BARR. BEDE JOHNSON NWALI V. SIMON NGAJI NWODO & ORS
(2010)LCN/3866(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of June, 2010
CA/E/EPT/5/2008
RATIO
AMENDMENT OF COURT PROCESS: ATTITUDE OF COURT TOWARDS AMENDMENT OF PROCESSES
The attitude of the courts and particularly this Court to amendment of processes filed in an appeal, is that amendment to a process, be it, Notice of Appeal, or Brief of Argument would always be allowed provided the amendment being sought is not fraudulent or intended to overreach or done mala fide so as to prejudice the case of the other party or parties in the appeal. This is because as an amendment is nothing more than the rectification of error or errors, committed in a process, pleadings or proceedings at law or in equity, there ought to be no error or mistake which the Court should not allow to be corrected. See ANAKWE & ANOR V. OLADEJI f20081 All FWLR (Pt. 399) 571: UNIVERSITY OF ILORIN V. ADESINA r20081 All FWLR (PT. 400) 768; and NKORO V. AZURU & 49 ORS (2009) All FWLR (Pt. 496) 1951. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
OLUKAYODE ARIWOOLA (Presided) Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
BARR. BEDE JOHNSON NWALI Appellant(s)
AND
1. SIMON NGAJI NWODO
2. ALL NIGERIA PEOPLES PARTY (ANPP)
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION
&149 ORS Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Ruling): The motion on notice dated 18/6/2009 and filed on 19/6/2009, before this Court was brought by the Respondent/Appellant/Applicant pursuant to Order 6 Rule 4 and Order 19 Rules 2 and 3(1) of the Court of Appeal Rules 2007, Inherent Jurisdiction under S. 6 of the 1999 Constitution and Paragraph 51 of the 1st Schedule to the Electoral Act 2006. The Respondent/Appellant/Applicant, humbly prays for the following in the motion in question:-
“1. For an Order granting leave to the Respondent/Appellant/Applicant to amend his original Notice of Appeal dated and filed on 15/12/2007 in the above appeal as contained at pp. 273 to 276 of the record (copy whereof is herewith filed and marked “Exhibit OJ1” hereto) in terms of the following:-
SCHEDULE OF AMENDMENT
[The details or particulars of the amendment to be effected are duly set out in the Schedule].
2. For an Order granting LEAVE to the Respondent/Appellant/Applicant to file and rely on six additional grounds of appeal numbered Additional Grounds (3) to (8) as contained in the document titled “PROPOSED ADDITIONAL GROUNDS OF APPEAL” copy whereof is herewith filed and marked “Exhibit OJ2”.
3. For an Order granting LEAVE to the Respondent/Appellant/Applicant to amend his Appellant’s Brief of Argument dated 31/1/2008, and filed on the same date in the above appeal, by substituting therefor an Amended Appellant’s Brief of Argument in terms contained (mutatis mutandi) in the document titled “Proposed Amended Appellant’s Brief of Argument” copy whereof is herewith filed and marked “Exhibit OJ3”.
4. For an Order granting LEAVE to the Respondent/Appellant/Applicant to withdraw forthwith the purported AMENDED NOTICE OF APPEAL dated, and filed on, 31st January 2008 for being incompetent;
5. For an Order granting LEAVE to the Respondent/Appellant/Applicant to amend his original NOTICE OF APPEAL by filing an Amended Notice of Appeal in terms contained (mutatis mutandi) in the document titled “Proposed Amended Notice of Appeal” incorporating therein the proposed amendments referred to in prayer 1 supra, and also the proposed additional grounds of appeal referred to in prayer 2 supra as contained in the document copy whereof is herewith filed and marked “Exhibit OJ4”.
6. For an Order granting LEAVE to the Respondent/Appellant/Applicant to rely on the arguments contained in the “Proposed Amended Appellant’s Brief of Argument” based on issues distilled from all the grounds of appeal contained in the “Proposed Amended Notice of Appeal” referred to in prayer 5 supra.”
The grounds of the application as set out in the motion paper read thus:-
“(i) On 31/1/2008 the Appellant’s Brief of Argument dated 31/1/2008 was filed in the above appeal within the period specified in paragraph 5 of the PRACTICE DIRECTION NO. 2 OF 2007.
(ii) On or about the same date aforesaid the Respondent/Appellant/Applicant purportedly filed in the above appeal a document dated 31/1/2008 titled “AMENDED NOTICE OF APPEAL” without obtaining prior leave of the Court.
(iii) Arguments canvassed in the said Appellant’s Brief of Argument were based on issues distilled from the original grounds of appeal contained in the original Notice of Appeal as well as the purported additional grounds of appeal contained in the said purported Notice of Appeal specified respectively supra.
Prior leave of the Court of Appeal was neither sought nor obtained before advancing the said arguments in the said Appellant’s Brief.
(v) By a Notice of Motion dated, and filed on, 31/1/2008 the Respondent/Appellant/Applicant prayed inter alia for Leave to regularize, and to deem as properly filed and served, the said Appellant’s Brief and the said purported Amended Notice of Appeal.
(vi) The said pending Notice of Motion was fixed for argument on 20/5/2008 by virtue of Hearing Notice.
(vii) On 20/5/2008 the matter was adjourned to 5/6/2008 for non-service of Hearing Notice on
Respondents/Respondents/Respondents.
(viii) On 5/6/2008 the matter was further adjourned to 6/10/2008 for non-service of hearing notice on the said 4th Respondent/Respondent/Respondent.
(ix) Subsequently on 15/10/2008 when the matter was called up in Court, it could not be-taken because of insufficiency of Motion Papers for use by the Court consequent whereupon the matter was further adjourned to 21/1/2009 for hearing.
(x) On 21/1/2009 the said Notice of Motion dated 31/1/2008 and a subsequent Notice of Motion dated 22/5/2008 also brought by the Respondent/Appellant/Applicant were withdrawn and struck out with N5,000.00 cost in favour of the Petitioners/Respondents/Respondents.
(xi) By a subsequent Notion of Motion dated 21/1/2009 but filed on 5/2/2009 the Respondent/Appellant/Applicant prayed inert alia, for Leave to regularize the afore-mentioned processes so that the appeal could be heard and determined on the merit. The said Notice of Motion was on 9/2/2009 further adjourned to 19/3/2009 for hearing.
(xii) On 19/3/2009 the Notice of Motion was further adjourned to 8/6/09 for non-service on the said 3rd to 18th Respondents/Respondents/Respondents.
On 8th June 2009 the Notion of Motion dated 21/1/2009 afore mentioned was withdrawn and struck out with N5,000.00 costs in favour of the Petitioner/Respondent/Respondent.
(xiv) The neglect or omission to insert in the original Notice of Appeal all the names of all the Respondents joined in the petition before the lower tribunal was tantamount to amendment of title of the suit without prior leave of competent Court.
(xv) Prior leave of the Court is a condition precedent for any amendment of processes and or inclusion of additional grounds of appeal to be relied upon by a party in litigation.
(xvi) The instant application is necessary in order to bring before the Court the necessary parties and processes for fair hearing and determination of the appeal on the merit.
(xvii) The failure or neglect to seek the prior leave of the Court of Appeal before filing and serving the purported Amended Notice of Appeal and the Appellant’s Brief was due entirely to the mistake of counsel induced by the stringent timeframe prescribed in paragraph 5 of the PRACTICE DIRECTION NO. 2 OF 2007.
(xviii) The Petitioners/Respondents/Respondents and the other Respondents/ Respondents/ Respondents herein will not be unduly prejudiced or embarrassed if the appeal is heard and determined on the merit.”
The instant motion brought by the Respondent/Appellant/Applicant (who will hereinafter be simply referred to as “the Applicant”) was entertained by the Court on 17/3/2010. Dr. J.O. Ibik; SAN, learned senior counsel for the Applicant in moving the motion relied on its supporting affidavit; as well as the Affidavit in Reply to Counter Affidavit filed by the Applicant in response to the counter affidavit sworn to by the 1st Respondent. He said that the amendments sought to be introduced into the appeal are as set out in the Schedule of Amendment and that the grounds of the application have been duly supplied in the motion paper. It is the submission of learned senior counsel that what has occurred in the instant appeal is no more than mistake of counsel. Learned senior counsel urged the Court to grant the motion before it in the interest of justice. He further observed that the opposing Respondents have filed their Brief of Argument in response to the Applicant’s Brief of Argument. The case of Abubakar & Ors v. Yar’Adua & Ors (2008) 4 NWLR (Pt. 1078) 465 at 512 was cited in aid of the submission on mistake of counsel and the Ruling of this Court in APPEAL NO. CA/E/EPT/9/2007 – Samuel Aja Onu Aja v. Aba Odin (Unreported) delivered on 15/10/2008 was cited on the attitude of the courts in relation to amendment.
F.N. Onwe learned lead counsel for the 3rd Respondent and Mathew Ugwuocha, learned counsel for the 4th – 151st Respondents respectively did not oppose the instant motion.
Ben C. Ezugwu learned counsel for the 1st and 2nd Respondents opposed the motion. The 1st and 2nd Respondents will hereinafter be simply referred to as “the Respondents”. In opposing the instant motion, learned counsel for the Respondents relied on the 36 paragraph counter affidavit stated to have been sworn to by the 1st Respondent in the Registry of this Court on 13th of October, 2009 but which was actually sworn to before the Commissioner for Oaths on 12/10/2009 and filed on the same date.
In line with the depositions in the counter affidavit, learned counsel submitted to the effect that the Applicant is seeking to raise new issues that were not raised before the lower tribunal in the instant appeal. He further submitted that leave of court is required for the purpose of raising new issues and that the Applicant has not sought for the requisite leave and order of court in that regard. Learned counsel referred to ground 7 of the grounds of appeal as the ground raising new issue. The case of Dere v. Ebwa (2006) 25 NSCQR 847 at 854 was cited on the requirement to procure the leave of court in order to raise a new issue. It is also the submission of learned counsel that the instant application is intended to overreach the Respondents. That the Applicant has served his brief of argument and that the Respondents have duly responded to all the four issues formulated out of the Applicant’s grounds of appeal. That the parties in the appeal, have therefore joined issues. Again, learned counsel submitted that the instant application is clumsy and ambiguous. In this regard, learned counsel said that the Applicant has only one brief of argument filed on 31/1/2008 and that all the amendments being sought to be introduced have already been carried out therein. Learned counsel submitted that in the circumstance there is nothing to amend. He further said that the necessary/appropriate prayer has not been claimed. Dwelling on mistake of counsel, learned counsel for the Respondents submitted that the facts of the instant motion do not admit of this, as two other applications like the instant one had been withdrawn upon the observations made concerning the fact that there is nothing to be amended.
Replying on points of law and dwelling specifically on the question of overreaching learned senior counsel submitted that there was no overreaching as the Applicant never joined issues with the Respondents by filing any other process save the one designed to remedy the defects that have been identified.
It is in my view most glaring from the Orders being sought by the Applicant and which Orders have hereinbefore been re-produced that what the Applicant seeks by the instant motion in the main is to effect some amendments to the originating process by which he commenced the instant appeal, namely his Notice of Appeal; and consequently his Brief of Argument that necessarily has its foundation in the originating process of the instant appeal.
The Rules of this Court in Order 6 Rule 2(1) provide thus:-
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the name and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and shall also have endorsed on it an address for service.” (Underlining supplied by me).
The attitude of the courts and particularly this Court to amendment of processes filed in an appeal, is that amendment to a process, be it, Notice of Appeal, or Brief of Argument would always be allowed provided the amendment being sought is not fraudulent or intended to overreach or done mala fide so as to prejudice the case of the other party or parties in the appeal. This is because as an amendment is nothing more than the rectification of error or errors, committed in a process, pleadings or proceedings at law or in equity, there ought to be no error or mistake which the Court should not allow to be corrected. See ANAKWE & ANOR V. OLADEJI f20081 All FWLR (Pt. 399) 571: UNIVERSITY OF ILORIN V. ADESINA r20081 All FWLR (PT. 400) 768; and NKORO V. AZURU & 49 ORS (2009) All FWLR (Pt. 496) 1951.
What the Applicant is seeking by (a) of his prayer 1, in the motion paper is simply to give the precise particulars of the pages and lines in the Record of Appeal concerning his grouse in relation to what the lower tribunal held in its judgment appealed against. By (b) and (c) of prayer 1, what the Applicant seeks in the main is to provide the proper names or description of the parties directly affected by the appeal as set out in the Petition in which the lower tribunal gave the decision/judgment being appealed against. The parties in question were initially collectively described by numbers, to wit: 5th to 151st Respondents in the original Notice of Appeal. Surely these are innocuous corrections to the Notice of Appeal and which “ordinarily” (and I have used the word “ordinarily” most advisedly) should be granted by the Court. This is particularly so in relation to the amendment that seeks to set out the names of the 5th – 151st Respondents as the said amendment is simply to comply with the provision of Order 6 Rule 2(1) of the Rules of this Court hereinbefore re-produced and underlined by me. It is to be noted that since the inception of the instant appeal, the said 5th – 151st Respondents whose names as set out in the Petition are now being sought to be introduced into the Notice of Appeal by the amendment sought by virtue of (b) and (c) of prayer 1, have always been represented by counsel.
As earlier stated, learned senior counsel for the Applicant in moving the instant motion relied on the motion’s supporting affidavit and the Affidavit in Reply to Counter Affidavit filed by the Applicant in response to the counter affidavit sworn to by the 1st Respondent. Paragraph 4 of the supporting affidavit of the instant motion reads thus: –
“That upon perusing the record of appeal in the above proceedings it became clear to our chambers that the original Notice of Appeal dated 10/12/2007 and filed on the same date in the above appeal ought to be amended in terms of the Schedule of Amendment contained in prayer 1 of the Notice of Motion hereto Filed herewith and marked “Exhibit OJ1″ is a photocopy of the said original Notice of Appeal.”
There are also other depositions in the supporting affidavit that clearly show that the Applicant is seeking for the amendment of the original Notice of Appeal annexed to the supporting affidavit as “Exhibit OJ1” by the inclusion of six additional grounds of appeal and that Issues argued in the “Proposed Amended Appellant’s Brief of Argument” (in respect of which leave is being sought) are distilled from both the original grounds of appeal and the six additional grounds of appeal.
A scrutiny of “Exhibit OJ1” referred to in paragraph 4 of the supporting affidavit re-produced above, as well as the Notice of Appeal at pages 273 – 276 of the record of appeal however shows that the original Notice of Appeal in the instant appeal (and which is what the Applicant seeks to amend) is dated 15th December, 2007 and was filed on the same date. The situation that has thus arisen is that the process which the Applicant seeks to amend as deposed to in paragraph 4 of the supporting affidavit is at variance with the process exhibited to buttress the said deposition.
I am aware of the extensive powers possessed by this Court to effect any necessary amendment to the proceeding before it, for the purpose of determining the real question in controversy between the parties and that the Court in deserving cases can even exercise its power in this regard suo moto.
I am however of the considered view that the Court cannot use its powers in this regard to correct the inconsistency in the instant motion as it relates to the date of the original Notice of Appeal and its date of filing as deposed to in the supporting affidavit and as shown on “Exhibit OJ1”. In other words, this court on its own motion cannot amend inconsistency in affidavit evidence placed before it by parties.
Given the inconsistency in respect of the date of the original Notice of Appeal and date of its filing as deposed to in the supporting affidavit; and the dates in this respect as shown on the face of “Exhibit OJ1”, I simply do not see how this Court can properly grant leave to amend any defect in a Notice of Appeal dated 10/12/2007 and filed on the same date as deposed to in the supporting affidavit and which process has not been placed before it, or in respect of “Exhibit OJ1” which though before the Court is not the subject of any deposition in the affidavits relied upon by learned senior counsel for the Applicant in moving the instant motion. It is in the light of the foregoing that I initially said to the effect that what the Applicant seeks by (a), (b) and (c) of his prayer 1, “are innocuous corrections to the Notice of Appeal and which “ordinarily” (and I have used the word “ordinarily” most advisedly) should be granted by the Court”.
It would appear indisputable in the circumstances that not only must prayer 1 in the instant motion be refused, but also that every other prayer that relies on the successful amendment of the original Notice of Appeal for its efficacy or whose fate is predicated upon the successful amendment of the said original Notice of Appeal must equally be refused. Accordingly prayers 2, 3, 5 and 6 in the motion paper (which all fall into the category) are also refused. Prayer 4 in the motion paper which is seeking for leave to withdraw the purported Amended Notice of Appeal dated 31/1/2008 and filed on the same date on the ground of its incompetence, not being predicated on the successful amendment of the original Notice of Appeal succeeds and the said process is accordingly struck out.
Costs follow the event and the sum of N10,000.00 is awarded the 1st and 2nd Respondents as the instant motion which is the fourth being brought by the Applicant to amend his original Notice of Appeal and consequently his Brief of Argument is again to nought.
OLUKAYODE ARIWOOLA, J.C.A.: I had the opportunity of reading in draft the leading ruling prepared and just read by my learned brother, LOKULO-SODIPE, JCA. The issues that called for determination were painstakingly and thoroughly dealt with. I agree entirely with the reasoning and conclusion in the said lead ruling. The application lacks merit and is liable to dismissal. Accordingly, it is dismissed by me.
I abide by the consequential order in the lead ruling.
JUMMAI HANNATU SANKEY, J.C.A.: I agree.
Appearances
Dr. J.O. Ibik, SAN with O. Onyekwuluje, OJ. Ibik, V.O. Amilo and G.C. IguhFor Appellant
AND
Ben C. Ezugwu
F.N. Onwe with B.C. Nwokoku
Mathew UgwuochaFor Respondent
