DUMO OWUKORI LULU-BRIGGS & ANOR v. HON. PRECIOUS BARITORDOO BARIDOO & ORS
(2019)LCN/13045(CA)
In The Court of Appeal of Nigeria
On Monday, the 8th day of April, 2019
CA/PH/120/2019(R)
RATIO
AMENDMENT OF PROCESSES : WHETHER OR NOT LEAVE OF COURT IS REQUIRED
The granting or refusal of leave by the Court to effect the amendment sought is thus dependent on the proposed amendment, which copy must be before the Court for purposes of comparison with the original process sought to be amended. Indeed in the case of Husseni vs. Mohammed (2015) 3 NWLR Pt. 1445, pg. 100, 124, paras. C-D, the apex Court, per Ngwuta, JSC., held thus:
It has to be emphasized herein that unlike the Rules of the Supreme Court of England (Ord. 20 r. 3 (1)) there is no provision in our Supreme Court Rules permitting a party to amend his process without leave of Court. Order 2 r. 28 (1) of the Supreme Court Rules provides:
Every application to the Court should be by notice of motion supported by affidavit
Following in the heels of the foregoing provision of the ultimate Courts Rules, is Order 6 Rule 1 of the Court of Appeal Rules, 2016 which likewise provides that:
Every application to the Court shall be by notice of motion supported by affidavit PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
NOTICE OF APPEAL: WHETHER A NOTICE OF APPEAL FILED OUTSIDE TIME IS INVALID AND INCOMPETENT
A Notice of Appeal filed outside the statutorily allotted time remains invalid and incompetent unless regularized with the leave of Court. An appellant who has filed multiple Notices of Appeal is expected at the end of the day and with the leave of Court to either adopt and rely on one of them while discarding the rest or have them consolidated into one. See also Akeredolu & Ors. vs. Akinremi & Ors. (1986) 2 NWLR Pg. 710; Harriman vs. Harriman (1989) 3 NWLR 119; and Ogboru vs. Uduaghan (2012) LPELR-8287 (SC).PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
Justice
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
1. DUMO OWUKORI LULU-BRIGGS
2. BABA NELSON AMIEYE Appellant(s)
AND
1. HON. PRECIOUS BARITORDOO BARIDOO
2. ACCORD
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Lead Ruling): By way of a Motion on Notice dated 21st March, 2019 and filed 22nd March, 2019, the appellants/applicants are seeking from this Court as follows:
1. AN ORDER granting leave to the appellant/applicant by way of departure from Rules to rely on the Records of Appeal compiled in Appeal No: CA/PH/120/2019 (DUMO OWUKORI LULU-BRIGS & ANOR. V. HON. PRECIOUS BARITORDOO BARIDOO & 2 ORS.(sic) for the purpose of hearing and determining the most recent joint notice of appeal filed on the 13th day of March, 2019 in the registry of the Court below by the appellants/applicants herein a copy whereof is attached as Exhibit AA1.
2. A FURTHER ORDER granting leave to the appellants/applicants herein to compile and rely on Additional Record of Appeal for use along with the Records of Appeal compiled in Appeal No: CA/PH/120/2019 (DUMO OWUKORI LULU-BRIGGS & ANOR V. HON. PRECIOUS BARITORDOO BARIDOO & 2 ORS (sic) for the purpose of hearing and determining the most recent joint notice of appeal filed on the 13th day of March, 2019 in the registry of the Court below by the
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appellants/applicants in the instant application; in terms of the Bundle of Processes titled Additional Record of Appeal attached and marked Exhibit BB in this application.
3. AN ORDER deeming Additional Record of Appeal marked Exhibit BB as having been properly compiled (sic) and served for use along with the Record of Appeal compiled in Appeal No: CA//PH/120/2019 (DUMO OWUKORI LULU-BRIGGS & ANOR. V. HON. PRECIOUS BARITORDOO BARIDOO & 2 ORS. (sic) for the purpose of hearing and determining the most recent joint notice of appeal filed on the 13th day of March, 2019 in the registry of the Court below by the appellants/applicants in the instant application.
4. AN ORDER granting leave to the appellants/applicants to rely on the Notice of Appeal dated 13th March, 2019 contained in the additional record of appeal (Exhibit BB) sought to be so deemed in the preceding prayers for the purpose of settling appellants/applicants Brief.
5. AN ORDER granting leave to all parties to adopt and reflect the designations and capacities assigned to them in the Notice of Appeal dated and filed on 13th March, 2019 in all subsequent processes to be
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filed in the instant appeal such that (1) DUMO OWUKORI LULU-BRIGGS (2) BABA NELSON AMIEYE and (3) ACCORD shall respectively be 1st 3rd appellants while (1) HON. PRECIOUS BARITORDOO BARIDOO and INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) shall be 1st and 2nd respondents, respectively.
6. AN ORDER granting accelerated hearing of the appeal, and abridging the time for parties to file their briefs of arguments to meet the exigencies of res in the appeal as a pre-election matter.
The grounds upon which the application is brought include:
1. That on Tuesday the 28th of February, 2019, the Federal High Court gave a judgment against the 1st and 2nd appellants and the 2nd respondent in this appeal who had separate legal representatives and respective processes in answer to the case at the trial Court.
2. The 2nd respondent aggrieved by the judgment filed a Notice of Appeal on the 1st of March, 2019.
3. The 1st and 2nd appellant (sic) also aggrieved filed a Notice of Appeal, dated the 28th day of March, (sic) 2019.
4. Records of Appeal was compiled (sic) in respect of the appeal filed (sic) 1st and 2nd applicants as 1st and 2nd
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defendants in the trial Court.
5. Having realized that the 1st and 2nd appellants and the 2nd respondent have common grievances against the judgment of the trial Court and to avoid multiplicity of appeals arising from a single judgment, parties have been counselled to harmonize their appeals and abandon the separately filed notices of appeal to fast track the hearing of the pre-election appeal that is time bound.
6. The 1st and 2nd appellant and the 2nd respondent on record have filed a harmonized Notice of Appeal.
7. Both the separate Notices and the Appeal in Appeal No. CA/PH/120/2019 and the joint notice of appeal emanated from the same judgment of the trial Court, and the parties in both appeals are the same parties at the trial Court.
8. The judgment appealed against herein, the Notice of Appeal and other necessary materials for the determination of this Appeal already form part of the Record of Appeal compiled in Appeal No. CA/PH/120/2019 and the additional records of appeal filed herein.
9. It would be duplicitous and wasteful to compile two separate records of appeal as aggrieved parties have communal grievances and have
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jointly appealed against same judgment as admonished in the cases of Dabo v. FRN (2014) 5 NWLR (Pt. 1399) 120 SC; Olalomi Industries Ltd. v. NIDB (2002) 17 NWLR (Pt. 795) CA 58.
10. In the circumstances, it is in the interest of Justice to allow the use of the said record for the hearing of the appeal herein.
In support of the motion is an affidavit of 24 paragraphs to which is annexed 3 exhibits marked AA, AA1 and BB respectively. Exhibit AA is a certified true copy of the Notice of Appeal filed by 2nd respondent (Accord) on 1st March, 2019. Exhibit AA1 is a certified true copy of Notice of Appeal filed on 13th March, 2019, by the 1st and 2nd appellants along with the 2nd respondent (Accord) as the 3rd appellant, while the document dated 21st March, 2019 and titled ADDITIONAL RECORD OF APPEAL is the one marked Exhibit BB. The certified true copy of the original Notice of Appeal filed by the 1st and 2nd appellants on record on 28th February, 2019 and which forms part of the record of appeal already transmitted and entered in this Court as Appeal No: CA/PH/120/2019, is copied at pages 875 881 of the record of appeal.
The
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1st respondent in opposition to the motion filed a counter affidavit of 8 paragraphs with 4 annexures marked as Exhibits 1, 2, 3 and 4 respectively. Exhibit 1 is the same process as the 2nd respondents Exhibit AA filed 1st March, 2019. Exhibit 2 is the 2nd respondents Affidavit Verifying the Entering of Appeal in the Court of Appeal, Port Harcourt Division filed 15th March, 2019. Exhibit 3 is the certified true copy of the original Notice of Appeal filed on 28th February, 2019 by the 1st and 2nd appellants against the judgment of the lower Court. Exhibit 4, which is the same process marked Exhibit AA1 in the appellants affidavit, is the Notice of Appeal filed 13th March, 2019 in the names of Dumo Owukori Lulu-Briggs, Baba Nelson Amieye and Accord respectively as the 1st, 2nd and 3rd appellants therein. The 1st respondents counter affidavit was filed 21st March, 2019. In compliance with the order of this Court made 28th March, 2019, the appellants/applicants filed their written address and reply on points of law in support of their motion on 29th March, 2019 and 2nd April, 2019 respectively. The 1st respondent on his
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part filed his written address in opposition to the motion on 1st April, 2019.
The appellants/applicants distilled the following lone issue for determination:
Whether having regard to the grounds and supporting affidavit and accompanying exhibits, it is in the interest of Justice and expediency of quick dispensation of election appeal to grant the prayers including deeming orders sought by the appellants/applicants.
The 1st respondent on their part distilled the following lone issue:
Whether the Notice of Appeal filed by the applicants on 13/03/2019 in this appeal, i.e. Appeal No. CA/PH/120/2019 DUMO OWUKORI LULU-BRIGGS & ANOR. vs. HON. PRECIOUS BARITORDOO BARIDOO & 2 ORS. and the Notice of Motion filed 22/3/2019 are incompetent/abuse of Court process and liable to be dismissed/struck out.
Since this latter issue donated by the 1st respondent appears to be an attack on the competence of the latest Notice of Appeal filed by the applicants on 13th March, 2019 as well as on the Motion on Notice filed by them on 22nd March, 2019, I deem it pertinent to consider and determine it first before delving into the application itself if
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need be.
In their attempt to discredit the appellants/applicants Notice of Appeal filed 13/03/2019, the learned counsel for the 1st respondent submitted that because it was filed with same Appeal No. CA/PH/120/2019 under which the earlier Notice of Appeal (Exhibit 3) filed 28th February, 2019 and upon which the main record of appeal was compiled and transmitted to this Court, that it tantamount to abuse of process. He submits that by the purported Notice of Appeal filed 13th March, 2019, the applicants have unilaterally amended the Notice of Appeal filed in this appeal on 28th February, 2019 without the leave of this Court first sought and had contrary to Order 7 Rule 8 of the Court of Appeal Rules, 2016. 1st respondent contended that there is no such thing as a harmonized joint notice of appeal in the Rules of this Court to justify the referencing of the notice of appeal filed 13th March, 2019 as such. Further that the Rules of this Court do not recognize an ancillary application such as the one filed in this motion whereby a respondent in an appeal amends the Notice of Appeal to become an appellant. 1st respondent argued that the
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issue of compiling an additional record of appeal does not arise in this appeal. The record of appeal in Appeal No. CA/PH/120/2019 is complete having been compiled in accordance with the Rules of this Court. That the purported additional record of appeal which includes the Notice of Appeal filed on 1st March, 2019, the Notice of Appeal filed on 28th February, 2019 which already forms part of the record of appeal at page 875881 thereof, the Notice of Appeal filed 13th March, 2019 is thereby incompetent. It was also the contention of the 1st respondent that failure of the applicants to first seek and obtain the leave of the Court before altering the capacities of the parties in this appeal renders the Notice of Appeal filed on 13th March, 2019 incompetent and liable to be struck out. See the Supreme Court decision in Ngere vs. Okuruket XIV (2014) 11 NWLR (Pt. 1417) 147 at 175, paras. G-H, where Rhodes Vivour, JSC held:
I must emphasize the importance of leave and asking for it, since this is an application that requires leave. Leave means permission. Where the Rules provide for leave before a process is filed without leave such a
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process would be thrown out, it being null and void.
See also the case of Mabamije vs. Otto (2016) 13 NWLR (Pt. 1529) 171 at 193, paras. C-E, where the apex Court defined what amounts to abuse of Court process.
RESOLUTION OF THE LONE ISSUE DISTILLED BY THE 1ST RESPONDENT
I deem it pertinent to recap that the lower Court gave a judgment on 28th February, 2019 against the instant 1st and 2nd appellants as well as the 2nd respondent. Aggrieved by t
