CHUKWU v. STATE (2020)

CHUKWU v. STATE

(2020)LCN/14786(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/AS/19C/2018

RATIO

APPEAL: RULES GOVERNING NOTICE OF APPEAL

Re-produced hereunder is the unabridged pronouncement of the Supreme Court per Nweze, JSC in respect of the said issue. It goes thus: –
“It would appear that the proximate impulsion to the appellant’s objection to the competence of the appeal before the lower Court was its zeal to preserve the sanctity and integrity of the architecture of the appeal process. As it is well-known, it is a Notice of Appeal that initiates an appeal from a High Court to the lower Court, [see, Order 6 Rule 2 (1) of the Court of Appeal Rules, 2011], Dingyadi v INEC (2010) LPELR-952 (SC) 60. Put differently, the Notice [actually, a competent notice of appeal] is the foundational process that triggers off an appeal from a High Court to the lower Court. See Adelekan v. ECU-Line NV [2006] 12 NWLR (Pt. 993) 331 Uwazurike v AG Federation [2007] All FWLR (Pt 367) 834, 835, paragraphs E-F, and sustains it, Okotie v Olughor [1995] 5 SCNJ 2171.
As such, any virus in this process would, invariably, corrode or taint the entire appeal thereby rendering it incompetent. See First Bank of Nigeria Plc v T. S. A. Ind Ltd (2010) LPELR – 1283 (SC) 49, paragraphs A-D; Okeke Amadi v. Okeke Okoli [1977] 7 S C 57, 58; Adelekan v. ECU-Line NV [2006] 12 NWLR (Pt. 993) 33; Okolo v UBN Ltd. [2004] 3 NWLR (Pt. 859) 87; Ikweki v Ebele [2005] 11 NWLR (Pt. 936) 397; Akpan v Bob [2010] 17 NWLR (Pt. 1224) 421; General Electric Co. v Akande [2010] 18 NWLR (Pt. 1225) 596; Thor v FCMB Ltd [2002] 2 SCNJ 85; Ebokam v Ekwenibe and Sons Trading Coy Ltd [1977] 7 SCNJ 77. The effect of such a viral corrosion is usually far-reaching as it nibbles at the jurisdiction of the appeal Court which must as of necessity, strike out such a process. See A.G. Fed v. Guardian Newspapers Ltd [1999] (Pt.618) 187; Odunze v Nwosu [2007] 13 NWLR (Pt. 1050) 1; Agu v Odofin [1992] 3 SCNJ 161, 172 – 173; Ibeto v Aminu [2007] 5 NWLR (Pt. 1028) 446; Danmusa v Inuwa [2007] 17 NWLR (Pt. 1063) 391; Clev Josh Ltd. v Tokimi [2008] 13 NWLR (Pt.11-4] 422.
In effect, the absence of a competent Notice of Appeal simply translates to the non-existence of an appeal. See Anadi v. Okoti [1972] 7 SC 57; CBN v. Okojie [2004] 10 NWLR (Pt. 882) 488; Olanrewaju v. BON Ltd [1994] 8 NWLR (pt. 364) 622; Olowokere v African Newspapers Ltd [1993] 5 NWLR (pt. 295) 583; Erisi v Idika [1987] 4 NWLR (pt. 66) 503; Josiah Cornelius Ltd v Ezenwa [1996] 37 LRCN 618; Tukur v Government of Gongola State [1988] 1 NWLR (Pt. 68) 391; First Bank of Nig Plc v Maiwada (2012) LPELR -9713 (SC) 187.
This must be so for it is a condition precedent to any valid exercise of appellate jurisdiction, Okeke Amadi v. Okeke Okoli (supra); Okotie v Olughor (supra). PER OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: WHETHER AN APPELLANT CAN FILE TWO NOTICES OF APPEAL

The rationale of all decisions of this Court on this is that it is permissible to file two Notices of Appeal within time. The cases are many indeed. The prescriptions that crystallise from such cases may be summed up thus: The Rules of the lower Court do not prohibit the filing of two or more notices of appeal. See Abba Tukur v Government of Gongola State [1988] All NLR 42, 49; Ogboru v Uduaghan [2012] 11 NWLR (Pt 1211) 357. Although it may “look a bit awkward,” Akeredolu and Ors. v. Akinremi and Ors. [1986) 2 NWLR (Pt 25) 710, or “somewhat too technical, “Hariman v Hariman (1987) 3 NWLR (Pt 60) 244]. See Per Oputa J.S.C. in Tukur v Government of Gongola State (supra), an appellant who, like the first respondent, files two such notices is not blameworthy for erring on the side of caution. The reason is simple: the ancient maxim – abundantia cautela non nocet [meaning “great caution does no harm”], first, endorsed in Heydon’s Case 11 Co. Rep. 5a at 6b, has been endorsed by this Court. See Tukur v Government of Gongola State (supra).
Where validly filed, an appellant would be right to apply for leave to either consolidate such notices into one or to withdraw all except one of them. See Tukur v Government of Gongola State (supra). Thus, where such an appellant timeously withdraws one of the two notices which are of the same nature, his process would not be an abuse of process. See Diamond Bank Ltd v P. I. C. Ltd [2010] All FWLR (Pt 512) 1098, 1126, C-F. In effect, an appellant can validly withdraw one of two notices of appeal and then proceed to argue his appeal on the outstanding notice of appeal. See Savannah Bank of Nigeria Plc v CBN [2009] All FWLR (Pt 481) 939, 969. As a corollary, the notice of appeal, which was withdrawn, would be deemed abandoned, Diamond Bank Ltd v P. I. C. Ltd (supra) at 1126 C-F.
The Constitution of the Federal Republic of Nigeria (as amended) creates categories of rights of appeal from the trial Court to the lower Court. While Section 241 consecrates appeals as of right from the Federal High Court or a High Court, Section 242 ordains rights of appeal with the leave of the Federal High Court; High Court or the Court of Appeal. In effect, the exercise of each category of a right of appeal would warrant the filing of a Notice of Appeal. Thus, an appellant, desirous of exercising both rights, could file two Notices of Appeal within time. As Oputa J.S.C. put it in Tukur v Government of Gongola State (supra):
To utilise and exercise any right of appeal, an appellant is obliged and obligated by the Rules to file a Notice of Appeal. Where therefore the Constitution gave one and the same Appellant in one and same case two rights of appeal – one as of right, without leave, and the other qualified by and limited to the grant of leave – there and then it is logical to conclude that for each right of appeal being exercised one Notice of Appeal is required so that for the exercise of the two constitutional rights two Notices of Appeal will technically be required. It would seem obvious that this was what guided the first respondent’s approach in filing two Notices of Appeal against the said ruling of the trial Court/the first notice, on grounds of law alone; and the second notice/on grounds of mixed law and facts. PER OLUJIMI LOKULO-SODIPE, J.C.A.
COURT: ESSENCE OF BRIEF WRITING

Rules of Court particularly provisions apropos brief writing were prompted by the philosophical quest for speedy trial and expeditious disposal of matters. Somehow, legal practitioners have managed to nibble at this objective by resorting to their inexhaustible arsenal of forensic theatrics designed to filibuster proceedings. We are therefore compelled to re-iterate the point that this Court and indeed any other Court for that matter will not brook the practice where technical justice is accorded such free rein that is capable of overwhelming the substance of justice. See Hambe v Hueze (2001) 12 WRN 64; (2001) 4 NWLR (Pt 703) 373, 389-391; Aderounmu v Olowu (2000) 4 NWLR (Pt 652) 252, 256-266. Simply put, the wheels of justice must be at liberty, just like the chariot of juggernaut, to coast on their course, unbridled by such disingenuous manoeuvres deliberately programmed to clog their majestic movement. See Military Administrator of Benue State v Ulegede (2001) 51 WRN 1, 15-16; (2001) 17 NWLR (Pt.74) 194; (2001) 91 LRCN 3044; (2001) 70 SCNJ 43. That explains why, even long before the introduction of the Brief System, this Court had looked with askance at the situation where technical rules became so triumphant that often times, the justice of the case before the Court was left lying prostrate. See for example Oputa J.S.C. in Aliu Bello and Ors v AG Oyo State (1986) 5 NWLR (Pt. 45) 528, 886. What is more, as Tobi J.S.C. observed in Abubakar v Yar’Adua [2008] 4 NWLR (Pt 1078) 465, 511: It is a known fact that blunders must take place in the litigation process and because blunders are inevitable it is not fair, in appropriate cases, to make a party in the blunder to incur the wrath of the law at the expense of hearing the merits of the case. PER OLUJIMI LOKULO-SODIPE, J.C.A.

PROCESS: APPLICATION OF THE CONCEPT OF ABUSE OF PROCESS

Even then, the concept of abuse of process applies only to proceedings which are bereft of good faith; which are not only frivolous, but also vexatious or oppressive which almost always, have an element of malice in them, having been commenced mala fide to irritate or annoy the opponent. Okafor v AG Anambra [1991] 6 NWLR (Pt 200) 659 and the efficient and effective administration of justice. Ekpuk v Okom (2001) 44 WRN 85; Saraki v Kotoye [1992] 9 NWLR (Pt 264) 156, 188. They include instances where there are a multiplicity of actions on the same subject matter against the same opponent on the same issue; Okorodudu v Okoromadu [1977] 3 SC 21; NV Scheep v MV. “S. Araz” (2000) 15 NWLR (Pt 691) 622. Such abuse lies more in the multiplicity of the actions rather than in the exercise of the right, FRN v Abiola (1997) 2 NWLR (pt. 488) 444; Owonikoko v Arowosanye (1997) 10 NWLR (Pt 523) 61; Morgan v W.A.A. & Eng. Co. Ltd (1971) 1 NWLR 219. PER OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: CIRCUMSTANCES THAT CAN RESULT IN THE PROSECUTION OF AN APPEAL ON MORE THAN ONE NOTICE OF APPEAL

The circumstances that can result in the prosecution of an appeal on more than one notice of appeal as was clearly brought out in the case of FRN v. Dairo (supra), are (i) where an appellant is obligated by law to file more than one notice of appeal having regard to whether the right of appeal being exercised is one as of right and one with leave respectively; (ii) there must be an order of the Court to fuse as it were by way of consolidation the notices of appeal upon which the appeal in question, is to be prosecuted; and (iii) the making of an application for that purpose in an appellant’s brief of argument (which is ordinarily irregular) should not militate against the making of an order by the Courts to save the situation. PER OLUJIMI LOKULO-SODIPE, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

CHRISTIAN CHUKWU APPELANT(S)

And

THE STATE RESPONDENT(S)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The Appellant as Applicant brought the instant motion on notice dated 14/8/2020 and filed on the same date, pursuant to Order 4 Rule 1, Order 6 Rule 1, Order 17 Rule 3(3) of the Court of Appeal Rules 2016, Section 15 of the Court of Appeal Act and under the inherent jurisdiction of this Honourable Court, seeking for:-
“1. An order of this Honourable Court granting leave to the Appellant/Applicant to amend the Notice of Appeal filed on 23/10/2017 in the manner shown in the proposed Amended Notice of Appeal by incorporating thereto 11 fresh grounds of appeal.
2. An order deeming the said Amended Notice of Appeal already filed in the registry of this Honourable Court as properly filed and served, the appropriate filing fees having been paid.”
The grounds for bringing the motion on notice are: –
“(1) The record of appeal was yet to be compiled at the expiration of the statutory period within which to file the appeal against the judgment of the trial Court.
(2) However, upon being served with a copy of the trial Court’s judgment, only the omnibus

ground was formulated and filed together with the notice of appeal to express the Appellant’s intention of challenging the decision of the trial Court.
(3) On compilation of the record of appeal, the Appellant’s counsel having perused the records have decided that there is need to challenge specific findings and conclusions reached by the trial Court.
(4) Arising from the foregoing, there is need to amend the existing ground of appeal and incorporate therein fresh grounds with the leave of Court.
(5) This application is brought to enable the Appellant properly ventilate his grievance before this Honourable Court as this will make for easy comprehension of the issues in controversy in the appeal.”

As expected, and in compliance with the immutable position of the law in respect of motions, the motion on notice brought by the Appellant, has a 12-paragraph supporting affidavit.

The motion on notice brought by the Appellant was moved on 6/10/2020. Re-produced hereunder is the note of proceeding before the Court on the said 6/10/2020, in respect of the motion on notice in question. It goes thus: –

“Okodaso: The motion before the Court filed on 14/8/2020 is to amend one of the notices of appeal that was filed on 23/10/2017. Moves in terms.
Court: Did you file two separate notices of appeal in the instant case?
Okodaso: Yes. One was filed on 23/10/2017. The other one was filed on 17/1/2018.
Court: Has one of the notices of appeal been amended before now?
Okodaso: Yes, my lord. The notice filed on 17/1/2018 was amended on 2/7/2020 by this Court.
Cites the case of FRN v. Dairo All FWLR (Pt. 776) 486 at 511-513 in support of his position that an appeal can be prosecuted on two separate notices of appeal.
DDDA: Says he is opposing the motion. That the Appellant cannot proceed on two notices of appeal.”

I am of the considered view that it is apparent from the note of proceeding for 6/10/2020 re-produced above, that the stance of the Court at the hearing of the Appellant’s motion on notice, is that the Appellant having initiated the instant appeal by lodging two notices of appeal on 23/10/2017 and 17/1/2018 respectively, and having earlier amended or having already amended the notice of appeal lodged on 17/1/2018, on 2/7/2020,

cannot thereafter properly revert to the notice of appeal filed on 23/10/2017, in the prosecution of the instant appeal and to seek for the amendment of the said notice. The case of FRN v. Dairo (supra) was cited by the Appellant to convince the Court that it was wrong in its stance as stated hereinbefore. Indeed, the ruling of the Court in respect of the instant motion on notice was reserved to a future date to afford the Court the opportunity to read the case of FRN v. Dairo (supra) and for the Court to see if its position as earlier expressed hereinbefore, is wrong in law.
It is clear from the records in the instant appeal that on 2/7/2020, the Appellant caused two motions on notice to be moved. The first was a motion on notice for the regularization of the position of the records of appeal, in the instant appeal. The motion on notice in question was granted and the records of appeal therein, deemed to have been properly compiled and transmitted to this Court, on 2/7/2020. The second motion was for an order of this Court granting leave to the Appellant to amend the notice of appeal filed on 17/1/2018, in the instant appeal, by substituting the

existing ground, with 11 fresh grounds of appeal shown as grounds Nos. 1-10 in the proposed Notice of Appeal and deeming the amended Notice of Appeal as having being properly filed and served. The orders sought in the motion on notice in question were granted and the Amended Notice of Appeal filed in the appeal on 22/6/2020, was deemed as properly filed and served on 2/7/2020. It is the other notice of appeal that was filed earlier in time – 23/10/2017, to the notice of appeal filed on 17/1/2018 and which was amended pursuant to order of this very Court made on 2/7/2020, that the Appellant is seeking to amend by the instant motion on notice. The position of the Court as made clear to the Appellant at the hearing of the instant motion on notice on 6/10/2020, is that the Appellant having elected to amend one of the two notices of appeal filed by him in the instant appeal, cannot revive as it were the other notice of appeal in the record and seek for the amendment of the same having initially amended one of them. That the Appellant by electing to amend one of the two notices of appeal filed in the instant appeal, is deemed to have abandoned the one he now

seeks to amend. That any other notice of appeal lodged by the Appellant being deemed by necessary implication to have been abandoned, ought to have been struck out. It is the stance of the Court as narrated above, that the Appellant has equated with a situation of the “prosecution of an appeal, on two notices of appeal, and has cited the case of FRN v. Dairo (supra) as permitting this.
In the case of FRN v. Dairo (supra) cited and relied on by the Appellant, the first of the issues for determination therein was: –
“ISSUE ONE
Whether the Court of Appeal was right when it held that it was regular and permissible for the first respondent to have argued his appeal upon two Notices of Appeal without withdrawing one?
Re-produced hereunder is the unabridged pronouncement of the Supreme Court per Nweze, JSC in respect of the said issue. It goes thus: –
“It would appear that the proximate impulsion to the appellant’s objection to the competence of the appeal before the lower Court was its zeal to preserve the sanctity and integrity of the architecture of the appeal process. As it is well-known, it is a Notice of Appeal that

initiates an appeal from a High Court to the lower Court, [see, Order 6 Rule 2 (1) of the Court of Appeal Rules, 2011], Dingyadi v INEC (2010) LPELR-952 (SC) 60. Put differently, the Notice [actually, a competent notice of appeal] is the foundational process that triggers off an appeal from a High Court to the lower Court. See Adelekan v. ECU-Line NV [2006] 12 NWLR (Pt. 993) 331 Uwazurike v AG Federation [2007] All FWLR (Pt 367) 834, 835, paragraphs E-F, and sustains it, Okotie v Olughor [1995] 5 SCNJ 2171.
As such, any virus in this process would, invariably, corrode or taint the entire appeal thereby rendering it incompetent. See First Bank of Nigeria Plc v T. S. A. Ind Ltd (2010) LPELR – 1283 (SC) 49, paragraphs A-D; Okeke Amadi v. Okeke Okoli [1977] 7 S C 57, 58; Adelekan v. ECU-Line NV [2006] 12 NWLR (Pt. 993) 33; Okolo v UBN Ltd. [2004] 3 NWLR (Pt. 859) 87; Ikweki v Ebele [2005] 11 NWLR (Pt. 936) 397; Akpan v Bob [2010] 17 NWLR (Pt. 1224) 421; General Electric Co. v Akande [2010] 18 NWLR (Pt. 1225) 596; Thor v FCMB Ltd [2002] 2 SCNJ 85; Ebokam v Ekwenibe and Sons Trading Coy Ltd [1977] 7 SCNJ 77. The effect of such a viral corrosion is usually

far-reaching as it nibbles at the jurisdiction of the appeal Court which must as of necessity, strike out such a process. See A.G. Fed v. Guardian Newspapers Ltd [1999] (Pt.618) 187; Odunze v Nwosu [2007] 13 NWLR (Pt. 1050) 1; Agu v Odofin [1992] 3 SCNJ 161, 172 – 173; Ibeto v Aminu [2007] 5 NWLR (Pt. 1028) 446; Danmusa v Inuwa [2007] 17 NWLR (Pt. 1063) 391; Clev Josh Ltd. v Tokimi [2008] 13 NWLR (Pt.11-4] 422.
In effect, the absence of a competent Notice of Appeal simply translates to the non-existence of an appeal. See Anadi v. Okoti [1972] 7 SC 57; CBN v. Okojie [2004] 10 NWLR (Pt. 882) 488; Olanrewaju v. BON Ltd [1994] 8 NWLR (pt. 364) 622; Olowokere v African Newspapers Ltd [1993] 5 NWLR (pt. 295) 583; Erisi v Idika [1987] 4 NWLR (pt. 66) 503; Josiah Cornelius Ltd v Ezenwa [1996] 37 LRCN 618; Tukur v Government of Gongola State [1988] 1 NWLR (Pt. 68) 391; First Bank of Nig Plc v Maiwada (2012) LPELR -9713 (SC) 187.
This must be so for it is a condition precedent to any valid exercise of appellate jurisdiction, Okeke Amadi v. Okeke Okoli (supra); Okotie v Olughor (supra).
As noted earlier, in its ruling of March 1, 2011, the trial Court found in

favour of the voluntariness of the extra-judicial statement of the first respondent. Aggrieved, he filed a Notice of Appeal on grounds of law alone. Pursuant to the leave of that Court, he filed another Notice of Appeal on grounds of mixed law. This was what prompted the present appellant’s objection at the lower Court. He contended that the appeal before the lower Court was incompetent on the ground that the first respondent [who was the appellant before that Court] filed and relied on two notices of appeal without withdrawing one. Specifically, at paragraph 4.3 of the appellant’s brief, learned senior counsel submitted that the lower Court was “in grave error when it held that the first respondent was right in law to have filed and relied on two notices of appeal without withdrawing one.”
Although, counsel for the parties to this appeal expended considerable energy in their arguments on this issue, the question here is really, very narrow. In the first place, all counsel are unanimous in their interpretations of the decisions of this Court on the propriety of filing two Notices of Appeal. We entirely endorse their contention on the first limb of

this issue. The rationale of all decisions of this Court on this is that it is permissible to file two Notices of Appeal within time. The cases are many indeed. The prescriptions that crystallise from such cases may be summed up thus: The Rules of the lower Court do not prohibit the filing of two or more notices of appeal. See Abba Tukur v Government of Gongola State [1988] All NLR 42, 49; Ogboru v Uduaghan [2012] 11 NWLR (Pt 1211) 357. Although it may “look a bit awkward,” Akeredolu and Ors. v. Akinremi and Ors. [1986) 2 NWLR (Pt 25) 710, or “somewhat too technical, “Hariman v Hariman (1987) 3 NWLR (Pt 60) 244]. See Per Oputa J.S.C. in Tukur v Government of Gongola State (supra), an appellant who, like the first respondent, files two such notices is not blameworthy for erring on the side of caution. The reason is simple: the ancient maxim – abundantia cautela non nocet [meaning “great caution does no harm”], first, endorsed in Heydon’s Case 11 Co. Rep. 5a at 6b, has been endorsed by this Court. See Tukur v Government of Gongola State (supra).
Where validly filed, an appellant would be right to apply for leave to either consolidate such notices into one or

to withdraw all except one of them. See Tukur v Government of Gongola State (supra). Thus, where such an appellant timeously withdraws one of the two notices which are of the same nature, his process would not be an abuse of process. See Diamond Bank Ltd v P. I. C. Ltd [2010] All FWLR (Pt 512) 1098, 1126, C-F. In effect, an appellant can validly withdraw one of two notices of appeal and then proceed to argue his appeal on the outstanding notice of appeal. See Savannah Bank of Nigeria Plc v CBN [2009] All FWLR (Pt 481) 939, 969. As a corollary, the notice of appeal, which was withdrawn, would be deemed abandoned, Diamond Bank Ltd v P. I. C. Ltd (supra) at 1126 C-F.
The Constitution of the Federal Republic of Nigeria (as amended) creates categories of rights of appeal from the trial Court to the lower Court. While Section 241 consecrates appeals as of right from the Federal High Court or a High Court, Section 242 ordains rights of appeal with the leave of the Federal High Court; High Court or the Court of Appeal. In effect, the exercise of each category of a right of appeal would warrant the filing of a Notice of Appeal. Thus, an appellant, desirous of

exercising both rights, could file two Notices of Appeal within time. As Oputa J.S.C. put it in Tukur v Government of Gongola State (supra):
To utilise and exercise any right of appeal, an appellant is obliged and obligated by the Rules to file a Notice of Appeal. Where therefore the Constitution gave one and the same Appellant in one and same case two rights of appeal – one as of right, without leave, and the other qualified by and limited to the grant of leave – there and then it is logical to conclude that for each right of appeal being exercised one Notice of Appeal is required so that for the exercise of the two constitutional rights two Notices of Appeal will technically be required. It would seem obvious that this was what guided the first respondent’s approach in filing two Notices of Appeal against the said ruling of the trial Court/the first notice, on grounds of law alone; and the second notice/on grounds of mixed law and facts.
It is instructive to note that, having filed two notices of appeal as aforesaid, the first respondent, as the lower Court explained at page 542 of Vol 2 of the record, …in his brief of argument … filed on

07/04/2011 in paragraph 3.01 seeks [sic, sought] the permission of the Court to consolidate the two notices of appeal as one and rely on the seven Grounds of appeal by numbering them serially as Grounds 1-7 in the two Notices of appeal…
At page 545 of the record, the lower Court noted that “the germane point is whether the appellant can make an application for consolidation in his brief of argument.” It acknowledged that:
“…applications in a brief of argument as in the instant appeal, for consolidation is (sic) irregular…”
Nevertheless, it took the view that:
… since this is a criminal appeal and the nature of irregularity will not prejudice the respondent who objected to the procedure of the application in the brief not the merit of the application for consolidation. (sic) It is my firm view that it is just in the circumstances to allow the consolidation of the two notices. [Italics supplied]
As pointed out above, it was the contention of the learned senior counsel for the appellant that the lower Court was in grave error when it held that the first respondent was right to have filed and relied on two Notices of Appeal.

The question then would be: did the first respondent utilise the two notices of appeal in the appeal? In order to answer this question, we shall re-iterate the point we had made earlier in this judgment. In the appeal before the lower Court, the first respondent herein [as appellant] exercised two rights of appeal recognised by the Constitution, namely, appeal as of right [by his first Notice of Appeal] and an appeal with leave on grounds of mixed law and facts [see, the second Notice of Appeal]. However, he failed to apply for the consolidation of the two Notices prior to the filing of his brief of argument. It was in the brief that he applied for consolidation.
As noted already, the lower Court characterised this approach as irregular. All the same, it still granted the entreaty for consolidation. In effect, the two Notices, by the order of the lower Court, were consolidated into one resulting in the re-numbering of the grounds. Thus, of the two options which Obaseki J.S.C. outlined in Tukur v Government of Gongola State (supra), namely, either to apply for the consolidation of the two Notices into one or to apply to withdraw one of the Notices, the

appellant opted to apply for the consolidation of the said two Notices into one. The lower Court granted him the indulgence.
Citing Order 17 Rule 2 and Order 8 Rule 1 of the Rules of the lower Court, [paragraphs 4. 8-4.13 of the appellant’s brief], learned senior counsel for the appellant urged the Court to invalidate the first respondent’s Notice of Appeal filed at the lower Court. With due respect, this entreaty to invalidate the said Notice of Appeal is simply an invitation to enthrone technicality over the substance of justice. We entirely agree with the lower Court that, in the circumstances, it was just to allow the application for consolidation. In our view, it would have been utterly unfair to strike out the appeal just because, as learned senior counsel for the present appellant argued, “Order 18 [of the Court of Appeal Rules, 2011] has made provisions for contents of Briefs of Arguments and there is no provision therein that ‘applications’ should also be contained in such Briefs,” [paragraph 4.11, page 7 of the appellant’s Brief]. True indeed, this interpretation of the ambit of the above Rule of the lower Court actually typifies one of

those ironies of the law. Rules of Court particularly provisions apropos brief writing were prompted by the philosophical quest for speedy trial and expeditious disposal of matters. Somehow, legal practitioners have managed to nibble at this objective by resorting to their inexhaustible arsenal of forensic theatrics designed to filibuster proceedings. We are therefore compelled to re-iterate the point that this Court and indeed any other Court for that matter will not brook the practice where technical justice is accorded such free rein that is capable of overwhelming the substance of justice. See Hambe v Hueze (2001) 12 WRN 64; (2001) 4 NWLR (Pt 703) 373, 389-391; Aderounmu v Olowu (2000) 4 NWLR (Pt 652) 252, 256-266. Simply put, the wheels of justice must be at liberty, just like the chariot of juggernaut, to coast on their course, unbridled by such disingenuous manoeuvres deliberately programmed to clog their majestic movement. See Military Administrator of Benue State v Ulegede (2001) 51 WRN 1, 15-16; (2001) 17 NWLR (Pt.74) 194; (2001) 91 LRCN 3044; (2001) 70 SCNJ 43. That explains why, even long before the introduction of the Brief System, this Court

had looked with askance at the situation where technical rules became so triumphant that often times, the justice of the case before the Court was left lying prostrate. See for example Oputa J.S.C. in Aliu Bello and Ors v AG Oyo State (1986) 5 NWLR (Pt. 45) 528, 886. What is more, as Tobi J.S.C. observed in Abubakar v Yar’Adua [2008] 4 NWLR (Pt 1078) 465, 511: It is a known fact that blunders must take place in the litigation process and because blunders are inevitable it is not fair, in appropriate cases, to make a party in the blunder to incur the wrath of the law at the expense of hearing the merits of the case. In our view therefore, the lower Court was in the good company of this Court when it stoutly refused to make the first respondent in this appeal [appellant at the lower Court] “to incur the wrath of the law at the expense of hearing the merits of the case.” The lower Court, having granted the first respondent the indulgence to consolidate the said two Notices of Appeal, the contention that the said first respondent relied on “two Notices of Appeal in the same appeal without withdrawing one,” [paragraph 4.18, page 9 of the appellant’s

brief] would seem to miss the import of the libertarian interpretation of Obaseki J.S.C. in Tukur v Government of Gongola State(supra).
Now, learned senior counsel also contended that there “is indeed an abuse of process when two processes of the same nature have been filed without one of them being withdrawn, as in this case,” [paragraph 4.23, page 11 of the appellant’s brief]. The lower Court as indicated earlier, granted the first respondent the indulgence to consolidate the two Notices of Appeal. As such, it would be incorrect to maintain that “two processes of the same nature have been filed without one of them being withdrawn, as in this case.”
In the first place, the two Notices of Appeal were disparate. In the appeal before the lower Court, the first respondent herein [as appellant] exercised two rights of appeal recognised by the Constitution, namely appeal as of right [by his first Notice of Appeal] and an appeal with leave on grounds of mixed law and facts [see the second Notice of Appeal dated]. Even then, the concept of abuse of process applies only to proceedings which are bereft of good faith; which are not only frivolous, but

also vexatious or oppressive which almost always, have an element of malice in them, having been commenced mala fide to irritate or annoy the opponent. Okafor v AG Anambra [1991] 6 NWLR (Pt 200) 659 and the efficient and effective administration of justice. Ekpuk v Okom (2001) 44 WRN 85; Saraki v Kotoye [1992] 9 NWLR (Pt 264) 156, 188. They include instances where there are a multiplicity of actions on the same subject matter against the same opponent on the same issue; Okorodudu v Okoromadu [1977] 3 SC 21; NV Scheep v MV. “S. Araz” (2000) 15 NWLR (Pt 691) 622. Such abuse lies more in the multiplicity of the actions rather than in the exercise of the right, FRN v Abiola (1997) 2 NWLR (pt. 488) 444; Owonikoko v Arowosanye (1997) 10 NWLR (Pt 523) 61; Morgan v W.A.A. & Eng. Co. Ltd (1971) 1 NWLR 219.
We entirely agree with counsel for the respondents [paragraph 4.06 et seq of the first respondent’s brief for example] that since the first Notice of Appeal was filed on grounds of law alone while the second Notice of Appeal was on grounds of mixed law and fact, after leave of the trial Court had been sought and obtained, there could not have been a

multiplicity of actions in the circumstance. This contention is unanswerable.
Given the above scenario, it is very difficult to pitchfork the first respondent’s approach at the lower Court into any of the circumstances constitutive of abuse of process as eloquently highlighted in several decisions of this Court. See for example CBN V Ahmed [2001] 11 NWLR 34 (Pt 724) 369; Amaefule v State [1988] 2 NWLR (Pt 75) 156, 177; Ntuks v NPA [2007] 13 NWLR (Pt 1051) 392, 419-420; Arubo v Aiyeleru [1993] 24 NSCC (pt 1) 255; 7up Bottling Co Ltd v Abiola and Sons Bottling Co Ltd [1996] 7 NWLR (pt 463) 714; Umeh and Anor v Iwu and Ors (2008) LPELR -3363 (SC) 21; Ogoejeofo v Ogoejeofo [2006] 3 NWLR (pt 966) 205; Adigun and Ors v Secretary Iwo Local Government and Ors [1999] 8 NWLR (Pt 613) 30 etc. In all, we find no merit in the appellant’s complaint on this issue. We therefore resolve it in favour of the respondents.”
I am of the considered view that it is clear as crystal from the portion of the case of FRN v. Dairo (supra) (cited and relied on by the Appellant) re-produced above, that the Supreme Court never enunciated the principle of law that an

appellant can willy-nilly prosecute an appeal on more than one notice of appeal as the Appellant has contended in the instant motion. Indeed, the Supreme Court in the said case clearly reiterated the position of the law to be that an appeal cannot be prosecuted on more than one notice of appeal. The circumstances that can result in the prosecution of an appeal on more than one notice of appeal as was clearly brought out in the case of FRN v. Dairo (supra), are (i) where an appellant is obligated by law to file more than one notice of appeal having regard to whether the right of appeal being exercised is one as of right and one with leave respectively; (ii) there must be an order of the Court to fuse as it were by way of consolidation the notices of appeal upon which the appeal in question, is to be prosecuted; and (iii) the making of an application for that purpose in an appellant’s brief of argument (which is ordinarily irregular) should not militate against the making of an order by the Courts to save the situation.
The principle of stares decisis which in my considered view, is what the Appellant wanted to lash up as it were, given his stance

vis a vis the stance of the Court has been consistently explained by the Supreme Court in many cases. One of such cases in which the Supreme Court did this in recent times is the case of INTEGRATED REALTY LTD V. ODOFIN (2017) LPELR-48358(SC). Therein, the Supreme Court stated thus: –
“…It is settled that where from the facts of a case, the principle of law stated by this Court is applicable, it is constitutional, unlawful and violation of the principle of stare decisis for a subordinate Court to make rules or conditions for the application of that principle of law.
It is settled that the principles of stare decisis only has meaning when the ratio or dictum of a case is read along with facts of the case – see Chief of Air Staff v. lyen (2005) 6 NWLR (Pt. 922) 496 SC.
And Amaechi v INEC (2008) 5 NWLR (Pt. 1080) 227 at 379/80, wherein this

Court, per Onnoghen, J.S.C. (as he then was), explained –
The application of the principles of stare decisis or judicial precedent does not involve an exercise of judicial discretion. It is what must be done; mandatory. The doctrine is based on the relevant likeness of or between the cases if there is no likeness between the two, it is an idle exercise to consider whether the previous one should be followed or departed from. It is settled law that a previous decision is not to be departed from or even followed, where the facts or the law applicable in the previous case are distinguishable from those in the latter case.
See also Adetoun Oladeji (Nig.) Ltd. v. Nigerian Breweries (2007) 5 NWLR (Pt. 1027) 415, where Tobi, J.S.C., further elucidated as follows –
“Stare decisis, which means to abide by or adhere to decided cases, as a policy of Courts to stand on precedent, is based on a certain state of facts, which are substantially the same, and here the word is substantially. This means that the facts that give rise to the principle of stare decisis are the material facts, devoid of or without unimportant details. (It) also means that the facts

need not be an all fours in the sense of exactness or exactitude. There can hardly be two cases where the facts are exactly the same, and the doctrine of stare decisis does not say that the facts must be exactly the same. And so there could be inarticulate differences, which will not necessarily be a poison in or to the application of stare decisis. One major criterion in the determination of the matter is that the facts of the previous case are major, substantial and material to the current case begging for the application of the previous case”.
In other words, the facts that give rise to the principle of stare decisis are the material facts, devoid of or without unimportant details. So, the facts of a previous case must be major, substantial and material to the current case begging for the application of the previous case – See Adetoun Oladeji (Nig.) Ltd. v. Nigerian Breweries Plc. (supra). xxxx”
Indeed, what the Supreme Court stated in the case cited above to the effect that the doctrine of stares decisis, has no application where the facts of a case decided earlier in time are not similar

with the facts of a case decided later in time or to be decided later in time, would appear to have been stated as far back as 23rd June, 2000, in the case of ADISA V. OYINWOLA (2000) LPELR-186(SC). Therein, the Supreme Court stated thus:
“A previous decision is not to be departed from, or even followed, where the facts or the law applicable in that previous case are distinguishable from those in the later case. Where relevant statute laws have changed since the previous decisions, what is called for is “distinguishing” rather than “departure”.
The doctrine of stare decisis is based, first and foremost, on the relevant likeness between two cases – the previous case and the one before the Court. Where there is no relevant likeness between the two, it is an idle exercise to consider whether the previous one should be followed or departed from. xxx”
Given the position of the law as enunciated in the cases cited above in respect of the principle of stares decisis, I am of the settled view that the “unqualified” stance of the Appellant that an appeal can be prosecuted on two or more than one notice of

appeal, in a motion on notice to amend the other of the two notices of appeal lodged in the instant appeal by him after he had initially caused one of the said two notices to be amended, is not tenable in law. The two notices of appeal lodged in the instant appeal by the Appellant were lodged as of right. Even at that the application before the Court is not to consolidate the two notices of appeal, into one. The situation the Appellant wants to create in the instant appeal, is to have the instant appeal erected on two separate notices of appeal. The law in my considered view permits an appellant to amend his notice of appeal as many times as he wants. One would have thought that if the Appellant, having first amended one of the two notices of appeal he lodged in the instant appeal as not properly articulating his grouse with the judgment he has appealed against, it would be more in accordance with the position of the law, to have sought for the further amendment of the amended notice of appeal which he filed on 22/6/2020 and which this Court deemed to have been properly filed and served on 2/7/2020. It certainly does not augur for the administration of justice

for the Appellant to have now raked up or revived the notice of appeal lodged on 23/10/2017 (the existence of which he suppressed as it were when he sought the amendment of the notice of appeal lodged on 17/1/2018) and which as earlier stated stood abandoned as at the point in time he (Appellant) sought for and procured the order of this Court amending the notice of appeal lodged on the said 17/1/2018. Indeed, it would have been a different situation, if the Appellant in the knowledge that there was anything inherently defective in the notice of appeal lodged on 17/1/2018 and which was not cured by the amendment he sought and procured on 2/7/2020, had sought for the setting aside of the said amended notice of appeal and to have sought for the amendment of the notice of appeal lodged on 23/10/2017.
Flowing from all that has been stated herein before, is that the notice of appeal lodged by the Appellant which cannot legally exist side by side with the amended notice of appeal filed in the instant appeal on 2/7/2020 and which by necessary implication stood abandoned upon the amendment of the notice of appeal lodged on 17/1/2018 on the said 2/7/2020, is

hereby formally struck out. If the Appellant conceives that he cannot properly proceed with the prosecution of the instant appeal on the basis of any incurably defect therein, he is advised to do the needful and have the instant appeal terminated on the basis of such incurably defect and go back to the drawing board to initiate his appeal against the judgment of the lower Court delivered on 18/10/2017.

In the final analysis, the Appellant’s motion on notice dated and filed on 14/8/2020, (which was opposed by the Respondent), fails and is hereby dismissed.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the lead ruling just delivered by my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A., and I agree that the Appeal be dismissed.

Appellant in law has no valid or competently lodged in Amended Notice of Appeal of 2-7-2020 which was deemed as the extant Notice of Appeal for the prosecution of his Appeal herein; A revert to an abandoned Notice of Appeal filed on 23-10-2017 cannot avail as that Notice of Appeal had in law been abandoned and extinguished in law. To seek to refer to it will be an exercise in abuse of Court process and a further

abandonment of the extant Notice of Appeal of 17-1-2018 deemed 27-7-2020.
The Appeal cannot be argued on two amended Notices of Appeal, existing simultaneously; therefore, an amendment in the circumstances sought cannot be rightly granted.

I endorse the refusal of the Appellant/Applicant’s motion as opposed by the Respondent.

Though a criminal appeal; the Notice of Appeal must be put on a valid legal pedestal before it can sail expeditiously and justly. Counsel need not delay criminal prosecutions. I say no more.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read before now a draft copy of the judgment delivered by my learned brother AYOBODE OLUJIMI LOKUKO – SODIPE, JCA and I agree with the reasoning and conclusion in the judgment

The Appellant’s motion on Notice dated and filed 14th August, 2020 fails and is hereby dismissed.

Appearances:

Jim E. Okodaso with him, A. Adedeji For Appellant(s)

C.O. Agbagwu (DDDA, Delta State) with him, M.U. Dibia (ACSC) and O. Eyesio (SSC) For Respondent(s)