Newsgate Communications Limited & Ors V. Da. Bulus Dareng (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE J.C.A. (Delivering the Lead Ruling)

This is an application brought by the Appellants/Applicants dated and filed the 7th day of February, 2013, pursuant to section 15 of the Court of Appeal Act 2004 and ORDER 7 Rules 1 & 10(1) of the Court of Appeal rules 2011 and under the inherent jurisdiction of this court praying for the following:-

“1. An order granting leave to the Appellants to amend the Notice and Grounds of Appeal, dated the 1st July 2010, and filed by the Appellants on the 1st day of July 2010, by:

(a) Striking out ground 3 of the original Notice and grounds of appeal, of 1st July 2010;

(b) Filing additional Grounds of Appeal, as Grounds 3 – 6, and inserting an alternative relief in terms of the Amended Notice and grounds of Appeal.

2. An order granting leave to the Appellants to amend the Appellants’ brief of Argument dated the 7th day of February, 2012 and filed on the 8th day of February, 2012, by substituting the said Brief with the Appellants Amended Brief of Argument.
3. An Order of Court deeming the Appellants’ Amended Notice and Grounds of Appeal, and the Appellants Amended Brief of Arguments as having been duly filed and served.
4. AND FOR SUCH FURTHER ORDER (s) as this Honourable Court may deem fit to make in the circumstances”

The application is predicted on the following grounds to wit:-

“1. While preparing the Appellant’s brief of arguments counsel, who PREPARED THE Appellants brief of argument, mistakenly argued the issues for determination as arising from ruling of the court on the Appellants’ notice of preliminary objection, instead of the judgment of the court upon which the Notice of Appeal was based.

2. In the course of re-appraising the appeal, in December 2012 as part of the practice of the office, counsel discovered that the brief of argument in respect of the appeal filed on the 1st of July 2010, did not fully address the issues that arose in the judgment.
3. The Appellants’ brief of argument partially addressed the complaint against the judgment of the court, and partially against the ruling of the court striking out the Appellants notice of preliminary objection.
4. In preparing the brief, S.S. Obende Esq. he was under the mistaken belief that the notice of appeal was against the entire conduct of the proceedings of the court.
5. That on a careful reading of the notice of appeal, and the brief of argument, he discovered that the notice of appeal is against the judgment of the court delivered on the 30th June 2012.
6. That the notice of appeal did not adequately address the Appellants complaint against the judgment of the court.
7. That the original notice of appeal was filed by the Appellants former counsel-Jim Gotom Esq. who is now engaged as Secretary of Kanke Local Government Area.
8. There is the need to file additional grounds of appeal, and an alternative relief in the notice and also to strike out ground 3 of the original notice and grounds of appeal, in order to be able to adequately address the issues in controversy between the parties.
9. That the default necessitating this amendment is occasioned by the fault of S.S. Obende Esq., who has settled the brief for the Appellants, without adverting to the fact that the arguments contained their in rerated to the motion filed by the Appellants’ former counsel, whereas the notice of appeal is in respect of the judgment of the court.
10. The mistake is entirely of counsel and done out of human error.
11. The grant of this application will serve the interest of justice.”

The application was supported by 18 paragraphs Affidavit sworn to by the 2nd Appellant/Applicant with three exhibits attached marked as “MA1”, “MA2” and “MA3” respectively.

On 18th day of February 2013, the Respondent swore to Counter Affidavit in opposition to the Appellant motion on Notice dated and filed 2013 now under consideration. It consists of 10 paragraphs. Upon the service of the said counter Affidavit on the Appellants/Applicants the latter filed FURTHER AND BETTER AFFIDAVIT in support of their application in apparent reaction to the Respondents Counter Affidavit.

The application was argued on 20th day of February, 2013. The learned counsel to the Appellant stated that the application is seeking Orders of this court as contained in the motion papers. He relied on the Affidavit in support and Exhibits attached thereto. He also relied on the further and Better Affidavit filed in response to the counter Affidavit of the Respondents. He submitted that this court has the discretion to grant the reliefs sought in his motion on Notice under the Rules of this court. The learned counsel to the Appellants/Applicants stated that in the course the preparation of the Notice and Grounds of Appeal the learned counsel who handled it was under the mistaken belief that the Notice of Appeal was against the entire conduct of the proceedings and that it was later discovered by learned counsel that the appeal was supposed to be against the Judgment of the lower court delivered on 30th day of June, 2010.

That the existing Notice of Appeal did not adequately address the complaints at the Appellants against the said judgment. According to Obende Esq., counsel for the Appellants the original Notice of Appeal was filed by Jim Gotom Esq. who was the former learned counsel to the Appellants. He also stated that while he was preparing the Brief of Argument of the Appellant he was under the impression that the Notice of Appeal was against the entire conduct of the proceedings at the court below, hence the real reason for the appeal was not captured.

The learned counsel also informed the court that upon reappraisal of the Notice and Grounds of appeal it is necessary to amend the Notice and Grounds of the Appeal filed by the Appellants/Applicant. That it is now necessary to amend the Notice and grounds of Appeal as well as the Appellants’ Brief of Argument. He submitted that this court can allow amendment of the Notice and Grounds of appeal and the Appellants Brief of Argument. He relied on the case of OLORO v. FALANA (2011) 17 NWLR (PART 1275) 207.

In his reaction to the counter Affidavit filed by the Respondent against the application S. S. Obende Esq., submitted that the content of the Counter/Affidavit could not scuttle the discretionary powers of this court. According to him the reasons for the application has been adequately explained in the Affidavits in support of the Motion on Notice. He again relied on the case of OLORO v. FALANA supra. He stated that grounds 1 and 2 of the proposed Amended Notice and Grounds of Appeal relate to the Judgment of the lower court. He submitted that once there is a ground of appeal that attacks the jurisdiction or Judgment of a lower court such a ground of appeal is competent.

He relied on the cases of KENNEDY v. INEC (2009) 1 NWLR (PART 1123) 614 at 635 – 636 AND OBI VS ACHIBONG (2010) 2 NWLR (PART 1179) 460. He urged this court to grant the application in the interest of substantial justice.