FAJEBE & ANOR v. OPANUGA

CITATION: (2019) LPELR-46348(SC)

In the Supreme Court of Nigeria

ON FRIDAY, 11TH JANUARY, 2019Suit No: SC.130/2010

Before Their Lordships:

OLABODE RHODES-VIVOUR Justice of the Supreme CourtMARY UKAEGO PETER-ODILI Justice of the Supreme CourtKUMAI BAYANG AKA'AHS Justice of the Supreme CourtJOHN INYANG OKORO Justice of the Supreme CourtAMIRU SANUSI Justice of the Supreme Court

Between1. AFOLABI FAJEBE(Substituted for his father, Alfred Olaiya Fajebe(deceased) by Order of Court dated 28/1/2013)2. MOPELOLA FAJEBE(Substituted for her mother, Madam Ade Oyegunle(deceased) by Order of Court dated 28/1/2013

- Appellant(s)

AndISAAC ADEBAYO OPANUGA(Substituted for his father Michael Opanuga(deceased) by Order of Court dated 4/2/2003

- Respondent(s)

RATIO DECIDENDI

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1. APPEAL - ISSUE(S) FOR DETERMINATION: Effect of an issuefor determination not arising or relating to any ground of appeal"In this appeal. the respondent neither filed a cross-appeal nor arespondent's notice. It is therefore not permissible for him toraise an issue not predicated on the ground of appeal filed bythe appellants. See: Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104)373; Adhekegba v. Minister of Defence (2013) 17 NWLR (Pt.1382) 126. Any issues which are not connected or related to thegrounds of appeal are irrelevant, go to no issue and thearguments thereon should be discountenanced by this Court.See: Shitta-Bey v. A-G Federation (1998) 10 NWLR (Pt. 570) 392;Amadi v. N.N.P.C (2000)10 NWLR (Pt. 674) 76; Ibator v. Barakuro(2007) 9 NWLR (Pt. 1040) 475.The ground of appeal from which the issue was formulated readthus:-The learned Justices of the Court of Appeal erred in law whenthey dismissed the appeal of the appellant.PARTICULARS OF ERROR(a) The decision to dismiss the appeal of the appellant wasbased on issues of technicality(b) The Court of Appeal did not appraise itself properly with thesuit and therefore arrived at a wrong decision to dismiss theappellant's appeal(c) The exercise of the Court of Appeal of its inherent jurisdictionwas not carried out justiciably.(d) There was no proper application before the Court of Appealon which the decision to dismiss could have been premised.It is the first issue in the respondent's brief that bears relevanceto the complaint laid out in the ground of appeal. The other twoissues cannot be said to relate to the ground and so thearguments in those issues have to be discountenanced."PerAKA'AHS, J.S.C. (Pp. 4-5, Paras. B-D) - read in context

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2. APPEAL - NOTICE(S) OF APPEAL: Whether a notice of appealcan be amended at anytime"...Granted that the respondent had filed a motion dated 8thJune, 2006 praying the lower Court to strike out the appeal whichpreceded the appellants' motion of 11th January, 2008, thenormal practice of the Court of Appeal is to hear the applicationwhich seeks to preserve the appeal rather than take the motionto strike out the appeal. And in considering the application toamend the Notice of Appeal, the Court should examine theoriginal grounds of appeal to see if there is a ground that wouldsustain the appeal. Once a notice of appeal is valid, it can beamended at any time before the appeal is heard. Suchamendment should not be made to overreach the respondent,but only to serve the ends of justice and ensure that thecomplaints of the appellant against the judgement appealedagainst are laid and ventilated before the Court. See: Okpala v.Ibeme (1989) 2 NWLR (Pt. 102) 208; Adelaja v. Alade (1994) 7NWLR (Pt.35) 537; Pharmatek Ind. Projects Ltd v. Ojo (1996) 1NWLR (Pt. 424) 332 and F.B.N Plc v. May Medical Clinics &Diagnostic Centre Ltd (2001) 9 NWLR (Pt. 717) 28.No reason whatsoever was given by the lower Court in its refusalto allow the appellants to amend the notice appeal. The reasonfor the refusal to grant the application was as to the filing of theappellants' brief which was not filed for a period of four yearsafter the appeal had been entered. The refusal should affect onlyprayer 4 in the motion. Even if the appellants had filed their briefof argument, they were entitled to amend the brief toaccommodate the ground for which the notice of appeal wasbeing amended and since they had not filed the appellants' briefthey were entitled to an extension of time to file the appellants'brief after filing the amended notice of appeal. There was nojustifiable reason for refusing the application in its entirety andfurther dismissing the appeal."Per AKA'AHS, J.S.C. (Pp. 12-13,Paras. A-E) - read in context

3. APPEAL - NOTICE(S) OF APPEAL: Whether a notice of appealcan be amended at anytime"...the position of the Law as correctly stated by my learnedbrother is that once a notice of appeal is valid, it can beamended at any time before hearing as long as suchamendment is not intended to overreach the respondent."PerOKORO, J.S.C. (P. 21, Paras. C-D) - read in context

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4. JUSTICE - TECHNICAL JUSTICE: Attitude of Court to technicaljustice"It is trite that our Courts have moved away from the realm oftechnicalities to substantial justice. This Court in a plethora ofdecisions has held that matters should rather be determined ontheir merits and not on technicalities. See Amaechi v. INEC(No.3) (2007) 18 NWLR (Pt. 1065): Balonwu v. Obi (2007) 5NWLR) (Pt. 1028) 488 at 542."Per OKORO, J.S.C. (Pp. 20-21,Paras. E-A) - read in context

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5. P R A C T I C E A N D P R O C E D U R E - M I S T A K E O FCOUNSEL/COURT/REGISTRY: Attitude of Court towardsmistake of counsel"The appellants' stand in initiating this appeal is based on thefact that they were denied the right to fair hearing as the Courtbelow did not exercise discretion judiciously by considering thecircumstances of the matter but rather based their decision ontechnicalities to the detriment of substantial justice.The contrary position of the respondent is that the application ofthe respondent dated 8th June 2006 for an order of Court belowdismissing the appeal was earlier in time to that of theappellants of 11th January, 2008 for extension of time withinwhich to file appellants' brief of argument and that the ill healthof the appellants' counsel put forward as excuse for the delaywas a ruse which the Court should discountenance.The crux of the matter is based on the appellants positing intheir affidavit in support of the application for extension of timeto file the brief of argument was due to the ill-health of theircounsel which assertion was not controverted. This solidundisputed fact taken within the backdrop of the stance of theCourt including the Supreme Court that the fault of counsel, be itblunder, inadvertence of mistake cannot be an obstacle to ahapless litigant in such a way as to deny him the right toventilate or defend his case. The reason is because the Court hasmoved away from the realm of technicalities but stands forsubstantial justice which will enable the Court allow the trashingout of all parts of the case and a decision either way made. It istrue that each posited mistake or inadvertence of counsel on theface would not without more guarantee a favourableconsideration of the application but when viewed withincircumstances, exculpating in content then the judicial andjudicious tackling by the Court is to bend favourably for theapplicants and that is the situation in the case at hand. SeeOkafor v Bendel Newspaper Corporation (1991) 7 NWLR (Pt.206)651 at 666; Collins v Vestry of Paddington (1880) 5 QBD 380 at381; Adeleke v Awoliyi & Ors (1962) 1 SCNLR 401; Ekpenyong &Ors v Nyong & Ors (2003) 51 WRN 44; Kalio & Ors v Daniel Kalio(1975) 2 SC 15."Per PETER-ODILI, J.S.C. (Pp. 17-19, Paras. E-E) -read in context

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KUMAI BAYANG AKA'AHS, J.S.C. (Delivering the

Leading Judgment): On 16th January, 2008, the Court of

Appeal, Lagos (coram: Ogunbiyi and Galinje JJCA as they

were then) and Mshelia JCA heard a motion filed 11

January, 2003 by the appellants applicants seeking the

following reliefs:-

1. Granting the applicants leave to amend the notice

of Appeal dated the 26th day of March, 2001 in the

terms of Exhibit HO1 attached.

2. Granting the applicants leave of this Honourable

Court to raise a new issue in this appeal as

formulated in Ground 2 of the Proposed Amended

Notice of Appeal and issues 3 and 4 under the issues

for determination of the Brief of Arguments filed and

served.

3. Granting the applicants leave of this Honourable

Court to file additional grounds of appeal.

4. Extending the time limited by the rules within

which to file the Applicants’ Brief of Argument.

5. Deeming the Amended Notice of Appeal filed and

served by the applicants as having been properly filed

and served.

6. Deeming the additional ground of appeal filed as

having been properly filed.

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Ruling on the application, the Court held:-

"It is apparent also to mention that the applicant in

his submission admits that the record of this appeal

was transmitted to this Court in the year 2004. To be

precise, same was on the 12th May, 2004 as per the

evidence available to the Court. The appeal was

therefore deemed to have been entered on that date.

The rules of Court make it mandatory on the

appellant to file his brief of arguments within 60 days

of entering the appeal. The motion at hand was filed

on 11th January, 2008 and which is almost four years

of entering the appeal. As rightly submitted and

argued by the learned respondent's counsel the

application sought for in prayers 1- 4 with prayer 2

being incompetent while 1, 3 and 4 are hereby

refused. The appeal under the inherent powers of this

Court is also dismissed……………." (See Vol. 2 pages

788-789 of the records).

Being aggrieved with the said ruling, the appellants

appealed against same in their Notice of Appeal dated 23rd

January, 2008 and formulated the following issues for

determination in the appellant's brief deemed filed on

17/10/2018:-

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"Whether considering all the facts and circumstances

of this case, the learned Justice (sic) of the Court of

Appeal were right to have dismissed the appeal of the

appellants, for failure to file their brief of argument

within time in the light of the unassailable and

uncontroverted facts stated in the affidavit in support

of the appellants' motion prayer inter alia for an

order extending the time to file the said brief and

which delay was attributed to ill-health and

inadvertence of counsel coupled with the untardiness

of the Registry of the Court of Appeal in making

available the necessary documents on demand".

In the respondent's brief which was also deemed filed on

17/10/2018, three issues were submitted for our

consideration namely:-

1. Whether or not it is true that there was no

application for the dismissal of the appellants' appeal

before the application for extension of time within

which to file their brief of argument was dismissed.

2. Whether the appellants have succeeded in

establishing that their counsel was bedridden or that

his ill-health was responsible for the delay in filing

their brief of argument for about 4 years after

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the appeal had been entered on 12th May, 2004.

3. Whether the appellants have substantiated

(a) The alleged inadvertence on the part of their

counsel.

(b) The alleged untardiness of the Registry in making

the necessary documents available.

(c) The alleged technicalities referred to.

In this appeal. the respondent neither filed a cross-appeal

nor a respondent's notice. It is therefore not permissible for

him to raise an issue not predicated on the ground of

appeal filed by the appellants. See: Nzekwu v. Nzekwu

(1989) 2 NWLR (Pt. 104) 373; Adhekegba v. Minister

of Defence (2013) 17 NWLR (Pt. 1382) 126. Any issues

which are not connected or related to the grounds of

appeal are irrelevant, go to no issue and the arguments

thereon should be discountenanced by this Court. See:

Shitta-Bey v. A-G Federation (1998) 10 NWLR (Pt.

570) 392; Amadi v. N.N.P.C (2000)10 NWLR (Pt. 674)

76; Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475.

The ground of appeal from which the issue was formulated

read thus:-

The learned Justices of the Court of Appeal erred in law

when they dismissed the appeal of the appellant.

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PARTICULARS OF ERROR

(a) The decision to dismiss the appeal of the appellant

was based on issues of technicality

(b) The Court of Appeal did not appraise itself

properly with the suit and therefore arrived at a

wrong decision to dismiss the appellant's appeal

(c) The exercise of the Court of Appeal of its inherent

jurisdiction was not carried out justiciably.

(d) There was no proper application before the Court

of Appeal on which the decision to dismiss could have

been premised.

It is the first issue in the respondent's brief that bears

relevance to the complaint laid out in the ground of appeal.

The other two issues cannot be said to relate to the ground

and so the arguments in those issues have to be

discountenanced.

Learned counsel in arguing the appeal referred to the

affidavit in support of the motion seeking leave to amend

the Notice of Appeal which was supported with an affidavit.

In the said motion the appellants prayed for an order

extending the time within which to file the appellants' brief.

In the supporting affidavit to the application, the deponent

explained the cause of the delay in filing the brief within

the

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time allowed by the rules. Apart from the ill health of the

counsel the delay was also attributed to inadvertence of

counsel coupled with the untardiness at the Court's

Registry in making available the documents needed for the

appeal. Despite these averments no counter-affidavit was

filed by the respondents but the Court below proceeded to

dismiss the appeal on the ground that the appellants failed

to file their brief of argument within time. Learned counsel

submitted that the Courts are not in the habit of visiting the

fault of counsel on an innocent litigant relying onOkafor v.

Bendel Newspaper Corporation (1991) 7 NWLR (Pt.

206) 651 at 666 where Nnaemeka-Agu JSC stated :-

''But it has been recognized by our system of

administration of justice that mistakes or even

blunder of counsel may occur from time to time; but

it is wrong to deny a litigant the right to have his case

decided on the merits because of the blunder,

mistake or negligence of his counsel. See: Collins v.

Vestry of Paddington (1880) 5 Q.B.D 380 at 381;

Adeleke v. Awoliyi & Ors (1962) 1 SCNLR 401".

He further contended that since the matter was not

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determined on its merits but on technicalities and the

Courts now lean towards doing substantial justice, the

appeal should be allowed to enable the lower Court decide

the appeal on the merits.

Learned counsel for the respondent referred to Order 17

Rule 2 of the Court of Appeal Rules which allows the

appellant 45 days to file his brief of argument upon the

receipt of the record of Appeal. He argued that despite the

notice (Exhibit A) served on them by the Registrar of the

lower Court wherein it was stated that the Record of

Appeal was transmitted to the Court of Appeal on 12 May,

2004 which required them to file the appellant's brief

within 60 days or 45 days whichever was applicable to

them, the appellants failed to file the brief of argument.

This led the respondent to file an application on 8 June,

2006 praying for an order to strike out the appeal dated 26

March, 2001. This application which was served on the

appellants preceded the appellants' motion seeking for

extension of time to file the appellant's brief. When

learned counsel for the respondent was replying to the

submissions of appellants' counsel for extension of time to

file the appellants' brief he drew the attention

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of the court to learned counsel's admission that the appeal

was entered in 2004 and it was based on this that he urged

the Court to dismiss the appeal; so the appellants are

estopped from denying the existence of those facts. He

therefore urged this Court to dismiss the appeal for lack of

merit.

The proceedings leading to this appeal are to be found on

pages 788-789 Vol. II of the Record of Appeal. They were

held on 16 January, 2008 and I reproduce them as follows:-

"IN THE COURT OF APPEAL

HOLDEN AT LAGOS

ON WEDNESDAY, THE 16TH DAY OF JANUARY, 2008

BEFORE THEIR LORDSHIPS:-

HON. JUSTICE C. B. OGUNBIYI JUSTICE, COURT

OF APPEAL

HON. JUSTICE P. A. GALINJE JUSTICE, COURT OF

APPEAL

HON. JUSTICE A. G. MSHELIA JUSTICE, COURT OF

APPEAL

CA/L/210/04

ALFRED OLAIYA FAJEBE & OTHERS

V

ISAAC ADEBAYO OPANUGA

Appearance : - O lay inka Sunmola for the

Appellant/Applicant

Chief Akin Ojo for the Respondent.

Mr. Sunmola: I agree that the appeal was entered in

this

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Court on 12th May, 2004. We were unable to file our

brief because the Counsel handling the matter had

been bed ridden on and off since 2004. I am urging

the Court to allow the motion for leave to amend the

notice of appeal. We have filed our brief though out of

time and is (sic) urging the Court to extend the time

to file. I will apply to withdraw the motion filed 13th

November, 2006. The motion is dated 11th January,

2008 and filed the same day. It is supported by an

eight paragraphs affidavit. We rely on all. We are

asking for seven prayers. I will limit my prayers to 1-4

and withdrawing 5-7 of same. The grounds for the

application are limited to that stated in the affidavit.

The application is not sought to overreach the

respondent. It is pertinent to note that there is no

counter affidavit to this application. I urge the Court

to grant the prayers I sought.

Chief Ojo:- If the appeal was entered 2004, I would

urge the Court to dismiss the entire appeal which had

not been filed. There is no question of amending the

Notice of Appeal which bear no useful purpose. The

appellant's counsel himself had alluded to this fact of

entering the

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appeal in 2004. I would urge that the appeal be

dismissed so also should the application.

Court:- The learned applicants' counsel applied to

withdraw the motion filed 13th November, 2006.

Same is according struck out. On the merit of the

application on Notice dated 11th January, 2008 and

filed the same day, the application is seeking for a

number of prayers inclusive of leave to amend the

Notice of Appeal dated 26th March, 2004. It is

apparent also to mention that the applicant in his

submission admits that the record of this appeal was

transmitted to this Court in the year 2004. To be

precise, same was on the 12th May, 2004 as per the

evidence available to the Court. The appeal was

therefore deemed to have been entered on that date.

The rules of Court make it mandatory on the

appellant to file his brief of arguments within 60 days

of entering the appeal. The motion at hand was filed

11th January, 2008 and which is almost four years of

entering the appeal. As rightly submitted and argued

by learned respondent's counsel the application

sought for in respect of prayers 1-4 with prayer 2

being incompetent while 1, 3 and 4 are hereby

refused. The appeal under the inherent

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powers of this Court is also dismissed with costs

awarded in favour of the respondents in the sum of

N30, 000. 00. Prayers 5-7 are withdrawn and struck

out. Appeal is dismissed with N30,000.00 costs to the

Respondent.

I agree Signed I agree

Signed C. B. Ogunbiyi Signed

P. A. Galinje JCA A. G. Mshelia

JCA JCA

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Granted that the respondent had filed a motion dated 8th

June, 2006 praying the lower Court to strike out the appeal

which preceded the appellants' motion of 11th January,

2008, the normal practice of the Court of Appeal is to hear

the application which seeks to preserve the appeal rather

than take the motion to strike out the appeal. And in

considering the application to amend the Notice of Appeal,

the Court should examine the original grounds of appeal to

see if there is a ground that would sustain the appeal. Once

a notice of appeal is valid, it can be amended at any time

before the appeal is heard. Such amendment should not be

made to overreach the respondent, but only to serve the

ends of justice and ensure that the complaints of the

appellant against the judgement appealed against are laid

and ventilated before the Court. See: Okpala v. Ibeme

(1989) 2 NWLR (Pt. 102) 208; Adelaja v. Alade

(1994) 7 NWLR (Pt.358) 537; Pharmatek Ind. Projects

Ltd v. Ojo (1996) 1

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NWLR (Pt. 424) 332 and F.B.N Plc v. May Medical

Clinics & Diagnostic Centre Ltd (2001) 9 NWLR (Pt.

717) 28.

No reason whatsoever was given by the lower Court in its

refusal to allow the appellants to amend the notice appeal.

The reason for the refusal to grant the application was as to

the filing of the appellants' brief which was not filed for a

period of four years after the appeal had been entered. The

refusal should affect only prayer 4 in the motion. Even if

the appellants had filed their brief of argument, they were

entitled to amend the brief to accommodate the ground for

which the notice of appeal was being amended and since

they had not filed the appellants' brief they were entitled to

an extension of time to file the appellants' brief after filing

the amended notice of appeal. There was no justifiable

reason for refusing the application in its entirety and

further dismissing the appeal.

The appeal has merit and it is hereby allowed. The decision

delivered by the Court of Appeal, Lagos on 16th January,

2008 in Appeal No. CA/L/210/2004 and dismissing the

appeal are hereby set aside. Because of the age of the case,

the said motion is granted in terms of prayers 1,2, 3

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and 4 of the motion filed on 11 January, 2008.

1. Leave to amend the Notice of Appeal dated the

26th of March, 2001 in the terms of Exhibit 'HO1'

attached is granted.

2. Leave is granted the appellants to raise a new issue

in the appeal as formulated in ground 2 of the

Proposed Notice of Appeal.

3. Leave is granted the appellants to file additional

grounds of appeal

4. The appellants are granted 30 days from today to

file the Amended Notice of Appeal together with the

appellants' brief.

No order on-costs-is-made.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the

privilege of reading in draft the leading judgment just

delivered by my learned brother Akaahs, JSC.

I am in agreement with the reasoning and conclusions.

There is merit in appeal. I agree with all the prayers

granted.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with

the judgment just delivered by Kumai Bayang Akaahs JSC

and to underscore my support for the reasonings from

which the decision came, I shall make some comments.

This appeal stemmed from the judgment of the Court of

Appeal or Lower court or Court below of the Lagos

Division, Coram: Clara Bata Ogunbiyi, Paul Adamu Galinje

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JJCA (as they then were) and A. G. Mishellia JCA which

dismissed the appeal of the appellants on refusing the

Motion on Notice

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seeking extension of time within which to file applicant's

brief of argument.

On the 16th October, 2018 date of hearing, learned counsel

for the appellants, Ite Thomas Adantem Esq. adopted the

brief of argument of the appellants filed on 15/10/18 and

deemed filed on 16/10/18. In it was distilled a sole issue for

determination, viz:-

Whether considering all the facts and circumstances

of this case, the learned Justices of the Court of

Appeal were right to have dismissed the appeal of the

appellants, for failure to file their brief of argument

within time in the light of unassailable and

uncontroverted facts stated in the affidavit in support

of the appellants' motion prayer inter alia for an

order extending the time to file the said brief and

which delay was attributed to ill-health and

inadvertence of making available the necessary

documents on demands.

Babajide V. Ojo, learned counsel for the respondent

adopted the brief of argument filed on 30/1/13 and deemed

filed on 16/10/18 and in there were formulated three issues

for determination as follows:-

1. Whether or not it is true that there was no

application for the dismissal of the appellants appeal

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before the appellants application for extension of

time within which to file their Brief of Argument was

dismissed.

2. Whether the appellants have succeeded in

establishing that their counsel was bedridden or that

his ill-health was responsible for the delay in filing

their brief of argument for about 4 years after the

appeal had been entered on 12 May, 2004.

3. Whether the appellants have substantiated;

a) The alleged inadvertence on the part of their

counsel.

b) The alleged untradiness of the Registry in making

the necessary documents available.

c) The alleged technicalities referred to.

I shall reframe the single issue of the appellant to be thus:

Whether the Court of Appeal Justices were right to

have dismissed the appeal of the appellants for failure

to file their brief of argument within time.

Learned counsel for the appellants submitted that it is trite

that the Courts do not form the habit of visiting the fault of

counsel on an innocent litigant and it was the inadvertence

of counsel that created the failure of the applicant to file

the application within time. That it is not in the interest of

justice

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in the circumstance to deny the appellants the right to be

heard when he was not at fault. He cited Okafor v Bendel

Newspaper Corporation (1991) 7 NWLR (Pt.206) 651

at 660; Collins v Vestry of Paddington (1880) 5 WBD

380 at 381; Adeleke v Awoliyi & Ors (1962) 1 SCNLR

401 etc.

Learned counsel for the respondent contended that it is not

correct as put forward by the appellants that the Court in

d i s m i s s i n g t h e m o t i o n o f t h e m o t i o n o f t h e

appellants/applicants did so without the appellants so

requesting from the Court as borne out on the record. He

cited Yoye v Olubode (1974) 10 SC 209 at 223; Iga v

Amakiri (1976) 11 SC 1 at 12 - 13.

That the appellants' solicitors are a firm of solicitors and so

they cannot be heard to say that the ill health of one of

them was responsible for the delay in filing the brief of

argument on behalf of their client for a period of four (4)

years.

The appellants' stand in initiating this appeal is based on

the fact that they were denied the right to fair hearing as

the Court below did not exercise discretion judiciously by

considering the circumstances of the matter but rather

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based their decision on technicalities to the detriment of

substantial justice.

The contrary position of the respondent is that the

application of the respondent dated 8th June 2006 for an

order of Court below dismissing the appeal was earlier in

time to that of the appellants of 11th January, 2008 for

extension of time within which to file appellants' brief of

argument and that the ill health of the appellants' counsel

put forward as excuse for the delay was a ruse which the

Court should discountenance.

The crux of the matter is based on the appellants positing

in their affidavit in support of the application for extension

of time to file the brief of argument was due to the ill-

health of their counsel which assertion was not

controverted. This solid undisputed fact taken within the

backdrop of the stance of the Court including the Supreme

Court that the fault of counsel, be it blunder, inadvertence

of mistake cannot be an obstacle to a hapless litigant in

such a way as to deny him the right to ventilate or defend

his case. The reason is because the Court has moved away

from the realm of technicalities but stands for substantial

justice which will

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enable the Court allow the trashing out of all parts of the

case and a decision either way made. It is true that each

posited mistake or inadvertence of counsel on the face

would not without more guarantee a favourable

consideration of the application but when viewed within

circumstances, exculpating in content then the judicial and

judicious tackling by the Court is to bend favourably for the

applicants and that is the situation in the case at hand. See

Okafor v Bendel Newspaper Corporation (1991) 7

NWLR (Pt.206) 651 at 666; Collins v Vestry of

Paddington (1880) 5 QBD 380 at 381; Adeleke v

Awoliyi & Ors (1962) 1 SCNLR 401; Ekpenyong & Ors

v Nyong & Ors (2003) 51 WRN 44; Kalio & Ors v

Daniel Kalio (1975) 2 SC 15.

From the foregoing and the better reasoned lead judgment

I am satisfied that the appeal is meritorious and I allow it.

I abide by the consequential orders made.

Appeal Allowed.

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JOHN INYANG OKORO, J.S.C.: I have read in draft the

lead judgment just delivered by my learned brother,

Akaahs, JSC, and I totally agree with him that this appeal

has merit and should be allowed by this Court. In support

of the lead judgment, I propose to make the following

comments.

This is an appeal from the decision of the Court of Appeal,

Lagos dated 16th January, 2008. The Court below, while

entertaining the Appellant's application filed on 11th

January, 2008 seeking inter alia, leave to amend the Notice

of Appeal dated March 26, 2004, dismissed the entire

Appellant's appeal on the ground that the motion filed on

11th January, 2008 was almost four years after entering the

appeal. The Court below went further to award N30,

000.00 costs to the Respondent.

It is trite that our Courts have moved away from the realm

of technicalities to substantial justice. This Court in a

plethora of decisions has held that matters should rather be

determined on their merits and not on technicalities. See

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Amaechi v. INEC (No.3) (2007) 18 NWLR (Pt. 1065):

Balonwu v. Obi (2007) 5 NWLR) (Pt. 1028) 488 at

542.

In this case, the court below did not give any reason for

refusing to allow the appellants to amend the notice of

appeal. The appeal was dismissed, not on the merit. I agree

with the Appellant's Counsel that, what the court below

could have done, in extreme term, could have been to

dismiss the Motion on Notice filed on 11th January, 2008

and not the Appeal itself.

Again, the position of the Law as correctly stated by my

learned brother is that once a notice of appeal is valid, it

can be

amended at any time before hearing as long as such

amendment is not intended to overreach the respondent.

The learned justices of the Court below have not stated

their reason for refusing to allow the amendment sought by

the Applicant and the reason for dismissing the appeal in

its entirety. I am therefore of the considered view that

justice has not been served the Appellants by what

transpired at the Court below more elaborately recounted

in the lead judgment.

I hold that this appeal is meritorious and is hereby allowed

by me. I set aside the decision of the Court of Appeal,

Lagos

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delivered on 16th January, 2008. I hereby grant prayers 1,

2, 3 and 4 of the Applicant's Motion dated and filed on 11th

January, 2008.I make the following orders:

(1). Leave to amend the Notice of Appeal dated 26th

day of March, 2001 in the terms of Exhibit "H01"

attached is granted.

(2). Leave is granted the appellants to raise a new

issue in the appeal as formulated in ground 2 of the

proposed Notice of Appeal.

(3). Leave is granted the appellants to file additional

grounds of appeal.

(4). The appellants are granted 30 days from today to

file the Amended Notice of Appeal together with the

appellants' brief

No order as to Cost.

AMIRU SANUSI, J.S.C.: I was opportuned to read in draft

form before now, the Judgment prepared and just delivered

by my learned brother K. B. Akaahs, JSC. Having read

same, I find myself in entire agreement with the reasoning

and conclusion arrived at that this appeal has substance

and should be allowed.

Sequel to that, I accordingly allow the appeal and set aside

the decision of lower Court of 16th January, 2008 in which

the appeal of the appellant before it,

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was dismissed. While agreeing with the reason and

conclusion of my noble lord K. B. Akaahs, JSC, I also

endorse the consequential orders made therein. I also

decline to make any order as to costs.

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Appearances:

I.T.E. Thomas, Esq. with him, Agan Tern, Esq.For Appellant(s)

Babajide Ojo, Esq. with him, D.O. Ademola, Esq.For Respondent(s)

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