Hon. (Barr.) Ita S. Enang V. Dr. Henry Okon Archibong Of Alliance For Democracy & Ors (2009)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

This is a ruling on two motions on notice, one filed on 11/3/09 by the 1st Respondent in the appeal and the other one filed on 19/3/09 by the appellant.

In the motion filed on 11/3/09 the applicant described therein as the 1st Respondent/Cross-Appellant/Applicant asked for an order “Granting Leave to Applicant to amend his notice and grounds of Cross-appeal in Appeal no. CA/C/NAEA/240/2007 by deleting the name of the 3rd Respondent (Returning officer, Itu/Ibiono Ibom LGA) and replacing it with (Returning Officer Itu/Ibiono Ibom Federal Constituency) and reflecting the proper status of the parties and replacing the Notice and Grounds earlier filed with the one filed with this Motion as amended.”

In the motion on Notice field on 19/3/09 the appellant in the main appeal asked the Court for an order

“(i) striking out the 1st Respondent’s Notice and Grounds of Cross-Appeal filed on the 3rd day of January, 2008.

(2) Striking out the 1st Respondent’s/Cross-Appellant’s brief of argument filed on the 17th day of January, 2008 and all other processes relating to the 1st Respondent’s/Cross-Appeal”

The first motion seeks to preserve the cross appeal, while the second motion seeks to scuttle it. Ordinarily the motion seeking to preserve the cross-appeal ought to be taken before the second motion seeking to terminate it.

However, the two motions were taken together and because the second motion relates to the jurisdiction of the Court a ruling on it has to be made before the ruling in the second motion. In the circumstances and on the facts of the two motions a ruling on the second motion will determine the fate of the 1st motion.

The ground of the 1st motion is stated in paragraph 3 of the supporting affidavit herein reproduced:

“That even though the appeals were filed within time on 3/1/08 and 17/1/08 respectively the errors contained therein were not discovered until now and I have been informed by David Obande Esq., Applicant’s Counsel whom I verily believe that leave of court is necessary to amend both processes hence this application.”

This was sworn to by one Esther Edet with the authority and consent of the applicant. On the other hand the second motion is predicated on the fact that:

“(i) The 1st respondent has unilaterally substituted the 3rd respondent on record, that is, Returning Officer, Itu/Ibiono Ibom Federal Constituency, with a none existent entity or person, Returning officer Itu/Ibionno Ibom LGA.

ii. The purported cross-appeal is incompetent and amount to abuse of Court process.”

In his oral argument learned lead counsel for the Respondent in the 1st motion and the applicant in the second motion relied on Order 19 Rule 5 of the Court of Appeal Rules 2007 and urges the Court to strike out the notice and grounds of cross-appeal as well as the brief of argument based on it. He urged the Court to strike out all processes relating to the cross-appeal. He said that the purported cross-appeal is incompetent and constitutes abuse of process of Court. He relied on the 9-paragraph affidavit in support of his motion. Counsel argued that one cannot substitute a juristic person with a non-juristic person or vice-versa. He relied on OBIKE INTERNATIONAL LTD. v. AJE ELECTRONIC LTD. (2005) 15 NWLR (Pt.948) 362 at 374, JUSTICE PARTY V. INEC (2006) ALL FWLR (Pt.339) 907 at 939. He urged the court to grant the application and dismiss the application for substitution or amendment seeking to replace a none existing entity with an existing entity or person.