FABIAN EKPENYONG V. ACTION CONGRESS OF NIGERIA & ORS (2012)

FABIAN EKPENYONG V. ACTION CONGRESS OF NIGERIA & ORS

(2012)LCN/5778(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of December, 2012

CA/C/216/2011

RATIO

PROCEDURE: WHEN IS PRELIMINARY OBJECTION MOVED

Preliminary objection/s is/are usually moved at the hearing of an appeal before the adoption of the parties briefs by the learned counsel for the parties in respect of the appeal, so that the court would in the determination of the appeal, decide the objection in its judgment. That is a more prudent, expeditious and convenient practice evolved by the courts for many years now to the knowledge of learned counsel. No matter in what position they find themselves in an appeal, counsel have a duty to employ established procedure in the conduct of the appeal which ensured expeditious disposal of such an appeal. After all, they are at all times officers of the court in all the appeals they prosecute or handle before the court. PER MOHAMMED LAWAL GARBA, J.C.A.

APPEAL: WHETHER THE APPEAL COURT CAN HEAR AN APPEAL ON INCOMPLETE RECORD OF APPEAL

The law is firmly settled and so there can be no viable argument against it, that this court in particular, cannot hear an appeal on incomplete record of appeal transmitted without vital documentary exhibits or other essential record that are material in the determination of the appeal. See the earlier cases of Panal Pina World Transport v. Wariboko (1975) 2 SC, 20; Udele v. Chidebe (1990) 1 NWLR (125), 14; Oparaji v. Ohanu (1999) 9 NWLR; Okochi v. Animkwoi (2003) 2-3 SC, 65 at 72 – 3; Nwana v. FCDA (2007) 11 NWLR (1044) 59. PER MOHAMMED LAWAL GARBA, J.C.A.

APPEAL: WHEN IS A PRELIMINARY OBJECTION TAKEN

However, the Supreme Court has recently in the case of Lafia Local Govt. v. Governor of Nassarawa State (2010) 5 -7 MJSC (Pt. III) 167 at 186 held that:-

“A preliminary objection can only be taken against the hearing of an appeal and not against the competence of the brief of a party to the appeal.” PER MOHAMMED LAWAL GARBA, J.C.A.

Before Their Lordships

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

Between

FABIAN EKPENYONGAppellant(s)

AND

1. ACTION CONGRESS OF NIGERIA
2. EDWIN S. JOSEPH
3. RESIDENT ELECTORAL COMMISSIONER AKWA IBOM STATE
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Lead Ruling): The 2nd Respondent in this appeal had filed this motion on the 2/4/12 seeking the following reliefs:-
a) Striking out Appellant’s brief of argument dated 25th October, 2011 and filed on same date for being incompetent.
b) striking out the appeal as it is incompetent.
c) For any order or further Order(s) as this Honourable Court may deem fit to make in the circumstances.

The grounds upon which the above reliefs were predicated are that:
“1) Appellants’ brief or argument was filed based on incomplete record of appeal.
2. Appellant’s brief of arguments concealed the fact that the 2nd Respondent had obtained the leave of the trial court to enter a conditional appearance and did raise the issue of jurisdiction before the trial court by notice of preliminary objection (see page 174 – 175 of the record).
3. Appellant’s reply brief dated 8th December, 2011 and filed on same date is predicated on incompetent brief of argument.
4. This Honourable Court lacks the jurisdiction to hear the appeal as it is incompetent.

The motion is supported by a 13 paragraphs affidavit deposed to by a litigation clerk in the chambers of the counsel for the Applicant/2nd Respondent, Miss Ekaette S. Edet, and to which was attached, a copy of a notice of dispatch of record of the appeal to the parties dated the 10/11/2011.

In reaction to the motion, the Appellant had deposed to a 15 paragraphs affidavit dated and filed on the 11/4/12 and pursuant to a directive by the court, learned counsel for the parties filed written addresses in the motion. The Applicant/2nd Respondent’s address was filed on 27/4/12, the Applicant’s address titled Appellant’s Reply to the 2nd Respondent’s address, was filed on the 4/5/12 and lastly, the 2nd Respondent/Applicant’s reply address was filed on the 7/5/12. The addresses were adopted by the learned counsel at the hearing of the motion in court on the 8/11/12, urging us to uphold their respective position in the motion.
As can easily be observed from the tenor of the prayers and grounds upon which they are premised, the motion is actually in the nature of a preliminary objection to the appeal, which by established judicial practice and requirements of Order 10, Rule 1 of the Court of Appeal Rules, 2011 under which the motion was brought, should have been in the form of just a notice of preliminary objection or it be incorporated in the 2nd Respondent’s brief of argument wherein it would be argued. By that known procedure, it is unnecessary and pure waste of previous time and resource to file a motion on notice which calls for the swearing of affidavit evidence, addresses by counsel and then ruling by the court before the appeal was even called for hearing. Preliminary objection/s is/are usually moved at the hearing of an appeal before the adoption of the parties briefs by the learned counsel for the parties in respect of the appeal, so that the court would in the determination of the appeal, decide the objection in its judgment. That is a more prudent, expeditious and convenient practice evolved by the courts for many years now to the knowledge of learned counsel. No matter in what position they find themselves in an appeal, counsel have a duty to employ established procedure in the conduct of the appeal which ensured expeditious disposal of such an appeal. After all, they are at all times officers of the court in all the appeals they prosecute or handle before the court.

Now the learned counsel for the Applicant/2nd Respondent has raised two (2) issues in the written address which he canvassed therein. They are:
“1. Whether in the light of the Supreme Court decisions in the cases of Ekpenyong v Edremola (2009) ALL FWLR (Pt. 473) 1220 and Olorunyolemi v Akhagbe (2010) ALL FWLR (Pt. 525) 246, the Appellant’s brief of argument based on incomplete record of appeal and nay the whole appeal before this honourable court is incompetent.
2. Whether this Honourable Court is seized of the jurisdiction to hear this appeal if the above is answered in the negative.”

The fulcrum of the submissions by him on the above issues briefly put, is that because the Appellant’s brief was filed before the 2nd Respondent’s additional record of the appeal were transmitted to the court, the said brief was based on incomplete record of the appeal and so according to him, the brief of the Appellant was incompetent. If the Appellant’s brief was incompetent, then learned counsel argued that the appeal is thereby rendered incompetent, thus robbing the court of the jurisdiction to hear it.
The cases set out in issue No. 1, which deal with the court hearing an appeal on incomplete record of appeal, were relied on, with reference to paragraph 6 of the Appellant’s counter-affidavit which was said to be an admission that the record of appeal was incomplete. The very famous case of Madukolu v Nkemdilim (1960) 2 SCNLR 341 was cited on when a court can exercise jurisdiction in a case.
For the Appellant, after reference to paragraphs 4, 5, 6 and 8 of the 2nd Respondent’s affidavit and paragraphs 5, 6, 9, 10 and 11 of the Appellant’s counter affidavit, it was submitted that the 2nd Respondent had taken steps by compiling additional record and filing his brief after becoming aware of the irregularity complained of in the motion and so by Order 20 Rule 5(1) of the Court of Appeal Rules, 2011, cannot be heard to complain now. Relying on Order 20, rule 3(1) & (2) of the Rules and Jack v. SPDC (2003) 11 NSCQR, 271 at 283, we were urged to waive the noncompliance with the rules and overrule the objection to the Appellant’s brief. In the alternative, the additional record was said not to be material to the determination of the Appellant’s appeal and so not relevant in the record of the appeal. It was further submitted that the cases of Ekpemupolo v. Edremola and Olorunyemi v Akhagbe were misconceived by the Applicant/2nd Respondent as the facts are different from the Appellant’s case and they deal with hearing an appeal on incomplete record. It was maintained that the Appellant’s brief filed after receipt of the record of the appeal from the High Court was not defective but in compliance with Order 18, rule 2 of the Rules of Court. We were urged to dismiss the objection.

It may have been observed that the pith of the motion by the Applicant/2nd Respondent is that the Applicant’s brief is incompetent because according to him, it was based on incomplete record of the appeal. In paragraphs 4 and 5 of the affidavit in support of the motion, it was averred that the record of the appeal was forwarded to the court on 5/9/11 and the Appellant’s brief was filed on 25/10/11. In the Appellant’s counter affidavit, it was deposed in paragraph 5 that the Appellant’s brief was filed on 25/10/11 after receipt of the record of the appeal. By these averments, it is common ground therefore that the Appellant’s brief was filed after the compilation and transmission of the record of the appeal, which were settled by the parties at the Registry of the High Court and service of same on counsel. Order 18, Rule 2 of the Court of Appeal Rules, 2011, has made the following provisions for the filing of a brief by the Appellant in an appeal:-
“18.2: The Appellant shall within forty-five days of the receipt of the Record of Appeal from the court below, file in the court a written brief, being a succinct statement of his argument in the appeal.”
These provisions are unambiguous and plainly provide the time when and within which an appellant in an appeal shall file his brief of argument in the appeal. The duty to file the brief arises and it is imposed on an appellant when the record of the appeal was served on him by or from the Registry of the lower court and he received it. The receipt of the record of the appeal from the Registry of the lower court by an appellant is therefore a condition precedent to the filing of a brief of argument by him in the appeal. After receipt of the record of the appeal, then time begins to run for the Appellant to file his brief of argument from the day of the service on him. In the case of Consortium M.C. v NEPA (1992) 6 NWLR (246) 132, it was held by the Supreme Court that the time within which an appellant ought to file his brief of argument starts to run from the date of service on him of the Registrar’s notice that the record of appeal has been compiled, and not from the date any of the party decides to collect the record.

Here, it is not the case of the Applicant/2nd Respondent that the record of the appeal compiled by the Registry of the High Court and served on the Applicant’s counsel was incomplete for the purpose of the Appellant’s appeal at the time he was served with it. Rather by the averment in paragraph 6 of the affidavit in support of the motion, the Applicant’s case is that he had compiled additional record with the leave of the court after receipt of the Applicant’s brief and so it was based on incomplete record of the appeal. Learned counsel for the Applicant/2nd Respondent did not refer to or cite any authority which posits that merely because a Respondent compiled and transmit additional record of appeal, the initial record of the appeal compiled and transmitted earlier by the Registry of the lower court was incomplete or even to be considered so. There is no such authority because the discretionary right of a Respondent to compile and transmit additional record in an appeal after receipt of the initial record of the appeal was vested by the Rules of the Court in Order 8, Rule 6. The provisions are thus:-
“8.6. Where the Respondent considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty, within 15 days of the service on him of the records, to compile and transmit to the court such records to be known as additional records of appeal.”
The discretionary right vested by these provisions is for a Respondent to compile additional record of the appeal which he may consider necessary for the determination of the issues in an appeal after receipt of the initial record of appeal transmitted to the court from the Registry of the lower court. The Rules do not say that the additional record are to be compiled and transmitted by a Respondent because the initial record are incomplete or to complete such record that is why such records from a Respondent are specifically called “additional record”. The additional record compiled by a Respondent only forms a part of the record of the appeal to be used in the determination of the appeal and do not render the initial records to which they are only additional or supplementary, incomplete. In the Geddes & Grosset’s Nav English Dictionary and Thesaurus, New Edition, the adjective “additional” was defined as “added, extra, supplementary.”
Because additional record of appeal compiled by a Respondent under the Rules of the court are only extra and supplementary to the initial record of the appeal compiled and transmitted earlier, either by the Registry of the court below or by an Appellant in the appeal as required by the Rules, such record do not render the earlier record incomplete. For that reason, an Appellant’s brief filed after the receipt of the initial record of the appeal from the Registry of the court below cannot be said to be and is not incompetent merely because a Respondent exercised the discretionary right vested in him by the Rules to compile additional record of the appeal later and after the receipt of the Appellant’s brief. It should be noted here that briefs of arguments are used to identify the germane issues that arise and require determination from the grounds of the appeal as set out in the notice of appeal filed, usually at the lower court. Because the law requires that grounds of an appeal must arise or be derivable from the decision appealed against, both the decision of the lower court and the notice of appeal against it filed at the lower court form part of the record of the appeal to be compiled and transmitted by the Registry of that court to this court. That is why the brief of argument of an Appellant is required to be filed after receipt of such record by the Appellant. The Rules of the court do not say that an Appellant after receipt of the record from the court below should wait until a Respondent at his whims, decides that it was necessary for him to compile additional record in the appeal before he files the Appellant’s brief in the appeal. It is clearly a misconception to say that an Appellant’s brief filed after receipt of the record of the appeal from the Registry of the court below was based on incomplete record simply because the Respondent had later compiled and transmitted additional record in the appeal. It was this misconception by the learned counsel for the Appellant/2nd Respondent that extended to the reference and reliance on the cases of Ekpemupolo v. Edremola and Olorunyemi v Akhagbe (both supra) which deal with the court hearing an appeal on incomplete record of appeal. The law is firmly settled and so there can be no viable argument against it, that this court in particular, cannot hear an appeal on incomplete record of appeal transmitted without vital documentary exhibits or other essential record that are material in the determination of the appeal. See the earlier cases of Panal Pina World Transport v. Wariboko (1975) 2 SC, 20; Udele v. Chidebe (1990) 1 NWLR (125), 14; Oparaji v. Ohanu (1999) 9 NWLR; Okochi v. Animkwoi (2003) 2-3 SC, 65 at 72 – 3; Nwana v. FCDA (2007) 11 NWLR (1044) 59.
In the Applicant/2nd Respondent’s motion, it was not suggested that the appeal has been down or called for hearing on record of the appeal which are incomplete in the sense that vital documentary exhibits or the judgment of the High Court or other essential record that are material for the determination of the appeal, have not been transmitted. On the contrary, by the Applicant/2nd Respondent’s own averment in paragraph 6 of the affidavit in support of the motion, the additional record of the appeal which was the foundation of the misconception that the earlier record was incomplete, has been forwarded to the court from the Registry of the lower court? Indeed, the said additional record was received in the court on the 10/11/11 but deemed on the 21/2/12. So even by the date the present motion was filed on the 2/4/12, the “complete record” of the appeal have been before the court.
Undoubted, when the appeal is set down for hearing, it would be heard on both the initial as well as the additional records of the appeal transmitted from the Registry of the High Court, which for the Applicant/2nd Respondent, form the complete record of the appeal. In the circumstances, the cases dealing with the hearing of an appeal on incomplete record of an appeal are clearly inapplicable to the Applicant/2nd Respondent’s motion.
But assuming that the Appellant’s brief was based on incomplete record of the appeal, learned counsel for the Applicant/2nd Respondent did not demonstrate under which Rule of court or principle of judicial practice it is rendered incompetent. I know of no Rule of court which requires that a brief of argument in an appeal must be based on complete record of the appeal for it to be competent. I am also not aware of any such principle of judicial practice which says that an Appellant’s brief in particular, must be based on complete record of the appeal for it be competent. I have stated earlier on, on what parts of the record of an appeal an Appellant’s brief of argument is usually grounded or based. As long as an Appellant’s brief was filed within the time prescribed by the Rules of the court or with the leave of the court, it becomes competent for consideration in an appeal in spite of any defect or irregularity therein or in respect whatever part of the record of the appeal it was based on.

Furthermore, it is quite curious for the learned counsel for the Applicant/2nd Respondent to argue the Appellant’s brief was incompetent when his own Respondent’s brief was based on and filed in reaction to the Appellant’s brief. He has not argued that the 2nd Respondent’s brief was entirely predicated on the additional record he compiled, but prima facie, the 2nd Respondent’s brief was in answer and response to the Applicant’s brief which is said to be incompetent. Can a competent 2nd Respondent’s brief arise or be derivable from an incompetent Appellant’s brief? In law, nothing can be put into nothing and nothing is derivable or can arise from nothing. It follows therefore that if the Appellant’s brief was incompetent, then the 2nd Respondent’s brief has been contiguously infected by the incompetence because it is a reaction to and based on the incompetent brief of the Appellant.

I have stated at the beginning of this ruling that the motion of the 2nd Respondent is on the nature of a preliminary objection to the hearing of the Appellant’s appeal by challenging the competence of the Appellant’s brief.
However, the Supreme Court has recently in the case of Lafia Local Govt. v. Governor of Nassarawa State (2010) 5 -7 MJSC (Pt. III) 167 at 186 held that:-
“A preliminary objection can only be taken against the hearing of an appeal and not against the competence of the brief of a party to the appeal.”

In addition, the Applicant/2nd Respondent here having taken a step after the receipt of the Appellant’s brief, that is reacting to it by filing the 2nd Respondent’s brief to answer the issues canvassed therein thereby joining them with the Appellant, he cannot later be heard to complain about any irregularity said to have arisen, in the filing of the said Appellant’s brief. It may be recalled that I have before now found that there was no irregularity in the filing of the Appellant’s brief under the Rules of the court as complained of by the Applicant/2nd Respondent in this motion.
In the result, for the reasons set out above, I find no merit whatsoever in this motion and without hesitation, dismiss it.

Before finally ending the short ruling, I am constrained to say that the Applicant/2nd Respondent should muster the courage to face the Appellant on the issues which the parties have joined and canvassed in their respective briefs of argument rather than try to avoid the real legal battle by resorting to pendantic and impotent technicalities that only waste precious time and resources which should prudently be employed in the expeditious determination of the appeal relating to a pre-election matter.
There shall be costs in favour of the Applicant assessed at N20,000.00 against the Applicant/2nd Respondent.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I am in total agreement that there is no law that states that an appellant’s brief filed on an incomplete record is incompetent. Briefs are filed and predicated on the grounds of appeal and on the issues articulated therefrom for determination. My learned brother has succinctly dealt with the issues contested in the addresses of counsel. I have no difficulty in dismissing this motion. I abide by all the consequential order contained in the lead Ruling including that as to costs.

JOSEPH TINE TUR, J.C.A.: I have read in advance the ruling of my Lord, Mohammed Lawal Garba, JCA and I do concur with the conclusion that this preliminary objection lacks merit and ought to be dismissed with costs.

Order 8 rules 1, 2 and 3 of the Court of Appeal Rules, 2011 provides as follows:
“1. The Registrar of the Court below shall within sixty days after the filing of a notice of appeal compile and transmit the Record of Appeal to the Court.
2. In pursuit of Rule 1 above, the Registrar shall within a reasonable time summon the parties before him to –
(a) settle the documents to be included in the Record of Appeal; and
(b) Fix the amount to be deposited by the Appellant to cover the estimated cost of making up and forwarding the Record of Appeal.
3. The said Registrar shall whether any of parties attend or not, provided the notice has been served on the parties to the appeal, proceed to settle and determine those matters in accordance with the provisions of Rules 2(a) and (b) of this Order.
8. The Registrar or the Appellant in compiling the record shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal and generally to reduce the bulk of the record as far as practicable taking special care to avoid duplications of documents and unnecessary repetition of headings and other merely formal parts of documents; but the documents omitted to be copied shall be enumerated in a list at the end of the record, but where part or parts only of any lengthy document are directly relevant to the subject matter of the appeal it shall be permissible to omit to copy such part of the document as are irrelevant to the subject matter of the appeal nor necessary for the proper understanding of the part or parts that are so relevant.”
The combined effect of the above provisions of Order 8 rules 1-3 of the Court of Appeal Rules, 2011 is that the Registrar is to summon the parties or their learned Counsel to appeal and determine which documents are relevant to the determination of the appeal and that shall be included in the Record of Appeal. The appearance of the parties or their learned Counsel before the Registrar will ensure that irrelevant documents or matters are not included in the Record of Appeal. This will ensure that the Record of Appeal compiled is not bulky, and does not contain irrelevances thereby escalating the cost of compiling records. Where the parties or their learned Counsel were summoned by the Registrar for the purposes of compiling the records but failed or neglected to attend and the Registrar proceeds to compile the records, I am of the humble opinion that it would not lie in the mouth of any party or Counsel to complain that the records compiled are incomplete. This is because upon failure of the parties or Counsel to answer the Registrar’s summons the Registrar proceeds to compile what he considers relevant for the determination of the appeal.
In the course of compilation the Registrar may omit some documents which he thinks are not relevant to the determination of the appeal. In such a case Order 8 rule 6 of the Rules supra provides that:
“6. Where the Respondent considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty, within 15 days of the service on him of the records, to compile and transmit to the Court such records to be known as the additional records of appeal.”
Where a party or his Counsel is of the view that the records served on him are incomplete it is his responsibility to within 15 days compile additional records but definitely not to apply that the appeal be dismissed or struckout. That is not the remedy provided under the Court of Appeal Rules, 2011. I wish to further draw attention to the provisions of Order 8 rules 13-17 which reads thus:
“13. Subject as hereinafter provided, each party shall, immediately after an appeal becomes pending before the Court, deliver to the Court, all documents being exhibits in the case or which were tendered as exhibits and rejected) which are in his custody or were produced or put in by him at the trial.
14. Subject as hereinafter provided, each party to an appeal shall be prepared to produce at the hearing of the appeal all exhibits, other than documents, which are in his custody or were produce or put in by him at the trial.
15. In case any party finds it difficult to comply with the provisions of Rules 13 and 14 of this Order, owing to the nature of documents or other exhibit or owing to its being in the possession of a third party or for any other reason; he may apply to the registrar of the Court for directions.
16. The Registrar of the Court may, either of his own motion or upon application, give any directions he sees fit, whether dispensing with the provisions of Rules 13 and 14 or modifying its application in any way or for securing compliance with it.
17. All original documents delivered to the Court under this Rule shall remain in the custody of the Court until the determination of the appeal;
Provided that the Court or Registrar may allow the return of any document to any party pending hearing of the appeal and subject to such conditions as it or he may impose.”
Immediately after an appeal becomes pending before the Court each party is to ensure that the exhibits in their custody or which were produced or put in by him at the trial are forwarded to the Court of Appeal. The failure to abide by the above provisions has often resulted into appeals been unnecessarily adjourned. This is because appellate judges must see the exhibits before pronouncing on them. See Ekpemupolo v. Edremoda (2009) 3 SCNJ 77 at 102; Mobil Producing Nig. Unlimited vs. Chief Monokpo & ors. (2004) All FWLR (pt.195) 575.