CORAM

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MOHAMMED LAWAL GARBA JUSTICE COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH JUSTICE COURT OF APPEAL

YARGATA BYENCHIT NIMPAR JUSTICE COURT OF APPEAL

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PARTIES

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NIGERIAN MARITIME ADMINISTRATION

SAFETY AGENCY (NIMASA)

APPELLANTS 

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MUTUAL BENEFIT ASSURANCE

RESPONDENTS 

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AREA(S) OF LAW

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AMENDMENT, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant/Applicant brought an application by way of motion on notice for leave to file additional grounds of appeal, to amend certain grounds of appeal as contained in the proposed Amended Notice of Appeal and to strike out the Respondent’s Brief of Argument dated 3/6/2011 and filed on the same date for violating the provisions of Order 18 Rule 3(6) of the Court of Appeal Rules, 2011.

The application is predicated on 8 grounds of appeal and supported by an affidavit of 12 paragraphs duly sworn to by one Oluwabukola Daramola, a legal practitioner with the law firm of F.O. Fagbohungbe & Co, the firm representing the Appellant/Applicant. Also accompanying the application is a copy of the judgment in issue and the proposed amended grounds of appeal. The Respondent filed a counter affidavit of 30 paragraphs opposing the application which prompted the Court to direct the parties to file written addresses in support of their Affidavits. The Written Addresses were adopted at the hearing of the application.

 

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HELD

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Application granted

 

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ISSUES

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Having regard the facts stated in the Appellant’s affidavit in support of its application, whether the interest of justice will be best served, if the Appellant’s application is granted.

 

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RATIONES DECIDENDI

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AMENDMENT OF PROCESSES – PROVISIONS OF THE COURT OF APPEAL RULES ON AMENDMENT OF NOTICE OF APPEAL

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“Amendment of processes is generally controlled by Order 7 Rule 8 of the Rules of this Court. The said provision states thus:

“A notice of appeal may be amended by or with the leave of the Court at any time.” – Per NIMPAR, J.C.A.

 

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AMENDMENT OF PROCESSES –WHETHER THE GRANT OF AN APPLICATION TO AMEND NOTICE OF APPEAL IS MADE AS A MATTER OF COURSE

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“It is obvious that the rules give the Court discretion to grant an amendment to the Notice of Appeal. I must be quick to add that the grant of an application to amend the Notice of Appeal is not made as a matter of course. Just like any other discretion of the Court, the discretion to amend a Notice of Appeal must be judicially and judiciously exercised, see WILLIAMS V HOPE RISING VOLUNTARY SOCIETY (1982) 1-2 SC 70. This therefore depends on the materials placed before the Court.” – Per NIMPAR, J.C.A.

 

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AMENDMENT OF PROCESSES –TIME LIMIT WITHIN WHICH AN APPLICATION FOR AMENDMENT OF COURT PROCESSES MAY BE MADE

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“It is trite that the rules of Court did not stipulate a time limit within which an application such as this must be made. The Court therefore has an unfettered discretion that can be exercised at any time with respect to this application before the hearing of the appeal provided however that such an application is not allowed to over reach the Respondent.” – Per NIMPAR, J.C.A.

 

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AMENDMENT OF PROCESSES –ESSENCE OF AN AMENDMENT

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The essence of an amendment is primarily meant to as far as possible in any proceedings, cover all the questions or issues in contention between the parties which should be effectually and fully settled and this is to prevent multiplicity of actions, see OGUMA ASSOCIATED COMPANY (NIGERIA) v IBWA (1988) LPELR- 2318 (SC). The amendment is aimed at doing substantial justice between the parties. It would be oppressive and harsh to visit the inadvertence of a former counsel on a party who is now led by a senior counsel if such application is refused.” – Per NIMPAR, J.C.A.

 

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AMENDMENT OF PROCESSES –FACTORS A COURT WOULD CONSIDER TO GRANT OR REFUSE AN APPLICATION FOR AMENDMENT

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“The Courts have made it a point of duty that however negligent or careless may have been the slips, however late the proposed amendment, it ought to be allowed, if it can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time be used to perpetuate injustice on the opposite party. The test as to whether a proposed amendment should be granted is therefore, whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs. See THE REGISTERED TRUSTEES OF INTERNATIONAL SECONDARY SCHOOL, ORLU & ANOR V BICOZ POIL COMPANY NIGERIA LIMITED & ORS (2014) LPELR- 22836 (CA).

The trend is to allow all amendments that are required for the purpose of determining the issues between the parties, the rules did not set the time limit to do justice and therefore cannot set the time limit to grant an application designed to ensure justice is done between the parties. The Court in the case of OLORO V FALANA supra also held that the Respondent must show real prejudice, unnecessary expense and irreparable inconvenience to attract the attention of the Court in considering a refusal.” – Per NIMPAR, J.C.A.

 

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INTERLOCUTORY APPLICATION –EFFECT OF A WITHDRAWN APPLICATION

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The fact that a previous application was withdrawn and struck out is of no moment because that application is no longer before the Court. A process that is struck out is not a live process and the Court cannot take it into consideration in determining this application. Again, does the filing of several applications seeking the same relief mean the application taken cannot be granted even when the others were withdrawn before the making of the one in issue? I think not. Just like the filing of more than one notice of appeal, a party is at liberty to file several processes, withdraw some and rely on one at the hearing of the application, see PDP & ANOR v SYLVA & ORS (2012) LPELR -7814 (SC) (Consolidated)”. – Per NIMPAR, J.C.A.

 

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INTERLOCUTORY APPLICATION –EFFECT OF AN APPLICATION FILED BUT NOT PURSUED

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“It is trite that any application filed which was not pursued is deemed abandoned, and would be of no consequence, see PEOPLES DEMOCRATIC PARTY V MR. WILLIAM BALLANTYNE & ORS (2011) LPELR- 9123(CA).” – Per NIMPAR, J.C.A.

 

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AMENDMENT OF PROCESSES –EFFECT OF AMENDMENT OF COURT PROCESS

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“The effect of an amendment is simply that what stood before the Court is overtaken by the amended process.” – Per NIMPAR, J.C.A.

 

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CASES CITED

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NONE.

 

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STATUTES REFERRED TO

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Court of Appeal Rules 2011.

Court of Appeal Rules 2016.

 

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