In The Supreme Court of Nigeria
On Friday, the 20th day of December, 2013
Before Their Lordships
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKAAHS Justice of The Supreme Court of Nigeria
SOUTH ATLANTIC PETROLEUM LIMITED –Appellant
THE MINISTER OF PETROLEUM RESOURCES –Respondent
MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Lead Ruling): By its motion filed on the 8th day of March 2011, the South Atlantic Petroleum Ltd, hereinafter referred to as the applicant, seeks the following reliefs:-
“(1) An order extending the time within which the Appellant/Applicant shall seek the leave of this Honourable Court to appeal on grounds of mixed law and facts against the Judgment of the Court of Appeal Lagos delivered on 29th April, 2008 dismissing Appeal No CA/L/714/2006;
(2) An order granting leave to the Appellant/Applicant to appeal on grounds of mixed law and facts against the said Judgment of the Court of Appeal No CA/L/712/2006 made on 29th April, 2008;
(3) An order extending the time within which the Appellant/Applicant shall appeal against the said Judgment of the Court of Appeal Lagos in Appeal No CA/L/712/2006 delivered on 29th April, 2008 on grounds of mixed Law and facts;
(4) An order deeming the Amended Notice of Appeal dated 2nd February, 2009 which contains grounds 2, 3, 4 and 5 which are grounds of fact or mixed Law and facts as having been properly filed and served.”
The application is predicated on the grounds that:-
“(i) The three months period allowed by law to appeal to this Honourable Court has expired.
(ii) Grounds 2, 3, 4 and 5 of the Amended Notice of Appeal dated 2nd February 2009 filed by the Appellant/Applicant are grounds of facts or mixed law and facts which require leave of this Honourable Court;
(iii) The Appellant/Applicant truly desires that the appeal be heard and determined on its merits.” (Underlining supplied for emphasis).
The application is supported by a Twelve paragraph affidavit deposed to by Daniel Eyiridua, a litigation clerk in one of the firms of legal practitioners representing the applicant. Annexed to the affidavit in support of the application are Exhibits SPL 1, the Judgment of the trial Federal High Court, in Suit No FHC/L/CS/361/2006, SPL 2, the Judgment of the Court of Appeal in Appeal No CA/L/712/2006 being appealed against by the appellant/applicant and SPL 3, appellant/applicant’s amended Notice of Appeal dated 2nd February 2009. The said Notice of appeal, the applicant avers, was amended following the leave granted by this Court. The Applicant relies on its affidavit and the annextures thereto.
One Jenifer Awa, a legal practitioner with the firm of Oditah representing the respondent, swore to the respondent’s fourteen paragraph counter-affidavit in opposition to appellant’s application. Therein, it is conceded that appellant’s amended Notice of Appeal dated 2nd February remains applicant’s extant Notice of appeal. Both sides, the respondent further asserts, have filed and exchanged briefs of argument and the appeal is ready for hearing.
Parties have filed written addresses for and against the application. Having adopted same, learned counsel orally amplified the arguments advanced in the written addresses at the hearing of the application.
The issue the appellant/applicant proffers for the determination of its application reads:-
“Whether the applicant has placed sufficient materials before this Honourable Court to enable the court exercise its discretion in its favour by granting the application.”
The issue distilled by the respondent as arising for the determination of the application reads:-
“Whether this Court has the power to grant the prayers sought by the applicant and if it has, whether as a matter of discretion this Court should grant the prayers sought by the appellant.”
In arguing the application, Mr. Adetunji Oyeyipo, learned senior counsel to the applicant, submits that for the applicant to be adjudged worthy of the reliefs it seeks, it must convince the court not only why it had not been able to seek leave to appeal within the time the law allows such leave to be sought and obtained, but also the necessity for the acquisition of the leave and most importantly the fact that the grounds in respect of which the leave is being sought are arguable. The applicant, it is further submitted, timeously and promptly filed its Notice of appeal being sought to be further amended. Some of the grounds of the amended Notice of appeal however raise issues of mixed law and facts, a fact which the applicant did not earlier recognize because of the difficulty associated with the task of ascertaining whether a ground of appeal is one of law alone or otherwise. The essence of applicant’s effort to further amend its Notice of appeal, submits learned senior counsel to the appellant/applicant, is to enable this Court fully determine the real issues in controversy between the parties. The combined effect of Section 233(3) of the 1999 Constitution, Section 27(2) of the Supreme Court Act, Order 2 rule 31 and Order 6 rule 2 of the Supreme Court rules, it is further contended, makes it mandatory for the appellant/applicant to seek leave in respect of the grounds it intends to argue as contained in its Notice of appeal which are grounds other than grounds of law alone. Learned senior counsel concludes that applicant has satisfied all the requirements the law imposes and is entitled to have the court’s discretion exercised in his favour. Learned senior counsel relies on Ibodo & Ors V Enarofia & Ors (1980) SC 42 and Mobil Oil Nig Ltd V Agadaigho (1988) 2 NWLR (Pt.77) 383 and Re-Adewumi (1988) NWLR (Pt 83) 483 and so urges.
Mr. Oditah learned senior counsel for the respondent who doubles as a Queen’s counsel submits that the respondent does not dispute the facts on which the appellant grounds its application. He however contends that this Court lacks the jurisdiction to grant the applicant the reliefs it seeks and should the court hold otherwise, the application being overreaching on the respondent, should all the same be refused.
Learned senior counsel submits that the applicant seeks this Court’s exercise of discretion which must be done judicially and judiciously. Applicant’s appeal has not only been filed and entered, with parties having filed and exchanged their briefs of arguments, learned senior counsel further contends, the appeal is deemed duly argued. The application would have been otherwise competent if same were made prior to the filing of the appeal, the exchange of briefs by parties and a date given for the hearing of the appeal. It is too late now, learned senior counsel insists, to make such application which seeks to retrospectively validate applicant’s incompetent appeal. The need to stem needless uncertainty in adjudication and waste of the precious time of the parties and the court makes the grant of the application indiscreet. By section 233(3) of the 1999 Constitution as amended, appeal on grounds of fact or mixed fact and law, submits learned senior counsel, lies to
the Supreme Court from the decisions of the Court of Appeal only with leave of either the latter or the former court. The leave is, therefore, a statutory condition precedent to the exercise of the applicant’s right of appeal. Having failed to acquire the necessary leave before appealing to this court, it is contended, the applicant cannot now seek and obtain such leave. Inter-alia relying on Monsuro and anor v Akinyele 13 WACA 112 – 113, Auto Import Export V Adebayo (2002) 18 NWLR (Pt 799) 554 at 578 – 579, BASF Nig Ltd v Faith Enterprises Ltd (2010) 4 NWLR (Pt 1183) 104 at 128 and Yaro V Arewa Construction Ltd (2007) 17 NWLR (Pt 1063) 333 at 358, learned senior counsel to the respondent insists that the application discountenanced and/or dismissed.
Replying on points of law, learned senior counsel to the applicant contends that the submissions of learned senior counsel to the respondent are wrong and untenable. Applicant’s amended Notice of appeal, learned senior counsel submits, contains six grounds two of which, being grounds of law alone, are valid. The applicant only seeks to regularize the remaining four grounds of appeal in applicant’s amended Notice of Appeal which, being on grounds other than law alone, require leave of the lower court or this Court. Relying on Nsirim V Nsirim (1990) 3 NWLR (Pt 138) 285 at 296 – 297 and Williams V Mokwe (2005) 14 NWLR (Pt 945) learned senior counsel to the applicant submits that this Court not only has the jurisdiction to grant the application but that the application, on the facts, merits the grant. Learned senior counsel further relies on Order 2 rule 31, Order 6 rule 2 of the rules of this Court, Section 27 of the Supreme Court Act and the decision in Shanu V Afribank (Nig) PLC (2000) 13 NWLR (Pt 683) 392 to again urge the court to oblige the applicant.
The questions to answer in determining whether or not to grant the reliefs the applicant canvasses are if this Court has the jurisdiction to make the grant in the first place and whether the grant of the application by the court would be a proper exercise of the court’s jurisdiction.
I am unable to agree with learned senior counsel to the respondent who contends that this Court is not empowered to consider the application.
This Court, see Tsokwa Oil Marketing Co V B.O.N. Ltd (2002) 11 NWLR (Pt 777) 163, has dwelt on the difference between the law governing the filing of an initial appeal and an amended appeal. The principle remains that the two are not the same. Whereas the filing of original appeal from decisions of the Court of Appeal to this Court is governed by Section 233 of the 1999 Constitution as amended and Section 27 of the Supreme Court Act, the filing of additional grounds of appeal, whether or not the grounds require leave of court is governed by the Supreme Court Rules by virtue of the combined operation of subsection 6 of Section 233 and Section 236 of the 1999 Constitution. It must be restated that the principles of law as to when to file either and the effect of non compliance in each case differ. While non compliance with the Constitution and the Act is fatal, non-compliance with the rules of court has been adjudged a mere irregularity. See Sarakatu V NHDS Ltd (1981) 4 SC 26 and Ogbomor V State (1985) 1 NWLR (Pt.2) 223.The instant application, it will soon unfold, being one that seeks to add more grounds to those in applicant’s already filed and extant Notice of appeal, attracts different principles in its determination from those applicable to applications for filing of Notices of appeal for the first time.
Not surprisingly, the main grouse of the respondent against the applicant is that since the latter does not have a competent appeal before this Court it cannot add or reduce to the grounds of appeal in its amended notice of appeal. None of the six grounds in appellant/applicant’s extant Notice of appeal, it is contended, is competent and recognized by law.
Replying, learned senior applicant’s counsel countered that at least two of the six grounds of appeal contained in applicant’s amended Notice of appeal, which Notice the respondent concedes is extant, being grounds of law alone, are competent. All that the applicant seeks by its Notice of motion, it is argued, is to regularize the four grounds of appeal in the very amended Notice for which leave of court should have been sought and had before filing same but in respect of which the mandatory leave had not been sought and obtained.
It is helpful at this point to reproduce Section 233(2) (c), (6) and Section 236 of the 1999 Constitution as amended, Section 27 of the Supreme Court Act, Order 2 rule 31, and Order 8 rule 4 of the Supreme Court Rules which the appellant/applicant asserts create its right of appeal and give this Court not only the jurisdiction to entertain its application but, given the facts it relies on, entitles the applicant to the reliefs it urges on the Court. Ground one in the appellant/applicant’s amended Notice is hereinafter also reproduced for ease of reference.
Section 233(2) (c) and (6) of the 1999 Constitution provides:-
(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases
(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person.
(6) Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall, subject to section 236 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the power, practice and procedure of the Supreme Court.
236. Subject to the provisions of any Act of the National Assembly, the Chief Justice of Nigeria may make rules for regulating the practice and procedure of the Supreme Court.”
Section 27(2) and (4) of the Supreme Court Act Provides:-
“(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are-
(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an
appeal against a final decision;
(b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.
(4) The Supreme Court may extend the periods prescribed in subsection (2) of this section.”
Order 2 rule 31(1) of the Supreme Court rules provides:-
“31(1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply when this is required in the interest of Justice.”
Order 8 rule 4 provides:-
“A Notice of appeal may be amended by or with leave of the Court at any time.” (Underlining mine for emphasis).
Ground one in the appellant/applicants amended notice of appeal reads:-
The Learned Justices erred in law and deprived the Appellant a right of fair hearing guaranteed under the Constitution of Nigeria when they dismissed the appeal on an issue not canvassed by the parties and to which they were at no stage invited to address the court on the same.
Particulars of Error
(a) The Justices dismissed the appeal on the ground that the effluxion of ten years since the subject Oil prospecting Lease 246 was granted resulted in the appeal becoming academic on 28th March 2008.
(b) The action was filed on 9th May 2006, judgment was delivered in the trial court on 4th October 2006 and the appeal in the court below was argued on 17th March 2008 when judgment was reserved by the learned Justices.
(c) The cause of action included preservation, by declaration, of the Appellant’s right to a total of ten years term in the subject OPL 246.
(d) The learned Justices overlooked the prospect of that aspect of the cause of action when they suo motu reached a decision that the ten year term had elapsed.
(e) This approach means that parties were not heard on this critical issue which the learned Justices took suo motu.
(f) The issue of the expiration of the term of OPL 246 and its effect on the appeal was taken suo motu by the lower court without notice to the parties and without the parties being invited or given an opportunity to address the court on the point.”
The ground of appeal reproduced above is appellant/applicant’s first ground of appeal in its amended Notice dated 2nd February 2009 which Notice the applicant contends was filed within the time required by Section 27(2) of the Supreme Court Act. This fact has neither been challenged nor controverted by the respondent. It is a fact which, from the counter-affidavit in opposition of applicant’s notice of motion as well as the submissions of senior counsel to the respondent, has been admitted. Learned senior counsel to the applicant is on a firm terrain in his contention that their first ground of appeal challenges the decision being appealed against for depriving the appellant/applicant its right to fair hearing as guaranteed under the Constitution. The ground clearly comes within the purview of Section 233(2)(c) of the 1999 Constitution. An appeal from the decisions of the Court of Appeal predicated on such a ground lie to this Court as of right requiring no leave of the court for its validity. The validity of appellant/applicant’s amended Notice of appeal dated 2nd February 2009, therefore, persists even on the basis of the 1st ground in the notice alone. See Amadi V. Okoli (1977) 17 SC 57. The valid notice, with time enlarged for the acquisition of and the leave granted the applicant pursuant to the exercise of this Court’s powers under Order 2 rule 31(1), “may be amended with leave of the court at anytime” to validate those grounds of fact or mixed law and fact which had been filed without the mandatory leave having been sought and obtained as required by Section 233(3) of the Constitution. Order 8 rule 4 of the Supreme Court Rules clearly empowers this Court to grant the leave that allows the applicant to regularize its otherwise irregular amended Notice of appeal.
It has been lavishly argued by learned senior counsel to the respondent that to indulge the applicant would amount to allowing it regularize an otherwise incompetent process. It is contended that because the appeal, with the filing of briefs by parties, has been argued. Finding merit in the application, it is submitted, would be overreaching the respondent. It is further postulated that granting the applicant the reliefs it seeks would set a dangerous precedent allowing for unnecessary delays in litigation and the waste of precious time of parties and the court. Above all, learned senior counsel contends, this Court in granting the said reliefs would be departing from the position courts in civilized Countries endorse by refusing amendments of the nature and at the time the applicant herein canvasses. I find these arguments hollow.
Firstly, the point must be made that rules of practice in other climes, no matter how convenient they seem, may only be drawn from if they are similar and/or same with the rules applicable here. I remain of the firm and considered view that courts, this one not excepted, are bound by their rules and acquit themselves only by conducting proceedings in the manner their rules stipulate they should. See F.S.B International Bank Ltd V IMANO NIGERIA Ltd (2000) 7 SC (Pt 1) 1.
Order 8 rule 4 which provides for amendment of notices of appeal does not set any time limit within which leave for the amendments are to be sought and/or granted. This Court has always allowed amendments of Notices of appeal and other processes in appropriate cases. Once the facts on which the applications are predicated justify the grant of the relief, this Court will be forth-coming.In the case at hand the respondent has not been forth-coming with facts which sustain the contention that it is unjust to grant applicant the reliefs it seeks.
Learned senior counsel to the respondent must particularly be reminded of the facts as well as the decision of this Court
in Okpala V Ibeme (1989) 2 NWLR (Pt 102) 208. The appellant before the court in the case had filed his notice of appeal dated 29th July 1985 without obtaining leave of the court. The Notice was filed by appellant’s former counsel Mr. G.N.A. Okafor. Senator N.N. Anah, whom the appellant subsequently engaged, on realising that the ground of appeal in the appellant’s notice of appeal had raised questions of fact and mixed law and fact moved the court for the trinity prayers in order to regularize appellant’s defective notice and grounds of appeal having been filed without leave. He urged the Court to deem the said notice of appeal as properly filed. Parties had filed, and exchanged their briefs of arguments which they adopted in the course of the hearing of the appeal. Learned appellant counsel moved the court sequel to realizing the defect inherent in appellant’s already filed notice of appeal. The court per Nnaemeka-Agu JSC (of blessed memory) granted appellant’s application thus:-
“There are good reasons why the application should be granted. To begin with, much as the filing of a notice of appeal which is in accordance with Order 8 Rule 2 of the Rules as well as Form 12 is a necessary prerequisite for the hearing of an appeal, the Rules provide that a notice of appeal may be amended at any time (see Order 8 rule 4). …. the appeal had been fully argued before the defect was detected. In the circumstances, in the interest of justice, the application is granted.”
Learned senior counsel to the respondent maintains that having filed a Notice of preliminary objection to the competence of applicant’s appeal and argued same in their brief with the applicant joining issue on the preliminary objection, the best of practice requires that the appeal rather than applicant Notice of motion be heard. Again, learned senior counsel simply cannot be right.
In Tsokwa Oil Marketing Co. V. B.O.N. Ltd (supra) this Court has held that the filing of preliminary objection showing errors in the process of an appeal will not prevent the appellant from making an application to seek to correct the errors. It remains the principle as well that the appellant can even start the process afresh on a more appropriate footing. At page 207 of the law report, Ogundare JSC (of blessed memory in his concurring judgment) stated the principle more succinctly thus:-
“I think Oguntade, JCA gave a correct decision on the preliminary objection. In granting leave to file additional grounds 9 and 10, no time limit was imposed for the filing. It follows that when defendant filed the grounds on 22/12/94, it could not be said that the grounds were filed out of time. Obviously, the defendant’s earlier brief contained arguments on grounds of appeal that were yet to be filed. To correct this error and meet plaintiff’s objection, the defendant in 1995 filed another brief captioned “amended appellant’s brief” incorporating arguments on grounds 9 and 10 that were filed in December, 1994. What then is plaintiff’s complaint? I, too, see no merit in its complaint. The court below rightly struck out its objection.”(Underlining supplied for emphasis).
Given the foregoing two decisions of this Court, it certainly cannot be right for the learned senior counsel to the respondent to insist that the instant application is either belated and/or overreaching. The two decisions remain good law and binding. The applicant seeks to regularize its notice of appeal with the view to having the controversy between the parties in the appeal fully settled by the court. The justice of the case requires that applicant be obliged. The application being meritorious is hereby granted in terms. Parties should bear their respective costs.
IBRAHIM TANKO MUHAMMAD, J.S.C.: I have had the advantage of reading in draft, the Ruling of my learned brother, M. D. Muhammad, JSC, just delivered. I concur.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead Ruling just delivered brother, Dattijo Muhammad, JSC. I agree entirely that the application is meritorious and deserves to be granted. The reasoning and conclusion of my learned brother tallied with my own, I too will grant the application and abide by the order of costs in the lead ruling.
CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead ruling just delivered by my learned brother Dattijo Muhammad, JSC and I also subscribe that the application is meritorious and should succeed.
The reliefs sought before this court and the grounds predicating same are all spelt out in the lead ruling. The application which is supported by an affidavit seeks the exercise of discretion of this court for an order extending the time within which to seek leave to appeal on grounds of mix law and facts and hence to amend the Notice and grounds of appeal.
The provision of section 233(2) of the Constitution makes for a situation where an appeal shall lie as of right from the decisions of the Court of Appeal to this court. The relevant provision governing the instant case is subsection (3) which reproduction states as follows:-
“Subject to the provisions of sub-section (2) of this section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”
On a clear term and interpretation, the foregoing sub-section (3) operates to take care of instances which are excluded from subsection (2) of section 233. It is expedient to restate that the relief sought in this application is to raise grounds of appeal on mixed law and facts, which are not, covered by section 233 sub-section (2) of the Constitution. Hence, the leave of this court is required before the applicant can exercise its Constitutional right of appeal; such leave which should obviously be by reason of seeking an order for extension of time, with the appellant having expended his statutory time limit. This is especially in view of section 27(2) of the Supreme Court Act wherein time is of essence within which the applicant needed to have acted for its notice of appeal to be competent. Subsection (4) of the said section has however given this court the discretion to extend the time limited by reason of subsection (2). The
operative desirability of subsection (4) would therefore be served when it is read in the context of order 2 rule 31(1) of the Rules of court wherein the exercise of discretion must operate in the interest of doing justice. The caveat however is where rule 31(2) specifies that, for the interest of justice to sustain as required by rule 31(1), the applicant must by his affidavit set “forth good and substantial reasons for the failure to appeal or to apply for leave to appeal within the prescribed period.”All material facts are also expected to be placed before the court.
The totality of the application at hand is squarely within the spirit allowed by law and is also within the contemplation of order 8 rule 4 of the Rules of this court which provides thus:-
“A notice of appeal may be amended by or with the leave of the court at any time.”
By the very nature of this application, the totality of same would serve the interest of justice if the discretion of the court is exercised in favour thereof. My Learned brother Dattijo Muhammad JSC had adequately considered the application. I completely subscribe and adopt his ruling as mine and therefore grant the application in the same terms. I also abide by the orders made as to costs.
Adetunji Oyeyipo SAN with Rotimi Ogunneso SAN, Adewale Atake Esq, Oluwakemi Balogun, Godwin Omaaka, Rilwan Mahmoud and Olaoluwa Ayomi. For Appellant