LANRE OKUNLOLA & ANOR v. OLATUNJI ABIOLA SHOYINKA & ANOR
(2019)LCN/13764(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of August, 2019
CA/L/EPT/REP/856/2019
RATIO
INTERPRETATION OF STATUTES: ONE DOES NOT TAKE THE PROVISION OF AN ENACTMENT IN ISOLATION
It is a cardinal rule of construction that in seeking to interpret a particular provision of an enactment, one does not take the provision in isolation but one should approach the question of the interpretation on the footing that the provision is part of a greater whole and construe the same not in isolation but in conjunction with other related provisions. See CHIME vs. UDE (1996) LPELR (848) 1 at 51, MOBIL OIL (NIG) PLC vs. IAL 36 INC. (2000) LPELR (1883) 1 at 24 and RIVERS STATE GOVT vs. SPECIALIST KONSULT (2005) LPELR (2950) 1 at 35. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
AMENDMENTS: THE PURPOSE OF AN AMENDMENT IN LAW
The aim of an amendment is to elicit the issue really in controversy between the parties and thereby avoid injustice that would arise but for the amendment, provided that the amendment does not introduce a new cause of action and that the opposite party is not overreached or in any way prejudiced thereby. See OGIDI vs. EGBA (1999) 10 NWLR (PT 621) 42 at 71 and SHELL PETROLEUM DEVELOPMENT CO. LTD vs. AMBAH (1999) 3 NWLR (PT 593) 1 at 10. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURTS: DUTY OF A COURT TO AVOID TECHNICALITIES AND WORK WITH JUSTICE INSTEAD
In the oft-cited English case of CROPPER vs. SMITH (1883) 26 CH. D 700 at 711, Bowen, L. J. stated:
It is a well-established principle that the object of a Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights, I know of no kind of error or mistake which, if not fraudulent or intended to overreach the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace…it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of rights. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
AMENDMENTS: WHEN IT WILL NOT BE GRANTED
An amendment will not be granted where it will not avert or cure the defect in the proceedings; where an amendment is not material but is an inconsistent or useless amendment, it will not be granted. Equally, an amendment will not be granted to create a suit where none existed. SeeOKOLO vs. UNION BANK (1999) LPELR (2464) 1 at 12-13, JESSICA TRADING CO. LTD vs. BENDEL INSURANCE (1993) LPELR (1608) 1 at 14-16, IWEKA vs. SCOA (NIG) LTD (2000) LPELR (1563) 1 at 14-15, OZIGBO vs. REGISTERED TRUSTEES OF EZI OGANIRU SOCIAL CLUB OF NIGERIA (2008) LPELR (8542) 1 at 9-10 and NWANDU vs. EGWUAGU (2014) LPELR (41076) 1 at 12-16. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
WORDS AND MEANING: MEANING OF THE WORD ABANDON
Abandon has been judicially interpreted to mean to desert, surrender, forsake, cede, relinquish or give up absolutely with intent of never again resuming one?s right or interest. See NDOMA-EGBA vs. CHUKWUOGOR (2004) LPELR (1974) 1 at 28-30, ABUE vs. EGBELO (2017) LPELR (43483) 1 at 12-13, ACN vs. AMAEWHULE (2011) LPELR (14264) 1 at 27 and ALI vs. OSAKWE (2010) LPELR (3743) 1 at 55. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
RIGHT TO FAIR HEARING: WHEN THE BASIS UPON WHICH FAIR HEARING IS CLAIMED NO LONGER EXISTS
The question of violation of the right to fair hearing therefore does not arise as there is no Amended Motion that the right to be heard on can be founded upon: SOSANYA vs. ONADEKO (2005) 2 SC (PT II) 13 and DICKSON OGUNSEINDE VIRYA FARMS LTD vs. SOCIETE GENERALE BANK LTD (2018) LPELR (43710) 1 at 11 and 23-24. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
ACADEMIC QUESTIONS: WHETHER COURTS ARE INVOLVED IN ACADEMIC QUESTIONS: WHAT IS AN ACADEMIC SUIT
Courts do not engage in the determination of academic questions. In PLATEAU STATE vs. A-G FEDERATION (2006) 3 NWLR (PT 967) 346 at 419, Tobi, JSC stated:
A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to the practical situation of human nature and humanity.?
Furthermore, in ABUBAKAR vs. YAR?ADUA (2008) 4 NWLR (PT 1078) 465 at 497, Tobi, JSC stated:
An academic matter in a suit is one which is raised for the purpose of intellectual argument qua reason which cannot in any way affect the determination of the live issues in the matter. It is merely to satisfy intellectual prowess qua intellect. It is a matter which is theoretical and not related to practical situation.?
See also EZEANYA vs. OKEKE (1995) 4 NWLR (PT 388) 142 at 165 and GLOBAL TRANSPORT OCEANICO S.A. vs. FREE ENTERPRISES (NIG) (2001) LPELR (1324) 1 at 19 -20. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. LANRE OKUNLOLA
2. ALL PROGRESSIVES CONGRESS
-APPELLANTS/CROSS RESPONDENTS Appellant(s)
AND
1. OLATUNJI ABIOLA SHOYINKA
-RESPONDENT/CROSS APPELLANT
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the National and State Houses of Assembly Election Petition Tribunal, Lagos State (hereinafter referred to as the Tribunal) in PETITION NO. EPT/LAG/REP/8/2019: LANRE OKUNLOLA & ANOR. vs. OLATUNJI ABIOLA SHOYINKA & ANOR. delivered on 24th June 2019.
The 2nd Respondent conducted the election for the membership of the House of Representatives for the Surulere II Federal Constituency and returned the 1st Respondent as the duly elected candidate. The Appellants challenged the said return by filing an election petition before the Tribunal. The Petition having been served on the Respondents, the 1st Respondent filed a Reply and the 2nd Respondent equally filed an answer to the Petition which it titled ?Statement of Defence?. The Appellants filed a Reply to the Reply of the 1st Respondent but did not file any Reply to the ?Statement of Defence? of the 2nd Respondent. Thereafter, several applications were filed by the parties. The Appellants filed four applications. Two of the
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applications were filed on 24th April 2019; one prayed for an order striking out the ?Statement of Defence? of the 2nd Respondent, while the other prayed for the issuance of pre-hearing notice. (See Pages 278-308 of the Records). The other two applications filed by the Appellants were filed on 10th May 2019 and one sought an order to amend the Motion of 24th April 2019, wherein the Appellants applied for issuance of pre-hearing notice and for the said Amended Motion to be deemed as properly filed; while the other was the said Amended Motion, which inter alia, was for enlargement of time to file their Reply to the 1st Respondent?s Reply and enlargement of time to apply for pre-hearing notice. (See pages 401-431 of the Records). It seems translucent that the Appellants? applications of 10th May 2019 tacitly conceded that they did not apply for pre-hearing notice in a timely manner and also that they did not file their Reply to the 1st Respondent?s Reply within the stipulated time. As a matter of fact, in an admirable display of good and commendable advocacy, the learned senior counsel for the Appellants conceded at the hearing
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of the appeal that the Appellants did not apply for pre-hearing notice within the stipulated time.
The application of the 1st Respondent was filed on 3rd May 2019 and it sought, among others, for orders striking out the Appellants? Reply to the Reply of the 1st Respondent and also for the Petition to be dismissed on the ground that the said Reply and the application for issuance of pre-hearing notice were filed out of time. (See pages 328-349 of the Records). The 2nd Respondent?s application which was filed on 14th May 2019 prayed, inter alia, for an order of the Tribunal striking out the Appellants? application for issuance of pre-hearing notice and dismissal of the Petition, since the application for issuance of pre-hearing notice was not filed within the stipulated time. (See pages 437-445 of the Records).
?With the consent of the parties, three of the applications were heard together and three separate Rulings were delivered by the Tribunal. The applications that were heard together are the Appellants? Motion of 10th May 2019 for amendment, the 1st Respondent?s Motion of 3rd May 2019 and the 2nd Respondent?s
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Motion of 14th May 2019. The three separate Rulings of the Tribunal on the applications were all delivered on 24th June 2019 and appeals were lodged against the said Rulings. The instant appeal is in respect of the Ruling on the Appellants? Motion for amendment of 10th May 2019. The said Ruling is at pages 553A-588 of the Records of Appeal. The Appellants, contending that the Tribunal having granted their application to amend denied them fair hearing by not hearing their Amended Motion of 10th May 2019, which it deemed as properly filed, before proceeding to rule on the Respondents? applications which it granted and dismissed the Appellants Petition; appealed. The Appellants Notice of Appeal is at pages 628-633 of the Records of Appeal. The 1st Respondent was equally dissatisfied with the Ruling of the Tribunal granting the Appellants? application to file the Amended Motion and consequently filed a cross appeal. The Notice of Cross Appeal is at pages 53-59 of the Additional Records of Appeal.
?On 6th August 2019, the Appellants were granted leave to use the Records of Appeal in the related APPEAL NO. CA/LAG/EPT/REP/854/2019 for the
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hearing of this appeal and the Additional Records of Appeal compiled and transmitted by the 1st Respondent for the cross appeal were regularized for use in hearing the appeal. Briefs of argument were filed and exchanged and the learned counsel for the parties urged the Court at the hearing to uphold their respective submissions in the determination of the appeals.
The parties had initially filed joint briefs of argument for all the related appeals, however pursuant to the direction of the Court on the said 6th August 2019, the parties refiled separate briefs for the appeals. The briefs on which the appeal and cross appeal were argued are:
1. Appellants? Brief of Argument filed on 6th August 2019.
2. 1st Respondents/Cross Appellant?s Brief of Argument filed on 7th August 2019.
3. 2nd Respondent?s Brief of argument filed on 7th August 2019.
4. Appellants/Respondents? Brief of Argument in 1st Respondent/Cross Appellant?s Appeal filed on 7th August 2019.
5. 1st Respondent/Cross Appellant?s Reply Brief filed on 7th August 2019.
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6. Appellants? Reply Brief to the 2nd Respondent?s Brief of Argument filed on 7th August 2019.
In the Appellants? brief, two issues were distilled for determination as follows:
?1. Whether upon granting the appellants? application for amendment of their Motion on Notice filed 24/4/2019, the failure of the Lower Tribunal to determine the appellants? Amended Motion on Notice filed 10/5/2019 did not breach the appellants? right to fair hearing?
2. Whether the provisions of Section 285(8) of the Constitution of the Federal Republic of Nigeria, 1999 as amended by the Fourth Alteration No. 21, Act, 2017 have not impliedly amended the provisions of Paragraphs 18(3) and 18(4) of the First Schedule to the Electoral Act, 2010 and thereby enable the Lower Tribunal to make Orders for the hearing of the Electoral Petition on the merits
The 1st Respondent formulated a sole issue for determination from both the main appeal and the cross appeal, namely:
?Considering the decision of this honourable Court
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in the case of Barnabas Nwadiaro & Ors v The President and Members of Customary Court, Ossomala (2016) LPELR-40925 (CA) and Orders 56 (1); 17 and 26 of the Federal High Court (Civil Procedure) Rules, 2009, can the Petitioners/Appellants/1st and 2nd Cross-respondents amend their Motion on Notice dated and filed on 24th April, 2019 by their motion on Notice dated and filed on 10th May, 2019
The 2nd Respondent on its part nominated three issues for determination, thus:
?i. Whether the Honourable Tribunal was right when it held that ?in the instant case, the petition as against the 2nd respondent is dead and cannot be resurrected or revived and we so hold?.
ii. Whether the Honourable Tribunal was right to have held that ?the petition as a whole is irredeemable (sic) bad for non-compliance with Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended), only good to be dismissed and is hereby dismissed accordingly.?
iii. Whether the Honourable Tribunal was right to have held that ?defence is therefore synonym of reply. In the instant case, it is not the allegation of the petitioner
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that heading its purported reply ?statement of defence? misled the petitioners as to what the document was meant to be, neither is the Tribunal misled. The submission of the petitioners? counsel that the 2nd respondent did not filed [sic] reply to the petition is of no moment and is hereby discountenanced?.?
In the Appellants/Respondents? Brief of Argument in 1st Respondent/Cross Appellant?s appeal, the Appellants? crafted two issues for determination in the cross appeal as follows:
?1. Whether the Lower Tribunal had jurisdiction to consider and allow an amendment of a Motion on Notice?
2. Whether the Court of Appeal decision in Barnabas Nwadiaro & Ors. v. The President and Members of Customary Court Ossomala (2016) LPELR 40925 precluded The Lower Tribunal from granting the appellants? Motion for amendment of their earlier Motion of 24/4/2019
The Appellants in the Appellants/Respondents? Brief of Argument in 1st Respondent/Cross Appellant?s appeal objected to ground two of the Notice of Cross Appeal upon the ground that it
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is a ground of mixed law and facts and that the cross appeal being against an interlocutory decision of the Tribunal, an appeal could not lie as of right on grounds of mixed law and facts and that leave not having been sought and obtained, the said ground is incompetent. It was further posited that since a sole issue for determination was formulated from the four grounds of the cross appeal, the said issue and the argument thereon was tainted and should be struck out. The cases of OGBECHIE vs. ONOCHIE (1986) 2 NWLR (PT 23) 484 at 491, NNPC vs. FAMFA OIL LTD (2012) 17 NWLR (PT 1328) 148, ABUBAKAR vs. YAR?ADUA (2008) 4 NWLR (PT 1078) 465 at 496 and JEV vs. IYORTYOM (2014) NWLR (PT 1428) 525 at 609 were referred to.
In replication, the 1st Respondent/Cross Appellant asserts that the said ground two is competent since by Section 246 (1) of the 1999 Constitution as amended, an appeal lies as of right from decisions of the Tribunal. The said ground two, it was maintained, contained sufficient details and set out the real grievance of the 1st Respondent/Cross Appellant.
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The cases of ODON vs. BARIGHA-AMANGE (2010) 12 NWLR (PT 1207) 13 at 42-43, OSASONA vs. AJAYI (2004) 5 SC (1) 88 at 96, ATUYEYE vs. ASHAMU (1987) 1 NWLR (PT 49) 267 at 282, SHYLLON vs. ASEIN (1994) 6 NWLR (PT 353) 670 and OLAWUYI vs. ADEYEMI (1990) 4 NWLR (PT 147) 746 at 765 were relied upon.
Now, an election petition is sui generis. It is in a class by itself. It is different from a common law civil action: ABUBAKAR vs. YAR?ADUA (2008) LPELR (51) 1 at 22, BUHARI vs. YUSUF (2003) LPELR (812) 1 at 18-19 and PDP vs. EZEONWUKA (2017) LPELR (42563) 1 at 68-69. Section 246 (1) (b) of the 1999 Constitution provides that appeals shall lie as of right to this Court from decisions of the Tribunal. It is instructive that unlike the provisions of the Constitution on appeals in common law civil actions (see for instance Sections 241 and 242 of the Constitution), there is no dichotomy in Section 246 (1) (b) as to the decision being final or interlocutory or the grounds of appeal being grounds of law alone or grounds
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of mixed law and facts. In recognition of the sui generis nature of election petitions, the Constitution, the grundnorm, has conferred the right to appeal as of right from decisions of the Tribunal without the finicks of whether the decision is final or interlocutory or whether the grounds of appeal are grounds of law alone or grounds of mixed law and facts. In the words of Garba, JCA in ODON vs. AMANGE (2008) LPELR (4681) 1 at 13-14:
“I should also point out that the objection taken on grounds 2, 4 and 6 as being on interlocutory decisions of the lower tribunal and therefore require leave of Court, is misconceived because Section 246 (1) (b) (i) of the 1999 Constitution of the Federal Republic of Nigeria confers a right of appeal as of right to the Appellant against the decision of the lower tribunal to this Court. The provisions are thus:
?246 (1) An appeal to the Court of Appeal shall lie as of right from: –
(b) decisions of the National Assembly Election tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether;
(i) any person has been validly elected as a member of the National Assembly or
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of a House of Assembly of a State under this Constitution?
It should be noted that the rulings or decisions made at the pre-trial conference were made in the course of the hearing of the Appellant’s petition and so qualify as decisions of the lower tribunal which fall within the meaning of decision in Section 318 of the 1999 Constitution of the Federal Republic of Nigeria. An appeal against any of those decisions is therefore as of right and requires no leave of Court. See ABURIME V. ABUMERE (2002) 10 NWLR (776) 441, UZODINMA V. UDENWA (2004) ALL FWLR (213) 1813.?
I wholeheartedly subscribe to the above dictum. In the circumstances, I am unable to agree with the Appellants that ground two of the Notice of Cross Appeal is incompetent. The preliminary objection therefore fails and it is dismissed.
?In the Appellants? Reply Brief to the 2nd Respondents Brief of Argument, the Appellants objected to the issues distilled by the 2nd Respondent as arising for determination in the appeal. The objection which is argued in paragraphs 1.1 to 1.3 on page 1 of the Appellants? Reply Brief is to the effect that the 2nd Respondent did not
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indicate the grounds of appeal from which its issues were distilled. The Court was urged to strike out the said issues and the supporting argument. Order 19 Rule 3 (1) of the Court of Appeal Rules, 2016 and the cases of ASOGWA vs. PDP (2013) 7 NWLR (PT 1353) 207 at 236 and JEV vs. IYORTYOM (supra) were called in aid. The 2nd Respondent did not proffer any submissions in answer to the objection.
Without a doubt, the 2nd Respondent did not indicate the grounds of appeal from which the issues it distilled for determination were derived. While it is desirable to have so indicated, I do not think that it is a failure which would render the issues incompetent and liable to be struck out as the Appellants have contended. It is a mere inelegance that is not fatal. See UNION BANK LTD vs. ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PT 421) 558 at 563, HANSEATIC INTERNATIONAL LTD vs. USANG (2002) 13 NWLR (PT 784) 376 at 401-402, NIGERIAN PORTS PLC vs. BEECHAM PHARMACEUTICAL PTE LTD (2012) 18 NWLR (PT 1333) 454 at 480 and DIAMOND BANK PLC vs. OPARA (2018) LPELR (43907) 1 at 8-9. There is therefore no merit in the preliminary objection and it is therefore dismissed.<br< p=””
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However, that said, even though it is not fatal that the 2nd Respondent did not state the grounds of appeal from which it distilled its three issues for determination; it is effulgent that the said issues have no semblance whatsoever with the complaints in this appeal. This is the thrust of the Appellants reply in the Reply Brief to the substance of the submissions in the 2nd Respondent?s Brief. The main appeal, which the 2nd Respondent purported to reply to in its Brief, is in respect of the propriety of the Tribunal not having heard the Appellants? Amended Motion, which it gave leave for and deemed as properly filed, before it proceeded to dismiss the Petition. The submissions of the 2nd Respondent are on an entirely different tangent that has no bearing whatsoever with the disceptation in this appeal. In the circumstances, the arguments therein, being a misconstrual and non sequitur, will be discountenanced and will play no further part in the consideration of this appeal.
?I have already stated that there are three related appeals in this matter. The other two appeals are APPEAL NO. CA/LAG/EPT/REP/854/2019 and APPEAL No.
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CA/LAG/EPT/REP/855/2019, the judgments in respect of which have been delivered this morning. The Appellants? issue number two herein is the same as issue number three distilled by the Appellants in the said appeals. Indeed, the Appellants? submissions on the issue are verbatim ac literatim of what they argued in the said other two appeals. In the said two judgments, the issue was resolved against the Appellants to the conclusive effect that Section 285 (8) of the 1999 Constitution as amended by the Fourth Alteration did not impliedly amend the provisions of Paragraph 18 (3) and (4) of the First Schedule to the Electoral Act, 2010 as amended. This being so, particularly in the light of the fact that nothing new has been urged under the issue, I stand by the decision already handed down on the issue in the other two appeals. The said issue and the postulations thereon will play no further part in this matter since the same has been determined to a finality in APPEAL NO. CA/LAG/EPT/REP/854/2019 and APPEAL No. CA/LAG/EPT/REP/855/2019.
?By the nature of the appeal and cross appeal herein, the Appellants? argument in the main appeal has been
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predicated on the decision of the Tribunal granting it leave to amend their Motion being correct, on the basis of which they complain that the Tribunal denied them fair hearing by not hearing the said Amended Motion before it dismissed the Petition. Contrariwise, the cross appeal challenges the correctness of the said decision granting the Appellants leave to amend their Motion. It seems to me that the natural logical order is for the cross appeal to be considered first, since it is only if the Tribunal was right to have granted the application to amend the Motion that the question of whether there was a deprivation of the right to fair hearing when it failed to hear the Amended Motion before it dismissed the Petition will arise. It is this logical sequence that I will follow in determining this matter.
THE CROSS APPEAL
I have set out the issues for determination as distilled by the parties in the cross appeal. It is rudimentary law that a Court can and is entitled to re-formulate the issues formulated by the parties or counsel in order to give it precision and clarity. The purpose of reframing the issues is to have a more judicious and proper
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determination of an appeal, that is, to narrow the issues in controversy in the interest of accuracy, clarity and brevity. See UNITY BANK PLC vs. BOUARI (2008) ALL FWLR (PT 416) 1825 at 1846-1847. In the words of Uwaifo, JSC in MUSA SHA (JNR) vs. DA RAP KWAN (2000) 5 SCNJ 101 at 127:
?The purpose of framing or re-framing an issue or issues, it is stated: is to lead to a more judicious and proper determination of an appeal. The purpose of formulating it or them, is in order to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity.?
Accordingly, I will take the liberty to re-formulate the issues in order to make for precision and clarity. The sole distensible issue which I find apt and cumulative with the issues distilled by the parties (see SANUSI vs. AMEYOGUN (1992) 4 NWLR (PT 237) 527 at 550-551 and NEKA B.B.B. MANUFACTURING LTD vs. A.C.B. LTD (2004) 17 NSCQR 240 at 250-251) and on the basis of which I will consider the submissions of learned counsel and determine the cross appeal is:
Whether the Tribunal was right to have exercised its discretion in favour of granting the application to amend the Motion.
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SUBMISSIONS OF THE 1ST RESPONDENT/CROSS APPELLANT?S COUNSEL
It is the submission of the 1st Respondent/Cross Appellant that based on the decision of this Court in BARNABAS NWADIARO vs. THE PRESIDENT AND MEMBERS OF CUSTOMARY COURT OSSOMALA (supra), the Tribunal was in error when it made the order for the Appellants/Cross Respondents to amend their Motion. It was argued that even though by Paragraph 54 of the First Schedule to the Electoral Act, the Tribunal can have recourse to the Federal High Court (Civil Procedure) Rules, the Tribunal could not have acted under any inherent jurisdiction pursuant to Order 56 of the Federal High Court (Civil Procedure) Rules, since the said Order is made subject to Orders 17 and 26 of the Federal High Court (Civil Procedure) Rules which do not make provisions for amendment of interlocutory applications. The definition of the phrase subject to in the cases of EBHOTA vs. PIPDC LTD 23 NSCQR 317 at 334-335 and FRN vs. OSAHON 25 NSCQR 512 at 571-572 were referred to.
?It was further submitted that the application to amend the Motion ought to have been refused as the Appellants were acting mala fide,
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and the grant of the same overreached and entailed injustice to the Respondents vide AKANINWO vs. NSIRIM (2008) LPELR-321 or (2008) 1 SC (PT III) 151. It was opined that specific provision had been made in Paragraph 14 of the First Schedule to the Electoral Act on amendment generally and it was therefore not a situation where recourse could be had to the Federal High Court (Civil Procedure) Rules pursuant to Paragraph 54 of the First Schedule to the Electoral Act. It was asserted that the Electoral Act made mandatory, compliance with the provisions of Paragraphs 14 and 16 of the First Schedule to the Electoral Act; and does not allow for the exercise of discretion in the manner which the Tribunal did by granting the Appellants? application to amend their Motion. The grant of the application, it was opined was done without jurisdiction and was therefore a nullity. The case of OKE vs. MIMIKO (NO. 1) (2014) 14 NWLR (PT 1388) 225 at 262 was relied upon. It was conclusively submitted that Rules of Court are meant to be obeyed and that before the Tribunal can exercise discretion in favour of the Appellants, their case must come within the provisions of the
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Rules, id est, the First Schedule to the Electoral Act. The cases of SOLANKE vs. SOMEFUN (1974) 1 SC 141 and ORUNLOLA vs. ADEOYE (1995) 6 NWLR (PT 401) 305 were called in aid.
SUBMISSIONS OF THE APPELLANTS/CROSS RESPONDENTS? COUNSEL
The Appellants/Cross Respondents submit that the Tribunal was right to have resorted to the stipulations of the Federal High Court (Civil Procedure) Rules, since the Electoral Act did not make any specific provision for amendment of a Motion on Notice. It was posited that even though Order 17 of the Federal High Court (Civil Procedure) Rules provided for amendment of pleadings, it did not preclude the Court from allowing the amendment of any other process.
It was stated that the first rule of construction is that a statute must be read as a whole, ex visceribus actus (within the four corners of the Act), and that when Orders 17 and 56 (1) of the Federal High Court (Civil Procedure) Rules are read together, it becomes clear that the Court is given wide powers to do anything in the interest of justice, which includes granting an amendment. It was maintained that the Tribunal can have recourse to the Federal High
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Court (Civil Procedure) Rules where there is no provision in the First Schedule to the Electoral Act vide OKEREKE vs. YAR?ADUA (2008) 12 NWLR (PT 1100) 95 at 118.
It is the further submission of the Appellants/Cross Respondents that the decision of this Court in BARNABAS NWADIARO vs. THE PRESIDENT AND MEMBERS OF CUSTOMARY COURT OSSOMALA (supra) does not support the 1st Respondent/Cross Appellant?s contention, the case having decided that a Motion can be amended by alteration or insertion, which is what they sought to do in the Motion and was rightly granted by the Tribunal.
1ST RESPONDENT/CROSS APPELLANT?S REPLY ON LAW
In the Reply Brief, the 1st Respondent/Cross Appellant submits that the Motion which the Appellants/Cross Respondents sought to amend was filed outside the period stipulated in the First Schedule to the Electoral Act and that by Paragraph 18 (4) of the said First Schedule the Motion ought not to have been filed at all.
RESOLUTION OF THE CROSS APPEAL
At the risk of repetition, but for ease of appreciation, in one of two applications filed by the Appellants/Cross Respondents on 24th April 2019, they prayed for an order for the issuance of pre-hearing notice. (See page 300 of the Records). In reaction to this application, the 1st Respondent/Cross Appellant, inter alia, filed an application for the Appellants/Cross Respondents Petition to be dismissed for failure to apply for pre-hearing notice within the stipulated time and also for the Appellants/Cross Respondents Reply to the 1st Respondent/Cross Appellant?s Reply which was filed out of time to be struck out. (See pages 328-329 of the Records). This was on 3rd May 2019. Thereafter, on 10th May, 2019, the Appellants/Cross Respondents filed one of the two applications which is the subject of this appeal. In the said Motion, the Appellants/Cross Respondents sought the leave of the Tribunal to amend their Motion of 24th April 2019. The amendment sought, in terms of Exhibit A to the said Motion, was to add prayers for enlargement of time to file a Reply to the 1st Respondent/Cross Appellant?s Reply, enlarge time to apply for pre-hearing notice and to deem the Reply already filed as properly filed. So the amendment sought was for the insertion and inclusion of more prayers in the Motion of 24th
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April 2019 which was sought to be amended. The Appellants/Cross Respondents filed a clean copy of the Amended Motion which they urged the Tribunal to deem as duly filed.
The 1st Respondent/Cross Appellant has made a foofaraw that the decision of the Tribunal granting the Motion to amend is contrary to the decision of this Court in BARNABAS NWADIARO vs. THE PRESIDENT AND MEMBERS OF CUSTOMARY COURT OSSOMALA (supra). Now, this is what my learned brother, Agim, JCA stated in the said case at pages 16 and 18 of the Report:
?Motion on Notice can be amended like any other process of Court. I do not agree with the Learned Counsel for the respondent that it can only be amended by substitution. It can be amended by insertions and alterations therein or by substituting it with a fresh motion. In practice, where a party files a fresh process or motion to substitute an earlier one, he applies to withdraw the earlier one? Where a fresh motion is filed to be heard in place of a pending motion, the applicant is at liberty to withdraw the earlier motion and upon such withdrawal, it would be struck out, so that the fresh motion can be heard.?<br< p=””
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Analysing the above dictum, it expressly states that a Motion on Notice can be amended, not just by substitution, but also by alterations and insertions. As already stated, the application before the Tribunal was to amend the Motion of 24th April 2019 by adding and inserting more prayers. In this wise, a fresh Amended Motion was filed containing all the prayers which were sought to be urged in the stead of the Motion of 24th April 2019. So there was a fresh Motion which, if the amendment sought is granted, would then be heard and the one of 24th April 2019 withdrawn. I am unable to see how the decision of this Court in BARNABAS NWADIARO vs. THE PRESIDENT AND MEMBERS OF CUSTOMARY COURT OSSOMALA (supra) can be construed to mean that a Motion on Notice cannot be amended. Definitely not, even if based on the first sentence alone, which is that ?Motion on Notice can be amended like any other process of Court.? The 1st Respondent/Cross Appellant?s contention in this regard is on quicksand and it is inevitably sucked down by the quicksand.
?It was further argued that the Tribunal was bereft of the jurisdiction to grant an order for the
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amendment of the Motion since the inherent powers of Court it relied upon based on Order 56 of the Federal High Court (Civil Procedure) Rules is made subject to Orders 17 and 26 of the Federal High Court (Civil Procedure) Rules, which do not provide for amendment of interlocutory applications. Without a doubt, the phrase, subject to, which is employed in Order 56 (1) is an expression which when used in an enactment introduces a condition, a restriction, a limitation, a proviso. It subordinates the provisions of the subject stipulation to the section or enactment empowered by reference thereto and which is intended not to be diminished by the subject stipulation. The expression generally implies that what the stipulation is subject to shall govern, control, and renders the provision to which it is subject conditional upon compliance with or adherence to what is prescribed in the provision referred to. See NDIC vs. OKEM ENTERPRISES LTD (2004) 7 MJSC 74 at 122-123, TEXACO PANAMA INCORPORATION vs. SHELL PETROLEUM DEVELOPMENT CORPORATION OF NIGERIA LTD (2002) 14 WRN 121 at 134 and EBHOTA vs. PIPDC (supra).
But is it to the provisions of
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Orders 17 and 26 that Order 56 (1) has been subjected to as argued by the 1st Respondent/Cross Appellant? It would seem not to be so. Order 56 (1) stipulates thus:
?Subject to particular Rules, the Court may in all causes and matters make any order which it considers necessary for doing justice, whether the order has been expressly asked for by the person entitled to the benefit of the order or not.?
It is instructive that the phrase employed in the above provision is subject to particular Rules as opposed to subject to these Rules. This is a subtle but significant indication that the Rules to which the stipulation have been subjected to are other Rules other than the Federal High Court (Civil Procedure) Rules. This is in contradistinction to the use of the expression subject to these Rules which have been used in other stipulations like Order 3 Rule 1, Order 20 Rule 1 and Order 26 Rule 1, to mention a few; denoting subjection and subordination to the provisions of the Federal High Court (Civil Procedure) Rules. The key is in the word particular as opposed to these.
It is a cardinal rule of construction that in seeking to
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interpret a particular provision of an enactment, one does not take the provision in isolation but one should approach the question of the interpretation on the footing that the provision is part of a greater whole and construe the same not in isolation but in conjunction with other related provisions. See CHIME vs. UDE (1996) LPELR (848) 1 at 51, MOBIL OIL (NIG) PLC vs. IAL 36 INC. (2000) LPELR (1883) 1 at 24 and RIVERS STATE GOVT vs. SPECIALIST KONSULT (2005) LPELR (2950) 1 at 35. In this wise, the provisions of Order 56 Rule 2 (1) of the Federal High Court (Civil Procedure) Rules which makes reference to other procedure Rules in the enactments set out in Appendix 1 of the Federal High Court (Civil Procedure) Rules are relevant. Therefore, the vires of the Tribunal to entertain the application to amend the Motion was not subjected to the provisions of Orders 17 and 26 of the Federal High Court (Civil Procedure) Rules. The Tribunal was therefore on a strong wicket when it considered the application by resorting to the inherent powers afforded by Order 56 Rule 1 of the Federal High Court (Civil Procedure) Rules.
?Having the power to entertain the application is one
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thing but properly exercising discretion, judicially and judiciously, is a different matter. To now captivate our attention is whether it was a proper exercise of judicial discretion for the Tribunal to have granted the application to amend the Motion. In ordinary common law civil actions, our adjectival laws allow a party to alter or amend his processes in such manner and on such terms as may be just, provided that such amendment is necessary for the purpose of determining the real question in controversy between the parties. The aim of an amendment is to elicit the issue really in controversy between the parties and thereby avoid injustice that would arise but for the amendment, provided that the amendment does not introduce a new cause of action and that the opposite party is not overreached or in any way prejudiced thereby. See OGIDI vs. EGBA (1999) 10 NWLR (PT 621) 42 at 71 and SHELL PETROLEUM DEVELOPMENT CO. LTD vs. AMBAH (1999) 3 NWLR (PT 593) 1 at 10.
In the oft-cited English case of CROPPER vs. SMITH (1883) 26 CH. D 700 at 711, Bowen, L. J. stated:
?It is a well-established principle that the
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object of a Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights, I know of no kind of error or mistake which, if not fraudulent or intended to overreach the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace…it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of rights.?
See also YUSUF vs. OBASANJO (2003) 14 NWLR (PT 841) 446 and AKINSANYA vs. AJERI (1997) 12 NWLR (PT 531) 99 at 108.
The Courts have in a long list of decided cases established the basic principles governing amendment. Basically, an amendment for the purposes of determining the real questions in controversy
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between the parties ought to be allowed by the Court unless such amendment will entail injustice. See ADETUTU vs. ADEROHUNMU (1984) 1 SCNLR 515; AMADI vs. APLIN (1972) 4 SC 228; OJAH vs. OGBONI (1976) 4 SC 69 and OGIDI vs. EGBA (supra). In ALSTHOM S. A. vs. SARAKI (2000) FWLR (PT 28) 2267, Achike, JSC (of blessed memory) stated at page 2276 as follows:
?Amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected, in the interest of justice, ensuring always that no injustice is occasioned to the other party.The weight of judicial authorities leans in favour of allowing a party to amend its legal processes whenever the need arises in order to ensure that the real matter in controversy between the parties, shorn of manifest errors, mistakes and slips, is adequately brought to focus and determined, with the proviso, however, that the right of adversary party is neither unduly compromised nor unredressed.?
Also reported in (2000) 14 NWLR (PT 687) 415 at 424.
In his own contribution, Karibi-Whyte, JSC, at page 2280 stated:
?The basic principle governing the grant
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of leave to amend is for the purpose of determining the real issue or issues in controversy between the parties… The Courts have always followed the established principle that the fundamental object of adjudication is to decide the rights of the parties, and not to impose sanctions merely for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.?
Also reported in (2000) 14 NWLR (PT 687) 415 at 427.
See also UBN PLC vs. SPARKLING BREWERIES LTD (1997) 3 NWLR (PT 491) 29 at 48 ? 49.
The above underscores the liberal approach of the Courts in ordinary common law civil actions. But this matter is not an ordinary common law civil action. It is an election petition, which is sui generis. Therefore, the application for amendment has to be considered against this background; regard being had to the fact that time is of the essence in election petition cases and the right to extend time or amend processes has been limited by the provisions of Paragraphs 14, 16 and 18 of the First Schedule to the Electoral Act.
?I have set out the essence of the amendment sought by
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the Appellants/Cross Respondents and which was granted by the Tribunal. The amendment was to incorporate prayers for enlargement of time to file Reply and enlargement of time to apply for issuance of pre-hearing notice. Generally, even though the pendulum tilts in favour of granting amendments, an amendment can be refused in deserving cases. The materiality of the amendment must be carefully considered in the peculiar facts of each case. An amendment will not be granted where it will not avert or cure the defect in the proceedings; where an amendment is not material but is an inconsistent or useless amendment, it will not be granted. Equally, an amendment will not be granted to create a suit where none existed. SeeOKOLO vs. UNION BANK (1999) LPELR (2464) 1 at 12-13, JESSICA TRADING CO. LTD vs. BENDEL INSURANCE (1993) LPELR (1608) 1 at 14-16, IWEKA vs. SCOA (NIG) LTD (2000) LPELR (1563) 1 at 14-15, OZIGBO vs. REGISTERED TRUSTEES OF EZI OGANIRU SOCIAL CLUB OF NIGERIA (2008) LPELR (8542) 1 at 9-10 and NWANDU vs. EGWUAGU (2014) LPELR (41076) 1 at 12-16.
I iterate that the Appellants/Cross Respondents filed an application seeking for issuance of pre-hearing notice
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simpliciter on 24th April 2019. Upon the 1st Respondent/Cross Appellant filing an application on 3rd May 2019 on the grounds that the Reply was filed out of time and that the application for pre-hearing notice was made out of time; and urging that the Petition be dismissed; the Appellants/Cross Respondents then filed their motion for amendment of their pending Motion of 24th April 2019 to incorporate prayers for enlargement of time to file Reply and enlargement of time to apply for pre-hearing notice. I restate that learned senior counsel for the Appellants/Cross Respondents conceded at the hearing of this appeal that their application for issuance of pre-hearing notice was not made within the stipulated time.
?Now, against the background of the diacritical circumstances of this matter as an election petition, would an amendment to incorporate the prayers for enlargement of time cure the defect of not having acted in a timely manner? Paragraph 16 (2) of the First Schedule to the Electoral Act stipulates that the time for filing the Reply to a Respondent?s Reply shall not be extended. Equally, Paragraph 18 (4) of the First Schedule to the Electoral Act
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provides that an application for extension of time to apply for pre-hearing notice shall not be filed or entertained. Therefore it seems that, in the peculiar circumstances of this matter, an amendment of the Motion of 24th April 2019 in order to include prayers for enlargement or extension of time, is a useless amendment which will not cure the defect in the proceedings and ought not to have been granted by the Tribunal.
Equally, by Paragraph 18 (4) of the First Schedule to the Electoral Act, where the application for pre-hearing notice is not made within time, the Petition is deemed as abandoned. Abandon has been judicially interpreted to mean to desert, surrender, forsake, cede, relinquish or give up absolutely with intent of never again resuming one?s right or interest. See NDOMA-EGBA vs. CHUKWUOGOR (2004) LPELR (1974) 1 at 28-30, ABUE vs. EGBELO (2017) LPELR (43483) 1 at 12-13, ACN vs. AMAEWHULE (2011) LPELR (14264) 1 at 27 and ALI vs. OSAKWE (2010) LPELR (3743) 1 at 55. Given the legal consequence of a Petition being abandoned for not applying for pre-hearing notice within time, and all that will be left will be an order of dismissal under
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Paragraph 18 (4); the cause of action in the election petition had in such circumstances been relinquished and given up absolutely. To therefore grant an application for amendment to include a prayer for enlargement or extension of time to apply for pre-hearing notice is akin to granting an amendment to resurrect or create a suit that no longer existed, having been abandoned.
On the peculiar facts of this matter, where the amendment sought will not cure the defect in the proceedings and is therefore a useless amendment and would have the effect of an attempt to resurrect an election petition that no longer existed, having been abandoned: OKOLO vs. UNION BANK (supra); it was therefore not a proper exercise of judicial discretion for the Tribunal to have granted the application to amend the Motion. Indubitably, the issue for determination as crafted by the Court is resolved against the Appellants/Cross Respondents. The decision of the Tribunal delivered on 24th June 2019 in PETITION NO. EPT/LAG/REP/8/2019: LANRE OKUNLOLA & ANOR. vs. OLATUNJI ABIOLA SHOYINKA & ANOR. granting the Appellants/Cross Respondents leave to amend their Motion on Notice of
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24th April, 2019 and deeming the Amended Motion on Notice filed on 10th May 2019 as properly filed is hereby set aside and in its stead an order of dismissal of the said Appellants/Cross Respondents Motion to amend is hereby made.
THE MAIN APPEAL
The crux of the contention in the main appeal is the agitation that the Tribunal ought to have heard the Amended Motion before it dismissed the Petition and that the failure to hear the same was a violation of the right to fair hearing. By all odds, the manner of resolution of the Cross Appeal has rendered inutile and academic the contention in the Main Appeal. Having held that the Tribunal was wrong in making the order for amendment, the concomitance is that there is no Amended Motion which would have been heard or which is to be heard. The question of violation of the right to fair hearing therefore does not arise as there is no Amended Motion that the right to be heard on can be founded upon: SOSANYA vs. ONADEKO (2005) 2 SC (PT II) 13 and DICKSON OGUNSEINDE VIRYA FARMS LTD vs. SOCIETE GENERALE BANK LTD (2018) LPELR (43710) 1 at 11 and 23-24.
Courts do not engage in the determination of academic
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questions. In PLATEAU STATE vs. A-G FEDERATION (2006) 3 NWLR (PT 967) 346 at 419, Tobi, JSC stated:
?A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to the practical situation of human nature and humanity.?
Furthermore, in ABUBAKAR vs. YAR?ADUA (2008) 4 NWLR (PT 1078) 465 at 497, Tobi, JSC stated:
?An academic matter in a suit is one which is raised for the purpose of intellectual argument qua reason which cannot in any way affect the determination of the live issues in the matter. It is merely to satisfy intellectual prowess qua intellect. It is a matter which is theoretical and not related to practical situation.?
See also EZEANYA vs. OKEKE (1995) 4 NWLR (PT 388) 142 at 165 and GLOBAL TRANSPORT OCEANICO S.A. vs. FREE ENTERPRISES (NIG) (2001) LPELR (1324) 1 at 19 -20.
Conclusively, the cross appeal succeeds on the terms set out in this judgment while the main appeal which is academic is hereby struck out. There shall be no order as to costs.
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TIJJANI ABUBAKAR. J.C.A.: I agree.
JAMILU YAMMAMA TUKUR, J.C.A.: I agree.
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Appearances:
B.A.M. Fashanu, Esq. SAN with him, E.O. Ashade, Esq., C.O. Erhieyovwe, Esq., O.A. Safiu, Esq. & O.O. Ikuforiji, Esq.
for the Appellants/Cross Respondents
For Appellant(s)
A.M. Kotoye, Esq. with him, A.S. Abdul, Esq. for the 1st Respondent/Cross Appellant.
A. Adeyemo, Esq. for the 2nd RespondentFor Respondent(s)
Appearances
B.A.M. Fashanu, Esq. SAN with him, E.O. Ashade, Esq., C.O. Erhieyovwe, Esq., O.A. Safiu, Esq. & O.O. Ikuforiji, Esq.
for the Appellants/Cross RespondentsFor Appellant
AND
A.M. Kotoye, Esq. with him, A.S. Abdul, Esq. for the 1st Respondent/Cross Appellant.
A. Adeyemo, Esq. for the 2nd RespondentFor Respondent
