IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON TUESDAY, THE 13TH DAY OF AUGUST, 2024
BEFORE THEIR LORDSHIPS:
JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL
FOLASHADE AYODEJI OJO JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
APPEAL NO: CA/LAG/CV/172/2022
BETWEEN:
AMYTORIX COMPANY NIGERIA LIMITED ----- APPELLANT
AND
NET CONSTRUCT NIGERIA LIMITED
ABAH ONAH, ESQ ---------- RESPONDENTS
(RECEIVER MANAGER ALMA BEACH ESTATE LTD
IN-RECEIVERSHIP)
RULING
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This composite Ruling is in respect of two applications by way of Notices of Motion filed by the Respondent and the Appellant, respectively. While the application of the Respondent, filed on 28/05/2024, sought for an order of this Court striking out the Appellant’s two Notices of Appeal respectively filed on 16/11/2021 and 23/11/2021 for incompetence, the application of the Appellant, filed on 30/05/2024, sought for an order amending the Notice of Appeal filed on 16/11/2021 and deeming the Amended Notice of Appeal filed on 29/05/2024 as properly filed and served. There is no prayer to amend the Notice of Appeal filed on 23/11/2021.
In line with the settled principle of law on priority of hearing opposing competing applications, which gives preference to the one which tend to preserve the proceedings over the one that is aimed at destroying it, this Court heard both applications together, starting with the Appellant’s application for amendment of the Notice of Appeal filed on 16/11/2021.
From the nature of the two opposing applications, resolution of one will invariably affect the outcome of the other.
RULING ON THE NOTICE OF MOTION FILED BY THE APPELLANT.
In the application filed by the Appellant on 30/05/2024, the Applicant moved the Court in terms of the following reliefs:
AND for such further order or orders as this Honourable Court may deem fit to make in the circumstance.
The grounds upon which the application was predicated as stated on the face of the Notice of Motion are:
An Affidavit of 14 paragraphs sworn to by one Mary Ebong, a Legal Practitioner in the Law Firm of E.A. Pippa & Co. of 106/110 Lewis Street, Lagos Island, Lagos, annexed to which are 4 Exhibits marked A, B, C, D, was filed in support of the application. There is also a written address signed by Ifeoluwa Ojediran, Esq. Exhibits B and C are the Original Notice of Appeal filed on 16/11/2021 and the Proposed Amended Notice of Appeal, respectively, while Exhibit D is the Amended Notice of Appeal filed as a separate process. There were also a Further Affidavit and Reply on Points of Law settled by Robert Emukpoeruo, SAN.
In opposition to the grant of the amendment sought by the Appellant, the 1st Respondent caused to be filed on its behalf a Counter Affidavit sworn to by one Ladipo Bolade Kehinde, a Legal Officer in its employment. It is of 10 paragraphs attached to which are 2 Exhibits, marked Net 1 and Net 2. Exhibit Net 1 is the Notice of Appeal in the sister Appeal No. CA/LAG/CV/884/2021, between Abah Onah vs. NetConstruct Limited & Anor, while Exhibit Net 2 is the Ruling of this Court striking out the said Notice of Appeal for being incompetent, alongside the Enrolled Order. There is also a written address signed by Ayomide Olanrewaju.
When the application came up for hearing on 24/06/2024, Robert Emukpoeruo, SAN, leading O.O. Olusiyi, Ifeoluwa Ojediran and E.A. Pippa, moved the application by adopting all the processes filed in support thereof, including the Further Affidavit and the Reply on Points of Law filed in response to the 1st Respondent’s Counter Affidavit, and urged the Court to grant the application. In a short adumbration, learned senior counsel cited the case of Ani vs. Out (2017) 12 NWLR (Pt.1578) 30 @ 55-56 & 57 and Order 7 Rule 6 of the Court of Appeal Rules, 2021. On behalf of the 1st Respondent, Muiz Banire, SAN, leading Ayomide Olanrewaju and Oluwadamilola Banire, placed reliance on the Counter Affidavit and the written address filed in support thereof in urging the Court to dismiss the application. He urged the Court to strike out the Further Affidavit filed by the Appellant/Applicant as it offends Order 6 Rule 1 of the Rules of this Court.
Mrs. J.R. Kuforiji informed the Court that she did not file any process on behalf of the 2nd Respondent.
In the written address filed on behalf of the Applicant, a sole issue was presented for determination, to wit;
Whether the Appellant/Applicant made out a case for the grant of the reliefs on the face of the application.
On the part of the 1st Respondent, a single issue was also formulated for determination, thus:
Whether, in the circumstances of this case, this application ought to be granted.
PRELIMINARY POINTS OF LAW.
I shall first and foremost attend to and resolve two preliminary points of law which were raised in the written address of the 1st Respondent.
As a preliminary point, the 1st Respondent took a swipe at the competence of the Affidavit in support of the application on the ground that it contains highly contentious matters of evidence for which the deponent, a Legal Practitioner, is liable to be called for cross-examination as a witness, and it runs contrary to Rule 20 (1) of the Rules of Professional Conduct for Legal Practitioners, 2023. In urging the Court to discountenance the Affidavit in support of the application for the reason stated supra, reliance was placed on the authorities of Akinlade vs. INEC (2020) 17 NWLR (Pt.1754)439 @ 457, Paras E-F; MT Marigold vs. NNPC (2022) 7 NWLR (Pt.1828)165 @ 196-197 Paras E-A.
Secondly, the 1st Respondent also challenged the competence of the instant application, on the ground that it constitutes an abuse of court process in that the Applicant was aware of the decision of this Court in a sister appeal wherein a similar Notice of Appeal was struck out for being incompetent. It was submitted for the 1st Respondent that:
“This Court has taken a position on the issue submitted and cannot be expected to summersault on the point in this application. Secondly, to get this court to deviate from its earlier position, an application to that effect for departure ought to be filed, same which is non-existent in this case. The implication of this is that the application is ab inito incompetent. Most importantly, the application is a sheer abuse of this court's process.”
On the above submission, reliance was placed on the cases of E.F.C.C. vs. House 184, Attahiru Bafarawa GRA Bauchi (2024) 3 NWLR (Pt. 1925) 251 @ 271 paras D-F; Uwemedimo vs. Mobil Prod. (Nig.) Unltd (2022) 2 NWLR (Pt. 1813) 53 at 85-86.
In response to the preliminary points, learned senior counsel submitted in the Reply on Points of Law that the cases cited by the 1st Respondent on the alleged invalidity of the Appellant’s Affidavit are no longer good law as the current position of the law is as stated by the Supreme Court in the recent case of Nwite vs. PDP (2023) 7 NWLR (Pt.1883) 357 @ 399. He argued that the Affidavit is competent as the issues raised therein are facts of legal proceedings and legal documents within the knowledge of counsel who deposed to it.
On the issue of abuse of court process, it was submitted that the Ruling of this Court in CA/LAG/CV884/2021 was not the product of any legal disputation and that for the said ruling to bind the Appellant as issue estoppel and result in abuse of court process, the issues canvassed in this application must have been distinctly raised and decided in the previous appeal of the 2nd Respondent, which was not the case; Fadiora vs.Gbadebo (1978) LPELR-1224 (SC); Udo vs. Obot (1989) 1 NWLR (Pt.95) 59 @ 79, were cited in support. Learned counsel also referred to Order 1 Rule 4 of the Court of Appeal, Rules, 2021 and submitted that the Notice of Appeal sought to be amended is as near thereto to the Form in the Rules of Court.
In resolving whether or not the Affidavit in support of the application, deposed to by Mary Ebong, a Legal Practitioner in the Law Firm of E.A. Pippa & Co., is competent or not, I will quote a long passage from the leading judgment of Garba, JSC, in Nwite vs. PDP & Ors (2022) LPELR-59192 (SC) @ pp. 30-33, which outrightly resolved the issue after reviewing the two authorities cited herein by the 1st Respondent. The passage goes thus:
"By way of a restatement of the law, generally, competence of a person to give evidence, parole or documentary by way of Affidavits and the admissibility of evidence are issues of hard and core law of evidence as codified in the Evidence Act, 2011. While Section 175 of the Act declares that all persons are competent witnesses to testify or give evidence in judicial proceedings of a Court of law, Section 109, for the purpose of this appeal, provides that an affidavit sworn to before any Judge, officer or other person duly authorized to take affidavits in Nigeria, may be used in the Court in all cases where affidavits are admissible. By the provisions of Sections 1, 2 and 3 of the Act, evidence of existence or non-existence of any fact declared to be relevant under the Court may be given and be admissible in accordance with the provisions of the Act. The community purport of the aforenamed provisions is that every person shall be competent to give evidence on a relevant fact/s, either orally or by way of affidavit/s and such evidence shall be admissible, in accordance with the provisions before a Court of law. Section 2 of the Act provides that:- "2. For the avoidance of doubt, all evidence given in accordance with Section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria be admissible in judicial proceedings to which this Act applies. Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act." In essence, these provisions say that any evidence, oral or documentary, on relevant fact/s given is admissible, unless excluded in accordance with the Act or any other Act/Law or legislation validly in force in Nigeria. Undoubtedly, the Rules of Professional conduct for Legal Practitioners, 2007 made pursuant to the Legal Practitioners Act, LFN, 2004, constitute any other law or legislation mentioned in the above provisions of Evidence Act. Rules 20 (1), (4) and (6) of the Rules prohibit a legal practitioner from being a witness for his client in a case in which he appears as counsel for such client, and once he realizes that he is to be a witness, he should excuse himself from the further conduct of the case, particularly where contentious issues are involved. Although the Rules do not render evidence given or deposed to by a legal practitioner in a client's case in which he appears as counsel, inadmissible in evidence in the proceedings of Court, they render such legal practitioner liable for unprofessional conduct in contravention of the Rules and other appropriate penalties to be imposed by the Court before which the contravention or breach occurs. This was what happened in the cases of Akinlade v. INEC (supra) and Owners, the MT "MARIGOLD" v. NNPC (supra) in both of which, Hon. Justice Eko, JSC in his contributions, discountenanced Affidavits deposed to by a legal practitioner who appeared as counsel for his client in the cases. The Affidavits deposed by counsel in these cases were not declared inadmissible in evidence under any provisions of the Evidence Act or any other legislation validly in force in Nigeria since both competence to give evidence or depose to an affidavit as well as admissibility of such evidence in proceedings before a Court of law are governed and regulated by the provisions of the Act."
By the above decision, the Affidavit of Mary Ebong in support of this application is competent, notwithstanding that it contains contentious matters. If there is any consequences at all under the Rules of Professional Conduct for Legal Practitioners, the consequences goes to the conduct of counsel and not to the competence of the Affidavit deposed to by her.
On whether this application is ungrantable as it amounts to abuse of court process, I wish to state that an abuse of court process is the use of the machinery of the court for illegal, malicious and vexatious purpose. Abuse of court process also applies to proceeding which is wanting in bonafide and is frivolous, annoying and oppressive to the opponent. See 7UP Bottling Company Ltd vs. Abiola & Sons Bottling Company Ltd (1996) 7 NWLR (Pt.) 714; Amaefuna vs. State (1998) 2 NWLR (Pt.775) 156; C.B.N. vs. Ahmed (2001) 5 SC (PT. II) 146.
In the case of Ukachukwu vs. PDP (2013) LPELR-21894 (SC) at page 19 of the Report, the Supreme court, Per Onnoghen, JSC, (as he then was) had this to say on the meaning and nature of abuse of court process:
“The concept of abuse of court process involves circumstances and situations of infinite variety though its common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. The abuse may lie both in proper and improper use of the judicial process in litigation though generally the term is used in relation to improper use of the judicial process to the annoyance, irritation, of the opponent and the effective and efficient administration of justice, such as institution of multiple actions on the same subject matter against the same opponent on the same issue. To institute an action during the pendency of another one claiming the same reliefs amounts to an abuse of court process and it does not matter whether the matter is an appeal or not, as long as the previous action has not been finally disposed of. It is the subsequent action that is in abuse of the process of court.”
The 1st Respondent has failed to show how this application was filed for illegal, malicious or vexatious purpose or that it constitutes multiplicity of proceedings. From Exhibit Net 2 annexed to the Counter Affidavit of the 1st Respondent, it is glaring that there was no application to strike out the 2nd Respondent’s Notice of Appeal from any of the parties in Appeal No. CA/LAG/CV/884/2021. Furthermore, no argument was canvassed by any of the parties on the issues raised in the instant application as to render the current application an abuse of the process of court. The decision that Notice ofAppeal No. CA/LAG/CV/884/2021 was incompetent was arrived at suo motu by this Court without the input of any of the parties. Therefore, none of the conditions/requirements/ingredients of abuse of court process is present in the instant application. This second preliminary point has also not been made out by the 1st Respondent.
DETERMINATION OF THE SUBSTANCE OF THE APPLICATION.
The issues respectively formulated by the Appellant and the 1st Respondent are not dissimilar. The issues are the same, though differently worded. I will therefore adopt the sole issue formulated by the Appellant in the determination of this application.
I have painstakingly gone through the opposing arguments of learned counsel for the Appellant/Applicant and the 1st Respondent. Paragraph 1 of the Appellant’s Notice of Appeal sought to be amended, filed on 16/11/2022, reads thus:
TAKE NOTICE that the Appellant being dissatisfied with the Ruling/Orders of Honourable Justice OGUNIOBI sitting at the High Court of Lagos delivered on the 9th day of November 2021 in Suit No. LD/10212LMW/2021 doth hereby Appeal to the Court of Appeal upon grounds set out in Paragraph 3 and will at the hearing of the Appeal seek reliefs set out in Paragraph 4…..
The 1st Respondent challenged the competence of the above-quoted Notice of Appeal by way of Notice of Motion praying for same to be struck out, along with a similar Notice of Appeal filed on 23/11/2021. The application was filed on 28/05/2024. Two days afterwards, the Appellant filed the instant application to amend the Notice of Appeal filed on 16/11/2021 by deleting the words “Honourable Justice Ogunjobi sitting at” occurring before “the High Court of Lagos”. The objection of the 1st Respondent to the grant of this application is that the Notice of Appeal sought to be amended is ex facie invalid and incompetent as it did not appeal against the decision of any competent court, but a Judge. Counsel for the 1st Respondent contended that the defect in the Notice of Appeal is fundamental and therefore incapable of being amended, citing Ogbuji vs. Amadi (2022) 5 NWLR (Pt.1822) 99 @ 155-156; L.G.C. Ltd vs. Stanbic IBTC Bank Plc (No.1) (2022) 14 NWLR (Pt.1851)505 @ 530. Reliance was also placed on the Ruling of this Court in Appeal No. CA/LAG/CV/884/2021, where a similar Notice of Appeal was struck out on 08/02/2024. Finally, counsel contended that the Amended Notice of Appeal filed on 30/05/2024 without obtaining the leave of Court is incompetent, relying, for this submission, on the cases of Ikweki vs. Ebele (2005) 11 NWLR (Pt.936)397 @ 423, paras G-H; Ammani vs. Balarabe (2022) 14 NWLR (Pt.1849) 165 @ 183 paras B-F.
Per contra, counsel for the Appellant/Applicant submitted that the Rules of this Court permits the Applicant to amend a Notice of Appeal that was filed within time. He referred to Order 7 Rule 8 of the Court of Appeal Rules, 2021 and the authorities of N.U.T., Taraba State vs. Habu (2018) 15 NWLR (Pt.1642) 381 @ 390 and Evbuomwan vs. Access Bank Plc (2022) LPELR-58852 (CA), to buttress his submission. On what constitute the essential components of a competent Notice of Appeal, counsel referred to Order 7 Rule 2 (1)(2)(3)(4) of the Court of Appeal Rules and submitted that the Appellants Notice of Appeal contains all the components of a valid Notice of Appeal and that the aspect sought to be deleted is merely a surplusage, which does not render it defective. It was counsel’s argument that the Court looks at the substance and not the form in granting an application for amendment, citing and relying on Umekwe & Anor vs. Tasie & Ors (2021) LPELR-55487 (CA); B.F.I. Group Corporation vs. B.P.E. (2012) LPELR-9339 (SC); Akinbisehin vs. Olajide (2018) LPELR-51172 (CA). The Appellant contended that when the Notice of Appeal is read as a whole, as the law is settled on that, it will be crystal clear that the appeal is against the decision of the High Court of Lagos State. In urging the Court to allow the amendment sought, counsel referred to the proviso to Order 7 Rule 6 of the Rules of this Court which allows a non-fundamental defect to be cured by amendment.
Nearly four decades ago, the Supreme Court of Nigeria gave a graphic picture of what an amendment is and why it is made in the case of Adekeye vs. Akin Olugbade (1987) LPELR -104 (SC) @ 14 where Oputa, JSC, stated:
“An amendment is nothing but the correction of an error committed in any process, pleading or proceeding at law or in equity and which is done either as of course or by the consent of parties or upon notice to the Court in which the proceeding is pending. The object of course is to decide the right of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights. There is no kind of mistake or error which if not fraudulent or intended to over-reach, the Courts cannot correct, if this can be done without injustice to the other party. Blunders may occur and nowadays they occur with disturbing regularity, but all the same the courts should not be stampeded into chasing the shadows of these blunders rather than facing the substance of the justice of the case”
This definition and aim of an amendment was cited and relied on in subsequent years in many decisions of both the Supreme Court and the Court of Appeal. See Bogban vs. Diwhre (2005) 16 NWLR (Pt. 951) 274; Ohwavborua vs. PDP (2013) LPELR -20872 (CA).
On the other hand, a Notice of Appeal is the initiating process of an appeal. It is the root, the foundation or fulcrum of any appeal. It is the Notice of Appeal that invokes and confers on the appellate Court the requisite jurisdiction to hear an appeal. This is trite. See Iwunze & Ors. vs. Okenwa & Anor (2015) LPELR-24905 (CA); Ndifon vs. The Commissioner of Police (2022) LPELR-58843 (SC); EFCC vs. Okoh (2021) LPELR-54855 (CA); Raji vs. UNILORIN & Ors (2018) LPELR-44692 (SC). Where a Notice of Appeal is fundamentally and incurably defective, the appeal would be considered incompetent. Being the foundation and substratum of an appeal, a fundamental defect in the Notice of Appeal will render the whole appeal incompetent and rob the Court of jurisdiction to entertain it. See Jerry Ikuepenikan vs. The State (2015) LPELR-24611 (SC); Owners of the MT Marigold vs. NNPC & Anor (2022) LPELR56858 (SC). The question is; what amounts to a defective Notice of Appeal that cannot be amended? Before attempting to proffer an answer to this question, it is apt to state that by the Rules of this Court, amendment to a Notice of Appeal is allowed. Order 7 Rule 8 of the Court of Appeal Rules, 2021 allows for the amendment of a Notice of Appeal at any time with the leave of Court. The right of an Appellant to amend a Notice of Appeal and the power of this Court to allow such amendment is further reinforced by the proviso to Order 7 Rule 6, which provides:
The Court shall have the power to strike out a Notice of Appeal when an appeal is not competent or for any other sufficient reason. Provided that where the incompetence is not a fundamental defect, the Court may direct a party to rectify any defect in the Notice of Appeal and limited the time within which the defect shall be rectified.
The implication of this provision is that a defect in the Notice of Appeal that did not go to the root, the foundation or the essential component of the Notice of Appeal, is amendable.
Now, Section 240 of the Constitution of the Federal Republic of Nigeria, 1999, as altered, conferred exclusive jurisdiction on the Court of Appeal to hear appeals from the decisions of the Federal and State High Courts, etc. This means that an appeal to this Court must be an appeal against the decision of the Courts mentioned in Section 240 of the Constitution and not an appeal against the decision of a particular Judge. That is the crux of the 1st Respondent’s opposition to the grant of this application. At the risk of repetition, the Notice of Appeal filed on 16/11/2021 reads: “TAKE NOTICE that the Appellant being dissatisfied with the Ruling/Orders of Honourable Justice OGUNIOBI sitting at the High Court of Lagos delivered on the 9th day of November 2021 in Suit No. LD/10212LMW/2021 doth hereby Appeal to the Court of Appeal upon grounds set out in Paragraph 3 and will at the hearing of the Appeal seek reliefs set out in Paragraph 4…..” The 1st Respondent contended that the Notice of Appeal is against the decision of “Honourable Justice Ogunjobi’’ and not the decision of “the High Court of Lagos State” as constitutionally required, and for that reason the Notice of Appeal is invalid, and therefore is incapable of being amended. I agree with the submission made on behalf of the Appellant that in construing a legal document, the whole of the document shall be read together and not just a portion of it. From the reading of the 1st paragraph of the Notice of Appeal, it is apparent that the appeal was filed against the decision of the High Court of Lagos State presided over by Honourable Justice Ogunjobi. The addition of the name of the Judge that handed down the decision from the High Court of Lagos State is merely an irregularity that can be cured by the removal of that name, which is what the instant application sought to achieve. The addition of the name of the Judge does not amount to a fundamental error which will lead to the striking out of the Notice of Appeal as provided by Order 7 Rule 6 of the Rules of this Court, rather, the addition of the name of the Judge falls squarely within the proviso to Order 7 Rule 6. This is especially so as all the essential components of a valid Notice of Appeal as spelt out in Order 7 Rule 2 (1)(2)(3)(4) of the Court of Appeal Rules are in existence in the Notice of Appeal sought to be amended, i.e., the names of the parties directly affected by the appeal, the decision appealed against, the grounds of appeal, the reliefs sought and the signature of the Appellant or that of his counsel, are all apparent on the Notice of Appeal sought to be amended. The amendment sought is limited to removing the name of the Judge without any addition at all. I hold the candid judicial opinion that the addition of the name of a Judge to a Notice of Appeal does not ipso facto render such Notice of Appeal fundamentally defective in so far as the name of the Court from which the decision was made is also clearly stated in the said Notice of Appeal. This is exactly the situation in the instant application. I hold that the defect in the Notice of Appeal filed on 16/11/2021 is a mere irregularity that can be cured by amendment to remove the name of the Judge.
This would have been the end of this ruling, but there is yet another huddle. In Appeal No. CA/LAG/CV/884/2021, between Abah Onah vs. Net Construct Ltd & Anor, a Notice of Appeal couched in the same manner with the one, subject of this application, was struck out by this Court on 08/02/2024 for incompetence. That Ruling, striking out the Notice of Appeal in CA/LAG/CV/884/2021, is the trump card of the 1st Respondent in this application and also in its own application seeking to strike out the Notice of Appeal initiating the instant appeal. Exhibit Net 2 annexed to the Counter Affidavit of the 1st Respondent is the certified true copy of the proceedings and Ruling of this Court headed 08/02/2023 but signed on 08/02/2024 striking out Notice of Appeal No. CA/LAG/CV/884/2021, filed on 24/11/2021, and it is apposite to reproduce it hereunder:
“IN THE COURT OF APPEAL
LAGOS JUDICIAI. DIVISION
HOLDEN AT LAGOS
ON THURSDAY, THE 8TH DAY OF FEBRUARY, 2023
BEFORE THEIR LORDSHIPS:
HON. JUSTICE 0.0. DANIEL-KALIO JUSTICE, COURT OF APPEAL
HON. JUSTICE J.O.K OYEWOLE JUSTICE, COURT OF APPEAL
HON. JUSTICE I.A. ANDENYANGTSO JUSTICE, COURT OF APPEAL
CA/LAG/CV/884/2021
BETWEEN:
ABAH ONAH ESQ ------------ APPELLANT
AND
NET CONSTRUCT NIG. LTD & ANR ------------- RESPONDENTS
Parties absent
Appearance. Ejetareme Otuoniyo appears with J.R. Kuforiji for the Appellant.
Dr. Muiz Banire, SAN appears for the 1st Respondent with Ayomide
Olanrewaju, Abraham Adepitan.
M.A. Ebong appears for the 2nd Respondent.
OTUONNIYO Seek to withdraw motion filed on 6/4/2022 for accelerated hearing.
Motion filed on 9/9/22 for stay of further proceedings and motion filed on 29/3/2023 for an injunction:
BANIRE, SAN Does not object but ask for costs of N100,000.
EBONG Does not object
COURT Motion filed on 6/4/22 for accelerated hearing, motion filed on 9/9/2022 for stay of proceedings and 29/3/2023 for injunction are all struck out.
OTUONNIYO There is a notice of appeal filed on 24/11/21.
COURT The Notice of Appeal filed on 24/11/21 ex-facie is incompetent on it Indicate decision against the ruling/orders of Hon. Justice Ogunjobi. It should be against the decision or the High court. The Notice of Appeal is incompetent and is struck out.
SGD
HON. JUSTICE O. DANIEL-KALIO
JUSTICE, COURT OF APPEAL
LAGOS DIVISION
8/2/2024”
From the above-quoted record of proceedings and ruling of this Court, one can easily discern several distinguishing factors between that case and the instant application.
In view of the above-listed distinguishing factors between the Ruling in Exhibit Net 2 annexed to the Counter Affidavit of the 1st Respondent and the current application, the justice of this case is for this Court not to follow its previous bench ruling in Appeal No. CA/LAG/CV/884/2021, and I so hold. Consequently, having held earlier in this Ruling that the defect in the Notice of Appeal filed on 16/11/2021 is a mere irregularity that can be cured by amendment to remove the name of the Judge, I further hold that this application is imbued with merit and is accordingly granted in terms of prayers 1 and 2 on the motion paper. which are reproduced at the commencement of. this Ruling.
No order is made as to cost.
RULING ON THE APPLICATION FILED BY THE 1ST RESPONDENT.
In the Notice of Motion filed by the 1st Respondent on 28/05/2024, the Applicant prayed the Court for an order striking out the two Notices of Appeal dated 16/11/2021 and 23/11/2021 respectively, on the ground that same were incompetent as the appeal in the two Notices of Appeal are against the decision of Honourable Justice Ogunjobi, not against the decision of any High Court, as constitutionally required.
The arguments canvassed in this application are similar to the arguments canvassed in the application of the Appellant that had just been ruled upon, supra. For the many reasons advanced in the Ruling on the Application of the Appellant for amendment of the Notice of Appeal filed on 16/11/2021, the current application of the 1st Respondent cannot be granted. It is hereby refused and dismissed, save with respect to the Notice of Appeal filed on 23/11/2021, for which no application for amendment was filed in respect thereof by the Appellant. The said Notice of Appeal filed on 23/11/2021 which was not amended and which appeared to have been abandoned by the Appellant, is hereby struck out.
No order is made as to cost.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF VAPPEAL
APPEARANCES:
Robert Emukpoeruo, SAN, with O.O. Olusiyi, Ifeoluwa Ojediran and E.A. Pippa for the Appellant/Applicant/Respondent.
Muiz Banire, SAN, with Ayomide Olanrewaju and Oluwadamilola Banire for the 1st Respondent/Applicant.
Mrs. J.R. Kuforiji for the 2nd Respondent.
