DANSA OIL & GAS LTD & ANOR v. ACCESS BANK (2020)

DANSA OIL & GAS LTD & ANOR v. ACCESS BANK

(2020)LCN/14213(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, May 27, 2020

CA/L/942/2012(R)

RATIO

CONTENT AND REQUIREMENT OF A NOTICE OF APPEAL

Now, Order 7, Rule 2(1) of the Court of Appeal Rules, 2016 (Order 6, Rule 2(1) of the 2011 Court of Appeal Rules) provide for the contents and requirements of a Notice of Appeal to be filed by a person who is dissatisfied with any decision of a Lower Court and desires to appeal against same to this Court. The provisions are that: –
“2(1). 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 names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.”
Because the Notice of Appeal is the originating process in the Court and the foundation and source of its appellate judicial authority and power, otherwise known as jurisdiction, to entertain and adjudicate over an appeal by way of complaint(s) against the decision of a Lower Court, it is so crucial and fundamental in the proceedings of the Court such that its validity can rightly be said to be sine qua non. See Akinloye v. Adelakun (2000) 5 NWLR (Pt. 657) 530; Shell Int. Pet. B. V. v. F. B. I. R. (2004) 3 NWLR (Pt. 859) 46; Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1; N. D. I. C. v. Lagos State Govt. (2011) 1 NWLR (Pt. 1229) 629; FBN, Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444; Abdul v. CPC (2014) 1 NWLR (Pt. 1388) 299; Ikechukwu v. FRN (2015) 7 NWLR (Pt. 1457) 1; Apeh v. PDP (2016) 7 NWLR (Pt. 1510) 153; SPDCN Ltd v. Agbara (2016) 2 NWLR (Pt. 1496) 353. For a Notice of Appeal to be valid and competent to properly invoke the jurisdiction of the Court over an appeal, it must satisfy and meet the basic requirements of the contents set out in the above provisions of the Rules of Court, among other requirements. SCOA Nig. Plc v. Mohammed (2004) 4 NWLR (Pt. 862) 20; Okarika v. Samuel (2013) 7 NWLR (Pt. 1253) 19; Adejumo v. Olawaiye (2014) 12 NWLR (Pt. 1421) 252; Mohd. v. ABU, Zaria (2014) 7 NWLR (Pt. 1407) 500; Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483; Kalu v. Uzor (2006) 8 NWLR (Pt. 981) 66;Emecheta v. Ogueri(1998) 12 NWLR (Pt. 579) 502; Akoledowo v. Ojubutu (2012) 16 NWLR (Pt. 1325) 1.
Under Order 7, Rule 2, by the side Note, reference was made to the proforma Form 3 which is in the First Schedule to the Rules as the template form in which a Notice of Appeal to the Court shall be as regards the essential contents thereof. A Notice of Appeal which substantially contains the vital information as regards the complaint(s) against the decision appealed against as shown and set out on Form 3, is one which complies with the requirements of Order 7, Rule 2(1) as to the contents and so prima facie, a valid and competent Notice of Appeal for the purpose of properly invoking the requisite jurisdiction of the Court over an appeal. PER GARBA, J.C.A.

IMPORTANCE OF A NOTICE OF APPEAL

A Notice of Appeal is also meant to provide the other party; i.e. Respondent’s to the appeal, adequate notice of the nature of the complaints or grievances a party (Appellant) has and intends to in ventilate before the appellate Court for consideration in the appeal so as to enable the Respondent(s) know and prepare to meet same at the hearing of the appeal. SBN vs. P.I.E. Limited (2004) 6 NWLR (Pt. 868) 146, Adelekan vs. Ecu-Line (2006) 12 NWLR (Pt. 993) 33, Clev Josh Limited vs. Tokimi (2008) 13 NWLR (Pt. 1104) 422, INEC vs. Nyako (2011) 12 NWLR (Pt. 1262) 439, Oraekwe vs. Chukwuka (2012) 1 NWLR (Pt. 1280) 169, Nigeria Navy vs. Labinjo (2012) 17 NWLR (Pt. 1328) 56, Iwuoha vs. NIPOST (2003) 8 NWLR (Pt. 822) 308.
Once a Notice of Appeal provides and gives sufficient and adequate notice and information of the material nature of the complaint an Appellant has against the decision of a Lower Court to enable a Respondent to know and fully prepare to respond to them at the appellate Court, it qualifies as a valid Notice of Appeal for the purpose of vesting the appellate Court with the requisite jurisdiction over the appeal. PER GARBA, J.C.A.

WHETHER OR NOT A NOTICE OF APPEAL CAN BE AMENDED

Under the Rules, the Court has the discretion and an Appellant has the right to seek for leave of the Court to amend the Notice of Appeal at any time in the course of the proceedings as the justice of a case may require. SeeSalisu vs. Mobolaji (supra) @ page 2.
Let me state that the law is firmly settled that a Notice of Appeal which is or has been found to be fundamentally defective on any congnisable ground, is an invalid and incompetent Notice of Appeal which cannot be amended either by the Court or an Appellant. See Dambam v. Lele (2000) 11 NWLR (Pt. 878) 413; FBN.Plc v. T. S. A. Ind. (2010) 15 NWLR (Pt. 1216) 247; Mobil Oil Nig. Plc v. Yusuf (2012) 9 NWLR (Pt. 1304) 47; Ikechukwu v. Nwoye (2014) 4 NWLR (Pt. 1387) 227; SPDCN Ltd. v. Sam Royal Hotel Nig, Ltd (2016) 8 NWLR (Pt. 1514) 318. PER GARBA, J.C.A.

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Between

DANSA OIL & GAS LIMITED 2. ALHAJI SANI DANGOTE APPELANT(S)

And

ACCESS BANK PLC (PREVIOUSLY INTERCONTINENTAL BANK PLC) RESPONDENT(S)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By the Motion on Notice dated the 20th, June 2019, the Appellants seek the following reliefs in this appeal: –
“1. An order of Court granting leave to the Appellants/Applicants to amend the Notice of Appeal as shown in the Amended Notice of Appeal, attached as exhibit A1.
2. An order deeming the said Amended Notice of Appeal, already filed and served as being duly and properly filed and served.
3. For such further and other Orders as this Honourable Court deem fit to make in the circumstances.”

The reliefs are premised on the grounds that: –
“1. That there was an omission of the relief sought in the Notice of Appeal filed and dated 14th June, 2012.
2. The Applicants need to amend the Notice of Appeal in order to indicate the reliefs being sought before this Honourable Court.
3. The appeal concerns an issue of jurisdiction, which is a fundamental plea and one which the Court can raise suo motu.
4. The relief which naturally arises from a lack of jurisdiction is out of the action.”

An Eight (8) paragraphs Affidavit

deposed to by a litigation officer in the Chambers of the Counsel for the Appellants was filed along with and in support of the motion. The facts sworn to in the Affidavit are to the effect that due to inadvertence of Secretarial Staff and Counsel, the relief sought in the appeal was omitted on the Notice of Appeal and the amendment sought is simply to indicate and set out the relief on the Notice of Appeal.

For the Respondent, a Four (4) paragraphs Counter Affidavit sworn to by a litigation manager in the office of the Respondent’s Counsel was filed on the 6th of August, 2019 to oppose the motion. The facts in the Counter Affidavit are that the Appellants have not made any effort to diligently prosecute the appeal, notice of which does not contain any reliefs sought, contrary to the provisions of the Rules of the Court. Also, that the Appellants failed to seek and obtain prior leave of the Court to file the appeal on grounds of mixed law and facts, thereby rending it defective and so cannot be amended.

It is the case of the Respondent that briefs of argument have been filed in the appeal and that the Respondent has raised a preliminary

objection to the Notice of Appeal on ground that no relief was sought thereon, which the motion seeks to overreach.

In further averment, it is said that the Appellant’s earlier motion to amend the Notice of Appeal was struck out by the Court on the 14th of January, 2019 for want of prosecution when Counsel failed to appear to move same and so the motion is an abuse of the Court process.

At the hearing of the motion in Court on the 23rd of March, 2020, the Learned Senior Counsel who appeared for each of the parties, urged the Court to accept their respective positions in the determination of the motion. The case of Alaribe v. Nwankpa (1999) 4 NWLR (Pt. 600) 551 @ 568-9 was sent to the Court by the Appellants’ Counsel as an additional authority in support of the motion, after the hearing. It is indicated that the additional authority was copied to the Respondent’s Counsel.

desires to appeal against same to this Court. The provisions are that: –
“2(1). 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 names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.”
Because the Notice of Appeal is the originating process in the Court and the foundation and source of its appellate judicial authority and power, otherwise known as jurisdiction, to entertain and adjudicate over an appeal by way of complaint(s) against the decision of a Lower Court, it is so crucial and fundamental in the proceedings of the Court such that its validity can rightly be said to be sine qua non. See Akinloye v. Adelakun (2000) 5 NWLR (Pt. 657) 530; Shell Int. Pet. B. V. v. F. B. I. R. (2004) 3

NWLR (Pt. 859) 46; Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1; N. D. I. C. v. Lagos State Govt. (2011) 1 NWLR (Pt. 1229) 629; FBN, Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444; Abdul v. CPC (2014) 1 NWLR (Pt. 1388) 299; Ikechukwu v. FRN (2015) 7 NWLR (Pt. 1457) 1; Apeh v. PDP (2016) 7 NWLR (Pt. 1510) 153; SPDCN Ltd v. Agbara (2016) 2 NWLR (Pt. 1496) 353. For a Notice of Appeal to be valid and competent to properly invoke the jurisdiction of the Court over an appeal, it must satisfy and meet the basic requirements of the contents set out in the above provisions of the Rules of Court, among other requirements. SCOA Nig. Plc v. Mohammed (2004) 4 NWLR (Pt. 862) 20; Okarika v. Samuel (2013) 7 NWLR (Pt. 1253) 19; Adejumo v. Olawaiye (2014) 12 NWLR (Pt. 1421) 252; Mohd. v. ABU, Zaria (2014) 7 NWLR (Pt. 1407) 500; Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483; Kalu v. Uzor (2006) 8 NWLR (Pt. 981) 66;Emecheta v. Ogueri(1998) 12 NWLR (Pt. 579) 502; Akoledowo v. Ojubutu (2012) 16 NWLR (Pt. 1325) 1.
Under Order 7, Rule 2, by the side Note, reference was made to the proforma Form 3 which is in the

First Schedule to the Rules as the template form in which a Notice of Appeal to the Court shall be as regards the essential contents thereof. A Notice of Appeal which substantially contains the vital information as regards the complaint(s) against the decision appealed against as shown and set out on Form 3, is one which complies with the requirements of Order 7, Rule 2(1) as to the contents and so prima facie, a valid and competent Notice of Appeal for the purpose of properly invoking the requisite jurisdiction of the Court over an appeal.

In this appeal, the amendment sought by the Appellants in the motion is the omission to set out and state specifically, the relief sought on the Notice of Appeal as required under Order 7, Rule 2(1) and indicated in Form 3 of the Schedule to the Rules.
I have seen the Notice of Appeal filed by the Appellants on the 4th of June, 2012 against the decision by the High Court of Lagos State (Lower Court) contained in the Ruling delivered on the 23rd of May 2012 in the Suit No. ID/1502/09 between the parties. Without hesitation, I would state that but for the omission to state or absence of the specific relief sought on the Notice of

Appeal, the vital and essential information and requirements on Form 3 have been fully satisfied and met for its validity and competence as to contents under the provisions of Order 7, Rule 2(1).
From the Counter Affidavit of the Respondent, the omission or absence of the specific relief sought on the Notice of Appeal is the only primary complaint or ground for the opposition to the motion. The secondary ground for the opposition to the motion is the fact that the Respondent had raised the objection to the Notice of Appeal on ground of the absence or omission to specifically set out the relief sought thereon, in its brief of argument in the appeal and so the motion is meant to overreach it.
The primary complaint of omission to specifically state the relief sought on the Notice of Appeal is answered and effectively resolved by the Supreme Court in the case of Katto v. CBN (1991) LPELR-1678(SC), (1991) 9 NWLR (Pt. 214) 126 wherein, Akpata, JSC in the lead judgement, at pages 27-28, said: –
“While it is desirable that the exact relief sought be stated in the notice of appeal so that the Court may be guided, in making its order at the

conclusion of the appeal, an appeal which is valid in other respects will not be dismissed or struck out merely because the relief sought is not inserted in the notice of appeal. Whether an appeal will be dismissed or allowed or struck out or the case remitted for re-trial depends in the main on the nature of the complaints projected by the grounds of appeal and the merit or demerit of the complaints.
In effect, the order to be made is dictated by the outcome of the appeal, that is, whether it succeeds or fails”
See also the cases of Alaribe v. Nwamkpa (supra); Ewhrudje vs. W.L.G.C. (2005) 7 NWLR (Pt. 924) 334 @ 360-1 and Muhammed vs. ABU, Zaria (2014) 7 NWLR (Pt. 1407) 500 @ 528, wherein this Court relied on this position and decision by the Apex Court on the principle of law.
In line with the above reasoning by the Apex Court, it must be remembered that the primary purpose and essence of a Notice of Appeal as the name shows, is to give notice and sufficient information of the complaints or grievances a party has against the decision of a Lower Court by way of grounds of appeal, to the other party in the case, which he seeks an appellate

Court to look into and review the decision. A Notice of Appeal is also meant to provide the other party; i.e. Respondent’s to the appeal, adequate notice of the nature of the complaints or grievances a party (Appellant) has and intends to in ventilate before the appellate Court for consideration in the appeal so as to enable the Respondent(s) know and prepare to meet same at the hearing of the appeal. SBN vs. P.I.E. Limited (2004) 6 NWLR (Pt. 868) 146, Adelekan vs. Ecu-Line (2006) 12 NWLR (Pt. 993) 33, Clev Josh Limited vs. Tokimi (2008) 13 NWLR (Pt. 1104) 422, INEC vs. Nyako (2011) 12 NWLR (Pt. 1262) 439, Oraekwe vs. Chukwuka (2012) 1 NWLR (Pt. 1280) 169, Nigeria Navy vs. Labinjo (2012) 17 NWLR (Pt. 1328) 56, Iwuoha vs. NIPOST (2003) 8 NWLR (Pt. 822) 308.
Once a Notice of Appeal provides and gives sufficient and adequate notice and information of the material nature of the complaint an Appellant has against the decision of a Lower Court to enable a Respondent to know and fully prepare to respond to them at the appellate Court, it qualifies as a valid Notice of Appeal for the purpose of vesting the appellate Court with the requisite jurisdiction

over the appeal. For an omission of an information required to be set out or specifically stated on a Notice of Appeal to constitute or amount to a fundamental defect that is fatal to the validity of the Notice of Appeal, it must be such as to have misled or deceived the Respondent to whom it is given, on the nature and essential details of the complaints/grievances he was to meet or answer at the hearing of the appeal before the appellate Court. The Respondent here has not demonstrated or even suggested that it was in any reasonable way, misled, deceived or prejudiced by the omission or absence of the relief sought by the Appellants on the Notice of Appeal in respect of the complaint(s) against the Ruling by the Lower Court in the appeal. The only complaint by the Respondent is that the motion was meant to over reach it because briefs of argument have been filed in which an objection to the competence of the Notice of Appeal was raised and argued on the sole ground of the omission or absence of the relief sought from the Notice of Appeal. In dealing with a similar argument and complaint, this Court in Pharmatek Industry Projects Limited vs. Ojo (1996) 1 NWLR

(Pt. 424) 332 @ 338, per Abdullahi, JCA (later PCA) stated inter alia, that: –
“It is also true that briefs of argument have been filed and exchanged and the appeal virtually ready for hearing. But as correctly also pointed out by the learned counsel for respondent, this would not prevent the Court from exercising its discretion to allow an amendment either on the briefs of argument or even the notice and grounds of appeal, so long as the amendment would serve the course of justice and fairness.”
See also Salisu vs. Mobolaji (2014) 4 NWLR (Pt. 1396) 1 @ 18.
On the avernments and arguments on time wasting and expenses to be incurred by the Respondent in filing another brief made in the motion before His lordship, just as was made by the Respondent in this motion, he stated, at page 339 that: –
“Since the final stage for the hearing of the appeal has been set, it is my view that the steps taken by the learned counsel for appellant/applicant to regularize everything is excusable. The question of expenses raised by the learned counsel for respondent even though valid can be taken care of by award of costs. To refuse the

application will amount to leaning too much toward technically rather than substantial justice. When it has been made clear that the days of technicality are gone.”
In addition to the above position, the Apex Court in Laguro vs. Torku (1992) 2 NWLR (Pt. 223) 278 @ 292 had said that: –
“The declared object of the Court is to decide the rights of the parties and not to punish them for the mistakes they make in the course of the proceedings.
The adverse party is not entitled to have a mistake uncorrected because he intends to rely on it. The fact that an objection was raised to a defective process does not prevent an amendment to correct the defect.”
See also Adekeye vs. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214 @ 223, Tsokwa Oil MKI company Limited vs. BON Limited (2002) 11 NWLR (Pt. 777) 163, Atlantic Petroleum Limited vs. Ministry of Petroleum Resources (2014) 4 NWLR (Pt. 1396) 24 @ 41 & 42, Ani vs. Effiok (2017) 8 NWLR (Pt. 1567) 281 @ 314. In the premises of the settled position of the law stated and re-stated in these and many other judicial authorities, the fact that briefs of argument have been filed in an appeal

or that expenses may be incurred by a party or even that the party has raised and intend to rely on an objection to a process does not stand on the way for the correction of the defect in the process by way of an amendment.
In the case of a Notice of Appeal, Order 7, Rule 8 of the Court of Appeal Rule 2016, provides that a Notice of Appeal may be amended by or with the leave of the Court at any time. Under the Rules, the Court has the discretion and an Appellant has the right to seek for leave of the Court to amend the Notice of Appeal at any time in the course of the proceedings as the justice of a case may require. SeeSalisu vs. Mobolaji (supra) @ page 2.
Let me state that the law is firmly settled that a Notice of Appeal which is or has been found to be fundamentally defective on any congnisable ground, is an invalid and incompetent Notice of Appeal which cannot be amended either by the Court or an Appellant. See Dambam v. Lele (2000) 11 NWLR (Pt. 878) 413; FBN.Plc v. T. S. A. Ind. (2010) 15 NWLR (Pt. 1216) 247; Mobil Oil Nig. Plc v. Yusuf (2012) 9 NWLR (Pt. 1304) 47; Ikechukwu v. Nwoye (2014) 4 NWLR (Pt. 1387) 227; SPDCN Ltd. v. Sam Royal Hotel Nig, Ltd

(2016) 8 NWLR (Pt. 1514) 318.
However, I have earlier demonstrated through judicial authorities, that absence of or omission to specifically set out the relief(s) sought on a Notice of Appeal is a not defect of a fundamental nature capable of rendering a Notice of Appeal which has complied with all other requirements of the rules of the Court, incompetent.
The amendment sought by the Appellants in this motion simply and harmlessly seeks to amend an omission or defect which has not been shown to have misled the Respondent in the nature of the complaints contained or embedded in the grounds of the appeal set out on the Notice of Appeal. The justice of the case requires that the leave of the Court be granted for the amendment sought in order to specifically set out and state the relief sought on the Notice of Appeal as part of the requirements of the provisions of Order 7, Rule 2(1) of the Rules of the Court on the contents of a Notice of Appeal.

In the result, I find it expedient to grant the motion in terms of prayers 1 and 2 of the motion paper.

Accordingly, leave is granted to the Appellants/Applicants to amend the Notice of

Appeal dated and filed on the 4th June, 2012 in terms of the Amended Notice of Appeal dated 17th March, 2017, but filed on the 10th April, 2017. The Amended Notice of Appeal is deemed to have been duly and properly filed and served today.

Taking into account the peculiar facts in paragraphs 3(iii), (x), (xi), (xvi) and (xvii) of the Counter Affidavit which have not been challenged and controverted by the Appellants, the Respondent is entitled to costs for the grant of the motion. Costs assessed at Five Hundred Thousand Naira (N500, 000.00) on the basis of the aforenamed unchallenged facts, are awarded in favour of the Respondent to be paid by the Appellants/Applicants.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular opportunity to peruse, in draft, the well-honed leading ruling delivered by my learned brother, Mohammed Lawal Garba, JCA. I am in full agreement with the reasoning and conclusion in it. I too, grant the application.

TIJJANI ABUBAKAR, J.C.A.: I read before now the Ruling prepared and rendered by my Lord and Learned brother GARBA JCA, granting the prayer by the Appellants to amend their Notice of appeal. I endorse the reasoning

and conclusion and adopt the Ruling as mine, I also abide by all consequential orders including the order on costs.

Appearances:

S. Sowemimo, SAN, with him, A. Adewepo and R. Coker For Appellant(s)

Chief A.A. Aribisala, SAN, with him, S. Adara; M. A. Aribisala, O. Aribisala and Y. M. Ogamija For Respondent(s)