Fabian Ekpenyong V. Action Congress Of Nigeria & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The 2nd Respondent in this appeal had filed this motion on the 2/4/12 seeking the following reliefs:-

a) Striking out Appellant’s brief of argument dated 25th October, 2011 and filed on same date for being incompetent.

b) striking out the appeal as it is incompetent.

c) For any order or further Order(s) as this Honourable Court may deem fit to make in the circumstances.

The grounds upon which the above reliefs were predicated are that:

“1) Appellants’ brief or argument was filed based on incomplete record of appeal.

2. Appellant’s brief of arguments concealed the fact that the 2nd Respondent had obtained the leave of the trial court to enter a conditional appearance and did raise the issue of jurisdiction before the trial court by notice of preliminary objection (see page 174 – 175 of the record).
3. Appellant’s reply brief dated 8th December, 2011 and filed on same date is predicated on incompetent brief of argument.
4. This Honourable Court lacks the jurisdiction to hear the appeal as it is incompetent.

The motion is supported by a 13 paragraphs affidavit deposed to by a litigation clerk in the chambers of the counsel for the Applicant/2nd Respondent, Miss Ekaette S. Edet, and to which was attached, a copy of a notice of dispatch of record of the appeal to the parties dated the 10/11/2011.

In reaction to the motion, the Appellant had deposed to a 15 paragraphs affidavit dated and filed on the 11/4/12 and pursuant to a directive by the court, learned counsel for the parties filed written addresses in the motion. The Applicant/2nd Respondent’s address was filed on 27/4/12, the Applicant’s address titled Appellant’s Reply to the 2nd Respondent’s address, was filed on the 4/5/12 and lastly, the 2nd Respondent/Applicant’s reply address was filed on the 7/5/12. The addresses were adopted by the learned counsel at the hearing of the motion in court on the 8/11/12, urging us to uphold their respective position in the motion.

As can easily be observed from the tenor of the prayers and grounds upon which they are premised, the motion is actually in the nature of a preliminary objection to the appeal, which by established judicial practice and requirements of Order 10, Rule 1 of the Court of Appeal Rules, 2011 under which the motion was brought, should have been in the form of just a notice of preliminary objection or it be incorporated in the 2nd Respondent’s brief of argument wherein it would be argued. By that known procedure, it is unnecessary and pure waste of previous time and resource to file a motion on notice which calls for the swearing of affidavit evidence, addresses by counsel and then ruling by the court before the appeal was even called for hearing. Preliminary objection/s is/are usually moved at the hearing of an appeal before the adoption of the parties briefs by the learned counsel for the parties in respect of the appeal, so that the court would in the determination of the appeal, decide the objection in its judgment. That is a more prudent, expeditious and convenient practice evolved by the courts for many years now to the knowledge of learned counsel. No matter in what position they find themselves in an appeal, counsel have a duty to employ established procedure in the conduct of the appeal which ensured expeditious disposal of such an appeal. After all, they are at all times officers of the court in all the appeals they prosecute or handle before the court.

Now the learned counsel for the Applicant/2nd Respondent has raised two (2) issues in the written address which he canvassed therein. They are:

“1. Whether in the light of the Supreme Court decisions in the cases of Ekpenyong v Edremola (2009) ALL FWLR (Pt. 473) 1220 and Olorunyolemi v Akhagbe (2010) ALL FWLR (Pt. 525) 246, the Appellant’s brief of argument based on incomplete record of appeal and nay the whole appeal before this honourable court is incompetent.

2. Whether this Honourable Court is seized of the jurisdiction to hear this appeal if the above is answered in the negative.”

The fulcrum of the submissions by him on the above issues briefly put, is that because the Appellant’s brief was filed before the 2nd Respondent’s additional record of the appeal were transmitted to the court, the said brief was based on incomplete record of the appeal and so according to him, the brief of the Appellant was incompetent. If the Appellant’s brief was incompetent, then learned counsel argued that the appeal is thereby rendered incompetent, thus robbing the court of the jurisdiction to hear it.

The cases set out in issue No. 1, which deal with the court hearing an appeal on incomplete record of appeal, were relied on, with reference to paragraph 6 of the Appellant’s counter-affidavit which was said to be an admission that the record of appeal was incomplete. The very famous case of Madukolu v Nkemdilim (1960) 2 SCNLR 341 was cited on when a court can exercise jurisdiction in a case.