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APPLICATION WITH NO BACKING OF LAW IS AN ABUSE OF PROCESS

Dictum

An application that has no backing of law would ordinarily seem or appear to be an abuse of Court’s process: R-BENKAY (NIG.) LTD. v. CADBURY (NIG.) LTD. (2012) 3 SC. (pt. 3) 169; (2012) 9 NWLR (pt. 1306) 596. — E. Eko, JSC. Francis v. FRN (2020) – SC.810/2014

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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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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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DISTINCT MOTION IS NOT ABUSE OF COURT PROCESS

In Mobil Production Nigeria Unlimited v. Monokpo (2003) 18 NWLR Part 852 at Page 346 at 430 – 431, it was held among others that:- “Filing of two motions which do not necessarily seek the same or similar reliefs, though in the same case between the same parties would not amount to an abuse of the process of the Court.”

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MOTION THAT SAVES PROCEEDING SHOULD BE HEARD FIRST

It is a settled principle of practice that where there are two motions before the court requiring to be heard, the interest of justice demands that the motion, the determination of which would save the substantive action, should first be heard. See Abiegbe and 2 ors. v. Ugbodume (1973) 1 ALL NLR 52; (1973) 1 SC 133; Nalsa and Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652 at 676; Long John v. Black (1998) 6 NWLR (Pt. 555) 524 at 550.

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

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A COURT IS BOUND TO RESOLVE ALL APPLICATIONS BEFORE IT

It is trite that when a matter is before a court, that court is bound to hear and determine all applications or issues brought or raised before it by litigants: Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Brawal Shipping (Nig.) Ltd v. Onwadike Co. Ltd (2000) FWLR (Pt. 23) 1254, (2000) 79 LRCN 2348 SC.

— Danjuma, JCA. Tony Anthony Nig. Ltd & Ors. v. NDIC (CA/L/630/2009 • 25 January 2011)

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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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