SAMUEL IORAER ORTOM v. EMMANUEL JIME & ORS
(2019)LCN/13766(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of August, 2019
CA/MK/EP/GOV/11/2019
RATIO
COUNSEL: WHEN A COUNSEL ACTS IN DUAL CAPACITY: ACTING AS COUNSEL AND WITNESS AT THE SAME TIME
It is clear that a counsel in contravention of the rules of professional conduct who acts in dual capacity has committed an unethical act. However that unethical action of counsel in itself of assuming dual roles does not adversely affect his competence to give evidence or the relevance of his testimony as a witness. See Elabanjo v. Tijani (1986) LPELR 1107 SC; Okonronkwo v. Lawdee Int. (2012) LPELR 20813 CA. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
SAMUEL IORAER ORTOM Appellant(s)
AND
1. EMMANUEL JIME
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Governorship Election Tribunal for Benue State sitting in Makurdi delivered on 15/07/2019 in the course of taking evidence of PW15. The Appellant and other respondents in the petition had objected to the PW15 testifying in the case on the ground that he was one of the legal practitioners listed in the petition and all processes filed by the petitioners as counsel to the Petitioners. Also that it was PW15?s office that was used as address for service on the Petitioners. The Tribunal after taking arguments from all parties, for and against the objection, gave its ruling overruling the objections and allowed the PW15 to testify.
At the hearing of the appeal, the sole issue donated for determination by the Appellant is as follows:-
Whether or not it was valid, proper and competent for PW15 to act simultaneously as both counsel and witness in Petitioners? case. Distilled from grounds 1 and 2 of the appeal.
?The counsel for the 1st and 2nd Respondents identified also a sole issue as follows:-
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Whether the trial Tribunal was not right in overruling the Appellant?s objections to the competence of Joe Abaagu Esq., to testify as a Petitioners? witness in this petition.
However, the 1st and 2nd Respondents had filed a notice of preliminary objection incorporated in their brief on the following grounds:
1. The Supplementary Records(s) of Appeal purportedly compiled and transmitted before this Honourable Court on the 16th day of August, 2019 is incompetent and therefore renders the Record incomplete.
2. This Honourable Court lacks the jurisdiction to entertain an appeal on an incomplete Record.
3. The Appellant?s Brief of Argument was filed outside the statutory time allowed for filing same and thus incompetent.
4. The appeal is a flagrant abuse of the process of the Honourable Court.
5. The appeal is liable to be dismissed or struck out with substantial cost against the Appellant.
Learned 1st and 2nd Respondents? counsel argued that election petition is sui generis and that having filed the notice of appeal on 25/7/2019, the Secretary was obliged to compile record within 10 days thus the
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supplementary record and the brief based on it is out of time and there is no valid Appellant?s brief before the Court. In reply, to the objection, the appellant argued that the Appellant cannot be punished for the omission by the Secretary of the Tribunal to serve a valid copy of the record of appeal on the Appellant. He argued that the Appellant was served with full record on 15/8/2019 and that?s when his time to file brief starts to run. Counsel cited Wassah V. Kara (2015) 4 NWLR Pt. 1449 Pg.374. Counsel insisted that an incomplete record (page 243 was missing from his own record) was initially served on him.
OPINION
I have looked at the argument of both learned counsel in respect of the preliminary objection of 1st and 2nd Respondents? counsel. This matter is quite straight forward in my humble view. The ruling was delivered on 15/7/2019. The Appellant had filed 1st Notice of Appeal on 25/7/2019 and a 2nd Notice of Appeal on 1/8/2019. By paragraph 6 of the Practice Directions 2011, the Appellant was supposed to file Notice of Appeal within 21 days. The two notices filed on 25/7/2019 and 1/8/2019 respectively being filed within
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time are valid. The Appellant can file as many notices as he chooses within time but rely on only one for the purposes of pursuing the appeal. The Appellant herein chose to rely on the notice filed on 1/8/2019. He was served with original record on 31/7/2019 and it was transmitted here on 1/8/2019, well within time. If we calculate 10 days from 1/8/2019, to file brief in compliance with paragraph 10 of the Practice Directions, the brief ought to be filed by 11/8/2019. The appellant has insisted that he relies on the notice filed on 1/8/2019, then the time to transmit record would be 11/8/2019 and the time to file brief would be 21/8/2019. It is apparent from the arguments of learned Appellant?s counsel, that he has abandoned the first record which he claims is incomplete and is relying solely on the supplementary records which he defined in paragraph 2.6 of their brief as ?something added to supply a deficiency.?
?Appellant filed supplementary record on 2/8/2019 which contains the notice of appeal and supplementary record on 16/8/2019 which is the proceedings which led to the ruling being complained against in this appeal. The
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supplementary record of 16/8/2019 is obviously out of time if we calculate from 1/8/2019. Suffice it to say that the sole valid supplementary record is not sufficient to assist the Court in its consideration of whether or not the relief sought in this appeal can be granted.
The second supplementary record being filed out of time, and the Appellant?s brief being also filed out of time thereof, the appeal is incompetent and the preliminary objection is upheld.
In the event that I am wrong, as we are the penultimate Court, I will consider the substance of the appeal.
On the substance of the appeal itself, It is clear that the authorities are settled that even though it is highly irregular for the lawyer whose name is on the process in an action to also give evidence on material facts, because a person must not assume dual roles in a litigation, In this case, the Tribunal insisted that even though the said Joe Abaagh Esq., is in the legal team of the Respondents, he never made submissions etc and was merely called to tender important documents.
?It is clear that a counsel in contravention of the rules of professional conduct who acts in
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dual capacity has committed an unethical act. However that unethical action of counsel in itself of assuming dual roles does not adversely affect his competence to give evidence or the relevance of his testimony as a witness. See Elabanjo v. Tijani (1986) LPELR 1107 SC; Okonronkwo v. Lawdee Int. (2012) LPELR ? 20813 CA. On the substance, there is no merit in this appeal and it is hereby dismissed. Parties to bear their over costs.
ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Helen Moronkeji Ogunwumiju, JCA made available to me in advance the draft copy of the Judgment which has just been delivered in which the preliminary objection of the 1st and 2nd Respondents was upheld and the substantive appeal dismissed. I agree with and adopt as mine, the reasoning and conclusion of my Learned Brothel. I will only make few comments in support.
The Appellant herein filed a Notice of Appeal on 25/7/2019 against the ruling of the trial Tribunal which was delivered on 15/7/2019. The Record of Appeal was compiled and transmuted on 31/7/2019. The Appellant subsequently filed another Notice of Appeal on 1/8/2019. At the hearing or the appeal, Learned Senior Counsel. Chief S.T.
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Hon, SAN, withdrew the earlier Notice of Appeal filed on 25/7/2019 and relied on the Notice tiled on 1/8/2019. By of the provisions of Paragraph 9 of the Election Tribunal and Court Practice Directions, 2011, the record of appeal is to be served on the respondents within ten days of receipt of the notice of appeal. Thereafter, by Paragraph 10, the appellant would have ten days to file his Brief of Argument. The Appellants appear to have abandoned the earlier Record of Appeal which was tiled pursuant to the earlier filed but now abandoned Notice of Appeal of 25/7/2019. A calculation of the dates the lodging of the Notice of Appeal on 1.8/2019 would immediately reveal that while the Supplementary Record filed on 2/8/2019 was filed within lime of the said Notice of Appeal of 1/8/2019, the further Supplementary Record filed on 16/8/2019 was filed way out of time. The Supplementary Record of 2/8/2019 is certainly incomplete to sustain the instant appeal. It is trite law that an appeal ought not to be heard on an incomplete record; Okochi & Ors v. Animkwoi & Ors (2003) Ukiri v. EFCC (2018) LPELR-43992(SC). In this light, the Preliminary Objection has merit and hereby
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succeeds. There cannot be an Appeal without a complete Record of Appeal from which a consideration will be made. Accordingly, the only fitting order to be made is to strike out the appeal.
Being a penultimate Court, it is advisable to also consider the merits of the appeal, in the event that our determination of the Preliminary Objection is faulty. On the merits of the substantive appeal, I find instructive the decision of the Supreme Court in Elabanjo v. Tijani (1986) LPELR-1107(SC), per Oputa, JSC as follows:
“The position then is that counsel appearing should not ordinarily act as counsel and witness. But if it becomes necessary for such counsel to give evidence his evidence is not rendered inadmissible by the mere fact that he has acted or is acting es counsel in the case. There can therefore be no doubt that counsel is not, by the mere fact of being counsel for a party to a dispute, incompetent to give evidence in the same case. He is competent. Other considerations may arise where counsel testified as witness but surely not that of competency. At page 144 of the Record of proceedings, Uthman Mohammed, observed:-
“l have carefully gone
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through the facts and the law referred in the cases cited above and I entirely agree that it is wrong and contrary to practice and etiquette at the bar for counsel to appear in a professional capacity in a case in which he is a material witness. ”
With the greatest respect there seems be a confusion of thought in the reproduced above. Whether counsel can give evidence – his competence to testify – is one thing. Whether by the etiquette and practice at the Bar, he should give evidence is an entirely different matter. One deals With the legal capacity to testify, the other with the propriety of his so testifying. It is necessary always to keep this distinction in view. If counsel is a competent witness, it will be wrong to expunge his evidence from record as the Court below suggested. If in so testifying, counsel broke any rule of professional conduct, then that will be a matter for the Disciplinary Committee of the Bar and that principle should have nothing to do with outcome of the ease.”
See also Garan v. Olomu (2013) LPELR-20340(SC).
It is important to note that the finding of the trial Tribunal that PW15 did not at all appear in the matter and did not conduct the case the 1st
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and 2nd Respondents before it was not appealed against. It was therefore a finding of fact that is not in contest. Therefore it is also my view that, notwithstanding how irregular the action of witness may be to be, the relevance or his testimony cannot be downplayed or expunged.
For this reason and for the fuller reasons given by my Learned Brother, I also find that the appeal deserve to be dismissed. However, having earlier found that the Supplementary Record of Appeal was incomplete, the appeal stands struck out.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage reading before now the lead judgment of my learned brother, H.M. Ogunwumiju PJCA, and I am in tandem with the reasoning and conclusion arrived thereat that both the preliminary objections raised by the Respondents should be sustained and that the appeal is and ought to be dismissed.
For purposes of emphasis, I add that the role of counsel in the litigation process is trite. It is also undisputable that the practice requiring counsel to withdraw as counsel before appearing as a witness in the case is a rule of practice designed to ensure proper administration
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of practice.
Regardless of the foregoing, there can therefore be no doubt that counsel are not by the mere fact of being counsel for a party to a dispute be incompetent to give evidence in same case
For the foregoing and the more Eloquent reasoning and conclusion in the lead judgment. I also dismiss the appeal for being unmeritorious.
MOHAMMED MUSTAPHA, J.C.A.: I fully participated in the extensive deliberations that led to the conclusions arrived at in this appeal; therefore, I agree with the decision of my learned brother Ogunwumiju, JCA that the preliminary objection succeeds, because the supplementary record of the 16/8/19 is out of time as it were, and that being so, the pertinent question in the final analysis is whether the supplementary records of the 2-8-19 and 16-8-19 can sustain the relief sought by the appellant in this appeal and the categorical answer my considered opinion is No. That in the preliminary objection of the 1st and 2nd Respondents succeeds accordingly.
Assuming this conclusion is wrong on the substantive appeal, I hold the view like my learned brother,
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that even though it is irregular for a counsel to give evidence; the Tribunal found that the counsel merely tendered an exhibit; that may be unethical, but does not affect the competence or relevance of the witness’ testimony. It is therefore easy for me to agree with learned counsel to the 1st and 2nd Respondents, that the decision of trial Court allow PW15 to testily on behalf of the petitioners is in consonance with trite and tested authorities; see Elabanjo v. Tijani (1986) LPECR 1107-SC, Okoronkwo v. Lawdee Int. Nig. Ltd. & Ors (2012) LPECR-20813-CA.
It is these reasons and the more elaborate reasons given by my learned brother that I also find no merit in this appeal and accordingly dismiss same.
TOBI EBIOWEI, J.C.A.: I have seen and read in draft the judgment just delivered by my learned brother, Ogunwumiju, ICA. I agree entirely with the reasoning and conclusions reached therein in the said judgment. The 1st and 2nd Respondents raised preliminary objection to the effect that the Appellant’s brief is filed out of time haven been filed on 16/8/19 when the original record of appeal was served on the Appellant on 3/7/19. By
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simple mathematical deduction, the Appellant should have filed the brief latest 10/8/19. On the face of it, it is filed out of time.
As a game changes, the Appellant introduced supplementary record of appeal. These were filed on 2/8/19 and 16/8/19. The supplementary record of 2/8/19 is the notice of appeal while that of 16/8/19 is the proceedings of the Court that led to the appeal. Even at that, taking it from 2/8/19. the supplementary record is filed out of time and consequently the Appellant’s brief is also filed out of time. The preliminary objection succeeds.
I will consider the supplementary appeal in case I am wrong on the preliminary objection. On the main appeal, I also agree with my learned brother that the appeal will fail as there is nothing in any law known to me that the rote Joe Abaagu esq., played in the matter is sufficient to make his evidence inadmissible. That is not my understanding of the principle or law contained in the cases cited by the Appellant, as PW 15’s action may be unethical but certainly not illegal as to make his evidence inadmissible
In the circumstance, I also dismiss the appeal.
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Appearances:
S.T. Hon SAN with him J.J Igbabon, Esq. Comfort Ada Ocheme Apeh, Esq., B.A. lorheghem, Esq., Alfred Tijah, Esq. and Msughter Alabar, Esq.For Appellant(s)
K.K. Eleja, SAN with him, Prof. B. Omipidan, Esq., Mike Abaagu, Esq., O.M, Omalae Omale, Esq. and A.O. Usman, Esq.
for 1st and 2nd Respondents
Genesis Francis, Esq with him, Nguevese Tine Tur, Esq. for 3rd Respondent
E. A. Yange, Esq. with him Emeka Okoro. Esq., Grace E. Odeh, Esq., Emmanuel Tor, Esq. and F.M.Z Uwar, Esq. for 4th Respondent.For Respondent(s)
Appearances
S.T. Hon SAN with him J.J Igbabon, Esq. Comfort Ada Ocheme Apeh, Esq., BOA. lorheghem, Esq., Alfred Tijah, Esq. and Msughter Alabar, Esq.For Appellant
AND
K.K. Eleja, SAN with him, Prof. B. Omipidan, Esq., Mike Abaagu, Esq., O.M, Omalae Omale, Esq. and A.O. Usman, Esq.
for 1st and 2nd Respondents
Genesis Francis, Esq with him, Nguevese Tine Tur, Esq. for 3rd Respondent
E. A. Yange, Esq. with him Emeka Okoro. Esq., Grace E. Odeh, Esq., Emmanuel Tor, Esq. and F.M.Z Uwar, Esq. for 4th Respondent.For Respondent
