KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal Nigeria
MODUPE FASANMI Justice of the Court of Appeal Nigeria
Between
CHAIRMAN, OYO STATE LOCAL GOVERNMENT TRADITIONAL COUNCIL & ORS.
AND
CHIEF OLANIYI ADEOYE ADEGBOYE III & ORS.
---------A---------
K. M. O. Kekere-Ekun JCA, JCA: By a motion on notice dated 18/12/09 and filed on 28/12/09 the appellants/applicants seek the following orders from this Court:
1. An order for leave to amend the notice of appeal dated 29/7/09 and filed on the same date herein attached and marked Exhibit A by deleting paragraph one on the Notice of Appeal and substituting same with a new paragraph one and to rearrange the parties thereon in terms of the schedule of amendment attached and marked Exhibit B.
2. An order extending the time within which the Appellants/Applicants can compile and transmit to this Honorable Court the record of appeal in this appeal.
The grounds for the application are stated on the face of the motion paper. In a nutshell, they are:
i. That learned counsel who prepared the notice of appeal dated 28/7/09, which was filed within time, omitted to state the State High Court,, and Judicial Division from which the ruling appealed against emanated.
ii. That there is an error in the arrangement of the parties.
iii. That the time within to compile and transmit the record of appeal has lapsed due to the failure of the Registry of the lower court to open for business on account of the current strike by the Judicial Staff Union of Nigeria.
The application is supported by a 20-paragraph affidavit with three exhibits annexed thereto marked A, B and C respectively. Exhibit A is a certified true copy of the original notice of appeal dated 29/7/09; Exhibit B is the schedule of amendment; while Exhibit C is the proposed amended notice of appeal.
At the hearing of this application on 15/4/2010, Mr. O. L. Omoloye, learned counsel for the appellants/applicants relied on all the paragraphs of the supporting affidavit and the exhibits attached thereto. He submitted that the propose of the application is to correct the errors committed by the counsel to the Appellant/Applicant by his failure to comply with the prescription of a good notice of appeal as prescribed by Order 6 Rule 1 and Form 3 of the First Schedule to the Rules of this court. He referred to paragraphs 5-7 of the affidavit in support and submitted that the High Court, the division of the court as well as the particulars of the suit appealed against were inadvertently omitted by the counsel who prepared the notice of appeal. He submitted that the application also seeks to amend the manner in which the parties were set out on the notice of appeal.
---------B---------
For the guiding principles in an application of this nature, he referred to: Chief Adedapo Adekeve & Ors. vs. Chief O. B. Akin-Oluabade (1987) 3 NWLR (60) 214 at 223 E – H: ALSTHOM S. A. & ANR, VS. CHIEF DR. OLUSOLA SARAKI (2000) 81 LRCN 3015 at 3027 & 3034 E-I (10/11/2000). He submitted that in an application for amendment the court is to ensure justice to both parties before the court. He noted that there is no counter-affidavit to the application. He submitted that the error that led to the amendment is that of counsel which should not be visited on the litigant. He referred to: PROPHET APIGUN OLOWOOKERE VS. AFRICAN NEWSPAPER OF NIG. LTD. & ORS. (1993) 5 NWLR (295) 583 at 592 G-H. He submitted that the application is brought to bring to the fore the subject matter of the appeal to enable the court do justice to the issues in contention. On the jurisdiction of the court to grant the application he referred to: NALSA & TEAM ASSOCTATES VS. N.N.P.C. (1991) 8 NWLR (212) 652 at 667 D-G. He contended that the error in this case is an irregularity and urged the court to grant prayer 1.
With regard to prayer 2 he relied on paragraphs 9-16 of the supporting affidavit wherein facts were deposed to showing that the applicant had complied with the necessary conditions of appeal but as a result of the strike action by staff of the lower court it was not possible to compile the record. He relied on ASOL NIG. LTD. VS. ACCESS BANK NIG. PLC. (2009) 10 NWLR (1149) 283 at 306 -307 E-D. He urged the court to grant the application in the interest of justice.
Mr. Biodun Abdu-Raheem, learned counsel for the 1st respondent opposed the application on points of law. He submitted that the Notice of appeal is the foundation and substratum of every appeal and any defect thereto is fatal and fundamental to the jurisdiction of the court. He referred to: UWAZURIKE VS. A. G. FEDERATION (2007) 8 NWLR (1035) 1 at 17. He submitted that in preparing a notice of appeal the aggrieved party must not only comply with the Rules of Court but must also comply with the provisions of the Constitution. He referred to: ADETONA VS. EDET (2004) 16 NWLR (899) 338 at 359 C-E. He also referred to Section 270(1) of the Constitution of the Federal Republic of Nigeria 1999 and submitted that there is only one High Court of a State. He argued further that by Section 240 of the Constitution an appeal could only lie against the judgment or decision of the High Court of a State. He submitted that the errors contained in Exhibit. A, the original notice of appeal, are very fundamental as there is no mention of any court therein.
He submitted that the power of this court to amend a process before it does not extend to a situation whereby the court would have to infuse life into an otherwise incompetent .process before it. He referred to: NWAIGWE VS. OKERE (2008) 34 (pt 2) NSCOR 1325 at 1353; IYAMU VS. AIGBIREMWEN (1992) 2 NWLR (222) 233 at 242 B-C.
He submitted that Exhibit A, which the applicant is seeking to amend, is not certified in compliance with Section 111 of the Evidence Act and therefore the court cannot look at it. He stated that the name of the officer who certified it and the date on which it was certified were not reflected on the document. Under cover of a letter addressed to the Deputy Chief Registrar of this Court dated 28th May, 2010 and copied to learned counsel for Appellants/Applicants, the 2nd & 3rd and 4th – 6th Respondents respectively, learned counsel for the 1st Respondent cited the following authorities in support of the submission: AGBALA VS. NNAMANI (2005) ALL FWLR (245) 1052; S. G. (NIG.) LTD. VS. GALMAS INT. LTD. (2010) 4 NWLR (1184) 361 at 379.
---------C---------
With regard to prayer 2, he referred to Order 8 Rule 1 of the Rules of this court. He submitted that upon the failure of the Registrar to compile the record, the Appellant had a duty to compile it. He referred to Order 8 Rule 4 and submitted that the facts deposed to in the supporting affidavit show that the appellants failed to comply with the said provision. He urged the court to refuse the application.
Mr. Adeola Omotunde, learned counsel for the 2nd and 3rd respondents did not oppose the application. The 4th – 6th respondents, although served with the application and hearing notice were absent and unrepresented by counsel. No process was filed on their behalf.
I have given careful consideration to the submissions of learned counsel, the affidavit in support of the application and the exhibits annexed thereto. The Supreme Court in: Adekeye vs Akin-Olugbade (1987) 3 NWLR (60) 214 at 223 had this to say on the nature and purport of an amendment:
“An amendment is nothing more but the correction of an error committed in any process, pleading or proceeding at law or in equity, and which is done either as of course or by notice to the court in which the proceeding is pending. The object of the court is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise in accordance with their rights. There is no kind of mistake or error which, if not fraudulent or intended to overreach, the courts cannot correct, if this can be done without injustice to the other party. The aim of an amendment is usually to prevent the manifest justice of a case from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It would certainly be wrong to visit the inadvertence or mistake of counsel on the litigant.”
From the above dictum, the court would allow the amendment of an error arising from inadvertence of counsel where it can be done without injustice to the other party. An amendment would be allowed where the error is not so fundamental that it goes to the root of the process. The issue in contention in this application is whether the failure to state the High Court from which the decision appealed against arose renders the notice of appeal filed on 29/7/09 incurably defective. Learned counsel for the 1st Respondent has argued that Exhibit A, the certified true copy of the original Notice of Appeal does not meet the requirement of a certified true copy of a public document as provided for in section 111 (1) of the Evidence Act., and therefore should not be considered by this court. To qualify as a certified true copy of a public document, the public officer who has custody of same must certify at the foot of the document that it is a true copy of the document or part thereof. It must be dated and subscribed by such officer with his name and official title and must be sealed whenever such officer is authorized to use a seal.
In the instant case, Exhibit A bears the signature and stamp of the Principal Registrar of the High Court of Justice, Oyo. It also bears a stamp indicating that it is a certified true copy of the original. However the name of the officer who certified the document is not indicated thereon.
Contrary to the contention of learned counsel for the 1st Respondent the date of certification and treasury receipt number in respect thereof are clearly indicted on page 4 of the document. It was certified on 30/7/09. In the circumstances, I am of the view that there has been substantial compliance with the provisions of Section 111(1) of the Evidence Act and the court is entitled to look at Exhibit A to ascertain the nature of the error sought to be corrected.
I have considered the authorities relied upon by learned counsel for the 1st respondent on the merits of the application. In Uwazurike vs A.G. Federation (2007) 8 NWLR (1035) 1 at 17 B – C, the appeal arose from the refusal of the trial court to grant the appellants bail. A joint notice of appeal was filed on their behalf and signed not by the appellants themselves but by their legal practitioner. The Supreme Court considered Order 4 Rule 4 (1) of the Court of Appeal Rules 2002, which provides:
---------D---------
“4 (1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself….”(Emphasis is mine).
The Court restated the settled principle of interpretation of statutes to the effect that where the language of a statute is plain, clear and unambiguous the words should be given their ordinary, natural and grammatical construction. The apex Court held, as rightly submitted by learned counsel, that a notice of appeal is the foundation and substratum of every appeal and any defect thereto or therein will render the whole appeal incompetent, thus depriving the appellate Court of jurisdiction to entertain the appeal or any interlocutory application based on the said appeal. It held that the failure by any appellant to comply with the statutory provision or requirement prescribed by the relevant laws or rules under which such appeals may be competent and properly before the court, would deprive the appellate court of jurisdiction to entertain and/or adjudicate on the appeal. The Supreme Court upheld the finding of the Court of Appeal that the notice of appeal was defective and incapable of activating a right of appeal. The emphasis of the Court was on the need to comply with the Rules of Court.
In: Adetona Vs Edet (2004) 16 NWLR (899) 338 at 359 C – E, this Court also re-emphasized the importance of strict compliance with the Rules of Court and the Constitution in the filing of a notice of appeal, as any slip could derail the appeal process. In Ivamu Vs Aiabiremwen (1992) 2 NWLR (222) 233 also relied upon by learned counsel for the 1st respondent, the Court held that the notice of appeal was invalid because none of the grounds of appeal raised a question of customary law. An amendment of the notice of appeal was refused on the ground that the appeal was not initiated by a valid notice of appeal. Similarly in Nwalawe vs Okere (2008) 34 (Pt.2) NSCOR 1325 at 1353, the Supreme Court held that a fundamentally defective notice of appeal cannot be cured by amendment. On this point, see also; Dr. Femi Adekanve & Ors. Vs F.R.N. (2005) 15 NWLR (949) 433.
The jurisdiction of the Court of Appeal to hear appeals is derived from Section 240 of the Constitution of the Federal Republic of Nigeria 1999, which provides:
“240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decisions of a court martial or other tribunal as may be prescribed by an Act of the National Assembly.”
Thus for the jurisdiction of the Court of Appeal to be invoked, it must be shown that the decision appealed against emanated from any of the Courts mentioned in Section 240 of the Constitution. The procedure for invoking the jurisdiction of the Court of Appeal in civil matters is provided for in Order 6 Rule 2 (1) of the Court of Appeal Rules 2007, which provides:
---------E---------
“2 (1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on ail such parties; and it shall also have endorsed on it an address for service.”
(Emphasis supplied)
The provisions are clear and unambiguous and must be given their natural and ordinary meaning. The use of the word “shall” makes the provision mandatory. Thus, to validly invoke the jurisdiction of the Court of Appeal, the appellant must, by his notice of appeal, show that the decision appealed against arose from one of the courts set out in Section 240 of the Constitution. The only way to do that is to state the particulars of the court concerned, such as the High Court of a State, the Sharia Court of Appeal of the Federal Capital Territory., Abuja, etc. As observed by learned counsel for the 1st respondent, this would be consistent with Civil Form 3 in the First Schedule to the Court of Appeal Rules 2007.
The original notice of appeal sought to be amended by the present application is marked Exhibit A and annexed to the supporting affidavit. The first paragraph reads thus:
“TAKE NOTICE that the Appellants being dissatisfied with the decision of the Honourable Justice F. L. Oyelaran dated 28th day of July 2009 do hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 herein and will at the hearing of the appeal seek the relief set out In paragraph 4.
AND the Appellants further state the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.”
(Emphasis supplied)
Clearly there is nothing in Exhibit A to invoke the jurisdiction of the Court of Appeal. “Honourable Justice F.I. Oyelaran” is not a court of law and certainly not one of the courts mentioned in Section 240 of the Constitution. I am of the considered view that the failure to state the court from which an appeal emanates is a fundamental defect that goes to the root of the entire process. It is not an irregularity that could be cured by amendment. The guiding principles on amendment so eloquently stated in Adekeve vs Akin-Oluabade (supra) reproduced earlier in this ruling would only apply to a competent process wherein the error sought to be corrected is a mere irregularity. Where the jurisdiction of the court has not been properly invoked, the Court would have no jurisdiction to entertain any application in respect of the incompetent process.
The error of counsel in the present circumstances is fundamental and robs the court of jurisdiction to grant the reliefs sought. In the circumstances I hold that this application lacks merit. It is hereby refused in its entirety and accordingly dismissed. The parties, shall bear their respective costs.
CHIDI NWAOMA UWA, JCA: I read before now the Ruling of my learned brother K. M. O. KEKEREEKUN, JCA I agree entirely with the holding that the application lacks merit. An incompetent process cannot be cured by an amendment; it goes to the root of the court’s power to entertain the application, which is lacking in the present case. I also hold that the application lacks merit; same is refused and dismissed by me.
I abide by the order made as to costs.
MODUPE FASANMI JCA I have read before now the lead ruling just delivered by my learned brother K. M. O. Kekere-Ekun JCA and I agree with his reasoning and conclusion. Where a process filed is incompetent the Court lacks jurisdiction to entertain the action filed.
My learned brother has covered the field in respect of the peculiar circumstances of this application. I have nothing useful to add. The application lacks merit and it is accordingly dismissed by me. Parties shall bear their respective costs.