Enyinnaya Dick V. Our And Oil Company Limited (2018)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

The appellant entered an appeal against the Ruling of the Court of Appeal (Port Harcourt Division) given on 19 February 2009 whereby the respondent’s application for:

(i) Leave for the appellant to compile and file supplementary record to this appeal consisting of the original notice and grounds of appeal which was omitted from the records of the lower Court transmitted to this Honourable Court.

(ii) Deeming as duly filed and served the supplementary record of appeal exhibited herewith and marked Exhibit A.

(iii) Leave for the appellant to file and argue four (4) additional grounds of appeal.

(iv) An order deeming the additional grounds of appeal exhibited to the affidavit in support of this motion as Exhibit B as duly filed and served, the appropriate filing fees having been paid.

(v) Leave for the appellant to file an amended appellant’s brief of argument.

was granted by the Court of Appeal. For clarity I must explain that at the trial Court the respondent was the plaintiff. He lost. At the Court of Appeal he was the appellant, while

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the appellant was the respondent. He filed his Notice of appeal on 22 May, 2001 at the registry of the trial Court. The Record of Appeal was compiled and transmitted to the Court of Appeal, but surprisingly the Notice of Appeal was not in the Record of Appeal. That explains why the respondent brought his Notice of Motion in the Court of Appeal to file a supplementary or additional record of appeal which contains the Notice of appeal omitted or left out from the Record of Appeal already before the Court of Appeal. The respondent, as appellant won at the Court of Appeal. So he is the respondent in this Court. The concluding part of the Ruling reads:

In the final result, for all the reasons set out earlier, I answer the two questions I posed at the beginning of this ruling in the affirmative. The Court has the discretionary judicial power to grant the reliefs sought and that it is proper and even expedient to grant the application as prayed in the circumstances of the case. The application is granted in the following terms:-

(a) Leave is granted the applicant to compile and file a copy of the Notice of Appeal filed on 22 May, 2001 as

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record of this appeal.

(b) That the copy of the said Notice of Appeal compiled and attached to the supportive affidavit in this application and marked as Exhibit A, is deemed duly filed as additional record of appeal.

(c) Leave is granted the applicant to amend the said Notice of Appeal by way of filing four (4) additional grounds of appeal.

(d) That the four (4) additional grounds of appeal attached to the affidavit in support of the application and marked as Exhibit B are deemed duly filed; and

(e) Leave is granted the applicant to file an amended appellants brief of argument within seven (7) days from today and serve same on the Respondent

This appeal is against the Ruling of the Court of Appeal which granted the orders above. Briefs were filed and exchanged by counsel. Learned counsel for the appellant V.N. Ugwu esq filed an appellant’s brief on 28 September 2009 but was deemed properly filed and served on 24 November 2009. On the other side, learned counsel for the respondent, Mr. C.A. Ajuyah SAN filed the respondent’s brief on 4 February, 2011, but was deemed duly filed and served

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on 9 April 2013.

Learned counsel for the appellant formulated five issues for determination from his eight grounds of appeal. They are:

1. Whether prayers one and two on the motion Paper which the Court below granted are competent Prayers recognized by the Court of Appeal Rules, 2007.
2. Whether the Court below is right in granting the prayer deeming as duly filed and served the photocopy of the Notice of Appeal compiled as supplementary Record of Appeal when such copy was made from a public document which was not certified by the Registrar of the High Court of Abia State as required by Law.
3. Whether the Court below is right in granting leave to the applicant (now respondent) to amend its Notice of Appeal when such relief was not asked for by the applicant.
4. Whether in view or Order 6 Rule 15 and Order 17 Rule 3 Sub rule (1) of the Court of Appeal Rules, 2007. The lower Court is right in granting leave to file additional grounds of appeal after the appellant had filed and served its appellant’s brief on the respondent who had also filed and served his respondent’s brief.
5. Whether the Court below is right in its decision or

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conclusion that no prejudice would be occasioned to the respondent by the grant of the application.

On his part, learned counsel for the respondent formulated two issues for determination:

1. Were the learned justices wrong in granting leave to the respondent to file supplementary record and to deem supplementary record as duly filed and served.
2. Whether in the circumstances of this case the learned justices were wrong in exercising discretion to grant the respondent leave to amend its notice and grounds of appeal and appellant’s brief of arguments.

After examining the issues formulated by both sides, it becomes clear that the respondent’s issue 1 covers the appellants’ issues 1 and 2. An issue becomes very wide when it asks the Court to take into consideration the circumstances of a case. With that in mind a diligent examination of the appellants’ issues 3, 4, and 5 are covered by the respondent’s issues 2. In addressing the respondent’s issues all the points raised in the appellants five issues would be considered in detail. I am satisfied that the two issues formulated by the respondent are more apt for

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determining this appeal.

At the hearing of the appeal on 22 January 2018, Learned counsel for the appellant V.N. Ugwu esq., adopted the appellants’ brief filed on 28 September, 2009 but deemed duly filed and served on 24 November, 2009. He urged the Court to allow the appeal.

Mr. C.A. Ajuyah SAN, learned counsel for the respondent adopted the respondent’s brief filed on 4 February, 2011 but deemed properly filed and served on 9 April 2013. He urged the Court to dismiss the appeal.

ISSUE 1

Were the learned justices wrong in granting leave to the respondent to file supplementary record and to deem the supplementary record as duly filed and served

Learned counsel for the appellant submitted that there is no provision in the Court of Appeal Rules which requires the appellant or respondent to obtain leave before compiling and filing supplementary record of appeal. He observed that it is an abuse of process and incompetent for the applicant in the Court below to apply for such leave. Referring to Order 7 Rule 1, and Order 6 Rule 4, he observed both Orders under which the application was brought does not provide for

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leave, contending that such an application is not recognized by the Rules of Court. He referred to Newswatch Communications Ltd v Alhaji Aliyu Ibrahim Atta (2006) 12 NWLR (Pt.993) P. 144.

He further observed that there is no provision in the Court of Appeal Rules requiring the “filing” or “deeming as duly filed” a supplementary record of appeal.

He submitted that the applicant’s prayer for leave to file and to deem as duly filed the supplementary record of appeal are unknown to the Court of Appeal rules and clearly incompetent.

Learned counsel for the appellant observed that the Court of Appeal deemed as properly filed and served an uncertified photocopy of the Notice of Appeal compiled as supplementary Record of Appeal, observing that there was non-compliance with Order 8 Rule 9 of the Court of Appeal Rules. He urged this Court to resolve this issue in the negative and refuse prayers one and two of the applicant’s motion on Notice in the Court of Appeal.

Learned counsel for the respondent observed that the appellant has not been able to fault the learned justices of the Court of Appeal in the exercise of their

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discretion on the basis of undisputed facts and Sections 15, and 26 (a) of the Court of Appeal Act in granting leave to the respondent to file supplementary record of appeal and to deem same as duly filed and served.

He observed that the Notice of Appeal was in fact certified this complying with Order 8 Rule 9 of the Court of Appeal Rules. Reliance was placed on Sections 97 and 112 of the Evidence Act, Iheonu v Obiukwu (1994) 1 NWLR (Pt.322) p.594 Daily Times v F.R.A. Williams (1986) 4 NWLR (Pt.36) P.526.

He urged the Court to resolve the respondent’s first issue in the negative and dismiss the appellants’ appeal as it relates to the grant of prayers (i) and (11) of the motion by the lower Court.

Prayers (i) and (ii) of the Notice of Motion, heard and granted by the Court of Appeal reads as follows:

The respondent’s application was for:

(i) Leave for the appellant to compile and file supplementary record to this appeal consisting of the original notice and grounds of appeal which was omitted from the records of the lower Court transmitted to this Honourable Court.

(ii) Deeming as duly filed and served the supplementary

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record of appeal exhibited herewith and marked Exhibit A.

Leave means permission. When a process has been filed and served on the adverse party, and the need arises thereafter to file an additional process to the already existing process, for the purposes of sanity and orderliness leave would be necessary otherwise the Court may be submerged in an avalanche of processes.

The application was brought under Order 7 Rule 1 and Order 6 Rule 4 of the Court of Appeal Rules. Order 6 Rule 4 provides for grounds outside Notice while Order 7 Rule 1 states that:

“Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.

It is clear from the above that the application was brought under the wrong provisions of the Court of Appeal Rules. Would that be fatal to the application I do not think so.

In A.Y.A. & Sons Ltd v FHA Homes Ltd (2006) 2 NWLR (Pt.963) P. 139.

A Court of Appeal decision, I said that:

There is no hard and fast rule that the order and rule must be stated on the motion

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paper, although it is desirable that they be so stated. The Provisions of Order 3 Rule 3(i) of the Court of Appeal Rules (i.e. the Old Rules) are of mere desirability and not essentiality. That is to say, it should be regarded as a Procedure to be taken but failure to take it does not and ought not to render such non-compliance fatal. See Hall v C in Re Barker Estate (1879) 10 Ch.D P. 165- This reasoning is Premised on the fact that Courts are set up to do substantial justice between the parties that come before them for the settlement of their disputes and in so doing, rules of Court must at all times be interpreted by the Judge to prevent undue adherence to technicalities.”

The Court of Appeal was right when it said that:

” … The Rules of Court may not have provisions requiring the applicant to apply and obtain leave of Court to compile and file supplementary record of appeal or deeming as duly filed…”

So what did the Court of Appeal do Did it surrender and say since there is no provision in the Rules the application cannot be granted.

The Court examined the clear facts of the case, then said:

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“It is clear from the counter affidavit as well as the address of the learned senior counsel for the respondent that he does not object to the filing of the Notice of Appeal as supplementary record of appeal since he did not controvert the facts deposed to in paragraph 5(i)-(v)) of the affidavit in support of the application which are to the effect that the said Notice of appeal was omitted from the record of appeal compiled and transmitted by the High Court to this Court. The omission of the Notice of appeal from the record of appeal is so fundamental to the appeal because it use the initiating process by which the jurisdiction of this Court was properly invoked over the appeal. That is why it was specifically mentioned in Order 8 Rule 7(d) of the Court of Appeal Rules, 2007 as one of the relevant documents which every record of appeal shall contain …”

The above shows that the Court of Appeal was satisfied that the record of appeal was incomplete since the notice of appeal was omitted from it. Having found the above to be the correct position the Court of Appeal then proceeded to say that:

“Once it is clear that the record of appeal is incomplete then it becomes

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absolutely necessary for the omitted relevant parts of the record to be compiled and transmitted to the Court before the appeal can be heard by the Court Even where an appellant did not compile and transmit the initial record of appeal as in the present situation, no Rule of the Court stops or prevents him from transmitting the omitted part/s to this Court by way of an application such as the present one

Acting on the above reasoning and the provision of Sections 15 and 26(a) of the Court of Appeal Act the Court of Appeal found that prayers 1 and 2 in the motion paper were very much in order and proceeded to grant the respondent leave to compile and file supplementary record, and deeming as duly filed and served the supplementary record of appeal. The learned justices of the Court of Appeal exercised their discretion to grant the prayers. The position of the law is that an appellate Court would not interfere with the way a judge exercises his discretion unless:

(a) The discretion was wrongly exercised.

(b) The exercise of discretion was tainted with some illegality or substantial irregularity.

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See University of Lagos V. Aigoro (1985) 1 NWLR (Pt.1) p.143 Anyah V A.N.N. Ltd (1992) 6 NWLR (Pt. 247) p.319 Nzeribe v Dave Engineering Co. Ltd (1994) 8 NWLR (pt.361) p.124

Furthermore an appellate Court would only interfere with the exercise of discretion by a judge if it is in the interest of justice to do so. The discretion was properly exercised. Before I bring the curtains down on issue 1, I must observe that inherent powers are powers that allows Courts to deal with diverse matters over which they have authority.

Where the requirement for leave to file supplementary Record of appeal is not provided by the Court of Appeal Rules or some other Rule of practice the Court has an inherent jurisdiction to grant leave in deserving cases bearing in mind that the judge is not a robot who refrains doing justice because there is no provision in Rules for the application before him or who rigidly follows arid legalism or technicalities to such a point that justice is not done to the parties. He is to do substantial justice between the parties and in doing so rules of Court must always be interpreted in such a way as to avoid unnecessary adherence to technicalities.

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Once a Court rigidly follows the Rules justice may never be done to the parties. When Rules of Court are silent, a judge is not expected to say to himself, this cannot be done, since the Rules do not provide for it. If that were the case we will not get anywhere, and that would be bad and unfortunate for the Rule of Law.

Judges must at all times be prepared as jurists to dig into their deep knowledge of the law and come up with solutions to legal issues provided they never go against the clear intentions of the legislature. By granting this application which this Court affirms it is impossible to say that the Court of Appeal had acted upon any wrong principle, since it acted in the interest of justice.

A deeming order regularizes a process. The Court of Appeal was right to grant leave to the respondent to file supplementary record and to deem the supplementary record as duly filed and served.

Order 8 Rule 9 of the Court of Appeal Rules provide for certification of records. It states that:

“Every record or additional record of appeal compiled be a party to an appeal must be certified by the registrar of the lower Court.

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Provided that is shall not be necessary for copies of individual documents to he separately certified but the registrar of the Court below shall certify as correct each copy of the record transmitted in accordance with these Rules.”

On whether the Notice of appeal attached to the supporting affidavit of the application was certified, the Court of Appeal said:

I have perused the Notice of Appeal in question and while agreeing with the learned senior counsel that it does not contain the certification required I would point out that he did not challenge the fact that original of the said Notice of Appeal containing all and every information as in the copy attached to the application was indeed fact and law, duly and properly filed by the applicant in the High Court as averred in paragraph 6 of the supporting affidavit. Since the contents and filing of the original Notice of Appeal from which the copy attached to the application was made are not disputed.

The Court of Appeal concluded that the Notice of Appeal was in order despite non-certification.

Learned counsel for the appellant observed that the Notice of Appeal is an

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uncertified Photocopy of a Public document, contending that since it was not certified, it was wrong for the Court of Appeal to grant the applicant’s prayer for an order deeming the uncertified photocopy of the notice appeal as duly filed and served.

Reference was made to Order 8 Rule 9 of the Court of Appeal Rules. Sections 97(1)(e), 97(2)(c) and 112 of the Evidence Act.

Onobruchere v Esegine (1986) 1 NWLR (Pt.19) p.799

Aina v Jinadu (1992) 4 NWLR (Pt.233) p.91

IMB v Dabiri (1998) 1 NWLR (Pt.533) 284

Concluding, he submitted that only certified true copies of public documents are admissible. He urged the Court to resolve this issue in the negative.

Learned counsel for the respondent observed that the Notice of appeal was in fact certified. Reference was made to page 10 of Exhibit A. He submitted that Exhibit A, having been fully certified complied with Section 97 and 112 of the Evidence Act and requires no further certification. Reliance was placed on Iheonu v Obiukwu (1994) 1 NWLR (Pt.332) p.594, Daily Times v F.R.A. Williams (1986) 4 NWLR (Pt.36) p.526.

He urged the Court to resolve the issue in

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favour of the respondent and dismiss the appeal.

It is not in dispute that a Notice of appeal is a public document. See Sections 97 and 112 of the Evidence Act. The Evidence Act and the Court of Appeal Rules are clear that before a public document can he of any use in Court, it must be certified. That is to say, a public document must be certified. If it is not certified no probative value will be attached to it. So a public document must be certified. A certified copy is a copy of a document certified as true by the officer who has the custody of the original. Certified copies are deemed to be originals. A certified document is thus as authentic as the original and is admissible in evidence in place of the original. See Ndayako v Mohammed (2006) 17 NWLR (pt.1009) p.655, Orlu v Gogo-Abite (2010) 8 NWLR (Pt.1196) p.307, Nzekwu v Nzekwu (1989) 2 NWLR (pt.104) p.373, Onobruchere v Esegine (1986) 1 NWLR (Pt.19) p.799.

The supplementary Record of Appeal contains the Notice of appeal which is on pages 8, 9 and 10. It must be examined to see if being a public document it was certified.

A public document is properly

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certified only after it is dated, subscribed by the public officer who has the custody of the document. In subscribing it, the public Officer must state his name, or and sign. His official title and stamp on the document must be visible for all to see. Page 10 of the Record of appeal is the last page of the Notice of appeal. It is dated 18 December, 2001, subscribed by the Assistant Chief Registrar and signed by him. The stamp of the judiciary is affixed thereon. Exhibit A (the Notice of Appeal) is a certified photocopy of the Notice of appeal filed in this appeal. Endorsements on Exhibit A show that fees were duly paid. Certification was done by the Assistant Chief Registrar of the trial Court. The Court of Appeal is correct.

ISSUE 2

Whether in the circumstances of this case the learned justices were wrong in exercising discretion to grant the respondent leave to amend its notice and grounds of appeal and appellants brief of argument.

This issue covers prayers 3, 4 and 5 in the Motion on Notice which was granted by the Court of Appeal. The respondent prayed for:

(iii) Leave for the appellant to file and argue four (4)

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additional grounds of appeal.

(iv) An order deeming the additional grounds of appeal exhibited to the affidavit in support of this motion as Exhibit B as duly filed and served the appropriate filing fees having been paid.

(v) Leave for the appellant to file an amended appellant’s brief of argument.

On prayer (iii) the Court of Appeal said:

“…the sincere object and substance of prayers 3 for leave to file and argue additional grounds of appeal is for leave to amend both the grounds of appeal and Notice of appeal already filed.

By Order 6 Rule 4 and 15 of the Rules of Court, the applicant is entitled to apply for and the Court has the jurisdiction and discretionary power to grant leave to amend the grounds as well as the notice of appeal at anytime

Prayer 3 of the application is therefore a competent Prayer.”

Learned counsel for the appellant observed that the applicant/respondent in its Notice of Motion before the Court of Appeal did not seek leave to amend its notice of appeal, but the Court granted the applicant leave to amend his Notice of appeal by way of filing four additional grounds of appeal.

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He submitted that the Court of Appeal has no jurisdiction to grant a relief not sought by the applicant. Reliance was placed on Ekpenyong & 3 Ors v Nyong & 6 Ors (1975) 2 SC p.65, Veepee Industries Ltd v Cocoa Industries Ltd (2008) 13 NWLR (Pt.1105) p.486.

Concluding he submitted that since the respondent did not expressly ask for leave to amend its notice of appeal the Court of Appeal was wrong to grant what was not asked for. On relief (iv) learned counsel for the appellant observed that the Court was wrong to allow the appellant to file additional grounds of appeal after filing the appellant’s brief. Reliance was placed on Order 6 Rule 15 and Order 17 Rule 3(i) of the Court of Appeal Rules.

Finally he submitted that by the grant of the application the appellant has been prejudiced, in that prayers 1 and 2 were incompetent prayers granted by the Court. The Court had no jurisdiction to grant leave to the respondent to amend its Notice of Appeal, and the Court failed to consider vital points before concluding that no prejudice would be occasioned to the appellant by the grant of the application. He urged the Court to resolve the issue in the negative.

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Learned counsel for the respondent observed that by granting the relief for leave to file and argue four (4) additional grounds of appeal, the order to amend the notice of appeal to incorporate the four additional grounds becomes incidental and consequential orders which the Court has powers to make.

Reliance was placed on Order 18 Rule 11(i) of the Court of Appeal Rules. Ekpenyong v Nyong 1975 2 SC p.65

He observed that Order 17 Rule 3(i) does not contain time bar for the seeking of leave to amend or file additional grounds of appeal.

He submitted that the grant of leave to the respondent to file additional grounds of appeal did not violate or breach Order 17 Rule 3 or any provision of the Court of Appeal Rules.

Finally, learned counsel for the respondent observed that the appellant did not show any prejudice to warrant the refusal of the prayers sought in the application by the Court of Appeal. He urged the Court to dismiss the appeal in it’s entirety.

The Court of Appeal had this to say on prayers 3, 4 and 5 on the Motion paper.

The Court has the discretionary judicial power to

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grant the reliefs sought and that it is proper and even prudent to grant the application as prayed in the circumstances of the case.”

And with the above reasoning, the Court of Appeal ruled as follows:

Leave is granted the applicant to amend the said notice of appeal by way of filing four (4) additional grounds of appeal.

Can this be correct

Order 6 Rule 4 states that:

“The appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.”

And Rule 15 of Order 6 states that:

“A notice of appeal may be amended by or with the leave of the Court at any time.”

It is long settled that where words in a statute are clear and free from ambiguity they should be given their ordinary meaning without embellishments. See Mobil v F.B.I.R. (1977) 3 SC p. 53 Toriola v Williams (1982) 7SC p.27

The clear interpretation of the above is that a judge

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has discretion to grant amendment to a notice of appeal on an application seeking that relief.

An amendment to a process, pleading etc is not limited to correcting errors. It also includes changing the contents of the document, and this can be done by adding to what is already in the document.

The notice of appeal has seven (7) grounds of appeal. Prayer (iii) seeks leave to file four (4) additional grounds of appeal. The grant of prayer (iii) is in effect an amendment to the Notice of appeal since leave for the appellant to file and argue four (4) additional grounds of appeal once granted, the grounds of appeal are no longer seven, but eleven. That is an amendment without even asking for it.

I am satisfied in the circumstances of this case that the order to amend the notice of appeal to incorporate four additional grounds is in fact incidental and consequential orders which the Court of Appeal has power to make as such orders are within its discretion and for the quick disposal of appeals.

Once prayer (iii) is granted, naturally a deeming order should follow if amendment to the document had been effected and exhibited and property filed in Court as a separate process.

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After amendments are granted the need usually arises for the appellant to amend his brief to address new issues the appellant may want to argue, which arise from the new grounds of appeal. The respondent would have every right thereafter to make amendments to the respondent’s brief if that is his desire.

Once the Record of Appeal is incomplete a supplementary Record of Appeal must be filed to bring before the Court process/s omitted or left out from the Record of Appeal. The Notice of appeal was not in the Record of appeal compiled and transmitted by the High Court to the Court of Appeal. This is a fundamental omission that goes to the jurisdiction of the Court of Appeal hear the appeal. Without the Notice of Appeal in the Record of Appeal, the Court of Appeal would have no jurisdiction to hear the respondent’s appeal, and the omission of the Notice of Appeal from the Record of Appeal was not the respondent’s fault but a blunder by the Registry of the trial Court. Surely the respondent should not be punished for lapses in the Registry of the Court.

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Rules of the Court of Appeal are put in place for the smooth disposal of appeals. Judges are to have or ensure they have all relevant processes before them and if they do not have them, give leave to bring those processes before them rather than gave judgment in ignorance of facts which ought to have been known before rights are definitively decided. After reading the briefs in detail, I am satisfied that the appellant had by the grant of this application not suffered any mischief, irreparable or at all or that the grant of the application (which is correct) would have been prejudicial to him.

It is for all that I have been saying that I dismiss this appeal.

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SC.62/2009