Chief E.A. Lamai V. Chief M.c.k. Orbih (1980)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C.

This is an application by the appellant for an order –

“(i)Granting leave to appeal from the order of the Honourable Justices J. Omo-Eboh; and Nnaemeka-Agu, JJCA., (sic) made on 18th day of May, 1978 in Suit No. FCA/B/20/77.

(ii)That the Defendant/Appellant/Applicant herein be at liberty to appeal against the said order of the Honourable Mr. Justices J. Omo-Eboh and P. Nnaemeka-Agu JJCA (sic) made on 18th May, 1978, in the said Suit No. FCA/B/20/77 notwithstanding that the time for appealing has expired.”

The respondent had obtained judgment against the appellant in an election petition filed in the Bendel State High Court at Auchi. The election of the appellant into a Local Government Council in 1976 was declared invalid by the High Court on two grounds namely that he failed to comply with certain provisions of the Bendel State Local Government Electoral Regulations, 1976 and that he was guilty of corrupt practices. The appellant being dissatisfied with the judgment of the High Court, appealed to the Federal Court of Appeal. His appeal against the findings of the High Court on the issue of corrupt practises and undue influence was allowed, while the appeal on ground of election agency was dismissed by a majority judgment of two (Omo-Eboh and Nnaemeka-Agu, JJCA) to one (Agbaje, JCA).

Not satisfied with the decision of the Federal Court of Appeal which was given on 18th May, 1978, the appellant filed a Notice of Appeal to this court on 1st June, 1978. If the appellant in so doing had acted correctly, his appeal would have been filed within the three months allowed under Section 31 of the Supreme Court Act, 1960. However, as will appear later in this judgment the notice so filed is defective by reason of its being irregular.

Now the affidavit in support of the application before us was sworn to by the appellant. The purpose of making the application is ascertainable from paragraphs 3 to 11 of the affidavit. These paragraphs read:-

“3.That being dissatisfied with the majority decision. I instructed my Solicitors, Messrs J.B. Iyare & Co., to file a Notice of Appeal to the Supreme Court against the said decision.

4.That a Notice of Appeal dated 30th May, 1978, was accordingly filed at the Federal Court of Appeal, Benin City.

5.That since filing the Appeal, my Solicitors, Mr. J.B. Iyare (sic) has been in very poor health and had constantly been (sic) receiving medical treatment outside Bendel State.

6.That I am informed by my afore-mentioned Solicitors that on checking his record after the receipt of the Hearing Notice in this appeal, he discovered that he had inadvertently failed to obtain the leave of the court below to file the appeal in this suit and I verily believe.

7.That I am informed by my afore-mentioned Solicitors that having received a Hearing Notice, the Supreme Court is now seised with the appeal and it will be impossible to obtain leave to appeal from the court below without involving much delay; and I verily believe.

8.That I am informed by my afore-mentioned Solicitor (sic) that unless leave is obtained from the Supreme Court, the said appeal will be incompetent and I verily believe.

9.That I am also informed by my afore-mentioned Solicitors that the reason for the failure to appeal within the prescribed period was due to his erroneous belief that the said appeal was duly filed within the time prescribed by law only to find that leave to appeal was neither applied for nor granted in the court below; and I verily believe.