KAYODE & ORS v. REGISTERED TRUSTEES OFUNITED AFRICAN METHODIST CHURCH

CITATION: (2016) LPELR-40195(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON WEDNESDAY, 13TH JANUARY, 2016Suit No: CA/L/1143/2010(R)

Before Their Lordships:

AMINA ADAMU AUGIE Justice, Court of AppealSAMUEL CHUKWUDUMEBI OSEJI Justice, Court of AppealYARGATA BYENCHIT NIMPAR Justice, Court of Appeal

Between1. PRINCE TONY KUNLE KAYODE2. CHIEF HAMMED ADESINA ADETORO3. DR BABATUNDE FATUNMBI4. ALHAJI LATEEFADIGUN5. MADAM ESTHER CHIBUTUTU6. MR EMMANUEL IDUBOR7. MRS TITI OLAWOYIN (NEE JOSEPH)(For themselves and as Representatives of All other Partiessued as “PERSONS UNKNOWN”)8. MRS MORENIKE OYEBODE

- Applicant(s)

AndREGISTERED TRUSTEES OF UNITED AFRICAN METHODISTCHURCH - Respondent(s)

RATIO DECIDENDI

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1 APPEAL - APPLICATION FOR LEAVE TO APPEAL: What anapplication to appeal must contain"Order 7 Rule 7 of our Rules says that the "Application for leaveto appeal from a decision of a Lower Court SHALL containcopies of the following items - (a) Notice of motion for leave toappeal (Form 5);(b) A certified the copy of the decision of theCourt below sought to be appealed against;(c) A copy of theproposed grounds of appeal; and(d) Where leave has beenrefused by the Lower Court, a copy of the order refusingleave."Per AUGIE, J.C.A. (Pp. 20-21, Paras. F-B) - read in context

2 COURT - DUTY OF COURT: Duty of court in consideringinterlocutory applications"It is trite that while considering interlocutory applications likethis one, it behoves this Court to exercise extra-caution andavoid/refrain from making comments or observations that mayin effect predetermine the substantive or main issues in theAppeal, which are relative to the interlocutory application - seeGadi V. Male (2010) 7 NWLR (Pt. 344) 225 and Kotoye V. Saraki(1994) 7 NWLR (Pt 357) 414 SC, where Kutigi, JSC (as he thenwas) stated as follows -"I must observe that being aninterlocutory application; I must avoid making any observationin the judgment which might appear to prejudge the mainissues in the proceedings relative to the interlocutoryapplication (see for example Egbe V Onogun (1972) 1 All NLR(Pt 1) 95; Ojukwu V Governor of Lagos Sate (1986) 3 NWLR(Pt.26) 39, It was, therefore, necessary for me to haverestricted myself to the single issue identified by the Plaintiffsand the Lower Court for determination..." Per AUGIE, J.C.A. (Pp.14-15, Paras. B-A) - read in context

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3 PRACTICE AND PROCEDURE - AMENDMENT OF COURTPROCESSES/PLEADINGS: Essence of amendment of a courtprocess"...an amendment is nothing but the correction of an errorcommitted in any process, pleadings or proceeding at law or inequity, and which is done, either as of course or by the consentof the parties or upon notice to the Court in which theproceeding is pending - see Adekeye v. Akin-Olugbade (1987) 3NWLR (Pt.60) 214 SC, wherein Oputa, JSC, so eloquently addedas follows -"??The object of Courts is to decide the rights of theParties and not to punish item for mistakes they may make inthe conduct of their cases by deciding otherwise than inaccordance with their rights. There is no kind of mistake orerror, which if not fraudulent or intended to over-reach theCourt cannot correct, if this can be done without injustice to theother party. Blunders may occur and nowadays they do occurwith disturbing regularity, but all the same, the Courts shouldnot be stampeded into chasing the shadows of these blundersrather than being the substance of the justice of the case. Theaim of an amendment is usually to prevent the manifest justiceof a case from being defeated or delayed by formal slips whicharise from the inadvertence of counsel. It will certainly bewrong to visit the inadvertence or mistake of counsel on thelitigant. The Courts have, therefore, through the years taken asand that however negligent or careless may have been theslip, however late the proposed amendment it ought to beallowed if this can be done without injustice to the other side,for a step taken to ensure justice cannot at the same time andin the same breath be used to perpetuate an injustice on theopposite party. The test as to whether a proposed amendmentshould be allowed is, therefore, whether or not the partyapplying to amend can do so without placing the opposite partyin such a position, which cannot be redressed by that panacea,which heals every sore in litigation namely costs”.Per AUGIE,J.C.A. (Pp. 22-24, Paras. C-A) - read in context

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4 APPEAL - FRESH ISSUE(S)/POINT(S)/QUESTION(S):Exception to raising fresh matters on appealit is trite that this Court will not allow a party to raise a questionor issue that was not raised or tried at the Lower Court withoutleave of Court. However, as is usually the case, there areexceptions to this general rule -see Corporate Ideal InsuranceCo. Ltd. V. Ajaokuta Steel Co. Ltd. (2014) 7 NWLR (Pt.1405) 165where the Supreme Court per Okoro, JSC, observed as follows-"??- - This Court would readily grant leave to a party to raiseand argue new grounds or issues not canvassed at the Court oftrial or at the Lower Court where the new grounds involvesubstantial points of law substitute or procedural, which needto be allowed to prevent an obvious miscarriage of justice. Itwill also be granted if further evidence is not required, Thus aparty, who seeks to file and argue fresh issue not canvassed inthe Lower Court, whether the issue pertains to law orprocedure, must seek leave and obtain the leave of Court firstelse such issue must be struck out."Per AUGIE, J.C.A. (P. 28,Paras. A-F) - read in context

5 APPEAL - FRESH ISSUE(S)/POINT(S)/QUESTION(S):Whether an appellate court is concern with the validity of thefresh issue sought to be raised"An appellate Court is also not concerned with the validity orotherwise of the fresh issue sought to be raised - see OkenwaV. Mil. Governor, Imo State & Ors. (1996) 2 NWLR (Pt 6) 455,where the Supreme Court also held as follows-"??- - This Courtis not in this appeal concerned with the validity of otherwise ofthe fresh issue sought to be raised by the Appellant. That willbe a matter - - - to pronounce upon to the event of leave beinggranted to the Appellant to raise the point - - - What I need toconsider at this stage is whether or not the fresh point -soughtto be raised is a substantial question of law. The question mustbe distinguished from whether or not there is any merit on thepoint itself the decision of which an only be taken after fullargument from the Parties have been hard - -'"Per AUGIE, J.C.A.(Pp. 28-29, Paras. F-D) - read in context

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6 PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: Atwhat stage can the issue of jurisdiction be raised; whetherleave of court is requiredMore importantly, and as the Applicants rightly said, the issueof jurisdiction may be raised at any stage of the proceedingseven at the Supreme Court and even by the Court suo motu,and leave of Court may not be necessary because without thejudicial competence to adjudicate everything done is a nullity -See FCDA v. Ezinkwo (2007) WRN (Vol. 18) 158, where thisCourt 29 held -"There is nothing like raising the issue ofjurisdiction as a fresh issue. There is no formality in raising theissue of jurisdiction for the firm time on appeal, and leave is notneeded. There is no need to apply for leave - - - The form,nature or manner in which jurisdiction is raised on appeal isimmaterial, and the fact that jurisdiction was not raised in thetrial Court is of no relevance when raised in the Court of Appealor the Supreme Court."?�See also Agbiti V. Nigerian Navy(supra), wherein Adekeye, JSC, aptly stated -"An Appellant doesnot require leave to raise the issue of jurisdiction as it can beraised at any stage of the proceedings and in any manner. Theissue of jurisdiction or competence when raised must be onewhich must be capable of being disposed of without the need tocall additional evidence. - - Where the question involves asubstantial point of law, substantive or procedural and it isapparent drat it will not be necessary to open up furtherevidence, which would affect the decision the Court has a dutyto allow the question to be raised and point taken so as toprevent an obvious miscarriage of 30 justiceâ?�.Per AUGIE,J.C.A. (Pp. 29-31, Paras. D-A) - read in context

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AMINA ADAMU AUGIE, J.C.A. (Delivering the Lead

Ruling): All eight Appellants appealed to this Court against

the decision of the Lagos State High Court that was

delivered on 20/10/2010, however, the 1st and 2nd

Appellants filed a separate Application praying this Court

for the following -

(1) LEAVE to amend the original Notice and Grounds

of Appeal dated 20/10/2010 by filing 8 Additional

Grounds of Appeal;

(2) AN ORDER extending the time within which they

may -

(a) Appeal against the judgment of the Lower Court

on Additional Grounds contained in Amended Notice

of Appeal, and

(b) Raise new/fresh issues of law or mixed law and

fact not canvassed at the trial

(3) LEAVE to raise fresh point on issues not raised at

the Lower Court, which relate to questions of law or

mixed law and fact.

(4) AN ORDER deeming the Amended Notice of

Appeal already filed and served as having been duly

and properly filed and served

(5) AN ORDER allowing them to utilize the 1st and

2nd Appellants Brief already filed, which Brief covers

all the issues raised in the Original as well as the

Additional Grounds of Appeal, and deeming

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the said 1st and 2nd Appellants'� Brief as having been

properly filed and served.

The Grounds for the Application, which the 1st and 2nd

Appellants/Applicants stated requires no new evidence at

the hearing of the Appeal, are as follows -

1. The Original Notice of Appeal was filed on

22/10/2010, before the receipt of certified copy of

the/judgment as well as the Record of Appeal

2. Counsel had indicated that additional grounds of

appeal would be filed on receipt of the Record

3. Accordingly, on 30/9/2013. Counsel filed 8

Additional Grounds of Appeal.

The Particulars of fresh Points/Issues sought to be raised

for the 1st time are -

1. The Or ig inat ing Summons in Sui t No:

ID/680M/2004 filed on 8/11/2004- was not served

within 6 months (Order 6 Rules 6 and 7) and was not

renewed in strict compliance with Rules 6 (2) and 7 of

Order 6 of the High Court of Lagos State (Civil

Procedure) Rules, 2004;

2. The failure of the Respondent (then Claimant) to

comply with Order 6 Rules 6(2) and 7 rendered the

originating process dated 8/11/2004, void and invalid

by 7/4/2005- (after 6 months life span) -

(a) There being no

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application for renewal, and

(b) There being no Order for renewal of same, and

therefore there being no FORM 6 (Form of

Memorandum for Renewed Originating Process)

issued in further compliance with Order 6 Rule 6(2) .

3. Adesanya, J. on 1/11/2006 directed the Notification

of the Defendants of the pendency, of this action and

the next hearing date by publication of the

Originating Summons and the Enrolled Order of [the

Court in a Nigerian Newspaper with wide circulation

(Punch)". This was made 24 months after the

Originating Summons was issued. This is in grave

violation of Order 6 Rules 6(1) and (2) and 7 .

4. The same order was also made -

(a) 10 months after the Originating Summons had

expired and exhausted its life span ( Order 6 Rule 7 )

(b) Without any application or an order for renewal as

mandatorily required under Order 6 Rules 6(2) and 7 .

5. The trial Court could no longer renew the

Originating Summons in view of Order 6 Rule 7 .

6. The trial Court no longer had jurisdiction to

entertain any application or proceedings relating to

the Originating Summons.

7. There was no valid Originating Summons to be

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converted to a Writ of Summon as ordered by

Adesanya, J. on 23/2/2007 when she ordered the

parties to file pleadings.

The Application is supported by a 15-paragraph Affidavit,

and in opposing the Application, the Respondent filed a 4-

paragraph Counter-Affidavit wherein it was averred as

follows in Paragraph 3(a) - (i) of the said Counter-Affidavit -

(a) What is being sought by Applicants is not an

amendment but an attempt to cure obvious failures in

their Appeal, which became manifest after exchange

of Briefs by the Parties.

(b) Parties herein have filed and exchanged Briefs.

(c) The so-called amendment being sought is

calculated to slow down hearing of this Appeal and to

overreach the Respondent.

(d) The Application would be highly prejudicial to the

case of the Respondent as the Application seeks to

find answers to issues raised and argued exhaustively

in the Parties' Briefs.

(e) The application is incompetent and cannot be

sustained in view of the settled position of the law as

the Applicants are now obliged to abide the Ruling in

the Respondent�s Notice of Preliminary Objection.

(f) By the proposed amendment, the

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Amended Notice of Appeal is now being made to

appear like a Notice of Appeal of the 1st to 8th

Appellants.

(g) If the proposed amendment is allowed it will not

only alter the entire coloration of the appeal, it will

also make nonsense of Briefs, which have been

concluded between all Parties as the 3rd to 8th

Appellants would necessarily have to seek leave to

argue these new grounds, which were not contained

in their individual Notice of Appeal.

(h) This application cannot be sustained as it is

calculated to give life to the obviously dead appeals of

the 1st & 2nd, 3rd to 7th and 8th Appellants.

(i) It is against the interest of justice to allow the

Appellants take undue advantage of the Respondent

who are willfully being denied of their adjudged

property.

Written Addresses were ordered, filed and adopted by the

respective counsel, and in the Applicants' Address written

by Prince Adetokunbo Kayode, SAN, Bernie Otukam-lyama,

Esq., and Abimbola Kayode, Esq., it was submitted that the

sole Issue that calls for determination by this Court is as

follows -

“Whether in the circumstances, the Honourable Court

ought to permit the

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prayers sought in the Motion”.

The Respondent, however, urged this Court to dismiss the

Application as one "premised on false and/or faulty

grounds”, particularly paragraph 3 that says-

“Accordingly on 30th September 2013 counsel filed

its Additional Grounds of Appeal"

They prayed this Court in their own Address written by M.

T. Aladejobi (Mrs), to scrutinize the Records, and to find

that no such document was ever filed. They added that "to

accentuate the mala fide and confusion of the Applicants',

they also deposed in paragraph 7 that another "Additional

Grounds" was filed on 27/8/2011 in this Court's Registry

when no such document was ever filed; that the “Additional

Grounds” irregularly and improperly filed on 18/1/2011 was

deliberately omitted on the face of the Motion and

supporting Affidavit, with glib references only being made

to it their address, which are, obviously, misplaced as the

document of 18/1/2011 does not form a part of documents

to be considered in arguing this Application, more so, as

grounds contained therein are not the same as now being

preferred before this Court vide their Exhibit NA1; and

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that this anomaly explains why none of these multifarious

“Additional Grounds” was annexed as Exhibit in support of

the Application.

They argued in the alternative that even if any such

Additional Grounds were ever filed as claimed by the

Applicants, the proper order to seek would have been to

incorporate those Additional Grounds as part of the Notice

of Appeal and not to completely delete ALL the grounds in

the Notice of Appeal dated 22/10/2010 and the "Additional

Grounds" dated 18/1/2011, which all Parties are agreed is a

patently irregular and incompetent process, therefore, the

ground upon which this Application purports to stand is

non-existent and for fictitious, and it follows as a matter of

inexorable logic that the Motion is not worth the paper on

which it was written as it has no legs to stand upon.

The Applicants conceded in their Reply on Points of Law

that the said dates ought to be "24/10/2014" & “17/1/2011,

instead of "30/9/2013." And "27/8/2011." respectively. They

said that " it is typographic error by counsel", and urged us

not to visit the mistake of Counsel on them particularly as

the Respondent was not

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misled or prejudiced by the typographic mistake/error.

They submitted that the Record show that "Additional

Grounds of Appeal" dated 17/1/2011 was indeed filed at the

Registry of this Court on 18/1/2011, and a new set of

"Additional Grounds" was subsequently filed on

24/10/2014; that the mistake has not prejudiced the

Respondent, which is why paragraphs 2.1-2.5 of their

Address is noted in 3.1 thereof as " preliminary

observation”.

There is nothing to this issue, as the Applicants pointed out.

The said Additional Grounds were indeed filed, and the

reference to a wrong date – 30/9/2013 in paragraph 3 of

the Applicants' "GROUNDS” for this Application, is

inconsequential since it does not affect the essence of the

Application itself. Besides, despite making the “preliminary

observations”, the Respondent went to formulate the

following 5 Issues for Determination in their said Address -

1. Whether the amendment sought is in conformity

with the Rules of this Court and settled authorities

2. Whether the failure to make the trinity prayers is

fatal to Prayers 2 and 3 of the Applicants’ Application.

3. Whether

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an Appellant can be given leave to "raise new

issues"�� in or amend a dead or invalid Appeal.

4. Whether the Notice in an Appeal where Briefs have

been exchanged could be amended.

5. Whether an incompetent process could be deemed

as having been properly filed.

Before I go on to deal with the merit or otherwise of this

Application, I must clear the air regarding amendments

sought after briefs have been exchanged, which is one of

the planks of the Respondent's objection to this Application.

In arguing strenuously that a Notice of Appeal cannot be

amended after Parties have exchanged briefs of argument,

the Respondent set store on the decision of this Court in

FBN Plc. V. May Medical Clinics & Diagnostic Center

Ltd. (1996) 9 NWLR (Pt.471) 195, which, as it turns out,

has been overruled by the Supreme Court in FBN Plc. V.

May Medical Clinics & Diagnostic Center Ltd. (2001) 9

NWLR (Pt 717) 28. I addressed this Issue in the Lead

Ruling delivered on 7/3/2014 in Appeal No.CA/L/506/2011 -

[Dr. Akingbola & Anor. V. Intercontinental Bank Plc.

& 15 Ors.], wherein I stated as follows -

"The parties appear to have presented this

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Court with conflicting authorities but that is only on

the face of it; if we scratch the surface we will find it

is not so. For instance they both relied on the same

case - FBN Plc. V May Medical Clinics & Diagnostic

Center Ltd. but while the Appellants referred to the

Supreme Court decision of 6/4/2001 - -, the

Respondent relied on the Judgment of this Court

dated 28/11/1995 which failed to pass scrutiny at the

Supreme Court. The Appellants hid applied to this

Court to amend the Notice and Grounds of Appeal and

also amend its Brief. The proposed amendment was to

contend that the entire proceedings at the trial Court

were a nullity and it wanted the case heard de novo

before another Judge. In refusing the amendment

sought, this Court per Muhammad, JCA, observed -

"How does the Applicant or from where did the

Applicant get the materials from which he set out his

proposed amended Not ice o f Appeal and

Appellant�s brief? It is trite that leave to amend

will not be granted if the amendment will not cure the

defect in the proceeding - - Again as briefs were

already filed and exchanged by the parties - - it will

work injustice on the Respondents as

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they will have to make consequential amendment to

the brief already filed and served or even prepare a

new one that is capable of causing undue delay to the

hearing of the appeal --- "��.

This is the decision of this Court in FBN V MMCDC

that the Respondents quoted - - - But the matter went

on appeal to the Supreme Court, and in allowing the

appeal the Supreme Court per Uwaifo, JSC

categorically stated as follows on this issue -

'Once there is a valid notice of appeal, it can be

amended - - The purpose of such an amendment must

be to ensure that the complaint of the Appellants

against the proceedings in question are laid and

ventilated before the Court. The fact that briefs of

argument have been filed and exchanged and an

appeal is virtually ready for hearing will not prevent

the Court from exercising its undoubted discretion to

allow an amendment both to the notice of appeal and

the brief of argument so long as the amendment

would serve the ends of justice and fairness, and the

other party can be compensated by costs: see

Pharmatek Industrial Projects Ltd. V Bayo Ojo (1996)

1 NWLR (Pt.424) 332 at 338�.

As we can see, the Supreme

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Court clearly and definitely overruled the decision of this

Court in the case of FBN Plc. V. May Medical Clinics &

Diagnostic Center, and held that the fact that briefs of

arguments have been filed and exchanged and the appeal is

ready for hearing will not prevent this Court from

exercising its discretion to allow the said amendment as

long as it serves the ends of justice and fairness, and the

other party can be compensated by costs � See also

Pharmatek Industrial Projects Ltd. V. Ojo (1996) 1

NWLR (Pt.424) 335.

Obviously, other cases cited by the Respondent cannot avail

them also. For instance, this Court relied on the overruled

decision in May Medical's Case in the case of Odon v.

Barigha-Amange (No.1) (2010) 12 NWLR (Pt.1207) 1,

also cited by the Respondent. In other words, the fact that

the Applicants brought this Application after the

Respondent filed a preliminary objection challenging the

competency of the Grounds of Appeal will not bar them

from correcting any errors that will put them on the right

footing - see Tsokwa Oil Marketing Co. v. BON Ltd.

(2000) 11 NWLR (Pt.777) 163 SC and Shanu v. Afribank

(Nig.) Ltd (2000) 73 NWLR (Pt.684)

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392 SC, wherein Ayoola, JSC, held-"The contention that this application should not begranted because a preliminary objection has beenraised showing the errors in the process of theApplicant�s appeal is without substance. TheApplicant is not foreclosed by the preliminaryobjection from correcting those errors or startingthe process afresh on a more appropriatefooting�.See also Nalsa & Team Associates V. NNPC (1991)8 NWLR (Pt.212) 652, where the Supreme Court alsoheld that when a party detects an error, which willadversely affect his chances, and has made effort tocorrect such errors, the principles of justice demand thathe should be given opportunity to do so. As the SupremeCourt per Karibi-Whyte, JSC, very aptly observedtherein-"It will be preposterous to concede to thecontention that the error so detected shouldremain uncorrected, so that the adversary can takeadvantage of it"Thus, it goes without saying that a major plank of theRespondent's objection must give way under the currentposition of the law, which is that there is no impedimentto the Applicants bringing this Application despite thefact

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that Parties have already filed and exchanged their

respective briefs of argument. That said, I must also add

that the arguments/submissions they canvassed under their

Issues III, IV and V (argued together), raise questions

touching on substantive issues that may arise in the Appeal

if this Application is granted.

It is trite that while considering interlocutory applications

like this one, it behoves this Court to exercise extra-caution

and avoid/refrain from making comments or observations

that may in effect predetermine the substantive or main

issues in the Appeal, which are relative to the interlocutory

application - see Gadi V. Male (2010) 7 NWLR (Pt. 344)

225 and Kotoye V. Saraki (1994) 7 NWLR (Pt 357) 414

SC, where Kutigi, JSC (as he then was) stated as follows -

"I must observe that being an interlocutory

application; I must avoid making any observation in

the judgment which might appear to prejudge the

main issues in the proceedings relative to the

interlocutory application (see for example Egbe V

Onogun (1972) 1 All NLR (Pt 1) 95; Ojukwu V

Governor of Lagos Sate (1986) 3 NWLR (Pt.26) 39, It

was, therefore, necessary for me to have

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restricted myself to the single issue identified by the

Plaintiffs and the Lower Court for determination..."

In this case, I will restrict myself to the sole Issue distilled

by the Applicants - whether in the circumstances, this

Court ought to permit the prayers sought, which in my

view, captures the essence of what is at stake in this

Application.

The Applicants referred us to Order 6 Rule 15 of the

Rules of this Court, Gambari V. Mahmud (2008) 14

NWLR (Pt.1107) 209, and submitted that based on the said

Rule and the decision in Gambari's Case, what this Court

should consider are (a) the nature of the amendment

sought (b) the question in controversy, (c) the

materiality of the amendment sought and (d) whether

it will cause injustice to the Respondent or delay the

hearing of the appeal.

They also submitted that the purpose of the amendment is

to present to the Court a properly arranged grounds of

appeal containing all critical issues that are germane to the

just determination of the appeal, and to enable them

agitate germane issues that arose at the trial, which

include raising new issues of law and mixed law and fact,

such as (a) the issue that

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the Originating Summons had expired before Adesanya, J.,

directed parties to file Pleadings, (b) issue of the failure of

Candide-Johnson J., to consider first the case made out that

the action was statute barred, having been filed in violation

of the Limitation Law (c) issue of the jurisdiction of the

Court (d) the critical issue of identity of the land, (e) the

dismissal of the evidence of DWI as hearsay. Furthermore,

that these are very weighty, material and germane issues

arising from the trial, which an Appeal Court would wish to

consider in the Appeal, citing Adesanoye V. Adewole

(2004) 11 NWLR (Pt.884) P.414; that the said amendment

will not prejudice the interest of the Respondent in any

manner; that the other prayers in the Motion relating to

leave and permission to raise new issues are ancillary but

vital steps to enable them to be properly before this Court

and that they have duly complied with the Rules of this

Court.

In urging us to refuse the Applicants' Prayer 1, the

Respondent argued that failure to attach their Original

Notice of Appeal to this Application is fatal. Devoid of their

arguments touching on the issue earlier dealt with about

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the Parties having already filed briefs of argument, the gist

of their submissions is that the failure to exhibit the

Original Notice of Appeal is deliberate because it would

reveal that contrary to Item (b) in the Schedule of

Amendment, there are only 3 Grounds of Appeal contained

in the said Original Notice of Appeal, therefore, there could

never be any Grounds of Appeal 1, 3 and 4 to be deleted.

They further argued that even if the existing 3 Grounds are

deleted and the 8 "Additional Grounds� are allowed to be

brought, they will not add up to the 10 Grounds set out on

the face of the Proposed Amended Notice of Appeal either

by way of content or enumeration; that in any event, the

Applicants are not praying for a deletion of Ground 2,

which has been cleverly left out in the bid to mislead this

Court; that Grounds 1 & 2 of the Proposed Amended Notice

and Particulars reveal that they are completely alien to the

Original Notice; that nothing has been amended in the

Grounds in the old Notice, rather they have been deleted

with fresh grounds smuggled in their place in an attempt to

wholly change the character and coloration of the Appeal

and cure

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the fatal defect inherent in the original Notice of Appeal to

their utter prejudice, and it is not enough for the Applicants

merely aver that they will not be prejudiced, citing Odon

V. Barigha-Amange (No.1) (supra); that the wholesale

deletion of Grounds 1, 2 and 3 is an eloquent admission

that there was in the first place no appeal before this Court

because once those said 3 Grounds are taken out, the

Notice becomes completely empty and dead and can no

longer be revived though any contrivance; and that even

without the Grounds being taken out, the said Original

Notice is still as dead as a dodo, and incapable of revival.

The Applicants conceded that the Rules provide that a

notice of appeal shall be filed in the Registry of the Lower

Court but argued that such a notice filed at the Registry of

this Court after the record has been transmitted and the

appeal entered is properly filed, as the Lower Court is

functus officio, and it would amount to duplicity of effort,

resources and ultimately waste of time if it is filed at the

trial Court's Registry, citing CBN V. Okojie (2004) 10

NWLR (Pt.882) 488; Bayero V. Mainasara & Sons Ltd.

(2006) 8 NWLR (PT

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982) 391.

Furthermore, that at the time of filing the Additional

Grounds of Appeal on 17/1/2011, the Record had been

compiled and transmitted, the Parties served and the

Appeal entered; that Order 6 Rule 15 of the Rules of this

Court allows it to suo motu amend a Notice of Appeal or on

application of a party, citing Yarkwa V. Shallangwa

(1996) 4 NWLR (Pt 443) 489 that the position of the law is

that an amended Notice of Appeal is not a new notice of

appeal since an amendment relates backs to the date in

which a document was originally filed like an amended

Statement of Claim, thus, it is retrospective, citing Unity

Bank Plc. V. Bouari (2008) 7 NWLR (Pt.1086) 372 SC.

They argued in their Reply on Points of law to the

Respondent's Address that the Respondent's contention is a

misconception of the law and practice and procedure on

the requirement to exhibit a proposed process; that the

Respondent misled the Court by stating that Exhibit NA1

is a " Proposed Amended Notice of Appeal', when the said

Exhibit is a substantive Amended Notice of Appeal already

filed, which is why they prayed for a deeming order, and

the proposed amendment is stated in the "Schedule

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of Amendment; that the original Notice of Appeal is already

before this Court in the Record, and does not need any

further exhibition; that the case of Odon V. Barigha-

Amange (No.1) (supra), cited by the Respondent, is

inapplicable and unhelpful as it is in respect of an election

petition, which is different from normal/ordinary civil

proceedings; that they do not intend to amend the

Appellants' Brief in this Appeal as the submissions therein

have covered the Grounds sought to be added by way of

amendment, and in the interest of justice, the Respondent

can be pacified with costs; and that since an amendment

may be by way of correction, deletion or addition, the

Respondent's Issue 1, and their argument thereon is

without any merit.

The Respondent's objection to the Applicants' Prayer 1

being granted is two-pronged - the original Notice of

Appeal was not attached to the Motion, and the deletion of

the 3 Grounds of Appeal therein is fatal to the Application,

and I will quickly say that the first prong of objection is

neither here nor there. Yes, Order 7 Rule 7 of our Rules

says that the "Application for leave to appeal from a

decision of a Lower Court

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SHALL contain copies of the following items -

(a) Notice of motion for leave to appeal (Form 5);

(b) A certified the copy of the decision of the Court

below sought to be appealed against;

(c) A copy of the proposed grounds of appeal; and

(d) Where leave has been refused by the Lower Court, a

copy of the order refusing leave.

In other words, an application for leave to appeal must

contain a copy of the decision appealed against but the

Application under consideration is not one for leave to

appeal the Applicants have a pending Appeal, and Prayer

1 is for " leave to amend the original Notice and Grounds of

Appeal dated 21/10/2010 by filing 8 Additional Grounds of

Appeal ". Be that as it may, in practice, Parties are strongly

advised to attach original processes to their applications

because it is too much to ask the Justices to go through the

Record of Appeal to fish out the said processes while

considering applications for amendment.

Most times, the Applicant is granted an adjournment to

regularize his process, but this Application has been filed

and argued, and it is too late in the day to do anything

about it. In my view,

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to dismiss this Application on the ground that the Lower

Court's Ruling was not exhibited would amount to

succumbing to the tyranny of technicality in defiance of the

purposeful substantial justice, which this Court is enjoined

not to do at any cost, and I will not succumb to it.

Besides, the Application under consideration is not one for

leave to appeal and the second prong of the Respondent's

objection to the said Prayer 1 will require a close scrutiny

of the original Notice of Appeal and Amended Notice.

Now, an amendment is nothing but the correction of an

error committed in any process, pleadings or proceeding at

law or in equity, and which is done, either as of course or

by the consent of the parties or upon notice to the Court in

which the proceeding is pending - see Adekeye v. Akin-

Olugbade (1987) 3 NWLR (Pt.60) 214 SC, wherein Oputa,

JSC, so eloquently added as follows -

"��The object of Courts is to decide the rights of the

Parties and not to punish item for mistakes they may

make in the conduct of their cases by deciding

otherwise than in accordance with their rights. There

is no kind of mistake or error, which if not fraudulent

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or intended to over-reach the Court cannot correct, if

this can be done without injustice to the other party.

Blunders may occur and nowadays they do occur with

disturbing regularity, but all the same, the Courts

should not be stampeded into chasing the shadows of

these blunders rather than being the substance of the

justice of the case. The aim of an amendment is

usually to prevent the manifest justice of a case from

being defeated or delayed by formal slips which arise

from the inadvertence of counsel. It will certainly be

wrong to visit the inadvertence or mistake of counsel

on the litigant. The Courts have, therefore, through

the years taken a sand that however negligent or

careless may have been the slip, however late the

proposed amendment it ought to be allowed if this

can be done without injustice to the other side, for a

step taken to ensure justice cannot at the same time

and in the same breath be used to perpetuate an

injustice on the opposite party. The test as to whether

a proposed amendment should be allowed is,

therefore, whether or not the party applying to amend

can do so without placing the opposite party in such a

position, which cannot be

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redressed by that panacea, which heals every sore in

litigation namely costs”.

In this case, contrary to the Respondent's insistence that

the Applicants only filed a Proposed Amended Notice of

Appeal, they averred in paragraph 10 of their Affidavit in

support of the Application that leave of this Court is

required to amend the Notice of Appeal so as to

"incorporate into the Original Grounds of Appeal,

Additional Grounds of Appeal in terms of the proposed

amendment and the Notice of Appeal hereto attached and

marked as Exhibit NA1A", and in paragraph 11 of the

same supporting Affidavit that they " have now filed in the

Registry of this Hon. Court an Amended Notice of Appeal as

per Exhibit NA1”. The Amended Notice of Appeal was

indeed filed in the Registry of this Court, and it does

contain 10 Grounds of Appeal, as pointed out by the

Respondent.

The Respondent has also pointed out that the Original

Notice of Appeal contains 3 Grounds of Appeal and item (b)

of the Schedule of Amendment mentions deleting

Grounds 1. 3. and 4. and argued that even if by a

generous construction, the existing 3 Grounds are deleted

and the 8 Additional Grounds are

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allowed to be brought in, they will not add up to the 10

Grounds of Appeal in the Amended Notice of Appeal. They

also contend that Grounds 1 and 2 of the Amended Notice

of Appeal are " completely alien to the Original Notice”.

The said SCHEDULE OF AMENDMENT on the face of the

Application reads -

a. By properly re-arranging and numbering the Grounds of

Appeal under paragraph 3 of the Original Notice of Appeal

accordingly.

b. By deleting Grounds 1, 3 and 4 of the Original Notice of

Appeal.

c. By adding 8 new Grounds of Appeal respectively.

The Applicant did not clarify the mention of a Ground 4 in

the said Item (b) but submitted that since an amendment

may be by way of correction, deletion or addition, the

Respondent's argument is without merit. I have scrutinized

the Grounds of Appeal in the Original Notice and Amended

Notice of Appeal, and see that Ground 1 in the Original

Ground of Appeal which complains that "the learned trial

judge erred in law when he held that the Lower Court had

jurisdiction to entertain and determine the Suit”, has

definitely been deleted, but one of the Particulars of Error

[IV] in the said

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Ground 1, which says that the action is statute barred, is

reflected as Ground 3 in the Amended Notice. Ground 2

in the Original Notice was not deleted but it is now Ground

4 in the Amended Notice of Appeal, and that is sufficient to

sustain this Application since Item (a) in the said Schedule

of Amendment specifically mentioned the "re-arranging

and numbering of the Grounds of Appeal under Paragraph

3 of the Original Notice of Appeal"��. Ground 3 in the

Original Notice of Appeal that complains that "the

judgment is against the weight of evidence was deleted.

Thus, the Respondent's objection to the said Prayer 1 is

without merit. But they also contend that the Applicants'

Prayers 2 and 3 are incompetent, and invited us to

dismiss same. They argued that assuming without

conceding that the Applicants are entitled to introduce the

additional/fresh grounds or raise new/fresh issues, they are

obliged, being out of time, to make the trinity prayers i.e.

application for extension of time to seek leave to appeal on

the fresh or additional grounds, leave to appeal on the

fresh or additional grounds and extension of time within

which to file the

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additional or fresh grounds, citing Lie v. Jozebson Ind.

Ltd. (1988) 3 NWLR (Pt 83) 429 , Unipetrol V. Buckmor

(1994) 5 NWLR (Pt.344) 360 The Registered Trustees of

the Rosicrucian Order V. Awoniyi (1993-94 no other

citation), Coker v. UBA (1997-98) All NLR 34, Nwaolisa v.

Nwabufor (2001) 9 NSCR 43, and Nworah v. Nwabueze

(2011) 5 NWLR (Pt 344) 360. We were urged to resolve this

issue against the Applicants and refuse Prayers 2 and 3

on the Motion Paper.

The Applicants countered that the Respondent

misconceived the spirit underlining the trinity prayers in an

application of this nature in that there is a valid appeal

pending, and the law and practice is that where a valid

appeal vide a notice of appeal, as in this Appeal, already

exists, an Appellant does not require an extension of time

within which to appeal or seek leave to appeal. They

submitted that even where an Appellant, as in this Appeal,

intends to and raises fresh issues bordering on jurisdiction,

leave of the appellate Court is not required, citing Agbiti v.

Nigerian Navy (2011) 4 NWLR (PT.1236) 175, Aderibigbe

v. Abidoye (2009) 10 NWLR (Pt.1150) 592 and Ikedigwe

V. Fai (2012) 10 NWLR

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(Pt.1308) 395. In their view, this Issue is misconceived, and

I agree. Clearly, the Respondent's objection to the Prayers

is misguided.

Yes, it is trite that this Court will not allow a party to raise

a question or issue that was not raised or tried at the Lower

Court without leave of Court. However, as is usually the

case, there are exceptions to this general rule -see

Corporate Ideal Insurance Co. Ltd. V. Ajaokuta Steel

Co. Ltd. (2014) 7 NWLR (Pt.1405) 165 where the Supreme

Court per Okoro, JSC, observed as follows-

"��- - This Court would readily grant leave to a party

to raise and argue new grounds or issues not

canvassed at the Court of trial or at the Lower Court

where the new grounds involve substantial points of

law substitute or procedural, which need to be

allowed to prevent an obvious miscarriage of justice.

It will also be granted if further evidence is not

required, Thus a party, who seeks to file and argue

fresh issue not canvassed in the Lower Court, whether

the issue pertains to law or procedure, must seek

leave and obtain the leave of Court first else such

issue must be struck out."

An appellate Court is also not

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concerned with the validity or otherwise of the fresh issue

sought to be raised - see Okenwa V. Mil. Governor, Imo

State & Ors. (1996) 2 NWLR (Pt 6) 455, where the

Supreme Court also held as follows-

"��- - This Court is not in this appeal concerned with

the validity or otherwise of the fresh issue sought to

be raised by the Appellant. That will be a matter - - -

to pronounce upon to the event of leave being

granted to the Appellant to raise the point - - - What I

need to consider at this stage is whether or not the

fresh point -sought to be raised is a substantial

question of law. The question must be distinguished

from whether or not there is any merit on the point

itself the decision of which an only be taken after full

argument from the Parties have been hard - -'"

More importantly, and as the Applicants rightly said, the

issue of jurisdiction may be raised at any stage of the

proceedings even at the Supreme Court and even by the

Court suo motu, and leave of Court may not be necessary

because without the judicial competence to adjudicate

everything done is a nullity -

See FCDA v. Ezinkwo (2007) WRN (Vol. 18) 158, where

this Court

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held -

"There is nothing like raising the issue of jurisdiction

as a fresh issue. There is no formality in raising the

issue of jurisdiction for the firm time on appeal, and

leave is not needed. There is no need to apply for

leave - - - The form, nature or manner in which

jurisdiction is raised on appeal is immaterial, and the

fact that jurisdiction was not raised in the trial Court

is of no relevance when raised in the Court of Appeal

or the Supreme Court."��

See also Agbiti V. Nigerian Navy (supra), wherein

Adekeye, JSC, aptly stated -

"An Appellant does not require leave to raise the issue

of jurisdiction as it can be raised at any stage of the

proceedings and in any manner. The issue of

jurisdiction or competence when raised must be one

which must be capable of being disposed of without

the need to call additional evidence. - - Where the

question involves a substantial point of law,

substantive or procedural and it is apparent drat it

will not be necessary to open up further evidence,

which would affect the decision the Court has a duty

to allow the question to be raised and point taken so

as to prevent an obvious miscarriage of

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justice"��.

In this case, it is clear from the PARTICULARS

[reproduced earlier] that the "fresh points on issues not

raised at the Lower Court" touches on jurisdiction, and I

am also satisfied that it will not be necessary to call

additional evidence. What is more, the Respondent is

entitled to costs, and they will be so granted.

In the final analysis, the said Prayers 1, 2, 3 and 4 are

granted as prayed. The Applicants are granted leave to

amend their Notice of Appeal by deleting, adding additional

Grounds of Appeal and re-arranging the Grounds of Appeal;

leave to raise the said fresh points on issues not raised at

the Lower Court and their Amended Notice of Appeal

already filed is hereby deemed as properly filed and served

today. Prayer 5 to use the 1st and 2nd Appellants' Brief

already filed is refused but they are granted an extension of

14 days from today to file the said Brief in the Appeal. The

Respondent is awarded costs of N20,000.00.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.:I have read before now the lead Ruling just delivered by mylearned brother AMINA ADAMU-AUGIE J.C.A.

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I entirely agree with the reasoning and conclusion reached

therein that the application should be granted in part.

I also hold that the application succeeds in part and should

be so granted.

I abide by the consequential order in the lead Ruling

including the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was affordedthe opportunity of reading the judgment just delivered bymy learned brother AMINA ADAMU AUGIE, J.C.A.

I agree with the reasoning and conclusion arrived at in thelead judgment.

I also allow the application and abide by all theconsequential orders made in the lead judgment.

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