ECONOMIC AND FINANCIAL CRIMES COMMISSION v. ATTORNEY-GENERAL OF EKITI STATE
(2019)LCN/13876(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/EK/47/2018(R)
RATIO
TECHNICALITIES IN LEGAL MATTERS: POWERS AND DUTIES OF COURT IN GRANTING LEAVE TO AMEND
The Court of Appeal Rules 2016, Order 4 (1) provides as follows in the relevant part:
“In relation to an appeal, the Court shall have all the powers and duties as to amendment and otherwise of the court below?..?”
It is trite and elementary that, the principle governing the grant of leave to amend is for the purpose of determining the real issue or issues in controversy between the parties. It is a long standing principle adhered to by the Courts and was thus firmly stated by the apex Court:
“The Courts have always followed the established principle that the fundamental object of adjudication is to decide the rights of the parties and not to impose sanctions merely for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.”
Per Achike JSC of blessed memory in the case ofALSTHOM S. A. V. CHIEF SARAKI 2000 14 NWLR PT. 687 P. 415. See also the cases of ALHJ MOHAMMED YUSUFU & ANOR V. CHIEF OLUSEGUN AREMU OLAKIOLA OBASANJO & 56 ORS 2003 9-10 SC 53.
In pursuit of the above quoted stance of the Courts, certain guiding principles were laid down in respect of amendment by the apex Court and plethora of authorities by that Court as well as this Court. Ejiwunmi JSC of blessed memory stated the principles in the case of PATRICK OKOLO & ANOR V. UNION BANK OF NIG. LTD. 1999 LPELR-SC 161/1998. Amongst those stated therein are the following:
“Court must consider the materiality of the amendment sought and will not allow an inconsistence or useless amendment.
Where the amendment relates to a mere misnomer it will be granted almost as a matter of course.
Leave to amend will not be granted if the amendment would not cure the defect in the proceedings. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
APPEAL: IMPORTANCE OF A NOTICE OF APPEAL
A Notice of Appeal is the spinal cord of an appeal and as an originating process it activates the jurisdiction of the Court of Appeal. An appeal is based on it as it sets the ball rolling, the entire process in motion in order to have a valid and competent appeal with a lawful beginning. It is clear that, where a Notice of Appeal is defective, the appeal is incompetent and cannot stand and will automatically, collapse. See the cases of NIGERIAN UNION OF PENSIONERS V. J. KYUMEH 2013 LPELR 20786 CA, OKOTIE V. OLUGHOR 1995 5 SCNJ 217, THOR LTD. V. FIRST CITY MONUMENT BANK LTD. 2002 2 SCNJ 85. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
APPEAL: BRIEF OF ARGUMENT: DEFINITION OF A BRIEF OF ARGUMENT
The apex Court per Adekeye JSC as he then was in the case of LONGE V. FBN PLC. 2010 LPELR1793 SC described a brief of argument thus:
“A brief is in tabloid form as opposed to oral hearing. A brief of argument is a succinct statement of the proposition of law or fact or both which a party or his Counsel wishes to establish at the appeal together with reasons and authorities to sustain them.
It is trite and there is no confusion or doubt whatsoever that a valid Notice of Appeal as well as a brief or any process properly filed in Court can be amended. That, briefs of argument have been filed and exchanged and that the appeal is virtually ready for hearing will not prevent a Court from judicially and judiciously exercising its discretion to allow an amendment of a Notice of appeal and grounds in so far as the amendment will serve the ends of justice and fairness and the other party can be compensated in costs. See the cases of FIRST BANK OF NIGERIA V. MAY MEDICAL CLINIC OF DIAGNOSTIC CENTRE LTD. 2001 LPELR-1282 SC, AKINGBOLA V. INT. CONT. BANK PLC. 2014 LPELR-22417 CA and NALSA & TEAM ASSOCIATES supra. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
APPEAL: NOTICE OF APPEAL: HOW MANY NOTICES OF APPEAL CAN BE FILED BY A PARTY
The law recognizes that, there can be more than one Notice of Appeal filed by an Appellant, however, hearing will be on only one and the superfluous ones not to be used will be withdrawn. See the cases of SCC NIG. LTD. V. MR. LEVI EKENMA 2008 LPELR-CA/A/80/06, HON. ABRAHAM ADEOLU ADELEKE V. OYO STATE HOUSE OF ASSEMBLY & ORS 2006 ALL FWLR PT. 319 862, TUKUR V. GOVERNMENT OF GONGOLA STATE (1988) 1 NWLR (Pt.68) 39 at 42 OKOYE v. INEC & ORS (2009) LPELR-4727(CA) and ONYEWUCHI v. IHEMEDU & ORS 2015 LPELR-25776(CA). PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
TECHNICALITIES: SITUATIONS WHERE THE COURT CAN BUILD OR BREAK DOWN A MATTER
In the light of the foregoing facts as contained in the printed Record before this Court and given particularly the stance of the Courts to do substantial justice rather than technicality and bearing in mind the attitude of the Courts with regard to situations where one application seeks to build and the other to bring down, the Court will rather choose to build where substantial justice will be achieved and there will be fairness. One, in my considered view and humbly, finds the instant application as one where this Court would rather choose to build in pursuit of substantial justice. See the cases of FIRST BANK OF NIGERIA V. MAY MEDICAL CLINICS OF DIAGNOSTIC CENTRE LTD. supra, MOBIL PRODUCING NIGERIA UNLIMITED V. MONOKPO supra and OMOJU V. THE FEDERAL REPUBLIC OF NIG. 2008 LPELR 2647 SC. The apex Court in the case of NALSA & TEAM ASSOCIATES V. NNPC supra stated thus instructively:
“..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 not be denied the opportunity to do so.” And especially where it is timorous. That “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.” PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
EFFECT OF ABSENCE OF PRELIMINARY OBJECTION ON THE ABILITY OF A PARTY TO AMEND ITS DOCUMENTS
“The fact that there is a Notice of preliminary objection showing the errors in the process of the Appellant notwithstanding, the Appellant is not foreclosed by the preliminary objection from correcting the errors or starting the process afresh on a more appropriate footing. See SHANU V. AFRIBANK LTD. , TSOKWA OIL MARKETING CO. V. B.O.N.LTD. 2000 11 NWLR PT. 777 163 SC.
One is aware of the fact that the instant application is not to amend the Notice of Appeal but to substitute the one earlier abandoned for the latter. Where briefs are filed and the appeal is virtually ready for hearing, the position is that, it will not prevent the exercise of the Court?s discretion to allow an amendment as long as it will serve the end of justice and fairness. In the instant, the appeal is not being heard, therefore, it cannot be said that there may arise a confusion as to which Notice is which. The instant application is to clear the way for smooth hearing of the appeal at this stage, no injustice will be done and fairness can and will be achieved. One is also unable to find miscarriage of justice to the Respondent and the Appellant/Applicant can be damnified in costs. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
JUSTICES
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) Appellant(s)
AND
ATTORNEY-GENERAL OF EKITI STATE Respondent(s)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Lead Ruling): By Motion on Notice dated October 22nd 2018, filed October 23rd, 2018 and brought pursuant to Section 15 of the Court of Appeal Act 2005, Order 6 Rule 9 (1) of the Court of Appeal Rules, 2016 and under the inherent powers of this Court, the Appellant/Applicant herein seeks in the main the following reliefs:
1. AN ORDER of this Honourable Court granting leave to the Appellant/Applicant to amend its Appellant?s Brief of Argument in the manner as stated in the schedule to this application.
2. AN ORDER of this Honourable Court granting leave to the Appellant/Applicant to amend the cover page of the record of appeal by inserting the phrase and 17 others after the name of the Respondent; Attorney General of Ekiti State to reflect the other parties as contained in its Notice of Appeal filed 9th February, 2018.
Or in the alternative:
AN ORDER of this Honourable Court granting leave to the Appellant/Applicant to amend the front page of the record of appeal to reflect the arrangement of respondents as contained in the Appellant/Applicant?s Notice of Appeal dated 9th February, 2018 to read as follows:
1. INSPECTOR GENERAL OF POLICE
(SIC) 3. THE SPEAKER, EKITI STATE HOUSE OF ASSEMBLY
4. THE HOUSE OF ASSEMBLY, EKITI STATE
5. THE CLERK TO EKITI STATE HOUSE OF ASSEMBLY
6. THE AUDITOR GENERAL OF EKITI STATE
7. THE ACCOUNTANT GENERAL FOR EKITI STATE
8. THE EXECUTIVE CHAIRMAN, EKITI STATE UNIVERSAL BASIC EDUCATION BOARD
9. SKYE BANK PLC.
10. ACCESS BANK PLC.
11. ZENITH BANK PLC
12. FIRST CITY MONUMENT BANK PLC
13. DIAMOND BANK PLC
14. KEYSTONE BANK PLC
15. HERITAGE BANK PLC
16. FIDELITY BANK PLC
17. FIRST BANK PLC
18. UNION BANK PLC all as 2nd to 18th Respondents
Seven (7) grounds were stated upon which the application was brought as well as a schedule in respect of the proposed amendment to the Appellant/Applicant?s brief as contained on the Motion paper and it is supported by a five (5) paragraph affidavit dated October 23rd, 2018, together with the proposed Appellant?s amended brief of argument.
The Respondent reacted by filing Counter-affidavit of 17 paragraphs dated November 16th, 2018, together with Exhibit A, the Judgment of Taiwo J., of the Federal High Court delivered on January 30th, 2018, Exhibit B, Notice of Appeal by the Appellant/Applicant filed February 9th, 2018, Exhibit C, another Notice of Appeal by the Appellant/Applicant dated March 21st, 2018 and filed March 23rd, 2018, Exhibit D, Appellant/Applicant?s brief of argument dated and filed August 30th 2018 and Exhibit E, Notice of Preliminary Objection by the Respondent dated and filed October 2nd, 2018. The Appellant/Applicant on September 17th, 2018 filed a Further Affidavit dated same date of six (6) paragraphs together with Exhibit EFCC 1, and its brief dated and filed August 30th 2018.
Given the contentious nature of the instant application, this Court on 29/11/2018 ordered both sides to file written submissions in support of their positions. The Appellant/Applicant?s submission dated December 14th, 2018 was filed on December 17th, 2018 and that of the Respondent dated and filed January 11th, 2019 was deemed as properly filed and served on February 19th, 2019.
PARTIES’ POSITIONS
The Appellant/Applicant?s position is that, the second Notice of Appeal filed March 23rd, 2018 as opposed to the Notice of Appeal of February 9th, 2018, erroneously did not contain the names of the other seventeen (17) Respondents when for the failure of the Registrar of the Court below to do so within time, it compiled and transmitted the record of appeal by itself. The learned Appellant/Applicant?s Counsel, Sir Steve Ehi Odiase Esq., argued that, priority ought to be given to the instant application which seeks to bring back life to a matter and referred the Court to the provision of Section 15 of the Court of Appeal Act 2004 as well as the cases of UCHE OBI V. MADAM RAHOTO OGUNBIYI 2012 LPELR-7984 CA, YOHANNA & ORS V. GABRIEL & ORS 2018 LPELR 44137 CA and MOBIL PRODUCING NIGERIA UNLIMITED V. MONOKPO 2003 LPELR-1886. He submitted that, the Appellant could seek leave of the Court to amend such defect or error on the face of the record and that this Court has the inherent power to so grant. He argued that, the amendment being
