Legalpedia Citation: (2013-02) Legalpedia (SC) 64115
In the Supreme Court of Nigeria
Fri Feb 1, 2013
Suit Number: SC. 273/2012
CORAM
PARTIES
RT. HON (DR) OLISA IMEGWU APPELLANTS
MR.EUGENE UCHE OKOLOCHA & 2 ORS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant/Applicant was removed as the member representing the said Ndokwa/Ukwani Federal Constituency in the House of Representatives by an order of the Court of Appeal and replaced with one Hon. Ossai Nicholas Ossai of the Peoples Democratic Party (PDP).The Appellant/Applicant, after vacating the seat as ordered by the Court, filed a suit against the Respondents at the Federal High Court seeking a declaration that he was the winner of the Primary Election of the Democratic Peoples Party (DPP)to represent the Ndokwa/Ukwuano Federal Constituency for the 2011 general election without the joinder of either the Peoples Democratic Party (PDP) or Hon. Ossai Nicholas Ossai. The trial Court gave judgment in the favour of the Appellant/Applicant. Dissatisfied with the judgment of the trial Court, the 1st Respondent appealed to the Court of Appeal where the judgment of the trial Court was set aside. Dissatisfied with the judgment of the lower Court, the Appellant/Applicant, who was out of time, filed an application seeking leave to appeal out of time and to argue issues of mixed law and facts. The 1st Respondent filed a counter-affidavit to the Appellant/Applicant’s application contending that the said application was academic since neither the 2nd Respondent nor its candidate occupies the seat of member representing Ndokwa/Ukwani Federal Constituency at the House of Representatives following the 2011 Elections but Hon. Ossai Nicholas Ossai of the Peoples Democratic Party (PDP).?
HELD
Application Dismissed
ISSUES
1. Whether this application ought to be refused and dismissed having regard to the entire circumstances before the Honourable Court?
RATIONES DECIDENDI
CASE LAW – CASES ARE DECIDED ON LIVE ISSUES
“There is no doubt, courts do not try or determine cases on sentiments or dead and buried issues. Cases are decided on live issues. See; Attorney General of the Federation Vs. All Nigeria People Party (ANPP) (2003) 18 NWKLR (Pt.851) 182”.PER ARIWOOLA, J.S.C.
RIGHT OF APPEAL – RIGHT OF APPEAL TO THE APPELLATE COURT IS CONSTITUTIONALLY GUARANTEED
There is no doubt, every aggrieved party has constitutional right of appeal to challenge the decision of the court below in this court. In other words, right of appeal to this court is constitutionally guaranteed and cannot be denied or removed by any subsidiary Legislation except by the same Constitution. See Section 233 of the 1999 Constitution (as amended)”.PER ARIWOOLA, J.S.C.
GRANT OF EXTENSION OF TIME – GUIDING PRINCIPLES IN THE GRANT OF EXTENSION OF TIME
“(i) The discretion of the court to grant the extension of time within which to appeal will be exercised only when the two conditions circumscribed by Order 7 rule 10(2) of the Court of Appeal Rules, 2002 or Order 2 rule 31 (2) of the Rules of the Supreme Court, as amended in 2009, are satisfied conjunctively but not disjunctively. See; N. A. Williams & Ors V. Hope Rising Voluntary Funds Society (1982) All NLR (Pt.1) (1982) 1-2 SC 145 at 152. YonwurenVs. Modern Sighs Ltd. (1985) 1 NWLR (Pt.2) 244; University of Lagos Vs. Aigoro (1985) 1 NWLR (Pt.1) 143. In other words, the affidavit evidence in support of the application must disclose and set forth good and substantial reasons for the failure to appeal or to seek leave to appeal within the prescribed period of time. And the proposed Notice of Appeal must contain grounds of appeal which prima facie show good cause why the appeal should be heard.
(v)The length of time that has lapsed between the dates of the judgment sought to be appealed against and the filing of the application is always a material to be considered in the decision whether or not to grant the application. However, the court has held that the length of time notwithstanding, the time may still be extended once the court is satisfied with the reasons for delay. See; Alagbe V. Abimbola (1978) 2 SC 39; Ojora V. Bakare (1976) 1 SC47; Shittu V Osibanio-ln re Adewunmi (1988) 7 SC (Pt.11) 1, (1988) 3 NWLR (Pt.33) 483.
(vi) In view of the settled principle of law that a litigant should not be punished for the mistake or inadvertence of his counsel, an application for extension of time to appeal ought to be granted if the court is satisfied that the failure to appeal within the period prescribed by law was due to the true and genuine mistake or error of judgment of counsel. In other words, the court must be satisfied that the excuse is availing having regard to the facts and circumstances of the case. See; IroegbuVsOkwordu (1990) 6 NWLR (Pt.159) 643. Where it appears to the court that the delay was actually occasioned by the genuine mistake of counsel, it will be up to the respondent to show in what respect he would be prejudiced if the indulgence sought is granted.
(vii) The grounds of appeal proposed must be drawn by the applicant to be arguable but not frivolous. He is however not expected to show that the appeal will succeed, yet he is expected to exhibit good grounds showing reasonable prospect of success in the appeal. See; Holman Bro. (Nig) Ltd V. Kigo(Nig) Ltd (1980) 8-11 SC 43.
viii) In the determination of applications for enlargement of time to appeal each case is to be treated and decided on its own peculiar facts and circumstances. The reason being that the facts to be taken into consideration by the court are not exhaustive. See, University of Lagos V. Olaniyan (1985) 1 NWLR (Pt.1) 156, C. C.B. (Nig) Ltd. V. Ogwuru (1993) 3 NWLR (Pt. 284) 630”. PER ARIWOOLA, J.S.C.
COURT – DUTY OF COURTS NOT TO DECIDE ON HYPOTHETICAL CASES
“This court or any other court should not be engaged in deciding on hypothetical cases, the result of which will not award or grant any benefit to the appellant”. PER ARIWOOLA, J.S.C.
CASES CITED
Oyegun V Nzeribe (2010) 7 NWLR (Pt. 1194) 577 (2010) SCM 233;Solanke V. Somefun (1974) 1 SC 141 Oforkiire & Anor V. Maduike & Ors (2003) 5 NWLR (Pt. 812) 166John V. Blakk (1988) 1 NWLR (Pt. 72) 648.N. A. Williams & Ors V. Hope Rising Voluntary Funds Society (1982) All NLR (Pt. 1) (1982) 1 NWLR (Pt. 2) 244; University of Lagos V. Aigoro (1985) 1 NWLR (Pt.1) 143Alagbe V. Abimbola (1978) 2 SC 39; Ojora V. Bakare (1976) 1 SC 47; Shittu V Osibanjo – In re Adewunmi (1978) 7 SC (Pt. 11) 1, (1988) 3 NWLR (Pt. 33) 483.Iroegbu V. Okwordu (1990) 6 NWLR (Pt. 159) 643.Holman Bro. (Nig.) Ltd V. Kigo (Nig.) Ltd (1980) 8- 11 SC 43University of Lagos V. Ogwuru (1993) 3 NWLR (Pt. 284) 630
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)Court of Appeal Rules 2002Rules of the Supreme Court 2009Supreme Court Rules 1985,