Hope Democratic Party V. Independent National Electoral Commission (INEC) & Ors(2008) (2008)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEHINDE SHOREMI J.C.A.
This is an appeal against the Ruling of the Election Petition Tribunal sitting in Port Harcourt, Rivers state delivered on 29/11/07. The tribunal dismissed the petition of the Appellant as grossly incompetent and lacking in merit.
The brief facts are that:
The Petitioner/Appellant (who is hereinafter referred to as the Appellant) is a registered political party which sponsored a candidate in the 14/4/07 Rivers State governorship election. By a petition filed by G.U. Ukachukwu Esq. of A.A. Owuru & Co., the Appellant challenged the return of the 4th Respondent as winner of the election. The same G.U. Ukachukwu Esq. also filed all the subsequent processes in the petition for the Appellant.
On 4/7/07 the petition came up for pre-hearing, but neither the Appellant nor its counsel was present. Consequently, on the application of the Respondents the election Tribunal dismissed the petition under paragraph 3(11) (a) of the Practice Directions 2007.
Subsequently, the Appellant on 9/7/07 filed a motion on notice to set aside the order of 4/7/07 striking out the petition. The motion came up for hearing before the Election Tribunal on 24/7/07.
Iyke Nwawuike with G.U. Ukachukwu Esq. announced appearance for the Appellant. Iyke Nwawuike then made the following oral application:
“The applicant has directed us to withdraw this application. We had the application for re-listing this petition but the petitioner has directed us to withdraw this application, this is in line with extending our hand of friendship.”
The above oral application to withdraw the motion for re-listment was not opposed by the Respondents; hence the Tribunal granted the application and struck out the motion.”
More than three months after the striking out of the motion for re-listment the Appellant on 29/10/07 filed a motion on notice before the Election Tribunal praying for the following reliefs:
“i. an order of court setting aside the order of the Tribunal which struck out petition No. EPT/G/8/2007 slated for pre-hearing court session on the 4th day of June 2007 and Petitioner’s motion on notice dated on the 9th day of July, 2007 for the re-listment petition.
ii. an order setting aside the oral application of one Barrister A.I. Uwawuike and the ruling of this Honourable Tribunal striking out on the 24/7/07 the petitioner’s petition based on false information misrepresentation.
iii. an order of this court re-listing and setting down for hearing the substantive petition No. EPT/G/8/2007 for accelerated hearing on its merits.”
It is pertinent to highlight that the Appellant’s motion stated in 2.5 hereof was not supported by a written address as required by paragraph 6(3) of the election Tribunal and Court Practice Directions 2007. Nevertheless, the Respondents on 7/11/07 and 22/11/07 respectively filed counter-affidavits and written addresses in opposition to the motion notice.
The Appellant, having belatedly realized the fundamental defect in its motion, on the 26/11/07 filed a second motion on notice for extension of time to file a written address to accompany the motion on notice and for a further order to deem the written address marked Exhibit “A” as properly filed and served. Despite the further prayer for deeming, and the claim on the motion paper and supporting affidavit that the accompanying address was annexed as Exhibit A, no document was marked Exhibit ‘”A”, and annexed to the supporting affidavit.
The Appellant’s two motions came up for hearing on 27/11/07 before the Election Tribunal. On the order of the Tribunal the two motions were consolidated and heard together. In respect of the motion filed on the 29/10/07 the Appellant withdrew reliefs (1) and (3) leaving as the only prayer on the motion paper relief (2) for:
an order setting aside the oral application of one Barrister A.I. Nwawuike and the ruling of this Honourable Tribunal striking out on the 24/7/07 the Petition’s petition based on false information and misrepresentation.
The Tribunal delivered its ruling on 29/11/07 and dismissed both applications as “grossly incompetent, lacking in merit.
Dissatisfied with the Ruling of the Tribunal, the appellant appealed to this court on four grounds of appeal. From the four grounds of appeal, the appellant formulated three issues for determination. In the appellant’s brief of argument dated 21/1/08 filed on 21/1/08, the three issues are as follows: –
“ISSUE NO.1
whether the Tribunal was right in allowing an oral application of an outside counsel to the petition to withdrawn and or strike out petition or a duly filed motion to relist a petition as same was done in total disregard and in non-compliance with the mandatory provisions of paragraphs 28, 29, and 30 of the first, schedule to the Electoral Act 2006.
ISSUE NO.2
Whether the tribunal’s decision that it is not duty bound to inquire into, or take cognizance of appearances of Counsels or Legal representative of parties in Election petition before it, is not contrary to the mandatory provision of the Electoral Act 2006.
ISSUE NO.3
Whether the tribunal was right in refusing the setting-aside of an order obtained and made on obvious grounds of fraud misrepresentation and in non-compliance with the provisions of the Electoral Act.”
Parties exchanged Brief of Argument. The 1st and 2nd Respondents filed a notice of preliminary objection pursuant to Order 10 Rule 1 Court of Appeal Rules 2007. The notice is dated 28/1/08 to wit:
i. that the notice of appeal filed by the appellant on 4/12/07 is incompetent and liable to be struck out.
ii. that ground one of the notice of appeal is incompetent and liable to be struck out by this Honourable Court.
The grounds of objection are stated thus:
i. leave of court was not obtained before the appeal which does not lie as of right was filed.
ii. the notice of appeal was not signed by a legal Practitioner.
iii. ground one of the notice is not predicated on the ruling of the Tribunal delivered on 29/11/07.
The 3rd Respondent also filed a notice of preliminary objection, filed 28/1/08 on the following grounds:
- The notice of Appeal dated 04/12/07 is not endorsed by a Person known to law.
- The grounds of appeal are inelegantly couched and ought to be struck out.
- The grounds of appeal are repetitive, argumentative, incongruous and verbose.
- The grounds of appeal do not ensure from the ruling of the election Petition Tribunal delivered on 29/11/07 appealed against.
On the 18th day of February, when the case came up for hearing, Mr. Dikko Udema learned counsel to the 4th Respondent sought the leave of court to withdraw his appearance for the 4th Respondent. He was granted leave to withdraw from representing the 4th Respondent Mr. Osanakpo SAN, learned Counsel to the 1st and 2nd Respondents submitted that the 4th Respondent is no more interested having regard to the case of AMECHI V. OMEHA recently delivered by the Supreme Court and since there was nothing before this Court as to exercise any discussion in favour of the 4th respondent his name should be struck out and that the appeal be heard on the brief filed. Mr. Chinda, learned Counsel for the 3rd respondent aligned himself with that submission that the appeal be heard on the brief of argument filed in Court.
Mr. Owuru, learned Counsel to the appellant referred to his brief before the appellant could adopt his brief of argument, Dr. Osanakpo SAN, Counsel to the 1st and 2nd Respondents alluded to his motion of Preliminary Objection dated and filed on 28/1/08 and incorporated in the Respondent’s Brief at page 5. He said the notice of appeal complained of is at pages 161 -165. He referred to Section 264 (1) (b) of the Constitution of the Federal Republic of Nigeria. He argued that leave ought to be sought for and obtained before an appeal could be properly filed but in this case no such leave was sought.
He also referred to page 165 of Record of Proceedings and pointed out that the notice was not signed by a legal Practitioner. He pointed out that there is no reply brief and therefore he is deemed to have conceded to the objection and therefore urged that the notice of appeal be struck out.
Mr. Chinda for the 3rd Respondents also referred to his brief where at page 4 – 6 of his brief where the preliminary objection was argued, citing the case of AMGBARE V. SILVA (2007) Vol. 18 NWLR PT. 1065 1 at 27 – 28 Para. C. He also urged the Court to strike out the notice of appeal as incompetent. Thereafter parties adopted and relied on their respective briefs.
SECTION 246 (1) (b) provides as follows: –
“Appeal to the Court of Appeal shall be as of right –
a)…
b) Decisions of the National Assembly Election Tribunal Governorship and Legislative House Election Tribunal on any question as to whether –
i. Any person has been validly elected as a member of the National Assembly or of the House of Assembly of a State under this Constitution.
ii. Any person has been validly elected to the office of Governor or Deputy Governor or,
iii.The term of office of any person has ceased or the seat of any such person has being vacant.
Since the preliminary objections raised by the 1st- 3rd Respondent are in, pari materia, I will treat them as one and the same.
I agree with the Respondents that the objection is properly raised.
See NITEL V. OCHOLI (2001) 10 NWLR PT.720.
I have set out section 246 (1) (b) of the Constitution. There is no doubt that any matter outside this provisions is not an appeal as of right hence leave is required. There is no disagreement as to the fact that this appeal arose as to whether or not to set aside the oral application made by the appellant to withdraw the motion for re-listment and whether or not to re-list the petition which had been dismissed.
The appellant did not deny the fact, neither was it shown on the record that he sought for and obtained leave of Court before filing his notice of appeal. It is now settled by authorities that where leave is required before an appeal is taken but which leave was not obtained, the appeal is incompetent and liable to be struck out See HARRISON WELLI V. OKECHUKWU (1985) 2 NWLR PT. 5 AT 63: I.E.A. LTD V. OKEHIE (1999) 5 NWLR (PT.604) 620 AT 62; AYANSINA V. COOPERATTVE BANK LTD (1994) 5 NWLR (PT.347) 742 AT 754.
I hold that the notice of appeal filed by the appellant on 4/12/07 without leave of Court is incompetent.
The 2nd leg of the objection of the 1st – 3rd Respondent to which the appellant did not reply to is to the effect that the notice of appeal was not signed by a legal Practitioner as requited by law but by one A.A. OWURU & Co. a non legal practitioner. S.2(1) of the Legal Practitioners Act. Cap 207 of the Laws of the Federation of Nigeria 1990 provides thus: –
“Subject to the provisions of this Act a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the Roll.”
Section 24 of the Legal Practitioners Act defines a “Legal Practitioner” to be “A person entitled in accordance with the provisions of this Act to Practice as a barrister or as a barrister and solicitor either generally or for the purpose of any particular office or proceedings.”
In the case of OKAFOR V. NWEKE 2007 ALL FWLR (PT.368) PAGE 1016 AT 18 -20. The Supreme Court in a case where the motion papers giving rise to the objection therein as well as the proposed notice of cross appeal and appellant’s brief in support of the said motion were all signed, “J.H.C. Okolo SAN & Co.”
The Supreme Court held that the combined effect of the above provisions of the Legal Practitioners Act is that for a person to be qualified to practice as a Legal Practitioner he must have his name on the Roll otherwise he can not engage in any form of practice in Nigeria.
The question that follows is whether J.H.C. Okolo SAN & Co. is a legal Practitioner recognized by the Law?
The question was answered in the negative.That Mr. J.H.C. Okolo cannot legally sign and/or file any process in the Court.
In the instant case apart from other unpardonable defects in the notice of appeal, it was signed by one A.A. Owuru & Co., who does not qualify to sign processes as a legal Practitioner. From the foregoing the preliminary objection of the learned Counsel to the 1st – 2nd Respondent and 3rd Respondent are well taken and are hereby sustained on the two grounds stated above.
The Notice of Appeal filed on 4/12/07 by the Appellant in this case having been found to be incompetent is struck out. I award the costs of N30,000.00 (Thirty Thousand Naira) to the 1st and 2nd Respondent and N20,000.00 (Twenty Thousand Naira) to the 3rd Respondent.
Other Citations: (2008)LCN/2730(CA)
