Prince Shegun Samuel Saiki V. Oloruntoba Bamidele Simon & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI F. OMOLEYE, J.C.A. (Delivering the Leading Judgment)

The application dated and filed on 7th January, 2010 by the Appellant (hereinafter referred to as the Applicant) was commenced by way of motion on notice. It is praying for the following orders:

1. An order granting the Appellant extension of time within which to appeal against the judgment of the Governorship and Legislative Houses Election Petitions Tribunal (panel 2) delivered on 14th April, 2008 in EDSA/EPT/19/2007.
2. An order granting the Appellant extension of time within which to seek leave to appeal against the judgment of the Governorship and Legislative Houses Election Petitions Tribunal (panel 2) delivered on 14th April, 2008 in EDSA/EPT/19/2007.
3. An order granting the Appellant/Applicant leave to appeal against the judgment of the Governorship and Legislative Houses Election Petitions Tribunal (panel 2) delivered on 14th April, 2008 in EDSA/EPT/19/2007.
4. An order granting the Appellant/Applicant leave to further amend the Appellant/Applicant’s Amended Notice of Appeal by filing two (2) Additional Grounds of Appeal numbered as Grounds 12 and 13 and the reliefs sought in the Further Amended Notice of Appeal exhibited in the affidavit in support of this application and marked Exhibit “1”.
5. An order to deem as properly filed and served, the Further Amended Notice of Appeal exhibited in the affidavit in support of this application and marked as Exhibit “1′ the appropriate filing fees having been paid.

The grounds upon which the application is predicated are that:

1. The lower Tribunal delivered a ruling on 29th January, 2008 rejecting Forms EC8B(i); EC8A(i); EC8D(i); EC8E(i) and Appellant’s Certificate of Return of House of Assembly Election tendered by the Appellant at the trial and judgment was delivered by the Lower Court on the 14th of April, 2008.
2. The Notice of Appeal was filed on the 3rd day of May, 2008 and amended by leave of this Honourable Court on 18th March, 2009.
3. Leave of this Honurable court is required to fur1her amend the Appellant/Applicant’s Notice of Appeal out of time.
4. The proposed amendment and additional grounds of appeal relate to the lower Tribunal’s rejection and/or exclusion of admissible evidence which occasioned a grave miscarriage of justice on the Appellant/Applicant.
5. The Appellant/Applicant in the original Notice of Appeal and Amended Notice of Appeal .appealed against the rejection of only EC8A(i) and did not appeal the rejection of the other documents by the lower Tribunal.
6. That the amendments sought to be made would assist this Honourable court in effectively determining all the issues in controversy in this appeal.

The application is supported by an affidavit of ten paragraphs dated 7th and filed along with the motion on 7th January, 2010. On 26th January, 2010 a further and better affidavit of eleven paragraphs was also filed by the Applicant in reply to the counter affidavit which contains four paragraphs, filed by the 1st & 2nd Respondents. Also annexed to the application is an Exhibit marked “Exhibit 1”. Exhibit 1 is the further amended notice of appeal.

In view of the contentious nature of this application, this Court made an order for written addresses to be filed by and exchanged between parties. The learned senior counsel for both parties complied with the said order.

On the 8th of March, 2010 when the application came before this Court for hearing, the learned senior counsel for the Applicant, A.O Alegeh SAN identified the Applicant’s written address in support of the application dated 14th January, 2010 filed on 15th January, 2010, and the reply written address which was filed along with a further and better affidavit on 26th January, 2010. All these processes were adopted and relied upon by the Applicant’s learned senior counsel.

It was submitted for the Applicant that he has a right of appeal to the Court of Appeal from the Tribunal as conferred by Section 246(1) of the Constitution of Nigeria. The exercise of this right of appeal includes the right to amend and supplement his existing Notice and Grounds of Appeal.

It is a well settled principle of law that an appeal against wrongful rejection of admissible evidence is taken as an appeal against the final judgment on the basis that the rejection of the admissible evidence has adversely affected the appellant in the final judgment. On this legal position, reliance was placed on the provisions of Section 227 of the Evidence Act and the cases of:

(1) Aregbesola v. Oyinlola (2009) 14 NWLR (Pt.1162) p. 429;

(2) Nwobodo v. Onoh (1984) 1 SCNLR 1;

(3) Onwe v. Oke (2001) 3 NWLR (Pt.700) P. 405; and

(4) Ochei v. Isichei unreported Appeal No. CA/A/143/07 delivered on 17th March, 2009.

In the original Notice of Appeal and Amended Notice of Appeal the Applicant appealed against the rejection of Form EC8A(i) only but inadvertently did not appeal against the rejection of the other documents, that is, Forms EC8B(i); EC8D(i); EC8E(i) and Applicant’s Certificate of Return of House of Assembly Election which were tendered and also rejected by the Tribunal at the same time. It was only recently when the Applicant retained the firm of Alegeh & Co. and upon review of the processes, that this error was discovered. The aim of this application is to rectify the error so that the grounds of appeal can fully capture the issues arising for determination in the Applicant’s appeal and enable this Court effectively determine all the issues in controversy.

It was further argued in favour of the Applicant that the two proposed grounds raise substantial and arguable grounds of appeal. And they are germane to the holistic determination of the said appeal. What is more, the current judicial trend is to allow parties ventilate all their grievances and not to allow technicalities to fetter the exercise of the constitutional right of appeal of a party. This is of greater importance in election matters where not only the rights of the parties are in issue but also the rights of the constituents who voted at the election. It was pointed out that even the rules of courts do not limit any time period for amendment of processes or filing of additional grounds of appeal.