Rafiu Ogbe V. Jimoh Adun Adegbe & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Ruling)

This application was brought pursuant to Order 6 Rules 6 and 15, Order 7 Rule 1 and Order 20 Rules 2, 3 and 5 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of the court, seeking the following Orders:

(a) “Setting aside the Order of this Honourable Court dated 12th February, 2013 striking out the Amended Notice of Appeal dated 15th October, 2007.

(b) Relisting the Appeal of the Appellant against the judgment of the High Court of Ogun State Coram B.A. Oguntesi Adio J delivered on 16th February, 2000 for hearing.

AND FOR SUCH FURTHER or other Orders as this Honourable Court may deem fit to make in the circumstances.

GROUNDS FOR THE APPLICATION.

1. “On 12th February, 2013, this Honourable Court struck out the original Notice of Appeal dated 23rd February, 2000 because it was improperly signed by former counsel to the Appellant.
2. On the same day, this Honourable Court also struck out the Amended Notice of Appeal dated 15th October, 2007 because it was predicated on the faulty and incompetent original Notice of Appeal.
3. The Appellant’s counsel had prepared an application for extension of time to Appeal in order to begin the process all over again when his attention was drawn to a most recent decision of the Supreme Court in UNITY BANK PLC. VS. DENCLAG LIMITED & ANOR. (2012) 18 NWLR PART 1322 PAGE 293.
4. The said Supreme Court decision held that once an incompetently signed Notice of Appeal is amended by leave of court and replaced with a properly signed Amended Notice of Appeal, the process is redeemed and is consequently valid.
5. It will be in the interest of Justice to grant the Appellant’s application particularly as there are exceptional circumstances to justify the Order sought.”

When this application was argued, the learned senior counsel J.A. Badejo (SAN) appearing with F.D. Oloruntoba Esq. for the applicant relied on a twelve (12) paragraph affidavit deposed to by one David Otunla, a legal practitioner in the firm of Bonajo Badejo & Co., solicitors retained by the applicant. Reliance was placed on all the paragraphs as well as Exhibits ‘1’, ‘2’, and ‘3’ attached thereto. Exhibit ‘1’ is the original Notice of Appeal filed on 23/2/2000; while Exhibit ‘2’ is the Order of this court amending Exhibit ‘1’, granted on 15/10/2007. Exhibit ‘3’ is the Amended Notice of Appeal filed consequent upon the grant of the Order of this court.

Exhibit ‘1’ was “signed” by a firm. While Exhibit ‘3,’ was signed by B.A. Badejo. These facts were submitted not to be in dispute. Amongst the Orders granted in Exhibit ‘2’, is leave to appeal against two interlocutory Rulings as shown. The Notice of Appeal was amended to reflect the new grounds of Appeal, following which the Notice of Appeal was comprehensively amended, that is Exhibit ‘3’, which was signed by B.A. Badejo.

It was submitted that the amendment cured the defect in the original Notice in the circumstances of this case, for the reason that there are fresh interlocutory appeals embodied in that amendment.

It was argued that the amendment was granted comprehensively knowing the defect in the original Notice. It was also submitted that the application was brought within reasonable time as provided in Order 20 Rule 5 of the Rules of this Court. We were urged to rely on the case of UNITY BANK PLC. VS. DENCLAG LTD and ANOR. (2012) 18 NWLR (Pt. 1332) P.293 particularly P.327. We were urged to hold that the above case is on all fours with the present case.

The learned senior counsel acknowledged that this court drew his attention to the subsequent decision in F.B.N. VS. MAIWADA (2013) 5 NWLR (Pt. 1348) P.444, but submitted that his case could be distinguished because in his case there was an amendment that cured the defect while in Maiwada’s case there was no amendment even though sought, it was not granted. The learned senior counsel submitted that he is aware that this court must follow later decisions but would only do so if the facts and circumstances are the same. We were urged to look at the justice of the case and distinguish this case from Maiwada’s case. We were urged to grant the application.

The respondents were served with the hearing Notice and the application on 2/9/2013 but failed to attend court. It is taken that they had nothing to urge the court not also having filed any counter affidavit in opposition.

I would determine the application based on the processes filed by the applicant only.

It is not disputed by the learned senior counsel that the original Notice of Appeal filed on 23/2/2000 was incompetent because it was not signed by counsel to the appellant, that is Exhibit ‘1’. The learned senior counsel has argued that the incompetent Notice of Appeal was struck out as well as the Amended Notice of Appeal dated 15th October, 2007 properly signed by counsel, amended with the leave of court on 15th October, 2007. The question that has arisen now is, can the incompetent Notice of Appeal, Exhibit ‘1’ without the signature of counsel be validly amended?