Odey Oyama & Anor V. Agbiji Mbeh Agbiji & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment)

The Appellants and the 1st and 2nd Respondents had contested the election conducted by the 3rd Respondent on the 26-04-2011 for the Ikom One (1) State Constituency of Cross River State. At the end of polls, the 1st Respondent was declared and returned as the winner of the election and because the Appellants were dissatisfied with the return, they questioned the election by presenting the election petition No.EPT/CR/SA/15/2011 before the National and State Houses of Assembly Election Tribunal sitting at Calabar (to be called the Tribunal hereafter). The Tribunal at the end of trial of the Appellants’ petition dismissed it and it is against that decision that the Appellants brought the present appeal.

In line with the Tribunal and Court Practice Directions, 2011, learned Counsel for the parties filed their respective briefs of argument in support of their position in the appeal. The Appellants’ brief was filed on the 12-12-2011 while the 1st and 2nd Respondents’ briefs were filed on the 19-12-2011 in which each of them had argued a preliminary objection, notice of which was individually filed by them on the same date with their briefs of arguments. The fulcrum of the objection by the Respondents was that the Appellants’ brief of argument, was not signed by a known legal practitioner or a disclosed person. The 2nd Respondent’s brief was filed on the 19-12-2011. The Appellants’ Replies to the 1st and 3rd Respondents’ briefs were both filed on the 21-12-2011.

At the hearing of the appeal on 05-01-2012, the learned counsel for the 1st as well as for the 3rd Respondent adopted their arguments in supporting their objection as contained in their respective briefs. We were urged by them to uphold the objection and strike out the Appellants’ brief for being incompetent.

The learned Counsel for the Appellants adopted his Replies to the objection and urged us to overrule the objection for lacking in merit. Thereafter, the briefs of argument were adopted by the learned Counsel for the parties in respect of the appeal with each urging us to uphold his submissions on the issues submitted for determination on the appeal.

As required by the principles of law on the practice in the Court, I would deal with the objection first because it is capable of scuttling or aborting further proceedings in the appeal. In brief, the arguments of the Respondents in support of the objection are that even though there was an indication at the foot of the Appellants’ brief that it was prepared by Chief Okoi O. Obono-Obla of Obono Obono & Associates, the said Chief O. Obla did not sign the brief rather, according the Respondents, it was signed by an unknown person who purportedly or allegedly did so on his behalf by the use of the word “for”. That the person who signed the brief did not state his name as to show that he is a Legal Practitioners capable of signing a Court process and to that extent, the brief was not signed by a Legal Practitioner thereby rendering it incompetent. The case of P.M.B. LTD. V. N.D.I.C (II) 12 NWLR (1261) 261-2 said to have followed the earlier ease of OKAFOR V. NWEKE (2007) 10 NWLR (1043) 521 at 525-6, was relied on for the position, among other cases. Furthermore, relying on Order 10 of the Court Appeal Rules, 2011 and the cases of ALALE V. OLU (2000) FWLR (23) 1294 and KORODE VS. ADEDOKUN (2001) FWLR (65) 423, it was contended that the implication is that the Appellants have no brief of argument in the appeal which is therefore deemed abandoned. The learned Counsel for the 3rd Respondent had in addition, cited S.C.C. (NIG.) LTD. V. BKBNMA (2009) ALL FWLR (497) 53 at 78 and MOSES V. KENROW (1992) 7 NWLR (264) 207 at222 on the same submission.

On his part, the learned Counsel for the Appellants had argued in his Replies to the objection that there is no evidence adduced by the Respondents before the Court to show that the person who signed the Appellants’ brief was not a known Legal Practitioner or that the brief was not signed on behalf of Chief Obla Obono-Obono, by a Counsel in the firm of Obono-Obono & Associates. According to the learned Counsel, the Respondents had the duty to produce such evidence if it is their assertion that the brief was not signed by a known Legal Practitioner, citing Section 131(2) of the Evidence Act, 2011. It was his submission that the Respondents had failed to adduce the evidence to prove the assertion which could only be by affidavit to enable the Appellants to react to it. The case of OGUNSAKIN V. AJIDARA (2007) LRBCN 422 at 425 and 449-5 was relied on for the contention that once a document is signed on behalf of a principal Counsel in Chambers, unless the authority was subsequently disputed by him the document is competent.

The objection was said by the learned Counsel for the Appellants to be a niggling technicality to becloud the issues before the Court and reliance was placed on INBC V. OSHIOMOLE (2008) 3 LRECN 649 at 670. We were invited to apply the authorities in the above cases which are on election matters rather than the case of P.M.B. LTD. V. NDIC (supra) which was not and overrule the ground of objection. Let me state that the learned Counsel for the 1st Respondent whose objection was based on two grounds had at the hearing, abandoned the 2nd ground of the objection and it is unnecessary to consider argument on the abandoned ground contained in the brief and Replies.

It would appear to me from the Replies of the Appellants to the objection, that they are not disputing the fact that the Appellants brief was signed “for” O.O. Obla by someone or a person who did not state or clearly indicate his name or designation on the brief. In fact even a casual practical and physical look at the Appellants’ brief would indicate that in fact nobody at all signed or inscribed his signature or name as the person signing “for” O.O. Obla. All that is contained both on the face as well as the end of the Appellants’ brief at page 36 of 36 thereof was the inscription in blue biro or ink; “for O.O. Obla”.

The name and designation of the person who made the inscription was not stated or set out. It should be noted that the vital issue is not whether O.O. Obla on whose behalf or authority the inscription was made, was a known legal practitioner either known to the Respondents or in the Chambers of Obono-Obono &. Associates.

No, the objection as I understand it is saying that the person who signed the brief for O.O. Obla, a legal practitioner that may be known to the Respondents, did not himself state his name and whether or not he is a legal practitioner who is competent to settle and sign a brief of argument for use in an appeal before this Court.

Paragraphs 10 and 11 of the Election Tribunal and Court Practice Directions, 2011 which apply to this appeal provided that the Appellants shall file written brief of argument after receipt of the record of proceedings and that the brief may be settled by Counsel. The paragraphs are thus:

10. Within a period of 10 days after the service of the record of proceedings, the Appellant shall file in the Court, his written Brief of Argument in the appeal for service on the Respondents.

11 (a) The brief, which may be settled by Counsel, shall contain what are, in the Appellant’s view, the

issues arising in the appeal.