INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR v. PEOPLES DEMOCRATIC PARTY (2014)

INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR v. PEOPLES DEMOCRATIC PARTY

(2014)LCN/7450(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of September, 2014

CA/AK/46/2011

RATIO

APPEAL: NOTICE OF APPEAL; WHETHER THE LAW ALLOWS AN APPELLANT TO FILE MORE THAN ON NOTICE OF APPEAL AS OF RIGHT WITHIN THE TIME STIPULATED BY LAW FOR LODGING OF AN APPEAL AGAINST THE DECISION APPEALED AGAINST
It is no doubt settled law that when the relevant law and Rules of Court allow a litigant to do anything in connection with the litigation as of right within a particular time frame, the litigant where he defaults to act within the time frame so stipulated can only do so by seeking the indulgence of the court to do so out of time. It would appear that it is against the backdrop of the position of the law in this respect that there are authorities galore to the effect that an appellant can file more than one notice of appeal (or as many notices of appeal as he wishes) within the time frame stipulated by law for the lodging of an appeal against the decision appealed against. By filing more than one notice of appeal (which are not ipsissima verba) as of right within the time stipulated by law, an appellant can successfully amend as it were a notice of appeal filed earlier time with the one filed later in time without seeking for an order of court for amendment. It is however to be appreciated that while the law allows an appellant the choice of lodging more than one notice of appeal against a decision of a court, it is clear that an appellant that chooses to file more than one notice of appeal cannot prosecute such an appeal on all the notices of appeal he chose to file. The appellant in question must prosecute the appeal on only one of the notices of appeal he filed. See the cases of TUKUR V. GOVERNMENT OF GONGOLA SIATE (1988) NSCC VOL. 19 PT.1 PG.30; and FIRST BANK OF NIGERIA PLC. V. T.S.A. INDUSTRIES LTD. (2010) LPELR – 1283 (SC).

APPEAL: NOTICE OF APPEAL; THE IMPORTANCE OF A NOTICE OF APPEAL
Again the law is settled regarding the importance of a Notice of Appeal. It is that a Notice of Appeal in the process of appeal is a very important document, as it forms the foundation of the appeal and donates jurisdiction to the court in relation to the appeal. That if it is defective, the appellate court must strike it out on the ground that it is incompetent. That the question as to whether or riot a proper notice of appeal has been filed In the lower court is a question which touches on the jurisdiction of the appellate court. This is because if no proper notice of appeal has been filed, then there is no appeal for the court to entertain, See FIRST BANK OF NIGERIA PLC. V. T.S.A. INDUSTRIES LTD (supra); ANADI V. OKOTI (1972) 7 SC 57; and CBN V. OKOJIE (2004) 10 NWLR (Pt.882) 488 amongst so many others.

APPEAL: NOTICE OF APPEAL; WHAT APPELLANTS SHOULD DO WHEN THE NOTICE OF APPEAL UPON WHICH THEY PREDICATED THEIR APPEAL IS AFFILIATED WITH ERRORS WHICH GOES TO THE JURISDICTION OF AN APPELLATE COURT IN ENTERTAINING THE APPEAL
Interest of justice cannot be resorted to by a party to an appeal to urge the Court to act contrary to settled position of the law as the Applicants would now want the Court to countenance a Notice of Appeal they had prior to the making of the instant application consciously abandoned and willy-nilly or regardless give it life and treat it as the extant Notice of Appeal in the instant appeal. What the Applicants ought to have done in the interest of justice having seen that the Notice of Appeal upon which they predicated the instant appeal is afflicted with errors which go to the jurisdiction of this Court in entertaining the appeal, is to terminate the appeal and return to the drawing board to file a new process that does not have the errors which they identified, Not to try against all odds to seek for the substitution as it were of the process (i.e. Exhibit ‘B’) with an abandoned process which they even still want to amend.

PRACTICE AND PROCEDURE: COURT PROCESSES; WHEN IS COURT PROCESSES DEEMED TO BE ABANDONED
It is a cardinal principle of law, that any process that is filed in Court, and which the party who has filed it has not deemed it necessary to pursue, either by taking further steps or doing certain things, like moving the Court, in compliance with the requirements of the law, as in this case, the court will be correct to assume that the process has been abandoned by the party, and so deem the said process as duly abandoned. Per. FATIMA OMORO AKINBAMI, J.C.A.

APPEAL: NOTICE OF APPEAL; WHETHER A DEFECTIVE NOTICE OF APPEAL CAN BE AMENDED OR ADD TO
It is also well settled law that one can neither amend nor add to a defective notice of appeal, see Global Trans Oceanico S.A. v. Free Ent Nig. Ltd (2001) FWLR (PT 40) 1706 @ I719 paras B-C, per Kalgo J.S.C.; Atuyeye v Ashamu (1978) 1 S.C. 47; Awhinawi & Anor v. Oteri & Ors (1984) 15 NSCC 299 @ 300; Danbam v, Lele (2000) FWLR (PT 24) 1461.
In Global Trans Oceanico S.A. vs, Free Ent Nig. Ltd supra, Kalgo J.S.C., reading the leading judgment of the apex court, even added at p.1719 para D, that:
“And the court of Appeal can strike out the appeal itself under order 3 Rule 2(7) of the court of Appeal Rules, 1981. (See Nsirim vs Nsirim (1990) 3 NWLR (PT 138) 285.” Per. BOLOUKUROMO MOSES UGO, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. MR. RUFUS OLUWATOYIN AKEJU Appellant(s)

AND

PEOPLES DEMOCRATIC PARTY Respondent(s)

AYOBODE OLUJIMI LOKUKO-SODIPE, J.C.A. (Delivering the Lead Ruling): The Appellants/Applicants (hereafter simply referred to as “Applicants”) brought the instant motion on notice dated 25/4/2014 and filed on 28/4/2014, pursuant to the provisions of Orders 4 Rule 1;6 Rule 15; 7 Rules 1 and 2 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of the Court, The Applicants seek for the following:-
“1. AN ORDER granting leave to the Appellants/Applicants to amend the Notice of Appeal which was filed on 31st March, 2011 and contained on page 128 to 130 of the Record of Appeal, by adding thereto an additional ground of Appeal.
2. AN ORDER granting leave to the Appellants/Applicants to file one additional ground of Appeal in the schedule attached to the supporting Affidavit as Exhibit ‘C”.
3. AN ORDER for the Appellants/Applicants to amend the Notice of Appeal filed on 31st March, 2011 to include an additional Ground of Appeal in the attached to the supporting Affidavit as Exhibit ‘C’.
4. AN ORDER granting leave to the Appellants/Applicants to amend the Appellants’ Brief of Argument for the purpose of relying on the Amended Notice of Appeal and incorporating argument on the additional Ground of Appeal.
5. AN ORDER DEEMING the Appellants/Applicants, Amended Notice of Appeal and Amended Brief of Argument already filed as properly filed and served, the necessary fees having been paid.
6. AND FOR SUCH ORDERS or FURTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of this Appeal.”
The grounds upon which the application is premised as set out in the motion on notice (supra) are:-
“1. The Appellants/Applicants have a valid and subsisting Notice of Appeal filed on 31st March, 2011 and contained on page (sic) 128 to 138 of the Record of Appeal.
2. There is need to file an additional Ground of Appeal.
3. The Additional Ground of Appeal raises a question of jurisdiction.
4. Leave of this Honourable Court is required to amend the Notice of Appeal in order to incorporate the Additional ground of Appeal.
5. Appellants’ Amended Brief of Argument relying on the Amended Notice of Appeal has now been filed.
6. The Appellants are willing and desirous to prosecute the Appeal.”
The Applicants further gave notice that they shall at the hearing of the motion on notice (supra) rely on “the Records of Appeal already before the Honourable Court, but shall abandon the Notice of Appeal contained on Page 212 of the said Notice of Appeal.”
The motion on notice(supra) has a 9 paragraph supporting affidavit deposed to by one A.A. Usman on 28/4/2014. The Respondent reacted to the supporting affidavit of the Applicants by filing an 11 paragraph counter affidavit deposed to by one Kehinde Adesiyan on 12/5/2014. The Applicants again filed a 21 paragraph reply affidavit to the counter affidavit of the Respondent.
The motion on notice (supra) was entertained by the Court on 8/7/2014. In arguing the said motion learned lead counsel for the Applicants, Adeola Adedipe Esq. relied upon the affidavits filed in the motion by the Applicants and urged the Court to grant the prayers sought therein, Learned lead counsel submitted that granting the motion will afford the Applicant a level playing ground to enable them argue their appeal. That it is in the interest of justice for the Court to do this. The case of South Atlantic Petroleum Ltd v. Minister of Petroleum Resources (2014) 4 NWLR (Pt.1396) 24 at 41 was cited by learned lead counsel in aid of his submissions.
Learned lead senior counsel for the Respondent, A.I. Layonu, SAN, in opposing the motion on notice (supra) relied on the counter affidavit filed by the Respondent. He urged the Court to dismiss the motion on the grounds that it is overreaching, is an abuse of process and incompetent. Learned senior counsel said that the records of appeal show that the extant Notice of Appeal was filed on 11/4/2011. He submitted that this was the only Notice of Appeal that is capable of being amended (but that he does not concede that this can be done). He submitted that the Notice of Appeal being sought to be amended is already abandoned or deemed to be abandoned and has no life anymore and therefore cannot be amended. It is the stance of learned senior counsel that if prayer 1 in the motion on notice (supra) fails, the other prayers must likewise fail as they would have no foundation to stand upon. Learned senior counsel also referred to the Notice of Appeal being sought to be amended and submitted that the Applicants have not acted with candour as they did not bring it to the notice of the Court that the said Notice of Appeal was filed in the Ibadan Division of the Court. That the Applicants filed the Notice of Appeal in Ibadan despite the fact that the Akure Division of the Court had been entertaining appeals from Osun State prior to the filing of the said Notice. The case of Intro-Shipping Ltd v Logos Trading N V (2004) FWLR (Pt.71) 1706 at 1712 was cited by learned senior counsel in aid of his stance that the application cannot be granted. This Court was urged to dismiss the motion on notice (supra) in the circumstances.
In responding on point of law, learned lead counsel for the Applicants submitted that the case cited by learned senior counsel is not helpful to the Respondent’s case. That the decision in the case cited by learned senior counsel has been overruled by that in the South Atlantic Petroleum Ltd case (supra). He relied on the doctrine of stare decisis in this regard.
The motion on notice (supra) has been brought in the instant appeal. The circumstances leading to the bringing of the said motion as disclosed in the supporting affidavit are that the Applicants lodged two Notices of Appeal against the ruling delivered on 28/3/2011 by the lower court. They are (i) Notice of Appeal filed on 31st March, 2011 and (ii) Notice of Appeal filed on 11/4/2011. The Notices of Appeal were marked Exhibits ‘A’ and ‘B’ respectively. The Applicants stated to the effect that it was whilst going through the records of appeal that they discovered that there are some errors in Exhibit ‘B’ which go to the jurisdiction of this Court in entertaining the appeal. That it is imperative for this reason to abandon the Notice of Appeal in Exhibit ‘B’ and to rely on the Notice of Appeal in Exhibit ‘A’ in the Appellants’ Brief of Argument”. That there is need not only to amend the Notice of Appeal in Exhibit ‘A’ to include an additional ground of appeal for the effectual determination of the appeal, but also to file an amended Appellants’ Brief of Argument to include argument in respect of the additional ground of appeal.
In the counter affidavit, it was disclosed that the Applicants have yet a third Notice of Appeal on page 140 of the records and that the said Notice of Appeal is a replica of the one filed on 31/3/2014 (sic). The circumstances leading to the filing of the motion on notice (supra) as disclosed by the Respondent are to the effect that the Applicants’ Brief of Argument in the appeal is dated 24/5/2011 and filed on 26/5/2011 and that the Respondent has filed its Brief of Argument in response thereto on 14/5/2012. That it was stated in the Brief of Argument filed by the Applicants that they were relying on the Notice of Appeal dated 30/3/2011 on page (sic) 212 – 215 of the Record of Appeal”. That the Respondent was hard put to determine which of the Notices of Appeal the Applicants relied upon as there was no Notice of Appeal dated 30/3/2011 on pages 212 – 215 of the records, but there was one dated 8/4/2011 on pages 213 – 216 of the records.
That when the appeal came up on 2/4/2014 before the Court, learned senior counsel for the Respondent made known the discrepancy in the Brief of Argument of the Applicants and that learned lead counsel for the Applicants made it very clear for the records of the Court that the Notice of Appeal relied upon by the Appellants is the one on pages 213 to 215 of the records which is dated 8/4/2011 and filed on 11/4/2011. That following the clarification made by learned lead counsel for the Applicants on 21/4/2014 that it was the Notice of Appeal dated 8/4/2011 that the Appellants relied upon in the appeal, learned lead counsel for the Applicants thereafter proceeded to argue the appeal on the basis of the said Notice of Appeal.
That after learned lead counsel for the Applicants had concluded arguing the appeal, learned senior counsel for the Respondent sought the permission of the Court to raise and indeed raised an oral objection to the Notice of Appeal filed on 11/4/2011 urging the Court to strike out the appeal. That the Court however directed that the Respondent should formally file whatever objection it had to the appeal to enable the Appellants respond to same. That the Respondent had since 2/5/2014 filed a Notice of Preliminary Objection dated 24/4/2014. That the formal Notice of Preliminary Objection; and argument thereon have been served on the Appellants.
It was also disclosed in the counter affidavit of the Respondent to the effect that the question of abandonment of the so called Notice of Appeal in Exhibit ‘B’ and filing of additional grounds to Exhibit ‘A’ do not arise as learned lead counsel for the Applicants had relied on the Notice of Appeal dated 8/4/2011 and filed on 11/4/2011 at the hearing of the appeal on 2/4/2014. It was also disclosed by the Respondent to the effect that the Applicants did not seek for an order amending the Notice sought to be amended to reflect that it is for the Court of Appeal, Akure and not Court of Appeal, Ibadan that it bears.
In their reply affidavit, the Applicants disclosed that the order which the Court made on 2/4/2014 at the hearing of the appeal is that learned senior counsel should incorporate his Objection in the Brief of Argument of the Respondent. It was further disclosed to the effect that learned senior counsel has not complied with the order of the Court relating to the preliminary objection he has to the appeal, and that the manner in which he has argued the same is unknown to the procedure in this Court as to how preliminary objection should be argued. Again, the Applicants having disclosed that the appeal will have to be argued de novo due to posting of Justices, that has resulted in the transfer of two out of the three the Justices that entertained the appeal to some other Divisions of the Court, also said that as Exhibit ‘A’ seeks to give life to the appeal, there will be no need for the Respondent’s application.
In my considered view, the following would appear not to be in controversy having regard to the narrations contained in the affidavits of the parties to the instant motion on notice as well as the records:-
1. The Applicants as Appellants filed more than one Notice of Appeal against the ruling of the lower court delivered on 28/3/2011 and that all the said Notices of Appeal are in the records.
2. Parties have settled and exchanged Briefs of Argument for the purpose of hearing the appeal at all material times before the Applicants brought the instant motion on notice and particularly as at 2/4/2014 when the appeal was first entertained by the Court for hearing.
3. Learned lead counsel for the Applicants at the hearing of the appeal before the Court on 2/4/2014 adopted and relied on the Appellants’ Brief of Argument dated 23/5/2011 and filed on 26/5/2011; and Appellants’ Amended Reply Brief dated 1/8/2013 and filed on 6/8/2013 but deemed as having been properly filed in urging the Court to allow the appeal.
4. That at the hearing of the appeal on 2/4/2014 learned lead counsel for the Appellants resolutely relied on the Notice of Appeal filed on 11/4/2011 and argued the appeal on the basis of the said Notice of Appeal.
5. That the appeal was not heard to completion by the Court on 2/4/2014 as a result of the oral preliminary objection to the appeal raised by learned senior counsel for the Respondent.
6. Learned senior counsel for the Respondent has before the Court a formal Notice of Preliminary Objection to the appeal.
7. That the Appellants who are the Applicants in the instant motion have brought the same in order to save the appeal.
It is no doubt settled law that when the relevant law and Rules of Court allow a litigant to do anything in connection with the litigation as of right within a particular time frame, the litigant where he defaults to act within the time frame so stipulated can only do so by seeking the indulgence of the court to do so out of time.

It would appear that it is against the backdrop of the position of the law in this respect that there are authorities galore to the effect that an appellant can file more than one notice of appeal (or as many notices of appeal as he wishes) within the time frame stipulated by law for the lodging of an appeal against the decision appealed against. By filing more than one notice of appeal (which are not ipsissima verba) as of right within the time stipulated by law, an appellant can successfully amend as it were a notice of appeal filed earlier time with the one filed later in time without seeking for an order of court for amendment.

It is however to be appreciated that while the law allows an appellant the choice of lodging more than one notice of appeal against a decision of a court, it is clear that an appellant that chooses to file more than one notice of appeal cannot prosecute such an appeal on all the notices of appeal he chose to file. The appellant in question must prosecute the appeal on only one of the notices of appeal he filed. See the cases of TUKUR V. GOVERNMENT OF GONGOLA SIATE (1988) NSCC VOL. 19 PT.1 PG.30; and FIRST BANK OF NIGERIA PLC. V. T.S.A. INDUSTRIES LTD. (2010) LPELR – 1283 (SC). If this were not the case, then a situation where parties to an appeal will have to file and exchange Briefs of Argument as there are Notices of Appeal in respect of the same appeal bearing the same Appeal Number would arise. Surely,such an absurd and confusing situation can never be to credit of administration of justice in any manner.
In the instant appeal, the Applicants as Appellants in their extant Brief of Argument (not paginated) which learned lead;counsel adopted and relied upon before this Court on 2/4/2014 stated at paragraphs 1.03 -1.05 thus:-
“Paragraph 1.0.3.
The learned Trial Judge in its (sic) Ruling of 28th March, 2011 on page (sic) 67 – 68 of the Record of Appeal granted the Injunctive Reliefs sought by the Respondent, and it is against this decision that the Appellants have filed their Notice of Appeal dated 30th March, 2011 on page (sic) 212-213 of the Record of Appeal.

Paragraph 1.0.4.
The Appellants by a Notice of Appeal have applied to this Honourable Court for the Ruling of the Lower Court to be set aside as the Court has no jurisdiction to entertain the suit.

Paragraph 1.0.5.
The Appellants therefore filed 3 grounds of appeal accompanied with a Relief asking this Honourable Court for an Order setting aside the Ruling of the Lower Court delivered on 28th March, 2011 and all the Orders made therein.”
It was disclosed in the counsel affidavit filed by the Respondent that there is no Notice of Appeal dated 30/3/2011 on pages 212 – 215 of the records but that there is a Notice of Appeal dated 8/42011 on pages 213 – 216 of the records as well as another one on pages 140 -142 of the records and which is a replica of the one filed on 31/3/2011, on pages 128-130 of the records and which is the Notice of Appeal that the Applicants now seek to amend amongst other reliefs/orders being sought.
Having regard to the paragraphs in the Appellants’ Brief of Argument re-produced above, it is glaring that the Applicants based their extant Brief of Argument on a Notice of Appeal containing three grounds of appeal. The only Notice of Appeal in the records having or containing three grounds of appeal is the one dated 8/4/2011 and filed on 11/4/2011, on pages 213 – 216. This Notice of Appeal is the same with Exhibit ‘B’ attached to the instant motion on notice. It is therefore not surprising that at the hearing of the appeal before this Court on 2/4/2014, learned lead counsel chose to rely on the Notice of Appeal in question.
I must also note that the Applicants have in no way whatsoever denied that this is the Notice of Appeal that they predicated their extant Brief of Argument upon and which learned lead counsel duly adopted and relied upon before this Court on 2/4/2014.
In any event the very fact that the Applicants by the instant motion are equally seeking to add an additional ground of appeal to the Notice of Appeal they wish to amend and to also file an amended Brief of Argument to enable them argue three issues, show the resolve of the Appellants to prosecute the instant appeal on a Notice of Appeal containing three grounds of appeal.
The questions which now begs for an answer is whether the Applicants who at all material times to the bringing of the instant application and particularly on 2/4/2014 haven chosen the Notice of Appeal dated 8/4/2011 and filed on 11/4/2011 as their Notice of Appeal in the instant appeal, can properly procure the indulgence of this Court to amend any of the other Notices of Appeal in the records particularly, the Notice of Appeal which they say is at pages 128 – 130 of the records?
It is my view that in order to give an appropriate answer to this poser, it is necessary to determine what the status of the other Notices of Appeal in the records became consequent to the election of learned lead counsel to the Applicants to rely on the one dated 8/4/2011 and filed on 11/4/2011 (i.e. Exhibit ‘B’). The answer to the poser would appear not to require any complicated thought process against the backdrop of the position of the law that an appeal cannot be prosecuted on more than one notice of appeal. And the answer is that the other Notices of Appeal in the records were deemed abandoned learned lead counsel for the Applicants having chosen the one dated 8/4/2011 and filed on 11/4/2011 as the foundation of the instant appeal.
True, it is that the appeal must now be heard de novo by another panel of Justices given the transfer of two of the Justices that entertained the appeal on 2/4/2014 due to the general posting of Justices this fact however does not obliterate the proceedings of the Court prior to and especially on 2/4/2014. In my considered view, the only manner by which the Applicants can get the Court as newly constituted to discountenance previous proceedings in the instant appeal and thereby avoid the consequences flowing therefrom or orders made therein, is to have the said proceedings set aside for good reasons that must be established This is not the situation here. From all that has been said, it is therefore obvious that the extant notice of appeal that can be properly amended by the Court in the circumstances of the instant appeal is the Notice of Appeal dated 8/4/2011 and filed on 11/4/2011.
Having regard to the depositions in the supporting affidavit of the instant motion, the Applicants claimed that it was whilst going through the records they discovered that there are errors in the extant Notice of Appeal in Exhibit ‘B’ and which errors go to the jurisdiction of the Court to entertain the appeal.
Again the law is settled regarding the importance of a Notice of Appeal. It is that a Notice of Appeal in the process of appeal is a very important document, as it forms the foundation of the appeal and donates jurisdiction to the court in relation to the appeal. That if it is defective, the appellate court must strike it out on the ground that it is incompetent. That the question as to whether or riot a proper notice of appeal has been filed In the lower court is a question which touches on the jurisdiction of the appellate court. This is because if no proper notice of appeal has been filed, then there is no appeal for the court to entertain, See FIRST BANK OF NIGERIA PLC. V. T.S.A. INDUSTRIES LTD (supra); ANADI V. OKOTI (1972) 7 SC 57; and CBN V. OKOJIE (2004) 10 NWLR (Pt.882) 488 amongst so many others.
I must observe that given the disclosure by the Applicants themselves, that the errors which they have discovered in Exhibit ‘B’ (upon which their learned lead counsel has predicated the instant appeal) go to the jurisdiction of the Court to entertain the appeal, it simply becomes incomprehensible how they expect this very Court to cure the defect in jurisdiction in the appeal it has no jurisdiction to entertain by the instant motion.
I am not unaware that learned lead counsel cited the South Atlantic Petroleum Ltd case in urging the Court to grant the instant motion.
I must say that the case is certainly not helpful to the Applicants in the least having regard to its peculiar facts particularly as the case revolved around amendment of an extant notice of appeal. The Applicants as it has been sufficiently shown in this ruling are not seeking to amend the extant Notice of Appeal but a Notice of Appeal which before now they had abandoned and as aptly described by learned senior counsel for the Respondent, has ceased to have life, in this appeal.
Interest of justice cannot be resorted to by a party to an appeal to urge the Court to act contrary to settled position of the law as the Applicants would now want the Court to countenance a Notice of Appeal they had prior to the making of the instant application consciously abandoned and willy-nilly or regardless give it life and treat it as the extant Notice of Appeal in the instant appeal. What the Applicants ought to have done in the interest of justice having seen that the Notice of Appeal upon which they predicated the instant appeal is afflicted with errors which go to the jurisdiction of this Court in entertaining the appeal, is to terminate the appeal and return to the drawing board to file a new process that does not have the errors which they identified, Not to try against all odds to seek for the substitution as it were of the process (i.e. Exhibit ‘B’) with an abandoned process which they even still want to amend.
Flowing from all that has been said is that this Court cannot grant the indulgence the Applicants seek in the first of the prayers in the motion on notice they have brought and a fortiori, the other orders sought therein. Indeed, I cannot but observe that it is only commonsensical that the Applicants having obviously never filed an Appellants’ Brief of Argument predicated on the Notice of Appeal which they seek to amend, cannot rightly seek for the filing an amended Appellants’ Brief predicated thereon.
In the final analysis, the orders which the Applicants seek in motion on notice dated 25/3/2014 and filed on 28/3/2014; are all refused. The said motion is accordingly, dismissed.
I make no order as to costs.

GANA MSHELIA, J.C.A.: I have read before now the draft of the leading Ruling of my learned brother, Lokulo-Sodipe, JCA, just delivered. I completely agree with his reasoning and conclusion.
A valid notice of appeal is what animates and sustains an appeal and thus, a condition precedent to the court’s exercise of jurisdiction. In other words, the notice of appeal touches on the jurisdiction of the court and for an appeal to be properly commenced, a proper notice of appeal has to be filed. See: OLANREWAJU V. B.O.N. LTD. (1994) 8 NWLR (PT.364) 622; TUKUR V. GOVERNMENT OF GONGOLA STATE (1988) 1 NWLR (PT.68) 39 and ERISI V. IDIKA (1987) 4 NWLR (PT.66) 503.
In the instant case, the notice of appeal sought to be amended is different from the notice of appeal upon which Appellants/Applicants’ brief of argument was predicated. At this stage of the appeal, Appellants/Applicants cannot introduce an entirely different notice of appeal. Appellants/Applicants’ prayer for leave to amend must relate to the notice of appeal used in preparing the brief of argument. It is therefore my considered view that the notice of appeal sought to be amended is not properly before the court as such applicant is not entitled to the exercise of court’s discretion in his favour.
For this and the fuller reasons stated in the lead Ruling, I too refuse the application and dismiss same with no order as to cost.

JAMES SHEHU ABIRIYI, J.C.A.: The appeal is predicated on the notice of appeal dated 8th April, 2011 and filed on the 11th April, 2011. It is this notice of appeal which can be amended and not the one dated 30/3/2011 sought to be amended by the appellant/applicant.
Prayer 1 therefore fails, and since it is the foundation for the other prayers, these too must fail.
I had the privilege of reading before now the lead ruling of my learned brother A.O. Lokulo-Sodipe, JCA just delivered.
I agree entirely with him that the application should for the reasons ably stated by him be dismissed.
It is dismissed by me.
I abide by the consequential order made in the lead ruling.

FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in draft the Ruling of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A., just delivered. I agree with the reasoning and conclusion arrived thereat, that the orders sought in the motion on Notice dated 25th March, 2014 and filed on 28th March, 2014 should all be refused and the motion accordingly dismissed. My learned brother has exhaustively treated all the issues raised for determination in the motion. I only wish to add few words of mine for the purpose of emphasis.
The instant application filed by the Appellants/Applicants hereinafter referred to as Appellants, was dated 25th April, 2014 and filed on the 28th April, 2014. The Appellants prayed for the following:-
(1) AN ORDER granting leave to the Appellants/Applicants to amend the Notice of Appeal which was filed on 31st March, 2011 and contained on pages 128 to 130 of the Record of Appeal, by adding thereto an additional Ground of Appeal,
(2) AN ORDER granting leave to the Appellants/Applicants to file one additional Ground of Appeal in the schedule attached the Supporting Affidavit as Exhibit ‘C’.
(3) AN ORDER for the Appellants/Applicants to amend the Notice of Appeal filed on 31st March, 2011 to include an additional Ground of Appeal in the schedule attached to the Supporting Affidavit as Exhibit ‘C’.
(4) AN ORDER granting leave to the Appellants/Applicants to amend the Appellants Brief of Argument for the purpose of relying on the Amended Notice of Appeal and incorporating argument on the additional Ground of Appeal.
(5) AN ORDER deeming the Appellants/Applicants Amended Notice of Appeal and Amended Brief of Argument already filed as properly filed and served, the necessary fees having been paid.
(6) AND FOR SUCH ORDER OR FURTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of this Appeal.
The Grounds upon which this Application is premised as set out in the motion on Notice (supra) are:-
(1) The Appellants/Applicants have a valid and subsisting Notice of Appeal filed on 31st March, 2011 and contained on pages 128 to 130 of the Record of Appeal
(2) There is need to file an additional Ground of Appeal.
(3) The Additional Ground of Appeal raises a question of jurisdiction.
(4) Leave of this Honourable Court is required to amend the Notice of Appeal in order to incorporate the additional Ground of Appeal.
(5) Appellants’ Amended Brief of Argument relying on the Amended Notice of Appeal has now been filed.
(6) The Appellants are willing and desirous to prosecute the appeal.
Applicants gave notice that, at the hearing of the Application they shall rely on the Record of Appeal, already before the court, but shall abandon the Notice of Appeal contained on page 212 of the said Record of Appeal.
The motion on notice is supported by a 9 paragraph Affidavit.
The Respondent in reaction to the Supporting Affidavit filed an 11 paragraph counter Affidavit. In opposition to the granting of the application. The Appellants/Applicants filed a 21 paragraph Reply to the counter-Affidavit on the 8th July, 2014. The motion on Notice was argued before us/ a five man panel of Justices of the Court of Appeal.
The Appellants/Applicants by their motion are seeking the Order of this Court to amend their Notice of Appeal filed on 31st March, 2011, contained on page (sic) 128 to 138 of the Record of Appeal.
Having carefully perused the Motion on Notice, the Supporting Affidavit, the Counter-Affidavit and Reply on points of Law, as well as the arguments of learned counsel. I am of the view that, it is pertinent to ascertain, which is the extant Notice of appeal before the Court.
By their own admission, the Appellants/Applicants disclosed in their Supporting Affidavit that they lodged two Notices of Appeal against the Ruling, delivered on the 28th March, 2011 by the Lower Court. These notices are;
(1) Notice of Appeal filed on 31st March, 2011
(2) Notice of Appear filed on 11th April, 2011. They are marked Exhibits ‘A’ and ‘B’ respectively.
The Respondent disclosed in the Counter-Affidavit that the Appellants/Applicants actually filed three Notice of Appeal, the third Notice of Appeal is on page 140 of the Records of Appeal.
The SAN Dr. Biodun Layonu, counsel for the Respondent pointed out that from the Records of Appeal, the extant Notice of Appeal was filed on 11th April, 2011. He disclosed that the Applicants’ Brief of Argument in the appeal is dated 24th May, 2011 and filed on 26th May, 2011, whilst their own, Respondent’s Brief of Argument was filed on the 14th May, 2012.
That it was stated in the Appellants’ Brief of Arguments that they were relying on the Notice of Appeal dated 30th March, 2011 on page (sic) 212-215 of the Record of Appeal. The Respondent did not find any Notice of Appeal dated 30th March, 2011 on page (sic) 212 – 215 of the Record of Appeal, but found one on pages 213 – 216 of the Records of Appeal. And that when the appeal was heard on the 2nd April, 2014 before the Court, the Respondent’s counsel pointed out to the Court its observation, concerning the Brief of Argument of the Appellants/Applicants. And the learned counsel for the appellants/Applicants stated clearly that the Appellants/Applicant were relying on the Notice of Appeal on pages 213 – 216 of the Records, the one dated 8th April, 2011 and filed on 11th April 2011. Consequently, learned counsel for the Appellants/Applicants argued the appeal on the Notice of Appeal filed on 11th April, 2011.
I have carefully perused the Records of Appeal, Supporting Affidavit, Counter-Affidavit, Reply on Points of Law, and the Arguments proferred by learned counsel in arguing this motion. The pertinent question at this juncture is, whether the Appellants/Applicants in the circumstances of this appeal can amend their Notice of Appeal, dated 30th March 2011, since the Brief of Argument of Appellants/Applicants was not premised on the said Notice of Appeal.
The filing of the Notice and Grounds of Appeal is governed by the provisions of Order 6 Rule 2, of the Court of Appeal Rules, 2011 which provides thus:-
“All appeals shall be by way of rehearing and shall be brought by Notice (herein after called “the Notice of Appeal”) to be filed in the registry of the Court below which shall set forth the Grounds of Appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies, for service on all such parties, and it shall also have endorsed on it an address for service.”
The Civil Form 3 is headed;
“In the Court of Appeal” this can clearly be seen at page B112 of the Court of Appeal Rules, 2011. A person desiring to appeal to the Court of Appeal gives Notice of Appeal.
The appropriate Form for Notice of Appeal is the Civil Form 3. A valid Notice of Appeal is what animates and sustains an appeal, and thus a condition precedent to the Court of Appeal’s exercise of jurisdiction, Put in another way, the Notice of Appeal touches on the jurisdiction of the Court of Appeal, and for an appeal to be properly commenced, a proper Notice of Appeal has to be filed. And the Court of Appeal will decline to adjudicate on an appeal, which is not properly before it.
The law is settled that Notice of Appeal constitutes the foundation, and such foundation must be firm and strong enough to hold the appeal. Once the foundation is defective, the appeal will collapse, when effectively challenged.
It is emphasized that a Notice of Appeal is the foundation and substratum of every appeal. Any defect, thereto or therein will render, the whole appeal incompetent and the Appeal Court lacked the required jurisdiction to entertain it. ADIS ABABA & ANOR V. ADEYEMI (1976) 12 SC (Reprint).
The filing of more than one Notice of Appeal, by the party aggrieved with the judgment of a court, within the period provided for the lodging of an appeal is not prohibited by law. This is because an aggrieved party, can file two or more Notices of Appeal. It is however also clear that when an aggrieved party files more than one Notice of Appeal, the party definitely cannot prosecute the appeal in question upon all the Notices of Appeal so filed. The party is expected to withdraw the superfluous one/or ones and prosecute the appeal on the one he finds most appropriate. See in this regard the decision of this Court in HON. ABRAHAM ADEOLU ADELEKE V. OYO STATE HOUSE OF ASSEMBLY (2006) ALL FWLR (PT 319) 862 in which some of the decisions of the Supreme Court on the issue were applied. See also TAHIR V. BANK OF THE NORTH LIMITED (2007) ALL FWLR (PT 388) 1072 INTERGRATED DATA SERVICES V. ADEWUMI (2006) ALL FWLR (PT.292) 145; MRS SINMISOLA CAREW V. MRS IYABO OGUNTOKUN ORS (2011) LPELR 9355 (SC);
Filing of Court processes. Circumstances under which process of Court can be deemed abandoned.
It is a cardinal principle of law, that any process that is filed in Court, and which the party who has filed it has not deemed it necessary to pursue, either by taking further steps or doing certain things, like moving the Court, in compliance with the requirements of the law, as in this case, the court will be correct to assume that the process has been abandoned by the party, and so deem the said process as duly abandoned.
In this appeal the other two Notices of Appeal upon which the Appellant did not premise his Brief of Argument, it is both legal and logical that these Court processed filed and not pursued are deemed abandoned.
In this regard, Appellants/Applicants cannot now apply to amend the abandoned Notice of Appeal filed on the 31st of March, 2011. See PEOPLES DEMOCRATIC PARTY V. WILLIAM BALLANTYNE (2011) LPELR 9123 (CA)
It follows therefore, that the Notice of Appeal upon which the Appellants/Applicant’s Brief of Arguments are not predicated are deemed waived and abandoned. In this regard, Appellants/Applicant cannot now apply to amend the said abandoned Notice of Appeal.
It is for the above and fuller reasons given in the lead Ruling that I also refuse Orders prayed in the Motion on Notice dated 25th March, 2014 and filed on the 28th March, 2014. I also dismiss the said motion. I abide by the Order for costs as made in the lead Ruling.

BOLOUKUROMO MOSES UGO, J.C.A.: I have had the privilege of reading in draft the ruling just delivered by my learned brother Lokulo-Sodipe J.C.A. and I agree with his reasoning and conclusions.
There is no doubt that the applicants and their counsel are of the impression that since the law allows them to file multiple notices of appeal in one appeal it follows that they could even prosecute the appeal on any one of them while the other one(s) are on standby so to say for them to revert to if they run into any trouble with the one they have chosen, so long as they have not withdrawn or formally announced in court that they had abandoned the other one(s). That stance is not only wrong and unfounded, I do not even think they honestly believe that the law allows them to take that course of action. I want to believe the applicants and their counsel are merely testing the waters by seeking to revert to their said two-ground “standby notice of appeal” filed on 31/03/2011 having obviously run into very stormy waters with the three-ground notice of appeal they filed on 11/04/2011 and upon which they have so far prosecuted their appeal.
In as much as the law allows an appellant to file multiple notices of appeal, it is equally well settled that he can only prosecute his appeal on one of them unless he applies to consolidate his several notices of appeal. If he does not consolidate them, the other notices of appeal beside the one he adopted for his appeal must be and are deemed abandoned, see Tukur v. Govt, of Gongola State (1988) 1 SCNJ 61; Akeredolu & Ors v. Akinremi & Ors (1987) 2 NWLR 710.
Here the appellants/applicants did not and have not consolidated their multiple notices of appeal; they rather chose not only to rely on and adopt for the purposes of compilation of records and filing of their brief of argument the three-ground notice of appeal filed on 11/04/2011, they also relied on and adopted before the previous panel their only appellant’s brief of argument founded on it. They must in those circumstances be deemed to have abandoned their notice of appeal filed on 31/03/2011. It makes no difference that they have not formally withdrawn it or announced its abandonment in court: having taken a course of action that is inconsistent with a desire to pursue their appeal on it, it is to all intents and purposes deemed to have abandoned and no longer pending. It is therefore an abuse of process for them to seek to rely on and/or resuscitate it.
The position of the law on this issue remains the same even if an appellant files only one notice of appeal: if he takes any step that is inconsistent with a desire to prosecute his notice of appeal he is deemed to have abandoned it notwithstanding that he may have not formally withdrawn it or announced in open court its abandonment. At least that is what the Supreme Court said in the cases of Mohammed v. Hussein (1998) 14 NWLR (PT 584) 108 and Senator Nimi Amange Barigha v. Peoples Democratic Party & 2 Others (2013) 6 NWLR (PT 1349) 108. In both cases one of the issues was the status of a notice of appeal lodged against rulings of the High Court which notice the appellant had not formally withdrawn or abandoned but yet had taken steps in the High Court to set aside the rulings that were the subject of the notices of appeal. In both cases the Supreme Court rejected the argument that the notices of appeal in question were still pending, holding that they were abandoned even as the appellants did not formally file a notice of withdrawal or categorically announce their abandonment in open court.
In Mohammed v, Hussein supra at p.147, this is the way Onu JSC approached it:
“What, one may ask, became of the appeal ‘pending’ in the court below in the instant case? The appellants have argued to the effect that once a notice of appeal has been filed, it was deemed to be pending in the court below as from 24/11/94. With due respect, there is no law that compels an appellant to pursue his appeal. Rather the law allows him to legally abandon it.
The authority to adjudicate must of course not be not be left in abeyance…..
The fact that a notice of appeal is abandoned as in this case, it goes without saying that no further appeal subsists based on that notice.” (Emphasis mine).
In the more recent case of Senator Nimi Amange Barigha v. Peoples Democratic Party & 2 Others supra at p.137- 138 paras G-C, I.T. Mohammad J.S.C., delivering the lead judgment of the apex court, had this to say on this same issue:
“In the appeal on hand, although the 2nd respondent did not come out categorically to withdraw or abandon the notice of appeal filed on 7th November 2012, yet he did not get the record in respect thereof transmitted to this court up to the date when he filed his motion on notice seeking to set aside the ruling of the court below of 3/1/12. Yet, he did not inform the court below (in open court) that he still had notice of appeal pending. Further, none of the counsel, including the learned SAN for the appellant drew the court’s attention to the pending notice of appeal. In any event, although pending, the mere filing of a notice of appeal without more, does not, in my view, constitute an appeal in the real sense of the word. Thus, if same party by whatever guise files another process which is capable of determining the life span of the pending process and same was not objected to timeously, the court may go ahead to hear the process put in preference by the party prosecuting it. That also means that he no longer intends to pursue the pending matter which must be deemed abandoned and as he has no legal right to pursue it any further in view of the new matter (motion) filed in preference as that would amount to abuse of process.” (Emphasis again mine).
I am afraid the above is also the lot of the appellants/applicants in this matter – they are deemed to have abandoned, and have in fact since abandoned, their earlier notice of appeal of 31/03/2012 which they are now seeking to amend by this application. In other words, having clearly chosen their 11/04/2012 notice of appeal and prosecuted their appeal so far on it in preference to the one of 31/03/2012, the said earlier notice of appeal filed on 31/03/2012 is deemed abandoned and is no longer “pending” in this court. In effect, the applicants are not only seeking to amend something that, to use the words of Onu JSC, ‘no longer subsists’ in the eyes of the law, the motion itself, by reason of that same fact, amounts to an abuse of process. Of course, every court has a duty to protect its processes from abuse and this court will do no less.
In any case, even if the applicants’ notice of appeal of 31/03/2012 were still validly before us, an amendment that is intended to overreach like the instant one clearly is intended to overreach the objection of the respondent to the said alleged invalid notice of appeal of 11/04/2012 upon which the appeal has been so far prosecuted by the applicant – can hardly be granted, see Kode v. Yussuf (2001) FWLR (PT 40) 1727 (S.C).
It is also well settled law that one can neither amend nor add to a defective notice of appeal, see Global Trans Oceanico S.A. v. Free Ent Nig. Ltd (2001) FWLR (PT 40) 1706 @ I719 paras B-C, per Kalgo J.S.C.; Atuyeye v Ashamu (1978) 1 S.C. 47; Awhinawi & Anor v. Oteri & Ors (1984) 15 NSCC 299 @ 300; Danbam v, Lele (2000) FWLR (PT 24) 1461.
In Global Trans Oceanico S.A. vs, Free Ent Nig. Ltd supra, Kalgo J.S.C., reading the leading judgment of the apex court, even added at p.1719 para D, that:
“And the court of Appeal can strike out the appeal itself under order 3 Rule 2(7) of the court of Appeal Rules, 1981. (See Nsirim vs Nsirim (1990) 3 NWLR (PT 138) 285.”
The 31/03/2012 notice of appeal may not be defective, but having been abandoned, it is in even a worse situation.
For all these and the fuller reasons contained in the lead ruling just delivered by my learned brother Lokulo-Sodipe J.C. A., with which I completely agree, I also order that the appellants’ application dated 25/04/2014 but filed on 28/04/2014, which is based on a total misconception of the position of the law and practice relating to the effect of filing multiple notices of appeal, be refused and dismissed but without costs.