OROJI INTERNATIONAL NIGERIA LIMITED & ANOR v. UNITY BANK PLC
(2019)LCN/12644(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of February, 2019
CA/S/27/2015(R)
RATIO
COURT AND PROCEDURE: WHERE JUDICIAL TECHNICALITIES OCCUR
“In the case at hand, the error sought to be corrected is one of such blunders that sometimes occur as humans. When they do occur, and it is obvious that it is by inadvertence or a clerical mistake, it will be unjust to hold that because the blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. See BENSON V. NIGERIA AGIP CO. LTD (1982) 5 S.C.1. Speaking on this, the Supreme Court in the case of OYEYEMI & ORS V OWOEYE & ANOR (2017) LPELR – 41903 (SC) had this to say: ‘Our duty as an Apex Court is to do substantial justice-stark justice, based on fairness which to all intent and purposes, seek to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and con. We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. The need to do substantial justice and avoid delving into the error of technicalities is well settled.'” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
1. OROJI INTERNATIONAL NIG. LTD
2. ALHAJI MOHAMMED DODO OROJI Appellant(s)
AND
UNITY BANK PLC Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Lead Ruling):
This application was filed by Appellants/Applicants on 30/5/2018 seeking principally an order of this Honourable Court granting leave to amend their further amended Notice of Appeal filed on 14/03/17 by substituting the words ‘Court of Appeal’ as appeared on paragraph 2 of the said Further Amended Notice of appeal with the words the ‘Court below’. The grounds upon which the application is predicated are:
(i) The Appellants filed their Notice of Appeal on the 12th December, 2014 which was amended pursuant to an order of this Honourable Court. The Appellants filed another application to amend the Amended Notice of Appeal which application was granted on the 18th July, 2017.
(ii) That after filing the Appellants’ Brief of Argument, it was discovered that “Court of Appeal” instead of “Lower Court” was inadvertently written in paragraph 2 of the Further Amended notice of Appeal.
(iii) It is imperative to apply for leave to amend the Further Amended Notice and Grounds of Appeal filed on the 14th March, 2017 as a result of the above typographical error. Hence, this application.
The application was supported by 3 paragraph affidavit with paragraph 3 having sub-paragraphs (a) – (i), deposed to by Adulleteef Idris Mohammed, Esq., of counsel. The applicant attached 4 annexures to the affidavit.
Respondent opposed the grant of this application and filed a 3 paragraph affidavit with paragraph 3 having sub -paragraphs (A)- (D), deposed to by one Ruth A. Jimoh.
Parties were ordered by this Court to file written addresses and in compliance thereof, the Appellants/applicants filed their appellant’s written address on 15/10/2018, the Respondent filed their written Address on 22/10/18 while Appellant filed a reply Brief on 30/10/18.
The Appellants/applicants in their written address distilled for determination of this application, a sole issue for determination and the issue is:
Whether this honourable Court can grant leave to amend their further amended notice of appeal.”
The Respondent in its written address also formulated a sole issue for determination thus:
“Whether this is an application that ought to be granted.”
In arguing the lone issue, learned counsel for the Applicants Mr. U. N. Ibekwe, Esq., submitted that the grant of this application is within the discretion of this Court and that the Court is empowered to grant this amendment at any time. Counsel cited the authority of Fisher V. Nnebedun (2011) ALL FWLR (Pt. 566) 18 614 at 616 paragraph d – c in support of his argument.
Counsel further submitted that as the notice of appeal is valid, it can be amended at any stage even where parties have filed and exchanged briefs and that this is so even where the adverse party filed preliminary objection, he should not be allowed to take advantage of the defect at the expense of the substance and justice of the case. Counsel cited the following cases in support of his submission.
1. First Bank of Nig. Plc. vs. May Medical Clinics & Diagnostic Centre Nig. Ltd. (2001) FWLR (Pt. 48) 1343.
2. Shanu V. Afribank (Nig.) Plc. (2002) FWLR (Pt. 23) 1221
3. Kayode V R.T.U.A.M.C (2016) ALL FWLR (Pt. 852) 1422 at 1441 – 1412.
On the part of the Respondent, the learned Mr. S.U. Nwoke, Esq., submitted that this application for amendment of the Further Amended Notice of Appeal is an acknowledgment of the incompetence of the Further Amended Notice of Appeal and that once a Notice of Appeal is invalid, it cannot be cured by amendment as the validity of originating process is a condition precedent and a sine quo non for the competence of the proceedings that follow. He contended that a notice of Appeal which is incompetent should not be amended in order to breathe life into a dead appeal.
Relying on the provisions of Order 7 Rule 2 (1) of Court of Appeal Rules, 2016, it was submitted that the consistent use of the word ?shall? makes it a mandatory requirement to state the part of the decision of the ‘Court’ complained of, the failure of which is fatal as the whole notice is hinged on a non-existing decision which renders it incurably defective.
Counsel cited the following authorities in support of his submission.
1. Mohammed v. Olawunmi & Or (1990) 4 SCNJ 23.
2. Kente V. Ishaku (2017) 70 (Pt. 1) NSCQR 1
3. Ada v. Hashimu (2017) LPELR – 42510
4. First Bank v. Maiwada (2003) All FWLR (Pt. 151) 2001 at 2015.
Learned Counsel summed up his argument urging us to refuse the application as it’s grant has the effect of over reaching the respondent having filed a preliminary objection challenging the competence of the notice of appeal, citing in support the case of AINA V. JINADU (1992) 4 NWLR (pt. 223) 91 at 105.
In Reply, it was contended by the Appellants/applicants that the provisions of Order 7 Rule 2 (1) was substantially complied with therefore the Further Amended Notice of Appeal is valid and competent and can be amended by the leave of this Court.
Further to this, learned counsel submitted that it is not in all circumstances that the word ‘Shall’ can be interpreted to mean mandatory. In some situations it can be interpreted to mean directory as held in NYAVO V ZADING (2016) LPELR – 40803 (CA) and Gambari V. Buhari (2009) ALL FWLR (Pt. 476) 458.
It was further submitted that strict adherence to rules of Court should not be allowed to hold justice to ransom at the expense of the substance of the case. He referred to the case of NWAKODO V OHAJURUKA (2010) ALL FWLR (PT511) 849. We were urged to discountenance the submission of the respondent and grant this application.
In this application, the Appellants/Applicants seek leave of this Court to further amend their Further Amended Notice of Appeal filed on 14/3/2017 and an order of this Court deeming the separately filed Second Further Amended Notice of Appeal as properly filed and served as well as a deeming order in respect of the Appellant?s brief of argument already filed.
It is trite that the grant of such an application is at the discretion of the Court and its goes without saying that like with any exercise of discretion, this not being an exception, the discretion must be exercised judicially and judiciously.
In the exercise of its discretion, the Court must consider relevant Rules of Court or the law or statutes that vest in it a discretion to exercise and then consider the depositions in the supporting affidavit vis a vis the depositions in a counter – affidavit, if any, in opposition to the application. The applicants depositions which are germane to this application are contained at paragraph 3 (a) – (h):
3. That I was reliably informed by Mukhtar B. Usman Esq., of Counsel to the Appellants/Applicants in our office at about 2:00pm on 24th May, 2018 which information I verily believe to be true as follows:
a. That on the 5th December, 2014, the Sokoto State High Court of Justice presided over by Honourable Justice D. B. Sambo delivered judgment in SUIT NO: SS/86/2007 in favour of the Respondent.
a. The Appellants/Applicants dissatisfied with the decision of the Sokoto State High Court of Justice presided over by Honourable Justice D.B. Sambo filed a notice of appeal on the 12th December, 2014 through their erstwhile counsel, Adewole Adebayo & Co. A copy of the said notice of appeal is annexed hereto and marked as Exhibit “A”.
b. That the erstwhile counsel to the Appellants/Applicants who handled the case at the lower Court, Adewole Adebayo & Co. were debriefed by the Appellants/Applicants and the law firm of Bunsiyam were briefed by Appellants/ Applicants to prosecute the appeal.
c. That upon a careful perusal of the judgment of the Lower Court, the Appellants/Applicants raised several other complaints against the decision of the Lower Court contained in the said judgment pursuant to which an application to amend the notice of appeal filed on the 12th December, 2014 was filed which application was granted. Attached as Exhibit “B” is the amended notice of appeal.
d. That the Appellants/Applicants filed another application to amend the Amended Notice of Appeal which application was heard and granted on the 18th July, 2017. A copy of the Further Amended Notice of Appeal is herein attached and marked as Exhibit “C”.
e. That after filing the Appellants’ Brief of Argument, it was discovered that “Court of Appeal” instead of “Lower Court” was inadvertently written in paragraph 2 of the Further Amended notice of Appeal.
f. That it is imperative apply for leave to amend the Further Amended Notice and Grounds of Appeal filed on the 14th March, 2017 as a result of the above typographical error, hence, this application. The Proposed Second Further Amended Notice and Grounds of Appeal is herein attached and marked as Exhibit “D”.
g. That the prayers sought herein will ensure the determination of the real questions arising from the judgment of the Lower Court.
h. That it is in the interest of justice to grant this application as the Respondent will not be prejudiced by the grant of the same.
The Respondent’s opposition to the application as expressed in the sworn counter – affidavit are contained most importantly, at paragraph 3 (a) – (c) as follows: –
3. That I was informed by Chief Steve U. Nwoke of counsel handling this matter at our office located at No.5 Maiduguri Road Sokoto on the 30th May, 2018 at about 5:30pm pm and I verily believed it to be true as follows:
(a) That on the 15th May, 2018, the respondent filed its brief in this appeal which raised the issue of the competence of the appeal on the ground that the notice of appeal is defective.
(b) That the amendment sought to the further amended notice of appeal is in reaction to the argument contained in the respondent’s notice of preliminary objection.
(c) That the amendment is intended to over reach the respondent argument.
From the foregoing depositions and argument of both counsels, the pertinent question is whether the applicants are entitled to the judicious and judicial exercise of the Court’s discretion in their favour.
By Order 7 Rule 8 of the Court of Appeal Rules 2016, a Notice of Appeal may be amended by or with the leave of the Court at any time.
The said provision allows this Court to grant leave for any amendment to be made to a Notice of Appeal at any time before the hearing of the appeal; the only caveat being that the Notice of Appeal to be amended must be a valid and competent Notice of Appeal.
The contention of the learned Respondent?s counsel relying on the depositions in paragraph 3 (a) – (c) of the counter – affidavit is that the defect in the process sought to be amended renders it incompetent and that an incompetent Notice of appeal cannot be amended; that the grant of the application which was filed sequel to the Respondent?s Notice of preliminary objection, will over reach the Respondent.
The law has since been firmly settled that an incompetent Notice of appeal cannot be amended to give birth to a competent amended Notice of Appeal. There cannot be a building without a foundation. A building is erected upon a foundation and I dare say, on a solid foundation. Where there is no foundation any structure attempted to be erected on no foundation cannot stand. The principle of law enunciated in UAC v. Mcfoy (1961) 3 ALL ER 1169 – is very apt here.
As the Notice of appeal is the foundation and the substratum of every appeal, there cannot be a valid Appeal without a valid Notice of Appeal. An incompetent Notice of appeal which is a dead process is incapable of being amended. It cannot give birth to a life process. Therefore, an incompetent Notice of Appeal can only give birth to an incompetent amended Notice of appeal.
Significantly however, in this application, what the applicants seek to amend is the Further Amended Notice of Appeal filed on 14/3/2017 and not the initiating Notice of Appeal which was filed on 12/12/2014 and amended on 19/01/2017 pursuant to an order of this Court and further amended on 14/3/2017. Therefore, the process at stake here is the further Amended Notice of Appeal now sought to be further amended and not the original Notice of Appeal, the competence of which has not been challenged by any deposition in the counter – affidavit. In other words, the counter-affidavit does not attack the competence of the original Notice of Appeal, Exhibit A, nor is it the Respondent’s case that the original Notice of Appeal is incompetent.
By Order 7 Rule 2(1) of the Court of Appeal Rules 2016, as rightly submitted by the respondent?s learned counsel, an appellant is required to state among other things, whether he is appealing the whole or part and if part, specify the part of the decision of the Court below complained of-
Now, paragraph 2 of the Further Amended Notice of Appeal reads:
PART OF THE DECISION OF THE COURT OF APPEAL COMPLAINED OF.? (emphasis on Court of Appeal supplied by me).
It is this paragraph 2 that the Appellants/Applicants seek to amend and as evident on the face of prayer 1 of the motion, the only amendment sought to the said paragraph 2 of the further Amended Notice of Appeal, Exhibit C, is the substitution of the words ‘Court of Appeal’ with the words ‘Lower Court’ as shown in the proposed 2nd Further Amended Notice of Appeal marked Exhibit ‘D’.
This is what the respondent’s learned counsel has objected to. Now, a read through the original Notice of Appeal and the Amended Notice of Appeal, Exhibits A and B respectively, together with the records of Appeal before this Court puts no one in doubt that the decision appealed against by Exhibit A and which has successfully passed through 2 previous amendments, is the decision of the Sokoto State High Court delivered by Hon. Justice D. B. Sambo on the 3rd December, 2014. It is the same original Notice of Appeal amended pursuant to an order of this Court on the 19/1/2017 and further amended on the 14/03/2017, that is now sought to be further amended by substituting the words ‘Court of Appeal’ in the Further Amended Notice of Appeal with the words ?Lower Court? in the proposed second Further Amended Notice of Appeal.
The only logical conclusion derivable from the processes and the Record of Appeal is that the words ?Court of Appeal? appearing in paragraph 2 of the Exhibit C cannot be anything but a mistake in view of the obvious fact that Exhibits A and B make it clear that the decision appealed against is that of the Sokoto State High Court from where the Record of this Appeal emanated. The appeal cannot be against the decision of this Court which is yet to be delivered and when delivered in this appeal, cannot lie to this Court. There is thus no basis for the Respondent to be in doubt about the decision of the Court appealed against.
I should think, as vindicated by judicial authorities, that a party who detects an error in his Notice of Appeal or other process should not be denied the opportunity of correcting the error provided that the Notice of Appeal is valid and the error if corrected, will enable the Court to determine the real dispute between the parties. Such a party should not be denied the opportunity of putting his house in order by amending the error(s) which if not corrected, will adversary affect his case. This is more so where as in this case, it calls for bearing that the error which the application seeks to correct is a typographical error, which ordinarily should not cause any hair splitting to amend. The Appellants/Applicants deposed in paragraphs 3(e) and (f) that the ‘Court of Appeal’ was inadvertently written in paragraph 2 as the decision of the Court complained of instead of the ‘Lower Court’ as a result of a typographical error. The settled position of law is that once there is a valid Notice of Appeal, as in the present case, the Notice of Appeal can be amended by leave of Court as many times as the need arises and the Court deems fit, at any time before the appeal is heard. The fact that briefs of argument have been filed and exchanged does not, in appropriate and deserving circumstance, preclude the Court from exercising its discretion to allow an amendment to be made to the Notice of Appeal and to the briefs of argument if already filed, in so far as the amendment would facilitate the just determination of the appeal and serve the ends of justice and fairness.
In KAYODE VS. R.T.U.A.M.C (2016) ALL FWLR (PART 852) 1422 @1441-1442, this Honourable Court stated thus:
“…where a party detects an error, which will adversely affect his chances, and has made effort to correct such errors, the principle of justice demands that he should be given the opportunity to do so… it will be preposterous to concede to the contention that the error so detected should remain uncorrected so that the adversary can take advantage of it.”
It was also submitted that the grant of this application would over-reach the Respondent same having been made in response to the Respondent’s preliminary objection to the competence of the further Amended Notice of Appeal.
My view on this submission is that the fact that the Respondents had filed a preliminary objection challenging the competence of the Further Amended Notice of Appeal is not a barrier to the grant of the application to enable the applicants correct the error that will put them on the right footing. See TSOKWA OIL MARKETING CO. VS. B.O.N LTD. (2002) 11 NWLR (PT. 777) 163 S.C.
A similar issue was raised and addressed in the case of SHANU V. AFRIBANK (NIG.) LTD. (SUPRA) cited by the Appellant’s counsel where Ayoola, JSC held as follows –
“The contention that this application should not be granted because a preliminary objection has been raised showing errors in the process of the applicant’s appeal is without substance. The Applicant is not foreclosed by the preliminary objection from correcting those errors or starting the process fresh on a more appropriate footing.”
In the instant case, there is a subsisting valid Notice of appeal filed on the 12/12/2014 which can, by leave of Court, be amended without the necessity to show the existence of any special circumstance to justify the amendment. All that the applicant needs to show is that the application is predicated upon a subsisting valid Notice of appeal and the amendment if effected, will not be prejudicial to the Respondent but will serve the ends of justice and fairness. This, the applicants have shown in this application.
Since the purpose of an amendment is to ensure that the appellants/applicant?s complaints against the decision in question are laid and ventilated before the Court, the Court can and indeed should not hesitate to exercise its discretion to grant the application.
The opposition to this application I must say stems from the embrace or romance the learned Respondent’s counsel has with the old fashioned adherence to undue technicalities which is fast fading away from our jurisprudence and is giving way to substantial justice to the parties. The Courts are more than ever before enjoined to embrace the path of justice to all parties as the sole purpose of the Court is to do substantial justice between the parties that come before it for adjudication of their disputes. Where adherence to technicalities would becloud the justice of the matter, the Courts are to keep away and maintain a wide distance from that path and trade the path of justice.
The ultimate goal of every Court, whenever it is possible, is to determine a case on its merits rather than clinging to mere legal technicalities to refuse a party from being heard on merit. It is by so doing that justice and fairness will not only be dispensed but will be seen to have been dispensed.
In the case at hand, the error sought to be corrected is one of such blunders that sometimes occur as humans. When they do occur, and it is obvious that it is by inadvertence or a clerical mistake, it will be unjust to hold that because the blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. See BENSON V. NIGERIA AGIP CO. LTD (1982) 5 S.C.1.
Speaking on this, the Supreme Court in the case of OYEYEMI & ORS V OWOEYE & ANOR (2017) LPELR – 41903 (SC) had this to say:
‘Our duty as an Apex Court is to do substantial justice-stark justice, based on fairness which to all intent and purposes, seek to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and con. We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. The need to do substantial justice and avoid delving into the error of technicalities is well settled.”
In conclusion therefore, there being a subsisting valid Notice of Appeal and the amendment being sought is only to correct a clerical error to the Further Amended Notice of appeal, I find the authorities cited by the Respondent’s learned counsel inapplicable to this application.
Furthermore, in the light of the reasons afore stated in this Ruling, I find merit in the application and have no hesitation in granting the prayers sought on the motion paper and accordingly grant same.
The said application filed on 30/5/2018 is granted in terms of prayers 1 and 2. In effect, leave is granted to the Appellants/Applicants to amend their Further Amended Notice of appeal filed on 14/3/2017 in terms of the proposed Second Further Amended Notice of Appeal. Accordingly, the Second Further Amended Notice of Appeal separately filed on 30th May, 2018 as well as the Appellant’s brief of argument filed on 5th October, 2017 are both deemed as properly filed and served today.
I make no order to cost.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft ruling just delivered by my learned Brother, Amina Audi Wambai, JCA and I am in total agreement with her reasoning and conclusion in granting the application for being meritorious. I abide by all other consequential orders made thereto.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I have read in advance, draft copy of the Ruling just delivered by my learned Brother, Justice Amina A. Wambai JCA. I agree that the application succeeds and is hereby granted.
Appearances:
Unchenna Ibekwe, Esq. with him,
Abdullateef Idris Muhammad, Esq. and Mukhtar B. Uthman, Esq.For Appellant(s)
Chief Steve Nwoke, Esq.For Respondent(s)
