DR. ERASTUS AKINGBOLA & ANOR v. INTERCONTINENTAL BANK PLC & ORS
(2014)LCN/6960(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of March, 2014
CA/L/606/11
RATIO
WHETHER A COURT MAY ALLOW THE AMENDMENT OF A VALID NOTICE OF APPEAL WHERE THE BRIEFS OF ARGUMENT HAVE BEEN FILED AND EXCHANGED
It is trite that once there is a valid notice of appeal, it can be amended. The fact that briefs of argument have been filed and exchanged and that the appeal is virtually ready for hearing will not prevent a court from exercising its discretion to allow an amendment of the notice and grounds of appeal so long as the amendment would serve the ends of justice and fairness and the other party can be compensated in costs. FIRST BANK OF NIGERIA PLC V. MAY MEDICAL CLINICS OF DIAGNOSTIC CENTRE LTD. AND ANORS (2001) LPELR – 1282 (SC). PER CHINWE EUGENIA IYIZOBA, J.C.A
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
1. DR. ERASTUS AKINGBOLA
2. MR. BAYO DADA Appellant(s)
AND
1. INTERCONTINENTAL BANK PLC.
2. MR. MAHMOUD LAI ALABI
3. ABUBAKAR D. SULE
4. GBENGA ALADE
5. OLUSEGUN OSILOWO
5. SULEIMAN YUSUF
7. DR. RAYMOND OBIERI
8. ALHAJI ISYAKU UMAR
9. MRS. SEINYE LULU-BRIGGS
10. MRS. TOYIN PHILLIPS
11. MR. CHRIS ALABI
12. MR. J.S. P.C. NWOKOLO
13. MR. IKECHI KALU
14. ELDER SANNI ADAMS
15. ACCESS BANK PLC.
16. CENTRAL BANK OF NIGERIA Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Lead Ruling): By an Application dated 25/1/2012, the Appellants are praying this Court for leave to amend their Notice of Appeal – by deleting the entirety of Grounds 1, 3, 4, 5 & 7 and inserting in its place a new Ground One; “by amending Ground 6” and substituting and/or inserting it as Ground Three; “by deleting the words ‘and/or statute barred’ as they appear in Ground Eight”, and “by renumbering Ground Eight and Ground Nine to now read Ground Four and Ground Five respectively”. They also pray for a deeming Order in respect of the Amended Notice of Appeal; leave to amend their Brief of Argument; extension of time to file their Reply Brief to the 7th – 14th Respondents Brief; and to deem the said Reply Brief as duly filed.
The Grounds for the Application are as follows –
1. That notwithstanding that the Ruling of the trial Federal High Court, per Okeke J., the subject matter of the Appellants’ Appeal in this Suit was delivered on 14/6/2011 and that the requisite application for the Certified True Copy of the same was made on the same date on behalf of the Appellants, it was not until 6/10/2011 that the same was obtained on behalf of the Appellants;
2. That owing to the difficulties in obtaining the Certified True Copy of the Ruling of the Lower Court, the Appellants were constrained to file a Further and Better Affidavit in support of Notice of Motion for Orders, inter alia, of injunction filed in this Suit on the 19/9/2011 wherein these facts were brought before the Court of Appeal.
3. That at this time, the Appellants Counsel were constrained to settle and file the Notice of the Appellants’ Appeal dated 17/6/2011 on 21/6/2011 relying only on the notes of the Lower Court’s proceeding and Ruling of the said 1/6/2011 as recorded by Counsel in the open Court on that date;
4. That upon receipt of the Certified Copy of the said Ruling of the Lower Court on 6/10/2011, the Appellants’ Counsel, in compliance with the Orders of the Court of Appeal made on 17/10/2011 proceeded to settle, compile and transmit the Record of Appeal to the Court of Appeal on 17/10/2011, and, equally, to settle the Appellants’ Brief dated 18/10/2011 and filed on 19/10/2011.
5. That on further perusal of the processes in this matter by the Appellants’ Counsel, it was discovered that some of the Grounds as are contained in the Notice of the Appellants’ Appeal do not fully relate to the decision comprised in the Ruling of the Lower Court delivered on 14/6/2011 and/or reflect the Appellants’ complaints thereon.
6. That in order to fully and properly relate the Grounds of the Appellants’ Appeal to the said Ruling of the lower Court and/or to reflect the Appellants’ complaints thereon, there is need to amend the Appellants’ said Notice of Appeal and//or the Grounds thereof.
7. That the said amendments have now been settled on behalf of the Appellants, filed and served.
8. That no amendments is sought to be made to the Appellants’ Brief already settled, filed and served other than to specifically relate the issues for Determination as contained therein to the Grounds and/or Notice of the Appellants’ Appeal, as amended.
9. That owing to pressure of work and the need to settle the said amendments to the Grounds and Notice of the Appellants’ Appeal together with the accompanied processes, the Appellants’ Reply Brief to the 7th – 14th Respondents’ Brief could not be settled and filed within time.
10. That the Appellants’ Reply Brief dated the 25th day of January, 2012 to the 7th – 14th Respondents have now been settled, filed and served.
The Application is supported by a 3-paragraph Affidavit and 3-paragraph Further and Better Affidavit; both deposed to by Nnamdi Okoroike Williams, a Litigation Executive with the Law Offices of Onyebuchi Aniakor & Co., who reproduced the Grounds thereof in Paragraph 2(a)-(j) of the Affidavit as information he received from “Pamelo Unegbu (Mrs.) of counsel seised of this matter” and verily believed.
In opposing the Application, the 7th-14th Respondents filed an 8-paragarph Counter Affidavit deposed to by one Friday Akatobi, a Law Clerk in Messrs Adesokan & Co., who averred as follows in paragraphs 2 to 7 thereof that –
2. I have seen the Appellants’ Motion on Notice – – and the Affidavit in Support and I say that paragraph 2 of the Affidavit in Support is grossly inaccurate and misleading.
3. The Ruling of the lower Court was obtained by the Appellants on 6/10/2011, the Record was filed on 17/10/2011 while the Appellants’ Brief was filed on 8/10/2011; and thus the Appellants had the opportunity to examine their Grounds of Appeal along with the Ruling before their Brief was filed.
4. The Appellants formulated only three issues in their Brief and specifically related those issues to Ground 2, 6 and 9 of the Notice of Appeal. The Honourable Court is respectfully referred to the Appellants’ brief.
5. Upon being served with the Appellants’ Brief, these Respondents filed their Brief of Argument in which they raised the following Preliminary Objection:
Objection One:
Appellants have abandoned Grounds 1, 3, 4, 5, 7 and 8
Objection Two:
Ground One alleged error in law in respect of a non-existent quotation in the Ruling.
Objection Three:
Ground Two contains No Particulars
Objection Four:
Ground 9 is vague and ambiguous”
This Honourable Court is respectfully referred to pages 3 to 5 of these Respondents’ Brief, showing the aforesaid Objections.
6. All the Grounds in the Appellants’ Notice of Appeal of 17/6/2001 are either unconnected with the Ruling that is being appealed against, or bereft of necessary particulars, or vague clumsy and ambiguous and are consequently incurably bad.
7. The proposed amendment filed on 25/1/2012 is meant to overreach these Respondents’ Preliminary Objection as contained in their Brief, which bad been filed and served on the Appellants since 10/11/2011.
Due to the contentious nature of this Application, the Appellants and the 7th-14th Respondents, who were the only Respondents that filed a Counter-Affidavit to it, were ordered to file Written Addresses in respect of their respective positions – for and against the Application. Before the adoption of the Written Addresses, the Appellants withdrew prayers 3, 4 and 5 relating to the Appellants’ Reply Brief, and they were accordingly struck out. We are to consider prayers 1 and 2 only.
In the Appellants’ Written Address by I. O. Aniakor, Esq., it was stated that the sole issue for determination in the premises of [their] present Application is –
“Whether on the facts and the applicable legal principles, the Appellants are not entitled to the exercise of this Court’s discretion in their favour; and, the grant of the reliefs therein prayed for?
They referred us to their Affidavits, annexures thereto, and the Counter Affidavit, particularly paragraph 7 thereof and argued that neither the 7th- 14th Respondents or indeed, any other Respondent in this Appeal have any objection to all of their Grounds as contained in the Original Notice of Appeal filed in these proceedings.
Furthermore, that it is settled that a valid Notice of Appeal can be amended and the purpose of such an amendment is to ensure that complaints against the proceedings are laid and ventilated before the Court – FBN V. MDCDC (2001) 27 WRN 162 cited; that this Court’s power to allow the amendment is not in doubt – Order 4 rules 1 & 4 and Order 6 rules 4 & 15 of the Court of Appeal Rules cited; and that a party is not foreclosed by a preliminary objection brought by the other party from correcting errors in his Grounds of Appeal – Shanu v. Afribank Nig. Plc. (2000) 18 WRN 1 and FBN V. MDCDC (supra) cited. We were urged to grant it.
The said 7th-14th Respondents submitted in their Written Address prepared by Wale Adesokan, Esq., that the issue that arises for determination is simply –
“Whether an amendment that seeks to overreach the Respondent or in respect of incompetent ground(s) of appeal ought to be granted”.
They agreed that a valid notice of appeal can be amended at any time but argued that such an amendment should not be to overreach the Respondent, citing FBN v. M. M. C. & D.C. Ltd. (1996) 9 NWLR (Pt.470) 195; that were parties have joined issues, it will work injustice and unfairness to allow the Appellant to amend the Notice of Appeal and the Brief of Argument to correct the issues already joined, citing Odon V. Barigha-Amange (No.1) (2010) 12 NWLR (Pt.1207) 1, LASTMA v. Esezoobo (2012) 3 NWLR (Pt. 1286) 49; that the sole purpose of the Proposed Amendment by the Appellants is to render their preliminary objections nugatory and validate their invalid Notice of Appeal; that a competent Notice of Appeal is the bedrock of an appeal and where it is incompetent, it is liable to be struck out, citing Uwazurike V. AG Fed. (2007) 8 NWLR (Pt.1035) 1; that no one can place something on nothing and expect it to stand, it will collapse; and that the entire Grounds of Appeal are incompetent and therefore incapable of being amended.
I have gone through the Affidavits and considered the arguments for and against the Application, and I agree with the Appellants that the only ground for the Respondents’ objection is as stated in paragraph 7 of their Counter Affidavit –
“That the proposed amendment filed on 25/1/2012 is meant to overreach these Respondents’ Preliminary Objection as contained in their Brief, which had been filed and served on the Appellants since 10/11/2011”.
The word “overreach” simply means “to get the better of’ or to outsmart – see Dictionary.Com; and the 7th-14th Respondents argued as follows in their brief –
“The Brief was filed within time. This was served upon the Appellants on 10/11/2011. The Preliminary Objection was argued from pages 3 to 5 of the Brief. The sole purpose of the Proposed Amendment of the Notice of Appeal was to render the Preliminary Objections of these Respondents nugatory and to validate its Notice of Appeal which had been invalid, ab initio. In Objection One these Respondents contended that Grounds 1, 3, 4, 5, 7 and 8 have been abandoned because the Appellants formulated no issues on them. In Objection Two they complained that Ground One of the Notice of Appeal alleged error in law in respect of a non-existent quotation in the Ruling. Objection Three is to the effect that Ground Two contain no particulars and therefore incompetent. Objection Four was that Ground 9 is vogue and ambiguous. These Respondents also contended at page 4, paragraph 3.2.2 of their Brief that Grounds 4, 5 and 6 of the Notice of Appeal raise issues that did not arise at all in the Ruling appealed against. In other words, the totality of the Objection of these Respondents was that there was no valid ground of appeal that survived the exchange of Briefs between the parties”.
The Appellants position is that a party is not foreclosed by a preliminary objection brought by the other party from correcting errors in his Grounds of Appeal, and they relied on Shanu v. Afribank Nig. Plc (supra) and FBN v. MMDCDC (supra).
But the 7th-14th Respondents contend that where parties have joined issues in their briefs of argument, as in this case, it will work injustice and unfairness to the Respondent to allow the Appellant to amend the Notice of Appeal and the brief of argument to correct the issues already joined, and they also referred us to their own authorities in support of that contention – FBN V. MMCDC (supra), Odon V. Barigha- Amange (No.1) (supra) and LASTMA v. Ezezoobo (supra).
The parties appear to have presented this Court with conflicting authorities but that is only on the face of it; if we scratch the surface we will find it is not so. For instance, they both relied on the same case – FBN Plc. V. May Medical Clinics & Diagnostic Center Ltd., but while the Appellants referred to the Supreme Court decision of 6/4/2001 [see (2001) 9 NWLR (Pt.717) 28], the Respondents relied on the Judgment of this Court dated 28/11/1995 [See (1996) 9 NWLR (Pt.471) 195], which failed to pass scrutiny at the Supreme Court. The Appellants had applied to this Court to amend the Notice and Grounds of Appeal and also amend its Brief. The proposed amendment was to contend that the entire proceedings at the trial Court were a nullity and it wanted the case heard de novo before another Judge. In refusing the amendment sought, this Court per Muhammad, JCA, observed –
“How does the Applicant or from where did the Applicant get the materials from which he set out his proposed amended Notice of Appeal and Appellant’s brief? It is trite that leave to amend will not be granted if the amendment will not cure the defect in the proceeding – – Again, as briefs were already filed and exchanged by the parties – – it will work injustice on the Respondents as they will have to make consequential amendment to the brief already filed and served or even prepare a new one that is capable of causing undue delay to the hearing of the appeal – -“.
This is the decision of this Court in FBN V. MMCDC that the Respondents quoted at page 3 of their Written Address, which they wrongly attributed to Opene, JCA.
But the matter went on appeal to the Supreme Court, and in allowing the appeal, the Supreme Court per Uwaifo, JSC, categorically stated as follows on this issue –
“Once there is a valid notice of appeal, it can be amended – – The purpose of such an amendment must be to ensure that the complaints of the Appellants against the proceedings in question are laid and ventilated before the Court. The fact that briefs of argument have been filed and exchanged and on appeal is virtually ready for hearing will not prevent the Court from exercising its undoubted discretion to allow an amendment both to the notice of appeal and the brief of argument so long as the amendment would serve the ends of justice and fairness, and the other party can be compensated by costs: see Pharmatek Industrial Projects Ltd. V. Bayo Ojo (1996) 1 NWLR (Pt.424) 332 at 338”. [Quoted by the Appellants at page 12 of their Address]
There we have it; the Supreme Court overruled the decision of this Court in the case of FBN Plc. V. May Medical Clinics & Diagnostic Center Ltd. and held that the fact that briefs of arguments have been filed and exchanged and the appeal is ready for hearing will not prevent this Court from exercising its discretion to allow an amendment of a notice of appeal and brief of argument as long as it serves the ends of justice and fairness, and the other party can be compensated by costs – see also Pharmatek Industrial Projects Ltd. V. Ojo (1996) 1 NWLR (Pt.424) 335.
Obviously, the other cases cited by the Respondents cannot avail them also. Quite apart from the fact that the case of Odon V. Barigha-Amange (No.1) (supra) was an election matter in which time is of the essence, this Court relied on that decision of ours in FBN Plc. V. May Medical Clinics & Diagnostic Center Ltd. that was overruled by the Supreme Court in refusing the Application for amendment. In LASTMA v. Ezezoobo (supra), this Court relied on our decisions in both cases – FBN Plc. V. MMCDC (1996) and Odon V. Barigha-Amange (No.1) (supra), however, it granted the Application because the facts of that case were different.
In this case, I scrutinized the Notice of Appeal and the amendment sought and can see no merit in the 7th-14th Respondents’ objection to this Application. The fact that the Appellants brought the Application after they filed a preliminary objection challenging the competency of the Grounds of Appeal will not bar them from correcting any errors that will put them on the right footing – see Tsokwa Oil Marketing Co. v. B.O.N. Ltd. (2000) 11 NWLR (Pt.777) 163 SC and Shanu V. Afribank (Nig.) Ltd (supra), cited by the Appellants, where Ayoola, JSC, observed –
“The contention that this application should not be granted because a preliminary objection has been raised showing the errors in the process of the Applicant’s appeal is without substance. The Applicant is not foreclosed by the preliminary objection from correcting those errors or starting the process afresh on a more appropriate footing”.
See also Nalsa & Team Associates V. NNPC (1991) 8 NWLR (Pt.212) 652, where the Supreme Court held that when a party detects an error in the proceedings, which if uncorrected will adversely affect his chances, and has by application made effort to correct such errors, the principles of justice demand that he should be not be denied the opportunity to do so. As Karibi-Whyte, JSC, put it –
“It will be preposterous to concede to the contention that the error so detected should remain uncorrected, so that the adversary can take advantage of it”.
In this case, there is a valid appeal, which can be amended, and it is settled that “special circumstances are not needed to justify the amendment. [Our] discretion to grant it is unhampered, provided that it is exercised judicially and judiciously” – see FBN V. MMCDC (2001).
The purpose of an amendment of a notice of appeal is to ensure that the Appellant’s complaints against the decision in question are laid and ventilated before the Court; the Appellants should be allowed to do so.
To this end, the Application dated 25/1/2012 is hereby granted as prayed. The Appellants are granted leave to amend their Notice of Appeal in the manner shown in Exhibit “NOW1” attached to their Affidavit. The said Amended Notice of Appeal already filed is hereby deemed as properly filed and served today, and the 7th-14tn Respondent are awarded costs assessed at N50,000.00
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the lucid Ruling prepared by my learned brother, Amina Adam Augie, J.C.A., (PJ) with which I agree and adopt as my own Ruling with nothing useful to add.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the ruling just delivered by my learned brother AUGIE JCA. I agree with her reasoning and conclusions.
It is trite that once there is a valid notice of appeal, it can be amended. The fact that briefs of argument have been filed and exchanged and that the appeal is virtually ready for hearing will not prevent a court from exercising its discretion to allow an amendment of the notice and grounds of appeal so long as the amendment would serve the ends of justice and fairness and the other party can be compensated in costs. FIRST BANK OF NIGERIA PLC V. MAY MEDICAL CLINICS OF DIAGNOSTIC CENTRE LTD. AND ANORS (2001) LPELR – 1282 (SC).
Once there is compensation by way of costs, it should take care of any injustice or unfairness on the part of the Respondent by reason of issues having been joined and the amendment having arisen to correct issues already joined.
At the end of the day, the courts these days prefer substantial justice to technical knockouts. OMOJU V. THE FEDERAL REPUBLIC OF NIGERIA (2008) LPELR – 2647 (SC).
For these and the more detailed reasons in the lead ruling, I also grant the application dated 25/1/2012 as prayed. I abide by the consequential orders in the lead ruling including the order as to cost.
Appearances
I. A. Aniakor, Esq. with Miss Pamela UnegbuFor Appellant
AND
Dr. K. U. K. Ekwueme with Abiodun Aikomo, Esq., and Miss Oluwatosin Phillips for the 1st-6th Respondents
James Ujah, Esq., for the 7th-14th Respondents
D. Obidiegu, Esq., for the 15th Respondent
Benjamin Omoruyi, Esq., with Miss Stella C. Egwuatu, for the 16th RespondentFor Respondent
