Hon. Fabian Okpa V. Chief Alex Irek & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

The Appellant Hon. Fabian Okpa as Petitioner in the Tribunal contested election into the Obubra 1 State Constituency held on 26th April, 2011 and 28th April, 2011. The Respondent Chief Alex Irek of the Action Congress of Nigeria also contested and was returned as the winner of that election.

Being dissatisfied, the appellant presented this Petition on 19th May, 2011. After the full trial, the Tribunal delivered its considered judgment on 14th November, 2011 and dismissed the Petition.

Being aggrieved again, the appellant filed a notice and 6 grounds of appeal on the 3rd December, 2011. The Appellant also filed his Appellant’s brief on 14th December, 2011. Also filed on 21st December, 2011 is the Appellant’s Reply to the 1st Respondent’s Brief. The Appellant in his brief articulated 3 issues from the 6 grounds of Appeal as follows:

1. Whether the Tribunal was right in holding that unless a written statement on oath is accepted as an exhibit it does not constitute evidence even after adopting it as evidence.

(ground 2).

2. Whether the lower Tribunal was right in rejecting the evidence of the Appellant and his witnesses on the grounds that the written statement on oaths did not comply with section 13 of the Oaths Act. (grounds 1 & 5).
3. Whether if the answer to issue 2 is in the negative, the Pleading and evidence not being challenged or controverted, the Appellant was not entitled to judgment from the Tribunal, failing which the Court of Appeal by virtue of section 15 of the Court of Appeal Act is empowered to do so. (Grounds 3 & 4).

The 1st respondent’s brief was filed on 19th December, 2011 and adopted the 3 issues articulate by the Appellant. The 2nd Respondent filed its brief and deemed properly filed on 5th January, 2012 and also adopted the 3 issues articulated by the Appellant.

The learned counsel to the 1st Respondent withdrew his notice of Preliminary Objection filed on 5th January, 2012. There being no objection from the appellant and 2nd Respondent, the Preliminary Objection withdrawn was struck out. The Learned Counsel to the appellant Nta A. Nta adopted his brief and drew the court’s attention to a Preliminary Objection he filed challenging the competency of the 1st Respondent Brief having not been signed by an identifiable person known to law.

He argued this in his brief and cited P.M.B Vs. NDIC (2011) 12 NWLR pt 1261 page 253 at 261 and urged the court to follow that decision and strike out the 1st Respondent’s Brief. The 1st Respondent urged the court to discountenance this argument and hold that the 1st Respondent’s brief was signed by Ejike Ume a Legal practitioner in his chambers.

Without belaboring the point, the Supreme Court has held in a number of cases that a process filed in court must be signed by an identifiable person. See S. 2(1) of the Legal practitioners Act cap 207 LFN. Okafor vs. Nweke & Ors (2007) 10 NWLR pt 104 page 521 at 531-2.

In Ogundele vs. Agiri (2009) 18 NWLR pt 1173 page 219 the Supreme court held affirming Okafor vs. Nweke (supra) “that where a brief is not signed, it is not a mere irregularity but a fundamental error and such brief may he disregarded or discountenanced”

see SLB consortium vs. NNPC (2011) 3-4 MSJC page 145 where it was held as follows:

“What then is so important about the way counsel chooses to sign processes. Once it cannot be said who signed a process it is incurably bad; and Rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (ie the legal Practitioners Act) All processes filed in court are to he signed as follows:

“First, the signature of counsel which may be any contraption.

Secondly, the name of counsel clearly written.