GARBA G. HAMMAN JULDE v. ABDULSALAM GAMBO MUBARAK & ORS
(2019)LCN/13017(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of April, 2019
CA/YL/23/2019(R)
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
GARBA G. HAMMAN JULDE Appellant(s)
AND
1. ABDULSALAM GAMBO MUBARAK
2. ALL PROGRESSIVE CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
WHETHER OR NOT AN INCOMPETENT NOTICE OF APPEAL CAN BE AMENDED AT ANY STAGE OF THE PROCEEDINGS
It is trite that a Notice of Appeal which is not incompetent per se can be amended at any stage of the proceedings. An appeal is a Constitutional Right and the Courts would not easily deny such a right by objections or oppositions to such amendment that would delay the hearing of an Appeal, more so as also observed by both Learned Counsel in this application to the effect that the substantive appeal is a pre-election matter in which time is of the essence. The parties and indeed the Court would not have the luxury of ample time in a regular appeal that enjoys maximum time within which to determine the appeal. PER UWA, J.C.A.
WHETHER OR NOT A VALID NOTICE OF APPEAL IS COMPETENT
Where an appeal is competent, as in this case where the Notice of Appeal was filed on 7/2/19, it is a valid Notice of Appeal, the existing grounds of appeal may be amended by alteration, addition or a subtraction, in the present case, an addition to the original grounds of appeal already filed. See, AWOTE & ORS VS. OWODUNNI & ANOR (1986) 5 NWLR (PT 46) 941. But, where an appeal is not competent such as where leave to appeal ought to be sought and granted was not obtained, no valid amendment can be made because one cannot put something on nothing. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A.(Delivering the Lead Ruling): The application was filed pursuant to Order 4 Rule 1 and Order 7 Rule 8 of the Court of Appeal Rules 2016 and under the inherent jurisdiction of the Honourable Court. In the application filed on 29/3/19 the Appellant/Applicant sought the following reliefs:
1. ?AN ORDER granting leave to the Appellant/Applicant to amend his Notice of Appeal filed on 7th day of February, 2019 in the manner specifically underlined by adding grounds 8 and 9 as shown in the Proposed Amended Notice of Appeal.
2. AN ORDER deeming the Amended Notice of Appeal which has been separately filed as properly filed and served on the Respondents.
3. AN ORDER granting leave to the Appellant/Applicant to Amend his Brief of Argument in line with the proposed Amended Notice of Appeal.
4. AN ORDER deeming the Amended Brief of Argument which has been separately filed as properly filed and served on the Respondents?.
The grounds upon which the application was brought are as follows:
1) ?That the Appellant briefed S. I. Waziri Esq. to prosecute the Appeal and recently Abdulhamid
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Mohammed Esq. received the instruction of the Appellant to lead S. I. Waziri Esq. in the Appeal pending before the Honourable Court.
2) That the Notice of Appeal was filed on the 7th of February, 2019 and the Brief of Argument was filed on behalf of the Appellant by S. I. Waziri Esq. on the 1st of March, 2019 in the Appeal No: CA/YL/27/2019.
3) That when Abdulhamid Mohammed perused the Notice of Appeal filed by S. I. Waziri Esq., he found it expedient to amend the Notice of Appeal by incorporating more grounds.
4) That the Appellant/Applicant needs leave of this Honourable Court to amend the said Notice of Appeal and consequently to amend the Brief of Argument?.
?The application was supported by an eight (8) paragraph affidavit to which was annexed Exhibit ?A? a letter of instruction to the learned counsel to the Appellant/Applicant herein to lead S. I. Waziri Esq. in the present appeal dated 26th March, 2019; Exhibit ?B1? a copy of the Notice of Appeal filed on 7/2/19; Exhibit ?B2? a copy of the Appellant?s Brief of Argument filed on 1/3/19 and Exhibit ?C? a copy of
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the proposed Amended Notice of Appeal. A copy of the Amended Notice of Appeal and the Appellant/Applicant?s Amended Brief of Argument have been separately filed. In arguing the application Abdulhamid Mohammed Esq. argued in terms of his motion papers while reliance was placed on his affidavit in support of the application with the annexures.
It was argued that the counter affidavit filed by the 1st Respondent today 3/4/19 stated the obvious in respect of materials already before the Court. Reference was made to paragraph 15 of the counter affidavit to the effect that time is of the essence in a pre-election matter such as the present appeal because the 4th Alteration to the 1999 Constitution of the Federal Republic of Nigeria (as amended) by S. 285 (12) there is a time limit of sixty (60) days within which to hear a pre-election matter. It was submitted that it is at the discretion of this Court to exercise its discretion for the expeditious determination of the appeal and each party given an opportunity to ventilate his cause. We were urged to grant the application.
?In response, the Learned Counsel to the 1st Respondent F. K. Idepefo Esq. opposed the
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application and filed a counter affidavit of seventeen paragraphs.
It was submitted that a defective Notice of Appeal cannot be amended. It was argued that the Notice of Appeal filed in the lower Court was not served on the 1st Respondent before the compilation of the records of appeal. Also, that before the compilation of records, S. I. Waziri Esq. had accepted service on behalf of the 2nd Respondent, an adversary. Reference was made to the cases ofADEGBOLA VS. GODWIN OSIYI & ORS (2017) VOL. 269 LRSN PAGE 1, PAGES 10-17; NUT TARABA STATE VS. HABU & ORS (2018) 15 NWLR (PT 1642) PAGE 381 AT 387 ? 392 and NWAIGWE VS. OKERE (2008) VOL. 13 NWLR (PT 1105) AT PAGE 445 AT PAGE 474. It was argued that an amendment that overreaches the adversary should not be allowed. Reference was made to paragraphs 9 – 14 of the counter affidavit. Further, that the Appellant?s Brief had been served as well as the 1st Respondent?s brief of Argument joining issues and that the application to amend a defective Notice of Appeal is a somersault. Reliance was placed on the case of AKANINWO VS. NSIRIM (2008) ALL FWLR (PT 1210) PAGE 610 AT 656 where the
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Supreme Court outlined the circumstances under which an amendment would not be allowed. It was concluded that the fact that the Appellant?s Counsel was briefed late is of no moment. We were urged to hold that the application was brought late and that the Court should not be put under pressure.
In reply, Mr. Mohammed submitted that the non service has been cured by the provisions of the Rules of this Court under Order 2 Rule 1 (a) and (b) of the Court of Appeal Rules, 2016, also by Order 2 Rules 7 and 8. It was submitted that the important thing is whether the Notice of Appeal has been communicated to the 1st Respondent? Reference was made to the 1st Respondent?s Notice of Preliminary Objection to the Appeal filed on 8/3/19 where a similar objection was raised on the issue of service in respect of the appeal. Reference was also made to the learned counsel?s counter affidavit, particularly paragraphs 9 and 10. It was submitted that on 4/2/19 when this matter came up the learned counsel to the 1st Respondent appeared before this Court sitting in Jalingo and that he did not raise the issue of non service of the Notice of Appeal but did so in
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a sister appeal that came up the same day in Appeal No. CA/YL/27/19 to the effect that the record of appeal had not been served to which this Court ordered that the record be served on the 1st Respondent. It was argued that the 1st Respondent?s counsel had conceded to the issue of non-service of the Notice of Appeal and it is late to raise same at the stage of the present application.
The Learned Counsel to the Applicant contended that the 1st Respondent could raise the issue of non service in his brief of argument to which the Appellant/Applicant would reply. It was submitted that the case of ADEGBOLA VS. GODWIN OSIYI AND ORS (2017) (supra) cited and relied upon by the learned counsel to the 1st Respondent was argued not to be applicable, as it is applicable in respect of particular provisions of the Supreme Court Rules. We were urged to grant the application.
?I have examined the reliefs sought together with the affidavit in support of the application and the Counter Affidavit in opposition as well as oral argument of learned counsel with the legal authorities therein. It is trite that a Notice of Appeal which is not incompetent per se can be
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amended at any stage of the proceedings. An appeal is a Constitutional Right and the Courts would not easily deny such a right by objections or oppositions to such amendment that would delay the hearing of an Appeal, more so as also observed by both Learned Counsel in this application to the effect that the substantive appeal is a pre-election matter in which time is of the essence. The parties and indeed the Court would not have the luxury of ample time in a regular appeal that enjoys maximum time within which to determine the appeal. The challenge of the Notice of Appeal filed on 7/2/19 is that it was not served on the 1st Respondent before the Records of Appeal were transmitted to this Court not that the Notice of Appeal is outrightly incompetent. The competence of the Notice of Appeal has been raised and argued in the preliminary objection filed by the 1st Respondent in opposition to the main appeal, filed on 8/3/19 to which the Appellant/Applicant responded to in his counter affidavit filed on 11/3/19. Exhibit ?A? was not disputed by the learned counsel to the 1st Respondent to the effect that the Appellant?s counsel was given
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instruction to represent the Appellant/Applicant on 26th March, 2017 and that the said letter was received at 1.30pm on 27/3/19. The present application was filed two days later with the proposed amended Notice of Appeal and the proposed Amended Brief of Argument.
?The applicant has sought to amend his Notice of Appeal by adding two additional grounds of appeal which would affect the Brief of Argument already filed by the Appellant and the 1st Respondent would be at liberty to amend his Brief of Argument. I will refrain at this stage from pronouncing on whether the non-service of the Notice of Appeal on the 1st Respondent at the stage of hearing the substantive appeal makes the Notice of Appeal sought to be amended incompetent thus rendering it incapable of being amended. For now, the learned counsel to the 1st Respondent is aware of the Notice of Appeal sought to be amended, Exhibit ?B?1 and Exhibit ?B?2 the proposed Amended Appellant?s Brief of Argument also separately filed. The authorities cited and relied upon by learned counsel to the 1st Respondent would be appropriated in the preliminary objection raised against
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the main Appeal challenging the competence of the Notice of Appeal now sought to be amended. Considering the authorities would touch on the substantive appeal and the objection therein, the Courts are not permitted to delve into the substantive issues in an application preceding the main matter. No doubt the application was brought close to the end of the life span of this appeal but the Appellant/Applicant?s counsel who was briefed not too long ago is also operating under a limited frame of time as well as this Court that has to conclude the proceedings and arrive at a decision sooner or later, time constraint has to be borne by all the parties and the Court considering the position of the time frame within which to determine the appeal as imposed by the Constitution to which we are all bound. I am of the view that the 1st Respondent will not be prejudiced by the grant of the application in any way. As I said earlier in this Ruling, the learned counsel to the 1st Respondent has not challenged the competence of the Notice of Appeal sought to be amended on the face of it but, has tagged it incompetent for non service which would be addressed as
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raised and argued in the main appeal. Where an appeal is competent, as in this case where the Notice of Appeal was filed on 7/2/19, it is a valid Notice of Appeal, the existing grounds of appeal may be amended by alteration, addition or a subtraction, in the present case, an addition to the original grounds of appeal already filed. See, AWOTE & ORS VS. OWODUNNI & ANOR (1986) 5 NWLR (PT 46) 941. But, where an appeal is not competent such as where leave to appeal ought to be sought and granted was not obtained, no valid amendment can be made because one cannot put something on nothing. The Applicant has paid the necessary fees for amendment, which may be amended by or with the leave of the Court at any time. See, COKER VS. UBA PLC (1997) LPELR ? 880 (SC) and SOUTH ATLANTIC PETROLEUM LTD VS. MINISTER OF PETROLEUM RESOURCES (2013) LPELR ? 21892 (SC) to the effect that there is no set time limit within which leave for an amendments is to be sought and/or granted.
?In appropriate cases, an amendment would be granted. I am of the firm view that the facts leading to the present application is predicated, justify the grant of the reliefs
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sought without prejudicing the interest of the 1st Respondent.
I would in the circumstance grant the reliefs as prayed in the following terms:
1. The Appellant/Applicant is granted leave to amend his Notice of Appeal filed on 7th day of February, 2019 in the manner specifically underlined by adding grounds 8 and 9 in the proposed Amended Notice of Appeal Exhibit ?C? which is reflected in the separately filed Amended Notice of Appeal.
2. The Amended Notice of Appeal filed on 29/3/19 is deemed properly filed and served on the Respondents today.
3. The Appellant/Applicant is granted leave to amend his Appellant?s Brief of Argument in line with the proposed Amended Notice of Appeal.
4. The Amended Appellant?s Brief of Argument filed on 29/3/19 is deemed properly filed and served today.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I was privileged to read a draft copy of the Ruling just rendered by my learned Brother CHIDI N. UWA JCA. I also grant the Application and abide by the consequential orders contained therein.
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Appearances:
Abdulhamid Mohammed, Esq. with him, S. I. Waziri, Esq.For Appellant(s)
F. K. Idepefo, Esq. with him, G. C. Oraekelam, Esq. and I. A. Simon, Esq.For Respondent(s)
Appearances
Abdulhamid Mohammed, Esq. with him, S. I. Waziri, Esq.For Appellant
AND
F. K. Idepefo, Esq. with him, G. C. Oraekelam, Esq. and I. A. Simon, Esq.For Respondent
