Court Grants leave to Nsima Ekere to Amend Clerical Errors on His Petition
Today, May 30, 2019, the court granted leave to Nsima Ekere to Amend Clerical Errors on His Petition. Recall that on May 28, 2019 the petitioner, Obong Nsima Ekere had brought a motion praying the court for leave to amend his Petition by replacing the word “and” with the word “or” on the petition. It was their prayer that the error sort to be corrected was a mere clerical error without more and as same did not mislead the Respondents in preparing their defence.
This prayer was opposed by the Respondents who contentended that the time reserved for the amendment by the law had elapsed and further that amending the petition would be to substitute in substance a fresh petition, out of time.
By section 285(5) of the Constitution of the Federal Republic of Nigeria, an election Petition is to be filed within 21 days after the date of the declaration of a winner at the elections. Paragraph 14(1)(2) of the 1st Schedule of the Electoral Act, 2010 (as amended) provides further that no amendment to an electoral petition shall be entertained by the Tribunal after the time reserved by the Constitution for filing a petition (21 days after the declaration of the winner of an election) where such amendment will altar the nature and character of the petition.
In this case, the petitioner, Obong Nsima Ekere sought to amend the word “and” for “or” in the drafting of his grounds of appeal. Section 138(1)(a-i) of the Electoral Act provides grounds on which a petitioner can come to court. The law is that some of this grounds cannot be pleaded conjunctively in a single petition. Example: a Petitioner cannot in one petition say that an election was invalid on grounds of corrupt practices and at the same time say that the Respondent, winner of the election did not win the election by the majority of lawful votes at the elections. The effect of such combination would be to render the petition incompetent. This is principally because of the difference in effect of reliance on both grounds; if the election is invalid, the relief obtainable is a cancellation of the elections and an order of a re-run while a declaration that the Respondent did not win by majority of lawful votes cast at the election would possibly attract the effect of the candidate with the highest number of votes being declared winner by the court. As the court cannot both declare an election invalid and at the same time produce a winner from such invalid process, the law is that such grounds cannot be combined or pleaded conjunctively.
The court in her considered opinion held that the mistake is merely clerical and would not in any way affect the petition. Consequently, the court granted the petitoner leave to correct the mistake to facilitate a speedy dispensation of Justice in the case. The court stated that since the amendment would not affect the petition in any way, it is only needful to grant petitioner’s application.