Nigeria has since 1999, practiced an unbroken system of what can in principle, be likened to be a Democratic system of government and with all its attributive features, one of such characteristics that cannot be denied existence in Nigeria, is its periodic holding of elections.

Although these elections may not have in any form, satisfied the ideals of a process akin to a democracy. Minded of these shortfalls, the Nigerian Constitution of 1999 as amended, in S.285 created the Election Petition Tribunals for the purposes of settling grievances that may have arose during the elections.

Complimenting the true spirit of the African system, our courts were and are still not immune to slow and sluggish nature in the dispensation of justice. Adjudication of pre-election and post election matters were unreasonably elongated and in most times, decided at the dead end of the tenure of the occupant of that office. It is for these reasons and many more that the Constitution provided a time frame in order to cure the defects in the justice system specifically, post election matters and more recently, pre-election related matters.

By Section 285(5)(6) of the Constitution, as amended

“An election petition shall be filed within 21 days after the date of the declaration of results of the election.

An election tribunal shall deliver its judgment in writing within 180 days from the date of filing of the petition”

The purport and spirit of the above provisions is to give timeliness and orderliness to election petition matters which are time-bound and by their very nature, sui generis. It is to forestall unnecessary applications that will clog the case and bring tactical delays and extemporaneous procrastinations from the adverse party. See INEC v Yusuf (2020) 4 NWLR (Pt.1714)374SC.

It is not an uncommon practice in procedural law that while pleadings are being settled, a party may inadvertently omit a fact or set of facts and or documents which may be of great use to his or her case as a plaintiff succeeds on the strength of his case. See Onyero v. Nwadike (2011)18 NWLR (Pt.1279) 954 @ 975.

The general rule of pleadings is that once the appropriate applications are sought, an amendment can be made by a party at any stage of the trial but before judgment and in some extreme circumstances, even on appeal. See Edoigiawerie v. Aideyan (2006) 10 NWLR (Pt. 988) 438 @ 449. It is important to note however that an amendment may be refused where:

it would present a completely different case, or cause injustice to the other party or where application for amendment is brought mala fide;
it will necessitate the hearing of further evidence especially on appeal;
it would amount to over-reaching the other party or an abuse of court process;
it would not cure the defects where the procedure ought to be cured or where it is inconsistent and useless.
The general principle of pleadings that amendment can be made by a party at any stage of trial before judgment does not apply to election petition matters they, being matters of a special specie. Thus where a party is desirous of making any amendment, same must be done within the time frame as provided for in Section 285(5) of the Constitution, Section 134(1) of the Electoral Act and paragraphs 4(1)(2)(5) and 14(1) and (2) of the First Schedule to the Electoral Act, 2010 as amended.

The above being so, what then is the law with regard to amendment in an election petition matter after the expiration window within which to present a petition?

in INEC v. Yusuf (supra) it was held that on the rules guiding amendment of election petition and reply thereto are that by virtue of paragraph 14(1) of the First Schedule to the Electoral Act and subject to sub-paragraph (2) of the paragraph the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or reply to an election petition as if for the words “any proceedings” in those provisions there were substituted the words “the election petition or reply”. Equally, after the expiration of the time limited by section 134(1) of the Electoral Act for presenting the election petition, or by paragraph 12 of the schedule for filing the reply thereto, no amendment shall be made:

introducing any of the requirements in subparagraph (1) of paragraph 4 of the Schedule not contained in the original election petition filed, or
effecting a substantial alteration of ground for, or the prayer in the election petition, or
except anything which may be done under the provisions of subparagraph (2)(a)(ii) of the paragraph, effecting a substantial alteration of or addition to the statement of facts relied on to support the ground for or sustain the prayer in the election petition; or
alleging that the claim of the seat or office by the petitioner is incorrect or false; or
except anything which may be done under the provisions of subparagraph (2)(a)(ii) of the paragraph, effecting any substantial alteration in or addition to the admissions or the denials contained in the original reply filed or to the facts set out in the reply.”
By paragraph 4(1) of the First Schedule to the Electoral Act, what should ordinarily form the contents of an election petition were laid down and for ease of reference, are herein under reproduced.

The said paragraphs states that an election petition shall-

specify the parties interested in the election petition;
specify the right of the petitioner to present the election petition;
state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief(s) sought by the petitioner.
On documents that must accompany election petition, an election petition shall be accompanied by-

a list of the witnesses that the petitioner intends to call in proof of the petition;
written statements on oath of the witnesses; and
copies or list of every document to be relied on at the hearing of the petition.
Thus, a collective reading of section 134(1) of the Electoral Act which has been enacted as section 285(5) of the Constitution, paragraphs 4(1) and 14(1) and (2) of the First Schedule to the Electoral Act would prohibit an amendment if there is any alteration to the petition which affects the contents of the petition as laid out in paragraph 4(1). Simply put, an amendment sought after the expiration of the time frame within which to present petition will be refused especially so, if the said amendment will alter the content of the petition or reply. see Chief Alex Olusola Oke & Anor v. Dr. Rahman Olusegun Mimiko & Ors (2014)1 NWLR (Pt.1388) 225. The corollary to this is that the amendment will generally be allowed provided the alteration is not as to substance of the grounds upon which the petition is brought. This is so because election petitions being sui generis, time is of essence. Because of the time constraints, minor clerical or typing mistakes, that are quit innocuous, are bound to be made.

In Yusuf’s case above, the issue for determination was “whether the Court of Appeal was right in holding that adding names of witnesses whose depositions were already front-load with the petition and were before the Tribunal to the list of witnesses did not amount to amendment of the petition within the purview of the 1st Schedule to the Electoral Act, 2010(as amended).

The facts are that the 1st respondent was the candidate of the 2nd respondent in the 2019 Governorship Election held in Kano state on the 9th and 23rd of March, 2019 respectively. Being dissatisfied with the result of the election declaring the 3rd respondent as winner, the 1st and 2nd respondents filed a petition before the trial tribunal challenging the outcome of the said election. After the exchange of pleadings and during the pre-hearing session, the 1st and 2nd respondents filed an application seeking the leave of the Tribunal to add to the list of witnesses the names of 8 witnesses, whose witness statements accompanied the petition but the names were omitted in the list of witnesses. The 1st and 2nd respondents by the said application were seeking to amend the list of witnesses filed along with the petition. Perceiving the application to be a flagrant violation of the provisions of paragraphs 4(5)(i) and 14 of the First Schedule to the Electoral Act, the appellant challenged the competence of the application as being grossly incompetent and un-grantable by the trial Tribunal and in a well considered ruling, the trial Tribunal, refused the application.

On appeal, the Court of Appeal allowed the appeal and set aside the decision of the trial Tribunal by granting the application of the 1st and 2nd respondents. Being dissatisfied with the judgment of the Court of Appeal, the appellant appealed to the Supreme Court.

Unanimously dismissing the appeal, the court Per EKO, J.S.C at page 413, paras B-F held “I think it amounts to appealing to arcane technicality, intended to defeat the doing of substantial justice, for me to subscribe to the argument or contention of the appellant…, that after the close of pleadings in an election petition, the petitioner, who had frontloaded a witness deposition on oath and had duly served same on each respondent, cannot be allowed an innocuous amendment to have the same witness formally listed in the list of witnesses… I agree that this is not a prohibited amendment and that the proposed amendment was not intended to substantially alter the case of the petitioners. By the proposed amendment, the petitioners do not intend “to bring in facts that were not available to them at the time of filing the petition” and after the close of pleadings…”

The point that can be gleamed from the authority afore cited and to which this piece agrees in all fours is, amendments in an election petition are sparingly granted especially so where the amendment will substantially affect the content of the petition as envisage by sections 285(5) of the Constitution, 134(1) of the Electoral Act, paragraphs 4(1)(2)(5) and 14(1) and (2) of the First Schedule to the Electoral Act, 2010 as amended. However, an amendment will generally be allowed notwithstanding the fact that it is outside the constitutional time frame provided the alteration is not as to the substance of the grounds upon which the petition is brought.

L. G Jamala, Esq, Tuduru U. Ede, SAN & Co Port Harcourt, Rivers State.