INCAPINT LIMITED v. KEBBI STATE GOVERNMENT
(2018)LCN/11927(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/S/70M/2016(R)
RATIO
COURT AND PROCEDURE: AMEND OF COURT PROCESS
“The law is trite that there is no limit to seek leave to amend process before the Court. See FLEMINCDON DEV. NIC. LTD. ANEAMENE (2006) ALL FWLR (3001) 1915, where the Court held thus: ‘Amendment of a notice of appeal or any process can be done at any time as allowed by the rules of the Court. Order 6 Rule 15 of the Court of Appeal Rules gives power to the Court to allow the mendments of a notice of appeal at anytime.'” PER HUSSEIN MUKHTAR, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
INCAPINT LTD Appellant(s)
AND
KEBBI STATE GOVERNMENT Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Lead Ruling):
The appellant/applicant has filed a motion on notice on 12/2/2018 seeking for the following reliefs:
a. An order of the Court granting leave to the Appellant to file and argue additional ground of Appeal.
b. An order deeming the additional grounds as properly filed and served.
c. An order granting leave to the appellant/Applicant to amend the Notice of Appeal dated and filed on 23rd February, 2015 by incorporating additional ground.
d. An order deeming the appellant/Applicant amended Notice of Appeal in Exhibit B as properly filed and served as a separate process.
e. An order granting leave to the Appellant/Applicant to amend the Appellant brief of argument dated and filed on 23rd June, 2017 in the terms of EXHIBIT C.
f. An order of deeming the Appellant/Applicants amended brief of argument filed on 30th January, 2018 as properly filed on the amended Notice of Appeal.
On the receipt of the motion, the respondent filed a Counter Affidavit on 9th April 2018. Written addresses were ordered and duly filed.
The applicant formulated two issues for determining the application as follows:
1. Whether the court can grant the prayers of the Appellant/Applicant as contained on the motion filed on 12th February, 2018.
2. Whether the Respondent would be prejudiced with the grant of this application.
The application is supported by a -paragraph affidavit, while the respondent filed a six paragraphed counter affidavit. The relevant portions of the counter affidavit are reproduced as follows:
I, Bello Koko, male, Muslim and a Nigerian citizen of Attorney General’s Chambers, Ministry of Justice, Birnin Kebbi, do hereby make oath and stale as follows:
1. That I am litigation Clerk in the of the Attorney General’s Chambers, Birnin Kebbi.
2. That by virtue of my position aforesaid, I am conversant with the facts deposed to in this affidavit.
3. That I have the consent and authority of both my employers and that of the respondent to depose to this affidavit.
4. That I was informed by Stephen Manya, counsel handling this matter on the 23rd day of February at about 01:00 pm in his office which information I verily believe to be true as follows;
a. That the respondent admits paragraphs 1, 2, 3, 4, 5, and 7 of the supporting affidavit.
b. That the respondent denies paragraphs 8, 9, 10, 11, 12, 13, 14, 15 and 16 respectively of applicant?s supporting affidavit and states that said paragraphs are grossly false.
c. That in answer to paragraph 6 of the supporting affidavit states that the judgment of the lower Court in Suit No. KB/HC/2013 was delivered on the 25th day of November, 2014 in the presence of the counsel to the applicant, Husaini Zakariya Esq. and the Original Notice of Appeal was signed by the said counsel and filed on 23rd February, 2015.
d. That in further answer to paragraphs 6 of the supporting affidavit the respondent states that the applicant transmitted the record of proceeding to this Court and deemed transmitted on 5th June, 2017 more than two years after delivery of the said judgment and the appellant filed its brief of argument on 23rd of June, 2017 and same was served on the respondent on 21st September, 2017.
e. That sequel to that the responded filed respondent’s brief on 17th January, 2018 and was deemed filed on the date and the matter adjourned at the instance of the applicant to 31st January, 2018 for his counsel to file a reply to the respondent’s brief.
f. That in answer to paragraph 8 of the supporting affidavit, the respondent states that issues were joined on 17th January, 2018 and the applicant/appellant sought for adjournment to 30th or 31st January, 2018 for him to file a reply to respondent’s brief. However, the applicant filed a motion on notice dated 30th January, 2018 and filed on the same date which was supported by an affidavit deposed to by one Elizabeth Fidelis.
g. That in answer to paragraph 9 of the supporting affidavit the respondent states that the appellant consciously filed appellant briefs on 23rd June, 2017 and formulated issues not related to grounds of appeal.
h. That in answer to paragraph 10 of supporting affidavit the respondent states on or about the 18th day of January, 2018 the appellant sought for an adjournment to file a reply to the respondent’s brief but instead he filed a motion on notice?.
i. That in further answer to paragraph 10 of the supporting affidavit, the respondent states that the appellant therein in that affidavit the same Elizabeth Fidelis deposed to facts as reasons for seeking to amend the original notice of appeal in paragraphs 9, 11 and 12 thus: after filing the appellant?s brief, appellant discovered a need for the notice of appeal to be amended so that it will bring forth the main issue that led to this appeal properly, hence a need to amend the appellant notice of appeal; the amended notice of appeal is just to bring the original notice of appeal to form and to distil(sic) the main issues as relating to the hearing before the trial Court; this is intended to allow this Court to see clearly how the trial before the lower Court was conducted and to determine the justice of this case properly.
j. That in further answer to paragraph 10 of the supporting affidavit, the respondent states that the applicant/appellant again filed this application on the 12th day of February, 2018 seeking for amendment of the original notice of appeal intended to reply to respondent’s brief that posits that the issues formulated by the appellant in his appellant brief do not relate to any of the original grounds of appeal filed in this suit.
k. That in answer to paragraph 11 of the supporting affidavit the respondent states that the amended notice of appeal is just intended to bring back to life [resurrecting] dead issues not related to any of the grounds of appeal in the original notice of appeal.
l. That in answer to paragraphs 12 and 13 of the supporting affidavit the respondent states that the amended notice of appeal is not necessary because it is intended to mislead this honourable Court into making a case for the appellant.
m. That in answer to paragraph 15 of the supporting affidavit, the respondent states that no mistake was done. However, the amendment sought is deliberately and consciously made with covert intent to mislead the Court into making a case for the appellant.
n. That the applicant’s application is frivolous and it will not prejudice the applicant if this application is refused.
It was submitted for the Respondent that it will serve the best interest of justice, equity and fair play to refuse this application.
The arguments on the twin issues will be taken together and resolved simultaneously. The learned counsel for the appellant/ applicant Hussaini Zakariyya, Esq., argued that the provisions of Order 6 Rule 1 and Order 7 Rules 4 and 8 of the Rules of this Court 2016 have conferred enough plenitude of discretionary powers on the Court to grant the reliefs being sought in the instant application and urged the Court to consider it favourably.
Refence was made to the Supreme Court authority in the case of FBN PLC Vs MAY MEDICAL CLINICS & DIAGNOSTIC CENTRE LTD & ANOR. (2001) LPELR- 1282 9(SC) where the Court held:
“Once there is a valid notice of appeal, it can be amended. The purpose of such amendment must be to ensure that the complaints of the appellant against the proceedings 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.”
It was argued that the appellant gave enough cogent reasons, in the affidavit in support of this application, that necessitated the filing of this application. The Notice of Appeal sought to be amended was filed before the appellant got the copy of the judgment appealed against. When the appellant got a copy of the Judgment of the lower Court, he discovered a point of error therein, which he considered crucial enough to be added to the grounds of appeal and determined by this Court in the interest of justice. Hence the necessity to add another ground of appeal.
The law is trite that there is no limit to seek leave to amend process before the Court. See FLEMINCDON DEV. NIC. LTD. ANEAMENE (2006) ALL FWLR (3001) 1915, where the Court held thus:
”Amendment of a notice of appeal or any process can be done at any time as allowed by the rules of the Court. Order 6 Rule 15 of the Court of Appeal Rules gives power to the Court to allow the mendments of a notice of appeal at anytime.”
The Supreme Court per Ariwoola, JSC in SALISU V. MOBOLAJI (2014) 7 W.R.N Pp. 72-73 lines 40-15 held thus:
“There is no rule of the Supreme Court that limits the number of times a party can bring an application to regularize the processes in Court in particular, application to amend processes already filed even when the matter is fixed for hearing. As long as the purpose of or reason for such amendment is to ensure that the complaints of the appellants against the proceedings in question are laid and ventilated before the Court. Indeed, the fact that briefs of argument have been filed and exchanged and the appeal is virtually ready or has been fixed 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. The important consideration must be that the amendment would serve the ends of justice and fairness … ”
This particular ground sought to be added actually brought out one of the issues in dispute at the Court below. Moreover, the Respondent would not, in anyway, be overreached since they would have the opportunity of arguing or responding to the Appellant’s arguments predicated upon the additional ground.
The Respondent has not shown how it will be prejudiced by the grant of this application.
In any case, the additional ground of appeal sought to be added emanated from the proceedings of the Court below and the reason for this amendment is for the Court to hear the complaints of the appellant challenging the findings of the lower Court.
The Respondent reserves the right to make consequential amendments to the respondent’s brief of argument. There is nothing in the Respondent’s counter affidavit that shows any likely prejudice that would result from granting this application.
The Supreme Court in HAUMA HASSAN TUKUR VS GARBA UMAR and 7 ORS (2012) LPELR-9337 9(SC) held:
“An appellant is equally entitled to amend an original notice of appeal as at when necessary. In other words, an appellant can amend his notice of appeal to incorporate the grounds in the other notice(s).”
From the foregoing appraisal, it will serve better interest of justice to allow the application in order to determine the issues in dispute between the parties.
The procedure for leave to amend notice of appeal is provided in the Court of Appeal Rules and show of special circumstances is unnecessary to justify an amendment. The discretion of the Court to grant it is unhampered provided it is done faithfully to ventilate the parties’ grievances in the appeal. The powers of the Court to order amendments and generally to make orders as are necessary to produce a just result extend to amendment of notice of appeal and brief of argument.
It is my view that the respondent has put virtually next to nothing on his side of the scale to cause the slightest hesitation in my mind in grant the instant application, in order to exercise the Court’s discretion judiciously and judicially. Accordingly, the objection is overruled and the amendments sought by the appellant in the pending motion are hereby granted as prayed.
The Amended Notice of Appeal and Amended Appellant?s Brief are deemed filed and served today. The appeal is fixed for hearing on a date to be communicated to the parties soonest.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in advance the ruling of my learned brother, Hussein Mukhtar, JCA which I entirely agree with that the appeal is incompetent.
For all the reasons given in the said ruling, the objection is overruled by me and I also grant the amendments sought by the appellant.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the Ruling of my learned Brother just delivered. I am in agreement with the reasoning and conclusions reached in granting the application as meritorious. I am in agreement that the procedure for leave to amend notice of appeal does not require the show of special circumstances to justify an amendment. The discretion of the Court to grant it is unfettered provided it is exercised judicially and judiciously. Accordingly, the objection is overruled and the amendments sought by the Appellant in the pending motion are hereby granted as prayed.
Appearances:
Hussalni Zakarlyya, Esq.For Appellant(s)
Bagudu U. Abubaka, Esq. (DCL MOJ, Kebbi State) with him, Lawal Hudu Garbo, Esq.(DDPP) and
Shamsudeen Ja’afaru, Esq. (ADPP)For Respondent(s)
