ALL NIGERIA PEOPLES PARTY V. DR. AHMED MOHAMMED SALIK & ANOR
(2010)LCN/3912(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of June, 2010
CA/A/157/2007
RATIO
WHETHER AN APPELLANT IS ALLOWED RAISE AN ISSUE THAT WAS NOT CANVASSED OR ARGUED AT THE TRIAL COURT WITHOUT THE LEAVE OF THE APPELLATE COURT
It is trite that an Appellant will not be allowed to raise an issue that was not canvassed or argued at the trial Court without the leave of the Appellate Court. The only exception is where the issue of Jurisdiction is involved. See:- -Lawrence vs. A.G.F. (2008) All FWLR Part 426 Page 1901 at 1914 E-G: -Ogunbadejo vs. Adebowale (2008) All FWLR Part 405 Page 1701 at 1716. PER JIMI OLUKAYODE BADA, J.C.A.
WHETHER COURTS HAVE A DUTY TO PROTECT THE EXERCISE OF RIGHT OF APPEAL CONFERRED BY THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999, ON EVERY CITIZEN
It is desirable to point out that it is the duty of every Court to protect the exercise of Right of Appeal conferred by the Constitution of the Federal Republic of Nigeria 1999, on every citizen of this country. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
MARY UKAEGO PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
ALL NIGERIA PEOPLES PARTY Appellant(s)
AND
(1) DR. AHMED MOHAMMED SALIK
(2) INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Ruling): This is an Application dated the 12th day of November 2009 and filed on the same date. The Appellant/Applicant prayed for the following orders:-
“(1) Varying or setting aside the Order of this Honourable Court dated 4th June 2009 adjourning the Appeal for hearing against 30th November 2009.
(2) Leave to amend the Notice of Appeal dated 11th April 2007 by adding ten additional Grounds of Appeal shown in Exhibit 3 attached to the Affidavit in support of this Motion paper.
(3) Amending the Notice of Appeal dated 11th April 2007 by adding ten additional Grounds of Appeal shown in Exhibit “3” attached to the Affidavit in support of this Motion Paper.
(4) Leave of this Honourable Court to raise fresh issues of jurisdiction, competence of Court and Fair Hearing contained in Grounds 6 to 15 in Exhibit 3 attached to the Affidavit in support of the Motion Paper.
(5) Renumbering the Amended Notice of Appeal in a chronological order starting from the original Grounds of Appeal to the additional Grounds of Appeal and in the manner shown in Exhibit 4 (totaling 15 Grounds) attached to the Affidavit in support of the Motion Paper.
(6) Deeming the Amended Notice of Appeal as properly filed and served upon payment of appropriate filing fees.
(7) Directing the Amended Notice of Appeal to form part of the record of proceedings in this Appeal.
(8) Substituting or subjoining the Appellant’s Brief of Argument dated 4th June 2008 in this Appeal with an entirely different Appellant’s Brief of Argument No. 2 herein attached as Exhibit 6.
(9) Deeming as properly filed and served the Appellant’s Brief of Argument No. 2 upon payment of appropriate filing fees.
AND for such further Order or other Orders as this Honourable Court may deem fit to make in the circumstances of this application.”
The Grounds upon which the Application is brought includes:-
“(i) The Appellant has just briefed Nureini Jimoh Esq. of Nureini Jimoh Chambers, a new Counsel who reviewed the entire case and saw the need for amendment of the Notice of Appeal and re-prepared the Appellant’s Brief of Argument in line with the new Notice of Appeal.
(ii) The Additional Grounds of Appeal raised, purely, issues of jurisdiction, competency of the trial Court to entertain the suit and breach of fair hearing by the Court. Leave of Court to raise these issues are required ex-abundanti Cautela.
(iii) The Amended Notice of Appeal and the Appellant’s Brief of Argument No. 2 needed to be deemed as properly filed and served to expedite the hearing of this appeal.
(iv) The Affidavit in support of the Motion paper copiously and explicitly explained and supports the reliefs sought in this Application.
(v) The Application ought to be allowed in the interest of Justice.
The Application is supported by an Affidavit of 12 Paragraphs, pertinent Paragraphs of which are 3 – 17 reproduced as follows:-
“(3) The Appellant/Applicant has just briefed Messrs Nureini Jimoh Chambers to take over and lead Mr. Chijioke Kanu, in the prosecution of the Appeal. A copy of the letter of instruction is herewith attached and marked as Exhibit 1.
(4) Mr. Nureini Jimoh and I made spirited effort to secure the record of proceedings as well as the Briefs of Argument exchanged so far by parties in this Appeal and succeeded (sic) only on the 6th day of November, 2009 to receive copies of the processes.
(5) In the course of study of the record by Mr. Nureini Jimoh and myself, we discovered:
(a) The Original Notice of Appeal which forms the basis of the Appellant’s Brief was not part of the record of proceedings.
(b) The said Notice of Appeal dated 11th April 2007 and dully filed by Messrs Mohammed Ibrahim Tola Esq. on behalf of the Appellant is herewith attached as Exhibit 2.
(6) Mr. Nureini Jimoh and myself have closely studied the record of proceedings and the Notice of Appeal, Exhibit 2 herein, and found out the serious/urgent need to amend same so as to bring out all the relevant and important issues of Jurisdiction, competence of Court and breach of fair hearing, amongst others, discovered in the proceedings before the Court below.
(7) After careful study of the record of proceedings, Mr. Nureini Jimoh and I discovered and or saw the need for ten (10) new Grounds of Appeal in addition to existing Five (5) Grounds of Appeal. A copy of the proposed additional Grounds of Appeal is herewith set out and marked as Exhibit 3.
(8) It is important to allow the amendment to enable all issues in controversy to be effectually and fully brought out and determined.
(9) The additional Grounds of Appeal (Exhibit 3) borders on, amongst others, issues of Jurisdiction, Competence of the trial Court and breach of fair hearing, amongst others.
(10) Out of abundance of caution, it is desirable to seek leave of this Honourable Court to file same.
(11) The Original Notice of Appeal has five Grounds of Appeal and the proposed additional Grounds of Appeal has eight (sic) Grounds of Appeal. It is necessary and important that the two Notices of Appeal be combined together, re-numbered chronologically in their order of filing and filed as one. A copy of the amended Notice of Appeal consisting of all the Grounds of Appeal (Exhibit 2 & 3 herein) reflecting the renumbering is herewith attached and marked as Exhibit 4.
(12) The certified true copy of the Judgment of the Court below being appealed against is herewith attached and marked as Exhibit 5.
(13) The Appellant had previously through his former counsel filed an Appellants Brief of Argument. It is necessary that all the argument in the newly Amended Notice of Appeal be comprised and or contained in a new Appellant’s Brief of Argument which will replace or subjoin the old Appellant’s Brief of Argument. The new Appellant’s Brief of Argument No. 2 which will be substituted for the old Appellant’s Brief is herewith attached and marked as Exhibit 6.
(14) The Amended Notice of Appeal and the new Appellant’s Brief of Argument No. 2 could be deemed as properly filed and served upon payment of appropriated filing fees.
(15) It is desirous that all the necessary papers be brought out once and for all, and filed timeously to enable quick determination of this appeal.
(16) It is essential that this Honourable Court direct that the Amended Notice of Appeal forms and be part of the records of proceedings in this Appeal.
(17) The Notice of Appeal contained at page 65-67 of the record of proceedings is the one filed by the 2nd Respondents (INEC) which has been abandoned and or unprosecuted to date.”
In opposition to the Application, the learned Counsel for the 1st Respondent filed a 17 Paragraph Counter-Affidavit, pertinent Paragraphs of which are 4 – 16, reproduced as follows:-
“(4) That I say categorically that the Application is a ploy to delay the hearing of this Appeal and foist in this Honourable Court a situation of fait accompli.
(5) That the Appellant filed this Appeal since April, 2007 and has deliberately used it to perpetrate injustice.
(6) That exactly the same Application seeking the same relief to amend the Notice of Appeal and file additional grounds of Appeal was filed on the 3rd of August, 2007.
(7) That the ground upon which that application was brought is the same with this Application that a new Counsel has been briefed and he feels there is a need to file additional grounds.
(8) That the earlier Application was heard on the 13th of May, 2008.
(9) That despite the fact that Counsel to 1st Respondent did not oppose the Application, the Appellant never filed the said additional grounds.
(10) That when this matter came up on the 19th of March, 2009, the new Counsel (Nureini Jimoh) alleging to have just been briefed recently in this matter by the Appellant was actually in Court with the old Counsel even though he did not announce appearance.
(11) That the Appellant is deliberately using this Motion to delay the hearing of this Appeal which subject-matter is with respect to a seat at the National Assembly for a fixed term which ends by May, 2011 (a little time over a year from now).
(12) That I was informed by my principal that the Appellant had all the time in the world to have briefed another Counsel to take charge of their matter rather than wait until very close to the date fixed for hearing before briefing a Counsel who now seeks to amend over two years after the Appeal was filed.
(13) That the Appellant is merely using the new Counsel as an excuse to further delay the hearing of the Appeal.
(14) That it is in the interest of justice that this Appeal be heard as the Appellant had filed its Appellant’s Brief and we have responded to it.
(15) That the one of the grounds upon which the Appellant is seeking to amend the notice is that the record of appeal (they compiled) is faulty.
(16) That I know that the procedure to challenge an incompetent record is not through a Ground of Appeal.”
In reaction to the Counter-Affidavit, the learned Counsel for the Appellant/Applicant filed a 7 Paragraph further Affidavit pertinent Paragraphs of which 2 – 5 reproduced as follows:-
“(2) The Original Notice of Appeal dated 11th April 2007 was filed before the Court below on 18th April, 2007 and the endorsement of filing is contained at the foot of front page of the Notice of Appeal. The said original Notice of Appeal with the endorsement of filing which is now illegible due to process of photocopying was attached to the Affidavit in support of the Motion on Notice dated 12th November 2009 sworn to by Olawale Akande as Exhibit 2. A clearer copy is herewith attached as Exhibit 8.
(3) The said Original Notice of Appeal was filed by the former Counsel but was inadvertently left out in the compiled Record of Appeal. The Registrar of the Court below acknowledged the filing and service of the Notice of Appeal in Civil Form 9 attached to the Record of Appeal. The date of filing the Notice of Appeal is acknowledged on the face of the Record of Appeal as 18th April 2007.
(4) It has become expedient to certify, Exhibit 2 (the same as Exhibit 8), the Original Notice of Appeal in this case. A certified true copy of the said certified true copy of the Notice of Appeal is herewith attached and marked as Exhibit 9.
(5) It is in the interest of Justice to consider this Affidavit and grant the Application in issue.”
Written addresses were ordered in this Application.
At the hearing, the learned Counsel for the Appellant/Applicant referred to the further affidavit filed on 19/4/2010, the written address filed on 29/3/2010 and the Appellant’s reply filed on 19/4/2010. He adopted the two addresses in urging the Court to grant the Application.
He stated further that the 1st Respondent filed his Respondent’s written Address out of time and that the said written address was not regularized. He urged that it should be discountenanced.
The learned Counsel for the 1st Respondent on the other hand stated that the Respondent’s written Address was filed on 13/4/2010. He said that he was served with the Appellant/Applicant’s written address on 30/3/2010, and the Court gave the Respondent 7 days after service of Appellant’s written address within which to file the Respondent’s written address.
He adopted the said 1st Respondent’s written address in urging that the Application should be dismissed.
The learned Counsel for the 1st Respondent also drew the attention of the Court to the further affidavit filed on behalf of the Appellant/Applicant after the filing of the 1st Respondent’s written address. He contended that the said further affidavit was an attempt by the Appellant/Applicant to overreach and that it is prejudicial to the 1st Respondent. He urged that it should be discountenanced.
The learned Counsel for the Appellant/Applicant in his response urged this Court not to discountenance the further affidavit filed on 19/4/2010. He relied on the case of:-
– Oyewole v. Akande (2009) 15 NWLR Part 1163 Page 119 Particularly at 138 G.
The learned Counsel for the Appellant/Applicant submitted that the 1st Respondent’s written Address was filed out of time although Counsel for the 1st Respondent submitted that the written Address was filed within time.
In this type of situation, it would be appropriate to refer to the Court’s record.
This Court on 22nd day of March 2010 gave an order that the Appellant/Applicant should file his written Address within 7 days from 22/3/2010 and upon service on the Respondents they are to file their own written Address within 7 days thereafter.
The Counsel for the 1st Respondent was served with the Appellant/Applicant’s written Address on 30/3/2010, 7 days from 30/3/2010 was to expire on 6/4/2010. The 1st Respondent’s written Address was not filed until 13/4/2010, and there was no application to regularize the position of the 1st Respondent. Clearly, the 1st Respondent filed his written address outside the time stipulated by the Court which was 7 days from when the 1st Respondent was served on 30/3/2010.
In the circumstance, the 1st Respondent’s written address was filed out of time and it is hereby discountenanced.
Now, coming to the issue of the further Affidavit filed after the 1st Respondent filed his own written address.
It is my view that the said further Affidavit is necessary in view of the points raised in the Counter-Affidavit. The Justice of this case therefore demands that the further Affidavit should be allowed in order to give a clear picture on the important issue of the Original Notice of Appeal raised by Counsel for the 1st Respondent.
It is also on record that the 2nd Respondent in this Application was served with all relevant processes and the hearing Notice which showed that this case was for hearing on 20/4/2010 but nothing was filed on behalf of the 2nd Respondent and it was not represented in Court.
In the circumstance, it is my view that the 2nd Respondent was aware that this Application was fixed for hearing on 20/4/2010.
The learned Counsel for the Appellant/Applicant formulated two issues for determination. The issues are set out as follows:-
“(1) Whether this Application is a ploy to further delay the hearing of this Appeal.
(2) Whether this Application is meritorious and did not meet all the principles and law warranting the grant of same.”
It would be recalled that the 1st Respondent’s written address having been filed out of time had been discountenanced in this Application.
I am left with only the Appellant/Applicant’s written Address.
Issue 1
Whether this Application is a ploy to further delay the hearing of this Appeal.
The learned Counsel for the Appellant/Applicant raised the question whether the processes filed by the new Counsel are candid, fair and in a manner consistent with the best interest of Justice. He answered the question positively. He stated that if the processes are fully before the Court as now done and not being piecemeal, then the issue of ploy to delay will become a non-issue.
He submitted that the new Counsel brought in, has a duty to present the case of his client to the best of his professional ability. He referred on the cases of:-
– Inakoju v. Adeleke (2007) All FWLR Page 353:
– Owners/Charters/Operators of MV’G & C Admiral v. Adeniran (2007) All FWLR Part 344 Page 18.
In the instant Application under consideration, the learned Counsel for the Appellant/Applicant has included in his application the amended Notice of Appeal and the Appellant’s brief of Argument. He incorporated into the Notice of Appeal the issue of Jurisdiction, competence of the suit and the issue of fair hearing. He has also filed a new Notice of Appeal and new Appellant’s Brief of Argument to enable the Court entertain this Appeal without further delay. All that he has done showed that he has been meticulous in his duty to afford his client with the best defence. The only thing remaining is for the Respondents to file their own response to the processes filed on behalf of the Appellant/Applicant.
It is therefore my view that this Application is not a ploy to further delay the hearing of this Appeal.
In the circumstance, this issue is hereby resolved in favour of the Appellant/Applicant.
Issue 2
Whether this Application is meritorious and did not meet all the principles and law warranting the grant of same.
The learned Counsel for the Appellant/Applicant referred to the 9 prayers in the Application. He stated that prayer 1 is spent and he applied to withdraw it. He went further that prayers 2 to 9 could be categorized into three (3) namely:-
(1) Notice of Appeal.
(2) Leave to raise fresh issues of law.
(3) Brief of Argument.
The prayers are accordingly to him – to amend the Notice of Appeal by filing additional Grounds of Appeal, Renumbering the Grounds of Appeal, Deeming same as properly filed and served and incorporating it as part of the record of proceedings. He relied on:-
– Order 6 Rules 2, 4, and 15 of the Court of Appeal Rules 2007:
– Eze v. A.G. Rivers State (1999) 9 NWLR Part 619 Page 430 at 433.
Another issue raised is that the record of Appeal before this Court did not contain the Appellant’s Original Notice of Appeal. Learned Counsel for the Appellant/Applicant submitted that this Court undoubtedly has the power to make any order for the necessary determination of the real question in controversy in the Appeal and amend any defect or error in the record of Appeal.
He relied on:-
– Section 15 of the Court of Appeal Act and the case of:
– Udenigwe v. Emenalo (2009) All FWLR Part 454 Page 1544 at 1561 – 1562.
He finally urged that this application be granted.
This application seeks among others, leave to amend the Notice of Appeal by filing additional Grounds of Appeal. In this type of situation, the Appellant requires leave of the Court to file the additional Grounds of Appeal. The request for the leave is asking for the exercise of discretionary power of the Court. And the exercise of discretionary powers by the Court is not as a matter of course but it has to be exercised judicially and judiciously.
In this application, the Original Notice of Appeal was included as Exhibit 2. And the learned Counsel for the Appellant asked for the leave of Court to file additional Grounds of Appeal and also to raise fresh issues of law as contained in Grounds 6 to 15 of Exhibit 3 attached to the Affidavit in support of the Application.
It is trite that an Appellant will not be allowed to raise an issue that was not canvassed or argued at the trial Court without the leave of the Appellate Court. The only exception is where the issue of Jurisdiction is involved. See:-
-Lawrence vs. A.G.F. (2008) All FWLR Part 426 Page 1901 at 1914 E-G:
-Ogunbadejo vs. Adebowale (2008) All FWLR Part 405 Page 1701 at 1716.
It is desirable to point out that it is the duty of every Court to protect the exercise of Right of Appeal conferred by the Constitution of the Federal Republic of Nigeria 1999, on every citizen of this country.
The steps taken by the Appellant are in accordance with Order 6 Rules 4, 8, 12 and 15 and Order 17 Rules 3 and 11 of the Court of Appeal Rules 2007. Therefore, this issue is resolved in favour of the Appellant/Applicant.
In the circumstance, it is my view that this application is meritorious and I hereby grant the prayers sought as follows:-
(1) Order as prayed.
Leave is hereby granted to the Appellant/Applicant to amend the Notice of Appeal dated 11/4/2007 by adding ten additional Grounds of Appeal in terms of Exhibit 3 attached to the application.
(2) Leave is also granted to the Appellant/Applicant to raise fresh issues of Jurisdiction, Competence of Court and fair hearing contained in Grounds 6 to 15 of Exhibit 3 attached to the affidavit in support of the Application.
(3) The Amended Notice of Appeal renumbered in chronological order starting from the Original Grounds of Appeal to the additional Grounds of Appeal as shown in Exhibit 4 attached to the Affidavit in support of the Application shall be filed in this Court within 14 days from today.
(4) It is hereby directed that the Amended Notice of Appeal shall form part of the record of proceedings in this Appeal.
(5) The Appellant’s Brief of Argument dated 4/6/2008 is to be substituted with Appellant’s Brief of Argument No. 2 attached as Exhibit G to the Application.
(6) The said Appellant’s Brief of Argument No. 2 shall be filed in this Court within 14 days from today.
(7) Relief No. 1 for variation of the hearing date having been withdrawn is hereby struck out.
There shall be no order as to costs.
MARY UKAEGO PETER-ODILI, J.C.A.: Having had the advantage of reading the draft Ruling of my learned brother, Jimi Olukayode Bada JCA, I have no difficulty in identifying with the decision and reasonings thereof. I have nothing else to add as I abide the orders of my Brother.
ABDU ABOKI, J.C.A.: I have read in draft the lead Ruling delivered by my learned brother, Jimi Olukayode Bada, J.C.A. I agree with the reasoning and conclusions of my Lord. I also abide with the Orders made therein as well as the Order as to costs.
Appearances
NUREINI JIMOH with him are S. O. IROEGBA and AGBO GLADYSFor Appellant
AND
ADEMOLA BAKARE with him O. A. SHOREMIFor Respondent
