Hon. Bimbo Adepoju & Ors V. Olona Yinka & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

FRANCIS FEDODE TABAI, J.S.C.

This is an appeal against two rulings of the Court of Appeal Ibadan dated the 9th March, 2010 and 15th July, 2010 respectively. In the ruling of the 9th March, 2010, the Court of Appeal granted the 1st – 13th Respondents’ motion for stay of proceedings pending the determination of an appeal which they claimed was pending before this Court. While in the ruling of the 15th July, 2010, the court below granted the 1st- 13th Respondents’ application to strike out the appeal on the ground that it had become merely academic.

The parties have, through their counsel filed and exchanged their briefs of arguments. The Appellants’ brief filed on the 11th October, 2010 was settled by Chief Akin Olujinmi SAN. He also prepared the Appellants’ Reply brief filed on the 6th January, 2011. The brief of the 1st – 13th Respondents was prepared by H. O. Afolabi Esq. It was filed on the 10th December, 2010. That of the 14th Respondent was prepared by L. A. Ganiyu and same was filed on the 9th May, 2011.

In the Appellants’ Brief, the following four issues for determination were presented:-

(i) Whether the lower court was right in striking out the Appellants’ appeal without considering the merits of the appeal on the ground that the appeal had become academic and there was no live issue left in it.

(ii) Whether the lower court was right in law in holding that the term of office of the Appellants expired on 24th May, 2010

(iii) Whether the lower court was right in failing to hold that the various applications of the Respondents were designed to prevent the early hearing and determination of the appeal

(iv) Whether the lower court was right in granting the 1st – 13th Respondents’ application for stay of proceedings notwithstanding that there was no appeal filed to the Supreme Court to predicate the application for stay of proceedings.

The Respondents also adopted the foregoing as the issues that call for determination in this appeal.

With respect to issues (i), (ii) and (iii), the substance of the arguments of Chief Akin Olujinmi SAN in the Appellants’ Brief is as follows:-

It was learned senior counsel’s submission that lapse of time would not prevent the hearing and determination of a case that raises substantial issues of law when it was initiated. Once a person aggrieved by the action of another comes to court to seek redress, the court has a duty to jealously guard its jurisdiction and determine the case to its finality, he argued. In support of this submission, counsel relied on AMAECHI V. INEC (2008) 5 NWLR (part 1080) 227 at 323 -324 and 367 – 368 and ADEOGUN V. FASHOGBON (2008) 17 NWLR (part 1115) 149 at 168 and 174. According to learned senior counsel, pre-election and election cases are time-sensitive and argued that the many applications persisted in by the Respondents were designed to frustrate the hearing of this case and were therefore abuses of the court process. Learned senior counsel argued that the case and the appeal before the lower court was not one for extension of tenure but rather one for the restoration of the appellants to their term. Learned senior counsel argued that although defacto time may run, but dejure time cannot run until the issues in contention in a case have been adjudicated upon:

With respect to issue (iv) on the lower court’s grant of stay of proceedings on the 9th March, 2010, learned senior counsel pointed out that on the 9th March, 2010 the Appellants still had two and a half months to the 24th of May, 2010 when their term expired. It was further argued that but for the stay granted, the lower court would have been able to determine the appeal before the 24th May, 2010. It was counsel’s further argument that there was no pending appeal and that even if there was an appeal pending, the court below ought not to have granted a stay of proceedings. Finally, it was urged that the appeal be allowed.

On behalf of the 1st -13th Respondents H. O. Afolabi filed a Notice of Preliminary Objection which is argued in paragraphs 2.00 to paragraph 2.09 of their brief of argument. It was counsel’s submission that issue (iv) is incompetent since ground (iv) of the grounds of appeal upon which it is predicated is incompetent. Learned counsel argued that the ruling of the 9th March, 2010 appealed against granted a stay of proceedings pending the determination of the motion for stay of proceedings at the Supreme Court. Learned counsel argued that since the motion for stay of proceedings at the Supreme Court has been struck out (see page 636 of the record), the ruling of the 9th of March, 2010 was no longer subsisting for any appeal. The appeal, he argued, has become merely academic. Reliance was placed on OKULATE V. AWOSANYA (2000) 2 NWLR (part 646) 530 at 550 – 551, and DABO V. ABDULLAHI (2005) 7 NWLR (part 923) 181 at 205.

It was further submitted that since the decision of the 9th of March, 2010 was an interlocutory one, an appeal against it must be within 14 days of the decision as required under Section 27 (2) (a) of the Supreme Court Act. For it to be rightly incorporated into the main appeal, the Appellants ought to have sought and obtained an order for extension of time to appeal, counsel argued. In the absence of such an order for extension of time, ground four of the grounds of appeal and issue (iv) based thereon are incompetent, learned counsel submitted. It was further argued that the decision whether or not to grant stay of proceedings is a discretionary one based on facts and is therefore a decision of mixed law and facts and that an appeal against such a decision must be with the leave of either the court below or this Court. It was counsel’s submission therefore that in the absence of such leave, the appeal is incompetent. Reliance was placed on UGENAJA V. AKITOYE-SOWEMIMO (2008) 16 NWLR (part 1113) 278 at 294.