Senator Festus Bode Ola V. Independent National Electoral Commission & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Lead Ruling)

This is an application by motion on notice dated and filed on 21st May, 2012 by the applicant seeking for the following reliefs:

1. An order granting enlargement of time within which the appellant/applicant may seek leave of this Honourable Court to file an appeal on grounds of mixed law and facts against the ruling of the Federal High Court in Suit No. FHC/ABJ/CS/312/2011 between senator Festus Bode Ola v INEC & 2 others (Coram Adamu Bello, J) delivered on 2nd February, 2012 and in terms of the Notice and grounds of appeal attached hereto and marked exhibit B.
2. Granting leave to the appellant/applicant to appeal on grounds of mixed law and facts against the ruling of the Federal High Court in suit No. FHC/ABJ/CS/312/2011 between senator Festus Bode Ola v INEC & 2 others (Coram Adamu Bello, J) delivered on 2nd February, 2012 and in terms of the Notice and grounds of appeal attached hereto and marked exhibit B.
3. An order granting enlargement of time to appellant/applicant within which to file his Notice and grounds of appeal.

The application is predicated on the six grounds as reproduced hereunder:

“1. The instant suit was commenced by way of originating summons wherein all parties had filed their relevant processes including written Addresses in the matter.

2. The 3rd Defendant herein had filed a Notice of Preliminary Objection to the suit.
3. The said objection and the substantive suit were taken together as all counsel adopted their written addresses on the Preliminary Objection and the Originating Summons on 14th November, 2011.
4. In a considered Ruling, the Honourable court upheld the Preliminary Objection and holding that the suit raises contentious issues and facts which cannot be resolved using the documents attached to various affidavits and the Court Ordered that pleadings be filed along with Witness Statement on Oath.
5. The Plaintiff is aggrieved by this decision and seeks to file a Notice and Grounds of Appeal against same.
6. A similar application which was filed at the lower Court could not be determined within the statutorily prescribed period of 14 days and was struck out for lack of jurisdiction.”

The application is supported by affidavit of 15 paragraphs deposed to by the applicant himself as hereunder reproduced:

“1. That I am the Appellant/Applicant herein by virtue of which I am conversant with the facts and circumstance of this case.

2. That I know as a fact that I commenced this suit at the trial Court by way of an Originating Summons on 13th March, 2011.
3. That upon the completion of the filing of processes, the Honourable trial Court ordered that the processes filed be adopted which processes were duly adopted on 14th day of November, 2011.
4. That the Honourable trial Court at the said adoption took argument on both the 3rd Defendant’s Preliminary Objection and the substantive suit.
5. That the Honourable trial Court delivered a considered Ruling on the above arguments on 2nd February, 2012 wherein it upheld the 3rd Defendant’s Preliminary Objection in part and Ordered that parties file pleadings and Witness’ Statement on Oath.

A copy of the said Ruling is hereby attached and marked Exhibit A.

6. That I am aggrieved by the said decision and desire to appeal against the same to the Court of Appeal.

A copy of the proposed Notice and Grounds of Appeal is hereby attached and marked Exhibit B.

7. I know as a fact that this is an election related matter where time is of the essence, I have been informed by my counsel Solomon Umoh, SAN at about 3.00 p.m. on 21st February, 2012 by telephone of the following facts which I verily believe to be true:-

a. That the leave of the trial Honourable Court or that of this Honourable Court is required to lodge a competent appeal against the Ruling of the trial Court delivered on the 2nd day of February, 2012.

b. That the said leave must first be sought from the trial Honourable Court,

c. That the proposed Notice and Grounds of Appeal attached hereto as Exhibit B contains recondite and substantial issues of Law.

d. That time is of the essence in making this application particularly as the time required for the filing of a Notice of Appeal is as prescribed by statute which is 14 days from the date of the decision.

e. That only this Honourable Court has the statutory powers to extend the time within which to file an appeal.

9. I instructed my counsel to seek the leave of the trial Court before approaching this Honourable Court.
10. That I know as a fact the trial Court adjourned the said application for hearing to the 20th day of February, 2012 due partly to the fact of the non-availability of a signed copy of the Ruling sought to be appealed against.
11. That the date fixed for the hearing of the said application by the trial Court is beyond the date allowed by law for the filing of the Notice and grounds of appeal,
12. The Application before the trial Court was withdrawn on 20th January, 2012 after which the instant application was filed to enable the appeal to be properly lodged.
13. know that it is in the interest of justice to grant this application.
14. That the Respondent will not be prejudiced by a grant of this application.

I depose to this affidavit in good faith conscientiously believing the content to be true and in accordance with the Oaths Act.”