SENATOR FESTUS BODE OLA V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2012)LCN/5391(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of May, 2012
CA/A/65/M/2012
RATIO
EVIDENCE: EFFECT OF FAILURE TO CONTROVERT DEPOSITIONS IN AFFIDAVITS
The effect of failure to controvert depositions in the counter affidavits is that the applicant has fully accepted those depositions as true and the court will act upon them as the true facts. PER HUSSEIN MUKHTAR, J.C.A.
APPEAL: CONDITIONS FOR GRANT OF TIME EXTENSION
The twin conditions under Order 7 rule 10(2) of the Court of Appeal Rules 2011 requires that the applicant must satisfy both preconditions in order to be entitled to grant of time extension to file their notice of appeal. It provides thus:
“Order 7 Rule 10(2) Every application for enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard…” PER HUSSEIN MUKHTAR, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
SENATOR FESTUS BODE OLA Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. ACTION CONGRESS OF NIGERIA
3. BABAFEMI OJODU Respondent(s)
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.”
The applicant also filed another 13 paragraph affidavit of urgency on 22-2-2012 with the following depositions:
“1. That I am one of the counsel retained by the Applicant by virtue of which fact I am conversant with the facts and circumstances of this suit,
2. I have the consent and authority of the Applicant and the team of lawyers to depose to this affidavit of urgency.
3. I depose to this affidavit of urgency from facts within my personal knowledge, information and belief except where otherwise stated.
4. I know as a fact that the instant suit is an election related one which is on the determination of the lawful candidate of the 2nd Respondent at the General election held in April, in the Ekiti Central Senatorial District of Ekiti State,
5. I know that in all election related cases time is of the essence,
6. I know as a fact that the trial Federal High Court delivered a ruling on 2nd February, 2012 wherein the court held that the issue raised in this suit are contentious and cannot be tried on Originating Summons hence the directive that parties file pleadings.
7. I know as a fact that the Applicant has instructed that an appeal be lodged against the said ruling,
8. The appeal must be lodged within 14 days from the date of the said ruling and with leave of the trial court or this Honourable Court.
9. That an application was filed at the trial court seeking amongst others the Leave of the trial court to lodge an appeal but that application was withdrawn by the Applicant and struck out by the trial court for want of jurisdiction on 20th February, 2012.
10. That the Applicant herein has timeously filed a similar application before this Honourable Court seeking amongst others an order of enlargement of the time within which the Applicant may seek the Leave of this Honourable Court to lodge his appeal.
11. It is in the interest of justice to hear and determine the Applicant’s application timeously so as to enable the Applicant exercise his constitutional Right of Appeal.
12. The Respondents will not be prejudiced by the timeous hearing and determination of the pending application.
13. I make this Oath in good faith and conscientiously believing same to be true and correct and in accordance with the Oaths Act.”
The 2nd and 3rd respondents have subsequently filed counter affidavits on 13-3-20 12 of 8 and 13 paragraphs respectively deposing to inter alia, the fact that the trial court had ordered hearing of the case on writ of summons rather than originating summons in its ruling delivered on the 2nd February, 2012 by Adamu Bello, I due to some issues including forgery raised in the depositions filed by the parties. It was further averred that all the learned counsel had consented to file pleadings. The appellant even applied for abridgement of time to file the plaintiffs pleading and was granted that request. The court then fixed hearing of the case on the 14th February when all pleadings would have been filed. (see the averments in paragraphs 4 and 5 of the 2nd respondent’s counter affidavit filed on 13-3-2012 and also paragraphs 5 -15 of the 3rd respondent’s counter affidavit filed on 13-3-2012 and paragraphs 8-25 of the further counter affidavit filed on the 11-4-2012). These far reaching averments in the two respondent’s counter affidavits and further counter affidavit have not been denied by the applicant.
The effect of failure to controvert depositions in the counter affidavits is that the applicant has fully accepted those depositions as true and the court will act upon them as the true facts.
The twin conditions under Order 7 rule 10(2) of the Court of Appeal Rules 2011 requires that the applicant must satisfy both preconditions in order to be entitled to grant of time extension to file their notice of appeal. It provides thus:
“Order 7 Rule 10(2) Every application for enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard…”
One gets a very dim view of what constitutes good and substantial reason in the main affidavit or the affidavit of urgency supporting the application. The applicant therefore fails to cross the first hurdle. Since it is mandatory to satisfy both conditions, failure to satisfy one of them renders the application unmeritorious. However, such applications are granted if the proposed Notice of Appeal contains strong grounds that require hearing the appeal on the merit.
The proposed Notice of Appeal is predicated on three grounds as reproduced hereunder less their particulars thus:
“GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge misdirected himself on the facts when he found and held that in order to resolve the conflicts in the parties’ affidavit and the issue of allegation of forgery of documents, the court would require oral evidence which can only be addressed by the filing of pleadings by the patties, and this occasioned a miscarriage of justice.
GROUND TWO
The learned trial Judge erred in law when he held that the justice of the case would be better served if the court will allow the parties to file pleadings so that oral evidence can be adduced by the parties.
GROUND THREE
The learned trial Judge erred in law when he declined to entertain the originating summons and ordered pleadings to be filed stating thus:-
“… so, given the serious dispute of facts between the parties and the challenge of the authenticity of exhibits 1-5 by the 2nd and 3rd Defendants especially regarding being had to the grave allegations of forgery of the documents by the Plaintiff, it is obvious that the court cannot resolve the conflict in the affidavit evidence by recourse to the documentary evidence or drawing any inferences there from. It follows therefore, that in order to resolve the conflict in the parties’ affidavit and the issue of forgery of document, this court will require oral evidence which can only be addressed by the filing of pleadings by the parties, and this occasioned a miscarriage of justice.”
I have failed to see, from the 3 grounds of appeal, any arguable ground compelling enough to warrant the court shutting its eyes to the non-fulfilment of the first condition. In fact all the grounds are frivolous and merely designed to buy time.
The failure of the applicant to satisfy any of the two mandatory conditions speaks volumes of the unmeritorious nature of the application. The applicant therefore does not deserve the exercise of the discretionary remedy he has sought for by this application. The application fails as being bereft of merit and is only deserving of dismissal. It is hereby dismissed with cost of N20, 000.00 against the applicants to 2nd and 3rd respondents.
JIMI OLUKAYODE BADA, J.C.A.: I had the privilege of reading before now the draft of the Ruling of my learned brother HUSSEIN MUKHTAR, JCA just delivered. My Lord has meticulously dealt with the issues for the determination of the Application.
I however want to make some comments by way of emphasis on the mandatory requirements for the grant of this type of application.
The Application is for enlargement of time within which the Appellant/Applicant may seek leave of this 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 delivered on 2/2/2012.
Pursuant to Order 7 rule 10(2) of the Court of Appeal Rules 2011, every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth the good and substantial reasons for failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the Order granting such enlargement shall be annexed to the notice of appeal.
Flowing from Order 7 rule 10(2) referred to above is the fact that for an application of this nature to succeed, the following two conditions must co-exist:-
(1) Good and substantial reasons for the failure to appeal within the period prescribed by the appropriate rules of the Court and
(2) Grounds of appeal which prima facie show good cause why the appeal should be heard.
See the following cases:-
– Ukwu vs. Bunge (1997) 8 NWLR Part 518 Page 527;
-Iweka vs. S.C.O.A. Nig. Ltd (2000) 7 NWLR Part 664 Page 325;
-N.D.I.C. vs. Ibru Sea Foods Ltd (2003) 16 WRN Page 33.
A careful examination of the affidavit in support of the Application, the counter affidavit and submissions of Counsel for the parties would reveal that the Applicant has failed to satisfy any of the two mandatory requirements for the Application to be granted.
It is for the above reason and fuller reasons in the lead Ruling that I hold that this Application lacks merit and it is also dismissed by me.
REGINA OBIAGELI NWODO, J.C.A.: In an application for extension of time to appeal the rules of this court under Order 7 rule 10(2) of the Court of Appeal Rules 2011 enjoins the applicant to establish by affidavit evidence that the delay in bringing the application is neither wilful nor inordinate. The Appellant must show good and substantial reason for failure to appeal within the prescribed period and that the grounds in the proposed notice of appeal prima facie show good cause why the appeal should be heard.
The Appellant failed to show in his affidavit good and substantial reason. I agree with my learned brother Mukhtar, JCA, that the application lacks merit. For the fuller reasoning in the lead Ruling, I too dismiss the application and I abide by the order as to cost.
Appearances
Emeka Etiaba Esq.,
with: –
K. Olowookere, Esq.
O. Olorunshola, Esq.
K. Shimbura, Esq.
I. Nwabueze, Esq.
M.P. Nwansat, Esq. and
Adejoh Joseph Esq.For Appellant
AND
Prisca Ozoimesike Esq. – for the 1st Respondent
Shola Egbeyinka Esq., with: –
Oluwafemi Adedeji, Esq. and
Olakitan Olatigbe Esq. for the 2nd Respondent.
Olukayode Ajulo Esq., with: Abimbola Awolola Esq. and Uzoamaka Ononiwu Esq. – for the 3rd Respondent.For Respondent
