MOHAMMED v. LAWAL
(2022)LCN/17123(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, June 08, 2022
CA/YL/84/2020(R)
Before Our Lordships:
Fatima Omoro Akinbami Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
ABUBAKAR MOHAMMED APPELANT(S)
And
NURU LAWAL RESPONDENT(S)
RATIO
THE PRINCIPLE OF LAW APPLICABLE TO RAISING FRESH ISSUES ON APPEAL
The general principle of law applicable to raising fresh issues on appeal is to the effect that appeals being generally a re-hearing of the suit, parties are bound by their case at trial and will not be allowed to present a new case or issues before an appellate Court except for cogent reasons justifying such an action. The Supreme Court in the case of CHRISTOPHER OBUEKE & Ors v. N.N. Nnamchi & Ors (2012) 12 NWLR (pt. 1314) 327 put it thus:
”It’s to be noted that it is a well-grounded principle of law that an appeal is not a novel or new process that can take off on its own. Rather, it is a continuation of the suit at the lower Court and no party or even a Court can get away from the action to commence a completely new thing on appeal.’’
The law is fairly settled on the parameters that must be met in order to warrant the grant of leave to an Appellant to raise fresh issues on appeal. That is:
1. The fresh issue sought to be raised on appeal involves a substantial point of law.
2. All the facts in support of such fresh issue or question shall be before the Court in the record of appeal; and
3. No further evidence is required.
In addition to the above factors is the underlining fact that an appellate Court will grant leave to raise and argue fresh issues where it considers that granting such leave will aid in reaching substantial justice between the parties and refuse same where the grant of leave will occasion miscarriage of justice.
See CORPORATE IDEALS INS. LTD v. AJAOKUTA STEEL CO. LTD (2014) 165 AT 188. PER EKO, J.S.C. (para. 13); UNION BANK OF NIGERIA PLC v. CHIEF OLUDOTUN OLAJIDE KOLEOSO (2017) LPELR-CA/L/227/2008; and GTB VS INNOSON NIGERIA LTD (2017) LPELR-SC.694/2014. PER TUKUR, J.C.A.
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgement): The Applicant herein is the Appellant in Appeal No. CA/YL/84/2020 who has approached this Court with a Motion on Notice dated 10th February, 2022, and filed on 11th February, 2022, brought pursuant to Order 6 Rules 1 of the Court of Appeal Rules 2021; and under the inherent jurisdiction of this Court, seeking the following:
1. An Order of this Hon. Court granting the Applicant leave to raise fresh issues not raised at the lower Appellate High Court of Justice, No.1, Yola, Adamawa State in Appeal No: ADSY/102A/2017 between Abubakar v. Nuru Lawal, judgment delivered on the 10th day of July, 2018.
2. An Order of this Hon. Court granting the Applicant leave to amend the Notice and Grounds of appeal dated and filed the 7th day of April, 2020 to properly embody Grounds 3 & 6 thereof, being fresh issues not raised at the lower Appellate Court, the said Notice and Grounds of Appeal is hereto attached and marked as Exhibit ‘’A’’.
3. An Order of this Hon. Court deeming the proposed amended Notice and Grounds of Appeal bearing the amendments and filed herein as a separate process as properly filed and served, necessary fees having been paid. The proposed amended Notice and Grounds of Appeal is hereto attached and marked as Exhibit “B”.
4. An Order of this Hon. Court deeming the Appellant’s Brief of Argument dated the 26th day of February and filed on the 2nd day of March, 2021 wherein the fresh issues not raised at the trial lower Appellate Court were argued, as properly filed and served.
5. And for such further order(s) as this Hon. Court may deem fit to make in the circumstances.
The grounds upon which the application was brought was stated thus:
a. That the Appellant/Applicant had filed the Notice and Grounds of Appeal dated the 7th day of April, 2020, having sought and obtained the leave of this Hon. Court to Appeal out of time on the 31st day of March, 2020.
b. That Grounds 3 and 6 of the Notice and Grounds of Appeal dated and filed on the 7th day of April, 2020 borders on fresh issues not raised at the trial lower Appellate Court.
c. That the leave of this Hon. Court ought to have been sought before including Grounds 3 and 6 as parts of the Notice and Ground of Appeal dated the 7th day of April, 2020.
d. That the aforesaid fresh issues will better place the grievances of the Appellant before this Hon. Court and will ensure the just determination of this Appeal.
e. That having not sought the leave of this Hon. Court before incorporating the grounds of appeal bordering on fresh issues, application herein becomes necessary.
f. That it is in the interest of justice that this Hon. Court exercises her discretion to grant this application, as same will not prejudice the Respondent.
Applicant’s counsel in compliance with the Rules of this Court accompanied his Motion on Notice with a 5-paragraph affidavit deposed to by one Suzana Moni, Litigation Secretary in the Law Firm of Applicant’s counsel, at the Registry of this Court on 11th February, 2022. Applicant’s counsel also filed a written address dated 10th February, 2022.
In opposing the application, the Respondent filed a 4-paragraph counter affidavit deposed to by one Rashida Adamu Buba, Litigation Secretary in the Law Firm of Respondent’s counsel at the Registry of this Court on 4th March, 2022.
Arguing the application, learned counsel for the Applicant submitted that this Court ought to grant leave to the Applicant to raise the fresh issues bordering on title to land and contained in grounds 3 and 6 of the Notice of Appeal, as the grant of same will aid the Court to do justice, will better place before the Court the Applicant’s real grievances as Appellant and will not require adducing new evidence.
He relied on: Order 7 Rule 8 of the Court of Appeal Rules 2021; Alhaji Lasisi Salisu & Anor v. Alhaji Abbas Mobolaji & Anor (2013) LPELR-22019 (SC); NALSA & Team Associates v. NNPC (1991) LPELR-1935(SC).
The Respondent argued that this Court lacks jurisdiction to hear the present application as the amendment sought to be introduced vide grounds 3 and 6, do not arise from the decision of the High Court which sat as appellate Court over the matter, but arose from the judgment of the Upper Area Court (trial Court) which is not the subject of appeal before this Court.
He referred to the cases of FRN v. Mohammed 2014 3 SCNJ 57 at 64 R.17; and APGA v. Anyawu 2014 2 SCNJ 169 at 171 R.1.
Respondent’s counsel submitted that the issue of title to land which the Applicant was trying to introduce by virtue of ground 3 was not the subject matter at trial, while the proposed ground 6 had to do with acts of ownership raised by Applicant/Appellant’s Witnesses and not the Applicant himself.
He relied on Ibrahim v. Lawal 2015 6 SCNJ 1 at 9 Ratio 18.
Counsel also submitted that the issue of title to the disputed land had been resolved in the case of Nura Lawal v. Umar Mohammed Suit No. CV/14/2012 by the Girei Area Court, which judgment was tendered at the trial Court as Exhibit B. Counsel asserted that since Applicant’s counsel failed to appeal against the judgment, he is bound by same.
He referred to the cases of Agbaje v. INEC (2015) 10 SCNJ page 1 at 7; and Adigwe v. FRN (2015) 5 SCNJ 620 at 629 R.19.
In order to properly determine this application, recourse must be had to relevant principles of law vis a vis the averments as contained in the parties’ respective affidavits.
The general principle of law applicable to raising fresh issues on appeal is to the effect that appeals being generally a re-hearing of the suit, parties are bound by their case at trial and will not be allowed to present a new case or issues before an appellate Court except for cogent reasons justifying such an action. The Supreme Court in the case of CHRISTOPHER OBUEKE & Ors v. N.N. Nnamchi & Ors (2012) 12 NWLR (pt. 1314) 327 put it thus:
”It’s to be noted that it is a well-grounded principle of law that an appeal is not a novel or new process that can take off on its own. Rather, it is a continuation of the suit at the lower Court and no party or even a Court can get away from the action to commence a completely new thing on appeal.’’
The law is fairly settled on the parameters that must be met in order to warrant the grant of leave to an Appellant to raise fresh issues on appeal. That is:
1. The fresh issue sought to be raised on appeal involves a substantial point of law.
2. All the facts in support of such fresh issue or question shall be before the Court in the record of appeal; and
3. No further evidence is required.
In addition to the above factors is the underlining fact that an appellate Court will grant leave to raise and argue fresh issues where it considers that granting such leave will aid in reaching substantial justice between the parties and refuse same where the grant of leave will occasion miscarriage of justice.
See CORPORATE IDEALS INS. LTD v. AJAOKUTA STEEL CO. LTD (2014) 165 AT 188. PER EKO, J.S.C. (para. 13); UNION BANK OF NIGERIA PLC v. CHIEF OLUDOTUN OLAJIDE KOLEOSO (2017) LPELR-CA/L/227/2008; and GTB VS INNOSON NIGERIA LTD (2017) LPELR-SC.694/2014.
A careful examination of the affidavit filed by the Appellant/Applicant and the counter affidavit of the Respondent, coupled with the arguments proffered in the parties’ respective written addresses reveal that this is not an instance where leave ought to be granted for the raising of fresh issues on appeal. The main reason for the foregoing is that the basis for the raising of the fresh issue is contrary to the provisions of law and will result in the miscarriage of justice. Appellant/Applicant herein as plaintiff before the Upper Area Court predicated his case on trespass to land, which is founded on possession, but is trying to raise issues impugning the decision of that Court on the basis that the Court did not decide the issue of title. The Court was right to so do, in line with the settled position of law that parties are bound by their case and the Court ought not to grant reliefs not sought for by parties.
I also agree with Respondent’s counsel submission that the fact that the issue of ownership of the land had been decided in an unappealed decision of Nura Lawal v. Umar Mohammed Suit No. CV/14/2012 by the Girei Area Court, which judgment was tendered at the trial Court as Exhibit B, means this Court must not allow the Appellant/Applicant surreptitiously appeal that decision.
If the Appellant/Applicant felt he was entitled to declaration of title to land, he ought to have filed an action for declaration of title.
In light of the above, this application is dismissed, being void of merit.
No Order as to costs.
FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft the Ruling just delivered by my learned brother, Jamilu Yammama Tukur JCA, where Appellant/Applicant’s application was refused.
I am in agreement with the reasoning and conclusion in the Ruling, and adopt the Ruling as mine. I have nothing extra to add.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I read in draft the ruling just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. I entirely agree with his Lordship’s argument and conclusion and adopt as mine.
I have nothing to add.
Appearances:
S. J. Gubairo Esq. For Appellant(s)
Lawan Barka Esq. holding the brief of Karkaji Dan’Adi Esq. For Respondent(s)
