Chief Ameke Chriscato Ikechukwu V. Hon. Tony Nwoye & Anor (2013)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

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;”