Alhaji Mohammed Dikko Yusufu & Anor. V. Chief Olusegun Aremu Okikiola Obasanjo & Ors (2003)
LAWGLOBAL HUB Lead Judgment Report
TOBI, J.S.C.
The 1st appellant contested the 2003 presidential election on the platform of the Movement for Democracy and Justice (MDJ). He lost the election to the 1st respondent, Chief Olusegun Obasanjo, who contested the election on the platform of the Peoples Democratic ‘Party (PDP). The appellant did not like the election result. He contested the result by filing an election petition against the 1st respondent and other respondents. He challenged the conduct, result and return of the 1st respondent as the winner of the election.
On 21st May, 2003, the appellants filed a motion before the Presidential Election Tribunal which is for all intents and purposes the Court of Appeal. He sought for the following prayers:
“1. Leave to join CORPORATE NIGERIA (LIMITED BY GUARANTEE) as 57th respondent in the petition.
- Leave to amend the petition to reflect the joinder, and to amend some paragraphs of the petition, etc.
- An order deeming as properly filed a separately filed amended petition in terms of proposed amended petition, the necessary filing fees having paid therefore on the same 21st May, 2003.
- An order permitting to be sub-joined to the petition a schedule of list of documents intended to be relied upon at the hearing of the petition … (The exact wordings of the prayers in the motion are to be found at pages 2-4 of the records).”
For reasons which are not obvious from the record, the Presidential Election Petition Tribunal could not take the motion earlier than 28th May, 2003. After hearing arguments from counsel, the Tribunal granted some of the reliefs and refused others. Delivering the ruling of the Tribunal as a Court of Appeal on 5th June, 2003, the learned President of the Court of Appeal, Abdullahi, PCA, said at pages 74 and 75 of the record:
“At this stage, no application for amendment which is capable of giving life to otherwise anaemic petition can be entertained … It follows that outside this period life could not be breathe into otherwise anaemic petition. The court will in the circumstances be guided by this principle in its consideration of the reliefs sought.”
In his concurring ruling, Oguntade, JCA, said at page 81 of the record:
“Some of the amendments now proposed by the petitioners/applicants are those that ought to have been sought or within 30 days after the results of the election were announced. The applicants filed the application on 21/5/03 which was before the time limited for the purpose. But for some reasons we were not placed to consider the application until 2/6/03 which was after the time limited for the purpose had expired.”
Nsofor, JCA, in his concurring ruling, said at page 84 of the record:
“Most certainly to grant the amendments sought, the election petition as amended would have been filed outside or, in defiance of section 132 of the Act. Would this court competently allow this. I would, respectfully, think not. Why Only because and because only our duty, as expressed in Latin is … ”
And finally, Tabai, JCA, in his concurring ruling at page 88 of the record, said:
“The combined effect of section 132 and paragraph 14(2) of the Schedule of the Act is that a substantial amendment of an election petition cannot be made after 30 days of the declaration of the result. All such amendments in this application which are substantial in nature cannot therefore be granted.”
And so in a unanimous ruling, the Presidential Election Tribunal, otherwise known as the Court of Appeal, refused to grant what it referred to as “material and substantial amendments” but granted what the learned President of the Court of Appeal called “innocuous” amendments.
The appeal before us is in respect of the 5th June, 2003 ruling of the Tribunal. As usual briefs were filed and exchanged. The appellants formulated the following issue for determination:
“Whether the Court of Appeal misdirected itself on the applicable law and should have granted the prayer for joinder of the 57th respondent and/or any of the amendments Nos. (1), (2), (4), (5), (11), (13), (15) and (17) sought in the motion dated 21st May, 2003 and determined in their Lordships ruling of 5th June, 2003.”
The 1st respondent formulated the following issue for determination:
“Whether the court below has the jurisdiction to make any order amending the petition in the manner sought by the appellant when the time within which the amendment sought could be granted had lapsed and the right to amend the petition had become extinct.”
The 2nd respondent formulated the following issue for determination:
“Whether the lower court was right in refusing to grant some of the amendments sought by the appellants having regard to the provisions of section 132 and paragraph 14(1) and (2) of the 1st Schedule to the Electoral Act, 2002.”
The 40th to 55th respondents formulated the following issue for determination:
“Whether the court below has the jurisdiction to make any order amending the petition of the appellant.”
It appears to me that all the issues formulated by the parties are basically the same as they zero on the amendments sought by the appellants and the subsequent decision of the tribunal. To me, the issues are the same in the way 12 and a dozen are or 20 and a score.
Learned counsel for the appellants, Mr. A. J. Owonikoko submitted that paragraph 14 of the First Schedule to the Electoral Act, 2002 must be interpreted subject to the provisions of the Constitution which are (a) superior to and overrides any contrary provisions of the Electoral Act; (b) guarantees separation of powers between the executive, the legislature and the judiciary; (c) guarantees independence of the judiciary from legislative interference; (d) guarantees appellants a right to fair hearing on the merits in the determination of their civil rights and obligations, including any question or determination by or against any government or authority. He cited Unongo v. Aku (1983) 2 SCNLR 332, (1983) NSCC Vol. 14, 563 at 567 and submitted that the case applies with full force in the determination of this appeal.
Learned counsel submitted that it was a misdirection on the part of their Lordships in the lower court for them to have predicated their refusal of the amendment on the punitive line of reasoning that held sway in military era. Citing Omeh v. Okoro (1999) 8 NWLR (Pt. 615) 356 at 369, counsel submitted that the case was good for the time it was decided, but it was wrong for the lower court to have followed it in preference to Unongo v. Aku (supra). He argued that since the ruling has occasioned a miscarriage of justice, this court should reverse it. He cited Irolo v. Uka (2002) 14 NWLR (Pt. 786) 195 at 238.
Counsel contended that if this court agrees with his submission on the ruling, then it can take into consideration the six guidelines he has enumerated at paragraph 4.15 of the brief.
It was the submission of learned counsel that the lower court failed to direct itself to the Federal High Court Rules, an act which caused a miscarriage of justice. To learned counsel, if the court had invoked the Federal High Court Rules, it would have granted the amendments sought. He cited Maersk Line v. Addide Investment Ltd. (2002) 11 NWLR (Pt. 778) 317 at 359.
Counsel took some of the amendments sought and submitted that their Lordships ought to have granted the motion. He submitted that once real justice of the case demands it, a court has power to grant amendment of pleadings at any stage of the proceeding, in order that real matters in controversy between parties, shorn of manifest errors, mistakes and slips, are adequately brought to focus and determined. He cited Alsthom S. A. v. Saraki (2000) 14 NWLR (Pt. 687) 415 at 424 and Anigala v. Abeh (1999) 7 NWLR (Pt. 611) 454 at 469. He urged the court to allow the appeal.
Learned counsel for the 1st respondent, Mr. Seeni Okunloye, SAN, submitted that election petitions are neither civil nor criminal proceedings but proceedings sui generis. He cited Orubu v. NEC (1988) 5 NWLR (Pt. 94) 323 at 347. The applicable rule to the petition is the First Schedule to the Electoral Act, 2002 and not necessarily the Federal High Court Rules as contended by the counsel for the appellants, learned Senior Advocate argued. He cited Governor of Kaduna State v. Kagoma (1982) 3 NCLR 206.
Relying on paragraph 14(2) of the First Schedule to the Act, learned Senior Advocate submitted that the court lacks the jurisdiction to grant an amendment of a substantial nature after the period for presenting an election petition has lapsed. He cited Ogundiran v. Olalekan (1998) 8 NWLR (Pt. 561) 313; Umar v. Onikata (1999) 3 NWLR (Pt. 596) 558; Omeh v. Okoro (1999) 8 NWLR (Pt. 615) 356 and Oduola v. Ogunjobi (1986) 2 NWLR (Pt. 23) 508. To learned Senior Advocate, the appellants contention that the jurisdiction of the court is preserved or that the provisions of paragraph 14 must be read subject to the Constitution on account of the fact that the appellant filed his application before the expiration of the time for presenting petition, is clearly erroneous and smacks of grave misconception of procedural rules.
The filing of an application does not confer jurisdiction on the court as jurisdiction is covered by statute and where a statute prohibits the court from exercising a particular jurisdiction after a particular time, the jurisdiction must not be exercised at that time, learned Senior Advocate contended. It is not enough for the applicant to file his application before the expiration of time, he has the extra duty to ensure that the court exercises its jurisdiction over such an application within time, otherwise the court would lose the jurisdiction to grant the application, counsel reasoned. He cited Buwaje v. Adediwura (1976) SC 143; CCB (Nig.) Plc. v. A.-G., Anambra State (1992) 8 NWLR (Pt. 261) 528 at 560 and 561; Okolo v. Anyakwo (1999) 3 NWLR (Pt. 594) 289 and Eguamwense v.Amaghizemwen (1993) 9 NWLR (Pt. 315) 1.
Learned Senior Advocate made reference to the arguments at paragraphs 4.14, 4.23 of the appellants brief and submitted that they are incompetent as they attempt to touch the merits of the application before the lower court. Counsel also contended that the arguments in the paragraphs are not covered in the grounds of appeal and must therefore be ignored. He cited Exquisite lnd. Ltd. v. Owners of M. V. Bacoliners 1-3 (1998) 5 NWLR (Pt. 549) 335 at 345. He urged the court to dismiss the appeal.
Learned counsel for the 2nd respondent, Mr. Roland Otaru, submitted that from the tenor of the provisions of section 132 of the Electoral Act, 2002 read conjunctively with paragraph 14(1) and (2) of the First Schedule to the Act, the lower court was right in refusing some of the amendments prayed for by the appellants as same were substantial amendments which could not be brought after the expiration of the time limited by the Act as same would have been in contravention of the provisions of the Act. He cited Anigala v. Abeh (1999) 7 NWLR (Pt. 611) 454 at 470. He did not see the applicability of Unongo v. Aku (supra) in this appeal.
Arguing that paragraph 14(1) and (2) of the First Schedule to the Act is not an interference by the Legislature on the functions of the courts, counsel made reference to what he called similar provision in section 27(2)(a) of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria and cited the following cases on the interpretation of the subsection: Odogiyan v. Hispanic Construction (Nig.) Ltd. (1986) 5 NWLR (Pt. 39) 127; Amudipe v. Arijodi (1978) 9 -10 SC 27; Bowaje v. Adediwura (1976) 6 SC 143 and Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 518) 635.
On the issue of joinder of CORPORATE NIGERA, learned counsel submitted that CORPORATE NIGERIA cannot be joined in the case, having regard to the provisions of section 133(2) of the Act, as it did not take part in the conduct of the presidential election; and that granting the appellants request will be in contravention of the provisions of paragraphs 4, 14(1) and (2) of the First Schedule to the Act. He urged the court to dismiss the appeal.
Learned counsel for the 40th to 55th respondents, Mr. A. C. Eghobamien, SAN, dealt in some considerable detail on the principles of amendment. He enumerated specific principles in paragraph 4 of the brief and made reference to the following cases: Baker Ltd. v. Medway Building and Supplies Ltd. (1958) 3 All ER 540 at 546; Cropper v. Smith (1884) 26 Ch. D. 700 at 710; Shoe Machinery Co. v. Cutlan (1896) 1 Ch. D. 108 at 112; Tildesley v. Harper (1878) 10 Ch. D. 393 at 396-397; Weldon v. Neal (1889) 19 QBD 394 at 396; Kurtz v. Spence (1887) 36 Ch. D. 770; Ketteman v. Hansel Properties Ltd. (1887) AC 189 at 220; Adeleke v. Awoliyi (1962) 1 SCNLR 401, (1962) 1 All NLR 260 at 262; Foko v. Foko (1968) NMLR 441; Adetutu v. Aderohunmu (1984) 6 SC 92, (1984) 1SCNLR 515, (1984) 6 SC 92; Laguro v. Toku (1992) 2 NWLR (Pt.223) 278; Pontin v. Wood (1962) 1 All ER 294 at 298 and Aguda’s Practice and Procedure (2nd ed.) page 345 and The English Annual Practice, 1999, Order 20 rule 8(7).
Dealing with section 132 of the Act and paragraph 14 of the First Schedule to the Act, the English Annual Practice White Book (1999) page 380 (Order 20 rule 8(75) where the authors examined section 35(2) of the Limitation Act, 1980 of England, learned Senior Advocate submitted that a fine and tedious line must be drawn between the principle that an amendment can be made at any stage of the proceedings and the principle that an amendment cannot be made to introduce a new action or a new party. To learned Senior Advocate, while the former deals with the court’s powers to amend a claim that has been properly constituted, the latter deals with the court’s powers not to allow new claims. They appear inconsistent but they are not, learned Senior Advocate contended. He submitted that a party cannot be allowed to amend a new claim or introduce a new party otherwise it renders the whole essence of the limitation law otiose. He urged the court to dismiss the appeal. In his reply brief to 1st respondent’s brief, Mr. Owonikoko submitted that the decision in Unongo’s case remains the present position on the constitutional prohibition against any time-keeper legislation that seeks to interfere with the independence of the judicial arm by limiting the time within which it must hear and determine a cause or matter legitimately before it. There is no reason why such a prohibition must not apply with equal potency to both interlocutory and substantive hearing.
Learned counsel submitted that the principles of limitation law canvassed in paragraph 5.11 of the 1st respondent’s brief are not applicable to the issue for determination in this appeal. He cited A-G., Abia v. A-G., Federation (2002) 6 NWLR (Pt. 763) 264 and Chief Babalola, Election Law and Practice, pages 312 and 313.
On the submission that the appellants were tardy in getting the lower court to fix an early date for the motion to amend the petition, learned counsel submitted that (1) the point was never canvassed in the lower court and the decision herein appealed against did not so decide. (2) The respondent requires leave to argue the point as a fresh point of law in the Supreme Court. No such leave was sought by the respondent. (3) The fresh point involves a consideration of mixed law and facts, whereas the present appeal is on ground of law alone. He referred to Order 6 rule (1)(b) of the Supreme Court Rules and cited the case of A-G.Oyo State v. Fairlakes (1988) 5 NWLR (Pt. 92) 1 at 29. Still on the issue of tardiness on the part of counsel in filing the application of amendment, learned counsel pointed out that the Supreme Court held in CCB (Nig.) Plc. v. A.-G., Anambra State cited by counsel for the 2nd respondent, that (tardiness by counsel in procuring date for an urgent action, which is not concluded herein) must never be used to punish a litigant.
It was the submission of learned counsel that it is grossly unfair to even blame anybody about the supposed delay which respondents are dramatizing. The delay is imaginary and misconceived in the first place in the light of the position taken in the brief of the appellants, learned counsel contended. He reiterated the fact that the application to amend the petition was filed within time; the amended petition was also filed within time, and a deeming order was duly sought by appellants counsel to obviate any prejudice to his client in case the business of court did not permit expeditious hearing. Counsel pointed out that as at the time the application was to be heard there was a preliminary objection to the petition by counsel to 40th – 55th respondents and the lower court elected to take the objection first.
On the issue of arguing the merits of the appeal, learned counsel contended that the appeal is all about failure of the Court of Appeal to determine the merit of the application for amendment of election petition. To counsel it has nothing to do with election petition being sui generis. Relying on section 22 of the Supreme Court Act, counsel submitted that the section affords a straight answer to the submission of the 1st respondent that the merit of the amendment should not be argued in the appeal. It is a deserving case in which this court will be doing complete justice by allowing the amendments, learned counsel urged.
Counsel contended that all the necessary conditions for this court to deal with the merits of the application are present; conditions which he enumerated at paragraph 1.19 of the reply brief. He cited Adeyemi v. Y.R.S. Ike-Oluwa and Sons Ltd. (1993) 8 NWLR (Pt. 309) 27.
In his reply brief to the 2nd respondent’s brief, Mr. Owonikoko submitted that CORPORATE NIGERIA (LIMITED BY GUARANTEE) is sought to be joined because of its involvement in illegal campaign/electoral funding of the 1st and 2nd respondents. He cited section 221 of the Constitution and the case of Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446, (2003) 6 SC (Pt. 11) 156.
In his reply brief to the appellant’s brief, learned Senior Advocate, Mr. Okunloye, argued that the appellant’s reply brief went beyond the purview of a reply brief as it raised fresh issue of facts and fresh points of argument outside the issue in the 1st respondent’s brief. Citing Essien v. The Commissioner of Police (1996) 5 NWLR Pt. 449) 489, learned Senior Advocate submitted that that is not generally allowed in a reply brief. Without specifically pointing out the fresh points raised by Mr. Owonikoko, learned Senior Advocate took time, in virtually the whole reply brief, in re-opening the issue raised in the preliminary objection, including the decision of this court in Orubu v. NEC (1988) 5 NWLR Pt. 94) 323.
It is my understanding that the case of Orubu v. NEC (supra) was raised in respect of the preliminary objection. Since the preliminary objection has been withdrawn and struck out, Orubu goes with it and therefore no more relevant for our consideration.
I think I should start with the applicable rules in this appeal. I say this because there is an apparent confusion arising from the submission of counsel. Mr. Owonikoko submitted that both the Electoral Act and the Federal High Court (Civil Procedure) Rules. 2000 are applicable in determining whether or not to grant an amendment to the petition. He specifically made the point in the penultimate paragraph (paragraph 5.4) of his brief that the failure of the court below to apply the rules of the Federal High Court to determine the application for joinder and amendment on the merit has occasioned a miscarriage of justice.
Mr. Okunloye, SAN, did not agree with the above submission of Mr. Owonikoko. He submitted that the applicable rule to the petition in this appeal is the First Schedule to the Electoral Act, 2002, and that it is erroneous for the appellants to contend that the provisions of the Federal High Court Rules apply to the proceedings in the petition without any restriction. To him, the express provision of paragraph 50 of the First Schedule to the Electoral Act, 2002 makes the application of the Federal High Court Rules subject to the provisions of the Electoral Act and rules contained in the schedule thereto. It does not appear that Mr. Otaru or Mr. Eghobamien specifically dealt with the issue.
What does the Electoral Act, 2002 say on the issue Paragraph 50 of the First Schedule to the Act is in the following terms:
“Subject to the express provisions of this Act, the practice and procedure of the tribunal or the court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modification as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.”
As it is, the opening and operative words of paragraph 50 are “subject to the express provisions of this Act.” The words “subject to” have been interpreted by this court a number of times. In Alhaji Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 592, this court held that the expression “subject to” is often used in statutes to introduce a condition, a proviso, a restriction, a limitation. The expression subordinates the provisions of the subject section to the section referred to which is intended not to be affected by the provisions of the latter. See also Oke v. Oke (1974) 1 All NLR (Pt. 1) 443 at 450; LSDPC v. Foreign Finance Corporation (1987) 1 NWLR Pt. 50) 413 at 461 ; Aqua Ltd. v. Ondo Sports Council (1988) 4 NWLR (Pt. 91) 622; Olusemo v. Commissioner of Police (1998) 11 NWLR (Pt. 575) 547.
It is clear from the provision of paragraph 50 of the First Schedule to the Act that the Civil Procedure Rules of the Federal High Court can only be applied to the extent that the Electoral Act allows or permit. In other words, the Civil Procedure Rules of the Federal High Court do not have life of their own, outside the Electoral Act, 2002. By paragraph 50, they are parasitic on the Electoral Act, and in the area of adjectival law, on the First Schedule to the Act.
That is not all. Paragraph 50 has placed restriction on the application of the Civil Procedure Rules of the Federal High Court. The Rules shall be applied with such modifications as may be necessary to render them applicable in the light of the provisions of the Act. This means that the sky is not the limit in respect of the application of the Civil Procedure Rules of the Federal High Court. From the provision of paragraph 50, it is clear to me that if any of the provisions of the Civil Procedure Rules of the Federal High Court are inconsistent or in conflict with the Electoral Act, 2002, the inconsistency or conflict will be resolved in favour of the provisions of the 2002 Act.
In the light of the above construction, I am in total agreement with Mr. Okunloye, SAN, that the provisions of the Federal High Court Rules can apply to election petitions with some restriction. That is the positive conclusion from the negative submission of Mr. Okunloye. Having said that, it does not appear to me that Mr. Owonikoko put the position as extreme and as blunt as Mr. Okunloye credited to him. In my understanding of Mr. Owonikoko, both the 2002 Act and the Federal High Court Rules apply. It was at the penultimate paragraph of his brief that he pointed out that it was because the lower court failed to apply the rules of the Federal High Court to determine the application for joinder and amendment on the merit that caused a miscarriage of justice. I sound repetitive but repetition also has an advantage of driving a point to clarity.
Let me first take the decision of Unongo v. Aku (supra) copiously cited by learned counsel for the appellants and attacked by learned Senior Advocate for the 1st respondent that the decision is inapplicable. The issue in Unongo v. Aku (supra) was that the Electoral Act of 1982 provided that an election petition should be determined within a period of thirty days. The Supreme Court held that sections 129(3) and 140(2) of the Electoral Act deprive the petitioner of his fundamental right to fair hearing guaranteed by section 33(1) of the Constitution by limiting the period which an election petition must be disposed of and on this account the two sections are unconstitutional and invalid. It was in that circumstance that Uwais, JSC (as he then was) held: that any electoral enactment which specifies a time constraint on the court to determine an election petition, as distinguished from the time for filing same (which must include time for determining interlocutory applications filed within the time allowed in the course of determining the petition) is to say the least very absurd and indeed defeats the intention of the Constitution and the Electoral Act itself, which is to enable an aggrieved candidate to seek redress in court.
Mr. Owonikoko submitted that Unongo applies with all force in the determination of this appeal. Mr. Okunloye, learned Senior Advocate, submitted that Unongo forcefully relied upon by the appellants is totally inapplicable to this case. To the learned Senior Advocate, it is indeed very curious that the appellants failed to see the distinction in that case from the present case.
I think the learned Senior Advocate is correct. Unongo is not applicable as it dealt with a clearly different issue. Unongo had to do with fixing a period of thirty days within which an election petition must, as a matter of law, be finally determined. That is the first leg of what Uwais, JSC (as he then was) said, and relating it to the last portion of the dictum makes the sentence read thus:
“Any electoral enactment which specified a time constraint on the court to determine an election petition … is to say the least very absurd and indeed defeats the intention of the Constitution and the Electoral Act itself, which is to enable an aggrieved candidate to an election to seek redress in court.”
The above is clearly not the position here. The position in this appeal was touched by Uwais, JSC (as he then was) in passing because he knew that it was not the issue before the court. And the operative words for the purpose of this appeal, in the language of Uwais, JSC (as he then was) are “as distinguished from the time for filing same.” The word “same” in the is a proverb and it is used in the place of the words “election petition”. That is the position here. Uwais, JSC (as he then was) did not say that it is unconstitutional to specify a period for filing an election petition. As a matter of law, the dictum is clearly to the effect that it is constitutional to do so. What the learned Justice of the Supreme court described as absurd, and I entirely agree with him, is the fixing of a period for the determination of an election petition. That is certainly against all known principles of fair hearing as the court, by the provision, is hemmed to a fixed date within which it must, as a matter of law, deliver judgment.
It would appear to me that the decision in Unongo and a few others following, might have resulted in the most encouraging and assuring absence of the regimental fixation of time within which to determine an election petition in the present Electoral Act. That is a development for which the legislature receives my kudos. That is how it should be in a democracy. And since that obnoxious provision which Uwais, JSC (as he then was) referred to as absurd is not in the Electoral Act, 2002, Mr. Owonikoko should not take us back, as it is good to move forward, and forward we must move. I think I should drop Unongo for good. We now know why the lower court did not take Unongo, a position which Mr. Owonikoko did not like and he expressed his displeasure when he said that the lower court “conveniently but rather strangely ignored it in their ruling”. Although there was nothing wrong for that court to examine Unongo as I have done here, I cannot fault the Justices for not doing so. Unongo is clearly not in issue in this appeal and I so hold.
The cynosure of this appeal is paragraph 14 of the First Schedule to the Electoral Act, 2002. It is the first line. It is also the bottom line. The appeal clearly zeros on the construction this court will place on it. In view of the centrality and importance of the paragraph, I reproduce the provisions for ease of reference:
“14(1) Subject to sub-paragraph (2) of this paragraph, the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words ‘any proceedings’ in those provisions there were substituted the words ‘the election petition or reply’.
(2) After the expiry of the time limited by –
(a) section 154 of this Act for presenting the election petition, no amendment shall be made:
(i) introducing any of the requirements of sub-paragraph (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 sub-paragraph (3) of this paragraph, effecting a substantial alteration of or addition to, the statement of facts relied on to support the ground for, or sustain the prayer in the election petition; and
(b) paragraph 12 of the Schedule for filing the reply, no amendment shall be made
(i) alleging that the claim of the seat or office by the petitioner is incorrect or false; or
(ii) except anything which may be done under the provisions of sub-paragraph (3) of this paragraph. effecting any substantial alteration in or addition to the admissions or the denials contained in the original reply filed. or to the facts set out in the reply.”
By paragraph 14(1), an election tribunal is enjoined to use the Civil Procedure Rules of the Federal High Court relating to amendment of pleadings. The Civil Procedure Rules will apply in relation to election petition or a reply to the election petition as if for the words “any proceedings” in those provisions there were substituted the words “the election petition or reply”. As it is, paragraph 14(1) does not specifically say that the Civil Procedure Rules are those of the Federal High Court. That is clearly the intention of the draftsman by a community reading of the paragraph with paragraph 50 thereof. Accordingly, an election tribunal must use the Civil Procedure Rules of the Federal High Court within the provision of paragraph 50 of the First Schedule to the Act.
The most important provision for the purpose of this appeal is paragraph 14(2). The sub-paragraph makes a cross-reference to a non-existent section 154. It is non-existent because the Act stops at section 153. The lower court rightly held that section 154 referred to in paragraph 14(2) should read section 132 as it is that section that provides for time within which an election petition shall be presented. I entirely agree with the lower court.
Let me pause here to say that it is sad that the Act made reference to a non-existent section. While this may be taken as a slip of the mind and not of the head, it is a very serious one for which the draftsman should accept full responsibility. Numbers or names of sections play a major role in legal drafting as they are the hubs of the draftsman. For a legal draftsman to be that careless to mention a non-existent section is to say the least unfortunate. This has arisen as a result of careless proof reading and that is bad, very bad indeed. I say no more on this, but I hope that the draftsman will be more crafty, careful and elegant in the drafting of bills because the provisions which finally ripen into an Act are the basis for the courts interpretation. In this situation, it is good that the courts can place their hands on the real section. The courts should have found themselves in a helpless or hopeless situation if there was no section 132 to bail them out in the interpretation of paragraph 14(2). I do hope that the draftsman will initiate an amendment immediately, and I so urge.
Let me continue with the interpretation of paragraph 14(2) in its amended content. As it is, the sub-paragraph makes a cross-reference to section 132. What does section 132 say The section provides as follows:
“An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”
A joint interpretation of paragraph 14(2) of the First Schedule to the Electoral Act, 2002 and section 132 thereof, places restrictions on the part of a petitioner in the amendment of his petition. And the restrictions are itemised or enumerated in paragraph 14(2)(a), (i), (ii) and (iii). Since the ipsissima verba of the provisions have been stated above, I need not repeat myself. The meat of it all is that substantial amendments will not be allowed, after the expiration of the period of thirty days, following the presentation of the petition. Paragraph 14(2)(b) deals with restriction for amendment of a reply and this has to do with the respondent. Since that is not the issue, I shall not go into the sub-paragraph.
I return to paragraph 14(2)(a). What is the practical effect of the sub-paragraph as it relates to this appeal This will take me on a short exercise in arithmetical calculation. Let me first reproduce the relevant paragraphs of the affidavit sworn by the 1st appellant, Alhaji Yusuf:
“2. That I was a candidate in the presidential election held on 19th June, 2003 by the Independent National Electoral Commission at which 1st respondent was returned as the winner in a result declared on 22nd April, 2003.
- That being dissatisfied with the conduct of the election 1st and 2nd petitioner/appellant filed a petition in the court below on the 2nd day of May, 2003 in which we are seeking amongst other reliefs that the 1st respondent did not win majority of lawful votes at the election and that the entire election be voided on grounds of fundamental unconstitutionalities, illegalities, corrupt practices and sundry irregularities.
- That on 21st day of May, 2003 an application was filed in the registry of the court below seeking to amend the petition in the manner set out in the motion and as underlined in the then proposed amended petition.
- Arguments on the motion was taken by the full court below on 28th day of May, 2003 and a reserved ruling thereon was delivered on 5th June, 2003.”
As it is, paragraph 2 averred that the presidential election was held on 19th June, 2003. I take this as a typographical error and I change it to 19th April, 2003. I think I am entitled to take judicial notice of the fact that the presidential election took place on 19th April, 2003 and not 19th June, 2003. That is one way to make the averment in paragraph 2 reasonable, particularly the last leg thereof. There cannot be an election where the election date is 19th June and the result is 22nd April. This is what paragraph 2 has erroneously averred. Since an election has to be conducted before a result, paragraph 2 does not make any sense. Fortunately, that is not an issue in controversy and I will not pursue it any further.
The result of the election was declared on 22nd April, 2003. The election petition was filed on 2nd May, 2003 and the motion for amendment of petition was filed on 21st May, 2003. (See pages 1 to 5 of the record). Reducing that to arithmetical detail, since the result of the election was declared on 22nd April, and the motion for amendment was filed on 21st May, 2003, the motion for amendment was presented within thirty days from the date of declaration of the election. This interpretation is in conformity with the provision of Order XII rule 1 of the Federal High Court (Civil Procedure) Rules which provides in part as follows:
“1. Where by any enactment or any order or rule of court, any special order, or the course of the court, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding, and such time is not limited by hours, the following rules shall apply –
(a) the limited time does not include the day of the date of or the happening of the event, but commences at the beginning of the day next following that day;
(b) the act or proceeding must be done or taken at latest on the last day of the limited time; …”
Since section 132 provides for a maximum period of thirty days, the motion for amendment, in my humble view, was filed within time.
Section 132 uses the word “presented”. In my humble view, the word in the con means “filed”. Paragraph 2(a) uses the same word, but in the continuous tense of “presenting”. In other words, section 132 provides that an election petition under the Act shall be filed within thirty days from the date the result of the election is declared. Similar interpretation arises in respect of the word, “presenting” in paragraph 14(2)(a) of the First Schedule to the Act.
I can still go further in respect of paragraph 14(2)(a). The sub-paragraph provides inter alia in the negative that “no amendment shall be made” after the expiry of the time limited by section 132 of the Act. It looks clear to me that the legal duty of the petitioner is to make the amendment within a period of thirty days from the date the result of the election is declared. In my view, the amendment is made the moment the application for amendment is filed in court. By the use of the word “made”, it is also my view that the draftsman did not anticipate the adjudicatory role of the court in determining the application with the option of granting or refusing it. There is a clear dichotomy or cleavage between a party coming to a court by a relevant court process and the determination of that process by the court. While the former function is that of the litigant, the latter function is that of the court.
I think this is where the lower court, with the greatest respect, got it wrong. The court loaded into paragraph 14(2)(a) a burden the draftsman did not apportion to the appellants and a burden it cannot carry. The moment a party has filed an application in court, it is not within his power to dictate a date for the hearing of the application. As a matter of practice and rules of court, the responsibility of the party stops the moment he files the application, and the responsibility of the court begins from there in respect of fixing a date and subsequent hearing. Although an applicant may take further steps to ask for a specific date for the hearing of the application, he must succumb to the date the court gives. He could be lucky if the court accepts his date.
In CCB (Nig.) Plc. v. A.-G., Anambra State (supra) Olatawura, JSC, accurately stated the procedure in these words:
“The registry is to give a hearing date. The hearing date given that will prejudice the right of the litigant must be avoided. It is for this reason that counsel is advised to pray for a date that will not compromise the right of his client.”
Accordingly, it will be a grave injustice to punish a party in litigation for a delay in the hearing of an application, not caused or traceable to him, a delay which, according to the lower court offended paragraph 14(2) of the First Schedule to the Act. Happily paragraph 14(2) does not anticipate such sanction against the appellants. Putting the position bluntly, paragraph 14(2) does not apply against the appellants in this appeal because the appellants complied with the period stipulated in section 132 in presenting the application for amendment. It is because of the wrong application of paragraph 14(2) that the lower court found itself invoking wrongly paragraph 14(2)(a), particularly (i) and (ii) thereof.
Learned Senior Advocate for the 1st respondent, Mr. Okunloye made the point that the appellants ought to have taken further action by way of reminding the court of the urgency of the application. That is to say, that the application was liable to time. He cited CCB (Nig.) Plc. v. A.-G., Anambra State (supra) and quoted what Olatuwara, JSC said in extenso as follows:
“It is my view that in application of this nature, where time is of essence, it is not enough for counsel to file the application, but must ensure that the application is heard within that statutory period. The simple way is to draw the attention of the Registrar to it and urge him to show the application to the presiding Justice. Where counsel feels that the Registrar may not act timeously, it is still within the bounds of propriety for counsel to seek with the presiding Justice …”
” … under section 25(2) of the Court of Appeal Act, 1976, the time within which to file notice of application for leave to appeal (i.e. in the case of interlocutory decision) is fourteen days. Both the application and leave sought must he filed and heard within that period.”
I must point out will some worry that learned Senior Advocate jumped a very major part of the dictum of Olatawura, JSC, and that part deals with the legal effect of a petitioner not taking the steps the learned Justice of the Supreme court enumerated above. He correctly said at page 561:
“However it will be contrary to all principles to allow litigants to suffer for the mistake of the court registry.”
I expected the learned Senior Advocate to also give us the benefit of this court’s reasoning as stated above but he thought differently. It is sad that he thought differently. I will drop that aspect.
The above dictum reminds me of what Oguntade, JCA. said at page 81 of the record on what might have caused the inability of the court taking the application timeously. I quote him once again at the expense of prolixity:
“The applicants filed the application on 21/5/03 which was before the time limited for the purpose. But for some reasons we were not placed to consider the application until 2/6/03 which was after the time limited for the purpose had expired.”
As I indicated earlier, it is not clear on the record what caused the delayed hearing of the application and it appears nobody is prepared to talk about it. I will not talk about it too. But the point made by Olatawura, JSC, is pungent and it is that litigants, in our con, the appellants must not be allowed “to suffer for the mistake of the court registry,” if it was a mistake of the court registry in the instant case.
The Court of Appeal Enugu Division considered a generally similar issue in Chief Emesim v. Hon. Nwachukwu (1999) 6 NWLR (Pt. 605) 154, as it relates to the inability or failure of the court to hear an election petition within the statutory period. I will state the facts of the case in some considerable detail.
The appellant and the 1st respondent contested the December 5, 1998 Local Government Election. The 1st respondent was declared winner. Dissatisfied, the appellant filed a petition which he lost. He appealed to the Court of Appeal. It was not in dispute that the appeal was filed on January 25, 1999 which was within the time prescribed by the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. The decree further provided that appeals arising from decisions of Election Tribunals shall be determined within thirty days. The appellant filed his brief on February 2, 1999 and the case was fixed for February 22, 1999 for hearing. The appellant filed a motion for leave to file additional grounds of appeal, a motion which was also fixed for February 22, 1999.
However, it became impossible for the Court of Appeal to hear both the motion and the appeal on the adjourned date because the Justices had to leave for Abuja on a very important official assignment. The appeal was therefore adjourned at the instance of the court. On February 25, 1999 when the court resumed sitting, the issue was raised as to the competence of the court to hear the appeal. Counsel for the appellant urged the court to hear the appeal despite the effluxion of time as the appellant had done all that was required of him to ensure that the appeal was heard and determined within thirty days. The respondents urged the court to strike out the appeal, relying on paragraph 2(2) of Schedule 5 to the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998.
The Court of Appeal, in a majority judgment (Tobi and Galadima, JJ.C.A.) Ubaezonu, JCA (dissenting) held that the provisions of paragraph 2(2) of Schedule 5 to the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, which stipulates that an election petition shall be heard within thirty days from the date on which the petition is filed is designed to punish a party who has contributed to the failure on the part of the Court of Appeal to hear the appeal within the stipulated period of thirty days.
Delivering the leading judgment of the court, I said at page 168:
“Both Senator Anah, SAN and Mr. Amaechina submitted very strongly that the appeal should be struck out. I ask: what is the wrong of the appellant to deserve such a sanction or punishment Should or must the appellant suffer because this court was unable to hear the appeal which was ready for hearing way back early this month As I indicated earlier, the appeal was earlier fixed for 22nd February, 1999 but could not be heard because the Justices of the Division were engaged in a very important official assignment. Is it the fault of the appellant that the matter was not heard that day If so, where is that fault If the appellant was not at fault, then why should the big axe of striking out his appeal fall upon him Can that be justice Certainly if the appeal was taken on the 22nd of February, 1999, this whole furore should have not found itself in the judicial process. Should the appellant suffer for what he has not contributed in the slightest way, I ask once again. My sense of justice condemns such a position.”
The case of Chief Emesim v. Hon. Nwachukwu (supra) is of persuasive authority and I understandably persuade myself to endorse the views expressed as the correct position of the law. I therefore adopt the decision.
And that takes me to the specific issue of joining the 57th respondent, CORPORATE NIGERIA (LIMITED BY GUARANTEE). The first prayer of the motion filed on 21st May, 2003 is in respect of CORPORATE NIGERIA. Let me reproduce it once more:
“AN ORDER granting leave to the petitioners/applicant to join CORPORATE NIGERIA (LIMITED BY GUARANTEE) of No. 19 Ajasa Street, Onikan, Lagos as the 57th respondent in this petition.”
The second prayer specifically asked to amend nineteen areas or aspects of the petition, some of them affect CORPORATE NIGERIA. The second amendment sought is to add to paragraph 4 of the petition that “56th and 57th respondents were campaign finance agents/financiers of the 1st respondent at the said election. In rejecting the prayer for joinder of CORPORATE NIGERIA, Abdullahi, PCA, said at page 78 of the record:
“Prayer 1 is seeking to join Corporate Nigeria (Limited by Guarantee) to the petition. In effect the petitioner is asking for, without so applying for it, an extension of time to petition against that company outside the time petition could competently be brought. Similarly, material or substantial facts would have to be urged against it out of time and contrary to express provisions of paragraph 14(2)(a) of First Schedule of the Electoral Act No. 2002. This prayer does not avail the petitioner and it is refused. See Ige v. Olunloyo (1984) 1 SC 258.”
The Electoral Act, 2002 has clearly provided for who should be a petitioner and who should be a respondent. In view of the fact that CORPORATE NIGERIA is sought to be joined as a respondent, I will fall back on section 133(2) of the Act. The sub-section provides as follows:
“The person whose election is complained of is, in this Act, referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.”
In the recent case of Buhari and Others v. Yusuf and Others (2003) 14 NWLR (Pt.841) 446, (2003) 6 SC (Pt. 11) 156, this court took time to interpret the provision of section 133(2) of the Electoral Act. The court held that by the provision of section 133(2), a candidate who lost an election cannot be a respondent under the subsection. In view of the importance of section 133(2) in determining the joinder of CORPORATE NIGERIA, I will take time to quote what this court said on the ambit of the subsection, in extenso.
Delivering the lead judgment of the court, Uwaifo, JSC, said at page 168:
“Section 131(2) of the Act requires that the person elected or returned be joined as a party. Section 133 which I earlier reproduced provides in subsection (1) for persons who may present a petition. It is either one or both of (a) a candidate at an election; (b) a political party which participated at the election. No other person may do so. In the same vein, those who shall be joined to defend the petition in accordance with subsection (2) are the persons whose election (or return) is complained of, referred to as the respondent and any of the INEC officials mentioned in the subsection or any other person who took part in the conduct of the election, and in either case the petition complains of their conduct of the election. All such persons are regarded as the statutory respondents, and who only, in my view, qualify as the necessary parties.”
Belgore, JSC, in his contribution said at page 177:
“While it is clear the declared winner of the election maybe a respondent or any or all the electoral officials, ‘any other person’ in (iii) above may create problem as it has done in this case. But viewed dispassionately in the election process in this country that ‘other person’ may be the police or other security agents deployed to maintain law and order during the election. The 3rd and 4th respondents, now appellants, were not more than candidates at the election, as such candidates, the election was conducted to decide their fate in it by INEC and its officials. The two, by no stretch of imagination, cannot be regarded as conducting the election but were only contesting the election.”
Katsina-Alu, JSC, in his contribution, said at page 179:
“It is a cardinal rule of interpretation of a statutory provision that it must be given its clear and ordinary meaning. Sub-section 2 of section 133 of the Electoral Act which I have reproduced above provides for persons who may be respondents in an election petition. The first set of respondents is the person whose election is complained of. The second set is made up of an Electoral Officer, a Presiding Officer, a Returning Officer whose conduct the petition complains of and any other person who took part in the conduct of the election. These are collectively referred to as ‘statutory respondents’. When subsection 2 speaks of the person whose election is complained of, it clearly did not contemplate making any person a respondent except a person petitioned against, that is, the person declared the winner of the election. I think it is quite elementary really. I cannot envisage a situation under which a person who lost an election will present a petition against another loser.”
Kalgo, JSC, in his contribution, said at pages 184 and 185:
“For the purpose of determining who may be sued as respondent under the Act, S. 133(2) is the only relevant provision and is in my view divided into 2 parts. The first part referred to the person ‘whose election is complained of’, and this must only mean the person who was successful or was announced as the winner of the election and no other. It does not, in my view, mean that an unsuccessful candidate at an election whose election involved some malpractices or non-compliance with the electoral law can be sued as respondent in an election petition. That was not the intendment of the electoral law, as it would have no effect on the election itself and the complaint would not have been against the election of the successful party. Therefore, by the first part of the sub-section, it is my respectful view that only the person who succeeded at the election complained of can be sued as respondent.
The second part of the subsection speaks generally about the conduct of the elections by the electoral officers or other persons involved. The subsection made a list of officers who might be involved in the ‘conduct of an election’ and ended up by saying that if the complaint is about the other persons involved in the conduct of the election can be joined in their official capacities etc., as necessary parties and be sued as respondents. This is very clear and needs no further clarification but will definitely not include a candidate in the election like the 1st appellant.”
Edozie, JSC, in his contribution, said at page 214:
“Guided by this principle, it seems to me that the persons who may be made respondents in an election petition are circumscribed by subsection 2 of section 133 of the Electoral Act, 2002. Those persons as enumerated in the subsection are the persons duly elected and any of the electoral officers or persons whose conduct at the election is complained of in the petition. A candidate who lost at the election is not within the contemplation of the subsection; it is immaterial that an allegation was made against him. The subsection does not accommodate such a person and one cannot read into a statute what is not there.”
And finally, I made the following contribution on the subsection at page 204:
“I would like to look at section 133(2) in three limbs. The first limb is the expression ‘the person whose election is complained of’. This limb, in my humble view, means the person who was declared winner of the election. And that person in the language of the subsection is the respondent. The second limb of the subsection enumerates other persons who will be deemed as respondents, if the petition complains of their conduct in an election. They are an Electoral Officer or Presiding Officer, or a Returning Officer. These are the officials involved in the conduct of the election. The third limb, as the expression implies, anticipates any other person who participated in the conduct of the election, other than an Electoral Officer, a Presiding Officer or a Returning Officer… A person who is a candidate cannot at the same time be a person who can or should conduct the election. That is not within the tenor and spirit of the Electoral Act as it is clearly against the natural justice rule and public policy. Neither section 133(2) nor any other section of the Electoral Act anticipates such a situation.”
It is clear that as CORPORATE NIGERIA, did not take part in the conduct of the Presidential Election which was held on 19th April, 2003, the body does not qualify as a respondent. Where a statute has specifically provided for parties to an action, the common law principles of joinder of a necessary party will not apply. This is because the statute by its specific provisions has stopped or blocked parties not mentioned therein.
Falling back on a combined interpretation of paragraphs 14 and 50 of the First Schedule to the Electoral Act, 2002, takes me to Order XXXII of the Federal High Court (Civil Procedure) Rules. The order is in the following terms:
“The court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair trial of the suit. and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.”
The above order is so generously worded that it can take care of almost all, if not all types of amendments that are made for the purpose of determining the real questions in controversy between the parties. In the often cited English case of Cropper v. Smith (1884) 26 Ch. D. 700 at 710-711, Bowen, L. J., said:
“It is a well established principle that the object of the 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 mattes 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.”
The courts have established basic principles guiding amendment of proceedings. Basically, an amendment for the purpose 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 v. Aderonhunmu (1984) 6 SC 92, (1984) 1 SCNLR 515; Amadi v. Aplin (1972) 4 SC 228; Ojah v. Ogboni (1976) 4 SC 69; Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42.
In Alsthom S. A. v. Chief Saraki (2000) 14 NWLR (Pt. 687) 415, Achike, JSC, of blessed memory, and a very fine Judge, said at page 427:
“The basic principle governing the granting 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.”
In the light of the very generous provisions of the Federal High Court Rules and the case law, the lower court, in my view, ought to have allowed more of the amendments sought. I think the court was unable to do so because of the conclusion it reached in the construction of paragraph 14(2) of the First Schedule to the Act.
What should this court do in the circumstances Mr. Owonikoko has urged us to invoke our section 22 jurisdiction. He submitted at paragraph 1.19, pages 12 and 13 of the reply brief that “section 22 of the Supreme Court Act affords a straight answer to the submissions of the respondent that the merit of the amendment should not be argued in this appeal.” He said:
“This is a deserving case in which your Lordships will be doing complete justice by allowing the amendments. Upon a proper appeal as we contend that ours herein is, your Lordships as the final court can, and indeed will feel justified, to determine the merit of any matter which a lower court has been adjudged wrong in failing to decide; once some features of the case meet certain conditions as outlined in judicial authorities.”
See also paragraph 4.14 of appellant’s brief.
I am very much attracted by the above submission and I entirely agree with counsel that this court can invoke section 22 of the Supreme Court Act in the circumstances of this appeal. By the section, this court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and shall have full jurisdiction over the whole proceedings as if the proceedings have been instituted and prosecuted in the Supreme Court as a court of first instance.
In Ediaghonya v. Dumez (Nig.) Ltd. (1986) 3 NWLR (Pt. 31) 753, Karibi- Whyte, JSC, in his leading judgment said at page 764:
“… I think in the exercise of the general powers vested in this court by section 22 of the Supreme Court Act, 1960, we can exercise full jurisdiction over the whole proceedings and deal with this case in the same manner in which the trial Judge ought to have dealt with it.”
See also Omisade v. Akande (1987) 2 NWLR (Pt. 55) 158; Ighoho Irepo Local Government Council and Community v. The Boundary Settlement Commissioner (1988) 1 NWLR (Pt. 69) 189; Adeyemi v. Y.R.S. Ike-Oluwa and Sons Limited (1993) 8 NWLR (Pt. 309) 27.
One consideration for the invocation of section 22 is that the matter must have been raised in the lower court and that court did not or failed to take the appropriate decision. Another consideration is that there are enough materials before this court to enable it take a decision one way or the other.
It is common ground that an application for amendment of the petition was placed before the lower court, and this included the joinder of CORPORATE NIGERIA (LIMITED BY GUARANTEE). Arguments were proffered by counsel. In Adeyemi v. Y. R. S. Ike Oluwa and Sons Ltd. (supra) this court held that before determining whether the conditions surrounding an appeal before it are conducive to the exercise of its general powers under section 22 of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria, 1990, as if the proceedings had been instituted and prosecuted before it as a court of first instance, one consideration is the availability before it of all the necessary materials on which to consider the appellant’s application, for example, the motion on notice and all affidavits in support, exhibits to the affidavits including judgment of the High Court and the proposed grounds of appeal to the Court of Appeal.
The record of appeal, in my view, contains all the relevant materials for this court to consider and make order or orders one way or the other in respect of the amendments sought by the appellants. I therefore resort to the record of appeal to make the necessary orders.
In the light of the above, it is my view that CORPORATE NIGERIA (LIMITED BY GUARANTEE) cannot be joined as a party as that body does not come within the provision of section 133(2) of the Electoral Act. I hereby make the following orders in the light of the only issue formulated by the appellants for determination of this appeal.
Prayer 1
The prayer is refused. Appeal on the prayer is hereby dismissed.
Prayer 2(1)
The prayer is refused. Appeal on the prayer is hereby dismissed.
Prayer 2(2)
The prayer is granted only to the extent of adding to paragraph 4 the 56th respondent. The prayer is refused in respect of the 57th respondent.
Prayer 2(4)
This prayer is refused as the amendment sought relates to CORPORATE NIGERIA (LIMITED BY GUARANTEE). Appeal on the prayer is hereby dismissed.
Prayer 2(5)
This prayer is refused as the amendment sought relates to CORPORATE NIGERIA (LIMITED BY GUARANTEE). Appeal on the prayer is hereby dismissed.
Prayer 2(11)
This prayer is granted. Appeal on the prayer is allowed.
Prayer 2(13)
This prayer is refused as the amendment sought relates to CORPORATE NIGERIA (LIMITED BY GUARANTEE). Appeal on the prayer is hereby dismissed.
Prayer 2(15)
This prayer is granted. Appeal on the prayer is allowed.
Prayer 2(17)
This prayer is granted. Appeal on the prayer is allowed.
In view of the fact that the lower court granted prayers 2(3), (6), (7), (9) and (19), and no appeal was filed on them, this court will not deal with them.
In sum, the appeal succeeds in part. I make no order as to costs.
SC.122/2003
