WEMA BANK PLC v. ALHAJI ASANI AWOTUNDE & ORS.
(2010)LCN/3582(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of February, 2010
CA/I/151/2007
RATIO
APPEAL: WHETHER THE APPEAL COURT HAS POWER TO AMEND PROCESS AT ANY STAGE
No doubt, the Court of Appeal is clothed with powers and the jurisdiction to amend, at any stage, processes before the court in order to bring the real issues in controversy before the court for determination. Order 7 Rule 10(1) of the Court of Appeal Rules, 2007 under which the present application was brought provides:
10.(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of Notice of intention not to contest an application under Rules 8 above.
From the above provisions and it is trite that the court may enlarge the time for ‘the doing of anything’, which includes leave to amend a Notice of Appeal as sought by the Applicant. PER CHIDI NWAOMA UWA, J.C.A.
APPEAL: WHETHER A DEFECTIVE NOTICE OF APPEAL CAN BE CURED BY AN AMENDMENT
In the case of AMADI V. OKOLIE (1977) 7 S.C. 57 AT 58 IDIGBE JSC (of blessed memory) had this to say in respect of defective Notices of appeal:
”The notice of appeal is a very important document because it is the foundation of the appeal and if it is defective the Court of Appeal has inherent power to strike it out on the ground that it is incompetent and in any appropriate case it will not hesitate to do so’
Also see the case of TUKUR V. GOV. GONGOLA STATE (1988) 1 NWLR (PT.68) 39 and NWANWATA V. ESUMEI (1988) 8 NWLR (PT.563) 650. PER CHIDI NWAOMA UWA, J.C.A.
APPEAL: NATURE OF THE NOTICE OF APPEAL
The position of the Notice of Appeal in our appeal system is akin to the position the writ of summons occupies in ordinary civil action. It initiates the appeal and where it suffers from any defect the appeal itself becomes defective and subject to be struck out as incompetent, see OAMBAM V. LELE (2000) 11 NWLR (PT.678) 413. A Notice of appeal is a condition precedent to effectively appeal against any appealable decision. If a Notice of Appeal is defective, then the Court of Appeal lacks the legal competence to entertain it, as rightly argued by the learned counsel to the 2nd and 4th Respondents respectively. PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
WEMA BANK PLC – Appellant(s)
AND
1, ALHAJI ASANI AWOTUNDE
2. SHERIFF, HIGH COURT OF
JUSTICE OSHOGBO, OSUN STATE
3. CHIEF KEHINDE TENIOLA
4. JIMOH BODE BABALOLA – Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Ruling): In a motion on Notice dated 27th day of October, 2009 and filed on the 28th day of October, 2009, the applicant prayed for the following orders:
‘1. AN ORDER of this Honourable court granting the Appellant/Applicant leave to amend its Notice of Appeal filed on the 23/08/2006 before this Honourable court as contained in the schedule of amendment attached to this motion.
2. An order of this Honourable court to deem as properly filed and served the Amended Notice of Appeal already filed and served.
AND FOR SUCH FURTHER or other orders as this Honourable court may deem fit to make in the circumstances of this case.’
The application was brought pursuant to Order 7 Rule 10(1) of the Court of Appeal Rules, 2007. It was supported by a six (6) paragraph affidavit sworn to by one EnosJacob, a legal practitioner in the law firm of Musibau Adetunbi & Co, counsel to the Applicant. The amendment was sought in line with paragraph (3) of the schedule attached to the affidavit, that is, to insert the name Musibau Adetunbi Esq on the top of Musibau Adetunbi & Co, wherever the latter appears in the Notice of Appeal filed on the 23/08/06. In moving the application on behalf of the applicant, the learned counsel, Musibau Adetunbi Esq, identified a sale issue for determination, that is: Whether a Notice of Appeal signed in the name of a firm could be amended? In arguing that it could, the learned counsel referred to the popular case of OKAFOR v. NWEKE (2007) 10 NWLR PT.1043 P.521 AT P.259. He submitted that from the above decision there is a clear difference between the word ‘incompetent’ and the words ‘null and void’. He argued that something that is incompetent could be amended and that the Supreme Court did not say in the above decision that such process is null and void and did not say such process could not be amended. The learned counsel to the Applicant tried to distinguish the situation in Nweke’s case, where a motion was withdrawn; he submitted that in this case it is a Notice of Appeal. In referring to paragraph 5 of the affidavit in support, it was argued that the error based on which this application was brought is typographical. It was further argued that the sins of counsel should not be visited on the litigant and that if the appeal is struck out, it is the litigant that suffers. Reference was made to pages 524 and 533 of the above decision.
It was further submitted that the application to amend, is to amend the previous error, reliance was placed on the case of COLE V. MARTINS (1968) 5 NSCT Cases P.120, which learned counsel argued was not overruled by the decision in Nweke’s case. Also referred to is the case of UNITY BANK PLC. V. ABIOLA (2008) 42 WRN P.112, AT P.124 – 130, it was argued that the appeal was heard without amendment.’Also relied upon was the case of GAMBARI V. MAHMUD (2008).14 NWLR PT.1107. P.209 AT 212 RATIO 3. Also SHAMU VS. AFRIBANK OF NIGERIA PLC, 13 NWLR (2000) PT. 684, P.392 G-H, and BELLO AND OTHERS V. A. G. OYO STATE (1986) 2 NSCT Cases 1257 AT 1284 LINE 50, 1285 LINE 5.
It was argued that the complaints in paragraphs 4 and 5 of the counter affidavit are what the applicant is seeking to rectify. We were urged to allow the amendment.
The 1st and 3rd Respondents even though served with the motion papers and the hearing Notice on 6/1/10 neither responded to the application nor appeared in court when the application was moved on 21/1/10.
Even though Mr. K. A. Tijani on behalf of the 2nd Respondent did not file any counter affidavit in opposition but, opposed the application on points of law and argued that the Notice of Appeal dated 23/8/06 is incompetent. He relied on the case of OBIOSA V. NIGERIA AIR FORCE (2004) 9-12 SCM, P.S7 AT 91, to the effect that an incompetent Notice of Appeal cannot be validated by amendment. Reference was also made to the case of CHIEF OLA BURAIMO VS. CHIEF L. OLAJUNWO OYELANO & 6 ORS, CA/I/136/2004 delivered on 28/5/09 by this division of the court, we were urged to refuse the Application.
Mr. Olusola Ajao in opposing the application on behalf of the 4th Respondent filed a Counter Affidavit of seven (7) paragraphs dated and filed on 20/11/09, he relied on all the averments and aligned himself with the arguments of counsel to the 2nd Respondent. In addition, he cited and relied upon the case of ODUNZE VS. NWOSU (2007) 31 NSCQLB P. 28. It was argued that a defective Notice of Appeal cannot be amended. Also OKAFOR V. NWEKE (Supra), P.1027, Paragraphs A-B, was relied upon in arguing that the incompetent Notice of Appeal cannot be cured by an amendment. We were urged to strike out the application as well as the Notice of Appeal for being incompetent before the court as a consequential order, as well as the appeal.
In response, on points of law Mr. Adetunbi submitted that there is no application before this court challenging the competence of the appeal or otherwise. He argued that unless invited back by the court, the court cannot strike out the appeal without hearing the parties. Reference was made to Order 7 Rule 1 of the Court of Appeal Rules, 2007.
Finally, that the decision in Nweke’s case was not to the effect that a Notice of Appeal cannot be amended.
No doubt, the Court of Appeal is clothed with powers and the jurisdiction to amend, at any stage, processes before the court in order to bring the real issues in controversy before the court for determination. Order 7 Rule 10(1) of the Court of Appeal Rules, 2007 under which the present application was brought provides:
10.(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of Notice of intention not to contest an application under Rules 8 above.
From the above provisions and
it is trite that the court may enlarge the time for ‘the doing of anything’, which includes leave to amend a Notice of Appeal as sought by the Applicant.
From the submissions of learned counsel there does not seem to be any problem with the contents of paragraphs (1) and (2) of the schedule of amendment but, with paragraph (3) which touches on the competence of the entire Notice sought to be amended, which reads:
3. ‘Insert the name ‘MUSIBAU ADETUNBI ESQ’ on the top of wherever the latter appear in the Notice of Appeal filed on the 23/08/2006.’
Generally, some amendments are inconsequential to the entire case even on appeal, and do not touch on the root of it and/or the real issues to be examined by the court. In the present case, can the leave to amend the Notice of Appeal filed on the 23/08/2006 before this court as contained in the schedule of amendment attached to the motion paper be granted by this court, bearing in mind the earlier reproduced paragraph (3) of the schedule above?
The grant or refusal of an amendment depends on the nature of the amendment sought. Each application must be looked at with the surrounding circumstances. The learned applicant’s counsel on relying on the case of OKAFOR V. NWEKE (Supra) cited and also relied upon by the learned counsel to the 2nd and 4th Respondents respectively, argued that something that is incompetent could be amended, and attributed the way the name of counsel appeared on the Notice of Appeal filed on 23/08/2006 as inadvertent omission by the typist which was overlooked by counsel. Paragraph 5 reads:
5. ‘In typing the Notice of Appeal, the typist inadvertently omitted the name MUSIBAU ADETUNBI ESQ believing that the name MUSIBAU ADETUNBI &. CO, is one and the same with the former and this was inadvertently overlooked by the counsel.’
The above error was termed as typographical by the learned counsel to the applicant. Before I go into whether the error was typographical or not, it is necessary to examine the original Notice of Appeal filed on the 23/08/06 for which leave is now sought to amend in prayer one of the motion papers as shown in paragraph (3) of the schedule of amendment. The Notice of Appeal sought to be amended can be found on Pages 97 – 100 of the printed records of Appeal. The said Notice was signed by Musibau Adetunbi & Co, being the applicant’s solicitors as also deposed in paragraph (4) of the 4th Respondent’s counter affidavit. The name as it appears does not seem to be a typographical error but clearly signed by a firm, as rightly argued by the learned counsel to the 4th Respondent and deposed to in paragraph (5) of his counter affidavit, is not a legal practitioner. The question now is: can the defective Notice of appeal signed by a firm be rectified or cured by inserting the name of Musibau Adetunbi Esq of counsel on top as prayed?
The learned counsel to the 2nd Respondent also argued that the Notice of Appeal of 23/08/06 is incompetent and that an incompetent Notice of Appeal cannot be validated by amendment. As I said earlier in this Ruling, the learned counsel to the 4th Respondent aligned himself with this line of argument, that is, that an incompetent Notice cannot be cured by an amendment.
OKAFOR V. NWEKE (Supra), relied upon by counsel on both sides considered whether the motion on notice, notice of cross – appeal and other processes signed in the name of a law firm was competent. It was held that the processes were incompetent bearing in mind the provisions of Sections 2(1) and 24 of the Legal Practitioner’s Act, cap 207 Laws of the Federation of Nigeria, 1990. The above provisions made it clear that only a person in the roll of Legal Practitioners can practice as barrister and solicitor, and sign processes, not the firm.
The learned applicant’s counsel has not argued that the Notice of appeal filed on 23/08/2006 is valid or competent but, admitted to its incompetence and invalidity, having made reference to its status as highlighted in the counter affidavit filed by the 4th Respondent. The learned counsel argued that it is the defect complained about in paragraphs 4 and 5 of the counter affidavit that he seeks to correct by the present application. He has conceded, no doubt, that the original Notice of appeal is not as it should be. The complaint in the 4th Respondent’s counter affidavit, paragraph 4, is that the Notice of appeal filed on 23/8/06 was signed by Musibau Adetunbi & Co, and in paragraph 5, that ‘Musibau Adetunbi & Co’ is not a legal practitioner.
The learned applicant’s counsel has termed the defect as ‘typographical error’ which was said to have been done by the typist, which as shown in paragraph (5) of his affidavit learned counsel seeks leave to amend.
The big question is: can a defective Notice of Appeal be cured by an amendment? As I stated earlier in this Ruling each case should be considered on its own peculiar circumstances in regard to the Applicability of Rules of Practice. No doubt, Order 7 Rule 10(1) permits the enlargement of time provided by the Rules of this court for the doing of anything to which the Rules apply. This Rule would be applicable if the validity of the original Notice is not in question, that is, a valid Notice of Appeal.
In the case of AMADI V. OKOLIE (1977) 7 S.C. 57 AT 58 IDIGBE JSC (of blessed memory) had this to say in respect of defective Notices of appeal:
”The notice of appeal is a very important document because it is the foundation of the appeal and if it is defective the Court of Appeal has inherent power to strike it out on the ground that it is incompetent and in any appropriate case it will not hesitate to do so’
Also see the case of TUKUR V. GOV. GONGOLA STATE (1988) 1 NWLR (PT.68) 39 and NWANWATA V. ESUMEI (1988) 8 NWLR (PT.563) 650.
The position of the Notice of Appeal in our appeal system is akin to the position the writ of summons occupies in ordinary civil action. It initiates the appeal and where it suffers from any defect the appeal itself becomes defective and subject to be struck out as incompetent, see OAMBAM V. LELE (2000) 11 NWLR (PT.678) 413. A Notice of appeal is a condition precedent to effectively appeal against any appealable decision. If a Notice of Appeal is defective, then the Court of Appeal lacks the legal competence to entertain it, as rightly argued by the learned counsel to the 2nd and 4th Respondents respectively.
If there was originally an invalid or incompetent Notice of Appeal filed on 23/08/06 having been signed by the firm of Musibau Adetunbi & Co, that is not a legal practitioner in the roll of practitioners as barrister and solicitor, then afortiori there would be no notice of appeal capable of being amended in line with the application sought to validate the earlier notice. See OLANREWAJU V. B.O.N. LTD (1994) 8 NWLR (PT.364) 622. Such defective Notice of Appeal as in the present case, cannot be cured by the leave to amend the Notice, and by filing an amended Notice of Appeal reflecting the amendment sought as has been done by the Applicant in this case. The case is different, where a valid notice is sought to be amended with the leave of court, if filed outside the statutory period.
The learned Appellant/Applicant’s counsel had argued that the error was the inadvertent omission by the typist, to this I would say that learned counsel ought to be more diligent in making out time to vet processes before filing, the typists are most unlikely to have legal training. Even where the documents are prepared by junior counsel in the same firm, the more experienced counsel ought to make out time to go through what has been prepared, before filing, that way a lot of processes would have been saved from premature striking out or dismissal whatever the case may be, time and money would have been saved too. Therefore, the argument of counsel that if this appeal is struck out the litigant suffers for the sins of counsel, in my opinion, counsel should be more careful if not meticulous, concerning documents to be filed in court, otherwise the litigant will continue to suffer and pay for the sins of counsel and mistakes of typist. It is unfortunate, in a situation such as this, where the root of the appeal is defective; the litigant has to pay the price of the sins of counsel and/or typist whatever the case may be. There is nothing this court can do to save the situation; the law must take its course.
In ODUNZE V. NWOSU (Supra) it was held per Chukwuma-Eneh, JSC at Page 28 thus:
‘Once the Notice of Appeal is vitiated in anyway the appeal becomes incompetent and liable to be struck out. See Also KOLAWOLE V. ALBERTO (1989) 2SC (PT.111) 187. The point being taken here is that where a notice of appeal as the instant one is defective or incompetent in any respect for any reason, there is no valid appeal and the court would have no jurisdiction to deal with the purported appeal but to strike it out.’ (underlining mine for emphasis).
‘For any reason’ in the present case would include typographical error, and inadvertence omission by the typist or counsel and the like.
In OLOWOKERE V. AFRICAN NEWSPAPERS (1993) 5 NWLR (PT.2951 583 it was held that where a notice of appeal is a nullity, the effect is that there was never an appeal lodged or filed, ab initio. In other words, there is no Notice of Appeal to amend. In the present case therefore, the Notice of Appeal filed on 23/08/06 was defective and incompetent having been signed by the firm of Musibau Adetunbi & Co. that is not a barrister and solicitor in the roll of legal practitioners.
An incompetent Notice of Appeal has the effect of there being no Notice of Appeal, and if there is no Notice of Appeal there is nothing to seek leave to amend and I so hold.
In the same vein, the amended Notice of Appeal sought to be deemed as properly filed and served as sought in prayer (2) of the motion paper is incompetent, as an incompetent notice cannot be cured by amendment.
It was argued by the learned counsel to the Applicant, Mr. Adetunbi that the Appeal ought not to be struck out as there is no application before this court challenging the competence of the appeal and that the parties need to be invited back and be heard before a striking out of the appeal could be considered. In my considered view, this argument does not hold water, the mere challenge of the prayers sought in the present application is certainly a challenge of the competence of the appeal, which process starts with the filing of a valid Notice of Appeal, no other argument is required and I so hold.
In OKOLI V. AJOSE (1994) 8 NWLR (PT.362) P.300 it was held concerning the amendment of an incompetent Notice of Appeal thus: (per Uwaifo JCA (as he then was).
‘Once the original or the first notice of appeal is not validly filed, it is incompetent and there is nothing to amend. Therefore, an incompetent notice of appeal cannot be amended’.
See also ERISI V. IDIKA (No.1)(1987 4 NWLR (PT.66) 50.
In the final analysis, the application for leave to amend the Notice of Appeal filed on 23/08/2006 will and is hereby refused, the same notice being incompetent cannot be amended, it is as good as there being no notice, therefore, there is nothing to amend and I so hold.
Similarly, with the second prayer, since there is no valid notice of appeal, the purported amended notice prayed to be properly filed and served is also incompetent and same is struck out.
In consequence, the purported Notice of Appeal filed on 23/08/06 is struck out for being incompetent along with the purported appeal.
I award costs of N10.000,00 each to the 2nd and 4th Respondents respectively.
SIDI DAUDA BAGE, J.C.A.: I entirely agree with the lead Ruling of my learned brother, CHIDI NWAOMA UWA, J.CA.
I abide with consequential orders made in the said Ruling including Costs.
MODUPE FASANMI, J.C.A.: I have read before now the ruling just delivered by my learned brother C.N. UWA J.C.A. She has dealt exhaustively with the issues involved. In consequence, the purported notice of appeal filed on 23/08/2006 is equally struck out by me for being incompetent. I abide with the order as to costs.
Appearances
Musibau Adetunbi Esq with E. Jacob and I. J. OputaFor Appellant
AND
Tijani K. A. Principal State counsel, Osun State Ministry of Justice
Olusola Ajao EsqFor Respondent
