ABDULLAHI ABUBAKAR GUMEL v. WAHEED OLADAPO MAKANJUOLA & ORS
(2016)LCN/9145(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of December, 2016
CA/A/362/M1/2012
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
Between
ABDULLAHI ABUBAKAR GUMEL Appellant(s)
AND
1. WAHEED OLADAPO MAKANJUOLA
2. HON. MINISTER F.C.T.
3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY Respondent(s)
RATIO
WHETHER OR NOT AN AMENDMENT OF COURT PROCESS SHOULD ALWAYS BE ALLOWED
It is now settled that however negligent or careless, the amendment may have been, however late the proposed amendment, it should be allowed so long as it can be done without prejudice to the other side. An amendment should also be granted unless it will entail injustice to the respondent or the applicant is acting mala fide, and, a Court will not refuse an amendment simply because it introduces a new case but would only refuse where amendment will result in a complete change of action into one of substantially different character.” PER AKOMOLAFE-WILSON, J.C.A.
WHETHER OR NOT AN APPLICATION FOR AMENDMENT IS A RIGHT OF A PARTY
It is now well settled that an application for amendment is a right of a party to enable him present his case in the way it appears best to him once it does not occasion injustice to the other party. See U.B.N. Plc v. Dafiaga (2000) 1 NWLR (Pt. 640) 175; Aigbe v. Erhabor (1998) 7 NWLR (Pt. 557) 255. PER AKOMOLAFE-WILSON, J.C.A.
WHETHER OR NOT A PARTY WIL BE ALLOWED TO RAISE ANY FRESH ISSUE OR POINT ON APPEAL
On the issue of leave to raise and argue fresh points/issues for the first time in this Court by the applicant, it is well settled that a party will not be allowed to raise on appeal any fresh issue or point not raised in the Court below unless with leave of the appellate Court sought or obtained. This is so because the jurisdiction of the Court of Appeal is primarily to review by way or rehearing, the decision or decisions of the lower Court. The rationale behind this is that the Court below must have been given the opportunity to pronounce on the issue to avail the appeal Court of its decision on the matter and to enable the appeal Court review the lower Court’s pronouncement on same judiciously. See the following cases:
1. Eronini v. Eronini (2013) 4 NWLR (Pt. 1373) 32 at 51, Paras. D-G,
2. Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570 at 606,
3. F.J.S.C. v. Thomas (2013) 17 NWLR (Pt. 1384) 503 at 531,
4. Tanksale v. Rubee Medical Centre Ltd. (2013) 12 NWLR (Pt. 1369) 548 at 561 and
5. Okpoko Comm. Bank Ltd. v. Igwe (2013) 15 NWLR (Pt. 1376) 167 at 180-181 Paras. G-A.
The Apex Court held in the case of Udo v. R.T.B.C. & S. (2013) 14 NWLR (Pt. 1375) 488 (Ratio 3) that:
“Leave to raise and argue fresh points on appeal is not just granted as a matter of course. There are conditions the applicant must meet. Some of the principles governing raising of fresh points on appeal or at the Supreme Court are as follows:
(a) Before granting an appellant/applicant leave to raise a fresh point on appeal, the Court must be satisfied beyond doubt that it has all the facts pertaining to the new point to be raised and where the point was raised at the lower Court, it would have remained unsatisfactorily determined.
(b) Where an applicant wishes to raise a fresh issue and the issue involves substantial point of law, substantive or procedural, and no further evidence would be required in the determination of the issue, the Supreme Court will readily allow such an application in order to prevent miscarriage of justice.
(c) Where an appellant ex facie demonstrate that the lower Court had proceeded without jurisdiction, the appellate Court will also accommodate his\her plea to raise it as a fresh issue in order to ensure that a nullity does not survive.
(d) Notwithstanding that the point sought to be raised ex facie rests on jurisdiction, the applicant will be refused leave if in essence his endeavor is to introduce a new line of defence different from that of the parties at the Court below.
(e) The applicant must further satisfy the Court that in spite of due diligence on his part it was impossible to raise the point and have same exclusively determined by the lower Court.
(f) Leave to argue fresh issue on appeal should only be granted in situations where the fresh issue was either not considered at the lower Court or at all envisaged. Where however it is otherwise as in the instant case, it would not be held as fresh issue.”
The overriding duty of Courts is to do substantial justice between parties. This principle entitles appellate Courts to find exceptions to their primary duty of determining appeal before them solely on the basis of the issues raised and determined at the Court below. One of such exceptions is to allow leave to litigants to raise fresh point for the first time on appeal, having not raised same at the trial or the Court below. See Udo v. R.T.B.C. & S. (supra) at 501-501, Paras H-A. PER AKOMOLAFE-WILSON, J.C.A.
TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Lead Ruling): The appellant/applicant by a motion on notice dated and filed on 13th August, 2012, prayed for the following orders:
“1. An order of Court granting leave to the appellant/applicant to amend his notice and grounds of appeal dated the 25th day of April, 2012 and filed on the 26th day of April, 2012 as contained in the schedule of amendment attach hereto and marked Exhibit ‘B”.
2. An order of Court granting leave to the appellant/applicant to file and argue additional grounds of appeal not contained in the Notice of Appeal filed on the 26th day of April, 2012 by the addition of new grounds eleven, twelve and thirteen as contained in the proposed amended notice of appeal. Copy is attached to the affidavit in support of the motion on notice and marked Exhibit “C”.
3. An Order of Court granting leave to the appellant/applicant to raise and argue fresh points/issues for the first time in the Court of Appeal same having been pleaded at the trial Court but not canvassed/argued and others were not raised nor argued at the trial Court.
4. An order of Court
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extending the time within which the appellant/applicant may file his brief of argument in this appeal time permitted by the rules of this Honorable Court having lapsed.
5. An order of this honourable Court deeming the Amended Notice of Appeal as having been duly filed and served.
6. An order of this honourable Court deeming the brief of argument of the appellant in this appeal as having been duly filed and served.
AND for such further or other orders as this honourable Court may deem fit make in the circumstances.”
The grounds for the reliefs set on the motion paper are thus:
“a) In the course of research and preparation of the appellant’s brief of argument, it was discovered that grounds of appeal filed did not clearly bring out the entire issues involved in the appeal for proper determination hence the need to amend the grounds of appeal.
b) It was further realized that certain mandatory provisions of the Land Use Act and Land Registration Act were not complied with which affected the competence of the 1st respondent to institute the legal action and the jurisdiction of the trial Court to entertain and determine the action.
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c) Due to oversight on the part of counsel that handled the case for the appellant and the trial Court to avert his mind to the provisions of the laws, the points of law were left undecided.
d) The point sought to be raised and argued are substantial points of law and were not raised and argued at the trial Court and it is necessary to raise and argue the points to prevent obvious miscarriage of justice.
e) Amending the grounds of appeal will bring out clearly the real issues in controversy for effective and effectual resolution in the interest of justice and finality of litigation.
f) It is now necessary for the appellant to bring this application praying for leave to amend the grounds of appeal, for leave to file and argue additional grounds of appeal: leave to raise and argue fresh points not raised and argued at the Court.
g) The time permitted by the rules of this honourable Court for the appellant to file his brief of argument has lapsed.
h) It is noted that some documents which are legally inadmissible in evidence were admitted in evidence and relied upon by the learned trial judge.
i) It is observed that the learned
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trial judge failed to examine and evaluate the documentary evidence before him in his judgment.
j) It is also noted that counsel that represented the appellant/applicant at the trial Court though pleaded the issue of the locus standing of the plaintiff to institute the action, failed to canvass or argue the issue at the trial of the action.
k) That counsel that represent the appellant at the trial Court though pleaded the issue of validity of the grant of statutory right of occupancy to the plaintiff over the subject matter during the subsistence of his right of occupancy, failed to canvass or argue the issue at the trial of the action.
l) That the prior consent of the Minister (2nd respondent) to the transaction leading up to the execution of the power of attorney was not first sought nor obtained as required by Section 22 of the Land Use Act and consequently, the document is null and void and that the plaintiff acquired no interest or right under it to institute the action against the appellant.
m) That the power of attorney is by virtue of Section 3 (2) and 6 of the Land Registration Act Cap 515 LFN 1990 required to be registered and
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having not been so registered was by Section 15 unpleaded and inadmissible in evidence and consequently, the learned trial judge erred in law in not expunging the document from the record but relying upon it to enter judgment for the plaintiff.
n) That inadmissible evidence cannot be proper basis for declaration of right.
o) That the appellant statutory right of occupancy was not vividly nor validly revoked before same parcel of land was allocated to the 1st respondent.
p) The appellant has filed and served clean copies of the Amended Notice of Appeal and of the Brief of Argument.
In support of the application, the appellant/applicant filed an affidavit of 7 paragraphs deposed to by one Kenneth C. Ezenwuzie, a legal practitioner of Biodun Akin-Arina & Co.
Annexed to the affidavit in support are Exhibits “KC1, KC2, KC3 and KC4”. Exhibit “KC1” is a copy of the Notice of Appeal filed on the 26th April 2012, Exhibit “KC2” is the schedule of proposed Amendment, Exhibit “KC3” is the proposed Amended Notice of Appeal and Exhibit “KC4” is the proposed Brief of Argument of the appellant/applicant. Also in support of the application is
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a further and better affidavit dated and filed on the 31st October, 2013 consisting of 14 paragraphs deposed to by same Kenneth C. Ezewuzie.
In opposition to the application, 1st respondent filed a counter affidavit on 2nd October, 2012 consisting of 11 paragraphs deposed to by one Ogunleye Ayotunde, a legal practitioner of Awomolo & Associates.
In compliance with the Order of this Honourable Court, the appellant/applicant and the 1st respondent filed their written addresses. The 2nd and 3rd respondents failed to file their counter affidavit and written address. The applicant’s address was adopted by his counsel and urged the honourable Court to grant the application as prayed and the 1st respondent’s address was also adopted by his counsel and urged the honourable Court to refuse the application. Learned counsel for 1st respondent while adopting the 1st respondent’s address applied to withdraw the written address filed on 17th January, 2014. The Court accordingly struck out the written address filed on 17th January, 2014 having been withdrawn.
In the written address settled by Biodun Akin-Aina, Esq. for the appellant/applicant, a
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lone issue was raised for determination thus:
“Whether the appellant/applicant’s extant application is worthy of being granted by this honourable Court in the circumstances”
In his own written address settled by Ebuka Nwaeze, Esq. for the 1st respondent, a sole issue was also raised for determination which is:
“Whether fresh issues/points that were not tried or pronounce upon by the trial Court can be.”
The issue formulated by the appellant/applicant is more embracing. I adopt it as the real issue for consideration in this application.
“Whether the appellant/applicant’s extant application is worthy of being granted by this Honourable Court in the circumstances”
Arguing the application, learned counsel for the applicant relied on Section 15 of the Court of Appeal Act, Court of Appeal Rules, and Section 6 (6)(A) of the Constitution of the Federal Republic of Nigeria (As Amended) which gives this honourable Court ample powers to grant all the prayers of the applicant.
He submitted that this Honourable Court has the discretion to allow the applicant to amend his Notice and Grounds of Appeal subject to the applicant
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first seeking for and obtaining the leave of this Court. He relied on these cases:
1. Nzurike v. Obioha (2001) 10 NWLR (Pt. 722) 613 at 615 (Ratio 3)
2. Unity Bank Plc v. Bouari (2008) 7 NWLR (Pt. 1086) 372 at 397 Para. H, 398 Para. A and
3. Isheno v. J.B. (Nig.) Plc (2008) 6 NWLR (Pt. 1084) 582 at 607 Para. E, line 4 to Para, F-G.
It is further submitted that at the stage of an application for leave to file additional grounds of appeal, the honourable Court is not supposed to examine the merit and the competence or otherwise of the proposed additional grounds of Appeal. He cited in support the case of Tsokwa Motors (Nig) Ltd. v. U.B.A. Plc (2008) 2 NWLR (Pt. 1071) 347 at 355 (Ratio 11).
On the principle governing the raising and arguing of fresh points/issues tor the first time on appeal, learned counsel for the applicant submitted that the fresh points/issues sought to be raised by the applicant will not require fresh/further evidence and will not introduce new line of case entirely.
He further submitted that the point of law which the applicant seeks to raise with leave of this Court is substantial. No further evidence
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would be adduced which will affect the new point and that the refusal of leave of this Court to argue the fresh points will occasion a miscarriage of justice or other exceptional circumstance. Learned counsel for the applicant relied on the case of NASCO Management Services Ltd. v. A.N. Amaku Transport Ltd. (1999) 1 NWLR (Pt. 588) 578 at 578 (Ratio 2)
It was also submitted that the granting of leave to the applicant to raise and argue fresh points sought basically goes to the spirit of fair hearing as the seeking of leave of this Court will afford parties the opportunity of addressing the honourable Court. He relied on Jov v. Dom (1999) 9 NWLR (Pt. 620) 538 at 547 Para. B line 3 to Para C.
He finally submitted that this Court has unfettered discretion to allow or refuse the grant of this application and in exercising this discretion, the Court is enjoined to consider the justice of the case and also exercise the discretion judiciously and judicially.
He urged the Court to grant the application as prayed.
?In his response, learned counsel for the 1st respondent submitted that the issues constituting fresh point for which leave is
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sought were never tried, pleaded, canvassed, or pronounced upon by the trial Court. He contended that the issue sought to be raised does not involve jurisdiction or any substantial point of law and that to introduce these new issues will require the taking of fresh evidence in this honourable Court which will overreach the 1st respondent and will amount to miscarriage of justice. He cited the cases of Garuba v. Omokhodion (2011) 15 NWLR (Pt. 1269) 145 at 176 Para. B-E and N.D.I.C. v. S.B.N. Plc (2003) 1 NWLR (Pt. 801) at 357-400 to support his position.
Learned counsel for the 1st respondent outlined the conditions to be satisfied by an applicant seeking to raise fresh issue on appeal and submitted that the appellate Court will refuse to grant leave to raise fresh issue where the point sought to be raised for the first time introduces an entirely new case or line of defence different from issues raised by the parties at the trial Court.
He challenged Ground L in support of the applicant’s motion on notice and contended that the applicant cannot invite the Court to inquire into the registration of the power of attorney as such issue was not
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supported by the pleading of the applicant and it will require taking fresh evidence before this Court. He maintained that this is not allowed by the law as it will overreach the 1st respondent. He relied on Adeosun v. Gov. Ekiti State (2012) 4 NWLR (Pt. 1291) 581 at 604-605, Paras. G-H.
It is also the contention of learned counsel for the 1st respondent that the defence of mistake of counsel being called in aid by the applicant will not avail him because the counsel that handled the case at the trial Court left no stone unturned. He noted that the applicant was afforded reasonable time and facility for his defence and as such he was given the right to fair hearing. It was submitted that there is no admission by a way of an affidavit or any other means required by law to show that failure of applicant’s counsel to canvass issues as referred to in Ground C in support of this applicant is due to any oversight. He relied on the case of Henshaw v. Ekpeluma (2010) All FWLR (Pt. 540) 1399 at 1361 Paras. A-C
Learned counsel for the 1st respondent urged the honourable Court to dismiss the applicant’s argument and refused the application as lacking in
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merit.
By virtue of Order 6 Rule 15 of the Court of Appeal Rules 2011, notice of appeal may be amended by or with the leave of Court at any time. In the case of Oloro v. Falana (2011) 117 NWLR (Pt. 1275) 207 at 216 paras. G-H, this Court held thus:
“Order 6 Rule 15 of the Rules of this Court 2007 provides that, notice of appeal may be amended by or with leave of the Court at any time. The Rule in effect provides that a notice of appeal may be amended by an appellant with the leave of the Court at anytime even before judgment and special circumstances need not be shown to justify the amendment sought.”
In the same case at page 217, Paras. D-G it was held that:
“Therefore Courts have very wide discretion in granting or refusing the grant of an amendment be it of pleadings, proceedings or even any notice of appeal based on an established principle that fundamental object of adjudication is to decide the rights of parties and not impose sanctions merely for mistakes made by the parties in the conduct of their cases by deciding otherwise than in accordance with their right. In deciding whether to allow amendment or not, the Court must
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exercise its discretion judicially and judiciously. Therefore the primary consideration should always be whether the amendment sought is for the purpose of determining in the existing suit, the real question or questions in controversy between the parties. It is now settled that however negligent or careless, the amendment may have been, however late the proposed amendment, it should be allowed so long as it can be done without prejudice to the other side. An amendment should also be granted unless it will entail injustice to the respondent or the applicant is acting mala fide, and, a Court will not refuse an amendment simply because it introduces a new case but would only refuse where amendment will result in a complete change of action into one of substantially different character.”
It is now well settled that an application for amendment is a right of a party to enable him present his case in the way it appears best to him once it does not occasion injustice to the other party. See U.B.N. Plc v. Dafiaga (2000) 1 NWLR (Pt. 640) 175; Aigbe v. Erhabor (1998) 7 NWLR (Pt. 557) 255.
?On the issue of leave to raise and argue fresh points/issues for
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the first time in this Court by the applicant, it is well settled that a party will not be allowed to raise on appeal any fresh issue or point not raised in the Court below unless with leave of the appellate Court sought or obtained. This is so because the jurisdiction of the Court of Appeal is primarily to review by way or rehearing, the decision or decisions of the lower Court. The rationale behind this is that the Court below must have been given the opportunity to pronounce on the issue to avail the appeal Court of its decision on the matter and to enable the appeal Court review the lower Court’s pronouncement on same judiciously. See the following cases:
1. Eronini v. Eronini (2013) 4 NWLR (Pt. 1373) 32 at 51, Paras. D-G,
2. Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570 at 606,
3. F.J.S.C. v. Thomas (2013) 17 NWLR (Pt. 1384) 503 at 531,
4. Tanksale v. Rubee Medical Centre Ltd. (2013) 12 NWLR (Pt. 1369) 548 at 561 and
5. Okpoko Comm. Bank Ltd. v. Igwe (2013) 15 NWLR (Pt. 1376) 167 at 180-181 Paras. G-A.
The Apex Court held in the case of Udo v. R.T.B.C. & S. (2013) 14 NWLR (Pt. 1375) 488 (Ratio 3) that:
“Leave
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to raise and argue fresh points on appeal is not just granted as a matter of course. There are conditions the applicant must meet. Some of the principles governing raising of fresh points on appeal or at the Supreme Court are as follows:
(a) Before granting an appellant/applicant leave to raise a fresh point on appeal, the Court must be satisfied beyond doubt that it has all the facts pertaining to the new point to be raised and where the point was raised at the lower Court, it would have remained unsatisfactorily determined.
(b) Where an applicant wishes to raise a fresh issue and the issue involves substantial point of law, substantive or procedural, and no further evidence would be required in the determination of the issue, the Supreme Court will readily allow such an application in order to prevent miscarriage of justice.
(c) Where an appellant ex facie demonstrate that the lower Court had proceeded without jurisdiction, the appellate Court will also accommodate his\her plea to raise it as a fresh issue in order to ensure that a nullity does not survive.
(d) Notwithstanding that the point sought to be raised ex facie rests on
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jurisdiction, the applicant will be refused leave if in essence his endeavor is to introduce a new line of defence different from that of the parties at the Court below.
(e) The applicant must further satisfy the Court that in spite of due diligence on his part it was impossible to raise the point and have same exclusively determined by the lower Court.
(f) Leave to argue fresh issue on appeal should only be granted in situations where the fresh issue was either not considered at the lower Court or at all envisaged. Where however it is otherwise as in the instant case, it would not be held as fresh issue.”
The overriding duty of Courts is to do substantial justice between parties. This principle entitles appellate Courts to find exceptions to their primary duty of determining appeal before them solely on the basis of the issues raised and determined at the Court below. One of such exceptions is to allow leave to litigants to raise fresh point for the first time on appeal, having not raised same at the trial or the Court below. See Udo v. R.T.B.C. & S. (supra) at 501-501, Paras H-A.
In the instant case, considering the issue of
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raising and arguing fresh issues/points on appeal, I agree with the contention of learned senior counsel for the 1st respondent that the appellate Court will refuse to grant leave to raise fresh issue where the point sought to be raised for the first time introduces an entirely new case or line of defence different from the issues raised by the parties at the trial Court.
In the instant application, on the first relief the amendment sought is mainly the addition of new Grounds 11, 12 and 13 and some paragraphs been inserted and others deleted in Grounds 1, 2, 3 and 4 as contained in the schedule of proposed amendment of notice and grounds of appeal. The amendment sought by the applicant particularly Grounds 11, 12 and 13 are issues not pleaded, canvassed nor pronounced upon by the trial Court. The appellant/applicant in his amended statement of defence never pleaded the issue of seeking prior consent of the Minister Federal Capital Territory (2nd respondent) in the execution of the power of attorney. I therefore agree with the submission of learned senior counsel for the 1st respondent that the applicant cannot invite this honourable Court to inquire
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into the registration of the power of attorney as such issue was not pleaded in the applicant’s amended statement of defence at the trial Court. This will require taking fresh evidence in respect of this issue before this Court which is not allowed by the law as it will overreach and constitute instrument of ambush against the 1st respondent. See the cited case of Adeosun v. Gov. Ekiti State (supra); See also Fescum & Co. Ltd. v. F.A.A.N. (2010) 15 NWLR (Pt. 1216) 311, International Bank Plc. v. Olam (Nig.) Ltd. (2013) 6 NWLR (Pt. 1315) 468.
In Garuba v. Emokhodion (supra) the Court at page 176 Paragraphs B-E held that:
“Where a point of law has not been taken in the lower Court and it is put forward by an appellant for the first time in an appellate Court, that Court is not to decide the point unless it is satisfied that it has before it all the facts bearing on the new contention as completely as if it had been raised in the lower Court that is Court of first instance, and on satisfactory explanation that could have been given in the lower Court if it had been so raised. That is to say, in regard to this, the points being canvassed on the
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supposition that they have constituted legal issues cannot be raised without the benefit of additional evidence, otherwise they become otiose. Per Chukwuma-Eneh, JSC.”
See also N.D.I.C. v. S.B.N. Plc (supra) at page 400 where the Court held thus –
“An appeal is not a new action but a continuation of the matter which is the subject of the appeal. It is a complaint against a decision. For an issue to be relevant to be considered in an appeal, it is required to be related to and be confined to the complaint on the decision appealed against, and becomes incompetent when this condition is not met.”
Considering the issue of raising and arguing fresh issues/points on appeal, it is the law, as submitted by the learned counsel for the 1st respondent that the appellate Court will refuse to grant leave to raise fresh issue where the point sought to be raised for the first time introduces an entirely new case or line of defence different from the issues raised by the parties at the trial Court.
Having carefully perused the proposed amended notice of appeal and the fresh issues sought to be raised and argued for the first time on appeal, it is
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observed that the fresh issues bother on illegality of the right of the 1st respondent in respect of Plot No. 2866 measuring 2,360.39 sq. meters lying and situate at Asokoro (Ao4) whereas the defence of the appellant/applicant at the trial Court was priority of allocation. Particularly in Paragraphs 3-5 of the appellant’s amended statement of defence, the appellant averred in Paragraph 3 that the 1st and 2nd defendants allocated to him plot No. 2866, Asokoro (Ao4) measuring 2,360.39 sq. metres on 17/5/2001 a period of more than 1 year before the purported allocation of same parcel of land to Mr. Oluwaseun Obasanjo (the 1st respondent’s donor of power of attorney) on 12/8/2002. In Paragraph 5 of the appellant’s pleadings, he averred that contrary to Paragraphs 10 & 11 of the 2nd further amended statement of claim his documents were re-certified on the 22/10/2004 much earlier than Mr. Oluwaseun Obasanjo purportedly did his own on 29/6/2005. In the above paragraphs it is clear that the appellant’s averments centre on the priority of allocation at the trial Court because he claimed to have acquired the plot of land before Mr. Oluwaseun Obasanjo.
In my
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view, raising the issue of illegality of the right of the 1st respondent in respect of the land in dispute will also require taking fresh evidence in this Court. One of the conditions to be satisfied by an application in raising and arguing fresh points on appeal is to satisfy the Court that the issue involves substantial point on law and no further evidence would be required in the determination of the issue.
In the cited case of Adeosun v. Gov. Ekiti State (supra) at 604-605, Paras. G-H, the Supreme Court held that:
“The leave of Court to raise fresh issue limits the issue to be raised to the case of the parties as pleaded, the evidence on record in support of their contending positions and the judgment of the Court thereon. The fresh issue cannot be at large otherwise it would constitute an instrument of ambush against the opponent.”
I hold the view that the above condition is not satisfied by the applicant.
?A calm perusal of the proposed amendment of the Notice of Appeal shows that the crux of the amendment is the issue of the validity of the power of attorney. The complaint is that it was not registered as required by Land
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Registration Act, Cap. 515, Laws of Federation of Nigeria 1990 and the prior consent of the Minister was not sought pursuant to the Land Use Act, Cap 202 Laws of the Federation of Nigeria 1990. As stated earlier, these issues are not in any way supported by the pleading of the applicant at the Court; neither were they raised or pronounced upon by the Court. The Apex Court has made it clear that “a party can invite the Court at any stage of a suit to determine the validity of any legal document that will be used in the course of the proceedings in the suit. However, the invitation would be proper only if the legal validity of the said documents was put in issue in the pleadings of the parties before the Court. If that was not alone, the invitation is of no effect as in the case of the respondents”.
See Adeosun v. Gov. Ekiti State (supra) at P. 606 Paragraphs E-F.
On the issue of defence of mistake of counsel that handled the case for the applicant at the trial Court, the general rule is that mistake of counsel should not be visited on litigant. This dictum has become a common feature in our Courts which counsel employ when their client’s case is in
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a tight corner. Counsel capitalizes on these sometimes perceived mistakes and call upon the Court to do substantial justice as against the technicalities of law. The Courts have therefore pronounced some exceptions to this rule.
The Court held in the case of Unegbu v. Unegbu (2004) 11 NWLR (Pt. 884) 332 at 336, Paras. F-C that:
“The rule is of course, subject to two important exceptions, firstly, as noted on page 143 of the report of Akanbi v. Alao (Supra), the indulgence is limited to procedural matters and, secondly, the protection is available only where counsel to the party claiming the benefit admitted that he made a mistake; See Onuaguluchi v. Ndu (2000) 11 NWLR (Pt. 679) 519, 553.”
See also the case of N.I.W.A. v. S.P.D.C.N. Ltd (2008) 13 NWLR (Pt. 1103) 48 at 66-62 and the cited case of Henshaw v. Ekpeluma (supra) at 1361.
Considering Ground 6 in support of the applicant’s motion it states that “It was further realized that certain mandatory provisions of the Land Use Act and Land Registration Act were not complied with which affected the competence of the 1st respondent to institute the legal action and the jurisdiction of
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the trial Court to entertain and determine the action”.
Furthermore, Ground C states that “Due to oversight on the part of the counsel that handled the case for the appellant at the trial Court to avert his mind to the provisions of the laws, the points of law were left undecided”.
In the instant case, the mistake of the counsel that handled the case at the trial Court was based on substantive law and not procedural matters as one of the exceptions to the general rule. The question is whether this can be regarded as a mistake to warrant the Court’s discretion to permit leading fresh evidence on appeal which ultimately will change the character of the defence of the appellant at the Court below? Based on the decided case of Unegbu v. Unegbu (supra) the indulgence is limited to procedural matters but in this case learned counsel for the applicant made reference to Land Use Act and Land Registration Act (substantive laws). Secondly, the protection is available only where counsel to the party claiming the benefit admitted that he made a mistake, that is, an affidavit is required from the counsel himself admitting the fault.
?In this
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application, there is no admission by way of an affidavit or any other means required by law to show that failure of the applicant’s counsel that handled the case at the trial Court to avert his mind to the provisions of the law as referred to in Ground C in support of the application is due lo oversight.
Having regards to the following, I hold the view that this application for the amendment of Notice of Appeal based on raising fresh points on appeal lacks merit and it is hereby refused and dismissed.
Prayers 4 and 6 on the motion paper is for an extension of time within which the appellant/applicant may file his brief of argument and deem same as having been filed and served.
The prayer for extension of time is granted as prayed. The period within which the appellant/applicant is to file his brief of argument is extended by 14 days from today. However the prayer to deem the Appellant’s brief of argument as filed and served is refused as the Appellant’s brief of argument dated 13th August, 2012 and filed on 13/12/2012 contains issues predicated on the proposed amendment of the notice of appeal which has already been
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refused.
There shall be no order as to cost.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the lead Ruling of my learned brother Akomolafe-Wilson, JCA just delivered and I agree entirely with his reasoning and conclusion.
It will amount to granting the appellant/applicant another bite at the cherry to the detriment of the respondents and against everything fair and just to allow the raising and argument of fresh issues when those issues were in fact pleaded but were abandoned at the trial Court. It shows the clear intention of the appellant not to pursue those issues. He cannot now wake up without any concrete evidence that his counsel made a mistake. I therefore dismiss those prayers and abide by the other orders contained in the lead Ruling.
TANI YUSUF HASSAN, J.C.A.: I have read the Ruling delivered by my learned brother, Tinuade Akomolafe-Wilson, JCA.
?I agree with the reasoning and conclusion therein. No order as to costs.
26
Appearances
K. C. Ezewuzie, Esq.For Appellant
AND
Asiwaju Adegboyega Awomolo (SAN) with him, Eyitayo Fatogun, Esq., Mrs. Sandy Tadafewa and Miss Chinedu Okoro for 1st RespondentFor Respondent