Barr. Bede Johnson Nwali V. Simon Ngaji Nwodo & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Ruling)

The motion on notice dated 18/6/2009 and filed on 19/6/2009, before this Court was brought by the Respondent/Appellant/Applicant pursuant to Order 6 Rule 4 and Order 19 Rules 2 and 3(1) of the Court of Appeal Rules 2007, Inherent Jurisdiction under S. 6 of the 1999 Constitution and Paragraph 51 of the 1st Schedule to the Electoral Act 2006. The Respondent/Appellant/Applicant, humbly prays for the following in the motion in question:-

“1. For an Order granting leave to the Respondent/Appellant/Applicant to amend his original Notice of Appeal dated and filed on 15/12/2007 in the above appeal as contained at pp. 273 to 276 of the record (copy whereof is herewith filed and marked “Exhibit OJ1” hereto) in terms of the following:-

SCHEDULE OF AMENDMENT

[The details or particulars of the amendment to be effected are duly set out in the Schedule].

2. For an Order granting LEAVE to the Respondent/Appellant/Applicant to file and rely on six additional grounds of appeal numbered Additional Grounds (3) to (8) as contained in the document titled “PROPOSED ADDITIONAL GROUNDS OF APPEAL” copy whereof is herewith filed and marked “Exhibit OJ2”.
3. For an Order granting LEAVE to the Respondent/Appellant/Applicant to amend his Appellant’s Brief of Argument dated 31/1/2008, and filed on the same date in the above appeal, by substituting therefor an Amended Appellant’s Brief of Argument in terms contained (mutatis mutandi) in the document titled “Proposed Amended Appellant’s Brief of Argument” copy whereof is herewith filed and marked “Exhibit OJ3”.
4. For an Order granting LEAVE to the Respondent/Appellant/Applicant to withdraw forthwith the purported AMENDED NOTICE OF APPEAL dated, and filed on, 31st January 2008 for being incompetent;
5. For an Order granting LEAVE to the Respondent/Appellant/Applicant to amend his original NOTICE OF APPEAL by filing an Amended Notice of Appeal in terms contained (mutatis mutandi) in the document titled “Proposed Amended Notice of Appeal” incorporating therein the proposed amendments referred to in prayer 1 supra, and also the proposed additional grounds of appeal referred to in prayer 2 supra as contained in the document copy whereof is herewith filed and marked “Exhibit OJ4”.
6. For an Order granting LEAVE to the Respondent/Appellant/Applicant to rely on the arguments contained in the “Proposed Amended Appellant’s Brief of Argument” based on issues distilled from all the grounds of appeal contained in the “Proposed Amended Notice of Appeal” referred to in prayer 5 supra.”

The grounds of the application as set out in the motion paper read thus:-

“(i) On 31/1/2008 the Appellant’s Brief of Argument dated 31/1/2008 was filed in the above appeal within the period specified in paragraph 5 of the PRACTICE DIRECTION NO. 2 OF 2007.

(ii) On or about the same date aforesaid the Respondent/Appellant/Applicant purportedly filed in the above appeal a document dated 31/1/2008 titled “AMENDED NOTICE OF APPEAL” without obtaining prior leave of the Court.

(iii) Arguments canvassed in the said Appellant’s Brief of Argument were based on issues distilled from the original grounds of appeal contained in the original Notice of Appeal as well as the purported additional grounds of appeal contained in the said purported Notice of Appeal specified respectively supra.

Prior leave of the Court of Appeal was neither sought nor obtained before advancing the said arguments in the said Appellant’s Brief.

(v) By a Notice of Motion dated, and filed on, 31/1/2008 the Respondent/Appellant/Applicant prayed inter alia for Leave to regularize, and to deem as properly filed and served, the said Appellant’s Brief and the said purported Amended Notice of Appeal.

(vi) The said pending Notice of Motion was fixed for argument on 20/5/2008 by virtue of Hearing Notice.

(vii) On 20/5/2008 the matter was adjourned to 5/6/2008 for non-service of Hearing Notice on

Respondents/Respondents/Respondents.