Independent National Electoral Commission & Anor V. Peoples Democratic Party (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKUKO-SODIPE, J.C.A. (Delivering the Lead Ruling)

The Appellants/Applicants (hereafter simply referred to as “Applicants”) brought the instant motion on notice dated 25/4/2014 and filed on 28/4/2014, pursuant to the provisions of Orders 4 Rule 1;6 Rule 15; 7 Rules 1 and 2 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of the Court, The Applicants seek for the following:-

“1. AN ORDER granting leave to the Appellants/Applicants to amend the Notice of Appeal which was filed on 31st March, 2011 and contained on page 128 to 130 of the Record of Appeal, by adding thereto an additional ground of Appeal.

2. AN ORDER granting leave to the Appellants/Applicants to file one additional ground of Appeal in the schedule attached to the supporting Affidavit as Exhibit ‘C”.
3. AN ORDER for the Appellants/Applicants to amend the Notice of Appeal filed on 31st March, 2011 to include an additional Ground of Appeal in the attached to the supporting Affidavit as Exhibit ‘C’.
4. AN ORDER granting leave to the Appellants/Applicants to amend the Appellants’ Brief of Argument for the purpose of relying on the Amended Notice of Appeal and incorporating argument on the additional Ground of Appeal.
5. AN ORDER DEEMING the Appellants/Applicants, Amended Notice of Appeal and Amended Brief of Argument already filed as properly filed and served, the necessary fees having been paid.
6. AND FOR SUCH ORDERS or FURTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of this Appeal.”

The grounds upon which the application is premised as set out in the motion on notice (supra) are:-

“1. The Appellants/Applicants have a valid and subsisting Notice of Appeal filed on 31st March, 2011 and contained on page (sic) 128 to 138 of the Record of Appeal.

2. There is need to file an additional Ground of Appeal.
3. The Additional Ground of Appeal raises a question of jurisdiction.
4. Leave of this Honourable Court is required to amend the Notice of Appeal in order to incorporate the Additional ground of Appeal.
5. Appellants’ Amended Brief of Argument relying on the Amended Notice of Appeal has now been filed.
6. The Appellants are willing and desirous to prosecute the Appeal.”

The Applicants further gave notice that they shall at the hearing of the motion on notice (supra) rely on “the Records of Appeal already before the Honourable Court, but shall abandon the Notice of Appeal contained on Page 212 of the said Notice of Appeal.”

The motion on notice(supra) has a 9 paragraph supporting affidavit deposed to by one A.A. Usman on 28/4/2014. The Respondent reacted to the supporting affidavit of the Applicants by filing an 11 paragraph counter affidavit deposed to by one Kehinde Adesiyan on 12/5/2014. The Applicants again filed a 21 paragraph reply affidavit to the counter affidavit of the Respondent.

The motion on notice (supra) was entertained by the Court on 8/7/2014. In arguing the said motion learned lead counsel for the Applicants, Adeola Adedipe Esq. relied upon the affidavits filed in the motion by the Applicants and urged the Court to grant the prayers sought therein, Learned lead counsel submitted that granting the motion will afford the Applicant a level playing ground to enable them argue their appeal. That it is in the interest of justice for the Court to do this. The case of South Atlantic Petroleum Ltd v. Minister of Petroleum Resources (2014) 4 NWLR (Pt.1396) 24 at 41 was cited by learned lead counsel in aid of his submissions.

Learned lead senior counsel for the Respondent, A.I. Layonu, SAN, in opposing the motion on notice (supra) relied on the counter affidavit filed by the Respondent. He urged the Court to dismiss the motion on the grounds that it is overreaching, is an abuse of process and incompetent. Learned senior counsel said that the records of appeal show that the extant Notice of Appeal was filed on 11/4/2011. He submitted that this was the only Notice of Appeal that is capable of being amended (but that he does not concede that this can be done).

He submitted that the Notice of Appeal being sought to be amended is already abandoned or deemed to be abandoned and has no life anymore and therefore cannot be amended. It is the stance of learned senior counsel that if prayer 1 in the motion on notice (supra) fails, the other prayers must likewise fail as they would have no foundation to stand upon. Learned senior counsel also referred to the Notice of Appeal being sought to be amended and submitted that the Applicants have not acted with candour as they did not bring it to the notice of the Court that the said Notice of Appeal was filed in the Ibadan Division of the Court.

That the Applicants filed the Notice of Appeal in Ibadan despite the fact that the Akure Division of the Court had been entertaining appeals from Osun State prior to the filing of the said Notice. The case of Intro-Shipping Ltd v Logos Trading N V (2004) FWLR (Pt.71) 1706 at 1712 was cited by learned senior counsel in aid of his stance that the application cannot be granted. This Court was urged to dismiss the motion on notice (supra) in the circumstances.

In responding on point of law, learned lead counsel for the Applicants submitted that the case cited by learned senior counsel is not helpful to the Respondent’s case. That the decision in the case cited by learned senior counsel has been overruled by that in the South Atlantic Petroleum Ltd case (supra). He relied on the doctrine of stare decisis in this regard.

The motion on notice (supra) has been brought in the instant appeal. The circumstances leading to the bringing of the said motion as disclosed in the supporting affidavit are that the Applicants lodged two Notices of Appeal against the ruling delivered on 28/3/2011 by the lower court. They are (i) Notice of Appeal filed on 31st March, 2011 and (ii) Notice of Appeal filed on 11/4/2011. The Notices of Appeal were marked Exhibits ‘A’ and ‘B’ respectively.

The Applicants stated to the effect that it was whilst going through the records of appeal that they discovered that there are some errors in Exhibit ‘B’ which go to the jurisdiction of this Court in entertaining the appeal. That it is imperative for this reason to abandon the Notice of Appeal in Exhibit ‘B’ and to rely on the Notice of Appeal in Exhibit ‘A’ in the Appellants’ Brief of Argument”.