the failure to consider the application to amend has denied the petitioner his right to fair hearing. Learned counsel further contended that the amendment is not the type prohibited by paragraph 14(2) of the first schedule to the Act. In concluding. Learned counsel urged the court to of law the appeal on the four grounds upon which the four issues are anchored.
In response, the 1st Respondent contended that though the four applications were heard together on 24th June 2011, not all the applications were consolidated. Learned counsel submitted that the petitioners applications to amend were consolidated and heard thereafter the two applications to strike out by the Respondents were consolidated and heard.
Learned counsel made reference to page 782 of the record where the Tribunal stated that it would hear the petitioners first. Learned counsel made reference to pages 786-791 of the record and contended that all parties were heard in respect of all the applications. Learned counsel argued that the two sets of the consolidated applications were in conformity with Order 11 Rules 1 and 2 of the Federal High Court (Civil Procedure) Rules.
Learned counsel argued that the Learned counsel to the respective parties were not only present during the hearing of the two sets of consolidated applications but also consented to the procedure. Learned counsel conceded that though a single ruling was delivered, but submitted that the failure to deliver separate rulings without more is not enough to render the ruling liable to be set aside. Learned counsel submitted that it is only when on error is substantial or occasioned a miscarriage of justice that on appellate court con set it aside. In support, reference was made to the case of Oguntayo V Adelaja (2009) 15 NWLR (Pt. 1163) 150. Learned counsel argued that in the light of the appellant’s failure to establish any miscarriage of justice in the nature of the Proceedings, the court should decline the invitation to set aside the ruling. In support, reference was made to the case of UBA V Etiaba (2008) 6 NWLR (Pt. 1082) 154. Learned counsel made reference to pages 830-831 of the record and contended that the tribunal had made pronouncement on the appellant’s application. Learned counsel urged the court to resolve the issues against the appellant and dismiss the appeal.
The 3rd to 5th Respondent’s in their response, made reference to page 782 of the records and contended that the issue of fair hearing had been addressed by the tribunal Learned counsel submitted that the appellant’s applications were considered by the tribunal and the prayers sought not granted, hence rendering the petition incurably defective. In support of this contention learned counsel made reference to portion of the ruling on page 826 of the record. Learned counsel contended that the striking out of the petition was based on an unsuccessful motion for amendment and therefore urged the court to resolve the issues against the appellant.
On the issue of consolidation, from the record of the tribunal, the appellant’s two applications to amend were consolidated. The applications of the 1st and 3rd to 5th Respondent’s to strike out the petition were also consolidated. The two sets of consolidated applications were then taken together. To buttress the fact that the petitioner’s two applications to amend were consolidated, a reference to pages 781 and 782 of the records’ reveals Mr. Dappa for the petitioner now appellant stated thus:
“Mr. Dappa we have 2 motions which have (sic) Consolidated. 20/5/11 and the other dated 26/5/11 filed on the 27/5/11.
Mr. Achimugu we too have a motion and the 1st Respondent to, we were saying the motion shall be taken along with the petitioners so that when he replies he can amend.
Mr. Fajimite – I agree with 2nd Respondent counsel that are 4 applications. We can start with the petitioners’ application which touches on amendment- Mr. Limon Where there are 2 applications, one constructive and the other destructive, the constructive is taken first.
Tribunal – We hear the petitioners first to avoid the issue of fair hearing.
Mr. Dappa – We have 2 motions on notice that have been consolidated the first motion on notice is dated 20/5/11 and filed on 21/5/11.
From the foregoing excerpts from the record of proceedings, it is beyond dispute that the petitioner’s two applications to amend the petition were consolidated and taken along with the Respondent’s application to strike out. From what Mr. Dappa said as quoted earlier, the consolidation of the two applications to amend was done with his knowledge and consent. The tribunal in clear and unequivocal terms stated that the petitioner’s application will be taken first in order to avoid the issue of fair hearing. I do not therefore see how the procedure adopted by the tribunal beached Order 11 Rule 1 and 2 of the Federal High Court (Civil Procedure) Rules.
On the issue of fair hearing, the tribunal started by addressing that aspect in saying that the petitioner’s applications will be taken first. Though the tribunal delivered a single ruling, it however addressed the two sets of consolidated applications starting with that of the petitioners. The Tribunal on page 826 of the record further stated thus:
“It is with painstaking that we have considered the petitioners two applications for amendment and the two preliminary objections of 1st and 2nd Respondents respectively filed and argued together with various affidavits and counter affidavits, addresses and the hast of cases cited by counsel to parties on all sides to this case.”
A fine line of distinction has to be drawn between consolidation of suits or appeals in which each suit or appeal retains its individual identity and consolidation of applications in a single suit. As earlier stated, though the tribunal delivered a single ruling but it heard the two sets of consolidated applications together. Infact with regards to the petitioner’s consolidated applications for amendment, the tribunal had this to say on pages 830 to 831 of the record:
“By the petition filed by the petitioner herein, the result of the election now in issue was declared on 10th April, 2011. See paragraph 3 of the petition. By simple arithmetic, the petitioner has up till May 2011 to file the petition or to file for amendment thereof. The effect of this is that any application filed after the 1st day of May is filed out of time and therefore incompetent. The argument of the petitioner is that by this application of 20th May, 2011 he is not seeking for on amendment but a transfer. This tribunal having held earlier in this ruling that moving or transfer or transposing of such nature is alien and not allowed, does not need repeating itself in saying that the petitioner cannot do such on alien act in election. The petitioner is therefore disallowed from moving, transferring or transposing relief which is not contained in the petition filed on 29th April 2011 in this petition.”
Indeed the appellant has not established any miscarriage of justice occasioned by the consolidation or taking the two consolidated applications together, or the single ruling delivered. See UBA V. Etiaba (2008) 6 NWLR (Pt.1082) 154. Ordinarily, the parties should not even have raised eyebrows as to the procedure adopted in taking the applications is not on appealable decision within the con of Section 318 (1) of the 1999 Constitution (as amended). See United Agro Ventures Ltd V. FMB Merchant Bank (1998)4 NWLR (pt 547)546.
On the issue of cost, learned counsel conceded that though it is discretionary, the cost awarded was arbitrary and excessive. In support, reference was made to Kukoyi v Odufale (1965) 1 All NLR 300, HACO v. Brown (1973) 4 5C 149 at 154. The 1st Respondent argued per contra, to the effect, that costs are discretionary and awarded not to punish the unsuccessful party but to compensate the successful party for expenses incurred. Learned counsel posited that the cost awarded was reasonable. In support reference was made to Inneh V Chief Obaraye (1957) 2 FSC 58, Obayogbona V Obazeek (1972) 5 SC 247. As admitted by all parties, the award of cost is discretionary by the court and to be made within the parameters set down by the law. The cost awarded to the Respondents is not against the settled principles of law and neither excessive. The cost awarded was based on sound legal reasoning and we find no reason whatsoever to interfere with the award made.Consequently the five issues herein are hereby resolved against the appellant and in favour of the Respondents.
ISSUES 3, 4, 5 and 6
The contention of the appellant is that the reliefs or prayers sought in the petition were mistakenly pasted in the petitioners statement on Oath by the computer operator instead of pasting same to the petition. Learned counsel made reference to paragraphs 36 and 37 of the petitioner’s statement on oath of pages 103 and 114 of the record, to show the reliefs claimed. Learned counsel argued that the amendment sought by the petitioner is not the type prohibited by paragraph 14(2) of the first schedule to the Electoral Act 2010 (as amended). Learned counsel contended that the amendment sought was not substantial and it was only aimed at transposing the prayers/relief s from the petitioner’s statement on Oath back into petition. Learned counsel further argued that a statement on Oath forms part of valid petition and any petition without a witness statement on oath is incurably defective and liable to be struck out. In support, reference was made to the case, of Okereke v Yar’adua (2008) 6 NWLR (Pt.1082) 37 at 64. Learned counsel posited that the requirements of paragraph 4(5) will form part of the originating process in on election petition. In support reference was made to the case INEC V Iniama (2008) 1 NWLR (pt.1088) 182 at 200.
Learned counsel contended that a witness statement on oath being part and parcel of the petition, the transfer of prayers from the witness statement on oath to the petition is not a substantial amendment. Learned counsel further argued that the transfer of the prayers not being a substantial amendment, it cannot therefore be the type prohibited by paragraph 14(2) of the first schedule, as it does not seek to introduce anything new. On the definition of ‘relief’ reference was made to the case of Okerengwo V Imo Education Board (1989) 5 NWLR (pt.121) 295. Learned counsel urged the court not to visit the sin of the computer programmer on the litigant. In support reference was also made to the case of Adeleke v Aworiyi (1962) All NLR 260. On amendments generally, reference was made to the case of Bankole v Dada (2003) 11 NWLR (Pt.830) 174. Learned counsel urged the court to look of the record and fish out the reliefs in order to do substantial justice. In support, reference was made to the case of Okofor V. Okofor (2002) FWLR (Pt.120) 1712. Learned counsel further urged the court to shun technicalities and do substantial justice. In support, reference was made to the case of Opia v Ibru (1992) 3 NWLR (pt.231) 558.
Learned counsel further contended that the objections taken to the petition were incompetent, hence the tribunal was wrong to have upheld the objections. Learned counsel argued that the objections were founded on a wrong law, namely paragraph 4(1)(d) of the schedule to the Electoral Act 2011. Furthermore learned counsel contended that the first motion to strike out was filed on behalf of 1st and 2nd Respondents, while the second motion on behalf of the 1st Respondent. Learned counsel therefore argued that the two motions seeking for the some relief constituted on abuse of Process and ought to have been struck out. In support reference was made to the case of Ali v Albishir (2008) 3 NWLR (pt. 1073) 94. In concluding, learned counsel urged the court to hold that the tribunal was wrong in refusing to grant the amendment sought and its subsequent striking out of the petition.
In responding, the 1st Respondent cited paragraphs 4(1) and 14(2) of the first schedule to the Electoral Act 2010 (as amended) and contended that, a petitioner in on erection petition does not have some latitude to amend his petition like a plaintiff in on ordinary court suit. In support, reference was made to the cases of Aribisala V Adeyonju (2009) 2 LRECN 418, Obi v Duke (2004) 2 LRECN 259. Learned counsel submitted that by virtue of paragraph 4(5) of the first schedule, a written deposition is not part of a petition but merely accompanies some, therefore a relief contained in a written disposition cannot be said to be part of the petition. Learned counsel argued that the contents of on election petition have been stated in paragraph 4(1) to 4(4), and it excludes written dispositions which are only to accompany the petition. Learned counsel further argued that a written deposition unlike a pleading, does not become binding on a party filing it or the court until some has been adopted by the witness. Learned counsel stated that the cases of Okereke V Yar’adua (supra) and INEC V Iniama Supra) are not applicable.
Learned counsel argued that a relief in a pleading is not merely to determine whether the relief is within the jurisdiction of the court but is sine qua non to the invocation of jurisdiction. In support, reference was made to the case of Uzonkwo v. Ezeonu II (1991) 6 NWLR (Pt. 200) 781. Learned counsel posited that since the amendment sought relates to prayer or relief, it is prohibited by paragraph 14(2)(a)(ii) of the first schedule to the Act of 2010 (as amended). Learned counsel argued that as there is no prayer in the petition, there is therefore nothing to be amended, as something cannot be placed on nothing and be expected to stand. In support, reference as made to Macfoy v UAC Ltd (2000) 15 WRN 185. Learned counsel argued that even the second application filed 27th May, 2011 which is to supply additional facts relied upon and re-swear a statement on oath is in breach of paragraph 14(2)(a(ii) of the first schedule. Learned counsel submitted that the lacuna in the petition is not curable as the amendments sought are statute barred and therefore touched upon jurisdiction. In support, reference was made to the case of Elebanjo v Dawodu (Supra).
Learned counsel contended that the statement in paragraph 1 of the petition, cannot be a relief but a statement of the right of the appellant to file a petition in line with the requirement of paragraph 4(1)(b) of the First Schedule. Learned counsel therefore urged the court to resolve the issues against the appellant.
In response on behalf of the 3rd to 5th Respondents, reference was made to paragraph 4(3) and 4(5) of the First Schedule to the Electoral Act 2010 (as amended). Based on the aforementioned provisions of the Electoral Act, learned counsel contended that a petition without reliefs is incurably defective and a witness statement on oath is not part of a petition but merely accompanies a petition. Learned counsel stated that the words of the aforementioned paragraphs of the First Schedule are clear and unambiguous; the courts therefore owe a duty to give a plain meaning without resort to external aid. In support, reference was made to the cases of Tanko v State (2009) 4 NWLR (pt 1131) 430, Grosvenor Casinos Ltd v Halaoui (2009) 10 NWLR (pt. 1149) 309. Learned counsel made reference to paragraph 14(2)(a)(ii) of the First schedule, and submitted that the amendment sought cannot be granted. Learned counsel posited that the cases of Okereke v Yar’adua and INEC v Iniama (Supra) are not applicable to this case. In the circumstances, the learned counsel urged the court to resolve all the issues against the appellant and in favour of the Respondents.
The petition of the appellant is contained on pages 1 to 31 of volume one of the record of proceedings. I wish to start by clarifying a preliminary point wherein the appellant’s counsel submitted that paragraph one of the petition can be equated to a prayer. I wish to state that what is contained in paragraph one of the petition is only a statement as to the right of the petitioner to present a petition as envisaged by Paragraph 4(1)(b) of the First Schedule to the Electoral Act 2010 (as amended). It is therefore a total misconception to equate the said paragraph with a prayer or relief.
Having cleared the preliminary issue above, the next question worthy of consideration is whether there is any relief or prayer sought in the petition itself, divorced of the witness statement on oath. A cursory glance at of pages 1 to 31 of the record, wherein the petition is contained will reveal the fact that there is no relief or prayer sought in the petition. This fact is much conceded by the petitioner/appellant, which informed the basis for one of the applications for amendment to transpose the prayers from the petitioner’s witness statement on Oath into the petition. It is therefore on indisputable fact that the petition itself does not contain any relief or prayer as envisaged by Paragraph 4(3)(a) of the First Schedule which provides thus;
“4(3) The election petition shall further
(a) conclude with a Prayer or prayers, as for instance, that the Petitioner or one of the petitioners be declared validly elected or returned, having polled the highest number of lawful votes cost of the election or that the election may be declared nullified, as the case may be;”
The absence of any relief in the petition as earlier stated necessitated the need for one of the applications for amendment. The other application for amendment was anchored on the need to supply additional facts to support the petition and re-swearing a witness statement on oath, paragraph 14(2) of the First Schedule to the Electoral Act 2010 (as amended) is the provision governing the amendment of on election petition.
The said provision is hereby reproduced in verbatim: –
“14(2) After the expiration of the time limited by-
(a)Section 134(1) of this Act for presenting the election petition, no amendment shall be made:
i. introducing any of the requirements of subparagraph (1) of paragraph 4 of this Schedule not contained in the original Election petition filed, or
ii. Effecting a substantial alteration of the ground for or the prayer in the election Petition 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, the  statement of facts relied on to support the  ground for or sustain the prayer in election petition; and”
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 substance to the petition.
See P.D.P. v Haruna (2004) 16 NWLR (Pt. 900) 597, Yusuf v Obasanjo (2003) 16 NWLR (Pt. 847) 532. See also Electoral Law and Practice in Nigeria 1st Edition, by Aderemi Olatubera.
The contention of the appellant is that the amendment sought is to transfer the prayers from the witness statement on Oath of the petitioner the petition, hence not substantial. Learned counsel 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. The case of Okereke V Yar’adua  supra) is not applicable to this case. The contents of on election petition have been specified in Paragraph 4(1) to 4(4) of the First Schedule and written depositions were not included. It should be noted that a written deposition unlike pleading, requires adoption in court before it becomes effective. See Funtua V Tijjani (2011) 7 NWLR (Pt. 1245) 130.

Amendment of pleadings in ordinary civil suit is allowed at any stage, in order to settle the dispute between the parties. The counts have very wide discretion in granting or refusing leave to amend. See Ojoh & Ors V Ogboni (1976) 1 NMLR 95, Oguntimehin V Gubere (1964) 1 All NLR 176. In election petitions however, considering its peculiar and sui generis nature, time is of great essence. See Asunbor V Ashiomole (2007) 1 NWLR (Pt. 1065) 32 at 40, Odon V Barigha-Amange (no. 1)(2010) 12 NWLR (Pt. 1207) 1 at 10. Consequently amendment in an election petition is subjected to restriction as to time limitation.
The applications for amendment were filed on 21st May 2011 and 26th May 2011, respectively. The result of the election according to the petition was declared on 10th April 2011. 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 like an attempt to cure leprosy with cough syrup. The Tribunal was therefore right in refusing to grant the two applications for amendment. See Ngige V Obi (2006) 14 NWLR pt 999) 1 at 136, Enyadike V Omehia (2010) 11 NWLR (Pt. 1204) 92 at 122-123, Okereke V Yar’adua (2008) 12 NWLR (Pt 1100) 95.
The appellant also challenged the competence of the motions filed by the Respondents praying for the striking out of the petition. The challenge was based on the fact that the application was made under the wrong law and secondly that the applications amounted to an abuse of court process due to duplicity of applications filed by the 1st Respondent. On the issue of wrong law, the fact that a party brings an application under a statute other than the applicable one does not disentitle him to reliefs as long as the relief he is seeking is provided for by any written law, common law or even equity. See Falobi V Falobi (1976) 9-10 SC 1 at 13-14, Majekodunmi V Wapco Ltd (1992) 1 NWLR (pt.219) 566. The second leg on abuse of court process cannot also hold water, as the 1st Respondent had a change in legal representation. A litigant has every right to be represented by a counsel of his choice. In the event of change of counsel, leave of court is not necessary, all that is required is to notify the court. See Akumo V Ezikpe (2001) 8 NWLR (pt. 716) 547. On the challenge to the legal representation of the 1st Respondent, the tribunal on page 771 of the record held thus:
“We cannot, in the circumstance in the interest of justice discountenance with the processes filed by Mr. Fagbemi, moreso Sir Ofodile Okafor has withdrawn from representing the 1st Respondent…”
The challenge to the motions filed by the Respondents is of no moment and is hereby discountenanced. The motions filed were legally competent.
The petition as constituted is without any prayer or relief in breach of paragraph 4(1)(d) and 4(3)(a) of the First Schedule to the Electoral Act 2010 (as amended). A petition without prayers or reliefs sought, is not properly constituted to activate the jurisdiction of the Tribunal. It will be a needless academic exercise to hear the petition, as of the end of it there will be no relief to grant. The omission on failure to state the relief (s) sought in the petition is a fundamental defect which renders the petition liable to be struck out. See Okereke V Yar’adua (2008) 6 NWLR (Pt.1082) 37, Moghalu v Ngige (2005) 4 NWLR (pt. 914)1, Emeka v Emodi (2004) 16 NWLR (pt.900) 433, Abimbola v Aderoju (1999) 5 NWLR (Pt.601) 100, Koko v Daniel (2009) 14 NWLR (pt. 1161) 416 at 427. The tribunal therefore rightly struck out the petition for being incompetent. All the four issues are hereby resolved against the appellant and in favour of the Respondent.
Having resolved all the issues in this appeal against the appellant and in favour of the Respondents, the appeal is devoid of merit and substance. The appeal is hereby dismissed The ruling of the tribunal delivered on 7th July, 2011 in petition number NA/SEN/EPT/BAU/06/11 is unimpeachable and is hereby affirmed There will be no order as to costs.

MONICA B. DONGBAN-MENSEM, J.C.A.: My learned brother Jauro, JCA has fully addressed the three issues noised by the Appellant in this appeal. The facts which led to this appeal have been recounted comprehensively in the lead judgement I need not repeat them here.
The core of this appeal is the discretionary Power of the Tribunal to amend a petition filed before it. It appears simple enough since in a regular court, an order of amendment can be made at any time before judgement and sometimes even on appeal.
In the case of Oloto V Attorney-General 14 WACN 659 the Federal Supreme Court granted leave to amend the statement of claim to create a cause of action where none existed in order to bring some in line with the evidence on record (See also Okafor V Ikeaniyi (1979) 3-4 SC 99). The circumstances appear similar with those of this appeal.
However this appeal is not an ordinary one. It is an election appeal to the filing of processes of the Tribunal are all mandatorily encast in time line legislation, the Electoral Act 2010 (as amended) and its schedules. In fact, even the nature and content of the processes to be led have been legislated upon and some provisions put in mandatory terms.
In the Lead Judgement, my learned brother Jauro, JCA observed that
“…a cursory glance of the pages 131 of the records where the petition is contained reveal… no relief or prayer sought in the petition. This fact is much conceded by the Petitioner/Appellant which informed the basis for one of the applications for amendment to transpose the prayers…”
The attempt to amend the petition is not unusual except that as is, the petition falls foul of the provisions of Section 134 of the Electoral Act, paragraphs 14 and 4(3)(a) of the 1st Schedule of the Electoral Act 2010 (as amended). The next impediment of the petition is the provision of paragraph 14(2) of the 1st Schedule (supra) these paragraphs have been reproduced in the Lead Judgement.
Paragraph 14(2) of the 1st Schedule has some for reaching prohibitive provisions which render the prayers of the Appellant as petitioner of the tribunal ungrantable. Time is of the essence, paragraph 14(2) prohibits amendments of the nature sought by the appellant ct the time it was made – of the expiration of 21 days after the declaration of the election being challenged.
Section 134 of the Electoral Act 2010 as amended and Paragraph 24 of the 1st Schedule have the community effect of restricting the discretion of the Tribunal to grant on application for any major or radical alteration of the petition as filed once done outside the 21 days within which to file the petition.
In the eyes of the law by 1st of May 2011, when the filing of pleadings closed the Appellant had no valid petition before the Tribunal and therefore lack the locus standi to approach the Court for any relief based on the said incompetent petition.
The Tribunal in turn lacks the jurisdiction to adjudicate over the said incompetent process which has not been placed before the Tribunal with due process of law. The petition was incompetent, incurably defective and only liable to be struck out and in the circumstance that order in effect means a dismissal of the petition because such a petition cannot be reverse under the current Electoral (refers: Section 133, 134 and then paragraph 14(2) of the First Schedule)
Thus, even if we were inclined to granting this application, the law does not allow the court the leverage to do that and for good reason.
There must be certainty in the time line for the determination of electoral matters. To allow the regular practice to apply in electoral matters will be to render nugatory, the sacred votes cast by enthusiastic electorates who seek to be governed by their dully elected representatives of all levels of governance.
This appeal is without merit and is hereby dismissed. The decision of the Tribunal is hereby affirmed.
No other is made as to cost in the lead Judgment and I make none.

IBRAHIM MOHAMMED M. SAULAWA, J.C.A.: I was privileged to have read, before now, the lead judgment prepared and just delivered by my learned brother, Adamu Jauro, JCA.
Having equally perused the briefs of argument of the learned counsel to the respective parties vis-a-vis the record of appeal, as a whole, I have no hesitation in concurring with the unassailable reasoning and conclusion reached in the lead judgment, to the effect that the appeal lacks merits, thus ought to be dismissed.
I adopt both the reasoning and conclusion as mine. Hence the appeal is hereby dismissed by me. There shall be no order as to costs.

Appearances

Joe Dappa EsqFor Appellant

AND

Hassan T. Fajimite Esq for the 1st Respondent
Mahmud usman Esq for the 3rd – 5th Respondent.For Respondent