Chukwudi Apugo & Anor V. Hon. Barr. Chidiebere Nwoke & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Lead Ruling)

In the main appeal in this case, the petitioner/appellant – Chukwudi Apugo filed a Notice of Appeal dated 10/3/08 against the respondents, that is Chidiebere Nwoke and others. The appeal is a complaint against the judgment of the Governorship/Legislative Houses Election Tribunal which sat at Umuahia in which the 1st respondent was affirmed as the winner of the Umuahia East Constituency House of Assembly election which held on 14th April, 2007.

The petitioner’s/appellant’s petition was dismissed by the lower tribunal on the ground of his failure to join the Electoral Collation Officers which was considered fatal to the petition.

In the process of exchange of briefs before this Honourable Court sitting at Port Harcourt, learned counsel for the appellant brought an application dated 31st October, 2008 and filed on 3/11/08 by way of Motion on Notice praying for an order of the court to wit:

“1. An order granting leave to the appellants/applicants to amend the Notice and Grounds of Appeal dated and filed 10th March, 2008, by adding the new ground one of the amended notice and grounds of appeal annexed herewith as Exhibit ‘A’.

2. An order deeming the amended notice and grounds of appeal as properly filed and served subject to payment of requisite filing fees.
3. An order granting leave to appellants/applicants to amend the appellants’ briefs of argument dated 25th April, 2008, annexed herewith as Exhibit ‘B’ by incorporating thereto the arguments in support of the new ground one of the amended notice of appeal.
4. An order deeming the amended appellants’ briefs of argument as properly filed and served subject to payment of the requisite filing fees.
5. Such further order(s) as the court may deem expedient to make.”

The appellants’ application which was brought pursuant to Order 6 Rule 15, Order 7 Rule 1 of the Court of Appeal Rules, 2007 was predicated thus:

“Take Notice that the ground of this application is that the Honourable Tribunal altered the effect of its own ruling dated 14th September, 2007, dismissing the application to strike out the petition in limine for non-joinder of necessary parties by turning around in the same proceeding to dismiss the petition for non-joinder of parties.”

The said application was supported by a 13 paragraph affidavit deposed to by the 1st appellant/applicant, Mr. Chukwudi Apugo and also by a further affidavit deposed to by one William Ekeleme. From the record of proceedings, the following documents were attached to the appellants’/applicants’ Motion on Notice:

(i) Amended Notice of Appeal (Exhibit A)

(ii) 1st Appellant’s Amended Brief of Argument (Exhibit B)

(iii) 2nd Appellant’s Amended Brief of Argument (Exhibit C)

In the Court of Appeal (sitting at Port Harcourt) the appellants’ application was vehemently opposed by the 1st respondent (now applicant in this court). Amongst the grounds of incompetence levied on the appellants’ application are:

“(i) That the application is an abuse of court process.

(ii) That the 2nd appellant, Peoples Democratic Party (PDP) did not file any appellants’ brief and thus is not a party to the pending appeal.