Wema Bank Plc V. Alhaji Asani Awotunde & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

In a motion on Notice dated 27th day of October, 2009 and filed on the 28th day of October, 2009, the applicant prayed for the following orders:

‘1. AN ORDER of this Honourable court granting the Appellant/Applicant leave to amend its Notice of Appeal filed on the 23/08/2006 before this Honourable court as contained in the schedule of amendment attached to this motion.

2. An order of this Honourable court to deem as properly filed and served the Amended Notice of Appeal already filed and served.

AND FOR SUCH FURTHER or other orders as this Honourable court may deem fit to make in the circumstances of this case.’

The application was brought pursuant to Order 7 Rule 10(1) of the Court of Appeal Rules, 2007. It was supported by a six (6) paragraph affidavit sworn to by one EnosJacob, a legal practitioner in the law firm of Musibau Adetunbi & Co, counsel to the Applicant. The amendment was sought in line with paragraph (3) of the schedule attached to the affidavit, that is, to insert the name Musibau Adetunbi Esq on the top of Musibau Adetunbi & Co, wherever the latter appears in the Notice of Appeal filed on the 23/08/06. In moving the application on behalf of the applicant, the learned counsel, Musibau Adetunbi Esq, identified a sale issue for determination, that is: Whether a Notice of Appeal signed in the name of a firm could be amended? In arguing that it could, the learned counsel referred to the popular case of OKAFOR v. NWEKE (2007) 10 NWLR PT.1043 P.521 AT P.259. He submitted that from the above decision there is a clear difference between the word ‘incompetent’ and the words ‘null and void’. He argued that something that is incompetent could be amended and that the Supreme Court did not say in the above decision that such process is null and void and did not say such process could not be amended. The learned counsel to the Applicant tried to distinguish the situation in Nweke’s case, where a motion was withdrawn; he submitted that in this case it is a Notice of Appeal. In referring to paragraph 5 of the affidavit in support, it was argued that the error based on which this application was brought is typographical. It was further argued that the sins of counsel should not be visited on the litigant and that if the appeal is struck out, it is the litigant that suffers. Reference was made to pages 524 and 533 of the above decision.

It was further submitted that the application to amend, is to amend the previous error, reliance was placed on the case of COLE V. MARTINS (1968) 5 NSCT Cases P.120, which learned counsel argued was not overruled by the decision in Nweke’s case. Also referred to is the case of UNITY BANK PLC. V. ABIOLA (2008) 42 WRN P.112, AT P.124 – 130, it was argued that the appeal was heard without amendment.’Also relied upon was the case of GAMBARI V. MAHMUD (2008).14 NWLR PT.1107. P.209 AT 212 RATIO 3. Also SHAMU VS. AFRIBANK OF NIGERIA PLC, 13 NWLR (2000) PT. 684, P.392 G-H, and BELLO AND OTHERS V. A. G. OYO STATE (1986) 2 NSCT Cases 1257 AT 1284 LINE 50, 1285 LINE 5.

It was argued that the complaints in paragraphs 4 and 5 of the counter affidavit are what the applicant is seeking to rectify. We were urged to allow the amendment.

The 1st and 3rd Respondents even though served with the motion papers and the hearing Notice on 6/1/10 neither responded to the application nor appeared in court when the application was moved on 21/1/10.

Even though Mr. K. A. Tijani on behalf of the 2nd Respondent did not file any counter affidavit in opposition but, opposed the application on points of law and argued that the Notice of Appeal dated 23/8/06 is incompetent. He relied on the case of OBIOSA V. NIGERIA AIR FORCE (2004) 9-12 SCM, P.S7 AT 91, to the effect that an incompetent Notice of Appeal cannot be validated by amendment. Reference was also made to the case of CHIEF OLA BURAIMO VS. CHIEF L. OLAJUNWO OYELANO & 6 ORS, CA/I/136/2004 delivered on 28/5/09 by this division of the court, we were urged to refuse the Application.

Mr. Olusola Ajao in opposing the application on behalf of the 4th Respondent filed a Counter Affidavit of seven (7) paragraphs dated and filed on 20/11/09, he relied on all the averments and aligned himself with the arguments of counsel to the 2nd Respondent. In addition, he cited and relied upon the case of ODUNZE VS. NWOSU (2007) 31 NSCQLB P. 28. It was argued that a defective Notice of Appeal cannot be amended. Also OKAFOR V. NWEKE (Supra), P.1027, Paragraphs A-B, was relied upon in arguing that the incompetent Notice of Appeal cannot be cured by an amendment. We were urged to strike out the application as well as the Notice of Appeal for being incompetent before the court as a consequential order, as well as the appeal.

In response, on points of law Mr. Adetunbi submitted that there is no application before this court challenging the competence of the appeal or otherwise. He argued that unless invited back by the court, the court cannot strike out the appeal without hearing the parties. Reference was made to Order 7 Rule 1 of the Court of Appeal Rules, 2007.

Finally, that the decision in Nweke’s case was not to the effect that a Notice of Appeal cannot be amended.

No doubt, the Court of Appeal is clothed with powers and the jurisdiction to amend, at any stage, processes before the court in order to bring the real issues in controversy before the court for determination. Order 7 Rule 10(1) of the Court of Appeal Rules, 2007 under which the present application was brought provides:

10.(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of Notice of intention not to contest an application under Rules 8 above.