HON. UGONNA OZURIGBO v. BARR. NWADIKE HARRISON ANOZIE & ORS
(2019)LCN/13615(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of July, 2019
CA/OW/212/2019(R)
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
HON. UGONNA OZURIGBO Appellant(s)
AND
1. BARR. NWADIKE HARRISON ANOZIE
2. ALL PROGRESSIVE CONGRESS (APC)
3. MR. KINGSLEY CHIBUZO ECHENDU
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
RATIO
WHETHER OR NOT NOTICES OF APPEAL, APPLICATION FOR LEAVE TO APPEAL, BRIEFS, AND ALL OTHER DOCUMENTS MUST REFLECT THE SAME TITLE AS THAT WHICH WAS OBTAINED IN THE COURT OF TRIAL
The Courts have interpreted this defect in the Supreme Court and have held that such misjoinder made the process incompetent. This however is founded on the clear provision of the Supreme Court Rules. Order 2 Rule 8 of the Supreme Court Rules 1999 (as amended) reads thus ?Notices of Appeal, application for leave to appeal, briefs and all other documents whatsoever prepared in pursuance of the appellants jurisdiction of the Court for filing in accordance with the provisions of these rules, shall reflect the same title as that which obtained in the Court of trial.? I refer also to Progression Peoples Alliance Vs. INEC & Anor. (2012) 13 NWLR (Pt. 1317) 215. The Court of Appeal Rules has no such provision. Where Rules of Court concern only the procedural law on jurisdiction but does not affect the substantive law, the Rules can be waived ? See Poroye Vs. Makarfi (2018) I NWLR (Part 1599) 91. PER AGBO, J.C.A.
RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Lead Ruling): By a motion filed on 20-6-19 the appellant prayed the Court to (1) strike out the name of Mr. Kingsley Chibuzor Echendu the 3rd Respondent from the appeal and (2) deem the appellant?s brief already filed as properly filed. The application is supported by a 12 paragraph affidavit which is reproduced hereunder-
?1.That I am a legal practitioner assisting K. C. NWUFO, SAN in prosecuting this appeal on behalf of the Applicant and by virtue of which position, I am conversant with the facts relevant to this application.
2.That I have the information, consent and authority of K. C. Nwufo, SAN and that of the Appellant/Applicant to depose to this affidavit.
3.The Appellants filed their Notice of Appeal on the 27th and 30th May, 2019.
4.The Record of Appeal in this Appeal was transmitted to this Honourable Court on the 10th June, 2019.
5.The subject matter of the Appeal relates to pre-election matters that borders around pre-election complaints(s) and it raises legal issues of exceptional circumstance.
6.The Constitution of the Federal Republic of
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Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017 has circumscribed the time within which any appeal the subject matter of which relates to pre-election complaints to within Sixty (60) days of filing of the appeal.
7. That I know as a fact that this appeal will lapse on the 27th July, 2019.
8. The Honourable Court of Appeal is imbued with power(s) to grant accelerated hearing and abridgment of time to file brief a arguments.
9. That it is expedient to grant accelerated hearing of this appeal and abridgment of time to file briefs.
10. That if this Honourable Court does not grant an order of accelerated hearing of this appeal and an order of abridgment of time of the parties to file their respective briefs, the Appellant/Applicant will be irreparably jeopardized.
11. That it is in the interest of substantive justice to grant the instant application.
12. That I depose to this affidavit in good faith conscientiously believing same to be true, correct and in accordance with the Oaths Act.?
The said 3rd Respondent filed a 12 paragraph Counter-affidavit which is reproduced hereunder-
?1. That I am the beneficiary
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of the judgment of the Federal High Court, Owerri, subject-matter of this appeal.
2. That I am very conversant with the facts and circumstances of this appeal.
3. That I make this oath from facts within my personal knowledge and believe.
4. That I have seen a copy of the Appellant?s Motion on Notice dated 20/06/2019 and filed on same day.
5. That I am not in the position to admit or deny paragraphs 1, 2 and 4 of the affidavit in support of the said Motion.
6. That paragraphs 3, 5 and 7 of the supporting affidavit are true and admitted; save to add that the Notice of Appeal filed by the Appellant on 27/5/2019 has now been abandoned by the Appellant.
7. That paragraphs 6 and 8 of the supporting affidavit are admitted only to the extent that I will be affected by the outcome of this Appeal. In further response thereto, I hereby state as follows:
a) That it was the unilateral decision of the Appellant to include my name in this appeal.
b) That the instant application to have my name struck out from this appeal has now been over-taken by events.<br< p=””
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(c) That on 14/6/2019, I filed an application to regularize my standing in this appeal.
d) That my said application is a Motion on Notice praying that I be joined as a co-respondent in this appeal.
e) That my application for joinder is first in time.
f) That it is unnecessary to strike out my name now.
g) That I have an interest in the subject-matter of this appeal.
8. That save to admit that the Appellant had already filed his Appellant?s Brief in this appeal, paragraph 9 of the supporting affidavit is false and same is denied. In further response thereto, I state that the deeming Order sought in this application is unnecessary.
9. That paragraphs 10, 11 and 12 of the supporting affidavit are false and hereby denied.
10. That I will be prejudiced if this application is granted.
11. That it is in the interest of justice to refuse/dismiss this application.
12. That I make this oath in good faith, believing same to be true, correct and in accordance with the Oaths Act, 2004.
The subject matter of this appeal is the primary election conducted by the 2nd
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Respondent i.e. the All Progressives Congress in relation to the Nkwere Isu/Nwangele/Njaba Federal Constituency in the 2019 General Election. While the 1st Respondent claims to have won the primaries, the appellant was presented by the 2nd Respondent to the 4th Respondent i.e. the Independent National Electoral Commission as its candidate for the election. The 1st Respondent went to Federal High Court challenging the nomination of the appellant. He won and was rewarded with damages. The trial Court made further consequential orders avoiding the votes cast for the appellant at the general election and ordered the 4th Respondent to withdraw the certificate of return issued the appellant and issue same to any candidate who came 2nd in the General Election. In filing this appeal, the appellant included the 3rd Respondent who purportedly came 2nd in the General Election as a party. He thereafter filed this application.
The issue in contention in this appeal is purely an internal affair of the 4th Respondent. The 3rd Respondent is not in a position to make any meaningful contribution to the determination of issues arising from the primaries of the 2nd
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Respondent. In arguing the application, Counsel for the 1st and 3rd Respondents vehemently opposed the application on the ground that including the 3rd Respondent who was not a party to the suit at the Federal High Court as a party in the notice of appeal made the notice of appeal grossly incompetent and the incompetence cannot be cured by an amendment.
The Courts have interpreted this defect in the Supreme Court and have held that such misjoinder made the process incompetent. This however is founded on the clear provision of the Supreme Court Rules. Order 2 Rule 8 of the Supreme Court Rules 1999 (as amended) reads thus ?Notices of Appeal, application for leave to appeal, briefs and all other documents whatsoever prepared in pursuance of the appellants jurisdiction of the Court for filing in accordance with the provisions of these rules, shall reflect the same title as that which obtained in the Court of trial.? I refer also to Progression Peoples Alliance Vs. INEC & Anor. (2012) 13 NWLR (Pt. 1317) 215. The Court of Appeal Rules has no such provision. Where Rules of Court concern only the procedural law on jurisdiction but does not affect
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the substantive law, the Rules can be waived ? See Poroye Vs. Makarfi (2018) I NWLR (Part 1599) 91. There is no application before us to avoid the notice of appeal. I therefore regard such infraction in this Court as an irregularity that can be amended on the application of the offending Party. This application is allowed. The 3rd Respondent is hereby struck off the notice of appeal and all other processes filed in this appeal. The appellant?s brief is hereby deemed properly filed and served.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead ruling delivered by my Brother RAPHAEL CHIKWE AGBO, J.C.A.
I am in total agreement with his reasoning and conclusion.
He has amply considered the merit in this application, and I also allow the application.
I hereby strike out the name of 3rd Respondent from the Notice of Appeal and all other processes filed regarding this appeal
The Appellant’s brief is deemed properly filed
?IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree.
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Appearances:
Ifeanyi EgwuasiFor Appellant(s)
K. C. Ehujuo for the 3rd RespondentFor Respondent(s)
Appearances
Ifeanyi EgwuasiFor Appellant
AND
K. C. Ehujuo for the 3rd RespondentFor Respondent