SCANAD NIGERIA LIMITED v. PRIMA GARNET COMMUNICATION LIMITED & ANOR (2014)

SCANAD NIGERIA LIMITED v. PRIMA GARNET COMMUNICATION LIMITED & ANOR

(2014)LCN/7415(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 15th day of July, 2014

CA/L/436/2013(R)

RATIO

APPEAL: NOTICE OF APPEAL; WHETHER A VALID NOTICE OF APPEAL CAN BE AMENDED

Its trite that once there is a valid notice of appeal, it can be amended, the underlining word is valid, I agree with the Respondent counsel that, leave has mandatorily has to be obtained on grounds of mixed law and facts which in this case the Appellant has not refuted but contend that his grounds are on law of which appeal is as of right.
The fact that this was the position at the lower Court does not stop an Appellant with a valid process from filing or amending his process at the Appeal Court to correct any error that would put them on the right footing- SEE TSOKWA OIL MARKETING CO v. B.O.N. LTD SUPRA, SHANU V. AFRIBANK LTD SUPRA.
Furthermore arising from Tsokwa’s case, it was held that the merit of the grounds sought to be amended should not be appraised. The law has consistently being that at the stage of proceedings, the court considering the application should concern itself with whether on the face of the proposed grounds they are regular/ viable or not defective See ESHO V I.G.P. (1959) 3 F.S.C. 37. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

COURT: COURT’S DISCRETION; WHETHER THE APPELLATE COURT HAS BOTH STATUTORY AND INHERENT POWERS TO GRANT LEAVE FOR AMENDMENT OF NOTICES

COURT: COURT’S DISCRETION; WHETHER THE COURT WOULD BE INCLINED EXERCISE ITS DISCRETION IN FAVOUR OF THE APPLICATION TO AMEND PROCESS ALREADY FILED IN THE BEST INTEREST OF JUSTICE AND FAIRNESS

The notice of appeal was filed timeously and its trite that a notice of appeal may be amended with leave of court at any time to validate those grounds of facts or mixed law and facts, the court of appeal rules clearly allows this court to regularize an otherwise irregular process see ANADI V OKOLI 1977 7 SC 57.
At this stage of the application, what the court is concerned with is whether there are good reasons why the application should not be granted see OKPALA V. IBEME (1989) 2 NWLR PT. 102 208.
The determinant issue is whether the reliefs are deserving of the courts discretion? There is a difference between the law governing the filing of an appeal and an amendment to an appeal, the principle remains that the two are not the same, see SURUKATU v N.H.D.S. LTD (1981) 4 SC 26, TOSKWA OIL MARKETING CO NIG LTD V B.O.N. (2O02) 11 NWLR (PT. 777) 163.
In SALISU V. MOBOLAJI 2014 4 NWLR 1 AT 18 PAR D-D, the Supreme Court held thus;
“As long as an amendment being sought is not fraudulent vexatious or meant to overreach or merely annoy or embarrass the other party, the court will always be inclined in the best interest of justice and fairness to exercise its discretion in favor of the application to amend process already filed.” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

APPEAL: PRELIMINARY OBJECTION IN AN APPEAL; WHETHER A PRELIMINARY OBJECTION SHOULD NOT PRELUDE THE APPELLANT FROM SEEKING TO CORRECT THE ERROR WHICH THE PRELIMINARY OBJECTION SEEKS TO POINT OUT

In South Atlantic Pet Ltd v Min. Pet Res. (2014) 4 NWLR (Pt. 1396) 39. At page 40 par D-E, 41 par E-F Supreme Court Per M. D. MUHAMMAD JSC held that the filing of a preliminary objection showing errors in the process of an appeal does not prevent the appellant from making an application correcting his errors. The applicant can even start the process afresh on a more appropriate footing,”…. Courts are bound by their rules and acquit themselves only by conducting their proceedings in the manner their rules stipulate they should”.
AKAAHS JSC AT Page 44 of the same judgment held that “once the appellant can point to one valid ground of appeal in the original notice, he should be allowed to amend the notice as many times as possible. The filing by a respondent of a preliminary objection should not preclude the appellant from seeking to correct the error which the preliminary objection seeks to point out” See FSB INT’L BANK LTD V IMANO NIG LTD (2000) 11 NWLR (PT. 679) 620. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

SCANAD NIGERIA LIMITED Appellant(s)

AND

1. PRIMA GARNET COMMUNICATION LIMITED
2. OGILVY & MATHER AFRICA BV Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Lead Ruling): The Appellant /Applicant filed a notice of appeal dated 16th April, 2013, against the interlocutory decision of the lower Court delivered on the 15th April 2013. The appellant filed a motion dated and filed 23rd of May 2013, for;
1. An order of court granting leave to the applicant to amend its notice of Appeal dated and filed on 16th April 2013 against the ruling of the High Court of Lagos by Oyeabo J delivered on the, 15th of April 2013 in the manner set out in Exhibit PUC 3
2. An order extending time within which the Applicant may apply for leave to appeal against the decision of the lower Court on mixed law and facts and mixed law – proposed grounds 2, 3, 4, 7, and 8 as in Exhibit PUC
3. An Order granting leave to the Applicant to appeal against the decision on grounds of facts and mixed law and facts, to wit; Proposed grounds 2, 3, 4, 6, 7 and 8 as set out in Exhibit PUC 3
4. An order extending time within which the Appellant may appeal against the decision of the lower Court on grounds of facts and mixed law 2, 3, 4, 6, 7, and 8 as set out in Exhibit PUC3.
5. An order granting leave to applicant to argue proposed grounds 2, 3, 4, 6, 7 & 8 which are grounds of facts or mixed law and facts in its notice of appeal as set in Exhibit PUC 3.
6. An order extending the time within which the Applicant may file its brief of Argument in this Appeal.
7. And for such further or other Orders as the Honorable Court may deem fit to make in the circumstances of the appeal.

The application had 8 grounds, supported by an affidavit of 9 paragraphs, with Notice of appeal, Ruling and proposed Amended Notice of Appeal of 10 grounds. The appellant/applicant also had a written brief in support dated and filed on 11th of November 2013 which was settled by PAUL USORO SAN, MUNIRUDEEN LIADI ESQ, ADETAYESE LATILO ESQ, CHINEDU ANYASO ESQ AND OLUGBENGA ONALAJA

The Respondent in response filed by a preliminary objection dated 14th June 2013, filed on 17th June 2013, that; the appeal be dismissed in its entirety for being grossly incompetent, on the grounds that:
1. There is no competent appeal before the Court.
2. The notice of Appeal dated 16/4/013 is incompetent on the ground that grounds 1, 4, & 5 thereof are mixed law and facts and leave of court was not sought and obtained before the said notice of appeal
3. The 1st Respondent had joined issues with the Appellant/Applicant on the facts stated in the ground 2 above vide its counter-affidavit filed at the Trial Court’s Registry dated 24/4/013 {Exhibits AA1 & AA2 in support of N.O.P}
4. The said notice of appeal being incompetent cannot be cured by way of amendment.

It was supported by a 10 paragraph affidavit, with an exhibit a counter affidavit in opposition to 2nd defendant’s motion on notice (in the lower Court) dated 17th April 2013. The 1st Respondent further filed a counter-affidavit of 7 paragraphs in opposition to the Appellant/Applicant’s notice of motion of 17th June 2013. On the 3rd of December 2013, the 1st Respondent filed its written address in support of the preliminary objection and in opposition to the appellant’s application, which was settled by ALADE AGBABIAKA ESQ SAN, G. K. ABDUSALAM ESQ, in addition 1st Respondent filed a further and better affidavit dated and filed on 14th Nov 2013.

The Applicant further filed the following processes; further Affidavit and 2nd further affidavit in support and reply to 1st Respondent counter affidavit dated and filed on 23rd August 2013, and 27th September 2013 with 3 exhibits. Appellants/Applicants reply address in support of its motion on notice and in opposition to preliminary objection was dated and field 20/1/14.

The 1st Respondent formulated two issues for determination in its written address;
i. Whether the Appellant’s Notice of Appeal dated 16th April 2013, against an interlocutory decision of the lower Court (whose grounds 1, 2, 3, 4, & 5 are grounds of mixed law and facts) is competent having regard to the Appellant’s failure to obtain the leave of court before bringing same.
ii. Whether an incompetent Notice of Appeal can be cured by way of amendment.

On issue 1, the 1st Respondent referred to Section 242(1) of the Constitution, that leave must be sought to appeal though, circumstances are not stated, but list out circumstances under which an appeal may be lodged as of right amongst which is where the grounds of appeal involves questions of law alone or a final decision of the lower Court.

Counsel referred to NALSAL & TEAM ASSOCIATES vs NNPC (1991) 8 NWLR (PT. 212) SC 652 AT 678 PAR D-E, that failure to obtain leave renders an appeal null and void and of no effect where grounds of mixed law and facts exist. He submitted that grounds 1, 2, 3, 4, & 5 relied upon in the Notice of APPEAL dated 16th April, 2013, are mixed law and facts hence leave is required, he further referred to NJEMANZE VS NJEMANZE (2013) 8 NWLR (Pt. 1356) SC 376 on determination on the type of grounds, he analyzed the grounds seriatim and submitted that they each question the evaluation by the lower Court, he relied further on OKEKE VS PETMAG NIG LTD (2005) 4 NWLR (Pt. 915) 245, ALAMIEYESEIGHA VS CJN (2005) 1 NWLR (PT. 906) 60.

Counsel for 1st respondent submitted that the applicant described his grounds as one of law in paragraph 4f of his address and that he cannot be seeking leave for it nor for the proposed grounds which is not before the court.

The 1st respondent submitted that the legal implication of not first seeking and obtaining leave before filing the appeal against the interlocutory decision of 15th April 2013 as held in COOP BANK vs OGWURU (1991)1 NWLR (Pt. 459) 458 AT 467 that where leave has not been sought before filing a notice of appeal it cannot be sought out of time to deem the notice of appeal (which is incompetent) as properly filed out of time as this application now seeks to do. He referred to Order 2, 3, 4, 5 of Court of Appeal Rules 2011 and Section 24 of Court of Appeal Act which provides for 14 days for Notice of appeal to be filed, and that there are two stages of seeking leave –
1. Leave of lower Court within the statutory time for appealing and leave of Appellate Court if after expiration of statutory time for appealing.
2. The application must be filed first before trial or Lower Court.
3. If after statutory time has expired, it must be filed at the Court of Appeal accompanied with the application for extension of time.
4. After obtaining leave the appellant shall then file its notice of Appeal within 14days
5. By Order 7 rules 5, filing of notice of appeal aforesaid must not precede the obtaining of leave to Appeal.

Respondent counsel stated that the notice of appeal was filed within 14 days but deliberately failed to seek leave of the High Court on grounds of mixed law and facts within 14days which he says is contrary to NASAL & TEAM ASSOCIATES ASSOCIATION V NNPC (SUPRA) That the applicant has no cogent and compelling reason for not complying with the procedure set down, he further submitted that Section 14 (1)& (2) of the Court of Appeal Act emphasizes leave as a condition precedent he relied on AROYEWUN vs ADEBANJI 1976 11 SC 33, GAMBONI VS BINTUMI (2010) 15 NWLR (PT. 1217) 463, ADILI VS STATE (1989) 2 NWLR (PT. 193) SC 305, finally he urged that the Notice of appeal be struck out.

ON ISSUE 2; WHETHER AN INCOMPETENT NOTICE OF APPEAL CAN BE CURED BY WAY OF AMENDMENT:
He referred to the following cases; COOP BANK VS OGWURU (SUPRA) AT PG 458, 467, FBN PLC VS MAIWADA (2013) 5 NWLR (PT. 1348) 444 SC That a further attempt to cure a defective Notice of appeal by way of amendment is tantamount to attempting to administer medication after death. He relied on OKAFOR V ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659, 678-679 , DAPORI VS SADIKWU (1998) 12 NWLR (PT. 532), 71, AT 79, UWAZURIKE VS AGF (1997) 8 NWLR (PT. 1035) SC 1 AT 17 on implication of a null and void process, that the court should strike out the Notice of Appeal.

In response to the appellant’s argument to paragraph 3.1.2 of the 1st Respondent’s brief on authority of FBN PLC VS MARY MEDICAL CLINIC (2001) 9 NWLR (PT. 717) 28 AT 44 that it does not avail them as it was filed without leave of Court
On paragraph 3-1-3, he contended that the appeal is an attempt to delay justice for the 1st respondent who instituted the suit in the High Court, and that the interlocutory appeal can wait till the final determination.

On par 3.2.1 to 3.2.4 of the appellant’s brief, he submitted that the grounds 2, 3, 4, 6, 7, and 8 of the fresh proposed grounds of appeal are also incompetent as the Court has not granted leave to amend the original notice of appeal. He referred to CONSOLIDATED BREWERIES PLC VS JOSHUA AISOWEIEREN (2001) 15 NWLR (PT. 736) 424, DALORI VS ADIKWU (SUPRA)
Finally the counsel submitted that if the court deems the notice of Appeal of 16th April 2013 as a non-existent process then, same can never be amended because one cannot put something on nothing he referred to UAC VS MCFOY (supra),

The Appellants /Applicants filed a reply address and in opposition to 1st respondent’s notice of preliminary objection and a 9 paragraph counter affidavit to which were attached exhibits in opposition to the 1st respondent’s preliminary objection on the sole issue;
“Considering the facts in support of this application, is the Application deserving of discretionary exercise of court’s powers in granting the reliefs sought by it (applicant) in this application.

The applicant submitted that all his grounds in the Notice of appeal are on law and that the submissions of 1st Respondent is misconceived he referred to SHANU & 1 OR v AFRIBANK (NIG) PLC (2000) 13 NWLR (PT. 684) 392 which principles were reiterated in MARINE MANAGEMENT ASSOCIATION INC. & OR V NATIONAL MARITIME AUTHORITY (2012) 18 NWLR (PT. 1333) 506 AT 529-530 PAR B-E

He reviewed all the grounds 1, 2, 3, 4, while applying principles reiterated by the Supreme Court that in ground one, the main issue is whether the respondent was a party to the Affiliation agreement? and this fact was not in issue howsoever -all parties are agreed that the Appellant was not a party this was acknowledged even by the court in its ruling now on appeal. Therefore the appellant asserted that the lower Court misapplied the law when it held that the 1st Respondent’s suit discloses a cause of action. Counsel submitted on ground 3 that, it deals with jurisdiction of the court to have made a status quo order in the light of her findings. Finally counsel submitted that the Court should discountenance the respondent’s submission, and assuming without conceding that any or some of the grounds are mixed law and facts it does not render incompetent the entire Notice of appeal as long as at least one of the grounds is found by the Court to be one of law he relied on NAM & T LIMITED V. ONIKOYI (2011) 4 NWLR (PT. 1236) 135 AT 146 PAR B AND HASSAN V ATANYI (2002) 8 NWLR (PT. 770) 581 AT 605 PAR D-F.

The first point of call is to determine the preliminary objection dated 14th June 2013 and filed on 17th June 2013, which is against the notice of appeal dated 16th April 2013 on the main ground that the earlier grounds, 1, 4 & 5 in the Notice of Appeal dated 24th April 2013 are mixed law and facts for which leave was not sought and obtained.

1st Respondent contended that he opposed the appellant’s motion for stay at the lower Court hence he withdrew his motion and that counter affidavit in opposition was attached marked Exhibit AA1 to his 1st Respondent further and better affidavit in support of preliminary objection. It was part of his complaints also that leave was not obtained at the lower Court.

The applicant in answer submitted that, he deposed in his further affidavit in support of his application and reply to 1st respondent’s counter affidavit sworn to on 17/6/2013 in paragraph 4 that, the lower Court’s registry had concluded compilation and had transmitted the records of appeal to the Court of Appeal and this act divested the lower Court of jurisdiction to hear any application hence all his applications at the time were withdrawn.

Counsel for Applicant further submitted without conceding that any or some of the 5 grounds is or are grounds of mixed law and facts surely that does not make incompetent the whole Notice of Appeal as long as one of the grounds is found to be a ground of law he relied on NAM &T LTD V ONIKOYI (2011) 4 NWLR (PT. 1236) 135 AT 146 PAR B, HASSAN V ATANYI (2002) 8 NWLR (PT. 770) 581 AT 605 PAR D-F

In determining the preliminary objection, the court has to examine if the appellant’s grouse is correct, therefore, the grounds complained of are Nos; 1, 4, & 5 in the Notice of appeal dated 16th April 2013, though in its Respondent’s address he attacked all the five grounds. When put against the guide lines OGBECHE & ORS v. ONOCHIE & ORS (SUPRA), MARINE MANAGEMENT ASSOCIATES INC & 1 OTHER V NATIONAL MARITIME AUTHORITY (SUPRA) and a host of cases as replicated in the Respondent’s brief; It then means that from relief ii of the grounds of the preliminary objection which binds this court and the parties, other grounds of appeal are not affected, Its therefore implied that, there are two grounds which will sustain this appeal. However all the grounds are reproduced hereunder;
GROUND 1
The learned trial Judge erred in law when she assumed jurisdiction over the Appellant by holding that the 1st Respondent’s case at the lower Court discloses a reasonable cause of action against the Appellant, when the whole of the 1st Respondent’s case is predicated on the breach of the Affiliation Agreement to which the Appellant was not a party.”
The Particulars thereto are as follows:
a. “The 1st Respondent’s cause of action before the lower Court arose from an alleged breach of Affiliation Agreement solely between the 1st Respondent and the 2nd Respondent.
b. The Appellant, not being a party to the Affiliation Agreement, filed an application to challenge the jurisdiction of the lower Court on the grounds that the 1st Respondent’s Suit discloses no cause of action against it as the crux of the 1st Respondent’s case is the breach of the Affiliation Agreement between it and the 2nd Respondent only.
c. Based on the Originating Processes before the lower Court, the Appellant is neither an agent nor a principal of the 2nd Respondent.
d. It is trite law that only parties to an agreement are bound by same and only the parties to an agreement can sue and be sued on same. The Appellant not being a party to the Affiliation Agreement cannot sue and/or be sued with respect to the breach of same.
e. It is also trite law that even where the agreement is for the benefit of a third party such third party cannot sue or be sued in respect of that agreement since it is not a party to the agreement.”

GROUND 2
“The learned trial Judge erred in law when she held that the Appellant having joined issues with the Respondent in its Statement of Defence, the Court cannot resolve the issue raised by the Appellant in its motion.”
The Particulars thereto are as follows:
a. The Appellant’s application was brought pursuant to Order 22 Rule 2 of the High Court of Lagos [Civil Procedure] Rules 2012 (“the Rules”) and the Rules provide that any party may by his pleading raise any point of law and the Judge may dispose of the point so raised before trial.
b. The Rules anticipated that the party raising the point of law should have filed its pleadings and raise the point of law therein, prior to filing a formal application seeking to set aside the Plaintiff’s suit.
c. The joining of issues in the Statement of Defence is a pre-requisite to the filing of the application to set aside the suit and does not howsoever inhibit the lower Court from considering the application.
d. It is trite law that for the consideration of the Appellant’s application, the subject of this Appeal, the lower Court needs only to look at the 1st Respondent’s Originating Processes and not the Appellant’s Statement of Defence.

GROUND 3
The Learned Trial Judge erred in law when she held that the status quo Order made by the Court on 19 December 2012 was made with jurisdiction with respect to the Appellant as the Appellant was not a party to the Affiliation Agreement which is the crux of the 1st Respondent’s Suit before the lower Court.
The Particulars thereto are as follows:
a. “The Appellant hereby relies and adopts the Particulars of Error contained under Ground One hereof as if same were set out hereat, seriatim.
b. The 1st Respondent had categorically stated in paragraphs 4 and 5 of the Statement of Claim that the Appellant is not a party to the Affiliation Agreement which is the crux of the Suit before the lower Court.
c. The 1st Respondent’s suit not having disclosed a cause of action against the Appellant, the lower Court had no jurisdiction to make the order of status quo against the Appellant.
d. The Appellant is a duly registered limited liability company under the laws of the Federal Republic of Nigeria with powers to conduct several businesses listed in its Memorandum and Articles of Association, beyond those listed in the Affiliation Agreement.
e. The Appellant had long been carrying on its business prior to hostilities between the 1st and 2nd Respondents and filing of the Suit at the lower Court.”

GROUND 4
“The Learned Trial Judge misdirected herself in law when she held that the status quo Order made by the Court on 19 December 2012 relates back to the time before hostilities and not as at 19 December 2012.”
3. The Particulars thereto as follows:
a. Precisely on the 19 December 2012, the lower Court made an order for status quo to be maintained pending the hearing and determination of the applications here fixed for 09 January 2013.
b. The Appellant is a duly registered limited liability company under the law of the Federal Republic of Nigeria with powers to conduct several businesses listed in its Memorandum and Articles of Association, beyond those listed in the Affiliation Agreement.
c. The Appellant had long been carrying on its business prior to hostilities between the 1st and 2nd Respondents and filing of the suit at the lower Court.
d. The interpretation given to the Status Quo Order of the lower Court amounts to depriving the Appellant the right to carry on any of the businesses for which it was incorporated.
e. The Appellant was neither aware of nor part of the hostilities between the 1st and 2nd Respondent.

GROUND 5
“The learned trial Judge erred in law when she dismissed the Appellant’s Point of law Motion to set aside the Suit and all the Reliefs therein contained, thereby assuming jurisdiction over the Appellant.”
The Appellant “adopts and relies on the Particulars of Errors contained in Grounds 1 hereof as if same were set out here at seriatim.”

The preliminary objection bothers on jurisdiction of the court which is so fundamental and being a threshold issue, it is imperative to have it determined first before proceeding to the application for amendment, since the lack of it would deprive the court the power to decide on the main matter. The mere fact that an Appellant describes a Ground of appeal as a ground of fact or law will not necessarily render it to be so.

In examining the grounds together with its particulars; In ground 1, basically there was no dispute about parties to the Affiliation agreement as seen from the ruling therefore it has left the arena of facts, it is now on the question whether the lower Court applied the principles of law in holding the appellant liable. This is therefore an admitted and uncontroversial issue and deals with a misapplication of the law, but the manner the ground has been couched suggests that it involves an examination of facts in the originating processes and the parties to determine whose benefit, or the agent and principal therein hence it’s an issue of mixed law and facts.

On ground 2, it is an interpretation of the rules of court, procedure viz-a-viz the motion filed, it’s clearly one of law in line with the guidelines in the Ogbechie’s case
Ground 3, is also a ground of law having agreed that the Appellant is not a party to the said agreement which was the subject matter, the question is, can a court validly make a status quo order against him? it calls for an application of the law on the uncontested and admitted facts.

On Ground 4, I find cannot be examined without a reference to times and events to determine the effective date of such status quo from the particulars, it needs an examination of the processes to evaluate the issue of records and dates and events certainly, it will involve facts contained in the pleadings and affidavit before the application of the law, it is therefore one of mixed law and facts.

Ground 5, involves the jurisdiction of the court under the circumstance against the Ruling, it follows from the particulars in ground 1 on uncontested facts; I agree that it’s a ground of mixed law and facts it again calls for an examination of processes and status of parties and a further understanding of the said Affiliation Agreement.

Having combed through the Record of proceedings it is not in doubt that no leave was obtained before the appeal was filed. Grounds, Nos. 2, & 3 in the Notice of appeal of 16/4/2010 are grounds of law and they sustain the Notice of Appeal. Grounds 1, 4 & 5 are struck out. See OJEA v. BABALOLA (1987) 4 NWLR (Pt. 64) 208, FAITH ENTERPRISES LTD V BASF NIG LTD (2010) 1 SCM 41 AT 53-54 One ground of mixed law and facts therein sustains it, therefore the notice of appeal of 16th April 2010 is competent. SOUTH ATLANTIC PET LTD V MIN PET. RES (2014) 4 NWLR (PT. 1396) 39

Having resolved, this issue, there is no point considering Issue 2 of the preliminary objection which is “whether an amendment can cure an incompetent appeal” the answer is clearly No! In the light of the above the preliminary objection lacks merit and is overruled.

In considering the merits of the appellant’s motion, Counsel for Applicant adopted the processes filed; and the written brief in support 9 paragraph affidavit, with attached 3 exhibits, and further affidavit, He formulated an issue for determination;
“Considering the facts in support of this application, is the Applicant deserving of the discretionary exercise of the Court’s power in granting the reliefs sought by it (the applicant) in this application

Appellant counsel submitted that the whole provision in Order 6 rules 15 of the Court of Appeal Rules 2011 empowers the court grant the reliefs sought, and makes provision for an amendment with leave of court at any time, he relied on FBN v. MAY CLINICS (supra), Shanu v Afribank Nig Plc (supra). He stated that the interest of justice favors a grant of his application; he referred to paragraphs 4 & 5 of the supporting affidavit that, the notice of appeal was filed timeously and reasonable and compelling reasons for the amendment has been given. Counsel submitted that its trite that a notice of appeal may be amended with leave of court at any time to validate those grounds of facts or mixed law and facts, the Court of Appeal Rules clearly allows this Court to regularize an otherwise irregular process see ANADI v. OKOLI 1977 7 SC 57

On extension of time within which to argue on mixed law and facts he submitted that in an interlocutory appeal leave was mandatory he referred to AKEREDOLU V AKINREMI (1986) 2 NWLR (PT. 25) 710 AT 733 PAR A., OLATUNBOSUN V TEXACO (2012) 14 NWLR (PT. 1319) 200, AKINPELU V ADEGORE (2008) 10 NWLR (Pt. 1096) 531 568.

Counsel further submitted that he had compiled and transmitted the records of Appeal to this Court and so needed extension to file his brief of argument which was 45 days under the rules and had since expired and prayed for 14 days within which to file his brief and 7 days to file notice of appeal, he relied on NNEJI v. CHUKWU (1988) 3 NWLR (PT. 811) 84.
Respondent counsel in response canvassed that the authorities cited did not avail them and that its an attempt to delay the justice of the case and the appeal can wait till final conclusion of the substantial case. He further contended that the grounds are incompetent and time cannot be extended for the new grounds to be argued having not obtained leave. He relied on CONSOLIDATED BREWERIES PLC VS JOSHUA AISOWEREN (2001) 15 NWLR (PT. 736) 424

In considering the affidavit facts in support of the application, paragraphs 4 and 5 therein contains reasons for the application leave and extension of time, that the grounds contain mixed law and facts, and the need for the controversy to be brought before the court in the interest of justice. And furthermore Records have since been transmitted, to expedite action.
Uwaifo JSC in FBN V MMCDC (SUPRA) categorically stated on this issue-
“Once there is a valid notice of appeal, it can be amended. The purpose of such an amended must be to ensure that the complaints of the Appellant against the proceedings in question are laid and ventilated before the court from exercising its undoubted discretion to allow an amendment both to the notice of appeal and the brief of argument so long as the amendment would serve the ends of justice and fairness, and the other party can be compensated by cost; see PHARMATEK INDUSTRIAL PROJECTS LTD V BAYO OJO 1996 1 NWLR (PT 424) 332 AT 338, F.B.N. PLC V. M. M. C. & D. C. (SUPRA), SOUTH ATLANTIC PET LTD V MIN PET. RES (SUPRA) CASE, DR ERASTUS AKINGBOLA AND ANOR V. INTERCONTINENTAL BANK PLC & ORS APPEAL NO CA/L/606/11 DELIVERED ON 7/3/14 PER AMINA ADAMU AUGIE JCA, SATOIL NIGERIA LTD V. INDUCON NIGERIA LTD & ANOR CA/L/665/2012 PER JOSEPH SHAGBAOR IKYEGH JCA.

The appellant in the supporting affidavit and his address submitted that after he received and reviewed the decision of the lower Court, he discovered that there was a need to file additional grounds of appeal in order to put all issues in controversy in the appeal before the court, and that the proposed grounds are mixed law and facts, therefore leave must be obtained., and the prescribed time for this has expired hence the application, and by the time the application is heard, time for filing brief of arguments would also have lapsed. These appear to be compelling and cogent reasons for the discretion of the court to be invoked, and is in line with appellant evidence.

On discretionary powers of court to grant leave for amendment of Notices this court has both statutory and inherent powers to grant this application and the reasons in the affidavit amounts to sufficient facts and materials before the court together with Order 6 rule 15 of the Court of Appeal Rules empowers the Court to grant leave to amend its notice of Appeal. In SHANU v AFRIBANK (NIG) PLC (2000) 13 NWLR (PT. 684) 392 AT 401 PAR H Where the court reasoned that:-
‘The discretion to grant leave to a party to amend his ground of appeal is liberally exercised in so far as an amendment can be made without injustice to the other party and is not belated as to cause undue delay in the proceedings’.
I agree with Applicant’s Counsel that briefs haven’t been filed and none of the parties will be prejudiced.
The 2nd respondent did not file any process in opposition to this application but stated through their counsel Azikwe Esq. that they do not oppose the application
Once the facts upon which the application are predicated justify the grant of the relief a court will grant the application; see F.B.N. PLC V. M.M.C. & D.C. (SUPRA), PHARMATEK’S IND. PROJECTS LTD. SOUTH ATLANTIC PET LTD V. MIN PET. RES (2014) 4 NWLR (PT. 1396) 39, DR ERASTUS AKINGBOLA AND ANOR V. INTERCONTINENTAL BANK PLC & ORS APPEAL NO CA/L/606/11 DELIVERED ON 7/3/14 PER AMINA ADAMU AUGIE JCA, SATOIL NIGERIA LTD V. INDUCON NIGERIA LTD & ANOR CA/L/665/2012 DELIVERED ON 15TH APRIL 2014 PER JOSEPH SHAGBAOR IKYEGH JCA.

Paragraphs 3, 4, 5, 6, & 7 of the Affidavit of Olugbenga Onalaja coupled with Exhibits PUC1, PUC2 & PUC3; copies of Notice of Appeal, Ruling and proposed Notice of appeal are clearly in line with the affidavit evidence, that the new grounds consist of facts or mixed law and facts which require leave of court and the time within which to seek leave and file brief has lapsed.

By virtue of Order 6 rules 15, and Order 7 rules 1, 4, 10 (1) of Court of Appeal Rules 2011, a Notice of appeal may be amended by or with leave of Court at any time, besides the Respondent has not stated that the Applicant’s reasons for the application were not good and arguable or that it would be unjust to grant neither would they be prejudiced.
This important consideration must be that the amendment would serve the ends of justice and fairness and the other party can be compensated by cost.

In South Atlantic Pet Ltd v Min. Pet Res. (2014) 4 NWLR (Pt. 1396) 39. At page 40 par D-E, 41 par E-F Supreme Court Per M. D. MUHAMMAD JSC held that the filing of a preliminary objection showing errors in the process of an appeal does not prevent the appellant from making an application correcting his errors. The applicant can even start the process afresh on a more appropriate footing,”…. Courts are bound by their rules and acquit themselves only by conducting their proceedings in the manner their rules stipulate they should”.
AKAAHS JSC AT Page 44 of the same judgment held that “once the appellant can point to one valid ground of appeal in the original notice, he should be allowed to amend the notice as many times as possible. The filing by a respondent of a preliminary objection should not preclude the appellant from seeking to correct the error which the preliminary objection seeks to point out”
See FSB INT’L BANK LTD V IMANO NIG LTD (2000) 11 NWLR (PT. 679) 620.

The justice of the case from the above reasoning requires that the applicant be obliged, the 1st Respondent would lose nothing, more so briefs of Arguments are yet to be filed.
The application is granted in the following terms;
1) Leave is granted to the applicant to amend its notice of appeal dated 16th April 2013 as shown in Exhibit PUC 3 the proposed Amended notice.
2) Time is extended within which the Applicant may apply for leave to appeal against the decision of the lower Court on grounds of mixed law and facts is granted to appeal against as contained in Exhibit PUC 3.
3) Leave is hereby granted to Applicant to appeal against the ruling on mixed law and facts as set out in Exhibit PUC 3
4) Time is extended within which to appeal against the said Ruling as shown in Exhibit PU3.
5) Applicant is granted leave to argue proposed Grounds 2, 3, 4, 6, 7 & 8 which are mixed law and facts as set out in Exhibit PUC3
6) Time is extended within which the applicant may file its Amended Notice of Appeal within 14 days and Brief of Arguments in this appeal within 7 days. The 1st Respondent is awarded costs of N50,000.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the comprehensive Ruling prepared by my learned brother, Abimola Osarugue Obaseki -Adejumo J. C. A., with which I agree with nothing extra to add.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now, the ruling just delivered by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO JCA. I agree with his Lordship that the preliminary objection lacks merit and should be overruled. I also overrule same and grant the application for various reliefs as set out in the motion dated 23/5/13 and filed same date. I abide by the consequential orders in the lead ruling including the order as to costs.

Appearances

Munirudeen Liadi, O. OnalajaFor Appellant

AND

Thompson Ashoji for 1st Respondent
U. H. Azikiwe, R. Chukwuocha and F. E. Onwuzu for 2nd Respondent.For Respondent