Saheed Rahuf Kekere-ekun V. Monsuru Alao Owolabi And 160 Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA BOLNA’AN DONGBAN-MENSEM J.C.A.: (Delivering the Leading Judgment)

The application filed on the 10th April 2008 and argued before us on the 12th day of May 2008 seeks the following reliefs:-

“(1) AN ORDER allowing the Appellant to amend the grounds of appeal in the Notice of Appeal herein in terms of Exhibit “B” to the Affidavit hereto titled “Proposed Amended Grounds of Appeal;

(2) AN ORDER deeming as having been properly filed and served the Amended Grounds of Appeal already filed herein;

(3) AN ORDER for extension of time within which the Appellant/Applicant may file and serve his Appellant’s Brief of Argument herein;

(4) AN ORDER deeming the Appellant’s Brief of Argument already filed herein as having been properly filed and served; AND SUCH FURTHER and/or other Order or Orders as may seem fit in the circumstances”.

The application has, filed in its support, an affidavit of nine (9) paragraphs to which are annexed four exhibits marked A – D. Special reliance is placed on paragraphs 3 – 7 which paragraphs convey the reasons for the amendment.

When the learned senior Counsel for the Applicant Mr. B.A.M. Fashanu introduced the subject, his learned brother in silk, Prof. Osipatan indicates his reservation about the 1st prayer which seeks an amendment of the grounds of appeal.

The learned senior Counsel for the Applicant cites order 6 Rule 4 of the Court of Appeal Rules 2007 and Rule 51 of the Rules of Procedure of the Electoral Act 2006 as the guo-warranto of the relief sought in prayer one; for amendment of the grounds of appeal. Also cited in support of the application is the case of Solanke Vs Somefun (1974) 1 SC 141. The learned senior Counsel later forwarded additional authorities after the matter was adjourned for Ruling. These are: –

(1) Densa Eng. Works Ltd. Vs U.B.N. Plc. (1999) 1 NWLR (PT.585) 162

(2) Femi Ikuomola Vs Alh. Ganiyu Alani Ige and 3 Ors (1992) 4 NWLR (Pt236) Pg.511 @ 520H (CA)

(3) University of Lagos Vs Aigoro (1984) A.N.L.R 394 @ 416 (SC) and Page 89 of the eighth Edition of Black’s Law Dictionary in which the definition of amendment by substituting was highlighted.

It is the submission of the learned senior Counsel that an amendment can be by substitution not merely by adding, altering and subtraction and that when an amendment is done, it dates back to the date of filing the process. The learned senior Counsel urged us to jettison technicality and determine the appeal on the merit by allowing the substitution of the grounds of appeal.

It was also the submission of the learned senior Counsel that the appeal was filed within time therefore, a refusal of this application will not affect the appeal.