Sebastian Adigwe V. Federal Republic Of Nigeria (2015)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

In a Motion on Notice brought pursuant to Section 233 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 27(2)(b) and (4) of the Supreme Court Act and Order 2 Rules 28, 31 and 32 of the Supreme Court Rules, 1999 (as amended), the applicant asked for the following reliefs:

1. “AN ORDER of this Honourable Court granting extension of time to the Applicant within which to apply for leave to appeal to this Honourable Court from the decision of the Lower Court (Court of Appeal, Lagos Division) in APPEAL No. CA/L/146/12 delivered on the 25th of January, 2013.
2. AN ORDER of this Honourable Court granting leave to the applicant to appeal to this Honourable Court from the decision of the Lower Court (Court of Appeal, Lagos Division) in APPEAL NO. CA/L/146/12 delivered on the 25th of January, 2013.
3. AN ORDER of this Honourable Court granting extension of time to the applicant within which to appeal to this Honourable Court from the decision of the Lower Court (Court of Appeal, Lagos Division) in APPEAL NO. CA/L/146/12 delivered on the 25th of January, 2013.

AND for such further order or orders as this Court may deem fit to make in the circumstances.”

The grounds upon which the application is premised read as follows:

i. “Section 27(2) of the Supreme Court Act provides 14 days to appeal an interlocutory decision of the Lower Court and three months to appeal against a final decision of the Lower Court in an appeal against a civil case but provide only 30 days to appeal in an appeal in a criminal case.

ii. The applicant’s case at the Lower Court is a criminal case.

iii. The Lower Court decision was delivered on the 25th January, 2013 and the applicant’s lead counsel (Chief Anthony Idigbe, SAN) was abroad when the judgment was delivered.

iv. The applicant’s instruction to appeal the Lower Court’s decision was sent to applicant’s lead counsel abroad and the grounds of appeal were finalized after the return of the applicant’s lead counsel at which time the 30 days have lapsed.

v. The grounds of appeal aforesaid involve substantial and arguable questions of law and mixed law and facts.

vi. The reason for the delay is inadvertence of counsel.”

Arguing the Motion, learned senior counsel for the applicant stated that the motion was accompanied by a supporting affidavit of six paragraphs sworn to by one Ada Okoroafor (AD), some exhibits; further affidavit and second further affidavit. He also filed additional list of authorities. Learned senior counsel placed reliance on the affidavits and the exhibits. He adopted the written address in support of the motion on Notice which is attached to the Motion on Notice.

Learned senior counsel for the applicant referred the court to the depositions made in paragraphs 4 of the affidavit in support and 5 of the further and better affidavit on the fact that his client, the applicant, contacted him almost a week after the court below delivered judgment that he (learned senior counsel) should specifically handle the client’s appeal personally at the Supreme Court. Learned SAN said that he was abroad then. He said he left Nigeria on 14/01/13 and returned on 16/3/13 and tendered his International Passport as evidence. Learned SAN urged the court to accept the explanation for the failure to file the appeal in time and not to visit the counsel’s sin on the client.

On his second ground, the learned SAN for the applicant submitted that there are good and arguable grounds for hearing the appeal. He exhibited the Notice of Appeal as Exhibit C-E1. He urged the court to grant his application.

Learned Counsel for the respondent is opposed to the grant of the motion. He said we filed a counter affidavit on 23/7/13. The counter affidavit is of 11 paragraphs sworn to by one Aderinmola Adegbesam (AA). It is accompanied by some exhibits and a written address. He submitted that the applicant failed to satisfy the requirement of good and substantial reasons for the grant of leave to appeal out of time. Further, there is nothing to show from the affidavit in support of 28/3/13, the time of instruction that it is only the learned counsel, Chief Idigbe, SAN who could personally represent the applicant. Learned counsel argued further that the failure by the applicant to secure the certified true copy of the judgment of the court below is not a reason for appealing out of time. Learned counsel referred this court to the deposition in paragraph 7 of his counter-affidavit which he said it is taken as admitted by the applicant. He also referred to paragraph 4(x) (inadvertence of counsel) of the affidavit in support which is in conflict with the factual deposition in paragraph 5(h) of further and better affidavit of 8/12/14. Learned counsel argued that the submission of the learned SAN that there are good grounds on abuse of court process as cogent reason for appealing out of time should be disregarded. He finally urged the court to dismiss the application.