Independent National Electoral Commission V. Obinna C. Nwosu (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling)

The Applicant brought an application by Motion on Notice filed on 02/06/14 pursuant to Order 7 Rule 10 of the Court of Appeal Rules 2011, S. 6(6)(b) & 36(1) 1999 Constitution, S. 24(4), 15 & 17 of the Court of Appeal Act. The motion is supported by an affidavit of 12 paragraphs to which 2 exhibits were attached.

The application seeks an order extending the time within which the Applicant may file its Notice and Grounds of Appeal against the decision of the National Industrial Court of Nigeria holden at Enugu in Suit No. NICN/EN/57/2012 and an order staying the execution and/or enforcement of the Judgment and orders of the trial Court. The grounds for the application as contained on the face of the motion paper are as follows:

1. After the delivery of the Judgment in this case on 29th October, 2013, the Applicant who was dissatisfied with the Judgment instructed its Counsel who represented it at the trial to in accordance with its standing instructions immediately file an appeal against the Judgment of the Court and apply for a stay of execution of it.

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2. That unknown to the Applicant, its then Counsel did not take necessary steps to file the Appeal until the statutory period within which the Appeal could have been filed lapsed.
3. The Applicant has now prepared a proposed Notice of Appeal annexed to this application for extension of time amongst other prayers.
4. The proposed Notice and Grounds of Appeal contain substantial and arguable grounds of appeal that bothers on germane issues of law in this case.
5. The Applicant?s constitutional right of Appeal will be frustrated if execution of the Judgment as stated above is not stayed before the hearing and determination of the application for extension of time to appeal and the substantive appeal to be filed.
6. In the event that the Applicant is allowed by the Court to file its Appeal, execution of the Judgment appealed against before the hearing and determination of the Appeal will render the Judgment of the Court of Appeal nugatory if the Appeal is decided in favour of the Applicant.
7. The dictates of substantial justice to both parties supports a grant of an order of stay of the execution of the Judgment of the trial Court

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until the application for extension of time and the substantive Appeal to be filed are heard and determined.

The Applicant filed a reply affidavit to the counter affidavit of the Respondent on 12/10/15 and deemed filed the same day, incorporating his written address therein. The Respondent filed a counter affidavit on 31/01/2018. The Respondent also filed a written address.

In the Applicant’s written address filed by Olanrewaju A. Osinaike Esq., and Joseph Kulugh Esq., two issues were submitted for determination as follows:

1. Whether considering the facts and circumstances together with the claims of the Respondent before the trial Court and the materials placed before this Honourable Court, the Applicant has, in law, the constitutional right of appeal to exercise and ought to be granted extension of time, in the exercise of the Court’s unfettered discretion to extend time within which to appeal against the judgment of the National Industrial Court delivered on 16th September, 2013 in this suit.
2. Whether considering the circumstances of this case and the affidavits evidence before this Honourable Court, an order of stay of

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execution and/or enforcement of the Judgment and orders of the National Industrial Court, Enugu in Suit No. NICN/EN/S1/2012, Coram: Hon. Justice O.A. Obaseki-Osaghae delivered on 16th September, 2013 ought to be granted to the Applicant pending the determination of this application and the final determination of the appeal.

Learned Senior Respondent’s counsel J.H.C. Okolo SAN submitted a sole issue for determination as follows:

Whether any right of appeal in the circumstances exist to sustain the application?

Applicant’s counsel submitted that the main component of the Applicant’s affidavits and Exhibits reveal that the claim of the Respondent was that of breach of his fundamental right to fair hearing on the basis of which the trial Court granted him judgment. Counsel argued that the trial Court failed to address that issue one way or another thus constituting a breach of the Applicant’s right to fair hearing.

As such, Applicant’s right of appeal in this case is as of right as guaranteed by S. 234 of the 1999 Constitution and S. 9(1)7 (2) of the National Industrial Court Act.