Barr. Robert Okwuego V. Barr. Greg Okemili & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Federal High Court, Owerri Judicial Division; presided over by Hon. Justice F.A. Olubanjo, delivered on the 6th day of June, 2011.

The 1st Respondent; Greg Okemili; who was the candidate of the All Progressive’s Grand Alliance (A.P.G.A) in the election conducted by the 2nd Respondent on the 26/4/2011. The Appellant was the candidate of the Peoples Democratic Party (P.D.P). The election was to fill the position of member representing Oru East State Constituency in the Imo State House of Assembly. The 1st Respondent had thereafter, approached the Federal High Court vide an Originating Summons dated the 25/5/2011, but filed the 24/5/2011, praying the Court to answer the following questions:

1. Whether on a proper interpretation of Sections 64 and 75 of the Electoral Act 2010, the Defendant having announced the result, and declared the Plaintiff winner, is not duty bound to issue the Plaintiff Certificate of return.
2. Whether the delay in issuance of the said Certificate does not constitute neglect and requires an order of this Honourable Court to enable the swearing in of the Plaintiff as member representing Oru East State Constituency in the Imo State House of Assembly.

The Plaintiff/1st Respondent then prayed that if those questions are answered in the affirmative, the Court below should make:-

1. A Declaration that the inability of Defendant to have issued the Plaintiff with a certificate of return having signed, announced and issued the result since 26th April, 2011 constitutes a refusal or neglect.
2. An order that the Plaintiff is entitled to issuance of certificate of return.
3. An order directing the Defendant to issue the Plaintiff with the said Certificate of return having scored the highest number of votes and announced the winner by the returning officer since 26th day of April, 2011.

The Summons was originally issued against the 2nd Respondent (INEC) alone. Filed along with the Originating Summons was an Ex-parte Motion dated the 20/5/2011 and filed 24/5/2011, wherein, the 1st Respondent prayed, inter alia, for an order abridging the time for the hearing of the originating summons. There is nothing on the record of appeal to show that the said Ex-parte Motion was moved nor is there anything to show that it was granted.

What the record shows is that, the matter was fixed for the 02/6/2011 but the learned trial judge of the Court below did not sit. The record however shows that, the 1st Respondent wrote a letter to the Court below, requesting that his matter be heard on the 06/6/2011 (the very day the letter was written) instead of the next adjourned date, which was the 07/6/2011. The Learned trial judge acceded to the request of the 1st Respondent, and proceeded to hear and determine the matter that same day; i.e. 06/06/2011, in which he granted all the reliefs sought by the 1st Respondent.

The Appellant’s case is that, he had filed a Motion on Notice dated the 01/6/2011 and filed the same day, in which he sought the order of the Court below, to be joined as a defendant in the Suit. It is apparent on the record that the trial Court did not consider the Motion of the Appellant before it hurriedly heard and delivered judgment in the matter, on the pre that the Appellant’s Motion was not brought to the notice of the learned trial judge before he heard and determined the matter. The Appellant felt aggrieved by the action of the learned trial Judge and decided to appeal to this Court.

I wish to observe that this appeal was initially heard on the 25/2/2013 and judgment therein reserved. In the process of writing the judgment, I found myself in a dilemma, as to whether or not the Notice of Appeal filed on the 03/5/2012 is competent. In the circumstances, parties had to be invited to address us on the competence or otherwise of the said Notice of Appeal. The parties did appear before us whereof we directed the parties to file affidavits in respect thereof, since the issue bordered substantially on facts. The Appellant filed his affidavit dated the 15/4/2013 and filed the same day; while the 1st Respondent filed a Counter-Affidavit dated and filed the 22/4/2013. Upon a careful reading of the affidavits of the Appellant and the 1st Respondent, it is established that.

1. Upon delivery of judgment in the Suit by the Court below on the 06/6/2011, the Appellant herein, filed a Notice of Appeal on the 09/6/2011 which was given Appeal No.CA/OW/195/2011.
2. Realising that the said Notice of Appeal was incompetent, the Appellant filed a Motion on Notice dated the 26/10/2011 and filed the 31/10/2011, wherein he sought for leave to appeal as a party interested or having interest in the matter. This fact is supported by paragraphs 1, 2, 3, 4 and 5 of the 1st Respondent’s Counter Affidavit.
3. The motion seeking for leave to appeal and for extension of time to appeal filed on the 31/10/2011 was however withdrawn and consequently struck out on the 24/01/2012. See paragraph 6 of the Counter Affidavit filed by the 1st Respondent.

It would be seen therefore as found above, the Notice of Appeal with Appeal No: CA/OW/195/2011, was from it’s inception incompetent, which then informed the filing of the Motion of 31/10/2011, seeking for leave to appeal and for extension of time to appeal. Appeal No.CA/OW/195/2011 could be described as having died on arrival and no amount of medication or resuscitation effort could have revived it. This is so because, it is the law that a Notice of Appeal is the very foundation of an appeal. The competence or otherwise of the Notice of Appeal therefore touches on the jurisdiction of the appellate court, because, if no proper Notice of Appeal is filed, it would mean that there is no appeal for the Court to entertain. See F.B.N. PLC v T.S.A IND. LTD (2010) 15 NWLR (Pt. 1216) p.247.

Flowing from the above observation, where leave is required to file a Notice of Appeal, but no such leave is obtained before the Notice of Appeal, is filed, such Notice of Appeal would be a nullity, and no leave of Court can be granted thereafter to file such Notice of Appeal already filed without leave. To do that would be like putting the cart before the horse. In other words, where Notice of Appeal is incompetent, no process can validly be hanged or founded on it. It is incurably defective, invalid and therefore incompetent. It would be considered as if it was never filed. See GENERAL ELECTRIC CO. v AKANDE (2010) 18 NWLR (Pt.1225) p.596; N.W.D.M. LTD. v. UFT ENGR. LTD (2011) 8 NWLR (Pt. 1249) p.308 at 327 and WILLIAMS v IBEJIAKO (2008) 15 NWLR (Pt.1110) p.367. It follows that, if a Notice of Appeal is invalid, it would mean that there is no valid appeal pending before the Court, and accordingly, no application for leave will validate such incompetent or invalid Notice of Appeal. One cannot put something on nothing and expect it to stand. See ASHCO NIG. LTD v. WARD and GREEN (2010) 3 NWLR (Pt. 1181) p.302. Applying the above stated principle, it would mean that Appeal No: CA/OW/195/2011, filed without leave of Court, was incompetent and therefore invalid. Consequently, the motion seeking for leave to appeal filed on the 24/2/2012 could not have been instituted to validate it. No wonder, an earlier application filed to validate same was withdrawn and struck out. It is therefore my firm view that, the motion filed the 24/2/2012 could not have been and was not meant to validate the incompetent and invalid Notice of Appeal which was given Appeal No: CA/OW/195/2011. That the order of Court made the 24/4/2012 referred to Appeal No: CA/OW/195/2011 is of no moment as the following facts as deposed to in the affidavits of the parties would show. Those affidavits disclose that:-

(a) The motion which gave rise to the Order of 24/4/2012 was given No: CA/OW/41M/2012 as the Appeal Number. See paragraphs 3 and 4 of the Appellant’s affidavit. However, the same motion was given No: CA/OW/46M/2012 in respect of the 1st Respondent as shown at paras. 5, 6 and 7 of the Appellant’s affidavit, and paras. 9, 11 and 12 of the 1st Respondent’s affidavit.

(b) It is clear from the affidavits of the parties that, the motion of 24/2/2012 did not specifically refer to Appeal No: CA/OW/195/2011. Though the motion was filed by the Registry in the file in respect of Appeal No: CA/OW/195/2011, I have already held that, it could not have been meant to validate such appeal which was incompetent.

(c) I also find that the filing of the said motion of 24/2/2012 in Appeal No: CA/OW/195/2011 by the Court Registry, was in error, which further led to the error on the face of the order of the Court made on the 24/4/2012.

(d) I therefore find that, Appeal No: CA/OW/123/2012 filed on the 03/5/2012 was filed in reaction to or consequent upon the order of 24/2/2012. This can be clearly seen on the preamble to the said Notice of Appeal.