Bce Consulting Engineers V. Nigerian National Petroleum Corporation (2003)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
This is an application brought by the respondent seeking for the following orders:
“1. AN ORDER substituting the following party/title for the plaintiff/respondent in this case:
BCE CONSULTING ENGINEERING (a Partnership firm otherwise known as BCE Consulting Engineers)
Alternatively
AN ORDER adding the following party that is BCE CONSULTANT ENGINEERING (a Partnership firm otherwise known as BCE Consulting Engineers) as plaintiff/respondent in this appeal.
2. AN ORDER enlarging time within which the plaintiff/respondent may file and serve a ‘respondent’s notice’ in this appeal.
3. AN ORDER deeming the ‘respondent’s notice’ filed by the plaintiff/respondent on 22nd day of November, 2002 as having been properly filed.
4. AN ORDER enlarging the time within which the respondent may cross-appeal against the judgment of the court below delivered on 7th March, 2002.
5. AN ORDER deeming the notice of cross-appeal dated 22nd day of November, 2002 already filed as having been properly filed.”
The application is supported by a 22-paragraph affidavit to which 3 exhibits, BCE – 1 – copy of the respondent/appellant’s Certificate of Registration of Business name issued by the Corporate Affairs Commission Abuja. BCE – 2 – respondent’s notice; and BCE – 3 – notice of cross-appeal were attached.
The appellant filed a 12-paragraph counter-affidavit in opposition to the application to substitute the name of the respondent or join an additional respondent.
Pursuant to the order of this court made on 26/5/2003, written submissions were filed by the parties in this matter.
On the 29/9/2003 when this motion was argued both counsel adopted and relied on their respective written submissions.
The learned counsel for the applicant T. Oyetibo sought for leave of this court to abandon the second and third relief to file respondent’s notice and deeming order respectively. Accordingly, in this ruling, I shall not consider those two prayers. They are therefore struck out. So the application now is to substitute the name of the respondent or join an additional respondent. The applicant is also seeking for an order for extension of time with which they may cross-appeal against the judgment of the lower court delivered on 7/3/2002.
For the amendment sought to substitute the name of the respondent, learned senior counsel relying on Order 1 rule 19 of the Court of Appeal Rules, submitted that this court has power to grant an amendment as to the endorsement of the names of the parties contained on the writ of summons as in the instant case. For the Federal High Court, it is further submitted that it has power under Order 27 rule 2 of the Federal High Court (Civil Procedure) Rules to grant such amendment.
On the principle which guides the court in granting an application of this nature, learned counsel relied on the authorities of Rodriguez v. Parker (1966) 2 All ER 349 at 365 D; Baker v. Medway Building & Supplies (1958) 3 All ER 540; Mitchell v. Harris Eng. Co. Ltd. (1967) 2 All ER 682; Construction v. Carrington (1983) 1 All ER 310 at 317 and the Nigerian case of Laguro v. Toku (1986) 4 NWLR (Pt. 33) 90 at 100-101.
On the contention of the learned counsel for the appellant that to allow the respondent substitute its name would be to over-reaching the appellant as this would predetermine the two grounds of the appeal, learned counsel for the applicant submitted that the contention is misconceived.
He submitted that where there is a defect in a proceeding which is correctible and there are two applications before the court with one seeking to correct the defect, whilst the other seeks to nullify the proceedings. the court would. in doing substantive justice take the application which seeks to correct the defect first. He relied on Supreme Court decision in Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 667-668. It is finally submitted that a misnomer in a name can be corrected and therefore the application should be granted.
The learned counsel for the appellant presented lengthy submissions. It would appear that the submissions made in respect of the second and third prayers will have to be put at bay since those prayers have been abandoned and struck out. However, on the order of this court sought by the applicant to substitute ‘BCE Consulting Engineering’ as ‘BCE Consulting Engineers’ and the alternative prayers to join the latter, the learned senior counsel, O. Adekoya, SAN (Mrs.) submitted that there was no evidence of genuine mistake before the lower court or this court as there was no evidence that the respondent was a partnership firm and when the legal personality of the respondent was challenged before the lower court.
It submitted that since in its ruling the lower court refused to admit exhibit BCE-1 to support the partnership firm of BCE Consultant Engineering on the ground that it was in existence all along and a party is not allowed to prove its case by installments, the lower court thereafter became functus officio with regard to the application to change the name of the respondent to BCE Consultant Engineering. That if the lower court could not have granted the order, then this court should not exercise such powers under section 16 of the Court of Appeal Act. Reliance was placed on the case of Madu v. Okeke (1998) 5 NWLR (Pt. 548) 159 at 165-166.
Learned senior counsel therefore submits that to allow the amendment will overreach the appellant’s appeal on the ground that this will bring in a new personality other than the party presented before the lower court either in substitution or as an additional party. Reliance was placed on the case of Mamman v. Salaudeen (1998) 2 NWLR (Pt. 539) 592.
On whether this court can enlarge the time within which the appellant may file a respondent’s notice once a cross-appeal simultaneously learned counsel for appellant submitted that this is wrong in law in the light of decision in Eze v. Obiefuna (1995) 6 NWLR (Pt. 404) 639 at 649; Anyaduba v. N.R.T. Co. Ltd. (1990) 1 NWLR (Pt. 127) 397 and Pacers Multi-dynamic Ltd. v. M. V. Dancing Sister (2000) 3 NWLR (Pt. 648) 241 at 243. It is urged that none of the reliefs sought by the respondent should be granted.
As I have noted above, the only reliefs left before us for consideration are those seeking to substitute the applicant or joining BCE Consultant Engineering, because with the consent of the parties, the second and third reliefs were withdrawn or abandoned by the applicant. Also, before us is an application for extension of time for the respondent to cross-appeal against the judgment of lower court delivered on 7/3/2002.
It is not in doubt that by virtue of Order 1 rule 19 of the Rules of this court, this court has powers and duty to grant an amendment just as the Federal High Court does have under Order 27 rule 2 of the Rules of that court.
However, the principle which normally guides the court in an application of this nature is that the court must be satisfied first that the mistake sought to be amended or corrected was a genuine one; secondly, that the mistake was not misleading nor such, as to cause any reasonable doubt as to the identity of the person intended to be sued; and thirdly, that it is just to make the amendment. See Rodriguez v. Parker (supra); Baker v. Medway Building & Supplies (supra); Mitchell v. Harris Eng. Co. Ltd.(supra).
The above principle has received approval and application in Laguro v. Toku (1986) 4 NWLR (supra). I have carefully studied the affidavit of the applicant in support of the application. It has been shown in paragraph 7 that the applicant’s certificate of registration which shows its name as BCE Consultant Engineering, was forwarded to the appellant but nevertheless, the appellant in preparing the agreement described the consulting firm as BCE Consulting Engineers.
Also, some facts shown in paragraphs 8-18 are relevant to the consideration of this application. These are:
8. That the appeal was entered in the Court of Appeal, Lagos on the 11th June, 2002.
9. That from the 11th June, 2002, the lower court ceased to have jurisdiction to hear the application for stay of execution.
10. That on the 17th October, 2002 the applicant withdrew the application for stay of execution in the lower court on the grounds that the lower court lacked jurisdiction to hear the application.
11. That the lower court accordingly struck out the application.
12. That the award of damages was granted based on the respondent’s originating summons and on which no oral evidence was led and I verily believe that is a ground of appeal raising substantial issues of law for determination and contained in the notice of appeal.
13. That I verily believe that the company in Nigeria is not doing any business and has no assets and if the appeal is decided in favour of the applicant, the respondent would not be in a position to refund the sum of $22,300,000.00 which amounts to about N2,809,800.000.00 (Two billion. eight hundred and Nine million, eight hundred thousand Naira) only and would thereby render the appeal nugatory.
14. That the respondent was incorporated in the United Kingdom on 8th November, 1999 as BCE Consulting Engineers Ltd. and, a certified true copy of the certificate of incorporation is attached and marked exhibit AF4.
The respondent also registered a business name ‘BCE Consultant Engineering’ on the 6th August. 1998 in Nigeria, and a certified true copy of the certificate of registration of business name is attached and marked exhibitAF5. On the 15th February, 2001 the respondent also incorporated in Nigeria BCE Consulting Engineers Ltd. and a certified true copy of the certificate of incorporation is attached and marked exhibit AF6.
15. That in the lower court, one of the issues of contention was which of the companies was the party to the consultancy services agreement.
16. That the respondent was incorporated in Nigeria and the United Kingdom for the sole purpose of entering into consultancy services agreement with the applicant which is the subject matter of the appeal.
17. That a search on the Internet revealed that the company incorporated in the United Kingdom had been dissolved on 30th October, 2001 after the consultancy services agreement had been terminated.
A copy of the printout from the website is attached and marked exhibit AF7.
18. That applicant herein is a government corporation and by law, its general reserve fund is available for settlement of all judgment debts, thus ensuring that the respondent will be able to collect the judgment debt if the appeal is unsuccessful.
If I can get the applicant well, it is saying that at the time of instructing its counsel, the applicant delivered all relevant documents including the certificate of registration to its solicitors and the name used in instituting the suit was a bona fide mistake. It is shown that it was the appellant who prepared the agreement and described the applicant as ‘BCE Consulting Engineers’ even though they had in their possession the applicant’s certificate which shows its name as ‘BCE Consultant Engineering’. These facts contained in paragraphs 4 and 7 of the affidavit in support of the application have not been denied in the appellant’s counter-affidavit.
The learned senior counsel for the appellant has contended in the counter-affidavit that to allow the respondent substitute its name would be overreaching the appellant, as this would pre-determine the two grounds of appeal.
It has well been settled in a number of cases that the courts will always assist the applicant who has a genuine application which is capable of breathing life into the incompetent process. Where a defect in proceeding which can be corrected and no miscarriage of justice would be occasioned to the opposing party and there is another seeking to nullify the proceeding, the court would in doing substantial justice consider the application, which seeks to correct the defect. See Nalsa & Team Associates v. NNPC (supra).
However, in the instant case, the respondent is contending seriously against the substitution of the applicant because this would predetermine the two of appellant’s grounds of appeal. It is submitted that the amendment should not be allowed, as it would overreach the appellant by short-circuiting two of its grounds of appeal. Agreed, if the amendment will result in overreaching the appellant especially at this appellate stage it. will not be allowed. See Mamman v. Salaudeen (supra).
However, I agree with the learned counsel for the applicant that this argument cannot be extended to alternative prayer for an addition of a second respondent which reflects the name in the certificate of registration to the respondent at the time the contract was negotiated, I have said that this court can exercise its jurisdiction to allow amendment because the court below has jurisdiction to do so in the matter. See Maidu v. Okeke (supra).
In the circumstances, I do not find substance in the complaint of the learned counsel for the appellant that the amendment to join BCE Consultant Engineers would overreach the appellant. This
I must allow.
The question now is whether this court will enlarge the time within which the respondent/appellant may file their cross-appeal having withdrawn their earlier application to file respondent’s notice. The cross-appeal intended is against that part of the judgment dismissing the applicant’s claims for unpaid invoice delivered by the court below on 7/3/2002.
In their written submission; the appellant is not contending that the applicant cannot file a cross-appeal but that the respondent’s notice cannot co-exist with the cross-appeal as this could be considered as an abuse of the process of the court. I agree that the learned counsel has correctly stated the position of the law.
A person who has filed a cross-appeal cannot at the same time file a respondent’s notice under Order 3 rule 14(1). See Anyaduba v. N.R.T.C. Ltd. (1990) 1 NWLR (Pt. 127) 397 while a cross-appeal indicates that the respondent is himself dissatisfied with the decision of the lower court, a respondent’s notice is predicated on the respondent supporting the decision of the lower court but seeking either that it be varied or that it be affirmed on grounds other than those relied upon by the lower court. In other words the difference between variation of a judgment by a respondent’s notice and cross-appeal is that in a notice a party seeks to retain the judgment appealed from but at the same time wants it varied.
It cannot be used where a party wants a reversal of the judgment of the lower court, see B.E.O.O. Industries (Nig.) Ltd. v. Maduakoh (1975) 12 SC 91 so that a party who seeks to set aside a finding which is crucial and fundamental to a case can only do so through a substantial cross-appeal and not by an application to vary. In Anyaduba v. N.R.T.C. Ltd. (supra) the Supreme Court has held that a respondent’s notice to affirm cannot co-exist with a notice of cross-appeal in the same case and where two notices so exist an abuse of the process of the court can be said to have arisen.
In the case of Pacers Multidynamic Ltd. v. M.V. Dancing Sister (2000) 3 NWLR (Pt. 648) 241.
Where the second respondent filed both a respondent’s notice and a cross-appeal, this court noted that the Supreme Court in Anyaduba’s case put the respondent therein to elect as between retaining the notice of cross-appeal or notice of intention to affirm.
Learned counsel for appellant submits that the circumstances in Anyaduba’s case is not the same with the instant case in that the applications which now constitute an abuse of process are being made simultaneously to the same court and so the right of election does not arise. It is therefore, submitted that both process constitute an abuse of process and should be struck out. The learned counsel has correctly stated the law. There is no way the notice of cross-appeal can co-exist with notice of intention that judgment be affirmed.
Where this is done ordinarily, the consequence is to strike out the offending process. In Anyaduba’s case, since a different panel of the Supreme Court had earlier granted leave to the respondent to file cross-appeal, respondent was put on election to proceed with either the cross-appeal or the notice to affirm.
In the instant case, the situation has been made clear. The applicant had with the consent of the appellant prayed leave of this court to abandon its application for extension of time to file and serve a respondent’s notice. They did not insist that applications for extension of time to file the respondent’s notice and the cross-appeal must be heard and determined together. I have stated earlier that the only application left to be considered after the applicant had abandoned their application in respect of respondent’s notice is the application for cross-appeal.
I do not find merit in their opposition. A right of appeal is a constitutional right, which a party is entitled to exercise. Since in this case, the applicant had withdrawn their application to file respondent’s notice, it cannot be said that there was insistence on their part that the application for respondent’s notice and the cross-appeal must co-exist and be considered together.
In accordance with settled law and practice an applicant who has satisfied the court that he has good grounds to appeal, must be allowed to do so. Applicant has shown in paragraphs 18 and 19 that the grounds of appeal are substantial and arguable and not merely frivolous.
In the circumstance I am inclined to grant this application.
Accordingly, time is extended to today within which the respondent shall cross-appeal against the judgment of the Federal High Court, Lagos delivered by Honourable Justice E. O. Sanyaolu on 7/3/2002. The notice of cross-appeal having been filed, it is hereby deemed validly filed.
Other Citations: (2003)LCN/1490(CA)