Mr. Francis Thomas Essien v. Attorney General & Commissioner For Justice, Akwa Ibom State & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HAMMA AKAWU BARKA, JCA (Delivering the lead ruling)

The instant application brought by way of motion on notice, pursuant to Order 4 Rule 1, Order 6 Rule 1 of the Court of Appeal Rules, 2021 and under the inherent jurisdiction of the court, prays for the following reliefs:

1. An order granting leave to the 1st – 3rd respondents to amend their respondents brief of argument in the manner underlined in the proposed amended brief of argument attached hereto and marked exhibit MOJ1.
2. An order deeming the said amended respondents brief of argument filed as having been properly filed and served.

The grounds supporting the application are that:

(a) There is need to amend the respondents’ brief of argument filed on the 29/1/2020 to incorporate other issues discovered while reading through the records of appeal in this suit and this court has the power to grant this application.

(b) The 1st – 3rd respondents had filed the respondent brief of argument on the 29th January, 2020 but discovered that the issue of preliminary objection which had been dealt with at the lower court and which needs to be expunged from the respondents brief of argument yeas inadvertently brought included in the said brief.

(c) The order of this court is required to amend the respondents brief of argument in this matter and to expunge the issues discovered while reading the record of appeal.

Also supporting the application is an affidavit of 11 paragraphs deposed to by one Samuel Isanga civil servant and litigation officer with the Ministry of Justice of the Akwa Ibom State.

Applicant also filed a written address dated the 18th day of August, 2022 filed along with the application.

In opposing the application, the learned appellants counsel filed the appellants opposition on points of law to the respondents motion for amendment of the 2/9/22 on the 20/9/22. The applicant also filed a rejoinder on points of law on the 10/3/2023.

On the 10/10/2023, both parties identified the process filed, adopted the same, and while Mr. Edem, of counsel for the applicant prays that the application be granted. Mr. Benson Esq., urged the court to refuse the application as same is meant to over reach the appellants.

The applicant proposed a lone issue to wit, whether the honourable court has the power to grant the relief sought by the respondents in this application.

Learned counsel on the issue relied on Order 4 Rule 1, Order 6 Rule 1 of the Court of Appeal Rules, 2021 and the inherent jurisdiction of the court in urging the court to grant the application. Reliance was also placed on the case of Salisu v. Mobolaji (2014) 7 WRN 55; (2014) 4 NWLR (Pt. 1596) 1 at 18, which held that:

As long as an amendment being sought is not fraudulent vexations or meant to overreach or merely annoy or embarrass the other party the court will incline, in the best interest of justice and fairness.”

He alluded to paragraphs 5 and 7 of the supporting affidavit, and also made reference to the case of EFCC v. A-G., Ekiti State (2019) LPELR-CA/EK/47/2018.