NDUBUKA ROWLAND v. ALL PROGRESSIVES CONGRESS & ORS

Legalpedia Citation: (2023-06) Legalpedia 01654 (CA)

In the Court of Appeal

OWERRI JUDICIAL DIVISION

Tue Mar 28, 2023

Suit Number: CA/OW/52/2023

CORAM

Jummai Hannatu Sankey JCA

Oludotun Adebola Adefope-Okojie JCA

PARTIES

NDUBUKA ROWLAND

APPELLANTS

ALL PROGRESSIVES CONGRESS & ORS

RESPONDENTS

AREA(S) OF LAW

APPEAL, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The 3rd Respondent, Applicant before the lower Court, claimed that she is the winner of the 1st Respondent’s direct primary election held on 26th May 2022 for the Umuahia East State Constituency in Abia State; duly monitored by the 4th Respondent (INEC) and was issued with INEC Forms for the publication of successful candidates’ names and particulars, which she filled and returned to the 1st Respondent to be forwarded to the 3rd Respondent (INEC). To her utmost shock, during the uploading and publication of candidates’ names by the 4th Respondent, it was the name of the Appellant that was forwarded and uploaded to the 4th Respondent’s portal on the 15th day of July, 2022 instead of hers.

The Appellant on the other hand claimed that the primary election conducted by the 1st Respondent for the Umuahia East State Constituency in Abia State was an indirect primary election from which he emerged as the winner and his name forwarded by the 1st Respondent to the 4th Respondent (INEC). He contended that the 3rd Respondent cannot be heard to allege that she won the primary election of the 1st Respondent when she had clearly and voluntarily withdrawn from the race on the 9th day of May, 2022 long before the Primary election was conducted.

Federal High Court sitting at Umuahia (Trial Court) entered judgment in favour of the 3rd Respondent. Aggrieved, the Appellant filed the instant appeal.

HELD

Appeal dismissed

ISSUES

Ø Preliminary Objection

RATIONES DECIDENDI

GROUNDS OF APPEAL – THE ESSENCE OF GROUNDS OF APPEAL

The essence of grounds of appeal, I hold, is to give sufficient notice to the adverse party of the nature of the Appellant’s complaint that such adverse party will be confronted with in Court. Once a ground of appeal gives the Respondent the necessary notice of the grudges the Appellant has against the decision on appeal, the ground is valid and competent. See Ogboru v Okowa (2016)11 NWLR Part 1522 Page 84 at 111 Para E-G per M.D Muhammad, JSC; Achonu v Okuwobi (2017) 14 NWLR Part 1584 Page 142 at 171-172 Para F-C per Galinje JSC.

Also, Courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. Bad or defective particulars in a ground of appeal will thus not necessarily render the ground itself incompetent. This position is shaped by the contemporary shift from technicalities to substantial justice. See Omisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 257 Para B-H; (2015) All FWLR Part 813 Page 1673 at 1713-1714 Para H-E per Nweze JSC. – Per O. A. Adefope-Okojie, JCA

SIGNING COURT PROCESSES – THE MANNER OF SIGNING COURT PROCESSES

The manner of signing Court processes was given by the Supreme Court in the case of SLB Consortium Ltd v NNPC (2011) 9 NWLR Part 1252 Page 317 at 337-338 Para G-A per Rhodes-Vivour JSC, as follows:

“First, the signature of Counsel, which may be any contraption.

Secondly, the name of Counsel clearly written.

Thirdly, who Counsel represents.

Fourthly, name and address of Legal Firm.”

The consequence of failure to adhere, as stated by His Lordship, is that:

“Once it cannot be said who signed a process it is incurably bad”.

Underlining Mine

In Cornelius v. Nwajah (2021) LPELR – 55357(CA), this Court held, per Senchi, JCA at Pages 41-42 Para F-E, as follows:

“Another ground of challenge raised in this appeal to the competence of the substantive application before the lower Court and its jurisdiction to entertain same is the issue of signing the originating process by an unidentifiable person.

Now, by virtue of Sections 2 and 24 of the Legal Practitioners Act, it is only a legal practitioner that can sign Court processes on behalf of a litigant. A Court process thus signed by a person not authorised under the Legal Practitioners Act or recognized by that Act to practice as a legal practitioner is rendered invalid, null and void. See the cases of OKAFOR V. NWEKE (2007) 10 NWLR PT. 1043 P. 521 and COMMUNITY DEVELOPMENT ORGANIZATION & ANOR V. IBRAHIM MOHAMMED (2014) LPELR-23598(CA). Any Court process not verifiable to have been signed by either the party himself or his legal practitioner is incompetent and therefore, liable to be struck out. See the case of DIAMOND BANK V. TRANTER INTERNATIONAL LTD & ANOR (2019) LPELR-47618(CA) where the Court of Appeal held that;

“Nowadays, so strict is the Rule in Okafor V. Nweke (Supra) that even where a Court process, including originating process, is signed above the names of two or more counsel for the party affected but without any indication as to who amongst the several names of counsel signed the Court process, such a Court process would be held to be incompetent and thus liable to be struck out.” Underlining Mine

See also Philips Ade-Ojo v Peter Ojo (2021) LPELR-5620(CA).

By virtue of Section 2(1) and (2) and 24 of the Legal Practitioners Act, it is only a legal practitioner that can sign Court processes on behalf of a litigant. A Court process signed by a person not authorised under the Legal Practitioners Act or recognized by that Act to practice as a legal practitioner is rendered invalid, null and void, I hold.

Any Court process not verifiable as having been signed either by the party himself or his legal practitioner is therefore incompetent. – Per O. A. Adefope-Okojie, JCA

NOTICE OF APPEAL – NOTICE OF APPEAL MUST BE COMPETENT TO ENABLE THE APPELLATE COURT ASSUME JURISDICTION

A Notice of Appeal has been described as the spinal cord of an appeal. It is the foundation upon which an appeal is based and is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It must be competent to enable the appellate Court assume jurisdiction to entertain the appeal. Where it turns out to be defective and invalid, it renders the appeal incompetent and robs the appellate Court of the competence to adjudicate on the appeal. See Mawo v Tsintuwa (2020) 2 NWLR Part 1708 Page 306 at 318 Para D-F per Ariwoola, JSC (now CJN); Allanah v. Kpolokwu (2016) 6 NWLR Part 1507 Page 1 at 41 Para B-D per Galadima, JSC; FRN v. Dairo (2015) 6 NWLR Part 1454 Page 141 at 166 Para C-H; (2015) All FWLR Part 776 Page 486 at 507–508 Para G-G per Nweze, JSC. – Per O. A. Adefope-Okojie, JCA