Nze (Dr) C.O. Maduako V. Federal Republic Of Nigeria (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Lead Ruling)

This application filed on the 27/3/09 prays for orders from the Court as follows:-

“(1) Of interlocutory injunction restraining Okey Uzoho Esq, from appearing as a Counsel in this appeal pending the determination by this Court of his status as Counsel in charge No. FCT/HC/CR/18/2006.

(2) Striking out the undated motion No. CA/A/216C/M/08 filed by Okey Uzoho Esq. on the ground that the motion is incompetent and an abuse of process of this Court,

(3) And for such order of further orders as this Honourable Court may deem fit to give in the circumstance.”

It is supported by a 45 paragraphs affidavit sworn to by Nkem Okoro, a legal practitioner in the chambers of T. Onwugbufor, SAN & Co. and Counsel handling the defence of the Applicant in the charge before the FCT High Court from which the appeal before this Court emanated. There are copies of several documents annexed to the affidavit and marked as Exhibits A-W and Y. A further affidavit in reply to the Respondent’s 2nd Counter affidavit was also filed on the 2/6/09 for the Applicant.

For the Respondent, a counter affidavit deposed to by Ugochukwu Epuchie, a legal practitioner in the chambers of Okey Uzoho & Co., was filed on the 2/4/09 and it has attached to it, copies of documents marked as Exhibits FRN 1, 2 and 3, 3A and 38. In addition, Respondent’s 2nd and 3rd counter affidavits were filed 5/5/09 and 12/6/09 respectively in opposition to the application.

Pursuant to the Court’s order, written addresses were filed and exchanged by the learned Counsel for the parties to the application. The Applicant’s address was filed on the 20/4/09 while that for the Respondent was filed on 5/5/09. The Applicant’s Reply address was filed 2/6/09 and all the addresses were adopted at the oral hearing of the application in court on the 30/11/10 by learned Counsel as their respective submissions in support of their positions which we were urged to uphold.

The learned Senior Counsel Tochukwu Onwugbufor settled the Applicant’s address at page 3 of which he raised two (2) issues for determination in the application. They are:-

“1. Whether Okey Uzoho Esq., qua Okey Uzoho Esq., is competent to appear as the prosecuting counsel in this appeal on behalf of the Attorney General of the Federation pursuant to Exh. C1 i.e. the letter from the Attorney General authorizing Okey Uzoho Esq. to appear and represent him in this matter.

2. Whether the appearance of Okey Uzoho Esq. to prosecute this matter/appeal will not amount to persecution instead of prosecution having regard to the ingrained malice, hatred, passion and atavism existing between Okey Uzoho Esq. and the accused/appellant arising from the petitions of accused/applicant against Okey Uzoho Esq. and the libel suit instituted by Okey Uzoho Esq. against the accused/appellant”

The Respondent’s address was prepared and signed by Okey Uzoho, Esq. the learned Counsel whose competence to appear in the case before the High court and the appeal before this court is being challenged. On his part, he formulated a single issue for determination in this application in the following terms:-

“Whether, given the circumstances of this Appeal, Okey Uzoho Esq. should be barred from arguing this Appeal on behalf of the Respondent.”

From the facts of the application the brief of which is that Okey Uzoho does not have the authority of the Federal Attorney General to represent the Respondent and prosecute the Applicant in charge before the High Court, the crucial issue in the application which calls for determination is in the terms of Applicant’s issue 1 and the Respondent’s sole issue. Put shortly, the germane issue that requires determination in the application is whether or not on the affidavit evidence before the Court, Okey Uzoho is competent to represent the Respondent at the trial of the Applicant before the High Court.

Both learned Counsel for the parties are therefore one on the vital question that arises for decision in the application, their style of formulation notwithstanding.