JAFAR ABUBAKAR v. ALHAJI IBRAHIM HASSAN DANKWAMBO & ORS
(2015)LCN/7999(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of September, 2015
CA/YL/EPT/GMB/GOV/62/2015(CONSOLIDATED)
RATIO
COURT: JURISDICTION; WHETHER THE QUESTION OF COMPLIANCE WITH OR FAILURE TO COMPLY WITH ANY PROVISION OF THE FIRST SCHEDULE TO THE ELECTORAL ACT RAISES ANY QUESTION OF JURISDICTION
In the first place, the question of compliance with or failure to comply with any provision of the First Schedule to the Electoral Act does not raise any question of jurisdiction. Failure to comply may signal an irregularity but it does not go to jurisdiction.
In SA’EED v. YAKOWA (2013) 7 NWLR (PT.1352) 124 at 144-145 Tabai JSC stated:
“The First Schedule to the Electoral Act, 2010 (as amended) represents the rules of procedure for election petitions and as rules of court they do not confer jurisdiction. Thus, a petitioner’s breach of any of the provisions of the 1st Schedule does not affect the jurisdiction of the tribunal or court to entertain or adjudicate on the petition.” See also BELGORE v. AHMED (2013) 8 NWLR (PT.1355) 60 at 91- 92. This represents the trending disposition of the court as enunciated by the apex court and to which I kowtow. If arguendo, Paragraph 27(1) of the 1st Schedule was not complied with, it is not a failing that affects the jurisdiction of the tribunal. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: JURISDICTION; THE SCOPE OF THE POWER AND JURISDICTION GIVEN TO THE TRIBUNAL UNDER SECTION 285(2) OF THE CONSTITUTION
The proceedings in a petition includes every matter, question or issue in the proceedings till the final determination of the petition. It follows that the power given to the tribunal under Section 285(2) of the Constitution includes the power to deliver interlocutory decisions in the petition and the power to finally determine the petition.
Section 285(3) of the Constitution as amended provides for the composition of the tribunal to be chairman and two members while Section 285(4) provides for the quorum of the tribunal to be chairman and one member. Therefore it necessarily follows that in order to effectively and validly discharge its power to hear and determine every matter, question or issue in a petition, the tribunal must be constituted by the basic laid down constitutional quorum of a chairman and one member. It appears that to the extent that Paragraph 27(1) of the 1st Schedule provides for Interlocutory questions to be determined by the chairman of the tribunal alone, definitely conflicts with the express provisions of Section 285(4) of the Constitution which stipulates the quorum of the tribunal to be chairman and one member. The appellant contends that the Electoral Act having been enacted by the National Assembly in discharge of its legislative functions under Section 184 of the Constitution has constitutional force or flavour. This may well be so, but the Electoral Act remains an Act of the National Assembly. By Section 1(1) and (3) of the Constitution, the Constitution is supreme and takes precedence over the provisions of the 1st Schedule to the Electoral Act. Any other law which is inconsistent with the provisions of the Constitution shall to the extent of the inconsistency be void. See OBASANJO v. YUSUF (2004) 9 NWLR (Pt. 877) 144 at 183, ABACHA v. FAWEHINMI (supra) at 313 G and A-G (LAGOS) v. A-G (FED) (supra) at 119 A-D and 244 A-D. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRACTICE AND PROCEDURE: LEGAL PRACTITIONER; WHO IS ENTITLED TO PRACTICE ACCORDING TO THE PROVISION THE LEGAL PRACTITIONER ACT
It is thus clear that the thrust of the ruling of 9th July, 2015 was the name of counsel who signed the petition which it held was not a name on the Roll of Legal Practitioners. It is instructive at this stage to refer to Section 2(1) of the Legal Practitioners Act which stipulates as follows:-
“2(1) 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 mean a person entitled in accordance with the provisions of the Legal Practitioners Act to practice as a Barrister or as a Barrister and Solicitor either generally or for the purposes of any particular office or proceedings.
The provision of the Legal Practitioners Act is in respect of the PERSON who shall be entitled to practice as a Legal Practitioner. It is in this light that the apex court has voided processes that were filed in the name of a firm which it held not to be a PERSON whose name is on the roll. See the cases of OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 521, SLB CONSORTIUM v. NNPC (2011) 9 (Pt. 1252) 317 and FIRST BANK v. MAIWADA (2013) 5 NWLR (Pt. 1348) 570 to mention but a few. The effect and direction of the provisions of the Legal Practitioners Act and the construction of the apex court in respect thereof was made clear in the dictum of Ogunbiyi, JSC in OKARIKA v. SAMUEL (2013) LPELR (19935) 1 at 30-31 as follows:
“The combined effect of Sections 2(1) and 24 of the Legal practitioners Act, Laws of the Federation as interpreted in the decision of this Court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 52 has given a very clear and succinct definition of a person entitled to practice as a Barrister and Solicitor. By this definition, it is obvious that the category of persons recognized as authentic must be those circumscribed within the provisions of the law. It is not an open cheque or a floodgate for any person outside the profession to usurp the power which is so restrictive.” per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICE; WHAT IS MISCARRIAGE OF JUSTICE
Miscarriage of justice is failure on the part of the court to do justice. It is justice misplaced, mis-appreciated or mis-appropriated. See OGUNTAYO v. ADELAJA (2009) 15 NWLR (Pt. 1163) 150 and ONAGORUWA v. THE STATE (1993) 7 NWLR (Pt. 303) 49. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRACTICE AND PROCEDURE: LEGAL PRACTITIONER; WHETHER A CASE SHOULD BE SET ASIDE BECAUSE A LEGAL PRACTITIONER DID NOT ANNOUNCE APPEARANCE IN EXACTLY THE NAME IN WHICH HE ENROLLED
Indeed, it would appear that the courts are disposed to saving and accepting processes where it is evident that they were prepared by a legal practitioner. In REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS AREA v. AKINDELE (1967) ALL NLR 118, the process was prepared in the name of J.A. Cole & Co. a firm name, however the signature on the process read J. A. Cole and the Supreme Court held that the fact that the process was signed as J. A. Cole, a name on the Roll of Legal Practitioners saved the process. Recently in the case of HAMZAT v. SANNI (2015) LPELR (24302) 1 at 19, the Supreme Court recognized a writ of summons initiated in the name of “Muyiwa Obanewa, Esq. of Olumuyiwa Obanewa & Co. Legal Practitioners” as valid. This was so even when it is clear that “Muyiwa” is an abbreviation of “Olumuyiwa”. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES:
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
JAFAR ABUBAKAR – Appellant(s)
AND
1. ALHAJI IBRAHIM HASSAN DANKWAMBO
2. CHARLES ILIYA
3. PEOPLES DEMOCRATIC PARTY
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): As a sequel to the gubernatorial election for Gombe State held on 11th April, 2015 at which the 1st respondent herein was returned as duly elected, the appellant who was a candidate at the election filed a petition at the Governorship Election Petition Tribunal challenging the return of the 1st respondent as duly elected.
After the close of pleadings, the appellant applied for the issuance of pre-hearing conference notice pursuant to Paragraph 18(1) of the 1st Schedule to the Electoral Act. The tribunal duly issued pre-hearing information sheet and the parties filed their respective answers. Thereafter, the pre-hearing commenced at the end of which the tribunal issued a report of pre-hearing session and then fixed the petition for hearing. The 1st respondent later filed an application wherein he urged the court to strike out the petition upon the ground that the petition was signed by Sam Kargbo, Esq., a name that is not on the roll of legal practitioners. The appellant filed a counter affidavit where, inter alia, it was deposed that Sam Kargbo is one and the same person as Samuel Peter Kargbo, a name on the roll of legal practitioners. In its ruling on the application, the tribunal held among others that there is a world of difference between the names Sam Kargbo and Samuel Peter Kargbo and that Section 2(1) of the Legal Practitioners Act insists on the use of the name on the roll of legal practitioners and not any other name, The tribunal then conclusively held that the name Sam Kargbo which is not contained on the roll of legal practitioners cannot validly sign the petition. This ruling which was delivered on the July, 2015 is at pages 1972 – 1985 of volume 3 of the records. (However, see specifically pages 1982 – 1983 of volume 3 of the records). The tribunal however declined to strike out the Petition ruling that since the petitioner signed the petition himself, the signing of the petition by Sam Kargbo as well was secondary. Hearing on the petition then continued only for the 2nd and 3rd respondents to file similar applications urging the tribunal to dismiss the petition in limine upon the ground that Sam Kargbo who represented the petitioner at the pre-hearing session was not a name on the roll of legal practitioners and that in consequence the proceedings at the pre-hearing session should be expunged and concomitantly, the petition dismissed pursuant to Paragraph 18(11) of the 1st Schedule of the Electoral Act 2010 for failure by the petitioner to participate in the pre-hearing session. The applications were consolidated for hearing and in its ruling delivered on 3rd August, 2015, the Tribunal granted the applications holding that the pre-session proceedings conducted by Sam Kargbo, who did not have the right of audience in court since his name is not on the roll of legal practitioners, amounts to a nullity. Consequently, the Tribunal dismissed the petition. The scarified ruling of the Tribunal is at pages 2063 – 2081 of volume 3 of the records. Thoroughly dissatisfied and peeved by the ruling, the appellant appealed against the same. He filed two notices of appeal, both in a timely manner, one on 3rd August, 2015 and the other on 19th August 2015. The said notices of appeal are at pages 2082 – 2086 and 2087 – 2098 of volume 3 of the records. The records of appeal having been compiled were transmitted on 22nd August, 2015 and deemed by order of this Court made on 9th September, 2015 as having been properly compiled, transmitted and served on the parties. The notice of appeal filed on 3rd August, 2015 was equally struck out upon the application of the appellant.
The parties filed and exchanged briefs of argument. The appellant’s brief of argument in appeal no. CA/YL/EPT/GMB/GOV/62/2015 was filed on 25th August 2015. The appellant also filed a reply brief to the briefs of the 1st respondent and 2nd respondent on 3rd September, 2015. The Appellant’s brief in
?appeal no.CA/YL/EPT/GMB/GOV/63/2015 was filed on 25th August, 2015. It is the ippsisima verba of the appellant’s brief filed in appeal no.CA/YL/EPT/GMB/GOV/62/2015. The appellant also filed a reply to the brief of the 3rd respondent on 1st September, 2015.
The 1st respondent filed a brief of argument in appeal no.CA/YL/EPT/GMB/GOV/62/2015 on 31st August, 2015. He however did not file any respondents brief in respect of appeal no.CA/YL/EPT/GMB/GOV/63/2015. The 2nd respondent filed a brief of argument in appeal no. CA/YL/EPT/GMB/GOV/62/2015 on 31st August, 2015. Equally, he did not file any respondents brief in respect of appeal no.CA/YL/EPT/GMB/GOV/63/2015. The 3rd respondent did not file any respondents brief in appeal no.CA/YL/EPT/GMB/GOV/62/2015. It however filed a respondents brief in appeal No.CA/YL/EPT/GMB/GOV/63/2015 on 29th August, 2015. The 4th respondent’s brief in CA/YL/EPT/GMB/GOV/63/2015 filed on 1st September, 2015 was found to have been filed out of time consequent upon which the 4th respondent does not have a valid brief in any of the two appeals.
In view of the fact that the appellant filed two separate appeals from the single ruling of the tribunal on the consolidated applications and given the fact that the submissions in the appellant’s brief in each of the two appeals are the same, the review of any one of the brief will equally apply to the either. Furthermore, given the similar nature of the submissions, the review of the respondents brief would apply mutatis mutandis to both appeals, in respective of the fact that the respondent did not all file brief encompassing both appeal.
The appellant distilled three issues for determination in his brief of argument as follows:-
1. Whether in consideration of all the circumstances of this case, the tribunal was right in dismissing the petition on the ground that the petitioner did not validly participate in the prehearing session,
2. Whether in consideration of the totality of the fact, evidence and circumstances of this case, the tribunal was right when it held that its ruling of 9th July, 2015 is to the effect that Sam Kargbo or the person who held out himself to be Sam Kargbo is not entitled or qualified to practice as a Barrister or Solicitor in Nigeria and in the circumstances has no right of audience in court as granted by Section 8 of the Legal Practitioners Act and Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
3. Whether in consideration of the peculiar nature of the jurisdiction of Election Petition Tribunals, the facts and circumstances of this case, the plural panel acted of the tribunal with jurisdiction and was right in law to have entertained and granted the reliefs sought in the application of the 2nd (3rd) respondent at the stage and in the manner it did.
The 1st respondent adopted the issues for determination as formulated by the appellant. On his part, the 2nd respondent couched the issues for determination in his brief of argument as follows:
1. Whether the lower tribunal was right when it expunged its record the processes filed and the proceedings conducted by Sam Kargbo on behalf of the appellant including but not limited to the pre-hearing proceedings.
2. Whether the lower tribunal was right when it dismissed the appellant’s petition before it for the failure of the appellant to validly participate in the pre-hearing session.
3. Whether the Honourable Tribunal had the jurisdiction to entertain and determine the respondent’s application considering the facts and circumstances of this application.
The 3rd respondent formulated two issues for determination, namely:
1. Whether the tribunal was not right in dismissing the petition on the ground that the petitioner did not validly participate in the pre-hearing session having been represented by a person whose name is not on the roll of legal practitioners in Nigeria “Sam Kargbo”?
2. Whether the tribunal was not right in law, and not acting without jurisdiction when it sat with a full panel to hear the application of the 3rd respondent.
SUBMISSIONS OF THE APPELLANT
The appellant argued issue numbers one and two which he distilled together. The submissions on the issues span from pages 4 – 18 of the appellant’s brief. The appellant posited that the tribunal had no basis or jurisdiction to interpret its earlier ruling of the July, 2015 to mean inter alia that Sam Kargbo does not have the right of audience in Court when there was unchallenged evidence that Sam Kargbo is one and the same person as Samuel Peter Kargbo. It was asserted that the ruling of 9th July, 2015 was to the effect that the petition could not be validly signed in the name of Sam Kargbo. It was therefore contended that the decision of the tribunal was perverse having misconceived the ratio in the ruling of 9th July, 2015. The cases of NWADIKE v. IBEKWE (1987) 12 SC 14 AT 52 – 56, CHIDIAK v. LAGUDA (1964) 1 NMLR 123 AT 125 and IROLO v. UKA (2002) 14 NWLR (PT.786) 195 among others were referred to. The further submission of the appellant is that the tribunal was in error when it nullified the processes filed by Sam Kargbo and the proceedings in which he announced appearance as Sam Kargbo. It was stated that in the ruling of 9th July, 2015, the tribunal held that the petition filed was competent but that in the ruling of 3rd August, 2015 the tribunal (differently constituted) nullified the petition. The appellant in paragraphs 3.27 – 3.52 on pages 11-13 of the appellant’s brief made postulations and advanced reasons culminating in his contention that the nullification of the processes and pre-hearing proceedings was unwarranted, unjustified and unjustifiable. Conclusively, it was posited that the Respondents were not prejudiced by the processes filed by or the participation of Sam Kargbo as counsel in the proceedings of the pre-hearing. The quiddity of the appellants submission on issue number three is that the ruling of the tribunal of 3rd August, 2015 was determined by the three members of the tribunal instead of the chairman alone as required by Paragraph 27(1) of the 1st Schedule to the Electoral Act 2010. It was therefore contended that the tribunal was improperly constituted and acted without jurisdiction when all the three members of the panel heard and disposed of the interlocutory application. The cases of ADESEUN v. ILAKA appeal no.CA/I/EPT/NA/3/11 (unreported) delivered 12/9/2011, OKEDIRAN v. AYOOLA (2011) LPELR 4063 and APAPA v. INEC (2011) LPELR 3607 among others were relied upon. It was finally submitted that upon the reconstitution of the tribunal, the hearing of the petition was to commence de novo and the whole case retried or tried anew as if no trial whatsoever had taken place. The case of BABATUNDE v. P.A.S & T. A. LTD (2007) 13 NWLR (PT.1050) 113 was referred to and the appellant maintained that the tribunal ought to have recommenced the entire proceedings as if nothing had been done by the earlier panel.
SUBMISSIONS OF THE 1ST RESPONDENT
The 1st respondent argued issues numbers one and two together at pages 4 – 9 of his brief. Sections 2(1) and 24 of the Legal Practitioners Act were referred to and it was submitted that the provisions do not admit a legal practitioner acting as counsel in a name other than the name on the roll of legal practitioners and that where this happens the validity of the processes filed and the proceedings conducted in the name will be expunged. It was contended that where the pre-hearing proceedings are expunged everything founded on it would collapse (ex nihilo nihil fit), and Paragraph 18(11) of the 1st Schedule to the Electoral Act would apply since the petitioner in consequence did not take part in the prehearing session. On the third issue, it was submitted that Section 285 of the 1999 Constitution, as amended sets out the composition of the tribunal as chairman and two other members and the quorum as chairman and one other member. It was therefore posited that Paragraph 27(1) of the 1st Schedule to the Electoral Act which vests jurisdiction on only the chairman of the tribunal in interlocutory questions and matters is inconsistent with the Constitution and therefore void. The cases of ABACHA v. FAWEHINMI (2000) 6 NWLR (PT.660) 228 AT 313 G and A-G (LAGOS v. A-G (FED) (2003) 12 NWLR (PT.833) 7 AT 119 A-D AND 24 A-D were cited in support.
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On the contention that upon the reconstitution of the Tribunal that the hearing of the petition ought to have recommenced, i.e. de novo, it was submitted that Paragraph 25 of the 1st Schedule to the Electoral Act had taken care of the situation by stating that it is the hearing of the petition that is to be recommenced and not for the petition to commence from pre-hearing again.
SUBMISSIONS OF THE 2ND RESPONDENT
The 2nd respondent proffered argument on the three issues, he formulated from pages 4-20 of the 2nd respondents brief which is not paginated. In precise terms, the 2nd respondent submitted that the tribunal was right to have expunged the proceedings at the pre-hearing session conducted by Sam Kargbo on behalf of the appellant since by Sections 2(1) and 24 of the Legal Practitioners Act it is only a legal practitioner whose name is on the roll of legal practitioners that has the right of audience in Nigerian courts. It was stated that by expunging the proceedings conducted by Sam Kargbo, the tribunal was giving effect to its earlier decision wherein it held that the name Sam Kargbo is not on the roll of legal practitioners in Nigeria. It was posited that it was immaterial that Sam Kargbo had led other counsel in the proceedings since he was the one that was heard on behalf of the appellant.
On the second issue, it was contended that the tribunal having rightly expunged the proceedings conducted by Sam Kargbo, the resultant effect was that the appellant did not validly participate in the pre-hearing session, which failure attracts dismissal of the petition as provided for in Paragraph 18(11) of the 1st Schedule to the Electoral Act. The case of C.P.C. v. INEC (2012) 1 NWLR (Pt.1280) 106 at 130 was referred to. On the third issue dealing with whether the chairman alone should have sat and determined the applications, the 2nd Respondent argued that the effect of the applications was to produce a decision on the fate of the Election petition and accordingly had nothing to do with interlocutory question or matter which by Paragraph 27(1) of the 1st Schedule to the Electoral Act is to be decided by the chairman alone. The test for determining whether the decision of a court is final or interlocutory as laid down in the cases of AKINSANYA v. UBA (1986) 4 NWLR (PT 35) 273 and OKOKHUE v. OBADAN (1989) 5 NWLR (PT.120) 185 AT 196 D – E AND 197 F were relied upon.
It was further submitted that even if the application can be said to be interlocutory, that there is nothing in Paragraph 27(1) which expressly forbids other members of the tribunal from participating in hearing such matters and that the appellant did not suffer any prejudice as a result of their participation.
SUBMISSIONS OF THE 3RD RESPONDENT
Arguing the two issues it distilled for determination, the 3rd respondent submits that the tribunal was right to have dismissed the petition since the proceedings were conducted by Sam Kargbo, a name that is not on the roll of legal practitioners. On the issue of the competence of the tribunal when the chairman and members determined the application, it was contended that in the context of the application which had the effect of terminating the petition, it was not interlocutory.
APPELLANTS REPLY ON POINTS OF LAW
In the various replies to the briefs of the 1st, 2nd and 3rd respondents, the appellant submits that it is not the law and practice that counsel must use their full names on the roll to practice law in Nigeria and that initials and shortened form of the full names are used to announce appearance in court.
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It was further argued that there is no conflict between the Constitution and Paragraph 27(1) of the 1st Schedule since the quorum in Section 285(3) and (4) of the Constitution is for the purpose of hearing election cases on the merit as opposed to interlocutory matters. It was further submitted that since the Electoral Act and the Schedule thereto was enacted pursuant to the constitutional powers vested in the National Assembly to make laws, the said Electoral Act has constitutional force or flavour. The appellant contends that there is a difference between a name and a person; and that it is a person who can conduct proceedings, not a name. The appellant maintained that the application which ended the life of the petition in limine was interlocutory as it was an application on issues that the parties did not join in the main petition.
At the hearing of the appeal, on 9th September, 2015, the appeals were consolidated upon the application of the appellant’s counsel and thereafter learned counsel adopted the submissions in their respective briefs of argument, with the appellant urging the court to allow the appeal while the respondents urged the court to dismiss the appeal.
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RESOLUTION OF THE APPEAL
I have given an insightful and analytical consideration to the nature and circumstances of this matter. I have dutifully comprehended the submissions in the respective briefs of argument relative to the records of appeal. In order to conduce to the utmost pellucidity it is pertinent to properly contextualize the disceptation in this matter. The issue of the competence of the tribunal as constituted by the full complement of the chairman and two members to hear and determine an interlocutory application has been raised. This has seemingly raised a threshold issue which has to be considered first. The issue on the competence of the tribunal as framed by the parties are not dissimilar. However, I find the issue as distilled by the 3rd respondent to be succinct and apt and it is on the basis of the issue that I would proceed to resolve the vexed question of the competence of the tribunal to hear the application and deliver its ruling. The issue as concisely distilled by the 3rd respondent is:
Whether the tribunal was not right in law, and not acting without jurisdiction when it sat with a full panel to hear the application of the 3rd (2nd) respondent. I have already reviewed the submissions of learned counsel in some detail. Paragraph 27(1) of the 1st Schedule to the Electoral Act provides as follows:
“(1) All interlocutory questions and matters may be heard and disposed of by the chairman of the tribunal or Presiding Justice of the court who shall have control over the proceedings as a Judge in the Federal High Court.” The proceedings of the tribunal at the hearing of the consolidated application is at pages 2055 – 2060 of volume 3 of the records. Page 2055 shows that the chairman and members of the tribunal sat and heard the applications and at the end of the proceedings, they all signed the record. See page 2060. The proceedings and chafed ruling of the tribunal is at pages 2061 – 2081 of volume 3 of the records, pages 2061, 2063 and 2081 shows that the applications were determined by the chairman and members of the tribunal who all signed the record.
The appellant’s counsel has relied on the decisions of this Court in ADESEUN v. ILAKA (supra), OKEDIRAN v. AYOOLA (supra) and APAPA v. INEC (supra) to contend that the tribunal was improperly constituted and acted without jurisdiction when the full panel heard and determined the applications. The respondents on their part have argued that Paragraph 27(1) of the 1st Schedule, to the extent that it is in conflict with Section 285(3) and (4) of the 1999 Constitution as amended is unconstitutional. It would appear that the cases relied upon by the appellant no longer represents the regnant legal position as it relates to the stipulations of Paragraph 27(1) of the 1st Schedule. In the first place, the question of compliance with or failure to comply with any provision of the First Schedule to the Electoral Act does not raise any question of jurisdiction. Failure to comply may signal an irregularity but it does not go to jurisdiction.
In SA’EED v. YAKOWA (2013) 7 NWLR (PT.1352) 124 at 144-145 Tabai JSC stated:
“The First Schedule to the Electoral Act, 2010 (as amended) represents the rules of procedure for election petitions and as rules of court they do not confer jurisdiction. Thus, a petitioner’s breach of any of the provisions of the 1st Schedule does not affect the jurisdiction of the tribunal or court to entertain or adjudicate on the petition.”
See also BELGORE v. AHMED (2013) 8 NWLR (PT.1355) 60 at 91- 92.
This represents the trending disposition of the court as enunciated by the apex court and to which I kowtow. If arguendo, Paragraph 27(1) of the 1st Schedule was not complied with, it is not a failing that affects the jurisdiction of the tribunal.
The matter does not end there. The Tribunal is established under Section 285(2) of the 1999 Constitution (as amended by Section 9 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act, 2010). The said section stipulates that it is only the tribunal that has jurisdiction to hear and determine a petition questioning the election of a person as Governor of a State.
The proceedings in a petition includes every matter, question or issue in the proceedings till the final determination of the petition. It follows that the power given to the tribunal under Section 285(2) of the Constitution includes the power to deliver interlocutory decisions in the petition and the power to finally determine the petition.
Section 285(3) of the Constitution as amended provides for the composition of the tribunal to be chairman and two members while Section 285(4) provides for the quorum of the tribunal to be chairman and one member. Therefore it necessarily follows that in order to effectively and validly discharge its power to hear and determine every matter, question or issue in a petition, the tribunal must be constituted by the basic laid down constitutional quorum of a chairman and one member. It appears that to the extent that Paragraph 27(1) of the 1st Schedule provides for Interlocutory questions to be determined by the chairman of the tribunal alone, definitely conflicts with the express provisions of Section 285(4) of the Constitution which stipulates the quorum of the tribunal to be chairman and one member. The appellant contends that the Electoral Act having been enacted by the National Assembly in discharge of its legislative functions under Section 184 of the Constitution has constitutional force or flavour. This may well be so, but the Electoral Act remains an Act of the National Assembly. By Section 1(1) and (3) of the Constitution, the Constitution is supreme and takes precedence over the provisions of the 1st Schedule to the Electoral Act. Any other law which is inconsistent with the provisions of the Constitution shall to the extent of the inconsistency be void. See OBASANJO v. YUSUF (2004) 9 NWLR (Pt. 877) 144 at 183, ABACHA v. FAWEHINMI (supra) at 313 G and A-G (LAGOS) v. A-G (FED) (supra) at 119 A-D and 244 A-D.
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This Court has for long charted a new course different from the case relied upon by the appellant. See OMEJEB v. ODUM (2011) ALL FWLR (Pt. 600) 1328, Ngige v. INEC, Appeal No. CA/E/EPT/2/2014 (unreported) delivered on 15th April, 2014 and OKOWA v. EMEHOR Appeal No. CA/B/EPT/179/2015 (unreported) delivered on 12th August, 2015. In line with the prevalent disposition, I unhesitatingly asseverate that Paragraph 27(1) of the 1st Schedule to the Electoral Act is inconsistent with the provision of Section 285(4) of the Constitution (as amended).
The Constitution being the grundnorm, the said Paragraph 27(1) is hereby declared void to the extent of the inconsistency. The concomitance of Paragraph 27(1) of the 1st Schedule being void is that no issue as to the composition of the Tribunal to hear and determine interlocutory application can be premised or founded on it.
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Assuming, I am wrong in the conclusion I have reached that Paragraph 27(1) of the 1st Schedule to the Electoral Act is unconstitutional, it does appear to me that the said provision would still not apply in the peculiar circumstances of this matter. Even though the decision of the tribunal appealed against was made pursuant to an interlocutory application, the effect of the success of the application terminated and snuffed out the life in the petition in limine.
It is clear that the stipulation of Paragraph 27(1) is for interlocutory questions and matters to be determined by the chairman alone. So where it is a final determination, Paragraph 27(1) will be inapplicable. The test of determining whether a decision is final or interlocutory is now very well settled. In ALOR v. NGENE (2007) 17 NWLR (Pt. 1062) 163 at 178. Tobi, JSC stated:
“Two tests have been laid down for determining whether or not an order of court is final or interlocutory. They are: (a) the nature of the application made to the court; (b) the nature of the order made. In Nigeria, it is the nature of order test that has been constantly applied. If the order made finally disposes of the right of the parties, then the order is final. If the order made does not, then it is interlocutory. An order is also regarded as final if it at once affects the status of the parties for whichever side the decision may be given, so that if it is given for the plaintiff it is conclusive against the defendant, if it is given far defendant, it is conclusive against the plaintiff. In order to determine whether or not the decision of a court is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the court making the order.”
The decision of the tribunal of 3rd August, 2015 was a dismissal of the petition and it affected the status of the appellant to prosecute the petition. Accordingly, by the nature of order test applicable in Nigeria, the decision of the tribunal complained about is final. See OMONUWA v. OSHODIN (1985) 2 NWLR (Pt.10) 924 and AKINSANYA v. UBA LTD (1986) 4 NWLR (Pt. 35) 273. In the circumstances the stipulation of Paragraph 27(1) of the 1st Schedule does not apply. Accordingly, from whichever angle it is approached, this issue is resolved against the appellant. The next issue on which there is confutation between the parties is whether the tribunal was right to have dismissed the petition, consequent upon the proceedings at the pre-hearing conducted by Sam Kargbo, a name that is not the roll of legal practitioners, being expunged. Once again I find the issue as distilled by the 3rd respondent on this question most suited for the resolution of the question. The issue as framed being:
Whether the tribunal was not right in dismissing the petition on the ground that the petitioner did not validly participate in the pre-hearing session having been represented by a person whose name is not on the Roll of Legal Practitioners in Nigeria “Sam Kargbo”?
For ease of appreciation, the precursor to the decision of the Tribunal subject of this appeal was the ruling of the Tribunal delivered on 9th July, 2015. The said ruling is at pages 1972-1985 of volume 3 of the records. At pages 1982-1993, the tribunal, inter alia, held:-
“Clearly the name that Section 2(1) of Legal Practitioners Act insists on is the name on the Roll of Legal Practitioners not any other name… we hold that the name Sam Kargbo which is not contained on the Roll of Legal Practitioners cannot validly sign the petition in this case.”
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It is thus clear that the thrust of the ruling of 9th July, 2015 was the name of counsel who signed the petition which it held was not a name on the Roll of Legal Practitioners. It is instructive at this stage to refer to Section 2(1) of the Legal Practitioners Act which stipulates as follows:-
“2(1) 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 mean a person entitled in accordance with the provisions of the Legal Practitioners Act to practice as a Barrister or as a Barrister and Solicitor either generally or for the purposes of any particular office or proceedings.
The provision of the Legal Practitioners Act is in respect of the PERSON who shall be entitled to practice as a Legal Practitioner. It is in this light that the apex court has voided processes that were filed in the name of a firm which it held not to be a PERSON whose name is on the roll. See the cases of OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 521, SLB CONSORTIUM v. NNPC (2011) 9 (Pt. 1252) 317 and FIRST BANK v. MAIWADA (2013) 5 NWLR (Pt. 1348) 570 to mention but a few. The effect and direction of the provisions of the Legal Practitioners Act and the construction of the apex court in respect thereof was made clear in the dictum of Ogunbiyi, JSC in OKARIKA v. SAMUEL (2013) LPELR (19935) 1 at 30-31 as follows:
“The combined effect of Sections 2(1) and 24 of the Legal practitioners Act, Laws of the Federation as interpreted in the decision of this Court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 52 has given a very clear and succinct definition of a person entitled to practice as a Barrister and Solicitor. By this definition, it is obvious that the category of persons recognized as authentic must be those circumscribed within the provisions of the law. It is not an open cheque or a floodgate for any person outside the profession to usurp the power which is so restrictive.” It seems clear therefore that it is meant to prevent impostors who are not legal practitioners from holding themselves out and carrying on business as Legal Practitioners.
Following from the ruling of the tribunal of 9th July, 2015, which as already stated dealt with the name of counsel who signed the petition; in the ruling appealed against herein, the Tribunal advanced the matter further when at page 2077 of the records it stated:-
“It is apposite at this stage to ask the pertinent question – If Sam Kargbo is not competent to sign the petition as found by this tribunal in its ruling of 9th July, 2015 on the simple reason that his name is not on the roll of legal practitioners authorized to practice law in Nigeria, can the same Sam Kargbo validly file processes and conduct proceedings on behalf of another person in any court or tribunal in Nigeria?
By the provisions of Section 2(1) and 24 of the Legal Practitioners Act, only persons whose name, are on the roll of legal practitioners can practice as Barristers or Solicitors or both. The name Sam Kargbo as found by this Tribunal is not on the roll. By interpretation therefore, the bearer of that name or whoever held himself out to be Sam Kargbo is not entitled or qualified to practice as a Barrister or Solicitor in Nigeria. As a corollary to this, Sam Kargbo does not have the right of audience in court as granted to legal Practitioners by Section 8 of the Legal Practitioners Act”
(Underlining supplied) By this holding the tribunal extended the ambit of the decision of 9th July, 2015 from the name to the person, id est, “the bearer of that name or whoever held himself out to be Sam Kargbo.”
Conclusively, the tribunal at pages 2977 to 2078 of the records listed the processes and proceedings filed by and participated in or conducted by Sam Kargbo which it held to be a nullity. Most interestingly, the tribunal set aside the petition which in its ruling of 9th July, 2015 it held to be competent. Effectively therefore the tribunal sat on appeal over its earlier decision in this regard and overturned the same. This is not permissible. See NWANI v. EDE (1996) 8 NWLR (Pt. 466) 332 and N.P.A. v. FASEL SERVICES LTD (2002) 1 WRN 178 at 202. The tribunal expunged the pre-hearing proceedings where Sam Kargbo participated and consequentially held that the petitioner did not participate in the pre-hearing session. Sequaciously, this requires an examination of the procedure for pre-hearing under the 1st Schedule to the Electoral Act.
By Paragraph 18(1) of the 1st Schedule, after the close of pleadings the Petitioner shall apply for the issuance of pre-hearing conference notice. The appellant duly complied in this regard and the application was filed by one Onugwu Ejike Henry, Esq. (See pages 1811-1812 of the records). There is no issue made as to the name of this counsel being on the Roll of Legal Practitioners. So the appellant validly initiated the pre-hearing session. After the application for pre-hearing notice, the tribunal issues pre-hearing information sheet. The appellant duly gave answers to the pre-hearing information sheet and the same was filed by Henry Onugwu, a name which it has not been contended is not on the Roll of Legal Practitioners (See pages 1823-1825 of the records). So in so far as filing processes for the commencement of the pre-hearing session is concerned there is nothing to be faulted in the processes filed by the appellant.
Without a doubt, the proceedings at the pre-hearing session were conducted on behalf of the appellant by a legal practitioner who gave his name as Sam Kargbo. It is therefore apparent that properly contextualized the reason for the tribunal’s decision is with the appearance of Sam Kargbo to conduct the pre-hearing and not with any of the processes filed leading to the pre-hearing session. This is made manifest at page 2079 of the records where the tribunal stated:
“In compliance with sub paragraph (1) of Paragraph 18, Henry Onugwu a legal practitioner in the team of lawyers representing the petitioner applied for the issuance of the pre-hearing notice. During the pre-hearing session however, it was Sam Kargbo that appeared for the Petitioner. We have already ruled that the said proceedings is a nullity.” It has to be remembered that there is the unchallenged and uncontroverted deposition in Paragraph 8 of the counter affidavit which is at page 1924 of the records that Sam Kargbo is one and the same person as Kargbo, Samuel Peter. It seems clear therefore that the person who appeared as Sam Kargbo is a legal practitioner and not an impostor holding himself out as one. The pristine question however is whether the failure by Sam Kargbo to announce his appearance in the very same names in which he enrolled when appearing in court is fatal and ought to result in his being denied audience in court even when he is a legal practitioner.
I think it is ludicrous to extend the stipulations of the Legal Practitioners Act to the elastic extent of insisting that unless appearance in court is announced in the very names in which the legal practitioner is enrolled then the legal practitioner has no right of audience in court under Section 8 of the Legal Practitioners Act. I shudder to think of the effect and implication of such a construction. Daily in court, legal practitioners announce appearances in court with the initials of their forenames and surname. Equally appearances are announced as in this matter with abbreviation of the forenames and the surname. To accept the position of the respondents and endorse the decision of the tribunal has the implication that any appearance announced other than in the name as enrolled would not be that of a legal practitioner. This with utmost respect sacrifices the substance of the stipulations of the Legal Practitioners Act on the altar of form and it will result in preposterous consequences. As held by the apex court in OKARIKA v. SAMUEL (supra) the category of persons recognized to practice law is circumscribed to prevent any person outside the profession from usurping the power or duties of a legal practitioner. It seems to me that the issue of whether somebody who has announced appearance in court as a legal practitioner is indeed a legal practitioner is whether in fact the person is a legal practitioner and not as simplistic as whether the name announced is as it appears on the roll. May that day never come when a legal practitioner would be denied audience in court or the proceedings he conducted set aside and expunged, not because he is not a legal practitioner but because he did not announce appearance in exactly the names in which he enrolled. Banish the thought! Verily, may that day never come!!!
Indeed, it would appear that the courts are disposed to saving and accepting processes where it is evident that they were prepared by a legal practitioner. In REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS AREA v. AKINDELE (1967) ALL NLR 118, the process was prepared in the name of J.A. Cole & Co. a firm name, however the signature on the process read J. A. Cole and the Supreme Court held that the fact that the process was signed as J. A. Cole, a name on the Roll of Legal Practitioners saved the process. Recently in the case of HAMZAT v. SANNI (2015) LPELR (24302) 1 at 19, the Supreme Court recognized a writ of summons initiated in the name of “Muyiwa Obanewa, Esq. of Olumuyiwa Obanewa & Co. Legal Practitioners” as valid. This was so even when it is clear that “Muyiwa” is an abbreviation of “Olumuyiwa”.
From the foregoing far-reaching reasoning, it is a misapprehension and misapplication of the stipulations of the Legal Practitioners Act for the Tribunal to have held that the proceedings conducted at the pre-hearing by Sam Kargbo are to be expunged because the name Sam Kargbo is not on the roll of legal practitioners, without it having been shown that the person who conducted the proceedings as Sam Kargbo is not a legal practitioner, since what the Act seeks to avoid is have impostors carry out duties as legal practitioners. See OKARIKA v. SAMUEL (supra).
In consequence the decision of the tribunal arising therefrom is liable to be set aside as it occasioned a miscarriage of justice resulting in the unjust dismissal of the appellant’s petition. Miscarriage of justice is a failure of justice. It usually occurs when the decision arrived at in a case is prejudicial and inconsistent with the legal rights of a party. Miscarriage of justice is failure on the part of the court to do justice. It is justice misplaced, mis-appreciated or mis-appropriated. See OGUNTAYO v. ADELAJA (2009) 15 NWLR (Pt. 1163) 150 and ONAGORUWA v. THE STATE (1993) 7 NWLR (Pt. 303) 49. This is exactly the situation with the decision of the tribunal. Where the miscarriage of justice is such that if corrected a different result will be the outcome, then the appellate court will interfere: DAGACI OF DERE v. DAGACI OF EBWE (2006) 7 NWLR (Pt. 979) 382. Where the proceedings in which Sam Kargbo, a legal practitioner, who appeared as such are reckoned with, then the appellant definitely participated in the pre-hearing sessions and there is no reason for dismissing his petition pursuant to Paragraph 18(11) of the 1st Schedule. This issue is accordingly resolved against the respondents.
CONCLUSION
From the conflating of the foregoing even though the issue on the competence of the tribunal was resolved against the appellant, the success of the issue on whether the tribunal was right in dismissing the petition on the ground that Sam Kargbo who appeared at the pre-hearing is not a name on the roll of legal practitioners signals that the appeal succeeds in part.
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In a summation, the consolidated appeal having succeeded in part is hereby allowed.
The ruling of the tribunal in the consolidated application in PETITION No.EPT/GMB/GOV/2/2015 delivered on 3rd August, 2015 is hereby set aside. The case is remitted to the tribunal for the expeditious hearing and determination of the petition on the merits. The appellant is entitled to the costs of this consolidated appeal which I assess and fix at N100,000.00 against each of the 2nd and 3rd respondents.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.:
?I have read the Judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU, J.C.A. I agree with his reasoning and conclusion that this appeal be allowed in part. I will add a few words.
The facts that led to this appeal are as follows:
The election into the office of the Governor of Gombe State was held on the 11th of April, 2015. The appellant was the candidate of the African Democratic Congress (ADC) whilst the 1st and 2nd respondents were respectively sponsored at the election by the 3rd respondent. At the close of the election, the 4th respondent declared and returned the 1st respondent as the winner of the election. The appellant being dissatisfied with the result of the election filed a petition against the return of the 1st respondent at the Governorship Election Tribunal holden in Gombe State.
Trial commenced on the 6th of July, 2015 with the petitioner opening his case. On the same 6th of July, 2015 the 1st respondent filed an application praying the Honourable Tribunal to strike out the petition on the grounds that:
a. The petition was prepared and signed by one Sam Kargbo, Esq. as solicitor to the petitioner.
b. The name Sam Kargbo, Esq. is not on the Roll of Lawyers called to the Nigerian Bar and does not belong to a Lawyer admitted to practice law in Nigeria and;
c. Only a lawyer called to bar can under the Legal Practitioner’s Act prepare, sign and file court processes and represent or appear for a litigant in court in Nigeria.
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In response, the petitioner filed a counter affidavit with relevant exhibits, including the degree and call to bar certificates of Samuel Peter Kargbo, attached thereto stating that Sam Kargbo is one and the same person as Samuel Peter Kargbo on the roll of legal practitioners called to the Nigerian Bar and accompanied same with a written address. The application was heard on the 7th of July, 2015. The ruling was delivered by the tribunal on the 9th of July, 2015. The learned tribunal held that the name Sam Kargbo could not validly sign the petitioner’s petition because the name Sam Kargbo is different from the name Samuel Peter Kargbo on the roll of legal practitioners but held that the Petition was still valid and competent because it was also signed by the appellant.
An appeal to the Court of Appeal by the petitioner against that decision was on 25/8/2015 dismissed. This was Appeal No.CA/Y/EPT/GMB/GOV/52/2015.
The tribunal was reconstituted with a new chairman and one other member. The reconstituted panel decided that it will recommence the hearing of the petition from the stage at which the prehearing was concluded and it must hear the respective pending applications of the 2nd and 3rd respondents.
The 2nd and 3rd respondents each, separately filed a motion on notice praying the tribunal to “expunge”, from its records, all “the proceedings in which Mr. Sam Kargbo” participated as legal practitioner on behalf of the petitioner and the processes as legal practitioner on behalf of the petitioner and the processes issued by the said “Mr. Sam Kargbo as a legal practitioner” in the petition; and also to “dismiss” the petition in limine. The motions were brought pursuant to Sections 2(1) and Section 24 of the Legal Practitioners Act and Paragraph 4(3) (b) of the 1st Schedule to the Electoral Act, 2010.
The reconstituted panel consolidated and heard the applications of the 2nd and 3rd respondents. The ruling was delivered on 3rd of August, 2015. The tribunal granted the application and dismissed the petition. It is against this dismissal that the petitioner has again appealed.
Two notices of appeal were filed on 19/8/15. At the hearing of the appeal, prayer for consolidation of both appeals were made by appellant’s counsel and being unopposed it was granted. In the appellant’s brief filed on 25/8/15 by Samuel Peter Kargbo and other counsel, three issues were identified for determination. These issues were also adopted by the 1st respondent in the brief filed by Ibrahim Isiyaku, SAN they are set out below:
i. Whether in consideration of all the circumstances of this case, the tribunal was right in dismissing the petition on the ground that the petitioner did not validly participate in the prehearing session. (Grounds 5, 6, 7 and 8)
ii. Whether in consideration of the totality of the facts, evidence and its ruling of 9th of July, 2015 is to the effect that Sam Kargbo or the person who held out himself to be Sam Kargbo is not entitled or qualified to practice as a Barrister or Solicitor in Nigeria and in the circumstance has no right of audience in Court as granted by Section 8 of the Legal Practitioners Act and Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). (Grounds 1, 2, 3 and 4)
iii. Whether in consideration of the peculiar nature of the jurisdiction of election petition tribunals, the facts and circumstances of this case, the plural panel of the Tribunal acted with jurisdiction and was right in law to have entertained and granted the reliefs sought in the application of the 2nd respondent at the stage and in the manner it did. (Grounds 9 and 10).
The 2nd respondent filed brief settled by Solomon E. Umoh, SAN on 318/15. These three issues were distilled for determination as follows:
i. Whether the Lower Tribunal was right when it expunged from its record the processes filed and the proceedings conducted by Sam Kargbo on behalf of the appellant including but not limited to the prehearing proceedings.
ii. Whether the lower tribunal was right when it dismissed the appellant’s petition before it for the failure of the appellant to validly participate in the prehearing session.
iii. Whether the Honourable Tribunal had the Jurisdiction to entertain and determine the respondent’s application considering the peculiar facts and circumstances of this application.
The 3rd respondent formulated two issues as follows:-
1. Whether the tribunal was not right in dismissing the petition on the ground that the petition did not validly participate in the pre-hearing session having been represented by a person whose name is not on the roll of legal practitioners in Nigeria “Sam Kargbo”?
2. Whether the tribunal was not right in law, and not acting without jurisdiction when it sat with a full panel to hear the application of the 3rd respondent.
The appellant and 1st respondent argued issues one and two together. As done by them, I will crystallise the two issues into one issue as
follows:
“Whether in the circumstances of this case, the tribunal was right to hold that the effect of the previous panel’s ruling of 9/7/15 is that Sam Kargbo not being a person entitled or qualified to practice law as a Barrister or Solicitor in Nigeria, pursuant to S.8 of the Legal Practitioners Act, and S.36 of the 1999 Constitution, his representation of the petitioner at prehearing session was invalid and thus the petitioner is taken not to have participated at the said prehearing session and his petition was rightly dismissed.”
The complaint of learned appellant’s counsel is that the tribunal misdirected itself and arrived at the perverse decision that Sam Kargbo is not the same person as Samuel Peter Kargbo and that the person who holds out himself as Sam Kargbo is not a qualified legal practitioner and therefore has no right of audience in court.
Counsel argued that the 2nd respondent’s application of 11/7/15 is an abuse of court process which was brought mala fide. He cited N.I.C. v. F.C.I. Co. Ltd (2007) 2 NWLR Pt.1019 Pg. 610 at 630-632; Central Bank of Nigeria v. Saidu H. Ahmed & Ors (2001) 5 SC (pt. 11) 146; Edjerode v. Ikine (2001) 12 SC (Pt.11) 125; Agwasin v. Ojichie (2004) 10 NWLR pt.882 page 613 at 624-625.
Counsel argued that the nullification of the application for prehearing session which was made by Henry Onugwu and not Sam Kargbo was absolutely in error. Counsel argued stridently that the fact that most of the processes filed by other counsel and appearance of other counsel apart from Sam Kargbo wherein the appellant was represented at the various stages of the prehearing session means that there was no justification to hold that there was no proper and valid representation of counsel and that the petition be dismissed.
Counsel then urged this Court to quash and set aside the holding that Sam Kargbo is not a qualified legal practitioner and as such has no right of audience in Court.
Learned appellant’s counsel insisted that the earlier constituted tribunal had held that there was no form of criminal allegation in the application before it and that the holding that Sam Kargbo does not have right of audience in Nigeria has criminal imputations a charge for which the tribunal has no jurisdiction. Counsel cited in Cathrin Efejukwu v. Peter James Aziza suit no.
CA/L/36/2011 reported in the Law Pavilion Electronic Law Reports as (2013) LPELR-19961 (CA).
Counsel argued that the petitioner having not himself fallen foul of Paragraph 18(11) of the First Schedule to the Electoral Act 2010, the dismissal of his petition because this Counsel was incompetent or unqualified must be held to be wrong. All the respondents counsel argued that the instant appeal posits that the bearer of “Sam Kargbo” is the same person as “Samuel Peter Kargbo” which is on the roll of lawyers called to the Nigerian Bar, and that he can practice law in any other name or alias (in particular “Sam Kargbo” other than “Samuel Peter Kargbo”.
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It is argued by the respondents that the phrase “lf and only if, his name is on the roll” as used in Section 2(1) admit of only the name as contained precisely or exactly as it is contained on the roll. The argument is that where the situation calls to question whether due process of law has been followed and the condition precedent to the exercise of jurisdiction has been fulfilled, then jurisdiction is put in issue. At any time this issue comes to the realization of the court, it must be considered.
It was also submitted that the said Sam Kargbo led other counsel in the proceedings and that even if those other counsel were competent, he was the one who spoke for the appellant, thus, the proceedings where he ted other counsel must be declared a nullity.
The tribunal held as follows:-
“The tribunal also ruled that “Sam Kargbo” is not the same person as “Samuel Peter Kargbo” whose name is on the roil of legal practitioners called to the Nigerian Bar, and in consequence thereof, Sam Kargbo cannot validly sign the petition in this case,
…By the provision of Section 2(1) and 24 of the Legal Practitioners’ Act only persons whose names are on the roll of legal practitioners can practice as Barristers or solicitors or both. The name “Sam Kargbo” as found by this tribunal is not on the roll. By interpretation therefore, the bearer of that name or whoever held himself out to be Sam Kargbo is not entitled or qualified to practice as a Barrister or Solicitor in Nigeria. As a corollary to this, Sam Kargbo does not have the right of audience in court as granted to legal practitioners by Section 8 of the Legal Practitioners’ Act and Section 36 of the Constitution of Federal Republic of Nigeria, 1999 (as amended). In consequence thereof, all processes filed by Sam Kargbo in this petition and all proceedings conducted by him on behalf by the petitioner amounts to a nullity for want of competence…We hereby dismiss the petition accordingly…”
In the first place the petition which the tribunal listed as one of the processes filed by Sam Kargbo on page 15 of its ruling, and which it nullified was already held to be competent by the tribunal differently constituted in its ruling of 9th July, 2015.
The pre-hearing information sheet Form TF 008 was issued on the basis of Henry Onugwu’s application. See pages 1821 – 1825 of volume 3 of the record of appeal. The same Henry Onugwu filed the answers to questions contained in the pre-hearing information sheet.
The pre-hearing report was made and presented by the tribunal and not Sam Kargbo. The said proceedings were conducted of the tribunal with Henry Onugwu also in attendance. There was no protest by respondents against the appearance of Onugwu and Ghabor.
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The report on the consideration of documents was prepared and filed by Erhabor for and on behalf of the petitioner. See pages 1845A-1845C of volume 3 of the record of appeal. The only document filed by Sam Kargbo is the one containing the issues for determination. It is worth noting that the tribunal did not adopt those issues. See page 1843 of volume 3 of the record of appeal. It is on record, and the tribunal had held that the petitioner is represented by the law firm of Jackson, Kargbo & Associates and at all time material, one or two other solicitors from the said firm attended the proceedings and prepared and filed processes for an on behalf of the petitioner. There is no doubt that the prehearing session cannot be rightly adjudged as incompetent.
From the grounds of appeal and the arguments of learned appellant’s counsel in issues 1 & 2, it is clear that this Court has been called upon to decide the issue of whether the Tribunal was right to have held that because the appellants counsel’s name is not the exact name represented on the roll of legal practitioners, his appearance including filing of processed rendered the proceedings a nullity. The tribunal placed reliance on Dr. E. J. Esenowo v. Dr. I. Ukpong & Anor, (1999) 6 NWLR Pt. 608 Page 611. I cannot understand how the tribunal can apply that judgment in the manner in which it was applied. Esenowo v. Dr. I Ukpong was a libel matter in which the Supreme Court held that even if there was a publication of a report that one Dr. E. A. Esenowo is not on the Medical Council Register for 1980, it was a good defence since the actual name on the register was Dr, E. A. Esenowo. Clearly, there was a difference between Dr. E. A. Esenowo and Dr. J. E. Esenawo in the circumstances of the case to justify the statement of the respondents and on that basis the Supreme Court held that libel was not proved. Precedents are followed on the basis of the facts and law they interpreted. It is a restrictive and punitive interpretation of Section 2 of the Legal Practitioners Act to hold that the only person whose appearance can be countenanced by the Court must be the same person who signed processes and whose names appeared on the roll as Samuel Peter Kargbo, and that the contemplation of the Legal Practitioner Act is that counsel MUST only file processes and announce appearance only as exactly as their names appear on the roll leaving no room for abbreviation of such a name.
The argument of learned 1st respondent counsel that if Sam Karagbo instead of Samuel Peter Kargbo is allowed to practice law, every Nigerian lawyer called to the bar will be allowed to jettison his name on the roll of lawyers and use different names or alias in different processes and proceedings is disingenuous at best. In the holding of the Tribunal already quoted above, it extended the ruling of 9/7/15 to interprete it from exclusion of an incorrect name on the roll to the person of the legal practitioner himself.
Thus the tribunal on 3/8/2015 in effect varied its own order made on 9/7/2015.
The tradition at the Bar and Bench cannot be swept off so lightly. Most lawyers drop their full names and use abbreviations or initials to announce their appearance and sign court processes. That has always been acceptable so long as they are juristic persons who had been called to bar. This has been settled beyond doubt by Hamzat v. Sanni (2015) LPELR (24302) 1 delivered by the Supreme Court. See OKAFOR v. NWEKE (2007) 10 NWLR PT. 1043 pg. 521.
The present legal names of most women lawyers who married after call to bar are not on the roll of legal practitioners. Their married name is their legal names now. If the argument were allowed to hold, eighty percent of processes in law Courts today all over the country will be rendered incompetent. I cannot fathom how and why the tribunal can countenance the argument of the respondents given the nature and circumstances of this case being an election petition. It is a preposterous enthronement of technicality over substantial justice.
The purpose of Section 2 and Section 24 of the Legal Practitioners Act is to exclude anyone from practicing as a Barrister and Solicitor who had not been called to the bar and whose name had not been enrolled as a Solicitor and Advocate of the Supreme Court of Nigeria. There was no doubt that counsel who appeared before the tribunal was a Barrister and Solicitor duly enrolled to practice law before the courts in Nigeria. Counsel’s affidavit to that effect was never countered.
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In any event, as stated earlier, the proceedings and processes at prehearing were filed and conducted by counsel whose name was not in dispute. I agree that issues 1 & 2 be resolved in favour of the appellant. Both the initial Tribunal and the later tribunal, did not pretend to make a finding that the person of Sam Kargbo or Samuel Peter Kargbo who stood before them is not one and the same person. There was no imputation that he was an impostor.
Also there was no finding that the person before them was not a legal practitioner.
I agree with learned appellant’s counsel that it is patently and manifestly wrong for the tribunal to find justification under Paragraph 18(11) of the First Schedule to the Electoral Act, 2010 (as amended) to dismiss the appellant’s petition.
In respect of issue 3, I concede the existence of conflicting Court of Appeal authorities on this issue. Learned appellants counsel relied on; Hon. Ayo Adeseun and Another v. Chief Lagman Oyebisi Ilaka and Others (unreported) Appeal No. CA/I/EPT/NA/3/11 delivered on 12/9/2011; Okediran v. Ayoola & Ors (2011) LPELR – 4063 (CA); Apapa & Anor v. INEC & Ors. (2011) LPELR – 3607 (CA); Adewale & Anor v. Ali & Ors (2011) LPELR 4243 (CA) to urge that by Paragraph 27(1) of the first Schedule to the Electoral Act, the Tribunal is only properly constituted when only the chairman site to hear and determine interlocutory appeals. I think this Court has moved away from that position. See OMEJEB v. ODUNI (2011) ALL FWLR (pt.600) 1328, NGIGE v. OBI (2006) NWLR (PT.999) 1 AT 209-210, DR. (SENATOR) NGIGE v. INEC-CA/E/EPT/02/2014 delivered on 5/4/2014, (unreported). In CA/B/EPT/179/2015 – OKOWA v. EMERHOR delivered on 12/8/2015, this Court held that Paragraph 27(1) of the 1st Schedule to the Electoral Act, 2010 is unconstitutional being ultra vires Section 285(4) of the 1999 Constitution. The Constitution had provided for the quorum of the tribunal which is two members. The Constitutional provision as to the composition of the panel cannot be subjugated to the provisions of the Electoral Act. It is the Constitution that created the Tribunal that conferred adjudicatory powers which also provided that such adjudicatory power can only be exercised when there is a quorum of 2 members. It only stands to reason that in the just dispensation of justice, less cannot be better than more. The hierarchy of Courts are superior to each other principally because of the proportionate increase in the number of legal minds that reason and put heads together to determine the issues submitted for adjudication. Therefore, two heads are always better than one, etc. Even a layman can tell you that Paragraph 27(1) was included probably to ensure the speedy disposal of interlocutory matters at the Tribunal by a single Judge. However, where it patently offends the express provisions of the Constitution, it has to be struck down. It is hereby struck down by me. In any event, in the circumstances of this case, the prayers sought by the motions were to terminate the life of the petition. For the chairman to sit alone to make such a momentous decision different from mere routine orders sought at interlocutory stage, it stands to reason that the quorum recognised by the constitution must consider and determine same.
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This issue is resolved against the Appellant.
In the circumstances the consolidated appears are allowed in part. The petition still subsists. The proceedings at pre-hearing is restored. It is to be remitted back to the Tribunal for expeditious hearing on the merit.
I abide by the order as to costs
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.:
?My learned brother, the Hon. Justice UGOCHUKWU ANTHONY OGAKWU JCA, has graciously served upon me a copy of the judgment just delivered by him.
I have read, before now, the briefs of argument of the learned counsel to the respective parties vis-a-vis the records of appeal regarding the two consolidated appeals. Thus, I cannot but concur with the reasoning and conclusion thereby reached in the said judgment, to the effect that the consolidated appeals succeed in part.
Instructively, of the three issues raised by the appellants in the briefs thereof, the issue No. 3 raises the following fundamental question;
“3. Whether in consideration of the peculiar nature of the jurisdiction of Election Petition Tribunals, the facts and circumstances of this case, the plural panel of the Tribunal acted with jurisdiction and was right in law to have entertained and granted the relief sought in the application of the 2nd, 3rd respondents at the stage and in the manner it did.”
Interestingly, the appellant’s the ISSUE No. 3 in question, the 3rd and 2nd issues raised in 2nd and 3rd respondent’s respective briefs are not at all mutually exclusive. It is so obvious from the records of appeal, that the ruling of the Tribunal was delivered and duly endorsed by the three members thereof (the chairman inclusive). By virtue of the provision of Paragraph 27(1) of the First Schedule to the Electoral Act, 2010 (as amended):–
“(1) All interlocutory questions and matters may be heard and disposed of by the chairman of the Tribunal or the presiding Justice of the Court who shall have control over the proceedings as a Judge in the Federal High Court”.
Correlatively, it’s provided under Section 23 of the Federal High Court Act, 2004 that:
“Every proceedings in the court and all business arising therein shall so far as in practicable and convenient and subject to the provisions of any enactment of law he heard and disposed of by a single Judge, and proceedings in an action subject to the hearing or trial down to and including the final Judgment or order shall, so far as is practicable and convenient be taken before the Judge when the trial or hearing took place.”
Most interestingly, the provisions of Paragraph 27(1) of the First Schedule to the Election Act, 2010 (supra) have been subjected to critical and far reaching judicial interpretations by this Court in a plethora of authorities. In the cases of ADELEKE APAPA v. INEC (2011) LPELR- CA/I/EPT/SH/5/2011, DR. WALE OKEDIRAN v. AGBOOLA HOSEA AYOOLA (2011) LPELR-CA/1/EPT/A/1/2011, HON. AYO ADESEUN v. CHIEF LUQMAN OYEBISI ILAKA (unreported) APPEAL NO: CA/1/EPT/NA/11, et al, it was held to the effect that all interlocutory matter or questions must be heard and determined by the chairman alone to the exclusion of the other members of the tribunal in accordance with the provision of Paragraph 27(1) of the First Schedule to the Electoral Act (supra).
Ironically however, the above decisions in question have been held by this very Court to be no longer representing the correct position of the law on the issue.
See SENATOR (DR) IFEANYI ARTHUR OKOWA v. OGHENETEGA GERMANSON EMERHOR & ORS: CA/B/EPT/179/2015, delivered on 12/08/2015, to the following effect.
Most ironically, however, contrary to the contention of the learned silk, the decisions of this Court in the cases of ADELEKE APAPA v. INEC (SUPRA) and DR. WALE OKEDIRAN v. AGBOOLA HOSEA AYOOLA (SUPRA), ET AL, undoubtedly no longer represent the correct position of the law regarding the provision of Paragraph 27(1) of the First Schedule to the Electoral Act, 2010 (as amended).
…Against the backdrop of the provisions of Section 285(2), (3) and (4) of the 1999 Constitution (as amended), it is rather beyond questioning, that the quorum of the election Tribunal is only duty constituted or established when at least the chairman and two members of the said Tribunal sit, hear and determine the petition an any matter relating thereto. See Paragraph 2(1) of the Sixth Schedule to the 1999 Constitution (as amended), Per Saulawa JCA.
What’s more, long before the decision in OKOWA v. ERHOR (supra) this Court had the privilege of holding to the effect thus:-
It has became rather unequivocally obvious, that the two motions in question although interlocutory in nature, were for all intents and purposes inherently set out to truncate or terminate the petition in limini. That being the case therefore, a quorum of at least two members, (the chairman inclusive) was fundamentally required before such motions could have been heard and determined by the lower tribunal. By implication, the learned chairman lacks the necessary jurisdictional competence to entertain, hear and determine the said motions. Thus there is no gain-saying the fact that the controversial ruling in question surreptitiously delivered by the learned chairman on 29/11/11, to the exclusion of the other members of the Lower Tribunal is null, void and of no effect whatsoever. Per Saulawa JCA at 22 – 23.
In the cases of OMEJEB v. ODUNI (2011) ALL FWLR (PT. 600) 1328, NGIGE v. OBI (2006) NWLR (PT. 999) 1 AT 209-210, DR. (SENATOR) NGIGE v. INEC – CA/E/EPT/02/2014, delivered on 5/4/2014, (unreported) et al, it was aptly held that when the chairman sat alone, heard counsel to the exclusion of the other Tribunal members, the tribunal was not properly, validly, legally and competently constituted, and thus incompetent to conduct any judicial proceedings.
Not surprisingly, this Court came to the most in vitable conclusion in OKOWA V. EMERHOR (SUPRA) that:-
It is obvious that Paragraph 27(1) of the First Schedule to the Electoral Act, 2010 (as amended) is ultra vires the provision of Section 284 (4) of the 1999 Constitution, as amended, regarding quorum of the Tribunal, when it sits to hear and determine interlocutory questions and matters in election. Yet by virtue of the provision of Section 1 (3) of the 1999 Constitution, the supremacy of the Constitution over all other laws is not in doubt. Thus, in the event of any law being in consistent with the provision thereof, the Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be declared void, and of no effect whatsoever: Section 1 (1) and (2) of the 1999 Constitution, as amended; INEC v. MUSA (2003) 1 SC (PT. 1) 106; OKOCHA v. INEC (2010) LPELR (SC) 478, OBASANJO v. YUSUF (2004) 9 NWLR (PT.877) 144 AT 183.
Little wonder therefore, this Court made bold to hold, as it did:
Thus in line with the decision of this Court in SENATOR NGIGE v. INEC (SUPRA) I have no hesitation in holding that Paragraph 27(1) of the First Schedule to the Electoral Act 2010 (as amended) is ultra vires the provision of Section 285 (4) of the 1999 Constitution, as amended. Consequent where upon the said Paragraph 27(1) of the First Schedule to the Electoral Act, 2010, as amended, is hereby declared void.
See OKOWA v. EMERHOR (SUPRA) Per Saulawa, JCA.
Hence, against the background of the foregoing postulation, I have no hesitation in resolving the appellants issue no.3 against the appellant. And I so hold.
Thus, having concurred with the reasoning and conclusion reached in the leading judgment, I too here by hold that the consolidated appeals succeed in part and are accordingly hereby allowed by me. I abide by the consequential orders made therein.
JOSEPH TINE TUR, J.C.A.:
?I read in advance the judgment of U. A. Ogakwu, JCA. I shall render my opinion as is required under Section 294(2) of the Constitution of the Federal Republic of Nigeria 1999 (as altered). The two consolidated appeals name raised very important legal issues that may affect legal practitioners when they sign processes using abbreviated names or initials; or when announcing appearances in Courts or Election Tribunals in favour of their clients.
The two appeals were consolidated by this Court on the application of the learned counsel to the appellant there being no objection from learned senior counsel to the respondents. In both appeals the counsel that signed the petitions presented to the Election Tribunal holden at Gombe, Gombe State was “Sam Kargbo Esquire, Solicitor to the petitioner”. The issue in the first tribunal was whether “Sam Kargbo” Esq was enrolled as a legal practitioner and could represent the petitioner in the tribunal. The tribunal heard argument from learned counsel before ruling at page 1982 lines 19 to page 1983 fines 1-14 of the printed record as follows:
“We hold the view that there is clearly a world of difference between the names Sam Kargbo and Samuel Peter Kargbo. Whilst Sam may be an abbreviation of the name Samson, Samuel or even the female name Samantha, there is also a total omission of the name Peter in the Sam Kargbo which is contained in the name Samuel Peter Kargbo that is on the roll of legal practitioners. Clearly the name that Section 2(1) of Legal Practitioners Act insists on is the name on the roll of legal practitioners not any other name. Now that we have found that there is a world of difference between Sam Kargbo who signed the petition and Samuel Peter Kargbo, we hold that the name Sam Kargbo which is not contained on the roll of legal practitioners cannot validly sign the petition in case, on this, the case of Esenowo v. Ukpong (1999) 68 LRCN 882 AT 995 cited to us by 1st respondent counsel is quite apposite. In that case, Belgore, JSC held at page 19. Paragraph H that:
A person cannot at random rearrange his initials or order in which his names are written for the purpose of registering a name in a professional register sanctioned by law…there is a world of difference between J. E. Esenowo and E. J. Esenawo for the purpose of registering a name… The result is that we resolve the first question in the negative and hold that the name Sam Kargbo which is not contained on the roll of legal practitioner cannot validly sign the petition in this case.”
On the issue whether the petition itself was incompetent the Tribunal held at page 1983 lines 15 to page 1985 lines 1 to 13 of the printed record as follows:
“With regard to the second question of whether the fact that the petition was signed by both Sam Kargbo and the petitioner renders the, petition itself incompetent, this calls for a consideration of Paragraph 4(3)(b) of the 1st Schedule to the Electoral Act, 2010 (as amended). Paragraph 4(3)(b) provides:
4(3) – The election petition shall further –
(b) be signed by the petitioners or all petitioners or by the solicitor if any named at the foot of the election petition. In the instant petition, it was signed by both Sam Kargbo on page 188 and the petitioner himself on page 189 of the petition. This fact is not in controversy and has been acknowledged by the parties in their respective submissions. The only contention made by the 1st respondent is that by the above provision the petition should only be signed by the petitioner or his solicitor and not both and that in this case where the petition is signed by both it is incompetent.
On this, we agree with the contention of the petitioner/respondent that in the instant case where the petition was signed by both Sam Kargbo and the petitioner himself constitutes at worst a surplus over what is essential a requirement that the petition must be signed by either. Where therefore it is signed by either or both the petition cannot be said to be incompetent because the basic of either has already been met.”
These holdings of Hon. Justice M.O. Adewara (Chairman), Hon. Justice Hafsat Abdulrahman (Member) and Hon, Justice A. B. Mohammed (Member) were rendered on 9/7/2015. In due course there was a change of the panel, Hon. Justice Mohammed Ibrahim Sirajo (Chairman); Hon. Justice Ayokunle Rotimi – Balogun (Member) and Hon. Justice Hafsat Abdulrahman (Member) had to commence proceedings afresh on the application of the learned counsel appearing for their respective clients.
The validity of some processes signed by “Mr. Sam Kargbo” Esquire became an issue in controversy before the tribunals. The Tribunal heard argument from learned counsel and delivered ruling an 3/8/2015, holding at pages 2077 lines 22 to pages 2078 lines 1 to 22 of the printed record that some of the processes were a nullity, struck them out, and dismissed the petition hence this appeal.
The two Tribunals did not consider whether “Sam Kargbo” Esquire could be an abbreviation of “Samuel Peter Kargbo Esq”, the dictionary meanings of “abbreviation” is “…to make a ward or phrase shorter by using only the first letters of each word; “Daniel” is often abbreviated to “Dan’, Chief Executive Officer “CEO”? “D1” is abbreviated form of “Diane,” See Cambridge Advanced Learner’s Dictionary, 2003 Edition, Pages 1-2. In Oxford Advanced Learner’s Dictionary 8th Edition, Page 2, to “abbreviate” is “to make a word, phrase or name shorter by leaving out letters or using only the first letter of each word.” “Abbreviation” is further defined as “short form of. a word, etc…”
The authors of Longman Dictionary of Contemporary English, 2007 Edition, Page 2. also defines to “abbreviate” as “to make a word or expression shorter by not including letters or using only the first letter of each word”. Thus “Abbreviated” is to “make shorter” while “abbreviation” is the, “short form of a word or expression.., the act of abbreviating something”. One may ask: is it an offence for a legal practitioner to abbreviate his name when signing processes to be filed in the court or election tribunals? I do not think so.
In Jarvis Motors (Harrow), Ltd & Anor v. Carabott & Anor (1964) 3 All E.R 89 Ungoed Thomas J., (as he then was) held at page 91 paragraph “B” – “C” that;
“..,what is not expressly forbidden is permitted.” May I add that what is expressly forbidden is not permitted in law.
Section 24 of the Legal Practitioners’ Act, Cap. L.11, Laws of the Federation of Nigeria, 1990 defines a “Legal Practitioner”, as follows:
“Legal practitioner means a person entitled in accordance of the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings”
Section 7-8 of the Act {supra} provides as follows:
“7. Enrolment
(1) Subject to the provisions of this section, a person shall be entitled to have his name enrolled if and only if –
(a) he has been called to the Bar by the Benchers; and
(b) he produces a certificate of his call to the Bar to the Registrar
(2) the Attorney-General may, after consultation with the Bar Council, by regulations provide for the enrolment of the names of persons who are authorized by law to practice as members of the legal profession in any country where, in his opinion, persons whose names are on the Roll are afforded special facilities for practicing as members of that profession; and, without prejudice to the generality of the power conferred by the foregoing provisions of this subsection, the regulations may-
(a) require persons seeking enrolment by virtue of the regulations to pass such examinations and pay such fees as may be specified by or under the regulations;
(b) provide for the cancellation of enrolments having effect by virtue of the regulations where, in the opinion of the Attorney-General, the facilities aforesaid are altered or withdrawn,
(3) Except in pursuance of a direction given under the following previsions of this Act by the Supreme Court or by the disciplinary Committee established under those provisions, a person whose name has been struck off the roll in pursuance of a direction given either before or after the commencement of this Act by that Court or in pursuance of a direction of the Disciplinary Committee, shall not be entitled to have his name enrolled again..
8. Right of audience, and precedence
(1) Subject to the provisions of the next following subsection and of any enactment in force in any part of Nigeria prohibiting or restricting the right of any person to be represented by a legal practitioner in proceedings before the Supreme Court or the Sharia Court of Appeal or any area or customary court, a legal practitioner shall have the right of audience in all courts of law sitting in Nigeria.
(2) No legal practitioner (other than such a person as is mentioned in subsection (3) of Section 2 of this Act) shall be accorded the right of audience in any court in Nigeria?in any year, unless he has paid to the registrar in respect of that year, a practicing fee as is from time to time prescribed by the Attorney-General of the Federation after consultation with the association.
(3) The Registrar shall-
(a) issue to every person by whom a practising fee is paid in respect of any year a receipt for the fee in the prescribed form; and
(b) as soon as reasonably practicable after the end of January in each year and thereafter from time to time during the year as he considers appropriate cause to be printed in the prescribed farm and put on sale a list or supplementary list of the legal practitioners by whom practicing fees have been paid in respect of that year; and
(c) pay over to the Association as soon as may be after the end of each year a sum equal to nine tenths of the aggregate amount of the practising fee received by him in pursuance of this section during the year, and a receipt purporting to be issued and list purporting to be printed in pursuance of this subsection in respect of any year shall be evidence that the person named in the receipt or, as the case may be, that any person named in the list has paid to the Registrar the practising fee in respect of that year, and u receipt purporting to be issued and list purporting to be printed in pursuance of this subsection in respect of any year shall be evidence that the person that the person named in the receipt or, as the case may be, that any person named in the list has paid to the Registrar the practising fee in respect of that year.
(4) Legal practitioners appearing before any court, tribunal or a person exercising jurisdiction conferred by law to hear and determine any matter (including an Arbitrator) shall take precedence among themselves according to the Table of precedence set out in the First Schedule to this Act.”
The appellant’s learned counsel produced before the Election Tribunal documentary evidence proving he was enrolled in the Supreme Court of Nigeria on 16th July, 1992 and a receipt showing he is up to date in the payment of his practising fee which entitles him to practice in all Courts and Election Tribunals in Nigeria. This was not disputed in the two Tribunals and in this Court by the learned senior counsel representing the respondents.
In Hamzat v. Sanni (2015) (supra) relied upon by my learned brother in his lead judgment, the Supreme Court recognized and approved the fact that a legal practitioner may abbreviate his name,, for instance by shortening “Muyiwa Obanewa Esq, of Oluwamuyiwa Obanewa & Co. Legal Practitioners” to “Muyiwa” as an abbreviation of “Olamuyiwa.”
In Driffield and East Riding Pure Unseed Coke Company v. Waterloo Mils Cake and Warehousing Company (1886) 31 CH.D 638, Bacon V.C., in construing the Lords Day Act, and the Thamis Navigation Act which were penal in nature, held at page 642 as follows:
“?It is a maxim that you cannot construe a penal statute otherwise than with the utmost strictness, and that if there are any means afforded to the Court of avoiding too severe a construction of it, the Court will avail itself of those means, and it has done so in cases in those Acts, and of the same class. All that is plain law and nobody can dispute it, but here we have a new law?”
Section 22(1) of the Legal Practitioners’ Act (supra) provides that:
“22 offences
(1) Subject to the provisions of this section, if any person other than a legal practitioner-
(a) practices, or holds himself out to practice, as a legal practitioner; or
(b) takes or uses the title of a legal practitioner; or
(c) willfully takes or uses any name, title, addition or description falsely implying or otherwise pretends, that he is a legal practitioner or is qualified or recognized by law to act as a legal practitioner;; or
(d) prepares for or in expectation of reward any instrument relating to immovable property, or relating to or with a view to the grant of probate or letters of administration, or relating to or with a view proceedings in any court of record in Nigeria, he is guilty of an offence under Paragraph (a) of this subsection or a second or subsequent offence under Paragraph (a) of this subsection, to a fine of an amount not exceeding N200 or imprisonment for a term not exceeding two years or both such fine and imprisonment, and in any other case to a fine of an amount not exceeding N100.”
The effect of the decisions of the two Tribunals is that “Sam Kargbo” could be tried for holding himself out as a legal practitioner whereas he is not under Section 22(1)(a)-(d) of the Legal Practitioners’ Act supra. The end result will be to prosecute “Samuel Peter Kargbo” Esq of counsel for representing the petitioner/appellant at the Election Tribunal. That will produce a disastrous consequence not only for counsel but legal practitioners who may, or do other abbreviate their names on processes they file in the Court and Election Tribunals. The legislature could not have intended such an unreasonable, disastrous and absurd construction of the Legal Practitioners’ Act (supra). In Maxwell on the Interpretation of Statutes, 12th Edition, by P. St. J. Langan, pages 1-2 the learned author wrote thus:
“Granted that a document which is presented to it as a statute is an authentic expression of the legislative will, the function of a Court is to interpret that document “according to the intent of them that made it.” From that function the Court may not resile: however ambiguous or difficult of application the words of an Act of Parliament may be, the Court is bound to endeavour to place some meaning upon them. In so doing it gives effect, as the Judges have repeatedly declared, to the intention of Parliament, but. it may only elicit that intention from the actual words of the statute. “If,” said Lord Greene M, R.., “there is one rule of construction for statutes and other documents, it is that you must not imply anything in them which is inconsistent with the words expressly used”. If language is clear and explicit, the court must give effect to it, “for in that case the words of the statute speak the intention of the legislature.” And in so doing it must bear in mind that its function is jus dicere, not jus dare: the words of a statute must not be overruled by the Judges, but reform of the law must be left in the hands of Parliament.” For all these and the fuller reasons in the lead judgment I also join my learned brother in allowing this appeal. I abide by the consequential orders in the lead judgment.
FREDERICK OZIAKPONO OHO, J.C.A.:
?I have had the privilege of reading in draft the erudite judgment of my learned Brother UGOCHUKWU ANTHONY OGAKWU, J.C.A. just delivered and I agree with his reasoning and conclusions therein, I would, however, wish to lend my voice to his in allowing the appeal in-part by making a few contributions to the well written judgment in an area which I firmly believe requires to be emphasized upon. In dismissing the appellant’s petition at the trial tribunal pursuant to an interlocutory application of the 2nd and 3rd respondents brought pursuant to Sections 2(1) and 24 of the Legal Practitioners Act and Paragraph 4(3)(b) of the First Schedule to the Electoral Act (as amended) the learned tribunal chairman, Hon. Justice Muhammad Ibrahim Sirajo on the 3-8-2015 at pages 1972 – 1985 of the printed records delivered a considered ruling, excepts of which are reproduced here as follows;
“This second issue seeks the nullification of the proceedings in this petition that were conducted by Sam Kargbo in view of the ruling of this Tribunal dated 9th July, 2015.” The determination of this issue and by extension, prayer 2 on the motion paper will entail the appreciation of what this Tribunal decided in its ruling of 9th July, 2015. The application subject of that ruling was filed on behalf the first respondent by Ibrahim Isiyaku, SAN” The substantive prayer therein was for the striking out of the petition of the ground that Solicitor who signed it does not have his name on the roll of legal practitioners in Nigeria. That Solicitor for the petitioner is one Sam Kargbo. This tribunal found there is no such name on the roll of legal practitioners in Nigeria but proceeded to hold that the petition is competent as it is signed by the petitioner himself in addition o the signature of Sam Kargbo therein, The Tribunal also ruled that “Sam Kargbo” is not the same person as “Samuel Peter Kargbo” whose name is on the roll of legal practitioners called to the Nigerian Bar, and in consequence thereof, Sam Kargbo cannot validly sign the petition in this case.
By the provision of “Section 2(1) and 24 of the Legal Practitioners’ Act only persons whose names are on the roll of legal practitioners can practice as Barristers or Solicitors or both. The name “Sam Kargbo,’ as found by this Tribunal is not on the roll. By interpretation therefore, the bearer of that name or whoever held himself out to be Sam Kargbo is not entitled or qualified to practice as a Barrister or Solicitor in Nigeria. As a corollary to this, Sam Kargbo does not have the right of audience in court as granted to legal practitioners by Section 8 of the Legal Practitioners’ Act and Section 36 of the Constitution of Federal Republic of Nigeria, 1999 (as amended). In consequence thereof, all processes filed by Sam Kargbo in this petition and all proceedings conducted by him on behalf by the petitioner amounts to a nullity for want of competence…We hereby dismiss the petition accordingly…” Aggrieved by this ruling, the petitioner has appealed to this Court. One of the main thrusts of the issues raised in this appeal and which provided veritable grounds that led to the dismissal of the petition of the petitioner/appellant herein relates to the question of whether a person whose name is not on the roll of legal practitioners in Nigeria can validly sign any Court process or represent a party in Court. In the instant case, after the commencement of trial in the Trial Tribunal, the respondents filed applications praying the Trial Tribunal to strike out the petitioner’s petition on the grounds that; (a) the petition was prepared and signed by one “Sam Kargbo Esq.,” as Solicitor to the petitioner; (b) The name Sam Kargbo Esq., is not on the roll of Lawyers called to the Nigerian Bar and does not belong to a Lawyer admitted to practice law in Nigeria; and (c) Only a lawyer called to the bar can, under the Legal Practitioners’ Act prepare, sign and file Court processes and represent or appear for a litigant in Court in Nigeria. The position of the law is that court processes of any kind, and which includes Election Petitions, must be duly signed by a person whose name is on the roll of legal practitioners. See Sections 2(1) and 24 of the Legal Practitioners’ Act. These sections are reproduced here for the avoidance of any doubt as follows;
SECTION 2(1);
“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;
“Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as Barrister and Solicitor either generally or for the purpose of any particular office or proceedings”.
The position taken by the Superior Courts of record on this issue seem to have generated so much kerfuffle in the discourse of the Nigerian Legal Community, beginning with such notable decisions as OKAFOR v. NWEKE (2007) 10 NWLR (PT.1043) 521; CONTINENTAL SHIPYARD LTD. v. EZIOGOLI SHIPPING LTD. (2010) 1 WRN 138; SLB CONSORTIUM LTD. v. NNPC (2011) 9 NWLR (PT.1252) 317 AT 337; DR. TUNJI BRAITHWAITE v. SKYE BANK PLC (2013) 5 NWLR (PT.1346) 1 AT 19 and a host of other decisions of Courts. But in a more recent decision, following the intense debate and discussions which seem to have greeted the stern position of the Court on the issue, and in seeking to demonstrate that the position taken is intended for the overall well-being of the legal profession and not another way of trading the noble virtues of substantial justice with technicality, the apex Court of the land, the Supreme Court, in FIRST BANK OF NIGERIA PLC & ANOR v. ALHAJI SALMANU MAIWADA & ORS. (2013) 5 NWLR (PT.1348) 444 empanelled the full Court in consideration of the issue. In the Court’s leading judgment read by the noble Lord, FABIYI, JSC had the following to say at pages 482 F to 483 A-G;
“While one should appreciate the stand point of each senior counsel/counsel and the efforts and dexterity with which each of them marshaled his points, it should be noted that the salient issue shall be determined based on the determination of the applicable law. This is a matter of great concern legal practitioners which cannot be determined by casting of votes. The decision of OKAFOR v. NWEKE was basically determined based on the provisions of Sections 2(1) and 24 of the Legal Practitioners’ Act Laws of the Federation of Nigeria 2004.., in interpreting the law, the Court was invited to embark upon purposive interpretation. It was contended that a negative interpretation of the law should be avoided as such is against the cannon of interpretation of laws. It is not in doubt that in deserving situations, purposive interpretations should be employed by the Court. The purpose of legislation is of paramount factor. The purpose of Sections 2(1) and 24 of the Act is to ensure that only a legal practitioner whose name is on the roll of this Court should sign Court processes. It is to ensure responsibility and accountability on the part of a legal practitioner who signs a Court process. It is to ensure that fake lawyers do not invade the profession. This, in my considered opinion, accords with the sacred cannon of interpretation of law, See IBRAHIM v. BARDE (1996) 9 NWLR (PT.474) 513; UNITED AGRO VENTURE v. FCMB (1998) 4 NWLR (PT.547) 546; IBWA v. IMANO (NIG.) LTD & ANOR (1998) 2 NSCC 245, (1998) 3 NWLR (PT. 85) 633. In my considered opinion. the words employed in drafting Sections 2(1) and 24 of the Act are simply and straightforward. The literal construction of the law is that legal practitioners who are animate personalities should sign Court processes and not firm of legal practitioners which is inanimate and cannot be found on the roll of this Court.” Perhaps, the relevant question to address here: is whether by stating his name as “Sam Kargbo”, and not necessarily stretching out his entire names, that is, “Samuel Peter Kargbo”, as it is in the roll of legal practitioners, can it really be said that the learned appellant’s counsel had used a name which is alien to the roll of legal practitioners? Putting this question differently: by shortening the name, Samuel to its first syllable, “Sam” by way of an abbreviated name, does that necessarily mean that the bearer of the name “Sam Kargbo” is not the same person as “Samuel Peter Kargbo” whose name is on the roll of legal practitioners?
It would be recalled that in arguing their applications before the Trial Tribunal, the respondents relied heavily on the decision of the Court in the case of DR. E.J. ESENOWO v. DR. I UKPONG & ANOR (1999) 6 NWLR (PT.608) 611 AT 612 where the Supreme Court, per BELGORE, JSC while delivering the leading judgment of the Court, had this to say;
“.,. Is it true that the register of for Nigerian Medical Council for 1980 and 1981 did not contain plaintiff/appellant’s name? There is a world of difference between “J. E. Esenowo’ and ‘E. J. Esenowo’ for the purpose of registering a name in a professional register sanctioned by law. It allows for crooks and quacks to infiltrate into the procession if at random a person can re-arrange his initials or order in which his names are written.”
This decision, with all due respect is one that can be easily distinguished from the facts of the very case before this Court. What the Supreme Court did not approve of in the said Esenowo case (supra) is the random re-arrangement of initials or order in which a person’s names are written. The Supreme Court neither condemned the use of initials nor, the short forms/abbreviated names of legal practitioners. If this were not to be so, then some of the greatest contributors to the growth and development of the Nigerian legal profession who have used and still use the abbreviated short forms of their given names in their entire professional lives would have suffered untold hardship on account of their use of such names.
In a very recent decision of the Supreme Court on the subject, in ALHAJI TAJUDEEN BABATUNDE HAMZAT & ANOR v. ALHAJI SALIU IREYEMI SANNI & ORS (2015) LPELR- 24302 the Court, per GALADIMA, J.S.C. had this to say;
“…The respondents have no grouse with the writ of summons dated 18/12/2001 which initiated the action. It was regularly signed by the learned counsel for the appellants thus;
‘MUYIWA OBANEWA Esq., of OLUMUYIWA OBANEWA & CO. LEGAL ‘PRACTITIONERS”.
The point to be made here of course is that the name “MUYIWA” is a shortened or abbreviated form of the name; “OLUMUYIWA” and when counsel signed the Court processes as “MUYIWA OBANEWA” instead of the use of his full names of “OLUMUYIWA OBANEWA” the heavens literally speaking did not fall. Arising, therefore from the foregoing and upon a very calm and careful consideration of what the Trial Tribunal did in their interpretation of the said Sections 2(1) and 24 of the Legal Practitioners Act it cannot reasonably be argued with any amount of force that the Trial Tribunal did any purposive interpretations of the aforementioned sections in line with the admonition of their Lordships, the Justices of the Supreme Court in FIRST BANK OF NIGERIA PLC & ANOR v. ALHAJI SALMANU MAIWADA & ORS (Supra). The respondents cannot in any way be said to have been misled by the representation of the petitioner by the team of lawyers led by “Sam Kargbo” or at least if at all they were, no deposition to that effect was made in their supporting affidavit. The purpose of the Supreme Court’s justified clamp down on erring counsel who sign Court processes on behalf of the names of their law firms rather than their given names is to rid the profession of the ever growing threats and infiltrating influences of quacks and crooks. See the observation of FABIYI, J.S.C. in the case of FIRST BANK OF NIGERIA PLC & ANOR v. ALHAJI SALMANU MAIWADA & ORS (Supra) and not necessarily to strike down Court processes/actions at the slightest excuse of the use of an abbreviated name of a known Legal Practitioner.
In the final analysis I too, will adjudge the Appeal meritorious and it is accordingly allowed. I also abide by all the consequential orders made thereto.
APPEARANCES:
SAMUEL PETER KARGBO, Esq.
{with Augustine Erhabor, Esq.} For the Appellant
IBRAHIM ISIYAKU, Esq. S.A.N.
{with Z. M. Umar, Esq,
and C. Ubale, Esq.) For the 1st Respondent
IBRAHIM lSIYAKU, Esq. S.A.N.
(with N. D, Gwaison, Esq, and
J. E. Okonkwo, Esq.)
holding the brief of
Solomon E. Umoh, Esq., S.A.N. For the 2nd Respondent
OLAJlDE AYODELE Esq., SAN
(with A. G. Yaro, Esq.,
J.J. Adamu, Esq., H. Abdu, Esq.,
A.O Ayodele, Esq. and
M. D. Ayodele, Esq.,) For the 3rd Respondent
Y. D. DANGANA, Esq. {with
?Mrs. Halita K. Raje) For the 4th Respondent
Appearances
Samuel Peter Kargbo, Esq. (with Augustine Erhabor, Esq.) for the Appellant. For Appellant
AND
Ibrahim Isiyaku, Esq. SAN (with Z. M. Umar, Esq. and C. Ubale, Esq.) for the 1st Respondent.
Ibrahim Isiyaku, Esq. SAN (with N. D. Gwaison, Esq. and J. E. Okonkwo, Esq.) holding the brief of Solomon E. Umoh, Esq. SAN for the 2nd Respondent.
Olajide Ayodele Esq., SAN (with A. G. Yaro, Esq., J. J. Adamu, Esq., H. Abdul, Esq., A. O. Ayodele, Esq. and M. D. Ayodele, Esq.) for the 3rd Respondent.
Y. D. Dangana, Esq. (with Mrs. Halita K. Raje) for the 4th Respondent. For Respondent
