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.
10.That this failure to apply for leave to appeal against the said order of court below dated 18th May, 1978 was due to indisposition of my Solicitor Mr. J.B. Iyare who was hospitalised; and still under medical care. Copy of medical certificate is attached herewith and marked “Exhibit A”.
11.That the grounds of appeal which my Solicitors Messrs. J.B. Iyare & Co., say will prima facie show good cause why the appeal should be heard notwithstanding that the period prescribed by law has expired, is set out in the schedule to the Motion on Notice hereunto attached.”
As shown earlier in this ruling the application by the appellant consists of two prayers. The first is for leave to appeal and is straight-forward. The second however is not couched in the usual manner and it is for that reason somewhat vague. The appellant who is not represented by counsel moved the application himself. I presume that the second prayer connotes a prayer for extension of time within which to appeal.
With regard to the first prayer, Mr. Sadoh, learned counsel for the respondent, who opposed the application, contended that the application was filed out of time and submitted that the course open to the appellant was to apply for extension of time within which to apply for leave to appeal. I think there is substance in counsel’s contention. By Section 31 of the Supreme Court Act, 1960 the time prescribed for bringing application for leave to appeal to this court is three months. The judgment of the Federal Court of Appeal was delivered on the 18th May, 1978, that is by now about two years ago. Undoubtedly, the appellant is hopelessly out of time to apply for leave to appeal. It follows that in the absence of application for extension of time within which to apply for leave to appeal, the first prayer for leave to appeal cannot be entertained and leave in that respect must be refused.
It remains now to consider the second prayer for leave to appeal out of time. Since the first prayer cannot be granted, I do not see how the second prayer can succeed. By Section 117 subsection (3)(a) of the Constitution (Amendment) (No.2) Decree, 1976 (the provisions of which apply to the case in hand) before there could be an appeal to this court from the decision of the Federal Court of Appeal, on an appeal to it from a final decision in any civil proceedings in a High Court sitting at first instance, it was sine qua non that leave to appeal must be obtained from either the Federal Court of Appeal or this court. Since the application by the appellant under the first prayer is refused, no leave to appeal has accordingly been obtained. The application for extension of time within which to appeal cannot therefore be granted.
It is necessary to state that the Notice of Appeal filed on the 1st June, 1978 by the appellant to appeal to this court is not a valid notice in the absence of prior leave to appeal. I appreciate that the position in which the appellant found himself was not of his own making but that of his counsel who was said to be sick and to have acted inadvertently. This court would readily exercise its discretion in dealing with applications for extension of time to prolong the period prescribed for doing an act if it could be shown to the satisfaction of the court that the failure to act within time was due to the negligence or inadvertence of the applicant’s counsel (see T.A Doherty & Anor. v. R.A. Doherty (1964) 1 All NLR 299; G. B.A. Akinyede v. The Appraiser (1971) 1 All NLR 162 and Tunji Bowaje v. Moses Adediwura (1976) 6 S.C. 143).
The present application as has been shown is grossly defective. It does not therefore belong to the category of applications that enjoy the court’s indulgence.
For the reasons given the application has failed and I would dismiss it with costs to be paid by the appellant to the respondent assessed at N25.00.
M. BELLO, J.S.C.: For the reasons stated in the ruling just delivered by my learned brother, Uwais, JSC., I agree that the application should be dismissed. I would only add that even if the Applicant had applied for an extension of time within which to apply for leave to appeal, Order 7 rule 4(2) of the Supreme Court Rules, 1977 requires him not only to show good and substantial reasons for his failure to appeal within the prescribed time but his grounds of appeal must also prima facie show good cause why the appeal should be heard. It seems to me that the only question raised by his proposed grounds of appeal is whether the Fugar Progressive Union, of which the appellant was an active member, acted as his agents when the Union promoted his candidature for the Local Government election and canvassed the election on his behalf. This is a question of fact on which there are concurrent findings of the trial court and the Court of Appeal against the applicant. The trial court had found that the union acted with consent and connivance of the applicant and the Court of Appeal affirmed that finding. That being the case, his grounds of appeal do not prima facie show good cause.
C. IDIGBE, J.S.C.: My Lords, for the reasons and conclusions in the judgment just read by my learned brother, My Lord, Uwais JSC., I would also dismiss this application and it is hereby dismissed. I also agree with the order for costs proposed in the judgment of Uwais, JSC.
A. O. OBASEKI, J.S.C.: I have had the advantage of reading the draft of the ruling just delivered by my learned brother, Uwais, JSC., and I entirely agree with the opinions expressed therein.
The applicant was the respondent to an election petition filed by the respondent herein in the High Court, Auchi following respondent’s failure in the Local Government Elections held in the Bendel State on the 28th day of December, 1976. The grounds of the petition which were:
(1) Corrupt Practices
(2) Undue influence; and
(3) Election Agency
were upheld by the learned trial Judge and the election of the applicant into the Etsako Local Government was nullified. His appeal to the Federal Court of Appeal against this nullification was unsuccessful but only on the ground of the activities of Fugar Progressive Union which was classified as applicant’s agent (by implication).
Following the dismissal of the appeal on the 18th day of May, 1978, the applicant on the 1st day of June, 1978 filed (without leave of either the Federal Court of Appeal or the Supreme Court) a Notice of Appeal against the judgment of the Supreme Court. It however dawned on the applicant in the latter part of 1979 that he had no right of appeal as of right to the Supreme Court and that the Notice of Appeal filed was incompetent. Then on the 19th day of October, 1979 his counsel, J.B. Iyare Esquire, filed a motion praying this court inter alia, for an order for (1) leave to appeal; (2) to appeal notwithstanding that the time limited by law for so doing has expired and (3) that the Notice of Appeal dated the 30th day of May, 1978 filed and pending in this Honourable Court be deemed to have been filed on payment of the appropriate fees. That the Notice of Appeal dated on 30th may, 1978 is incompetent is beyond question. This court has held in Tunji Bowaje v. Moses Adediwura (1976) 6 S.C. 143 that
“Under the provisions of Section 31(2)(a) of the Supreme Court Act in a case where leave to appeal is required to be obtained a party must not only file his application for leave to appeal within the period prescribed by the sub-section but must also file his notice and grounds of appeal having obtained leave within the same period.”
This decision was adopted with approval by the Supreme Court in the case of Madam Oni Amudipe v. Chief Ogunleye Arijodi (1978) 9 & 10 S.C. 27 when the full court said (Alexander, CJN., delivering the judgment of the court):
“Learned counsel for the appellant also submitted that the word ‘or’ in the introductory portion of Section 31(2), when read disjunctively in the con of the section, provides for a separate period of three months for giving Notice of Appeal, thereby allowing the appellant a total of six months to give Notice of Appeal where he has to obtain leave to appeal. We find ourselves unable to accept this submission and repeat that on a clear interpretation of Section 31(2)(a) as applicable to the circumstances of the case, Notice of Appeal must, in any event, be given and filed within the period of three months prescribed by that section. Otherwise, we would arrive at a patently absurd position that an appellant who may appeal as of right has only 3 months to give Notice of Appeal while an appellant who must first obtain leave to appeal would ultimately enjoy the greater right of having six months to give Notice of Appeal. With this we cannot agree.”
On three occasions in which I have sat on the panel constituted to deal with this application, the appellant always appeared without his counsel but bringing always for the information of the court a medical certificate excusing the counsel from duty for ill-health. At the hearing on 22/10/79, the applicant was advised by this court that if he desired the services of counsel to move the motion, to secure the services of another counsel in the event of his counsel’s continued ill-health and inability to appear on ground of ill-health before the court granted 3 months adjournment. On 21/1/80, the applicant again appeared without his counsel but as the court was not properly constituted due to the illness of one of the Justices constituting the panel, applicant was given a further 3 months adjournment.
On 18/4/80, counsel for the applicant filed another motion for leave to appeal and (2) to be at liberty to appeal notwithstanding that the time for appealing had expired. Along with this motion the applicant filed brief which he headed “Declaration by the appellant that he does not wish to be represented by counsel at the hearing of the application dated 10th April, 1980 and signed by the applicant.” This declaration also contains the brief of his argument in support of the application. The motion is also supported by affidavit evidence.
At the hearing, the motion of 19/10/79 was abandoned (as it was to have been moved by counsel). Nothing was, however, said about it but that dated 10th April, 1980, and filed on 18th April, 1980, was moved by the applicant himself.
The main grounds on which applicant relies for his application for extension of time to apply for leave and to appeal are set out in paragraphs 6, 7, 8, 9 and 10 of the affidavit filed in support and the grounds in support of the leave are set out in paragraph 11 of the affidavit which incorporated the schedule to the motion. This schedule sets out the grounds proposed to be argued.
Paragraphs 6, 9,10 and 11 of the affidavit in line, lay the cause of the delay at the door of his solicitor who inadvertently failed to apply and obtain leave to appeal by reason of his having laboured under the eroneous belief that the Notice of Appeal was duly filed within the time prescribed by law. This error, according to him, arose from the fact that his solicitor, J.B. Iyare, Esq., was ill and hospitalised and still is under medical care.
The main ground of complaint against the judgment which applicant proposes to canvass before this court was in respect of ‘the findings of the trial court confirmed by the Federal Court of Appeal that the Fugar Progressive Union acted as election agent to the applicant and that the consequences of the Union’s breaches of the Local Government Electoral Regulations 1976 , must, as a matter of course, be borne by him and must nullify his election.’
Again, I may observe that there is a medical certificate dated 25th March, 1980 issued from Emotan Clinic, signed by Dr. N.A. Emokpare excusing from duty Barrister J.B. Iyare for another period of about 30 days from the 25th March, 1980. It is difficult therefore without hearing from Mr. J.B. Iyare, to ascertain the truth of the allegation that the failure to apply for leave from the court below was due to his inadvertence and or due to the fact that he was hospitalised. This is so in view of the diligence he has shown in keeping this court informed of the condition of his health every time this matter came up for hearing. The importance of this lies in the attitude of the court when it is satisfied that counsel is to blame.
This court has held repeatedly that it will not bring to bear on the fortunes of the parties to an appeal the disastrous effect of the negligence or inadvertence of counsel to take within time, the steps prescribed by law to bring any matter properly before the court, when proper applications are made to extend the period prescribed by law for taking such steps.
In this regard, I refer to the case of Tunji Bowaje v. Moses Adediwura (1976) 6 S.C. 143 where at page 147, Bello JSC., (delivering the ruling of this court) said:
“This Court would readily exercise its discretion to extend periods prescribed for doing an act if it is shown to the satisfaction of the court that the failure by a party to do the act within the period prescribed was caused by negligence or inadvertence of counsel (see T.A. Doherty & Anor v. R.A. Doherty (1964) 1 All NLR 299 and G. B.A. Akinyede v. The Appraiser (1971) 1 All NLR 162).
The grant of leave to appeal follows a totally different consideration from that of enlargement of time. The court must be satisfied that the exercise of appealing at this late stage is worthwhile by reference to the proposed grounds of appeal. The main ground of complaint is as stated in ground a(ii) of the schedule,
“Having held that ‘it is clear, therefore, that the illegal activities of the Fugar Progressive Union in connection with the election affected the results. We think that in the circumstances the avoidance of the election by the learned trial Judge should stand’ (page 188 lines 7 to 10 of the printed record), the learned trial Justices of Appeal erred in law and on facts in that the defendant/appellant/applicant herein was never tried and convicted as required under Section 80(5) and disqualified under Section 74 of the Local Government Electoral Regulations 1976.”
The applicant was at pains to satisfy us that this ground raised substantial issues of law and or fact and that the activities of the Fugar Progressive Union were not with his consent and approval especially, having accepted and as found by the trial court, that he is a member and an active member of the Union. He even truthfully admitted his membership of the Union before us. As the nullification of his election was upheld by the Federal Court of Appeal only on the ground of the illegal activities of his agent, the Fugar Progressive Union, it does not appear that there is any substantial ground of law or fact to be canvassed before the Supreme Court to warrant the grant of leave to appeal.
As already pointed out in the ruling of my learned brother, Uwais, JSC., the failure to seek and obtain enlargement of time in which to apply for leave is fatal to the application. Had the application disclosed a prima facie case for the grant of leave the absence of that prayer for extension of time in which to apply for leave would have been equally fatal. The application fails and is hereby dismissed. Costs to the respondent is fixed at N25.00 (Twenty-Five Naira).
A. N. ANIAGOLU, J.S.C.: I have read before now the ruling just delivered by my Lord, Uwais, JSC., and I entirely agree with the ruling, including his order as to costs.
Other Citation: (1980) LCN/1098(SC)