NEWSGATE COMMUNICATIONS LIMITED & ORS v. DA. BULUS DARENG (2013)

NEWSGATE COMMUNICATIONS LIMITED & ORS v. DA. BULUS DARENG

(2013)LCN/6200(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of May, 2013

CA/J/97/2011

JUSTICES

RAPHEAL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

1. NEWSGATE COMMUNICATIONS LTD
2. MR. NANYAH ANDREW DAMAN (JP).
3. RIFKATU SOLOMON
4. MRS YUWANA NANYAH (JP)
(Carrying on Business as MINJY Ventures)
5. PATIENCE ADAMS Appellant(s)

AND

DA. BULUS DARENG Respondent(s)

RATIO

THE DUTY OF THE COURT WHEN IT IS FACED IN ANY MATTER WITH ADVERSE APPLICATIONS AND ONE IS SEEKING TO TERMINATE A PROCEEDING INCLUDING AN APPEAL EITHER FOR NON-COMPLIANCE WITH THE RULES OF THE RELEVANT COURT OR SUBSTANTIVE LAW AND THERE IS ANOTHER ONE SEEKING TO REMEDY OR RESCUE THE CASE OR A PROCESS OR PROCEEDING FROM THE DESTRUCTIVE EFFECT OF THE ALLEGED NON-COMPLIANCE OR BREACH

WHETHER OR NOT A FUNDAMENTALLY DEFECTIVE DOCUMENT CAN BE AMENDED

It is settled law that you cannot amend a fundamentally defective document such as a notice of appeal so as to infuse live into it. In other words, a fundamentally defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one which in the eyes of the law is non-existent or dead. See AROHINAWHI V. OTERI (1984) 5 SC 38; ATUYEYE v. ASHAMU (1987) 15 C 333 AT 358 (1987) 1 NWLR (PT. 49) 267.”
See also (1) GLOBAL TRANSPORT OCCEANIC S.A. & ANOR VS FREE ENTERPRISES NIGERIA LIMITED (2001) 5 NWLR (PART 706) 426 AT 438 F- G.
(2) AKANBI ENITAN & ORS V THE STATE (1986) 3 NWLR (PART. 30) 604 AT 609. A – B per OPUTA JSC. PER IGE, J.C.A.

PETER OLABISI IGE J.C.A. (Delivering the Lead Ruling): This is an application brought by the Appellants/Applicants dated and filed the 7th day of February, 2013, pursuant to section 15 of the Court of Appeal Act 2004 and ORDER 7 Rules 1 & 10(1) of the Court of Appeal rules 2011 and under the inherent jurisdiction of this court praying for the following:-

“1. An order granting leave to the Appellants to amend the Notice and Grounds of Appeal, dated the 1st July 2010, and filed by the Appellants on the 1st day of July 2010, by:

(a) Striking out ground 3 of the original Notice and grounds of appeal, of 1st July 2010;

(b) Filing additional Grounds of Appeal, as Grounds 3 – 6, and inserting an alternative relief in terms of the Amended Notice and grounds of Appeal.

2. An order granting leave to the Appellants to amend the Appellants’ brief of Argument dated the 7th day of February, 2012 and filed on the 8th day of February, 2012, by substituting the said Brief with the Appellants Amended Brief of Argument.

3. An Order of Court deeming the Appellants’ Amended Notice and Grounds of Appeal, and the Appellants Amended Brief of Arguments as having been duly filed and served.

4. AND FOR SUCH FURTHER ORDER (s) as this Honourable Court may deem fit to make in the circumstances”

The application is predicted on the following grounds to wit:-

“1. While preparing the Appellant’s brief of arguments counsel, who PREPARED THE Appellants brief of argument, mistakenly argued the issues for determination as arising from ruling of the court on the Appellants’ notice of preliminary objection, instead of the judgment of the court upon which the Notice of Appeal was based.

2. In the course of re-appraising the appeal, in December 2012 as part of the practice of the office, counsel discovered that the brief of argument in respect of the appeal filed on the 1st of July 2010, did not fully address the issues that arose in the judgment.

3. The Appellants’ brief of argument partially addressed the complaint against the judgment of the court, and partially against the ruling of the court striking out the Appellants notice of preliminary objection.

4. In preparing the brief, S.S. Obende Esq. he was under the mistaken belief that the notice of appeal was against the entire conduct of the proceedings of the court.

5. That on a careful reading of the notice of appeal, and the brief of argument, he discovered that the notice of appeal is against the judgment of the court delivered on the 30th June 2012.
6. That the notice of appeal did not adequately address the Appellants complaint against the judgment of the court.

7. That the original notice of appeal was filed by the Appellants former counsel-Jim Gotom Esq. who is now engaged as Secretary of Kanke Local Government Area.

8. There is the need to file additional grounds of appeal, and an alternative relief in the notice and also to strike out ground 3 of the original notice and grounds of appeal, in order to be able to adequately address the issues in controversy between the parties.

9. That the default necessitating this amendment is occasioned by the fault of S.S. Obende Esq., who has settled the brief for the Appellants, without adverting to the fact that the arguments contained their in rerated to the motion filed by the Appellants’ former counsel, whereas the notice of appeal is in respect of the judgment of the court.

10. The mistake is entirely of counsel and done out of human error.

11. The grant of this application will serve the interest of justice.”

The application was supported by 18 paragraphs Affidavit sworn to by the 2nd Appellant/Applicant with three exhibits attached marked as “MA1”, “MA2” and “MA3” respectively.

On 18th day of February 2013, the Respondent swore to Counter Affidavit in opposition to the Appellant motion on Notice dated and filed 2013 now under consideration. It consists of 10 paragraphs. Upon the service of the said counter Affidavit on the Appellants/Applicants the latter filed FURTHER AND BETTER AFFIDAVIT in support of their application in apparent reaction to the Respondents Counter Affidavit.

The application was argued on 20th day of February, 2013. The learned counsel to the Appellant stated that the application is seeking Orders of this court as contained in the motion papers. He relied on the Affidavit in support and Exhibits attached thereto. He also relied on the further and Better Affidavit filed in response to the counter Affidavit of the Respondents. He submitted that this court has the discretion to grant the reliefs sought in his motion on Notice under the Rules of this court. The learned counsel to the Appellants/Applicants stated that in the course the preparation of the Notice and Grounds of Appeal the learned counsel who handled it was under the mistaken belief that the Notice of Appeal was against the entire conduct of the proceedings and that it was later discovered by learned counsel that the appeal was supposed to be against the Judgment of the lower court delivered on 30th day of June, 2010. That the existing Notice of Appeal did not adequately address the complaints at the Appellants against the said judgment. According to Obende Esq., counsel for the Appellants the original Notice of Appeal was filed by Jim Gotom Esq. who was the former learned counsel to the Appellants. He also stated that while he was preparing the Brief of Argument of the Appellant he was under the impression that the Notice of Appeal was against the entire conduct of the proceedings at the court below, hence the real reason for the appeal was not captured. The learned counsel also informed the court that upon reappraisal of the Notice and Grounds of appeal it is necessary to amend the Notice and Grounds of the Appeal filed by the Appellants/Applicant. That it is now necessary to amend the Notice and grounds of Appeal as well as the Appellants’ Brief of Argument. He submitted that this court can allow amendment of the Notice and Grounds of appeal and the Appellants Brief of Argument. He relied on the case of OLORO v. FALANA (2011) 17 NWLR (PART 1275) 207.

In his reaction to the counter Affidavit filed by the Respondent against the application S. S. Obende Esq., submitted that the content of the Counter/Affidavit could not scuttle the discretionary powers of this court. According to him the reasons for the application has been adequately explained in the Affidavits in support of the Motion on Notice. He again relied on the case of OLORO v. FALANA supra. He stated that grounds 1 and 2 of the proposed Amended Notice and Grounds of Appeal relate to the Judgment of the lower court. He submitted that once there is a ground of appeal that attacks the jurisdiction or Judgment of a lower court such a ground of appeal is competent. He relied on the cases of KENNEDY v. INEC (2009) 1 NWLR (PART 1123) 614 at 635 – 636 AND OBI VS ACHIBONG (2010) 2 NWLR (PART 1179) 460. He urged this court to grant the application in the interest of substantial justice.
In opposing the application the learned senior counsel to the Respondent Sir. G. Ofidile Okafor, SAN, informed the court that the Respondent filed Counter Affidavit sworn to in the Registry of this court on 18th day of February, 2012 with two Exhibit’s attached namely the judgment of the lower court and the Notice of Preliminary objection filed by the Respondent pursuant to order 10 Rule 1 of the Court of Appeal rules 2011.
The learned silk stated that an application to amend will ordinarily not be opposed if it does not or will not cause injustice or prejudice to the other party. It will also not be opposed where according to the learned silk the amendment is sought in good faith. He submitted that the existing Notice of Appeal must be valid or there must be at least a competent ground of appeal to sustain the application to amend it. He relied on the case of CHIEF EBENEZER AWOTE VS OWODUNNI (1986) 5 NWLR (PT 46) 941 AT 950.
The learned senior counsel then referred this court to the ground of appeal on pages 318-320 of the Record of Appeal and Exhibit 2 attached to the Respondent’s counter Affidavit. The Learned silk has no quarrel with the substitution of ground 3 since it is being withdrawn or removed.
The learned silk strongly submitted that grounds 1 and 2 of the Original Notice and Grounds of Appeal did not emanate from the Judgment of the lower court. He further submitted that there are no grounds in the existing Notice and grounds of Appeal to sustain the amendment sought by the Appellants.
Replying on point of law S. S. Obende Esq. submitted that no leave is required to appeal against or on jurisdiction. He relied on the case of ADERIBIGBE V. ABIDOYE (2009) 10 NWLR (PT. 1150 592 AT 615.

The above represents the Motion on Notice before the court and the submissions of learned counsel to the parties on whether to grant or refuse the Appellants’ Application to amend their processes.
The learned silk has drawn attention to the fact that the Respondent had already filed Notice of preliminary objection pursuant to order 10 Rule (1) of this court against the Appellants appeal seeking to have the Notice and Grounds of Appeal struck out for being incompetent and to strike out the Appellants’ Brief of Argument, on 16th of March, 2012. It was date, 6th day of March 2012.

The law is firmly established that when a court is faced in any matter with adverse applications and one is seeking to terminate a proceeding including an appeal either for non compliance with the rules of the relevant court or substantive law and there is another one seeking to remedy or rescue the case or a process or proceeding from the destructive effect of the alleged non-compliance or breach, the application seeking to put an end to the suit or matter wilt be put on hold. This is to enable the court hear the application seeking to remedy the situation and see if it is possible to save the case from imminent collapse or termination. The further reason for this approach is that an application seeking to bring a case to terminal end would not be taken if the application seeking to sustain the suit or matter succeeds so at to avoid putting the cart before the horse. That is why the Apex court and this court have laid down guiding principles for consideration of such multiple applications. See NALSA & TEAM ASSOCIATES V. N.N.P.C (1991) 8 NWLR (PART 212) 652 AT 676 BC TO 677A where KARIBI – WHYTE JSC said:-
“It is an elementary and fundamental principle of our administration of justice to hear all applications properly brought before our courts. Accordingly where an application is properly brought before the court the principles of fair hearing demands that it should be heard on its merit; See Otapo v. Sunmonu (1987) 2 NWLR (pt 58) 587 SC. I agree entirely with the well settled proposition that where there ore two motions before a court requiring to be heard, the interest of justice demands that the motion the determination of which would save the substantive action should first be heard.
This principle is grounded on the reasoning that where the application succeeds, then the other application cannot be taken…..In the exercise of its discretion to hear application before it, the court is guided by considerations of doing justice between the parties, and to ensure ultimately that the dispute between the parties was decided on its merits. See KHAWAM V. ELIAS (1960) FSC 224 (1960) SCNLR 516.
Where in the exercise of its discretion application to dismiss the action was first heard resulting in the action being struck out, justice would not have been done to an applicant, whose application to regularize his appeal, the basis for the application to dismiss the appeal is still pending. This will tatmount to a wrongful exercise of discretion, See Abiefbe & ors V. Ugbodume & ors supra.”
The same principle surfaced in the case ATTORNEY-GENERAL OF THE FEDERATION V. A.I.C. LTD & ORS 1995 2 NWLR PART 379 388 at 397 E-F where KUTIGI JSC later CJN who read the leading judgment had this to say:-
“When the two motions came before us for hearing on 5th December, 1994 Professor Kasunmu Learned Senior counsel for the respondent/applicant insisted that his motion must be taken first since it was earlier in time and if granted there would be no further need for the appellant’s motion. It was then pointed out to him that since the appellant motion which is wider in scope also clearly covered his own, the two motions would be taken together beginning with appellant’s counsel. I would have thought that professor Kasunmu ought to have been aware of the general practice by now that where in the same case there are two adversely competing motions before a court one “constructive” and other potentially “destructive” the court will normally proceed to the former motion first unless it will be inequitable to do so, so that if it succeeds, there would be no need for the ratter motion which will then be withdraw and struck out accordingly.”

I am of the view that that is the situation we have in this appeal and that was the reason the Appellants were allowed to move their motion on Notice to amend their Notice and Grounds of Appeal.
There is no doubt that this court has enormous discretion to grant an amendment appropriately sought for in an appeal.

Order 4 rule 1 of Court of Appeal Rules 2010 which donates powers and duties of court in this regard Provides:-

“In relation to an appeal, the court shall have all the powers and duties as to amendment and otherwise of the High Court, including without prejudice to the generality of the foregoing words, in civil matters, the powers of the High Court in civil matters to refer any question or issue of fact arising on the appeal for trial before, or inquiry and report by an official of special referee……”

The Appellants exhibited the original Notice and Grounds of appeal and the proposed Amended Notice and Grounds of Appeal now being sought to bring in as amendment to the original Notice of Appeal. However the learned silk for the Respondent Sir Okafor SAN submitted that there are no valid grounds of appeal in the existing Notice and Grounds of Appeal to sustain the amendments sought to be made to the earlier Notice and Grounds of Appeal.
It is true and correct that the grounds of appeal contained in an original and existing Notice of Appeal sought to be amended must have constituents of a good ground of appeal which makes a direct challenge or complaint against the Judgment of the court appealed against. The reason is simple. If a Notice and grounds of appeal is defective or contains no valid or competent ground of appeal originally filed in the court below such Notice of Appeal and grounds cannot be cured by the filing of an Amended Grounds of Appeal. See. ODOEMENA NWAIGWE & ORS V. NZE EDWIN OKERE (2008) 13 NWLR (PT. 1105) 445 AT 474 C-F PER ONNOGHEN J.S.C. who held:-
“The issue of the filing of six additional grounds of appeal is a non starter as it amounts to an exercise in futility, there being no valid notice of appeal due to the absence of valid ground of appeal raising question of customary law for determination. Since there was no valid notice and ground of appeal to which any further grounds would have been added, the attempt at making the addition is to try to resurrect a dead horse. It is stone dead. The same reasoning also applies to the purported amendment of the original omnibus ground of appeal. It is settled law that you cannot amend a fundamentally defective document such as a notice of appeal so as to infuse live into it. In other words, a fundamentally defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one which in the eyes of the law is non-existent or dead. See AROHINAWHI V. OTERI (1984) 5 SC 38; ATUYEYE v. ASHAMU (1987) 15 C 333 AT 358 (1987) 1 NWLR (PT. 49) 267.”
See also (1) GLOBAL TRANSPORT OCCEANIC S.A. & ANOR VS FREE ENTERPRISES NIGERIA LIMITED (2001) 5 NWLR (PART 706) 426 AT 438 F- G.
(2) AKANBI ENITAN & ORS V THE STATE (1986) 3 NWLR (PART. 30) 604 AT 609. A – B per OPUTA JSC.
It is now necessary to examine the content of the Notice and Grounds of Appeal in terms of the grounds of appeal in existence in order to discern if those grounds are viable and competent to accommodate the amendment sought. The three existing grounds of appeal filed by the Appellants with their particulars are as follows:-

“GROUNDS OF APPEAL
1. The learned trial Judge erred in law when he assumed jurisdiction over the Appellants when the issue of service of Writ of Summons was challenged by the Appellants.

PARTICULARS
(a) The Appellants raised issue of non service of the writ of summons on them.

(b) The learned trial Judge did not consider the issue of service which is fundamental to jurisdiction.

2. The learned trial Judge erred in law when he refused to hear the preliminary objection of the Appellants on non service on them because there was no memorandum of appearance.

PARTICULARS

(a) Memorandum of Appearance can only be entered when there is service of originating process.

(b) The presence of a party or counsel on his behalf in court is not on evidence of service.

3. The learned trial Judge erred in Law when he held that Appellants did not place sufficient material before the court to grant them extension of time to file their defence.

(a) Appellants gave reasons why they did not file their defence within time.

(b) Respondents did not contest the reasons given, neither were neither were further Particulars demand. (Sic)

The appeal was targeted against the Judgment of T. D. NARON -J delivered on 30th day of June, 2010.

Pages 291 – 304 of the Record of Appeal in this case show that the Judgment appealed against was actually given on 30th June, 2010. A close perusal of the said Judgment discloses specific findings on issue concerning application to have the issue of non service of the writ of summons in the action on the Appellants considered by the trial court as well as the position of the court that the counsel who appeared for Appellants (Defendant at the lower) court did not enter appearance.
On page 292 of the Record the learned trial Judge said in his judgment thus:-

“The processes issued were served on the defendants, who through a counsel who did not enter appearance in the suit filed a Notice of preliminary objection. On the date fixed, counsel appeared and his attention was drawn to the fact that he had not entered appearance as required by the Rules of Court. He did not apply for an adjournment to regularize his position and the preliminary objection was struck out. No other Processes were filed by the Defendants.”

On Pages 293 – 294 of the Record the learned trial Judge also held concerning the defendants now Appellants thus:-

“In the forenoon of 25th of March, 2010, as earlier stated, the defendants filed a Notice of Preliminary objection. The grounds of the objection were that the writ of summons was not served personally on the defendants. No defence was exhibited and there was no application or enlargement of time to file one. The court was of the view that the defendants have not filed the mandatory Memorandum of Appearance and could therefore not be heard and the objection was struck out”
Lastly the trial court also held concerning the appellants on page 300 of the Record as follows:-
As earlier stated, the defendants though served did not file any defence though on two occasions counsel announced appearance for them and filed preliminary objections which were struck out and ever since counsel have not been forth coming. It is therefore clear that the defendants do not have a defence to proffer but rather are interested in the use of counsel to frustrate the prosecution of the case by the Plaintiff”
I am very certain in my mind that grounds 1 and 2 of the Notice and Grounds of Appeal filed on behalf of the Appellant by Jim Gotom Esq., against the judgment of Naron – J delivered on the 30th day of June, 2010 which Notice and Grounds of appeal can be found on pages 318 – 320 of the Record filed on the 1st day of July 2010 are viable, valid and competent grounds of appeal to which additional grounds of appeal can be added vide an amendment. The aforesaid grounds 1 and 2 of the original Notice and Grounds of Appeal have been retained as shown in the proposed Amended Notice and Grounds of Appeal Exhibit “MA2”. I have also examined the proposed additional grounds of Appeal sought to be incorporated into the original Notice and Grounds of Appeal that is grounds 3 – 6 as per Exhibit MA2. I am of the settled view that they are valid grounds of appeal which attack directly the various holdings and findings of the learned trial Judge.
The Appellants/Applicants have also in their supporting Affidavit paragraphs 4, 6, 9(1) and (h) 12, 13 and 14 thereof stated that it was a previous Learned counsel that prepared the original Notice and Grounds of Appeal. That it was when they briefed a new Counsel S. S. Obende Esq. that he now discovered that it would be necessary to amend the original Notice and grounds of Appeal filed earlier by Jim Gotom Esq. The Appellants further stated that the mistake in the preparation of the original Notice of Appeal and its grounds was that of counsel and it is now necessary to ask for the amendments now sought to be made to the said original Notice of Appeal.
A newly engaged Legal practitioner or learned counsel has the right to evaluate or Scrutinise the case of client who has just enlisted his services in order to see whether there is need for any amendment or restructuring of the client’s case.
See CHIEF ALIM ODUNSI APENA & ORS V. CHIEF NURUDEEN LAWAL AIYETOBI & ORS (1989) 1 NWLR (PART 95) 85 at 97 A – B AKPATA JCA (as he then was) who held:-
“When counsel are changed by parties they may seek to advise their clients in respect of their claim or defence as the case may be in quite different manner from the advice of their previous counsel. If in order to give effect to such an advice, a new averment or new facts are to be pleaded, then in an application to the court seeking leave to amend, the court must be informed of the circumstance. (See MRS OLU SOLANKE V. G. SOMEFUM & ANOR (1974) 1 SC 141 AT 149).This was exactly what the appellants did in their application before the learned trial Judge as evidenced by the affidavit in support of the application which I adverted to earlier in this Judgment.”
The Appellants have placed enough or sufficient materials before this court to entitle them to the amendments sought. The Respondent will not suffer any injustice if the amendments sought are granted. It is also clear from the processes already filed that the appellants have taken steps to obviate delay in the hearing of the appeal herein as they have separately filed an Amended Notice and Grounds of Appeal as well as Appellants.
Amended Brief of Arguments. The Appellants are also asking for deeming Order(s) for the aforesaid processes.
The amendment ought to be granted.
See ALHAJI AYODELE ALAWIYE V. MRS ELIZABETH ADETOKUNBO OGUNSANYA (2013) 5 NWLR (PART 1348) 570 AT 608 D -E per CHUKWUMA ENEH. J.S.C. who held:-
“To show positive commitment by the Applicant to diligently prosecute this appeal there is already filed and served the amended notice of appeal dated 28/5/2012 as well as the appellant’s brief of argument also dated 28/5/2012 – all for a deeming Order. Having found that Applicant has placed enough materials as I have posited herein to enable the court consider the instant application and find the respondent’s opposition to this relief as misconceived and so the relief is granted and time is hereby extended as prayed so that the applicant’s amended notice of appeal and the Appellant’s brief of argument already filed and served are deemed so property filed and served to day. And I so order”
In the result the Appellants/Applicants application dated and filed the 7th day of February, 2013 is granted as prayed.
Leave is hereby granted to the Appellants to amend the Notice and Grounds of Appeal dated 1st day of July, 2010 and filed on the 1st day of July, 2010 by striking out ground three thereof and filing additional grounds of appeal as grounds 3-6. The Appellants are also permitted to insert an alternative relief in terms of the Amended Notice and Grounds of Appeal.
Leave is also granted to the Appellants/Applicants to amend the Appellants Amended Brief of Arguments. The Appellants’ Amended Notice of Appeal and the Appellants Amended Brief of Arguments all already filed and paid for on 7th day of February, 2013 and served are deemed to have been properly filed and served to day. Costs of N10,000.00 is awarded in favour of the Respondent against the Appellants/Applicants.

RAPHAEL CHIKWE AGBO, J.C.A: I had read before now the ruling delivered by my learned brother Ige, J.C.A. I agree with him that the appellants had placed before the court sufficient materials to ground their prayers to effect the amendments sought in their notice of appeal and their brief of argument. The amendments sought should be allowed and I hereby allow them. I also allow their prayer for a deeming order. I abide by the order as to costs made in the lead ruling.

IBRAHIM SHATA BDLIYA, J.C.A: I have had the advantage of reading in draft the ruling just delivered by my Learned Brother, PETER OLABISI IGE, J.C.A. I entirely agree with his reasoning and conclusion contained therein. In the light of the foregoing, I also grant the application to amend the appellate Amended Brief of argument. I endorse the order as to cost in the leading judgment.

Appearances

S. S. Obende Esq., with him W. L. Jamcwat Esq.For Appellant

AND

G. Ofodile Okafor SAN with P. O. Tunyang Esq.For Respondent