INCAPINT LIMITED v. KEBBI STATE GOVERNMENT

CORAM

HUSSEIN MUKHTAR, JUSTICE COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JUSTICE COURT OF APPEAL

FREDERICK OZIAKPONO OHO, JUSTICE COURT OF APPEAL

PARTIES

APPELLANTS

KEBBI STATE GOVERNMENT

RESPONDENTS

AREA(S) OF LAW

APPEAL, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant brought an application vide a Motion on Notice wherein it sought for leave to amend its Notice of Appeal and brief of argument, file and argue additional ground of Appeal, and a deeming order. In reaction, the Respondent filed a Counter Affidavit in opposition.

HELD

Application Granted

ISSUES

1. Whether the court can grant the prayers of the Appellant/Applicant as contained on the motion filed on 12th February, 2018.

2. Whether the Respondent would be prejudiced with the grant of this application.

RATIONES DECIDENDI

AMENDMENT OF NOTICE OF APPEAL – RIGHT OF A PARTY TO AMEND ITS PROCESSES WHEN NECCESSARY IN ORDER TO DETERMINE THE ISSUES IN DISPUTE BETWEEN THE PARTIES

“The law is trite that there is no limit to seek leave to amend process before the Court. See Flemincdon Dev. Nic. Ltd. V Aneamene (2006) ALL FWLR (3001) 1915, where the Court held thus:

Amendment of a notice of appeal or any process can be done at any time as allowed by the rules of the Court. Order 6 Rule 15 of the Court of Appeal Rules gives power to the Court to allow the amendments of a notice of appeal at anytime.”

The Supreme Court per Ariwoola, JSC in SALISU V. MOBOLAJI (2014) 7 W.R.N Pp. 72-73 lines 40-15 held thus:

“There is no rule of the Supreme Court that limits the number of times a party can bring an application to regularize the processes in Court in particular, application to amend processes already filed even when the matter is fixed for hearing. As long as the purpose of or reason for such amendment is to ensure that the complaints of the appellants against the proceedings in question are laid and ventilated before the Court. Indeed, the fact that briefs of argument have been filed and exchanged and the appeal is virtually ready or has been fixed for hearing will not prevent the Court from exercising its undoubted discretion to allow an amendment both to the notice and grounds of appeal and the brief of argument. The important consideration must be that the amendment would serve the ends of justice and fairness … ”

This particular ground sought to be added actually brought out one of the issues in dispute at the Court below. Moreover, the Respondent would not, in anyway, be overreached since they would have the opportunity of arguing or responding to the Appellants arguments predicated upon the additional ground.

The Respondent has not shown how it will be prejudiced by the grant of this application.

In any case, the additional ground of appeal sought to be added emanated from the proceedings of the Court below and the reason for this amendment is for the Court to hear the complaints of the appellant challenging the findings of the lower Court.

The Respondent reserves the right to make consequential amendments to the respondent’s brief of argument. There is nothing in the Respondents counter affidavit that shows any likely prejudice that would result from granting this application.

The Supreme Court in Hauma Hassan Tukur Vs Garba Umar and 7 Ors (2012) LPELR-9337 9(SC) held:

“An appellant is equally entitled to amend an original notice of appeal as at when necessary. In other words, an appellant can amend his notice of appeal to incorporate the grounds in the other notice(s).”

From the foregoing appraisal, it will serve better interest of justice to allow the application in order to determine the issues in dispute between the parties. – PER H. MUKHTAR, J.C.A

AMENDMENT OF NOTICE OF APPEAL – WHETHER SPECIAL CIRCUMSTANCES IS NECESSARY TO JUSTIFY AN AMENDMENT OF A NOTICE OF APPEAL

“The procedure for leave to amend notice of appeal is provided in the Court of Appeal Rules and show of special circumstances is unnecessary to justify an amendment. The discretion of the Court to grant it is unhampered provided it is done faithfully to ventilate the parties grievances in the appeal. The powers of the Court to order amendments and generally to make orders as are necessary to produce a just result extend to amendment of notice of appeal and brief of argument. – PER H. MUKHTAR, J.C.A

APPEAL, PRACTICE AND PROCEDURE

AMENDMENT OF NOTICE OF APPEAL – WHETHER THE PROCEDURE FOR LEAVE TO AMEND A NOTICE OF APPEAL REQUIRES THE SHOW OF SPECIAL CIRCUMSTANCES TO JUSTIFY SUCH AMENDMENT

“I am in agreement with the reasoning and conclusions reached in granting the application as meritorious. I am in agreement that the procedure for leave to amend notice of appeal does not require the show of special circumstances to justify an amendment. The discretion of the Court to grant it is unfettered provided it is exercised judicially and judiciously. – PER F. O. OHO, J.C.A