Evans Amaechi Nnadi V. Dr. Herbert Oji & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, J.C.A. (DELIVERING THE RULING)

A motion dated the 19th day of October, 2009 was filed on the same day before this Court by the applicant wherein the following reliefs were prayed. The reliefs are:

(1) An order for extension of time within which the Petitioner/Applicant may seek leave to appeal against the judgment/Ruling of Hon. Justice A.R . Ozoemena of the High Court of Enugu State dated 11th March 2009 delivered in the High Court Appeal No, E/15A/2008 – Evangelist Amaechi Nnadi vs. Dr. Herbert Oji and 250 others annexed as exhibit “AA” to this application.

(2) An order granting leave to the Petitioner/Applicant to appeal to the Court of Appeal against the said Judgment delivered by the Enugu State High Court on 11th of March 2009 in the High Court Appeal No. E/15A/2008.

(3) An order for extension of time within which the Petitioner/Applicant may appeal to the Court of Appeal against the said judgment/Ruling delivered by the Enugu State High Court on 11th of March 2009 in Enugu High Court Appeal No. E/15A/2008 in terms of Notice of Appeal annexed to the affidavit in support of this application as exhibit “BB”.

(4) An order deeming the Notice and grounds of appeal dated 23, 11th March 2001 and filed by the Petitioner/Appellant on 24/3/2009 in the court below and served on the Respondents as properly filed and served.

The motion is supported by an affidavit of twelve paragraphs sworn to by one Miss Ifeoma Nweke, a secretary to the chambers of the applicant’s counsel. Annexed to the motion are the following exhibits/documents:-

1. The Ruling of the lower court the applicant intended to appeal against; marked Exh. AA.
2. Notice of Appeal against the Ruling of the lower court dated 23rd March 2009.

It needs to be stated here that upon being served with an undated counter-affidavit by the 1st Respondent herein filed on 30/11/2009, the applicant responded to that counter-affidavit by filing a Further Affidavit of 13 paragraphs on 2/2/2010 as reply to the 1st Respondent’s counter affidavit earlier tiled on 30/11/2009.

As I said above the 1st Respondent filed a counter affidavit of 22 paragraphs in response to the applicant’s motion on notice. The 2nd to 250th respondents did not oppose the first prayer. On the 4th of February 2010 this court set to hear the motion on notice. Mr. Vincent Chieyine of learned counsel for the applicant informed the court that his motion on notice was brought pursuant to Section 241 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria; Section 15 of the Court of Appeal Act 2004, Order 7 Rules 4 and 10; Order 19 Rule 3(1) and (2) of the Court of Appeal Rules 2007 and under the inherent jurisdiction of the court. The learned counsel submitted that the delay in bringing his motion was due to the inadvertence of counsel which caused the delay in seeking leave to file the appeal much earlier, adding that his Notice of Appeal was however filed within time. He referred to the case of National Inland Waterways Authority v. Shell Petroleum Development Company of Nig. Ltd. (2008) All FWLR (Pt.433) 1402 at 1416. He said the failure to obtain leave is a procedural irregularity and the Supreme Court always encouraged courts to hear and determine matter on their merit.

On the counter affidavit filed by the learned counsel for the 1st respondent dated and filed on 30/11/2009, the learned applicant’s counsel submitted that Paragraphs 12 to 21 of that motion relate to another motion on injunction which is not related to this instant application.

The learned applicant’s counsel however, conceded to the fact that Paragraph 11 of the Counter affidavit in question raised or challenged the jurisdiction of this court to hear and determine the instant application. He submitted that this court has jurisdiction to entertain and determine the application by virtue of the provisions of Paragraph 5(1) of the 6th Schedule to the Local Government Law, Cap 109 of the Laws of Enugu State. The learned counsel for the applicant however agreed that Paragraph 5 (2) of the said Schedule to the said law merely states that appeals from the decision of the Local Government Election Tribunal Enugu State lies to the High Court and no more. The learned applicant’s counsel further submitted that the provisions of Section 272(1) of the 1999 Constitution makes general provisions on appeals to the Court of Appeal from the decision of the High Court. He stated further that by virtue of the provisions of Section 272(1) of the same constitution the High Court is given supervisory powers in civil proceedings which according to him also include election matters, He added that if the legislators had meant that appeal on local government elections should terminate at the High court, it would have stated so in the legislation under reference, He said the law nowhere stated that High Court has the final jurisdiction. Learned applicant’s counsel argued that since by Section 272(2) of the 1999 Constitution the High Court has power to exercise its supervisory jurisdiction, hence Section 240 of the same constitution has conferred the Court of Appeal the jurisdiction to entertain, hear and determine appeals from the decisions of the High Court on Local government elections. According to him, by virtue of the provisions of Section 242 Constitution any party in such elections can seek leave to appeal from the tribunal to the High Court or from customary court to the High Court and by virtue or the provisions of Section 246 of the same 1999 Constitution, the Court of Appeal is final court on this matter.

Learned counsel finally urged this court to entertain this matter and to discountenance the 1st Respondent’s objection. He drew this court’s attention to an appellant’s brief of argument, in the event this court allows him to regularize his appeal.

In his reply, the learned counsel for the 1st Respondent submitted that they are opposing the application. He drew the attention of this court to his Counter-affidavit filed on 30/11/2009 which contains 22 paragraphs. He submitted that although this court has discretion to grant or refuse an application for leave or extension of time, he stated that the Notice of Appeal in the instant application/case was filed without first seeking and obtaining leave of the appellate High Court.

Learned 1st respondent’s counsel submits that Section 185 of the Local Government Law clearly states that appeal in Local Government election from the decision of the Local Government Council Election Tribunal lies before the State High Court only and no more. He said, in this instant case the election term the applicant seeks to appeal against had already expired and even another local government council has since been elected into office after another election was duly held. He finally argued that the instant application amounts to mere academic exercise and urged this court to dismiss the motion.