Setraco Nigeria Limited V. Joseph Kpaji (2017)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The plaintiff (now respondent in this appeal) instituted an action before the Nasarawa State High Court sitting in Keffi claiming the sum of Two Hundred and Fifty Million Naira (250,000,000.00) only as special and general damages as a result of injuries he had suffered due to negligence of the defendant/appellant. The suit is number NSD/K 25/2006. On 28/11/2008 the Nasarawa State High Court presided over by Viko J. entered judgment in favor of the plaintiff/respondent in the sum of N89,640,000.00 (Eighty-Nine Million, Six Hundred and Forty Thousand Naira) only. The defendant was dissatisfied with the said judgment and appealed against it to the Court of Appeal, Jos Division. The said Notice of Appeal was wrongly headed IN THE COURT OF APPEAL HOLDEN AT ABUJA. On discovering this mistake, Mr. Akin Adewale of counsel filed another Notice of Appeal on 16/12/2008. The appeal was entered as CA/J/43/2009 and the appellant filed its brief of argument. On being served with the appellant’s brief, the respondent raised a preliminary objection to the competency of the appeal on the

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grounds that:-

1. There was no competent appeal before the Court, and
2. There was no competent brief of argument filed by the appellant.

The preliminary objection was argued in the respondent’s brief wherein objection was also taken regarding the formulation of more than one issue from a single ground of appeal.

The appellant did not respond to the preliminary objection but instead decided to change counsel.

On 24/2/2012 a Notice of Withdrawal of Appeal No.CA/J/43/2009 was filed by Omale Omale, (see page 239 of the Records). The appeal was struck out on 24/4/2012 by virtue of Order 11 Rules (1) and (2) of the Court of Appeal Rules 2010 (as amended).

The new counsel S. A. Ngavan Esq. filed a fresh Motion on Notice on 25/4/2012 which was given appeal No.CA/MK/51/M/2012 praying for the following reliefs:-

1. Extension of time within which the applicant may apply for leave to appeal against the judgment of Hon. Justice John A. Viko of Keffi High Court, Nasarawa State in Suit No NSD/K25/2006 delivered on the 28th day of November, 2008.
2. Leave for the Applicant to appeal against the said judgment of Hon justice John

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A Viko in suit No NSD/K25/2006 delivered on the 28th day of November, 2008

3. Extension of time within which the applicant may file its notice and grounds of appeal against the Judgment stated in (1) and (2) above.

The grounds upon which the application was brought are as follows:-

1. That following the delivery of the said judgment on 28/11/2008 applicant immediately caused her counsel then, Akin Adewale Esq. to file an appeal against it and the said counsel actually filed a Notice of Appeal dated the 29th day of November 2008 and filed on 1st December, 2008 but was wrongly headed “In the Court of Appeal holden at Abuja”.
2. That another Notice of Appeal dated the 16th December 2008 was filed on 6th February, 2009 within the statutory period for appealing.
3. That the said appeal No. CA/J/43/2009 was struck out by this Honourable Court on the 24th day of April, 2012.
4. That the applicant is desirous of prosecuting the appeal to its logical conclusion.
5. That the lapses are caused by counsel
6. Extension of time by this Honorable Court is required to file a competent Notice of

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Appeal.

In paragraphs 3, 4, 5, 6, 7, 8 and 10 of the affidavit in support of the motion, Ephraim Fater Sarwuan a Legal Practitioner deposed to the following facts-

“3. That I know as of fact that on the 19th day of December, 2011, the law firm of Bernard Hom. & Co. received a brief from the Legal Department of the Trust Insurance Company, on behalf of the applicant that a fresh Notice of Appeal be filed against the judgment of Hon. Justice John A. Viko delivered on the 28th November, 2008. A copy of the said judgment is attached hereto and marked Exhibit 1.

4. That I know as of fact from the records sent to our Law Office that the applicant’s former counsel, Akin Adewale Esq. had filed two different Notices of Appeal, one dated 29th November, 2008 and filed on 1st December, 2008 and the other dated the 16th day of December, 2008 and filed on the 6th day of February, 2009.
5. That I also know as of fact that the appeal had been entered as appeal No.CA/J/43/2009 and briefs of argument were settled, filed and exchanged based on the Notice of Appeal filed on 6th February 2009 mentioned above.
6. The appeal No. CA/J/43/2009 being defective

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has been withdrawn and struck out by this Honorable Court and annexed hereto as Exhibits 2 is the ruling of this Honorable Court striking out the said appeal.

7. That the proposed fresh and competent Notice of Appeal has now been prepared on behalf of the applicant and is attached here and marked as Exhibit 3.
8. That as a lawyer I believe that the proposed Notice of Appeal has arguable grounds of appeal and is likely to succeed.
9. That the defect discovered in the appeal filed by applicant’s former counsel is that the names of all persons affected by the appeal were not stated in paragraph 5 of the said Notice.”

The respondent filed a Counter-affidavit in opposition to the motion for extension of time to appeal and this is what Bello Lukman lbrahim, a Legal Practitioner in the Chambers of Oba Maduabuchi Esq. averred in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10:-

“3. That judgment was entered in favour of the respondent by the Nasarawa State High Court on the 28th day of November, 2008.

4. That the appellant filed an appeal against same and also filed a brief and the respondent also filed his brief.
5. That while the parties were

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waiting for a hearing date the appellant appealed to the Supreme Court on whether it should pay the judgment sum into Court as it had undertaken to do in the Court of Appeal

6. This lasted from 2009 until 2012 when the Supreme Court struck same out and then the appellant paid the judgment sum into Court in Jos instead of Makurdi. The ruling is Exhibit JK1 hereto.
7. That upon noticing that their case was weak in the appeal number CA/J/43/2009 the appellant voluntarily withdrew same pursuant to Order 11 of the Court of Appeal Rules.
8. That it is not true that the Notice of Appeal did not contain the names and addresses of the persons interested in the appeal
9. That a copy of the said Notice of Appeal is exhibited thereto as Exhibit JK 2.
10. That the appeal No. having been withdrawn stands dismissed.
11. That the applicant has no right of appeal again against the judgment of the Nasarawa State High Court having exercised same appeal number CA/J/43/2009.

A further and better affidavit was filed in support of the application to which were attached several exhibits. The Court below thereafter ordered counsel to

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file written addresses

Learned counsel also made oral Submissions. The Court below considered the application and dismissed same as lacking in merit but before reaching this conclusion, the Court held that the wrong heading of a Notice of Appeal and failure to state the name and address of one of the parties interested in the appeal are blunders that can be amended and they do not warrant the striking out of an appeal which otherwise should be heard on the merit.

This prompted the appellant to file an appeal to this Court on 11th February, 2013 containing 6 grounds of appeal from which the appellant distilled three issues for determination which are as follows:-

1. Was the Court of Appeal right when it held that, the appellant having withdrawn her appeal under Order 11 of the Court of Appeal Rules 2011, was barred from bringing an application for extension of time and for leave to appeal against the substantive judgment of Hon. Justice John A. Viko, notwithstanding her constitutional right of appeal and right to fair hearing. (This issue is distilled from Grounds 1, 3, 4 and 6).
2. Was the Court of Appeal right when in determining the

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application before it, it did not consider the appellant’s Further and Better Affidavit and the Reply Address on points of law, which were properly before it. (This issue is formulated from Ground 2).

3. Was the Court of Appeal right to hold, as it did, that the defects leading to the withdrawal of the original Notice of Appeal could have been cured by amendment even at the stage when briefs had been filed and exchanged. (Formulated from Ground 5).

The respondent on his part felt there was only one issue for determination and it is:-

Whether an appeal which has been withdrawn and struck out pursuant to Order 11 Rules (1) and (2) of the Court of Appeal Rules, 2011 can be relitigated.

Granted that the respondent had filed Notice of preliminary objection to the Notice of Appeal which the appellant filed on 16/12/2008, it is the substantiality of that preliminary objection that will determine the fate of this appeal.

There is no dispute whatsoever that the appellant filed Notice of Withdrawal of the appeal. The process which is at page 239 of the record states:-

“NOTICE OF WITHDRAWAL OF APPEAL BROUGHT PURSUANT TO ORDER 11

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RULE 1 OF THE COURT OF APPEAL RULES 2011.

TAKE NOTICE that the Appellant herein intends not to prosecute this appeal any further and hereby gives notice of withdrawal to the respondent in accordance with the Rules of this Court.

Dated this 24th day of February, 2012

Signed:

Omale Omale Esq.”.

The proceeding of the 24th day of April, 2012, when the appeal was withdrawn is at page 157 of the records and it is reproduced in extenso as follows:-

APPEAL NO. CA/J/43/2009

BETWEEN:

SETRACO NIG. LTD – APPELLANT

v.

JOSEPH KPAJI – RESPONDENT

PARTIES ABSENT

S. A. Ngavan (with Omale Omale) for the Appellant.

Mr. Oba M. for the Respondent

S. A. NGAVAN :- We filed a Notice of discontinuance of this appeal and urge this Court to discontinue with this case. The Notice was filed on 27/2/2012

Mr.. Oba:- No objection

Court: – The Appeal No. CA/J/43/09 having been discontinued is hereby struck out by virtue of Order 11 (1)(e) of this Court Rules 2010 (as amended)

Mr. Ngavan:- I wish to withdraw our motion filed on 3/2/2012.

Mr. Oba:- No objection

Court:- Application filed on

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3/2/2012 for extension of time apply (sic) for leave to appeal, etc is struck out having been withdrawn.

Signed.

Hon. Justice M L TSAMIYA – PJCA

24/4/2012

Signed.

I agreed Hon. Justice A. A. B. Gumel – JCA

Signed.

I agreed Hon. Justice U. Onyemenam – JCA”

It is on the basis of this ruling that the Court below dismissed the Motion in CA/MK/51/M/2012 when the panel (coram: Mikailu, Mshelia and Oseji JJCA) unanimously held that the failure of appellant to state the name and address of one of the parties interested in the appeal amounts to a blunder which constitutes only an amendable irregularity and does not warrant the striking out of an appeal which otherwise should be heard on the merit. In his own contribution, Mshelia JCA dealing with the import of filing the Notice of discontinuance of the appeal as it relates to the motion stated at page 288 of the record:-

It is clear from the proceedings of this Court dated 24/4/2012 that appellant now applicant applied to discontinue the appeal filed on 27/2/2012 and same was struck out by this Court pursuant to Order 11 Rules 1 and 2 of the Court of Appeal Rules, 2010 as

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amended. Once an appeal is withdrawn under Order 11 Rules 1 and 2, with or without consent of the parties, the appeal stands dismissed pursuant to Order 11 Rule 5 of the said Rules.

Learned counsel for the appellant has argued that since appeal No. CA/J/43/2009 was not decided on the merits when the appeal was struck out on 24/4/2012, Order 11 of the Court of Appeal Rules 2011 cannot be interpreted and applied to defeat the express constitutional provision relating to right to fair haring and the right of appeal as guaranteed under Sections 36, 241, 242, 243 of the Constitution of the Federal Republic of Nigeria 1999. It was argued in the Reply Brief that before the Court of Appeal can have jurisdiction to dismiss the appeal, there must be a competent and valid Notice of Appeal.

In the lead Ruling Oseji JCA examined Order 11 with a view to establishing its effect on the withdrawal and striking out of an appeal. The said Order 11 provides:-

1. An appellant may at any time before the appeal is called on for hearing, serve on the parties to the appeal and file with the registrar, a notice to the effect that he does not intend to prosecute

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the appeal any further.

2. If all parties to the appeal consent to the withdrawal of the appeal without an order of the Court, the appellant may file in the registry the document or documents signifying such consent and signed by the parties or by their legal representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeals by the registrar and in such event any sum deposited against costs shall be paid out to the appellant.
3. The withdrawal of an appeal with the consent of the parties under Rule 2 of this Order shall be a bar to further proceedings on application made by the respondent under Order 9.
4. lf all the parties do not consent to the withdrawal of an appeal as aforesaid, the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, including any application made by the respondent under Order 9, and for the making of an order as to the disposal of any sum deposited against cost.
5. An appeal which has been withdrawn under this Order, whether with or without an order of the Court,

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shall be deemed to have been dismissed.

6. Where an appeal is withdrawn under this Order, any respondent who has not given a notice under Order 9, may give notice of appeal and proceed therewith in the manner prescribed by the foregoing Rules, and in such case the time limited for giving notice of appeal, for depositing the sum estimated to cover the cost of the record and for making deposit against costs may, on application to the Court, be extended so far as is reasonably necessary in all the circumstances of the case”

He continued thus:-

“Order 11 Rule 5 is in Pari materia with Order 3 Rule 18(5) of the Court of Appeal Rules 1981 wherein the Supreme Court in EZOMO V. A-G BENDEL (1986) 4 NWLR (Pt. 36) 448 at 462 had cause to consider the effect of the said provision on an appeal that was withdrawn.

Their lordships per Aniagolu JSC held inter alia as follows:-

“Having held that the withdrawal notice filed by Mr. Obasuyi was validly filed, Order 3 Rule 18 of the Court of Appeal Rules would automatically take effect. By Sub rule 5 of Rules 18,

“An appeal which has been withdrawn under this Rule, whether with or without an order of the

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Court, shall be deemed to have been dismissed”.

“This Sub-rule 5 identical terms with Order 7 Rule 17(5) of the Supreme Court Rules 1985. The effect of the withdrawal notice filed by Mr. Obasuyi, in my view, was to terminate the appeal filed against the judgment of the High Court with or without an order of Court”

“l do not consider it necessary to decide the question whether the respondents are estopped by their conduct in resiling from their notice of withdrawal. This is because the appeal having been dismissed by virtue of Order 3 Rule 18(5), it is only the respondent to such dismissed appeal who had given notice under Order 3 Rule 14 that the judgment should be affirmed or varied on other grounds, and on fulfilling the conditions prescribed in that Rule who can continue with the appeal. There is no provision enabling an appellant to relist the appeal so dismissed. I am therefore unable to conceive from the Rules, how having validly withdrawn the appeal it would again be entered for hearing”.

Learned Counsel must have labored under the mistaken belief that the Notice of Appeal was incompetent because of the preliminary objection which was

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subsisting at the time the Notice of withdrawal of the appeal was filed. The lower Court effectively dealt with the mistaken belief when it held that the appeal was competent and all that learned counsel should have done was apply to amend the Notice of Appeal so as to add the name of and address of the appellant as the person affected by the appeal. Even the first Notice which was wrongly headed ‘lN THE COURT OF APPEAL HOLDEN AT ABUJA’ could have been amended to read “Jos” because the error did not affect the jurisdiction of the Court to entertain the appeal.

The motion for leave and extension of time to appeal was rightly dismissed since the appellant had filed Notice to discontinue with the appeal and it was struck out which is tantamount to a dismissal of the appeal under Order 11 Rule 5 Court of Appeal Rules, 2011.

The appeal lacks merit and accordingly dismissed.

There shall be costs of N500,000.00 against the appellant in favour of the respondent.

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SC.119/2013