Mr. Cyril Fasuyi & Ors V. Peoples Democratic Party & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

By a motion on notice dated 24th March, 2017 and filed on the 27th March, 2017, the Appellants/Applicants seek for the following reliefs: –

1. Extension of time within which to seek leave to appeal against the judgment of the Court of Appeal delivered on the 16th May, 2016 in Appeal no. CA/A/296/2015 on grounds other than Grounds of Law alone, in Grounds 3, 4, 5, 6 and 9 of the Applicants notice of appeal filed on the 25th day of July, 2016.
2. Extension of time within which to seek leave to raise and argue new points in this appeal as contained in Grounds 1 and 2 of the Applicants’ notice of appeal filed on the 25th day of July, 2016.
3. Leave to appeal against the judgment of the Court of Appeal delivered on the 16th day of May, 2016 in Appeal No. CA/A/296/2015 on grounds other than Grounds of Law alone in Grounds 3, 4, 5, 6 and 9 of the Applicants’ notice of appeal in this appeal.
4. Leave to raise and argue new points in this appeal as contained in Grounds 1 and 2 of the Applicants’ notice of appeal, which new points have already been

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argued in the Appellants’/Applicants’ brief of argument already filed in this appeal.

5. Extension of time to appeal against the judgment of the Court of Appeal delivered on the 16th May, 2016 in Appeal No. CA/A/296/2015 on grounds other than Grounds of Law alone and on new points raised for the first time in this appeal.
6. Deeming as properly filed and served the Notice of Appeal already filed within time on the 25th day of July, 2016 in this appeal containing the said Grounds of mixed Law and facts and the new points.
7. Deeming as properly filed and served the record of appeal and the Appellants/Applicants’ brief of argument wherein the said Grounds of mixed Law and facts and the new points in Grounds 1 and 2 of their notice of appeal have already been argued.

The grounds upon which this application is made are enumerated immediately after the prayers as follows: –

1. That Grounds 3, 4, 5, 6 and 9 of the Appellants/Applicants Notice of Appeal raise question of mixed law and facts.
2. Grounds 1 and 2 of the Appellants/Applicants Notice of Appeal are new issues which did not arise at the Court of Appeal and are

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sought to be raised by the Appellants/Applicants’ for the first time before this Honourable Court.

3. The new points of law sought to be raised are substantial and no additional evidence would be adduced in support of the new points.
4. The said Grounds of mixed law and facts have already been argued in the Appellants/Applicants’ Brief of Argument.
5. The said new issues in Grounds 1 and 2 of the Appellants’ Notice of Appeal have already been argued in the (sic) as issue No. 1 in the Appellants/Applicants’ Brief of Argument.
6. The Appellants/Applicants’ require leave of this Honourable Court to file and argue Grounds of mixed Law and facts.
7. The Appellants/Applicants’ require the leave of this Honourable Court to raise and argue the said new points before this Honourable Court.
8. A refusal to grant leave to appeal on Grounds of mixed Law and facts and to argue the fresh points would occasion grave miscarriage of justice to the Appellants/Applicants’.
9. The Appellants/Applicants’ also require a deeming order validating the already filed Notice of Appeal and the already compiled Record of Appeal and filed Brief of Argument

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based on the Ground of mixed Law and facts and the new points.

10. The Appellants/Applicants’ had indicated in their Brief of Argument that they would bring an application seeking leave of the Honourable Court to argue the new points.

This motion is supported by a twenty-two paragraphs affidavit deposed to by one Chukwudi Maduka, a lawyer in the law firm of Gordy Uche (SAN) & Co. There is also a further affidavit in support of this motion dated and filed on the 22nd September, 2017, Annexed to the further affidavit are the judgment of the trial Court, a notice of appeal against that judgment to the Court of Appeal and the notice of appeal against the judgment of the Court of Appeal which are marked Exhibits A, B, C and D respectively.

In reaction to the Appellants/Applicants’ motion on notice, a forty-one paragraphs counter affidavit deposed to by Doyinsola Alege, a legal practitioner in the law firm of Messrs Ahmed Raji & Co. was filed on the 20th September, 2017 on behalf of the 3rd Respondent. The 1st and 2nd Respondents did not react to the Appellants/Applicants’ motion on notice. Annexed to the counter affidavit is a copy of the

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affidavit of one Chief Ayo Fabuyide which is marked Exhibit A.

Now issues having been joined, the parties in line with the relevant rules of this Court submitted written briefs of argument. The Applicants’ brief of argument was filed on the 27th March, 2017 along with the motion on notice. Mr. Gordy Uche learned senior counsel for the Applicants submitted one issue for determination of this application as follows: –