Amytorix Company Nigeria Limited v. Net Construct Nigeria Limited & Ors (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO, JCA (Delivering the leading ruing)

This composite ruling is in respect of two applications by way of notices of motion filed by the respondent and the appellant, respectively. While the application of the respondent, filed on 28/05/2024, sought for an order of this court striking out the appellant’s two notices of appeal respectively filed on 16/11/2021 and 23/11/2021 for incompetence, the application of the appellant, filed on 30/05/2024, sought for an order amending the notice of appeal filed on 16/11/21 and deeming the amended notice of appeal filed on 29/05/2024 as properly filed and served. There is no prayer to amend the notice of appeal filed on 23/11/2021.

In line with the settled principle of law on priority of hearing opposing competing applications, which gives preference to the one which tend to preserve the proceedings over the one that is aimed at destroying it, this court heard both applications together, starting with the appellants application for amendment of the notice of appeal filed on 16/11/2021.

From the nature of the two opposing applications, resolution of one will invariably affect the outcome of the other.

Ruling on the notice of motion filed by the appellant

In the application filed by the appellant on 30/05/2024, the applicant moved the court in terms of the following reliefs:

1. An order granting leave to amend the notice of appeal filed on the 16th of November, 2021 against the ruling delivered by the High Court of Lagos State on the 9th of November, 2021 in suit No. LD/10193LMW/2021 – Net Construct Nigeria Limited v. Amitorix Company Nigeria Limited & Anor by deleting the words “Honourable Justice Ogunjobi sitting at” occurring before “the High Court of Lagos” on line 2 of the first paragraph of the notice of appeal as shown in the proposed amended notice of appeal attached to the supporting affidavit marked as exhibit C and thereon underlined black.
2. An order deeming the amended notice of appeal filed on the 29th of May, 2024 against the ruling delivered by the High Court of Lagos State on the 9th of November, 2021 in suit No. LD/10193LMW/2021, Net Construct Nigeria Limited v. Amytorix Company Nigeria Limited & Anor which has already been filed and served as being properly filed and served.

And for such further order or orders as this honourable court may deem fit to make in the circumstance.

The grounds upon which the application was predicated as stated on the face of the notice of motion are:

1. The High Court of Lagos State on the 9th day of November, 2021 delivered ruling in: suit No. LD/10193LMW/2021, Net Construct Nigeria Limited v. Amytorix Company Nigeria Limited & Anor assuming jurisdiction and granting orders against the appellant when the subject matter of the case is a Debenture Trust Deed within the exclusive jurisdiction of the Federal High Court under section 251 of the 1999 Constitution and when the Court of Appeal had held in appeal No: CA/L/365/2004 that the 1st respondent’s predecessors-in-title lacked the locus to deal on the charged assets.
2. Dissatisfied with the ruling of the High Court of Lagos State, the appellant/applicant, within the time specified by the Court of Appeal Act, filed its notice of appeal on the 16th of November, 2021 against the ruling of the High Court of Lagos State on grounds of jurisdiction.
3. In the notice of appeal filed on the 16th of November, 2021, the appellant in line 2 of the first paragraph had included the name of the court, Hon. Justice Ogunjobi, on the face of the notice of appeal before the High Court of Lagos State.
4. The amendment proposed to the notice of appeal is to only delete the portion of the notice of appeal in the first paragraph that reads “Honourable Justice Ogunjobi sitting at” to clearly indicate that the appeal is against the ruling of the High Court of Lagos State and ensure that all the issues in controversy in this appeal are justly and expeditiously determined by this honourable court.
5. That the notice of appeal filed on the 16th of November, 2021 is not in contravention of any provision of the Court of Appeal Rules, was filed within the time and the grounds raise substantial issues jurisdiction of the lower court.
6. The words sought to be deleted by the amendment constitute a surplusage that is not misleading and their deletion will not occasion any prejudice or miscarriage of justice to the respondent.
7. The amendment proposed to the notice of appeal is underlined black.
8. The grant of this application will not cause prejudice to any of the respondents but will aid a just determination of this appeal.

An affidavit of 14 paragraphs sworn to by one Mary Ebong, a Legal Practitioner in the Law Firm of E.A. Pippa & Co. of 106/110 Lewis Street, Lagos Island, Lagos, annexed to which are 4 exhibits marked A, B, C, D, was filed in support of the application.

There is also a written address signed by Ifeoluwa Ojediran, Esq. exhibits B and C are the original notice of appeal filed on 16/11/2021 and the proposed amended notice of appeal, respectively, while exhibit D is the amended notice of appeal filed as a separate process. There were also a further affidavit and reply on points of law settled by Robert Emukpoeruo, SAN.

In opposition to the grant of the amendment sought by the appellant, the 1st respondent caused to be filed on its behalf a counter-affidavit sworn to by one Ladipo Bolade Kehinde, a Legal Officer in its employment.

It is of 10 paragraphs attached to which are 2 exhibits, marked Net 1 and Net 2. Exhibit Net 1 is the notice of appeal in the sister appeal No. CA/LAG/CV/884/2021, between Abah Onah v. Net Construct Limited & Anor, while exhibit Net 2 is the ruling of this court striking out the said notice of appeal for being incompetent, alongside the enrolled order. There is also a written address signed by Ayomide Olanrewaju.

When the application came up for hearing on 24/06/2024, Robert Emukpoeruo, SAN, leading O.O. Olusiyi, Ifeoluwa Ojediran and E.A. Pippa, moved the application by adopting all the processes filed in support thereof, including the further affidavit and the reply on points of Law filed in response to the 1st respondents counter-affidavit, and urged the court to grant the application.

In a short adumbration, learned senior counsel cited the case of Ani v. Otu (2017) 12 NWLR (Pt.1578) 30 at 55-56 & 57 and order 7 rule 6 of the Court of Appeal Rules, 2021. On behalf of the 1st respondent, Muiz Banire, SAN, leading Ayomide Olanrewaju and Oluwadamilola Banire, placed reliance on the counter affidavit and the written address filed in support thereof in urging the court to dismiss the application. He urged the court to strike out the further affidavit filed by the appellant/applicant as it offends order 6 rule 1 of the rules of this court.