NIGERIAN MARITIME ADMINISTRATION SAFETY AGENCY (NIMASA) Vs MUTUAL BENEFIT ASSURANCE - Legalpedia | The Complete Lawyer - Research | Productivity | Health

NIGERIAN MARITIME ADMINISTRATION SAFETY AGENCY (NIMASA) Vs MUTUAL BENEFIT ASSURANCE

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NIGERIAN MARITIME ADMINISTRATION SAFETY AGENCY (NIMASA) Vs MUTUAL BENEFIT ASSURANCE

LEGALPEDIA CITATION: LER[2018] CA/L/84/2011(R) 


 Areas Of Law: 
Action, Appeal, Court, Practice and Procedure

Summary Of Facts:
The Appellant/Applicant having changed his counsel after filing his Notice Of Appeal, brought an application by way of a Motion on Notice praying this Court for the following: an order of this Honourable Court granting leave to the Appellant/Applicant to appeal on additional grounds of appeal against the judgment of the Honourable Justice C.E. Archibong delivered on the 1st of November, 2010, in Suit No: FHC/L/CS/56/05: Mutual Benefit Assurance Plc V Nigerian Maritime Administration Safety Agency (NIMASA), which additional grounds of appeal are highlighted as grounds and 5 and 7 in the schedule of proposed additional grounds of appeal hereunder and are contained in grounds 5 and 7 of the proposed Amended Notice of Appeal attached to the affidavit in support of this application and marked as Exhibit “FOF3”; an order of this Honourable Court granting leave to the Appellant/Applicant to amend grounds 1 to 10 in the Notice of Appeal dated 12/11/2010 by incorporating the additional grounds of appeal and also to amend the said grounds 1 to 10 of the subsisting Notice of appeal by substituting the said grounds of appeal with the underlined grounds 1 to 9 of the Proposed Amended Notice of Appeal; an order of this Honourable Court striking 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 supported by an affidavit of 12 paragraphs.

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.

Held
Application Granted
Issue For Determination
Ø  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

 

Rationes:
AMENDMENT OF A NOTICE OF APPEAL – EXERCISE OF DISCRETIONARY POWER OF THE COURT OF APPEAL TO GRANT AN AMENDMENT TO A NOTICE OF APPEAL
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.”
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 Y. B. NIMPAR, J.C.A

 

AMENDMENT OF A NOTICE OF APPEAL – WHETHER THERE IS A STIPULATED TIME LIMIT TO MAKE AN APPLICATION FOR THE AMENDMENT OF A NOTICE OF APPEAL
“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 Y. B. NIMPAR, J.C.A

 

AMENDMENT – ESSENCE OF AN AMENDMENT IN PROCEEDINGS
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 Y. B. NIMPAR, J.C.A

 

AMENDMENT – TEST TO DETERMINE WHETHER A PROPOSED AMENDMENT SHOULD BE GRANTED
“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 costsSee The Registered Trustees Of International Secondary School, Orlu & Anor V Bicoz Poil Company Nigeria Limited & Ors (2014) LPELR- 22836 (CA)“. PER Y. B. NIMPAR, J.C.A

 

COURT PROCESS – WHETHER COURTS CAN CONSIDER A PROCESS THAT IS STRUCK OUT IN DETERMINING AN APPLICATION FOR AMENDMENT OF A NOTICE OF APPEAL
“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 Y. B. NIMPAR, J.C.A

 

COURT PROCESS – STATUS OF AN APPLICATION FILED BUT NOT PURSUED
“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). The fact remains that there is no other pending application seeking the same relief before the Court upon the making of this application. The contention of the Respondent is therefore untenable. I do not see bad faith, oppression, malice or abuse of process established by the Respondent here to warrant refusing this application.” PER Y. B. NIMPAR, J.C.A

 

AMENDMENT OF PROCESSES- EFFECT OF AMENDMENT OF PROCESSES
“The effect of an amendment is simply that what stood before the Court is overtaken by the amended process. That being the case, the contention of the Respondent on the nature of the additional grounds is not relevant.” PER Y. B. NIMPAR, J.C.A

 

Statute Referred To
Court of Appeal Rules 2016

 

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