MR. RAUFU OLAIYA & ANOR v. THE REGISTERED TRUSTEES OF THE CATHOLIC DIOCESE OF OSHOGBO
(2015)LCN/7767(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of February, 2015
CA/I/47/2010
RATIO
COURT: COURT’S DISCRETION; THE HALL MARK OF DISCRETION OF THE COURT
That the hall mark of discretion is that it should not be exercised to over reach the other party or cause irreparable injury.
See Tanko Vs. The State (2009) 250m 92 @ 211 Aboselde Hyde Lab Plc Vs UMB Ltd & Anor (2013) 6 SC 1 @ 28 per. MOHAMMED A. DANJUMA, J.C.A.
APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES OF LAW AND JURISDICTION MAY RAISED ON APPEAL FOR THE FIRST TIME
The issues are, clearly from the Address of the Defendant/Counter Claimant at the trial, not new. They are the same issues argued, responded to and upon which Judgment was delivered by the trial court. Indeed, even if those issues were not pleaded in the statement of claim or Defence, being issues of law and jurisdiction they may be raised on appeal for the 1st time as relating to jurisdiction and in the circumstances that the Respondent will not be embarrassed in the case of Issues of law. In this case as shown above, the Respondent who had had the Issues raised in address at the trial stage and a reply by him filed and a judgment rendered thereon and with the Exhibits in documentary Form Constituting the basis for the challenge already tendered, he cannot by any stretch of imagination be said to have been prejudiced or to stand the risk of any prejudice. per. MOHAMMED A. DANJUMA, J.C.A.
PRACTICE AND PROCEDURE: AMENDMENT IN TERMS OF THE MOTION; WHETHER A COURT OF LAW IS BOUND TO GRANT THE AMENDMENT IN TERMS OF THE MOTION
A court of law is not necessarily bound to grant the amendment in terms of the motion, but upon or on such terms as the court deem just and equitable. per. MOHAMMED A. DANJUMA, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. MR. RAUFU OLAIYA
2. ALHAJI OLABEJI ADEGBOYEGA Appellant(s)
AND
THE REGISTERED TRUSTEES OF THE CATHOLIC DIOCESE OF OSHOGBO Respondent(s)
MOHAMMED A. DANJUMA, J.C.A. (Delivering the Leading Judgment): The appellants as applicants by motion on notice dated and filed on the 17th day of October, 2013 prayed this court for the following orders:
1. An order of this Honourable Court granting leave to the appellants/applicants to file and argue additional grounds of Appeal, endorsed on the schedule of amendment attached as Exhibit “B”.
2. An order granting leave to the appellants/applicants to amend the notice of appeal dated 22nd day of January, 2010 by:
(a) Adding 3 additional grounds of appeal contained in Exhibit “B” as grounds (sic) 7, 8, and 9
(b) Adding the following reliefs to the reliefs contained in the notice of appeal dated 22nd January 2010.
(i) An order declaring that the trial court lacked the jurisdiction to entertain the plaintiff/respondent’s claim ab initio and same be dismissed for want of jurisdiction.
(ii) An order remitting the matter back to the High Court of Osun for trial on the merits before another Judge of the said Court other than T. O. Awotoye.
(iii) An order setting aside the inadmissible evidence Exhibit BP and CP
3. And for such further order(s) as the Honourable Court may deem fit to make in the circumstance.
The grounds upon which the application is predicated are as follows:-
1. The additional grounds of appeal raise(s) recondite and substantial issues, points of law and jurisdiction of the lower court to entertain the respondent (sic) suit.
2. We have a good ground (sic) of appeal in the additional grounds of appeal.
3 That if the appeal success and their application is refund (sic) and not granted it will rendered the judgment of the court of appeal nugatory.
4. That the verdict arrived at by the lower court, by the evidence considered no reasonable court would have arrived at that decision.
5. Upon reading the record of appeal, the appellant discovered other substantial complaint bothering on error in law and mixed law and facts which the trial court in part based its decision and which were witherto not included in the notice of appeal but which will enhance the value of the appellants appeal and in the interest of justice.
The said motion is supported by an affidavit of 11 – paragraphs deposed to by a legal practitioner in the applicants’ chambers.
Attached to the motion are Exhibits; A, B and C which are: Exhibit A. – the copy of the notice of appeal contained on pages 2004 – 2008, sought to be amended; B: – the schedule of amendment and Exhibit C being the proposed amended notice of appeal.
The respondent filed a counter affidavit of 24th February, 2014 which was sworn and filed on same date. The applicants filed a written address on the 28th April, 2014, upon the order or this Honourable Court for the parties to file written addresses.
In response, the respondent, on his part filed a respondent’s address in opposition to the appellants/applicants motion dated 17th October, 2013.
The counsel for the parties adopted their respective briefs of argument at the hearing of the motion. The appellants/applicants counsel formulated 3 issues for our determination to wit;
i. Whether the Honourable appellate court can exercise its discretion by permitting the appellants/applicants to amend their notice of appeal and grounds of appeal.
ii. Whether the proposed amendment of the notice and grounds of appeal by the appellants/applicants amount to introducing fresh issues on appeal.
iii. Whether the appellants/applicants proposed amendment of the grounds of appeal to include the issue of jurisdiction for the 1st time is competent being an extended line of argument canvassed at the trial court.
On his part, the respondent formulated two issues to wit:
i. Whether the application is competent
ii. Whether in the circumstance of this suit from the pleading and evidence before the lower court, the premises on which the suit between the parties was fought at the trial court to the state of briefs and preliminary objection filed in this appeal, it will be just and judicial to allow the appellants/applicants to bring new issues of facts into this appeal in the pretence of filing additional grounds of appeal on points of law or jurisdiction.
Having studied the record of appeal and seen the many motions and counter motions filed, together with the objection raised by the respondent to the appellants’ brief of argument, I think a consideration of all the issues formulated by the respective parties will serve the interest of Justice as; it will wholly consider all the grievances of the respective parties.
I shall therefore take the appellant/applicants issues as Nos. 1, 2 and 3, while the respondents Issues shall be renumbered 4 and 5.
Issue number one
The appellants, learned Counsel argued that an Appellant is at liberty to amend his Notice and Grounds of Appeal after filing the original Notice of Appeal by the filing of Additional grounds where need be and that this court has the power to allow and grant such applications.
Esho v. IGP Suit No. 113/58; (1998) 3 FSC 38 – 39 refers wherein Abbot FJ held inter alia, “where the further ground of appeal contains substance, the court of appeal should always exercise its discretion to grant the leave sought.”
Learned Counsel submitted further that the Court has the discretionary power and competence to entertain a “point of law” raised on appeal even where it is for the very first time.
Fadairo Vs Gbadebo SC 219 at 248, Dweye Vs Igomaham SCNLR 135 @ 138 that the Court of Appeal is enjoined to do anything for the purpose of determining the real issue in controversy in the appeal whether suo motu as upon application by either party.
Okeke V. A. G. Anambra State Suit No. CA/E/158 (1977) 9 NWLR (Pt.519). 123 at 145 that Exhibits BP and C are products of illegality and are so tainted and that ground 7 of the proposed ground of appeal sought to be brought in as an amendment ground relates to admissibility and weight attached by the trial Judge on those Exhibits relying on Lawson Vs African Construction Co. Ltd. suit No. CA/AK/174/1997: (2000) Z NWLR (Pt.752) 585 at 615 – 611 wherein Salami JCA relying on Jacker Vs International Cable Co. Ltd. (91888) 5 TLR ruled as follows:
“Where matters has (sic) been improperly received in the Court below, even when no objection had been raised it is the duty of the court of appeal to reject it and decided (sic) the case on legal evidence”
Counsel also cited in aid the case of F. B. N. Plc. Vs. Mary Mediclini Co. & Anr (2001) 9 NWLR (Pt.171) 28 (suit No. SC/184/1995 wherein Uwaifo, JSC stated
“The purpose of such an amendment must be to ensure that the complaints of the appellant against the proceeding in question are laid and ventilated before the court.
The fact that briefs of argument of the facts have been filed and exchanged and the appeal is virtually ready for hearing will not prevent the court from exercising its undoubted discretion to allow an amendment both to the notice and to the grounds of appeal and the brief of argument so, long as the amendment will serve the end of justice and fairness.”
See also pharmalek industrial project Ltd. VS Bayo Ojo (1996) 1 NWLR (Pt. 359) 332 at 338.
Learned counsel submitted further that the Rules of Court permits the Court to exercise its discretion to allow the appellant to amend the grounds of appeal upon the payment of the prescribed fees for the making of such an amendment and upon such terms as the Honourable Court may deem fit.
Awole Vs Oduna (2007) 7 NWLR (Pt. 1034) 625 at 643 par C – 4 CA referred.
That this issue be resolved in favour of the appellants.
ISSUE NO. 2.
Whether the proposed amendment of the notice of appeal by the appellants/applicants amount to introducing fresh issues on appeal.
It is argued that the contention of the respondent in that regard as deposed in its paragraphs 8, 9 and 10 of its counter affidavit is not correct as, according to applicants’ counsel, those facts in the additional grounds of appeal were in fact raised at the trial court.
That at pages 152 – 164 of the record of appeal the appellants/applicants had formulated two issues and canvassed argument on the issues sought to be amended and argued.
That the respondent in its final address at serial No. 2 had replied to the said position and issues at same pages supra and those issues being issues of law did not have to be pleaded. That such jurisdictional issues may be raised in lamine or in pleadings, but must not necessarily be pleaded.
The case of World Mission Agency Incorporation Vs. Shode Rinder & Anr Suit No. CA/I/213/2010; (2012) LPELR 19738 CA.
The learned counsel also referred to Allied Bank of Nigeria Ltd. Vs Akinbueze (1997) 6 NWLR (Pt. 509) wherein the Court stated;
“A judgment of Court must continue (sic) itself to the issues settled by parties in their pleadings and not otherwise, unless of course the question (sic) concern a fundamental issuable (sic) such as jurisdiction.”
Popola Elabay & Anr Vs Chief Mrs. Ganiyat Dawedu (2006) 76 SC Bessey Ltd. Vs Housing legion Nig. Ltd. (2008) LPELR 8329 Ca; Gbagbagbha Vs Terumeni & Anr. Suit No. SC.223/2006; (2012) LPELR -15535 SC; Anya Vs Iyayi (1993) 7 NWLR (Pt. 305) Page 270; Onuorah Vs Okeke (2005) 10 NWLR (Pt. 932) page 47;
That the issue was raised by appellants/applicants at the final address at the High Court and that it was incumbent for the trial judge to have asked the counsel on both sides to address it on the propriety of raising the jurisdictional question at that stage.
Referring to Mudun & Ors. Vs. Adawchin & Ors CA/J/20/2006: (2013) LPELR-20774 (CA) wherein this Court held thus:
“A dutiful and diligent judge even without the necessity of pleading would ask both counsel to address him on whether he had the jurisdiction to entertain the complaint of this natures.”
It was finally argued on this issue that there were materials sufficient before the trial court upon which the issue of jurisdiction and wrongful admission of evidence vested and that even if it were a new issue, it could be decided based on those facts. Sundry other decisions such as Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 532 at 542, 12 WACA 137; Fadiora & Anr Vs Gbadebo & Anr. (1978) 3 SC 219 at 247; Aseino Vs Abraham (1994) 8 NWLR (Pt.361) 191 at 209 and a host of other cases were referred and relied upon to strengthen the position of the appellants/applicants that the issues raised by the additional grounds of appeal sought to be raised are or worst new a extended line of arguments already canvassed at the trial court and more so that they are jurisdictional questions and may be raised outside the pleadings of the parties.
ISSUE 3
Whether the appellants/applicants proposed amendment of the grounds of appeal to include the issue of jurisdiction for the first time is competent being an extended line of argument canvassed at the trial court? on this issue, the learned counsel submitted in reliance on the case of PDP Vs Lawal & Ors. Suit No. CA/A/612/2011 (2012) LPELR-7972 (CA) that the additional grounds of appeal sought to be brought in by the amendment are questions of law bordering on locus standi of the respondent and the jurisdiction of the court. That locus standi was also a jurisdictional issue and consequently, that the Issue No. 3 be resolved in favour of the appellants as the issue of jurisdiction may be raised at any stage of a proceedings and indeed even on appeal and for the first time and without leave and in any manner.
In reply, the respondents raised two issues to wit:
1. Whether the application is competent
2. Whether it will be just to allow the applicants bring new issues on appeal in the circumstances that pleadings had been filed, evidence led, briefs of argument filed, and preliminary objection filed in this
appeal. On the first issue, the learned counsel argued that the motion itself was incompetent as the schedule of Amendment referred to as schedule B in the Applicants/Appellants’ Motion is not annexed to the application. That the Respondent had pointed out this fact in paragraph 7 of its Counter Affidavit. That the Applicants themselves had in paragraph 3 of their supporting Affidavit to the motion averred at paragraph 7 thereof their reliance on the said schedule of Amendment, they referred to as Exhibit ‘B’. That the application should be dismissed as no one can put something on nothing and expect it to stand. MACFOY V UAC LTD (1962) A C 152 relied upon. On his second Issue the learned counsel submits that the power of this court to allow the filing of additional grounds of appeal or amendment of Notice of Appeal is discretionary.
That discretion must however be exercised judicially and judiciously.
That the hall mark of discretion is that it should not be exercised to over reach the other party or cause irreparable injury.
See Tanko Vs. The State (2009) 250m 92 @ 211 Aboselde Hyde Lab Plc Vs UMB Ltd & Anor (2013) 6 SC 1 @ 28.
That the issues sought to be brought in by the Amendment sought are not based on law but facts; that they are not also jurisdictional questions as contended by the Applicants/Appellants.
Learned Counsel, drawing profusely from the decision of the apex court in Udo vs Registered Trustee of the Brotherhood (2013) 2 SCM 224 submitted that there must be facts available at the court record to raise fresh points or issues thereon, else no leave of court will be granted. That if a new line of defence different from those raised at the court below or if the applicant: does not show that inspite of due diligence on his part, it was impossible to raise the point and have the same determined at the lower court.
I shall in the interest of Justice and for the purpose of determining fully the grievances of each of the parties base this appeal on all the issues formulated by the parties conjunctively, starting with the Respondents Issues.
Issue one of the Respondent -: on this issue, it is sufficient to state that the competence of the application is challenged on the ground that the schedule of Amendment averred in paragraph 7 of the supporting Affidavit to be annexed as the schedule of Amendment is nowhere so annexed. This issue has no merit as the said Exhibit B is described as the schedule of Amendment containing the three numbers (3 Nos). of the Grounds of Appeal Numbered as Grounds 7, 8 and 9. Those are the prayers per paragraph 2 (a) of the motion on Notice filed on 17 – 10 – 13 paragraph 7 of the supporting Affidavit referred to the schedule as that marked ‘B’.
I see the Additional Grounds of appeal containing 3 Grounds of Appeal. Grounds 1 and 2 are exactly as reproduced as Grounds 7 and 8 of the proposed Amended Grounds of Appeal and as prayed and averred.
The fact, therefore, that the document containing the 3 additional Grounds of appeal referred to by the Appellant as the schedule of Amendment exist in fact and is annexed to the motion suffices to render the application competent. The non marking thereof as Exhibit B is immaterial.
Issue 1 of the Respondent is resolved against it and in favour of the Appellant.
Issue No 2: The respondent argued in essence that the Appellant/Applicant sought to introduce new issues of facts by the amendment sought.
Having perused the 3 grounds of Appeal proposed and for which leave is sought to file and argue on appeal it is clear that they are not issues of facts but law simpliciter.
They challenge the admissibility of certain documents as exhibits at the trial court, the legality of the action of the Respondent to make a purchase or enter into contract; indeed it seeks to question the locus standi of the Respondent as a plaintiff and consequently, the jurisdiction of the court of trial.
All of these are, with due respect to the Respondent’s learned counsel, not Issues of facts as contended.
They are indeed questions of law and culminating in the jurisdictional issue, competence of action and admissibility of evidence and locus standi:
Issue No 2 of the Respondent is also resolved against it. The said 2 Issues of the Respondent are resolved as Issues re-numbered as 4 and 5 by me.
The Appellants’ Issue No 1 is one that can be answered without much ado. That is to say that a Court of law including the trial Court has the discretion to permit the amendment of a notice of appeal such that new or additional grounds of appeal may be added to an existing one or an existing ground of appeal be modified or altered as the Court deems fit.
The Court has the discretion to allow additional issues to be raised on appeal, provided the other side will not be prejudiced. This will be automatic without leave of court where it borders on jurisdiction; where however it is on mere issues of law, it must be shown that they are based on facts that could not have been reasonably for seen and raised at the trial court and that there are facts in the court below upon which those Issues of law may be based.
This position is made simpler where the Issues had indeed been raised and are borne out by the record of the trial court. Contrary to the Respondent’s argument the Appellant/Applicants are right when they argued that the points raised are jurisdictional issues and issues of law which are not being raised for the first time on appeal.
Indeed the Appellants/Applicants as Defendants had raised all the Issues sought to be the additional Grounds of Appeal in their Brief of argument as clearly contained on pages 176 – 183 of the record of Appeal.
What is more, all the documents impugned in the additional Grounds of appeal, were all pleaded, tendered and relied upon at the trial court.
This court has the discretion, in the circumstances of this case, to allow the amendment sought, the application being competent.
Issue No 1 of the appellant is resolved in favour of the Appellant/Applicant.
The issue No 2 of the Appellants/Applicants should be resolved in their favour, as the proposed grounds of Appeal by no means seek to introduce fresh or new issues on appeal.
The issues are, clearly from the Address of the Defendant/Counter Claimant at the trial, not new. They are the same issues argued, responded to and upon which Judgment was delivered by the trial court.
Indeed, even if those issues were not pleaded in the statement of claim or Defence, being issues of law and jurisdiction they may be raised on appeal for the 1st time as relating to jurisdiction and in the circumstances that the Respondent will not be embarrassed in the case of Issues of law. In this case as shown above, the Respondent who had had the Issues raised in address at the trial stage and a reply by him filed and a judgment rendered thereon and with the Exhibits in documentary Form Constituting the basis for the challenge already tendered, he cannot by any stretch of imagination be said to have been prejudiced or to stand the risk of any prejudice.
On the authority of PDP VS Lawal & Ors (supra), the application herein is competent, as this court can entertain same and the Applicants have vires to so approach this court to raise even for the first time issues bordering on jurisdiction and including any question of law in circumstances where no prejudice can be caused his opponent.
In this application, from the record of appeal, it is obvious that the application can be determined without recourse to additional evidence on facts. The fact that one or some out of a number of Issues sought to be raised by additional grounds of Appeal may only be discernable by a recourse to the pleadings, for an instance, the determination of the issue of locus standi of a party, will not, ipso facto, defeat the competence of the application or the power of the court or its discretion to grant an amendment nor will the right of the Applicant to bring the application be defeated.
A court of law is not necessarily bound to grant the amendment in terms of the motion, but upon or on such terms as the court deem just and equitable.
The instant application is a good one for the exercise of this court’s discretion.
Consequently the objection to it fails and is dismissed. In consequence, the application succeeds and is granted in the following terms:-
1. An Order of this Court is hereby granted for the Appellants/Applicants to file and argue Additional Grounds of appeal as contained in the document Headed “Additional Grounds of Appeal” as annexed to the applicant’s.
Motion for leave dated and filed on 17 -10 -13.
2. An Order granting leave to the Appellants/Applicants to amend the Notice of appeal dated 22nd January, 2010 in the manner prayed for in the Motion on Notice dated and filed 17-10-13 as herein before stated.
3. Adding the reliefs as stated in the Motion herein to the Notice of Appeal dated 22nd January, 2010.
4. The Appellant/Applicant is ordered to file and serve within 7 days from today the said Amended Notice and Grounds of Appeal as herein before referred to on the Respondents, herein, clean and separate copies, thereof not having been filed before now.
Costs: The Respondent to pay N10,000.00 (Ten Thousand Naira Only) as costs to the Appellants/Applicants, herein.
SOTONYE DENTON WEST, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
Appearances
Chukwu-Emeka O. Amaghiro, ESQ.For Appellant
AND
M. O. Okediya, ESQ.For Respondent
