IPCO NIGERIA LIMITED v. NIGERIAN NATIONAL PETROLEUM CORPORATION
(2013)LCN/6531(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of November, 2013
CA/L/179/2006(R)
RATIO
RATIONALE FOR THE GRANT OF AN AMENDMENT OF A NOTICE OF APPEAL
This court has an unfettered discretion to allow an amendment of the Notice of Appeal at any time before the hearing of the appeal. It has however necessary to ensure that such amendment should not be made to overreach the Respondent but only to serve the end of justice and fairness and ensure that complaints of appellant against the judgment are laid and ventilated before the court. See FBN PLC vs. MAY MEDICAL CLINIC AND DIAGNOSTIC CENTRE LTS (2001) 9 NWLR (PT 717) 28 at 40; PHARMOTEK INDUSTRIAL PROJECTS LTD vs. BAYO OJO (1996) 1 NWLR (PT.359) 332, OKPALA V. IBEME (1989) 2 NWLR (PT.102) 208.PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
WHETHER AN APPEAL COURT CAN DECLINE TO DECIDE ON A QUESTION WHICH IS ENTIRELY ACADEMIC
The law is firmly settled that where a question before the court is entirely academic speculative or hypothetical an appellate court would decline to decide the point because the court is enjoined to adjudicate between parties on the basis of their compelling legal interests and never to engage in mere academic questions or discourse. See ONOCHIE vs. ODOGWU (2006) 6 NWLR (PT.975) 65; JULIUS BERGER (NIG) LTD vs. FEMI (1993) 5 NWLR (PT.295) 612; ALLI vs. ALESINLOYE (2000) 6 NWLR (PT.660) 177 and NKWOCHA vs. GOVERNOR ANAMBRA STATE (1984) 6 SC 362. Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
IPCO (NIGERIA) LIMITED Appellant(s)
AND
NIGERIAN NATIONAL PETROLEUM CORPORATION Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Lead Ruling): The applicant by a motion on notice dated and filed on 23-10-2012 prayed for the following orders:-
(1) An order of this Honorable Court enlarging the time within which the Appellant/Applicant may seek the leave of this Honorable Court to appeal against the decision of the Federal High Court presided over by the Honorable Justice I. N. Auta in Suit No.FHC/L/CS/1060/2004: NNPC VS. IPCO (NIGERIA) LTD delivered on 20th February, 2006.
(2) An order granting leave to the Appellant/Applicant to appeal against the decision of the Federal High Court presided over by the Honorable Justice I. N. Auta in suit No FHC/L/CS/1060/2004: NNPC VS. IPCO (NIGERIA) LTD delivered on 20th February, 2006 on grounds other than grounds of law.
(3) An order enlarging time within which the Appellant/Applicant may appeal against the decision of the Federal High Court presided over by the Honorable Justice I. N. Auta in Suit No.FHC/L/CS/1060/2004 NNPC VS. IPCO (NIGERIA) LTD delivered on 20th February, 2006.
(4) An order of this Honorable Court deeming the Notice of Appeal No. 2 dated the 5th March 2012 already filed and served as having been properly filed and served.
The grounds for the application were extensively stated and in support of the said motion, the Appellant/Applicant filed a 27 paragraph affidavit deposed to by one Jesutofunmi Olubanjo a legal practitioner of No. 1 Murtala Mohammed Drive, Ikoyi, Lagos. Attached to the said affidavit as Exhibit IPCO 1 to IPCO 4 are:
(a) Copy of a Ruling of the Federal High Court delivered on 20-2-2006 in Suit No. FHC/L/CS/1060/2004.
(b) Copy of the Notice of Appeal No. 1 dated 6-3-2006.
(c) Copy of a motion on notice dated 5/7/2006
(d) Copy of the Ruling of this court delivered on 20-2-2007 in Appeal No.CA/L/179/2006.
In opposing the application the Respondent filed six paragraph counter affidavit deposed to by one Yakubu Galadima, a legal practitioner in the firm of Babalakin and Co. It was followed up with a further counter affidavit of 7 paragraphs sworn on 27-2-2013 and deposed to by one Aina Ogunsuji (Miss).
The applicant also filed a further affidavit dated. 14-1-2013 deposed to by the same Jesutofunmi on behalf of the applicant and with Exhibit “A1” attached to it.
Written addresses were subsequently ordered, filed and served. The said written addresses were duly adopted and relied upon by the parties at the hearing of the application on 29-10-13. A brief history of this application is hinged on the fact that the Federal High Court, Lagos Division delivered a Ruling on 20-2-2006. The present applicant being dissatisfied with the ruling filed a Notice of Appeal (No.1) dated 6-3-2006. It also filed a motion on notice dated 5-7-2006 before this Court wherein it contains the Trinity prayers. The said motion was heard and granted by this court on 20-2-2007 and the applicant was granted 7 days to file its Notice of Appeal.
However, it was subsequently discovered that the said motion on notice dated 5-7-2006 was improperly signed “f” on behalf of Babalakin Fagbohungbe with no indication of the name of the counsel who signed it.
The Respondent in reaction to this anomaly filed a motion on notice dated 13-4-12 praying this court to set aside the said Ruling of 20-2-2007. The motion was heard by this Court on 15-10-2012 and the said Ruling granting the applicant leave to appeal was set aside on the ground that the order was made without jurisdiction based on an incompetent motion on notice.
The applicant subsequently filed this motion with trinity prayers and for an order deeming the Notice of Appeal No. 2 dated 5-3-2012 already filed and served as having properly been done. The Respondent reacted by opposing the application.
In his own written address, learned Senior Counsel for the applicant raised one sole issue for determination as follows:-
“Having regard to the facts disclosed in the affidavit in support of the applicant’s motion on notice, whether or not this Honorable Court ought to grant the reliefs sought on the motion paper.”
Arguing on the said issue, learned Senior Counsel referred to Order 7 Rule 6 and Order 7 Rule 10 of the Court of Appeal Rules 2011 and cited the following authorities on what is expected of an applicant seeking to appeal out of time. ODOFIN vs. AGU (1992) 3 NWLR (PT.229) 350 at 376 and NWORA vs. NWABUEZE (2011) 15 NWLR (Pt.1271) at 499.
Learned senior counsel then referred to the affidavit in support of the application particularly paragraphs 12 to 20 to show that there was no willful or inordinate delay in bringing the application, rather, that it was caused by Respondents application and the subsequent order of this court made on 15-10-12 setting aside its earlier order of 20-2-2007 granting the applicant leave to appeal.
On whether there are prima facie arguable grounds of appeal, learned senior counsel referred to the Notice of Appeal (No. 2) dated 9-3-2012 already filed in the court to show that the grounds contained therein are arguable as they raised serious factual issues on the propriety or otherwise of the Ruling of the Lower Court.
On the prayer for a ‘Deeming Order’, Learned Senior Counsel Cited the case of ERISI vs IDIKA (1987) 2 NSCC 1201 to submit that this court has the inherent jurisdiction to deem the applicants Notice of Appeal (No.2) dated 5-3-2012 as property filed and served.
Reacting to the Respondent’s counter affidavit Learned Senior counsel submitted that the reference to a Notice of Appeal (No. 2) dated 5-3-2012 in the motion on notice was as a result of the mistake of counsel in erroneously referring to the Notice of Appeal as one dated 5-3-2012 instead of the correct date of 9-3-2012. He relied on the case of OKAFOR vs. BENDEL NEWSPAPERS CORP (1991) NWLR (PT.206) at 651 at 666.
On the further counter affidavit filed by the Respondent, he submitted that the said further counter affidavit is an abuse of court process and should be struck out. This is because the grounds disclosed in the further counter affidavit is the same relied upon by the Respondent in its motion on notice dated 5-02-2013 and still pending before this court.
The Respondent in its own written address filed on 26-3-13 raised two preliminary issues, to wit:-
(1) Whether the substantive appeal is not academic
(2) Whether the instant application is competent.
On the first issue Learned Senior Counsel referred to the Notice of Appeal (No.1) dated 6-3-2006 to say that a cursory look at it would reveal that the applicant seeks an order that Justice Okeke (Retired) should read a purported Ruling. He added that the fact that Justice Okeke has retired is contained in the further counter affidavit and this was not controverted or denied by the applicant.
Therefore, he argues, the deduction to be made is that the substantive appeal is academic in nature and has no utilitarian value. He cited the following authorities in support.
National Insurance Corporation of Nigeria v. Power & Ind. Eng. Co. (1986) 1 NWLR (Pt.14) p.4 line 19,
Dike vs. Nzeko [1986] 4 NWLR (pt.34) p.155 Para E, Attorney-General Anambra State vs. Attorney-General Federation (2005) 9 NWLE (pt.931) pg, 572 @ pg. 607 para A & pg. 610 para E, Mamman vs. Salaudeen (2005) 18 NWLR (pt.958) 478 @ pg.500 B-C, Amah vs. Nwankwo (2008) All FWLR (pt.411) 879 at pg. 895, paras A-B Okulate vs. Awosanya [2000] 2 NWLR (PT.646) 530, Obi-Odu vs. Duke (No.2) (2005) 10 NWLR (pt.932) 720 @ pg.136 para B-C, Yusuf vs. Toluhi (2008) 14 NWLR (pt.1107) pg.243 para F, Olaniyi vs. Aroyehun (1991) 5 NWLR (Pt.194) Pg.652 @ 692 A-B.
On the second preliminary issue, learned senior counsel referred to Order 7 Rule 7 and 10 of the Court of Appeal Rules to submit that the applicant did not comply with their provisions in bringing this appeal because the proposed grounds of appeal as well as an order refusing grant of leave in the Lower Court was not exhibited and this is fatal to the application. He cited in support the case of AFOLABI vs. ADEKUNLE (1983) 14 NSCC 398 at 405 and UNIVERSITY OF LAGOS VS. AIGORO (1985) 1 NWLR (PT.1) 143.
Dwelling on the Trinity Prayers in the Application learned Senior Counsel raised the sole issue for determination as:-
“Whether this Honorable Court ought to grant the reliefs sought by the Applicant?”
Herein learned counsel submitted that a look at the affidavit in support of the application show that the applicant have failed to give any cogent reason in support of the motion as to warrant this court to grant it; citing ODOFIN vs. AGU (1992) 3 NWLR (PT. 229) 376. He added that the improper signing of the Notice of Appeal and/or motion for leave to appeal does not justify the grant of extension of time to appeal and the same goes with the setting aside of an earlier ruling of this court because they are not cogent reasons. He added that briefs of argument were filed and exchanged between 2007 and 2009 but this application was filed on 23-10-12 that is over three years after the last brief was filed and in this regard, delay ought to defeat such an application for extension of time. He relied on DOLARIMA vs. YALE (2009) 6 NWLR (PT.1137) 427 and MESANGAN vs. GOVERNOR ONDO STATE (2005) 12 WRN 113 – 114.
On prayer 2 in the application which is ‘Leave to Appeal’, Learned Senior Counsel submitted that the applicant did not exhibit its proposed Notice of Appeal and that renders the application incompetent. He cited IFEKANDU vs. UZOEGWU (2008) 15 NWLR (PT.1111) 591 and DFSG vs. GALMAS INT’L LTD 2 (2011) 4 NWLR (PT.1184) 378.
Learned Counsel for the applicant also has a reply to the Respondent’s written address and his submissions therein shall be addressed as the need arises in this ruling.
First on the preliminary issues raised by the respondent. The law is firmly settled that where a question before the court is entirely academic speculative or hypothetical an appellate court would decline to decide the point because the court is enjoined to adjudicate between parties on the basis of their compelling legal interests and never to engage in mere academic questions or discourse. See ONOCHIE vs. ODOGWU (2006) 6 NWLR (PT.975) 65; JULIUS BERGER (NIG) LTD vs. FEMI (1993) 5 NWLR (PT.295) 612; ALLI vs. ALESINLOYE (2000) 6 NWLR (PT.660) 177 and NKWOCHA vs. GOVERNOR ANAMBRA STATE (1984) 6 SC 362. Learned Senior Counsel had hinged his argument on the fact the Justice Okeke having retired from service, the order being sought by the applicant in his Notice of Appeal (No. 1) to the effect that the learned Judge should be ordered to read his already prepared Ruling becomes an order in vain and renders the substantive appeal fruitless.
A perusal of the said Notice of Appeal (No.1) however shows that there are three reliefs contained therein, therefore, the fact that one of the reliefs may be unenforceable does not render the whole appeal worthless or an academic venture.
Even if it is one relief left in the Notice of Appeal, it can still justify the hearing and determination of the issue or issues associated therewith. To my mind therefore the appeal cannot be said to have lost it’s utilitarian value on that ground alone.
On the issue of non compliance with Order 7 Rule 7 and 10(2) of the Rules of this Court. The said Rules provide thus:-
Order 7 Rule 7:- The Applicant for leave to appeal from a decision of a Lower Court shall contain copies of the following items namely:-
(a) Notice of motion for leave to appeal (form 5)
(b) A certified true copy of the decision of the court below sought to be appealed against.
(c) A copy of the proposed ground of appeal and;
(d) Where leave has been refused by the Lower Court, a copy of the order refusing leave.
10(2) “Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard when time is enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
I have gleaned through the applicant’s motion on notice and the document attached to the affidavit in support and I find that that requirement that is lacking is a copy of the proposed grounds of appeal.
This is however cured by prayer 4 in the motion paper wherein the applicant seeks to deem a Notice of Appeal already filed and served. Though this by all means is not tidy or in full compliance with the Rules which requirement is a copy of the proposed notice of appeal, it will however not be out of place to treat it as an irregularity that should not be allowed to defeat the aim of the applicant who eagerly seeks to exercise his right of appeal. In other words there seems to be a substantial compliance with Order 7 Rule 7. As per Order 7 Rule 10, the issue raised therein will be properly addressed in the course of determining the propriety of this application.
Now to the application for the trinity prayers, the sole issue raised by both parties is whether this court ought to grant the reliefs sought by the applicant. Where an appeal requires leave and the appellant is also out of time within which to appeal. He is required to file an application to seek the following reliefs to wit:- (a) Extension of time to seek leave to appeal; (b) Leave to appeal; and (c) Extension of time to file notice and grounds of appeal. In considering the application, the applicant must satisfy the following conditions” (i) good and substantial reasons for failure to appeal within the time prescribed and (ii) grounds of appeal which prima facie show good cause why the appeal should be heard. See Order 7 Rule 10(2) earlier reproduced. See also IDRIS vs. AUDU (200) 1 NWLR (PT.908) 612; FRANCIS vs. CITEC INTERNATIONAL ESTATE LTD (2011) LPELR (8806) CA. ODOFIN vs. AGU (1992) 3 NWLR (PT.229) 350 and NWORA vs. NWABUEZE (2011) 15 NWLR (PT.1271) 467.
The applicant in trying to justify the grant of this application deposed to paragraph 18 to 21 of the affidavit in support as follows:-
– On discovering the Appellant/Applicant’s motion on notice for the grant of trinity prayers on 5th July 2006 was improperly signed the Respondent filed a motion on notice dated 13th April 2012 praying this Honorable Court to set aside its ruling on 20th February 2007 which granted the Appellant/Applicant leave to appeal against the decision of the Lower Court.
– The Appellant/Applicant motion to set aside the ruling delivered by this Honorable Court on 20th February 2007, which granted the Appellant/Applicant leave to appeal was heard and granted by this Honorable Court on 15th October 2012 on the grounds that the orders of court granting the Appellant/Applicant leave to appeal, was made without jurisdiction.
– This Honorable Court in the same ruling of 15th October 2012 also granted the Appellant/Applicant leave to re-file the previous application such that the Appellant/Applicant’s appeal can be properly brought this Honorable Court.
– The Appellant/Applicant is still desirous of appealing against the decision of Honorable Justice I. N. Auta delivered on 20th February 2006 on grounds other than the grounds of law.
The Respondent in opposing the application deposed in paragraph 4(i-iii) of the counter affidavit as follows:
4. I verily believe as a fact that this application ought to be refused by this Honorable Court for the following reasons:
i) From my painstaking perusal of our Case File, the only Notices of Appeal (which have been filed by the Applicant and served on the Respondent’s Counsel) are Notice of Appeal (No.1) dated 6th March 2006 and Notice of Appeal (No.2) dated 9th March 2012. The Applicant specifically alluded to this fact in paragraph 20 of the Applicant’s Affidavit in support of its motion dated 23rd October 2012 seeking to amend its Notices of Appeal (No.1) dated 6th March 2006 and (No.2) dated 9th March 2012.
ii) In the light of this background, it is factually incorrect that there is another Notice of Appeal (No. 2) dated 5th March 2012 [referred to by the Applicant in Paragraph 23 of the Applicant’s Affidavit for which it presently seeks leave (by the instant application) to regularize its fitting and service. Indeed, no such Notice has been filed by the Applicant or served on the Respondent.
iii) By reason of the circumstance in the preceding sub paragraphs, I believe, by virtue of my practice as a Legal practitioner, that the instant application dated 23rd October 2012 seeking to validate the filing and service of Notice of Appeal (No. 2) dated 5th March 2012 may not be granted by this Honorable court.
From my understanding, the main reason for opposing the application is based on the fact that while the applicant referred to a Notice of Appeal (No 2) dated 5th March 2012 in paragraph 23 of the supporting affidavit, the court’s record did not show the existence or filing of such process by the applicant. I will address this issue later.
However, on whether affidavit in support contains good substantial reasons for failure to appeal within the prescribed period. The facts deposed to in the applicants affidavit particularly paragraphs 18 to 20 show that the delay was not deliberate or borne out of negligence or tardiness but rather borne out of the fact that a notice of appeal earlier filed pursuant to the order of this court made on 20-2-2007 was later set aside on 15-10-2012 on the ground that the motion on notice through which the leave to file Notice of Appeal was granted was incompetent having not been properly signed by a legal practitioner as required by law. Upon the setting aside its earlier order by this court on 15-10-2012, the applicant filed this present application on 23-10-2012 that is eight days after the order of setting aside. To my mind therefore, it will be out of place to hold that the applicant is guilty of undue delay in bringing this fresh application for leave to appeal. What is more, the act of signing the process wrongly was the mistake of counsel which cannot justify a deprivation of the right of the application to exercise its right of appeal. In a number of authorities it has been held that in an application for ‘extension of time to appeal, inadvertence of counsel is acceptable as a good and substantial reason for failure to appeal within time. See DOHERTY V. DOHERTY (1964) 1 ALL NLR 299; SHANU vs. AFRIBANK (NIG) PLC (2000) 10-11 S C 1 and OGBOGORO vs. OMENUWOMA (2005) 1 NWLR (PT.906) 1.
On the issue whether the grounds of appeal show prima facie good cause why the appeal should be heard.
In this regard Learned Senior Counsel for the applicant relied on the case of IKENTA BEST (NIG) LTD vs. A. G. RIVER STATE (2008) 6 NWLR (PT.6084) 612 where it was held that:-
“An applicant for extension of time within which to appeal must show that he has arguable grounds of appeal and not a frivolous appeal. Although, he is not expected to show that the appeal will succeed; he will nevertheless exhibit good grounds showing reasonable prospects of success in the appeal.”
This indeed is the true state of the law and equally in ENYIBROS FOOD PROCEESING CO. NIG VS. N.D.I.C. (2007) 9 NWLR (PT.1039) 216 or (2007) 3 SC (PT.11) 175 the Supreme Court in interpreting Order Rule 4(1) and (2) of the Court of Appeal Rules 1981 which is akin to order 7 Rule 10(2) of the Court of Appeal Rules 2011 held that:
“It is settled that the duty of the appellate court in the consideration of the grounds of appeal proposed by the applicant and filed in support of the application for leave is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is therefore not the duty of the court of that stage to decide the merit of such grounds as filed in supply of the application for to do so would amount to deciding the substantive matter in an interlocutory application.”
See IBODO VS. ENAROFIA (1980) 5 SC 42; UNIVERISTY OF LAGOS VS. OLANIYAN (1985) 1 NWLR (PT.1) 156; OBIKOYA VS. WEMA BANK LTD (1989) 1 NWLR (PT.96) 157; HOLMAN BROS (NIG) LTD VS. KIGO (NIG) LTD (1980) 8 – 11 SC 43; EGBE VS. ONOGUN (1972) 1 ALL NLR (PT.1) 95 and OJUKWU V. GOVERNOR OF LAGOS STATE (NO.1) (1985) 2 NWLR (PT.10) 806.
In the instant case the ground of appeal as contained in the Notice of Appeal sought to be relied on and filed on 9-3-2012 reads thus:-
“The learned trial judge of the lower court misdirected himself on the facts when he found as a fact that…. “The Honorable Chief Judge [of the Federal High Court] transferred the whole case to be heard de novo.”
PARTICULARS OF ERROR
(i) There was no record or evidence whatsoever before the learned trial judge of the Lower Court to support the finding of fact that the chief Judge of the Federal High Court transferred the matter to be heard de novo.
(ii) On the contrary, the records of the court clearly indicated that the purpose for which the case file was
Transferred to the learned judge of the Lower Court was for the purpose of heaving and determining the respondent’s application dated 29th day of November 2005.”
The above ground of appeal to my mind did show prima facie good cause why the appeal should be heard on the merit without recourse to unnecessary clogs.
Now prayer 4 in the motion paper seeks an order of this court to deem the Notice of Appeal (No2) dated the 5th day of March 2012 already filed and served as having been properly filed and served.
Learned Senior Counsel for the applicant in this regard found support for the said prayer in the case of ERISI vs. IDIKA (1987) 2 NSCC 1201 where it was held that this court had the power under its inherent jurisdiction to deem the notice and grounds of appeal filed before the application for extension of time for leave to appeal was heard as duly filed and served. Much as this authority seem to be at logger heads with Order 7 Rule 7 of the court of Appeal Rules 2011 which requirement is that a copy of the proposed Notice of Appeal shall be attached to the application for leave to appeal; the decision in ERISI vs. IDIKA Supra stands firm as the current state of the law (at least for now) and this court is bound to follow it.
However, the ground for opposing the application as deposed to in the respondent’s counter affidavit particularly in paragraph 4(i – iii) earlier reproduced seems to stand strong. Prayer 4 in the applicants motion under consideration reads thus:
(4) AN ORDER of this Honorable Court deeming the Notice of Appeal NO. 2 dated the 5th day of March 2012 already filed and served as having been properly filed and served.”
This was further confirmed in the applicant’s affidavit in support wherein it was deposed to in paragraph 23 as follows:-
“I am aware that the Appellant/Applicant’s Notice of Appeal No. 2 dated 5th of March, 2012 already filed before this court discloses prima facie arguable grounds of appeal on the propriety of the decision made by the Honorable Justice I. N. Auta on the 20th day of February 2006.”
I have perused the case file and the records of this court and failed to find or locate such Notice of Appeal dated 5- 3-2012. What is available are the Notice of Appeal (No.1) dated 6/3/2006 and Notice of Appeal (No 2) dated 9/3/2012.
A court’s power is circumscribed by the reliefs sought by an applicant and will not unnecessarily embark on a voyage of discovery except in situations where there is need for ancillary reliefs to be granted but which must flow from the main relief sought. Thus having not seen any Notice of Appeal (NO 2) Dated 5/3/12 either attached to the affidavit in support as an exhibit or even in the file (if one may go the extra mile) I have no option than to refuse prayer (a) in the motion paper and it is accordingly struck out.
I therefore order as follows:
(1) Time is hereby extended to today within which the applicant may seek leave to appeal against the decision of the Federal High Court Presided over by Honorable Justice I. N. Auta in suit No. FHC/L/CS/1060/2004. NNPC vs. IPCO (NIG) LTD delivered on 20th February 2006.
(2) The applicant is hereby granted leave to appeal against the said decision.
(3) Time is hereby extended to the …. within which the Applicant may file its Notice and Grounds of Appeal.
N20,000 cost is awarded in favour of the Respondent.
MOTION ON NOTICE DATED AND FILED ON 23/10/12 FOR LEAVE TO AMEND NOTICE OF APPEAL (NO 1) DATED 9/3/12 AND NOTTCE OF APPEAL (NO 1) DATED 6/3/2006
The Appellant/Applicant had by a motion on notice dated and filed on 23/10/2012 prayed for an order of this court as follows:-
1. AN ORDER granting leave to the Appellant/Applicant to amend Notice of Appeal (NO 2) dated 9th March 2012 and the earlier filed Notice of Appeal (No 1) dated 6th March 2006 by substituting both Notice of Appeal with the proposed Amended Notice of Appeal annexed as Exhibit NR/7 to the affidavit in support of this application.
2. AN ORDER directing that the Record of Appeal/Proceedings compiled for the Notice of Appeal dated 6th March 2006 and the Supplementary Record dated 18th June 2009 should be used in determining the Amended Notice of Appeal.”
Copious grounds were stated for the application and in support thereof is 30 paragraph affidavits deposed to by one Jesutofunmi Olabanjo, a legal practitioner of No.1 Murtala Mohammed Drive, Ikoyi, Lagos. Ten Exhibits were attached to the said affidavit in support of the application.
The Respondent opposed the application and accordingly filed a 16 paragraph counter affidavit deposed to by one Yakubu Galadima, a legal practitioner of No 43A Afribank Street, Victoria Island, Lagos.
There is also further counter affidavit deposed to by one Aina Ogunsuyi.
Written address were subsequently ordered, filed and served and the parties adopted their respective written addresses at the hearing of the motion on 29/10/13. For the applicant it was submitted that the Rules of this court permits the applicant to amend it’s Notice of Appeal by virtue of Order 6 Rule 15. Learned Senior Counsel also cited some authorities in support.
Also relying on the cases of OGBORU vs. UDUAGHAN (2012) 11 NWLR (PT.1311) 357 at 380 – 381, he submitted that where an appellant filed several Notices of Appeal, he can bring an application to consolidate the several Notices of appeal into one single consolidated Notice of Appeal. He added that on the authority of DAIRO vs. FRN (2012) 16 NWLR (PT 1325) 129 at 167 an application to consolidate both Notices of Appeal can be made either formally or through the brief of argument.
Consequently he argues, this court can make an order for the amendment of Notice of Appeal NO. 2 dated 9th March, 2012 and Notice of Appeal NO 1 dated 6th March 2006 by substituting both Notice of Appeal with the proposed Amended Notice of Appeal annexed as EXHIBIT NR/7.
For the Respondent, this is an abnormal application because Order 6 Rule 15 under which the application was brought relates only to amendment of Notice of Appeal and does not include “substitution” of Notice of Appeal. Learned Counsel added that none of the authorities relied upon by the applicant support the relief being sought.
It was learned counsel’s further contention that the appeals filed by the applicant vide its notice of appeal (No.1) dated 3/6/2006 is incompetent and as such no valid proceedings can be premised on it.
This court has an unfettered discretion to allow an amendment of the Notice of Appeal at any time before the hearing of the appeal. It has however necessary to ensure that such amendment should not be made to overreach the Respondent but only to serve the end of justice and fairness and ensure that complaints of appellant against the judgment are laid and ventilated before the court. See FBN PLC vs. MAY MEDICAL CLINIC AND DIAGNOSTIC CENTRE LTS (2001) 9 NWLR (PT 717) 28 at 40; PHARMOTEK INDUSTRIAL PROJECTS LTD vs. BAYO OJO (1996) 1 NWLR (PT.359) 332, OKPALA V. IBEME (1989) 2 NWLR (PT.102) 208.
However, once the original or the first Notice of Appeal is not validly filed, it is incompetent and there is nothing to amend, because an incompetent Notice of Appeal cannot be amend. See OKOLI vs. AJOSE (1994) 8 NWLR (PT.362) 300.
In NWAIGWE vs. OKEKE (2008) 13 NWLR (PT.1105) 445 it was held by the Supreme Court that a fundamentally defective document such as a Notice of Appeal cannot be amended so as to infuse live into it. In other words a fundamentally defective notice of Appeal cannot be cured by an amendment of same. See also OKETIE vs. OLUGBOR (1995) 5 SCNJ 217; and THOR LTD vs. FIRST CITY MONUMENT BANK LTD (2002) 2 SCNJ 85.
In the instant application, the applicant’s prayer is for leave to amend two previously existing Notice of Appeal by substituting them with the proposed amended Notice of Appeal annexed as Exhibit NR/7 to the affidavit in support.
This to my mind is not only novel but seemingly abnormal. It is enough to amend one of them but to simultaneously amend the two by substituting them with another proposed Notice of Appeal. I cannot help but look askance at the import, intent and destination of the said prayer in the motion paper. For there to be a proper amendment, it presupposes the existence of a valid Notice of Appeal not Notices of Appeal and such amendment is allowed for the purpose of correcting errors, mistakes or omissions in the pre-existing Notice of Appeal, hence an amendment dates back to when the original Notice of Appeal was filed just like in amendment of pleadings.
Learned senior counsel for the applicant had relied on the cases of OGBORU vs. UDUAGHAN supra and DAIRO vs. FRN Supra to justify his prayer for amendment by substitution. I am however inclined to agree with the submission of learned counsel for the Respondent that the two authorities are not applicable to the instant application because they relate to consolidation of two or more Notices of Appeal and not for Amendment by substitution. Therefore based on the two aforementioned authorities, the applicant is free to apply for an order to consolidate the two existing notices of appeal (if they are found valid) and not to create an entirely new Notice of Appeal via an amendment and substitution.
I therefore find this application difficult to grant. It is refused and the application is hereby dismissed with N20,000 in favour of the Respondent.
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the ruling just delivered by my learned brother SAMUEL CHUKWUDUMEBI OSEJI, JCA.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.
I too refused the application and it is hereby dismissed with N20,000 in favour of the Respondent.
TIJJANI ABUBAKAR, J.C.A.: I read before now the ruling prepared by my learned brother OSEJI, JCA, I am in complete agreement with him, he analysed the issues involved, I accept his reasoning, I adopt his conclusion in the lead ruling as my own.
I also refuse the application accordingly and dismiss it; I abide by all consequential orders.
Appearances
D. Obidiegwu with brief of B. FagbonhuluFor Appellant
AND
O. Akon SAN with O. Awonuga and T. Olutunfeshe (Miss) and T. AdigunFor Respondent
