PROF. EYO ETIM NYONG & ANOR V. MR BASSEY EDET OTU & ORS (2012)

PROF. EYO ETIM NYONG & ANOR V. MR BASSEY EDET OTU & ORS

(2012)LCN/5090(CA)

In The Court of Appeal of Nigeria

On Saturday, the 7th day of January, 2012

CA/C/NAEA/300/2011

RATIO

THE POSITION OF THE LAW ON A NOTICE OF APPEAL

It is settled law that a Notice of Appeal is on originating process which activates the jurisdiction of the Court of Appeal; See P. M. B. Ltd. V. N.D.I.C. (2011) 12 NWLR pt. 1261 pg 253 of 262. See also Aromire V. Agomagberim (2011) All FWIR pt. 596 pg 540 at 550, where the Court held: “A party desiring to appeal to the Court of Appeal against the decision of a lower Court has the onerous Responsibility of filing a notice of Appeal”. Counsel argues that a competent Notice of Appeal is a condition precedent to the exercise of jurisdiction by the Court. In furtherance of their argument, Counsel submitted that-
“for a notice of Appeal to be competent; it must be signed and the name of the signatory thereto duly written at the foot thereof”. See Aromire V. Agomagberin (supra). Counsel also argued that –
“Any person signing a process on behalf of a Principal partner in Chambers must state his name and designation to show that he is a legal Practitioner” PER. UZO I. NDUKWE-ANYANWU, J.C.A. The notice and grounds of Appeal is the originating process in any appeal and therefore very fundamental. A notice of Appeal must be competent to foist jurisdiction on the Court. An incompetent notice therefore robs the Court of jurisdiction to hear the Appeal. Competency or lack of it is a question bordering on jurisdiction of the Court. PER. UZO I. NDUKWE-ANYANWU, J.C.A.

THE POSITION OF THE LAW WHENEVER A COURT’S JURISDICTION IS CHALLENGED

THE POSITION OF THE LAW ON THE SIGNING OF A BRIEF

The Supreme Court has held in a plethora of cases including Okafor & Ors V. Nweke & Ors (2007) 3 SC pt 11 page 55 of 64 (2007) 10 NWLR pt 1043 page 521 at 531-2 “that processes filed in court must be signed by a Legal Practitioner recognized by the law”. How then does one identify who the signature belongs to if his name is not written. The signature immediately becomes suspect and so is the process. It is important to identify the owner of the signature signing for and on behalf of Matthew Ojua to ascertain whether he is a legal practitioner as envisaged by S. 2(1) of Legal Practitioners Act, Cap. 207 of the laws of the Federation Nigeria 1990. Affirming this position further, the Supreme Court held in the case of Ogundele & Anor V. Agiri & Anor (2009) 18 NWLR pt. 1173 pg 219 that “where a brief is so signed, it is not on irregularity but a fundamental error and such brief may be disregarded or discountenanced “See Okafor V. Nweke (supra). See also the more recent case of SLB Consortium V. NNPC (2011) 3-4 MSJC page 145, where it was held as follows. “what then is so important about the way counsel chooses to sign processes, Once it cannot be said who signed a process if is incurably bad; and Rules of court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the legal Practitioners Act) All processes filed in court are to be signed as follows: “First, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of legal firm” The emphasis here is on the name together with the signature. In effect a process not properly signed is a fundamental error. It becomes even more serious in an originating process which activates an appeal. Appeals are originated by a notice of Appeal filed in the Registry. For a notice of Appeal to be competent, it has to be properly signed and filed within the time specified by law or any further extension stipulated thereto. The non disclosure of the identity of who signed for Matthew Ojua robs the court of the opportunity of identifying whether the said person is a legal practitioner or not. This is not a mere irregularity but a fundamental error which renders the notice of Appeal incompetent. PER. UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

(1) PROF. EYO ETIM NYONG
(2) ACTION CONGRESS OF NIGERIA Appellant(s)

AND

(1) MR BASSEY EDET OTU
(2) INDEPENDENT NATIONAL ELECTORAL COMMISSION
(3) THE RESIDENT ELECTORAL COMMISSION CROSS RIVER STATE
(4) PEOPLES DEMOCRATIC PARTY Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): The 1st Appellant as petitioner presented this petition on 17th May, 2011. The 2nd Appellant Action Congress of Nigeria sponsored the 1st Appellant Prof. Eyo Etim Nyong for the election into the Cross.
The 1st Respondent Bassey Edet Otu was sponsored by the 4th Respondent P.D.P. The 1st Respondent was declared the winner and returned on 27th April, 2011.
The Petitioners’/Appellants’ grounds for bringing the petition are as follows:-
i. The 1st respondent was not qualified to contest the election into the Cross River State Southern Senatorial district held on the 26th day of April, 2011.
ii. The election in National Assembly for the Cross River State Southern non-compliance with the provisions of Electoral Act 2010 (as amended).
iii. 1st Respondent was not duly elected by majority of lawful virtues cast at the election.
On the receipt of the Petition, the 1st & 4th Respondents filed their replies but 2nd and 3rd Respondent filed none. After a full trial, the tribunal delivered its considered judgment on 10th November, 2011.
Being dissatisfied, the appellant filed a notice and 12 grounds of appeal. The Appellants filed their briefs on 23rd December, 2011 and articulated 5 issues for determination as follows:-
1. Whether the Tribunal was right when it failed to nullify the election of 26th April, 2011 on the ground that the certificate of return was issued twelve days before the date the election was purportedly conducted? (Ground 9).
2. Whether the Tribunal was not in error when it held that the petitioners failed to link the exhibits tendered to the allegations in the petition? (Ground 5 and 6).
3. Whether the Tribunal was right in failing to consider the exhibits tendered? And if the answer is in the negative if failure did not lead to the conclusion that the petitioners failed to prove their case? (Grounds 11 and 12).
4. Whether the tribunal was right in proceeding to consider the criminal allegations in the petition and placing the burden of proof on the petitioners beyond reasonable doubt after the petitioners had the criminal allegations (Grounds 3, 4 and 8).
5. Whether the failure of the Judges of the tribunal to appreciate the essence of the case of Ogboru V. Uduaghan (2011) 2 NWLR (Pt. 1232) 538 with respect to placement of onus of proof did not lead to misplacement of the burden of proof thereby occasioning a miscarriage of justice? (Ground 1).
In reply the 1st respondent filed a notice of Preliminary Objection and his 1st respondent’s brief on 3rd January, 2012. The 1st Respondent’s Preliminary Objection was argued on pages 4-8 of his brief. In it he articulated 3 issues for determination as follows:-
1. Whether there exists a valid or competent Notice of Appeal before your lordships in order to activate the jurisdiction of this court to determine this appeal?
2. Whether there also exists a competent Appellants’ Brief of Argument to activate this Honourable court’s jurisdiction to consider the arguments and determine this Appeal?
3. Whether the failure and neglect of the appellants to ensure that the record of Appeal was compiled within tine renders this appeal incompetent?
On the main appeal, the 1st Respondent articulated 5 issues for determination as follows:-
1. Whether the alleged dating certificate of return 12 days before the date that the election was conduct emanated from the appellant’s pleading and evidence at the to entitle him to address on it an whether there was any miscarriage or justice by the non pronouncement of the issues of certificate by the tribunal.
2. Whether the tribunal was right when it held that the petitioners failed to link exhibit tendered to the allegation in their petition and whether the tribunal was right to reject analysis submitted by council.
3. Whether the tribunal was right when it held that the petitioners still have the burden of proving the unsevered paragraphs of their petition beyond reasonable doubt because they are interwoven with criminal allegations? Paragraph 3, 488.
4. Whether the Tribunal was right in holding that it is the duty of the petitioners to prove their petition to the required standard despite the decision in Ogboru V. Uduaghan?
5. Whether the petitioners proved their petition before the Tribunal?

The 2nd and 3d respondents filed a Preliminary Objection and their joint brief on 30th December, 2011. In their Preliminary Objection they had 4 grounds of objection namely:
1. The Notice of Appeal in this Appeal is grossly incompetent, incurably defective, and thus liable to be struck out by this Honourable court, under Order 6 Rule 6 of the Court of Appeal Rules, 2011, for being signed in violation of the rule of law.
2. This Appeal ought to be struck out or dismissed in limine in that the record of Appeal in this Appeal was compiled and served out of time, contrary to the clear provisions of the Election Tribunal and Court Practice Directions, 2011.
3. This Appeal ought to be struck out or dismissed in limine in that the Appellants’ Brief of Argument was filed and served on the 2nd and 3rd Respondents out of the time prescribed or stipulated by the Election Tribunal and Court practice Directions, 2011.
4. The Notice of Appeal Record of Appeal and appellants’ Brief of Arguments have not been initiated by the due process of law, thereby robbing this Honourable Court of the jurisdiction to entertain this Appeal.
These grounds were argued in their joint brief. Also the 2nd and 3rd Respondents articulated their own 4 issues for determination.
1. Whether or not the Tribunal was right in holding that the petitioners failed to lie or link their documents to their case? (Grounds 5, 6, 11).
2. Whether or not the Tribunal was right in holding that the petitioners still had the burden of proof beyond reasonable doubt based on the remaining unservered parts of the Petitioners’ pleading? (Grounds 3, 4 & 8).
3. Whether or not the Tribunal was right in holding that “It is incumbent on the petitioners to prove their petition to the required standard” despite the Petitioners’ pleading? (Grounds 3, 4, & 8).
4. Whether or not the Tribunal was right in holding that “It is incumbent on the petitioners to prove their petition to the required standard” despite the Petitioners’ reliance on Ogboru V. Uduashan (2011) 2 NWLR (pt 1232) 539.
5. Whether or not the Judgment of the Tribunal can be faulted for failure to consider the issue of Certificate of Return of the 1st Respondent? (Ground 9).
The 4th Respondent filed its brief on 4th January, 2012 and articulated 2 issues for determination as follows:
1. Whether upon a calm view of the petition, pleadings, evidence, and exhibits placed before the lower tribunal, the lower tribunal was right in dismissing the Appellants petition.
2. Whether in the circumstances of the appeal, this Court can interfere with the findings of the lower tribunal.
In answer to all these Preliminary Objection by the 1st, 2nd and 3rd Respondents the Appellants filed their Reply brief on 5th January, 2012.
The crux of this preliminary objection is:
“whether there exist a valid notice and grounds of Appeal and a valid Appellant’s brief since both documents were not signed by a known person”
The 1st – 3rd Respondents argued through their learned Counsel that there is no valid appeal before this Court to properly initiate this appeal and to activate this Courts jurisdiction to determine it.
It is settled law that a Notice of Appeal is on originating process which activates the jurisdiction of the Court of Appeal; See P. M. B. Ltd. V. N.D.I.C. (2011) 12 NWLR pt. 1261 pg 253 of 262. See also Aromire V. Agomagberim (2011) All FWIR pt. 596 pg 540 at 550, where the Court held:
“A party desiring to appeal to the Court of Appeal against the decision of a lower Court has the onerous Responsibility of filing a notice of Appeal”.
Counsel argues that a competent Notice of Appeal is a condition precedent to the exercise of jurisdiction by the Court.
In furtherance of their argument, Counsel submitted that-
“for a notice of Appeal to be competent; it must be signed and the name of the signatory thereto duly written at the foot thereof”. See Aromire V. Agomagberin (supra).
Counsel also argued that –
“Any person signing a process on behalf of a Principal partner in Chambers must state his name and designation to show that he is a legal Practitioner”
Counsel urged the court to follow the case of Aromire V. Agomagbarim (supra) and strike out the Notice of appeal, it being incompetent having not been properly signed.
The Respondents also urged the Court to strike out the Appellant’s brief filed on 23rd December, 2011 it being incompetent. The appellant’s brief was also not signed by an identified person. For these reasons Counsel to the 1st – 3rd Respondents urged the Court to strike out the Notice of Appeal as well as the Appellant’s brief and ultimately strike out the whole Appeal.
The learned Counsel for the Appellant submitted that the Preliminary Objection was incompetent as the mandatory notice of three (3) clear days has not been met.
However without conceding the learned Counsel still went ahead to argue the Preliminary Objection. Counsel submitted that the person who signed the Notice of Appeal is not on unknown person. Neither is he a stronger to the Respondents. His name is Ejike Ume Esq., a legal practitioner, and one of the junior counsels who appeared with Matthew Ojua for the Appellant of the Tribunal appeared at the Tribunal. Counsel argued therefore that the Respondents are estopped from denying or repudiating the identity and signature of the said counsel who signed the processes.
Counsel argued further that if the respondents are disputing the status of the signatory on the Notice of Appeal and appellant’s brief, it is now a matter of facts to be addressed in the substantive appeal. See the cases of Wolerem V. Emereuwo (2004) 13 NWLR pt 890 page 398 at 419, Daggash V. Bulama (2004) 14 NWLR pt 892 page 144 at 252, Ayanboye V. Balogun (1990) 5 NWLR pt 151 page 392 and A.C.F. V. ANPP (2003) 18 NWLR pt 851 page 182 of 207.
See also the case of Ogunsakin V. Ajidara (2009) 6 NWLR pt 1082 page 1 which Counsel says has a lot in common with the instant case.
Counsel finally submitted that the issue of signatures in this case is purely technical and should not be allowed to becloud the real issues in contention. Counsel therefore urged the court to discountenance the Preliminary Objection and deal with the substantive Appeal.
The notice and grounds of Appeal is the originating process in any appeal and therefore very fundamental. A notice of Appeal must be competent to foist jurisdiction on the Court. An incompetent notice therefore robs the Court of jurisdiction to hear the Appeal.
Competency or lack of it is a question bordering on jurisdiction of the Court.

“A Court is said to have jurisdiction when the Court is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case comes before the Court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All these requirements must co-exist conjunctively before jurisdiction con be exercised by the Court. See Umanah V. Attah (2006) 17 NWLR pt. 1009 pg 503, Madukolu V. Nkemdilim (1962) 1 All NLR pg 587, Anaka V. Ejeagwu (2000) 12SC pt. 1 pg 99.”

It is important that a party who perceives that a Court has no jurisdiction to hear a matter, must raise the issue of the earliest opportunity; Nnoye V. Anyichie (2005) 2 NWLR pt. 910 pg 623.
In the instant case, the 1st-3rd Respondents had filed their preliminary objection challenging the jurisdiction of the Court to hear this appeal. When ever a Court’s jurisdiction is challenged, the Court has the duty to determine the issue at the earliest time, by first assuming jurisdiction to decide whether in clear and unequivocal terms, it has or lacks jurisdiction. A. G. Lagos State V. Dosunmu (1989) 3 NWLR pt. 111 pg 552; Nokoprise Int. Co. Ltd. V. Dobest Trading Corporation (1997) 9 NWLR pt.520 pg.330.
The Appellant in this case had filed the Notice of Appeal and 12 grounds on 30th November, 2011. This notice was signed thus:
Signed:
“F”
Matthew Ojua Esq.
MATTHEW OJUA & CO
(APPELLANTS’ SOLICITORS
TRINITY HOUSE, PLOT 43)
(BESIDE FED. MINISTRY OF WORKS)
MABUSHI, ABUJA
The identity of the person whose signature signed ‘for’ Matthew Ojua is not known.
The Supreme Court has held in a plethora of cases including Okafor & Ors V. Nweke & Ors (2007) 3 SC pt 11 page 55 of 64 (2007) 10 NWLR pt 1043 page 521 at 531-2
“that processes filed in court must be signed by a Legal Practitioner recognized by the law”.
How then does one identify who the signature belongs to if his name is not written. The signature immediately becomes suspect and so is the process. It is important to identify the owner of the signature signing for and on behalf of Matthew Ojua to ascertain whether he is a legal practitioner as envisaged by S. 2(1) of Legal Practitioners Act, Cap. 207 of the laws of the Federation Nigeria 1990.
Affirming this position further, the Supreme Court held in the case of Ogundele & Anor V. Agiri & Anor (2009) 18 NWLR pt. 1173 pg 219 that
“where a brief is so signed, it is not on irregularity but a fundamental error and such brief may be disregarded or discountenanced “See Okafor V. Nweke (supra).
See also the more recent case of SLB Consortium V. NNPC (2011) 3-4 MSJC page 145, where it was held as follows.
“what then is so important about the way counsel chooses to sign processes, Once it cannot be said who signed a process if is incurably bad; and Rules of court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the legal Practitioners Act) All processes filed in court are to be signed as follows:
“First, the signature of counsel, which may be any contraption.
Secondly, the name of counsel clearly written.
Thirdly, who counsel represents.
Fourthly, name and address of legal firm”
The emphasis here is on the name together with the signature. In effect a process not properly signed is a fundamental error. It becomes even more serious in an originating process which activates an appeal. Appeals are originated by a notice of Appeal filed in the Registry. For a notice of Appeal to be competent, it has to be properly signed and filed within the time specified by law or any further extension stipulated thereto.
The non disclosure of the identity of who signed for Matthew Ojua robs the court of the opportunity of identifying whether the said person is a legal practitioner or not.
This is not a mere irregularity but a fundamental error which renders the notice of Appeal incompetent.
This same malady also afflicted the Appellant’s brief which was also signed in the same manner as the notice of Appeal.

Failure to properly initiate an appeal has been held to be beyond mere technicality. It is a fundamental error and therefore renders the notice incompetent.
The notice of Appeal together with the Appellant’s brief are therefore struck out for the reasons stated above.
It is important of this stage to condemn in strong terms the tardiness of legal practitioner when handling matters for their clients. Moreso, in Election petitions where time is of the essence. There is no opportunity to start de novo the process of presenting another petition whereby an aggrieved petitioner may ventilate his grievances as the time stipulated in the Electoral Act 2010 (as amended) has indeed expired.
As much as possible the Court bends over backward to do substantial justice where and when the tools have been provided. Where the tools have not been provided it renders the Court incapable of doing the justice it is empowered to do.
A fundamental error robs the Court of jurisdiction as in this case.
The Court therefore strikes out the Notice and grounds of Appeal together with this Appellants brief. There being competent notice of Appeal, the appeal is therefore incompetent too.
This appeal is therefore unmeritorious and is hereby struck out. I affirm the judgment of the Tribunal and the return of the 1st Respondent, Bassey Edet Otu of the Peoples Democratic Party as the elected member for the Cross River Southern Senatorial District.
I make no orders as to cost.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother, Uzo I. Ndukwe-Anyanwu, JCA, had given me a draft copy of the lead judgment just delivered, before today. All the views expressed therein are the same with mine and I agree with the reasoning on the competence of the Notice of Appeal which represents the position of the law.
In the result, I join the lead judgment in holding that the Appellants’ notice of appeal is incompetent in law and so there is no valid appeal before this court. The said notice of appeal is struck out by me for reasons contained in the lead judgment.
I abide by the order on costs.

JOSEPH TINE TUR, J.C.A.: I had the opportunity of reading in advance the lead judgment delivered by My Lord UZO I. NDUKWE-ANYANWU, JCA and I concur in the reasonings and conclusions.
Order 6 rule 2(1) of the Court of Appeal Rules, 2011 provides that all appeals in the Court of Appeal shall be commenced by the appellant filing a Notice of Appeal in the Registry of the Court or Tribunal below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court or Tribunal is complained of and shall state also the exact nature of the relief sought and the names and addresses of the parties directly affected by the appeal with sufficient number of copies for service on all such parties; it shall also have endorsed on it an address for service. Order 2 rule 4 of the Rules supra is couched in a mandatory form as follows:
“(4) The Notice of Appeal shall be signed by the Appellant or his Legal Practitioner.”
Order 1 rule 5 of the Rules supra defines the term “Appellant” to mean “any person who appeals from a decision of the Court below and includes a Legal Practitioner representing such a person in that behalf.”
A combined reading of the above provisions will show that a person who signs a Notice of Appeal must, when challenged, show he or she is a person who is appealing from the decision of the Court or Tribunal below or a Legal Practitioner representing such a person in that behalf. This is to ensure that persons who are not parties to the proceedings in the Court or Tribunal below or are not their Legal Practitioners do not initiate appeal proceedings in the Court of Appeal. The previous practice was for quacks, clerks in Chambers or busy bodies etc, to sign Notices of Appeal at times with or without the knowledge or consent of the appellant or his Legal Practitioner. These provisions have taken care of that practice. I rely on the authorities cited by my Lord in the lead judgment. Accordingly, there is no proof that the person who signed the Notice of Appeal with the alphabet “E” is a Legal Practitioner or the party appealing, I also strike out the Notice of Appeal.
The Election Tribunal and Court Practice Directions, 2011 provides as follows:
“15. As early as possible, before the date set down for the hearing of the appeal, the party who has filed a Brief or the Legal Practitioner representing him, shall forward to the Registrar in charge of Litigation, a list of the law reports, books and other authorities which Counsel intend to cite at the hearing of the appeal.”
This also presupposes that Briefs are to be filed by the party appealing or the Legal Practitioner representing him. There again it must be shown, when challenged, that the signature on the brief of argument is that of the party appealing or the legal Practitioner representing him. In NIDD V. Olalomi Industries Ltd. (2002) 5 NWLR (Pt.761) 531 at 555 paragraph “G” appears the following statement of fact:
“…a document speaks for itself and that oral testimony is inadmissible to vary add to or take away from the contents of the document.”
Again in Aiki V. Idowu (2006) 9 NWLR (Pt.984) 47 at 65 paragraphs “G-H” the Court held that:
“Where a document which ought to be signed is not, its authenticity is in doubt; pleadings full into this category…”
I may add that Briefs of Argument fall into the category of processes that must be signed by the party or the Legal Practitioner to show who filed it. That is, the signature must speak as to who filed the brief of argument. In this appeal there is no evidence to that effect. For the above reasons I also strikeout the Brief of Argument.

Appearances

C. Ejike UmeFor Appellant

AND

A. E. Attih with F. U. Okoli – for the 1st Respondent

B. Oloyo – for the 2nd and 3rd Respondents

F. O. Riman with E. Onoh and O. O. Adebayo – for the 4th RespondentFor Respondent