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WHERE COUNSEL SAYS THERE IS MOTION FOR APPEAL, BUT MOTION NOT BEFORE JUDGE

Dictum

What the appellant’s counsel said was that they could not proceed because it is impossible for them to go on without the amendment and that there is an appeal and that they wanted the case to be stood down. Where a counsel says that there is a notice of appeal and a motion for stay of proceedings, the only option for the trial court is to stand down the case so that it could be checked at the court registry if there is notice of appeal and a motion for stay of proceedings. If there is a motion for stay of proceedings, it is incumbent on the trial court to take the motion and it is after he had refused the application that he can call on the defence to go on with their defence.

— Opene JCA. United Bank for Africa (UBA) v. Samuel Igelle Ujor (CA/C/134/99, 20 FEB 2001)

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COURT MUST RULE ON ALL APPLICATIONS BEFORE IT

In Ani V. Nna & Ors. (1996) 4 NWLR (Pt.440) 101 @ p. 120, this Court had per Niki Tobi JCA., succinctly observed inter alia thus: “A Court of law and indeed a Court of equity has neither jurisdiction nor discretionary power not to take a process before it, whatever may be its pre-trial opinion on it. The process may be a downright abuse of the judicature as an institution or judicialism. It may be stupid, reckless, irregular, aberrant or unmeritorious; the Court must hear it and rule on it.”

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AMENDMENTS ARE NOT ALLOWED TO ELECTION PETITION AFTER FILING PARTICULARLY WHEN THE 21 DAYS PERIOD HAVE ELAPSED; EXTENSION OF TIME ARE PROHIBITED TOO

In OKE & ANOR v MIMIKO & ORS (2013) LPELR 20645(SC), the Apex Court, per Ogunbiyi, JSC held that: ‘By Paragraph 4(1) and (5) of the 1st Schedule to the Electoral Act, a composite analysis of an election petition has been spelt out and also a list of materials which must be accompanied. The use of the word “shall” in the subsections is very instructive, mandatory and conclusive. In other words, the provisions do not allow for additions and hence, the procedure adopted by the appellants in seeking for an extension of time is nothing other than surreptitious attempt to amend the petition. This is obvious from the nature and substance of the application especially where one of the grounds seeks to put in facts which were allegedly not available at the time of filing the petition but only came into their possession after the statutory time limit allowed for the presentation of election petition. Expressly, there is no provision in the legislation which provides for extension of time. What is more, vide paragraph 14(2) of the 1st Schedule to the Electoral Act, the Appellants by Section 134(1) of the Electoral Act had been totally foreclosed from any amendment which was in fact the hidden agenda promoting the application. The saying is true that even the devil does not know a man’s intention; it can only be inferred from the act exhibiting that which is conceived in the heart and mind. The use of the word “shall” in paragraph 14(2)(a) of the 1st Schedule to the Electoral Act is mandatory and places a complete bar on any form of amendment to a petition filed and does not also allow for an exercise of discretion whatsoever. See UGWU v ARARUME (2007) 12 NWLR (Pt. 1048) 367 at 510 511 and BAMAIYI V A.G FEDERATION (2001) 12 NWLR (Pt. 727) 428 at 497. Further still and on a critical perusal of the application, relief 2 seeks “leave to call additional witness, to wit A.E.O”. It is pertinent to restate that at the close of pleadings parties had submitted the list of witnesses who were to testify together with their depositions. The idea, purpose and intention of the application is suggestive of nothing more but a clear confirmation seeking for an order of an amendment as rightly and ingeniously thought out by the trial tribunal and also affirmed by the lower court. This will certainly violate the provisions of Section 285(5) of the Constitution and Section 134 of the Electoral Act.’

In his concurring judgment in the same case, Ngwuta, JSC specifically stated that: ‘The additional or further witness depositions sought to be allowed for a just and fair determination of the petition are fresh facts as found by the tribunal and which finding was endorsed by the lower court. This Court will not interfere with a concurrent finding of fact of the two lower courts when the appellants have failed to show a special circumstance for this Court to do so. Election petitions are time-bound and the Court will not allow a party to resort to any sort of subterfuge to frustrate the intention of the Electoral Act that petitions be disposed of expeditiously.’

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A TRIBUNAL HAS A LEGAL DUTY TO DECIDE ALL APPLICATIONS FILED BEFORE IT

A court of law or a tribunal has a legal duty in our adjectival law to hear any court process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of court process. The court must hear the Party or parties and rule one way or the other. A Judge, whether of a court of law or tribunal, has no jurisdiction to come to a conclusion by resorting to his wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a Judge in our adversary system of adjudication. The failure on the part of the learned tribunal to hear the motion of the 1st appellant filed on 1st May 1999 is against the provisions of section 33(1) of the 1979 Constitution on fair hearing, and particularly the natural justice rule of audi alteram partem. See generally Otapo v. Aunmonu (1987) 2 NWLR (Pt.58) 587; Onwumechili v. Akintemi (1985) 3 NWLR (pt. 13)504; Adene v. Dantumbi (1988) 4 NWLR (pt. 88) 309; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Alfa v. Atanda (1993) 5 NWLR (pt. 296) 729.

— Niki Tobi, JCA. Nnamdi Eriobuna & Ors. V. Ikechukwu Obiorah (CA/E/77/99, 24 May 1999)

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APPLICATION FOR EXTENSION OF TIME MUST BE BACKED UP BY GOOD AND SUBSTANTIAL REASONS

By the provisions of Order 2 Rule 31 of the Supreme Court Rules both facts in the affidavit, i.e. good and substantial reasons for failure to appeal within the prescribed period; and grounds of appeal which prima facie show good cause why the appeal should be heard must co-exist for the application to succeed. An application for extension of time to appeal would succeed no matter how long after it is brought provided there are good and substantial reasons for the delay. Once a genuine ground on jurisdiction is the reason for the appeal, good and substantial reasons for the delay are no longer necessary.

— O. Rhodes-Vivour, JSC. Francis v. FRN (2020) – SC.810/2014

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WHERE A MOTION SEEKS TO TERMINATE VS ONE SEEKING TO CURE DEFECT

It is pertinent to observe that there is an order of precedence for hearing motions or applications before the court. Where a motion or application seeks to terminate an action on account of irregularity and the other one seeks to cure the defect, it is the duty of the court to hear the later first see:- Nalsa and Team Associates v. N.N.P.C. (1991) 11 SCNJ 5; Consortium M.C. 3632, Lot 4 Nigeria v. National Electric Power Authority (1991) 7 SCNJ 1.

— Opene JCA. United Bank for Africa (UBA) v. Samuel Igelle Ujor (CA/C/134/99, 20 FEB 2001)

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