IKECHUKWU v. NWOYE & ANOR (2013)

In The Supreme Court of Nigeria

On Friday, the 20th day of December, 2013

SC.131/2013

Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

KUMAI BAYANGA AKA’AHS Justice of The Supreme Court of Nigeria

Between

CHIEF AMEKE CHRISCATO IKECHUKWU –Appellant

AND

1. HON. TONY NWOYE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) –Respondents

…………………….A…………………….

CLARA BATA OGUNBIYI, J.S.C. (Delivering the Lead Ruling): The application at hand is brought pursuant to section 6(6) (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), order 8 Rule 4 of the Supreme Court Rules and the inherent jurisdiction of this Honourable Court praying for the following reliefs:-“1. AN ORDER of the Honourable Court granting leave to the Appellant/Applicant to file and argue Grounds of Appeal on issues of facts or mixed law and facts to wit Grounds 10, 11 and 12 in the proposed Amended Notice and grounds of Appeal.
2. AN ORDER of the Honourable Court granting leave to the Appellant/applicant to file and argue additional Grounds of Appeal to wit Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 in the proposed Amended Notice and Grounds of Appeal.
3. AN ORDER of the Honourable Court granting leave to the Appellant/Applicant to amend his Notice and Grounds of Appeal dated 27th March, 2013 and filed on the same date by correcting typographical errors and/or modifying existing grounds of Appeal in the manner shown and underlined in the proposed Amended Notice and Grounds of Appeal.
4. AN ORDER of the Honourable Court deeming the four copies of the Amended Notice and Grounds of Appeal separately filed and served in this appeal as properly filed and served, the appropriate filing fees having been paid.
5. AND FOR SUCH other order or orders as the Honourable Court may deem fit to make in the circumstances.”
There are four grounds predicating the application as follows:-
i) The Appellant/Applicant intends to file additional grounds of appeal which require the prior leave of the Honourable Court to file.
ii) Some of the additional grounds of appeal sought to be filed are grounds of facts and mixed law and facts which require leave of court to file and argue in this court.
iii) The proposed amendment to the Notice and Grounds of Appeal is required to enable the Appellant/Applicant to more effectively and effectually articulate the Appellant’s complaint against the judgment of the court below.
iv) It is in the interest of justice for the Honourable court to grant the requisite leave to enable the Appellant/Applicant effect the proposed amendment to the Appellant’s Notice and Grounds of Appeal.
In support of the motion is a 21 paragraphs affidavit to which three exhibits are attached. On behalf of the 1st respondent and opposing the application is a counter affidavit of 18 paragraphs filed on the 4th October, 2013.
On the 10th of October, 2013 when the application was heard the learned counsel Arthur Obi Okafor, SAN, led a number of his juniors and represented the applicant. In moving the motion, the senior counsel relied on all the paragraphs of the affidavit in support as well as the exhibits attached thereto. The learned counsel emphasized the seriousness of the grounds of appeal sought to be canvassed and urged that discretion be exercised in favour of the amendment asked for.
In opposing the application, the learned counsel Mr. Oguejiofor submitted on behalf of the 1st respondent and relied on the 18 paragraphs counter affidavit filed on the 4th October, 2013. In his argument, the counsel stressed and re-iterated the conflicting nature of the totality of the application and the grounds predicating same as well as the facts deposed to on the affidavit in support. In other words that Exhibits 1 and 3 which are the notice of appeal dated and filed 27th March, 2013 and the proposed amended Notice of appeal respectively are gruesomely conflicting and not connected whatsoever, one with the other. The learned counsel in further postulation drew our attention and related to the 3rd relief on the motion paper which he also argued is contradictory in the absence of the applicant pointing out any typographical error as portrayed; that materials were unilaterally inserted in exhibit ‘3’ without the leave of the court and on the totality therefore, the application should in the circumstance be refused and dismissed.
Representing the 2nd respondent, the counsel Mr. Alhassan A. Umar informed the court that no process was filed on behalf of his client.
It is a matter of common knowledge that section 6 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) vests judicial powers in the court and by the provision of subsection (6)(a) its application:-
“(a) Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;”
The expression “judicial power” was interpreted by this court in the case of Giwa v. I.G.P. (1985) 6 NCLR 369 at 385 as:-
“the powers of the court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.”
See also the case of Unongo V. Aku (1983) 14 NSCC 563 at 577 – 578, the pronouncement by Bello JSC (as he then was) on the said Constitutional provision.
Order 8 Rule 2(3) and (4) of the Rules of this court relate to notice and grounds of appeal and state as follows:-
“(3) The Notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) No ground which is vague or general in terms which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion on application by the respondent.”In summary, it is expected that a notice of appeal should convey in clear terms the substance of the appellant’s complaint against the judgment appealed for purpose of leaving the respondent in no doubt as to what battle he is expected to contest in court. Any ground which is vague, general in nature or speculative will fall short and not disclose any reasonable ground of appeal. The contents must in otherwords be specific and straight to the point.

It is also trite, though elementary, to state that the court is, as provided by the Constitution, clothed and imbued

…………………….B…………………….

with enormous wide and inherent powers which are exercisable at its discretion for purpose of doing justice. The caveat however restricts that the exercise of such discretion must not be whimsical or lackadaisical without due care and attention. It must, in other words be judicial and judicious having regard to all the facts and materials placed before it and also the circumstance relating to the case. For purpose of driving the point squarely home, I seek to emphasize that the expected result of adjudication on any matter is, whether justice has been done to the case or not. The quest is for justice; hence technicality which breeds injustice should not be allowed to rear its ugly head and thus beclouding the very reason why the system is put in place.
The principle of technicality has long been done away with under our judicial system of adjudication and given in to substantial justice as the prevailing order of the day. The reason justifying this endorsement is not farfetched but well founded; the law is made for man and not the reverse. For further and better emphasis I again seek to state that the primary purpose of putting the law in place is to ensure that justice is to prevail; any subsequent leaning towards technicality for purpose of circumvention would be self defeating of the very concept which is set out to achieve.
By the very nature of prayer 3 of the motion paper it is apparent that the grounds of appeal sought to sustain are all set out in exhibit ‘3’, the proposed grounds of appeal, which are very comprehensive and all encompassing, the absence of elegant composition notwithstanding.
I also wish to state that the totality of the application at hand seeks to amend an earlier notice of appeal filed 27th March, 2013, being the very day the judgment sought to appeal was delivered by the lower court. This is evident on the facts disclosed at paragraphs 6 and 7 of the affidavit in support of the application and also exhibit ‘1’, being a copy of the said notice and grounds of appeal. The application for the additional grounds of appeal sought to argue relate to issues of facts or mixed law and facts which by the Constitution require the leave of court to file. It is also pertinent to restate that the proposed amended notice and grounds of Appeal as stated earlier has been exhibited to this application and marked Exhibit ‘3’.
Furthermore and at paragraph 16 of the affidavit in support of the application, the applicant had deposed that the amendment is very “crucial and pivotal for the effective and effectual determination of this appeal.” It is also deposed that the interest of justice will be served in granting the application especially where the 2nd respondent will not be prejudiced. The said respondent in the absence of any process filed is deemed to have conceded the application.
I have carefully perused the counter affidavit filed by the 1st respondent upon which his objection is anchored. With reference made to paragraphs 3 and 4 of the document, I wish to state that they have been overtaken by the argument of counsel Mr. Oguejiofor who withdrew his submission predicated on the non existence of the notice and grounds of appeal sought to amend. In other words, counsel no longer relied or pursued the facts deposed to in the said paragraphs 3 and 4 of the counter affidavit. Consequently, the argument and submission on that behalf are of no moment and do not hold. They are as a result struck out.
Having dispensed with paragraphs 3 and 4, therefore, paragraph 16 of the counter affidavit is worthy of note, wherein the 1st respondent denied paragraphs 19 and 20 of the affidavit in support of the application and alleges that granting same will be prejudicial to him.
On a careful and thorough perusal of the entire paragraphs of the counter affidavit, there is no deposition to sustain or confirm the nature of prejudice alleged or its likelihood to the said respondent if this application is granted.
This is not to say however that the 1st respondent’s counsel was out of place in submitting on the conflicting and inelegant nature of the grounds of appeal as contained in exhibits 1 and 3. In other words, notwithstanding that the reliefs sought were clumsily couched, the totality of the application in my view is sustainable under relief 3 of the motion paper wherein the following phrase in the prayer serves a saving grace.
“by correcting typographical errors and/or modifying existing Grounds of Appeal in the manner shown and underlined in the proposed Amended Notice and Grounds of Appeal.”
What the applicant is seeking leave from the court to put in place as his notice and grounds of appeal are contained in Exhibit ‘3’, the proposed notice and grounds of appeal which is to replace exhibit ‘1’.
In other words the intention is to amend the initial eight grounds of appeal by adding more grounds on issues of facts or mixed law and facts. The product of the amendment Exhibit ‘3’ containing 15 grounds of appeal is further sought to be deemed as filed and served.
The law is trite and well settled that an amendment can be made at any time before judgment. This is reasonable because once judgment is delivered, a seal has been put to the controversy between parties and therefore ends the adjudication in that court. Order 8 rule 4 of the rules of this court is also relevant wherein it states:-
“A notice of appeal may be amended by or with the leave of the court at anytime.”
I also wish to state that for all intent and purpose, the judgment sought to appeal was delivered out of the statutory period allowed by law as prescribed by section 27(2)(a) and (4) of the Supreme Court Act which provides thus:-
“(2) The period prescribed for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) In an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.
(4) The Supreme Court may extend the periods prescribed in subsection (2) of this section.”
With reference to the foregoing provision, the applicant, in the case at hand needed to have asked for extension of

…………………….C…………………….

time as an additional relief for his application to be complete. However and that notwithstanding, the justice of this case should not be defeated but will be served if the provision of Order 10 Rule 1(1) AND (2) of the Rules of this court is invoked and read along with section 27 (4) of the Act (supra) for purpose of amelioration. Suffice it to say that the reproduction of Order 10 rule 1(1) and (2) of the Rules of court will be necessary and is as follows:-
1 (1) The court may, where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.
(2) Where there is such waiver of compliance with the Rules, the court may, in such manner as it thinks right, direct the appellant or the respondent, as the case may be to remedy noncompliance or not but may, notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstance.”
In the result and on the totality of the application therefore, same I hold should in the interest of justice be granted in terms of the following orders:-
1) AN order is made granting leave to the Appellant/Applicant to file and argue grounds of Appeal on issues of facts or mixed law and facts to wit Grounds 10, 11 and 12 in the proposed Amended Notice and Grounds of Appeal.
2) A further order is also made granting leave to the Appellant/Applicant to file and argue additional Grounds of Appeal to wit Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 in the proposed Amended Notice and Grounds of Appeal.
3) Another order is also made granting leave to the Appellant/Applicant to amend his Notice and Grounds of Appeal dated 27th March, 2013 and filed on the same date by correcting typographical errors and/or modifying existing Grounds of Appeal in the manner shown and underlined in the proposed Amended Notice and Grounds of Appeal.
4) A final order is also made deeming the amended Notice and Grounds of Appeal separately filed on the 27th September, 2013 as properly filed and served today being 20th December, 2013.
The application succeeds and is granted. I also make no order as to costs.

IBRAHIM TANKO MUHAMMAD, J.S.C.: I read in advance the Ruling just delivered by my learned brother, Ogunbiyi, JSC. I, too, find merit in the application and I grant same as per the reliefs sought in the Motion on Notice. I abide by other orders made in the lead Ruling.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft, the ruling of my learned brother Clara Ogunbiyi, JSC just delivered and I am in agreement that there is nothing unfair or overreaching in the application as alleged by the 1st respondent. There is merit in the application. I adopt the reasoning and conclusion of my learned brother in the lead ruling as my own. I abide by the order on costs.

MUSA DATTIJO MUHAMMAD, J.S.C.: I had a preview of the lead ruling of my learned brother Ogunbiyi, JSC, with whom I agree that the application to which the ruling relates has merit and same be obliged.
In supporting the lead ruling, Order 8 rule 4 of the Supreme Court Rules is particularly herein under reproduced for ease of reference:
“A Notice of appeal may be amended by or with leave of the Court at any time.”
Two of the grounds the applicant predicates the reliefs he seeks read:-
“(ii) Some of the grounds of appeal sought to be filed are grounds of facts and mixed law and facts which require leave of court to file and argue in this Court.
(iii) The proposed amendment to the Notice and Grounds of Appeal is required to enable the Appellant/Applicant to more effectively and effectually articulate the Appellant’s complaint against the judgment of court below.”
Learned applicant counsel in relying on the twenty one paragraph affidavit in support of applicant’s motion and the three annexures thereto remains emphatic that it is in the interest of Justice to grant the applicant the reliefs he seeks.
1st respondent relies on his eighteen paragraph counter-affidavit in opposing the application. It is argued on his behalf by counsel that the materials the applicant relies upon are self-contradictory and the submissions advanced by his counsel incoherent. Learned respondent counsel contends that the application lacks merit and that same be refused.
It is not respondents’ case that the appellant/applicant’s Notice of appeal is incompetent such that adding to the entirely invalid grounds in the said notice is impossible. It is only asserted that with the contradictions inherent in the materials the applicant relies upon he cannot be allowed the indulgence he seeks.
It is beyond dispute that the Notice of appeal the applicant seeks leave to amend by adding thereto more grounds contains valid grounds and therefore remains valid and extant. I am of the firm view that learned respondents’ counsel appears to further underestimate the powers of this Court outlined under Order 8 rule 4 as already reproduced and Order 10 rule 1 (1) and (2) hereinunder also reproduced:-
“1 (1) The court may, where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.
(2) Where there is such waiver of compliance with the Rules, the court may, in such manner as it thinks right, direct the appellant or the respondent, as the case may be, to remedy such non-compliance or not but may, notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstances.”

I tarry to reproduce Section 27 (2)(a) and (4) of the Supreme Court Act which specifies the time within which the right of appeal created under Section 233 of the 1999 Constitution may be activated by the appellant.

The Section provides:-
“(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are:-

…………………….D…………………….

(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.
(4) The Supreme Court may extend the periods prescribed in subsection (2) of this section.”
The applicant herein only seeks leave of this Court to file additional grounds of appeal which are grounds other than grounds of law alone. Learned counsel for the applicant cannot be faulted that such grounds, not coming within the purview of Section 233 (2) of the 1999 Constitution as amended require leave, by virtue of subsection 3 of the same section, for their competence. The latter subsection reads:-
(3) Subject to the provisions of subsection (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”
Learned applicant counsel seems to have forgotten that the applicant’s right of appeal created under section 233 (3) of the Constitution is exercisable, given subsection 6 of Section 233 of the said Constitution,” in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the supreme court”. The clear and unambiguous words which make up Section 27 (2) (a) require that “notice of application for leave” such as the applicant now seeks to issue must be given in respect of a final decision of the Court of Appeal within three months from the date the decision sought to be appealed against was delivered. To issue a competent notice, where the decision being appealed against was delivered more than three months previously, therefore, the appellant/applicant must seek and obtain extention of time within which to seek and obtain the mandatory leave envisaged under Section 233 (3) of the 1999 Constitution as amended.
Ordinarily, applicant’s motion that does not seek extention of time to seek leave to appeal in respect of the additional grounds in the proposed amended Notice which are not grounds of law alone would be incompetent. This is so because an application for leave to appeal from the decision of the court of Appeal in a civil case, where the appeal, as in the instant case, is against a final decision, must be filed, heard and determined within the three months allowed by Section 27(2) of the Supreme Court Act. See Owoniboys tech services Ltd v. John Holt Ltd (1991) 7 SC (pt.11) 161, Ogembe v. Usman & 7 Ors (2011) 12 SC (Pt.1) 34 and In Re-Madaki (1996) 7 NWLR (Pt.459) 153.Notwithstanding the deficiency in applicant’s motion, this Court may, where the Justice of the case so requires, order that a particular step be taken by any of the parties before it. That, in essence, is what Order 10 rules 1 and 2 of the rules of this Court manifestly encapsulates. The instant application is a bid to facilitate the effect and effectual determination of the grievances the applicant, by virtue of Section 233(2) of the 1999 Constitution, is entitled to ventilate. It is for that particular reason and the fuller reasons articulated in the lead ruling that one falls back on Order 10 rules 1 and 2 of the rules of this Court to facilitate the just and effectual determination of those otherwise incompetent grounds in applicant’s amended Notice of appeal. 1st respondent’s objection is thus overruled. The application accordingly succeeds in the following terms:-
“(1) An order is made extending time for the appellant/applicant to seek leave to appeal on issues of fact or mixed law and fact to wit grounds 10, 11 and 12 in the proposed Amended Notice and Grounds of appeal.
(2) An order is made granting leave to the Appellant/Applicant to file and argue grounds of Appeal on issues of facts or mixed law and facts to wit Grounds 10, 11 and 12 in the proposed mended Notice and Grounds of Appeal.
(3) A further order is also made granting leave to the Appellant/Applicant to file and argue additional Grounds of Appeal to wit Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 in the proposed Amended Notice and Grounds of Appeal.
(4) An order is also made granting leave to the Appellant/Applicant to amend his Notice and Grounds of Appeal dated 27th March, 2013 and filed on the same date by correcting typographical errors and/or modifying existing Grounds of Appeal in the manner shown and underlined in the proposed Amended Notice and Grounds of Appeal.
(5) A final order is also made deeming the amended Notice and Grounds of Appeal separately filed on the 27th September, 2013 as property filed and served today being 20th December, 2013.”

Parties should bear their respective costs.

KUMAI BAYANG AKAAHS, J.S.C.: I read in draft the Ruling of my Lord, Ogunbiyi, JSC. I agree that the appellant should be granted leave to amend his Notice of Appeal to encapsulate grounds of mixed law and fact. I abide by the order made on costs in favour of the 1st respondent.

Appearances

Arthur Obi Okafor, SAN appearing with Ifeanyi Azuamah, Esq., Fidelis Amukwu Esq., Kenechukwu Esq., Chinyere Uzuegbunam (Miss), C. S. Okafor (Mrs), Prince Igajah, Esq., and Ekokoiesu Urua, Esq. For Appellant

AND

C. Chuma Oguejiofor appearing with Ernest Nwoye, Esq., I. Onuamah, Emenike Ikoro, Patrick Agu Esq., Nweke Tobechukwu for the 1st Respondent
Alhassan A. Umar Esq., Abdulaziz Sani, Esq., Ibrahim Sani Mohammed, Esq., Olawale Dawodu Esq., appearing for the 2nd Respondent. For Respondent

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