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.