Chairman, Oyo State Local Government Traditional Council & Ors. V. Chief Olaniyi Adeoye Adegboye Iii & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

K. M. O. Kekere-Ekun J.C.A., J.C.A. (Delivering the Leading Judgment)

By a motion on notice dated 18/12/09 and filed on 28/12/09 the appellants/applicants seek the following orders from this Court:

1. An order for leave to amend the notice of appeal dated 29/7/09 and filed on the same date herein attached and marked Exhibit A by deleting paragraph one on the Notice of Appeal and substituting same with a new paragraph one and to rearrange the parties thereon in terms of the schedule of amendment attached and marked Exhibit B.
2. An order extending the time within which the Appellants/Applicants can compile and transmit to this Honorable Court the record of appeal in this appeal.

The grounds for the application are stated on the face of the motion paper. In a nutshell, they are:

i. That learned counsel who prepared the notice of appeal dated 28/7/09, which was filed within time, omitted to state the State High Court,, and Judicial Division from which the ruling appealed against emanated.

ii. That there is an error in the arrangement of the parties.

iii. That the time within to compile and transmit the record of appeal has lapsed due to the failure of the Registry of the lower court to open for business on account of the current strike by the Judicial Staff Union of Nigeria.

The application is supported by a 20-paragraph affidavit with three exhibits annexed thereto marked A, B and C respectively. Exhibit A is a certified true copy of the original notice of appeal dated 29/7/09; Exhibit B is the schedule of amendment; while Exhibit C is the proposed amended notice of appeal.

At the hearing of this application on 15/4/2010, Mr. O. L. Omoloye, learned counsel for the appellants/applicants relied on all the paragraphs of the supporting affidavit and the exhibits attached thereto. He submitted that the propose of the application is to correct the errors committed by the counsel to the Appellant/Applicant by his failure to comply with the prescription of a good notice of appeal as prescribed by Order 6 Rule 1 and Form 3 of the First Schedule to the Rules of this court. He referred to paragraphs 5-7 of the affidavit in support and submitted that the High Court, the division of the court as well as the particulars of the suit appealed against were inadvertently omitted by the counsel who prepared the notice of appeal. He submitted that the application also seeks to amend the manner in which the parties were set out on the notice of appeal.

For the guiding principles in an application of this nature, he referred to: Chief Adedapo Adekeve & Ors. vs. Chief O. B. Akin-Oluabade (1987) 3 NWLR (60) 214 at 223 E – H: ALSTHOM S. A. & ANR, VS. CHIEF DR. OLUSOLA SARAKI (2000) 81 LRCN 3015 at 3027 & 3034 E-I (10/11/2000). He submitted that in an application for amendment the court is to ensure justice to both parties before the court. He noted that there is no counter-affidavit to the application. He submitted that the error that led to the amendment is that of counsel which should not be visited on the litigant. He referred to: PROPHET APIGUN OLOWOOKERE VS. AFRICAN NEWSPAPER OF NIG. LTD. & ORS. (1993) 5 NWLR (295) 583 at 592 G-H. He submitted that the application is brought to bring to the fore the subject matter of the appeal to enable the court do justice to the issues in contention. On the jurisdiction of the court to grant the application he referred to: NALSA & TEAM ASSOCTATES VS. N.N.P.C. (1991) 8 NWLR (212) 652 at 667 D-G. He contended that the error in this case is an irregularity and urged the court to grant prayer 1.

With regard to prayer 2 he relied on paragraphs 9-16 of the supporting affidavit wherein facts were deposed to showing that the applicant had complied with the necessary conditions of appeal but as a result of the strike action by staff of the lower court it was not possible to compile the record. He relied on ASOL NIG. LTD. VS. ACCESS BANK NIG. PLC. (2009) 10 NWLR (1149) 283 at 306 -307 E-D. He urged the court to grant the application in the interest of justice.

Mr. Biodun Abdu-Raheem, learned counsel for the 1st respondent opposed the application on points of law. He submitted that the Notice of appeal is the foundation and substratum of every appeal and any defect thereto is fatal and fundamental to the jurisdiction of the court. He referred to: UWAZURIKE VS. A. G. FEDERATION (2007) 8 NWLR (1035) 1 at 17. He submitted that in preparing a notice of appeal the aggrieved party must not only comply with the Rules of Court but must also comply with the provisions of the Constitution. He referred to: ADETONA VS. EDET (2004) 16 NWLR (899) 338 at 359 C-E. He also referred to Section 270(1) of the Constitution of the Federal Republic of Nigeria 1999 and submitted that there is only one High Court of a State. He argued further that by Section 240 of the Constitution an appeal could only lie against the judgment or decision of the High Court of a State. He submitted that the errors contained in Exhibit. A, the original notice of appeal, are very fundamental as there is no mention of any court therein.

He submitted that the power of this court to amend a process before it does not extend to a situation whereby the court would have to infuse life into an otherwise incompetent .process before it. He referred to: NWAIGWE VS. OKERE (2008) 34 (pt 2) NSCOR 1325 at 1353; IYAMU VS. AIGBIREMWEN (1992) 2 NWLR (222) 233 at 242 B-C.

He submitted that Exhibit A, which the applicant is seeking to amend, is not certified in compliance with Section 111 of the Evidence Act and therefore the court cannot look at it. He stated that the name of the officer who certified it and the date on which it was certified were not reflected on the document. Under cover of a letter addressed to the Deputy Chief Registrar of this Court dated 28th May, 2010 and copied to learned counsel for Appellants/Applicants, the 2nd & 3rd and 4th – 6th Respondents respectively, learned counsel for the 1st Respondent cited the following authorities in support of the submission: AGBALA VS. NNAMANI (2005) ALL FWLR (245) 1052; S. G. (NIG.) LTD. VS. GALMAS INT. LTD. (2010) 4 NWLR (1184) 361 at 379.

With regard to prayer 2, he referred to Order 8 Rule 1 of the Rules of this court. He submitted that upon the failure of the Registrar to compile the record, the Appellant had a duty to compile it. He referred to Order 8 Rule 4 and submitted that the facts deposed to in the supporting affidavit show that the appellants failed to comply with the said provision. He urged the court to refuse the application.