George Ifeanyi Elenwoke V. Joseph Sunday Obi & Ors. (1998)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A. 

There is confusion about the way the applicant set out the names of the parties to this application. I ought to set this right to avoid further confusion in the description of parties in this ruling. The heading should properly read thus;

“GEORGE IFEANYI ELENWOKE … Petitioner/Appellant/Applicant

V.

1. JOSEPH SUNDAY OBI
2. THE NATIONAL ELECTORAL COMMISSION OF NIGERIA (NECON)
3. THE MILITARY ADMINISTRATOR OF IMO STATE Respondent
4. THE ELECTION APPEAL TRIBUNAL OF IMO STATE
5. THE ATTORNEY-GENERAL OF IMO STATE

The applicant on 16 October, 1997 brought this application praying for extension of time within which to appeal against the order made by the Federal High Court, Jos in its ruling on 3/9/97 in suit No. FHC/J/CS/61/97. There was an affidavit in support of the application. The facts deposed to in the said affidavit may be summarised thus:

There was a Chairmanship election on 4/4/97. It was to decide who should be the Chairman of Isaila Mbano Local Government in Imo State. The applicant was the candidate for the U.N.C.P. and he had contested the election against the 1st respondent. The 1st respondent was declared the winner. The applicant unsuccessfully challenged the results of the election by a petition. He later brought an appeal before the Election Appeal Tribunal of Imo State. The applicant won before the Appeal Tribunal and he was declared the winner of the Election. What normally should follow was the swearing-in of the applicant.

But the 1st respondent came all the way from Imo State to file an ex-parte application before the Federal High Court, Jos that the 3rd respondent be restrained from swearing the applicant as the Chairman. On 3/9/97, the Federal High Court, Jos (Coram Mamman Kolo J) granted an ex-parte order as prayed for by 1st respondent. It is against that ex-parte-order that the applicant now seeks an extension of time to appeal.

The 1st respondent by his counsel has filed a notice of preliminary objection against the hearing of the application for extension of time to appeal. This ruling is upon the said notice of preliminary objection. The 1st respondent by his counsel Mr. J.O. Egemba is contending that the motion for extension of time to appeal is incompetent and further, that it constitutes an abuse of court process. In arguing the notice, counsel submitted that as the order sought to be appealed against was made ex-parte, the applicant could not appeal against it by virtue of Section 15(1) and (2) of the Court of Appeal Act and also Order 33 Rule 11 of the Federal High Court Rules, Cap. 134, Laws of Nigeria, 1990. Mr. Egemba submitted that the 1979 Constitution of Nigeria in its Section 220(1) was not in conflict with Section 15(1) and (2) of the Court of Appeal Act and Order 33 Rule 11 of the Federal High Court Rules. Learned counsel said that the applicant has brought a motion before the Federal High Court, Jos praying that the Order Ex-parte which he wanted to appeal against be set aside; and further that parties” counsel had addressed the lower court on the application. Counsel submitted that it was an abuse of the process of court to bring an application for extension of time to appeal against the ex’97parte order before this court when applicant had before the lower court an application to set aside the same order. Further Mr. Egemba argued that by bringing an application before the Federal High Court to set aside the ex-parte order, the applicant had waived his right of appeal against the order. Counsel relied on Ariori v. Elemo (1983) 1 S.C. NLR. 1 at 3’974; C.C.B. v. A.G. Anambra State (1992) 8 NWLR (Pt. 261) 528; (1992) 11’9712 S.C N.J. 137 at 141. On abuse of the process of court, counsel referred to Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156; S.C 11’9712 S.C.N.J. (part 1) 26 at 48-49. Edet v. The State (1988) 4 N.W.L.R. (Pt. 91) 722 at 738; Palmer v. Stooke (1953) 14 W.A.C.A. 233; Chief Karamu Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 SC 2 Kings Law Report 23 at 37.

Mr. Unyimadu for the applicant referred us to Section 220(1) of the 1979 Constitution of Nigeria which conferred a right of appeal against the decisions of a court in certain situations. Counsel submitted that in so far as Section 15(1) and (2) of the Court of Appeal Act attempted to bar a person aggrieved from appealing, or to curtail a right of appeal given under Section 220(1) of the 1979 Constitution, the provisions were in conflict with the 1979 Constitution and therefore void to the extent of the inconsistency. Counsel submitted that once, there was in existence an appealable order, any party affected could bring an appeal against it and the question of waiver of the right of appeal did not arise.

It is necessary that I compare and contrast the provisions of Section 15(1) and (2) of the Court of Appeal Act and Order 33 Rule 11 of the Federal High Court Rules with those of Section 220(1) of the 1979 Constitution in order to decide whether or not either or both of Section 15(1) and (2) of the Court of Appeal Act and Order 33 Rule 11 of the Federal High Court Rules are inconsistent with Section 220(1) of the 1979 Constitution. The provisions read thus as in (a), (b) and (c) hereunder:

(a) Section 15(1) and (2) of the Court of Appeal Act:

“15(1) where in the exercise by the High Court of a State or, as the case may be, by the Federal Revenue Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall by leave of that court or the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex-parte or by consent of the parties, or relating only to costs.

(2) Nothing in subsection (1) of this Section shall be construed so as to authorise an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court or the Federal Revenue Court.” (Italics mine).

(b) Order 33 Rule 11 of the Federal High Court Rules:

“11. Where an order is made on a motion ex parte, any party affected by it may, within seven days after service of it, or within such further time as the court shall allow, apply to the court by motion to vary or discharge it; and the court, on notice to the party obtaining the order, either may refuse to vary or discharge it, or may vary or discharge it with or without imposing terms as to costs or security, or otherwise, as seems just.”

(c) Section 220(1) of the 1979 constitution:

(1) An appeal shall lie from decisions of a High Court to the Federal Court of Appeal as of right in the following cases:

(g) decisions made or given by the High Court-

(i) ….

(ii) where an injunction or the appointment of a receiver is granted or refused.”

It is clear and beyond any argument that Section 15(1) of the Court of Appeal Act reproduced above does not allow an appeal to the Court of Appeal upon an order ex-parte. It is manifest also that Order 33 Rule 11 has nothing to do with any right of appeal. It only states that any party affected by an order ex-parte may within seven days after service upon him of the order apply to have the order varied or discharged. For the purpose of considering the existence of a right of appeal as raised in the notice of preliminary objection, Order 33 Rule 11 of the Federal High Court Rules is therefore irrelevant. Section 220(1) (g) (vii) reproduced above gives a right of appeal incases where an injunction has been granted or refused. The said provision does not differentiate between an injunction granted on notice and one ex-parte.From the comparison above it is clear that Section 15(1) and (2) of the Court of Appeal Act is in conflict with Section 220(1)(a)(ii) of the 1979 Constitution. It is therefore inconsistent with it. The said Section 15(1) is void to the extent of its inconsistency with Section 220(1)(g)(ii) of the 1979 Constitution.

The conclusion to be arrived at is that the applicant could appeal as of right against the ex-parte order made by Mamman Kolo J on 3/9/97 and that the said right of appeal is not inhibited or in anyway impaired by Section 15(1) and 15(2) of the Court of Appeal Act and Order 33 Rule 11 of the Federal High Court Rules.

It has also been argued before us that it was an abuse of the process of court for the applicant to have applied before us for extension of time to appeal while he has pending before the lower court an application to set aside the order ex-parte in respect of which he seeks extension to appeal. It think not. It seems to me that the appellant is only being cautious. If the lower court docs not set aside the ex-parte order, applicant will need to pursue his appeal. If on the other hand, the ex-parte order is set aside, the applicant will not need to pursue the appeal. The applicant is only trying to save time. It is not an application that can be described as an abuse or one brought in bad faith.

I do not see any merit in the preliminary objection. It is accordingly overruled.

Other Citations: (1998)/0437(CA)