Rt. Hon. (Dr.) Olisa Imegwu V. Mr. Eugene Uche Okolocha & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

The applicant herein, Rt. (Hon (Dr.) Olisa Imegwu brought the application for the following reliefs:

1. An Order of this Honourable Court extending the time within which the appellant/applicant may seek leave to appeal against the judgment of the Court of Appeal, Abuja Judicial Division in Appeal No.CA/A/195/2011 between Mr. Eugene Uche Okolocha v. RT. Hon. (Dr) Olisa Imegwu & Ors. delivered on Thursday the 15th day of December, 2011 Coram: Hon Justices Jimi Olukayode Bada, JCA, Husseini Mukhtar, J.C.A. and Regina Obiageli Nwodo, J.C.A. to the Supreme Court of Nigeria, on grounds other than law alone.
2. An Order of this Honourable Court granting leave to the appellant/applicant to appeal against the judgment of the Court of Appeal, Abuja Judicial Division in Appeal No:CA/A/195/2011 between Mr. Eugene Uche Okolocha v. Rt. Hon. (Dr.) Olisa Imegwu & Ors. delivered on Thursday the 15th day of December, 2011. Coram: Hon. Justices Jimi Olukayode Bada, JCA, Husseini Mukhtar, J.C.A. and Regina Obiageli Nwodo, J.C.A. to the Supreme Court of Nigeria, on grounds other than law alone.
3. An Order of this Honourable Court for extension of time within which the appellant/applicant may appeal against the Judgment of the Court of Appeal, Abuja Judicial Division in Appeal No.CA/A/195/2011 between Mr. Eugene Uche Okolocha v. Rt. Hon. (Dr.) Olisa Imegwu & Ors. delivered on Thursday the 15th day of December, 2011 Coram: Hon. Justices Jimi Olukayode Bada, J.C.A, Husseini Mukhtar, J.C.A, and Regina Obiageli Nwodo, J.C.A. to the Supreme Court of Nigeria.
4. If prayers 1, 2 and 3 are granted, an Order departing from the rules of the Supreme Court and for leave to file the Notice and Grounds of Appeal at the Supreme Court, time having elapsed and the applicant having compiled and transmitted Records of Appeal.
5. If prayers 1, 2, 3 and 4 are granted for an Order deeming as properly filed, the Notice and Grounds of Appeal separately filed, copy of which is delivered with the Affidavit in support and marked Exhibit 2.
6. If prayers 1, 2 and 3 are granted an Order departing from the rules of the Supreme Court for the appeal to be heard based on the Certified True Copy of the Record of Proceedings of the Court of Appeal.
7. An Order departing from the Rules of the Supreme Court allowing the applicant to file the Notice of Appeal at the Supreme Court, in view of the fact, that the Records have already been transmitted. And for such further Order(s) as the Honourable Court may deem fit to make in the circumstances of this case.

The applicant gave the following as grounds of the application:

Grounds of the Application

1. The Judgment of the Court of Appeal was delivered on the, 15th of December, 2011
2. Applicant filed an appeal promptly on 16th December, 2011 as well as Motion for leave of the Court of Appeal on grounds of mixed law and facts/facts alone.
3. The Court of Appeal did not hear the Motion which was not fixed for hearing on any date, with the effect that the applicant has fallen out of time.
4. The failure to appeal is not the fault of the applicant.
5. Leave of this Honourable Court is also necessary due to the viability of the applicant to appeal within the statutory period and for the reason that the grounds of appeal and argument will touch on the facts.
6. This case is a pre-election matter which should be expeditiously determined.
7. Certified True Copies of the Record of Appeal has been delivered as Exhibit 3.
8. In view of the Exhibit 3, it will be more convenient to file the Notice and Grounds of Appeal at the Supreme Court.

In support of the application is an affidavit of 19 paragraphs deposed to personally by the applicant himself. Attached to the affidavit as Exhibits are – Proposed Notice and Grounds of Appeal as Exhibit 1, Notice and Grounds of Appeal as Exhibit 2 and Record of Appeal as Exhibit 3.

To oppose this application, the 1st respondent filed a counter affidavit of 4 paragraphs. Attached to the Counter affidavit are three documents marked as Exhibits UO1, UO2 and UO3 respectively.

The 2nd and 3rd respondents did not file any counter affidavit to oppose the application. Both the applicant and 1st respondent filed their respective brief of argument.

In the brief of argument in support of the application learned Senior Counsel for the applicant, Dr. Ikpeazu, SAN referred to the reliefs sought, grounds upon which the reliefs are sought and the facts of the application and submitted that the sole Issue for determination in the application is –

“In the circumstance of this case, is the applicant entitled to the relief sought”

It was contended that, it is settled law that a litigant has a right of appeal which is guaranteed under the 1999 Constitution of the Federal Republic of Nigeria. He referred to Section 233 (2) and (3) of the Constitution which gives a party right of appeal from the decision of the Court of Appeal to the Supreme Court. That, by virtue of Section 233(2), a party who is aggrieved by the decision of the Court of Appeal, has a right of appeal as of right and grounds of law alone. But where the grounds of appeal are not of law alone, but of mixed law and fact or facts alone as in the instant case, the right of appeal can only be exercised where the aggrieved party has first sought and obtained the leave of either the Court of Appeal or the Supreme Court. Counsel submitted that the procedure has been held not to be matters merely cosmetic in nature as they are serious issues affecting the jurisdiction of the Supreme Court to hear the appeal. Also, non compliance with the requirement to obtain the requisite leave to appeal renders the appeal incompetent. He relied on Ikeme v. Anakwe (2000) 8 NWLR (pt. 669) 484, Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350.

In urging the court to grant the application learned Senior Counsel referred to the proposed Notice of Appeal for the grounds of Appeal raised and submitted that apart from the fact that the grounds of appeal are not strictly grounds of law alone, the grounds raise substantial and arguable issues of law. Learned Senior Counsel submitted further that good and substantial reasons exist where the leave of this court was not sought earlier as shown in the affidavit in support of the application.

Learned counsel contended that where the grounds of appeal raise issues of mixed law and fact or of fact alone, leave of the Supreme Court to appeal on those grounds must be sought by virtue of Section 233 of the 1999 Constitution. He submitted that failure to comply with this requirement would render the grounds incompetent. He relied on Opuiyo v. Omoniwari (2007) 16 NWLR (pt. 1060) 415 at 443-444.

In the instant appeal, learned senior Counsel submitted that the grounds contained in the Notice of Appeal raise substantial and arguable issues of law, relying on CBN v. Ahmed (2001) 11 NWLR (Pt. 724) 369 at 393, Iroegbu v. Kwordu (1990) 6, NWLR (Pt. 159) 643; Yesufu v. Cooperative Bank (1989) 3 NWLR (Pt. 110) 483.

The applicant contended that the grounds of appeal contained in the Notice of Appeal complained as follows: