TEGBE V. POROBUNU: On whether a Notice of Appeal can be Amended after being Struck Out

An insight into the decision of the Court of Appeal therein.

Citation: (2024) 4 N.W.L.R PART. 1928 AT 335–341.

COURTESY: Moruff O. Balogun, FIMC, CMC, CMS

Summary of facts:
The appellants instituted suits Nos. BHC/23/1 983, BHC/28/1983 and BHC/26/1985 at the High Court of Rivers State, Port Harcourt, claiming they were owners in possession of Bara-Kina Sugi, the land in dispute, from time immemorial. On their part, the respondent instituted suit No. BHC/9/1985 in respect of the land in dispute. The four suits were consolidated and were heard jointly by the trial court.

At the conclusion of the hearing, the trial court dismissed the appellants’ three suits and granted the respondent’s claims in suit No. BHC/9/1985.

Dissatisfied, the appellants appealed to the Court of Appeal against the judgment. The original notice of appeal was filed by the appellants on May 27, 2013. With the leave of court, it was amended on January 27, 2016. On September 24, 2019, the appellants filed a motion on notice seeking, inter alia, leave to further amend the amended notice of appeal. There was no objection, and the motion was granted on 16/06/2020 pursuant to which a further amended notice of appeal filed on September 24, 2019 was deemed properly filed and served.

Thereafter, on 29/09/2020, the appellants filed another motion on notice seeking extension of time to seek leave of court to vacate and/or set aside the order made on June 16, 2020; an order to vacate and/or set aside the order; and leave to withdraw and strike out the further amended notice of appeal filed on September 24, 2019. The respondent opposed the application.

In its ruling, the Court of Appeal only granted the prayer for leave to withdraw and strike out the further amended notice of appeal. Consequently, the further amended notice of appeal and the appellants’ brief were struck out.

At that point, the appellants’ counsel then indicated to the court that the appellants had another motion seeking leave to further amend the amended notice of appeal. The court granted the motion.

The respondent filed a notice of preliminary objection contending that the appeal had been withdrawn and consequently struck out by the court; that no competent appeal was pending upon which the jurisdiction of the court could be invoked; that a withdrawn appeal cannot be amended; and that the appeal was an abuse of court process.

The respondent contended that following the withdrawal and consequent striking out of the appellants’ further amended notice of appeal, the appeal had no other foundation upon which it could rest. On their part, the appellants filed a counter-affidavit to the preliminary objection.

Held: unanimously upholding the preliminary objection.

On effect of striking out of notice of appeal
The consequence of striking out an existing notice of appeal is that the appeal becomes dead. Any subsequent proceedings in such an appeal are based on an inexistent appeal. There will be no valid appeal upon which the later proceedings of the court are based. Such proceedings will be done without jurisdiction. In the instant case, there was the absence of jurisdiction to continue proceedings in the appeal, following the order striking out the appellants’ further amended notice of appeal.

The Court of Appeal had no option other than to declare as nullity the entire proceedings that took place in the appeal after the striking out order.

Accordingly, all the subsequent proceedings and hearings in the appeal were liable to be set aside for lack of jurisdiction, as there was no existing appeal.

On fundamental nature of notice of appeal –
A notice of appeal is the lifeblood of an appeal. It is the foundation upon which an appeal is based. It is an originating process that lays the foundation for the commencement of an appeal.

On effect of amendment of notice of appeal –
Where there is an amendment of a notice of appeal with the leave of court, it relates back to the original notice of appeal and wipes it out completely. Thus, the extant notice of appeal is the amended notice of appeal. In other words, upon an amendment of a notice of appeal upon leave of court, the amendment goes to the root and the amended notice of appeal supersedes the original notice of appeal and has the effect of completely obliterating the original notice of appeal which is taken to have been abandoned.
Technically, it no longer avails the appellant to rely on the original notice of appeal it having been amended and deemed abandoned.

On when court can set aside its judgment or order-
A court has inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the judgment or order given becomes null and void, thus liable to be set aside. In other words, the court in its inherent jurisdiction has the power to set aside its own judgment or order made without jurisdiction or if same has been fraudulently obtained. In such circumstance, an appeal for the purpose of having the null judgment or order cannot be said to be necessary.

On when court can set aside its judgment or order-
If a judgment is a nullity, the court which made it can set it aside suo motu or on application by any party affected by it. Any court of record, including the Supreme Court, has the inherent jurisdiction to set aside its own judgment given in any proceeding in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the court. Such a judgment is a nullity. A person affected by it is therefore entitled ex debito justitiae to have it set aside. The court can set it aside suo motu and the person affected may apply by motion and not necessarily by way of appeal.

On treatment of preliminary objection to an appeal where raised –
The court will determine a preliminary objection to an appeal before proceeding to determine the substantive appeal, if at all necessary to do so.

COURTESY:
MORUFF O. BALOGUN, FIMC, CMC, CMS
VICE CHAIRMAN, NBA IJEBU ODE BRANCH,
IJEBU ODE, OGUN STATE.
08052871414
09121207712 [WHATSAPP]

Source: @theloyalnigeria