Adewale Aribisala & Anor. V. Simeon Aderemi Adeyanju & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

O. O. ADEKEYE, J.C.A.

The National Assembly elections in the Ekiti North Federal Constituency 1 of Ekiti State was held on the 21st of April 2007. At the return of the polls – the 1st Appellant – Adewale Aribisala was elected as the member for the Federal House of representatives representing the Ekiti North Federal Constituency 1. The 1st Appellant contested on the platform of the 2nd Appellant a registered political party, – the Peoples Democratic Party. The 1st and 2nd Respondents challenged the election by a petition filed on the 21st of May 2007 before the National Assembly/Governorship and Legislatives Houses Election Tribunal for Ekiti State. The 3rd – 7th Respondents were responsible for the conduct of the election held on the 14th of April 2007. The of the petition of the 1st and 2nd Respondents is on pages 1 -3 of the Record. The Respondents at the Tribunal filed their respective Replies to the petition. On the 12th of June 2007, the Appellants filed a Notice of Preliminary Objection to the competence of the election petition vide pages 17-24 of Record. The grounds of the objection are that the score of the 1st Respondent who claimed to have been a candidate at the election was not stated. Further that both the 1st and 2nd Respondents failed to state the reliefs and prayers sought from the Election Petition Tribunal as required by Paragraphs 4(1) (d) and 4(3) (a) of the First Schedule to the Electoral Act 2006.

On the 9th of July 2007, the 1st and 2nd Respondents filed an application seeking leave to amend their petition filed on 21st May 2007. The application for amendment was brought forty days after expiration of the time for presentation of their petition. The Appellants opposed this application for amendment by filing a counter affidavit and a written address vide pages 36 – 43 and 72 – 76 of the Record respectively.

The Appellants gave reasons for opposing the application for amendment as follows-

“(1) That leave to amend was predicated on the grounds that the Appellant had raised a legal challenge with the aim of establishing the incompetence of the petition.

(2) 1st and 2nd Respondents were guilty of unreasonable delay in bringing the application for amendment.

(3) The application to amend was aimed at introducing new facts in the election and if the prayer for amendment was granted it would result in effecting a substantial alteration of or addition to the statement of facts relied on to support the grounds. ”

The 3rd – 7th Respondents equally filed their respective counter affidavit and written address to oppose the motion for amendment. The Election Tribunal heard and granted the application on 9/9/2007 on the ground that the amendment sought did not introduce new issues so as to offend paragraphs 4 and 14 of the 1st Schedule to the Electoral Act 2006 – vide pages 184 -185 of the Record.

Aggrieved with the Tribunal’s decision to grant leave to the Petitioners to amend their petition filed on 21/5/07, the Appellants have appealed to this court. At the hearing of the appeal on 10/4/2008 the Appellants adopted and relied on their joint brief filed on 23/10/07. In this brief the Appellants identified one issue for determination as follows –

“Whether the Tribunal has the competence to allow the substantial or material amendment in the 1st and 2nd Respondents’ application for extension of time to amend the petition.”

The 1st and 2nd Petitioners/Respondents in their joint brief deemed filed on 10/4/08 adopted the only issue filed by the Appellants.

The 3rd – 7th Respondents in their joint Respondents’ brief deemed filed on the 10th of April 2008 settled three issues for determination as follows-

“(1) Whether the amendment sought to be made to the Petitioners’ petition vide the Petitioners’ motion on Notice filed on 9/7/07 and the proposed amended petition attached thereto sought to introduce a requirement or some requirements of sub-paragraph 1 of the Paragraph 4 of the 1st Schedule to the Electoral Act 2006 not contained in the original petition.

(2) Whether the Petitioners’ proposed amendment to the petition sought to effect a substantial alteration of the ground for the petition and a substantial alteration cannot be granted in a petition when there is a legal challenge to the competence of the petition. The learned counsel for this submission relied on the cases of Abimbola v. Aderoju (1999) 5 NWLR Pt. 601; Pg. 100; Ojukwu v. Onwudiwe (1984) 1 SCNLR Pg. 247 at pages 277-278; PDP v. Haruna (2004) 16 NWLR Pt. 900 Pg. 597 and Paragraph 14(2)(a)(i) of the First Schedule to the Electoral Act 2006.