A notice of appeal filed out of time is incompetent and cannot be cured by amendment.

 

Petgas Resources Ltd. v. Mbanefo [2018] 1 NWLR (Pt. 1601) 442 at 470, paras. F-G, per Kekere-Ekun JSC:

“In the absence of an application for enlargement of time, a notice of appeal filed out of time has no foundation. It is liable to collapse and nothing, such as an amendment of the incompetent process, can stand on it. A fundamentally defective notice of appeal cannot be cured by amendment.”

Notes:

The case involves an appeal filed by the Appellant against a decision of the Court of Appeal. The appeal was filed outside the time allowed by the Rules of Court and the Appellant failed to file an application to regularise same. Subsequently, the Appellant filed an application seeking the leave of Court to amend the Notice of Appeal and the application was granted.

The Respondent later filed a preliminary objection challenging the competence of the appeal on the ground that the Notice of Appeal earlier filed was incompetent, having been filed out of time. The Supreme Court upheld the Respondent’s contention and struck out the appeal. The apex Court held that since the Notice of Appeal filed was out of time, it was incompetent and defective and all subsequent processes filed in the appeal was void.

Time for doing any act in judicial proceedings, including the filing of appeal, are usually provided in the relevant statutes and Rules of Court for the purpose of saving time and discouraging laxity in prosecuting cases. In addition, penalty (in terms of monetary payment) for default in due compliance is also usually provided.

In line with this, it is trite that any court process filed out of the time permitted is irregular or incompetent but can be regularised upon the filing of an application to that effect and payment of the default fees subject to the discretion of the court.

Nevertheless, we have seen that counsel sometimes fail to strictly comply with this procedure of filing within time or taking steps to regularise irregular processes. In the case of appeal filing, this failure to file within time is also not entirely due to the fault of counsel at all times as the court registries often contribute to the delay either by failing to make available certified copies of decisions or by not timely performing other administrative tasks in furtherance of the appeal. The inefficiency of the court registries have even led lawyers to often engage in the habit of ‘tipping’ court officials to ‘facilitate’ and ‘mobilise’ them to work. In fact, it has become a solid tradition that if counsel fail to ‘do the needful’, nothing gets done by these officials. Whatever the case, parties bear the full weight of any delay.

It is submitted that proactive steps need to be taken to avoid situations such as the one in the instant case where the appeal was consequently struck out. The innocent Appellant may never understand why the case was not determined on the merit. It is recommended that court registries should be directed to ensure that no court process should be filed out of time without the necessary penalty paid at the time of filing. That way, no incompetent process will ever find its way into the court file.

If this is done, a party may then apply through his counsel in writing (or even orally) that such irregular process be regularised by an order of Court, penalty for default having been paid. This does not deny the Court the discretion to discountenance any application for extension of time where the delay is found to be so much as to lead to injustice. Notably, it is in line with ensuring that judicial time is saved that applications for extension of time may even be treated in chambers and the other side is obliged to file notice of intention not to oppose, so as to dispense with the need for any hearing.

To some extent, respectfully, it ridicules the system that the Supreme Court in the instant case made an earlier Order amending the Notice of Appeal in question only to later strike it out for being incompetent. The Court should take the issue of saving judicial time seriously and avoid any occasion where the Court would be making orders that are absolutely ineffectual.

The Supreme Court reiterates that a brief of argument must not be struck out for lack of beauty or elegance.

 

KLM Royal Dutch Airlines v. Aloma [2018] 1 NWLR (Pt. 1601) 473 at 509-510, paras. H-A, per Peter-Odili JSC:

“Going along the pathway charted by these earlier decisions of our courts, it can easily be seen in line with what is before this Court that the learned Justices of the Court of Appeal ought not to have denied the Appellant a hearing for the second time on the technical perception of the lack of beauty or elegance of its brief. Indeed, a miscarriage of justice arose on account of what the Court below did.”

Notes:

In the case, the Court of Appeal had struck out the Appellant’s Brief of Argument for being inelegantly drafted and in defiance to the Court of Appeal Rules. As a result, the Court of Appeal dismissed the appeal, concluding that the Brief of Argument having been struck out, there was nothing left to determine in the appeal.

The Appellant’s appeal to the Supreme Court against the decision of the Court of Appeal was successful. The apex Court frowned at the position taken by the Court of Appeal especially taking into consideration that the law is settled that an appeal must be heard and determined notwithstanding the fact that the Brief of Argument filed lacks elegance. It is baffling how the Court of Appeal shut its eyes to the plethora of authorities on the point.

One of the reasons advanced by the Court of Appeal for dismissing the appeal was that the defect in the Appellant’s Brief of Argument went beyond mere technicality to the root of fair hearing of the appeal because it could not consider the appeal without interfering with the arrangement of the issues in favour of the Appellant. This, according to the Court of Appeal, would also amount to descending into the arena and performing “surgical operation” on the Brief.

Unfortunately, the long line of authorities (which held that an inelegantly drafted Brief must not be altogether discountenanced) tend to suggest that even if it would amount to performing the duties of a surgeon, the Court must consider the arguments in the Brief in the interest of justice. In keeping with this, the Supreme Court stressed that a brief of argument is not an end in itself but one of the tools provided for by the Rules of Court to assist the Court in deciding a given case justly.

The other reason furnished by the Court of Appeal was that the Appellant formulated two issues but argued sub-issues, thereby abandoning the main issues. The Supreme Court considered this reason but found that the two issues were indeed argued by the Appellant and that same derives from the grounds of appeal. The law as recently upheld by the Court in Chiadi v. Aggo [2018] 2 NWLR (Pt. 1603) 175 at 231, paras. C-D, is that “The inelegance of an issue with titles or sub-issues…should not distract from the substance of what should be the concern of the appellate court in discharging justice. The Court of Appeal failed to avert its mind to this position.

We commend the Supreme Court for coming to the rescue by setting aside the dismissal order and directing that the appeal be heard by another panel of the Court of Appeal.

Counsel are hereby encouraged to take the issue of brief-writing seriously and where possible, take further courses or training on brief-writing.

A single notice of appeal can be used to challenge multiple decisions of a court in a case.

 

Uchiv v. Sabo [2016] 16 NWLR (Pt. 1538) 264 at 295 paras. B-G, per Georgewill, JCA:

“It is thus the law that a party aggrieved with both decisions of a court at an interlocutory stage and the final determination of a case can conveniently and competently vide a single notice of appeal challenge both decisions in an appeal. It is, in my view, within his right so to do.”

Note:

The kind of scenario that plays out, thereby calling for a judicial clarification on the procedure on appeal is such that during the pendency of a case before judgment is delivered, the court often deliver a number of rulings on applications/arguments (both oral and written). These rulings can form the basis of an appeal by any aggrieved party.

As observed by the Court of Appeal in the instant case, an aggrieved party may very well await the final outcome of a case to determine whether to appeal against both the interlocutory and final decisions, should the final decision be unfavourable.

So the procedural question is whether a single notice of appeal suffices for the purpose of the appeal or whether separate notices of appeal should be filed challenging the separate decisions. Note that the separate decisions may be two separate rulings delivered on the same date or separate dates in the same case; or an interlocutory decision and then a final decision.

Continue reading A single notice of appeal can be used to challenge multiple decisions of a court in a case.

Trial court may order substituted service even without an attempt at personal service.

 

Zakirai v. Muhammad [2017] 17 NWLR (Pt. 1594) 181 at 227, paras. C-G, per Augie, JSC:

“There it is – the trial court may order substituted service either after “or without an attempt at personal service”. The word “may” makes room for the exercise of discretion. It is an enabling and permissive word and in that sense, it imposes or gives a discretionary power.”

Notes:

The Supreme Court gave its interpretation to the clear provisions of Order 6 Rule 5(a) and (b) Federal High Court (Civil Procedure) Rules of 2009. The words in quote within the quoted pronouncement are as contained in the Rules. So, the Supreme Court had no difficulty in giving the provision its ordinary meaning. This is good.

Continue reading Trial court may order substituted service even without an attempt at personal service.

Failure to comply with section 97 of the Sheriffs and Civil Process Act is a mere irregularity that can be waived.

Zakirai v. Muhammad [2017] 17 NWLR (Pt. 1594) 181 at 230-231, paras. G-D, per Augie, JSC:

“His [The Appellant’s] objection was a complaint against the competence of the trial court to entertain the suit because the originating summons was not endorsed or marked as required by the said Act and Rules, which touches on the procedural rules that got parties to the court, and nothing whatsoever on the facts that led to the cause of action or substance of the suit filed by the first respondent. Any defect amounted to a mere irregularity that can be waived by the parties… In this case, the Appellant entered a conditional appearance and also filed a counter-affidavit [to the Originating Summons], which means he waived the irregularity that he complained of, and had submitted to the jurisdiction of the court.”

Notes:

The Court reasoned that while substantive jurisdiction of the court cannot be waived, a party can waive an issue relating to procedural jurisdiction of the court. In effect, the Court was of the view that the issue relating to the endorsement and marking of an originating process for service outside jurisdiction as provided for by the Sheriffs and Civil Process Act is an issue touching on the procedural jurisdiction of the court and thus can be waived.

The above position appears to run contrary to the Supreme Court position in the case of Owners of MV “Arabella” v. N.A.I.C. [2008] 11 NWLR (Pt. 1097) 182 where the Court held that such irregularity is not a mere one that can be waived and that it is immaterial that the defendant had taken steps. It was held there that failure to comply with the Act is fatal as it robs the court of jurisdiction to determine the suit.

Continue reading Failure to comply with section 97 of the Sheriffs and Civil Process Act is a mere irregularity that can be waived.

Leave of court is not required in all cases to issue a writ for service outside jurisdiction.

 

Zakirai v. Muhammad [2017] 17 NWLR (Pt. 1594) 181 at 217-218, paras. H-C, per Augie, JSC:

“…The Appellant has not come up with convincing arguments to counter the finding of the court below that the provisions of the 2009 Rules impose no obligation on the first Respondent to obtain “leave to issue” the Originating Summons. Rules of Court are not static; they change as the society evolves and legal issues become more and more complex or sophisticated. The said Federal High Court (Civil Procedure) Rules of 1976 and 2000 may have stipulated that no writ for service out of jurisdiction can be issued except by leave of court, but the 2009 Rules did not say so. The Appellant cannot bring in what he called a rule of practice to hold sway or supersede provisions of the 2009 Rules. No doubt, the Federal High Court (Civil Procedure) Rules has undergone several modifications geared towards improving access to justice since 1976, and to say that a particular rule must be carried on and implemented under the rules made decades later amounts to taking the clock back.”

Notes:

The case of Owners of MV “Arabella” v. N.A.I.C. [2008] 11 NWLR (Pt. 1097) 182 is the case often cited by lawyers (including the Appellant’s Counsel in the instant case) as an authority which gives judicial credence to the position (and the so called rule of practice) that leave to issue originating processes for service outside jurisdiction of court must be sought and obtained by a claimant.  The significant point from the above position of the Supreme Court is that Owners of MV “Arabella” was decided based on Federal High Court (Civil Procedure) Rules of 1976.

Continue reading Leave of court is not required in all cases to issue a writ for service outside jurisdiction.

It is an attitude of a rogue for learned counsel to lie on his health condition just to delay a matter.

 

Hallam Satmak v. Commissioner of Police & Anor. – Suit No. PLD/J148M/2016, Per Longji J.:

“Well, my obseevation was that of bewilderment; that a counsel should lie with his health that he was hospitalised, just to delay the hearing of this matter is indeed shameful and uncalled for. It is unbecoming of a lawyer, who is supposed to be a Minister in the Temple of Justice.”

Bloggers Note:

The above statememt by the Court was as contained in the Ruling delivered on 18th April, 2016 by Longji J. of the Plateau State High Court, Jos Division. More so, in the record of proceedings of 14th April, 2016, when the circumstances that led to the above pronouncement transpired, the Learned trial Judge had lamented:

“It is baffling to me for a learned counsel to lie on his health condition to the point that he was on admission but which turns out to be false. I can only imagine this attitude to be that of rogues but not of a learned counsel.”

Continue reading It is an attitude of a rogue for learned counsel to lie on his health condition just to delay a matter.

THE CASE OF SIFAX NIGERIA LTD VS MIGFO NIGERIA LTD: WAS THE COURT OF APPEAL LAYING DOWN THE PRECEDENT OF NOT FOLLOWING PRECEDENTS?

‘…Nobody knows, until a case has come to trial, what will emerge from all the “authorities”… Every lawyer is aware of points on which the authorities are conflicting and obscure, and as precedents multiply, so do the conflicts and obscurities’. Sir Carleton Kemp Allen (Case Law: An Unwarrantable Intervention (1935) 51 LQR 333).

 

Olabisi Olajide Esq

 

Olabisi Olajide Esq., an Associate at Abiodun Layonu & Co., (Legal Practitioners & Insolvency Practitioners) writes from Lagos. richardolabisi@gmail.com

Introduction

The doctrine of judicial precedent in Nigeria, like in any other common law jurisdiction, is designed to achieve consistency and predictability. Legislations most times speak to hypothetical situations. This is especially when legal draftsmen draft to also capture unforeseeable future circumstances which most times are a veritable source of uncertainty. Hence, the duty of the courts to apply the law to real situations as they are met in cases confronting them becomes imperative. In doing this however, it must be noted that the powers of the court are not at large. The duty of the Court must be or must appear to be limited to giving effect only to the intention of the Legislature. As put by Lord Denning in the case of Seaford Court Estate Ltd v. Asher (1949) 2 K.B.481, the court’s duty is to “iron out the crispness” in the law without altering the fabric in which the law is woven.  The courts therefore, must not be accused of usurping or substituting their views or opinions with that of the Legislature, not even with the aim of doing justice or substantial justice. Otherwise, the cases coming up in court would be matter of one judge, one opinion, and one law, which will definitely lead to a situation where the legal sphere becomes clogged by a myriad of single instances. The lawyers, operating most times under the tyrannical influence of drive for revenue, would mostly derive utility in the confusion by creating a state of one man, one machete, or better put, a case of “you cite your own authority, I cite mine”, albeit conflicting. Orderliness should not be expected in such a system.

Continue reading THE CASE OF SIFAX NIGERIA LTD VS MIGFO NIGERIA LTD: WAS THE COURT OF APPEAL LAYING DOWN THE PRECEDENT OF NOT FOLLOWING PRECEDENTS?

The Supreme Court has power to consider identical application that has been dismissed by it.

 

Edilcon (Nig.) Ltd v. UBA Plc [2017] 18 NWLR (Pt. 1596) 74 at 93, paras. C-E, per Galinje, JSC:

“The Supreme Court is the apex Court in this country and its decisions are final in all respect. It has wide discretionary power to consider identical application that has been dismissed by it. However, this can only be done if the applicant is able to convince the court to exercise its discretion in his favour by setting aside its order of dismissal. It is only after this is done that the application seeking for the same order can be heard.”

Blogger’s Note:

The Court relied on its earlier decision in the case of PDP v. Asadu [2016] 17 NWLR (Pt. 1541) 215 where the rationale for the above position was stated thus at page 222-223, paras. H-B: “After an application which can only be granted at the discretion of the court is dismissed, that ought to be the end of the matter, but this being the top court, an applicant should file an application seeking an order of court setting aside the order of dismissal…” In other words, where an application has been considered and ruling delivered dismissing same by the lower courts, the only option available to the aggrieved party is to file an appeal challenging the said ruling. But in the case of the Supreme Court, an application seeking to aside the dismissal order would be entertained since appeal cannot lie against its decision.

Continue reading The Supreme Court has power to consider identical application that has been dismissed by it.

Falsification of age for election purposes must relate to circumventing the age limit to contest the election.

 

Agi v. PDP & Ors [ 2017] 17 NWLR (Pt. 1595) 386 at 456, paras. B-H, per Ogunbiyi, JSC:

“I have restated earlier in this Judgment also that the nature of the allegation lodged against the 3rd respondent by the appellant is firmly rooted in criminality and which must be proved beyond reasonable doubt as rightly held by the lower court… In proving falsification of age beyond reasonable doubt, it is not enough for an appellant qua plaintiff to demonstrate the act of falsification of age, it is also incumbent on him to establish that the act was intentional. In other words, that it was done with the intention to gain an advantage by the alleged act of criminality. As rightly submitted on behalf of the 3rd respondent, this again brings us to the provisions of section 1777(b) of the 1999 Constitution where mens rea in falsification of age for eligibility to contest election as Governor must, of necessity, relate to circumventing the age prescription of 35 years to contest election…. For all intents and purposes, the appellant did not lead any evidence to show that the purported false declaration in age alleged against the 3rd respondent were falsified with the criminal intent of meeting the constitutional age limit of 35 years set by the Constitution.”

Blogger’s Note:

In the case, the Appellant and the 3rd Respondent along with 8 other aspirants had contested the primaries for nomination to be the flag bearer of the PDP, 1st Respondent, at the 2015 gubernatorial election in Cross River State. The 3rd Respondent won the primaries and eventually became the Governor. The Appellant unsuccessfully challenged the outcome of the primaries on grounds which included alleged falsification of age by the 3rd Respondent. Based on the above quoted pronouncement, the Supreme Court found no merits in the Appellant’s case regarding the issue.

Continue reading Falsification of age for election purposes must relate to circumventing the age limit to contest the election.

World of recent and rare Nigerian judicial authorities…