Saheed Rahuf Kerere-ekun V. Monsuru Alao Owolabi & Ors. (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CLARA BATA OGUNBIYI, J.C.A.(Delivering the Leading Ruling)

The application at hand is brought pursuant to (1) Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999; (2) Section 15 of the Court of Appeal Act CAP, C 36 Laws of the Federation of Nigeria, 2004 (3) Order 4 Rules 1 & 5 of the Court of Appeal Rules 2007

(4) Direction of the Practice Direction No.2 of 2007

(5) The Inherent jurisdiction of the Court and seeks for the following two reliefs:-

‘1. AN ORDER LISTING THE PETITIONER/APPELLANTS APPEAL FILED VIDE NOTICE OF APPEAL DATED 3/1/2008 AND FILED AT THE ELECTION PETITION TRIBUNAL ON 4/1/2008 FOR HEARING ON ITS MERITS BEFORE A DIFFERENT PANEL OF JUSTICES OF THE COURT OF APPEAL OTHER THAN THE HONOURABLE JUSTICES WHO DELIVERED THE RULING ON THE APPELLANTS MOTION OF 10/4/2008.

2. ALTERNATIVELY, AN ORDER SETTING ASIDE THE PORTION OF THE RULING OF THIS COURT IN THIS APPEAL OF 26/5/2008 WHICH READS:

‘The true position in law is that there is no appeal before us in the absence of an application for an extension of time to appeal. Such an application will of course be invalid’.

AND SUCH FURTHER and/or other Order or Orders as may seem fit in the circumstances’.

There are seven grounds predicating the application and these are that:-

1. The Appellant’s application to amend his Grounds of Appeal, etc. filed 10/4/2008 having been refused by Ruling of 26/5/2008, the original Grounds of Appeal In the Notice of Appeal remain EXTANT.
2. Upon the refusal of the said appellant’s application, the comments in the Ruling that ‘there is no appeal before us’ were obiter dicta or, in the alternative, were made per incuriam.

The Comments in the Ruling of 26/5/2008 that there is no appeal before us, is in breach of the appellant’s fundamental right to a fair hearing entrenched in section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.

4. Nothing touching upon the substantive appeal or its status came up for adjudication before the Court nor was the appellant given a hearing thereon.
5. The portion of the Ruling touching on the competence of the appeal is NULL and VOID AB INITIO.
6. The Court of Appeal is empowered to set-aside its own Order, which is a nullity (Okafor v. A-G. Anambra State (1991 )6 NWLR (Part 200) 659 (SC)).
7. Upon listing the appeal, the appellant is entitled to another panel of the Court of Appeal to hear the appeal, the Honourable Justices who gave the Ruling having disqualified themselves by pre-judging the appeal.

Also in support of the application are nine paragraphs affidavit and a number of exhibits attached thereto. In opposing the application,a counter affidavit by the 1st respondent was filed on the 14th October, 2008 and containing seventeen paragraphs. The 2nd – 161st respondents did not file any response to the motion.

On the 11th March, 2010 when the application was called up for hearing, the learned senior counsel Mr. B.A.M. Fashanu SAN led Mr. A. A. Balepo and represented the applicant. Prof. Taiwo Osipitan SAN also in Company of T. Osunsan appeared on behalf of the 1st respondent and Mr. Mohammed Ali of counsel represented the 2nd- 161st respondents.

In arguing the motion the learned senior counsel Mr. Fashanu SAN for purpose of substantiating the application relied on all paragraphs of the affidavit in support and in particular paragraphs 2 – 8 therein. The said senior counsel briefly recapitulated and gave a brief background summary of the petition which was dismissed by the lower Tribunal on 15/12/2007 and hence the reason for the filing of the notice of appeal marked Exhibit ‘A’ attached to the motion paper.

That the appellant/applicant sought to amend the said notice of appeal vide a motion dated 10th April, 2008. That the ruling refusing the reliefs sought on (he motion is attached and marked Exhibit ‘C’. Learned senior counsel submitted that in as much as the applicant had no complaint against the refusal, the grouse however relates to the portion of the ruling which dismissed the appeal. He further reiterated that, all the court was expected to do was to decide the application in the motion to amend and not the appeal.

That in determining the appeal, his client had been denied his right to fair hearing as provided under section 36 of the Constitution of the Federal Republic of Nigeria 1999. That the court wrongfully relied on the unreported case of Igbrubia v. Igbrubia CA/PH/EPT/334M/07 dated 10th December, 2007 which is an authority that an amendment by substitution should not be allowed and not that after refusing the application the appeal should be dismissed.