CHEVRON OIL NIGERIA PLC. V. ZENON PETROLEUM AND GAS LTD & ORS.
(2011)LCN/4313(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of February, 2011
CA/L/489/2009
RATIO
AFFIDAVIT/ COUNTER-AFFIDAVIT: WHETHER THE DEPOSITIONS IN AN AFFIDAVIT ARE DEEMED TO BE ADMITTED AND THE COURT IS ENTITLED TO RELY ON THEM AS REPRESENTING THE TRUE POSITION OF THE FACTS DEPOSED THEREIN UNLESS OTHERWISE TRAVERSED BY A COUNTER AFFIDAVIT
The law is well settled that depositions in an affidavit are deemed to be admitted and the court is entitled to rely on them as representing the true position of the facts deposed therein unless otherwise traversed by a counter affidavit. In the case of Amgbare v. Sylva (2007) 18 NWLR (Pt.1065) 1 at 30-31 my learned brother Rhodes-vivour JCA (as he then was) aptly observed:- ‘Where no counter-affidavit is filed to controvert material depositions in the affidavit in support of an application, the facts therein are deemed admitted and conceded. In the instant case, no counter-affidavit was filed by the appellant to controvert the depositions in the affidavit filed by the 2nd-7th respondents in support of their motion for enlargement of time to file their reply to the appellant’s petition. In the circumstance, the depositions explaining the delay in the affidavit in support were deemed admitted and conceded by the appellants. Accordingly, there was no need for any further explanation by the respondents as to why their reply was not filed within time.” PER HUSSEIN MUKHTAR, J.C.A.
AMENDMENT OF NOTICE OF APPEAL: WHETHER A COMPETENT NOTICE OF APPEAL MAY BE AMENDED AT ANY TIME BEFORE HEARING OF THE APPEAL PROVIDED LEAVE OF THE COURT IS FIRST SOUGHT FOR AND OBTAINED
It is pertinent that a competent notice of appeal may be amended with leave of the court at any time before hearing of the appeal and if any of the grounds whether original or additional is incompetent, it is a matter to be raised by way of preliminary objection under order 10 rule 1 of the Court of Appeal Rules 2007. The merits of grounds of appeal are irrelevant for purpose of amendment of notice of appeal. PER HUSSEIN MUKHTAR, J.C.A.
EFFECT OF A BRIEF OF ARGUMENT FILED OUT OF TIME AND HAS NOT BEEN REGULARIZED AND WHETHER IT CAN BE AMENDED
The second appellant’s brief of argument filed on 5th May 2010 was obviously out of time and having not been regularized is as well incompetent and cannot therefore be amended. An incompetent process is void and cannot be amended. PER HUSSEIN MUKHTAR, J.C.A
JUSTICES:
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
JOHN OKORO Justice of The Court of Appeal of Nigeria
MUHAMMED DANJUMA Justice of The Court of Appeal of Nigeria
Between
CHEVRON OIL NIGERIA PLC – Appellant(s)
AND
1. ZENON PETROLEUM AND GAS LTD
2. SECURITIES AND EXCHANGE COMMISSION
3. NIGERIAN STOCK EXCHANGE
4. CORPORATE AFFAIRS COMMISSION
5. AFRICAN PETROLEUM PLC
6. HABITAT OIL & GAS LIMITED
7. OANDO PLC
8. ACORN OIL & GAS LIMITED
9. MRS OIL AND GAS CO LTD. – Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Lead Ruling): The appellant/applicant has, by a motion on notice dated 22nd and filed on the 23rd November 2010, sought for the following reliefs:
“i. An order granting leave to the appellant/applicant to amend the notice of appeal dated 15th April, 2009 in the manner reflected in the proposed amended notice of appeal attached to the affidavit in support of this application and marked as Exhibit “B”;
ii. An order granting leave to the appellant/applicant to amend its brief of argument in line with the proposed amended appellant’s brief of argument attached to the affidavit in support of this application and marked as Exhibit “C”;
iii. An order enlarging/extending the time within which the appellant/applicant may file its amended brief of argument;
iv. And for such further or other order(s) as this honourable court may deem fit to make in the circumstances of this application.”
The application is premised on the following four grounds:-
“1. Leave of this Honourable court is required to amend the appellant/applicant’s notice of appeal and to include an additional ground of appeal;
2. There is need to amend the appellant’s notice of appeal to effect some corrections as well as to include an additional ground on jurisdiction;
3. There is need to amend the appellant’s brief of argument in line with the amended notice of appeal;
4. The time within which to file appellant/applicant’s brief of argument has elapsed.”
The application is supported by an affidavit of six paragraphs deposed to by David Udoh. Annexed thereto are three exhibits A, B and C respectively consisting of:-
a) The original notice of appeal dated and filed 15th April 2009 with five grounds of appeal.
b) The proposed amended notice of appeal with six grounds of appeal, and
c) The proposed amended appellant’s brief of argument.
There was no counter affidavit filed to challenge the averments in the supporting affidavit. The learned senior counsel argued that, in the absence of a counter affidavit, the depositions in the supporting affidavit must be regarded as having been admitted.
The law is well settled that depositions in an affidavit are deemed to be admitted and the court is entitled to rely on them as representing the true position of the facts deposed therein unless otherwise traversed by a counter affidavit. In the case of Amgbare v. Sylva (2007) 18 NWLR (Pt.1065) 1 at 30-31 my learned brother Rhodes-vivour JCA (as he then was) aptly observed:-
‘Where no counter-affidavit is filed to controvert material depositions in the affidavit in support of an application, the facts therein are deemed admitted and conceded. In the instant case, no counter-affidavit was filed by the appellant to controvert the depositions in the affidavit filed by the 2nd-7th respondents in support of their motion for enlargement of time to file their reply to the appellant’s petition. In the circumstance, the depositions explaining the delay in the affidavit in support were deemed admitted and conceded by the appellants. Accordingly, there was no need for any further explanation by the respondents as to why their reply was not filed within time.”
In arguing the motion the learned senior counsel Rickey Tarfa, SAN withdrew the second relief and moved in terms of reliefs i, iii and iv.
The first prayer to amend the notice of appeal was objected to by the learned counsel for the 1st respondent O.V. Iweze, Esq. There was no objection in respect of any of the reliefs by the other learned counsel for the 2nd, 5th and 6th respondents, while the 3rd, 4th,7th,8th and 9th respondents were duly served but not represented in court.
The learned senior counsel submitted that the appellant/applicant has, from the depositions in the supporting affidavit, made out a case for amendment of the notice of appeal, and urged the court to allow the amendment.
Objecting to the prayer for amendment of the notice of appeal, the learned counsel for the respondent referred to the decision of the lower court appealed against and submitted that there was no ruling on the issue of jurisdiction at the lower court and as such it cannot be raised as a ground of appeal’ Reliance was placed on Westac Nig. Ltd v. Sokoto State Government (2001) 4 NWLR (Pt 703) 304 at 314 paragraphs G-H where this court per salami, JCA (as he then was) observed thus:
“An appeal presupposed the existence of some decisions or findings appealed against. Therefore, the consequences of not appealing against the findings or decision of the court is striking out of the fanciful ground of appeal. In the instant case, the decision or finding of the trial court on applicability of force majeure to the circumstances of the case subsists as there was no appeal against same.”
He urged the court to refuse the prayer for amendment of the notice of appeal.
Responding the learned senior counsel submitted that an objection to a ground of appeal will not stop an amendment. It may only be properly raised at the hearing of the appeal by way of preliminary objection. The appellant will then join issues in respect thereof.
It is pertinent that a competent notice of appeal may be amended with leave of the court at any time before hearing of the appeal and if any of the grounds whether original or additional is incompetent, it is a matter to be raised by way of preliminary objection under order 10 rule 1 of the Court of Appeal Rules 2007. The merits of grounds of appeal are irrelevant for purpose of amendment of notice of appeal. The objection by the learned counsel for the 1st respondent is therefore premature at this stage.
The appellant/applicant has an unreserved right to amend its notice of appeal at any time before hearing of the appeal provided leave of court is first sought for and obtained.
The appellant/applicant whose reasons for amendment of pleadings have not been challenged is entitled to amend its notice of appeal Exhibit A in terms of the proposed amended notice of appeal exhibit B. There is therefore nothing that works against the merit of the prayer for the amendment of the notice of appeal
However, the appellant/applicant does not seem to have any competent brief of argument to amend. The brief filed within time on the 24th July 2009 which was signed “for Rickey Tarfa, SAN” is apparently incompetent having not been shown to have been so signed by a legal practitioner enrolled to practice in Nigeria. The name of the person signing must be disclosed and he or she must be a legal practitioner in Nigeria to validate the process. The appellant/applicant has so conceded in paragraph in paragraph 3(iv) and (v) of the supporting affidavit where it was disposed thus:-
“3(iv) subsequently on the 18th of September, 2009, the 1st respondent filed its brief of argument as well as a motion for extension of time to regularize its position having filed out of time;
(v). on the 5th of May, 2010, the appellant filed another brief of argument on discovering that the earlier one filed on 24th July, 2009, was not properly signed as well as a motion for extension of time to regularize its position .”
The second appellant’s brief of argument filed on 5th May 2010 was obviously out of time and having not been regularized is as well incompetent and cannot therefore be amended. An incompetent process is void and cannot be amended. However, prayers (iii) and (iv) in the instant application is apt to usher in the appellant’s brief of argument as an original instead of amended brief. Prayer ii which has been withdrawn is accordingly struck out.
The application therefore succeeds in respect of reliefs i, iii and iv and is hereby allowed in the following terms:-
1. Leave is hereby granted to the appellant/applicant to amend the notice of appeal dated and filed l5th April 2009 in the manner reflected in the proposed amended notice of appeal exhibit ‘B’.
2. The amended notice of appeal shall be filed within seven days from today.
3. Time is hereby enlarged for the appellant/applicant to file its brief of argument within fourteen days from today.
4. Relief (ii) has been withdrawn and struck out.
There shall order as to costs.
JOHN INYANG OKORO, J.C.A:I have had the privilege of reading in advance the Ruling just delivered by my learned brother, Mukhtar, JCA. I agree that there is merit in the Application and ought to be granted. I adopt the reasons and conclusion reached by my learned brother as mine. I also make no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A: I have read before now, the lead Ruling just delivered by my Lord Mukhtar, JCA and I agree that the application ought be granted.
Accordingly, I adopt the reasons and conclusion in the lead Ruling that a competent appeal can be amended at any time with leave of court and the fact that a ground thereof may be objectionable can only be raised as an issue upon a preliminary objection at the trial of the action.
I abide by all the orders made in the said Ruling including that relating to costs.
Appearances
Rickey Tarfa SAN;
Mrs. W. Enyinnaya For Appellant
AND
O.Y. Iwese;
A.A. Adebola;
Mrs. O.A.P. Owakaluse,
Miss I. Anwuta,
Christopher Udeh For Respondent
