Hon. (Barr.) Ita S. Enang V. Dr. Henry Okon Archibong Of Alliance For Democracy & Ors (2009)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A.
This is a ruling on two motions on notice, one filed on 11/3/09 by the 1st Respondent in the appeal and the other one filed on 19/3/09 by the appellant.
In the motion filed on 11/3/09 the applicant described therein as the 1st Respondent/Cross-Appellant/Applicant asked for an order “Granting Leave to Applicant to amend his notice and grounds of Cross-appeal in Appeal no. CA/C/NAEA/240/2007 by deleting the name of the 3rd Respondent (Returning officer, Itu/Ibiono Ibom LGA) and replacing it with (Returning Officer Itu/Ibiono Ibom Federal Constituency) and reflecting the proper status of the parties and replacing the Notice and Grounds earlier filed with the one filed with this Motion as amended.”
In the motion on Notice field on 19/3/09 the appellant in the main appeal asked the Court for an order
“(i) striking out the 1st Respondent’s Notice and Grounds of Cross-Appeal filed on the 3rd day of January, 2008.
(2) Striking out the 1st Respondent’s/Cross-Appellant’s brief of argument filed on the 17th day of January, 2008 and all other processes relating to the 1st Respondent’s/Cross-Appeal”
The first motion seeks to preserve the cross appeal, while the second motion seeks to scuttle it. Ordinarily the motion seeking to preserve the cross-appeal ought to be taken before the second motion seeking to terminate it.
However, the two motions were taken together and because the second motion relates to the jurisdiction of the Court a ruling on it has to be made before the ruling in the second motion. In the circumstances and on the facts of the two motions a ruling on the second motion will determine the fate of the 1st motion.
The ground of the 1st motion is stated in paragraph 3 of the supporting affidavit herein reproduced:
“That even though the appeals were filed within time on 3/1/08 and 17/1/08 respectively the errors contained therein were not discovered until now and I have been informed by David Obande Esq., Applicant’s Counsel whom I verily believe that leave of court is necessary to amend both processes hence this application.”
This was sworn to by one Esther Edet with the authority and consent of the applicant. On the other hand the second motion is predicated on the fact that:
“(i) The 1st respondent has unilaterally substituted the 3rd respondent on record, that is, Returning Officer, Itu/Ibiono Ibom Federal Constituency, with a none existent entity or person, Returning officer Itu/Ibionno Ibom LGA.
ii. The purported cross-appeal is incompetent and amount to abuse of Court process.”
In his oral argument learned lead counsel for the Respondent in the 1st motion and the applicant in the second motion relied on Order 19 Rule 5 of the Court of Appeal Rules 2007 and urges the Court to strike out the notice and grounds of cross-appeal as well as the brief of argument based on it. He urged the Court to strike out all processes relating to the cross-appeal. He said that the purported cross-appeal is incompetent and constitutes abuse of process of Court. He relied on the 9-paragraph affidavit in support of his motion. Counsel argued that one cannot substitute a juristic person with a non-juristic person or vice-versa. He relied on OBIKE INTERNATIONAL LTD. v. AJE ELECTRONIC LTD. (2005) 15 NWLR (Pt.948) 362 at 374, JUSTICE PARTY V. INEC (2006) ALL FWLR (Pt.339) 907 at 939. He urged the court to grant the application and dismiss the application for substitution or amendment seeking to replace a none existing entity with an existing entity or person.
Learned Counsel for 2nd – 5th Respondent Mrs. Okpo aligned with learned Senior Counsel for the applicant. She said that both motions are concerned with the substitution of a juristic person with a non-juristic person. She cited MERSK LINE v AHDDIDE INV. LTD (2002) 1 NWLR (PT. 317) AT 377. She argued that once the non-juristic person is struck out the cross-appeal collapses. She relied on BIYU v. IBRAHIM (2006) 8 NWLR (Pt.981) 1 at 11 – 17, BAHOR V. OBI (2005) 2 NWLR (PT. 910) 756 AT 776 on who is a necessary respondent and the effect of non-joinder of a necessary party. He said the rules are strict in election matters and urged the Court to refuse the application for amendment and to grant the application to strike out the 3rd Respondent in the cross-appeal and the cross-appeal itself.
Mr. Obande opposes the application to strike out the 3rd Respondent in the cross-appeal and urged the Court to grant his application for leave to amend his notice of cross-appeal and other processes relating to the cross-appeal. He said his motion for leave to amend was served on all parties but no counter-affidavit was filed by opposing counsel and urged the Court to accept his averments as admitted. He urged the Court to rely on the facts in his supporting affidavit. He characterized the application to strike out the cross-appeal as abuse of process since it was filed out of time. Counsel contended that the error is a misnomer which is not fatal to the cross-appeal. He said that the Respondents were not misled but took steps to respond, adding that the error did not originate in the tribunal. He cited OGBOR v IBORI (2004) 7 NWLR (PT. 871) 192 AT 244 PARAGRAPHS A – D in which he said the omission of National in INEC was held not fatal to the case. He relied on paragraph 49(2) of the Schedule to the Electoral Act 2006. He said the issue of the 3rd Respondent in his cross-appeal does not involve the jurisdiction of the Court. Learned Counsel urged the Court to grant his application and dismiss the application for striking out of the 3rd Respondent.
On points of law Agi SAN said that there is no proof of service of the motion for amendment and so time has not started to run. He said granting the motion for amendment will mean extension of time to cross-appeal. He added he could not have taken a step as he had not been served the motion paper.
Mrs. Okpo relied on OBlKE’S case (supra).
The deep issue in the two motions is whether the name ‘Returning Officer Itu/Ibiono Ibom LGA” is a misnormer for “Returning Officer Itu/Ibiono Ibom Federal Consistency” or a substitution of an existing legal entity “Returning Officer Itu/Ibiono Ibom Federal Constituency” with a none existent entity or person “Returning Officer Itu/Ibiono Ibom LGA”
I will pause here to dispose of some peripheral matters raised by learned Counsel for the parties. Each side charges the other with abuse of process of Court. The motion to strike out the notice and grounds of cross-appeal was predicated on two grounds one of which is that “The purported cross-appeal is incompetent and amount (sic) to abuse of Court process.” On the other hand Mr. Olaide argued that the motion to strike out his cross-appeal is abuse of process of Court in that the applicant in the said motion did not file a counter-affidavit to controvert the facts he averred in the affidavit in support of his motion for amendment, that the motion was filed out of this and that the applicant had taken steps in response to the notice for amendment, and further that the motion for striking out was filed out of time. I will take the last one first. The issue herein is strictly a matter of law and not facts, so a counter-affidavit is not a necessity. In any case in absence of a counter-affidavit the facts averred will be deemed admitted provided the facts averred are not inherently incredible. See UNIVERSITY OF ILORIN V. OYALANA (2001) 15 NWLR (PT. 737) 684 CA, O.U. INS. LTD v. MARINE & GEN ASS. CO. (2001) 9 NWLR (PT.717) 92 CA, ONWUKA v OWOLEWA (2001) 7 NWLR (PT. 713) 695. Without stating the time frame within which the motion far striking out the cross-appeal ought to have been brought learned Counsel cannot be heard to argue that the application was filed out of time.
The Respondent in the motion for amendment denied service of the motion on him and no proof of service of the motion on him was offered. It cannot therefore be said that the Respondent waived his right to complain having taken steps in the matter. He could not have taken steps in response to a motion of which he was unaware.
Abuse of process of Court occurs where there is a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. See EDET v. STATE (1988) 4 NWLR (PT. 91) 722 AT 738, AMAETULE & ANOR. V. THE STATE (1988) 2 NWLR (PT. 75) 156 AT 168, OROSANYA v. DAVIES (1980) 4 – 6 CCHCJ 223 AT 226.
The above definition of abuse of process of Court does not accommodate the facts canvassed as constituting abuse of Court process by learned Counsel for the applicant in the motion for amendment. In the same vein the cross-appeal may be incompetent for one reason or the other but that does not ipso facto make it abuse of process of Court. Neither side in the litigation has taken a most irregular, unusual and precipitated action in the judicial process for the sake of action qua litigation with an aim of wasting valuable litigation time. See SODIPO LEMMINKAINEN OY & ANOR. (1992) 8 NWLR (PT. 258) 229 AT 242. I hold that neither aide has made out a case of abuse of process of Court against the other.
In dealing with the main issue in the motion. I deem it necessary to consider the meaning of appeal and cross-appeal. Appeal is an invitation to a higher Court to review the decision of a lower Court to find out whether on proper consideration of the facts placed before it and the applicable laws that Court arrived at a correct decision. See OREDOYIN & 2 ORS v. AROWOLO & 2 ORS (1987) 3 NWLR (PT. 114) 172 AT 187, A-G OYO STATE & ANOR. v. FAIRLAKES HOTEL LTD (1988) 5 NWLR (PT. 92) 1 AT 56. On the other hand, a cross-appeal is defined as “an appeal by the appeallee”. See CHIEF F.R.A. WILLIAMS v. DAILY TIMES OF NIGERIA LTD (1990) 1 NWLR (PT. 124) 1 AT 54. A cross-appeal is usually heard at the same time as the appellant’s appeal.
Appeal and cross-appeal seek to achieve the same purpose – a review by a higher Court of proceeding by a lower Court to determine whether the decision reached by the lower Court is in consonance with the facts and applicable law to the said facts. A cross-appeal is an offshoot of an appeal in the sense that there can be no cross-appeal in the absence of an appeal but once it has been filed it has a separate life from the appeal from which it emanates.
In determining the issue in these motions I will assume in the first instance that an appeal and cross-appeal are opposite sides of the same coin and secondly that a cross-appeal is an originating process separate from the appeal.
In the first instance taking a cross-appeal as the same as appeal except that it is brought by the appeallee and not as a separate originating process, the parties are already before the Court and an error in stating the name of any party therein can be a misnomer or a vitiating factor depending on the facts of a particular case. In the case of bar the name of the 3rd Respondent in the appeal is the “Returning Officer, Itu/Ibiono Ibom Federal Constituency”. In the cross-appeal the 3rd Respondent/Cross-Respondent is stated as “Returning Officer Itu/Ibiono Ibom LGA”. Even taken the appeal and cross-appeal as one process, is an amendment possible? Itu/Ibiono Ibom Federal Constituency is an existing entity, a Federal Electoral Constituency in Akwa Ibom State; Itu/Ibiono Ibom LGA is neither a Federal Constituency nor a local government area in Akwa Ibom State nor anywhere in Nigeria. It does not exist anywhere in this country. A misnomer literally means a use of wrong name which implies an entity has been misnamed. See N. OKECHUKWU & ORS v. NDAH (1967) 1 NMLR 368 AT 370. In this case a none existing entity, Returning Officer Itu/Ibiono Ibom LGA was placed in place of an existing entity Itu/Ibiono Ibom Federal Constituency. An amendment in the circumstance will mean substituting what does not exist with what exists. It will mean putting something in existence in place of nothing an impossibility. See MACFOY v U.A.C (1961) 3 WLR 1405 PC.
The decision in OGBORU v. IBORI (supra) does not apply to the facts of this case. In that case the word “National” was omitted in stating the Independent National Electoral Commission (INEC). National in the name of INEC describes an existing entity. The omission to state that it is National does not derogate from the facts of existence of INEC.
In my humble view even taking the appeal and cross-appeal together the amendment sought would be tantamount to placing an existing entity in place of a none existing entity which the law will not accommodate., See MACFOY v U.A.C (supra).
It would have been different if there was an omission or addition of a word or words in stating an existence entity and not reality in place of a fiction.
I will now consider the cross-appeal as an originating process separate from the appeal from which it derives its existence. If there be an error in stating the name of an entity in a subsequent process the error will be corrected with reference to the originating process. It becomes a problem if the error is in the originating process and an insurmountable problem if, as in the case at bar, the error in the originating process consists in stating the name of an entity that does not exist in fact or in law.
Returning Officer/Itu/Ibiono Ibom LGA has no legal or factual existence anywhere in Akwa Ibom or Nigeria. The cross-appeal was commenced with a none existent entity as a respondent and amendment cannot be grunted to replace nothing with something. In BIYU v. IBRAHIM cited by learned Counsel for the 2nd to 5th Respondents it was held that electoral officers whose conduct was being: impugned are necessary parties to the petition. In the same vein the Returning Officer Itu/Ibiono Ibom Federal Constituency is a necessary party in a cross-appeal arising from a decision on the conduct of the officer in the election.The effect of non-joinder of a necessary party is fatal to the relevant-paragraph of the petition or the entire petition as the case may be. In this case the non-joinder of the necessary party in the cross-appeal renders the cross-appeal incompetent and liable to be struck out.
In the final conclusion if the cross-appeal is viewed as one with the appeal in the sense that each seeks a review of the proceedings in the Court below, the error sought to be rectified is not a misnomer. It is a substitution of an existing entity with a none existing entity. An amendment cannot be granted to replace something that does not exist in fact or law with an existing factual and legal entity.
On the other hand if the cross-appeal is considered as originating process distinct from the main appeal from which it derives its source, there is no misnomer as only an existing entity can be misnamed. In this case the alleged misnomer cannot be corrected because the only name in the process is the name alleged to be a misnomer. A misnomer arises only if there is an existing entity misnamed. In conclusion, I grant the application to strike out the 1st Respondent’s notice and grounds of cross-appeal and other processes emanating therefrom on the grounds that the notice and grounds of cross-appeal with the none existing entity as the 3rd Respondent/Cross Respondent is incompetent and on the other ground that the cross-appeal without a joinder, of the Returning Officer Itu/Ibiono Ibom Federal Constituency being a necessary party is not maintainable.
I dismiss the motion to delete the name of the 3rd Respondent as Returning Officer Itu/Ibiono Ibom LGA, a none existing entity and replace it with an existing entity Returning officer, Itu/Ibiono Ibom Federal Constituency.
I deem it appropriate that each party bears its own costs. I make no order for costs.
Other Citations: (2009)LCN/3498(CA)
