EDO STATE GOVERNMENT  & ORS V BUSINESS VENTURES NIGERIA LIMITED

EDO STATE GOVERNMENT & ORS V BUSINESS VENTURES NIGERIA LIMITED


IN THE COURT OF APPEAL
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN

ON WEDNESDAY, 24TH MAY, 2017


Appeal No: CA/B/293/2016

CITATION:

Before Their Lordships:

JIMI OLUKAYODE BADA, JCA

MOORE ASEIMO ABRAHAM ADUMEIN, JCA

MUDASHIRU NASIRU ONIYANGI, JCA


BETWEEN

EDO STATE GOVERNMENT
THE COMRADE GOVERNOR, EDO STATE
THE SECRETARY TO THE EDO STATE GOVERNMENT
HON. ATTORNEY GENERAL, AND COMMISSIONER FOR JUSTICE, EDO STATE
(APPLICANTS)

AND

BUSINESS VENTURES NIGERIA LIMITED
(RESPONDENT)


PRONOUNCEMENT


A. COURT
1. Duty of Court – The cardinal duty of the Court in disputes between parties
Duty of a court to ensure that substantial justice is done between parties

It is the cardinal duty of the Courts to ensure at all times that substantial justice is accorded to all parties in disputes before it.
In Adewunmi Vs Attorney General Ekiti State (2002) 2 NWLR Part 751 Page 474 at 507, the Court held among others as follows:-

“In Civil Litigation, it is the duty of the Court to aim at and to do substantial justice and allow formal amendments as are necessary for ultimate achievement of Justice and the end of Litigation.
While recognizing that Rules of Court should also be observed and followed, it should also be emphasized that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities, to the detriment of the determination of the substantial issues between them.” See Afolabi Vs Adekunle (1983) ALL NLR Page 470.

The current approach of Courts now is to shun technicality and concentrate on doing substantial justice.
In Buhari Vs Obasanjo (2003) 17 NWLR Part 850 Page 587, the Supreme Court held among others that: –

“The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering. Where it relies on mere technicality… or incomprehensibility in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands on.”

See the following cases:-

– Obembe Vs Ekele (2001) 10 NWLR Part 722 Page 677 at 689;
– Shau Vs Afribank Nig Plc (2002) 17 NWLR Part 795 at 185;
– Aderounmu Vs Olowu (2004) 4 NWLR Part 652 at 253. Per BADA, JCA. read in context

B. PRACTICE AND PROCEDURE
2. Amendment of Court Processes – Essence of amendment of Court processes

The essence of an amendment is to ensure that justice is done to all parties in a dispute. In the case of Vulcan Gases Ltd Vs G. F. Industries (2001) 9 NWLR Part 719 Page 610 at 653, the Supreme Court held among others that “where an irregularity could be cured without causing any injustice to the adverse party, taking into consideration the stage of the proceedings at the time and its nature, an amendment would be granted to cure same.” Per BADA, JCA. read in context

3. Rules of Court – What constitutes mere irregularities and provision of the law on mere irregularities
Whether compliance with Rules of Court can be waived

The Learned Senior Counsel for the Respondent had urged that this application be refused on the ground that the Appellant wrote Defendants/Applicants to describe the Appellants/Applicants and Claimant/Respondent. It was also contended that the application was brought under wrong Rules of Court.
In my view, all these are mere irregularities which could be waived pursuant to Order 21 Rule 3 of the Court of Appeal Rules 016 which states that: –
3(1) The Court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.
(2)… Per BADA, JCA. read in context

4. Procedural Irregularity – How every irregularity does not automatically nullify an entire proceedings
Whether every error/irregularities in Court proceedings can vitiate the entire proceedings

The mistake is as to form and it did not affect the substance of the application. It is not every irregularity that automatically nullifies an application or an entire proceedings, particularly where the irregularity as in this case, did not in any way affect the merits of the application or occasion a miscarriage of justice. See the following cases:-

– Egbo Vs Agbara (1997) 1 NWLR Part 481 Page 293;

– Ezeoke Vs Nwagbo (1988) 1 NWLR Part 72 at 616. Per BADA, JCA. read in context

5. Payment of Filing Fees – The implication of Order 12 Rule 2 of the Court of Appeal Rules, 2016
Whether government departments are exempted from paying filing fees at the Court of Appeal

The Learned Senior Counsel for the Respondent also contended that the fees payable by the Appellants ought to have been written on the face of the motion paper. It is my view that the position of the law is very clear on this issue in that the Appellants are protected by the provisions of – ORDER 12 RULE 2 OF THE COURT OF APPEAL RULES 2016, which provides that –

“No fee shall be payable in respect of any matter where such fee would be payable by the Government of the Federal Republic of Nigeria or of State or Local Government of any Government Department provided…”

It is not necessary to assess and write fees payable by the Appellants upon filing any document, because they are exempted from payment of fees. Per BADA, JCA. read in context

C. WORDS AND PHRASES
6. “Technical” “Technical Rule” – Statutory definition of “technical” and “technical rule”
Meaning of “technical” and “technical rule”

According to Black’s Law Dictionary (5th Edition) P.1310 the word “technical” means “immaterial not affecting substantial right’s without substance.” See the old case of Chesterfield V. Mideand Silkstone Collpery Co. Ltd (1865) 3. H & C 677 where Martin B. Said at page 691 thus:

“A technical rule is one which is established by authority and precedent, which does not depend upon reasoning and argument, but is a fixed established rule to be acted upon and only to be discussed as regards its application.”

See also Atanda V. Ajani (1989) 6 S.C (PT. 11) 87 at 123. Per ONIYANGI, JCA. read in context


LEAD JUDGMENT DELIVERED BY BADA, JCA


This is an application dated the 10th day of January, 2017 and filed on the 16th day of January, 2017 in which the Appellants/Applicants prayed for the following orders:-

(1) An order granting the Appellants/Applicants leave to amend the original Notice of Appeal herein attached as Exhibit “A” by filing additional Grounds of Appeal in this case.

(2) An Order granting the Appellants/Applicants leave to file and argue the additional Grounds of Appeal set out in Grounds 3, 4, and 5 in the proposed Amended Notice of Appeal herein attached as Exhibit “B”.

(3) An Order extending the time within which the Appellants may file and serve the Appellant’s Brief of Argument in this case the time allowed by the Rules of Court having expired.

(4) An Order deeming as properly filed and served the Appellants’ Brief of argument already filed and served.

And for such further Order(s) as this Honourable Court may deem fit to make in the circumstances of this case.

The grounds for the reliefs sought are as follows:

(1) Judgment in the said Suit No. B/557/14 was delivered by the Edo State High Court in favour of the Respondent on 11/12/2016.

(2) That the Appellants promptly filed a Notice of Appeal dated 17/2/2016 with 3 Grounds of Appeal against the said Judgment.

(3) Upon receiving a copy of the Judgment. Appellants’ Counsel found need to file and argue additional Grounds of Appeal.

(4) The Records of Appeal and Additional Records of Appeal before Court were deemed properly compiled and transmitted by order of this Court made on 14th November, 2016

(5) The Appellants are out of time to file their Brief of Argument.

(6) The Appellants need the leave of this Court to amend their Notice of Appeal and to file and serve their Brief of Argument out of time.

(7) The Respondent will not be prejudiced by this Application.

The application is supported by a 15 paragraph affidavit, pertinent paragraphs of which are Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12 and 13. The said paragraphs are reproduced as follows:-

1. That I am one of the State Counsel assigned to handle this Appeal for and on behalf of the Appellants/Applicants.

2. That by virtue of the aforesaid position, I am conversant with the facts of this case.

3. That I have the consent and authority of the Appellants/Applicants to depose to the Affidavit.

4. That I know as matter of facts that the Edo State High Court delivered judgment in this case on 11th February, 2016 in favour of the Respondent granting all his claims.

5. That being dissatisfied with the said judgment, the Applicants filed a Notice of Appeal against the said judgment on 17/2/2016. A copy of the Notice of Appeal is hereby attached as Exhibit “A”.

6. That upon receiving a copy of the judgment, the Appellants/Applicants saw the need to file and argue an additional grounds of Appeal.

7. That the proposed amended Notice of Appeal is hereto attached as Exhibit B

8. That on the 14/11/2016 this Honourable Court deemed as properly complied and transmitted the Records of Appeal and Additional Records of Appeal compiled and transmitted at the instance of the Appellants.

10. That the Counsel to the Appellants/Applicants could not prepare and file the Appellants’ Brief of Argument within the time allowed by the Rules due to official bureaucracy and counsel’s ill health.

11. That the Appellants’ Brief of argument is now ready and has been filed and served.

12. That the Appellants need the leave of this Honourable Court to amend their Notice of Appeal and to argue their Brief of Argument based on the proposed Amended Notice of Appeal.

13. That the Appellants also need the leave of Court to deem the Appellants’ Brief of Argument already filed and served as properly filed and served.

At the hearing of this application the Learned Counsel for the Appellants referred to the three prayers sought in this application. She stated that the Original Notice of Appeal dated 17/2/2016 was promptly filed after judgment was delivered on 11/2/2016.

She contended that upon the receipt of the copy of the judgment of the Trial Court, she found it necessary to file additional Grounds of Appeal.

The proposed amended notice of appeal was attached to the application as Exhibit “B”. She went further that as at the time this application was argued the time within which the Appellants are to file the Appellants’ brief has expired.

She urged that the application be granted.

The Learned Senior Counsel for the Respondent who did not file any counter affidavit opposed the application on points of law. In the first place, he contended that Order 7 of the Court of Appeal Rules 2011 under which the application was brought is wrong. Secondly, he stated that the nomenclature given to the parties i.e. Defendants and Claimants are wrong. He contended that the filing fee which the Appellants should have paid ought to have been written on face of the motion paper.

He therefore urged this Court to refuse that application.

After this application was argued, the Learned Senior Counsel for the Respondent sent three authorities in support of his argument that this application should be refused. The cases relied upon are listed as follows:-
– Echelunkwo John O. & 9 Ors Vs Igbo Etiti Local Government Area (2013) 7 NWLR Part 1352 Page 1 at Pages 3 & 4 Ratios 6 & 8;

– National Drug Law Enforcement Agency Vs Mohammed Zakari (2015) 7 NWLR Part 1458 Page 361 at 364 Ratio 5;

– Jerry Ikuepenikan Vs The State (2015) 9 NWLR Part 1455 Page 518 at 526 Ratio 3.

In her response to the submission of Learned Senior Counsel for the Respondent, Counsel for the Appellants urged the Court to grant this application. She relied on Order 21 Rules 2 & 3 of the Court of Appeal Rules 2016.

It was also submitted on behalf of the Appellants that the era of technicalities are gone and that nowadays the Courts are inclined to do substantial justice.

She went further in her submission that the error about the parties nomenclature has not misled this Court and that if this application is granted, it cannot lead to any injustice or miscarriage of justice. She relied on the case of – Agunbiade Vs Oke (2015) ALL FWLR Part 811 at Page 1330 at 1333. She finally urged this Court to grant this application.

The essence of an amendment is to ensure that justice is done to all parties in a dispute. In the case of Vulcan Gases Ltd Vs G. F. Industries (2001) 9 NWLR Part 719 Page 610 at 653, the Supreme Court held among others that “where an irregularity could be cured without causing any injustice to the adverse party, taking into consideration the stage of the proceedings at the time and its nature, an amendment would be granted to cure same.”

The Learned Senior Counsel for the Respondent had urged that this application be refused on the ground that the Appellant wrote Defendants/Applicants to describe the Appellants/Applicants and Claimant/Respondent. It was also contended that the application was brought under wrong Rules of Court.

In my view, all these are mere irregularities which could be waived pursuant to Order 21 Rule 3 of the ourt of Appeal Rules 2016 which states that: –

3(1) The Court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.

(2)…

The mistake is as to form and it did not affect the substance of the application. It is not every irregularity that automatically nullifies an application or an entire proceedings, particularly where the irregularity as in this case, did not in any way affect the merits of the application or occasion a miscarriage of justice. See the following cases:-

– Egbo Vs Agbara (1997) 1 NWLR Part 481 Page 293;

– Ezeoke Vs Nwagbo (1988) 1 NWLR Part 72 at 616.

I have read the authorities relied upon by the Learned Senior Counsel for the Respondent, it is my view that they are not relevant.

It is the cardinal duty of the Courts to ensure at all times that substantial justice is accorded to all parties in disputes before it.

In Adewunmi Vs Attorney General Ekiti State (2002) 2 NWLR Part 751 Page 474 at 507, the Court held among others as follows:-

“In Civil Litigation, it is the duty of the Court to aim at and to do substantial justice and allow formal amendments as are necessary for ultimate achievement of Justice and the end of Litigation.

While recognizing that Rules of Court should also be observed and followed, it should also be emphasized that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities, to the detriment of the determination of the substantial issues between them. See Afolabi Vs Adekunle (1983) ALL NLR Page 470.

The current approach of Courts now is to shun technicality and concentrate on doing substantial justice. In Buhari Vs Obasanjo (2003) 17 NWLR Part 850 Page 587, the Supreme Court held among others that: –

“The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering. Where it relies on mere technicality… or incomprehensibility in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands on.”

See the following cases:-
– Obembe Vs Ekele (2001) 10 NWLR Part 722 Page 677 at 689;
– Shau Vs Afribank Nig Plc (2002) 17 NWLR Part 795 at 185;
– Aderounmu Vs Olowu (2004) 4 NWLR Part 652 at 253.

This application was opposed merely on points of law, there is no counter affidavit therefore the facts deposed to in the affidavit are deemed to have been admitted. Therefore there is no impediment on the path of the application for extension of time to file Appellants’ brief.

The Learned Senior Counsel for the Respondent also contended that the fees payable by the Appellants ought to have been written on the face of the motion paper. It is my view that the position of the law is very clear on this issue in that the Appellants are protected by the provisions of – ORDER 12 RULE 2 OF THE COURT OF APPEAL RULES 2016, which provides that –

“No fee shall be payable in respect of any matter where such fee would be payable by the Government of the Federal Republic of Nigeria or of State or Local Government of any Government Department provided…”

It is not necessary to assess and write fees payable by the Appellants upon filing any document, because they are exempted from payment of fees.

Before I conclude this Ruling, I will like to emphasize that the ends of justice are better served if and only if the Court endeavours to determine issues in controversy on their merits rather than on technicalities.

Consequent upon the foregoing, I am of the view that this application is to enhance the quick dispensation of justice and it is meritorious. It is therefore granted in the following terms:-

(1) Leave is hereby granted to the Appellants/Applicants to amend the Original Notice of Appeal attached to the application as Exhibit “A” by filing Additional Grounds of Appeal in this case.

(2) Leave is also granted to the Appellants/Applicants to file and argue additional Grounds of Appeal as set out in Grounds 3, 4 and 5 in the proposed Amended Notice of Appeal attached as Exhibit “B”.

(3) Time is hereby extended for the Appellants/Applicants till today within which they will file and serve the Appellants’ Brief of Argument in this appeal.

(4) The Amended Notice of Appeal and the Appellants’ Brief of Argument both filed on 16/1/2017 and served are deemed as properly filed and served today.

ADUMEIN, JCA

I had a preview of the leading ruling rendered by my learned brother, Jimi Olukayode Bada, JCA.

My learned brother has elaborately considered this application for amendment and has lucidly advanced substantial reasons for granting it. I agree with the reasoning and conclusions of my learned brother.

For the reasons given by my learned brother, I also grant the Appellants’/applicant’s motion on notice filed on 16/01/2017 in the manner set out in the leading ruling.

ONIYANGI, JCA

I am in agreement with the Ruling my learned brother, JIMI OLUKAYODE BADA, JCA, just delivered and for the purpose of this concurring opinion, I adopt the facts of this application as set out in my learned brother’s ruling.

In support of the reasoning, I make this remark on technicality in relation to rule of practice and procedure.

According to Black’s Law Dictionary (5th Edition) P.1310 the word “technical” means “immaterial not affecting substantial right’s without substance.” See the old case of Chesterfield V. Mideand Silkstone Collpery Co. Ltd (1865) 3. H & C 677 WHERE Martin B. Said at page 691 thus:

“A technical rule is one which is established by authority and precedent, which does not depend upon reasoning and argument, but is a fixed established rule to be acted upon and only to be discussed as regards its application.”

See also Atanda V. Ajani (1989) 6 S.C (PT. 11) 87 at 123.

In the light of the foregoing, I also say that all the grounds of objection are based on mere technicality and which would only negate the paramount interest of justice which the application is meant to serve.

For these few remarks and the elaborate reasons advanced in the lead ruling of my learned brother, I am of the view that this application is meritorious and should be granted. I overrule all the grounds of objection in their entirety and dismiss same.

Accordingly I also grant the application in the terms and as contained in the lead ruling.