A. I. C. LTD v. Technip & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

MOHAMMED LAWAL GARBA, J.S.C. (Delivering the Lead Ruling)

The Appellant in this appeal, brought the motion on notice dated and filed on the 21st September, 2021 by which it seeks for the following reliefs:-
“1. AN ORDER GRANTING LEAVE TO Appellant/Applicant to amend Ground 1 of the original Notice of Appeal filed on 24th July, 2015 by addition of particulars 7-13 as contained in the Proposed Amended Notice of Appeal hereto annexed and marked as Exhibit AIC 4 and duly underlined.

2. AN ORDER GRANTING LEAVE TO the Appellant/Applicant to amend Ground 2 of the original Notice of Appeal filed on 24th July, 2015 by addition of particulars 5-8 as contained in the Proposed Amended Notice of Appeal hereto annexed and marked as Exhibit AIC 4 and duly underlined.
3. AN ORDER GRANTING LEAVE TO the Appellant/Applicant to amend the original Notice of Appeal filed on 24th July, 2015 against the judgment of the lower Court by incorporating additional Ground 3 as contained in the Proposed Amended Notice of Appeal as duly underlined and substituting same for the original Notice of Appeal filed on 24th July, 2015 hereto annexed and marked as Exhibit A1C2.

4. AN ORDER EXTENDING TIME, within which Appellant/Applicant may seek leave to appeal to the Supreme Court on grounds other than grounds of law alone against the judgment of the Court of Appeal delivered on 22nd day of July, 2015 in Appeal No: CA/L/649/2011 in terms of Grounds 2 & 3 of the proposed Amended Notice of Appeal and duly underlined.
5. AN ORDER GRANTING LEAVE to the Appellant/Applicant to appeal to be Supreme Court on ground, other than grounds of law alone against the judgment of the Court of Appeal delivered on 22nd July, 2015 in Appeal No: CA/L/649/2011 in terms of Grounds 2 & 3 as contained in the Proposed Amended Notice of Appeal and duly underlined.
6. AN ORDER EXTENDING TIME within which the Appellant/Applicant may appeal to the Supreme Court on grounds other than grounds of law alone against the judgment of the Court of Appeal delivered on 22nd day of July, 2015 in Appeal No: CA/L/649/2011 in terms of grounds 2 & 3 as constituted in the Proposed Amended Notice of Appeal and duly underlined.
7. AN ORDER GRANTING LEAVE to the Appellant/Applicant to consequentially amend its Appellant’s brief of Argument dated and filed on 7/12/2021 by substituting same for an Amended Appellant’s Brief Argument incorporating arguments and issues covering the new grounds of appeal for which leave to incorporate is sought in prayer No. 4 above; a copy whereof is attached as Exhibit AIC 5 to the motion herein.

8. AN ORDER DEEMING the already filed Amended Notice of Appeal in terms and in the manner proposed in the preceding prayers and the Amended Appellant’s Brief of Argument separately filed and served along with the instant motion as having been properly filed and served.
   AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.”

The grounds upon which the reliefs are predicated are set out as follows:-
“1. The lower Court delivered its judgment on the 22nd of July, 2015 allowing the appeal of the 1st Respondent against the decisions of the trial Court.

2. The Appellant being dissatisfied with the judgment of the lower Court timeously lodged an appeal against the said decision on the 24th of July, 2015 on grounds of law alone relying majority on hand written notes of counsel while the judgment was delivered.

3. The Appellant indicated in the said Notice of Appeal that further grounds of appeal would be incorporated when the CTC of the judgment would have been obtained and reasons for the decision fully digested.
4. Upon obtaining the CTC of the judgment and after a dispassionate review of same and the Original Notice of Appeal filed on the 24th July, 2015 by Appellant/Applicant’s Counsel, it was realized in the course of setting Appellant/Applicant’s Brief and upon perusing the settled records of appeal already transmitted to this Court, that the Notice of Appeal did not adequately cover the grievances of the Appellant/Applicant as to the injury occasioned to it as a result of the reasoning and decision of the lower Court.
5. The Appellant has in the meantime filed its Brief of Argument based on the original notice of appeal.
6. The further errors and grievances identified in the judgment herein appealed against, border on evaluation and application of the facts on records by the Court below which sound in mixed law and facts,
7. The leave of the lower Court or of this Court must be sought and obtained io canvass grounds of appeal other than of law alone which was settled in the original notice of appeal contained.

8. The delay in seeking leave was largely occasioned by the difficulties encountered in serving the 2nd – 3rd Respondents with the original notice of appeal and records, being foreign entities that require leave of the Supreme Court to be served; but the application for crossing that hurdle had to take its normal turn on queue at the Supreme Court until granted after a great deal of time had lapsed.
9. The new grounds of mixed law and fact raise substantial issues of law which strike at the heart of miscarriage of justice which Appellant/Applicant genuinely conceives upon informed legal advice that the judgment of Court below manifests.
10. The leave sought to amend and introduce new grounds of appeal will necessitate the filing of an Amended Appellant’s Brief of Argument to incorporate the expanded issues to be distilled from the proposed Amended Notice of Appeal.
11. An Amended Appellant’s Brief of Argument has now been settled simultaneously with the proposed Amended Notice of

Appeal accommodate the arguments which will serve to articulate the grievance of the Appellant/Applicant in a holistic manner.

12. This Honourable Court has the power to grant the prayers sought on the fact of the motion in the interest of justice. ”

Affidavits were filed in support of the motion as follows:-
(a) An initial eleven (11) paragraphs Affidavit, deposed to by a Litigation Clerk in the Chambers of the Appellant’s Counsel on the same 21st September, 2021;
(b) A further Affidavit deposed to by the same Litigation Clerk, deposed to and filed on the 11th October, 2021;
(c) Appellant’s Reply Affidavit to the 5th – 9th Respondents’ Counter Affidavit filed on 31/03/2022, deposed to by a Counsel in the firm representing the Appellant was filed on 1st April, 2022.

A joint Reply address to all the Respondents’ addresses was also filed in support of the motion on the 1st of April, 2022.

​The respondents opposed the motion and filed Counter-Affidavits, to which Addresses were attached, as follows:
(1) 1st Respondent’s Counter-Affidavit deposed to by a Legal Practitioner in 1st

Respondent’s Counsel, filed on 30th March, 2022;
(2) 4th Respondent’s Counter-Affidavit filed on 1st April, 2022;
(3) 5th – 9th Respondent’s Counter-Affidavit filed on the 31st March, 2022.
The 2nd and 3rd Respondents who were served via DHL were not represented and did not file any process in respect of this motion.

At the hearing of the motion in Court on the 17th of October, 2022, Learned Senior Counsel for the Appellant and other counsel for the Respondents relied on their respective affidavits and addresses to urge the Court to accept their positions and decide the motion accordingly.

In the address attached to the Further Affidavit filed in support of the motion, the following issue was “isolated” for the determination of the motion:-
“Whether having regard to the facts, circumstances and grounds in support of the instant motion, this honourable Court ought to grant same in the interest of justice. ”

For the 4th Respondent, the issue for decision in the motion is said to be:-
“Whether, in the circumstances, this Court should exercise its discretion in favour of the

Appellant/Applicant?”

The issue to be determined in the motion, as set out in the 5th – 9th Respondents’ address, is:-
“Whether the Notice of Appeal dated 24th July, 2015 and this appeal ought to be struck out on the ground that the said Notice of Appeal is incompetent and cannot clothe this Court, with the jurisdiction necessary to hear the appeal. ”

It may easily be observed that the Appellant’s issue and that of the 4th Respondent are one and the same while the issues formulated by the 1st and 5th-9th Respondents are also the same in substance. All the issues are faces of the same coin painted in slightly different colours and so I intend to consider the arguments canvassed on them in the addresses of the parties.