The Shell Petroleum Development Company Of Nigeria Limited & Ors V. Chief Isaac Asaro Agbara & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The appellants/applicants filed this application on 16 July, 2018 seeking the following reliefs:-

1. AN ORDER of this Honorable Court granting extension of time to the appellants/applicants to seek leave to appeal to this Honorable Court on grounds other than grounds of law, against the decision of the lower Court in appeal No. CA/PH/396/2012 between the Shell Petroleum Development Company of Nigeria Limited & Ors v. Chief Isaac Osaro Agbara & Ors delivered on 6th June, 2017, coram A. A. B. Gumel, I. O. Akeju and C. I. Jombo -Ofo JJCA.
2. AN ORDER of this Honourable Court granting the appellants/applicants leave to appeal to this Honourable Court on grounds other than grounds of law, against the decision of the lower Court in appeal No. CA/PH/396/2012, between the Shell Petroleum Development Company of Nigeria Limited & Ors v. Chief Isaac Osaro Agbara & Ors. delivered on 6th June, 2017, coram A. A. B. Gumel, I. O. Akeju and C. I. Jombo-Ofo JJCA
3. AN ORDER of this Honourable Court granting the

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appellants/applicants an extension of time within which to appeal to this Honourable Court on grounds other than grounds of law, against the decision of the lower Court in appeal No. CA/PH/396/ 2012 between the Shell Petroleum Development Company of Nigeria Limited & Ors v. Chief Isaac Osaro Aqbara & Ors delivered on 6th June, 2017 coram A. A. B. Gumel, I. O. Akeju and C. I. Jombo- Ofo JJCA.

4. AN ORDER of this Honourable Court granting leave to the appellants/applicants to amend their notice and grounds of appeal dated 15th June, 2017 and filed on 16th June, 2017 against the judgement of the lower Court in appeal No. CA/PH/396/ 2012, between the Shell Petroleum Development Company of Nigeria Limited & Ors. V. Chief Isaac Osaro Agbara & Ors. delivered on 6th June, 2017, coram A. A. B. Gumel, I. O. Akeju and C. I. Jombo- Ofo JJCA in terms of Exhibit I attached to the affidavit in support of this motion.
5. AN ORDER of this Honourable Court granting leave to the appellants/applicants to raise fresh issue of law, jurisdiction and constitutional right to fair hearing as per Grounds 18, 20 and 23 of Exhibit 1 for the first time before this Honourable Court.

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AN ORDER of this Honourable Court deeming the already filed and served amended notice of appeal dated 16th July 2018 (which also incorporates additional grounds of appeal) as per Exhibit 1 attached to the affidavit in support of this motion as having been properly filed and served the appropriate filing fees having been paid.

7. AN ORDER of this Honourable Court granting leave to the appellants/applicants to file and argue the grounds stated in the amended notice of appeal dated 16th July, 2018 in this appeal in the appellants’ brief of argument dated 16th July 2018.
8. AN ORDER of this Honourable Court granting leave to the appellants to amend the appellants’ brief dated 20/11/2017.
9. AN ORDER of this Honourable Court deeming the already filed and served appellants’ brief of argument dated 16th July, 2018 (premised on and which incorporates arguments on the grounds stated in the amended notice of appeal in Exhibit 1) as having been properly filed and served, the appropriate filing fees having been paid.
10. AND for such further order or orders as this Honourable Court may deem fit to make in the circumstances.

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The grounds for making the application are:-

(i) On 6th June, 2017, the Court of Appeal (the lower Court) in appeal No. CA/PH/396/ 2012 between the Shell Petroleum Development Company of Nigeria Limited & Ors v. Chief Isaac Osaro Agbara & Ors gave judgement dismissing the appellants’ appeal and affirming the judgement of the trial Court without a consideration of the merits thereof on the ground that the appellants’ amended brief of argument was incompetent.

(ii) Further to (i) above the appellants filed a notice of appeal within 10 days on 16th June, 2017 containing 6 grounds of appeal.

(iii) Records of appeal were promptly transmitted within time.

(iv) After transmission of records, the law firm of Wole Olanipekun & Co. was briefed to lead the prosecution of the appellants’ appeal.

(v) Further to (iv) above and upon review of the records of proceedings transmitted from the lower Court, the appellants’ counsel are of the opinion that there is a need to amend the appellants’ notice of appeal in order to bring up salient issues before this Honourable Court for an effectual, just and effective determination.

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(vi) Further to (v) above, some fresh issues of law which require no additional facts or evidence as per Grounds 18, 20 and some particulars of ground 23, have been raised in the amended notice of appeal for an effective determination of this appeal.

(vii) The appellants are also seeking extension of time and leave to appeal on other grounds other than grounds of law as well as deeming orders out of abundance of caution.

(viii) The respondents would not be prejudiced by the grant of this application.

(ix) The appellants/applicants had earlier filed a motion dated 20th November, 2017 but will in view of a further ground added to exhibit 1 herein (Ground 18) withdraw the said application at the hearing of this application.

(x) It is in the interest of justice to grant this application.

The application is supported with an 8 paragraph affidavit to which is annexed the following exhibits amongst others namely:-

(i) The amended notice of appeal, exhibit 1 filed on 16/7/2018 containing 27 grounds of appeal.

(ii) The Original notice of appeal, exhibit 2 filed on 16 June, 2017 containing 6 grounds of appeal.<br< p=””

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(iii) The judgement of the Federal High Court, exhibit 3 delivered on 14 June 2010.

(iv) The judgement of the Court of Appeal Port Harcourt, exhibit 4 delivered on 6 June 2017.

(v) Appellant’s brief of argument, exhibit 7 filed on 16/7/2018.

The appellants/applicants filed a brief of argument in support of the motion. The respondents opposed the application and to this end filed a 17 paragraph counter-affidavit on 3 October, 2018 and in support filed a respondents’ brief of argument. In addition the respondents brought a motion on 8 October, 2018 seeking to strike out the appellant’s appeal and applications for want of jurisdiction.

On receipt of the counter-affidavit and motion to strike out the appellant’s appeal, the appellants filed a further affidavit of 11 paragraphs which was accompanied with a reply brief and a counter-affidavit in opposition to the respondent’s motion. A brief also accompanied the counter-affidavit of the appellants. The further affidavit and counter-affidavit were filed by the appellants on 12 October, 2018.

It is noteworthy to state that the appellants/applicants had

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filed an earlier motion on 20/11/2017 which they indicated they were withdrawing upon filing the present motion and so the counter affidavit filed by the respondents on 19/12/2017 and the preliminary objection to the hearing of that motion became spent.

In the written address in support of the application Chief Wole Olanipekun SAN identified one issue for determination which is:-

“Having regard to the facts and circumstances of this application, as well as the materials placed before this Honourable Court, whether the applicants are not entitled to the prayers sought in their application dated 16th July, 2018″.

Learned Senior Counsel submitted that an appellant who has a valid and subsisting appeal can seek the leave of Court to amend same. He argued that an application for amendment is usually granted as a genuflection to the interest of substantial justice and fair hearing, in order to allow the party seeking for an amendment the opportunity to fully present his case before the Court and to enable the Court determine the matter effectually and relied on the following cases: Unity Bank v. Bouari (2008) 7 NWLR (Pt. 1086) 376 at 399;

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Ogunsola v. NICON (2010) 12 NWLR (Pt. 1211) 225 at 234. He said that the often favourable disposition of the Court to grant applications for amendment is based on the constitutional imperatives of the rights to fair hearing and of appeal as enshrined in Sections 36 and 233 of the Constitutional of the Federal Republic of Nigeria 1999 (as amended) and the paramount consideration of this Court, in all cases, is to see that justice is done citing the following cases in support:-

Engineering Enterprises Limited v. A-G Kaduna State (1987) 2 NWLR (Pt. 57) 381; Abubakar v. Yar’Adua (20080 4 NWLR (Pt. 1078) 465 at 496 and Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 634-635. The purpose of the amendment being sought is to bring the real issues for determination in this appeal properly before this Court and as decided by this Court in FBN Plc v. May Medical Clinics (2001) 9 NWLR (Pt. 717) 28 at 40-44, no special circumstances are needed to amend a Notice of Appeal, even where briefs of argument have been filed and exchanged. He contended that even if an appeal is virtually ready for hearing, this will not prevent the Court from

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exercising its undoubted discretion to allow an amendment in order to serve the ends of justice and fairness. Placing reliance on Order 2 Rule 31 (1) Supreme Court Rules 1999 (as amended); Order 3 Rule 4 (1) of the Court of Appeal Rules 1981 and Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350 at 368, he submitted that this Court has power to extend time within which to do an act prescribed by the rules and a grant of an application for extension of time is discretionary which discretion is exercised by the Court judicially and judiciously and the condition for the grant of an application of this nature was laid down in a plethora of authorities such as Ukwu v. Bunge (1997) 8 NWLR (Pt. 527) at 541; Unipetrol Nigeria Plc v. Bucknor (1994) 5 NWLR (Pt. 344) 360 at 364-365; Chrisray Nigeria Limited v. Elson & Neil Limited (1990) 3 NWLR (Pt.140) 630 at 643; Yesufu v. Co-operative Bank (1989) 3 NWLR (Pt. 110) 483 at 494; Bowaje v. Adediwura (1976) 6 SC 143 and Ibodo v. Enarofia (1980) 5-7 SC 28. Learned Senior Counsel pointed to the affidavit of Adelani Ajibade Adedoyin

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in support of the application wherein he gave substantial reasons for the failure of the appellant to seek leave to appeal on grounds other than grounds of law within the prescribed period. He submitted that where the proposed Ground of appeal complains of lack of jurisdiction and it prima facie appears so, as in the instant case, it may not be necessary to inquire into the reasons for the delay in bringing the appeal. Learned Senior Counsel maintained that it was out of abundance of caution that he is seeking extension of time within which to appeal on mixed law and facts even though the original notice of appeal was filed within time. He argued that where a judgement is given without jurisdiction, it can never be too late to appeal against it. The following cases were cited in support namely:- Yesufu v. Co-operative Bank (1989) 3 NWLR (Pt. 110) 383; Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271) 467 at 507; Sebastian Adigwe v. FRN (2015) 18 NWLR (Pt. 1490) 105.

He said the applicants have shown the Court that the cause for the delay in bringing the application is neither willful nor deliberate, and that there are good and substantial reasons

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for failure to seek leave within the prescribed period and the applicants have shown that the grounds of appeal show good cause why the appeal will be heard. See: Okere v. Nlem (1992) 4 NWLR (Pt. 234) 132. He contended that this Court will readily grant leave to a party to raise and argue new grounds or issues not canvassed at the Court of trial or at the lower Court where the new grounds involve substantial points of law substantive or procedural, which need to be allowed to prevent the obvious miscarriage of justice. See: SLB Consortium v. NNPC (2011) 9 NWLR (Pt.1252) 317 at 337 and Corporate Ideal Insurance Co. Ltd v. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt. 1405) 165. He said the applicants have adduced cogent and compelling reasons and have placed sufficient materials before the Court to be entitled to the exercise of discretion of this Court. It is learned Senior Counsel’s contention that by the provisions of Order 8 Rule 4 Supreme Court Rules, a notice of appeal may be amended by or with the leave of the Court at any time. He said that this Court is vested with the inherent powers to amend the Notice of Appeal or do so on the application of

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the appellant and submitted that an amendment includes alteration addition and deletion and the Notice of appeal can be amended at any time before the judgement of the Court is delivered. He further argued that the mere fact that Briefs of Argument have been filed and exchanged will not prevent the Court from exercising its undoubted discretion to allow the amendment of a notice of appeal and briefs of argument as long as such amendment would meet the ends of justice. See: Madam Salami & Ors Oke (1987) 9-11 SC 43 at 67 and Okpala v. lbeme (1989) 2 NWLR (Pt. 102) 208. He urged this Court to grant the application.

Mr Lucius Nwosu SAN who appeared for the respondents also submitted a written address to support the counter-affidavit he filed to oppose the application. After an exhaustive rendition of the background facts leading to the application he identified two issues for determination namely:-

(1) Whether in the circumstances of the facts set out in paragraph 2.1 to 2.11 above (the basis of the decision complained against) the applicants’ initial Notice and grounds of appeal filed on 16th June, 2017 without leave of the Court below or this apex Court can

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sustain the prayers sought by the applicants vide their Motion of 16th July, 2018.

(2) What is the legal consequence of dismissal of an appeal for non filing of appellants Brief of Argument

Learned Senior Counsel referred to pages 2734-2736 Vol. 7 of the records where the application filed contained prayers to deem appellants’ amended Notice and appellants’ brief of argument were withdrawn and struck out and the appellants did not file any brief despite the lower Court’s orders made thrice on the appellants to file the brief but without success.

The appellants obeyed the order to file an amended Notice of Appeal without a brief. In its judgement the lower Court made certain findings of fact as a result of which the appellants became aggrieved and decided to file their Notice of Appeal dated 16/6/2017. Having realised the defect in the notice of Appeal, the appellants brought the application for leave to amend the notice. Learned Senior Counsel for the respondents submitted that in the absence of an appellants’ brief there cannot be an amended appellants’ brief. He further submitted that where the Court reaches the finding that no

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appellants’ brief was filed when the appeal is slated for hearing, the proper order to make is dismissal of the appeal either at the prompting of the respondent or by the Court suo motu. See: Ali Baba Intl Ltd & Anor v. Sterling (2018) vol. 281 LRCN 1. He contended that any appeal from a dismissal in such circumstances must be limited to the decision of dismissal and not any other matter that was not decided by the lower Court. And unless leave to appeal has been granted, the Supreme Court will have no jurisdiction to entertain factual appeals arising from such dismissal. He further argued that as appeals do not lie from the High Court to the Supreme Court any invitation to decide the merits of the appeal at the apex Court is misconceived.

Dealing with leave to appeal, learned Senior Counsel referred to Section 233 (3) of the 1999 Constitution and argued that a close scrutiny of the six grounds of appeal which accompanied the notice filed on 16/6/2017 reveal findings of fact or mixed law and fact that require leave to be sought and granted before the Notice filed can be competent. The consequence of failure to obtain prior leave renders the

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grounds of appeal incompetent and liable to be struck out. The case of Nzei v. University of Nigeria (2017) 6 NWLR (Pt. 1561) 300 was cited. See also: Ojemen v. Momodu III (1983) 3 SC 173; Governor of Kaduna State v. A. A. Dada (1986) 4 NWLR (Pt. 38) 687; B. A. S.F Nigeria Ltd v. Faith Enterprises Ltd (2010) 4 NWLR (Pt. 1183) 104.

On the purported amended Notice of appeal, learned Senior Counsel pointed out that they contain grounds of appeal that did not arise from the judgement of the lower Court and submitted that a ground of appeal must arise from the judgement appealed against, otherwise it is baseless and liable to be struck out as incompetent. He submitted further that grounds 18, 20, 21, 23, 24, 25 and 26 of the purported Notice of appeal are incompetent. In conclusion, learned Senior Counsel urged this Court to strike down the application dated 16 July, 2018 together with all other processes associated with it and those proposed to be cured by it most especially the Notice and Grounds of Appeal dated 16/6/2017 and the amendment being sought.

In his reaction to the claim by the respondents that the grounds of appeal accompanying the Notice of Appeal filed

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on 16 June, 2017 are grounds of fact or mixed law and facts, learned Senior Counsel for the appellants maintained that they are grounds of law because they are a challenge to the jurisdiction of the lower Court and so are pure issues of law and that a single competent ground of appeal can sustain the appeal and the appellants’ application suffices to cure the appeal of any presumed irregularity.

There are two issues to be resolved in this application namely:-

1. Whether there is a defect in any of the processes filed in the Notice of Appeal after the Federal High Court had delivered its judgement that subsequently affected the appeal in CA/PH/396/2012; and
2. Whether the Notice of Appeal filed on 6 June, 2017 can be amended.

The starting point in the consideration of this application is to x-ray what happened to the motion which the appellants filed on 26 November, 2012. In the said motion, the applicants prayed for the following:-

1. An order of this Honourable Court granting leave to the applicants to amend their Notice of Appeal dated the 8th day of September 2010 to include an additional Ground of Appeal as highlighted in the

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Proposed Amended Notice of Appeal attached to the affidavit in support of this application.

2. AN ORDER of this Honourable Court deeming the amended Notice of Appeal as properly filed and served, the appropriate filing fees having been paid.
3. AN ORDER of this Honourable Court deeming the appellants’ brief of argument which contains arguments in respect of the additional ground of appeal as properly filed and served, the appropriate filing fees having been paid.” (See pages 2734 2737 Vol. 7 of the records).

On 3 December, 2012 a panel of Justices (coram: A. A. B. Gumel, C.E. Nwosu-lheme and U. Onyemenam JJCA) read a ruling prepared by Tsamiya JCA refusing and dismissing the application by the appellants/applicants and awarding N30,000.00 as costs to them in appeal No. CA/B/291M/2010 (See page 2759 vol. 7 of the records. On the same date the same panel heard the motion in CA/PH/396/2012 and this is what took place:-

“Akoni: We (sic) an application dated 16/11/2012 and filed on 26/11/2012

Nwosu: We have been served. We do not intend to oppose it.

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Akoni: It is for an order for leave to amend our notice of appeal to reflect additional arguments in our brief of argument. I seek to abandon prayers 2 and 3. I have in terms of prayer 1.

Nwosu: No objection

Court: Prayer 1 is granted as prayed. Leave is granted to the appellants/applicants to amend their notice of appeal dated 8/9/2010 to include addition ground of appeal as highlighted in the proposed amended notice of appeal attached to the affidavit in support of this application and marked as exhibit AEA2. Amended notice of appeal and appellants’ brief to be filed within 7 days. Appeal is adjourned to 9/01/2013 for hearing” (See page 2760 vol. 7 of the Records).

On 5 December, 2012 the appellants filed the Amended Notice of Appeal (See pages 271-2768 vol. 7 of the records). It should be noted that the appellants did not file the brief of argument as ordered by the Court. On 17 December, 2012 the appellants brought another motion praying for leave to appeal to the Supreme Court on issues of mixed law and fact against the ruling of the Court of Appeal, Port Harcourt delivered on Monday 3 December, 2012 in appeal No. CA/B/291/2010 (See pages 2777-2780 vol. 7 of the records).

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On 4 January, 2018 they filed another motion seeking leave to amend the Notice of Appeal filed on 5 December, 2012. On 9 January, 2013, Mr. Nwosu applied to withdraw motions filed on 13/7/2012 and 16/11/2012 and the Court ordered as follows:-

“Court: Orders as prayed. Application filed on 13/7/2012 for extension of time to file respondents’ brief of argument and application filed on 16/11/2012 for deeming order of the Respondents brief filed on 13/7/2012 are struck out having been withdrawn” (See page 2830 vol. 7 of the records).

Mr. Akoni then moved the motion filed on 4/1/2013 for leave to further amend the Notice of Appeal which was granted without objection. The Court granted the appellants 14 days within which to further amend the Notice of Appeal and the appellants’ brief and adjourned the appeal for hearing to 12/3/2013 (See page 2831 vol. 7 of the records).

On 11/3/2013 Tola Oshobi Esq, Partner in the Firm of Babalakin & Co wrote requesting for adjournment of the appeal which was fixed for hearing the next day, 12/3/2013 on the ground that Olawale Akoni SAN who is the lead

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counsel in the team of lawyers representing the applicants in the appeal had to travel abroad to attend to his health to which was attached a 6 paragraph affidavit which was deposed to by Isah Seidu, a legal practitioner in the Firm of Messrs Babalakin & Co. wherein he stated the following facts in paragraph 5 of the affidavit titled “Affidavit for record purposes”

“5 I was informed of the following facts by Olawale Akoni SAN during a telephone discussion in respect of this appeal on Monday 11th March, 2013 and I verily believe him as follows:-

(i) He has personally spoken to the Learned Senior Advocate representing the respondents on 7th March, 2013 to inform him about his unfortunate inability to attend Court on 12th March, 2013 and of his consequent action of writing a letter to the Court to seek adjournment.

(ii) Upon receiving a copy of Olawale Akoni SAN’s letter, the firm of the Senior Advocate representing the respondents has also written to the DCR (copying the firm representing the applicants) and has stated clearly that they are opposing an adjournment and will be urging that the substantive appeal be heard on the briefs filed. This is despite being aware that

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the applicants are yet to file their amended appellants’ brief of arguments pursuant to the leave granted the applicants on 9th January, 2013. Attached herewith and marked as Exhibit 3 is a copy of the respondents’ counsel’s letter.

(iii) The applicants have not filed their amended appellants’ brief of arguments owing to Olawale Akoni SAN’s discovery of several issues of law that need to be included and argued in the substantive appeal but have not been included because of his health. These issues include but are not limited to the fact that:

(a) The FHC lacked the jurisdiction to hear on 26th November, 2001, the respondents’ motion Exparte dated 22nd November, 2001 at pages 0017-0020 in vol. 1 of the record seeking leave to issue the respondents’ Writ of Summons dated 22nd November, 2001 at pages 0002-0004 in vol. 1 of the record that was already and previously purported to be issued on 22nd November, 2001 contrary to the mandatory provisions of Order 6 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000 which unequivocally states thus:-

No Writ which, or notice of which is to be served out of

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the jurisdiction shall be issued without leave of the Court.

(b) Whether a claim in torts can be pursed in a representative capacity

(c) Whether Order 6 Rules 13 of the Federal High Court (Civil Procedure) Rules 2000 that unequivocally states that Issue of a writ takes place upon its being signed by a Judge in Chambers can be said (sic) have been complied with by a calm review of the respondents’ Writ of Summons dated 22nd November, 2001 at pages 0002-0004 in vol. 1 of the record; or

(d) Whether Order 6 Rule (1) that requires that an application must be made by a plaintiff’s Solicitor for the issuance of a Writ was compiled with as there is clearly no such application in the 6(six) volumes of the record before this Honourable Court.

(e) Olawale Akoni SAN is very desirous to place before Your Lordships all the necessary issues that ought to be determined and the appellants’ brief of arguments in the file is not satisfactory and/or sufficient to present the appellants’ case in this appeal. He is scheduled to personally conclude the preparation of the appellants’ brief and necessary applications in that regard upon his return from medical attention from the United Kingdom”.

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Despite the objection raised by respondents’ counsel on the request for adjournment, the Court of Appeal, Port Harcourt Division obliged the appellants by adjourning the appeal to 17/4/2013 for hearing.

On 16/4/2013, the appellants filed yet another motion for leave to appeal various interlocutory decisions and to raise fresh issues on appeal (see pages 2862-2875 vol. 7 of the records) and attached a proposed 2nd Further Amended Notice of appeal containing 19 grounds of appeal (see pages 2876-2897 vol. 7 of the records).

In prayer 8 of the motion the appellants prayed for

“AN ORDER granting leave to the applicants to include pursuant to and/or under the leave/order of this Honourable Court granted to the applicants on 9th January, 2013 per Hon. Justice M. L. Tsamaya JCA, Hon. Justice Ejembi Eko JCA and Hon. Justice C.E. lheme-Nwosu JCA to amend their appellants’ brief of argument dated 21st October, 2010 incorporating all the arguments/submissions that will arise from the additional grounds of appeal indicated in Exhibit AEA 1 and generally reconstruct the said brief in order to

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effectively and duly present the applicants’ case to this Honourable Court”.

On 9 January, 2013, the panel consisted of M.L. Tsamiya, Ejembi Eko and Stephen J. Adah JJCA. The proceedings record at page 2831 vol. 7 the records are as follows:-

1. Mr. Akomi SAN: We filed our motion on 4/1/2013 for leave to further amend our Notice of Appeal dated 5/12/2012 to include an additional ground of appeal as highlighted in the propose (sic) Notice.

Mr. Nwosu SAN: No objection.

Court: Order as prayed. Leave granted to the Appellants/applicants to further amend their Notice of Appeal of dated 5/12/2012 as highlighted in the proposed further amended notice of appeal – Exhibit AEA2.

2. 14 days granted to the applicants to both file further amended notice of appeal and the appellants’ brief of argument.
3. Appeal adjourned to 12/3/2013 for hearing 7 days to the respondents to reply if they so wish.

Signed.

M. L. Tsamiya

Presiding Justice Court of Appeal 09/01/2013″

There was nothing to indicate in the order made that the appellants were to file an amended appellant’s brief since no brief had been filed by the appellants after the withdrawal

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of prayers 2 & 3 of the motion filed on 26 November 2012.

Specifically prayer 3 which was withdrawn prayed for an order deeming the appellant’s brief of argument containing arguments in respect of the additional ground of appeal as properly filed and served. It is erroneous and quite misleading to say that the applicants were granted leave to amend the appellants’ brief. Having withdrawn the prayer to deem the brief as duly filed, there was no more brief to refer to. This is the reason why the Court granted time within which to file brief.

A close scrutiny of the grounds in the Notice of appeal which the appellants sought to amend would reveal the following:-

Grounds 1 and 2 are complaining about findings of fact while grounds 3 and 5 questioned the exercise of discretion by the lower Court. The complaint in ground 4 is that the lower Court did not hear the appeal on the merit before affirming the judgement of the trial Court and ground 6 alleged that the lower Court considered the respondents’ preliminary objection outside those listed by the respondent.

Despite the appellants’ labeling the grounds as grounds of

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law, when the particulars are read together, they are grounds of fact or at best of mixed law and facts. See: Nzei v. University of Nigeria (2017) 6 NWLR (pt. 15G11 300. They fall outside the preview of Section 233(2)(a) which grants the appellants a right of appeal to the Supreme Court. Any such appeal therefore must be with leave as stipulated in Section 233(3) which states: –

“233(3) Subject to the provisions of Subsection (2) of this section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court”.

Where the grounds of appeal are based on mixed law and facts and the leave of either the Court of Appeal or the Supreme Court is not sought and granted the appeal is incompetent and neither the Court of Appeal nor the Supreme Court will have any jurisdiction to entertain the appeal. See: A & S. B. Co.(Nig) Ltd v. F.C.M.B. Ltd (2013) 10 NWLR (Pt. 1363) 501; Ekunola v. C.B.N. (2013) 15 NWLR (Pt. 1377) 224. Any notice of appeal that is incompetent cannot be amended because you cannot put something on nothing and expect it to stand.

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See: Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC 6; R-Benkay (Nig) Ltd v. Cadbury (Nig) Plc (2012) 9 NWLR (Pt. 1306) 596. As the Notice of Appeal sought to be amended was incompetent, no valid amendment could be effected even though issues of jurisdiction were raised in the proposed notice of appeal. See: Nwaigwe v. Okere (2008) 13 NWLR (Pt. 1105) 445 at 474.

Learned Senior Counsel for the appellants stated the correct legal position that an appellant who has a valid and subsisting appeal can seek the leave of Court to do so but in the instant case, there is no such valid notice of appeal that can be amended. The Notice of Appeal in SC. 731/2017 between Shell Petroleum Development Co. of Nigeria Limited & Ors v. Chief Isaac Asaro Agbara & Ors is incompetent and is hereby struck out by virtue of Order 8 Rule 7 of the Supreme Court Rules. Appeal No. SC. 731/2017 is accordingly dismissed.

The motion filed on 16 July, 2018 has no leg to stand on and is hereby dismissed with costs in favour of the respondents against the applicants.

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SC.731/2017(R)