AGRICULTURAL AND RURAL MANAGEMENT TRAINING INSTITUTE (ARMTI) V. MR. S.F. BAIYERE
(2004)LCN/1656(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of November, 2004
CA/IL/14/2003
RATIO
APPEAL: WHETHER OR NOT FRESH ISSUE CAN BE RAISED AT APPEAL STAGE
It is trite that a fresh issue can be raised for the 1st time at the appeal stage with the leave of court properly sought and obtained. PER TIJJANI ABDULLAHI J.C.A.
An amendment even to the Notice and Grounds of appeal talkless of brief of arguments can be made so long as the amendment would serve the end of justice and fairness and the other party can be compensated by costs. PER TIJJANI ABDULLAHI J.C.A.
JUSTICES:
MUHAMMAD S. MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria
DAVID ADEDOYIN ADENIJI Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
AGRICULTURAL AND RURAL MANAGEMENT TRAINING INSTITUTE (ARMTI) – Appellant(s)
AND
- S.F. BAIYERE – Respondent(s)
TIJJANI ABDULLAHI J.C.A.: (Delivering the Lead Ruling): The application dated the 11th day of February 2004 and filed on the same day by the applicant is praying for the following orders:
i. An order granting leave to the respondent to Amend his Brief of Argument as attached to the Affidavit in support of the motion and marked as Exhibit ‘C’.
ii. An Order that the Amended Brief of Argument of the Respondent be deemed as having duly filed and served.
The application is supported by a 7 paragraph Affidavit, attached to the said Affidavit are three Exhibits, A, B, and C. It is further supported by another Affidavit titled Reply to Counter Affidavit. It was dated and filed on the 5th day of March, 2004.
This Affidavit consists of 15 paragraphs. Attached to it is Exhibit D, a letter to the Hon. Attorney-General by the counsel to the Appellant/Respondent. This reply to the Counter Affidavit like the supporting Affidavit was deposed to by the Applicant/Respondent himself.
Counsel for the Applicant/Respondent Mr. John Olusola Baiyeshea, moving his application placed reliance on the averments contained in the two supporting Affidavits stated therein. Reliance was also placed on Exhibits A, B, and C attached thereto.
Learned counsel submitted that only one issue calls for determination in the said application to wit:
“Whether having regard to the general circumstances of this case, it is proper for this Honourable Court to exercise discretion to grant the appellant’s prayer to amend his brief of argument.”
Learned counsel submitted that the facts deposed to in the two Affidavits are sufficient for the court to exercise its discretion in favour of his client. He drew the attention of the court to Order 1 Rule 19(1) of the Court of Appeal, Rules 2002 and contended that the court has the power to grant the application under the provision of the said Rule.
Learned counsel further submitted that reinstatement is an issue in this appeal and referred the court to the processes filed in this case, especially the briefs of argument. Learned counsel went on to submit that it is relevant and important to draw the attention of the court to the fact of reinstatement in reply to counsel’s submission in the appellant’s brief that the appellant is not willing to reinstate the applicant. Learned counsel contended that the reinstatement that has taken place is a fact which should not be kept away from the court.
Learned counsel submitted that the interest of Justice will better be served if the application is granted. It is the contention of the learned counsel that by granting the application, the respondent will have nothing to lose. On the contrary, the applicant has a lot to lose if the application is not granted as there is no other way by which the fact of his reinstatement can be brought before the court. He cited the case of: First Bank vs. May Clinics (2001) 4 SCNJ 1 at p. 20 to buttress his submission.
Learned counsel for the appellant/respondent Chief Mrs. V.O. Awomolo (SAN) like counsel for the respondent/applicant also formulated one issue for determination to wit:
“Whether the amendment being sought derive from the grounds of appeal filed by the Appellant/Respondent or the case at the Lower Court.”
Learned senior counsel in opposing the application submitted that the amendment being sought and the arguments on them are not related to any of the grounds of appeal filed in the appeal. The attached Exhibits A and B, she further submitted did not relate to the case at the lower court from where the appeal emanated.
Learned senior counsel contended that the issue of reinstatement and payment of October salary were never canvassed at the court below and did not germinate from any of the grounds of appeal. She submitted that any issue for determination which is not tied to or related to any of the grounds of appeal, is incompetent and cannot be countenanced. Learned counsel contended that the proposed amendment and arguments ought to be discountenanced and refused. She relied on the following cases.
1. Madiebo vs. Nwakwo (2002) 1 NWLR (pt. 748) page 426 at p. 436.
2. Omoliko vs. Awachie (2002) 12 NWLR (pt. 780) page 1 at p.23.
On the case of First Bank vs. May Clinics (supra), learned counsel submitted that it is inapplicable in this application. There is no amendment to the grounds or notice of appeal that can accommodate the amendment being sought. What is being sought to be amended or added is a completely new development, which occurred after the case had been concluded and which did not form part of the record of appeal or the case at the lower court, she further submitted. It is the submission of the learned counsel that the respondent cannot be compensated by costs as envisaged by the case relied by the learned counsel for the applicant. She finally urged the court to refuse the application.
It is pertinent to state on the onset that the main issue for consideration in this application is whether or not the Applicant/Respondent having been reinstated by the appellant/respondent in compliance with the judgment of the Federal High Court after appeal, grounds of appeal and arguments have been filed, the interest of justice will be better served if the fact of his reinstatement is brought to the knowledge of the court by granting leave to the respondent to amend his brief of argument by adding paragraph 4.05 to pages 13 and 14 thereof.
Learned counsel for the appellant/respondent submitted that the issue of reinstatement was not an issue canvassed at the lower court and did not germinate from any of the grounds of appeal. Learned counsel for the applicant conceded the fact that the issue of reinstatement of the applicant did not take place in the course of trial in the court below. This he submitted is obvious if it took place at that stage then this application will have been unnecessary. I am inclined to agree with the submission of the learned counsel on this point. The leave of this court is being sought to amend the brief of argument to raise the issue. After all it is trite that a fresh issue can be raised for the 1st time at the appeal stage with the leave of court properly sought and obtained.
The submission of the learned counsel that the issue of reinstatement did not germinate from any of the grounds of appeal is not borne out of the record of appeal compiled by the appellant. This is so because in their ground five of appeal, the issue of reinstatement has been made alive issue. The said ground states thus:
5. “The learned trial judge erred in law in failing to hold that the conduct of the plaintiff/Respondent upon which he was dismissed was most reprehensible and no court can force upon unwilling employer an unwanted, recalcitrant and thieving employee in avoidance with the principle laid down by the Supreme Court in the case of OLATUNBOSUN VS. NISER.”
Needless to say, the appellant filed five grounds of appeal and the 5th ground stated supra is one of the grounds of appeal. It cannot therefore be said that the issue of reinstatement did not germinate from any of the grounds as canvassed by the learned senior counsel. It is my view that the amendments and arguments sought relate to ground 5 of the appeal.
The facts and the circumstances of the case of Madiebo & 5 others vs. Nwanko (supra) are quite different from the one we have in this appeal. It was held in that case that argument proffered on an issue not covered by ground of appeal will not be considered by the court of Appeal where its leave to proffer the argument was not sought and had. This case cannot be called in aid of respondent. I have held elsewhere in this Ruling that reinstatement is covered by ground 5 of the appeal. In any event the application is for leave of the court to allow the applicant/respondent incorporate the issue of reinstatement in his brief of argument.
Similarly, the case of Omoliko vs. Awochie (supra) cannot be called in aid of the appellant/respondent in that it was held in that case that an argument which does not relate to any ground of appeal should be discountenanced. The argument for which amendment is sought relates to ground 5 of their grounds of appeal. That aside, the issue of reinstatement is the 3rd issue for consideration formulated by the appellant.
It is now settled that issues admitted need no further proof. The appellant/respondent admitted in their counter Affidavit that the respondent had in fact been reinstated. That being the case, the question of certification of documents becomes irrelevant and cannot be invoked to defeat this application.
In the case of First Bank of Nigeria PLC and May Medical Clinics and Others (supra) it was held as per Uwaifo J.S.C. thus:
“The fact that briefs of argument have been filed and exchanged and an appeal is virtually ready for hearing will not prevent the court from exercising its undoubted discretion to allow an amendment both to the Notice and Grounds of appeal and the brief of argument so long as the amendment would serve the end of Justice and fairness and the other party can be compensated by costs.” (underline by me for emphasis)
In this case of Pharmatek Industrial projects Ltd vs. Bayo Ojo (1996) 1 NWLR (Pt.424) 332 at p. 338, an application was filed by the appellant for an order granting leave to the appellant to amend its Notice of Appeal and for another order amending the appellant’s Notice of appeal in line with the proposed amended Notice of appeal. In the Affidavit filed it was deposed inter-alia that the amendment sought was to bring clearly all the issues in controversy between the parties for effective and effectual -resolution. The respondent filed a counter affidavit in opposition to the application contending that briefs of arguments have been filed and exchanged and as such the respondents would suffer great costs if the application was granted. It was held by Abdullahi J.C.A. as he then was thus:
“The facts that briefs of arguments have been filed and exchanged and an appeal virtually ready for hearing would not prevent the court from exercising its discretion to allow an amendment of either the brief of argument or even the Notice and Grounds of appeal, so long as the amendment would serve the course of Justice and fairness.”(Underline are mine for emphasis).
It is my view that flowing from the decisions of the two cases (supra) an amendment even to the Notice and Grounds of appeal talkless of brief of arguments can be made so long as the amendment would serve the end of justice and fairness and the other party can be compensated by costs. (underling are mine for emphasis).
Learned senior counsel contended that the Respondent can never be compensated by costs envisaged by the case of First Bank vs. May Clinics (supra). With respect to the learned senior counsel, I cannot see how the respondent cannot be compensated by costs. The learned counsel did not State how the Respondent can never be compensated. I am of the opinion in the circumstances of this application that he can be adequately compensated by costs.
In conclusion, the amendment sought would serve the ends of justice and fairness and would also bring out clearly all the issues in controversy between the parties for effective and effectual resolution. The application is meritorious and same is hereby granted. Leave is granted to the applicant/respondent to amend his brief of argument in this case by adding paragraph 4.05 to pages 13 and 14 thereof as shown in the respondent’s amended brief of argument attached hereto as Exhibit C. That the amended brief of argument is deemed to have been duly filed and served today.
I award N2,000.00 costs to the Appellant/Respondent.
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.: I had a preview of the leading ruling just read and delivered by my learned brother Abdullahi J.C.A. I agree with his conclusions leading to the conclusion that the application could be granted.
The application is properly before us. We are satisfied that the matters sought to be amended can be perfectly amended within the Provisions of Order 1 Rule 19(1) of the rules of this court 2002. I think the learned counsel to the applicant is quite in order in seeking for leave of this court to make use of the fact of their re-instatement in the appeal before us. Especially when the issue of re-instatement of the Applicant was a fact which can not be altered and it was not a strange issue at the lower court. I agree that the amendment sought will help to ensure that the complaints of the appellant/Respondent herein against the proceeding in issue are brought to court for its consideration. I do not think that the mere fact that the appeal is ripe for hearing can prevent this court from exercising its unfettered discretion to allow an amendment both to the notice, grounds of appeal and the brief of argument. One thing is clear to me that to allow such amendment would enhance the ability of this court to do justice to both sides. After all, the Appellant/Respondent could be fairly compensated by costs. In line with: FIRST BANK V. MAY CLINICS (2001) 4 SCNJ 1 at 20/21 PER UWAIFO JSC OR (2001) 9 NWLR (Part 717) 28/40 PER OGWUEGBU JSC, when he stated thus:
“The application of the Appellant was brought in utmost good faith and not intended to overreach and the grant of it by the court below appears to be the only avenue for determining the question in controversy between the parties or correcting any defect or error in the proceedings. Leave to amend notice of appeal is provided in the Court of Appeal Rules and special circumstances are not needed to justify the amendment. The discretion of the court to grant it is unhampered provided it is exercised judicially and judiciously. See In Re STOCKTON IRON FURNACE COMPANY (1879) 10 Ch.D. 335. The powers of the court below to order amendments and generally to make orders as are necessary to produce a just result extend to amendment of notice of appeal and brief of argument”.
In sum this application succeeds. Same is granted as prayed. The amended brief of argument attached as Exhibit C is deemed properly filed and served today. I endorse the order as to costs in the leading ruling of my Lord Abdullahi, J.C.A.
DAVID ADEDOYIN ADENIJI, J.C.A.: I have read in draft, the leading ruling by my learned brother Tijani Abdullahi, J.C.A. and I agree with his reasoning and conclusion in the case.
The issue of reinstatement clearly featured one of the grounds of appeal to wit ground 5 of same. It is therefore a live issue calling for consideration, to ensure that all issues in controversy are canvassed for eventual resolution. I do not see how injustice can by such amendment be done to the case for the appellant, that is going by the case of the First Bank of Nigeria Plc v. May Medical Clinics & Anr (2001) 4 SCNJ 1 at p20/21 or (2001) 9 NWLR (Pt.717) 28 at p40 per Ogwuegbu J.S.C. cited in the leading ruling.
I therefore agree that there is merit in the application which is hereby granted as prayed. The amended brief of argument attached to the application is deemed properly filed and serve. I abide by the consequential orders made in the leading ruling including the order for costs.
Appearances
Mr. J.O. Baiyeshea;
Wahab Ismail, Esq; For Appellant
AND
Mrs. V. O. Awomolo;
Miss K.O. Jaiyeola; For Respondent
