FESCUM & CO. LTD. V. FEDERAL AIRPORTS AUTHORITY (2010)

FESCUM & CO. LTD. V. FEDERAL AIRPORTS AUTHORITY

(2010)LCN/3585(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 24th day of February, 2010

RATIO

APPEAL: FACTORS CONSIDERED BY THE APPEAL COURT IN GRANTING LEAVE TO RAISE FRESH ISSUES ON APPEAL

In Awote v Odunsi (2007) 7 NWLR (pt. 1034) 625 Awale, JCA observed thus:

“In considering whether to grant leave to raise a point not raised in the court below, an appellate court should not be concerned with the validity or other wise of the fresh issue sought to be raised by the appellant. What the court needs only consider at the stage of the application for leave is whether or not the fresh point is a substantial question of law. This question must be distinguished from whether or not there is any merit on the point itself, the decision of which can only be taken after full arguments from the parties have been taken in and enactments in connection therewith are examined and accordance with the rules of court and all the relevant laws considered.”

In the case of Nwachukwu v State (2007) 17 NWLR (pt. 1062) 31 at 61-62 paras H-B, the Supreme Court per Muhammad JSC stressed the necessity to seek for and obtain leave before raising any fresh issue on appeal as follows:

APPEAL: CIRCUMSTANCES THE LEAVE OF THE COURT WILL BE GRANTED TO RAISE FRESH ISSUES

This is one of the real reasons for seeking leave so that the court before granting such leave will ensure that the new grounds of appeal sought to be added regarding the fresh issue raised, relate to the decision appealed against. The reason clearly being that an issue that has not been canvassed by the parties and decided upon by the court below may only be allowed by way of granting leave if the court is satisfied that the new issue or issues raised:

a) involves substantial point of law whether substantive or procedural; and
b) is needed to prevent an obvious miscarriage of justice
c) is premised on evidence already before the court which is needed to support I the new contention or new issues PER HUSSEIN MUKHTAR, J.C.A

HUSSEIN MUKHTAR, J.C.A (Delivering the Leading Judgment): The appellant/applicant has applied by motion on notice dated 19th December, 2007 and filed on the 4th January, 2008, pursuant to Order 6 rules 4 and 15 and order 7 rule I of the Court of Appeal Rules 2007 (the rules), for the following reliefs:

1. “AN ORDER permitting the appellant/applicant to amend its original notice and grounds of appeal dated December, 22, 2004 which is attached to the affidavit in support as Exhibit FESCUM I as indicated in the proposed amended notice and grounds of appeal attached to the affidavit in support as exhibit FESCUM 2.

2. AN ORDER seeking leave of the Court of Appeal to raise and argue additional grounds of appeal.

3. AN ORDER seeking leave of the Court of Appeal to raise and canvass fresh issues that were not canvassed before the High Court to wit: that the relationship between the appellant/applicant and the respondent was contractual being that of Landlord and Tenant.

4. AN ORDER permitting the appellant/applicant to amend its original brief of argument dated 16th May, 2006.

5. SUCH FURTHER ORDER or orders as the Court of Appeal may deem fit to make in the circumstances of this case.”

At the hearing of the motion, the learned counsel for the respondent, who filed a notice of preliminary to the application, withdrew the said preliminary objection, which was thereupon struck out.

The application is necessitated by the appellant/applicant’s former counsel illness in the person of Mr. Akorede Lawal who has been replaced by Mr. Sikiru Akinrele, who after studying the processes filed by the former counsel discovered that:

a) “There is need to raise fresh issues on substantial point of law which was not canvassed before the Federal High Court in the course of the case to wit: that the relationship between the appellant/applicant and the respondent was contractual being that of landlord and tenant.

b) There is also need to amend the grounds of appeal already placed before the court and raise additional grounds of appeal in order to bring out all the salient issues that will aid justice in this matter.

c) There is need to seek the leave of the Court of Appeal to be able to do (a) and (b) above.

d) The effect of (a) and (b) above will necessitate the amendment of the original appellant’s brief of argument dated 16th May, 2006.

e) The grant of this application will not prejudice the respondent other than to enable the Court of Appeal arrive at a just and equitable decision.

f) The respondent reply to the earlier appellant’s brief is not yet before the court.”

The learned counsel for the appellant/applicant raised one single issue for determination as follows:

“Whether having regard to the facts and circumstances of this case, the appellant’s application ought to be granted.”

The appellant/applicant’s counsel however, argued each prayer separately as if it were an issue raised for determination. The learned counsel for the respondent raised a preliminary objection to the application, which was withdrawn at the hearing of the application and was accordingly struck out.

The respondent’s counsel, however, has not raised any issue for determination but apparently adopted the issue raised by the appellant/applicant.

It is pertinent that determinable issues are deduced from the prayers in the application.

The five prayers in the motion are conveniently covered by the scope of the singular issue for determination. Prayers 2 and 3 seek to achieve the same result that is leave to raise and argue new issues on appeal. Prayers 1 and 4 consequentially seek to amend the Notice of Appeal and the appellant’s brief respectively, while the fifth prayer is omnibus. The success of the application, therefore, depends the success of prayer 3 that is whether the appellant/applicant has made out a good case to be entitled to raise and argue fresh issues on appeal and accordingly amends the Notice of Appeal and the appellant’s brief. The issue for determination therefore, boils down to the success or failure of prayer 3. The application will therefore be determined on the singular issue for determination raised by the appellant/applicant.

The appellant/applicant’s written brief dated 5th December, 2008 and filed on 12th December, 2008 but deemed filed and served on the 24th June, 2009, was adopted and argued on 7th December, 2009. The learned counsel for the appellant/applicant urged the court to allow the fresh issues involving substantial point of law to be raised to prevent an obvious miscarriage of justice. He relied on the cases of Guaranty Trust Bank Plc v Fadco Industries Ltd (2007) 7 NWLR (pt. 1033) 307; Adio v State (1886) 2 NWLR (pt.29) 581. He observed that the fresh issue of law sought to be raised is averred in paragraph 8 (a) of the supporting affidavit filed on 4th January, 2008, thus:

“There is need to raise fresh issue on substantial point of law which was not canvassed before the High Court in the course of the case to wit:

that the relationship between the appellant/applicant and the respondent was contractual being that of landlord and tenant.”

The appellant/applicant’s counsel submitted that the fresh issue sought to be raised is substantial and capable of making a difference in the case. He said that the contractual relationship between the appellant/applicant and the respondent is a matter of law based on facts contained in documents on record. This, he further contended, would render the Public Officers Protection Act, based on which the court below dismissed the suit, inapplicable. See Edjekpo v Osia (2007) 8 NWLR (pt. 1037) 635 at 667 para B. The appellant/applicant’s counsel added that all the materials necessary for the determination of the fresh issue are contained in the record (see pages 6-10 of the record). The issue raised calls for proper interpretation of those documents which are correspondences on rentage of space, the subject matter of the suit at the court below. He cited the Supreme Court pronouncement in Okonwa v Military Governor of Imo State (1996) NWLR (pt. 455) 394 where Iguh, JSC observed, at pages 407 – 409 thus:

“In the exercise of its discretion to grant leave to a party to raise for the first time a point of law not raised or canvassed in the court below, the appellate court is always guided by certain principle and leave will be granted in the following cases:

a) Sic …

b) Sic…

c) Where the point of law raised involved the interpretation of documents relevant to the determination of the case before the court.

d) Where all the materials necessary for the determination of the point of law raised are present in the records of the court.”

It was further noted that all the necessary materials required to determine the fresh issue are in the record of appeal and all that is required is interpretation of those document to resolve the fresh issue. The appellant/applicant’s counsel added that no further evidence will be adduced to prove the fresh issue to be raised. In Awote v Odunsi (2007) 7 NWLR (pt. 1034) 625 Awale, JCA observed thus:

“The trite position of the law is that leave of either this court or the court below must be sought and obtained before raising any fresh issue or ground for the first time. A party cannot surreptitiously smuggle into his issues or grounds without such leave first sought and obtained, any new issue or ground. If that is done, such grounds or issues are incompetent and will be struck out.”The applicant’s counsel urged the court to grant leave to raise the new issue as prayed. The other prayers 1, 2 and 4 are dependent on the success of the main prayer 3 on which the singular issue for determination has been raised.

The respondent’s preliminary objection having been withdrawn and struck out, all arguments related therewith are similarly discountenanced. This, includes the appellant/applicant’s reply filed on 11th December, 2009 which is premised on arguments on the preliminary objection.

The learned counsel for the respondent argued that the fresh issue sought to be raised will necessitate calling of additional evidence contrary to the appellant/applicant’s submission that no evidence will be adduced on the fresh issue, which simply calls for interpretation of documents before the court in respect of the application of Public Officers Protection Act. The respondent’s counsel has, however, not stated the nature of evidence that will be necessitated by raising the fresh issue sought for in the pending application. It is necessary and incumbent on the respondent, in submitting that fresh evidence will be inevitable, to state the nature of the evidence that will be occasioned by the new issue sought to be raised.

Failure to do that tantamounts to leaving the appellant/applicant’s contention, that no new evidence will be necessitated by the fresh issue sought to be raised, as unchallenged. In other words, the applicant’s contention that no fresh evidence will be needed in respect of the new issues sought to be raised which has been substantiated by the further assertion that such new issue will only require the interpretation of documents that were already admitted in evidence have not been debunked by the respondent’s contention that calling of new fresh evidence will be occasioned by the fresh issue sought to be raised.

The respondent’s counsel further contended that this court cannot embark on the interpretation of documents, which the lower court had not been invited to interpret. He urged the court to refuse the application.

An applicant wishing to raise any fresh issue or issues for the first time on appeal must seek for and obtain leave to do so otherwise such new issue or issues will be incompetent and liable to be struck out. Whether the court will grant or refuse leave depends on the nature of the new issue or issues sought to be raised and to prevent an obvious miscarriage of justice which will otherwise be occasioned. Where, as in the instant case, the appellant/applicant’s former counsel merely omits to raise a legal preposition supportable by evidence already on record without the need to call additional evidence, the court will in the interest of justice and finality exercise its discretion favourably to allow such new issue to be raised. The question whether the issue has any effect on the application of the public Officers Protection Act or not is only determinable in the main appeal and only if such issue is allowed to be raised.

a) involves substantial point of law whether substantive or procedural; and

b) is needed to prevent an obvious miscarriage of justice

c) is premised on evidence already before the court which is needed to support I the new contention or new issuesThis criteria has been adequately satisfied by the appellant/applicant whose new counsel Mr. Sikiru Akinrele raised a substantial issue of law which is completely supportable by evidence already placed before the lower court. Failure to allow the new issue of law sought to be raised may lead to miscarriage of justice on mere technical ground. Moreover, there is no contention that the new issues sought to be raised is likely to over reach the respondent, in anyway.

In the case of G.T.B. v Fadeo Ind. Ltd (SUPRA) Ba’aba, JCA observed at page 326 paras A-D thus:

“Where there is merely omissions to raise a legal proposition which can be supported by the facts found by court without the assistance of additional evidence, the appellate court will in the exercise of its discretion and in the interest of justice and finality not ignore the argument to raise the point. In the instant case, as ground 5 of the grounds of appeal was a ground of law raising the issue of denial of fair hearing which is a constitutional issue for which no additional evidence was required, it could be raised and argued by the appellants in the interest of justice.”

In this case, I am of the firm view that the appellant/applicant has satisfied the criteria and is entitled ex debito justitie for leave to raise the proposed new issue. The application therefore, succeeds per force. The main prayer and all the other incidental prayers are similarly granted as prayed.

It is accordingly ordered that leave be and is hereby granted to the appellant/applicant:

1. to raise and argue the fresh issue as in prayer 3 of the motion paper dated 19th December, 2009 and filed on 4th January, 2008.

2. to raise and argue additional grounds of appeal as shown in the proposed notice of appeal (Exhibit Fescum 2.)

3. to amend the original Notice and grounds of Appeal dated 22nd December, 2004 (Exhibit Fescum 1) as indicated in the proposed Amended Notice of Appeal (Exhibit Fescum 2.)

4. to make consequential amendments to the appellant’s brief of argument dated and filed on 16th May, 2006 and deemed filed on 19th February, 2007.

The amended processes shall be filed within fourteen days. There shall be no order as to costs

RHODES-VIVOUR, J.C.A.: I read in advance the leading ruling delivered by Mukhtar, JCA. I agree with all the orders his lordship has made.

GALINJE, J.C.A: I read in advance the ruling just delivered by my learned brother Mukhtar, JCA and I entirely agree with the reasoning contained therein and the conclusion arrived there at. The general rule adopted in this Court is that an Appellant will not be allowed to raise on appeal a question which was not raised, tried or considered by the trial Court. But where the question involves substantial points of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision of them, the Court will allow the question to be raised and the points taken and prevent an obvious miscarriage of justice. See K. Apene v. Barclays Bank of Nigeria & Anr, (1977) 11 NSCC 29 at 31; Shonekan v. Smith (1964) All NLR 168 at 173; Stool of Abinabina v. Chief Kojo Eyinadu (1953) A.C. 209 at 215.

In the instant application, the issue sought to be raised is a point of law which is supported by the evidence already adduced. There is therefore no further evidence to be adduced on the point.

For this reason and the more detailed reasons in the lead ruling, I too grant the application in terms of the motion paper.

Appearances

S. F. AkinreleFor Appellant

AND

Olakunle Ajala

With Kay Nwaru, MissFor Respondent