Mr. Sunday Ekanem Usuah V. G.O.C. Nigeria Ltd. & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A(Delivering the Leading Judgment)

This appeal is against the decision of the High Court of Cross River State in Suit No. C/82/97 contained in a ruling delivered on 21/5/2002. The Respondent herein, as plaintiff in the High Court, had taken an action against the Appellant and other Respondents and in the course of proceedings, had applied to that court for leave to amend the name of the 1st Appellant, then 1st Defendant, from G.O.C. NIG. LTD. To G.O.C. ENTERPRISES NIG. LTD.

In the aforementioned decision, the High Court granted the application to amend and being aggrieved thereby, the Appellant has brought this appeal vide a notice of appeal dated the 28th but filed on the 30/5/2002.

I have noted that the record of the appeal, was transmitted to and received in the court on the 23/9/08, a period of more than six (6) years from the date the notice of appeal was filed. Clearly the record of appeal was transmitted outside the time limited by both the Court of Appeal Rules, 2007 under which it was compiled and transmitted as nuclear the Court of Appeal Rules, 2011 applicable at the time the appeal was heard. There is no record in the appeal file that the record had been regularized by the court before or at the hearing of the appeal. By the provisions of Order 8, Rule 1, of the Court of Appeal Rules, 2011, the Registrar of the High Court was required to compile and transmit the record of the appeal to the court within sixty (60) days after the filing of the notice of appeal.

Under Rule 4 of Order 8, where the Registrar failed or neglects to do so, “it shall become mandatory for the Appellant to compile the record of all documents and Exhibits necessary for his appeal and transmit to the court within 30 days after the registrar’s failure or neglect” Although the Rules of court are meant to be obeyed and complied with by the parties and the court, since there was no complaint of any prejudice by any of the parties on the late transmission of the record of appeal, I would proceed on the assumption that it was transmitted as required by the Rules.

I have also observed that the Appellant’s brief filed on the 19/12/08, was out of the time prescribed by the Rules of court for the Appellant to file it after transmission of the record of the appeal to this court. This is confirmed by the endorsement for the payment of filing fees on the face of the Appellants’ brief of argument which indicate that the Appellant had paid the sum of N1,400.00 as penalty for filing the brief fourteen (14) days outside the time provided by the Rules. Yet there is no record that the Appellant brief had been regularized by the court through the usual orders for extension of time and deeming it to have been properly filed in the appeal

Once again, there is no record of compliance or obedience to the provisions of the Court Rules enacted to regulate and govern proceedings and practice in dealing with appeals that come before the court. Because the issue was not raised at the hearing of the appeal and there was record that the Respondent was duly served with the Appellant’s brief but had not reacted to it by filing the Respondent’s brief in the appeal, once more, I am prepared to condone the irregularity in the peculiar circumstances of the appeal and assume that the Respondent suffers no prejudice by the late filing of the Appellant’s brief. The said brief is deemed properly filed since the Appellant had paid the requisite penalty prescribed by the Rules of the court for so doing.

Like I have stated above, the Respondent did not file a brief of argument in this appeal and so the appeal is uncontested as the Respondent is deemed in law to have conceded to the points canvassed in the issues for determination as contained in the Appellant’s brief. See SALAU v FARA-KOYI (2001) 13 NWLR (731) 602; UGBOAJA v SOWEMIMO (2008) 10 MJSC, 105. In addition, the Respondent, though duly served with hearing notice of the appeal, was not represented at the hearing of the appeal.

I have perused the two (2) grounds contained on the Appellant’s notice of appeal which is at pages 37 – 38 of the record of the appeal and the ruling appealed against which appears at pages 34 – 36 of the said record,

Undoubtedly, the Appellant’s ground B did not arise from the decision appealed against. The ground is as follows:-

“B. The Learned Trial Judge erred in law when he granted the Plaintiff leave to amend the name of the 1st Defendant for the reason only that the Plaintiff’s Application was brought early in the proceedings.

PARTICULARS OF ERROR

a. The issue before the trial court was whether the court had the power to grant leave to amend the name of party who is a non juristic person and unknown to law to make her assume a juristic personality and not whether such application was brought timeously or otherwise.

b. That time if not of the essence in an application for amendment of a writ of summons where a party whose name is sought to be amended is unknown to law being a non juristic person.”