THE NIGERIA SECURITY & CIVIL DEFENCE CORPS BENUE STATE COMMAND & ANOR v. AGER GBERTUE SAMUEL
(2019)LCN/12813(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/MK/53/2018(R)
RATIO
COURT AND PROCEDURE: WHETHER PARTIES AND COURT ARE BOUND BY PRAYER IN MOTION
“It should be stated that parties and the Court are bound by the prayers in a motion paper and the Court will not go outside the prayer on a voyage of discovery to ‘ferret out’ what precisely an appellant is looking for. See Commissioner for Works, Benue State v Devcon Development Consultants Ltd (1988) 3 NWLR (Pt. 83) 407, 420, Government of Gongola State v Tukur (1989) 4 NWLR (Pt. 117) 592, 603, Okoya v Santilli (1990) 2 NWLR (Pt. 131) 172, 205 and Luna v Commissioner of Police, Rivers State Police Command supra. 288.” PER JOSEPH EYO EKANEM, J.C.A.
COURT AND PROCEDURE: WHETHER THE COURT CAN MAKE UNSOLICITED ORDERS OR GRANT PRAYERS NOT SOUGHT BY PARTIES
“It is trite that a Court cannot make unsolicited orders or grant prayers not sought by parties; Umeoji v Azodo (2011) LPELR- 9179(CA); Obitope & Ors v. Makanjuola & Ors (2017) LPELR – 42312 (CA). It is for the parties to present their case and it is for the Court to decide the matter as presented by them. This is fundamentally the reason why parties trust be specific in prayers or orders they seek from the Court. As graphically put by the Supreme Court per Fabiyi, JSC in Nwaogu v. Atuma & Ors (2013} LPELR-20667(SC) at page 20 of the E-Report…It was not the business of the Court below to proceed ‘like a Knight errand’ to fish for disqualifying factors for the office of Senator which were not specifically raised in the question for determination.” PER ONYEKACHI AJA OTISI J.C.A
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. THE NIGERIA SECURITY & CIVIL DEFENCE CORPS BENUE STATE COMMAND
2. JIBRIL M. SHUAIBU (COMMANDANT NSCDC) BENUE STATE COMMAND Appellant(s)
AND
AGER GBERTUE SAMUEL Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Lead Ruling):
By a motion on notice dated 2/7/2018 and filed on 3/7/2018, appellants/applicants pray for:
1. AN Order for leave of this Honourable Court enabling the Appellants to amend the Appellant’s Brief of argument.
2. AN Order for leave of this Honourable Court deeming the proposed amended Appellant’s Brief of Argument as being properly filed and served as separate processes.
3. And for such further Order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
The grounds upon which the application is made are set out in the motion paper as follows:
1. That the Appellant’s Brief of Argument dated 28th March, 2018 filed and served, mistakenly carried the heading of the trial Court instead of the heading of the Court of Appeal and a lot of omissions as a result of the manifestation of a typographical error.
2. That the manifested typographical error was caused as a result of inadvertence human weaknesses and the common mistake that human beings would not escape.
3. That the manifested typographical error is not affecting the substance of the processes but rather its effects the form.
4. That the error is curable, it does affect the merit of the case. The application for leave to amend is made timeously as issues were not joined.
5. That the grant of this application will preserve the Res and will also serve the course of substantial justice without any prejudice.
6. That leave of this Hon. Court is necessary in order to enable the Appellants to amend the Appellant?s Brief of Argument for the interest of justice.
The application is supported by a 21 paragraph affidavit deposed to by Shuaibu Anthony E. of the Legal Unit of the 1st appellant/applicant. Attached to the affidavit is a copy of the proposed amended appellants? brief of argument which is curiously marked ‘Exhibits NSCDC B1, B2, B3, B4, B5, B6, B7, B8, B9, B10, B11, B12, B13, B14, B15, B16, B17, B18, B19, B20, B21, B22, B23, B24, B25, B26, B27, B28, respectively’. It is strange that one document (the proposed amended brief of argument) is marked with so many numbers, corresponding with its pages. The practice is to mark such a document with one exhibit number. That curiosity is however not fatal.
I should also mention that the appellants/applicants filed along with the motion a written address. The address was, of course, filed without an order of Court and therefore is incompetent not being a requirement of an application for amendment. Consequently, I hereby strike out the same.
The respondents did not file a counter – affidavit.
At the hearing of the application on 22/1/2019, Y. Jauro, Esq. for the applicants referred to and relied on the processes filed on behalf of the applicants in moving the motion. T. Akor, Esq. for the respondents opposed the application on the basis that it was calculated to delay justice.
The first point to note about the application is that it is in part brought pursuant to Order 7 Rule 8 of the Court of Appeal Rules, 2016, which provides that, ‘A notice of appeal may be amended by or with the leave of the Court at any time.’
The application is not for amendment of notice of appeal but for leave to amend appellant’s brief of argument. Order 7 Rule 8 relied upon by the applicants is therefore irrelevant to the application.
Nevertheless, this Court has both the general power to amend a process before it pursuant to Order 4 Rule 1 of the Court of Appeal Rules, 2016 and inherent power to order an amendment to meet the justice of an appeal before it. Therefore, the error in stating the order under which the application is brought is of no moment as a party is not to be denied any relief to which he is entitled merely because he sought it under the wrong law, statute or rules. See Falobi V Falobi (1976) 9 SC 1, 13, FRIN V Gold (2007) 11 NWLR (Pt. 1044) 1, 26 and Dick V Our and Oil Co Ltd (2018) 14 NWLR (Pt. 1638) 1, 17.
I have already set out the prayers in the motion in this ruling. For its importance, I will take the liberty of setting it out again hereunder:
AN ORDER for leave of this Honourable Court enabling the Appellants to amend the Appellant?s Brief of Argument.
The prayer does not specify what is to be amended in the appellants/applicants’ brief of argument. It is imprecise, vague and bereft of particulars of what is to be amended. There is also no schedule setting out what is to be amended. It is the duty of counsel to formulate and state the exact amendment he seeks. Failure to do so is fatal to the prayer. In the case of Ozueh V Ezeweputa (2005) 4 NWLR (Pt. 915) 221, 241 Ogunbiyi, JCA (as he then was) stated that;
?There is the need for prayers to be specific, decisive, precise and to the point in such a way that there can be no question or ambiguity of what is asked for.
In Luna V Commissioner of Police, Rivers State Police Command (2018) 11 NWLR (Pt. 1630) 269, 293 Augie, JSC, expressed the same position as follows:
‘It is well, settled that where a particular relief sought by a party is too wide, vague or unmanageable or unspecific, the Court will refuse to grant such a relief because an Order should not be made in vacuo.’
It has also been held that a relief, seeking language must be specific, precise, concise and not vague and casual. See Attorney – General of Lagos State v Attorney – General of the Federation (2003) 111 LRCN 1867, 2001.
Admittedly, in the grounds upon which the reliefs are sought it is stated, inter alia,
1. That the Appellants’ Brief of Argument dated 28th March 2018 filed and served, mistakenly carried the heading of the trial Court instead of the heading of the Court of Appeal and a lot of omissions as a result of the manifestation of a typographical error.
It should be stated that parties and the Court are bound by the prayers in a motion paper and the Court will not go outside the prayer on a voyage of discovery to ‘ferret out’ what precisely an appellant is looking for. See Commissioner for Works, Benue State v Devcon Development Consultants Ltd (1988) 3 NWLR (Pt. 83) 407, 420, Government of Gongola State v Tukur (1989) 4 NWLR (Pt. 117) 592, 603, Okoya v Santilli (1990) 2 NWLR (Pt. 131) 172, 205 and Luna v Commissioner of Police, Rivers State Police Command supra. 288.
The fact that in the grounds for the application the applicants have given an inkling of the nature of the amendment they are seeking is of no help to the applicants. This is because grounds for a relief are not synonymous with the reliefs. Order 6 Rule 1 of the Court of Appeal Rules, 2016 states:
Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rules under which it is brought and the ground for the relief sought.
This shows that grounds for the reliefs sought are not a part of the reliefs. In the Black?s Law Dictionary 8th ed. Page 723, the phrase ‘ground’ as a noun is defined as,
The reason or point that something (as a legal claim or argument) relies on for validity.
In the case of Luna v Commissioner of Police, Rivers State Police Command supra. it was contended that a relief sought by the appellant was vague, inchoate, ambiguous and generally at large. The answer of the appellant was that the relief could not be said to be vague as the particulars thereto though not stated in the relief were provided in the grounds which it was contended is an essential part of the relief. In rejecting the answer of the appellant, Augie, JSC, considered Order 2 Rule 2 (1) of the Fundamental Rights (Enforcement Procedure) Rules and opined that
“…It follows that there can be no question of the grounds filling up gaps in the reliefs sought. A ground for an application is a terse statement why the application is being brought…”
The above statement of the law applies with equal force in this instance. Prayer 1 in the motion paper is vague, imprecise and ambiguous. It must be refused. Prayer 2 is an accessory prayer to prayer 1 and must fall with it. Besides Courts do not deem exhibits as properly filed and served, nor do Courts deem proposed processes as properly filed and served.
For the reasons stated above, I refuse the application.
The parties shall bear their costs.
JOSEPH TINE TUR, J.C.A.: I read an advance copy of the “ruling” of my learned colleague, J.E. Ekanem, JCA and do concur with the reasoning and conclusion that the application lacks merit and is dismissed.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Ruling just delivered by my Learned Brother, Joseph Eyo Ekanem, JCA, dismissing this application. I agree completely with the reasoning and conclusions of my Learned Brother, which I adopt as mine. I will only emphasize few points.
It is trite that a Court cannot make unsolicited orders or grant prayers not sought by parties; Umeoji v Azodo (2011) LPELR- 9179(CA); Obitope & Ors v. Makanjuola & Ors (2017) LPELR – 42312 (CA). It is for the parties to present their case and it is for the Court to decide the matter as presented by them. This is fundamentally the reason why parties trust be specific in prayers or orders they seek from the Court. As graphically put by the Supreme Court per Fabiyi, JSC in Nwaogu v. Atuma & Ors (2013} LPELR-20667(SC) at page 20 of the E-Report
“It was not the business of the Court below to proceed ‘like a Knight errand’ to fish for disqualifying factors for the office of Senator which were not specifically raised in the question for determination. The issues the 1st respondent ‘had in mind’ which were not embedded in question 3 for determination are immaterial as the appellant who lacked the ‘power of clairvoyance’ must, only by operation of law, join issues upon the pleaded case of the 1st respondent served on her.”
In the case of Ozueh & Ors v. Ezeweputa & Ors (2004) LPELR 5465(CA) at page 20 Of the E-Report, Ogunbiyi, JCA (as he then was) said:
“Courts are not expected to make orders at large and without specific restrictions to that placed before them. It is not also its duty to go on voyage of discovery in finding out what particular judgment was made and in respect of which the application prays. These are all necessary information that must be placed before it as a matter of course.
There is need for prayers to be specific, decisive, precise and to the point in such a way that there can be no question or ambiguity of what is asked for.”
The Appellant had sought:
1. An Order far leave of this Honorable Court enabling the Appellants to amend the Appellant’s Brief of argument.
2. An Order for leave of this Honorable Court deeming the proposed amended Appellant?s Brief of Argument as being properly filed and served.
3 And for such further Order(s) as this Honorable Court may deem fit to make in the circumstancs of this case
The grounds upon which the application was predicated, stated thus:
1. That the Appellant’s Brief of Argument dated 28th March, 2018 filed and served, mistakenly carried the heading of the trial Court instead of the heading of the Court of Appeal and a lot of omissions as a result of the manifestation of a typographical error.
The prayer, which the Court was called upon to grant, gave no details of what omissions were sought to be amended. No schedule setting out exactly what was to be amended was given. I agree with my learned Brother that the prayer was vague on the terms of the amendment sought. The Court cannot grant a blanket prayer simply allowing an amendment without knowing what exactly what was sought to be amended.
For these reasons and for the more comprehensive reasons given by my learned Brother, I also refuse this application and abide by the orders made.
Appearances
Y. Jauro, Esq.For Appellant(s)
T. Akor, Esq.For Respondent(s)
