PLATEAU STATE GOVERNMENT & ANOR v. CHIEF HARRY AKANDE & ANOR(1)
(2012)LCN/5421(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of December, 2014
CA/A/11/2013(R1)
RATIO
APPEAL: ATTITUDE OF THE APPELLATE COURT TO DOING SUBSTANTIVE JUSTICE
This court has always found it wise not to place impediments or obstacles in front of parties seeking to appeal, as long as seriousness is exhibited, to the satisfaction of the court, in the effort to seek redress. That is the only way to ensure substantive justice as opposed to technical justice; this is what informed the decision of the Supreme Court in EZEKIEL NNEJI & ORS V CHIEF NWANKWO CHUKWU & ORS. (1988) LPELR-2058 (SC), where it held:
“the court must balance the application of its discretionary power to grant or refuse an application to dismiss an appeal for non compliance with the rules of that court, with its duty of giving an appellant the opportunity of obtaining substantial justice by granting him fair hearing in the appeal when that is considered expedient on the face of the materials before it…” PER MOHAMMED MUSTAPHA, J.C.A.
JUSTICE
MOORE A.A. ADUMEINJustice of The Court of Appeal of Nigeria
TANI YUSUF HASSANJustice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHAJustice of The Court of Appeal of Nigeria
Between
1. PLATEAU STATE GOVERNMENT
2. ATTORNEY-GENERAL OF PLATEAU STATEAppellant(s)
AND
1. CHIEF HARRY AKANDE
2. CENTRAL BANK OF NIGERIARespondent(s)
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Lead Ruling): This application is for the following orders of this court:
An order granting leave to file additional ground of appeal out of time, an order granting leave to amend the notice and grounds of appeal, an order granting leave to file the appellants’ brief of argument out of time, and an order deeming the applicant’s process as filed.
The application is brought pursuant to Order 6 Rules 4 and 15 and Order 7 Rules 1 and 2 of the rules of this court; the reliefs sought are on the basis of four grounds; the application is supported by an eight paragraph affidavit deposed to by Nankwat D. Shase’et with Exhibits A, the notice and grounds of appeal, B, the proposed additional grounds of appeal, and C, the proposed amended notice and grounds of appeal.
Learned counsel also filed a written address in support of the application as ordered by this court; the 1st respondent claimed to have filed a counter affidavit, and written address in support of the counter affidavit. The counter affidavit could not be traced, so learned Silk opted to rely on the written address, as his objections are on points of law anyway, according to him; in response to which the appellant/applicant filed a written reply.
Edward G. Pwajok Esq., learned counsel to the appellants/applicants formulated a sole issue for determination by this court as:
Whether having regard to the nature of this application this court can exercise it discretion in granting the prayers sought by the appellants/applicants.
Learned counsel submitted that the need to file additional grounds of appeal is aimed at placing all issues in controversy between the parties, to enable this court do substantial justice rather than technical justice to the issues before it; especially as it is trite that once a notice is valid it can be amended any time before the appeal is heard.
That the amendment sought is not meant to overreach but to place issues properly in perspective before this court as the respondents will always have the opportunity to respond to issues; he referred this court to LASTMA V EZEZOOBO (2012) 3 NWLR part 1286 at 58 and OLORO V FALAN (2012) 17 NWLR part 207 at 220.
That the respondent will not be prejudiced as the application is made in good faith, as no new issue is introduced.
That also the length of time of delay is immaterial provided the applicant has explained the delay; he referred this court to CHAIRMAN ILEJEMEJE LOCAL GOVERNMENT V AWOLOLA (2005) All FWLR Part 291 at 1792.
That paragraph 4 of the affidavit accompanying the application clearly explains the delay in filing the appellant’s brief of argument within time cogently; learned counsel referred to OKORO V EKITI STATE GOVERNMENT (2007) All FWLR part 387 at 973 and contended that the overriding interest ought to be substantial justice; he urged this court to grant the application as prayed.
In response Rickey Tarfa SAN, learned counsel for 1st respondent formulated the following issue for determination by court:
Whether the appellant/applicants’ motion for leave to amend the sole ground of appeal in respect of their appeal against the post judgment ruling of the lower court dated 29th day of April, 2013, and ancillary prayers to regularize appellants’ brief is misconceived and liable to dismissal.
Learned Silk submitted that the substantive appeal in CA/A/11/2013 is against the final judgment of Kafarati J, delivered on the 2nd of November, 2012, the Notice of Appeal having been filed against same, on 6th November, 2012.
That it is only that appeal as well as the notice and grounds which originated that can be amended, as there is no suggestion that any other appeal has been consolidated to it. So he contended this application is incompetent; he referred this court to CCB PLC V EKPERI (2007) 12 WRN 1.
That the notice sought to be amended, Exhibit A is against the ruling in application for stay of execution delivered on the 29th of April, 2013; it contains a single ground that “the decision of the trial court is against the weight of evidence”.
Learned counsel submitted a Notice of Appeal complaining about a decision being against the weight of evidence in an interlocutory application is unknown to law; that even if such a sole ground is cognizable in law it is still a ground of appeal on facts requiring prior leave of court, without which it is incompetent; he referred this court to ALBARKA V PRESIDENT FRN (2012) 5 NWLR part 1292 at 112.
That also there cannot be an amendment of a Notice of Appeal, where the original notice of appeal contains no valid ground; he referred this court to NDUBA V APPIO (1993) 5 NWLR part 292 at 201 and ENITAN V STATE (1986) 3 NWLR part 30 at 609.
Learned counsel also submitted that the original appeal has not been transmitted to this court, and assigned its own appeal number, and an interlocutory ruling must not have been a distinctly argued issue on which a separate decision of the court was rendered, outside of the final judgment, else a separate Notice of Appeal must be filed with its own appeal number and transmitted record; he referred this court to NWOKO V AZEKWO (2012) 12 NWLR part 1313 at 169.
That although the ruling could be subsumed in the final judgment and taken together, the position in this case is different because the appeal herein is in respect of stay of execution, which was granted on terms; and so in the absence of a valid separate appeal the only option left for the applicant is to seek for a variation of the conditional stay, and not to file an appeal against the order made in his favour; learned counsel urged this court to resolve this issue and dismiss this appeal.
In reply it is submitted for the appellants/applicants that the application is predicated on a stay of execution of the judgment of the lower court, delivered on the 2nd of November, 2012, in FHC/L/CS/833/2000; the ruling was delivered on the 29th of April, 2013, after the judgment had been delivered in the substantive suit, and so it cannot be said to be an interlocutory ruling, but final; learned counsel referred this court K.S.M.V. MIE.E.E. (2012) 3 NWLR part 1287 at 274 and NWOKO V AZEKWU (2012) NWLR part 1313 at 173 and urged this court not to dwell on technicalities and grant the application as prayed.
The issue for determination as formulated by the 1st respondent suffices in this case, and this court will proceed to determine same.
Whether the appellant/applicants’ motion for leave to amend the sole ground of appeal in respect of their appeal against the post judgment ruling of the lower court dated 29th day of April, 2013, and ancillary prayers to regularize appellants’ brief is misconceived and liable to dismissal.
Having gone through the affidavit in support of the application and submissions of learned counsel on both sides of the divide it is clear to this court that the application before this court is predicated on an application for stay of execution of the lower court’s judgment, delivered on the 2nd November, 2012; the ruling in that application was delivered on the 29th of April, 2013 after the judgment had been delivered in the substantive matter on the 2nd of November, 2012, and therefore cannot be said to have been delivered during the pendency of any proceeding; and if that were so, then it cannot be said to be an interlocutory ruling, but a final ruling with regard to the stay order; an interlocutory decision is not a final decision, see APC LTD V NDIC (2006) 15 NWLR part 1002 at 404.
That being the case the argument of learned counsel to the 1st respondent that leave is needed cannot hold, as the said decision is a final decision which required no leave of court, as opposed to an interlocutory decision.
This court also does not share the view that the only option left for the applicant is to seek for the variation of the conditional stay.
Nothing stops the applicant from appealing against a final decision of a court they do not agree with; the appeal cannot be said to be incompetent or that it is an abuse of the process of court for that reason; this being the case the omnibus ground filed suffices to all intents and purposes of the applicant’s appeal in the circumstances of this case.
The applicant is simply seeking to appeal over a decision it did not agree with, that cannot be interpreted by any stretch of imagination to be akin to the irritation or annoyance of the 1st respondent.
This court has always found it wise not to place impediments or obstacles in front of parties seeking to appeal, as long as seriousness is exhibited, to the satisfaction of the court, in the effort to seek redress. That is the only way to ensure substantive justice as opposed to technical justice; this is what informed the decision of the Supreme Court in EZEKIEL NNEJI & ORS V CHIEF NWANKWO CHUKWU & ORS. (1988) LPELR-2058 (SC), where it held:
“the court must balance the application of its discretionary power to grant or refuse an application to dismiss an appeal for non compliance with the rules of that court, with its duty of giving an appellant the opportunity of obtaining substantial justice by granting him fair hearing in the appeal when that is considered expedient on the face of the materials before it…”
This court is compelled in the circumstances to resolve this issue in favour of the appellants/applicants, and against the respondents.
Accordingly, leave is granted to the appellants/applicants as prayed, to file additional ground of appeal out of time; leave is also granted to amend their notice and grounds of appeal.
The appellants/applicants also have leave of this court to file the appellants’/applicants’ brief of argument out of time; same is also deemed with effect from today as properly filed and served.
MOORE A. A. ADUMEIN, J.C.A.: I read before now the ruling just delivered by my learned brother – MOHAMMED MUSTAPHA, JCA.
I agree that the application ought to be granted.
For the elaborate reasons given by my learned brother, I also grant this application as prayed.
TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading in draft the Judgment just delivered by my learned brother, Mohammed Mustapha, JCA, and I am also in agreement that in the interest of Justice, and in order not to shut the applicants out, the application ought to be granted.
Accordingly leave is granted to the Appellants/applicants to file additional grounds of appeal out of time and amend their notice and grounds of Appeal.
Leave is also granted to the appellants/applicants to file their brief of argument out of time.
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Appearances
For Appellant
AND
Ricky Tarfa SAN, with him, Felex Yokachi Oluchukwu Akonobi, S.E. Alebuna Esq., C.U. Azubuike Esq.
P. Omijie.For Respondent
