Afribank Nigeria Plc V. Medical Consultant Services Ltd (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment)

When this appeal came up for hearing, the court discovered that the notice of appeal at pages 99 – 106 of the record of appeal was headed “IN THE HIGH COURT OF LAGOS STATE, IN THE LAGOS JUDICIAL DIVISION, HOLDEN AT TAFAWA BALEWA SQUARE COMPLEX, RACE COURSE, LAGOS” and asked counsel to address it on its competence.

Appellant’s counsel urged the court to apply S.16 of the Court of Appeal Act and amend the notice of appeal while respondent’s counsel argued that as the notice of appeal was not addressed to the Court of Appeal, its jurisdiction has not been activated. He urged the court to strike out the incompetent notice of appeal.

Order 1 Rule 4 of the Court of Appeal Rules 2007 prescribe as follows:

“4. The forms set out in the first and second schedules to these Rules or forms as near thereto as circumstances permit, shall be used in all cases to which such forms are applicable.”

The form relevant to notice of appeal is Form 3 in the First Schedule. It is headed

“IN THE COURT OF APPEAL.

NOTICE OF APPEAL”

It is clear from the above that for a notice of appeal to be competent, it must be addressed to the Court of Appeal. Where the notice of appeal is addressed to another court, it cannot activate the jurisdiction of the Court of Appeal. We have been asked to apply S.16. (I believe he means S. 15) of the Court of Appeal Act 2004 and amend the Notice of Appeal in the interest of justice.

S. 15 of the Court of Appeal Act reads thus:

“S. 15 The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquires or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below, in that court’s appellate jurisdiction.

S.15 does not vest on this court the authority to interfere with notices of appeal addressed to a High Court. Where the High Court gets such an incompetent notice of appeal, it would have no competence to amend it. The only option open to it would be to strike it out.

However, this court can, acting pursuant to Order 19 Rule 3 of the Court of Appeal Rules 2007 waive compliance with any part of these Rules. Where as in this instance it is clear from the body of the notice of appeal that the appellant infact intended to appeal to this court, the courts have consistently in the interest of justice, allowed the appellant to amend the offending notice of appeal and determine the appeal on the merits. See Surakatu vs. Nigeria Housing Development Society Ltd & Anor (1981) 4 SC26, Cle Josh Ltd vs Tokimi (2008) 13 NWLR (pt 1104) 422. In the circumstance therefore, the appellant is given 14 days from date to amend its notice of appeal to address the said notice of appeal to the Court of Appeal.

There shall be costs in favour of the respondents in the sum of N20.000.00