Nigeria Security & Civil Defense Corps V. Ujo Agbor Uzoma Simeon & Ors (2016)

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MOHAMMED MUSTAPHA, J.C.A. 

This is an application brought pursuant to Order 6 Rule 4 and 15 of the rules of this Court, 2011, and the inherent jurisdiction of the Court; for leave to amend the Notice of Appeal dated 25th, and filed on the 29th of September, 2013, and any such order as this Court may deem fit to make in the circumstance.

The grounds of bringing the application are:
1. After the filing of the original notice of appeal and appellant’s brief of argument, there was a change of counsel as Chief A.S. Awomolo SAN was briefed to take over the appeal;
2. A close review of the judgment of the lower Court and the grounds of appeal and subsequent discussion with the appellant’s Director of Legal reveal that it has become necessary to amend the entire grounds of appeal in the manner in which the real issue arising from the appeal may be determined by this Court;
3. The issues raise substantial issues of law which breached fundamental rights of the applicant.
4. The proposed amendments are attached to the application.

The reliefs sought at the trial Court are as follows.
a. A declaration that

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the claimants were regular officers of their various ranks as stated in sheets attached hereto in the service of the defendants as at 28th day of June, 2003 when the Nigeria Security and Civil Defense Corps Act 2003 came into force.
b. A declaration that the claimants were at all times material beneficiaries of the provisions of Section 25 and 26(6) of the defendant’s enabling Act to wit, the Nigeria Security and Civil Defense Corps Act 2003 and thus entitled to the rights, privileges accruing therefrom.
c. An order directing the defendant to absorb and issue letters of appointment to the claimants as officers of the Defendant in furtherance and acting within the dictates of the provisions of Section 26(6) of the Defendant?s enabling Act.
d. Pursuant to paragraph C (Supra), an order of Court restoring the claimants to their various ranks as listed in the sheets attached hereto with effect from 26th June, 2013.
e. An Order of Court directing the Defendant to pay the claimant such emolument including salaries and allowances appropriate to their service stipulation with effect from the date aforesaid.

?The application is supported by

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an eleven paragraph affidavit deposed to by, Akinyosoye Arosanyin with Exhibits NSCDC 1, 2 and 3 attached.

E. Fatogun Esq., of counsel to the appellant/applicant urged the Court to grant the application and strike out paragraphs 6, 7 and 8 of the counter affidavit for offending Section 11 of the Evidence Act, and submitted while referring this Court to page 8 of the record of appeal, which contains the reliefs sought, that the trial emanated from fundamental rights enforcement procedure.

The respondents filed a 9 paragraph counter affidavit deposed to by Olatunji Atoyebi; F.I. Eseme Esq., of counsel to the respondent submitted that the notice of appeal was filed without leave of this Court or the trial Court and that once an ongoing notice is not properly filed it cannot be amended; he referred this Court to OKOLI V. AJOSE 8 NWLR part 362 and Section 243 of the Constitution which states that the decision of the National Industrial Court can only be appealed if it relates to fundamental human rights or in criminal matters; he referred this Court to LAGOS SHERATON HOTEL & TOWERS V. H.P.S.S.A (2014) 14 NWLR part 14 45 and urged the Court not to grant

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the application.

Order 7 Rule 2 of the Court of Appeal Rules, 2011 provide that: “any application for leave to appeal (other than an application made after the expiration of the time for appeal) shall be by notice of motion, which shall be served on the other party or parties, affected.”
Rule 5 of the same order provides “if leave is granted by the Court or the Court below, the appellant shall file a notice of appeal within the time prescribed by Section 24 of the Court of Appeal Act, 2004.”
It is clear from these that the notice of appeal can only be filed, after leave is granted; this application on the other hand is brought pursuant to Order 6 Rule 4 and 15 of the Rules of this Court, 2011 and the inherent jurisdiction of the Court.
Order 6 Rule 15 provides that “a notice of appeal may be amended by or with the leave of the Court at any time” this rule suggests that the amendment could be made by the Court, even where leave was not sought and obtained, of course by order of Court.
In this day and age Courts are reluctant to shut out intending litigants, except of course where the law is an impediment or where the parties make it