JEHAJA (NIG) LTD v. ELVEN CONTINENTAL LTD
(2022)LCN/16936(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, November 24, 2022
CA/A/580/2019(R)
Before Our Lordships:
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
JEHAJA NIGERIA LIMITED APPELANT(S)
And
ELVEN CONTINENTAL LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT AN APPEAL IS DETERMINED BASED ON GROUNDS OF APPEAL THAT ARISES FROM THE JUDGEMENT APPEALED AGAINST
Now, an appeal is ordinarily determined based on grounds of appeal that arise from the judgment appealed against. However, an appellate Court, upon application, has the jurisdiction to grant a party leave to raise a fresh point, issue or issues before it for the first time, which fresh point, issue or issues were not raised in the Court below, if the said fresh point, issue or issues involves substantial points of law, substantive or procedural. Such discretion will be exercised in favour of the applicant where all the facts required to determine the issue are before the Court and no further evidence would be required to reach a decision on the matter. It will also be exercised where the Court is satisfied that it would meet the justice of the case: NDUUL vs. WAYO (2018) LPELR (45151) 1 at 33-34, INTERCONTINENTAL BANK PLC vs. OLAM (NIGERIA) LTD (2013) LPELR (19766) 1 at 8-9 and OKENWA vs. MILITARY GOVERNOR, IMO STATE (1996) LPELR (2440) 1 at 16-17. PER OGAKWU, J.C.A.
WHETHER OR NOT AN APPEAL COURT CAN ENTERTAIN FRESH POINT/ISSUES ON APPEAL
In EZE vs. UNIVERSITY OF JOS (2017) LPELR (42345) 1 at 19-23, Augie, JSC, admirably expounded the circumstances in which an appellate Court may entertain fresh point/issues on appeal. The learned law Lord asseverated:
“Mostly, an appellate Court will not allow a party to raise issues not raised at the trial Court except where the fresh issue or question involves substantial points of law, substantive or procedural, which need to be allowed to prevent an obvious miscarriage of justice. On the issue of when a question of law is said to be substantial, this Court explained in African Newspaper of Nigeria Ltd. & Ors v. FRN (1985) 2 NWLR (Pt. 6) 137 that such a question must be one of which arguments in favour of more than one interpretation might reasonably be adduced; and one which must necessarily be decided in the cause or matter and not which may be unnecessary to decide. See also Okenwa v. Military Governor, Imo State (1996) 2 NWLR (Pt. 455) 394 SC, where Iguh, JSC, also explained as follows –
There can be no doubt that an appellate Court must not allow an Appellant to jettison before it, the question on which the parties have joined issue and fought their case before the trial Court as to do otherwise would amount, in effect, to permitting the Appellant to commence an entirely new case before the appellate Court. In the same vein, an appellate Court before which a new point is sought to be canvassed will, on the authorities, refuse to grant leave to do so where the fresh point raised introduces a new line of defence completely different from the issues fought by the parties in the Court below… An Appellant will also not be allowed to raise on appeal, a fresh point or question, which was not raised or tried or considered by the trial Court, particularly where to raise such a point or question will require fresh or additional evidence to be adduced … Where, however, such a fresh point or question involves a substantial point of law, substantive or procedural, and it is plain that no further evidence needs be adduced which would affect the decision on the matter, the appellate Court will allow the question to be raised and the point taken to prevent a miscarriage of justice. See Att-Gen., Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt. 92) 1 at 29 SC, John Bankole and Ors v. Mojidi Pelu and Ors (1991) 8 NWLR (Pt. 211) 523. PER OGAKWU, J.C.A.
GUIDING PRINCIPLES UPON WHICH AN APPELLATE COURT CAN EXERCISE ITS DISCRETION TO GRANT LEAVE TO A PARTY TO RAISE FRESH ISSUES FOR DETERMINATION
In A.-G., Oyo State v. Fairlakes Hotel Ltd. (supra), this Court succinctly stated the principles guiding the appellate Courts in the exercise of their discretion to grant leave to a party to raise, for the first time, a point of law not raised or canvassed in the Court below thus-
The discretion has been exercised in a variety of situations in the interest of the administration of justice. The following situations are disclosed by some of the decided cases, among many, where substantial points of law, substantive and procedural are involved.
The leave has been granted to raise a new point of law:
(1) When the point of law raised discloses ex facie that the Court has no jurisdiction.
(2) Where the point of law raised arose out of the decision of the Court of first instance and could not have been raised earlier in that Court…
(3) Where the point of law raised involves the interpretation of documents relevant to the determination of the case before the Court…
(4) Where all the materials necessary for the determination of the point of law raised are present in the records of the Court.
(5) Where the Court is satisfied that the evidence is such that establishes beyond doubt, that the facts, if fully investigated would have supported the new plea.
I must add also that at this stage, this Court is not concerned with the validity or otherwise of the fresh issue sought to be raised by the Appellant; that is a matter to be pronounced upon in the event of leave being granted to the Appellant to raise the fresh point or issue. Thus, I will make no observation whatsoever on the issue. Suffice it to say that what I need to consider at this stage is whether or not the fresh issue sought to be raised is really a substantial question of law. In other words, the question must be distinguished from whether or not there is any merit on the point itself, the decision of which can only be taken after full arguments from the parties have been heard.” PER OGAKWU, J.C.A.
WHETHER OR NOT PROPER PARTIES MUST BE BEFORE THE COURT BEFORE THE COURT IS COMPETENT TO DETERMINE THE MATTER
It is settled law that for a Court to be competent and have jurisdiction over a matter, proper parties must be before the Court. Where the proper parties are not before the Court, then the Court lacks jurisdiction to hear the case. Put differently, it is only proper parties that can invoke the jurisdiction of the Court. See PLATEAU STATE OF NIGERIA vs. A-G FEDERATION (2006) 3 NWLR (PT 967) 346, GOODWILL & TRUST INVESTMENT LTD vs. WITT AND BUSCH LTD (2011) LPELR (1333) 1 at 37, IKENE vs. ANAKWE (2000) 8 NWLR (PT 669) 484, BAKARE vs. AJOSE-ADEOGUN (2014) LPELR (25024) 1 at 47, COTECNA INT’L LTD vs. CHURCHGATE NIG LTD (2010) LPELR (897) 1 at 50-51 and BOYE INDUSTRIES LTD vs. SOWEMIMO (2021) LPELR (58510) 1 at 7-9. PER OGAKWU, J.C.A
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Lead Ruling): By an application filed on 2nd August 2019, the Appellant/Applicant prays for the following reliefs:
1. An order granting leave to the Applicant to amend the typographical error on the name of the Appellant contained in the Notice of Appeal and Record of Appeal to “JEHATA NIGERIA LIMITED” instead of “JEHAJA NIGERIA LIMITED”.
2. An order granting the Applicant leave to raise and argue fresh issues raised in this appeal contained in grounds one, two and three of the grounds of appeal.
3. And for such further and other orders as this Honourable Court may deem fit to make in the circumstances of this case.
The grounds upon which the application is predicated are as follows:
1. The name of the Appellant is JEHATA NIGERIA LIMITED but was mistakenly reflected in the Notice of Appeal and Record of Appeal as JEHAJA NIGERIA LIMITED.
2. The counsel that prosecuted the case for the Appellant at the lower Court did not raise some substantial issues of law which are now contained in grounds one, two and three of the Notice of Appeal of the Appellant.
3. The new points raised if allowed shall prevent obvious miscarriage of justice.
The application is supported by an affidavit of four paragraphs to which one exhibit was attached. In line with the stipulations of the Rules of Court, a written address was filed in support of the application.
The Respondent did not oppose the prayer to correct the typographical error in the name of the Appellant which is prayer one of the Motion. It however opposed the second prayer. In this regard, a 24-paragraph counter affidavit and a written address in opposition were filed on 21st October 2019. The documents relied upon were attached as exhibits to the counter affidavit.
The Appellant/Applicant formulated two issues for determination in the application, as follows:
(1) WHETHER THIS COURT SHOULD GRANT PRAYER ONE IN FAVOUR OF THE APPLICANT IN THE CIRCUMSTANCES OF THIS CASE.
(2) WHETHER THE NEW POINTS RAISED BY THE APPLICANT IN HER NOTICE OF APPEAL ARE SUBSTANTIAL ENOUGH TO BE ALLOWED BY THIS COURT SO AS [TO] AVOID MISCARRIAGE OF JUSTICE.
The Respondent equally distilled two issues for determination, namely:
1. Whether in view of the overwhelming evidence before this Court, the Appellant/Applicant is entitled to the grant of relief 2 in this application.
2. Whether the lower Court was vested with jurisdiction to hear the case.
At the hearing of application, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the application. As already stated, the Respondent did not oppose prayer one of the Motion; accordingly, the Appellant/Applicant’s issue number one is no longer a live issue in this application. Since the said prayer one was not opposed, the same is granted as prayed. The name of the Appellant in the Notice of Appeal is amended to read JEHATA NIGERIA LIMITED. The Amended Notice of Appeal is to be filed within twenty-one (21) days from today. The briefs of argument already filed and exchanged by the parties are to be consequentially amended within twenty-one (21) days to reflect the correct name of the Appellant.
Now, in the light of non-opposition of prayer one, the live issue is the Appellant’s issue number two which relates to the contested prayer two. It is therefore on the basis of the said issue number two that I will consider the submissions of learned counsel and resolve the said contested prayer two.
SUBMISSIONS OF THE APPELLANT/APPLICANT’S COUNSEL
The Appellant/Applicant submits that two of the three fresh issues raised touch on the competence and jurisdiction of the lower Court and are very substantial points of law and ought to be allowed in order to prevent miscarriage of justice vide EZE vs. A-G RIVERS STATE (2001) 12 SC (PT II) 21 at 28 and 30. It was stated that where a trial Court fails to examine an exhibit properly, an appellate Court is entitled to do so and make the necessary findings. It was posited that on a thorough examination of the Memorandum of Agreement between the parties, the lower Court would not have assumed jurisdiction to hear and determine the case. It was conclusively asserted that no evidence is necessary as the evidence on record is enough to canvass the fresh points raised. The case of EZE vs. A-G RIVERS STATE (supra) at 30 and 32 was relied upon.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent referred to the circumstances where leave will be refused to raise a fresh issue on appeal as laid down in BANKOLE vs. PELU (1991) 11-12 SC 116. It was opined that granting the Appellant leave to raise the fresh issue would overreach the Respondent’s case and that the lower Court would have been in the appropriate position to answer the questions sought to be raised. It was maintained that proper parties were before the Court and therefore the claim of lack of jurisdiction on that ground is baseless and goes to no issue. The cases of GREEN vs. GREEN (1987) 3 NWLR (PT 61) 480 and AZUBUIKE vs. PDP (2014) 7 NWLR (PT 1406) 292 were relied upon. It was conclusively asserted that the lower Court was vested with jurisdiction to hear the case as the proper parties were before the Court and that the Director of Appellant Company which the Appellant contends ought to have been joined in the action is the agent of a disclosed principal and that in such circumstances, it is the principal that is to be sued since it has a distinct legal personality from its Director. The cases of OKOLO vs. UNITED BANK FOR AFRICA [sic] (2004) 3 NWLR (PT 859) 87, UBA vs. PENNY-MART LTD (1992) 5 NWLR (PT 240) at 230 and SALOMON vs. SALOMON & CO. (1877) A.C. 22.
RESOLUTION
The provenance of the relationship between the parties and on the basis of which the action at the lower Court was commenced is the Memorandum of Agreement which is at pages 47-49 of the Records. The Appellant’s contention which it wants leave of Court to raise as a fresh issue is that the said Memorandum of Agreement was entered into by the alter egos of the parties on record and that it is the said alter egos that ought to have been parties to the action commenced by the Respondent at the lower Court and not the parties on record.
Now, an appeal is ordinarily determined based on grounds of appeal that arise from the judgment appealed against. However, an appellate Court, upon application, has the jurisdiction to grant a party leave to raise a fresh point, issue or issues before it for the first time, which fresh point, issue or issues were not raised in the Court below, if the said fresh point, issue or issues involves substantial points of law, substantive or procedural. Such discretion will be exercised in favour of the applicant where all the facts required to determine the issue are before the Court and no further evidence would be required to reach a decision on the matter. It will also be exercised where the Court is satisfied that it would meet the justice of the case: NDUUL vs. WAYO (2018) LPELR (45151) 1 at 33-34, INTERCONTINENTAL BANK PLC vs. OLAM (NIGERIA) LTD (2013) LPELR (19766) 1 at 8-9 and OKENWA vs. MILITARY GOVERNOR, IMO STATE (1996) LPELR (2440) 1 at 16-17.
In EZE vs. UNIVERSITY OF JOS (2017) LPELR (42345) 1 at 19-23, Augie, JSC, admirably expounded the circumstances in which an appellate Court may entertain fresh point/issues on appeal. The learned law Lord asseverated:
“Mostly, an appellate Court will not allow a party to raise issues not raised at the trial Court except where the fresh issue or question involves substantial points of law, substantive or procedural, which need to be allowed to prevent an obvious miscarriage of justice. On the issue of when a question of law is said to be substantial, this Court explained in African Newspaper of Nigeria Ltd. & Ors v. FRN (1985) 2 NWLR (Pt. 6) 137 that such a question must be one of which arguments in favour of more than one interpretation might reasonably be adduced; and one which must necessarily be decided in the cause or matter and not which may be unnecessary to decide. See also Okenwa v. Military Governor, Imo State (1996) 2 NWLR (Pt. 455) 394 SC, where Iguh, JSC, also explained as follows –
There can be no doubt that an appellate Court must not allow an Appellant to jettison before it, the question on which the parties have joined issue and fought their case before the trial Court as to do otherwise would amount, in effect, to permitting the Appellant to commence an entirely new case before the appellate Court. In the same vein, an appellate Court before which a new point is sought to be canvassed will, on the authorities, refuse to grant leave to do so where the fresh point raised introduces a new line of defence completely different from the issues fought by the parties in the Court below… An Appellant will also not be allowed to raise on appeal, a fresh point or question, which was not raised or tried or considered by the trial Court, particularly where to raise such a point or question will require fresh or additional evidence to be adduced … Where, however, such a fresh point or question involves a substantial point of law, substantive or procedural, and it is plain that no further evidence needs be adduced which would affect the decision on the matter, the appellate Court will allow the question to be raised and the point taken to prevent a miscarriage of justice. See Att-Gen., Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt. 92) 1 at 29 SC, John Bankole and Ors v. Mojidi Pelu and Ors (1991) 8 NWLR (Pt. 211) 523.
In A.-G., Oyo State v. Fairlakes Hotel Ltd. (supra), this Court succinctly stated the principles guiding the appellate Courts in the exercise of their discretion to grant leave to a party to raise, for the first time, a point of law not raised or canvassed in the Court below thus-
The discretion has been exercised in a variety of situations in the interest of the administration of justice. The following situations are disclosed by some of the decided cases, among many, where substantial points of law, substantive and procedural are involved.
The leave has been granted to raise a new point of law:
(1) When the point of law raised discloses ex facie that the Court has no jurisdiction.
(2) Where the point of law raised arose out of the decision of the Court of first instance and could not have been raised earlier in that Court…
(3) Where the point of law raised involves the interpretation of documents relevant to the determination of the case before the Court…
(4) Where all the materials necessary for the determination of the point of law raised are present in the records of the Court.
(5) Where the Court is satisfied that the evidence is such that establishes beyond doubt, that the facts, if fully investigated would have supported the new plea.
I must add also that at this stage, this Court is not concerned with the validity or otherwise of the fresh issue sought to be raised by the Appellant; that is a matter to be pronounced upon in the event of leave being granted to the Appellant to raise the fresh point or issue. Thus, I will make no observation whatsoever on the issue. Suffice it to say that what I need to consider at this stage is whether or not the fresh issue sought to be raised is really a substantial question of law. In other words, the question must be distinguished from whether or not there is any merit on the point itself, the decision of which can only be taken after full arguments from the parties have been heard.”
From the above dictum, leave will be granted to raise a fresh point, inter alia, when the point of law raised discloses ex-facie that the Court has no jurisdiction. Furthermore, where the point of law raised involves the interpretation of documents relevant to the determination of the case. Let me iterate that the fons et origo of the entire action is the Memorandum of Agreement at pages 47-49 of the Records of Appeal. The fresh issue which the Appellant seeks to ventilate involves the interpretation of the said Memorandum of Agreement and who in fact are the parties to the said Agreement and who can sue or be sued on it.
It is settled law that for a Court to be competent and have jurisdiction over a matter, proper parties must be before the Court. Where the proper parties are not before the Court, then the Court lacks jurisdiction to hear the case. Put differently, it is only proper parties that can invoke the jurisdiction of the Court. See PLATEAU STATE OF NIGERIA vs. A-G FEDERATION (2006) 3 NWLR (PT 967) 346, GOODWILL & TRUST INVESTMENT LTD vs. WITT AND BUSCH LTD (2011) LPELR (1333) 1 at 37, IKENE vs. ANAKWE (2000) 8 NWLR (PT 669) 484, BAKARE vs. AJOSE-ADEOGUN (2014) LPELR (25024) 1 at 47, COTECNA INT’L LTD vs. CHURCHGATE NIG LTD (2010) LPELR (897) 1 at 50-51 and BOYE INDUSTRIES LTD vs. SOWEMIMO (2021) LPELR (58510) 1 at 7-9.
Quite apart from the fresh issue involving interpretation of the Memorandum of Agreement, it equally raises the issue of jurisdiction based on whether the proper parties are before the Court. The Memorandum of Agreement is already before the Court so taking the fresh issue will not involve the adduction of additional evidence as all the materials necessary to determine the fresh point of law are already present in the Records. I am mindful of the Respondent’s submission which is to the effect that the Appellant/Applicant’s contention on whether the proper parties are before the Court is baseless and goes to no issue. In this wise, I can do no more than invite my Lord, Augie, JSC to speak to this. Hear my Lord in EZE vs. UNIVERSITY OF JOS (supra):
“I must add also that at this stage, this Court is not concerned with the validity or otherwise of the fresh issue sought to be raised by the Appellant; that is a matter to be pronounced upon in the event of leave being granted to the Appellant to raise the fresh point or issue. Thus, I will make no observation whatsoever on the issue. Suffice it to say that what I need to consider at this stage is whether or not the fresh issue sought to be raised is really a substantial question of law. In other words, the question must be distinguished from whether or not there is any merit on the point itself, the decision of which can only be taken after full arguments from the parties have been heard.”
I kowtow. Whether the fresh issue which the Appellant/Applicant seeks leave of Court to raise is baseless and goes to issue as contended by the Respondent is not for consideration at this stage. The question of the merit in the issue can only be gone into after the parties have fully argued the issue at the hearing of the appeal.
Having given due consideration to the fresh issue sought to be raised, I am satisfied that discretion ought to be exercised in favour of the Appellant/Applicant by a grant of the leave sought as the fresh issues sought to be raised for the first time in this Court involves substantial points or issues of law. Prayer two of the Motion therefore succeeds and it is hereby granted. The Appellant/Applicant is granted leave to raise and argue fresh issues raised in the appeal as contained in grounds one, two and three of the grounds of appeal.
For purposes of clarity and for good order sake, it is hereby ordered as follows on the application:
1. The Appellant is granted leave to amend the typographical error in the name of the Appellant contained in the Notice of Appeal to read “JEHATA NIGERIA LIMITED” instead of “JEHAJA NIGERIA LIMITED.”
2. The Appellant is further granted leave to raise and argue fresh issues raised in grounds one, two and three of the grounds of appeal.
3. The parties are granted leave to consequentially amend their briefs of argument to reflect the Appellant’s name as amended.
4. The Amended Notice of Appeal and amended briefs of argument are to be filed within twenty-one (21) days from today.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of reading in advance, the ruling just delivered by my learned brother, Ugochukwu Anthony Ogakwu, JCA.
I agree with the reasoning and conclusion reached and abide by the orders made therein.
I make no order as to costs.
ISAH BATURE GAFAI, J.C.A.: I have had the advantage of reading before now, the draft of the ruling delivered by my learned brother Ogakwu, JCA. I agree entirely with my lord’s reasonings and conclusion. I adopt those reasonings as mine.
I abide by the Order on cost.
Appearances:
C. S. Ugwunebo, Esq. For Appellant(s)
N. S. Egbaji, Esq. For Respondent(s)
