AILERU & ORS v. SMART PRODUCT (NIG) PLC & ANOR
(2022)LCN/16121(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Wednesday, April 06, 2022
CA/LAG/1220/2019(R)
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
1. HIS ROYAL HIGHNESS OBA FATAI AILERU 2. ALHAJI CHIEF MUTIU BAKARE 3. CHIEF SALIU SADIKU ODUBIYI 4. PRINCE YAHAYA AILERU (For Themselves and On Behalf of Ojuwoye Community) APPELANT(S)
And
1. SMART PRODUCT NIGERIA PLC 2. THE REGISTERED TRUSTEES OF EVANGELICAL CHURCH OF WEST AFRICA RESPONDENT(S)
RATIO
WHETHER OR NOT AN APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL MUST BE SUPPORTED BY AN AFFIDAVIT
Order 6 Rule 9 (2) of the Court of Appeal Rules, 2021 provides that an application for enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie reveal good cause for the appeal to be heard. There is no disputing the fact that filing of Notice of Cross-Appeal and Notice of Contention are in the nature of filing of Notice of Appeal as both of them are expression of dissatisfaction with a part of the judgment of the lower Court. Therefore, where a party who desires to file either of them fails to do so within the stipulated period, he must give good and substantial reasons for his tardiness before the Court will grant him an enlargement of time. The reasons must be cogent, credible and convincing in explaining away the delay in filing the relevant process within the allowable period. Consideration of an application for enlargement of time calls for exercise of discretion by the Court, which must be done judicially and judiciously, taking into account the facts presented before the Court and the circumstances of the case. The Courts have interpreted similar provisions in plethora of judicial decisions. See Akinpelu vs. Adegbore (2008) 10 NWLR (Pt.1096)531 at 554; (2008) LPELR-354 (SC), Ugoka vs. Ozobialu (2019) LPELR-47377 (CA), Ngere vs. Okuruket (2014) LPELR-22883 (SC) and Nwora & ors vs. Nwabueze & Ors (2011) LPELR-8128 (SC). PER SIRAJO, J.C.A.
THE PURPOSE OF A RESPONDENT’S NOTICE
Respondent’s Notice is only available to vary and retain the judgment and not to reverse or set it aside. See Nsirim vs. Amadi (2016) LPELR-26053 (SC); Zakirai vs. Muhammed & Ors (2017) LPELR-42349 (SC). In the case of Nabisco Inc. vs. Allied Biscuits Company Ltd (1998) LPELR-1932 (SC), the Supreme Court, per Belgore, JSC, had this to say:
“Respondent’s notice under Order 3 Rule 14 of the Court of Appeal Rules is a means for fine-tuning victory not to destroy it… The Respondent’s notice is open to the Respondent who having had victory in the Court below but dissatisfied with certain aspects of the reasons for that victory now asks that the reasons be varied in whole or in part.” PER SIRAJO, J.C.A.
Amendment of Writ of Summons and Statement of Claim to introduce additional head of claim is allowed if such amendment can prevent injustice and will not overreach the other party. Where, however, an amendment will result in injustice to the other party or will violate the rule of audi alteram partem, it will not be allowed. That is to say, where the other party will not have the opportunity of providing his own response to the new point or claim, amendment will be refused. Where evidence has closed, amendment of pleading can be allowed only on the premise that evidence in support of the amendment is already on record. See Jessica Trading Co. Ltd vs. Bendel Insurance Co. Ltd (1993) LPELR-1608 (SC), Compagnie Generale De Geophysique Nigeria Ltd & Anor vs. Idorenyin (2015) LPELR-24685 (SC). PER SIRAJO, J.C.A.
DEFINITION OF A CONSEQUENTIAL ORDER
A consequential order is an order which gives effect to the judgment of the Court. It is one that flows from the main order and gives life to the decision of the Court. See Dec Oil & Gas Ltd vs. Shell Nigeria Gas Ltd (2019) LPELR-49347 (SC), Awoniyi & Ors vs. The Reg. Trustees of AMORC (Nigeria) (2000) LPELR-655 (SC), APC & Ors vs. Karfi (2017) LPELR-47024 (SC). But where a Court refuses the principal order sought, an incidental order cannot be made. The rationale for this principle of law is that the principal order on which the consequential order should stand, having been refused, there is no basis for the making of the consequential order. See Awoniyi & Ors vs. The Reg. Trustees of AMORC (Nigeria) (supra). PER SIRAJO, J.C.A.
MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgement): This ruling is in respect of an application by way of Motion on Notice filed on 21/01/2020 by the 1st – 4th Respondents, brought pursuant to Order 6 Rule 9 of the Court of Appeal Rules, 2016 and Section 15 of the Court of Appeal Jurisdiction of (sic) Act. The motion seeks for two principal reliefs, as follows:
1. An order enlarging time for the 1st – 4th Respondents to file and serve Respondents’ Notice of Intention to contend that the decision of the Court below (judgment of the High Court of Lagos State) dated 19th May, 2019 be varied in terms of the Proposed 1st – 4th Respondents’ Notice to vary judgment attached to the Affidavit of Babatunde Ajagbe attached hereto and marked Exhibit “B1”.
2. An order granting leave to the 1st – 4th Respondents to amend their Further Amended Writ of Summons and Further Amended Statement of Claim dated 30th October, 2011 by including Claim for:
“An order of perpetual injunction against the 2nd Defendant by itself, its servants, agents, workers, privies and or assigns from interfering with the interest, right and possession of the Claimant in respect of the piece or parcel of land lying, being and situate at No. 369/373, Agege Motor Road, Mushin, Lagos State” in the Proposed 2nd Further Amended Statement of Claim attached hereto and marked Exhibit “B1” and “B2”.
The grounds upon which the motion was predicated were listed on the face of the motion paper.
Babatunde Ajagbe, a Litigation Officer in the Law Firm of P.O. Jimoh-Lasisi & Associates deposed to and filed an affidavit in support of the application. The Judgment appealed against, the Notice of Appeal, the Further Amended Writ of Summons and the Proposed 2nd Amended Statement of Claim were attached to the affidavit and marked as Exhibits A, A1, B and B2 respectively.
Both the Appellant and the 5th Respondent filed counter-affidavits in opposition to the application. Following this opposition, the Court directed the parties to file written addresses. The Applicants’ written address was filed on 09/12/2021 while the addresses of the Appellant and the 5th Respondent were filed respectively on 14/01/2022 and 04/11/2021. P.O. Jimoh-Lasisi, SAN, adopted the written address of the Applicants and urged the Court to grant the reliefs sought in the application. Johnson Amaechi for the Appellant and A.O. Olufon for the 5th Respondent adopted their respective written addresses and urged the Court to dismiss the application.
In the 1st – 4th Respondents/Applicants’ written address, a sole issue was framed for determination, viz;
“Whether the 1st – 4th Respondents/Applicants have provided sufficient materials to enable the Honourable Court to grant the reliefs sought on the motion paper.”
Two issues were formulated in the Appellant’s written address as calling for resolution in this application, couched thus:
1. Whether the 1st – 4th Respondents/ Applicants gave good and substantial reasons for the delay in filing their Respondents’ Notice.
2. Whether this Honourable Court can grant leave to the 1st to 4th Respondents/Applicants to amend their Further Amended Writ of summons and Further Amended Statement of Claim dated 30th October, 2011 in the circumstances of this case when such amendment will be prejudicial to the Appellant/Respondent.
On its part, the 5th Respondent formulated a single issue as reproduced below: “Whether the Court can grant the prayers of the Applicants in the circumstances of this case.”
I will adopt the issue formulated by the 1st – 4th Respondents/Applicants in the resolution of this application as the two issues formulated by the Appellant and the sole issue formulated by the 5th Respondent can be subsumed under it.
Arguments
Learned senior counsel for the Applicants opened his argument by referring the Court to the judgment of the lower Court wherein the Court declared the Applicants as the absolute owners of the land in dispute and also declared null and void the assignment of the portion of the land to the Appellant by the 5th Respondent, which renders the Appellant a trespasser. The lower Court refused to grant the 1st – 4th Respondents’ claims for forfeiture and for possession. With this background, he submitted that the delay in bringing this application is due to the ignorance of the Applicants about their legal rights as deposed to in paragraph 10 of the affidavit in support of the application. It was the argument of learned silk that the 1st – 4th Respondents’ Notice to vary the judgment of the lower Court will assist the Court to completely determine the issues in controversy. He submitted that a Respondent who is dissatisfied with the decision of the Court below can file a notice to vary or affirm the decision on other grounds, citing LCC vs. Ajayi (1970) 1 All NLR 293 at 298; American Cyanamid Co. vs. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (Pt.171)15 at 31. It was contended that in the instant case there is enough evidence on record and findings made by the lower Court to support the Notice to vary the judgment in the terms proposed in the Proposed Notice to vary judgment, citing and relying on Long-John vs. Blakk (1998) 5 SC 83 at 92-93 on the need to extend time in order to ensure substantial justice to the parties. With the aid of excerpts from the judgment of the lower Court, (Exhibit A), learned senior counsel contended that the amendment sought is necessary in order to bring in line the evidence led and the findings made by the lower Court, and that no further evidence would be required to effect the amendment sought, relying on Adekeye vs. Akin-Olugbade (1987) 3 NWLR (Pt.60) 214 and Alsthom SA vs. Saraki (2000) 10-11 SC 48. He argued that a consequential order of injunction can be made even if there is no specific claim for injunction. The Court was urged to grant the prayers on the motion paper.
Presenting argument in the Appellant’s written address, Alfred Akinjo Esq., submitted that the 1st – 4th Respondents failed to give good and substantial and satisfactory reasons for the delay in filing their Respondents’ Notice outside the allowable 30 days, as application of this nature is not granted as a matter of course, placing reliance on Faloughi vs. FIC Ltd (2010) LPELR-4141 (CA), Williams & Ors vs. Hope Rising Voluntary Funds Society (1982) NSCC. He submitted that the excuse of the Applicants on the ignorance of their legal rights could not hold water because it is on record that the were ably represented by counsel all through at the trial Court, and that in any case, ignorance of the law cannot afford anybody an excuse – Omowaiye vs. A.G. Ekiti State & Anor (2010) LPELR-4779 (CA), Usman Danfodio University vs. Kraus Thompson (2001) 15 NWLR (Pt.736) 305. Counsel urged the Court to hold that the reason given by the 1st – 4th Respondents for filing their Respondents’ notice outside the time permitted by the Rules is not substantial enough to warrant the granting of the indulgence sought by them. On the substance of the application, learned counsel argued that the orders sought in the proposed Respondents’ Notice amounts to reversal of the finding of the lower Court and that the appropriate procedure ought to have been by way of a Cross-Appeal and not by Respondents’ Notice. Reference was made to the case of Ogunlade vs. Adeleye (1992) LPELR-2340 (SC) on when the Court will refuse a Respondent’s Notice. It was argued that the trial Court having refused to grant the 1st – 4th Respondents’ claim for forfeiture and possession, the only option left to them was to file a Cross-Appeal and not a Respondent’s Notice as the Respondent’s notice sought to be filed is aimed at reversing the judgment of the lower Court. Learned counsel submitted that the amendment of the Further Amended Writ of Summons and Further Amended Statement of Claim sought by the Applicants is aimed at obtaining what the trial Court has refused through the back door. He contended that the amendment will greatly overreach and prejudice the Appellant as the complexion of the case will change. The Court was urged to dismiss the application.
The argument of learned counsel for the 5th Respondent, Wole Olufon Esq., is substantially the same with the arguments canvassed on behalf of the Appellant and I do not consider it very necessary to repeat same here. I will rather refer to the authorities cited by him, which were not cited by the Appellant’s counsel. On the need for Applicant for enlargement of time to place substantial materials explaining the delay in taking any step, he cited the case of RCC Nig. Ltd & Anor vs. Bis- Alanco Nig. Ltd & Anor (2013) LPELR-20216 (CA). He submitted that the Court would not allow an amendment if it is shown the adverse party would be prejudiced by the amendment. It was contended that the proper step to be taken by the 1st – 4th Respondents where they are aggrieved by the decision of the lower Court was to cross-appeal and not to apply for variation of the judgment. He urged the Court to dismiss the application.
Resolution
I will address the sole issue for determination as formulated by the Applicants from the perspective of the prayers sought in the application.
Prayer 1
“An order enlarging time for the 1st – 4th Respondents to file and serve Respondents’ Notice of Intention to contend that the decision of the Court below (judgment of the High Court of Lagos State) dated 19th May, 2019 be varied in terms of the Proposed 1st – 4th Respondents’ Notice to vary judgment attached to the Affidavit of Babatunde Ajagbe attached hereto and marked Exhibit “B1″.”
Order 9 Rules 1 and 2 of the Court of Appeal Rules, 2021, permits a Respondent who desires to contend that the judgment of the lower Court should be varied or affirmed on other grounds other than the ground(s) relied upon by the lower Court, to give Notice of that contention within 30 days of the service of the Notice of Appeal, in the case of an appeal against a final decision, and 15 days, in the case of an interlocutory appeal. The provisions of the Rules envisage two types of Respondent’s Notice – Respondent’s Notice to vary the decision of the lower Court and Respondent’s Notice to affirm the decision on other ground(s). The instant application is concerned with Respondent’s notice to vary the decision of the lower Court. The Applicants herein did not file the Respondent’s Notice of Contention within 30 days of the service on them of the Notice of Appeal, hence this application.
Order 6 Rule 9 (2) of the Court of Appeal Rules, 2021 provides that an application for enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie reveal good cause for the appeal to be heard. There is no disputing the fact that filing of Notice of Cross-Appeal and Notice of Contention are in the nature of filing of Notice of Appeal as both of them are expression of dissatisfaction with a part of the judgment of the lower Court. Therefore, where a party who desires to file either of them fails to do so within the stipulated period, he must give good and substantial reasons for his tardiness before the Court will grant him an enlargement of time. The reasons must be cogent, credible and convincing in explaining away the delay in filing the relevant process within the allowable period. Consideration of an application for enlargement of time calls for exercise of discretion by the Court, which must be done judicially and judiciously, taking into account the facts presented before the Court and the circumstances of the case. The Courts have interpreted similar provisions in plethora of judicial decisions. See Akinpelu vs. Adegbore (2008) 10 NWLR (Pt.1096)531 @ 554; (2008) LPELR-354 (SC), Ugoka vs. Ozobialu (2019) LPELR-47377 (CA), Ngere vs. Okuruket (2014) LPELR-22883 (SC) and Nwora & ors vs. Nwabueze & Ors (2011) LPELR-8128 (SC). In the present application, the sole reason advanced by the 1st – 4th Respondents/Applicants for the delay in filing the Respondent’s notice can be found at paragraph 10 of the affidavit of Babatunde Ajagbe in support of the application wherein he deposed thus:
“The 1st – 4th Respondents informs me in our law office after briefing Mr. P.O. Jimoh-Lasisi SAN that they were ignorant about the legal rights as regards the judgment of the lower Court until they briefed Mr. P.O. Jimoh-Lasisi SAN and their ignorance led to the delay in filing this application.”
Ignorance of legal rights as regards the judgment of the lower Court is the only reason advanced by the 1st – 4th Respondents/Applicants as the cause of the delay in filing the Respondent’s notice within 30 days of the service of the Notice of Appeal on them. In countering this deposition, the deponent to the counter-affidavit of the 5th Respondent, Okechukwu Benjamin Odangbe, stated at paragraph 4 (d) of the said counter-affidavit that it is not true that the Applicants were ignorant of their legal rights as they were ably represented by counsel all through the pendency of the suit at the lower Court. This fact was not countered or challenged by the Applicants by way of a further and better affidavit. That is not all. The judgment appealed against which was annexed to the affidavit in support of the application as Exhibit “A” shows that the Applicants, as Claimants, were represented by counsel throughout the proceedings at the lower Court up to the date the final judgment was delivered. The type of legal rights the Applicants were ignorant of has also not been specified in the affidavit, and it is not open to the Court to speculate. It is therefore not available to the Applicants to claim that lack of knowledge of their legal rights prevented them from filing their Notice of Contention within time. This is more so that ignorance of the provisions of a statute excuse no one as expressed in the Latin maxims “Ignorantia juris non excusat” or “Ignorantia juris neminem excusat”. In the circumstance, I do not consider the sole reason given in the affidavit in support of the application as good, cogent, credible and substantial enough to support the grant of the prayer for enlargement of time.
I will now proceed to take a critical look at the “Proposed 1st – 4th Respondents’ Notice of their Intention to Contend that the decision of the lower Court be varied” annexed to the application as Exhibit “B1”. The said Notice reads:
“TAKE NOTICE that upon the hearing of the above appeal the Respondents herein intend to contend that the decision of the Court below (judgment) of the High Court of Lagos State dated 19th May, 2019 be varied as follows:
1. An order granting the following reliefs set out below:
b. A Declaration that the 1st Defendant having pay (sic) ground rents despite repeated demands, for the piece or parcel of land situate, lying and being at No. 369/373, Agege Motor Road, Mushin, Lagos have forfeited all rights to the land.
e. Possession of all that piece and parcels of land known as No. 369/373, Agege Motor Road, Mushin, Lagos.
f. An order of perpetual injunction against the 2nd Defendant by itself, its servants, agents, workers, privies and or assigns from interfering with the interest, right and possession of the Claimant in respect of the piece or parcel of land lying, being and situate at No. 369/373, Agege Motor Road, Mushin, Lagos State.”
The grounds for the Respondents’ Notice of Contention were stated thereunder. Earlier in this ruling I referred to the provisions of Order 9 Rule 2 of the Rules of this Court concerning Respondent’s Notice of Contention. Respondent’s notice is only available to a Respondent who has issue(s) with the judgment given in his favour but wants it either varied or affirmed on other ground(s) other than those relied upon by the lower Court. Respondent’s Notice is only available to vary and retain the judgment and not to reverse or set it aside. See Nsirim vs. Amadi (2016) LPELR-26053 (SC); Zakirai vs. Muhammed & Ors (2017) LPELR-42349 (SC). In the case of Nabisco Inc. vs. Allied Biscuits Company Ltd (1998) LPELR-1932 (SC), the Supreme Court, per Belgore, JSC, had this to say:
“Respondent’s notice under Order 3 Rule 14 of the Court of Appeal Rules is a means for fine-tuning victory not to destroy it… The Respondent’s notice is open to the Respondent who having had victory in the Court below but dissatisfied with certain aspects of the reasons for that victory now asks that the reasons be varied in whole or in part.”
The reliefs sought by the 1st – 4th Respondents in their Respondent’s notice listed as “b” and “e” above are verbatim reproduction of the same reliefs “b” and “e” claimed by them before the lower Court, which reliefs were refused as evidenced by the judgment of the lower Court annexed to this application as Exhibit “A”. In refusing to grant the claim of the Claimants/1st – 4th Respondents for forfeiture, the lower Court held that there was no evidence that they served the 1st Defendant/5th Respondent notice specifying the particular breach complained of, as required by Section 14 (1) of the Conveyancing Act, 1881. The trial Court also held that the claim for trespass to land combined with one for possession are clearly inconsistent and therefore refused to grant the claim for possession after declaring the 2nd Defendant/Appellant, a trespasser. The bottom line is that the lower Court outrightly refused to grant reliefs (b) and (e) now claimed under the Proposed Respondents’ Notice of contention to vary the judgment of the lower Court. The settled position of the law is that a Respondent’s Notice cannot be used in place of an appeal or cross-appeal; APP vs. INEC (2021) LPELR-53529 (CA). In view of the trial’s Court outright refusal to grant the 1st 4th Respondents’ claim as contained in reliefs (b) and (e) on the Proposed Respondents’ Notice to vary, there is nothing for this Court to vary under a Respondent’s Notice. Those claims were refused by the lower Court and the only option left to the 1st – 4th Respondents who did not file an appeal against the refusal of the lower Court to grant those two heads of claim, is to file a cross-appeal as opposed to a Respondent’s Notice. Respondent’s notice is not a procedure for challenging the judgment of the lower Court and have it reversed or set aside, which is what the 1st – 4th Respondents intend to achieve by their Proposed Respondent’s Notice of Contention. It is only available to a Respondent who agrees with the judgment of the lower Court but wants it varied on some aspects or affirmed on grounds other than those relied upon by the lower Court. See Arisons Trading & Engineering Co. Ltd vs. The Military Governor of Ogun State & Ors (2009) LPELR-554 (SC). A very good example of the use of Respondent’s Notice to vary a judgment is the case of Lagos City Council vs. Ajayi (supra), also reported as (1970) LPELR-1742 (SC) heavily relied upon by the 1st – 4th Respondents in their written address. In that case, the Claimant/Respondent filed a Respondent’s Notice not to seek the grant of reliefs that were refused him by the lower Court, as was done by the 1st – 4th Respondents herein, but to have the amount of 13,640 Pounds compensation awarded him by the lower Court varied and reviewed upwards. That case is clearly distinguishable from the instant application and cannot aid the case of the 1st – 4th Respondents. The materials presented by the Applicants failed to support the grant of prayer 1 and same is accordingly refused.
Prayer 2
“An order granting leave to the 1st – 4th Respondents to amend their Further Amended Writ of Summons and Further Amended Statement of Claim dated 30th October, 2011 by including Claim for:
“An order of perpetual injunction against the 2nd Defendant by itself, its servants, agents, workers, privies and or assigns from interfering with the interest, right and possession of the Claimant in respect of the piece or parcel of land lying, being and situate at No. 369/373, Agege Motor Road, Mushin, Lagos State” in the Proposed 2nd Further Amended Statement of Claim attached hereto and marked Exhibit “B1” and “B2.”
I will now take on relief (f) sought in the Proposed Respondent’s Notice of Contention together with prayer 2 on the motion paper which seeks to amend the Writ of Summons and Statement of Claim to incorporate the said relief (f) on the Proposed Notice of Contention, a relief that was not originally claimed before the lower Court. The basic principle governing the granting of leave to amend is for the purpose of determining the real issue(s) in controversy between the parties. Amendment of Writ of Summons and Statement of Claim to introduce additional head of claim is allowed if such amendment can prevent injustice and will not overreach the other party. Where, however, an amendment will result in injustice to the other party or will violate the rule of audi alteram partem, it will not be allowed. That is to say, where the other party will not have the opportunity of providing his own response to the new point or claim, amendment will be refused. Where evidence has closed, amendment of pleading can be allowed only on the premise that evidence in support of the amendment is already on record. See Jessica Trading Co. Ltd vs. Bendel Insurance Co. Ltd (1993) LPELR-1608 (SC), Compagnie Generale De Geophysique Nigeria Ltd & Anor vs. Idorenyin (2015) LPELR-24685 (SC).
Learned senior counsel for the Applicants contended that the amendment sought is supported by the evidence established on record and that the trial Court has the power to grant injunction as a consequential order even where it is not specifically claimed. A consequential order is an order which gives effect to the judgment of the Court. It is one that flows from the main order and gives life to the decision of the Court. See Dec Oil & Gas Ltd vs. Shell Nigeria Gas Ltd (2019) LPELR-49347 (SC), Awoniyi & Ors vs. The Reg. Trustees of AMORC (Nigeria) (2000) LPELR-655 (SC), APC & Ors vs. Karfi (2017) LPELR-47024 (SC). But where a Court refuses the principal order sought, an incidental order cannot be made. The rationale for this principle of law is that the principal order on which the consequential order should stand, having been refused, there is no basis for the making of the consequential order. See Awoniyi & Ors vs. The Reg. Trustees of AMORC (Nigeria) (supra). The lower Court has declared the 1st – 4th Respondents/Applicants as the absolute owners of the land in dispute under Yoruba Native Law, but refused to grant them an order of possession as claimed. The claim for injunction now sought to be introduced as a consequential order can only stand on the success of claim for possession not on mere declaratory relief of ownership. Applicants’ claim for possession having been refused by the lower Court, the consequential order of injunction cannot be granted. As a corollary, the amendment which sought to introduce the claim for injunction cannot be allowed as same has become otiose. Prayer 2 on the motion paper is therefore refused.
Another aspect of this prayer for amendment of the Writ of Summons and Statement of Claim is that the prayer is predicated on the exercise of the Applicants’ right to file a Respondent’s Notice of Contention. Respondent’s Notice of Contention postulates the correctness of the judgment appealed against. See American Cyanamid Co. vs. Vitality Pharmaceuticals Ltd (supra) and LCC vs. Ajayi (supra). The procedure does not extend to an application to amend the originating processes on appeal to include a claim that was not originally made at the lower Court, thereby changing the character of the suit. The amendment sought by the Applicants is clearly outside the purview and contemplation of the provisions of Order 9 Rule 2 of the Court of Appeal Rules, 2021. To allow such application for overstretching amendment to lie under Respondent’s Notice tantamount to and going beyond the provisions of the rules. That is not the purpose of Respondent’s notice. The net result of my findings, observations and legal analysis in this Ruling is that this application is devoid of any merit and deserves to be, and is hereby dismissed.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the erudite leading ruling delivered by my learned brother, Muhammad Ibrahim Sirajo, JCA. I endorse in toto the legal reasoning and conclusion in it. I too penalise the application with a deserved dismissal. I abide by the consequential orders decreed in the dexterous leading ruling.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of a preview of the ruling just delivered by my learned brother, Muhammad Ibrahim Sirajo, JCA, I agree with the judicial reasoning and conclusions reached on the issues raised, which I adopt as my own. I affirm my agreement with the ruling dismissing the application, and abide by the consequential orders.
Appearances:
Johnson Amaechi For Appellant(s)
P.O. Jimoh-Lasisi, SAN, with him, Olumide Adeyemi – for 1st – 4th Respondents/Applicants.
A.O. Olufon, with him, O.A. Onifade – for 5th Respondent For Respondent(s)
