IN THE COURT OF APPEAL OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

APPEAL NUMBER_____________________
SUIT NUMBER: SUIT NO: E/682/ 2023

BETWEEN:
ACTION ALLIANCE ::: APPELLANT

AND

ENUGU STATE INDEPENDENT ELECTORAL COMMISSION ::: RESPONDENT

NOTICE OF APPEAL
TAKE NOTICE that the Appellant being dissatisfied with the decision of the
High Court of Enugu State, Enugu Judicial Division, presided over by His
Lordship, the Hon. Justice C. O. Ajah, PhD, in the case of Action Alliance v.
Enugu State Independent Electoral Commission with suit number E/682/2023
and delivered on the 1st day of December 2023, doth hereby appeal to the Court
of Appeal, Enugu Judicial Division, upon the grounds set out in paragraph 3 and
will at the hearing seek the reliefs set out in paragraph 4.

AND FURTHER TAKE NOTICE that the names and addresses of persons
likely to be affected by the appeal are set out in paragraph 5.

2. PART OF THE DECISION COMPLAINED ABOUT

That part of the decision where the learned trial Court held as follows, to wit:

a. that the processes filed by the Respondent’s lawyers in opposition to the

case of the Appellant are properly signed and filed;

b. that the lawyers who represented the Respondent in the prosecution of the
suit before the lower Court, are legally qualified to represent the
Respondent; and

c. that the electronic transmission of election result is not mandatory on the

Respondent, in the conduct of local government council election by the
Respondent in Enugu State.

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 3. GROUNDS OF APPEAL

GROUND 1

THE LEARNED TRIAL COURT ERRED IN LAW WHEN MY LORD HELD THAT THE
PROCESSES FILED BY THE LAWYERS WHO REPRESENTED THE RESPONDENT IN
OPPOSITION TO THE CASE OF THE APPELLANT WERE PROPERLY SIGNED

PARTICULARS OF ERROR

a. Where the name of more than one lawyer appears on the face of the
process filed by a party to a suit, without the exact name of the lawyer
who signed the process being ticked, it would be deemed that the process
was not properly signed.

b. The names of 4 different lawyers, inclusive of the name of the

Honourable Attorney General of Enugu appeared on the processes filed
by the Respondent in opposition to the case of the Appellant, without the
exact lawyer who franked the process ticking beside his name.

c. The learned trial Court in relying on the provision of sections 167(c) and
(e) and (2) of the Evidence Act 2011 presumed the signing of the
processes of the Respondent as having been done by the Honourable
Attorney General of Enugu State, and also to be valid and genuine, on the
ground that it is only the Attorney-General of Enugu State who is allowed
to minute or sign any document with green ink or pen as far as the
Ministry of Justice Enugu State is concerned.

d. There is no law that stipulates that a lawyer called to the Nigerian Bar,
inclusive of the 3 lawyers not being the Honourable Attorney General of
Enugu State, whose names appeared on the processes filed by the
Respondent, cannot make use of a biro with green ink in signing a court
process.

e. There is no law in Nigeria which makes it the exclusive right of the

Honourable Attorney General of Enugu State to use a biro with green ink
in signing a document and/or court process among other lawyers in the
Ministry of Justice, Enugu State for it to be known that any court process

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 signed with a green ink must have been signed by the Honourable
Attorney General of Enugu State and no other person.

f. The provisions of Rule 10 of the Rules of Professional Conduct for Legal

Practitioners which makes the affixing of seal and stamp on any affidavit
deposed to by a legal practitioner, complements, and is not at variance
with the Evidence Act on the requirement of an affidavit.

g. Affixing a seal and stamp approved by a legal practitioner on any legal

document prepared by the legal practitioner, inclusive of an affidavit is a
mandatory requirement of the Rules of Professional Conduct which
regulates the practice of lawyers in Nigeria, and is not discretionary.

h. The learned trial Court held that the failure of the counsel who deposed to
the counter affidavit of the Respondent, to affix a seal and stamp
approved by the Nigerian Bar Association to the counter-affidavit filed on
behalf of the Respondent, does not adversely affect the counter affidavit
of the Respondent, on the ground that the counter affidavit deposed to on
behalf of the Respondent is regulated by the Evidence Act and not by the
Rules of Professional Conduct for Legal Practitioners.

GROUND 2
THE LEARNED TRIAL COURT ERRED IN LAW WHEN MY LORD RELIED ON THE
PROVISIONS OF THE STATE PROCEEDINGS LAW CAP. 146 VOL. VI REVISED LAWS
OF ENUGU STATE 2004 IN HOLDING THAT THE HONOURABLE ATTORNEY
GENERAL OF ENUGU STATE AS WELL AS ANY LAW OFFICER OR STATE COUNSEL
ACTING UNDER AND IN ACCORDANCE WITH THE GENERAL OR SPECIAL
INSTRUCTION OF THE ATTORNEY-GENERAL CAN REPRESENT THE RESPONDENT
IN COURT

PARTICULARS OF ERROR

a. The law accords superior attention to a law enacted to govern a specific

area, above a general law made to address multifaceted legal issues.

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 b. The State Proceedings Law Cap. 146 Vol. VI Revised Laws of Enugu
State 2004 is a general law made to regulate the conduct of legal
proceedings against State establishments in Enugu State.

c. The Enugu State Independent Electoral Commission Law, Cap. 59,

Revised Laws of Enugu State of 2004 specifically stipulated the calibre
of law officers under the control of the Attorney General of Enugu State
who can represent the Respondent in court, being lawyers who are to be
under the payroll of the Respondent.

d. The lawyers who represented the Respondent in the present suit are not
under the payroll of the Respondent.

e. The Constitution of the Federal Republic of Nigeria 1999, as amended, is

the supreme law of the land and ranks above the provisions of Enugu
State Independent Electoral Commission Law, Cap. 59 Revised Laws of
Enugu State of 2004, and State Proceedings Law Cap. 146 Vol. VI
Revised Laws of Enugu State 2004.

f. A purposeful and holistic reading of the provision of section 202 of the

Constitution of the Federal Republic of Nigeria 1999, as amended,
indicates that the Respondent should not be represented by an appointee
of the Governor of Enugu State, being the Honourable Attorney General
of Enugu State and/or by lawyers working under the control and/or
direction of the Honourable Attorney General of Enugu State.

g. The learned trial Court, notwithstanding, relied solely on the provisions

of the State Proceedings Law Cap. 146 Vol. VI Revised Laws of Enugu
State 2004 in holding that the Honourable Attorney General of Enugu
State as well as any law Officer or State counsel acting under and in
accordance with the general or special instruction of the Attorney-
General can represent the Respondent in the present suit.

GROUND 3
THE LEARNED TRIAL COURT ERRED IN LAW WHEN MY LORD RELIED ON THE
DECISION OF THE COURT OF APPEAL IN THE CASE OF PETER OBI & ANOR. V.
INEC & 3 ORS., PETITION NO. CA/PER/03/2023 AND AFFIRMED BY THE SUPREME

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COURT OF NIGERIA, IN FINDING THAT THE DEFENDANT IS NOT UNDER DUTY
AND/OR OBLIGATION TO TRANSFER AND/OR TRANSMIT THE RESULTS FROM ANY
LOCAL GOVERNMENT COUNCIL ELECTION THAT MAY BE CONDUCTED BY THE
RESPONDENT INTO THE 17 LOCAL GOVERNMENT COUNCILS OF ENUGU STATE
TOGETHER WITH THE TOTAL NUMBER OF ACCREDITED VOTERS IN THE
CONCERNED ELECTION IN A MANNER NOT INCONSISTENT WITH OR AT
VARIANCE WITH THE ELECTRONIC TRANSFER AND/OR TRANSMISSION OF
ELECTION RESULTS AS DONE BY THE INDEPENDENT NATIONAL ELECTORAL
COMMISSION

PARTICULARS OF ERROR

a. The judgment of the Supreme is not applied and/or interpreted in vacuo

and without reference to the peculiar facts of the case in which the
decision was reached, but is interpreted while bearing in mind the context
and/or condition upon which the case was decided.

b. The Supreme Court of Nigeria in the case of PETER OBI & ANOR. V. INEC
& 3 ORS. (Supra) did not abolish the electronic transfer and/or
transmission of votes cast in an election conducted by the Independent
National Electoral Commission.

c. The context in which the case of PETER OBI & ANOR. V. INEC & 3 ORS.
(Supra) was decided is whether the electronic transfer and/or transmission
of election result serves as a procedure for the collation of election result
in an election conducted by the Independent National Electoral
Commission, to which answer the Supreme Court answered in the
negative.

d. Section 47(2) of the Electoral Act 2022 makes it mandatory that the
identity of any prospective voter in an election must be ascertained by the
Independent National Electoral Commission, through accreditation using
smart reader card or any other technological devise.

e. The technological devise presently utilized by the Independent National

Electoral Commission in accrediting and/or ascertaining the eligibility of
any prospective voter is the Bimodal Voters Accreditation System.

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f. The Bimodal Voters Accreditation System is the same facility used in the
transfer and/or transmission of election result at the end of an election
conducted by the Independent National Electoral Commission into the
Area Councils of the Federal Capital Territory, Abuja.

g. The INEC Regulations and Guidelines for Elections 2022 made under the
Electoral Act, 2022 makes the electronic transfer and/or transmission of
votes cast in an election conducted by the Independent National Electoral
Commission (INEC) to be compulsory.

h. The Appellant prayed the Honourable Court for the Respondent to be

compelled and/or mandated to transfer and/or transmit the result from any
Local Government Council Election as done by the Independent National
Electoral Commission pursuant to section 50 subsection 2, section 60
subsection 5 and section 148 of the Electoral Act 2022.

i. The learned trial Court notwithstanding, while according attention to the

provision of section 60(5) of the Electoral Act 2022 which deals with the
collation of result when interpreted in a purposeful and proactive manner,
held that the electronic transmission of results from polling unit to
collation centre is not a requirement of the law in elections conducted by
the Independent National Electoral Commission and State Independent
Electoral Commissions in Nigeria.

j. The learned trial Court further held that there is a lacuna on the
transmission of result in the Electoral Act, which has been filled by the
Enugu State House of Assembly in the Local Government Law of Enugu
State.

k. The Electoral Act 2022 has taken care of the manner in which the
transmission of election result is to be carried out and there is no lacuna
in that regard in the Electoral Act 2022.

l. The Respondent is under duty to follow the procedure laid down by the
Independent National Electoral Commission pursuant to the Electoral Act
2022 on the transmission of election result in Area Council elections.

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 m. The learned trial court without putting into consideration the context upon
which the decision in the case of PETER OBI & ANOR. V. INEC & 3 ORS.
(Supra) that was decided by the Court of Appeal and affirmed by the
Supreme Court was reached, held that the electronic transfer and/or
transmission of election result of votes cast in a local government council
election conducted by the Respondent is not mandatory.

n. The learned trial Court recognized and/or acknowledged the fact that the
INEC Regulations and Guidelines for Elections 2022 made under the
Electoral Act, 2022 is still subsisting and governs the elections
concerning Local Government Councils in Enugu State, and still held that
the electronic transfer and/or transmission of results of votes cast in a
local government council election conducted by the Respondent is not
mandatory.

4. RELIEF SOUGHT FROM THE COURT OF APPEAL

The Appellant prays the Honourable Court to allow this appeal, set aside the
part of the judgment of the lower Court complained about; and in place of the
part of the judgment of the lower Court delivered against the Appellant, find in
favour of the Appellant as per reliefs 1, 2, 5, 6, 7, and 8 which the Appellant
claimed against the Respondent in its Originating Summons filed at the lower
Court.

5. PERSONS DIRECTLY AFFECTED BY THE APPEAL

Name Address

Action Alliance C/O Its Counsel

C. D. Ogbe Esq.
Chukwunonso Daniel Ogbe & Co.
18 Ufuma Street
Achara Layout
Enugu
Enugu State.
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Enugu State Independent Electoral Commission
No. 3 Achi Street
Independence Layout
Enugu
Enugu State

Dated at Enugu, this 12th day of February 2024.

C. D. Ogbe Esq.
N. L. Okolo Esq.
E. C. Arum Esq.
S. N. Idike Esq.
P. B. C. Chukwuemeka Esq.
Appellant’s Solicitors
PP: Chukwunonso Daniel Ogbe & Co.
No. 18 Ufuma Street
Achara Layout
Enugu, Enugu State
08030999540
[email protected]
For Filing in Court:
For Service On:
The Respondent
Enugu State Independent Electoral Commission
No. 3 Achi Street
Independence Layout
Enugu
Enugu State