DAGO v. DAGO (2020)

DAGO v. DAGO

(2020)LCN/14608(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Monday, September 07, 2020

CA/S/140/2018(R)

RATIO

PLEADINGS: WHETHER A FRESH ISSUE CAN BE RAISED ON APPEAL.

It is beyond any doubt or per adventure that in general terms it is the attitude of this Court and appellate adjudication not to allow an Appellant to raise on appeal, issues or questions, which were not raised nor tried, considered and pronounced upon by a lower Court. This is so because an appeal should be fought on the same issues as were fought in the lower Court and also because this Court, for example, not being a Court of trial but of rehearing should have the benefit of views of the lower Court on the point taken before it. See UNITED MARKETING CO. LTD V. KARA (1963) 1 WLR 523 and MOGAJI V. CADBURY (NIG) LTD (1985) 7 SC 59.
However, it is not all doom and gloom, a point not presented in a lower Court may be allowed to be raised in this Court but subject to a very strict scrutiny. According to some of the most relevant decided cases on this principle, the scrutiny involves a consideration and a finding that the new issue or fresh point must be on a question involving substantial point of law, substantive or procedural. Added to that, this Court must be satisfied that it has before it, all the facts bearing upon the fresh issue completely as would have been the case if the point had been raised at the lower court. See AKPENE V. BARCLAYS BANK (NIG) LTD (1977) 1 SC 47. A fresh issue may also be allowed to be raised, upon a proper application to this Court, where the raising of that issue would prevent an obvious miscarriage of justice. See ATT. GEN. OYO STATE V. FAIR LAKES HOTEL LTD (supra), FADIORA V. GBADEBO (1978) 3 SC 219, BANKOLE V. PELU (1991) 8 NWLR (PT. 211) 523 and ADEWOLE V. ADESANOYE (1998) 3 NWLR (PT. 541) 175. Per ALI ABUBAKAR BABANDI GUMEL, J.C.A.

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

IBRAHIM KAFINTA DAGO (Successor Of Hoke Dago) APPELANT(S)

And

RUKUNA DAGO RESPONDENT(S)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): In an application filed on 10th July, 2019, the Appellant/Applicant seek for the following main reliefs. They are:-
“1. AN ORDER of this Honourable Court granting the Appellant/Applicant leave to raise fresh issues in Appeal No. CA/S/140/2018 now pending before this Honourable Court.
2. AN ORDER of this Honourable Court granting the Appellant/Applicant leave to file and argue additional grounds of appeal in Appeal No. CA/S/140/2018 now pending before this Honourable Court.
3. AN ORDER of this Honourable Court granting the Appellant/Applicant leave to amend his Original Notice of Appeal by incorporating the additional grounds of appeal,
4. AN ORDER deeming the Amended Notice of Appeal hereto annexed and filed separately alongside with this application, as properly filed and served the necessary fees having been paid.
5. AN ORDER of this Honourable Court granting the Appellant/Applicant an enlargement of time within which to file his Appellant’s Brief of Argument in Appeal No. CA/S/140/2018 now pending before this Honourable Court.
6. AN ORDER deeming the Appellant’s Brief

of Argument filed on the 5th day of November, 2018 as properly filed and served the necessary fees having been paid”.

The grounds for the application are:-
“1. Before the lower Court the Appellant/Applicant argued only issue of jurisdiction of the trial Court to entertain and adjudicate upon the suit and the suit was determined solely on jurisdiction.
2. The Appellant/Applicant intends to raise new/fresh issues before this Honourable Court and thus, file additional grounds of appeal.
3. The additional grounds of appeal are very relevant and are contained in the proceedings and judgment of the trial Court.
4. The Appellant/Applicant is out of time to file his Appellant’s Brief of Argument and leave of the Court is a condition precedent to file same out of time.
5. That this Honourable Court has the powers to hear and determine this humble application.
6. The Respondent will not be prejudiced by the grant of this humble application”.

The application was brought pursuant to Order 6 Rules 1 and 9 (1) and (2), Order 15 Rule 2 of the Court of Appeal Rules, 2016, Section 15 of the Court of Appeal Amended Act, 2010

and under the inherent powers of this Court. It is supported by a 15 paragraphs affidavit with Exhibits (a), (b) and (c) attached thereto. The Respondent did not file any counter affidavit but sought to oppose the application on points of law.

The application having become contentious, this Court ordered respective learned counsel to file and exchange written addresses, they obliged the Court accordingly. The written address of the Appellant/Applicant was filed on 6th February, 2020, while that of the Respondent was filed on 11th March, 2020. At the hearing of the application before us on 9th June, 2020 respective learned counsel to the parties adopted and relied on the filed and exchanged written addresses. While learned counsel to the Applicant urged on us to grant the application, learned counsel to the Respondent urged that the application be refused and dismissed.

In arguing the application in his written address, learned counsel to the Applicant began by underscoring the perspective of the objection of counsel to the Respondent in paragraph 1.2 at 3. He then went on to fault the stand and perspective of the Respondent in general

terms. Thereafter, learned counsel Mr. Fingilla for the Applicant explained that the objection to the reliefs in this application is a misconception. He asserted that a party is allowed to raise fresh issues on appeal irrespective of whether it is an issue of law or fact, provided it applied and sought for the leave of Court to do so.

To support his assertion, learned counsel cited and quoted very extensively from the decisions of this Court in A–Z PETROLEUM PRODUCTS LTD V. SUREGATE INTEGRATED (NIG) LTD (2019) LPELR – 48937 (CA) at 8 – 9 F – E and LAWSON & ORS. V. POLFA (NIG) PLC & ORS. (2019) LPELR – 48931 (CA) at 14 – 16. In conclusion, learned Counsel was quick to point out that grounds 5 and 6 of the proposed grounds of appeal are grounds of law. He urged on the Court to grant the application and discountenance the objection of the Respondent.

In his response, learned counsel to the Respondent began by an explanation that an Appellant who seeks to raise and argue fresh issues which were not canvassed before the trial Court must show that the issues he seeks to raise and argue involve substantial

questions of law. He cited and quoted from the decision of the Supreme Court in ATTORNEY GEN. OF OYO STATE V. FAIRLAKES HOTEL LTD (1988) 5 NWLR (PT. 92) 1. According to learned counsel it was the view of the apex Court that an Appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial Court, but where the question involves substantial point of law. Substantial or procedural and it is plain that no further evidence needs to be adduced.

And while looking and focussing on the fresh or new issues sought to be raised in grounds 5 and 6 of the proposed grounds of appeal, learned counsel pointed out that they are issues of fact. He then referred to and quoted very extensively from the decision of this Court in NASCO MANAGEMENT SERVICES LTD V. A.N. AMAKU TRANS. LTD (1998) LPELR – 6450 where it was held that it is always important for an appellate Court to have the benefit of the views of a lower Court on any issue to be decided in an appeal before it. Learned Counsel further relied on the decision of the Supreme Court in CORPORATE IDEAL INSURANCE LTD V. AJAOKUTA STEEL CO. LTD & ORS (2014) LPELR

– 22255 (SC) 23 D – F where the same principle was emphasised that leave may be granted to a party to raise a new or fresh issue on appeal if it was on a substantive point of law or procedure. The Supreme Court added that a new issue of law or procedure may be allowed to be raised if by doing so it would prevent an obvious miscarriage of justice.

On the 2 decisions of this Court that learned Counsel to the Applicant relied on, learned Counsel to the Respondent argued that they cited out of context and under a misconception. He urged on this Court to so find and refuse this application.

I have carefully read and considered all the processes filed in this application, the arguments and submissions of respective learned counsel as well as the decided cases cited by them. In deciding whether to grant or refuse this application, it is important to first and foremost focus on the decision of the lower Court that led to this appeal. It is a very short judgment. At the risk of prolixity but in the overall interest of clarity, I wish to reproduce it in full thus:-
“We have carefully read the record of proceedings in this appeal and gave

due consideration to the submissions of Learned Counsel. we are in agreement with the submissions of Mr. Ka’oje for the Appellant that the issue of jurisdiction is so fundamental that it can be raised at any stage, even on appeal before the Supreme Court. We have perused the whole record of proceedings before us but are able to see any stated fact with respect to the location of the land in dispute to determine whether it falls within the purview of the law declaring urban areas in Kebbi State. The appellant approached the District Court with his complaint and throughout the determination of the case even after he engaged a Counsel, no attempt was made to raise the issue of jurisdiction of the trial District Court. In our view the sketch map which Learned Counsel referred to is not part of the record of proceedings before us and it is not within our jurisdiction to now consider it, out of the records of the trial Court before us without securing a leave; that if done will certainly occasion miscarriage of justice.
That being the case we are in agreement with the submissions of Mr. Tela and hold that the sole ground of appeal has no merit and it fails. The

appeal is accordingly dismissed”.

It is against this decision that the Appellant sought for and obtained an order for extension of time to appeal against this decision. The judgment of the lower Court centered on its jurisdiction to entertain the appeal of Appellant Kafinta Hoke Dago who later died and was substituted by his son (Ibrahim Kafinta Dago) the current Appellant/Applicant. The notice of appeal contains 4 grounds of appeal, including an omnibus ground alleging that the judgment of the lower Court was against the weight of evidence. The additional grounds of appeal now sought to be introduced as fresh issues are grounds 5 and 6 in the proposed amended notice of appeal. They are as follows:-
“GROUND FIVE
The lower Court erred in law and thereby occasioned a serious miscarriage of justice when the learned judges restricted themselves on the sole issue raised by the Appellant thereby disregarding the fact that the Appellant has proved his claims against the Respondent.
PARTICULARS
a. The lower Court Sitting as appellate Court is not restricted to the issues raised before it by the parties.
b. The Appellant has

proved his claims against the Respondent.
GROUND SIX
The lower Court erred in law and thereby occasioned a serious miscarriage of justice when the learned judges dismissed the appeal and affirm the judgment of the trial Court despite the fact that the Appellant has established his claims against the Respondent.
PARTICULARS
a. The Appellant adduced credible evidence before the trial Court in proof of his claims against the Respondent”.

a lower Court may be allowed to be raised in this Court but subject to a very strict scrutiny. According to some of the most relevant decided cases on this principle, the scrutiny involves a consideration and a finding that the new issue or fresh point must be on a question involving substantial point of law, substantive or procedural. Added to that, this Court must be satisfied that it has before it, all the facts bearing upon the fresh issue completely as would have been the case if the point had been raised at the lower court. See AKPENE V. BARCLAYS BANK (NIG) LTD (1977) 1 SC 47. A fresh issue may also be allowed to be raised, upon a proper application to this Court, where the raising of that issue would prevent an obvious miscarriage of justice. See ATT. GEN. OYO STATE V. FAIR LAKES HOTEL LTD (supra), FADIORA V. GBADEBO (1978) 3 SC 219, BANKOLE V. PELU (1991) 8 NWLR (PT. 211) 523 and ADEWOLE V. ADESANOYE (1998) 3 NWLR (PT. 541) 175.

Learned Counsel to the Applicant placed very heavy reliance on the decisions of this Court in A – Z PETROLEUM PRODUCTS LTD V. SUREGATE INTEGRATED (NIG) LTD (supra) and LAWSON & ORS V. POLFA (NIG) PLC. & ORS

(supra). I have read those decisions and I do not agree with the learned Counsel that there is any stretch of imagination or elasticisation of judicial wisdom that can support or accommodate the sweeping argument and submission that subject to the leave of this Court, the applicant can raise any fresh or new issue or point in this appeal, irrespective of whether it was an issue of law or fact or mixed law and fact. I am more inclined to agree with learned counsel to the Respondent that the two decisions of this Court under review were quoted absolutely out of context. In my view they are totally unhelpful and of no meaningful assistance in the circumstance.

Added to the above, I have also read and considered the additional grounds of appeal, grounds 5 and 6, now sought to be raised as fresh issues in this appeal, though couched as errors of law, I do not see that more than a ruse. There is no doubt that they are grounds of appeal that raise issues of facts or mixed law and fact. It is also my view that they are also effectively covered under grounds 2, 3 and 4 of the original grounds of appeal. I very strongly believe that it is preposterous to hold

otherwise. Against all the foregoing, I am unable to exercise the discretion of this Court in favour of this application.
I therefore decline to do so. The application is refused and dismissed. I make no order for costs.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the Ruling just delivered by my learned Brother, ALI A B. GUMEL, JCA and I am in agreement with the reasoning and conclusions reached in refusing to grant the Application on the ground that same is lacking in merit. I also abide by the consequential orders made thereto.

ABUBAKAR MAHMUD TALBA, J.C.A.: I read before now, the Ruling by my learned brother, ALI A. B. GUMEL JCA, just delivered. I agree with his reasoning and conclusions. I have nothing to add to a well written Ruling. The applicant does not deserve the exercise of the Court’s discretion in his favour
I too decline to do so. The application is refused and dismissed. No order as to cost.

Appearances:

Mr. Ahmed A. Fingilla For Appellant(s)

Mr. Garba Abubakar Shehu For Respondent(s)