LM Ericsson (Nigeria) Limited V. Reliance Telecommunications Ltd & Ors (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

ADAMU JAURO, J.C.A. 

 The appeal herein was heard and judgment reserved. In the course of writing the judgment, it was discovered that the notice of appeal at page 290 of the record, was wrongly headed “In the High Court of Lagos State” instead of ”In the Court of Appeal”. As a consequence of this discovery, all parties involved in the appeal were invited to address the court as to the competence of the said notice of appeal.

On the date slated for the address, namely 19/2/10, Mr. Dayo A. Johnson leading Mr. J. Akolade for the appellant, initially applied for adjournment to enable him file an application to amend the notice of appeal. Subsequently however, learned counsel decided to address the court as to the competence of the notice of appeal. Learned counsel submitted that the wrong heading on the notice of appeal is not fatal or fundamental as to warrant the striking out of the appeal. Learned counsel further submits that the form in which the appellant has approached the court, should be regarded as an irregularity which can be rectified by way of amendment. In support of the submissions, learned counsel referred to Order 6 Rules 2 to 4, Order 19 Rule 3 of the Court of Appeal Rules 2007 and the following cases: Maisamari Maiwa v. Tanko Abdu (1986) 1 NWLR (Pt. 17) 437 at 446 G-H and Surakatu v. Nigerian Housing Development Society (1981) 4 SC 226. Learned counsel urged the court to allow the appellant to amend the notice of appeal. In support of this contention, learned counsel referred to the case of Ojah & Ors vs. Ogboni & Ors (1976) 1 NMLR 95. In concluding, learned counsel urged the court to allow the appeal a hearing on the merit in the interest of Juctice and view the non compliance as an irregularity.

In response, Mr. M. J. Edechime leading Mr. V. I. Okafor for the 1st and 3rd respondents, stated that if there is any defect in an originating process, it goes to the root. Learned counsel submitted that the wrongly headed notice of appeal was filed in the High Court, hence it should be treated as a process meant for the High Court not the Court of Appeal. Learned counsel further submitted that the defect in the notice is a fundamental vice which affected the competence of the appeal. In concluding, learned counsel urged the court to strike out the notice of appeal on grounds of incompetence. In his response, Mr. F. E. Obumse for the 2nd Respondent, associated himself and adopted the submissions of learned counsel for the 1st and 3rd respondents.

Learned counsel concluded by urging the court to strike out the notice of appeal for being defective. In a short response as to filing the notice of appeal in the lower court, learned counsel for the appellant relied on Order 6 Rule 2 of the Court of Appeal Rules 2007.

Order 1 Rule 4 of the Court of Appeal Rules 2007 provides as follows:
“4. The forms set out in the First and Second Schedules to these Rules, or Forms as near thereto as circumstances permit, shall be used in all cases to which such forms are applicable.”
The form relevant to the notice of appeal is form 3 in the first schedule. It is headed:
“IN THE COURT OF APPEAL
NOTICE OF APPEAL”
The notice of appeal in the instant case was wrongly headed “In the High Court of Lagos State”  instead of “In the Court of Appeal.” It is however clear from the body of the notice, particularly paragraph 1 thereof, that the appellant intended to appeal to this court. The defect as to the heading in the notice of appeal is not a fundamental vice, hence it is not fatal to the notice of appeal. It will therefore be wrong to strike out the notice of appeal as urged by the learned counsel for respondents, simply because the notice of appeal was wrongly headed and addressed to the wrong court. See Surakatu v. Nigerian Housing Development Society (1981) 4 SC 26, Ononye Onwunali v. The State (1982) 9 SC 95, Asuquo Eyo Okon & Ors v. The State (1982) 9 SC 98, Maiwa v. Abdu (1986) 1 NWLR (Pt. 17) 437, Clev Josh Ltd v. Tokimi (2008) 13 NWLR (Pt. 1104) 422, Onyia v. Onyia (1982) 8, 9, 10 CA 165. See also the following unreported decisions CA/L/124M/03 Lagos State Govt & Ors v. City Express Bank of 5/10/06 and CA/L/73/02 AfriBank Nig Plc v. Medical Consultant Services Ltd & Anor. of 26/1/10.

This court can waive compliance with any part of the Rules of Court, pursuant to Order 19 Rule 3 of the Court of Appeal Rules 2007. In the circumstance, having held that the defect is not fatal, it will serve the interest of Juctice better to allow the appellant amend the offending heading of the notice of appeal so that the appeal can be determined on its merits. Order 6 Rule 2 of the Court of Appeal Rules 2007, provides that notice of appeal should be filed in the registry of the lower court, hence the submissions of learned counsel to the 1st and 3rd respondents against filing the notice of appeal in the lower court is of no moment and is hereby discountenanced.

In view of the foregoing and in the interest of Juctice, the merits of the appeal cannot be considered at this stage. Consequently and in the circumstance, the file will be returned to the cause list to enable the appellant file the necessary application to amend the notice of appeal. There shall be N10,000 costs in favour of each set of respondents.

Other Citations: (2016)LCN/8603(CA)