➥ CASE SUMMARY OF:
Shell Petroleum Dev. Co. of Nigeria Limited (SPDC) v Isaac Asaro Agbara (2019) – SC
by “PipAr” B.C. Chima
➥ COURT:
Supreme Court – SC.731/2017(R)
➥ JUDGEMENT DELIVERED ON:
Friday, 11th January, 2019
➥ AREA(S) OF LAW
Amendment of notice of appeal.
➥ NOTABLE DICTA
⦿ INCOMPETENT NOTICE OF APPEAL CANNOT BE AMENDED
Any notice of appeal that is incompetent cannot be amended because you cannot put something on nothing and expect it to stand. – K.B. Aka’ahs, JSC.
⦿ A NOTICE OF APPEAL IS AN INITIATING PROCESS
A notice of appeal is an initiating process by which a higher Court is invited to review the decision of a lower Court to determine whether on a proper consideration of the facts placed before the Court and the applicable law to the said facts, the lower Court arrived at a correct decision … The filing of a notice of appeal is a necessary prerequisite to the hearing of an appeal. Where leave is required a notice of appeal filed without leave is incurably defective and such notice cannot be amended. See Popoola vs. Adeyemo (1992) 8 NWLR (pt. 257) 1 SC, Abidoye vs Alawode (2001) 13 WRN 71 SC. — W.S.N. Onnoghen, JSC.
⦿ APPEALING MIXED LAW AND FACT REQUIRES LEAVE OF COURT
Where the law or rule prescribed the procedure to be taken in the performance of an act is not complied with, the performance of the act in the circumstance is a nullity. Section 233 (3) (a) provides that subject to the provisions of “Subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.” In other words, a party desiring to appeal the decision of the Court of Appeal to the Supreme Court on mixed law and facts or facts is required to obtain the leave of the Court of Appeal or the Supreme Court to file the notice and grounds of appeal. — W.S.N. Onnoghen, JSC.
⦿ AMENDMENT OF PROCESS CONNOTES CORRECTION OR ADDING
Amendment of Court process connotes a correction of a mistake thereto, or including in it something which was not originally there. It does not envisage putting something on nothing and expecting it to stand. See Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214: Afribank (Nig.) PLC v. Akwara (2006) 5 NWLR (Pt. 974) 619. — J.I. Okoro, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Kumai Bayang Aka’ahs, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPLICANT
Wole Olanipekun, SAN.
⦿ FOR THE RESPONDENT
Lucius Nwosu SAN.
➥ CASE HISTORY
The appellants/applicants filed this application on 16 July, 2018 seeking the following reliefs, inter alia: AN ORDER of this Honorable Court granting extension of time to the appellants/applicants to seek leave to appeal to this Honorable Court on grounds other than grounds of law, against the decision of the lower Court in appeal No. CA/PH/396/2012 between the Shell Petroleum Development Company of Nigeria Limited & Ors v. Chief Isaac Osaro Agbara & Ors. delivered on 6th June, 2017, coram A. A. B. Gumel, I. O. Akeju and C. I. Jombo -Ofo JJCA.
The application is supported by numerous grounds among: “upon review of the records of proceedings transmitted from the lower Court, the appellants’ counsel are of the opinion that there is a need to amend the appellants’ notice of appeal in order to bring up salient issues before this Honourable Court for an effectual, just and effective determination.”
➥ ISSUE(S) & RESOLUTION
[APPLICATION OF APPLICANT DISMISSED]
I. Whether there is a defect in any of the processes filed in the Notice of Appeal after the Federal High Court had delivered its judgement that subsequently affected the appeal in CA/PH/396/2012?
RULING: IN RESPONDENT’S FAVOUR.
A. A close scrutiny of the grounds in the Notice of appeal which the appellants sought to amend would reveal the following:- Grounds 1 and 2 are complaining about findings of fact while grounds 3 and 5 questioned the exercise of discretion by the lower Court. The complaint in ground 4 is that the lower Court did not hear the appeal on the merit before affirming the judgement of the trial Court and ground 6 alleged that the lower Court considered the respondents’ preliminary objection outside those listed by the respondent. Despite the appellants’ labeling the grounds as grounds of law, when the particulars are read together, they are grounds of fact or at best of mixed law and facts. See: Nzei v. University of Nigeria (2017) 6 NWLR (pt. 15G11 300. They fall outside the preview of Section 233(2)(a) which grants the appellants a right of appeal to the Supreme Court. Any such appeal therefore must be with leave as stipulated in Section 233(3) which states: – “233(3) Subject to the provisions of Subsection (2) of this section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court”. Where the grounds of appeal are based on mixed law and facts and the leave of either the Court of Appeal or the Supreme Court is not sought and granted the appeal is incompetent and neither the Court of Appeal nor the Supreme Court will have any jurisdiction to entertain the appeal. See: A & S.B. Co. (Nig) Ltd v. F.C.M.B. Ltd (2013) 10 NWLR (Pt. 1363) 501; Ekunolav . C.B.N. (2013) 15 NWLR (Pt. 1377) 224.
.
.
II. Whether the Notice of Appeal filed on 6 June, 2017 can be amended?
RULING: IN RESPONDENT’S FAVOUR.
A. As the Notice of Appeal sought to be amended was incompetent, no valid amendment could be effected even though issues of jurisdiction were raised in the proposed notice of appeal. See: Nwaigwe v. Okere (2008) 13 NWLR (Pt. 1105) 445 at 474.
B. The notice of appeal filed without the leave of the lower Court or this Court first sought and obtained is so incurably bad that in the eyes of the law, it does not exist. One cannot amend what in law does not exist. See Macfoy vs. UAC (1962) 153 wherein Denning (MR) said inter alia, “you cannot put something on nothing and expect it to stay there. It will collapse”.
.
.
.
✓ DECISION:
“Learned Senior Counsel for the appellants stated the correct legal position that an appellant who has a valid and subsisting appeal can seek the leave of Court to do so but in the instant case, there is no such valid notice of appeal that can be amended. The Notice of Appeal in SC. 731/2017 between Shell Petroleum Development Co. of Nigeria Limited & Ors v. Chief Isaac Asaro Agbara & Ors is incompetent and is hereby struck out by virtue of Order 8 Rule 7 of the Supreme Court Rules. Appeal No. SC. 731/2017 is accordingly dismissed. The motion filed on 16 July, 2018 has no leg to stand on and is hereby dismissed with costs in favour of the respondents against the applicants.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
