PASTOR (DR.) USANI UGURU USANI & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13844(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of November, 2019
CA/C/NAEA/GOV.414/2019
RATIO
RELYING ON A PREVIOUS CASE WHICH IS NOT IMPARI MATERIAL WITH A PRESENT CASE
Facts are the fountainhead of the law. The decision in a case is intimately related to the facts that induced the decision. Where the facts of a given matter are different from the decision in an earlier case, it will be pulling the ratio in the earlier case out of con and giving it a general application if it is sought to apply the decision to totally different facts. The authorities relied upon by the Appellants are no doubt good law but the facts that induced the said decisions are totally different from the facts of the instant matter. As stated by Oputa, JSC in ADEGOKE MOTORS LTD vs. ADESANYA (1989) 5 SC 92 at 100:
It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper con, for, without known facts, it is impossible to know the law on those facts. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
THE EFFECT OF A JUDGMENT WHICH HAS ALREADY BEEN SET ASIDE
The effect of a judgment which has been set aside is as if the judgment had not been given at all. The decision is wiped out. The decision allowing the appeal substitutes itself for the judgment set aside and relates back to the date when the action in the decision that was set aside was filed: UDE vs. AGU (1961) LPELR (25126) 1 at 6, ODIASE Vs. AGHO (1972) 1 ALL NLR 170 at 176, IGE vs. OLUNLOYO (1984) 1 SCNLR 158 at 178, ADEFULU vs. OKULAJA (1996) LPELR (90) 1 at 50-51 and FAGUNWA vs. ADIBI (2004) LPELR (1229) 1 at 13-14. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
1. PASTOR (DR.) USANI UGURU USANI
2. ALL PROGRESSIVES CONGRESS – Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. SENATOR (PROF) BENEDICT AYADE
3. PEOPLES DEMOCRATIC PARTY – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment): EXORDIUM The 1st Respondent herein, conducted an election for the Governorship of Cross River State on 9th March 2019. The 2nd Respondent, who was the candidate sponsored by the 3rd Respondent at the election, was returned as the duly elected candidate at the election. The Appellants challenged the said return contending that the 1st Appellant was excluded from contesting the said election, consequent upon which they, inter alia, sought for an order nullifying the Certificate of Return issued in favour of the 2nd and 3rd Respondents and for a new date to be fixed for the conduct of the election with the 1st Appellant as a contestant.
The election petition filed by the Appellants in PETITION NO. EPT/CAL/GOV/02/2019: PASTOR (DR) USANI UGURU USANI & ANOR. vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS. was heard by the Governorship Election Petition Tribunal, sitting in Calabar, on the testimonial and documentary evidence adduced by the parties. In its judgment which was delivered on 12th September, 2019, the Tribunal dismissed the Appellants Petition. Piqued by the dismissal of the Petition, the Appellants appealed against the said decision. The scarified judgment of the lower Court is at pages 990-1032 of Volume 2 of the Records, while the Notice of Appeal which was filed on 28th September 2019 is at pages 1033-1040 of Volume 2 of the Records. The Records of Appeal were compiled and transmitted and briefs of argument were filed and exchanged by the parties. The briefs on which the appeal was argued are:
1. Appellants Brief of Argument filed on 18th October 2019.
2.1st Respondent?s Brief of Argument filed on 25th October 2019.
3.2nd & 3rd Respondents Brief of Argument filed on 26th October 2019.
4. Appellants Reply Brief to the 1st Respondent?s Brief filed on 30th October 2019.
5. Appellants Reply Brief to the 2nd & 3rd Respondents Brief filed on 30th October 2019.
THE APPLICATION TO AMEND
The Appellants further filed an application on 18th October, 2019 for leave to amend the Notice of Appeal by raising an additional ground of appeal and for the Amended Notice of Appeal to be deemed as properly filed. The submissions in the Appellants Brief were predicated upon and based on the said Amended Notice of Appeal. The Respondents opposed the said application and filed their counter affidavits in opposition on 25th and 26th October 2019 respectively; while the Appellants filed further affidavits in reaction to the Respondents? counter affidavits on 30th October 2019. Arguing the said application at the hearing of the appeal, the Appellants relied on the processes they filed in urging the Court to grant the application. In the same vein, the Respondents equally relied on their processes in urging the Court to dismiss the application. They opined that by Paragraph 6 of the Election Tribunal and Court Practice Directions 2011, the twenty-one days within which to file the Notice of Appeal has expired and in consequence allowing the Appellants to amend the Notice of Appeal by incorporating the additional ground of appeal would be constructively extending time for the Appellants to appeal; which being an election matter, time is not to be extended.
The amendment sought by the Appellants is to incorporate as Ground XIV of the Grounds of Appeal, the omnibus ground of appeal, id est, that the judgment is against the weight of the evidence. The main ground on which the application is predicated and as deposed to in paragraph 4 (e) and (g) of the supporting affidavit is that after a careful study of the processes filed at the Tribunal, the Appellants find it expedient to raise the said additional ground of appeal and in consequence amend the Notice of Appeal to incorporate the same.
The Appellants application to amend the Notice of Appeal seeks the exercise of discretion by the Court. Like all judicial discretions, it is to be exercised judicially and judiciously. 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 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 YUSUFU 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 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 SA. 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 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 to amend the Notice of Appeal has to be considered against this background; regard being had to the fact that time is of the essence in election petition cases and that the right to extend time or amend processes is limited.
The main plank of the Respondents opposition is that granting the application would have the effect of constructively allowing the Appellants to introduce new grounds of appeal after the time allowed for filing of an appeal. The apex Court dealt with a similar contention in ISIAKA vs. AMOSUN (2016) 9 NWLR (PT 1518) 417. In resolving the issue, Aka?ahs, JSC stated as follows at pages 436-437:
the notice of appeal was filed within the 21 days limit prescribed in the Practice Directive? What is in contention is whether the additional grounds must be filed within the 21 days stipulated for the filing of the notice. I have read through the decisions in C.P.C. v. INEC (2011) 18 NWLR (Pt. 1279) 493; P.P.A. v. INEC (2012) 13 NWLR (Pt. 1317) 215 and Ngige v. INEC (2015) 1 NWLR (Pt. 1440) 281 and in none of those cases did this Court make a definite pronouncement that the additional grounds must be filed within the 21 days prescribed for filing the notice of appeal. I think the lower Court was wrong to hold that allowing the appellants to file the additional grounds of appeal after the statutory time limit for appealing against the judgment of the Election Tribunal amounts to granting an extension of time to file notice and grounds of appeal. It is within the discretion of the Court to grant leave to argue the additional grounds once there is a subsisting and valid appeal.?
It is important in this regard to set out the opinion of Okoro, JSC in his contribution to the leading judgment of Aka?ahs, JSC, the pericope of which has been set out above. This is what he stated at page 445:
?The other aspect is that both the notice of appeal and the grounds of appeal shall be filed within the 21 days allowed by the Practice Direction. Thus the amendment sought by the appellants at the Court below outside the 21 days prescribed was unavailable to the appellants. See CPC v. INEC (2011) 18 NWLR (Pt. 1279) 493 at 532; Ngige v. INEC (2015) 1 NWLR (Pt. 1440) 281 at 319; PPA v. INEC (2012) 13 NWLR (Pt. 1317) 215 at 239.?
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