ELF OIL NIGERIA LIMITED V. NIGERIA OIL MILLS LIMITED
(2010)LCN/4005(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of January, 2010
CA/L/279/05
RATIO
LEAVE TO RAISE FRESH ISSUES: WHETHER AN ISSUE THAT WAS NOT RAISED IN THE COURT BELOW CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL WITHOUT LEAVE OF THE COURT TO WHICH THE APPEAL LIES
The general rule is that where an issue was not raised in the court below, it cannot be raised for the first time on appeal without leave of the court to which the appeal lies. Leave to raise fresh issues on appeal is not granted as a matter of Course. The issues to be raised on appeal must be so fundamental in nature and under very exceptional or special circumstances. PER HUSSEIN MUKHTAR, J.C.A
LEAVE OF THE COURT: CONSEQUENCE OF RASING NEW ISSUES IN AN APPEAL WITHOUT LEAVE OF THE COURT
The law is trite that where new issues have been raised in an appeal without leave, such new issues are incompetent and liable to be struck out. The Supreme Court has aptly so held in similar circumstances in the case of OGBA VS ONWUZO (supra) per Akintan, JSC as follows: “Where there has been no leave sought and obtained by the appellant to argue a new issue, and there are no special circumstances disclosed to warrant it being entertained, such new issue would be incompetent . PER HUSSEIN MUKHTAR, J.C.A
Before Their Lordships
B. RHODES-VIVOURJustice of The Court of Appeal of Nigeria
P. A. GALINJEJustice of The Court of Appeal of Nigeria
HUSSEIN MUKHTARJustice of The Court of Appeal of Nigeria
Between
ELF OIL NIGERIA LIMITEDAppellant(s)
AND
NIGERIA OIL MILLS LIMITEDRespondent(s)
HUSSEIN MUKHTAR, J.C.A (Delivering the Leading Judgment): The appellant/applicant has by motion on notice filed on 13th December, 2007 sought for an order granting it leave to raise and argue fresh issues, which were not raised at the court below, and to deem such fresh issues raised and argued in the appellant’s brief and reply brief as properly raised and argued.
The application is based on the following grounds:
I.”The evidence led in the proceedings before the arbitrator and the court below support the fresh issues and/or points that the appellant seeks to raise and argue, and the appellant will, therefore, not adduced fresh evidence;
II. The appellant only intends to expand or extend the issues and/or points it raised or argued at the arbitral proceedings and court below;
III. The appellant does not intend to raise or argue any case inconsistent with and/or contradictory to the case it argued or canvassed in the arbitral proceedings and court below; and has not done so in its appellant”s brief and reply brief already filed and served.”
The learned counsel for the appellant/applicant raised the following two issues for determination:
1) “Whether in the circumstances that the appellant seeks to expand or extend its arguments by raising fresh issues and/or points of law only, without raising any fresh issues and points of facts at all that necessitates adducing further and/or additional evidence, the appellant should be granted leave to raise the fresh issues and/or points of law?
2) Whether this Court of Appeal should deem as proper the already raised argued and canvassed fresh issues and/or points of law in the brief of argument of the parties?”
The two issues have been narrowed down to one singular issue by the respondent as follows:
“Whether new issues can be raised or grounds of appeal amended by the applicant without leave of court.”
In other words, the issue raised by both the appellant/applicant and respondent is whether the appellant/applicant has made out a good case to be entitled to raise the fresh issues as shown in the motion paper, for the first time on appeal and to deem the said issues already raised and argued in the appellant”s brief. The applicant relied on the three grounds as set out in the motion paper and the depositions in the supporting affidavit.
The learned counsel for the applicant argued that raising of fresh issues which are germane without leading further evidence shows that the applicant does not intend to raise any fresh issue or point of fact. He relied on OGBA VS ONWUZO (2005) 14 NWLR (pt. 945) 331 at 344 C-G; ATTORNEY GENERAL OYO STATE VS FAIRLAKES HOTEL LTD (1988) 5 NWLR (pt.92) 1; NEPA VS ADESAAJI (2002) 17 NWLR (pt. 797) 578 at 612 C-D.
The new issues to be raised, it was further argued, are premised on relevant case law and statutes like section 73 (1) (a), (b) and (c) of the Evidence Act. The applicant’s counsel said that the deposition in paragraph 4 of the supporting affidavit shows that the raising of fresh issues or points of law is necessitated by change of counsel. See BOWAJE VS ADEDIWURA (1976) 6 SC 143 at 147; IDRIS VS AUDU (2005) 1 NWLR (pt. 908) 612 at 632-633 paras H’97B. The applicant’s counsel submitted that the following two fold requirement for granting the application has been satisfied:
(i) Special circumstance have been shown and;
(ii) Fresh evidence will not be adduced to raise fresh issues or points of law. See EDOKROLO V. SEM-EDO (1989) 4 NWLR (pt. 116) at 494 paras A-H.)
The applicant’s counsel argued that all the fresh issues to be raised for the first time on appeal were already argued at the court below and even before the arbitrator but upon which no pronouncement was made. He said all that the applicant seeks by this application is to add to and expand its arguments on principles of law that were canvassed at the arbitral proceedings and the court below, See EDOKPOLO VS SEM-EDO (supra) at 498 para A.
The applicant’s counsel further argued on issue two, that the purpose of the second limb of the application is to deem as proper the fresh issues or points already raised and canvassed by the applicant in its appellant’s brief dated and filed 10th November, 2006 and the reply brief dated and filed 5th November, 2007 and to obviate further delay in the hearing of the appeal. See MANA MARITIME SERVICE LTD VS OTEJO (2005) 14 NWLR (pt. 945) 517 at 536, E-G; AMUSAN VS OBIDEYI (2005) 14 NWLR (pt. 945) 322 at 300, A’97B.
The applicant’s counsel urged the court to discountenance paragraphs 5 to 10 of the counter affidavit dated 9th February, 2009 for offending sections 86 to 89 of the Evidence Act Cap E14 L.F.N. 2004. See U.B.A. VS SOCIETE GENERALE BANK OF NIGERIA (1999) 6 NWLR (pt 478) 381 at 387; C.D.N.E.C. VS AZUOGU (1993) 2 NWLR (pt. 275) 270 at 286-287, H-A. Moreover, he added, the respondent will not be overreached by the orders sought for in the application. In urging the court to grant the application, the provision of order 4 rule 4 of the Court of Appeal Rules 2007 was also relied upon which provides thus:
“The powers of the court under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of the court below, or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the court may make any order, on such terms as the court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.”
The respondent’s counsel submitted that a party cannot raise any new or fresh issue for the first time on appeal without leave of the court having first been sought for and obtained. He cited the following authorities to support that notorious contention. ABINABINA VS ENYINMADU (1953) 12 WACA 171; EJIOFODONU VS OKONKWO (1982) 11 S.C. 74; DIVEYE VS IYOMAHAN (1983) 8 S.C. 76; AWOTE VS OWODUNNI (1986) 5 NWLR (pt. 46) 94.
The respondent’s counsel argued that the appellant/applicant cannot raise new issues as in para 5 (a) to (e) of their affidavit dated 13th December, 2007 without leave. He further argued that even where leave has been properly sought for, the court will refuse leave if such fresh issues will occasion injustice or surprise or embarrassment to the party, or where the applicant is acting malafide, See IKYERNUM C VS YORKUMBUR (2002) 11 NWLR (pt. 777) 52; FAGBUL.E VS RODRIGUES ((2002) 7 NWLR (pt. 756) 188.
The respondent’s counsel further argued that the application tantamount to an abuse of court process. He urges the court to dismiss the application.
Before delving in to the issues for determination let me address the applicant’s counsel challenge to the averments in paragraphs 5 to 10 of the counter affidavit dated 9th February, 2009 for offending sections 86 to 89 of the Evidence Act. The applicant’s own affidavit dated 13th December, 2007 seems to be equally infected by the same virus. Paragraph 3 thereof states thus:
“I am informed by the said Mr. Olayemi Olowolafe and I verily believe him that he was invited by Solomon Asemota & Co., the counsel directly briefed by the appellant to handle and prosecute this appeal for the appellant.”
This averment has failed to state other particulars of the information received by the deponent as to the time, place and circumstances of receiving that information as required by sections 88 and 89 of the Evidence Act which provide thus:
“88. When a person deposes to his belief in an matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
98. When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.”
The requirements of these provisions were not met by the deponent of the supporting affidavit who failed to give time, place and circumstances of the information. The word “shall” in those provisions makes it a mandatory requirement to state such particulars. I, however, intend to save the application to be determined on its merits. For what the supporting affidavit and the counter affidavit are worth, the depositions therein will be countenanced since both were duly sworn before a commissioner for oaths pursuant to section 84 of the Evidence Act. The prayer in the motion paper determines the parameter within which determinable issues may be raised. There is only one prayer in the motion paper and even at the risk of repeation it will be pertinent reproduce it as follows:
“Order granting leave to the appellant to raise and argue fresh issues and/or points not specifically or directly raised or argued in the court below; and deeming as proper the fresh issues and/or points already raised, argued and canvassed by the appellant in its appellant’s brief dated and filed 10th November, 2006 and appellant’s reply brief dated and filed 5th November, 2007 and already served on the respondent.”
The real issue for determination therefore is whether the applicant has shown such exceptional circumstances to enable the court exercise its discretionary power in granting leave to raise and argue fresh issues on appeal that were not raised at the court below, and also to deem the fresh issues already raised and argued in the appellant’s brief as having been properly so done.
The general rule is that where an issue was not raised in the court below, it cannot be raised for the first time on appeal without leave of the court to which the appeal lies. Leave to raise fresh issues on appeal is not granted as a matter of Course. The issues to be raised on appeal must be so fundamental in nature and under very exceptional or special circumstances. It is pertinent to take a look at the issues raised by the applicant and in respect of which leave is now sought. The list of the fresh issues which is not exhaustive by the averment in paragraph 5 of the supporting affidavit reads as follows:
“5 a) The implications and effects of the negotiation correspondence between the parties, on the duration term of the lease contract and the liability or otherwise of the appellant for the payment being claimed by the respondent;
b) The further and fuller implications and effects of the illegal performance of the lease contract by the respondent on the lease rent payments already made, and/or claimed to be subsequently payable to the respondent;
c) The further and fuller implications and effects of the misrepresentation by the respondent to the appellant on the lease rent payments already made, and/or claimed to be subsequently payable, to the respondent;
d) The arisen equitable relationship between the appellant and respondent regarding the lease rent payments made to the respondent, and the attendant implication thereof on the payments, under the equitable jurisdiction of the court;
e) The arisen equitable relationship between the respondent and its negotiating subsidiary company regarding the lease contract between the appellant and respondent, and attendant rights and obligations of the respondent vis-a-vis its said subsidiary and the appellant respectively.”
These facts were not only available at the time of pendency of the matter at the lower court but were or ought to have been known to the appellant. One hardly sees any special or exceptional circumstances necessitating the raising of these issues for the first time on appeal except, may be, if it was a mere after thought which does not quality as special reason or exceptional circumstance.
It is pertinent to further observe that the new issues sought to be raised have already been raised and argued in the appellant/applicant’s brief without seeking for, not to talk of obtaining, leave. The law is trite that where new issues have been raised in an appeal without leave, such new issues are incompetent and liable to be struck out. The Supreme Court has aptly so held in similar circumstances in the case of OGBA VS ONWUZO (supra) per Akintan, JSC as follows:
“Where there has been no leave sought and obtained by the appellant to argue a new issue, and there are no special circumstances disclosed to warrant it being entertained, such new issue would be incompetent and liable to be struck out by the appellate court. In the instant case, the appellants failed to seek and obtain the needed leave of the Court of Appeal to argue the new issue which they did not raise at the High Court but wanted to take on for the first time at the Court of Appeal. The Court of Appeal therefore acted within the law when it struck out the said appellant’s second issue, and was right in refusing to consider it in the appeal”
See also U.T.B. Ltd vs Dolmetsch Pharm. (Nig) Ltd (2007) 16 N.W.L.R. (pt. 1061) 520 at 538,539-540 G-B. In this case the applicant has failed to show any special reason or circumstance to qualify it for leave to raise fresh issues for the first time on appeal. In fact raising and arguing such issues in the appellant/applicant’s brief without leave speaks volumes of the ridiculous manner in which the court’s discretion is being sought for to inject life in to the lifeless issues.
On the other hand if, as the applicant’s counsel submitted, all the fresh issues to be raised were already raised and argued before the lower court but on which no pronouncement was made, then the failure of the court below to pronounce a decision on issues already canvassed before it should be a ground of appeal. In that case the issues are not being raised for the first time but the applicant is simply aggrieved by the failure or omission of the court below to make any pronouncement on those issues, which if considered and pronounced upon might have led the court to a different conclusion. In the instant case the applicant has derailed on the right procedure by simply inviting the court to endorse new issues raised and argued in the appellant/applicant’s brief without leave which tantamount to a nullity and as good as never raised. The first issue is therefore resolved against the applicant, and it automatically leads to a similar resolution of the second issue also, which hinges on the first one.
In the final result the application is totally devoid of merit and accordingly fails. Consequently it must be and is hereby dismissed for lacking in merit. I award cost of N20,000.00 in favour of the respondent and against the appellant/applicant.
BODE RHODES-VIVOUR, J.C.A.: I read in draft the Ruling just delivered by my learned brother Hussein Mukhtar, J.C.A. and I agree with His lordship that the application fails. I also award cost of N20,000 in favour of the respondent.
PAUL ADAMU GALINJE, J.C.A: I read in advance the ruling just delivered by my learned brother Mukhtar, JCA and I agree with the reason contained therein and the conclusion arrived there at.
An application to raise and argue fresh issues on appeal cannot be granted by this Court where the issues sought to be raised were available during the trial at the lower court. The issues which the Applicant wants to raise herein are those issues enumerated at paragraphs 5 of the supporting affidavit which were adequately reproduced in the lead judgment. These issues were certainly available during the pendency of the case at the lower Court and there are no special or exceptional circumstances warranting raising them for the first time in this Court.
For this and the more detailed reasons in the lead ruling, this application ought to fail, and it accordingly fails and is dismissed for lacking in merit. I abide by the order of cost awarded in the lead ruling.
Appearances
Olayemi Olowolafe
Adelere GbadeboFor Appellant
AND
Edwin ArasonwanFor Respondent
