ABRAHAM FRAMA v. MISS ITANAGBE HOZAIFE (2013)

ABRAHAM FRAMA v. MISS ITANAGBE HOZAIFE

(2013)LCN/5968(CA)

RATIO

JURISDICTION: WHEN THE ISSUE OF JURISDICTION CAN BE RAISED

It is now trite law that challenge to the jurisdiction of a Court to entertain a matter whether substantive or procedural can be raised by a party for the first time either in the Court of first instance or on appeal to any of the appellate courts. The challenge to the competence of an originating process is a challenge bordering on jurisdiction which can be raised at any stage of the proceedings including an appeal for the first time. See Bronik Motor Ltd. V. Wema Bank Ltd (1983) 1 SCNLR 296. It is clearly a substantial issue of law. I find no feature relating to the originating process at the Court of first instance that can avoid the challenge of its competence in this Court.

In The Court of Appeal of Nigeria

On Monday, the 25th day of February, 2013

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Ruling): In the Notice of Motion filed on 25th September, 2012, the Appellant prays the Court as follows: –

1. AN ORDER granting LEAVE to the Appellant/Applicant to raise and argue a new point of law not raised and argued before the Court, to wit: an issue of jurisdiction to entertain the case.

2. AN ORDER granting LEAVE to the Appellant/Applicant to further amend his Amended Notice and Grounds of Appeal dated the 14th day of August, 2006 but filed on 31st August, 2006 by including the new issue/ground of jurisdiction as an Additional Ground of Appeal.

3. AN ORDER granting LEAVE to the Appellant/Applicant to amend the Appellant’s Brief of Argument to inter alia reflect the argument on the new point of law on jurisdiction vide Ground Eighteen (18) of the Further Amended Notice of Appeal.

4. An Order granting the accelerated hearing of the appeal.

The said issue of jurisdiction is to be found as Ground 18 in Appellants Exhibit 3. It reads:-

“The learned trial Judge lacked the jurisdiction to entertain the suit and enter judgment for the Respondent on the basis of an originating process, to wit: specially endorsed Writ of Summons that was null and void and of no effect having been issued and/or endorsed in the firm name of G. Ofodile Okafor & Company.”

The motion was accompanied by a 15 paragraph Affidavit which the Respondent countered with an 11 point Counter- Affidavit deposed to on 17th October, 2012.

The judgment of the trial Court in this case was delivered on 31st July, 2003 while the Original Notice of Appeal was filed on 7th August, 2003. It has since suffered series of amendments. Briefs have been filed and exchanged and as at 25th September, 2012 when this motion was filed, the appeal was ready for hearing. Prayer 1 seeks to raise and argue a new point of law. While other prayers sought are really consequential to prayer 1.

While this Court has the power to allow an Appellant to raise fresh issues not tried and determined at the lower Court on appeal, it does so only very sparingly. This is because an Appellate Court should not entertain an appeal on issues not joined at the trial Court. It also should have the benefit of the opinion of the trial Court on a point taken before it. See Mogaji V. Cadbury Nig. Ltd (1985) 7 SC 59, United Marketing Co. Ltd. V. Kara (1963) 1 WLR 523.

An Applicant seeking to raise fresh issues must therefore meet at least two stringent conditions:

(a) the fresh issue must involve substantial point of law and

(b) must satisfy the Court that it has placed before the lower Court all facts establishing the issue.

The facts in the Applicant’s Affidavit relevant to meeting these conditions are to be found in paragraphs 7 and 8 of the Affidavit in support which paragraphs are reproduced hereunder:-

“7. That I am informed by P.A. Akubo, SAN, the Principal Partner and leading Counsel in this matter on 24th September, 2012 in our office at about 11 am and I verily believe him to be true as follows:

(a) That after carefully reading through both the original and Supplementary Record of Appeal preparatory to the hearing of the Appeal, he finds it necessary to raise a new point of law on jurisdiction.

(b) That the new point of law on jurisdiction was not raised at the trial before the Lower Court by the Appellant/Applicant.

(c) That the new point of law in question necessitates Further Amendment of the Amended Notice of Appeal dated the 14th day of August, 2006 but filed 31st August, 2006.

(d) That LEAVE of this Honourable Court is required to further amend the Amended Notice and Grounds of Appeal to reflect the new issue, to wit; lack of jurisdiction of the trial Court to entertain the case.

(e) That the new or additional Ground of Appeal in the Further Amended Notice of Appeal is Ground 18 thereof.

(f) That the Further Amended Notice and Grounds of Appeal incorporating the Additional Grounds of Appeal has been prepared. A copy of same is attached and marked as Exhibit ‘3’.”

8. That in light of paragraph 7(a) – (f) – above, it is desirable that the Appellant/Applicant amends the Appellant’s brief of argument dated the 31st day of January, 2007 in this Appeal so as to argue/accommodate the new point and/or issue of jurisdiction raised (contained) in Grounds 18 of the Further Amended Notice of Appeal.

The Respondent joined issues in paragraphs 3 to 9 of the Counter-Affidavit which also are reproduced hereunder: –

“3. That the fresh point now sought to be raised has been over-taken by event as follows:

(a) The Respondent sought for leave to issue the Writ. Copy of the Motion on Notice without affidavit annexed hereto as Exhibit 1. That it was signed by G.O. Ofodile Okafor Esq.

(b) That the Court granted the prayer and the Writ was issued.

(c) That the 2nd Amended Writ and 3rd Further Amended Statement of Claim was filed by leave of Court below. That copy of the Amended Writ is at page 4 to 10 of the Supplementary Record and copies annexed hereto as Exhibit 2.

4. That the Appellant/Applicant responded to the amended Writ and filed Statement of Defence, which was annexed several times.

5. That the Applicant has also filed documents at the trial Court in the name of Akubo & Co. A Motion on Notice dated 13/11/2000 is annexed hereto as Exhibit 3.

6. That the point now sought to be raised as fresh issue is not a substantial point of law, substantive or procedural.

7. That if the point has been raised at the Court below, the Respondent would have offered satisfactory explanation.

8. That I have as a fact that G. Ofodile Okafor Esq. who signed the writ is a legal practitioner and a Senior Advocate of Nigeria practicing as G. Ofodile Okafor & Company.

9. That the Applicant suffered no prejudice throughout the trial and was never misled.”

In arguing the motion, Applicant’s Counsel citing a long list of authorities including Okafor v. Nweke (2007) 10 NWLR (PT. 1043) 521 posited that the defect in the originating process at the Court below was a fundamental defect which avoided the process and raised a substantial issue of jurisdiction. He argued further that want of jurisdiction can be raised at any level even at the Supreme Court for the first time.

In his reply, Respondent’s Counsel accepted that the issue raised is one of procedural jurisdiction but argued further that the defect was such as could be remedied by an amendment at the trial Court. He relied on Unity Bank Plc. v. Denclag Ltd. & Anor (2012) 18 NWLR (pt. 1332) 293 at 327. He therefore argued that having not complained at the Court of first instance, it was too late in the day for the Appellant to challenge the competence of the originating process at the Court of first instance.

Leave is granted the Appellant to raise fresh issue in this appeal to wit: Challenge to the jurisdiction of the trial Court as per ground 18 of Applicant’s Exhibit ‘3’. Leave is granted the Applicant to further amend his Notice and Grounds of Appeal to incorporate ground 18 in Applicant’s Exhibit ‘C’. Leave is further granted the Applicant to amend the Appellant’s brief of argument to reflect argument on the new Ground of Appeal. The Appellant is granted 14 days from date to file the new amended Notice and Grounds of Appeal and the amended Appellant’s brief of argument. The Respondent has 14 days from the service on her of these new processes to make consequential amendments to her brief of argument.

With the present non-existence of Appellant’s brief there is no basis for prayer 4 asking for accelerated hearing. The prayer is refused.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have read in draft, the ruling just delivered by my learned Brother, Agbo, JCA.

The application of the Appellant is equally granted by me in terms of prayers 1, 2 and 3 only, prayer 4 is refused for the reasons contained in the leading ruling. Furthermore, I abide by the consequential orders made in the said ruling and make no order for costs.

JUMMAI HANNATU SANKEY, J.C.A.: I have read before now the Ruling of my lord Agbo, J.C.A. with which I entirely agree. For the reasons set out, I too grant the application in the terms made in the lead Ruling and I abide by the orders made.

Appearances

P.A. Akubo, SAN with him S.Y. Tsok and V.Y. Olaniyi, Esq.For Appellant

AND

G. Ofodile Okafor, SAN with him Mrs. E. Babatunde Adejokun and Mrs. Vera Okey – AmiloFor Respondent