AMENDMENT OF NOTICE OF APPEAL: WHEN IT CAN BE DONE

CASE TITLE: AFOLABI FAJEBE & ANOR v. ISAAC ADEBAYO OPANUGA (2019) LPELR-46348(SC)

DATE: 11th day of January, 2019

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT BY: KUMAI BAYANG AKA’AHS, J.S.C.

FACTS OF THE CASE

This is an appeal against the ruling of the Court of Appeal sitting in Lagos. 

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.

Ruling on the application, the Court refused to grant the application and also dismissed the substantive appeal.

Being aggrieved with the ruling, the Appellants appealed to the Supreme Court.

ISSUES FOR DETERMINATION

The Court determined the appeal on this issue couched as follows:

“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.”

DECISION OF THE COURT

On the whole, the Court found merit in the appeal and accordingly allowed same. The decision of the Court of Appeal was set aside. The Appellants’ application at the Court of Appeal was therefore granted in terms of prayers 1, 2, 3  and 4 of the motion.

RATIO DECIDENDI

• APPEAL – ISSUE(S) FOR DETERMINATION: Effect of an issue for determination not arising or relating to any ground of appeal
• APPEAL – NOTICE(S) OF APPEAL: Whether a notice of appeal can be amended at anytime

• JUSTICE – TECHNICAL JUSTICE: Attitude of Court to technical Justice

• PRACTICE AND PROCEDURE –MISTAKE OF COUNSEL/COURT/REGISTRY: Attitude of Court towards mistake of counsel