(2017) LPELR-43293(CA)

Transcription

1 GONIMI & ORS v. MAKINTAMI CITATION: ADZIRA GANA MSHELIA UCHECHUKWU ONYEMENAM In the Court of Appeal In the Jos Judicial Division Holden at Jos ON THURSDAY, 8TH JUNE, 2017 Suit No: CA/J/173/2014(R) Before Their Lordships: HABEEB ADEWALE OLUMUYIWA ABIRU 1. ALHAJI BUKAR GONIMI 2. MODU KAWU 3. MALLAM HASSAN 4. UMARA ALHAJI USMAN 5. MALLAM MODU 6. BULAMA MALA 7. ALHAJI AUDU 8. MOHAMMED ALLAMIN BOLORI 9. MALLAM MODU YAGANABE 10. ALHAJI KORE 11. ALHAJI USMAN 12. BABA GANA MALA Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal HAJIYA AMINA MAKINTAMI RATIO DECIDENDI And 1. APPEAL - NOTICE(S) OF APPEAL: Effect of a defective/incompetent notice of appeal - Applicant(s) - Respondent(s) "A Notice of Appeal is the foundation of any appeal. A defective notice of appeal deprives the appellate Court of its jurisdiction. Once a notice of appeal is defective and accordingly incompetent, nothing will be left for the Court to exercise its jurisdiction on. The jurisdiction of an appellate Court to hear an appeal is derived from a competent Notice of Appeal. S. P. D. C. N. LTD V EKOSI (2016) 2 NWLR (PT. 1496) 278; JAPHET V STATE (2016) 6 NWLR (PT. 1509); F.B.N. PLC V. MAIWADA (2013) 5 NWLR (PT. 1348) 444; F. R. N. V MARTINS (2012) 14 NWLR (PT. 1320) 257."Per ONYEMENAM, J.C.A. (P. 8, Paras. D-F) - read in context

2 2. APPEAL - NOTICE(S) OF APPEAL: Whether a defective Notice of Appeal can be cured by amendment "It is correct as submitted by the learned counsel for the Respondent that an incompetent notice of appeal which is void cannot be amended. This is only logical because a void notice of appeal does not in the eyes of the law exist and as such legally there will be nothing in existence to warrant an amendment. AKINLUSI V. C. B. N. (2012) ALL FWLR (PT. 627) 807; ADEKANYE V F. R. N. (2005) ALL FWLR (PT. 252) 574; BC. EXP AND PROT. (NIG). LTD V JOHNSON (2011) ALL FWLR (PT. 572) 1829; OKOMU OIL PALM CO. V. TAJIDEEN (2016) 5 NWLR (PT. 1499) 284."Per ONYEMENAM, J.C.A. (Pp. 8-9, Paras. F-C) - read in context 3. APPEAL - NOTICE(S) OF APPEAL: Whether failure to include capacity of parties renders a notice of appeal incompetent "...From the parties as shown above, the further amendment the Applicants are seeking is to add the capacity in which the Respondent sued at the trial Court. In the notice of appeal filed on 5th November, 2013 the Respondent was endorsed in her personal capacity, likewise in the amended notice of appeal. This Court has held that notice of appeal must bear the correct names of parties as stated at the trial Court. TOTAL UPSTREAM (NIG) LTD. V A. I. C. LTD. (2016) 2 NWLR (PT. 1497) 467; P. P. A. V I. N. E. C. (2012) 13 NWLR (PT. 1317) 215. The question now is, does the non -inclusion of the capacity in which the Respondent sued at the trial Court make the Notice of Appeal filed on 5th November, 2013 incompetent so that the same is not amendable. The cases of S.P.D.C.N. LTD. V. EKOSI (SUPRA); JAPHET V STATE (SUPRA); OKOMU OIL PALM CO. V. TAJUDEEN (supra); relied on by the Respondent's counsel, are all cases that deal with lack of proper signature on a notice of appeal. In all these cases, the Court held that lack of signature and or signature of a person unknown to law on a notice of appeal renders such notice incompetent. These referred cases are not relevant to this case except for the principle of law stated therein that an incompetent notice of appeal cannot be amended. The position is different from the instant appeal where the notice of appeal was properly signed, names of parties properly reflected except for the fact that the capacity in which the Respondent sued was omitted. In the case of SETRACO NIG. LTD. V. JOSEPH KPAJI (2017) 1 SCNJ 169 AT ; (2017) 5 NWLR (1558) 280, relied on by the Applicants' counsel in urging the Court to grant the application; the Appellant's name therein and his address as the person to be affected by the appeal were omitted in the notice of appeal. Also the notice of Appeal had wrongly been headed "IN THE COURT OF APPEAL HOLDEN IN ABUJA"; instead of "IN THE COURT OF APPEAL HOLDEN IN JOS". The Supreme Court held that both errors, mistakes and or omissions in the notice of appeal could be corrected by a simple application for amendment as the errors did not affect the jurisdiction of the Court to entertain the appeal. It does appear that the case of SETRACO NIG. LTD. v. JOSEPH KPAJI (supra); is quite instructive as the same relates closely to the instant case. In SETRACO NIG. LTD. V. JOSEPH KPAJI (supra); there was also a preliminary objection. On being served with the Appellant's brief, the Respondent raised a preliminary objection to the competence of the appeal on the grounds inter alia that there was no competent notice of appeal and appellant's brief before the Court. The apex Court held thus: "Where there is an error or omission in the Notice of Appeal, the Appellant should apply for leave to amend the Notice of Appeal under Order 6 Rule 2 (1) of the Court of Appeal Rules. In the instant case, learned counsel for the Appellant must have laboured under the mistaken belief that the Notice of Appeal was incompetent because of the Preliminary Objection which was subsisting at the time the Notice of withdrawal of the appeal was filed; but the appeal was competent. All that learned counsel should have done was apply to amend the Notice of Appeal so as to remedy the errors thereon. Both Notices of Appeal could have been amended because the errors thereon did not affect the jurisdiction of the Court to entertain the appeal." (Pp. 296, paras. F - H). The Court went further to hold thus: "There is an omission to state the name of the Appellant as one of the parties to be affected by the appeal, as required by Order 6 Rule 2 (1) of the Court of Appeal Rules, it is a mere irregularity that could be cured by a simple application for leave to amend the Notice of Appeal." (Pp. 307, paras C - D). From the foregoing it is certain therefore, that while an incompetent notice of appeal cannot be amended; errors and omissions of counsel in the notice of appeal which do not affect the justice of the case nor overreach the Respondent are mere irregularities which can be amended by a simple application for amendment. In effect such errors or omissions do not render the notice of appeal incompetent nor take away the jurisdiction of the Court. In the instant appeal, the counsel's error is that he omitted to state the capacity the Respondent sued the Appellants at the trial Court. The question is, does such omission affect the jurisdiction of the Court to hear and determine the appeal? The answer in my view can be found in the pronouncement of Obaseki, J.S.C in OTAPO V. SUNMONU & ORS. (1987) LPELR (SC) (Pp , paras. E -A). His Lordship said: "During the course of my judgment in that case, I said at p. 102 that: This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial Court can justifiably properly enter judgment for or against the party in that capacity even if amendment to reflect that capacity had not been applied for and obtained. See AYENI V. SOWEMIMO (1982) 5 S.C 6O; DOKUBO V. BOB MANUEL (1967) 1 ALL NLR 113; MBA NTA & ORS. V. EDE NWEKE ANIGBO & ANOR. (1972) 5 S.C 756 AT ; SHELLE V. CHIEF ASAJON (1957) 2 FSC 68; HABIB DISU V. L. W. DANIEL KALIO FSC 216/1962 decided on 7/3/64" Also in the case of S.P.D.C. V. EDAMKUE & ORS. (2009) LPELR (SC); HIS LORDSHIP OGBUAGU, J.S.C. stated thus: "It is also settled that once the pleadings and evidence, establish conclusively, a representative capacity and that the cases has been fought throughout in that capacity, a trial or appellate Court, can and will be entitled to enter judgment for or against the party in that capacity, even if the amendment to reflect that capacity, had not been applied for or obtained. It will be otherwise, if the case is not made out in a representative capacity. See the cases ofshella V. CHIEF ASAJON (1957) 2 FSC68; DOKUBO V. BOB MANUEL (1967) 1 ANLR 121; ONWUNAJU NDIDI & ANOR. V. OSADEME (1971) 1 ANLR 17; MBA NTA & ORS v. EDE NWEKE ANIGBO & ANOR. (1972) 5 SC ; MBA ORIE & ANOR. V. OKPAN UBA & ANOR (1976) 9-70 SC 133; TAIWO AYENI V. WILLIAM SOWEMIMO (1982) 5 SC 60 and OBA OSENI & 14 ORS V. DAWODU & 2 ORS (1994) 4 NWLR (PT ; (1994) 4 SCNJ (PT. 1) 209 just to mention but a few. There need to be a formal application to this/that effect either in the trial or appellate Court. See the case of Chief FAGBAYI OLOTO V. THE ATTORNEY-GENERAL (1957) 2 FSC 74 and AFOLABI V. ADEKUNLE (supra). Even where a person sued in a personal capacity instead of a representative capacity, an appellate Court can, in the interest of justice amend the Plaintiffs capacity to reflect the evidence and enter judgment for the Plaintiff as representing his family or community. See the case of OSUNRINDE & 7 ORS. V. AJAMOGUN & 5 ORS (1992) 6 NWLR (PT. 246) 156; (1992) 7 SCNJ (PT. 1) Infact, the case of PRINCE LADEJOBI & 2 ORS. V. OTUNBA OGUNTAYO & 9 ORS. (2004) 7 SCNJ Even if the trial Court did not affect the amendment as shown above in the decided cases, the Court below, has the power to amend it if it deemed it fit and just to do so. It is settled that an appellate Court can even suo motu, amend the capacity in which a Plaintiff sued. See the cases of AMADI V. THOMAS - APLIN & CO LTD. (SUPRA); IBANGA & ORS. V. USANGA & ORS (1982) 5 SC ; (1982) 1 ANLR (PT...) 100; AFOLABI & ORS V. ADEKUNLE & ANOR. (SUPRA); SHOE MACHINERY CO. V. CURTLAM (1896) 1 CH 112 and CHIEF AKINNUBI & ANOR V. GRACE AKINNUBI (MRS) & 2 ORS (1997) 1 SCNJ. 202 just to mention but a few" Per Ogbuagu, JSC. (pp , paras. F-F) It flows from the above decisions in my view, that the mere omission to state that a party has sued or is appealed against in a representative capacity when the pleadings or record show that the action was fought all through the trial Court and has been appealed in or against a party in a representative capacity; does not affect the jurisdiction of the Court to either entertain the suit or appeal as the case may be. The omission to insert the capacity a party is appealed against on the notice of appeal is an error that can be corrected upon the application for amendment. Such omission can even be suo-motu be corrected by the appellate Court. It is not an error that affects the jurisdiction of the Court. For that, I hold that the failure or omission or error of the counsel in this present appeal to state that the Respondent was appealed against in a representative capacity does not render the appeal incompetent nor oust the jurisdiction of this Court. It is my view that such an error is one that can be corrected through an application for an amendment such as this."per ONYEMENAM, J.C.A. (Pp , Paras. E-B) - read in context

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4 UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Lead Ruling): The ruling is with respect of the Motion on Notice brought pursuant to Order 4 Rule 1, Order 6 Rule 15 and Order 7 Rule (10) (1) of the Court of Appeal Rules, The Appellants/Applicants prayed the Court in the main, for the following Orders: a) LEAVE to further amend the Notice and Grounds of Appeal in Appeal No. CA/J/173/ Alhaji Bukar Gonimi & 11 Ors. Vs. Hajiya Amina Makintami by adding thereto, the capacity in which the Respondent sued the Appellants to wit: (Suing as Proprietor and representative of Maiduguri Innovative School). b) AN ORDER deeming the further amended Notice and Grounds of Appeal in Appeal No. CA/J/173/2014 Alhaji Bukar Gonimi & 11 Ors. Vs. Hajiya Amina Makintami with the addition of the capacity in which the Respondent sued the Appellants to wit: (Suing as Proprietor and representative of Maiduguri Innovative School). c) LEAVE to amend the Appellants brief of argument in this Appeal No: CA/J/173/ Alhaji Bukar Gonimi & 11 Ors. Vs. Hajiya. Amina. Makintami with the addition of the capacity in which the 1

5 Respondent sued the Appellants to wit: (Suing as Proprietor and representative of Maiduguri Innovative School). d) AN ORDER deeming the Appellants' further Amended Notice and grounds of appeal separately filed along with this motion and the amended brief of argument separately filed along with this motion as duly filed and served as the filing fees have been paid. The said Applicants brought the application on the following grounds, that: 1. They are aggrieved with the judgment of the trial Court delivered on 7th August, They appealed to this Court on 5th November, The record was deemed transmitted to this Court on 23rd February, 2015 and leave was sought for and obtained to amend the Original Notice and Grounds of Appeal by filing Additional Grounds of Appeal. 4. The Original Notice and Grounds of Appeal did not state the capacity in which the Respondent sued the Appellants. 5. They want to further amend the Notice and Grounds of Appeal by bringing in the capacity in which the Respondent sued the Appellants to wit: (Suing as Proprietor and Representative of Maiduguri Innovative School) 6. The 2

6 Appellants/Applicants desire to further amend their Brief of Argument and deem same as duly filed and served by adding the capacity in which the Respondent sued the Appellants to wit: (Suing as Proprietor and representative of Maiduguri Innovative School). On 5th April, 2017, the motion was heard. Mr. A. A. SANGEI with H. M ABDU; A. A MOHAMMED; A ADAMU appeared for the APPELLANTS/APPLICANTS holding the brief of M.S. Umar. For the Respondent was Mr. N.K. CIROMA. In moving the motion, Mr. Sangei referred to their Motion on Notice filed 23rd December, He also referred to the Applicants' written address filed 9th March, 2017 by the order of the Court. He adopted the written address and relied on the supporting affidavit of 5 paragraphs in urging the Court to grant the application. He sought for leave and the same was granted him to cite an additional authority in line with paragraph 4.05 of their written address; SETRACO NIG. LTD. V. JOSEPH KPAJI (2017) 1 SCNJ 769 AT In response, Mr. Ciroma said they filed a Counter Affidavit on 3rd February, 2017 in opposition. That by the order of the Court they filed a written address on 3

7 14th March, He adopted the written address while also relying on their Counter Affidavit in urging the Court to dismiss the application. Ruling was thereafter reserved. In the Applicants' written address prepared by Mr. M. S. Umar, he formulated a sole issue for determination, which is: Whether or not the Applicants are entitled to the reliefs herein sought. On their own, the Respondent's counsel Mr. Nankham Ayuba Dammo who prepared the brief raised 2 issues for the determination of the application. The issues are: 1. "Whether the notice of appeal is not incompetent as to deprive this Honourable Court of the Jurisdiction to grant reliefs sought. 2. Whether the reliefs sought are such that can be granted in favour of the Appellants/Applicants. In my view the issues distilled by the Respondent's counsel will better rest the dispute in this application. I shall therefore adopt the same in determining the merits of this appeal. The 2 issues however will be resolved jointly. Mr. Umar for the Applicants placed reliance on the affidavit in support of this application and Order 4 Rule 1 Order 6 Rule1 and 4

8 Order 7 of the Court of Appeal Rules 2011 and Order 4 Rule 1, Order 6 Rules 1, and Order 7 Rule 1 of the Court of Appeal Rules The learned counsel submitted that the aim of an amendment is to prevent manifest justice from being defeated, or delayed by formal slips which arise from the inadvertence of Counsel. See N.B.C. PLC VS. EDWARD (2015) 2 N.W.L.R. (PT. 1443) PAGE 201 AT 230 PARAS. C-G. He added that the Courts including this Court have over the years taken a stand that however late a proposed amendment is sought; it ought to be allowed if it can be done without injustice to the other side. N.BC. PLC V. EDWARD (supra) at page 230. He contended that, considering the facts of this case and the affidavit in support, the Applicants' application to further amend is never intended to cause injustice or to overreach the Respondent particularly as the capacity the Applicants' Counsel inadvertently omitted at the time of filing the Original Notice & Grounds of Appeal and the Appellants' Brief is a name of a school owned by the Respondent and of which he is the Managing Director. Mr. Umar further submitted that, considering the 5

9 facts of this case more especially the fact that the Respondent as the plaintiff at the trial Court filed the suit as the Proprietor and Representative of Maiduguri Innovative School; the granting of the application to amend will work the justice of the case He urged the Court to grant the application so as to hear and determine the appeal on the merits since the Applicants are not at fault being that the mistake of not adding the capacity upon which the Respondent sued the Applicant at the trial Court was caused by their Counsel. In arguing the 2 issues together, Mr. Dammo for the Respondent first noted that all every Court has the unfettered Jurisdiction to amend the processes before it. He referred to: AKANINWO V NSIRIM (2008) ALL FWLR (PT. 410) 610; ADEWOLE V ADESANOYE (NO. 1) (2004) ALL FWLR (PT. 231) 1387; FOLORUNSHO V W.A. E. C. (2011) ALL FWLR (PT. 556) 422; MADUABUCHI V ATT- GEN,LAGOS STATE (2012) ALL FWLR (PT. 653) He however added that the power of a Court to amend a process is limited to the valid process filed before it. Where a process is incompetent, the same cannot be validated by an amendment as it's incompetence 6

10 will deprive the Court of jurisdiction. He contended that a good perusal of the original and the amended notices of appeal; and putting them side by side the record and processes in the trial Court, will show that the parties in the notice of appeal, both original and amended; are not the same as those in the trial Court. This, he said means that the notice of appeal is defective ab-initio and incompetent. The same being incompetent therefore deprives the Court of jurisdiction, and no life can be breathed into it by the amendment being sought. The learned counsel further noted that the Respondent had sued in representative capacity at the trial Court and got judgment in that capacity but that the notice of appeal stripped her of that capacity. He argued that the original notice of appeal is incompetent as it is a notice of appeal against a judgment not delivered by the trial Court. In the circumstance therefore, he submitted that the notice of appeal being incompetent, cannot be amended. He cited plethora of authorities in support. S. P. D. C. N. LTD v EKOSI (2016) 2 NWLR (PT. 1496) 278; JAPHET V STATE (2016) 6 NWLR (PT. 1509); F. R. N. V MARTINS 7

11 (2012) 14 NWLR (PT. 1320) 257; AKINLUSI V. C. B. N. (2012) ALL FWLR (PT. 627) 807; ADEKANYE V F. R. N. (2005) ALL FWLR (PT. 252) 574; BC. EXP. AND PROT. (NIG). LTD V JOHNSON (2011) ALL FWLR (PT. 572) 1829; OKOMU OIL PALM CO. V. TAJIDEEN (2016) 3 NWLR (PT. 1499) 284. The learned counsel argued that since the Jurisdiction of the Court is ousted in determining the appeal on the basis of the incompetent notice of appeal, it is equally ousted in granting this application. He urged the Court to so hold and to dismiss the application. RESOLUTION OF ISSUES A Notice of Appeal is the foundation of any appeal. A defective notice of appeal deprives the appellate Court of its jurisdiction. Once a notice of appeal is defective and accordingly incompetent, nothing will be left for the Court to exercise its jurisdiction on. The jurisdiction of an appellate Court to hear an appeal is derived from a competent Notice of Appeal. S. P. D. C. N. LTD V EKOSI (2016) 2 NWLR (PT. 1496) 278; JAPHET V STATE (2016) 6 NWLR (PT. 1509); F.B.N. PLC V. MAIWADA (2013) 5 NWLR (PT. 1348) 444; F. R. N. V MARTINS (2012) 14 NWLR (PT. 1320) 257. It is correct as 8

12 submitted by the learned counsel for the Respondent that an incompetent notice of appeal which is void cannot be amended. This is only logical because a void notice of appeal does not in the eyes of the law exist and as such legally there will be nothing in existence to warrant an amendment. AKINLUSI V. C. B. N. (2012) ALL FWLR (PT. 627) 807; ADEKANYE V F. R. N. (2005) ALL FWLR (PT. 252) 574; BC. EXP AND PROT. (NIG). LTD V JOHNSON (2011) ALL FWLR (PT. 572) 1829; OKOMU OIL PALM CO. V. TAJIDEEN (2016) 5 NWLR (PT. 1499) 284. The facts that led to the present application is that, the Respondent as plaintiff instituted an action against the Applicants as Defendants for the claim of declaration of title over a piece of Land and the trial Court delivered judgment in favour of the Respondent. Dissatisfied with the judgment, the Applicants filed their original Notice and Grounds of Appeal and subsequently transmitted the Record of the trial Court with the Leave of this Court. Having transmitted the record, the Applicants sought and obtained leave of this Court and amended the notice of appeal and filed the Appellant's Brief. The Respondent filed the 9

13 Respondent's Brief of argument wherein a preliminary objection was raised complaining of the non-inclusion of the capacity in which the Respondent sued the Applicants at the trial Court. Consequent upon the objection, the Applicants' Counsel having discovered his mistake at the time of filing the original notice and grounds of appeal immediately filed this application to amend the processes to reflect the capacity in which the Respondent sued the Applicants at the trial Court. To make the picture clear, I will reproduce the parties as stated at the trial Court and in the Notice of Appeal. IN THE HIGH COURT OF JUSTICE OF BORNO STATE OF NIGERIA IN THE MAIDUGURI JUDICIAL DIVISION HOLDEN AT MAIDUGURI BEFORE HON. JUSTICE H.Y. MSHELIA - JUDGE COURT 6 THIS WEDNESDAY THE 7TH DAY OF AUGUST 2013 M/216/2002 CONSOLIDATED WITH M/24/2002 BETWEEN HAJIYA AMINA MAKINTAMI (Suing as proprietor and Representative of Maiduguri Innovative School). PLANTIFF AND a.} ALHAJI BUKAR GONIMI b.} MODU KAWU c.} MALLAM HASSAN d.} UMARA ALHAJI USMAN e.} MALLAM MODU

14 f.} BULAMA MALA g.} ALHAJI 10

15 AUDU h.} MOHAMMED ALLAMIN BOLORI i.} MALLAM MODU YAGANABE j.} ALHAJI KORE k.} ALHAJI USMAN l.} BABA GANA MALA IN THE COURT OF APPEAL HOLDEN AT JOS High Court Suit No. M/216/2002 Appeal No 1. ALHAJI BUKAR GONIMI 2. MODU KAWU 3. MALLAM HASSAN 4. UMARA ALHAJI USMAN 5. MALLAM MODU 6. BULAMA MALA 7. ALHAJI AUDU 8. MOHAMMED ALLAMIN BOLORI 9. MALLAM MODU YAGANABE 10. ALHAJI KORE 11. ALHAJI USMAN 12. BABA GANA MALA - APPELLANTS AND HAJIYA AMINA MAKINTAMI RESPONDENT From the parties as shown above, the further amendment the Applicants are seeking is to add the capacity in which the Respondent sued at the trial Court. In the notice of appeal filed on 5th November, 2013 the Respondent was endorsed in her personal capacity, likewise in the amended notice of appeal. This Court has held that notice of appeal must bear the correct names of parties as stated at the trial Court. TOTAL UPSTREAM (NIG) LTD. V A. I. C. LTD. (2016) 2 NWLR (PT. 1497) 467; P. P. A. V 11

16 I. N. E. C. (2012) 13 NWLR (PT. 1317) 215. The question now is, does the non -inclusion of the capacity in which the Respondent sued at the trial Court make the Notice of Appeal filed on 5th November, 2013 incompetent so that the same is not amendable. The cases of S.P.D.C.N. LTD. V. EKOSI (SUPRA); JAPHET V STATE (SUPRA); OKOMU OIL PALM CO. V. TAJUDEEN (supra); relied on by the Respondent's counsel, are all cases that deal with lack of proper signature on a notice of appeal. In all these cases, the Court held that lack of signature and or signature of a person unknown to law on a notice of appeal renders such notice incompetent. These referred cases are not relevant to this case except for the principle of law stated therein that an incompetent notice of appeal cannot be amended. The position is different from the instant appeal where the notice of appeal was properly signed, names of parties properly reflected except for the fact that the capacity in which the Respondent sued was omitted. In the case of SETRACO NIG. LTD. V. JOSEPH KPAJI (2017) 1 SCNJ 169 AT ; (2017) 5 NWLR (1558) 280, relied on by the Applicants' counsel in urging the Court to 12

17 grant the application; the Appellant's name therein and his address as the person to be affected by the appeal were omitted in the notice of appeal. Also the notice of Appeal had wrongly been headed "IN THE COURT OF APPEAL HOLDEN IN ABUJA"; instead of "IN THE COURT OF APPEAL HOLDEN IN JOS". The Supreme Court held that both errors, mistakes and or omissions in the notice of appeal could be corrected by a simple application for amendment as the errors did not affect the jurisdiction of the Court to entertain the appeal. It does appear that the case of SETRACO NIG. LTD. v. JOSEPH KPAJI (supra); is quite instructive as the same relates closely to the instant case. In SETRACO NIG. LTD. V. JOSEPH KPAJI (supra); there was also a preliminary objection. On being served with the Appellant's brief, the Respondent raised a preliminary objection to the competence of the appeal on the grounds inter alia that there was no competent notice of appeal and appellant's brief before the Court. The apex Court held thus: "Where there is an error or omission in the Notice of Appeal, the Appellant should apply for leave to amend the Notice of Appeal under Order 6 Rule 2 (1) of 13

18 the Court of Appeal Rules. In the instant case, learned counsel for the Appellant must have laboured under the mistaken belief that the Notice of Appeal was incompetent because of the Preliminary Objection which was subsisting at the time the Notice of withdrawal of the appeal was filed; but the appeal was competent. All that learned counsel should have done was apply to amend the Notice of Appeal so as to remedy the errors thereon. Both Notices of Appeal could have been amended because the errors thereon did not affect the jurisdiction of the Court to entertain the appeal." (Pp. 296, paras. F - H). The Court went further to hold thus: "There is an omission to state the name of the Appellant as one of the parties to be affected by the appeal, as required by Order 6 Rule 2 (1) of the Court of Appeal Rules, it is a mere irregularity that could be cured by a simple application for leave to amend the Notice of Appeal." (Pp. 307, paras C - D). From the foregoing it is certain therefore, that while an incompetent notice of appeal cannot be amended; errors and omissions of counsel in the notice of appeal which do not affect the justice of the 14

19 case nor overreach the Respondent are mere irregularities which can be amended by a simple application for amendment. In effect such errors or omissions do not render the notice of appeal incompetent nor take away the jurisdiction of the Court. In the instant appeal, the counsel's error is that he omitted to state the capacity the Respondent sued the Appellants at the trial Court. The question is, does such omission affect the jurisdiction of the Court to hear and determine the appeal? The answer in my view can be found in the pronouncement of Obaseki, J.S.C in OTAPO V. SUNMONU & ORS. (1987) LPELR (SC) (Pp , paras. E -A). His Lordship said: "During the course of my judgment in that case, I said at p. 102 that: This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial Court can justifiably properly enter judgment for or against the party in that capacity even if amendment to reflect that capacity had not been applied for and obtained. See AYENI V. SOWEMIMO(1982) 5 S.C 6O; DOKUBO V. BOB MANUEL (1967) 1 ALL 15

20 NLR 113; MBA NTA & ORS. V. EDE NWEKE ANIGBO & ANOR. (1972) 5 S.C 756 AT ; SHELLE V. CHIEF ASAJON (1957) 2 FSC 68; HABIB DISU V. L. W. DANIEL KALIO FSC 216/1962 decided on 7/3/64" Also in the case of S.P.D.C. V. EDAMKUE & ORS. (2009) LPELR (SC); HIS LORDSHIP OGBUAGU, J.S.C. stated thus: It is also settled that once the pleadings and evidence, establish conclusively, a representative capacity and that the cases has been fought throughout in that capacity, a trial or appellate Court, can and will be entitled to enter judgment for or against the party in that capacity, even if the amendment to reflect that capacity, had not been applied for or obtained. It will be otherwise, if the case is not made out in a representative capacity. See the cases ofshella V. CHIEF ASAJON (1957) 2 FSC68; DOKUBO V. BOB MANUEL (1967) 1 ANLR 121; ONWUNAJU NDIDI & ANOR. V. OSADEME (1971) 1 ANLR 17; MBA NTA & ORS v. EDE NWEKE ANIGBO & ANOR. (1972) 5 SC ; MBA ORIE & ANOR. V. OKPAN UBA & ANOR (1976) 9-70 SC 133; TAIWO AYENI V. WILLIAM SOWEMIMO (1982) 5 SC 60 and OBA OSENI & 14 ORS V. 16

21 DAWODU & 2 ORS (1994) 4 NWLR (PT ; (1994) 4 SCNJ (PT. 1) 209 just to mention but a few. There need to be a formal application to this/that effect either in the trial or appellate Court. See the case of Chief FAGBAYI OLOTO V. THE ATTORNEY- GENERAL (1957) 2 FSC 74 and AFOLABI V. ADEKUNLE (supra). Even where a person sued in a personal capacity instead of a representative capacity, an appellate Court can, in the interest of justice amend the Plaintiffs capacity to reflect the evidence and enter judgment for the Plaintiff as representing his family or community. See the case ofosunrinde & 7 ORS. V. AJAMOGUN & 5 ORS (1992) 6 NWLR (PT. 246) 156; (1992) 7 SCNJ (PT. 1) Infact, the case of PRINCE LADEJOBI & 2 ORS. V. OTUNBA OGUNTAYO & 9 ORS. (2004) 7 SCNJ Even if the trial Court did not affect the amendment as shown above in the decided cases, the Court below, has the power to amend it if it deemed it fit and just to do so. It is settled that an appellate Court can even suo motu, amend the capacity in which a Plaintiff sued. See the cases of AMADI V. THOMAS APLIN & CO 17

22 LTD. (SUPRA); IBANGA & ORS. V. USANGA & ORS (1982) 5 SC ; (1982) 1 ANLR (PT...) 100; AFOLABI & ORS V. ADEKUNLE & ANOR. (SUPRA); SHOE MACHINERY CO. V. CURTLAM (1896) 1 CH 112 and CHIEF AKINNUBI & ANOR V. GRACE AKINNUBI (MRS) & 2 ORS (1997) 1 SCNJ. 202 just to mention but a few" Per Ogbuagu, JSC. (pp , paras. F-F) It flows from the above decisions in my view, that the mere omission to state that a party has sued or is appealed against in a representative capacity when the pleadings or record show that the action was fought all through the trial Court and has been appealed in or against a party in a representative capacity; does not affect the jurisdiction of the Court to either entertain the suit or appeal as the case may be. The omission to insert the capacity a party is appealed against on the notice of appeal is an error that can be corrected upon the application for amendment. Such omission can even be suo-motu be corrected by the appellate Court. It is not an error that affects the jurisdiction of the Court. For that, I hold that the failure or omission or error of the counsel in this 18

23 present appeal to state that the Respondent was appealed against in a representative capacity does not render the appeal incompetent nor oust the jurisdiction of this Court. It is my view that such an error is one that can be corrected through an application for an amendment such as this. Accordingly I hold that the application has merit. The same is hereby granted in the following understated terms. I make Orders as follows: a. Granting leave to the Applicants to further amend their Notice and Grounds of Appeal in Appeal No. CA/J/173/ Alhaji Bukar Gonimi & 11 Ors. Vs. Hajiya Amina Makintami by adding thereto, the capacity in which the Respondent sued the Appellants to wit: (suing as Proprietor and Representative of Maiduguri Innovative School). b. Granting leave to the Applicants to amend the Appellants' brief of argument in this Appeal No: CA/J/173/ Alhaji Bukar Gonimi & 11 Ors. Vs. Hajiya Amina Makintami; with the addition of the capacity in which the Respondent sued the Appellants to wit: (Suing as Proprietor and Representative of Maiduguri Innovative School). c. Deeming the Appellants' further Amended Notice and Grounds 19

24 of Appeal in Appeal No. CA/J/173/2014 Alhaji Bukar Gonimi & 11 Ors. Vs. Hajiya Amina Makintami; and the Appellants' amended brief of argument both separately filed along with this motion as duly filed and served as the filing fees have been paid. I make no Order as to costs. ADZIRA GANA MSHELIA, J.C.A.: I have had the benefit of reading in draft the Ruling of my learned brother Onyemenam, J.C.A just delivered. I entirely agree with the reasoning and conclusion arrived thereat that the application is meritorious and ought to be granted. I also grant the application and endorse the orders made in the lead Ruling, inclusive of costs. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead Ruling delivered by my leaned brother, Uchechukwu Onyemenam, JCA. His Lordship has ably considered and resolved the issues in contention on the application of the Appellants dated the 13th of November, 2016 and filed on the 23rd of December, 2016 seeking for leave to further amend their notice of appeal, amongst other orders. I adopt the 20

25 reasoning and agree that the application has merit and deserves to be granted. I abide by the final orders made therein. 21

26 Appearances: A. A. Sangei with him, H.M. Abdu, A. A Mohammed, A. A. Adamu for holding the brief of M.S. Umar. For Appellant(s) N.K. Ciroma For Respondent(s)