NURUDEEN AJANI AKANJI v. RASAKI OYEBAMIJI & ANOR
(2012)LCN/5178(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of February, 2017
CA/I/M329/2011(R)
RATIO
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
NURUDEEN AJANI AKANJI Appellant(s)
AND
1. RASAKI OYEBAMIJI
2. MADAM GRACE OLUGBADE Respondent(s)
RATIO
WHETHER OR NOT THE COURT HAS THE DISCRETION TO ALLOW AN APPELLANT TO AMEND HIS GROUNDS OF APPEAL
By Order 7 Rule 4 Court of Appeal Rules 2016, the Court has the discretion to allow an appellant to amend his grounds of appeal but where the ground is a fresh point or issue not canvassed by the parties or dealt with by the Judge at the lower Court, there are conditions guiding the grant of leave. In the case of ARDO V ARDO (1998) 10 NWLR (PT. 571) the Court of Appeal per Edozie JCA (as he then was) observed:
?It is well settled that an appellant will not be allowed to raise on appeal a question which was not raised at the trial or considered by the trial Court. But when the question involves substantial points of law, substantive or procedural and it is plain that no further evidence could have been adduced which could affect the decision on them, the appellate Court would allow the question to be raised and the points taken to prevent an obvious miscarriage of justice: see Attorney-General Oyo State v. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt. 92) 1; Abinabina v. Enyimadu (1953) A.C. 207, 215; P.C. Akpene v. Barclays Bank (1977) 1 SC 47; Enang v. Adu (1981) 11-12 SC 25 at 45. But leave must be specifically sought and obtained for this purpose from the appellate Court. It will refuse leave when the point sought to be raised for the first time introduces an entirely new case or lines of defence different from the issues fought by the parties in the Court below or if the plaintiff had raised the point, the defence would have been able to meet it; see Adigun v. Attorney-General, Oyo State (No.2) (1987) 2 NWLR (Pt. 56) 197….?See also NASCO MANAGEMENT SERVICES LTD V. A.N. AMAKU TRANSPORT LTD (1998) LPELR-6450(CA). PER IYIZOBA, J.C.A.
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Lead Ruling): This Ruling is in respect of an undated motion filed on the 8th day of June, 2016 by the Appellant/Applicant praying for the following orders:
1. An Order extending the time within which the Appellant/Applicant may file additional grounds of appeal, against the decision of the High Court of Oyo State, Ibadan Judicial Division, as contained in the judgment of the Honourable Justice O.A. Boade, delivered on the 30th day of June, 2010 in suit No. 1/357/2003: Alhaji R. Oyebamji V. Madam G. Olugbade & Anor as stated in ground 3.4 of the Proposed Amended Notice of Appeal attached to the affidavit in support of this application and more particularly set out in the schedule below.
2. An Order granting leave to the Appellant/Applicant to amend the Appellant?s Notice of Appeal filed on 28th September, 2010; by incorporating the additional grounds of appeal as ground 3.4 of the Amended Notice of Appeal attached to the Affidavit in support of this application and marked as ?NA?.
3. AN ORDER extending the time within which the Appellant/Applicant may
1
file and serve its Appellant?s brief of argument in respect of this appeal.
4. AN ORDER of this Honourable Court deeming the Appellant?s Brief of Argument already filed and served as having been properly filed and served.
5. And for such further Order or other Orders as this Honourable Court may deem fit to make in the circumstances.
14 grounds were set out as the reasons for the application which is also supported by an affidavit of 30 paragraphs and exhibits, one of which is the proposed Notice of Appeal.
In opposition to the application, the 1st Respondent filed a counter-affidavit of three paragraphs.
Pursuant to the order of this Court, the parties filed written addresses. The Applicant?s written address is dated and filed 29/11/16. The Respondent?s written address is dated and filed on 7/12/16. The written addresses were duly adopted by the parties on 19/01/17.
The facts as deduced from the grounds and affidavits are as follows: The 1st Respondent herein instituted an action at the lower Court against the 2nd Respondent as the sole Defendant claiming damages for trespass and injunction. The
2
Appellant/applicant on his application was joined as 2nd Defendant in the suit. He claimed to be the rightful owner of the land and consequently counter-claimed against the 1st Respondent. At the conclusion of hearing, the lower Court granted all the claims of the 1st Respondent against the 2nd Respondent and dismissed the counterclaim of the Appellant/Applicant on the ground that he had no cause of action against the 1st Respondent. Dissatisfied with the judgment, the Appellant/Applicant filed a Notice of Appeal on 29/09/10. The Record of appeal was compiled and transmitted out of time but was deemed properly compiled and transmitted on 6th October, 2015. Learned counsel gave as reason for the late filing of the Appellant?s brief of argument the indigence of the Appellant. In the course of preparing the brief for filing, learned counsel claimed he discovered that there was need to file additional grounds of appeal. He then brought this motion praying for the Reliefs set out above. The reliefs in the application which the Respondent opposes are those concerning filing of additional grounds of appeal. He is not opposed to extension of time to file the
3
Appellant?s brief of argument.
In his written address, the Applicant?s counsel identified a sole issue for determination – whether this honourable Court should allow the additional ground to be argued in the Appellant?s Brief.
Learned counsel submitted that by Order 6 Rule 4 of the Court of Appeal Rules amendment of a ground of appeal is within the discretionary powers of this honourable Court. He argued that a refusal of grant of amendment of notice of appeal is a breach of fair hearing. Counsel pointed out that the additional ground sought to be incorporated is a fresh point not raised by the parties at the trial Court and was also not raised by the trial Court in its judgment. He submitted that as a fresh point, for the Court to grant leave, it must involve substantial point of law requiring no further evidence. Counsel submitted that his contention is that the pleadings on which evidence were led in the Court below were invalid in law and that the pleadings are already in the records before this Court; and that no further evidence is required. Counsel referred to the case of CONTRACT RESOURCES V. STANDARD TRUST BANK (2013) 3 SCM PAGE
4
35 where the SC observed that ?fresh point of law will be allowed on appeal if all evidence needed to support the new contention is before the Court and if the point of law is decisive?. Counsel further submitted that the fresh point sought to be argued is a matter which the Court can raise suo motu except that in so doing, the Court may need to call for address from counsel to the parties before determining the issue. Learned counsel submitted that what has been done by this application is to afford the Respondent the opportunity of addressing the Court on the fresh point so raised thereby saving the time of the Court. He finally submitted that the counter-affidavit of the 1st Respondent, particularly Paragraph 3(i) ? (viii) contravene Section 115 (1) and (2) of the Evidence Act, 2011 CAP E.14 LFN in that they contain legal argument and conclusions. He urged us to expunge the paragraphs. He prayed the Court to exercise its discretionary power in favour of the Appellant/Applicant and to allow the fresh point to be incorporated and argued in his Appellant?s brief.
?In opposing the application, learned counsel for the 1st Respondent
5
submitted in his written address relying on the case of OYENEYIN V AKINKUGBE (2010) 183 LRCN 82 @ 98 that if all the processes filed by the Appellant/Applicant in the lower Court were void, then there is nothing for the Appellant/Applicant to do on the case on Appeal. Counsel submitted that if the Appellant/Applicant initiated all the processes he filed in the case and encouraged the Court to use them in his favour, which the Court did; he cannot now complain that the processes were void. Counsel relied on the following cases: AKHIWU V THE PRINCIPAL LOTTERIES OFFICER MID-WESTERN STATE & ANOR (1972) 1 ALL NLR (PT.1) 229 AT 234; ADEBAYO V SHONOWO (1969) 1 ALL NLR 176 AT 190; ASHIRU NOIBI V FIKOLATI & ANOR (1987) 3 SC 105 AT 121.
RESOLUTION:
By Order 7 Rule 4 Court of Appeal Rules 2016, the Court has the discretion to allow an appellant to amend his grounds of appeal but where the ground is a fresh point or issue not canvassed by the parties or dealt with by the Judge at the lower Court, there are conditions guiding the grant of leave. In the case of ARDO V ARDO (1998) 10 NWLR (PT. 571) the Court of Appeal per Edozie JCA (as he then was)
6
observed:
?It is well settled that an appellant will not be allowed to raise on appeal a question which was not raised at the trial or considered by the trial Court. But when the question involves substantial points of law, substantive or procedural and it is plain that no further evidence could have been adduced which could affect the decision on them, the appellate Court would allow the question to be raised and the points taken to prevent an obvious miscarriage of justice: see Attorney-General Oyo State v. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt. 92) 1; Abinabina v. Enyimadu (1953) A.C. 207, 215; P.C. Akpene v. Barclays Bank (1977) 1 SC 47; Enang v. Adu (1981) 11-12 SC 25 at 45. But leave must be specifically sought and obtained for this purpose from the appellate Court. It will refuse leave when the point sought to be raised for the first time introduces an entirely new case or lines of defence different from the issues fought by the parties in the Court below or if the plaintiff had raised the point, the defence would have been able to meet it; see Adigun v. Attorney-General, Oyo State (No.2) (1987) 2 NWLR (Pt. 56) 197….?
See also
7
NASCO MANAGEMENT SERVICES LTD V. A.N. AMAKU TRANSPORT LTD (1998) LPELR-6450(CA).
The new point which the Applicant is desirous of raising and in respect of which he is seeking the leave of the Court is set out below:
?GROUND 3.4
The learned trial judge erred in law when it evaluated evidence led on pleadings that are not valid in law which the amended statement of claim and statement of defence were not signed in accordance with Section 2(1) and 24 of the Legal Practitioner Act Cap 207 Laws of the Federation.
PARTICULARS
i. The 1st Respondent initially instituted the suit against the 1st Respondent claiming trespass and perpetual injunction.
ii. The Appellant was joined by the Order of Court.
iii. The 1st Respondent?s amended statement of claim and reply to Statement of Defence and Defence to Counter Claim were signed by ?Legal Practitioner Representing the Plaintiffs whose address of service is…?
iv. The 2nd Defendant/Appellant Statement of Defence was equally signed by ?Y.A. Adeleke & Co?.
v. The decision of the lower Court was based on evidence led on these invalid
8
processes.?
The original writ of summons in this suit at pages 1 and 2 of the Record and the amended writ of summons at pages 23 and 24 were properly signed by J.O.A. AJAKAIYE ESQ. The amended statement of claim at pages 21 and 22 of the Record and reply to Statement of Defence and Defence to Counter Claim at pages 33 and 34 were signed by ?Legal Practitioner Representing the Plaintiff whose address of service is:-
J.O.A AJAKAIYE ESQ. N6/36 ADAMASINGBA, BEHIND ELEGANZA SHOPPING COMPLEX, FAJUYI ROAD, P.O.BOX 4564, IBADAN.
Can the above be said to have offended Section 2(1) and 24 of the Legal Practitioner Act Cap 207 Laws of the Federation in the sense that the processes were not signed by a legal practitioner? This is no doubt a substantial point for determination at the hearing of the appeal. Likewise, the original statement of defence though not an originating process was signed by a law firm. The question therefore also involves a substantial point of law for determination. All the processes required for the determination of these points of law are already in the Record of Appeal and before the Court. There is no reason to
9
refuse the application to amend the Notice of Appeal to incorporate the additional ground of appeal. On the contrary refusal to grant the leave sought will mean denial of fair hearing and will certainly occasion miscarriage of justice on the Applicant. The Respondent on the other hand apart from a slight delay which can be compensated in costs will lose nothing if the leave sought is granted as he will still have the opportunity to address the issues at the hearing of the appeal.
In the circumstances the application is granted in the following terms:
1. Time within which the Applicant may apply for leave to file additional grounds of appeal is extended to this day.
2. Leave is hereby granted the Applicant to amend his Notice of Appeal filed on 02/09/10; by incorporating the additional ground of appeal as ground 3.4 as shown in the proposed Amended Notice of Appeal attached to the Affidavit in support of the application and marked Exhibit ?NA?
3. Time within which the Applicant may file and serve his Amended Notice of Appeal is extended by 14 days from today.
?As time within which to file the Appellant?s brief
10
of argument will begin to run from the date of filing the Amended Notice of Appeal, Reliefs 3 & 4 for extension of time within which to file the Appellant?s brief of argument and a deeming order are struck out. Cost assessed at N20, 000.00 in favour of the Respondent.
HARUNA SIMON TSAMMANI, J.C.A.: I had a preview of the Ruling just delivered by my learned brother, Chinwe Eugenia Iyizoba, JCA.
The application of the Applicant in this Appeal sought the leave of this Court to file and argue additional grounds of Appeal and to amend the Notice of Appeal by incorporating the additional ground(s) of Appeal. The additional ground of Appeal sought to be raised pertains to the competence and/or validity of the amended Statement of Claim and Statement of defence filed in the trial Court in view of Sections 2 (1) and 24 of the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria. It is obvious therefore, that the new ground will raise an issue that will not require the calling or adduction of evidence, or introduction of a new case or line of defence.
?It is for the above reason and those stated in the lead
11
judgment that I agreed that this application has been made out. It is accordingly granted. I abide by the consequential orders made in the lead judgment, including the order on costs.
?NONYEREM OKORONKWO, J.C.A.: I have read the draft of the ruling of my lord Chinwe Eugenia Iyizoba in advance and I agree with it. I also abide with the Orders made therein.
12
Appearances
KOLA OLOYEDE, ESQ.For Appellant
AND
J. O. A. AJAKAIYE, ESQ. with him, O. O. ADELEKE (MRS) for the 1st Respondent.
NO REPRESENTATION for the 2nd Respondent.For Respondent
