In The Court Of Appeal


On Tuesday, June 22, 2021


Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal







RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): By a motion on notice filed on the 6th of January 2021 the Appellant/Applicant seeks the following order of Court viz:
1. AN ORDER of this Honourable Court granting leave to the Appellant/Applicant to file a new Notice of Appeal replacing the earlier Notice of Appeal filed on the 18th day of May 2018 and deemed as properly filed and served by the Ruling/Order of this Honourable Court delivered on Friday the 29th day of March 2019 details of which was contained in the copy of the said Order attached herewith.
2. AN ORDER further confirming the deeming orders of the Appellant’s Brief of Argument having been filed and served since the 18th day of May 2018 and so deemed by the said Order of this Honourable Court delivered on Friday the 29th day of March 2019.
AN ORDER extending the time within which to file the Notice of Appeal in the manner of Exhibit 3 attached to the Motion of Notice dated 18th of May 2018 as ordered by this Honourable Court in its said Ruling made on the 29th March 2019.
​AN ORDER deeming the said Notice of Appeal as being properly filed and served necessary fees having been paid and further deeming the Appellant Brief of Argument as having been properly filed and served.

The Motion is supported by an affidavit of twenty two (22) paragraphs deposed to by Oluwatosin Akingbeye, Litigation Officer of Sola Ebiseni & Associates Firm of Solicitor to the Appellant/Applicant of No. 2B L. A. School. 2 Junction, off Hospital Road, Akure.

​Annexed thereto are Exhibit 1 (Solicitors Letter to the Registrar Court of Appeal) from Sole Ebiseni & Association dated 9th December 2020; Exhibit 2 which is a certified true copy of the Ruling appealed; and Exhibit 3 which is a Notice of Appeal filed on the 18th of May 2018.

​In reaction to this application, the Respondent filed a Counter affidavit of thirteen (13) paragraphs deposed to by Oloja Juwon Semudara Legal Practitioner.
This Honourable Court ordered that the parties file written addresses.
The Appellant filed his written Address on the 29th of January 2021.
The Respondent filed his written address on the 1st of February 2012.
The Appellant filed a reply to the Respondent’s reply to the Appellant’s written address in support of motion on the 2nd of March 2021.

The fulcrum of the Appellant’s application is for a replacement of his Notice of Appeal earlier filed on the 18th of May 2018. But it was filed along with other processes on the 18th of May 2018.

From records, there is a Notice of Appeal dated and filed on the 5th of January 2021. Pages 236-242 of the Record of Appeal with eleven Grounds of Appeal (11).
There is nothing on the record to support that the Notice of Appeal was amended.
The Notice of Appeal attached to the present application is dated 18th May 2018 with eleven Grounds of Appeal.
There is no explanation for this disparity. Furthermore, the original Notice of Appeal sought to be replaced was not annexed to this application.
The application of the Applicant is akin to seeking an order of this Court to amend the Notice of Appeal.

​In paragraph seven (7) of the counter affidavit the Respondent deposed thus:
Paragraph 7 “That paragraph 6 of the supporting affidavit is false. I was not served with any package of Court processes save the motion on notice of 18/05/2018 and the brief of argument.”

There was no reply to this averment. The facts are deemed admitted.
Let me quickly say here that I have painstakingly read the respective written addresses, but it seems to me that, that issue is liable to dismiss this application in limine.
There is nothing in the Record of Appeal to suggest that another notice of Appeal was filed, save that filed on the 5th January 2021.

Exhibit 1 (Solicitor’s letter to the Registrar of the Court of Appeal) is dated December 9th 2020. It therefore emanated before the Notice of Appeal filed in support of this matter dated 5th January 2021.
On Exhibit 1 was hand written thus:
“There is no clean copy of Notice of Appeal filed on the Court fee except the one exhibited at the back of the motion filed on 18/5/2018.”

There is nothing in the Rules of this Court where it stipulates provisions that a party seeks an order to file a new Notice of Appeal. There is however a provision to amend a Notice of Appeal – Order 7 Rule 8 of the Court of Appeal Rules 2016.

​There is an extant Notice of Appeal which was filed on the 18th of May 2018, which was attached to an application.
This Court instructed the Applicant to produce clean copies within fourteen days but the applicant failed and/or refused to produce same.
He went on to file a totally different Notice of Appeal in 2021 – Pages 236-242 of Record of Appeal.

This Court’s ruling of the 29th of March 2019 is supposed to be predicated on the applicant’s application to appeal as an interested party. But is there anything to indicate that he filed the Notice of Appeal.

Curiously, from records, the amount paid in respect of fees – assessment on the process of 18/5/2018 was N4,100.00. If the Notice of Appeal had been filed (being N5,100 to be paid) the total sum should have been N9,200.
The Respondent had argued that there is no Notice of Appeal filed on 18th May 2018, which is the basis of the Court’s Ruling on 29th of March 2019.

The fact that the Applicant failed to produce clean copies of an alleged Notice of Appeal filed on the 18th of May 2018, even when directed to do so within a time limit, there was no Notice of Appeal before Court. UAC V. MACFOY (1961) 3 All ER. 1169; OSAFILE V. ODI (1990) NGSC.

The alternative prayer of the applicant is affected by same virus on the main relief. This is because the briefs of argument had been written and filed on the basis of the non-existing Notice of Appeal.
The order of this Court of the 29th of March 2019 had this to say inter alia viz:
The Appeal shall be heard upon the deemed Notice of Appeal, Appellant’s brief of argument and the record of Appeal in Appeal No …
What the application did in effect was to mislead this Court to deem an EXHIBIT as properly filed and served. Even when he was told to supply clean copies of the said exhibited Notice of Appeal, he failed to.
The penalty is that the Notice of Appeal relied on by the Applicant is not in existence. Moreso the Applicant cannot rely on the Notice of Appeal filed in 2021 which is in the Record of Appeal. All processes which the Applicant is seeking to be deemed cannot be, because you cannot put something on nothing. UAC Vs. MACFOY (Supra).
This application is fraught with mischief and irritating to the Respondent.
I refuse it and same is hereby dismissed in its entirely with N100,000 costs in favour of the Respondent.
Appeal No. CA/B/320A/2009 is hereby dismissed.

HAMMA AKAWU BARKA, J.C.A.: The Ruling just delivered was made available to me in draft.
After perusing the totality of the application and giving due consideration to the argument of learned counsel, I agree that the application is undeserving of being granted and consequently refuse same.
The end effect is that there is no Notice of Appeal upon which an appeal can be said to be situated upon. The appeal is dismissed and I make no order as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: My learned brother Rita Nosakhare Pemu, JCA availed me a draft copy of the ruling just delivered. Having gone through same, I cannot but agree with his Lordship that there is no merit in the application. It is hereby accordingly refused.
​In consequence, Appeal No, CA/320A/2009 is dismissed.


SOLA EPE SENI, Esq. with him, LAWRENCE ASO, Esq. and FEMI MEDUOYE, Esq. For Appellant(s)

Dr. O. T. SHEMUDARA, Esq. For Respondent(s)