SETRACO NIGERIA LIMITED V. JOSEPH KPAJI
(2013)LCN/5892(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of February, 2013
CA/MK/51/M/2012
RATIO
COURT: THE ATTITUDE OF THE COURT TOWARDS THE WRONG HEADING OF A NOTICE OF APPEAL
In the first place authorities abound that wrong heading of a notice of Appeal is an irregularity that can be condoned by the court. In ONWUNALI V. THE STATE. The Supreme Court per ESO JSC (of blessed memory) held that: – “This court has in the case of NOFIU SARAKATU V. NIGERIAN HOUSING, DEVELOPMENT SOCIETY LTD. & ANOR (1981) 4 SC 26 OVERRULED ADDIS ABABA V. ADEYEMI (1976) 12 SC 51 and since then technical grounds like wrong heading of an Appeal does not fetter an appeal on merit” See also EKWERE V. THE STATE (1981) NSCC 298 AND OKON V. THE STATE (1982) REPRINT 50. In CLEV JOSH LIMITED V. TOKIMI (2008) 13 NWLR (PT 1104) 422, this court sitting in Calabar Division equally held inter alia that: – “On the basis of the Supreme Court decision in SARAKATU, Supra, the wrong heading of the Notice of Appeal herein can be treated as an irregularity that can be condoned.”
Consequently, it is settled that wrong heading of a Notice Appeal, though amounts to a blunder, however constitutes only amendable irregularity and does not warrant the striking out of appeal which otherwise should be heard on the merit. Per. SAMUEL C. OSEJI, J.C.A.
JUSTICES
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
Between
SETRACO NIG. LTD. Appellant(s)
AND
JOSEPH KPAJI Respondent(s)
SAMUEL C. OSEJI, J.C.A. (Delivering the Lead Ruling): The applicant in this motion was the defendant in suit No NSD/25/2006 filed in the High Court of Justice Keffi Division, Nasarawa State. The respondent herein had as plaintiff claimed the sum of N250, 000,000 for the negligence of the applicant when it blasted rocks at Kofar Hausawa Primary School Keffi, and one of such rocks hit the respondent resulting in his left leg being amputated.
The suit ended in favour of the respondent wherein the trial court awarded the sum of N89, 640,000 as damages against the applicant.
Being dissatisfied with the judgment, the applicant filed two Notices of Appeal. The first was dated 29/11/2008 and filed on 1-12-2008. It was wrongly headed ‘IN THE COURT OF APPEAL, HOLDEN AT ABUJA’. The second one dated 16-12-2008 did not provide the name of the appellant as person interested in the appeal. The appeal was entered as Appeal No CA/J/43/2009.
Briefs were subsequently filed and exchanged wherein the respondent in his brief of argument raised a preliminary objection to the competence of the appeal.
The applicant then filed a notice of discontinuance of the appeal. Pursuant thereto the said Appeal No CA/J/43/2008 was on 24-4-2012 struck out by virtue of order II Rules (1) and (2) of the Rules of this court.
Thereafter, by a motion on notice dated and filed on 25-4-2012, the applicant herein prayed this court for the following reliefs: –
(1)” Extension of time within which the applicant may apply for leave to appeal against the judgment of Hon. Justice John A. Viko of Keffi High Court, Nasarawa State in suit No NSD/K25/2006 delivered on the 28th day of November 2008.
(2) Leave for the applicant to appeal against the said judgment of Hon. Justice John A. Viko in Suit No. NSD/K25/2006 delivered on the 28th day of November 2008.
(3) Extension of time within which the applicant may file its notice and grounds of appeal against the judgment stated in (1) and (2) above.”
The grounds upon which the application was brought were stated as follows: –
(1) That following the delivery of the said judgment on 28/11/2008 the applicant immediately caused her counsel then Akin Adewale Esq. to file an appeal against it and the said counsel actually filed a Notice of Appeal dated 29th day of November 2008 and filed on 1st December 2008 but was wrongly headed “In the Court of Appeal Holden at Abuja”.
(2) That another Notice of Appeal dated 16th December 2008 was filed on 6th February 2009 within the statutory period for appealing.
(3) That the said Appeal No CA/J/43/2009 was struck out by this Honourable Court on the 24th April 2012.
(4) That the applicant is desirous of prosecuting the appeal to its logical conclusion.
(5) That the lapses are caused by counsel.
(6) Extension of time by this court is required to file a competent Notice of Appeal.”
The said motion is supported by a 12 paragraph affidavit deposed to by one Ephraim Faster Sarwuan Esq. Paragraph 3 to 11, therein are relevant and reads thus: –
3. “That I know as of fact that on the 19th day of December, 2011, the laws office of Bernard Hom & Co received a brief from the Legal Department of the Trust Insurance Company, on behalf of the Applicant that a fresh Notice of Appeal be filed against the judgment of Hon. Justice John A. Viko delivered on the 28th November 2008. A copy of the said judgment is attached hereto and is marked as Exhibit 1.
4. That I know as of fact from the records sent to our law office that the applicant’s former counsel, Akin Adewale Esq. had filed two different Notices of Appeal, one dated 29th November 2008 and filed on 1st December 2008 and the other dated the 16th day of December 2008 and filed on the 6th of February 2009.
5. That I also know as of fact that the appeal had been entered as Appeal No. CA/J/43/2009 and briefs of argument were settled, filed and exchanged based on the Notice of Appeal filed on 6th February, 2009 mentioned above.
6. That Appeal No. CA/J/43/2009 being defective has been withdrawn and struck out by this Honourable Court and annexed hereto as Exhibit 2 is the ruling of this Honourable Court striking out the said Appeal.
7. That a proposed fresh and competent notice of appeal has now been prepared on behalf of the Applicant and is attached here and marked as Exhibit 3.
8. That as a lawyer I believe that the proposed Notice of Appeal has arguable grounds of Appeal and is likely to succeed.
9. That there had been no delay in filing the Appeal which was filed within time but which is found to be defective.
10. That the defect discovered in the Appeal filed by Applicant’s former counsel is that the names of all persons affected by the appeal were not stated in paragraph 5 of the said Notice.
11. That the present applicant’s counsel, S.A. Ngavan, Esq. has acted Appeal (Exhibit 3) and requires leave and extension of time to file the Appeal of the Applicant”.
Three Exhibits were annexed to the affidavit to wit.
EXHIBIT 1
(a) Certified true copy of the judgment of the High Court of Nasarawa State delivered on 28-11-2004
(b) Exhibit 2 – Enrolment of order of this court made on 24-4-2012
(c) Exhibit 3 – copy of a proposed Notice of Appeal.
In opposing the application, the respondent filed a 12 paragraph counter affidavit to which is attached a ruling of the Supreme Court delivered on 13-2-2012 as Exhibit JK1 and the copy of a Notice of Appeal dated 16-12-2008 and filed on 6 -2-2009 as Exhibit JK2. Paragraphs 3 – 11 of the said counter affidavit is herein below reproduced: –
3. “That judgment was entered in favour of the respondent by the Nasarawa State High Court on the 28th day of November, 2005.
4. That the appellant filed an appeal against same and also filed a brief and the respondent also filed his brief.
5. That while the parties were waiting for a hearing date the appellant appealed to the Supreme Court on whether it should pay the judgment sum into court as it had undertaken to do in the Court of Appeal.
6. This lasted from 2009 until 2012 when the Supreme Court struck same out and then the appellant paid the judgment sum into court in Jos instead of Makurdi. The Ruling is exhibit JK1 hereto.
7. That upon noticing that their case was weak in the appeal number CA/J/43/2009 the appellant voluntarily withdrew same pursuant to order 11 of the Court of Appeal Rules.
8. That it is not true that the Notice of Appeal did not contain the names and addresses of the persons interested in the Appeal.
9. That a copy of the said Notice of Appeal is exhibited hereto as Exhibit JK2.
10. That the appeal number CA/J/43/2009 having been withdrawn stands dismissed.
11. That the applicant has no right of appeal again against the judgment of the Nasarawa State High Court having exercised same in Appeal number CA/J/43/2009.
The applicant also filed a further and better affidavit of 14 paragraphs and annexed Exhibits A to F: –
To wit: – Exhibit (A) enrolment of order of this court made on 29-9-2009.
Exhibit (B) Copy of respondent’s brief of argument filed on 2-2-2010
Exhibit (C) Copy of proceedings of this court on 24-4-12
Exhibit (D) Motion on notice filed on 3-2 -12
Exhibit (E) Copy of Notice of withdrawal dated 24-2-2012
Exhibit (F) Copy of Hearing Notice dated 14-3-12
Paragraphs 2-12 of the said further affidavit are relevant and they are herein below reproduced: –
2. “That I know as of fact, from the records made available to me in our law office, Bernard Hom & Co that when appeal No. CA/J/43/09 was filed and subsequently entered as such, the applicant, then appellant, also applied for stay of execution of the judgment of the trial court.
3. That the records also show that the said motion for stay of execution was on 29th September 2009 conditionally granted by this Honourable Court sitting in Jos. The said order is attached and is marked as Exhibit SNLI in the affidavit of urgency and also attached to this further affidavit as Exhibit A.
4. That I also know as of fact, from the records sent to our law office by the applicant which I have seen and read, that after the grant of the conditional order of stay in exhibit ‘A’, the applicant subsequently sought leave of the Supreme Court to appeal against the said conditional order of stay earlier granted but the leave was refused by the Supreme Court on 13th day of February, 2012 as evidenced by Exhibit JK1 to the counter affidavit.
5. That I know as of fact too that Exhibit JK2 to the counter affidavit was signed and filed by the former counsel to the applicant, Akin Adewale Esq.
6. That I know as of fact that when B.I. Hom SAN of Bernard Hom & Co was subsequently briefed by the applicant to handle this appeal, by withdrawing Notice of Appeal filed in Appeal No, CA/J/43/2009 for being defective and to file this application.
7. That I know as of fact that the respondent had filed and served his brief of argument in appeal No. CA/J/43/2009.
8. That in the respondent’s brief of argument in Appeal No. CA/J/43/2009, the respondent had raised a preliminary objection to the competency of the appeal on the ground of a defective notice of appeal. The respondent’s brief of argument in the said appeal is attached here and marked as Exhibit ‘B’.
9. That I know as fact that based on the realization that the Notice of Appeal filed by the former counsel to applicant was defective, Appeal No. CA/J/43/2009 was withdrawn and struck out (not dismissed) by this Honourable Court. See Exhibit 2 to the affidavit in support of Motion and Exhibit ‘C’ to this Further Affidavit.
10. That I also know as of fact that before the Notice of withdrawal of Appeal No. CA/J/43/2009 was filed on 27th February 2012 the applicant had filed a similar application on 3rd February 2012 which was similarly withdrawn and application predated the striking out of the defective appeal. The record of proceeding of the court striking out both Appeal No. CA/J/43/2009 and the application for extension of time and leave to appeal is attached here as Exhibit ‘C’, while the application filed on 3rd February 2012 is Exhibit ‘D’.
11. That I know as of fact that the notice of withdrawal was filed on the 27th February, 2012 while the first hearing notice in the appeal served on the applicant fixed a hearing for the 29th March, 2012. The notice of withdrawal and the hearing notice served the applicant are respectively attached here as Exhibits E and F.
12. That as a lawyer in the law office of Bernard Hom & Co, I know that Appeal No. CA/J/43/2009 was not decided on the merit as shown in Exhibit 2 to affidavit in support of motion and Exhibit ‘C’ to this further affidavit.
Pursuant to the directive of this court given on 23-5-2012 parties filed and exchanged written addresses. The applicant’s written address is dated and filed on 30-5-2012 while her reply on points of law is dated 24-10-2012 but filed on 29-10-2012. The respondents written address though headed “RESPONDENT BRIEF OF ARGUMENTS” is dated and filed on 5-6-2012.
At the hearing of the motion on 5-12-2012, the parties through their counsel duly adopted and relied on their respective written addresses in support of and against the application.
In her own written address, the applicant (SETRACO (NIG) LTD) distilled two issues for determination, to wit: –
(1) Whether or not the applicant’s constitutional right of appeal against the decision contained in the judgment of Honourable Justice John. A. Viko made on 28th November, 2008, is foreclosed by withdrawal and striking out of Appeal No. CA/J/43/2009 earlier filed (on grounds of incompetency).
(2) Whether or not the applicant has made out a case warranting the exercise of this Honourable courts discretion to grant this application.
For the respondent, only one issue was raised for determination in his written address. It reads: –
“Whether the applicant can validly bring the present application when it had appealed and voluntarily discontinued same pursuant to order II of the Rules of court”.
Arguing on their issue I. B. IHOM (SAN) of counsel for the applicant submitted that the constitutional right of the applicant to vent her grievances against the decision contained in the judgment of the lower court cannot be abolished or foreclosed merely because an earlier attempt by the applicant to do so was aborted by the withdrawal and striking out of Appeal No. CA/J/43/2009.
He added that where the determination of an appeal by a party is not on the merits but by withdrawal, such party cannot be prevented from approaching the court once more and bringing a proper appeal as in this case where the appeal against the judgment of the lower court has not been determined on the merits.
Learned senior counsel referred to the applicants first Notice of Appeal dated 29-11-2008 and filed on 1-12-2008 but was abandoned for incompetency having been wrongly headed “In the Court of Appeal, Holden at Abuja” instead of “Holden at Jos”, the correct court. Similarly, the second Notice of Appeal dated 16-12-2008 was also defective for failure to properly identify who the appellant was, having omitted to give the name of the appellant in paragraph 5 of the Notice of Appeal as required by the rules of Court.
He added that it was in realization that the former counsel, Akin Adewale Esq. had again made a mistake that the applicant decided to engage a new counsel to withdraw the defective Appeal No. CA/J/43/2009 and filed a fresh application for leave to file the appeal out of time.
This constitutional right, he argued, cannot be denied the applicant, simply because her former counsel filed defective notices of appeal. Citing the case of OYEGUN V. NZERIBE (2010) 7 NWLR (PT 1194) 577 AT 596, learned senior counsel submitted that a litigant should not and will not be punished for mistakes of his counsel which in this case is the filing of defective Notices of Appeal.
Also relying on a number of authorities learned senior counsel contended that the applicant should not be denied her constitutional right of appeal because/ having found Appeal No CA/J/43/2009 defective and incompetent, this court lacked the jurisdiction to entertain it and the proper order to make was to strike it out as was done here and it does not matter whether the application was brought under order II Rule 5 of the Court of Appeal Rules 2011, given the fact that the appeal was not decided on the merit.
On issue 2, learned senior counsel submitted that the applicant has made out a strong case deserving the exercise of the courts discretion in her favour.
He referred to order 7 Rule 10 (2) of the Rules of this Court which requires an applicant seeking extension of time to appeal to give good and substantial reasons for failure to appeal within the stipulated time and also exhibit grounds of appeal which prima facie show good cause why the appeal should be heard. He further contended that in this case, the applicant has satisfactorily explained the delay in filing the appeal to be as a result of two Notices of Appeal earlier filed but found to be defective thus resulting in the withdrawal and striking out of Appeal No. CA/J/43/2009
In his own response, O. Maduabuchi of counsel for the respondent submitted that once an appeal has been entered and briefs have been exchanged, if the appellant discontinues the appeal and same is struck out pursuant to order II, such discontinuance is a bar to any further proceedings regarding the judgment appealed against. He added that once an appeal is withdrawn under Order II either with consent of the parties or by Order of court, such an appeal is deemed to have been dismissed. So the applicant having withdrawn the Appeal No CA/J/43/2009 and same was struck out pursuant to order II Rules (1) and (2). The order of striking out has the effect of a dismissal by virtue of Rule (5). He cited ADEAGBO V. YUSUF (1990) 6 NWLR (PT 158) 588 AT 596. And YOUNG SHALL GROW MOTORS LTD V. AMBROS O. OKONKWO (2010) 3 SCNJ 396 AT 409 – 410, 412, 413 AND 417 which cases where decided based on order 3 Rule 18 of the Court of Appeal Rules 1981 which is in Pari Materia with order II of the 2007 Rules.
Learned counsel further relied on KRAUS THOMPSON ORGANISATION V. NIPSS (2004) 17 NWLR (PT 901) 44 AT 64 to compare the effect of dismissal or striking out of an appeal under order 6 Rule 10 with withdrawal under order II of the Court of Appeal Rules 2011 to contend that, by the tenor of order II Rule 5, it allows no maneuvering because once the appeal is terminated it stands dismissed. See also AJAYI V. AKINBO BAMI (2012) 6 NWLR (PT 1297) 480 AT 483.
He added that there is therefore no provision giving the Court of Appeal the power to extend time to appeal after a party voluntarily withdraws his appeal, since by virtue of order II Rule 5 the appeal is deemed dismissed, the applicant no longer has any right to appeal and the court becomes functus officio.
The Applicant reply on points of law will be appraised as the need arises.
One fact is certain and clearly not in dispute in this application, namely, that the Applicant at the hearing of the Appeal on 24-4-2012 applied to discontinue Appeal No CA/J/43/2009 and it was accordingly struck out under order II rules (1) and (2) of the Court of Appeal Rules 2011. Leaning on the side of clarity I reproduce herein below the proceedings of this court on 24-4-12: –
SETRACO (NIG) LTD – APPELLANT
V.
JOSEPH KPAJI – RESPONDENT
PARTIES ABSENT
S.A. NGAVAN (with THEME OMALE) for the Appellant
Mr. OBA M. for the Respondent
Mr. NGAVAN: We filed a notice of discontinuance of this appeal and urge the court to discontinue with the case. The notice was filed on 27-2-12.
Mr. OBA: No objection.
CT: The Appeal No. CA/J/43/2009 is hereby struck out by virtue of order II (1) & (2) of this court Rules 2010 as amended.
Signed
Mr. Ngavan: I wish to withdraw our motion filed on 3/2/12
Mr. OBA: No objection.
CT: Application file on 3/2/12 for extension of time for leave to appeal is struck out having been withdrawn.
Signed
Now the contention of the respondent is that the applicant having withdrawn Appeal No: CA/J/43/2009 after briefs have been exchanged and the same struck out under order II, such a withdrawal is a bar to any further proceedings regarding the judgment in respect of which the appeal was brought and discontinued.
For the applicant however, refusal to grant this application for leave to appeal even after the withdraw of appeal No CA/J/43/2009 will amount to denial of the applicant constitutional right of appeal.
In the circumstance, it is germane to examine the whole provisions of order II with the aim of establishing its import or effect on the withdrawal and striking of an appeal.
The said order II reads as follows: –
(1) An appellant may at any time before the appeal is called on for hearing, serve on the parties to the appeal and file with the registrar, a notice to the effect that he does not intend to prosecute the appeal any further.
(2) If all parties to the appeal consent to the withdrawal of the appeal without an order of the court, the appellant may file in the registry the document or documents signifying such consent and signed by the parties or by their legal representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeals by the registrar and in such event any sum deposited against costs shall be paid out to the appellant.
(3) The withdrawal of an appeal with the consent of the parties under rule 2 of this order shall be a bar to further proceedings on application made by the respondent under order 9.
(4) If all the parties do not consent to the withdrawal of an appeal as aforesaid, the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, including any application made by the respondent under order 9, and for the making of an order as to the disposal of any sum deposited against cost.
(5) An appeal which has been withdrawn under this order, whether with or without an order of the court, shall be deemed to have been dismissed.
(6) Where an appeal is withdrawn under this order, any respondent who has not given a notice under order 9, may give notice of appeal and proceed therewith in the manner prescribed by the foregoing rules, and in such case the time limited for giving notice of appeal, for depositing the sum estimated to cover the cost of the record and for making deposit against costs may, on application to the court, be extended so far as is reasonably necessary in all the circumstances of the case.”
Now, order II Rule 5 is of great significance. It provides that an appeal which has been withdrawn under Order II, whether with or without an order of the court shall be deemed to have been dismissed.
My own understanding of this provision is that once an appellant files a notice of withdrawal in the registry of this court to the effect that he does not intend to prosecute the appeal any further, the said appeal is deemed dismissed whether with or without an order of this court.
Incidentally, the said Order II did not make any provision for a party who has so discontinued an appeal to revisit it again either by way of a fresh appeal or even relisting. To my mind, the emphasis on dismissal in Rule 5 means that appellant who discontinues an appeal by virtue of Order II rule I is barred from seeking to have a second bite at the cherry.
In the instant case the tone of the proceedings of 24/4/12 leading to the striking out of the appeal leaves one with no doubt that to all intents and purposes the appellant fully and whole heartedly intends to discontinue with Appeal No CA/J/43/2009 and does not intend to pursue it any further. Moreso, when briefs of argument have been duly filed and exchanged.
Order II Rule 5 is in Pari materia with order 3 Rule 18 (5) of the Court of Appeal Rules 1981 wherein the Supreme Court in EZOMO V. A.G. BENDEL (1986) 4 NWLR (PT 36) 448 AT 462 had cause to consider the effect of the said provision on an appeal that was withdrawn. There lordships per Aniagolu JSC held Inter alia as follows: –
“Having held that the withdrawal notice filed by Mr. Obasuyi was validly filed, order 3 Rule 18 of the Court of Appeal Rules would automatically take effect. By sub rule 5 of Rule 18,
“An appeal which has been withdrawn under this Rule, whether with or without an order of the court, shall be deemed to have been dismissed”.
“This subrule 5 is in identical terms with order 7 of Rule 17 (5) of the Supreme Court Rules 1977 and the current order 8 Rule 6 (5) Supreme Court Rules 1985. The effect of the withdrawal notice filed by Mr. Obasuyi, in my view, was to terminate the appeal filed against the judgment of the High Court with or without an order of court”.
At page 471 therein Karibi Whyte JSC held as follows: –
“I do not consider it necessary to decide the question whether the respondents are stopped by their conduct in resiling from their notice of withdrawal. This is because the appeal having been dismissed by virtue of order 3 Rule 18 (5), it is only the respondent to such dismissed appeal who had given notice under order 3 R. 14 that the judgment should be affirmed or varied on other grounds, and on fulfilling the conditions prescribed in that Rule who can continue with the appeal. There is no provision enabling an appellant to relist the appeal so dismissed. I am therefore unable to conceive from the Rules, how having validly withdrawn the appeal it would again be entered for hearing”.
Also in YOUNG SHALL GROW MOTORS LTD. V. AMBROS OKONKWO & ANOR. (2010) 3 SCNJ 395. One of the issues for determination by the Supreme Court was whether the Court of Appeal was right when it treated and applied its earlier Order striking out an appeal as amounting to a dismissal of the said appeal with the result that same cannot be listed. The apex court in interpreting Order 3 Rule 18 (2) and (5) of the Court of Appeal Rules 1981 which is in pari materia with Order II Rule (2) & (5) of Court of Appeal Rules 2011 held per I. T. Muhammad JSC that: –
“When this kind of withdrawal is filed the appeal is thereupon deemed to have been dismissed and is struck out of the list of appeals and it will be a bar to further proceedings. The consequential effect of such withdrawal is that even where the appellant wants renege from the withdrawn and struck out appeal it is deemed dismissed. This is so whether there is an order of dismissal or not made by the Court of Appeal (order 3 rule 18 (5)”.
His lordship went on to emphasize that: –
“The wisdom behind I believe, as I said earlier is to prevent the uncertainty with which the respondent may be confronted or on the other hand the abuse to which this procedure could be subjected to if an appellant, after the withdrawal of his appeal shall be at liberty to refile the Appeal.”
In agreeing with the lead judgment D. Mustapher JSC (as he then was) held that: –
“It is trite law, when an appeal is set for hearing after briefs of argument are filed and the appellant withdraws the appeal, the striking out of the appeal amount to the dismissal of the appeal. See Order II Rule 5 of the Court of Appeal Rules 2007.”
Tabai JSC in his own contribution held thus: –
“In other words the stage has been reached for the appeal to be heard and the rights of the parties determined on the merit. The appellant had the choice of either arguing his appeal or withdraw same where he perceives that he has little or no chance of success. An appeal withdrawn at the stage when it is ripe for hearing, like the present case, is by implication a concession that it has no chances of success. And so in the present case notwithstanding the fact that the appeal was struck out following the application of its withdrawal, its legal effect is that of dismissal.”
Adekeye JSC in his contribution to the lead judgment concluded thus:
“By virtue of Order 3 Rule 18 (5) of the Court of Appeal Rules 1981 as amended, once an appeal is withdrawn under rule 18 order 3 with or without the consent of the parties, it stands dismissed. An order of dismissal creates a bar to subsequent suits and the judgment operates as estoppel per rem judicatam”
Also in ADEAGBO V. YUSUF (2001 12 NWLR (PT 728) 777 where Order 3 Rule 18 (5) of the Court of Appeal Rules 1981 as amended was also considered. It was held that the proper Order to make on an application to withdraw an appeal after briefs have been filed and exchanged by parties is to dismiss the appeal.
In the instant case, the applicant wholeheartedly and clearly deposed in paragraph 5 of the affidavit in support of the application as follows: –
5.”That I also know as a fact that the Appeal had been entered on Appeal No CA/J/43/2009 and briefs of argument were settled, filed and exchanged based on the Notice of Appeal filed on 6th February 2009 mentioned above.”
This no doubt is a tacit admission of the state of affairs to the effect that the appeal was fully ripe for hearing on the merit, which may be termed “Point of no return”.
See also: AKUNEZIRI V. OKENWA & 4 ORS (2000) 4 NSCQR 278 AT 287; NKANU V. STATE (1980) 3-4 SC1 AND INTERNATIONAL CARPETS (IND) LTD V. SAVANAH BANK (NIG) PLC (2006) ALL FWLR (PT 325) 108
In the light of the above decision, I believe that I am on a firm ground in holding that there is no provision in order II enabling the applicant to seek and be granted leave to appeal against the judgment of the lower court a second time having on its own duly filed a notice of discontinuance of an earlier appeal against the said judgment and which appeal after briefs of argument have been filed and exchanged was accordingly struck out and consequently stand dismissed by virtue of order II Rule 5. The applicant cannot be allowed a second chance to appeal against the same, judgment of the lower court under the pre of the exercise of constitutional right which to my mind is not at large but has a limits which, if not carefully guided within the relevant rules may lead to endless if not licentious adventures in the field of litigation.
Learned senior counsel for the applicant had strongly raised the issue of the two notices of Appeal filed by a former counsel in the case whose blunder led to his being debriefed and the matter assigned to another counsel. The first Notice of Appeal filed on 1-12-2008 was said to be defective in that it was headed “IN THE COURT OF APPEAL, HOLDEN AT ABUJA” instead of “HOLDEN AT JOS hence the filing of another one on 16-12-08 which also was found defective because it did not provide for the name of the appellant as person interested in the appeal.
It is indeed amazing that simple defects or irregularities that ought to have been amended without much ado to the merits of the appeal was allowed to drag on, culminating in the outright withdrawal of the main appeal subsequent to the filing and exchange of briefs of argument.
In the first place authorities abound that wrong heading of a notice of Appeal is an irregularity that can be condoned by the court. In ONWUNALI V. THE STATE. The Supreme Court per ESO JSC (of blessed memory) held that: –
“This court has in the case of NOFIU SARAKATU V. NIGERIAN HOUSING, DEVELOPMENT SOCIETY LTD. & ANOR (1981) 4 SC 26 OVERRULED ADDIS ABABA V. ADEYEMI (1976) 12 SC 51 and since then technical grounds like wrong heading of an Appeal does not fetter an appeal on merit”
See also EKWERE V. THE STATE (1981) NSCC 298 AND OKON V. THE STATE (1982) REPRINT 50.
In CLEV JOSH LIMITED V. TOKIMI (2008) 13 NWLR (PT 1104) 422, this court sitting in Calabar Division equally held inter alia that: –
“On the basis of the Supreme Court decision in SARAKATU, Supra, the wrong heading of the Notice of Appeal herein can be treated as an irregularity that can be condoned.”
Consequently, it is settled that wrong heading of a Notice Appeal, though amounts to a blunder, however constitutes only amendable irregularity and does not warrant the striking out of appeal which otherwise should be heard on the merit.
The same goes with failure of an appellant to state the name and address of one of the parties interested in the appeal.
On the whole it is my finding and I so hold that this application lacks merit and is hereby dismissed.
I award the sum of N10, 000 as cost against the applicant.
JA’AFARU MIKA’ILU, J.C.A.: I have read in draft the ruling of my learned brother Hon. Justice Samuel C, Oseji JCA. It is trite that wrong heading of a notice of appeal constitutes only an amendable irregularity and does not warrant the striking out of an appeal which otherwise should be heard on merit. The same goes with failure of an appellant to state the name and address of one of the parties interested in the appeal. This application lacks merit and it is dismissed. I award the same costs as in the lead ruling.
ADZIRA GANA MSHELIA, J.C.A.: I have had the opportunity to read in advance the lead Ruling of my learned brother Oseji J.C.A just delivered. I agree entirely with his reasoning and conclusion. It is clear from the proceedings of this court dated 24.04.12 that appellant now applicant applied to discontinue the appeal filed on 27.02.12 and same was struck out by the court pursuant to Order 11 Rules 1 & 2 of the Court of Appeal Rules, 2010 as amended. Once an appeal is withdrawn under Order 11 rules 1 & 2, with or without consent of the parties, the appeal stands dismissed pursuant to Order 11 Rule 5 of the said rules. Briefs of argument are filed as such the striking out order as per rule 5 means dismissal of the appeal. If the withdrawal of the notice of appeal was under order 6 rule 6 then clearly the defective notice of appeal will be struck out and applicant will be at liberty to file a fresh appeal with leave of court. In the instant case counsel did not indicate that the appeal was withdrawn because it was defective as such the striking out order means dismissal as per order 11 rule 5. The Supreme Court clearly interpreted the provisions of order 11 rule 5 in the cases of Ezomo V. A.G Bendel (1986) 4 NWLR (Pt. 36) 448 at 462 and Young Shall Grow Motors Ltd V. Ambros Okonkwo & anor 2010 3 SCNJ 396. Every case has to be considered according to its given set of facts and circumstances.
For the detailed reasons given by my learned brother Oseji J.C.A, I too dismiss the application as lacking in merit and abide by the order made as to cost.
Appearances
S.A NGAVAN with J.I. ATIME and ESTHER ONOJA (MRS)For Appellant
AND
OBA MACHUABUCHI with EMEKA OKOYE Esq.For Respondent
