FIRST REGISTRARS (NIG) LTD v. UGWU & ORS
(2020)LCN/14198(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Thursday, May 21, 2020
CA/E/129/2014
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
FIRST REGISTRARS NIG. LTD APPELANT(S)
And
1. OKAM KALU UGWU 2. SECURITIES AND EXCHANGE COMMISSION 3. GOSORD SECURITIES LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT AN APPEAL SHOULD BE HEARD INSTALLMENTALLY
An appeal should not be heard installmentally with the substance prejudiced in the consideration of interlocutory applications. See IN RE: ABDULLAHI (2018) LPELR-45202(SC) at 24-25 where AUGIE, JSC stated thus:
They had a lot more to say in their 12-page Reply on Points of Law but I am walking a tightrope here; this is an Application for substitution, and the law frowns seriously on a Court taking on substantive issues fit only for the appeal, when hearing interlocutory applications. In other words, care must be taken to avoid making observations in its Ruling on that application, which might appear to pre-judge the main issue in the proceedings relative to the said application. See Mortune V. Gambo (1979) LPELR-1913 (SC) and Buremoh V. Akande (2017) LPELR-41565 (SC), wherein M. D. Muhammad, JSC, aptly observe –
A Court must avoid the determination of a substantive issue at the interlocutory stage. It is never proper for a Court to make pronouncement in the course of interlocutory proceedings on issues before the Court. Interlocutory applications – – must remain the handmaid and aid that enable the Court reach the ultimate goal of doing substantial justice between the Parties in the real issues in litigation between Parties. PER OYEWOLE, J.C.A.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is in respect of two interlocutory applications; one from the Appellant and the other from the 1st Respondent.
The Appellant’s motion was filed on the 24th February, 2015 wherein it seeks as follows:
1. An order granting leave to the Appellant/Applicant to amend its Notice of Appeal.
2. An order amending the Appellant’s Notice of Appeal by addition of two new grounds of appeal as shown in the proposed amended notice of appeal annexed as Exhibit B.
In moving the said application, Mr. Akaraiwe, the learned lead counsel for the Appellant, adopted the written address filed along with it as well as the Reply on points of law filed on the 17th September, 2019 in response to the opposing arguments of his learned colleague for the 1st Respondent.
On his part, Mr. Okoroafor, the learned lead counsel for the 1st Respondent relied on the counter-affidavit of the 1st Respondent filed on the 15th May, 2019 as well as the written address filed on the same date in opposing the said application.
Mr. Okoroafor, also moved his own application filed on
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behalf of the 1st Respondent on the 22nd November, 2018 wherein he sought the following reliefs:
1. An order of this Honourable Court striking out this Appeal for being incompetent.
2. An for such further orders or other orders that this Honourable Court may deem fit to make in the circumstances.
In moving the said application, Mr. Okoroafor adopted the written address filed by him on the 15th May, 2019.And in opposition thereto, Mr. Akaraiwe adopted the reply on points of law to the said motion filed by him on the 17th September, 2019.
It must be noted at this stage that the main appeal is in respect of the judgment of the Investment and Securities Tribunal, sitting in Enugu, delivered on the 6th January, 2014 which is still pending.
The contention of the 1st Respondent in opposing the Appellant’s application to amend also forms the basis of his application to have the appeal struck out, to wit; that the appeal is incompetent as the original notice of appeal, sought to be amended is incurably defective.
Till date, the appeal has hung at this intersection as the 1st Appellant has failed to file his brief, contending that
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the grant of the Appellant’s application would render his present contention, otiose.
It seems to me that the contentions of the 1st Respondent, if delved into at this stage would lead to pronouncements being made on the substantive dispute in this appeal. An appeal should not be heard installmentally with the substance prejudiced in the consideration of interlocutory applications. See IN RE: ABDULLAHI (2018) LPELR-45202(SC) at 24-25 where AUGIE, JSC stated thus:
They had a lot more to say in their 12-page Reply on Points of Law but I am walking a tightrope here; this is an Application for substitution, and the law frowns seriously on a Court taking on substantive issues fit only for the appeal, when hearing interlocutory applications. In other words, care must be taken to avoid making observations in its Ruling on that application, which might appear to pre-judge the main issue in the proceedings relative to the said application. See Mortune V. Gambo (1979) LPELR-1913 (SC) and Buremoh V. Akande (2017) LPELR-41565 (SC), wherein M. D. Muhammad, JSC, aptly observe –
A Court must avoid the determination of a substantive issue at the
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interlocutory stage. It is never proper for a Court to make pronouncement in the course of interlocutory proceedings on issues before the Court. Interlocutory applications – – must remain the handmaid and aid that enable the Court reach the ultimate goal of doing substantial justice between the Parties in the real issues in litigation between Parties.
It is instructive that in his arguments, Mr. Okoroafor referred copiously to the Supreme Court decision in CCB VS EKPERI (2007) 3 NWLR (PT 1022) 493 at 509. A major take-away from that decision however, is that objection was taken in the Respondent’s brief and not via an interlocutory application such as this. More fundamentally, the Apex Court in that case established that once the originating Notice of Appeal was incurably defective, no amendment adding further grounds of appeal could cure the defect.
That being so, the grant of the Appellant’s application would not deprive the 1st Respondent of any meritorious consideration of points now being raised, if contended in a preliminary objection in his brief. I shall therefore discountenance the contentions of the 1st Respondent as contained
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in his counter-affidavit to the Appellant’s motion to amend as well as the motion on notice seeking to strike out the appeal filed, without pronouncing on the merits thereof in order not to constitute any prejudice to their being raised appropriately in a preliminary objection argued in the 1st Respondent’s brief.
In the entire circumstances therefore, Appellant is granted leave to amend the Notice of Appeal in the manner contained in the Proposed Amended Notice of Appeal, annexed to the motion herein. The said Amended Notice of Appeal shall be filed and served within 14 days hereof.
The 1st Respondent’s Motion on Notice dated 20th November, 2018 but filed on the 22nd November, 2018 is hereby struck out.
There shall be no order as to costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.
ABUBAKAR SADIQ UMAR, J.C.A.: I agree.
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Appearances:
Mr. I. A. Akaraiwe with him, O. O. Udu, Esq., C. J. Ikemba, Esq., and R. O. Ajibade, Esq., For Appellant(s)
Mr. A. C. Okoroafor with him, E. Okoroji, Esq., and H. C. Akanwa, Esq. – for the 1st Respondent For Respondent(s)
