Lagos State Traffic Management Authority (Lastma) V. Johnson O. Ezezoobo (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the leading Judgment)

The Applicants, by a motion on notice filed on 27th October, 2009, prayed for the following orders:

“(1) An order for leave of court to amend the Appellants’ Notice of Appeal dated January 20th 2007 in the manner underlined in the proposed Amended Notice of Appeal annexed as LASG1.

(2) An order to deem the Amended Notice of Appeal as properly filed and served”.

In support of the said motion, the Appellants/Applicants filed an 11 paragraphs affidavit deposed to by one Olakunle Ligali, a legal officer with the Lagos State Ministry of Justice. Attached to the said affidavit is Exhibit LASG1, the proposed Amended Notice of Appeal. In further support of the application, the Applicants filed a further affidavit of 8 paragraphs with one Exhibit annexed which is marked LASG – a ruling of this court.

In opposing the application, the Respondent filed an eleven paragraphs counter affidavit with Exhibits A, B and C attached.

Arguing the application, the Applicants’ learned counsel relied on all the paragraphs of the two affidavits in support and submitted that the amendment is to bring in the issue of Jurisdiction which is ground one in the proposed Amended Notice of Appeal. He submitted further that paragraphs 2, 5, 6 and 10 of Respondent’s counter affidavit are opinion and legal argument and as such should be struck out. Also that issues raised in paragraphs 2, 6, 7, 8 and 9 of the counter affidavit have been addressed in the further affidavit. He then moved in terms of the motion.

In his response, the learned counsel for the Respondent who appeared in person, relied on all the paragraphs of the counter affidavit and submitted that none of the paragraphs of the counter affidavit offends against the evidence Act. He further submitted that since the parties have filed and exchanged briefs and the Respondent has raised preliminary objection to the competence of ground of appeal No. 1 in the Appellants’ Notice of Appeal, he is not now allowed to amend his Notice of Appeal so as not to overreach the Respondent. That the Appellant argued issue of Jurisdiction in his brief without first amending his Notice of Appeal to reflect same. He cited the cases of George Odon v. Chief Nimi Barigha – Amange & Anor. (2010) 12 N.W.L.R. (pt.1207) 1 at 9 and Idanre Local Government v. Government of Ondo State (2010) 14 N.W.L.R. (pt. 1214) 509.

It was learned counsel’s further contention that issues raised in the counter affidavit have not been addressed in the further affidavit and that the Notice of Appeal remains incompetent having not complied with Order 6 Rule 2(1) of the Court of Appeal Rules, 2007 . Therefore, it cannot be amended relying on the case of First Bank of Nigeria Plc v. TSA Industries Ltd. (2010) 15 N.W.L.R. (pt.1216) 247. He urged the court to refuse the application.

In a rejoinder, the learned counsel for the Applicant, Ligali Esq., submitted that the case of Odon v. Barigha (Supra) does not apply to the facts of this case because the application to amend Notice of Appeal preceded the filing and exchange of the briefs. That this motion was filed on 27/10/09 while the brief was filed on 13/5/10. That the Notice of Appeal sought to be amended did not contemplate the preliminary objection of the Respondent as contained in his brief filed long after the motion was filed.

On the issue of non competence of the Notice of Appeal, learned counsel submitted that the Respondent is stopped by the Ruling of this court annexed to the further affidavit. He urged the court to grant this application

The first issue I intend to settle in this application is whether the Notice of Appeal sought to be amended is competent. The Respondent had stated in paragraph 2 of his counter affidavit as follows:

“2. That I have been shown the Appellants’ motion of 27th October, 2009 for leave to amend the Notice of Appeal of 20th January, 2007 which motion I verily believe as incompetent and the court lacks Jurisdiction to entertain it in that the Notice of Appeal sought to be amended is incompetent by virtue of Order 6 Rule 2 of the Court of Appeal Rules, 2007 as such is not capable of amendment”.

It is trite that a competent Notice of Appeal is the bedrock or foundation of any appeal before this court. Where a Notice of Appeal is incompetent, it is liable to be struck out. See Uwazurike v. A. G. Federation (2007) 8 N.W.L.R (pt.1035) 1; NIWA v. SPDC (2007) 1 N.W.L.R. (pt.1015) 305; Clev. Joshua Ltd. v. Tokimi (2008) 13 N.W.L.R. (pt.1104) 422. An incompetent and defective Notice of Appeal cannot be amended as you cannot put something on nothing.See UAC v. Mcfoy (1962) A.C. 152.