NEWSGATE COMMUNICATIONS LIMITED & 4 ORS v. DA. BULUS DARENG

“The law is firmly established that when a court is faced in any matter with adverse applications and one is seeking to terminate a proceeding including an appeal either for non compliance with the rules of the relevant court or substantive law and there is another one seeking to remedy or rescue the case or a process or proceeding from the destructive effect of the alleged non-compliance or breach, the application seeking to put an end to the suit or matter will be put on hold. This is to enable the court hear the application seeking to remedy the situation and see if it is possible to save the case from imminent collapse or termination. The further reason for this approach is that an application seeking to bring a case to terminal end would not be taken if the application seeking to sustain the suit or matter succeeds so at to avoid putting the cart before the horse. That is why the Apex court and this court have laid down guiding principles for consideration of such multiple applications. See Nalsa & Team Associates V. N.N.P.C (1991) 8 NWLR (PART 212) 652 AT 676 BC TO 677A where KARIBI – WHYTE JSC said:- “It is an elementary and fundamental principle of our administration of justice to hear all applications properly brought before our courts. Accordingly where an application is properly brought before the court the principles of fair hearing demands that it should be heard on its merit; See Otapo v. Sunmonu (1987) 2 NWLR (pt 58) 587 SC. I agree entirely with the well settled proposition that where there are two motions before a court requiring to be heard, the interest of justice demands that the motion the determination of which would save the substantive action should first be heard. This principle is grounded on the reasoning that where the application succeeds, then the other application cannot be taken…..In the exercise of its discretion to hear application before it, the court is guided by considerations of doing justice between the parties, and to ensure ultimately that the dispute between the parties was decided on its merits. See Khawam V. Elias (1960) FSC 224 (1960) SCNLR 516. Where in the exercise of its discretion application to dismiss the action was first heard resulting in the action being struck out, justice would not have been done to an applicant, whose application to regularize his appeal, the basis for the application to dismiss the appeal is still pending. This will tantamount to a wrongful exercise of discretion, See Abiefbe & ors V. Ugbodume & ors supra.”

“The same principle surfaced in the case Attorney-General Of The Federation V. A.I.C. Ltd & Ors 1995 2 NWLR PART 379 388 at 397 E-F where KUTIGI JSC later CJN who read the leading judgment had this to say:- “When the two motions came before us for hearing on 5th December, 1994 Professor Kasunmu Learned Senior counsel for the respondent/applicant insisted that his motion must be taken first since it was earlier in time and if granted there would be no further need for the appellant’s motion. It was then pointed out to him that since the appellant motion which is wider in scope also clearly covered his own, the two motions would be taken together beginning with appellant’s counsel. I would have thought that professor Kasunmu ought to have been aware of the general practice by now that where in the same case there are two adversely competing motions before a court one “constructive” and other potentially “destructive” the court will normally proceed to the former motion first unless it will be inequitable to do so, so that if it succeeds, there would be no need for the latter motion which will then be withdrawn and struck out accordingly.”

“It is true and correct that the grounds of appeal contained in an original and existing Notice of Appeal sought to be amended must have constituents of a good ground of appeal which makes a direct challenge or complaint against the Judgment of the court appealed against. The reason is simple. If a Notice and grounds of appeal is defective or contains no valid or competent ground of appeal originally filed in the court below such Notice of Appeal and grounds cannot be cured by the filing of an Amended Grounds of Appeal. See. Odoemena Nwaigwe & Ors V. Nze Edwin Okere (2008) 13 NWLR (PT. 1105) 445 AT 474 C-F PER ONNOGHEN J.S.C. who held:- “The issue of the filing of six additional grounds of appeal is a non starter as it amounts to an exercise in futility, there being no valid notice of appeal due to the absence of valid ground of appeal raising question of customary law for determination. Since there was no valid notice and ground of appeal to which any further grounds would have been added, the attempt at making the addition is to try to resurrect a dead horse. It is stone dead. The same reasoning also applies to the purported amendment of the original omnibus ground of appeal. It is settled law that you cannot amend a fundamentally defective document such as a notice of appeal so as to infuse live into it. In other words, a fundamentally defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one which in the eyes of the law is non-existent or dead. See Arohinawhi V. Oteri (1984) 5 SC 38; Atuyeye v. Ashamu (1987) 15 C 333 AT 358 (1987) 1 NWLR (PT. 49) 267.” See also (1) Global Transport Occeanic S.A. & Anor Vs Free Enterprises Nigeria Limited (2001) 5 NWLR (Part 706) 426 at 438 F- G. (2) Akanbi Enitan & Ors V The State (1986) 3 NWLR (Part. 30) 604 AT 609. A – B per OPUTA JSC.”