UNION BANK OF NIGERIA PLC v. CHIEF S.E. EZEWUDO
(2008)LCN/2916(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of July, 2008
CA/L/184M/05
JUSTICES
HON. JUSTICE DALHATU ADAMU OFR Justice of The Court of Appeal of Nigeria
HON. JUSTICE HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
HON. JUSTICE ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIGERIA PLC – Appellant(s)
AND
CHIEF S.E. EZEWUDO – Respondent(s)
RATIO
WHETHER OR NOT ONCE LEAVE TO AMEND NOTICE OF APPEAL IS GRANTED, THE EXISTING NOTICE IS VACATED AND RENDERED NON-EXISTENT
The position of the law is trite, as stated by the Supreme Court in AfriBank V. Akwara (supra) that once leave to amend notice of appeal is granted, the existing notice is vacated and rendered non existent. However if an amended notice of appeal is filed within the time ordered by the court, the amended notice automatically subrogates, substitutes and steps into the shoes of the original notice of appeal which has been vacated by the amendment. Consequently the amended notice of appeal, like any other amendment of court process, relates back to the date of filing the original notice of appeal. That is to say the amendment takes effect retrospectively, not from the date it is made but from the date of the original notice. See First Bank of Nigeria Plc V Tsokwa (2003) FWLR (Pt. 153) 205, Oguma V IBWA (1988) 1 NWLR 659, Enigbokan V. A.I.I.C. (Nig) Ltd (1994) 6 NWLR (Pt. 348) 1 and Jatan V. Ahmed (2003) FWLR (Pt. 151) 1887. PER JAURO, J.C.A.
ADAMU JAURO, J.C.A. (Delivering the Lead Ruling): The applicant herein, pursuant to his application dated and filed on 16th May, 2008 is praying this court for the following:.
“1. An order allowing the Respondent/Applicant to correct the clerical error in the RESPONDENT’S BRIEF dated the 30th day of April, 2007 and filed on the 2nd day of May, 2007 mistitled “AMENDED RESPONDENT’S BRIEF” by deleting the word “AMENDED” in the title of the said RESPONDENT’S BRIEF;
2. An order deeming the corrected Respondent’s Brief, a copy of which is attached to the affidavit in support of this motion and marked Exhibit “A”, as duly rectified filed and served;
3. Such further order or orders as the court may deem fit to make in the circumstances.”
In support of the application is a 21 paragraphs affidavit with six annextures marked exhibits ‘A’ to ‘F’. In further support of the application is a further and better affidavit of II paragraphs, filed in response to the counter affidavit of the respondents.
The background facts giving rise to this application, are lucidly stated in paragraphs 3 to 19 of the affidavit in support, which are hereby reproduced thus;-
“3. That I know as a fact that by a motion dated 20th February, 2006, the respondent sought an order of court to deem his brief filed on the same date as properly filed and served.
4. That the appellant subsequently brought a motion dated the 13th of April, 2006 to amend its Notice of Appeal and to deem it amended brief of argument based on the proposed Notice of Appeal as properly filed and served.
5. That on the 30th of October, 2006 the appellant’s said motion to amend its Notice of Appeal and deem the amended brief properly filed and the respondent’s application for extension of time to file its brief came up for hearing before the court.
6. That this honourable court on the said 30th of October, 2006 granted leave to the appellant to amend its Notice of Appeal and to file the Amended Notice within ten days.
7. That the Appellant’s counsel having withdrawn his 2nd prayer to amend his brief of argument, this honourable court struck out that prayer.
8. That in the circumstances, as the appellant was yet to file its amended brief based on the new, Amended Notice of Appeal, the respondent’s application dated 20th February, 2006 for extension of time to file the respondent’s brief and to deem the said brief properly filed and served was overtaken by the events of the day and the respondent’s counsel withdrew his application.
9. That now shown to me and marked Exhibit “A” is a copy of the court’s proceedings on the said 30th of October, 2006.
10. That by a motion dated the 29th day of November, 2006 but filed on 30th November, 2006 the appellant sought to amend its brief of argument based on the Amended Notice of Appeal.
11. That on the 29th day of March, 2007 the appellant’s said motion came up before this honourable court and the court ordered that “the proposed appellant’s brief of argument marked Exhibit SA 3 attached to the motion papers should be filed seven days from today. Cost of N2, 500.00 to the respondent”.
12. That now shown to me and marked B is a copy of the proceedings of this honourable court on the said 29th March, 2007.
13. That the said orders of court merely granted leave to the appellant to amend and file its brief of argument within seven days, but did not deem same properly filed and served as the appellant did not seek such an order.
14. That on the 26th of April, 2007, the amended appellant’s brief dated 3rd April, 2007 was served on our chambers.
Now shown to me and marked Exhibit C is a Certified True Copy of the affidavit of service filed by the bailiff of this honourable court, Idowu Olukayode, certifying that the respondent was served on the said 26th of April, 2007.
15. That on the 2nd day of May 2007 (six days after service of the process on the respondent) the respondent filed its RESPONDENT’S BRIEF dated 30th of April, 2007, which in error was titled “AMENDED RESPONDENT’S BRIEF”.
16. That now shown to me and marked Exhibit “D” and “E” respectively are Copies of the RESPONDENT’S BRIEF erroneously titled “AMENDED RESPONDENT’S BRIEF” and the receipt for the filing fees paid.
17. That I verily believe that time for the respondent to file his brief began to run after the service of the appellant’s amended brief based on the Amended Notice of Appeal.
18. That I verily believe that the respondent’s brief filed on the 2nd day of May, 2007 was erroneously titled “AMENDED RESPONDENT’S BRIEF” due to a clerical error.
19. That I verily believe that it is in the best interest of justice to amend this clerical error by deleting the word “AMENDED” in the title of the RESPONDENT’S BRIEF filed within time on the 2nd of May, 2007.”
I deem it necessary and expedient to reproduce the relevant paragraphs of the counter affidavit as well as further and better affidavit for a comprehensive appreciation of the facts. Consequently paragraphs 2 to 5 of the counter affidavit and paragraphs 4 to 10 of the further and better affidavit are reproduced hereunder:-
“2. Leave was granted on the Appellant/Respondent to amend its Notice and Grounds of Appeal on 30th October, 2006.
3. The Respondent/Applicant by way of Motion on Notice dated 20th day of February, 2006, sought leave of this Honourable Court to file his Respondent’s Brief of Argument out of time.
4. The Respondent’s/Applicant’s motion on notice seeking leave of the Honourable
Court to file Respondent’s Brief of Argument out of time was withdrawn on 30th day of October, 2006.
5. To the best of my knowledge and believe, the Respondent/Applicant needs leave of this Honourable Court to file out of time Respondent’s Brief of Argument.”
Further and better affidavit:
“4. That the contents of paragraph 5 of the said affidavit in opposition are not true.
5. That I repeat and adopt my statements in paragraphs 9 to 19 of my affidavit in support of this motion.
6. That the Respondent/Applicant does not need any leave to file the Respondent’s brief which was filed on the 2nd day of May, 2007, but erroneously titled “AMENDED RESPONDENT’S BRIEF”.
7. That upon the amendment of the notice and grounds of appeal by the Appellant by leave granted by the court on 30th October, 2006, the appellant had vacated its original Notice of Appeal and rendered it nor-existent.
8. That in the same way the original appellant’s brief based on the non-existent notice of appeal, is also non-existent and the Respondent/Applicant had no duty to reply to it.
9. That it was on the basis of this that the Respondent/Applicant withdrew his application for leave to file his brief out of time since the only existing legitimate Appellant’s brief is the one to be filed based on the new amended notice and grounds of appeal.
10. That the Respondent/Applicant filed his brief within (6) six days of service on him of the legitimate appellants brief.”
This application was argued based on the facts as deposed to in the affidavits of the parties as reproduced above. In moving the application, the learned senior counsel for the applicants, G.N. Uwechue SAN, identified his application and moved the court in terms of the prayers contained in the motion papers. In opposing the application, learned counsel for the respondent, Segun Idowu Esq relied on all the paragraphs of his counter affidavit particularly paragraphs 4 and 5. The learned counsel contended that there is no valid brief filed by the respondents before the court that can be amended. In support of this contention, learned counsel argued that an application to file respondents brief out of time was withdrawn and struck out on 30th October, 2006 and since then there has been no other application for extension of time. Learned counsel further submitted that premised on this ground, there is no any competent respondent brief to be amended by deleting the word ‘amended’. In concluding, learned counsel urged the court to refuse the application.
The learned senior counsel for the applicants in response, submitted that before his motion filed on 20th February, 2006 for extension of time to file his brief could be heard, the appellants were granted leave on 30th October, 2006 to amend their notice and grounds of appeal. The learned senior counsel further submitted that the effect of amending the notice of appeal implies that the original notice of appeal has been automatically vacated. In support of this submission, reliance was placed on the case of Afri Bank (Nig) Plc V. Akwara (2006) 5 NWLR (Pt. 974) 619 at 640. The learned senior counsel further contended that as a consequence of the notice of appeal becoming vacated, it was needless for him to seek for extension of time to file his brief; hence his earlier application was withdrawn and struck out on 30th October, 2006. The learned silk contended that his brief was properly filed and served having been filed on 2nd May, 2007, i.e. six days after he was served the appellants amended brief on 26th April, 2007. In concluding, learned senior counsel urged this court to dismiss the objection and grant the application.
By the application herein, the applicant is seeking to amend the title of the respondents/applicants brief by deleting the word amended from the title, so that the title will read “Respondents brief’ instead of “Amended respondents brief’. The appellant/respondent objected to the application on the ground that there was no valid brief of argument properly filed before the court to be amended by the applicants. The reason advanced in support of the objection, is that the said brief was filed out of time and this court has not granted any extension of time to that effect. The respondent/applicants had initially filed a motion on 20th February, 2006 for extension of time to file their brief of argument. But as at 30th October, 2006, when leave to amend the notice and grounds of appeal was granted to the appellants/respondents, the respondent/applicants on that very day withdrew the motion earlier filed for extension of time, which was struck out. The motion was withdrawn on the understanding that it was unnecessary, since the notice of appeal has been amended, hence the respondent now applicant assumed that the time within which he will file brief will start running when he is served the appellants amended brief. Consequently, the applicants argued that they were served appellants amended brief on 26th April, 2007 and six days thereafter, on 2nd May, 2007 they filed their respondents brief. The applicants further contend, that based on the case of AfriBank V. Akwara (supra), the original notice of appeal filed is automatically vacated, hence their brief of argument was filed within time.
The basic and fundamental question to be answered before considering the merits of the application is to determine whether there is a competent brief validly filed before the court which can be amended. In determining the competence of the brief in question, a consideration will be made of the consequences and effect of amending the notice of appeal. It is not in dispute that as at 20th February, 2006, the respondent now applicant was out of time in filing his brief which necessitated the filing of his application, dated 20th February, 2006 for extension of time to file his brief of argument. The contention of the applicant is that by the grant of leave to amend the notice and grounds of appeal the original notice of appeal is vacated and rendered non existent. In the same vein applicant contended, that the appellant’s brief based on the non existent notice of appeal is also non existent and respondent had no duty to reply to it. The case of AfriBank (Nig) Plc V Akwara (supra) was referred to in support of the contention that once leave to amend notice of appeal is granted, the notice is vacated.
In AfriBank (Nig) Plc V Akwara (supra), the appellant having been granted leave to amend his notice of appeal, was given six weeks within which to file the amended notice of appeal. The appellant however did not file his amended notice of appeal within the six weeks, until after about two months i.e. on 26th August, 2003. The Supreme Court held that the effect of applying and obtaining order to amend existing notice of appeal is to vacate the notice of appeal and render it non existent. The court further held that the consequence of failure by the appellant to file its amended notice of appeal within six weeks as ordered by the court on 26th June, 2003 is that there is no competent appeal and the purported appeal was incompetent and accordingly struck out. The position of the law is trite, as stated by the Supreme Court in AfriBank V. Akwara (supra) that once leave to amend notice of appeal is granted, the existing notice is vacated and rendered non existent.
However if an amended notice of appeal is filed within the time ordered by the court, the amended notice automatically subrogates, substitutes and steps into the shoes of the original notice of appeal which has been vacated by the amendment. Consequently the amended notice of appeal, like any other amendment of court process, relates back to the date of filing the original notice of appeal. That is to say the amendment takes effect retrospectively, not from the date it is made but from the date of the original notice. See First Bank of Nigeria Plc V Tsokwa (2003) FWLR (Pt. 153) 205, Oguma V IBWA (1988) 1 NWLR 659, Enigbokan V. A.I.I.C. (Nig) Ltd (1994) 6 NWLR (Pt. 348) 1 and Jatan V. Ahmed (2003) FWLR (Pt. 151) 1887.
The instant case is distinguishable from Akwara’s case (supra), in the sense that an amended notice of appeal has been filed. In that wise and as stated earlier, it relates back to the date of filing the original notice of appeal. Consequent upon the foregoing, the time within which to file the respondents brief started counting from the time he was served appellants brief, and he has thirty days within which to file the brief See Order 17 Rule 4(1) of the Court of Appeal Rules 2007. That informed the basis why the applicant filed a motion for extension of time and withdrew same for no justifiable cause. The respondents brief titled. ‘Amended respondents brief was thus filed out of time and therefore incompetent. As the said brief is incompetent, there is nothing validly before the court to be amended.
The application to amend the title of the brief therefore fails and is accordingly dismissed. The purported brief having been filed out of time and therefore incompetent is hereby struck out. A cost of N10, 000.00 is hereby awarded in favour of the respondent against the applicant.
DALHATU ADAMU OFR, J.C.A.: I have read, before now, the lead ruling of my learned brother ADAMU JAURO, J.C.A. in this application. I am in full agreement with the reasons given and the conclusion reached in the said ruling which I hereby adopt.
The application is for leave to amend the respondent brief by deleting the clerical error so that instead of the title of the said brief as an “amended respondent brief’ it will now read simply as “respondents brief’. The circumstances that led to the application as stated in the supporting affidavit is said to be as a result of the leave granted to the appellant to amend his notice of appeal. It is pertinent to observe that upon the grant of the leave, the appellant promptly filed his amended notice of appeal and also an amended appellant brief. This promptness on the part of the appellant is what distinguishes the present application with the facts and circumstances of the case of Afribank V Akwara (2006) 5 NWLR (Pt. 974) 619 which is heavily relied upon by the learned senior counsel for the respondent/applicant. What the Supreme Court said in that case is that once leave to amend the original notice of appeal is granted the said original notice is vacated. The reason being that it is to be replaced by the amended notice and since in that case the appellant did not file an amended notice to replace the original one, within the time permitted by the court, the apex court held that he had no valid or competent notice and his appeal which was incompetent being without any notice of appeal to support it was accordingly struck out. The above scenario of Afribank case (supra) is sharply different from the present case where the appellant/respondent did promptly comply with the order of leave to amend and he filed his amended notice of appeal within time. In such a situation, it is trite that an amended notice of appeal like the one filed by the appellant/respondent takes a retrospective effect not from the date of its filing but from the date of the original notice of appeal. To hold otherwise would mean that the whole process of an appeal has to be initiated by the appellant upon his filing of an amended notice of appeal or that he has to seek for an extension of time to appeal. This certainly is not the practice. By extension, the backdating or retrospective nature of an amended notice of appeal should also be applied to an amended brief of arguments which should also take effect from the date of the filing of original brief. And the fact that an appeal has been set down for hearing will not prevent such application to amend the process if made in the interest of justice. See FBN PLC V. May Med Clinics (1996) 9 NWLR (Pt. 471) 195; Pharmatek Ind. Projects Ltd V. Ojo (1996) 1 NWLR (Pt. 424) 332; and George V. Dominion Flour Mills Ltd (1960) LLR 53.
The amendment sought by the respondent/applicant in the present case is based on the misconception by his learned counsel that once the leave to amend the notice was granted the original notice of appeal filed by the appellant/respondent was vacated and cannot be revived irrespective of the prompt filing of an amended notice of appeal by the said appellant/respondent which as we have seen should take a retrospective effect and date back to the original notice. Consequently, the obligation of the respondent/applicant to file his respondents brief in response to the appellant’s original brief of argument still remains. Failure of the said respondent to file his brief within time means that he has no valid or competent brief. This is why he initially applied for extension of time to file the said brief and to deem it, but for reasons best known to him, he decided to withdraw it and it was struck out by this court.
The present application for amendment of the respondent brief if allowed will cause injustice to the appellant/respondent and it is based on the blunder of the learned senior counsel that he does not need to seek for an extension of time. If the original respondent brief was not regularly filed, this court will not grant leave to amend it as it is an incompetent process. Thus the present application is in bad faith and it is an attempt to give life to an already incompetent brief and condone the indolent attitude of the said respondent’s counsel who does not wish to comply with the rules of this court on the filing of briefs of arguments.
On my above observation, I also find no merit is the present application which I hereby refuse and dismiss. The incompetent brief of the respondent/applicant sought to be amended or corrected is hereby struck out. I abide by the order on costs made in the lead ruling.
HUSSEIN MUKHTAR, J.C.A.: I was privileged to have read in advance the draft of the judgment just delivered by my learned brother, JAURO, JCA, and I entirely agree with the opinions expressed therein on whether the respondent/applicant’s brief was competent to justify any amendment to it.
The respondent’s brief must be filed within thirty days from the date he was served with the appellant’s brief as provided by order 17 rule 4 (1) of the Court of Appeal Rules 2007. Any brief filed outside that time frame will only be valid if regularized by applying for and obtaining an extension of time to file it pursuant to order 7 rule 10 (1) of the Court of Appeal Rules 2007. In the absence of such time extension, the brief so filed outside the permitted time-frame is incompetent and as good as never filed. The respondent’s brief filed out of time without enlargement of time to regularize it is incompetent. An incompetent brief cannot be amended because it is as good as nothing. I agree that this application must fail and it is accordingly hereby dismissed. I subscribe to the order on cost as made in the lead ruling.
Appearances
Chief G.N. Uwechue SAN with Emeka Okpoko Esq., and G.N. Uwechue JnrFor Appellant
AND
Segun Idowu Esq., with A. A. Ayeni MissFor Respondent
