Scanad Nigeria Limited V. Prima Garnet Communication Limited & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Lead Ruling)

The Appellant /Applicant filed a notice of appeal dated 16th April, 2013, against the interlocutory decision of the lower Court delivered on the 15th April 2013. The appellant filed a motion dated and filed 23rd of May 2013, for;

1. An order of court granting leave to the applicant to amend its notice of Appeal dated and filed on 16th April 2013 against the ruling of the High Court of Lagos by Oyeabo J delivered on the, 15th of April 2013 in the manner set out in Exhibit PUC 3
2. An order extending time within which the Applicant may apply for leave to appeal against the decision of the lower Court on mixed law and facts and mixed law – proposed grounds 2, 3, 4, 7, and 8 as in Exhibit PUC
3. An Order granting leave to the Applicant to appeal against the decision on grounds of facts and mixed law and facts, to wit; Proposed grounds 2, 3, 4, 6, 7 and 8 as set out in Exhibit PUC 3
4. An order extending time within which the Appellant may appeal against the decision of the lower Court on grounds of facts and mixed law 2, 3, 4, 6, 7, and 8 as set out in Exhibit PUC3.
5. An order granting leave to applicant to argue proposed grounds 2, 3, 4, 6, 7 & 8 which are grounds of facts or mixed law and facts in its notice of appeal as set in Exhibit PUC 3.
6. An order extending the time within which the Applicant may file its brief of Argument in this Appeal.
7. And for such further or other Orders as the Honorable Court may deem fit to make in the circumstances of the appeal.

The application had 8 grounds, supported by an affidavit of 9 paragraphs, with Notice of appeal, Ruling and proposed Amended Notice of Appeal of 10 grounds. The appellant/applicant also had a written brief in support dated and filed on 11th of November 2013 which was settled by PAUL USORO SAN, MUNIRUDEEN LIADI ESQ, ADETAYESE LATILO ESQ, CHINEDU ANYASO ESQ AND OLUGBENGA ONALAJA

The Respondent in response filed by a preliminary objection dated 14th June 2013, filed on 17th June 2013, that; the appeal be dismissed in its entirety for being grossly incompetent, on the grounds that:

1. There is no competent appeal before the Court.
2. The notice of Appeal dated 16/4/013 is incompetent on the ground that grounds 1, 4, & 5 thereof are mixed law and facts and leave of court was not sought and obtained before the said notice of appeal
3. The 1st Respondent had joined issues with the Appellant/Applicant on the facts stated in the ground 2 above vide its counter-affidavit filed at the Trial Court’s Registry dated 24/4/013 {Exhibits AA1 & AA2 in support of N.O.P}
4. The said notice of appeal being incompetent cannot be cured by way of amendment.

It was supported by a 10 paragraph affidavit, with an exhibit a counter affidavit in opposition to 2nd defendant’s motion on notice (in the lower Court) dated 17th April 2013. The 1st Respondent further filed a counter-affidavit of 7 paragraphs in opposition to the Appellant/Applicant’s notice of motion of 17th June 2013.

On the 3rd of December 2013, the 1st Respondent filed its written address in support of the preliminary objection and in opposition to the appellant’s application, which was settled by ALADE AGBABIAKA ESQ SAN, G. K. ABDUSALAM ESQ, in addition 1st Respondent filed a further and better affidavit dated and filed on 14th Nov 2013.

The Applicant further filed the following processes; further Affidavit and 2nd further affidavit in support and reply to 1st Respondent counter affidavit dated and filed on 23rd August 2013, and 27th September 2013 with 3 exhibits. Appellants/Applicants reply address in support of its motion on notice and in opposition to preliminary objection was dated and field 20/1/14.

The 1st Respondent formulated two issues for determination in its written address;

i. Whether the Appellant’s Notice of Appeal dated 16th April 2013, against an interlocutory decision of the lower Court (whose grounds 1, 2, 3, 4, & 5 are grounds of mixed law and facts) is competent having regard to the Appellant’s failure to obtain the leave of court before bringing same.

ii. Whether an incompetent Notice of Appeal can be cured by way of amendment.

On issue 1, the 1st Respondent referred to Section 242(1) of the Constitution, that leave must be sought to appeal though, circumstances are not stated, but list out circumstances under which an appeal may be lodged as of right amongst which is where the grounds of appeal involves questions of law alone or a final decision of the lower Court.

Counsel referred to NALSAL & TEAM ASSOCIATES vs NNPC (1991) 8 NWLR (PT. 212) SC 652 AT 678 PAR D-E, that failure to obtain leave renders an appeal null and void and of no effect where grounds of mixed law and facts exist. He submitted that grounds 1, 2, 3, 4, & 5 relied upon in the Notice of APPEAL dated 16th April, 2013, are mixed law and facts hence leave is required, he further referred to NJEMANZE VS NJEMANZE (2013) 8 NWLR (Pt. 1356) SC 376 on determination on the type of grounds, he analyzed the grounds seriatim and submitted that they each question the evaluation by the lower Court, he relied further on OKEKE VS PETMAG NIG LTD (2005) 4 NWLR (Pt. 915) 245, ALAMIEYESEIGHA VS CJN (2005) 1 NWLR (PT. 906) 60.

Counsel for 1st respondent submitted that the applicant described his grounds as one of law in paragraph 4f of his address and that he cannot be seeking leave for it nor for the proposed grounds which is not before the court.

The 1st respondent submitted that the legal implication of not first seeking and obtaining leave before filing the appeal against the interlocutory decision of 15th April 2013 as held in COOP BANK vs OGWURU (1991)1 NWLR (Pt. 459) 458 AT 467 that where leave has not been sought before filing a notice of appeal it cannot be sought out of time to deem the notice of appeal (which is incompetent) as properly filed out of time as this application now seeks to do. He referred to Order 2, 3, 4, 5 of Court of Appeal Rules 2011 and Section 24 of Court of Appeal Act which provides for 14 days for Notice of appeal to be filed, and that there are two stages of seeking leave –