DIAH V BONGO & ORS

DIAH V BONGO & ORS


IN THE COURT OF APPEAL

IN THE YOLA JUDICIAL DIVISION

HOLDEN AT YOLA

ON MONDAY, 14TH DECEMBER, 2015


Appeal No: CA/YL/EPT/TRS/SHA/117/2015

CITATION:

Before Their Lordships:

JUMMAI HANNATU SANKEY, JCA

UCHECHUKWU ONYEMENAM, JCA

SAIDU TANKO HUSAINI, JCA


BETWEEN
PETER ABEL DIAH
(APPELLANT)

AND

EMMANUEL J. BONGO & ORS
(RESPONDENTS)


PRONOUNCEMENT


A. ELECTION PETITION
1. Amendment to Election Petition – The time period of granting amendments in election matters
Whether the general principle of amendment as regard time period applies to election matters

…amendments, while still grantable in election matters, such must be granted within the time period limited for the filing of Briefs in the Election Petitions and Court Practice Directions, 2011. See Bounwe v. REC Delta State (2005) LPELR-6111 (CA). Per SANKEY, JCA. read in context

2. Nature of Election Petition – How the proceedings of election petitions should be carried out
Effect of the special/sui generis nature of an election petition

Since Election Petitions are as aforesaid, sui generis, they are removed from the nature of ordinary civil proceedings. Therefore, as a matter of deliberate policy to enhance urgency, they are expected to be devoid of the procedural clogs that cause delay in the conclusion and determination of the substantive dispute. Per SANKEY, JCA. read in context

3. Nature of Election Petition – How election petitions must strictly adhere to the time limits delineated in substantive laws as well as in the Rules of procedure and practice directions guiding and directing Courts
Whether election petitions must adhere to the time limits provided in substantive laws, rules of procedure and practice directions

In the instant application, the facts are peculiar as they have arisen from an Election Appeal of which the authorities are ad idem must strictly adhere to the time limits delineated in substantive laws as well as in the Rules of procedure and practice directions guiding and directing Courts. See Orubu v. INEC (1998) 5 NWLR (Pt. 94) 323; Balogun v. Odumosu (1999) 2 NWLR (Pt. 592) 590 at 597; Peoples Democratic Party (PDP) v. Congress for Progressive Change (CPC) (2011) LPELR – 2909(SC) 1 at 25 – 26, per Onnoghen, JSC. Per SANKEY, JCA. read in context

B. PRACTICE AND PROCEDURE
4. Amendment of Court Processes – How an applicant must expressly show what is intended to be amended
Duty of an applicant seeking to amend court processes

It is the duty of an applicant seeking the indulgence of the Court to expressly show by its application what he intends to amend in the process sought to be amended, and not for the Court to sift from the Brief what has been amended and what has not been amended within the recesses of its chambers. Per SANKEY, JCA. read in context


LEAD JUDGMENT DELIVERED BY SANKEY, JCA


This motion on notice seeks the orders as set out in the motion paper, which includes an order of Court granting leave to the Appellants to amend their Appellants’ Brief of argument. The Appellant has urged the Court to grant the application in the interest of justice, while the 1st and 2nd Respondents’ Counsel opposed the application and argued per contra.

The motion raises a few issues which we have carefully looked into as follows:

1. The motion itself appears to us to be incompetent in that it has failed to annex a Schedule of amendment which would circumscribe the scope and extent of the amendment sought. It is the duty of an applicant seeking the indulgence of the Court to expressly show by its application what he intends to amend in the process sought to be amended, and not for the Court to sift from the Brief what has been amended and what has not been amended within the recesses of its chambers.

2. It is true that in ordinary circumstances, amendments to processes before the Court are usually granted in the interest of substantial justice. However, to use the well-worn cliché, election matters are sui generis. Therefore, time is of the essence. For that reason, amendments, while still grantable in election matters, such must be granted within the time period limited for the filing of Briefs in the Election Petitions and Court Practice Directions, 2011. See Bounwe v. REC Delta State (2005) LPELR-6111 (CA).

This Court is therefore without power to extend the time specified therein.

Since Election Petitions are as aforesaid, sui generis, they are removed from the nature of ordinary civil proceedings. Therefore, as a matter of deliberate policy to enhance urgency, they are expected to be devoid of the procedural clogs that cause delay in the conclusion and determination of the substantive dispute.

In addition, this application is being made on the date slated for the hearing of the Appeal. In consonance with the submission of learned Counsel for the 1st and 2nd Respondents, we are also of the considered opinion that the amendment sought at this stage of the proceedings would serve to overreach the Respondents, in that an opportunity to file a consequential amendment to their Brief of argument cannot be granted in view of the fact that time for filing of Briefs has long since lapsed. This is quite apart from the fact the amendment sought will substantially alter the nature of the Brief. From a close inspection of the affidavit evidence, as well as the Reply Brief filed by the Applicants herein, we are of the view that, contrary to the submission of the learned Silk for the Applicant, this is not a simple case of tying the issues to the Grounds of Appeal.

We are not unmindful of the authority of Tsokwa v. BON (supra) cited by the learned Senior Counsel, as well as other authorities in that vein. However, we take note that the facts in those cases are distinguishable from the facts of the instant application, since they arose from regular civil matters. In the instant application, the facts are peculiar as they have arisen from an Election Appeal of which the authorities are ad idem must strictly adhere to the time limits delineated in substantive laws as well as in the Rules of procedure and practice directions guiding and directing Courts. See Orubu v. INEC (1998) 5 NWLR (Pt. 94) 323; Balogun v. Odumosu (1999) 2 NWLR (Pt. 592) 590 at 597; Peoples Democratic Party (PDP) v. Congress for Progressive Change (CPC) (2011) LPELR-2909(SC) 1 at 25-26, per Onnoghen, JSC.

It is for these reasons that we find no merit in the application. The application is accordingly refused and dismissed.

ONYEMENAM, JCA

I agree

HUSAINI, JCA

I agree