EBEBI v. CLEMENT & ORS
(2021)LCN/14957(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, January 07, 2021
CA/PH/508/2020(R)
RATIO
APPEAL: HOW CAN AN APPEAL BE INITIATED
There is no doubt that an appeal can only be initiated by the filing of the appropriate notice of appeal as prescribed by the rules of the relevant Court. Where the notice is defective, there cannot be said to be any appeal on which the powers of the appellate Court could be invoked. It goes without saying therefore that whether particular processes as filed would satisfy the requirements of the relevant rules of Court with regards to a valid notice of appeal is as much a procedural issue as well as a jurisdictional one. It could be surmised that appellate jurisdiction cannot be invoked on the basis of a defective or invalid notice of appeal. It is only a valid notice of appeal that can effectively kick-start the appellate process and jurisdiction.
See SPDCN LTD VS. EKOSI (2016) 2 NWLR (PT 1496) 278; JAPHET VS. STATE (2016) 6 NWLR (PT 1509) 1; FBN PLC VS. MAIWADA (2013) 5 NWLR (PT 1348) 444; FRN VS. MARTINS (2012) 14 NWLR (PT 1320) 257; CLEV JOSH LTD & ORS VS. TOKIMI & ORS (2007) LPELR – 8192 (CA). PER MOHAMMED BABA IDRIS, J.C.A.
APPEAL: WHETHER AN INCOMPETENT NOTICE OF APPEAL CAN BE AMENDED
It is trite law that an incompetent notice of appeal cannot be amended, because, a notice of appeal that is void does not exist in the eyes of the law. What is not in existence cannot be subject to any amendment. See AKINLUSI VS. CBN (2012) ALL FWLR (PT 627) 807; ADEKANYE VS. FRN (2005) ALL FWLR (252) 547; BC EXP AND PROT (NIG) LTD VS. JOHNSON (2011) ALL FWLR (PT 572) 1829; OKOMU OIL PALM CO VS. TAJUDEEN (2016) 5 NWLR (PT 1499) 284.
It is also trite law that once a notice of appeal is valid, it can be amended at any time before the appeal is heard. However, such an amendment should not be made to overreach the Respondent, but only to serve the ends of justice and ensure that the complaints of the Appellant against the judgement appealed against are laid and ventilated before the Court. See OKPALA VS. IBEME (1989) 2 NWLR (PT 102) 208; ADELAJA VS. ALADE (1994) 7 NWLR (358) 537; PHARMATEK IND PROJECTS LTD VS. OJO (1996) 12 NWLR (PT 424) 332; FBN PLC VS. MAY MEDICAL CLINICS & DIAGNOSTIC CENTRE LTD (2001) 9 NWLR (PT 717) 28; FAJEBE VS. OPANUGA (2019) LPELR – 46348. PER MOHAMMED BABA IDRIS, J.C.A.
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
PEREMOBOWEI EBEBI (APC Senatorial Candidate For The October, 2020 Bayelsa West Senatorial District Bye-Lection, Bayelsa State) APPELANT(S)
And
1. OYIVWITA CLEMENT 2. ALL PROGRESSIVES CONGRESS (APC) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This ruling is in respect of the application filed by the Appellant/Applicant on the 31st day of December 2020 for an order to amend the Notice and Grounds of Appeal by correcting the name of the 1st Respondent from Yivwita Clement to Oyivwita Clement which was the name used by the 1st Respondent at the trial Court as shown in the schedule of the amendment and proposed Amended Notice and Grounds of Appeal. The application also seeks an order deeming the Amended Notice and Grounds of Appeal and the Appellants brief as properly filed and served, appropriate filing fees having been paid.
The 1st Respondent filed a Counter Affidavit to the application. The 2nd Respondent did not oppose the application.
At the hearing of the application, learned counsel to the Appellant/Applicant (hereinafter referred to as “the Applicant”) urged the Court to allow the application which seeks to correct the name of the 1st Respondent, and that the amendment sought will not affect the Appellants brief and other processes filed prior to the filing of the present application. Learned counsel urged the
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Court to grant the application in the interest of justice.
Learned counsel for the 1st Respondent in opposing the application argued that the name on the record as the 1st Respondent was not the name of his client, and that the Notice of Appeal was incompetent therefore cannot be amended. He argued that it was too late in the day to seek an amendment, and that this Court had no jurisdiction to grant the application. He relied on the case of SPDCN VS. EKOSI (2016) 2 NWLR (PT 1496) 281 and NIGERIAN ARMY VS. SAMUEL (2013) 7 SC (PT5) 97. Counsel submitted that there was no valid Notice of Appeal before the Court, and urged the Court to refuse the application.
In reply, learned counsel for the Applicant argued that time within which to amend a Notice of Appeal could never lapse, and that the only time limited was the time for the filing of a Notice of Appeal. That there was a distinction between filing and amendment. Counsel argued that the amendment sought was not substantial, and that where an amendment is sought to correct the names of parties, it would be allowed. The following cases were referred to: GONIMI & ORS VS. MAKINTAMI (2017) LPELR
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– 43293 (CA); OLUSOLA OKE & ANOR VS. OLUSEGUN MIMIKO (2014) 1 NWLR (PT 1388) 225; ABUBAKAR VS. YARADUA (2003) 17 NWLR (PT 850) 4323. The Court was urged to grant the application.
Having reviewed the arguments of counsel on the issue, the question for determination is whether the application should be allowed in the light of the law and the facts presented by the parties?
There is no doubt that an appeal can only be initiated by the filing of the appropriate notice of appeal as prescribed by the rules of the relevant Court. Where the notice is defective, there cannot be said to be any appeal on which the powers of the appellate Court could be invoked. It goes without saying therefore that whether particular processes as filed would satisfy the requirements of the relevant rules of Court with regards to a valid notice of appeal is as much a procedural issue as well as a jurisdictional one. It could be surmised that appellate jurisdiction cannot be invoked on the basis of a defective or invalid notice of appeal. It is only a valid notice of appeal that can effectively kick-start the appellate process and jurisdiction.
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See SPDCN LTD VS. EKOSI (2016) 2 NWLR (PT 1496) 278; JAPHET VS. STATE (2016) 6 NWLR (PT 1509) 1; FBN PLC VS. MAIWADA (2013) 5 NWLR (PT 1348) 444; FRN VS. MARTINS (2012) 14 NWLR (PT 1320) 257; CLEV JOSH LTD & ORS VS. TOKIMI & ORS (2007) LPELR – 8192 (CA).
It is trite law that an incompetent notice of appeal cannot be amended, because, a notice of appeal that is void does not exist in the eyes of the law. What is not in existence cannot be subject to any amendment. See AKINLUSI VS. CBN (2012) ALL FWLR (PT 627) 807; ADEKANYE VS. FRN (2005) ALL FWLR (252) 547; BC EXP AND PROT (NIG) LTD VS. JOHNSON (2011) ALL FWLR (PT 572) 1829; OKOMU OIL PALM CO VS. TAJUDEEN (2016) 5 NWLR (PT 1499) 284.
It is also trite law that once a notice of appeal is valid, it can be amended at any time before the appeal is heard. However, such an amendment should not be made to overreach the Respondent, but only to serve the ends of justice and ensure that the complaints of the Appellant against the judgement appealed against are laid and ventilated before the Court. See OKPALA VS. IBEME (1989) 2 NWLR (PT 102) 208; ADELAJA VS. ALADE (1994) 7 NWLR (358) 537; PHARMATEK IND PROJECTS LTD VS. OJO
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(1996) 12 NWLR (PT 424) 332; FBN PLC VS. MAY MEDICAL CLINICS & DIAGNOSTIC CENTRE LTD (2001) 9 NWLR (PT 717) 28; FAJEBE VS. OPANUGA (2019) LPELR – 46348.
The Applicant herein by his application seeks to amend the Notice of Grounds of Appeal to correct the name of the 1st Respondent. Having looked at the processes filed, it is clear that the name of the 1st Respondent herein was misspelled as Yivwita Clement instead of Oyivwita Clement. The letter “O” was omitted from name Oyivwita, which has necessitated this application for amendment of the Notice and Grounds of Appeal. The brief and all other processes filed prior to the filing of this application will clearly not be affected by this application as contended by learned counsel for the Applicant herein, the Appellants brief of argument having already been filed. It is also clear that the Respondents herein are not misled by the omission complained about, and this application simply seeks to correct the name of the 1st Respondent herein by adding the letter “O” to his name. Why should this Court reject this application on the ground that the entire notice of appeal is
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incompetent due to this inadvertence on the part of lead counsel for the Applicant? I see no reason why this application should not be granted in the interest of justice and in the light of the facts presented by the parties herein.
The Respondent herein has relied on the cases of SPDCN VS. EKOSI (2016) 2 NWLR (PT 1496) 281 and NIGERIAN ARMY VS. SAMUEL (2013) 7 SC (PT 5) 97 in urging this Court to refuse this application. The facts of the above cases differ from the facts of the present case. Whilst the EKOSI case dealt with the effect of a lack of signature on a notice of appeal, the SAMUEL case dealt with whether the law permitted the filing of a joint notice of appeal and the signing of such notice by counsel.
On the part of counsel for the Applicant, the MIMIKOand YARADUA cases (supra) cited in support of the application were unhelpful. However, the MAKINTAMI case (supra) was on point. In the case, whilst granting an application to amend the notice of appeal in order to reflect the capacity in which a party is suing, this Court per Onyemenam JCA held inter alia at pages 11 – 19 paras E – B of the judgment as follows:
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“In the case of SETRACO NIG LTD V. JOSEPH KPAJI (2017) 1 SCNJ 169 AT 180 – 191; (2017) 5 NWLR (PT 1558) 280 relied on by the Applicants counsel in urging the Court to grant the application; the Appellants name therein and his address as the person to be affected by the appeal were omitted in the notice of appeal. Also the notice of appeal had wrongly been headed “IN THE COURT OF APPEAL HOLDEN IN ABUJA” instead of “IN THE COURT OF APPEAL HOLDEN IN JOS”. The Supreme Court held that both errors, mistakes and or omissions in the notice of appeal could be corrected by a simple application for amendment as the errors did not affect the jurisdiction of the Court to entertain the appeal”.
The omission to insert the letter “O” in the name of the 1st Respondent herein is in my view an error that can be corrected upon the application for amendment. It cannot be an error that affects the jurisdiction of this Court, and cannot in the circumstance render this appeal incompetent. It is an irregularity that ought to be condoned in order to do substantial justice by hearing the appeal on the merits.
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In the light of all that I have said above, I find merit in the application filed by the Appellant/Applicant herein and it is hereby granted as prayed. There is no order made as to cost.
UCHECHUKWU ONYEMENAM, J.C.A.: I agree.
JAMILU YAMMAMA TUKUR, J.C.A.: I agree.
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Appearances:
FELIX T. OKOROTIE, ESQ. For Appellant(s)
F.N. NWOSU, ESQ., with him, N.E. OBHISEH, ESQ. – for 1st Respondent
S.Y. DUMBO, ESQ. – for 2nd Respondent For Respondent(s)
