HOPE DEMOCRATIC PARTY v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS(2008)
(2008)LCN/2730(CA)
In The Court of Appeal of Nigeria
On Monday, the 14th day of April, 2008
CA/PH/EPT/9/2008
RATIO
DEFINITION OF WORDS: WHO IS A LEGAL PRACTITIONER UNDER SECTION 24 OF THE LEGAL PRACTITIONER ACT
“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.” PER GEORGE OLADEHINDE SHOREMI J.C.A.
APPEAL-INTERLOCUTORY APPEAL: WHEN CAN ONE RIGHTLY SAY AN INTERLOCUTORY APPEAL IS INCOMPETENT
“It is now settled firmly that any ground of fact or mixed law and fact in an interlocutory appeal will be incompetent except the required prior leave of either the trial court or of the appellate court be first sought and obtained. Indeed that is the essence and intendment of Sections 241 (1) (b), 242(1), and 246(1) of the 1999 Constitution of the Federal Republic of Nigeria. See; Union Bank of Nigeria Plc. v. Olusoju Sogunro & 2 Ors. (2006) 10-11 SCM 393 at 401; (2006) 27 NSCQR 182.” PER OLUKAYODE ARIWOOLA J.C.A.
PRACTICE AND PROCEDURE- LEGAL PRACTITIONER: WHO CAN PRACTICE AS A LEGAL PRACTITIONER AND WHAT IS THE EFFECT OF A DOCUMENT SIGNED BY A PERSON IMPERSONATING AS LEGAL PRACTITIONER
“From the said authority, it is obvious that only a person whose name is on the roll of the Supreme Court can practice as a barrister and solicitor. By implication therefore, any process signed by persons other than those on the roll renders the document incompetent and of no legal effect.” PER CLARA BATA OGUNBIYI J.C.A.
APPEAL-RIGHT OF APPEAL: CIRCUMSTANCES WHERE APPEAL WILL LIE AS OF RIGHT TO THE COURT OF APPEAL
“Following from the provision of section 246(1)b of the constitution of the Federal Republic of Nigeria 1999, appeals from the Election Tribunals to this court lie as of right only in the following situational questions to wit whether:- (i) any person has been validly elected as a member of the National Assembly or of House of Assembly of a State under this Constitution. (ii) any person has been validly elected to the office of Governor, or (iii) the term of office of any person has ceased or the seat of any such person has become vacant. By implication therefore an appeal on any other matter outside the said provision can not be as of right but must be by leave, the absence which renders the notice of appeal incompetent. From the nature of the subject matter of this appeal, same certainly does not come within the ambit of section 246(1), of the Constitution. The appeal cannot therefore lie as of right but ought to be with the leave of court. Relevant and in support is the authority in the case of Awuse v Odili (2003) 18 NWLR (Pt.851).” PER CLARA BATA OGUNBIYI J.C.A.
JUSTICES
SAKA ADEYEMI IBIYEYE (OFR) Justice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
Between
HOPE DEMOCRATIC PARTY Appellant(s)
AND
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
RESIDENT ELECTORAL COMMISSION
PEOPLES DEMOCRATIC PARTY (PDP)
SIR CELESTINE OMEHIA Respondent(s)
GEORGE OLADEHINDE SHOREMI J.C.A. (Delivering the Leading Judgment): 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:
1. The notice of Appeal dated 04/12/07 is not endorsed by a Person known to law.
2. The grounds of appeal are inelegantly couched and ought to be struck out.
3. The grounds of appeal are repetitive, argumentative, incongruous and verbose.
4. 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.
S.A.IBIYEYE, J.C.A: I have had the opportunity of reading in draft the judgment of my learned brother, Shoremi, J.C.A, just delivered, I entirely agree with the views expressed in the lead judgment together with the conclusion thereat. I state in particular that the lead judgment exhaustively dealt with the three issues raised for the determination of the instant appeal. I accordingly adopt the judgment as my own. The appeal is devoid of merit and it is struck out with costs of N30,000.00 (thirty thousand Naira) and N20,000.00 (twenty thousand Naira) to the 1st and 2nd respondents as well as the 3rd respondent respectively.
CLARA BATA OGUNBIYI. J.C.A: The appeal at hand was filed by the Petitioner/Appellant against the ruling delivered on 29th November, 2007 by the National Assembly/Governorship and Legislative Houses Election Petition Tribunal sitting at Port Harcourt wherein the Tribunal dismissed an application by the Petitioner/Appellant 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 petitioners petition based on false information and misrepresentation.”
From the four grounds of appeal filed on the 4th December, 2007 learned counsel Chief Ambrose Owuru on behalf of the appellant formulated three issues for determination. In response to the said appellants’ brief the 1st and 2nd respondents counsel Mr. Jerry Elumeze filed a notice of preliminary objection and subsequently also formulated three issues for determination. The 3rd respondent’s counsel Mr. S. R. Dapaa Addo also filed a notice of preliminary objection and only adopted appellant’s issue three and thereby rephrased same. It is also significant to mention that the 4th respondent did not file any brief in respect of this appeal and which same implies that he does not intend to oppose the appeal.
Following from the provision of section 246(1)b of the constitution of the Federal Republic of Nigeria 1999, appeals from the Election Tribunals to this court lie as of right only in the following situational questions to wit whether:-
(i) any person has been validly elected as a member of the National Assembly or of House of Assembly of a State under this Constitution.
(ii) any person has been validly elected to the office of Governor, or
(iii) the term of office of any person has ceased or the seat of any such person has become vacant.
By implication therefore an appeal on any other matter outside the said provision can not be as of right but must be by leave, the absence which renders the notice of appeal incompetent. From the nature of the subject matter of this appeal, same certainly does not come within the ambit of section 246(1), of the Constitution. The appeal cannot therefore lie as of right but ought to be with the leave of court. Relevant and in support is the authority in the case of Awuse v Odili (2003) 18 NWLR (Pt.851).
The only issue for consideration in that case was whether the decision of the Court of Appeal, (Appeal Tribunal), remitting the petition of the respondent back to the Governorship Election Tribunal for hearing on the merit was not appealable.
In the said case the 1st respondent filed a notice of preliminary objection challenging the competence of the petition and the tribunal accordingly struck out same. A further appeal to this court was allowed and the petition was remitted back to the tribunal for hearing on the merit, albeit before another panel. An appeal against the background was lodged by the 1st respondent at the Supreme Court. Along side the appeal was an application praying for: – an order for the accelerated hearing of the said appeal and an interlocutory application arising therein also an order of court striking out the appeal in limine for incompetence amongst others. In the determination of the application their Lordships of the apex court considered the statutory provisions of section 246(1), (2) and (3) of the 1999 constitution and unanimously granted the application. The appeal was accordingly struck out on the consideration of the proposition wherein an appeal lies as of right to Court of Appeal.
The reproduction of section 246 applicable states as follows:-
“246(1) An appeal to the Court of Appeal shall lie as of right from –
(a) …
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the Constitution.
(ii) any person has been validly, elected to the office of Governor or Deputy Governor, or
(iii) …
(2)…
(3) The decisions of the court of appeal shall be final.”
At page 157 their Lordships per Iguh JSC had this to say:-
“It is apparent that section 246(1) of 1999 Constitution provides inter alia that appeals from decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether any person has been validly elected as a member of the National Assembly or a House of Assembly or to the office of Governor or Deputy Governor shall lie as of right to the Court of Appeal. There is then section 246 subsection (3) of the same Constitution which in the clearest possible terms provides that the decisions of the Court of Appeal in respect of such appeals arising from the relevant election petitions stipulated under section 246(1) aforementioned shall be final.”
In the absence of any evidence revealing that such leave was sought and obtained, no presumption is to be made in respect thereof.
The consequential effect of such an appeal has been well expounded in a plethora of decided authorities, wherein a court is robbed of jurisdiction and thereby rendering such appeal incompetent. Relevant authorities in substantiation are the cases of Harrison Welli v. Okechukwu (1985) 2
NWLR (Pt.5) 63; I. E. A. Ltd. v Okehie (1999) 5 NWLR (pt.604) 620 and Ayansina v Corporative Bank Ltd. (1994) 5 NWLR (pt.347) 742.
Also in the case of Okonkwo v. INEC (2004) 1 NWLR (pt. 854) p.242, this court in relying on the case of Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 31 copiously related the concept of jurisdiction. This encompasses proper constitution of court membership, subject matter within jurisdiction and initiated by due process of law upon fulfillment of all conditions precedent. The said requisite requirements must all co-exists conjunctively before the right to the exercise of jurisdiction can be met.
In other words, and in the absence of jurisdiction, the tribunal had no further reason or business to do with the petition whatsoever. It ought to completely hands off as it rightly did.
Further more and with reference to the notice of appeal at pages 161-165 of the record, same was, as rightly submitted by the learned counsel Jerry Elumeze, signed by A. A. Owuru & co. who was neither the appellant nor a legal practitioner. On the authority of Okafor & Ors. v. Nweke & ors. (2007) 3 SC (Pt.11) 55 at 62-66 such said notice is incompetent and liable to be struck out.
From the said authority, it is obvious that only a person whose name is on the roll of the Supreme Court can practice as a barrister and solicitor.
By implication therefore, any process signed by persons other than those on the roll renders the document incompetent and of no legal effect.
Further still, it is obvious that ground 1 of the grounds of appeal complaints against a matter arising from an interlocutory decision made 24th July, 2007. The same notice of appeal cannot also appropriately serve for a decision made 29th November, 2007. The said notice filed 4th December, 2007 is therefore incompetent in the absence of any leave sought and obtained for an extension of time. Relevant in support are the authorities of section 24(2) of the Court of Appeal Act cap.C36 Laws of the Federation of Nigeria 2004 wherein interlocutory appeal is to be filed within fourteen days and final appeal with three months. The decisions in the cases of Adeyeni v. Y.R.S. Ike-Oluwa & Sons Ltd. (1993) 8 NWLR (Pt. 309) 27 and Lambert v. Nigeria Navy (2006) 7 NWLR (Pt. 980) 514 are also relevant and appropriate in point.
Having regard to the collective and deductive objections raised by the 1st and 2nd as well as 3rd respondent, it is obvious that this court is devoid or robbed of jurisdiction to entertain the proposed appeal in this matter and consequent to which the preliminary objection is sustained. In other words, in the absence of failure to satisfy the conditions necessary for the court to exercise its jurisdiction, the appeal is lacking in competence and cannot therefore lie in this court’s jurisdiction.
With the conclusion arrived thereat and in the absence of any valid notice of appeal, the proposed briefs and issues formulated therefrom have no foundations or legal basis. The entire same must collapse. One cannot build something on nothing and expects it to stand.
In the result, I subscribe to the comprehensive and well-considered judgment of my learned brother Shoremi J.C.A and also strike out this appeal. I also abide by the orders made in the lead judgment inclusive of costs.
PAUL ADAMU GALINJE J.C.A: I read in draft the judgment of my learned brother, Shoremi, J.C.A and I agree with the reasoning contained therein and the conclusion arrived thereat.
The undated Appellant’s notice of appeal herein was filed on the 4th of December, 2007 against the ruling of the Tribunal, which was delivered on the 29th November 2006. The notice of appeal was signed by A. A. Owuru & Co. Solicitor; to the petitioner. One of the grounds of the notice of preliminary objection which was given in the 1st and 2nd Respondents joint brief of argument and the 3rd Respondent’s brief of argument is that the notice of appeal is incompetent by reason of the fact that same was signed by a person who is not a legal practitioner. In aid both sets of Respondent cited the Supreme Court’s decision in Okafor & Ors v. Nweke & Ors (2007) 3 SC (Pt. 11) 55 at 62-66.
In N.N.B. Plc. v. Denclag Ltd (2005) 4 NWLR (Pt. 916) 549, the notice and grounds of appeal were filed and signed by the firm of Ibrahim Hamman & Co. on behalf of the Appellant. The Court of Appeal held that the firm Ibrahim Hamman & Co. was not a registered practitioner but simply a registered legal firm or a business name as such it was not authorized by law to sign and issue the document aforesaid. The notice and grounds of appeal were therefore declared incompetent. The Supreme Court in Cole v. Martins & Anor (1968) 5 NSCC 120 decided otherwise on the same facts.
In this case the notice and grounds of appeal were signed by a firm of solicitors, Ladner and Company. The Supreme Court held that where a legal practitioner gives the name under which he is registered as a business name, this can only refer and apply to the legal practitioner who so holds himself out as practicing under that business name.
In Buhari v.Yabo, this Court followed the Supreme Court’s decision in Cole vs. Martins and went further to state thus: –
“It would be denying an appellant substantial justice if he is denied his constitutional right of appeal due to his counsel for not affixing his name or not properly signing the notice of appeal.” On that note this Court upheld the validity of the notice and grounds of appeal which was signed by Law firm of Kutigi & Co.
In Okafor & Ors v. Nweke & Ors (2007) 3 SC (Pt. 11 at 62-66, the Supreme Court held that by virtue of S. 2 (1) of the Legal Practitioners Act only a person whose name is on the roll of the Supreme Court can practice as a barrister and solicitor, therefore J. H. C. Okolo and Co. not being on the roll can not practice as a barrister and solicitor and a process signed by it is incompetent.
This is therefore a reversal of the Apex Court’s decision in Cole v. Martins & Anor (Supra) which that Court is entitled to do. Once the Apex Court reverses its decision, the latter decision is binding on the court. In that regard I am bound by the decision in Okafor & Ors vs. Nweke & Ors (Supra). For this reason I hold that A. A. Owuru & Co. not being a person whose name is on the roll of the Supreme Court cannot practice as a barrister. The notice of appeal signed by A. A. Owuru & Co in this appeal is therefore incompetent as such notice can only be signed by the Appellant or its counsel.
Apart from the reason herein above given, I am of the firm view that by virtue of Section 246 (1), the Appellant has no right of appeal since the notice is against a decision which refused an application to relist an appeal. He could only appeal with the leave of this Court. Section 246
(1) of the 1999 Constitution of the Federal Republic of Nigeria provides as follows: –
“An appeal to the Court of Appeal shall lie as of right from –
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether.
(ii) any person has been validly elected to the office of Governor or Deputy Governor . . .”
The decision against which this appeal lies has nothing to do with whether any person has been validly elected to the office of the Governor or Deputy Governor. The failure of the Appellant to seek for leave is fatal to the appeal herein and the appeal is rendered incompetent thereby and liable to be struck out.
For this and the more detailed reasons in the lead judgment, the preliminary objection is also upheld by me. Consequently the notice of appeal, which the Appellant filed on the 4th of December 2007, is hereby struck out. Thirty thousand Naira (N30, 000.00) cost is awarded to the Respondents against the Appellant.
OLUKAYODE ARIWOOLA, J.C.A: I have had a preview of the judgment prepared by my learned brother Shoremi, J.C.A. I agree with his reasoning and conclusion that the appeal is incompetent and should be struck out.
The 1st & 2nd Respondents had raised preliminary objection to appeal filed by the Appellant on the following grounds.”
(i) that the Notice of Appeal filed by the Appellant on the 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 upon which the preliminary objections are predicated are as follows:-
(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.
Under our law, an appeal to the Court of Appeal shall lie as of right from decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the 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 become vacant See; Section 246(1) (b) of 1999 Constitution of the Federal Republic of Nigeria.
It is note worthy that the Appellant in this appeal, Hope Democratic Party (HDP) upon being dissatisfied with the Ruling of the election Tribunal sitting in Port Harcourt filed a Notice of Appeal on 4/12/07. The said Notice of Appeal contains the following Grounds of Appeal herein reproduced without their particulars:-
“1. The Honourable Tribunal Erred in law and misdirected itself when it entertained an oral application from a Counsel not in the petition before it and struck out a motion relisting the petitioner’s petition.
1.(sic) The Honourable Tribunal erred in law and in its construction and application of paragraphs 28, 29 & 30 of the First Schedule to the Electoral Act 2006 in striking out the motion for relistment and in setting aside it (sic) order when it held that we are satisfied that the outside counsel (Nwawuike) of Counsel properly appeared before us on 24th July, 2007. We are satisfied that he was competent .to make the application he made (orally) and that the tribunal did not fail in its duty to grant the WITHDRAWAL in striking out the motion and (petition).'”
2. The Honourable tribunal erred in law when it held that in an election petition it is not the duty of a Court to enquire into the validity of the representation, once a legal practitioner announces his appearance, Saying “we are satisfied that Nwawuike of Counsel properly appeared before us on the 24th July 2007, we are satisfied that he was competent to make the application he made and the tribunal did not fail in its duty to grant the withdrawal.”
The Honourable tribunal erred in law and misdirected itself, when it failed to set aside its previous order secured by an outside Counsel by a misrepresentation and evidently without the authority of the petitioner. Saying “the tribunal is not aware of any false information and misrepresentation, we believe that whatever might be the problem is an internal party affairs.”
The ruling of the Election tribunal being appealed against was on the application of the petitioner/Appellant in the following terms:-
“An order setting aside the oral application of one Barrister A.I. Nwawuike and the ruling of this Honourable Tribunal striking out on the 24/7/2007 the petitioner’s petition based on false information and misrepresentation.”
In its considered ruling which is being appealed against the tribunal had concluded as follows:-
“Finally, we are satisfied that this application is grossly incompetent, lacking in merit and accordingly dismissed.”
I have carefully set our the above detail to show that the appellant’s petition had not proceeded to hearing much less being heard to finality. In other words, the appeal is basically interlocutory and against a ruling of the tribunal in exercise of its discretionary power. It is not a final decision of the tribunal covered by the above Constitutional provisions of S.246(1) of 1999 Constitution of the Federal Republic of Nigeria.
It is trite that for an appeal to lie as of right, it must be against a final decision of the Court or tribunal, otherwise leave will be required to file the Notice of Appeal. See; Union Bank of Nigeria v. Soqunro & Ors. (2006) 10-11 SCM 393.
Similarly, its trite that where leave to appeal is required, failure to seek and obtain such leave before filing the appeal will render such an appeal incompetent and liable to be struck out. See; Ukpong & Anor v. Commissioner for Finance, Economic and Development & Anor. (2006) 12 SCM (pt 2) 460, (2006) 28 NSCQR 508 at 529. In this case the Supreme Court held, that;
“where an appeal is to be with leave but none was obtained, the condition precedent for the validity of such an appeal has not been fulfilled and as a result the appeal is, in law said to be incompetent and the appellate Court is in consequence without jurisdiction to entertain same.”
See; also; Nwosu v. Offor (1997) 2 NWLR (Pt 287) 274, and Ifeajuna Ifeajuna (1999) 1 NWLR (Pt 587) 492.
It is now settled firmly that any ground of fact or mixed law and fact in an interlocutory appeal will be incompetent except the required prior leave of either the trial court or of the appellate court be first sought and obtained. Indeed that is the essence and intendment of Sections 241 (1) (b), 242(1), and 246(1) of the 1999 Constitution of the Federal Republic of Nigeria. See; Union Bank of Nigeria Plc. v. Olusoju Sogunro & 2 Ors. (2006) 10-11 SCM 393 at 401; (2006) 27 NSCQR 182.
It is very clear from the record and the Grounds of Appeal contained in the Notice of Appeal filed in this appeal, that leave of court was required to file the said notice. There is nothing on record to show that leave of court was sought and obtained before the appeal was filed. In the result, the Notice of Appeal filed to initiate this appeal is fundamentally incompetent and it is liable to be struck out. Once the Notice of Appeal in an appeal is incompetent, it means there is no appeal at all in existence. And the appellate Court will not be competent to entertain the appeal based on incompetent Notice and Grounds of Appeal. See; Robert T. Tkweki & 2 Ors. v. James Ebele & Anor. (2005) 3 SCM 69 at 85.
In the circumstance, the appellant in the instant case not having sought and obtained leave of Court to file this appeal as required has no competent appeal before this Court.
It is for the above reason and the more detailed reasons given by my learned brother, Shoremi, J.C.A in his lead judgment that I too strike out this appeal. I abide by the consequential orders including orders on costs.
Appearances
Chief Ambrose Owuru with Afam Okoye and M.I. IgbokweFor Appellant
AND
Dr. I.C Osanakpo with him E. Okoso for 1st and 2nd Respondents
O.K. Chinda with N. Ezedehe Mina for the 3rd Respondent
Dike Udenna for the 4th RespondentFor Respondent
