ELF OIL NIGERIA LIMITED v. NIGERIA OIL MILLS LTD.
(2011)LCN/5073(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of July, 2011
CA/L/279/2005
RATIO
POSITION OF THE LAW ON NOTICE OF APPEAL
Every notice of appeal contains grounds of appeal and the grounds serve as a notice of the complaint against the judgment of the lower court which the respondent is to meet. See Metal Const, (W.A) Ltd v. Migliore (1990) 1 NWLR (Pt.126) 299, Bhojsons Plc. v. Daniel Kalio (2006) 5 NWLR (Pt.973) 330 Union Bank Plc. & Anor. v. Alhaji A. Ishola (2001) FWLR (Pt.81) 1868 at 1898 – 9. PER.ADAMU JAURO, J.C.A.
THE FILING OF THE NOTICE OF APPEAL FOR THE HEARING OF AN APPEAL
The filing of the notice of appeal is therefore a necessary pre-requisite for the hearing of an appeal and can also be amended at any time. See Order 6 Rule 15 of the Court of Appeal Rules 2011 and the case of Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208. Once an amendment has been granted, the amended notice of appeal relates back to the date of filing the original notice of appeal. See First Bank Nigeria Plc. v. Tsokwa (2003) FWLR (Pt.153) 205, UBN Plc. v. Ezewudo (2009) All FWLR (Pt.456) 1889 at 1897 D-E. Oguma Associated Co. v. IBWA Ltd (1988) 1 NWLR (Pt.73) 658. Eniebokan v. A.I.I.C (Nig) Ltd (1994) 6 NWLR (Pt.348) 1, Jatau v. Ahmed (2003) FWLR (Pt.151) 1887. PER. ADAMU JAURO, J.C.A.
THE AMENDMENT OF A NOTICE OF APPEAL
The amendment of a notice of appeal by way of incorporating additional grounds of appeal cannot be granted based on an invalid or non-existing ground of appeal. See Harriman v. Harriman (1987) 3 NWLR (Pt.60) 244, Emecheta v. Ogueri (1998) 12 NWLR (Pt.579) 502. PER. ADAMU JAURO, J.C.A.
Before Their Lordships
RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria
ADAMU JAUROJustice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
Between
ELF OIL NIGERIA LIMITEDAppellant(s)
AND
NIGERIA OIL MILLS LTD.Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Ruling): By a motion on notice dated and filed on the 19th June 2008, the applicant herein sought for the following reliefs:
“1. ORDER AMENDING the Notice of Appeal dated 30th January, 2003 in terms of the Amended Notice of Appeal exhibited as Exhibit A, especially by incorporating and/or merging into it:
(i) The Grounds of Appeal dated and/or filed 30th January, 2003;
(it) The Additional Grounds of Appeal dated and/or filed 31st March, 2003;
(iii) The Additional Grounds of Appeal dated and/or filed 10th November, 2006; and
(iv) Other additions so made thereto”.
Mr. Olayemi Olowolafe for the appellant/applicant stated that the application is supported by an affidavit of 6 paragraphs and a further affidavit of 2 paragraphs sworn to on 18th November, 2010 with 3 exhibits. Learned counsel submitted that he filed a written submission and a reply on points of law both dated 1st April, 2009 23rd September, 2009, respectively. Learned counsel applied to rely on the two written submissions and urged the court to allow the application. The court drew the attention of learned counsel to the alteration made on the document dated 10th November, 2006 and attached to the application as exhibit ‘D’. In response to the observation of the court, learned counsel stated that it was the court that directed the amendment in the signature column of exhibit D.
Mr. Adeleke Gbadebo leading Miss Nkem Emelurnadu for the respondent, vehemently opposed the application. In opposition, learned counsel stated that he filed a counter affidavit of 10 paragraphs dated 13th August, 2009 with a written submission also dated and filed the same day. Learned counsel drew the attention of the court to the fact that exhibit A attached to the application, the further affidavit and the first notice of appeal were all not dated. Learned counsel adopted and relied on his written submission and urged the court to refuse the application. In a short reply’ learned counsel for the applicant urged the court to take judicial notice of the counter affidavit filed by the respondent.
The application herein is for amending the original notice of appeal, by incorporating different additional grounds of appeal filed on various dates to the original notice of appeal. A notice of appeal is the foundation and substratum of every appeal, it animates and sustains the appeal. See Uwazurike v. A. G. Federation (2007) 8 NWLR (Pt.1035) 1 Okotie v. Olughor (1995) 5 SCNJ 217, Amadi v. Okoli (1977) 7 SC. 57.
Every notice of appeal contains grounds of appeal and the grounds serve as a notice of the complaint against the judgment of the lower court which the respondent is to meet. See Metal Const, (W.A) Ltd v. Migliore (1990) 1 NWLR (Pt.126) 299, Bhojsons Plc. v. Daniel Kalio (2006) 5 NWLR (Pt.973) 330 Union Bank Plc. & Anor. v. Alhaji A. Ishola (2001) FWLR (Pt.81) 1868 at 1898 – 9.
The filing of the notice of appeal is therefore a necessary pre-requisite for the hearing of an appeal and can also be amended at any time. See Order 6 Rule 15 of the Court of Appeal Rules 2011 and the case of Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208. Once an amendment has been granted, the amended notice of appeal relates back to the date of filing the original notice of appeal. See First Bank Nigeria Plc. v. Tsokwa (2003) FWLR (Pt.153) 205, UBN Plc. v. Ezewudo (2009) All FWLR (Pt.456) 1889 at 1897 D-E. Oguma Associated Co. v. IBWA Ltd (1988) 1 NWLR (Pt.73) 658. Eniebokan v. A.I.I.C (Nig) Ltd (1994) 6 NWLR (Pt.348) 1, Jatau v. Ahmed (2003) FWLR (Pt.151) 1887.
The amendment of a notice of appeal by way of incorporating additional grounds of appeal cannot be granted based on an invalid or non-existing ground of appeal. See Harriman v. Harriman (1987) 3 NWLR (Pt.60) 244, Emecheta v. Ogueri (1998) 12 NWLR (Pt.579) 502. The original notice of appeal seeking to be amended has been attached to the application as exhibit B, via the further affidavit filed on 18th November, 2010. The learned counsel for the respondent drew the attention of the court to the fact that the original notice of appear was not dated while the one attached to the application as the original notice and marked exhibit B was dated 30th January, 2003. Learned counsel to the applicant, however never deemed it expedient to clarify the serious observation made and its attendant adverse consequences. The implication of the observation if true, is to the effect that the notice of appeal dated 30th January 2003 and attached to the application as exhibit B now sought to be amended by this application is not the original notice of appear. By necessary implication therefore it will mean that the original notice of appear has not been attached to the application thereby rendering the application incompetent. In an attempt td sort out this preliminary observation, the court made reference to pages 465 to 466 volume two of the transmitted record and the lower courts fire docket containing the original notice of appeal as filed in the registry of the lower court. From the file docket of the lower court, the date column at the bottom of the original notice of appeal filed is blank. That is to say no date was endorsed at the bottom of the said notice of appeal. Exhibit B attached to the application and represented as the original notice, was endorsed with the date of 30th January, 2003 at the foot of the notice of appeal. Invariably the two notices of appeal, one dated and other undated, presupposes that the two documents are different. By necessary implication therefore, it means the document attached to the application and sought to be amended is not the original notice of appeal filed in the lower court. The notice of appeal contained on pages 465 to 466 of the transmitted record had 30th January 2003, endorsed at the foot of the document. This therefore implies that the copy of the notice of appeal contained in the transmitted record is not a certified true copy of the original notice of appeal filed in the registry of the lower court.
The application at hand is seeking to amend the original notice of appeal. The applicant attached a different notice of appeal to the application and represented it as the original notice of appeal filed in the registry of the lower court. The original notice of appeal having not been attached to the application, has rendered the application incompetent’. The instant application to amend the notice of appeal is therefore incompetent and is hereby struck out. There will be no order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A: I have had the privilege of reading in advance the Ruling just delivered by my learned brother JAURO, ICA and I agree completely with him that the application be refused. A party is not at liberty to play with processes by amending them at will without leave of court however innocuous they believe the amendment to be. Having placed before the court a document not being a copy of the filed original, the applicant has not activated the jurisdiction of this court to exercise its discretion one way or the other. I too strike out the application.
RITA NOSAKHARE PEMU, J.C.A: I have been afforded the privilege of reading in draft, the lead Ruling of my brother Judge, Adamu Jauro JCA., and I agree with the reasoning and conclusions arrived at.
You cannot amend what is not there. In other words, you cannot amend a non-existent process!
I adopt as mine the consequential order made that the application, being grossly incompetent, be struck out and same is hereby struck out.
Appearances
Olayemi Olowolafe Esq;For Appellant
AND
Adeleke Gbadebo Esq;
Nkem Emelumadu MissFor Respondent
