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
22
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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
27
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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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