Silas Bounwe V. Resident Electoral Commissioner Delta State & Ors (2005)

LawGlobal-Hub Lead Judgment Report

NGWUTA, J.C.A.

In his motion on notice brought pursuant to Order 3 rules 15 and 16 of the Court of Appeal Rules, the appellant/applicant (hereinafter referred to as the applicant) prayed the court for the following reliefs:

“(1) An order striking out or dismissing the respondents” notice for being unmaintainable.

(2) An order that this Honourable Court depart from its decision in the ruling delivered in this appeal on 15th day of December, 2004, which dismissed the appellant’s application to amend the processes filed in this appeal.

(3) An order for leave to amend the existing notice of appeal by substituting a fresh notice of appeal or by filing additional grounds of appeal.

(4) An order for leave to substitute the appellant’s brief with a new appellant’s brief in this appeal. And for such further order as the court may deem fit to make in the circumstances.” The application was predicated on 11 grounds and supported by a 17-paragraph affidavit, a 5 paragraph further affidavit filed on 21/5/05, and another further affidavit filed on 16/6/05. The success vel non of the 2nd relief would determine whether or not the court should consider the rest of the applicant’s prayer and consequently the learned senior counsel for the applicant was directed to deal with the said 2nd prayer.

In his argument, learned Senior Counsel for the applicant referred to, and relied on the averments in the 17 paragraph supporting affidavit, the 5 paragraph further affidavit sworn to on 31/5/05 and another further affidavit filed on 16/6/05. He relied also on the records of the court, particularly the records of 15/12/04 and the ruling delivered on the said date. He cited Order 1 rules 19 – 21 of the Court of Appeal Rules, paragraph 51 of the 1st Schedule to the Electoral Act, 2002, and relied on the inherent powers of the court. Learned Senior Counsel urged the court to depart from its ruling dated 15/12/04, dismissing the applicant’s application to amend some processes in the appeal. According to learned Counsel, the said ruling was premised on the following grounds:

1. That the court has no power to amend any process filed before it.
2. That in election petition, time is of essence.
3. Because time is of essence, the process sought to be amended cannot be amended.
4. Time cannot be extended under the Practice Direction issued by the Honourable President of the Court of Appeal for the purpose of election petition appeals. It was submitted for the applicant that the court has jurisdiction to depart from its previous decisions or that the court is not bound by its previous decisions.

Learned Counsel relied on Young v. Bristol Aenpearue Co. Ltd. (1944) 2 All E.R. 293; Sea Trucks (Nig.) Ltd. v. Pyne (1999) 6 NWLR (Pt.607) 514 at 541 ratio 12. Counsel contended that S. 246(3) of the 1999 Constitution, which makes the decision of the court in this appeal final, is the more reason for the court to depart from its previous decisions. He relied on Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 170 paras. F-G, 181 paras. E-G ratios 27, 28 and 29 and urged the court to follow the practice of the Supreme Court in departing from previous decisions. Learned Counsel contended that the court will depart from its previous decision in the following circumstances, especially where the previous decision is occasioning injustice:

(1) Where there are conflicting decisions of the court in respect of the same issue.

(2) Where the decision cannot stand together with a decision of the Supreme Court on the same issue.

(3) Where it is shown that the previous decision of the court was reached per incuriam. He submitted that the ruling of this court dated 15/12/04 is afflicted with the above vices for the following reasons:

1. The decision is in conflict with the decision of this court in other jurisdiction in respect of the same issue. It was contended that other decisions of this court have held that time can be extended for taking any actions, including amendment of processes in election petition appeals. Reliance was placed on Haruna v. Modibo (2004) 16 NWLR (Pt. 900) 487. Learned counsel referred to Abubakar v. INEC (2004) 1 NWLR (Pt. 854) 207, which denied extension of time and urged the court to depart from it. Counsel referred to Ndayako v. Mohammed (2005) 6 NWLR (Pt.920) 86 at 99 – 100, where the court granted Opposing the application, the learned Senior Counsel for 1st respondent argued that the application was brought in utmost bad faith. He said the relief sought is an invitation to the court to sit on appeal in respect of its previous decision and to over-rule itself. He referred to S. 246(3) of the 1999 Constitution and said this court is the final court of appeal in election petitions from National Assembly elections. He referred to Adigun and 2 Ors. v. A.-G., Oyo State No, 2 (1987) 12 NWLR (Pt.56) 197 also in (1987) ANLT 328 at 343-344 and contended that while the Supreme Court may depart from its previous decisions in other cases, it cannot do so in the same proceedings as the court is being urged to do in this application. Learned Counsel submitted that finality is an element of justice and that the court ought not to alter the positions of the parties as per the ruling of 15/12/04.

Counsel referred to the ruling of the court on 5/4/04, in which it denied a motion to cross-appeal and said the said ruling of 5/4/04 is consistent with the ruling of 15/12/04. He said the ruling was not made per incuriam and that serious injustice to the respondent and his constituency will result, if the application is granted. He referred to the records and said there had been four different counsel in the case. Learned Counsel reminded the court that the term for which the election was held is 4 years and that the applicant has spent more than half of the term. He urged the court to reject the application. Learned Counsel for the 2nd – 15th respondents did not oppose the application. However, he withdrew a similar application he filed on 2/3/05.

On points of law, learned Counsel for the applicant said the case of Adigun v. A. -G., Oyo State (supra) is not applicable to the facts of this case as the case refers to final decision and determination of rights in the same case. He argued that interlocutory decisions do not determine anyone’s rights, but merely give direction on law to seek the enforcement of the rights. He relied on Makana v. Aremo (2000) NWLR (Pt.684) and submitted that as long as a case has not been determined a party can amend as many times as he counts. I think it is necessary to set out paragraphs 50 and 51 of the 1st Schedule to the Electoral Act, 2002. The two paragraphs (50 & 51) deal with application of rules of court and Practice and Procedure of the Court of Appeal or the Supreme Court respectively. They are hereunder reproduced. Paragraph 50;

“50. 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 modifications 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.

51. Subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with the practice and procedure relating to appeals in the Court of Appeal or of the Supreme Court as the case may be regard being had to the need for urgency on electoral matters” (italics mine).

In paragraph 50, the practice and procedure of the Federal High Court is subject to its modification to conform with the Electoral Act, 2002.

The application of the said practice and procedure is subject to the provisions of the Electoral Act, 2002, and where there is a conflict between the civil procedure rule and any provision of the Act, the conflict will be resolved in favour of the Act. See Alhaji Mohammed Dikko Yusuf & Anor. v. Chief Olusegun Aremu Okikiola Obasanjo & 56 Ors. (2003) 16 NWLR (Pt. 847) 554, (2003) 50 WRN 1, where the Supreme Court held that by paragraph 50 of the 1st Schedule to the Electoral Act, 2002, the (Civil Procedure) Rules of the Federal High Court can only be applied to the extent that the electoral Act allows or permits.

By paragraph 51, the court will fall back on its practice and procedure relating to appeal in the court subject however to two limitations – (1) the application of the Court of Appeal Practice and

Procedure relating to appeals is subject to the provisions of the Electoral Act, 2002. (2) The court shall have regard to the need for urgency on electoral matters.

In various Civil Procedure Rules including that of the Federal High Court as well as the practice and procedure relating to appeals in the Court of Appeal, the courts are generally liberal in dealing with application for amendment but election matter is in a class by itself (sui-generis) and has to be determined in strict compliance with the electoral Act. See Engr. Alhaji Magaji Abdullahi v. Alhaji Kabir Ibrahim Gaya (1992) 21 LRECN 144 at 146, Obih v. Mbakwe (2005) 50 WRN 106 Sc.

Having disposed of the above preliminary matters, I shall now consider the merit of the application. The decision the court has been asked to depart from is contained in the ruling, dated 15th December, 2004, on the application for the following reliefs:

1. An order permitting the appellant/applicant to amend the notice and grounds of appeal dated 19th September, 2003, and filed on 24th September, 2003, in terms of the amendments contained in the schedule hereto.
2. An order deeming the amended notice of appeal dated 19th January, already filed as properly filed and served (official fees having been paid).
3. An order permitting the appellant/applicant to consequently amend the appellant’s brief dated and filed on 29th September, 2003, within 3 days of the granting of prayers No.1 and No.2 in this motion”. The motion was denied and the appellant would want the court to make orders as prayed in the motion. According to the learned Senior Advocate, the dismissal of the application was premised on the following grounds:
4. That the court has no power to amend any process filed before it.
5. That in election petition time is of essence.
6. Because time is of essence the process sought to be amended cannot be amended.
7. Time cannot be extended under the Practice Direction issued by the Honourable President of the Court of Appeal.

With due respect to the learned senior counsel, I have re-read the ruling dated 15/12/04 and I regret my failure to agree with the learned silk, especially on such simple matters. The ground that the court has no power to amend any process filed before it is not in the ruling delivered by this court on 15/12/04. While it is true that in election petition time is of essence, it is not contained in the ruling that the process sought to be amended cannot be amended because time is of essence. The implication of the grounds stated by counsel is that the court held there can be no amendment in election petition but the court never said that, directly or by implication. In fact, amendment can be granted in election petition appeals, depending however, on the timing of the application for amendment. See section 132 of the Electoral Act, 2002, and Alhaji Mohammed Dikko Yusufu and Anor. v. Chief Olusegun Aremu Okikiola Obasanjo and 56 Ors. (supra), where the Supreme Court held that the application for amendment was in order having been filed within 30 days from the declaration of the result of the election. Contrary to the 4th ground that the court relied on the practice direction to deny the application for amendment, the six page lead ruling did not contain any reference to the practice direction issued by the Hon. President of the court.

The ruling was not predicated on any of the grounds stated by learned Counsel for the appellant.

Learned Counsel gave four circumstances where the court will depart from its previous decisions:

1. Where there are conflicting decision of the court in respect of the same issue.
2. Where the decision cannot stand together with a decision of the Supreme Court on the same issue.
3. Where it is shown that the previous decision was reached per incuriam; and
4. Where the previous decision is occasioning injustice. Learned Counsel cited a plethora of authorities to show that the court granted similar applications.

Assuming but not conceding that the court granted similar application where the facts are similar to the facts of the motion in which the ruling was delivered on 15/12/04, those other decisions are in conflict with the Supreme Court decision on the issue of amendment. See Alhaji Mohammed Dikko Yusufu and Anor. v. Chief Olusegun Aremu Okikiola Obasanjo and 56 Ors. (supra), where the Supreme Court held that substantial amendment will not be allowed after the expiration of 30 days from the date of declaration of the election result. The amendment sought in the said motion is nothing if not substantial. It will amount to judicial rascality and an exhibition of recklessness bordering on contempt for the court to follow its previous decision, if any, which is shown to be in conflict with the decision of the apex court on the same issue.

On the second ground for departure from previous decision, that is the ground that the decision cannot stand together with a decision of the Supreme Court on the same issue, the learned Senior Advocate, in his impressive submission laced with case law, did not mention one Supreme Court decision with which the ruling of this court dated 15/12/04 cannot stand together. On the other hand the ruling of the court delivered on 15/12/04, stands together, on the same pedestal, with the judgment of the Supreme Court on the issue of amendment in Yusufu’s case (supra).

The 3rd ground is that the ruling in question is given per incuriam. Even if it is true that there are other decisions of the court with which the ruling is in conflict, the highest judicial authority is the Supreme and a ruling that is in line with the judgment of the Supreme Court on the same issue cannot be said to have been reached per incuriam. It was learned counsel’s view that Obadiegwu’s case was not brought to the attention of the court in the motion in which the ruling was delivered on 15/12/04. In so far as the court in Obadiegwu’s case granted an application, if it did, similar to the motion in which the ruling was delivered and under similar circumstances, the said case is in conflict with the decision of the Supreme Court in Yusufu’s case (supra) and this court has a duty not to follow it.

The 4th ground is that the ruling is occasioning injustice. If applying the clear and unambiguous provisions of Electoral Act, 2002, results to injustice then the matter should be referred to the National Assembly as an alternative to asking the court to nullify the provision. See paragraph 14 of the 1st Schedule to the Act on amend. Now, the election from which this appeal arose was conducted in the year 2003. The judgment appealed against was delivered on 4th September, 2003. The election was held on 10th May, 2003. The appellant has spent more than one half of the term of four years and today he wants to amend the processes he filed in the appeal. In my humble view, what will occasion injustice is not a denial of the applicant to amend, but the granting of same. As the court held in the ruling being challenged;

“it is the right of the electorate to know within a reasonable time frame who of the contending parties is their elected representative, but this knowledge becomes merely academic at the expiration of the term for which the election was held.”

See Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 530; Owuru v. INEC (1999) 10 NWLR (Pt.622) 201; Balogun v. Odumosu (1999) 2 NWLR (Pt.592) 520, on the need for expeditious hearing of election petitions for the electorate to know their leader. The time frame within which to appeal and apply to amend process introducing substantial factors to the petition or reply is based on public policy, the principle of which is to protect public interest and reject whatever is injurious to the public welfare or is against the public good. See Total (Nig.) Plc. v. Ajayi (2004) 3 NWLR (Pt.860) p. 270 at 275. It is injurious to the welfare of the public (the electorate) to keep an election appeal pending for over half the term for which the election was held. It becomes more so if substantial amendments are introduced into the proceedings this late in the day.

With reference to paragraph 51 of the 1st Schedule to the Electoral Act, 2002, learned Counsel submitted that the caveat therein contained “regard being had to the need for urgency on electoral matters” imposes a duty on the court to abridge time. Abridgment of time, as I understand the expression in our con, is the direct opposite of enlargement of time. Time can be abridged within the time stipulated by the rules for doing anything in the proceedings, but a party who has run out of time cannot ask that time be abridged, for he is out of time. He can only ask for enlargement of time. I am of the view that the need for urgency on electoral matters imposes a duty on the court or tribunal hearing electoral matters to hear the matter expeditiously by restricting the parties to the time frame in the Electoral Act, 2002, rather than a duty to abridge time.

It was also argued that the ruling of this court on 15/12/04 constituted a denial of right to a fair hearing as well as a denial of counsel’s right of audience in court as the proposed amended process represents counsel’s address in the appeal. Against this submission, the learned Senior Advocate for the 1st respondent contended that finality is an element of justice and I cannot agree more with him. Right to a fair hearing is a dual carriage way. It inures to both parties. If the application is allowed, nothing prevents the appellant from debriefing his counsel, knowing that a new counsel he briefs will apply for, and obtain an order to amend the process already filed and the process would go on till the expiration of the term of four years. After all, he the appellant, is still occupying the seat, thanks to paragraph 38(2) of the 1st Schedule to the Act. In the end, he would have succeeded in using the process of court to stultify justice and make it look like a stupid ass. That would also mean a denial of the respondent’s right to a fair hearing, and counsel in such a case, rather than being denied a right of audience in court, would have helped to pollute the spring of justice.

Learned Counsel for the 1st respondent relied on Adigun & 2 Ors. v. A.-G., Oyo State (supra) in his submission that the Supreme Court may depart from its previous decision in other cases but will not do so in the same proceedings.

Learned Counsel for the appellant said the authority applied only to a final decision of the Supreme Court and not to interlocutory decision. He relied on NASCO Management Services Ltd v. Amaku Trans. Ltd. (2003) 2 NWLR (Pt.804) 290, 312; Ogbogu v. Ndirihe (1992) 6 NWLR (Pt.245) 40, 68 and Balogun v. Akanji (1992) 2 NWLR (Pt.225) 591, 607, to buttress his contention that a court can depart from its decision in an interlocutory ruling in the same proceedings. There is no distinction between final and interlocutory decision in election petition matters. In Awuse v. Odili (2003) 18 NWLR (Pt.85 1) 116 at 124, the Supreme Court held;

“In making provision in respect of ‘decision’ of the Court of Appeal in election petition matters section 246(3) of the 1999 Constitution makes no distinction between ‘interlocutory’ and/or ‘final’ decision of the court” Per Iguh, JSC.

It therefore follows that the court cannot depart from its previous decision, be it final or interlocutory, in the same proceeding, even if the appellant had established a case for such departure.

Learned Counsel argued that any delay in matter cannot be attributed to the applicant. According to learned Counsel, if there is a delay, it arose from the registry of the court. He relied on Bini Haruna v. Modibbo (2004) 16 NWLR (Pt.900) 487, 536 and Okolo v. U.B.N Ltd. (1998) 2 NWLR (Pt.539) 618, 639 for his submission that the tardiness on the part of learned Counselor, the mistakes of the registry should not be visited on the litigant.

The delay here relates, not to the hearing of any application before the court, but to the time of filing same. An application to make a substantial amendment, as in this case, must be brought within the time stipulated in paragraph 14 of the 1st Schedule to the Electoral Act, 2002. See Buhari v. Obasanjo (supra). Had the application been brought within the time allowed for same in the Electoral Act, it would not have mattered that it was not disposed of within that time.

In view of the essentiality of time, tardiness of learned Counsel or the mistake of the registry in filing the application for substantial amendment at the expiration of the time allowed for same cannot be accommodated. See Jang v. Dariye (2003) 15 NWLR (Pt.843) 436 at 445, on rules for amendment of election petition.

Learned Counsel for the appellant argued that there is no time limit for the disposal of election appeal and that as long as appeal remains to be heard, the parties are entitled to amend the processes they filed. It is conceded to the learned Senior Advocate that neither the Electoral Act, 2002, nor any of the schedules thereto contains any provision limiting the time frame within which the election or appeal therefrom must be disposed of. However, the same is not true of time for presenting the election petition or bringing an appeal against the decision of Election Tribunal or application for amendment of any appeal process. See section 132 of the Act for the period of time within which an election petition must be filed; S. 138 of the Act for time within which to bring an appeal and paragraphs 14 of the 1st Schedule to the Act for the time within which to apply for a substantial amendment, such as the amendment denied in the ruling of 15/12/04.

In my humble view, the provisions limiting the time within which a party may present election petition and/or apply to amend processes filed in an appeal or extension to file any process are designed to check the excess and abuse capable of resulting from the fact that an election petition or appeal therefrom has no time limit within which it must be determined, but is capable of dragging on for the duration of the term for which the questioned election was conducted. As argued by learned Senior Counsel for the 1st respondent, finality is an element of justice. I hasten to add that it is more so in electoral matters in view of the need for urgency in such matters. The essentiality of time in electoral matters imposes a duty on the court, the parties and their counsel to dispose of same expeditiously even though the Electoral Act, 2002, imposes no time frame within which it must be determined.

Having considered the issues raised in this application, I have come to the conclusion that there is no ground for the court to depart from its previous decision contained in its ruling dated 15/12/04, in which the court denied the appellant’s application for leave to amend the processes in this appeal. The application is devoid of merit and it is hereby ordered that the same be, and is hereby, dismissed.

The appellant is to pay costs assessed at N2,000.00 to the 1st respondent.

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Other Citations: (2005)LCN/1808(CA)