HON. FABIAN OKPA v. CHIEF ALEX IREK & ANOR
(2012)LCN/5098(CA)
In The Court of Appeal of Nigeria
On Saturday, the 7th day of January, 2012
CA/C/NAEA/289/2011
RATIO
THE POSITION OF THE LAW WHERE A BRIEF IS NOT SIGNED
Without belaboring the point, the Supreme Court has held in a number of cases that a process filed in court must be signed by an identifiable person. See S. 2(1) of the Legal practitioners Act cap 207 LFN. Okafor vs. Nweke & Ors (2007) 10 NWLR pt 104 page 521 at 531-2. In Ogundele vs. Agiri (2009) 18 NWLR pt 1173 page 219 the Supreme court held affirming Okafor vs. Nweke (supra) “that where a brief is not signed, it is not a mere irregularity but a fundamental error and such brief may he disregarded or discountenanced” see SLB consortium vs. 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 it is incurably bad; and Rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (ie the legal Practitioners Act) All processes filed in court are to he 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” PER. UZO I. NDUKWE-ANYANWU, J.C.A.
AN ORDER FOR RETRIAL OF A CASE BY AN APPELLATE COURT
An appellate court may make an order for retrial of a case, where the retrial will not lead to a miscarriage of justice, or where the court, exercising its appellate jurisdiction, cannot adequately do justice to the case, or where from the circumstances of the case, it is just to make such an order Abusomwan vs. Aiwerioba (1996) 4 NWLR pt 441page 130. Also, an appellate court will order for a retrial of a matter where there has in fact been a previous trial that though was properly conducted but which is vitiated by an error in law or procedure. On the other hand, an appellate court will order for fresh trial where there has been no trial in the sense that the purported trial has been vitiate ab initio and is therefore null and void Yahaya Vs. State (2002) 3 NWLR pt 754 page 299. 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
HON. FABIAN OKPA Appellant(s)
AND
1. CHIEF ALEX IREK
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): The Appellant Hon. Fabian Okpa as Petitioner in the Tribunal contested election into the Obubra 1 State Constituency held on 26th April, 2011 and 28th April, 2011. The Respondent Chief Alex Irek of the Action Congress of Nigeria also contested and was returned as the winner of that election.
Being dissatisfied, the appellant presented this Petition on 19th May, 2011. After the full trial, the Tribunal delivered its considered judgment on 14th November, 2011 and dismissed the Petition.
Being aggrieved again, the appellant filed a notice and 6 grounds of appeal on the 3rd December, 2011. The Appellant also filed his Appellant’s brief on 14th December, 2011. Also filed on 21st December, 2011 is the Appellant’s Reply to the 1st Respondent’s Brief. The Appellant in his brief articulated 3 issues from the 6 grounds of Appeal as follows:
1. Whether the Tribunal was right in holding that unless a written statement on oath is accepted as an exhibit it does not constitute evidence even after adopting it as evidence.
(ground 2).
2. Whether the lower Tribunal was right in rejecting the evidence of the Appellant and his witnesses on the grounds that the written statement on oaths did not comply with section 13 of the Oaths Act. (grounds 1 & 5).
3. Whether if the answer to issue 2 is in the negative, the Pleading and evidence not being challenged or controverted, the Appellant was not entitled to judgment from the Tribunal, failing which the Court of Appeal by virtue of section 15 of the Court of Appeal Act is empowered to do so. (Grounds 3 & 4).
The 1st respondent’s brief was filed on 19th December, 2011 and adopted the 3 issues articulate by the Appellant. The 2nd Respondent filed its brief and deemed properly filed on 5th January, 2012 and also adopted the 3 issues articulated by the Appellant.
The learned counsel to the 1st Respondent withdrew his notice of Preliminary Objection filed on 5th January, 2012. There being no objection from the appellant and 2nd Respondent, the Preliminary Objection withdrawn was struck out. The Learned Counsel to the appellant Nta A. Nta adopted his brief and drew the court’s attention to a Preliminary Objection he filed challenging the competency of the 1st Respondent Brief having not been signed by an identifiable person known to law.
He argued this in his brief and cited P.M.B Vs. NDIC (2011) 12 NWLR pt 1261 page 253 at 261 and urged the court to follow that decision and strike out the 1st Respondent’s Brief. The 1st Respondent urged the court to discountenance this argument and hold that the 1st Respondent’s brief was signed by Ejike Ume a Legal practitioner in his chambers.
Without belaboring the point, the Supreme Court has held in a number of cases that a process filed in court must be signed by an identifiable person. See S. 2(1) of the Legal practitioners Act cap 207 LFN. Okafor vs. Nweke & Ors (2007) 10 NWLR pt 104 page 521 at 531-2.
In Ogundele vs. Agiri (2009) 18 NWLR pt 1173 page 219 the Supreme court held affirming Okafor vs. Nweke (supra) “that where a brief is not signed, it is not a mere irregularity but a fundamental error and such brief may he disregarded or discountenanced”
see SLB consortium vs. 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 it is incurably bad; and Rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (ie the legal Practitioners Act) All processes filed in court are to he 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”
I therefore hold that the 1st Respondent’s brief not properly signed is incompetent and therefore struck out. The Preliminary Objection is therefore upheld.
Coming to the substantive appeal, the Appellant’s learned counsel submitted that the Tribunal missed the point when it added that a witness statement on oath must be tendered and accepted as an exhibit before it becomes evidence before it. Counsel argued that there was nowhere in the Electoral Act, a witness statement on oath is required to be tendered as an exhibit before it is admitted as evidence by the Tribunal. Also that this wrong approach taken by the Tribunal led to a miscarriage of justice.
Counsel urged the court to discountenance the Tribunal’s findings and deal with the evidence as proper before the Honourable court.
In reply the 1st 2nd & 3rd Respondents respective counsel submitted that what the Appellant’s counsel submitted was not what transpired in Court. Both counsel stated that it was the Appellant’s counsel that sought to tender the witness statements on oath. Both counsel urged the court to resolve this issue against the Appellant.
The Tribunal rejected the tendering of the witness statement on oath as it did not conform with the requirements of section 13 of the oaths Act.
This court has consistently held that a witness statement on oath is different from an affidavit evidence.
An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a court Process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence. Akpokeniovo vs. Agas (2004) 10 NWLR pt 881 page 394.
on the contrary a witness statement is not evidence. It only becomes evidence after the witness is sworn in court and adopts, his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine, the witness’ it is taken as the true situation of facts contained there in.
The Tribunal was therefore led by both parties to adopt a wrong procedure of turning the witness statements as exhibits which were eventually rejected. The only way facts in a witness statement can he jettisoned is by cross examination.
The sum total of these is that vital evidence was not admitted and verified through cross examination.
This court was called upon to use its powers to give judgment in this petition by virtue of S. 15 of the Court of Appeal Act 2004. The court has no evidence to review since none was actually taken. The evidence was rejected through the wrong procedure adopted by the Tribunal. There is therefore no evidence to work with and the veracity of the witness statements was not ascertained or verified to form part of the evidence needed to consider in reaching the conclusion and eventual judgment. The court cannot therefore exercise its powers by virtue of S. 15 Court of Appeal Act 2004.
An appellate court may make an order for retrial of a case, where the retrial will not lead to a miscarriage of justice, or where the court, exercising its appellate jurisdiction, cannot adequately do justice to the case, or where from the circumstances of the case, it is just to make such an order Abusomwan vs. Aiwerioba (1996) 4 NWLR pt 441page 130.
Also, an appellate court will order for a retrial of a matter where there has in fact been a previous trial that though was properly conducted but which is vitiated by an error in law or procedure. On the other hand, an appellate court will order for fresh trial where there has been no trial in the sense that the purported trial has been vitiate ab initio and is therefore null and void Yahaya Vs. State (2002) 3 NWLR pt 754 page 299.
For these reasons, this appeal succeeds in part. This petition is therefore sent back for retrial by another panel differently constituted.
I do not wish to dabble into issues 2 and 3 as that would jeopardize the just retrial by the Tribunal.
No order as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: I have read the draft of the lead judgment just delivered by my learned brother Uzo. I. Ndukwe-Anyanwu, JCA and I agree with the reasoning and conclusion therein.
I also allow the appeal in the terms of the lead judgment.
JOSEPH TINE TUR, J.C.A.: I read in advance the judgment delivered by My Lord UZO I. NDUKWE-ANYANWU, JCA and I agree that the Brief Argument is incompetent and should be struck out.
Paragraph 15 of the Election Tribunal and Court Practice Directions, 2011 reads 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.”
The name of the party or the Legal Practitioner representing him shall be clearly set out in the Brief filed in the Court of Appeal.
Order 18 rule 8 of the Court of Appeal Rules, 2011 also provides that:
“8. Twenty copies of all briefs in respect of the appeal shall be filed in Court. All such copies shall be duly endorsed for service on the other side, which shall also be duly paid for by the party filing the same.”
The party filing a Brief must either be the appellant or his Legal practitioner and this shall appear on the brief. Oral evidence is inadmissible to identify the party that filed the brief, namely whether it was the party appealing or his legal practitioner. I rely on authorities referred to in the lead judgment of my Lord.
Without an Appellant’s Brief of Argument the appellant cannot be heard orally by this court. This because oral argument will be allowed at the hearing of the appeal to emphasize and clarify the written argument appearing in the briefs filed in court. See order 18 rule 9(1) of the court of appeal rules, 2011. In the absence of an appellant’s brief no oral argument shall be entertained. I strike out the Appellant’s brief of argument.
Appearances
Nta. A. Nta with
M. S. Chi
U. Omaji (Miss)For Appellant
AND
Ejike Ume – for the 1st RespondentFor Respondent
