PLATEAU STATE GOVERNMENT & ANOR v. CHIEF HARRY AKANDE & ANOR(2)
(2010)LCN/4038(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of December, 2014
CA/A/11A/2013(R2)
RATIO
FRESH POINT ON APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS A POINT PRESENTED FOR THE FIRST TIME IN A COURT OF APPEAL CAN BE ENTERTAINED
…it is important to state the trite position of the law that a point presented for the first time in a court of appeal ought to be most jealously scrutinized; because this court can only decide in favour of an appellant on a ground put forward for the first time only if it is satisfied that it has all the facts bearing on the contention as would have been the case if the controversy had arisen at the trial and next that no satisfactory explanation could have been offered by those whose conduct is questioned if any opportunity for explanation had been offered to them, see MANAGEMENT ENTERPISES LTD v. OLUSANYA (1987) 2 NWLR (Pt. 55) at 179. PER MOHAMMED MUSTAPHA, J.C.A
JURISDICTION: WHETHER THE ISSUE OF JURISDICTION OF COURT CAN BE QUESTIONED AT ANY STAGE OF PROCEEDINGS
Notwithstanding the contention of learned counsel to the 1st respondent that the procedure adopted is unknown to law, it is clear that jurisdiction of the trial court has been questioned, and where such is the case the rules that points raised for the first time in an appeal will not be entertained does not apply, see MOGAJI v. CADBURY NIG. LTD (1985) NWLR (Pt. 7) at 393; it is the considered opinion of this court therefore that the issue of jurisdiction being what it is the circumstances of this application have as a result become exceptional, see DIN v. FED A.G (1988) 4 NWLR (Pt. 88). PER MOHAMMED MUSTAPHA, J.C.A
RECORD OF PROCEEDINGS: WHETHER COURT OF APPEAL MUST TAKE JUDICIAL NOTICE OF EVERY RECORD OF PROCEEDINGS BEFORE IT
On the transmission of the record of proceedings it is clear that the records of appeal are before this court in two volumes, received on the 26th of February, 2013, and supplementary record received on the 25th of June, 2013; this court cannot play the ostrich and pretend they do not exist, it has to take judicial notice of them in the interest of substantial justice, regardless of the fact that the appellants’ counsel stated a different date in his address for the transmission of the records to this court; this is more so as the transmission of the records to the registry of the appellate court connotes entering of the appeal to all intents and purposes, see OKOTIE-EBOH v. JADESIMI (1999) 8 NWLR (Pt. 616) at 599; the fact that no reply was made to paragraph 4 of the counter affidavit on this issue counts for very little in view of this Position of the law. Having said that this court generally does not shut out litigants, preferring rather to give them the opportunity of being heard on the merit of their case, rather than dwell on technicalities; this is more so where it appears to this court as in the instant case that the respondents are not likely to be prejudiced as no additional evidence will be needed. It is in this regard that it held in MR. JOSEPH OGBESHE v. CHIEF SYLVANUS IDAM (2013) LPELR- 20330(CA) per Tur JCA that “in every situation the courts should endeavour that suits or applications are heard on the merit rather than to employ technicalities to shut litigants or their learned counsel from participating in the proceedings…” The issue of jurisdiction has come up in this case, and Exhibit C has brought up substantial points of law, and it does not appear that fresh evidence will be adduced upon the grant of this application; see ZUMAX NIGERIA LTD v. BLISS INTERNATIONAL (2010) LPELR-9021(CA); in the circumstances therefore it is proper to grant the application as prayed, as the interest of justice will be better served that way; “… the doors of the appellate courts have to be kept open if rights and freedom are to be preserved” UGBA v. SUSWAM (2014) 14 NWLR (Pt. 1427) at 286; accordingly leave is hereby granted to the appellants/applicants to file and argue a fresh issue on appeal as prayed. PER MOHAMMED MUSTAPHA, J.C.A
JUSTICE
MOORE A. A. ADUMEINJustice of The Court of Appeal of Nigeria
TANI YUSUF HASSANJustice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHAJustice of The Court of Appeal of Nigeria
Between
1. PLATEAU STATE GOVERNMENT
2. ATTORNEY-GENERAL OF PLATEAU STATEAppellant(s)
AND
1. CHIEF HARRY AKANDE
2. CENTRAL BANK OF NIGERIARespondent(s)
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Lead Ruling): This is an application brought pursuant to Order 7 Rule 2 of the Rules of this court; it is for an order granting leave to the applicants to file and argue a fresh issue on appeal based on the appeal filed on the 6th of November, 2012, against the judgment of Honourable Justice Abdu A. Kafarati of the Federal High Court Abuja, in Suit Number FHC/L/CS/833/2000, delivered on the 2nd day of November, 2012.
The application is based on the following grounds:
1. That the 1st respondent relied on the judgment of the Lagos State High Court delivered on the 9th of November, 1993 in Suit Number: LD/1278/90 in suit number, FHG/L/CS/833/2000 before the lower Federal High Court Abuja, in contravention of Order IV Rule 8 of the judgment (Enforcement) rules enacted pursuant to the Sheriff and Civil Process Act, Cap 407 Laws of the Federation of Nigeria, 1990.
2. That the fresh issue sought to be filed and argued on appeal before the honourable court which is predicated on ground (a) above touches on the jurisdiction of the Federal High Court, Abuja in Suit Number FHC/LCS/833/2000 to have heard and determined the action.
3. That the fresh issue was not conversed before the lower court.
4. That an appeal against the judgment of lower court delivered on the 2nd of November, 2012 was filed on the 6th of November, 2012.
5. That additional grounds of appeal was filed on the 22nd of January, 2013.
6. That the records of appeal have been transmitted to this honourable court.
The application is supported by a 6 paragraph affidavit deposed to by Nanfa Daniel Delleng; with the notice and grounds of appeal attached as Exhibit A, the additional grounds of appeal as Exhibit B, and Exhibit C the fresh issue sought to be argued on appeal.
The 1st respondent filed a 7 paragraph counter affidavit in opposition to the application, deposed to by one Akonobi Oluchukwu with a copy of the ruling delivered on the 16th of March, 2005 as Exhibit A, and a copy of another ruling delivered on the 18th of March, 2009 as Exhibit B.
Counsel were ordered to file written addresses; learned counsel to the applicant filed his in support of the application dated and filed on the 20th February, 2014; learned counsel to the 1st respondent filed his on the 27th of February, 2014, followed by a reply by learned counsel to applicant filed on the 7th of March, 2014.
Edward G. Pwajok Esq., learned counsel to the applicant formulated a sole issue for determination as:
Whether this honourable court should not use its discretionary power to grant the appellants/applicants’ application for leave to rise and argue a fresh issue on appeal?
Learned counsel to the 1st respondent Rickey Tarfa SAN adopted the issue as formulated, but couched it differently; for the purpose of brevity and clarity the application will be determined on the issue as formulated for the 1st respondent, it is thus:
Whether the appellants/applicants have made out a good case to be granted leave to raise a fresh issue on appeal by the motion and the supporting affidavit?
It is submitted for the applicants that the fresh issue sought to be raised was not raised at the lower court by either the applicants, nor the 1st respondent in their final written addresses, learned counsel referred this court to pages 760-808 and 854-808 of the record; and contended that leave is necessary because the law does not give advantage to one party against the other; he referred this court to DAGACI OF DERE v. DAGAGI OF EBWA (2006) All FWLR (Pt. 306) at 841 and U.T.B. LTD v. DOLMETSCH PHAR. NIG. LTD (2007) All FWLR (Pt. 385) at 446.
That the fresh issue sought to be raised is jurisdictional and so can be raised at any stage of proceedings, especially as it would not require adducing fresh evidence, as the evidence forming the basis of the prayer is in paragraph 4.07 of the submissions for the applicants; he referred this court to F.C.D.A. v. EZINKWO (2007) All FWLR (Pt. 393) at 109.
Learned counsel submitted while referring to A. N. MOHAMMED LTD v. AFRIBANK (NIG) PLC (2007) ALL FWLR (Pt. 344) at 99 that, it will be neater to grant this application and allow parties to be heard on the merit of their arguments before considering the merit of the fresh issue.
On the 1st respondent’s counter affidavit learned counsel submitted that the record of this court shows that the record of appeal was transmitted by the lower court on the 12th of February, 2013; that the respondents will not be prejudiced as they will have the opportunity to respond to the issue sought to be raised; he referred this court to DUKE v. GOVERNOR OF RIVERS STATE (2013) 2 SCNJ 403 at 421 contending that fair hearing dictates so.
Learned counsel further submitted that the court is enjoined to do substantial justice than technical justice and use its discretion to grant this application as prayed.
Learned counsel to the 1st respondent argued preliminarily that the motion is unknown to law because reference was made to a purported record of appeal but the said record is not exhibited to the motion; that no reply was made to the point in paragraph 4 of the counter affidavit that the record is not competent, as a result of which it constitutes an admission; he referred the court to BOSHALI v. COMMERCIAL EXPORTS LTD (1961) 2 SCNLR 322; and argued that all reference to the record go to no issue as this court cannot look into them.
Learned counsel further submitted that the issues sought to be raised did not arise from the pleadings of the parties or claim tried at the trial court; that having seen that they could not successfully attack the judgment they now seek to introduce new defence under the guise of jurisdictional fresh issue.
That leave to raise fresh issue on appeal is not granted to indulge an applicant, the fresh issue must be relevant and a substantial point of law requiring no further evidence to resolve so as not to unfairly prejudice the adverse party; he referred this court to ADEOSUN v. GOV. EKITI STATE (2012) 4 NWLR (Pt. 1292) at 605.
That the issue is not pure ground of law or jurisdiction, as several issues were imbedded in the particulars seeking to justify the application, as such the leave cannot be granted because of the prejudicial consequences for the 1st respondent who has not pleaded facts or led evidence to rebut it at the trial.
Learned counsel also submitted that the issue is not a fresh issue at all, as it was argued and determined at the interlocutory stage at the trial court, where two rulings were delivered on the specific issue of the nature of the claim brought by the 1st respondent against the appellants as per Exhibits A and B to the counter affidavit, which were not appealed and therefore extant and binding; as the present appeal is against the final decision of the trial court delivered on the 2nd of November, 2012.
That there is no valid notice of appeal and so the fresh issue cannot avail the applicants nor can the court grant leave to file additional grounds to be added; he referred this court to IKWEKI v. EBELE (2005) 11 NWLR (Pt. 936) at 426.
That also while it is permissible to include grounds of appeal against an interlocutory ruling in the notice of appeal against a final decision, the interlocutory ruling must not have an argued issue on which separate decision of the court was rendered outside of the final judgment, in which case a separate notice must be filed; he referred this court to NWOKO v. AZEKWO (2012) 12 NWLR (Pt. 1313) at 169.
Learned counsel further submitted that the fresh issue sought to be raised is not related to the pleadings of the 1st respondent, also not one of substantial law, and will require a review of evidence on record; he urged the court to resolve the sole issue against the appellants.
In reply it is submitted for the appellants that there is a valid and competent record of appeal transmitted within time in accordance with Order 8 rules 4 and 5 of the rules of this court.
That courts must always take judicial notice of processes filed before them; he referred this court to NWORU v. NWABUEZE (2011) 17 NWLR (Pt. 1277) at 717 and IBRAHIM v. STATE (2011) 1 NWLR (Pt. 1227) at 1.
That also this court should not pronounce on the substantive appeal which is not yet before the court, as the justice of this case favours the grant of this application at least on the principles of fair hearing; he referred this court to SUMANYA v. NATIONAL PARK (2011) 7 SCNJ (Pt. 17) at 31 and urged this court to grant this application by refusing to succumb to technicalities.
After carefully going through the application along with the grounds, affidavit in support, Exhibits A, B and C; the counter affidavit in opposition to the application along with Exhibits A and B therein, as well as the submissions of learned counsel on both sides of the divide it is important to state the trite position of the law that a point presented for the first time in a court of appeal ought to be most jealously scrutinized; because this court can only decide in favour of an appellant on a ground put forward for the first time only if it is satisfied that it has all the facts bearing on the contention as would have been the case if the controversy had arisen at the trial and next that no satisfactory explanation could have been offered by those whose conduct is questioned if any opportunity for explanation had been offered to them, see MANAGEMENT ENTERPISES LTD v. OLUSANYA (1987) 2 NWLR (Pt. 55) at 179.
Grounds (a) and (b) upon which the application is sought clearly state as follows:
(a) That the 1st Respondent relied on the judgment of the Lagos State High Court delivered on the 9th November, 1993 in suit No. LD/1278/90 institute suit No. FHC/L/CS/833/2000 before the lower court the Federal High Court, Abuja in contravention of Order IV Rule 8 of the Judgment (Enforcement) Rule enacted pursuant to the Sheriff and Civil Process Act, Cap 407, Laws of the Federation of Nigeria, 1990.
(b) That the fresh issue sought to be filed and argued on appeal before the Honourable Court which is predicated on ground(a) above touches on the jurisdiction of the Federal High Court, Abuja in suit No. FHC/LCS/833/2000 to have heard and determined the action.
Notwithstanding the contention of learned counsel to the 1st respondent that the procedure adopted is unknown to law, it is clear that jurisdiction of the trial court has been questioned, and where such is the case the rules that points raised for the first time in an appeal will not be entertained does not apply, see MOGAJI v. CADBURY NIG. LTD (1985) NWLR (Pt. 7) at 393; it is the considered opinion of this court therefore that the issue of jurisdiction being what it is the circumstances of this application have as a result become exceptional, see DIN v. FED A.G (1988) 4 NWLR (Pt. 88).
On the transmission of the record of proceedings it is clear that the records of appeal are before this court in two volumes, received on the 26th of February, 2013, and supplementary record received on the 25th of June, 2013; this court cannot play the ostrich and pretend they do not exist, it has to take judicial notice of them in the interest of substantial justice, regardless of the fact that the appellants’ counsel stated a different date in his address for the transmission of the records to this court; this is more so as the transmission of the records to the registry of the appellate court connotes entering of the appeal to all intents and purposes, see OKOTIE-EBOH v. JADESIMI (1999) 8 NWLR (Pt. 616) at 599; the fact that no reply was made to paragraph 4 of the counter affidavit on this issue counts for very little in view of this Position of the law.
Having said that this court generally does not shut out litigants, preferring rather to give them the opportunity of being heard on the merit of their case, rather than dwell on technicalities; this is more so where it appears to this court as in the instant case that the respondents are not likely to be prejudiced as no additional evidence will be needed. It is in this regard that it held in MR. JOSEPH OGBESHE v. CHIEF SYLVANUS IDAM (2013) LPELR- 20330(CA) per Tur JCA that “in every situation the courts should endeavour that suits or applications are heard on the merit rather than to employ technicalities to shut litigants or their learned counsel from participating in the proceedings…”
The issue of jurisdiction has come up in this case, and Exhibit C has brought up substantial points of law, and it does not appear that fresh evidence will be adduced upon the grant of this application; see ZUMAX NIGERIA LTD v. BLISS INTERNATIONAL (2010) LPELR-9021(CA); in the circumstances therefore it is proper to grant the application as prayed, as the interest of justice will be better served that way; “… the doors of the appellate courts have to be kept open if rights and freedom are to be preserved” UGBA v. SUSWAM (2014) 14 NWLR (Pt. 1427) at 286; accordingly leave is hereby granted to the appellants/applicants to file and argue a fresh issue on appeal as prayed.
MOORE A. A. ADUMEIN, J.C.A.: I read before now the ruling just delivered by my learned brother – MOHAMMED MUSTAPHA, JCA.
I agree that this application has merit and for the elaborate reasons given by my learned brother, I also grant this application in the terms set out in the leading ruling.
TANI YUSUF HASSAN, J.C.A.: I have the privilege of reading in draft the Ruling of my learned brother Mohammed Mustapha, JCA just delivered. Issue of jurisdiction is fundamental which can be raised at any time. I therefore agree with the grant of this application to the appellants/applicants.
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Appearances
For Appellant
AND
Ricky Tarfa SAN, with him, Felex Yokachi Oluchukwu Akonobi, S. E. Alebuna Esq., C. U. Azubuike Esq., for the 1st Respondent
P. Omijie, for the 2nd RespondentFor Respondent
