SOUTH ATLANTIC PETROLEUM LIMITED v. THE MINISTER OF PETROLEUM RESOURCES & ORS
(2019)LCN/12662(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of February, 2019
CA/L/712/2006(R)
RATIO
APPEAL: WHETHER AMENDMENT OF A CASE SHOULD BE ALLOWED
“Generally, an amendment for the purpose of determining the real question or issue in a proceeding ought to be allowed. Such is the settled legal position that all types of amendment made for the purpose of determining the real questions in controversy between the parties can be accommodated provided that the amendment does not overreach or in any way prejudice the other party.
In the oft-cited English case of CROPPER vs. SMITH (1883) 26 Ch. D 700 at 711, Bowen, L. J. stated: ‘It is a well-established principle that the object of a court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights, I know of no kind of error or mistake which, if not fraudulent or intended to overreach the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace … it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of rights.’ See also KAYODE vs. REGISTERED TRUSTEES OF UNITED AFRICAN METHODIST CHURCH (2016) LPELR – 40195 (CA) 1 at 22 and ADEKEYE vs. AKIN-OLUGBADE (1987) 3 NWLR (PT 60) 214.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
SOUTH ATLANTIC PETROLEUM LTD Appellant(s)
AND
1. THE MINISTER OF PETROLEUM RESOURCES
2. EMO EXPLORATION AND PRODUCTION LTD
3. ONGCMITTA ENERGY LTD
(Joined by Order of the Supreme Court made on 4th July 2017) Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Lead Ruling):
This is a 2006 appeal. The appeal was heard by this Court, Coram: Salami, Agbo, Mshelia, JJCA, on 17th March 2008. In the judgment of this Court delivered on 29th April 2008, the appeal was dismissed on the basis that the OPL 246, which was the subject matter of the contestation in the appeal had expired, and the appeal had consequently become academic. The ratio of the decision was arrived at suo motu by this Court. The parties were not heard on the issue. The Appellant?s appeal to the Supreme Court against the decision of this Court was successful. The apex Court sent the appeal back to this Court. So here we are on the second missionary journey or incarnation of the appeal in this Court.
By an application filed on 3rd July 2018, the Appellant prays the Court for the following orders:
1. AN ORDER granting leave to the Appellant/Applicant to amend its Notice of Appeal dated 10 October 2006 in the manner and to the extent shown in the Proposed Amended Notice of Appeal attached to this application and marked ‘Exhibit A1’.
2. AN ORDER granting leave to the Appellant/Applicant to amend its Brief of Argument dated 24 January 2007 in the manner and to the extent shown in the Proposed Amended Appellant’s Brief of Arguments attached to this application and marked ‘Exhibit A2’.
3. AN ORDER of this Honourable Court granting leave to the Appellant/Applicant to address the Court in its Amended Appellant’s Brief of Argument on the following issue:
‘On the facts and circumstances of this case, has the term of OPL 246 expired by effluxion of time since 28 March 2008, and if so, does the assumed expiration of the term of OPL 246 have the effect of rendering this appeal devoid of live issues and therefore academic (Arising from the decision of this Honourable Court which the Supreme Court set aside on the ground that the issue was raised and decided by this Honourable Court suo motu, without first hearing the parties)’
4. AN ORDER granting leave for the Appeal records as compiled and certified by the Registry of the Supreme Court in Appeal No. SC/143/2008, being the appeal from which this matter was remitted to this Honourable Court for re-hearing, to be used as the Record of Appeal for the hearing of this appeal.
The application is predicated on the following grounds:
1. The Applicant seeks to amend its Notice of Appeal and Brief of Arguments, argue a fresh issue and rely on the Record of Appeal used at the Supreme Court in Appeal No. SC/143/2008 in this appeal and requires the leave of this Honourable Court to do these.
2. The amendments sought to be made by the Applicant would:
i. enable the Applicant to present its case properly before this Honourable Court to aid and facilitate the effective determination on the merits of the issues in controversy between the parties;
ii. afford the Applicant the opportunity to be fully heard in line with its constitutional right to fair hearing as enshrined in Section 36 of the Constitution and as ordered by the Supreme Court in Appeal No. SC/143/2008; and
iii. ensure that a substitute but reliable Record of Appeal is used in this appeal, the Registry of the Court of Appeal and Federal High Court having confirmed that they could not locate the original Record of Appeal compiled in 2006 despite extensive searches.
3. This Honourable Court has the powers under its extant Rules to grant the reliefs sought in this application.
The application is supported by an affidavit of twenty-two (22) paragraphs and a Further Affidavit of eight (8) paragraphs which was filed on 2nd October 2018. The Respondents filed affidavits in opposition to the application. The eight (8) paragraph counter affidavit of the 1st Respondent in opposition to the application was filed on 20th September 2018, while the nine (9) paragraph Counter Affidavit of the 2nd & 3rd Respondents was filed on 18th September 2018. In the light of the opposition to the application, the parties filed and exchanged written addresses pursuant to the order of the Court. The written addresses on which the application was argued are:
1. Appellant’s written address filed on 2nd October 2018.
2. 1st Respondent’s written address filed on 31st October 2018 but deemed as properly filed on 12th November 2018.
3. Appellant’s Reply on Points of Law to the 1st Respondent’s written addresses filed on 2nd November 2018 but deemed as properly filed on 12th November 2018.
4. 2nd & 3rd Respondents written address filed on 18th October 2018.
5. Appellant’s Reply on Points of Law to the 2nd & 3rd Respondent?s written address filed on 26th October 2018.
At the hearing of the application, the learned counsel urged the Court to uphold their respective submissions in the determination of the application.
The Appellant distilled as sole issue for determination in the application as follows:
‘Whether it is in the interest of justice for your Lordships to exercise your discretion in favour of granting the prayers in the Applicant?s motion, having regard to the fact that the grant of these orders will no in [sic] way be prejudicial to the case of the Respondents.’
The 1st Respondent also formulated a sole issue for determination, namely:
‘Whether the proposed amendment is a brand new overreaching appeal that should consequently be refused.’
The 2nd & 3rd Respondents did not nominate any issues for determination. They proffered their submissions in answer to the query they posed, id est,
Query: Given this background, can the Court’s discretion be effectively exercised in favour of Reliefs 3 & 4
The Appellant seeks discretionary reliefs from the Court. It is based on the materials before a Court that it exercises discretion judicially and judiciously. Accordingly, the issue as distilled by the Appellant will be our lodestar in the determination of this application.
ISSUE FOR DETERMINATION
Whether it is in the interest of justice for your Lordships to exercise your discretion in favour of granting the prayers in the Applicant’s motion, having regard to the fact that the grant of these Orders will in no way be prejudicial to the case of the Respondents.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that by Order 7 Rule 8 of the Court of Appeal Rules, 2016 and the inherent power of the Court, a notice of appeal and other processes may be amended at any time with leave of Court. It was asserted that a valid notice of appeal can be amended in order to lay bare for ventilation at the appellate Court, the complaints of the appellant against the decision appealed against. The cases ofDICK vs. OUR AND OIL COMPANY LTD(2018) LPELR – 44354 (SC),SALISU vs. MOBOLAJI (2014 ) 4 NWLR(PT 1396)1 at 17-18, FBN PLC vs. MAY MED. CLINICS (2001) 9 NWLR (PT 717) 28 at 44 and KHALIFA vs. ONOTU (2016) LPELR – 41163 (CA) 36- 37 were referred to.
It was opined that the proposed amendments are consistent with the duty of the new counsel instructed by the Appellant to present the Appellant’s case with utmost devotion, sincerity and honesty vide IKPA vs. THE STATE (2017) LPELR 42590 (SC) 30. It was stated that the Respondents would suffer no injustice if the amendment is granted as the 1st Respondent would have the opportunity to consequentially amend his brief and in the case of the 2nd & 3rd Respondents they would have the liberty to respond to all the arguments as they have no existing brief. The case of DICK vs. OUR AND OIL COMPANY LTD (supra) was cited in support.
The Appellant contends that the new issue which it seeks to argue in Relief three of its application is relevant to a just and holistic determination of the appeal, being the issue which this Court raised suo motu and used to dismiss the appeal without giving the parties the opportunity to address the issue.
It was stated that though the said decision of this Court on the issue had been set aside by the Supreme Court, it still exists as a fact but no longer binds the Court and parties and therefore discussions on it are not precluded. The case of OSAFILE vs. ODI (1990) 2 NWLR (PT 137) 2 was called in aid.
It was conclusively submitted that the Records of Appeal which were compiled by this Court and transmitted to the Supreme Court contains the processes and materials which are full, authentic and credible and can be used for the hearing of this appeal.
SUBMISSIONS OF THE 1ST RESPONDENT?S COUNSEL
The 1st Respondent submits that the order which the Supreme Court made in sending the appeal back is that the appeal be re-heard on the processes before this Court. It was stated that nothing in the order of the apex Court permits the parties to amend existing processes and that any discretion of this Court must be exercised within the confines of the order of the Supreme Court, which is limited to re-hearing the appeal based on the existing briefs of the parties and any issue which this Court may raise suo motu.
The cases of OGUNSOLA vs. NICON (1998) 11 NWLR (PT 575) 683 at 691 and UGO vs. OBIEKWE (1989) 1 NWLR (PT 99) 566 at 586 were relied upon.
The 1st Respondent while conceding that an existing valid notice of appeal can be amended at any time, submits that the principle would not extend to cover a case of substitution of one appeal for another under the same notice of appeal. It was contended that the Appellant?s application seeks to substitute or replace the existing notice of appeal with a completely brand new appeal. The materials furnished by the Appellant, it was stated, do not justify the wholesale filing of a brand new notice of appeal vide EDE vs. CHITA (2016) LPELR ? 41031 (CA) at 23. It was posited that the time for appealing against the decision of the Federal High Court in the matter had long elapsed and the brand new appeal which the Appellant seeks to bring is outside the period prescribed by law and there is no application for extension of time to file the brand new appeal. The cases of ADELEKAN vs. ECU-LINE NV (2006) 12 NWLR (PT 933) 33 at 56, OKORO vs. OKORO (2009) LPELR 8413 (CA) at 21-22 and IKUGBANMIRE vs. KUDEHINBU (2013) LPELR? 20535 (CA) at 12 were called in aid.
The 1st Respondent conclusively argued that the object of the proposed ‘amendments’ is to overreach the 1st Respondent rather than putting the disputes existing between the parties as at 2006 before the Court. It was maintained that the Appellant’s brand new notice of appeal is calculated to anticipate and answer the 1st Respondent’s arguments based on the existing notice of appeal. The case of N. I. W. A. vs. S. P. D. C. N. LTD (2008) 13 NWLR (PT 1103) 48 at 67-68, ZENITH BANK vs. OGBODU (2017) LPELR ? 42734 (CA) at 18, YUSUF vs. ADEGOKE (2007) LPELR ? 3534 (SC) at 43 were referred to.
SUBMISSIONS OF THE 2ND & 3RD RESPONDENTS’ COUNSEL
The 2nd & 3rd Respondents submit that it is based on the facts and circumstances presented to a Court that the Court exercises its discretion judicially and judiciously vide WAZIRI vs. GUMEL (2012) 9 NWLR (PT 1304) 185. It was opined that the admission by the Appellant that the Records of Appeal can no longer be located in the Registry of this Court presents a difficult situation for an exercise of discretion in respect of prayers 3 and 4 of the application.
It was contended that prayer 3 seeks to argue a point that did not arise from the proceedings at the Federal High Court and to ask for the same will be asking for the impossible since issues for determination must derive from the grounds of appeal. The cases of OGUNMOLA vs. KIDA (2001) LPELR 6946 (CA) at 12 and AYOOLA vs. EGBEYALO (2018) LPELR – 44804 (CA) at 4-5 were referred to. It was asserted that a Court does not act in vain or make an order which cannot be enforced and therefore prayer 3 should not be granted. The cases of ADEOGUN vs. FASOGBON (2008) 17 NWLR (PT 1115) 149 at 193 and UMEH vs. IWU (2007) 6 NWLR (PT 1030) 416 at 429 were relied upon.
The 2nd & 3rd Respondents submission on prayer 4 of the application is that the Appellant has not stated the extent to which the Supreme Court Record of Appeal will be utilized and that the prayer is overly wide, uncertain and speculative vide GIP NIG LTD vs. AGIP PETROLI INT?L (2010) 5 NWLR (PT 1187) 348 at 418. It was conclusively submitted that prayers 3 & 4 of the application were without merit and constitute an abuse of Court process.
The cases of SARAKI vs. KOTOYE (1992) 9 NWLR (PT 264) 156 at 188, GLOBE MOTORS LTD vs. HONDA MOTOR LTD (1998) 5 NWLR (PT 550) 373 at 381-382 and DINGYADI vs. INEC (NO. 1) (2010) 18 NWLR (PT 1224) 1 at 77-79 were cited in support.
APPELLANT’S REPLY ON LAW
The Appellant maintains that there is nothing in the order of the Supreme Court which limits, circumscribes or detracts from the rights and powers of this Court to hear and determine appeals. The constitutional right of appeal it was posited overrides and dominates most other negative principles aimed at foreclosing it. The cases ACN vs. PETER (2011) LPELR CA/EPT/EK/04/2011, NWANA vs. FCDA (2007) LPELR – 2101 (SC), UGO vs. UGO (2008) 5 NWLR (PT 1079) 1 at 14 and OTTI vs. OGAH (2017) LPELR ? 41986 (SC) were referred to. It was stated that the rule of interpretation of documents is that plain and unambiguous words must be given their literal meaning and that there is nothing in the words used by the Supreme Court which restricts the hearing of the appeal to the existing Notice of Appeal and briefs of argument. It was contended that ?issues between the parties? which the Supreme Court directed this Court to decide are issues arising from the decision of the Federal High Court which is being challenged. It was opined that the proposed amendments to the Notice of Appeal which address issues arising from the judgment of the Federal High Court was within the ambit of what the Supreme Court direction allows this Court to decide.
The Appellant distinguished the case of OGUNSOLA vs. NICON (supra), stating that unlike in the said case, there is no specific direction or order for the appeal to be heard exclusively on the existing Notice of Appeal and briefs of argument. The Appellant submits that amendment entails a wide spectrum of things and that the key focus is whether the proposed amendment will assist the Court in arriving at a just determination of the appeal. It was therefore asserted that the proposed amendments was not a brand new appeal as mis-characterized by the 1st Respondent. The cases of PRP vs. ODIEC (2018) LPELR – 44328 (CA), HUSSENI vs. MOHAMMED (2015) 3 NWLR (PT 1445) 100 at 124 and NWOSU vs. EKEIGWE (2015) 12 NWLR (PT 1472) 80 at 107 were called in aid. The Appellant posited that the 1st Respondent will not be overreached by a grant of the application as he would have the opportunity of addressing the issue raised in the amendment. It was conclusively stated that all the requirements for grant of the amendments were met by the application vide JESSICA TRADING COMPANY LTD vs. BENDEL INSURANCE COMPANY LTD (1993) 1 NWLR (PT 271) 538 SC and KEKERE-EKUN vs. OWOLABI (2008) 2 LRECN 448 CA.
The Appellant in reply to the submissions of the 2nd & 3rd Respondents state that prayer 3 was being sought out of the abundance of caution since the Supreme Court held that parties should have been heard on the said issue which this Court had raised suo motu when it first heard the appeal. That the leave was therefore being sought to address an issue which had been identified by the Court.
The Appellant’s submission in respect of prayer 4 of the application is that it was the Records of Appeal compiled and transmitted by this Court that was used for hearing the appeal at the Supreme Court. That upon the Supreme Court sending the matter back, what was remitted to this Court includes the said Record of Appeal. It was stated that paragraph 17 of the supporting affidavit clearly states the reason for seeking to rely on the Supreme Court Record of Appeal as containing all the processes and other materials that arose from the suit. It was finally stated that the 2nd & 3rd Respondents had failed to show how the application amounts to an abuse of process.
RESOLUTION
Generally, an amendment for the purpose of determining the real question or issue in a proceeding ought to be allowed. Such is the settled legal position that all types of amendment made for the purpose of determining the real questions in controversy between the parties can be accommodated provided that the amendment does not overreach or in any way prejudice the other party.
In the oft-cited English case of CROPPER vs. SMITH (1883) 26 Ch. D 700 at 711, Bowen, L. J. stated:
“It is a well-established principle that the object of a court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights, I know of no kind of error or mistake which, if not fraudulent or intended to overreach the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace … it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of rights.”
See also KAYODE vs. REGISTERED TRUSTEES OF UNITED AFRICAN METHODIST CHURCH (2016) LPELR – 40195 (CA) 1 at 22 and ADEKEYE vs. AKIN-OLUGBADE (1987) 3 NWLR (PT 60) 214.
In ALSTHOM S.A. vs. SARAKI (2000) 14 NWLR (PT 687) 415 Achike, JSC (of blessed memory) stated as follows at page 424:
“Amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected, in the interest of justice, ensuring always that no injustice is occasioned to the other party. The weight of judicial authorities leans in favour of allowing a party to amend its legal processes whenever the need arises in order to ensure that the real matter in controversy between the parties, shorn of manifest errors, mistakes and slips, is adequately brought to focus and determined, with the proviso, however, that the right of adversary party is neither unduly compromised nor unredressed.”
In his own contribution in the said case, Karibi-Whyte, JSC, stated as follows at page 427A-B:
“The basic principle governing the grant of leave to amend is for the purpose of determining the real issue or issues in controversy between the parties … The Courts have always followed the established principle that the fundamental object of adjudication is to decide the rights of the parties, and not to impose sanctions merely for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.
See also UBN PLC vs. SPARKLING BREWERIES LTD (1997) 3 NWLR (PT 491) 29 at 48- 49.
By Order 7 Rule 8 of the Court of Appeal Rules, a notice of appeal may be amended by or with leave of Court at any time. The extant Notice of Appeal in this matter on the basis of which the appeal was heard before the further appeal to the Supreme Court is competent and valid. Once there is a valid notice of appeal it can be amended: OKPALA vs. IBEME (1989) 2 NWLR (PT 102) 208 and ADELAJA vs. ALADE (1994) 7 NWLR (PT 358) 537.
The purpose of an amendment to a notice of appeal is to ensure that the complaint of the appellant against the proceedings appealed against are laid and ventilated before the Court. The law remains as provided for in Order 7 Rule 8 of the Court of Appeal Rules, 2016 that a notice of appeal may be amended by or with leave of the Court at any time: IKECHUKWU vs. NWOYE (2013) LPELR (22018) 1 at 13 and SOUTH ATLANTIC PETROLEUM LTD vs. MINISTER OF PETROLEUM RESOURCES (2013) LPELR (21892) 1 at 17.
The foregoing is the undoubted general legal position. The diacritical circumstances of this matter however present a different proposition. This appeal was returned to this Court by the Supreme Court with a specific direction on the hearing of the appeal; it is the construction, interpretation and scope of the said direction or order of the apex Court that will be key to whether the Appellant is entitled to discretion being exercised in its favour to amend its processes as proposed.
Apropos the foregoing, the exercise of discretion in this matter cannot be properly done by being ahistorical.
At the previous hearing of this appeal in this Court, the issues distilled by the parties were set out on pages 3-5 of the judgment of this Court delivered on 29th April 2008, which is Exhibit A3 of the Further Affidavit as follows:
‘The appellant, in its brief, formulated the following issues for consideration and determination in this appeal.
(i) Whether the learned trial judge was correct to make a case for sapetro which sepetro [sic] did not make itself in order to impose an inapplicable time bar to the complaint? (Ground one)
(ii) Whether the onus was on the minister to justify the seizure of the extant portion of (OPL 246) under enabling legislation and whether the minister was able to do so? (Grounds two and three)
(iii) Whether there was a judicial or judicious ground upon which the learned Judge denied discretionary reliefs?
(Ground four)
The respondent in his brief framed the following issues for determination in the appeal and the cross- appeal.
(a) Whether having regard to the provisions of Order 42 Rule 4(2) of the Federal High Court (Civil Procedure) Rules 2004 and reliefs sought by the Appellant, the learned trial judge was right to hold, as he did, that the judicial review proceedings were issued too late (‘Limitation – Certiorari’)
(b) whether the judicial review proceedings are in any event time and statute barred by the expiry of time pursuant to Section 2(a) of the Public Officer’s Protection Act Cap 379 LFN 1990 (‘Limitation – Public Officer’s Protection’)
(c) whether the Learned Trial Judge was right when he held that there was nothing unlawful in the Respondent’s letters dated 1 and 21 March, 2006 respectively conveying the Respondent’s decision not to grant the Appellant a second OML and requesting certain information from the Appellant as part of the process of relinquishment (The ‘Public Law unlawfulness issue’)
(d) Whether the learned trial Judge was right to hold as he did, that even if the letters of 1 and 21 March 2006 had been unlawful, he would have refused to exercise his discretion to grant the reliefs sought (the ‘Discretion Issue’)
(e) whether the learned trial judge was right to hold than [sic] OPL and an OML can co-exist at the same time in the same average in the same hands (the ‘co-existence of OPL and OML issue’)
These are the issues formulated by the parties as calling for consideration and determination.
After having so identified the issues, the relevant facts of the case were redacted and it was then held that the term granted to the Appellant in OPL 246 had exhausted by effluxion of time and that the appeal had become academic. Consequently, the issues which the parties formulated for determination were neither considered nor determined. On appeal to the Supreme Court, it was held that this Court having decided the appeal on an issue it raised suo motu, without affording the parties a hearing on the issue, was a violation of the Appellant’s right to fair hearing.
The appeal was therefore allowed and the apex Court made the following order:
‘In the circumstances; this Appeal succeeds, and the matter is sent back to the Court of Appeal to decide the issues between the parties and any other issues that it may decide to raise in the Appeal.’
Critical to the resolution of this application is whether the above order of the apex Court is a guidepost on what this Court is to hear and decide on the appeal which it sent back. The 1st Respondent contends that the direction of the apex Court is that the re-hearing by this Court is to be based on the existing notice of appeal and briefs filed. For the Appellant, the order of the apex Court that ‘issues between the parties’ be decided means issues arising from the decision of the Federal High Court being challenged.
Let me iterate that this matter cannot be approached ahistorically. The issues which the parties ventilated at the hearing of the appeal in this Court on 17th March 2008 were not decided in the judgment of this Court delivered on 29th April 2008. The direction/order of the apex Court is plain, univocal and unambiguous. It does not require any aid to construction; it is to be given its literal meaning: ADEJUMO vs. AGUMAGU (2015) 12 NWLR (PT 1472) 1 and LAWAL vs. G. B. OLLIVANT NIGERIA LTD (1972) LPELR – 1764 (SC). It is limpid that ‘the issues between the parties’ are the issues which the parties argued at the hearing of the appeal in this Court on 17th March 2008, as set out on pages 3-5 of the judgment of this Court, Exhibit A3 of the Further Affidavit and which issues were left undecided by this Court in its judgment.
The order of the apex Court indeed circumscribes, delineates and delimits what is to be done by this Court at the hearing of the appeal sent back to it. See UGO vs. OBIEKWE (supra) and OGUNSOLA vs. NICON (supra). The order/direction of the apex Court does not circumscribe the Appellant’s right of appeal; a right the Appellant had fully exercised. The direction/order of the apex Court requires this Court to decide the issues which the Appellant had presented to it in exercise of its right of appeal. The plain, ordinary, natural and literal meaning of the direction/order of the apex Court did not leave it open for the Appellant to amend its processes to introduce or embellish any issue outside the issues which had previously been argued, but were left undecided.
In the circumstances, the peculiar facts of this matter take it outside the general circumstances, where by settled legal principles the notice of appeal can be amended at any time.
The dictates of the direction/order of the apex Court does not leave it open for an amendment to be made to the notice of appeal. Accordingly, the discretion of the Court cannot be exercised in favour of granting prayers 1 and 2 of the application.
With respect to prayer 3 of the application, it is in respect of an issue which this Court raised suo motu and on the basis of which it decided the appeal without affording the parties a hearing on the issue. It is not confuted that it was after the appeal had been argued that the period of licence of the Appellant for OPL 246 effluxed. So the issue of expiration of the licence period could not have arisen at the trial or at the hearing in this Court. However, the fact that this Court had raised the issue suo motu signposts that it is an issue which has a direct bearing on the appeal. Indeed it is an issue which comes within the purview of the direction/order of the apex Court. The fact that it is the Appellant seeking leave to raise the issue does not dilute its significance in the general scheme of this appeal. The said issue could not have been covered by any of the grounds of appeal having arisen after the proceedings at the trial Court and in this Court. The law in its wisdom recognizes that situation such as this could arise and accordingly makes provision for an issue not raised at the trial to be raised on appeal with leave of Court. See ELUGBE vs. OMOKHAFE (2004) 18 NWLR (PT 905) 319, TIAMIYU vs. OLAOGUN (2008) 17 NWLR (PT 1115) 86 and STATOIL NIGERIA LIMITED vs. INDUCON NIGERIA LTD (2018) LPELR (44387) 1 at 13.
The issue which the Appellant seeks leave to raise is substantial, no further evidence needs be adduced for the same to be resolved. Indeed, justice demands that the said issue be taken and fully ventilated by the parties: AWUSA vs. NIGERIAN ARMY (2018) LPELR (44377) 1 at 28-30 and OKENWA vs. MILITARY GOVERNOR, IMO STATE (1996) 2 NWLR (PT 455) 394 at 407.
Now, a Record of Appeal is a reproduction of all that occurred in the court from which the appeal emanates. It consists of the proceedings and relevant processes used for the proceedings. See NATIONAL INLAND WATERWAYS AUTHORITY vs. SPDC (2011) LPELR (1964) 1 at 21, SKYE BANK PLC vs. TUNS INT?L HOLDINGS LTD (2014) LPELR (22690) 1 at 18 and ADESINA vs. ADENIRAN (2002) 6 NWLR (PT 762) 84.
It has not been confuted that the Record of Appeal transmitted to the Supreme Court contains all the necessary materials on which this Court can review the decision of the lower Court appealed against. The said Record being fit for purpose, discretion ought to be exercised in favour of granting Prayer 4 of the application. This will also conduce to effect being given to the order/direction of the apex Court for the appeal to be decided on the issues between the parties and any other issues that may be raised by the Court. The Record of Appeal is an indispensable and integral part of the hearing of an appeal. See OKOCHI vs. ANIMKWOI (2003) 18 NWLR (PT 851) 1 and NIGERIA STOCKBROKERS LTD vs. OGBORU (2018) LPELR (44534) 1 at 10.
The conflating of the foregoing is that the application succeeds in part. For good order sake and for the avoidance of doubt it is hereby ordered as follows:
1. The Appellant is granted leave to raise the following issue at the hearing of the appeal:
On the facts and circumstances of this case, has the term of OPL 246 expired by effluxion of time since 28 March 2008, and if so, does the assumed expiration of the term of OPL 246 have the effect of rendering this appeal devoid of live issues and therefore academic
2. The Appellant is to file an Amended Appellant’s Brief within 30 days from today to incorporate argument on the fresh issue and no more.
3. The Respondents upon service of the Amended Appellant’s Brief shall have 30 days to make consequential amendments to the 1st Respondent’s Brief in respect of the fresh issue only and for filing of the 2nd and 3rd Respondents’ Brief.
4. The Appellant, if it considers it necessary, shall file a Reply Brief in accordance with the stipulations of the Court of Appeal Rules.
5. The Appellant is granted leave to use the Records compiled and certified as Appeal No. SC/143/2008 for the hearing of this appeal.
6. The appeal is fixed for hearing on 6th May 2019.
7. There shall be no order as to costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read the ruling just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A., and I am in agreement with it.
The application therefore succeeds in part and I also abide by the orders as granted in the lead ruling.
TOBI EBIOWEI, J.C.A.: I was afforded the opportunity of reading in draft the judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU, J.C.A.
I agree with the reasoning and conclusion reached therein in the said judgment.
Appearances:
Chief Kanu Agabi, SAN with him, Godwin Omoaka, Esq., Ms. J. Uchenna-Njoku, Victor Igwe, Esq., Chidiebere Ejiofor, Esq. and Ms. Olusina OdunsiFor Appellant(s)
Chief Robert Clarke, SAN with him, James Okoh, Esq., I.B. Muhammed, Esq. and Ms. Benedicta Onyeodi for the 1st Respondent.
Adeola Adedipe, Esq. for the 2nd & 3rd RespondentsFor Respondent(s)
