It is not a shame to be deceived; but it is to stay in the deception. Barrister Julius Abure at best can be best described as a demon of deception

 It is not a shame to be deceived; but it is to stay in the deception.

Barrister Julius Abure at best can be best described as a demon of deception

PART 4

Athan Achonu vs Labour party 

Owerri appeal court judgement 

JUMMAI HANNATU SANKEY- PRISIDING JUSTICE COURT OF APPEAL

SAMUEL ADEMOLA BOLA

JUSTICE, COURT OF APPEAL

M. L. ABUBAKAR

JUSTICE, COURT OF APPEAL

BETWEEN:

AND:

SENATOR ATHAN ACHONU

1

2.

IN THE COURT OF APPEAL OF NIGERIA

OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

ON FRIDAY THE 21$T DAY OF JULY, 2023

BEFORE THEIR LORDSHIPS:

3

4.

SIR BASIL MADUKA

LABOUR PARTY (LP)

APPEAL NO. CA/OW/187/2023

INDEPENDENT NATIONAL ELECTORAL

COMMISSION (INEC)

CHIEF UKAEGBU IKECHUKWU JOSEPH

APPELLANT

RESPONDENTS

RULING CERTIFIED TRUE COPY

(DELIVERED BY SAMUEL ADEMOLA BOLA, JCA)

By a Motion on Notice brought pursuant to Sections 36(1), 243(1) (a-b) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 24 of the Court of Appeal Act, 2004

Order 6 Rules 1, 2, 4 and 5 of the Court of Appeal Rules 2021 and the Inherent jurisdiction of this Court, the Applicant sought the Leave of this Court to appeal against the judgment of the Federal High

Court, Owerri delivered by Honourable Justice B. O. Quadri in Suit No. FHC/OW/CS/28/2023: Sir Basil Maduka V. Labour Party & 2 Ors.on the 23rd day of June, 2023 as a person having interest in the matter. The Applicant equally sought an Order deeming the

Applicant's Notice of Appeal already filed differently as having been duly filed. This is in addition to the relief seeking to rely on the Record of Appeal compiled by other Appellants in a different Appeal.

The application was predicated on eleven (11) Grounds articulated on the Motion on Notice. In support of the application is a 23 paragraph affidavit. Attached as exhibits are six documents marked Exhibits A, B, C, D, E and F respectively. The Applicant equally filed

a Written address alongside the Motion on Notice. Exhibits F is the Notice of Appeal filed on 6th of July 2023.

ISSUES RAISED FOR CONSIDERATION AND SUBMISSIONS OF COUNSEL TO THE PARTIES

Against the backdrop of the fact that the judgment sought to be appealed against by the Applicant was delivered on 23rd June, 2023 by the lower Court and taking cognizance that the Motion on Notice

for Leave to Appeal was filed on 11th July 2023 after the Notice of Appeal had been filed and Paragraph 6(2) and 13 of the Election Judicial Proceeding Practice Direction 2023 the questions were

raised.

CERTIFIED TRUE COPY

(1) Whether the Motion on Notice for

Leave to file the Appeal was not

statute barred.

ORAL

(2) If the answer to the above is in the

affirmative whether this Court has the

requisite jurisdiction to consider the

application and determine same on its

merit. Sequel to the above, both the Applicant and Respondent's Counsel

presented their respective oral submissions in line with the above

and other issues related to the main issues formulated. It was the submission of the Counsel to the Applicant Ihejiagwa Esq that paragraphs 6(2) and 13 of the Practice Direction were to ensure that the appeal was filed within 14 days. That the Applicant filed the Notice of Appeal within 14 days on 6/7/2023 as revealed on page 233 of the Record of Appeal, thus satisfying the basic requirement of the Rules. Counsel further submitted that the Motion before the Court was for Leave to file an appeal as an interested party and prayer 2 of the Motion on Notice was to reqularize the Notice of Appeal that had been filed. Counsel arqued that this Court had the jurisdiction to hear the motion having filed the Notice of Appeal within time:

Arguing on behalf of the 2nd and 3rd Respondents Gregg Anyanwu Esq submitted that by the combined effect of Section 243, 248, 285 of the Constitution (Supra) and Section 140 of the Electoral Act 2022, the Practice Direction had the force of law. That by paragraph 6(2)

of the Practice Direction, all appeals shall be completed within 14 days of the delivery of the judgment. Paragraph 13 of the Practice Direction stipulated that there shall be no extension of time.

It was further submitted that for an interested party to join as an interested party in an appeal, he must first seek and obtain the Leave of the Court, citing the case Assam V. Ararume (2016) 1 NWLR

(Pt. 1493) 367 at 387-388. That the jurisdiction of the appelate could not be invoked after the Applicant had filed the Notice of Appeal and after 14 days stipulated for the filing of the Notice of

Appeal. I. C. Onukwe of Counsel for the 1st Respondent adopted the submission of Gregg Anyanwu. He submitted that the Motion on Notice was filed 19 days from the date of the judgment of the lower Court thereby rendering the Application incompetent against the

background of paragraph 6(2) of the Practice Direction which incompetence deprives this Court of the jurisdiction to entertain the Motion on Notice. He referred to Order 6 Rule 4 of the Court of

Appeal Rules which requires Leave being made to this Court first, that failure to present the application within time renders the application incompetent and the Court lacking jurisdiction in the

circumstance. He emphasized that the Notice of Appeal had to be filed after Leave had been granted. That failure to do so render the Notice of Appeal incompetent, a nullity and robs the Court of jurisdiction in the circumstance. Counsel urqed the Court to strike out

the Motion. Responding the Applicant's Counsel Ihejiagwa submitted that the

case of Assam V. Araraume was inapplicable to the present application. He urged the Court to accord the Applicant fair hearing.

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The starting point is to consider Section 243(1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides thus:

"243. (1) Any right of appeal to the Court ofAppeal from the decisions of the Federal High Court or a High Court conferred by the Constitution shall be-

(a)exercisable in the case of Civil

Proceedings at the instance of a party

thereto, or with the Leave of the Federal High Court, or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter s*.*...

The above provision came under consideration in the case Assams

V. Ararume (2016) 1 NWLR (Part 1493) 368 at 387 where Rhodes - Vivour JSC held that by Section 243(1) (a) of the 1999 Constitution any right of appeal to the Court of Appeal from the decision of the Federal High Court or High Court shall be exercisable in Civil Proceedings at the instance of the party thereto or with the Leave of the High Court, Federal High Court or the Court of Appeal

at the instance of the person having an interest in the matter. It flows from this background that the leave of the lower court or the Court of Appeal is a condition, a pre-requisite to ground for the filing of an appeal by an interested party. Leave of Court must be sought and obtained by the party interested before filing the Notice of Appeal. It

is the Leave of Court that will give life to the Notice of Appeal. Leave first sought and obtained before filing the Notice of Appeal is indispensable for valid notice. Any application for Leave after filing

the Notice of Appeal is to say in the common parlance "putting the Cart before the horse". It renders such Notice of Appeal incompetent.

It is settled that Leave of Court where it is required is a condition precedent to the exercise of the right of appeal. Failure to obtain such Leave will render any appeal filed incompetent as no jurisdiction can be conferred on the appellant Court. The appeal is liable to be struck out. See Emokpae V. Stanbic TBTC Pension Managers Ltd. (2021) 7 NWLR (Pt. 1776) 465 at 474: Fort Royal Home Ltd. V. EFCC (2021) 8 NWLR (Pt. 1998) 312 at 324- 325. Bestrman V, Whyte (2020) 6 NWLR (Pt. 1719) 136 at 153. Without mincing words, the failure to obtain Leave to file an appeal by an interested party prior to the filing of its Notice of Appeal undoubtedly, renders the Notice of Appeal defective and incompetent since the Leave of the lower Court or the Court of Appeal should precede the Notice of Appeal. In the case in our hand, the Applicant

failed to seek the Leave of the lower Court or this Court before filing the Notice of Appeal. The Notice of Appeal filed by the Applicant on 6/7/2023 in therefore incompetent in the circumstance.

A competent Notice of Appeal is the foundation of an appeal. It is the Court's process that initiates an appeal. Any defect in a Notice of Appeal goes to the jurisdiction of the appeal court which must of necessity strike it out. The absence of a competent Notice of Appeal means the non-existence of the appeal because a competent Notice

of Appeal is a valid exercise of appellate jurisdiction. See FRV. DAIRO(2015) 6 NWLR (Pt. 1454) 141 at 166. Any appeal

initiated without complying with the provision of Section 243(1) (a) of the Constitution (Supra) will be incompetent and this Court lack the jurisdiction to entertain it. See Anyanwu V. Ohaeri (2015) LPELR 24573 (CA), Where Leave is required, failure to obtain it is fatal to the appeal. Leave is a condition precedent to the exercise of jurisdiction by the Court of Appeal. Consequently, the failure of the Applicant to obtain the Leave of the Court, contrary to the provisions of the Constitution that is Section 243(1) (a) renders the Notice of Appeal filed by the Applicant on

6/7/2023 incompetent. The Leave is mandatory before filing the Notice of Appeal. The incompetent Appeal deprives this Court to entertain all the processes filed by the Applicant having failed to first obtain the Leave of Court. This include the instant application.

Having ruled that the Notice of Appeal filed by the Applicant on 6/7/2023 is incompetent for failure to obtain Leave before filing, it is conclusive that there is no Notice of Appeal that has been filed by the Applicant. By extention, the Applicant has defaulted in filing an

appeal against the judgment of the lower Court delivered on 23/6/2023. In other words, the Applicant has failed to file his appeal within 14 days from 23/6/2023 when the judgment was delivered uptill when the Motion on Notice was filed on 11/7/2023 and even uptill the time the Motion was fixed for hearing. This is an infraction of the provision of Paragraph 6(2) of the Practice Direction which

provides for the time framne of 14 days within which to file the Notice of Appeal from when the judgment was delivered. Suffice to say, the Motion for Leave is caught by the Cobweb of Paragraph 6(2) of the Practice Direction and it is therefore Statute barred. By reason of this, Court lacks the jurisdiction to entertain all processes filed towards

the regularization of the defective and invalid Notice of Appeal including the Motion on Notice. The Motion on Notice filed by the Applicant on 11th July 2023 is accordingly struck out.

HON. JUSTICE SAMUEL ADEMOLA BOLA

JUSTICE, COURT OF APPEAL

APPEARANCES:

Calistus Ihejiagwa for the Appellant.

I. C. Onwukwe for the 1st Respondents.

Greg Anyanwu for the 2nd and 4th Respondents.

No Counsel appears for the 3rd Respondent.

RUE COP2

CERTIPNA. O.

AKA

PPEAL

coURTRAPPE

OWERRI DViSION

APPEAL NO. CA/OWI187MI2023

JUMMAI HANNATU SANKEY, J.C.A.

I have been availed a draft copy of the Ruling of my learned brother, Ademola Bola, J.C.A. I am in total agreement with his reasoning and conclusion. I will however add a few words in furtherance to this agreement.

At the hearing of the Motion on Notice filed by the Applicant on 20-07-

23, this Court suO moturaised the issue of the jurisdiction of the Court to hear and determine same, and invited all Counsel representing the respective parties to address it on the issue. This is because it is trite law that jurisdiction of a Court is a threshold issue which must be thrashed out and determined instantly. The reason is not far-fetched.

It is because jurisdiction is the live-wire of every suit, without which a Court is without any basis to proceed. From the face of the Applicant's Motion on notice filed on 11 July, 2023, the Applicant invokes the provision of Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), among other provisions of the Constitution and the Electoral Act, as to file an appeal an interested party, against the Judgment of the Federal High Court, Owerri delivered on 23 June, 2023. The provision states as follows:

"243. (1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court, National Industrial Court ora High Court conferred by this Constitution shall be-

(a) exercisable in the case of civil proceedings at the instance of

a party thereto, or with the leave of the Federal High Court or

High Court or the Court of Appeal at the instance of any other party having an interest in the matter..." Sections 241(1) and 242(1) of the Constitution (supra) provide for the right of appeal from the High Court, Federal High Court and other

Courts specified in Section 240 of the Constitution, to this Court either as of right or by the leave of Court. By Section 243(1) (a) of the Constitution (supra), such a right of appeal is exercisable in civil proceedings at the instance of a party to the case or, with the leave of

Court at the instance of any other person having an interest in the matter. Before such leave can be granted however, an applicant must not only show that he is a person interested in the matter, but also that the order, decision or Judgment of the lower Court prejudicially affects

his interest. Thus, for a person who was not a party to a civil suit or matter to be able to exercise a right of appeal in the matter, he must first obtain the leave of Court in order to appeal as a person having an interest. In other words, by virtue of Section 243(1) of the Constitution, a right of appeal only inures to an appellant upon leave or permission

of the Court. The prior application for leave and its grant by the Court amounts to a condition precedent to the validity or competence of the appeal. It is this Constitutional requirement for leave of Court being sought and obtained prior to the filing of the appeal that confers

jurisdiction on the appellate Court to entertain the appeal. Thus, a Notice of Appeal filed without the leave of Court is incompetent. It is a nullity and there is no effect to the appeal. It therefore follows that pursuant to the provision of Section 243(1) of the Constitution, an appeal filed without the requisite leave of Court in law, robs the Court of Appeal of the jurisdiction to entertain and determine the appeal - Ukpong V Commissioner of Finance (2006) 19 NWLR (Pt. 1013) 183.

In respect of the instant application which is placed before the Court, it is not disputed that the Applicant herein did not seek or obtain the leave of Court before purporting to file a Notice of Appeal at the lower Court on 6 July, 2023, thus falling afoul of the mandatory requirement for leave in Section 243(1) of the Constitution (supra). Having so found, Paragraph 6(2) of the Election Judicial Proceedings Practice Directions (EJPPD), 2023, provides that- "6(2) In pre-election matters, the Appellant shall file in the Registry of the lower Court his Notice of Appeal within 14 days from the date of the delivery of the Judgment appealed against." In addition, Paragraph 13 of the EJPPD (supra) provides -

"No time specified in these Rules shall be extended by the Court."

The Notice of Appeal relied on by the Applicant was filed at the lower Court on 6 July, 2023 (see pages 233-240 of the Record of Appeal), without the requisite leave of Court having been sought and obtained. Without any quibbling, this purported Notice of Appeal is incompetent. Thus, it is incontestable that the purported Notice of Appeal of 6 July, 2023 was filed without the requisite leave of Court. It is therefore incompetent. Consequently, it amounts to nothing but a fallacy and a complete misconception for the Applicant to contend that by the Notice of Appeal filed on 6 July 2023, he filed his Notice of Appeal within 14 days from the date of the delivery of the Judgment of the

3 CA/OWI187MI2023- Contribution by Sankey, JCA. lower Court, as required by Paragraph 6(2) of the Election Judicial

Proceedings Practice Directions, 2023.

Indeed, it is evidently because the Applicant was acutely aware of this

fundamental defect in the Notice of Appeal that he went on to file the extant application sought to be moved, ostensibly to seek the leave of this Court to file the appeal. This is both belated and after the fact because the application of 11 July, 2023 was filed outside the 14 days prescribed by the EJPPD. As such, it is not incompetent. This action by the Applicant can best be described in colloquial English as

"Putting the cart before the horse"; or "Locking the barn after the horse has bolted" The law is now settled that proceedings of this nature, to wit: pre-

election matters, election matters and election-related matters, are sui generis. They are time-bound constitutionally, and therefore such time lines as circumscribed and limited by the Constitution, Statutes, Rules and Practice Directions, must be strictly adhered to. Like the Rock of Gibraltar and Mount Zion, the time periods cannot be moved or extended or enlarged. They are static. For emphasis, better understanding and impact, it would serve us better to set out the pronouncement of the Supreme Court jpssisima verba. In considering the time limited for the determination of election

matters in Section 285 of the Constitution in the case of ANPP V Goni

(2012) LPELR-783o(SC) (Consolidated) 31-33, A-C, Onnoghen JSC (later CJN) expressed the law in these enduring words, where he intoned as follows:

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CA/OWI187M/2023-Contribution by Sankey, JCA.

".. It has been held by this Court in a number of cases... that the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within the time so fixed, it lapses

as the Court is thereby robbed of the jurisdiction to continue to entertain the matter." (Emphasis supplied) As the apex Court went on to observe, the law may be harsh and severe, but it is the law, and it must be obeyed to the letter. This

applies mutatis mutandis to statutes, as well as to Rules of Court and Practice Directions which are made in pursuance of the provisions of the Constitution. See also Orpin V Shawon (2019) LPELR-47691 (CA) 23-29, B-C; Engr. Ugochukwu Chukwukelu V APGA & 2 others

(Unreported) Appeal No. CAIAWI388/2022, Judgment delivered on 2nd February 2023, pages 19-20, per Sankey, JCA. Thus, in election related matters such as pre-election matters, election petitions and appeals arising therefrom, time is of the real essence and thus being suigeneris, there is no extension of time lines as prescribed either by the 1999 Constitution (Fourth Alteration) or the Electoral Act, 2022 or the Election Judicial Practice Directions, 2023 or the Federal High Court Practice Directions, 2022. Due to the sui generis nature of pre-election matters, time is of the essence. Therefore, everything that needs to be done leading up to

the filing of the appeal, must be done andlor undertaken within a period of 14 days as prescribed by the Practice Directions, 2023 and not outside it. For the sake of emphasis, the Judgment of the Federal High Court was delivered on 23 June, 2023, while the application

placed before this Court for leave to appeal was filed on 11 July, 2023.

This is a total of 19 days from the date of the delivery of the Judgment. Thus, the Applicant having failed to comply with Paragraph 6(2) of the Practice Directions, 2023 this Court is robbed of jurisdiction to entertain the application. This omission and/ or defect is fundamental and has vitiated the Notice of Appeal filed at the lower Court on 6 July, 2023.The importance of jurisdiction in any adjudication cannot be over-

emphasized. As has been described, it is the live-wire of the adjudication process. Without jurisdiction, every step taken in the process is a nullity, no matter how well conducted andlor how erudite the decision emanating there from may be. See Ogbuji V Amadi (2022) LPELR-56591 (SC) 12-13, D-C, per Kekere-Ekun, JS.

Accordingly, it is for these reasons and the further reasons aptly captured in the lead Ruling, that I find that this Court is bereft of jurisdiction to hear and entertain the application seeking leave to file an appeal as an interested party, which was filed by the Applicant on

11 July, 2023. The application is incompetent and I also strike it out.

JUMMAI HANNATU SANKEY,

JUSTICE, COURT OF APPEAL.

APPEAL NO: CA/OW/187M/2023

DELIVERED BY MOHAMMED LAWAL ABUBAKAR, JCA

I have the privileged to read a draft Ruling just delivered by my learned brother, SAMUEL A. BOLA, JCA.

I am in agreement with his lordship.

The principle which guide a court in determining if it has jurisdiction are:-

1. That the subject matter of the case is within its jurisdiction.

2. That there is no feature in the case which prevents the court from exercising its jurisdiction, and that

3. That the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.

See MADUKOLU V. NDEMDILIM (1962)2 SC NLR P. 341

Per B. Rhodes-Vivour, JSC at 989, See N.N.P.C. V. SELE

(2013) N.S. C.Q.R. Vol. 53.3 Per B. Rhodes- Vivor JSC at Pg.990.

On effect of non-compliance with the Rules guiding filing of appeal. It is settled law that an Appeal filed in flagrant disregard of the provisions of the constitution or stature regulating the exercise of the right of Appeal is an expression of insubordination to the law

and an illegality. The illegality in the exercise of the right of Appeal readers the Appeal a nulity. It is irredeemably incompetent. The court among other thing, is competent, if the matter before it is initiated by due process of law, and upon fulfilment of any condition

precedent to the exercise of its jurisdiction. See SANNI V. THE

PEOPLE OF LAGOSSTATE (2022)4 NWLRS at Pg. 399 Ratios

3 and 4, The Apex Court and this Court has held on number of occasions

that a Court, be it a trial or appellate court, has a duty to put an end to proceedings before it on discovery that it lacks jurisdiction. If it turns out that it has no jurisdiction, all proceedings before it, whatever the merit of the case, are a nulity. See F.CM.B V. ABIOLA& SONS (1991)1 NWLR Pt. 165 Ratios 4, 5 & 6. A careful perusal of the present Application at hand would reveal that it is not initiated by due process of Law, as leave at the Court was not obtained first within the prescribed 14 days as stipulated by paragraph 6(2) & (13) of the Election Judicial Proceeding Practice Direction 2023. The Application lack merit and I also struck it out.

MUHAMMED LAWAL ABUBAKAR

JUSTICE, COURT OF APPEAL

OF AFPE

21 JUL 2023

WERRI Di

REVEN TON

CERTIFIED TRUE COP

STAY TUNED FOR PART 5