Etubom (Dr) Anthony Asuquo Ani & 4 Ors V Etubom Ekpo Okon Abasi Out & 4 (2017)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, JSC

The Appellants challenged the nomination and selection of the 1st Respondent as Obong of Calabar, in Suit No. HC/102/2008; which they filed at the High Court of Cross River State, Calabar. The learned trial Judge, Ogar, J., delivered his Judgment on 30/1/2012, wherein he found in favour of the Appellants and granted the seven reliefs sought, including a declaration that – The presentation and/or selection of the 4th Defendant [i.e. the 1st Respondent], who was Chairman of the Screening Committee for the selection of a candidate for the stool of Obong of Calabar, as a candidate for the Obong of Calabar throne or purported selection of the 4th Defendant as the Obong of Calabar elect is contrary to natural justice, equity and good conscience. Dissatisfied, the 1st set of Respondents appealed to the Court below – Appeal No. CA/C/97A/2012. In its Judgment delivered on 4/7/2013, the Court below ordered that the 1st Applicant, who was not capped/inducted into Etubom’s Council of the Palace at the time of the selection process, was not traditionally qualified and eligible to vote and be voted for as the Obong of Calabar. The Appellants filed an Application at the Court below on 11/9/2013 for leave to appeal, etc., which they later withdrew, but they still filed a Notice of Appeal in this Court on 3/10/2013; complaining against part of the decision of the Court below i.e. – The finding as to the disqualification of the 1st Appellant and qualification of the 1st Respondent herein to vie for the position of Obong of Calabar ha vinp regard to the state of the evidence. It was based on this Notice of Appeal that the Record of Appeal was compiled and transmitted to this Court. They later filed an Application on 23/5/2014 to amend the said Notice of Appeal, and to seek leave to appeal on grounds of mixed law and facts. The Application that was opposed by the Respondents came up for hearing on 25/6/2015, and was later adjourned to 2/2/2016, for Written Addresses to be filed, and conclusion of arguments. Meanwhile, the Appellants did not wait for the said 2/2/2016, and filed this Application on 30/12/2015 praying this Court for – 1. An Order extending time for [them] to seek leave to appeal against the Judgment of the Court of Appeal sitting in Calabar delivered on 4/7/2013 in Appeal CA/C/97A/2012. 2. An Order granting [them] leave to appeal. 3. An Order extending time for [them] within which to file the Notice and Grounds of Appeal against the said Judgment. 4. An Order granting [them] leave to appeal on grounds of mixed laws and facts. 5. An Order deeming the Record of Appeal earlier transmitted by the lower Court as the Record of Appeal. 6. An Order deeming Notice and Grounds of Appeal dated and filed separately on 30/12/2015 as properly filed and served appropriate fees have been paid. 7. An Order deeming the Appellants’ Brief of Argument dated and filed on 30/12/2015 as duly filed and served. The Grounds upon which the Application is predicated are that- i. They filed an Application before the lower Court on 11/9/2013 for leave to appeal on grounds of mixed law and fact timeously but unfortunately the lower Court could not hear the Application until the time allowed to appeal expired on 5/10/2013 and the Motion was withdrawn and struck out. ii. However, on sensing that time was running out, they filed a Notice and Grounds of Appeal on 3/10/2013, believing that Ground 1 In the said Notice of Appeal Is ground of law not requiring leave of Court so as to sustain the Appeal. iii. Upon the transmission of the Record of Appeal to [this] Court, they brought an application for leave to appeal on grounds of mixed law and facts as it relates to the other grounds perceived to be grounds of mixed law and facts, which was fixed for hearing on 25/6/2015. The Respondents opposed the Application and [it] was adjourned to 2/2/2016 for full argument. iv. In order not to dissipate energy and waste valuable judicial time, they have chosen to bring a fresh Application as contained in this Motion herein. v. The proposed Notice of Appeal raise very substantial and arguable grounds of appeal. vi. The delay in bringing this Application is not deliberate but as a result of the fact that the distinction between grounds of law alone and grounds of mixed law and facts are not easily discernible and the peculiar circumstances of this matter. vii Valuable time and energy will be saved by starting the process all over again instead of insisting on arguing the earlier Application, which will be withdrawn. viii. The time allowed by law to appeal expired on 5/10/2013. ix. They are desirous of expeditious hearing of this appeal and so have also filed their Appellants Brief of Argument. x. It is in the interest of justice for the Application to be granted. The Application is supported by a 16-paragraph Affidavit, and annexed thereto are the relevant processes, as Exhibits A – E. In opposing the Application, the 1st set of Respondents filed a 4- paragraph Counter-Affidavit; attached thereto are Exhibits 1-5. The 2nd set of Respondents, are also opposing the Application, and they filed a 16-paragraph Counter-Affidavit to that effect. In addition to their respective Counter-Affidavits, the two sets of Respondents also filed Notices of Preliminary Objection. The 1st set of Respondents, are by their Notice of Preliminary Objection filed on 1/2/2016, praying this Court for the following – (i) An Order that this Court lacks jurisdiction to hear this Appeal No. SC.633/2013 for failure of the Appellants to first obtain leave of the Court before filing the Appeal on 30/12/2015 as required under Section 233(3) of the 1999 Constitution (As Amended). (ii) An Order to dismiss/strike out the 2nd Appeal No. SC633/2013 filed on 30/12/2015 for being defective and and/or incompetent. (iii) An Order to dismiss the Appellants’ Motion on Notice on of 30/12/2015 for being an abuse of the process of this Court. The Grounds for the Application (sic) are as follows – 1. The Appellants’ Grounds of Appeal filed on 30/12/2015 contain grounds other than law alone (i.e. grounds of facts and of mixed law and facts) 2. [They] ought to have first sought and obtained leave of either the Court below or this Court before filing the Appeal on 30/12/2015. 3. The failure to FIRST seek and obtain such leave of Court before filing their Notice of Appeal on 30/12/2015 contravenes Section 233(3) of the 1999 Constitution (as amended) 4. [They] admitted in paragraph 12 of the Affidavit in Support of their Application of 30/12/2015 that their said Notice and Grounds of Appeal raises grounds of mixed law and facts requiring the leave of this Court, and they filed their Notice and Grounds of Appeal. 5. The said admission in paragraph 12 of their said Affidavit – – is an admission that they have filed to comply with Section 233 (3) of the Constitution – – which is a condition precedent to filing an appeal containing grounds of facts and of mixed law and facts. 6. The Appellants Brief of Argument filed separately as admitted by them in paragraph 13 of their Affidavit in Support filed on 30/12/2015 is premised on an incompetent Notice of Appeal. 7. Where [they] failed to satisfy a condition /precedent for filing an appeal containing grounds of fact and of mixed law and facts, this Court cannot proceed with the determination of such an appeal. 8. Seeking and obtaining leave is a condition precedent to filing the Notice of Appeal filed on 30/12/2015 and having failed to obtain such leave (as required under Section 233 (3) of the Constitution, they cannot invoke adjudicatory power/jurisdiction of the Court. 9. The Motion filed on 30/12/2015 in SC.633/2013 is an abuse of Court process having regard to their Motion on Notice filed on 23/5/2014 in the same SC/633/2013 seeking similar prayers, and the proceedings in this Court in SC. 633/2013 on 25/6/2015. 10. The Motion on Notice filed on 30/12/2015 will deprive the 1st and 2nd Respondents of the right to fair hearing having regard to the proceedings in the first Appeal No. SC.633/2013 on 25/5/2015. 11. The [Application] filed on 30/12/2015 is aimed at overreaching [the Respondents] having regard to the proceedings – – on 25/6/2015 in – – and the processes [they] filed on 22/6/2015, and 5/10/2015 and served on the Appellants on 6/10/2015. 12. The Appellants have seen and read the 1st and 2nd Respondents Counter Affidavit, application in objection (to their Application filed on 23/5/2014) and Amended Notice of Appeal filed on 22/5/2014, Notice of Appeal filed on 3/10/2013 and their Brief of Argument in support of their objection, after which they filed a fresh application for leave and a fresh Notice of Appeal on 30/12/2015 in the same SC.633/2013. 13. There is no Further Affidavit, Counter Affidavit nor Brief of Argument filed in response to 1st and 216 Respondents processes mentioned in paragraph 13 above before [they] filed a fresh application for leave and fresh Notice of Appeal on 30/12/2015. 14. The deeming Orders being sought by [them] in their Application filed on 30/12/2015 and their averment that they have paid penalties charged them for filing their processes cannot cure their failure to comply with Section 233/(3) of the 1999 Constitution – – The Notice of Preliminary Objection is supported by an Affidavit containing the same averments as in their Counter-Affidavit, and they also attached the same Exhibits 1 to 5 to the Affidavit. The 2nd set of Respondents also challenged the competency of this Application in their Notice of Preliminary Objection filed on 25/1/2015, and their Grounds of Objection, are as follows – 1. All the grounds of the Appellants’ Notice of Appeal are grounds of mixed law and facts. 2. None of the grounds – – are grounds based on law alone. 3. [They] did not obtain leave – – before filling their Notice of Appeal in accordance with Section 233(2) and (3) of the 1999 Constitution – -and Order 2 rule 30, Supreme Court Rules (as amended) as a condition precedent to bringing the Notice of Appeal. 4. It is the same Notice of Appeal that the Appellants seek to amend by their application filed on the 23/4/2014. 5. The Appellants’ Brief of Argument sought to be deemed properly filed and served is settled based on the same Notice of Appeal. 6. The defect of the Notice of Appeal cannot be cured by an order of amendment or extension of time being sought by the Appellants. They filed a 13-paragraph Affidavit in support of their Objection. Parties filed Written Addresses for and against the Application, and Written Addresses and Replies thereto, for the Objections. The Respondents proffered, more or less, the same arguments in opposing the Application and in objecting to its competency. However, the crux of their Objections to the Application is that this Court lacks jurisdiction to hear this Appeal because the Applicants failed to first obtain leave before filing the Appeal, contrary to Section 233(3) of the Constitution, which provides – Subject to the provisions of sub-section (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal with the leave of the Court of Appealer the Supreme Court. The said sub-section (2) of Section 233 referred to, provides – An appeal shall lie from decisions of the Court of Appeal as of right in the following cases – (a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal. They contend that since the Applicants failed to seek leave of Court to file the Notice of Appeal, containing grounds of facts and mixed law and facts, the Appeal is incompetent, defective, and incurably bad, so this Court lacks the jurisdiction to hear it. The 1st set of Respondents submitted that the Application is an abuse of Court process having regard to the previous one, and proceedings of 25/6/2015; that the Application is aimed at overreaching them; and the Applicants had seen their Counter-Affidavit and the Objection to the earlier Application before they filed this fresh Application for leave and fresh Notice of Appeal. The 2nd set of Respondents also argued that none of the six Grounds of Appeal in the said Notice of Appeal are based on question of law alone, and that the fundamental defect in such an originating process, cannot be cured by any amendment, therefore, this Court ought to dismiss or strike out this Appeal. The Applicants argued in their Replies that this Court has jurisdiction to hear the Application, and give life to the Appeal, citing Nalsa & Team Associates V. NNPC (1991) 11-12 SC 83; that the grant or refusal of this Application is at the discretion of this Court; and that the said Objections will not stop them from correcting errors in the process of the appeal, citing Tsokwa Oil Marketing Co. V. B.O.N. (2002) 11NWLR (Pt. 777) 163 SC. At this point, the issue is not whether there is any merit in this Application or not, it is whether this Court has jurisdiction to entertain this Application filed on 30/12/2015, in the first place. Jurisdiction is the authority that the Court has to decide or take cognizance of matters presented for its decision – Mobil Prod. (Nig.) Unltd. V. LASEPA (2002) 18 NWLR (PL 798) 1. An appeal, which is the continuation of a case from a trial Court, is commenced by notice of appeal. So, the notice of appeal is the foundation of an appeal, and the Respondents are right -an incompetent notice of appeal deprives an appellate Court of jurisdiction to hear the appeal- see Aderibigbe V. Abidoye (2009) 10 NWLR (PL 1150) 592 SC, cited by the 1st set of Respondents, PAGE| 8 where Muhammad, JSC, explained as follows – A notice of appeal is the spinal cord of an appeal. It is the foundation upon which an appeal is based. It is the originating process, which sets the ball rolling for the proper, valid and lawful commencement of an appeal. Where the notice of appeal is defective no proper appeal can stand. It will, certainly, collapse – -A notice ‘of appeal can be competent and valid if it contains at least one valid ground of appeal – – A bare notice of appeal without any ground of grounds of appeal, is valueless and incompetent – – It is incurably bad. The defect cannot be cured by amendment. That is true; but there is room for the Appellant to maneuver. Order 2 rule 31 of the Rules of this Court, provides as follows – (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice. (2) Every application for an enlargement of time in which to apply for leave to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal and to apply for leave to appeal within the prescribed period- — In other words, where an appeal requires leave of Court and the time within which to appeal has also expired, the Appellant may apply for extension of time to seek leave to appeal. To this end, it is crucial that an intending Appellant file a tripod application -a prayer for (a) extension of time to seek leave to appeal; (b) leave to appeal; (c) extension of time to appeal. For there to be a valid appeal, the three reliefs must be granted by the Court -see Odofin V. Agu (1992) 3 NWLR (Pt. 229) 350 at 375 SC. In that case, Odofin V. Agu (supra), the Respondents filed an Application at the Court below without the said three prayers and it granted the Application, heard the appeal, and allowed it. But the Appellants’ appeal to this Court was allowed because – The Appellant made his application as prescribed by the Rules, but omitted a relevant prayer. That is the prayer extending time to give notice of appeal. This notice is crucial and decisive because – – the Judgment appealed against was decided on 16/5/1985. Thus, on the 4th and 21st October, 1985, when the application was made and the Court of Appeal gave the Ruling respectively, the Appellant was more than six weeks out of time. It was, therefore, necessary for the Court to enlarge the time for giving notice, to have a valid notice of appeal before the Court. The notice of appeal – is the real and constitutional signal of dissatisfaction against the Judgment – -Where as in this case, the application to appeal was made out of time; a notice of appeal made out of time will require a prayer for enlargement of time within which to file such notice of appeal. In the absence of a notice of appeal, namely, the foundation of the appeal, there is no appeal before the Court. [Karibi-Whyte, JSC] PAGE| 9 Piecing the above principles together, the fact that an Appellant had filed an incompetent notice of appeal does not preclude him from applying to an appellate Court for an extension of time within which to file the notice of appeal, and salvage the appeal – see Naisa & Team Associates V. NNPC (supra). In this case, the Notice of Appeal is incompetent and the Applicants are not contesting that fact because in Ground ii of the Grounds for this Application, they said they filed it believing that Ground 1 is a ground of law not requiring leave of Court”, and as the 2nd set of Respondents pointed out, they admitted in paragraph 12 of the Affidavit in support of this Application that – The Grounds of Appeal all raises grounds of mixed law and facts requiring leave of the Honourable Court. By their own admission, the Notice of Appeal filed in this Court on 3/10/2013, which required leave of Court, and which leave was not sought and obtained before it was filed, is incompetent. But they filed the “tripod application”: to save their appeal, and this Court is now faced with the Preliminary Objections, which are aimed at determining this Application in limine and the said Application, which seeks to give life to the said Appeal. What to do is the question? In Nalsa & Team Associates V. NNPC (supra), this Court, per Nnaemeka-Agu, JSC, held that – Where the complaint in the preliminary objection is to the effect that the Court has no jurisdiction to hear the appeal at all or that there is no competent appeal before the Court or that a threshold issue is involved, then a fundamental issue which goes to the vires of the Court has been raised. When such is the case, one of two factual situations may arise. The Respondent’s motion may be one [that] is capable of breathing life into the incompetent process. In other words, the erring Appellant has realized his mistake and has filed a motion which, if granted will correct it and bring about a valid and competent appeal. – – In the hey days of technicality, the practice was to take the motion, which sought to strike out the appeal as incompetent first, leaving the Appellant to seek to commence another appeal if he liked, I am of the view that that does not accord with the present inclination of the Courts to do substantial justice, for, the days of technicality are gone. If, as a reflection of the present mood of Courts to do substantial rather than technical justice, a Court of justice and equity decides to first take a motion which seeks to bring about a competent appeal, where there is ex-facie a proper application for such, before taking the one which seeks to strike out the appeal is incompetent, I can see nothing wrong with the practice. To adopt that course will save both time and expenses. In saying so, I am not unaware that in Awote V. Owodunni & Anor – – my learned brother Oputa, JSC, expressed the opinion that this was not the proper course because as the appeal was incompetent, ex nihilo nihil fit (you can build nothing out of nothing). But with respect, I think the statement was obiter and that, although reflective of the old practice, does not now represent the mood of the Courts. Now, where there is before the Court a proper application to correct the error even if it could have the effect of breathing life into an incompetent appeal, I see nothing wrong with the Court taking such an application first. In this case, the complaint is that there is no competent appeal before the Court, and this Court lacks the jurisdiction to hear it. But the fact remains that the Applicants have a right of appeal, guaranteed to them by the 1999 Constitution (as amended), which overrides any negative principles aimed at its foreclosing- see Anachebe V. Ijeoma (2014) 14 NWLR (Part 1426) 168, cited by the Appellants, where Ogunbiyi, JSC, aptly observed – It is well settled that a right of appeal is constitutional as is provided in the Constitution. The right being constitutional therefore, it stands to override most other negative principles aimed at its foreclosing. The rider also stands clear that the exercise of this right is only permissible within limit as provided by law. The right is lost outside the prescribed statutory period allowed but will only be exercised by leave of Court; hence the reason for seeking an order for leave and extending the time within which to appeal. While the constitutional right cannot be extended if the Applicant fails to adduce good and substantial reason for obliging the Application, the Court will also not hesitate to exercise its discretion in favour thereof provided sufficient materials – – are contained in the affidavit to justify the exercise. The 2nd set of Respondents also complained that the Appellants had seen the processes they filed in respect of the Application of 23/5/2015 before they filed this one, but that is of no moment. The fact that the Applicants filed this Application after they had filed a Preliminary Objection challenging the competency of the said Application of 23/5/2015, will not bar the Applicants from correcting any errors that will put them on the right footing – see Shanu V. Afribank (supra), where Ayoola, JSC, clearly stated – The contention that this application should not be granted because a preliminary objection has been raised showing the errors in the process of the Applicant’s appeal is without substance. The Applicant is not foreclosed by the preliminary objection from correcting those errors or starting the process afresh on a more appropriate footing. See also Nalsa & Team Associates V. NNPC (supra), where this Court, per Karibi-Whyte, JSC, also explained as follows – If a preliminary objection to dismiss an appeal is taken during the pendency of an Application to correct the errors on which the preliminary objection is based, the preliminary objection will succeed and the action dismissed. This is because the error remains extant, the question whether the error can be corrected having not been investigated. This is clearly unjust and against our concept of administration of justice. – – Whenever a party – -detects an error – – which if uncorrected will adversely affect his chances, and has by application made effort to correct such errors, the principles of justice demand that he should not be denied the opportunity to do so. It will be preposterous to concede to the contention that the error so detected should remain uncorrected, so that the adversary can take advantage of it. It is important to appreciate the basic distinction between hearing an application and granting the prayers in it Hearing an application does not necessarily mean granting the prayers sought. The prayers sought which if granted may remedy defect in the errors, and render the preliminary objection unnecessary. If rejected, the preliminary objection can be argued. In this case, there is nothing more that I need to add or explain. Yes, the Application filed on 23/5/2015 was still pending when the Applicants filed this Application on 30/12/2016, but they are not foreclosed by the preliminary objections filed against same, from starting the process afresh on a more appropriate footing -see Shanu V. Afribank (supra), which is exactly what they did. The law makes room for them to realize their mistakes and file an Application, which if granted, will correct defects in the Notice of Appeal, and bring about a valid and competent appeal – see Nalsa & Team Associates V. NNPC (supra). Therefore, the Respondents’ Preliminary Objections are overruled and this Application filed on 30/12/2015, will be decided on its merits. The Application pertains to leave of Court, and whenever leave of Court is a condition precedent for exercise of a right, the discretion of the Court is implied, and a party applying to the Court to exercise its discretionary power in his favour must put up a convincing argument showing that in fact and in law he is entitled to a decision which he has applied for – see Re: Alase (2002) 10 NWLR (PL 776) 553 SC. In this case, the Applicants are praying for an extension of time to seek leave to appeal; leave to appeal; extension of time within which to file the notice of appeal; leave to appeal on grounds of mixed law and facts. The other Reliefs 5. 6 & 7 are prayers for deeming orders that are dependent on the outcome of the main Reliefs 1, 2 & 3. The question now is whether the Applicants provided sufficient materials and reasons to grant this Application in their favour. To this end, the Applicants have to show that the delay in bringing this Application is neither wilful nor inordinate and that there are good and substantial reasons for the failure to appeal within the prescribed period; and their grounds of appeal must prima facie show good cause why the appeal should be heard. The two conditions are conjunctive and not disjunctive; they must co-exist. If one is missing, the Application must fail -see Nwora V. Nwabueze (2011) 15 NWLR (PL 1271) 467 SC. In this case, the essence of the Applicants’ Application is that – – They are out of time to seek leave to appeal. – They are also out of the statutory period allowed to file their notice and grounds of appeal. – They are appealing on grounds of mixed law and facts. – The grounds of appeal are substantial and arguable. – The delay in filing of the Notice of Appeal is not deliberate, but due to the inability of the lower Court to grant them leave, before the expiration of the statutory time to file the appeal. – They filed the appeal timeously with the hope of regularizing same at this Court, but have chosen to restart the whole process. They submitted that they have a constitutional right of appeal albeit with leave of the lower Court and within three months -Abba-Tukur V. Gongola State Govt. (1988) 1 NWLR (PL 68) 39, and that the Grounds of Appeal raise substantial issues – Chief F.RA Williams (SAN) V. Nwosu (2000) 9 NWLR (PL 671) 215, Ikenta Best V. AG, Rivers State (2008) 6 NWLR (PL 1084) 612. The Respondents restated that failure to obtain leave robs a Court of jurisdiction; and since Applicants cannot put a legal process on an illegal foundation, the appeal must be withdrawn; so they commence a fresh one with valid and legal foundation. The 1st set of Respondents also argued that they will suffer great injustice by the grant of this Application, which is brought mala fide and is aimed at overreaching them and shortchange them of their right to fair hearing; and that this fresh Application filed on 30/12/2013, is an abuse of the process of this Court. The 2nd set of Respondents argued along the same lines. They submitted that the Applicants cannot bring this Application without withdrawing the similar application filed on 27/5/2014, and citing CBN V. Ahmed & Ors (2001) 5 SC (PT.11) 146, on what constitutes an abuse of Court process, they argued that – The Applicants filed an Application while waiting for the pending Application to be fully heard, and also filed the present Application seeking substantially the same reliefs. Nothing can be more irritating and annoying than this. The Application is targeted at irritating, annoying and misleading the Respondents. I have read the Exhibits attached to this Application, including Exhibit F – Proposed Notice and Grounds of Appeal, and I am of the view that in the circumstances of this case, this Application should be granted as prayed. To start with, the Applicants have explained why the said Notice of Appeal was filed out of time. They filed the Application of 11/9/2013 timeously but the Court below did not hear it until time to appeal expired on 5/10/2013. I am also satisfied that the thirteen Grounds of Appeal in the said Exhibit F, touching on wrongful evaluation of evidence, raise substantial issues that are arguable on appeal, particularly in this case, where there are conflicting findings of facts by the two lower Courts; the trial Court found in the Applicants’ favour and the Court below set it aside and found for the Respondents. Generally, it is difficult to obtain leave where an appeal is against a finding of fact made by a trial Court and concurred to, by the Court below because appeals from concurrent findings of facts by those Courts are granted in exceptional circumstances – Order 2 rule 32 of the Supreme Court Rules (as amended). In this case, the reverse is the case; there are conflicting findings of facts by the two Courts, and that is reason enough, in my view, to grant this Application to regularize the Appeal. The Respondents, who say they will suffer great injustice if this Application is granted, have not shown how they will suffer any negative consequences, if this matter proceeds on appeal. They also argued that the Application was brought in bad faith, to overreach them and deprive them of their right of fair hearing. The word “overreach” simply means “to take advantage of – see Webster’s Comprehensive Dictionary. How will they be denied of their right of fair hearing if this Application is granted? How is that even possible? The Respondents took part in the trial at the High Court, Calabar [trial Court] where they lost. They exercised their constitutional right of appeal and appealed to the Court below, where they got Judgment in their favour. The Applicants seek to exercise their constitutional right of appeal by appealing against the Judgment of the Court below, which set aside the decision of the trial Court in their favour. What is good for the goose is good for the gander – no one stopped the Respondents from exercising their right of appeal, and the Applicants cannot be deprived of their right of appeal. This is the apex Court – the last Bus Stop for litigants and as Ogunbiyi, JSC, explained in Anachebe V. Ijeoma (supra), the right of appeal, being a constitutional right, overrides most other negative principles as long as an Applicant adduces good and substantial reason for obliging an Application of this nature. The Respondents also say it is an abuse of Court process, for the same reasons canvassed for the Preliminary Objections. Let me quickly reiterate the point I made that the Applicants are not barred from filing this Application to give life to the Appeal. The argument that the earlier Application must be withdrawn before the Applicants can bring this Application also lacks merit. There is no rule of law or practice that stops a Party from filing a new application when a similar application is pending in the file. The practice in Court is that a previous application can be withdrawn before the fresh application is moved or thereafter. As to multiplicity of notices of appeal, this Court made it clear in Tukur V. Govt, of Gongola State (supra) that an Appellant can file two notices of appeal, and can validly withdraw any of them. This Application filed on 30/12/2015 is granted as prayed. The Applicants are, therefore, granted the following Orders – 1. An extension of time to seek leave to appeal against the Judgment of the Court of Appeal sitting in Calabar; delivered on 4/7/2013 in Appeal CA/C/97A/2012. 2. Leave to appeal against the said Judgment. 3 An extension of time within which the Applicants may file the Notice and Grounds of Appeal against the Judgment in Appeal CA/C/97A/2012. 4. Leave to appeal on grounds of mixed laws and facts. In the circumstances of this case, Reliefs 5, 6 and 7 praying for three deeming Orders are refused and struck out. The Applicants are, however, granted an extension of [21] twenty one days from today to file their Notice and Grounds of Appeal against the Judgment of the Court of Appeal sitting in Calabar, delivered on 4/7/2013 in Appeal CA/C/97A7201Z Each Party will bear their respective costs.

SC.633/2013