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Home » Nigerian Cases » Supreme Court » Chief Cyprian Chukwu Vs Celestine Omehia & Ors (2012) LLJR-SC

Chief Cyprian Chukwu Vs Celestine Omehia & Ors (2012) LLJR-SC

Chief Cyprian Chukwu Vs Celestine Omehia & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The Appellant/Applicant by a Motion on Notice filed on 23/3/12 prayed this Court for the following reliefs:-

  1. AN ORDER of this Honourable Court enlarging time within which the Appellant/applicant may seek leave to appeal against the ruling of the Court of Appeal in CA/A/299/M/2011 delivered on the 20th of December, 2011.
  2. AN ORDER of this Honourable Court granting the Appellant/Applicant herein leave to appeal against the ruling of the Court of Appeal, Abuja Division in CA/A/299/M/2011 delivered on the 20th of December, 2011.
  3. AN ORDER of this Honourable Court extending the time within which the Appellant/Applicant may appeal against the ruling of the Court of Appeal, Abuja Division in CA/A/299/M/2011 delivered on the 20th of December, 2011.

The grounds for the application are thus:

  1. The ruling of the Honourable Court of Appeal, against which the Appellant/Applicant is seeking leave to lodge on appeal (which allowed the 1st Respondent to appeal against the decision of the Federal High Court, Abuja per Kafarati J in FHC/ABJ/CS/656/2010 was delivered on the 20th of December, 2011.
  2. Being dissatisfied with the ruling, the Appellant/Applicant herein prepared its proposed Notice of Appeal annexed herein as Exhibit CY 2.
  3. The said proposed Notice of Appeal comprises grounds other than of law.
  4. The Appellant/Applicant had filed a similar application at the Court of Appeal on the 20th of March, 2012.
  5. The said application at the Court of Appeal is now spent, having remained pending outside the time allowed by the Rules of the Court for such an application to be considered by the Court of Appeal.
  6. That there is thus a need to seek and obtain the leave of this court to appeal against the said ruling as presently constituted.

On the 22nd day of May, 2012 date of hearing, learned counsel for the Appellant/Applicant, Mr. Jolaawo referred to their 16 paragraph affidavit with four exhibits and also their Brief filed on 23/3/12. He contended that the Counter-Affidavit of the 1st Respondent should be struck out for incompetence same not being in keeping with Section 1 of the Oath’s Act and section 115(1) of the Evidence Act since the attestation clause was missing. Also that the 1st Respondent’s Brief based on that defective affidavit should be struck out.

Responding, Mr. Ezike of counsel for the Respondent regretted the omission in their counter affidavit filed on 3/4/12 and said it was only a matter of form which should not vitiate the process. He referred to their Brief of the 1st Respondent and urged the court to dismiss the application which failed to include crucial documents.

Mr. Lateef Fagbemi SAN, learned counsel for the 3rd Respondent said he was not opposing the application. That where time had expired at the Court below, that court lacks jurisdiction and the proper thing is to approach the Supreme Court.

The 2nd and 4th Respondents were absent and not represented even though served with hearing notices and the motion papers.

It seems to me necessary to state below a background briefly though of the facts leading to this Motion. They are as follows:-

BACKGROUND:

The 3rd Respondent herein was declared the lawful candidate of the 4th Respondent (PDP) in the 14th April 2007 gubernatorial elections in Rivers State by the Supreme Court on the 25th October, 2007. In Amaechi v. INEC (2008) 6 WRN 1 at 7, with the full reasons of the said judgment being given per Oguntade JSC (as he then was) on the 18th January, 2008 in Amachi v. INEC (2008) 5 NWLR (Pt. 1080) SC 227.

By virtue of the said judgment Celestine Omehia who had hitherto occupied the office of governor on the strength of the Peoples Democratic Party’s victory at the 2007 elections as its “duly” elected candidate, was ordered to immediately vacate the seat and that the Appellant herein be sworn in forthwith as governor of Rivers State.

Meanwhile, in 2011, the 2nd Respondent (INEC) herein having failed to include Rivers State amongst the states of the Federation wherein general elections for the seat of the governor would take place in accordance with the rest of the country on 26th April, 2011, the Appellant/Applicant brought suit NO. FHC/ABJ/CS/656/2010 at the Federal High Court, Abuja to seek for the determination of, inter alia, the date when the Rivers State gubernatorial election should be conducted in 2011.

At the conclusion of hearing, the trial court delivered its judgment in favour of the Appellant/Applicant as Plaintiff , granting all the reliefs sought to the effect inter alia that the tenure of office of the 3rd Respondent terminated, in the eyes of the law on the 28th of May, 2011 that he was not therefore entitled to remain in office beyond the said date, and consequently ordered that gubernatorial elections be conducted in Rivers State on the same date and at the same time when Governorship elections were scheduled to be held for the purpose of electing successors to the office of governors in all other states of the Federation whose current tenure was due to expire on 28th May, 2011.

Following the judgment of the trial Court, the 2nd Respondent (INEC) conducted the gubernatorial election in Rivers state with other states of the federation, wherein the 1st Respondent also participated and contested against the 2nd Respondent but lost.

Having lost the said election, the 1st Respondent filed a Motion on Notice on 27/05/2011 to seek the leave of the Court of Appeal to appeal as interested party against the judgment of the Federal High Court.

Counter processes were filed and issues joined on the said application.

On the 20th of December, 2011, the Court of Appeal delivered its ruling in favour of the 1st Respondent, granted leave to appeal as an interested party.

The Appellant/Applicant being dissatisfied with the ruling intended to lodge an appeal against same.

The Appellant therefore prepared a proposed Notice of Appeal and filed an application to seek leave of the court of Appeal to appeal against the ruling on the 20th of March 2010, being a ruling bordering on the exercise of the Court’s discretion and appeal based on grounds other than law.

The said application is now spent at the Court of Appeal, having been pending beyond the time allowed by the Rules of court for such to be taken, hence, the filing of this application at the registry of this Honourable Court and need to apply for extension of time to seek such leave.

The reason the application for leave was filed out of the time allowed by law is as result of a mistake of counsel.

Therefore, extension of time to seek the leave of this Honourable Court to file the appeal and extension of time to file the appeal is now imperative to file a valid notice of appeal before this court, against the said ruling.

The copy of the proposed notice of appeal attached hereto as Exhibit CT2 raises competent, recondite and arguable issues of law for determination of this Honourable Court.

The record of appeal is being compiled for the purpose of transmission to this Honourable Court so as to facilitate the quick determination of this appeal if the reliefs sought in this application are granted.

The Appellant in the Brief settled by Rickey Tarfa SAN and filed on 23/3/12 raised a single issue, thus:-

Whether from the facts and circumstances of the instant application, the Appellant/Applicant is entitled to the reliefs sought in his application.

The 1st Respondent in their Brief settled by Mr. James C. Ezike and filed on 3/4/12 formulated also a sole issue which is:-

Whether in the circumstances the prayers sought by the Applicant are grantable.

See also  Inspector Dantalle Mohammed V. Kano State (2018) LLJR-SC

It can be seen that the two issues from the two contending Briefs convey the same message even though differently couched and so the simpler one of the 1st Respondent shall be used by me.

I shall recast verbatim the deposed to affidavit in support and the counter affidavit:-

AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE

I, Banikole Aduloju, Male, Christian, Adult, Nigerian Citizen, Legal Practitioner of No. 2, Libreville Street, Off Aminu Kano Crescent, Wuse II, Abuja do hereby make oath and state as follows:-

  1. That I am a legal practitioner in the firm of Messrs Rickey Tarfa & Co, counsel to the Appellant/Applicant herein by virtue of which I am conversant with the facts of this instant application.
  2. That I have the consent and authority of my employer as well as that of the Appellant/Applicant to depose to this Affidavit.
  3. That I depose to this affidavit from facts within my knowledge except where otherwise stated.
  4. That I know as a fact that the 1st Respondent herein (Celestine Omehia) filed an application at the registry of the court of Appeal on 27/05/2011, wherein he sought for the leave of the Court of Appeal as an interested party against the judgment of the Federal High Court, Abuja in FHC/ABJ/CS/656/2010.

Annexed herein is a copy of the judgment of the Federal High Court in PHC/ABJ/CS/656/2010, and marked as Exhibit CY.

  1. That counter processes were filed by the Respondents (including the Appellant/Applicant herein) and the Court delivered its ruling on the 20th of December, 2011 in favour of the 1st Respondent.
  2. That the Appellant/Applicant applied for and ultimately obtained a certified true copy of the said ruling of the Court on the 19th day of March, 2012. A copy of the said ruling is hereby annexed and marked as Exhibit CY1.
  3. That being dissatisfied with the decision of the Court, the Appellant/Applicant herein subsequently instructed us to appeal to the Supreme Court against the said ruling.
  4. That a Notice of Appeal has consequently been prepared for the purpose of lodging an appeal against the ruling of the Court of Appeal at this Honourable Court.

The said Proposed Notice of Appeal is hereby annexed and marked as Exhibit CY 2.

  1. That the grouse of the Appellant/Applicant in the proposed Notice of Appeal are founded principally on the exercise of the court’s discretion in the determination of the application.
  2. That I also know that the grounds of appeal as contained in the Notice of Appeal include, inter alia, grounds other than of law.
  3. That the Appellant/Applicant’s application for leave to appeal against the said ruling was filed at the Court of Appeal but same is now spent without having been heard.

Annexed herewith is a copy of the application first filed at the Court of Appeal marked as Exhibit CY 3.

  1. That I know that the facts contained in paragraph 11 above have necessitated this application.
  2. That there is a need to seek and obtain the leave of this Honourable Court before an appeal can be properly lodged in the instance of this Appeal.

Annexed herewith is the judgment of the Federal High Court, Abuja in FHC/ABJ/656/2010 marked as

Exhibit CY 4.

  1. That it is in the interest of justice that this application be granted.
  2. That the Respondents would not be prejudiced by the grant of this application.
  3. That I deposed to this affidavit in good faith believing its contents to be true, correct and in accordance with the Oaths Act.

COUNTER-AFFIDAVIT OF THE 1ST RESPONDENT IN OPPOSITION TO THE APPLICANT’S MOTION ON NOTICE DATED 22/03/2012 AND FILED 23/03/2012

I, CELESTINE NGOZICHIM OMEHIA, Male, Adult, Christian, Nigeria, Legal Practitioner of 2A Ikwerre Road, Port Harcourt, Rivers State, do hereby make oath and state as follows:-

  1. That I am 1st Respondent/Party Granted leave to appeal as interested party.
  2. That by the virtue of my position I am fully conversant with the facts of this case.
  3. That I have seen and read the affidavit of Banikole Aduloju Esq. which was deposed to on behalf of the

Applicant on 23rd March, 2012.

  1. That the facts deposed to in paragraph 6, 9, 10, 11, 12, 13, 14, 15 and 16 of the Applicant’s supporting affidavit are neither true nor made in good faith.
  2. That the copies of the ruling of the Court of Appeal delivered on 20/12/11 have long been available and the Applicant alone is to blame if he obtained a copy thereof only on 19/3/12.
  3. That there is pending before the Court of Appeal, an appeal filed by the 3rd Respondent in Appeal No. CA/A/293/2011.
  4. That the 1st Respondent filed and served his own Brief of argument and by motion in that behalf applied to consolidate to the 2 appeals on the same decision.
  5. That it was only after the Applicant was served with my substantial Brief of argument and motion that they hurriedly filed a raft of applications in the Supreme Court and the Court of Appeal.
  6. That the objective of the Applicant is to delay and or abort the hearing of the appeal.
  7. That the Applicant has not placed the proceedings and other relevant records before this Honorable Court.
  8. That the Court below categorically relied on the said facts and record to reach its decision.
  9. That the 1st Respondent will be irreparably prejudiced if this application is granted.

SOLE ISSUE:

Whether in the circumstances the prayers sought by the Applicant are grantable.

In seeking to persuade this Court to grant the application and the reliefs sought, learned counsel for the Appellant/Applicant, Rickey Tarfa SAN stated that the crux of the application is praying for leave of the Court to enable the Applicant appeal against the ruling of the Court of Appeal Abuja Division which allowed the 1st Respondent herein to appeal as interested party against the judgment of the Federal High Court, Abuja wherein the 1st Respondent was not a party in same court.

That in accordance with the Rules of the Court of Appeal, the Applicant had filed an application to seek leave of the Court to lodge their appeal, but same is now spent, having remained pending outside the time allowed by the Rules of the Court of Appeal for such an application to be considered by same. He referred to Exhibit CY 3 annexed to the application. He stated on that it is trite that where an application of this nature is spent at the Lower court, the Lower Court would lack jurisdiction to entertain same being spent. That thereafter the law allows the applicant to approach the Supreme Court with a similar application and that is what the Applicant has now done.

Senior Counsel went on to say that the grant of an application for enlargement of time within which to appeal is within the discretion of the court and that numerous authorities have posted that such a discretion must be exercised judiciously and judicially. He cited the case of N.I.W.A. v. S.P.D.C. Nig. Ltd (2008) 13 NWLR (Pt.1103) 65.

He stated further on behalf of the Applicant that by the nature of the ruling of the Court of Appeal seeking to appeal against and the grounds of the Appeal as contained in the proposed Notice of Appeal, the Applicant is entitled to the leave of this Court to appeal against the said ruling as per the grounds contained in the applicant’s proposed Notice of Appeal. He referred to Exhibit CY1 and CY2 annexed to the supporting Affidavit.

Mr. Tarfa SAN stated on that the court would observe that the decision of the Court of Appeal in Exhibit CY1 is discretionary in nature. That ground 3 of Exhibit CY2 (proposed Notice of Appeal) reveals the Applicant’s grouse against the ruling on an issue which is of mixed law and fact in nature hence the need to seek leave of this Court firstly before lodging the appeal. He cited Section 233 of the 1999 Constitution of the Federal Republic of Nigeria (as altered); Okwuagbala & 3 Ors v Ikwueme & 2 Ors (2010) 12 SC (Pt. iv) 1; Kotove v. Saraki (1995) 5 NWLR (Pt.393) 264; Ifekandu v Uzoegwu (2008) 15 NWLR (Pt. 1111) 517; Okere v Nlem (1992) 4 NWLR (Pt.234) 143; A.G. Federation v. A.I.C. Ltd (1995) 2 NWLR (Pt.378) 404.

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For the Appellant/Applicant was further canvassed that there is a competent appeal before this court. That from the proposed grounds of appeal and the particulars therein the said appeal is arguable in law and fact before this court. He said once the Appellant/Applicant can show that the appeal is arguable, enlargement of time to appeal is grantable. He referred to E.F.P. Co. Ltd v N.D.I. C. (2007) 9 NWLR (Pt. 1039) 239.

Mr. James Ezike of counsel for the 1st Respondent contended by saying that the prayers sought by the Appellant are not grantable for the following reasons.

  1. The application is an abuse of the process of court. That the decision of the Court below appealed from is a Ruling that the 1st Respondent has a locus standi to be joined to the suit filed in the Federal High Court which is now on appeal at the Court of Appeal filed by the 3rd Respondent along with another filed by the 1st Respondent. That the proposed appeal is an appeal on ground of law being a matter of jurisdiction. He cited Attorney General of Lagos State v Dosunmu (1989) 3 NWLR (Pt.111) 552.
  2. It is on law that a decision on jurisdiction is a final decision and a party dissatisfied with such a decision does not need leave to appeal. That even as at 25th day of March 2012 when the Applicant claimed to have filed his prayers in the Court below, the said appeal was still valid.
  3. The application herein should be discountenanced that the Applicant has woefully failed to satisfy the conjunctive twin requirements of satisfying the Supreme Court within the meaning of its Order 2 Rule 31, that he:

(a) Has given good and substantial reasons by affidavit evidence for his failure to appeal within time; and also

(b) Has also by affidavit evidence shown prima facie good cause why the appeal should be heard.

Mr. Ezike of counsel further contended that in the case in hand the Applicant’s appeal must be based on the decision of the Court below and based on the said Ruling the Court below found inter alia that the 1st Respondent contested elections in 2007 and 2011. That he was a party to the Amaechi v INEC case (supra) and that the case he presented before the Court of Appeal justified the said Court’s finding that the 1st Respondent has a locus standi to be joined to the case. He stated that the sum and substance of the 1st Respondent’s submission in the Court below was that since applicant initiated his action by Originating Summons, under Order 3 Rule 9 of the Federal High Court Rules he should have followed Forms 3, 4, and 5 Scheduled to the said Rules by which the summons should have been headed thus:

“In the matter of “or” in Re The Rt Honourable Rotimi Amaechi

AND

  1. Independent National Electoral Commission
  2. Sir Celestine Omehia
  3. Peoples’ Democratic Party

AND

CHIEF CYPRIAN CHUKWU”.

Mr. Ezike said that from Nwadialo’s Civil Procedure In Nigeria Second Edition at Page 242 Originating Summons “must” be so headed. That if the Summons were so headed the 1st Respondent must have been joined as a necessary Party.

Learned counsel for the 1st Respondent said Order 2 Rule 31 demanded that the Applicant should exhibit certain documents including:

“The proceedings necessary to support the complaints against the judgment.” That the Applicant failed to so produce evidence of the proceedings from which this court to see the substantiality of the grounds relied upon. He cited Ibodo v. Enarofia (1980) 5 – 7 SC 57 – 58 (SC); Agbaje v. Adelekan (1990) 7 NWLR (Pt. 154) 595 at 616 – 617.

  1. The 4th reason the application cannot be sustained, learned counsel for the 1st Respondent said is that there is no piece of evidence that the Applicant did anything until the 20th March 2012 and the ruling was delivered on the 20th of December 2011. There was no reason for this lapse in time. That it is not for this court or even the Court below to go scouting for the arguable and substantial points upon which the appeal is proposed. He cited: In Re Madaki (1996) 7 NWLR (Pt. 459) 153 at 146.

That the Applicant cannot succeed by his own default because he failed to annex the proceedings and documents which he is bound to accompany his application with. That the Supreme Court cannot be invited to consider the 3rd Ground of Appeal without the benefit of seeing the application against the Applicant’s complaints in this ground. He referred to many authorities.

Having placed above the summary of the submissions of counsel on either side and the materials attached or made available to court, it is for this Court to utilize those materials within the purview of the law, rules of court including the discretionary powers of the court. It is in the con of the above that I would state without hesitation what is now trite that the grant of an application for enlargement of time within which to appeal is in the discretion of the court. The discretion however must be exercised both judicially and judiciously. This means in effect that the discretionary exercise are done not in vacuo but based on certain materials existing such as the reason for the delay in filing the process and in this case the Notice of appeal. In some instances the delay may have been caused by the mistake, negligence or inadvertence of counsel in which case the court cannot close its eyes to the need of the right of the Applicant in need of protection and thereafter consider favourably in his favour. See N.I.W.A. v. Shell Petroleum Development Company Nigeria Ltd. (2008) 13 NWLR (Pt.1103) 65.

The twin requirements to the matter of the reason for the delay is the ground or grounds of appeal which must show the substantially thereof and that they are arguable. These are to be grounded in the proposed grounds of appeal. Also in this case perusing the proposed notice and grounds of appeal some grouse of the Applicant present some features of mixed law and fact and thus needing leave before they can be appealed against makes it mandatory that leave be first sought and obtained. I place reliance on Section 233 of the 1999 Constitution of the Federal Republic of Nigeria (as altered); Okwuagbala & 3 Ors. v. Ikwueme & 2 Ors. (2010) 12 SC (Pt.iv) 1.

In respect to whether or not the grounds of appeal are substantial and arguable based on the proposed ground but the court is confined or restricted to the good cause of the grounds. This court per Onnoghen JSC in E.F.P. Co Ltd v NDIC (2007) 9 NWLR (Pt. 1039) 239 at 253 & 261 said:

“The duty of an appellate court in the consideration of grounds of appeal proposed by an appellant and filed in support of an application for leave to appeal is limited to seeing whether the grounds of appeal are substantial and reveal arguable grounds. Therefore, it is not the duty of the court at that stage to decide the merits of such grounds in support of the application, for to do so would amount to deciding the substantive matter in an interlocutory application.”

See also  The State Vs Emine & Ors (1992) LLJR-SC

Having stated that I would recast the grounds of appeal with their particulars in the Proposed Notice of Appeal and they are as follows:-

GROUNDS OF APPEAL

GROUND ONE:

The Learned Justices of the Court of Appeal erred in law by refusing to consider and be bound by the authority of SENATOR ABRAHAM ADESANYA v. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 358, when in spite of their findings at page 18 of the cyclostyled ruling that the Applicant/4th Respondent contested in the election he was challenging, they still proceeded in granting leave to the same Applicant/4th Respondent to appeal as interested party. And thereby occasioned a miscarriage of justice adverse to the Appellant.

PARTICULAR OF ERROR:

  1. The Applicant/4th/Respondent, by the application filed on 27/05/2011 sought to appeal against the judgment of the trial court which decided that the tenure of the 2nd Respondent ends on 28/05/2011 and ordered that elections hold in Rivers state in April, 2011.
  2. The Applicant/4th Respondent, by his affidavit evidence adduced at the Lower Court, presented that he was a candidate in the said April 2011 election under the banner of All progressive Grand Alliance (APGA), which he keenly contested with the 2nd Respondent, but lost.
  3. The Appellant invited the Court of Appeal to rely on the case of SENATOR ABRAHAM ADESANYA V. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 358, to the effect that having taken benefit of the judgment of the trial court by contesting the election, the law forbids the Applicant/4th Respondent to turn around and challenge the same judgment.
  4. The Court of Appeal wrongly refused to consider and or rely on the binding authority of SENATOR ABRAHAM ADESANYA V PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 358 cited by the Appellant to persuade same to dismiss the Applicant/4th Respondent’s application.

GROUND TWO:

The Learned Justices of the Court of Appeal erred in law in their application of the authority of OMOTESHO v ABDULLAHI (2008) ALL FWLR (Pt.402) Pg 1114 to determine the application, as cited to the Court by the Appellant. And thereby occasioned a miscarriage of justice adverse to the Appellant.

PARTICULARS OF ERROR:

  1. The Appellant at the Court of Appeal submitted that the Applicant cannot be described as an aggrieved person in law since what he sought to appeal against is not what he has right to demand in law (i.e his grouse was against the date of the conduct of the gubernatorial election in Rivers State in 2011 and not the conduct of the election per se), and cited the case of OMOTESHO v ABDULLAHI (2008) ALL FWLR (Pt. 402) Pg. 1114 at 1129 – 1130.
  2. The Court of Appeal wrongly applied the said authority and held that the Applicant/4th Respondent is entitled to appeal having shown his legal grievances.

GROUND THREE:

The Learned Justices of the Court of Appeal erred in law when they held at page 19 of the cyclostyled judgment as follows:-

“The record of appeal has shown the grievance suffered by the applicant and reference was made to him by the trial judge in its decision. The applicant has by the affidavit evidence before the court shown sufficient interest in the pending appeal and we are so satisfied…”

And therefore occasioned a miscarriage of justice.

PARTICULARS:

  1. The Applicant/4th Respondent’s application before the Court of Appeal was strictly bothered to determine whether or not he can be described as an aggrieved person against the judgment of the Federal High Court in FHC/ABJ/656/2010 so as to allow him to appeal against same as an interested party.
  2. The Applicant/4th Respondent’s supported his application only with a 26 and 11 paragraph affidavits and 4 documentary Exhibits wherein he did not disclose what grievance he had suffered from the trial court’s judgment that constituted sufficient interest to entitle him to the grant of his application.
  3. The Court of Appeal wrongly held that the applicant has shown sufficient interest in a “pending appeal” when there was yet to be an appeal at the time of the ruling.
  4. The Court of Appeal, in determining the application therefore wrongly considered some extraneous materials and issues not placed before it for the determination of the application.

From what is expected to be argued on appeal as shown by the proposed Grounds above stated, the concluding question would be if this application for enlargement of time to appeal, leave to appeal etc have met the two joint requirements upon which such an application can be granted. These requirements which must go together are thus:-

(a) Good and substantial reasons for the failure to appeal within the prescribed period; and

(b) The proposed grounds on which the appeal must show prima facie good cause why the appeal should be heard. See Kotove v Saraki (1995) 5 NWLR (Pt. 393) 264; Okere v Nlem (1992) 4 NWLR (Pt. 234) 143.

Having shown the proposed grounds of appeal, it is to be noted that those cannot be considered in vacuo or in the air without the necessary back up documents, affidavits and other materials from the Court below to use in coming to a decision that the appeal is being propelled on good and substantial cause. It is not for the court including the Supreme Court to go into the Records at this stage to ferret out those materials that would lead it to the conclusion that the grounds of appeal are arguable and substantial. Of necessity is the proposed Notice of Appeal of the 1st Respondent in the Court below which complained about the date of the conduct of the gubernatorial election in Rivers State in 2011 and not the conduct of the election per se. It is a vital document since it is concerned about the nullity and unconstitutionality of the judgment of the Federal High court. The need for that document to be attached to the supporting affidavit to this Application herein is because it would have shown when the said proposed Notice of Appeal was filed by the 1st Respondent in the court of Appeal whether before or after the said elections. See Ibodo v Enarofia (1980) 5 – 7 SC 57 – 58.

However inspite of the absence of the document referred to above there are other materials upon which the question as to the substantiality of the grounds of appeal can be ascertained.

As for that leg in the conjunctive twin requirement under order 2 Rule 31 of the Rules of the Supreme Court it has been satisfied, the Applicant from the supporting affidavit has shown the reason for their failure to appeal within the prescribed time. It is therefore in the light of the fact that the reason for the delay in filing and the good cause why the appeal should be heard that his application has to be favourably considered. As I said earlier and in keeping with the practice which is now common place that the discretion sought must be exercised judicially and judiciously and in the presence of those requirements nothing can be done to stop the granting of the application sought by the applicant.

Concluding therefore I would say without hesitation that the application is granted thus: Leave to appeal and 60 days granted to the applicant within which to file the notice and grounds of appeal.

I make no order as to costs.


SC.111/2012

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