Central Bank Of Nigeria V. Ifeanyichukwu Okonkwo (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A.: (Delivering the Leading Ruling)

By the Motion on Notice dated 21st March, 2011 but filed on 11/4/2011, the appellant had prayed this court for:

“An order granting leave to the Appellant/Applicant to amend the Notice and Grounds of Appeal dated 3rd day of August, 2006 and filed on the same date; and the Appellant’s Brief of Argument dated the 21st day of August, and filed on 22nd day of August 2008 in terms of the Schedule of Amendment attached to the supporting Affidavit as Exhibit B.”

The grounds upon which the prayer was sought are stated as follows:-

i. Upon the instruction of the Appellant/Applicant, the Appellant/Applicant’s Solicitors on 3rd day of August 2006 filed Notice and Grounds of Appeal dated 3rd August 2006, which originated this Appeal.

ii. While preparing the Notice and Grounds of appeal the Appellant/Applicant’s Counsel mistakenly included as a relief sought from this court to “set aside the garnishee order absolute made on the 19th day of July 2006” instead of “to set aside the decision of the court below dated the 2nd day of August 2006.”

iii. The same mistake made in the Notice and Grounds of Appeal reflected in the Appellant’s Brief of Argument dated 21st day of August 2008 and filed on the 22nd day of August, 2008.

iv. There is need to amend the Notice And Grounds of Appeal and the appellant’s Brief of Argument to properly placed (sic) before the court the issues in controversy between the parties in this appeal.”

The facts on which the application has been premised are contained in the affidavit of 9 paragraphs filed in support thereof and to which exhibits A, B, C and D were attached which are the Notice of Appeal dated 3rd August 2006; Schedule of Amendments; Proposed Amended Notice of Appeal; and Proposed Appellant’s Amended Brief of Argument respectively.

In his opposition to the application, the Respondent filed a Counter Affidavit of 25 paragraphs on 10/8/12, and on the order of this court, the parties filed their respective Written Addresses which they adopted and relied upon as their arguments in respect of the motion.

The sole issue formulated by the appellant/applicant in the Written Address prepared by Tochukwu Maduka Esq. of Counsel is whether in the circumstances of the court should not grant the Appellant/Applicant’s motion for amendment.

As argued by the learned Counsel, this court is conferred with jurisdiction by the provisions of Order 6 Rule 15 of the Court of Appeal Rules, 2011 and Section 15 of the Court of Appeal Act 2004 to permit the amendment of a Notice of Appeal at any time. The learned Counsel submitted that this court will allow an amendment to be made to a process except where such an amendment will result in injustice, surprise or embarrassment to the other party, citing GOWON V. IKENGWU (2003) 6 NWLR 815 (PT. 815) 38.

It was contended that the appellant had appealed against the decision of the Federal High Court, Enugu delivered on 2nd day of August, 2006 but due to the error or mistake of Counsel, the relief sought in the Notice of Appeal was stated as “to set aside the garnishee order absolute made on the 19th day of July, 2006” instead of “to set aside the decision of the court below dated 2nd day of August 2006” which is the decision actually appealed against; and which is well know to the respondent. It further contended that the error sought to be corrected is that of Counsel and not that of the appellant, and the respondent who has not filed a brief of argument will suffer no prejudice by the court granting the prayer.

Mr. Ifeanyichukwu Okonkwo who has personally handled this matter as the Respondent filed a Respondent’s Written Address on 4/3/2013 where he relied on issues of both law and fact to oppose the motion. He is hereinafter simply called the respondent.