FUBARA v. SUBSEA INSPECTION SERVICES (NIG) LTD & ORS (2022)

FUBARA v. SUBSEA INSPECTION SERVICES (NIG) LTD & ORS

(2022)LCN/16700(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Wednesday, January 19, 2022

CA/PH/476/2016(R)

Before Our Lordships:

Paul Obi Elechi Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

DR. (MRS) VICTORIA R. K. FUBARA APPELANT(S)

And

1. SUBSEA INSPECTION SERVICES NIGERIA LIMITED 2. MR. ANDREW BRADY 3. MRS. SIOBY BRADY 4. REGGIE FUBARA HOLDINGS LIMITED 5. DAGOGO FUBARA 6. DATUBO FUBARA RESPONDENT(S)

RATIO

THE DEFINITION OF “JUDGEMENT”

Under Order 1 Rule 5, of the Court of Appeal Rules, 2021, “judgment” is defined as including an “order”. Thus, Order 23 Rule 11 of the Court of Appeal Rules, 2021 provides:
“11. (1) The Court shall have power to give any judgment or make any order that ought to have been made and to make such further order(s) as the case may require including any order as to costs.
(2) The powers contained in sub-rule (1) of this Rule may be exercised by the Court, notwithstanding that the Appellant may have asked that part of only a decision may be reversed or varied, and may also be exercised in favour of all or any of the Respondents or parties, although such Respondents or parties may not have appealed against from or complained of the decision. PER ADEGBEHINGBE, J.C.A.

THE LEGAL PURPOSE OF AN “AMENDMENT”

Order 7 Rule 8 of the Court of Appeal Rules, 2016 (same Order and Rule in the 2021 Rules) makes provision for amendment of notice of appeal. The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. The principle, which appears to have been generally accepted, is that it will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant. Therefore, the Courts have through the years taken the stand that however negligent or careless, may have been the slips however late, the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate injustice on the opposite party. See Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214 at 223-224.

In the case of Ibe v. Onuorah [1998] 7 NWLR (Pt. 558) 383 at 392, this Court explained that an amendment is nothing but the correction of an error committed in any process, pleading or proceeding at law or in equity, and which is done either as of course or by the consent of parties or upon notice to the Court in which the proceeding is pending. PER ADEGBEHINGBE, J.C.A.

WHETHER OR NOT PARTIES CAN BE PUNISHED FOR THE MISTAKES OF THEIR COUNSEL

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Lead Ruling): On 29/07/2019, the appellant/applicant filed a motion in the registry of this Court, in which she prayed for:
1. Leave to amend the appellant’s notice and grounds of appeal in the manner set out in the amended notice of appeal, already filed by the appellant.
2. An order deeming the amended notice and grounds of appeal as properly filed and served, as appropriate filing fees have been paid.
The grounds for the application are stated, thus:
a. The appellant’s notice and grounds of appeal, which was filed on 17/05/2016 were erroneously dated 17/05/15 as filing date by the Registry of the Court below.
b. The suit number of the case, from which judgment the appeal emanated, is PH/1399/2013, but erroneously stated as PH/399/2013.
c. The appellant intends to introduce an additional ground of appeal.

The affidavit in support of the application was deposed to by Grace Oluchi Ejesieme, a Legal Practitioner in the Law Firm of Chief V. O. Egbuawa & Co., counsel to the appellant/applicant. In paragraphs 3-9 of the affidavit in support of the application, the deponent testifies:
“3. That the appellant/applicant has since filed and served her notice and grounds of appeal within the time required by the Rules of Court. Copy of the said notice and grounds of appeal is annexed as Exhibit A.
4. That some errors are detected on the face of the said notice and grounds of appeal which need to be corrected to wit;
a. The filing date on the notice of appeal which is 17/5/16 is erroneously stated as 17/5/15 by the Registry of the Court below.
b. The suit No. of the case appealed against is PHC/1399/2013 but was erroneously typed as PH/399/2013.
5. That upon receipt of the record of appeal, the appellant desires to file an additional ground of appeal.
6. That the said amendments as well as the filing of additional ground of appeal can only be done by leave of this Court.
7. That the amended notice and grounds of appeal containing the additional ground of appeal has been filed and served along with this motion.
8. That this motion is for leave of this honourable Court to regularize the appellant’s position regarding the said amendments and the filing of the additional ground of appeal.
9. That the Respondents will not be prejudiced by this motion which is only intended to bring the issues in controversy in this appeal properly before this honourable Court.”
(Bold font for emphasis).

The appellant/applicant filed a written address, as argument of the application, on 28/10/2021. Chief V. O. Egbuawa (of counsel), for the appellant/applicant, who settled the process, adopted the written address on 10/11/2021, when the application was argued. He urged the Court to grant the application.

On the same day, J. N. Ugwu Esq., for the 1st-3rd respondents, adopted 1st-3rd respondents’ written address, filed on 18/10/2021, as an argument of opposition to the grant of the application. He urged the Court to refuse the application.

V. I. Omehe Esq., for the 4th and 5th respondents, informed us that he did not have anything to urge.

In the written address filed by the appellant/applicant, two issues were identified for the determination of the application. These are:
a. Whether it is permissible for the appellant to correct obvious errors on the face of her process (Notice of Appeal) by leave of Court?
b. Whether a party who filed no counter-affidavit can orally challenge depositions of fact in the affidavit of the opposing party?

Learned counsel for the respondent found one issue for the determination of the application. It is:
Whether the Court can grant the amendment of errors and defects in the notice of appeal filed in the appeal.

In my view, the question to be determined in this ruling is whether the applicant made out a case in her affidavit justifying the grant of the application, which the appellant/applicant set before this Court?

APPELLANT/APPLICANT’S ARGUMENT
In his argument of the application, appellant/applicant’s counsel drew the attention of the Court to the affidavit filed along with, and in support of, the application and the further affidavit, also filed in support of the application, on 12/07/2021, both of which were relied upon in argument of the application.

The position of appellant/applicant’s counsel, with the aid of the decision on Ani v. Effiok [2017] 18 NWLR (Pt. 1567) 281 at 330, is that whenever a party detects an error, which if uncorrected, will adversely affect his chances and has by implication made effort to correct such an error, the principles of justice demand that he should not be denied the opportunity to do so. It will be preposterous to concede to a contention that the error so detected should remain uncorrected so that the adversary can take advantage of it. Learned counsel narrated how the appellant filed her notice of appeal within time, on 17/05/2016, but the registrar of Court, who stamped it, wrote “17/05/2015” on the process. Learned counsel complained that:
“An obvious mistake on the part of the registry of Court is what the appellant seeks to correct by this harmless application.”

Secondly, the number of the suit before the lower Court is PHC/1399/2013, while PHC/399/2013 was typed as its number on the notice of appeal, whereas all other details correspond with the processes in the lower Court. He described the mistake as that made by counsel. He relied on the case of Bowaje v. Adediwura [1976] 6 SC 143. He explained that where the date of a decision appealed against or processes filed in Court are wrongly stated by counsel or a party, such is not fatal, but mere irregularity, which can be corrected either by the party or the Court. In such a situation, an application to correct the error should not be refused. He relied on the case of Manesse Japhet & Anor. v. The State [2016] 6 NWLR (Pt. 1509) 602 at 613-614. Even, where an objection is raised against a process, the party to be affected may still request to be allowed to amend it and the Court will allow that to be done. He relied on the case of Anachebe v. Ijeoma [2014] 14 NWLR (Pt. 1426) 168.

Learned counsel pointed out that the fact that the ruling, against which the appeal has been brought, was delivered on 18/02/2016, should be an easy pointer to the fact that a mistake was made. Reliance is placed on the dictum of Augie JSC. in the case Ani v. Effiok (supra) at page 390.

It was submitted that a party intending to challenge facts has to file a counter-affidavit, where the fact to be challenged lies in an affidavit in support of a motion. Where there is failure to file a counter-affidavit, the Court is bound to hold that all depositions in the affidavit are true. He relied on the cases of Alagbe v. Abimbola [1978] 2 SC 39; Otu v. INEC [1999] 5 NWLR (Pt. 602) 250 and Jukok Int. Ltd. v. Diamond Bank Plc [2016] 6 NWLR (Pt. 1507) 55 at 104-105. He explained that the facts stated in the affidavit in support of the application were not challenged and should be held as true by this Court and that there is no reason for this Court not granting the application. He insisted that the era of technicalities is gone and the errors if corrected, will place the appellant on an appropriate footing to exercise her constitutional right of appeal, as guaranteed by the 1999 Constitution. He cited the case of Shanu v. Afribank [2000] 13 NWLR (Pt. 684) 392 at 404.

In the view of learned counsel for the appellant/applicant, all authorities cited by the 1st-3rd respondents’ counsel to the effect that a defect in the notice of appeal can neither be amended nor cured, is moribund, and no longer represent the law. He pointed at the cases of Global Transport Oceanic Co. v. Free Ent. Nig. Ltd. [2001] 1 SC 154 and Iyamu v. Aigburemwen [1992] 2 NWLR (Pt. 222) 233 at 24, cited by 1st-3rd respondents’ counsel and indicated that they have been overruled by the recent decision of Ani v. Effiok (supra), which was decided in 2017.

In the opinion of learned counsel, there is a difference between a fundamentally defective notice of appeal and a notice of appeal, which has a mere error of date and figure as in the instant case. As an appeal has already been entered in this Court, the suggestion of respondents’ counsel that the correction sought in respect of date of filing should have been undertaken in the registry of the lower Court, is untenable. He cited the cases of Mohammed v. Husseini [1998] 14 NWLR (Pt. 584) 108 at 139 and Ezomo v. A. G. Bendel State [1986] 4 NWLR (Pt 36) 448.

He urged this Court to grant the “very simple” application in the interest of justice.

ARGUMENT OF THE RESPONDENT
In the written address filed (on 18/10/2021) on behalf of the 1st-3rd respondents, authored by John N. Ugwu Esq., the two affidavits filed in support of the application were acknowledged.

Learned counsel insisted that the notice of appeal was filed on 17/05/2015, while the ruling of the lower Court, which the appellant seeks to appeal against was delivered on 18/02/2016, which implies that the appeal was filed 9 months before the ruling was delivered. He directed the attention of the Court to exhibit A attached to the affidavit in support of the application and page 134 of the record of appeal transmitted by the appellant/applicant on 10/04/2019.

On the suit number, he pointed out that the suit number on the notice of appeal is different from the suit number on the ruling against which the appeal is sought to be brought. Learned counsel complained that there is no date on the notice of appeal sought to be amended. If there was, such would have helped the Court to determine whether the date of filing of the notice of appeal at the lower Court is a mistake or not. The Court was advised about the primacy of the position of a notice of appeal, its relevance, and importance, to the question of jurisdiction of the Court, with respect to an appeal. He submitted that once a notice of appeal is defective, it is incompetent, with nothing left for the Court to consider. For the proposition, learned counsel referred the Court to decisions in FBN Plc v. Maiwada [2012] LPELR – 9713(SC), etc.

In the view of learned counsel, a notice of appeal can only be amended any time before the appeal is heard, if it is valid. Such amendment should not be made to overreach the respondent, but only to serve the ends of justice and ensure that the complaints of the appellants against the judgment appealed against are laid and ventilated before the Court. He cited the cases of Okpala v. Ibeme [1989] 2 NWLR (Pt. 102) 208 etc. He insisted that defects on the face of the notice of appeal, which appellants seek to amend go to the root of the appeal and cannot be cured or amended. He cited the cases of Global Transport Oceanic Co. S. A. & Anor. v. Fred Enterprises Nigeria Limited [2001] 1 SC 154. He submitted that where a notice of appeal does not initiate a valid appeal, it cannot be amended, as the power of amendment cannot be used to bring into existence what does not exist. He cited the case of Iyamu v. Aigbiremwen [1992] 2 NWLR (Pt. 222) 233 at 242.

Learned counsel submitted that an order of amendment is not granted as a matter of course and that the appellant/applicant who is seeking to amend the date of filing of the Notice of Appeal did not present any document like a receipt of payment for filing the notice of appeal to show that it actually filed the Notice of Appeal on 17/05/2016 as she alleges, and not on 17/05/2015. He cited Section 131 of the Evidence Act, 2011 on burden of proof and Section 128 of the Evidence Act, 2011 on proof of judicial and official proceedings reduced into writing, which may not be altered, varied or contradicted by oral evidence. He suggested that the appellant/applicant ought to have written a letter for the error to be corrected by the Registry of the lower Court and attach such a letter to the application. He submitted that documentary evidence is a hangar to access oral testimony and carries more weight. He cited the case of Udeorah v. Nwakonobi [2003] 4 NWLR (Pt. 811) 643 at 674-675. Learned counsel advised that the comment of the Registrar of the lower Court should have been obtained and submitted that an undated document is ordinarily invalid and unenforceable in law, as the notice of appeal is undated “ab initio” and cannot be amended to put a date on it by this Court.

He urged this Court to strike out the application and strike out the notice of appeal filed by the appellant, as its incompetence touches on the competence of the appeal as well as the jurisdiction of the Court.

DETERMINING THE APPLICATION
The question to be determined in this ruling is whether the applicant made out a case in her affidavit justifying the grant of the application, which the appellant/applicant set before this Court?

Under Order 1 Rule 5, of the Court of Appeal Rules, 2021, “judgment” is defined as including an “order”. Thus, Order 23 Rule 11 of the Court of Appeal Rules, 2021 provides:
“11. (1) The Court shall have power to give any judgment or make any order that ought to have been made and to make such further order(s) as the case may require including any order as to costs.
(2) The powers contained in sub-rule (1) of this Rule may be exercised by the Court, notwithstanding that the Appellant may have asked that part of only a decision may be reversed or varied, and may also be exercised in favour of all or any of the Respondents or parties, although such Respondents or parties may not have appealed against from or complained of the decision.

Order 7 Rule 8 of the Court of Appeal Rules, 2016 (same Order and Rule in the 2021 Rules) makes provision for amendment of notice of appeal. The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. The principle, which appears to have been generally accepted, is that it will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant. Therefore, the Courts have through the years taken the stand that however negligent or careless, may have been the slips however late, the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate injustice on the opposite party. See Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214 at 223-224.

Parties should not be punished for the ignorance or mistake of their counsel. For example, the decision whether a suit should be filed either by way of motion on notice or writ of summons, which is one entirely belonging to a counsel, was held not to be sufficient to cause the suit to die. The Supreme Court was of the opinion that rather than decide the case on the mistake of counsel for one of the parties, the case should have been decided on the merit-based on the undisputed facts before the Court. See Saleh v. Monguno [2006] 15 NWLR (Pt. 1001) 26 at 61-62.
A second principle is that a litigant will not be made to suffer any consequence for the mistake or error of the registry. In the case of Gbenga v. A. P. C. [2020] 14 NWLR (Pt. 1744) 248 at 276, the Court held as follows:
“The mistake of irregularity was committed by the Court itself and not the party or his counsel and should not, therefore, be visited on the cross-respondent in this appeal. This caused the outcry of Per Muhammad, JSC in Ede & Anor. v. Mba & Ors. … [2011] 18 NWLR (Pt. 1278) 236, when he held:
“… Certainly, the error committed by the Registry was an administrative error which was irregular. But, the most relevant question one would pose here is: should this Court allow an unsuspecting litigant to suffer as a result of the mistakes/omissions occasioned by the Registry staff? Certainly, no! I repeat and adopt what Olatawura, JSC (of blessed memory) said in the case of Cooperative and Commercial Bank Plc v. Attorney General Anambra State & Anor (1992) 8 NWLR (Pt. 261) 528 at 561; that: “It will be contrary to all principles to allow litigants to suffer the mistake of the Court Registry. In other words, the Court will not visit the “sin” of the Court’s Registry, on a litigant or his counsel, unless, it was shown that the litigant and/or his counsel was a party thereto or had full knowledge of the “sin” or mistake and encouraged or condoned the said act.”

Concerning the application being determined in the ruling, it is worthy of note that the respondent did not file a counter-affidavit to challenge the facts presented to this Court by the appellant/applicant. It was stated in the case of Tukur v. Uba [2013] 4 NWLR (Pt. 1343) 90 at 130 that affidavit evidence constitutes evidence and must be so construed. Hence, any deposition therein which is not challenged or controverted is deemed admitted. The respondent is hereby deemed to have admitted the facts deposed in the affidavit filed in support of the application.

In this case, the deponent has stated, on oath, without challenge, that:
a. The number of the suit at the lower Court was wrongly stated in the notice of appeal. While the number should have read PHC/1399/2013, it is wrongly stated as PH/399/2013.
b. The original notice of appeal was filed on 17/05/2016, but the staff of the registry of the lower Court, apparently and incongruously, inscribed “17/05/2015” on the notice of appeal, which is complaining against a decision of the lower Court made on 18/02/2016.

A copy of the notice of appeal, complained about, was mentioned in paragraph 3 of the affidavit in support of the application and attached to the affidavit, marked exhibit A. An examination of exhibit A and the ruling of the lower Court, at pages 145-146 of the record of appeal (transmitted to this Court on 10/04/2019 – confirms the truth about the number and date mentioned in the request of the appellant/applicant to this Court. In view of the state of affidavit evidence, there is no reason for this Court not to believe or to disbelieve, the story of the deponent/legal practitioner, whose evidence has not been challenged on a set of facts capable of being disputed, but not disputed by the respondent. This Court, therefore, holds that there was an error made in exhibit A, in terms of the suit number inscribed and the date of filing of the notice of appeal. In fact, it is factually impossible to file a notice of appeal in the challenge of a ruling, which had not been delivered. Even a person gifted the privilege of clairvoyance could not have accurately predicted what was written in the ruling of the lower Court, against which the appeal was filed, given the fact that the date illogically ascribed to the filing of the notice of appeal, clearly predated the date of the ruling it purportedly complained about. That, in itself, is evidence that the registry of the lower Court made a mistake, which is self-evident.
The misstatement of the suit number is apparently the error of counsel, who signed the process and not the litigant in this appeal. The misstatement of the date of filing on the notice of appeal belongs to the registry of the lower Court.
As it stands, after considering the very intelligent, but non-persuasive argument of the respondent’s counsel, it was striking that the very learned counsel did not advise this Court about any injustice or legal distress the grant of the prayers offered by the appellant/applicant, to this Court, will occasion to the respondent or his interest. This Court has not found any reason to shut out the appellant from pursuing his intended appellate contest, except that it has found, as a fact, that this appeal may yet be saved and determined on the merit, with the grant of the application before it. In the case of F. B. N. Plc. v. May Medical Clinic [2001] 9 NWLR (Pt. 717) 28 at 44, it was stated that:
a. The powers of the Court of Appeal to order amendments and generally make orders as are necessary to produce a just result, extend to amendment of notice of appeal and brief of argument. Leave to amend a notice of appeal is provided in the Court of Appeal Rules and special circumstances are not needed to justify the amendment. The discretion of the Court, to grant it, is unhampered provided it is exercised judicially and judiciously.
b. That once there is a valid appeal, it can be amended. The purpose of such an amendment must be to ensure that the complaints of the appellant against the proceeding in question are laid and ventilated before the Court. The fact that briefs of argument have been filed and exchanged and an appeal is virtually ready for hearing will not prevent the Court from exercising its undoubted discretion to allow an amendment both to the notice and grounds of appeal and the brief of argument so long as the amendment would serve the ends of justice and fairness, and the other party can be compensated by costs.
In my view, the original notice of appeal filed in the registry of the lower Court by the appellant/applicant was valid and not invalid, because whatever defect there may be in the process is not traceable to the innocent appellant/applicant. Apart from that fact, the decision in Ani v. Effiok [2017] 8 NWLR (Pt. 1567) 281 decided that an otherwise incompetent notice of appeal may be amended with leave of Court.

From the prayers laid before the Court, the appellant also desires to file additional ground of appeal. The respondent has not complained about that prayer in his opposition to the grant of the application. In the case of Ogunmola v. NICON [1998] 11 NWLR (Pt. 575) 683, it was stated that:
The Court of Appeal has an inherent and unfettered discretion both to grant leave to file additional grounds of appeal and to amend the briefs of the parties at anytime before the hearing of the appeal by virtue of Section 16 of the Court of Appeal Act, 1976 and Order 3 Rule 16 of the Court of Appeal Rules, 1981 as amended.
The case of Okeke v. Modu [1996] 9 NWLR (Pt. 470) 121 at 126-127 stated that an appellate Court has the discretion to grant an application for leave to file additional grounds of appeal but such discretion must be exercised judicially and judiciously. The application is not granted as a matter of course. See also Oyeyemi v. Irewole Local Government (1993) 1NWLR (Pt.270) 462. It is hereby determined that it is both judicial and judicious to grant the application before the Court, despite the vehement opposition of the 1st respondent. There is no reason to cause the appellant/applicant to suffer for what she had no control or influence over.

The known law, which is not applicable to the circumstances of this case, is that leave to amend will not be granted if the amendment will not cure the defect in the proceeding. See Lagunji Abasi v. Raji Labiyi (1958) WRNLR 12. In this appeal, the grant of the application before the Court will heal the dent or cure the defect in the notice of appeal, without the respondents suffering any prejudice or damage therefrom.

It is the holding of this Court that there is merit in the application filed on 29/07/2019, by the appellant/applicant. The two prayers sought are hereby granted, as prayed. The appellant is granted permission to change the suit number of the suit in the lower Court written in the notice of appeal and the original notice of appeal is deemed to have been properly filed on 17/05/2016 (and not 17/05/2015). The correct date is deemed to have been inscribed on the notice of appeal filed by the staff of the registry of the lower Court at the point of filing. The unchallenged affidavit evidence of the deponent to the affidavit in support of the application suffices, as proof of the fact that an error was committed in respect of the date of filing the notice of appeal, which is confirmed even with a visual examination of the ruling, when compared with the date of filing the notice of appeal. The amended notice of appeal, filed by the appellant/applicant, is deemed properly filed on the date it was filed – 29/07/2019.

PAUL OBI ELECHI, J.C.A.: I was privileged to read in draft the Ruling just delivered by my learned brother Olabode Abimbola Adegbehingbe, JCA.

My learned brother has elaborately dealt with all the issues raised in this appeal. I am in agreement with the reasoning and the conclusion that the two prayers sought in the application be granted as prayed.
Application granted.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the opportunity to read the lead Ruling delivered by my learned brother, Olabode Abimbola Adegbehingbe, JCA.

I subscribe to the consideration and treatment of the issues provided in the supporting Written Addresses to the Motion on Notice and its opposition by the 1st – 3rd Respondents.

There is merit in the Application filed by the Appellant/Applicant. It is granted in terms of the motion papers. The Amended Notice of Appeal filed by the Appellant/Applicant is deemed properly filed and served on the 29th of July 2019.