Plateau State Government & Anor V. Chief Harry Akande & Anor(1) (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Lead Ruling)

This application is for the following orders of this court:

An order granting leave to file additional ground of appeal out of time, an order granting leave to amend the notice and grounds of appeal, an order granting leave to file the appellants’ brief of argument out of time, and an order deeming the applicant’s process as filed.

The application is brought pursuant to Order 6 Rules 4 and 15 and Order 7 Rules 1 and 2 of the rules of this court; the reliefs sought are on the basis of four grounds; the application is supported by an eight paragraph affidavit deposed to by Nankwat D. Shase’et with Exhibits A, the notice and grounds of appeal, B, the proposed additional grounds of appeal, and C, the proposed amended notice and grounds of appeal.

Learned counsel also filed a written address in support of the application as ordered by this court; the 1st respondent claimed to have filed a counter affidavit, and written address in support of the counter affidavit. The counter affidavit could not be traced, so learned Silk opted to rely on the written address, as his objections are on points of law anyway, according to him; in response to which the appellant/applicant filed a written reply.

Edward G. Pwajok Esq., learned counsel to the appellants/applicants formulated a sole issue for determination by this court as:

Whether having regard to the nature of this application this court can exercise it discretion in granting the prayers sought by the appellants/applicants.

Learned counsel submitted that the need to file additional grounds of appeal is aimed at placing all issues in controversy between the parties, to enable this court do substantial justice rather than technical justice to the issues before it; especially as it is trite that once a notice is valid it can be amended any time before the appeal is heard.

That the amendment sought is not meant to overreach but to place issues properly in perspective before this court as the respondents will always have the opportunity to respond to issues; he referred this court to LASTMA V EZEZOOBO (2012) 3 NWLR part 1286 at 58 and OLORO V FALAN (2012) 17 NWLR part 207 at 220.

That the respondent will not be prejudiced as the application is made in good faith, as no new issue is introduced.

That also the length of time of delay is immaterial provided the applicant has explained the delay; he referred this court to CHAIRMAN ILEJEMEJE LOCAL GOVERNMENT V AWOLOLA (2005) All FWLR Part 291 at 1792.

That paragraph 4 of the affidavit accompanying the application clearly explains the delay in filing the appellant’s brief of argument within time cogently; learned counsel referred to OKORO V EKITI STATE GOVERNMENT (2007) All FWLR part 387 at 973 and contended that the overriding interest ought to be substantial justice; he urged this court to grant the application as prayed.

In response Rickey Tarfa SAN, learned counsel for 1st respondent formulated the following issue for determination by court:

Whether the appellant/applicants’ motion for leave to amend the sole ground of appeal in respect of their appeal against the post judgment ruling of the lower court dated 29th day of April, 2013,  and ancillary prayers to regularize appellants’ brief is misconceived and liable to dismissal.