TRANSNATIONAL CORPORATION OF NIGERIA PLC. v. ANKOR POINTE INTEGRATED LIMITED
(2015)LCN/8030(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of November, 2015
CA/L/754M/2012
RATIO
APPEAL: ISSUES FOR DETERMINATION; WHETHER A PARTY WOULD BE ALLOWED TO RAISE A QUESTION OR ISSUE THAT WAS NOT RAISED OR TRIED AT THE LOWER COURT WITHOUT LEAVE OF COURT
To start with, it is elementary law that this Court will not allow a party on appeal to raise a question or issue that was not raised or tried at the lower court without the leave of court. However, as with any general rule, there are exceptions thereto – see Corporate Ideal Insurance Co. Ltd. v. Ajaokuta Steel Co. Ltd. (2014) 7 NWLR (Pt. 1405) 165, where the Supreme Court per Okoro, JSC, stated-
“- – This Court would readily grant leave to a party to raise and argue new grounds or issues not canvassed at the court of trial or at the lower court where the new grounds involve substantial points of law, substantive or procedural, which need to be allowed to prevent an obvious miscarriage of justice. It will also be granted if further evidence is not required. Thus, a party, who seeks to file and argue fresh issue not canvassed in the lower court, whether the issue pertains to law or procedure, must seek leave and obtain the leave of court first else such issue must be struck out”.
Secondly, this Court is not concerned with the validity or otherwise of the fresh issue sought to be raised. As the Supreme Court clearly said in Okenwa’s case (supra) – that is a matter to be pronounced upon after leave is granted to the appellant to raise the said fresh issue on appeal. per. ITA GEORGE MBABA, J.C.A.
APPEAL: FRESH ISSUE; HOW TO DETERMINE WHETHER A FRESH ISSUE IS A SUBSTANTIAL QUESTION OF LAW
The only point we need to consider in this application is whether or not the fresh issue sought to be raised is a substantial question of law, which is different from a question of whether or not there is any merit on the point itself, the decision of which can only be taken after arguments from the parties have been taken at the trial, as the Supreme Court said. Finally, and more importantly, the fresh issue sought to be raised touches on jurisdiction, and it is settled that leave may not be necessary because the issue of jurisdiction cannot be toyed with lightly, and the law grants it the indulgence to be raised anytime, anywhere and at any stage – see Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175 at 207-208, where the Supreme Court per Adekeye, JSC, emphatically stated that: “- – An appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner. The issue of jurisdiction or competence when raised must be one which must be capable of being disposed of without the need to call additional evidence. – – Where the question involves a substantial point of law, substantive or procedural and it is apparent that it will not be necessary to open up further evidence, which would affect the decision, the court has a duty to allow the question to be raised and points taken so as to prevent an obvious miscarriage of justice”. per. ITA GEORGE MBABA, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
TRANSNATIONAL CORPORATION OF NIGERIA PLC. Appellant(s)
AND
ANKOR POINTE INTEGRATED LIMITED Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Lead Ruling): The applicant has a pending appeal in this Court against the decision of the Federal High Court in Suit No. FHC/L/CS/448/2010, and is praying this Court for leave to raise and argue a fresh issue in the appeal, to wit,
“whether the lower court properly exercised jurisdiction to appoint an arbitrator when a condition precedent for the exercise of that jurisdiction had not been fulfilled”; leave to amend its original notice of appeal; and extension of time within which to file its brief of argument in the appeal.
The grounds upon which the application is brought are as follows –
a. A condition precedent to arbitration under Clause 13 of the purported memorandum of understanding between the parties is that the parties must have failed to resolve their disputes (if any) in a negotiation initiated by either party by written invitation. In utter neglect of the above condition precedent, the respondent purported to commence arbitration proceedings against the appellant on 19/11/2009.
b. The non-fulfillment of this condition precedent meant that the lower court lacked the jurisdiction to appoint an arbitrator in
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furtherance of the arbitration – see Madukolu v. Nkemdilim (1962) NSCC 374.
?c. Although this jurisdictional issue was inadvertently not raised or argued by the appellant at the lower court, jurisdiction being a threshold and fundamental issue to adjudication can be raised before this Honourable Court even for the first time.
d. A new ground of appeal is necessary to support this fresh jurisdictional point.
e. The time limited for the filing of the appellant’s brief of argument in this appeal has elapsed.
f. The leave of this Honourable Court is required to –
i. Raise and argue the issue as articulated at Relief 1 hereof, as a fresh issue.
ii. Amend the pending notice of appeal to incorporate a new ground covering the new issue.
iii. File the appellant?s brief of argument out of time.
The application is supported by a 17-paragraph affidavit with 2 exhibits – proposed amended notice of appeal, and appellant’s brief of argument. In opposing it, the respondent filed a 16-paragraph counter-affidavit, wherein the deponent averred as follows in paragraphs 5 to 13 that –
5. By a memorandum of understanding duly executed between the applicant and the respondent wherein
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the applicant engaged the respondent as consultants to help develop the upstream and downstream divisions of the applicant and manage the applicant’s energy portfolio for a period of 12 months with effect from the 23/6/2008 at a fee a USS103,500.00 per month. [Copy of the memorandum of understanding attached as “Exhibit AG1”]
?6. When a dispute arose as to the non-settlement of the respondent?s invoices by the applicant and the refusal of the applicant to appoint an arbitrator in line with the provision of Exhibit AG1 the respondent by an originating motion, dated the 12th of April, applied to the Federal High Court for the appointment of a second arbitrator to adjudicate on the dispute between them.
7. On 9/5/2012 the Federal High Court Coram Nyako J. gave a ruling/judgment on the respondent’s originating motion by which said ruling/Judgment, the Hon. Court appointed Hon. Justice Abdullahi Mustapha (Rtd.) FCI.Arb as the second arbitrator. (Copy of ruling/judgment attached “Exhibit AG2″) 8. The Hon. Court, amongst other things, held that the issues as to the validity and existence or not the memorandum of understanding (Exhibit AG1) can be determined by the
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arbitral tribunal, which has been duly constituted.
9. I know as a fact that the applicant is not objecting to the appointment of the person of Hon. Justice Abdullahi Mustapha (Rtd.) as the second arbitrator, their only grouse is with validity and existence or not of Exhibit AG1.
10. Contrary to the averments in paragraph 16 of the applicant?s affidavit, Exhibit AG1 was duly executed by the respondent and the applicant to which work was done and some payments already made.
11. I know as a fact that the applicant has also not shown any substantial reason, special or exceptional circumstances to warrant the grant of this application.
12. I verily believe that this application is a ploy by the applicant from fulfilling its obligations to the respondent by failing and refusing to settle its indebtedness to the respondent and escape liability.
13. I verily believe that the appellant/applicant’s application is frivolous, vexatious, time wasting and brought to further delay the inevitable realization of the respondent?s lawful entitlement.
The same deponent- Adeola Gbadebo (Miss), legal practitioner in the firm of Messrs Ayodele Akintunde & Co. respondent’s
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legal practitioner, swore to a 9-paragraph further counter-affidavit, wherein she averred-
4. On 1/11/2012, the applicant filed a motion on notice dated 1/11/2010 at the Federal High Court, Lagos Division wherein one Earnest Orofa a Legal Practitioner in the office of the former appellant counsel deposed to an affidavit in support of the motion. A copy of the motion on notice – with the affidavit in support is now produced and shown to me marked Exhibit AG3”.
?5. In paragraphs 3, 4 and 5 of the affidavit in support of the motion dated 1/11/2010, the said Earnest Orofa stated thus: –
“(3) That immediately after service of the originating motion on the defendant the parties opened negotiations towards an amicable settlement of this matter.
(4) That the defendant never wanted to join issues with the plaintiff by filling process to oppose the originating motion when settlement was being negotiated.
(5) That the parties failed to reach an amicable settlement meanwhile the period allowed by the rules for the defendant to respond to the originating motion has lapsed.”
6. I verily believe that the parties have fully explored the provisions of the Arbitration Clause for
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negotiation and negotiation has broken completely.
7. I know for a fact that the appellant does not want to be bound by the Arbitration Clause between the parties and raising the issue of negotiation as a condition precedent is merely a ruse.
8. I know for a fact that the appellant cannot say at the same time that the Memorandum of Understanding is a fraud and also claim that the condition precedent in the agreement with respect to negotiation has been fulfilled.
Written addresses were ordered, and duly filed and adopted by counsel, and in the applicant’s address written by Godson C. Ugochukwu, Esq., it was submitted that the issue that calls for determination is as follows-
“Whether, considering the facts and the law on the subject matter, this application ought to be granted.”
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The respondent, however, raised a preliminary objection in its address written by Ayodele Akintunde, Esq., to the effect that this application is incompetent because the applicant failed to file the ruling/judgment delivered by the lower court on 9/5/2012 along with this application, and we were urged to strike out this application for this fundamental default. But it also submitted that the
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sole issue for determination is as follows –
“Whether this Honourable Court should grant the appellant leave to raise and argue a so-called “fresh issue” when the point raised does not involve any substantial issue of law”.
The applicant did not file a reply or react to the respondent’s objection; nonetheless, I will quickly say that the objection is neither here nor there. Yes, Order 7 Rule 7 of the Court of Appeal Rules 2011 stipulates that the
“application for leave to appeal from a decision of a lower Court SHALL contain copies of the following items, namely –
(a) Notice of motion for leave to appeal (Form 5);
(b) A certified true copy of the decision of the court below sought to be appealed against;
(c) A copy of the proposed grounds of appeal; and
(d) Where leave has been refused by the lower court, a copy of the order refusing leave.
In other words, an application for leave to appeal must contain a copy of the decision appealed against but the application under consideration is not one for leave to appeal; the applicant has a pending appeal, and it is praying this Court for leave to raise and argue a fresh issue in its appeal, and to amend its notice of appeal
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and brief of argument accordingly.
In my view, to dismiss the application on the ground that the ruling appealed against was not exhibited would amount to succumbing to the tyranny of technicality in defiance of substantial justice, which prevails over and above any other consideration, in applications of this nature.
In the circumstances, the issue for determination is simply whether the application should be granted as prayed. In arguing that it should, the applicant referred us to the law on the subject, citing the following –
– Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 @ 306-
“A fresh point of law is a new point of law, which was not raised by any of the parties at the trial of the case. A point of law which was raised by the parties at trial cannot be a fresh point of law”
– Kaza v. State (2008) 7 NWLR (Pt. 1085) 125 @ 189-190;
– GTB v. Fadaco Ind. Ltd (2007) 7 NWLR (Pt. 1033) 307 @ 323-324-
“The Court of Appeal and the Supreme Court will not allow a party on appeal to raise (sic) question not raised in the court of trial or grant leave to a party to argue new issue not canvassed in the lower court except where the new grounds involve substantial
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points of law, substantive or procedural which need to be allowed to prevent an obvious miscarriage of justice.
– Okenwa v. Mil. Gov., Imo State & Ors. (1996) 2 NWLR (Pt. 6) 455-
“On the issue of when a question of law may be said to be substantial, this Court (Supreme Court) in African Newspaper of Nigeria Ltd. & Ors v. FRN (1985) 2 NWLR (Pt. 6) 137 at 149 explained the matter thus: –
“We shall not attempt a complete definition of what amounts to a substantial question of law, but it must clearly be one of which arguments in favour of more than one interpretation might reasonably be adduced. Secondly, the question must be one which must necessarily be decided in the cause or matter and not which may be unnecessary to decide.?
In the present case, the point of law raised, even from the arguments advanced in the briefs of the parties, clearly admits of more than one interpretation. A decision thereupon is not necessary but crucial to a just determination of the suit which concerns who, in law, is the traditional ruler of the autonomous community in question. I am therefore of the view that the question as to the true interpretation and effect of the
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provisions of the said Traditional Rulers and Autonomous Communities Law, No. 11 of 1981, the subject matter of the fresh point sought to be raised, it is a substantial point of law for the determination for the court below. Whether however, it is valid or meritorious – – is quite a different matter”. [Underlining supplied by the applicant]
– Okenwa v. Mil. Gov., Imo State & Ors. (supra) at page 408- “In Att.-Gen. Oyo State v. Fairlakes Hotels Ltd (supra), this Court – – stated the principles guiding the appellate courts in the exercise of their 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 thus:
“The discretion has been exercised in a variety of situations in the interest of the administration of justice. The following situations are disclosed by some of the decided cases, among many, where substantial points of law, substantive and procedural are involved. The leave has been granted to raise a new point of law:
(1) When the point of law raised discloses ex facie that the court has no jurisdiction.
?(2) Where the point of law raised arose out of the decision of the court of first
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instance and could not have been raised earlier in that court.
(3) Where the point of law raised involves the interpretation of documents relevant to the determination of the case before the court.
(4) Where all the materials necessary for the determination of the point of law raised are present in the records of the court.
(5) Where the court is satisfied that the evidence is such that establishes beyond doubt that the facts, if fully investigated would have supported the new plea.”
?The applicant’s position is that the issue sought to be raised for the first time in this Court discloses a substantial question of law because it is clear ex facie that the said fresh issue raises a question of jurisdiction.
It further submitted that the said fresh issue raises the point of non-fulfillment of a condition-precedent to properly invoke the jurisdiction of the lower court; that in deciding the issue, this Court would be obliged to decide the point against the background of the principles guiding the exercise of a court’s jurisdiction as laid down in Madukolu v. Nkemdilim (1962) NSCC 374; and that the said fresh issue sought to be raised –
i. Discloses ex facie that the
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court has no jurisdiction;
ii. Arose out of the decision of the court of first instance and was inadvertently omitted by the counsel handling the matter then;
iii. Involves the interpretation of documents (in this case, the purported Memorandum of Understanding between the parties) relevant to the determination of the case before the court;
iv. The material necessary for the determination of the point of law raised are present in the records of court;
v. The evidence is such that establishes beyond doubt that the facts, if fully investigated, would have supported the plea.
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On the “Question of Further Evidence”, it reproduced paragraph 12 of its affidavit, paragraph 5 of the respondent’s counter affidavit, Exhibit “AG3” of the respondent’s further counter affidavit, and submitted that the respondent, on the one hand, contends that the fresh point would require fresh evidence and, on the other hand, argues that the issue has been taken at the lower court – meaning that the evidence is comprised in the lower court’s record and no further evidence would be required; and that this misconception led it to venture into the merits of the issue sought to be raised, which
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this Court cannot embark on at this stage, citing Okenwa’s case (supra) where the Supreme Court held as follows –
“I think with the greatest respect that this Court is not in this appeal concerned with the validity or otherwise of the fresh issue sought to be raised by the appellant. That will be a matter – – to pronounce upon in the event of leave being granted to the appellant to raise the point I will therefore make no observation whatever on the issue. It suffices to state that what I need to consider at this stage is whether or not the fresh point sought to be raised is a substantial question of law. The 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 heard – -”
It commended this dictum to us and urged us to ignore every averment in the respondent’s affidavits that goes to the merits of the question.
?To buttress its position, it also submitted that it formulated a point of law that clearly and beyond equivocation raises a jurisdictional point, to wit, that the suit was not commenced by due process as a condition precedent to
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commencement of arbitrator proceedings was not fulfilled by the respondent before commencing arbitration and approaching the court to appoint a second arbitrator on its behalf; that the lower court was without the requisite jurisdiction to appoint an arbitrator pursuant to the arbitral proceedings, the arbitration proceedings being incompetent, citing PDP v. Adeyemi (2002) 10 NWLR (Pt. 776) 524, Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341; and that the issue of jurisdiction can be raised at any time, even on appeal, citing GTB v. Fadaco Ind. Ltd. (supra), Bronik Motors Ltd. v. Wema Bank (1983) 1 SCLR 319, and Obiakor v. State (no citation given) where the Supreme Court held thus -“Without necessarily citing any authority for now, the general principle is that when a party seeks to file and argue in this Court any fresh issue not canvassed at the lower courts, whether that issue pertains to law or otherwise, leave to file and argue the issue must be had and obtained first. But where the point or issue sought to be raised pertains to (sic) issue of jurisdiction, the point or issue can properly be filed and argued with or without the leave of court even
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if it is being raised for the first time.”
It also referred us to Owners, M.V Gongola Hope v. SC (Nig) Ltd (2007)15 NWLR 189 @ 206, where the same Supreme Court held as follows –
?A matter not raised at and decided by the Court of Appeal may not ordinarily be raised in the Supreme Court for the first time without leave unless it is such a matter of fundamental issue because of the nature of its fundamental importance to the competence of adjudication is one of the very few exceptions where fresh issues my be raised without leave. Issue of jurisdiction may be raised at any stage of the proceedings even at the Supreme Court and even by the court suo motu, leave may not be necessary because without the judicial competence to adjudicate everything done is a nullity. The general rule is that fresh issues can only be raised with leave”.
And FCDA v. Ezinkwo (2007) WRN (Vol. 18) 158, where this Court held –
“There is nothing like raising the issue of jurisdiction as a fresh issue. There is no formality in raising the issue of jurisdiction for the first time on appeal, and leave is not needed. There is no need to apply for leave. As I said earlier, the form, nature
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or manner in which jurisdiction is raised on appeal is immaterial and the fact that jurisdiction was not raised in the trial Court is of no relevance when raised in the Court of Appeal or the Supreme Court.”
It concluded that it is clear from the foregoing that the issue sought to be raised is one which, having raised the question of jurisdiction, could be taken for the first time on appeal, with or without leave. To that extent, opposing the application, would, in law, appear utterly misconceived, and that the attitude of this Court to such issue has invariably been that it be heard on the merit. Thus, we were urged to grant the application.
In arguing the reverse that the application should not be granted, the respondent submitted that generally this Court will not allow points that were not taken in the trial court to be taken for the first time before it because it would not have the benefit of the opinion of the trial court on the issue, citing Kabaka’s Govt. v. A.G. of Uganda (1963) 3 WLR 572 and this is especially so where the point raised involves consideration of matters of fact, which the court below is in a better position to deal with, and which it
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had in fact dealt with, citing Ejiofudomi v. Okonkwo (1982) 11 SC 74: Malumfashi v. Karfi (2009) LPELR -CA/K/EP/SHA/6/2008.
It reproduced Clause 13 of the MOU attached as Exhibit AG1 to its counter affidavit; paragraphs 3, 4, and 5 of Exhibit AG3 attached to its further counter affidavit; and paragraph 6 and 7 of its counter affidavit, to buttress its contention that “at all material times the issue was before the lower court.” It also referred us to the following authorities –
– Direct On PC Ltd. v. SOF Tech Ltd (2011) 10 NWLR (Pt. 1256) 442 –
“A fresh issue or point of law is a new point of law which was not raised by any of the parties at the trial of the case. The special circumstances or conditions under which a point of law not specifically canvassed at the trial court may be allowed to be raised on appeal for the first time are: –
a. the point of law raised must be substantial;
b. no further evidence would be adduced which will affect the new point;
c. the refusal to grant leave to argue the fresh point will occasion miscarriage of justice”.
– Malumfashi v. Karfi & Ors (supra), where this Court also held that
“– The attitude of the Court of Appeal and
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the Supreme Court is that they will not allow a party on appeal to raise a fresh issue or grant leave to a party to argue new ground not canvassed in the trial court except and unless the new ground involved substantial point of law which need to be allowed to avoid an obvious miscarriage of justice.?
The respondent’s contention is that the fresh issue the appellant seeks to canvass before this Court is not a substantial point of law because the arbitral tribunal is the proper place for it to raise any such objection as to jurisdiction, including the non-fulfillment of the condition precedent, citing Section 12(1) of the Arbitration and Conciliation Act, which provides that-
“An Arbitral Tribunal is competent to rule on a question pertaining to its own jurisdiction and on any objections with respect to the existence or validity of an arbitration agreement.”
?Furthermore, that it is the arbitral tribunal’s duty to ascertain for itself the existence or validity of the contract and whether or not it has jurisdiction, and satisfied that it has jurisdiction, it can proceed with the arbitration, and that where it finds it has no jurisdiction it should so rule and
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advise parties, citing NNPC v. Klifco (Nig.) Ltd. (2011) 10 NWLR (Pt. 1255) 209.
There is no doubt about it, this application will be granted as prayed. The appellant is right on all fronts, including authorities cited, which spell out the law regarding applications of this nature better and more up-front than those cited by the respondent. To start with, it is elementary law that this Court will not allow a party on appeal to raise a question or issue that was not raised or tried at the lower court without the leave of court. However, as with any general rule, there are exceptions thereto – see Corporate Ideal Insurance Co. Ltd. v. Ajaokuta Steel Co. Ltd. (2014) 7 NWLR (Pt. 1405) 165, where the Supreme Court per Okoro, JSC, stated-
“- – This Court would readily grant leave to a party to raise and argue new grounds or issues not canvassed at the court of trial or at the lower court where the new grounds involve substantial points of law, substantive or procedural, which need to be allowed to prevent an obvious miscarriage of justice. It will also be granted if further evidence is not required. Thus, a party, who seeks to file and argue fresh issue not canvassed in
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the lower court, whether the issue pertains to law or procedure, must seek leave and obtain the leave of court first else such issue must be struck out”.
Secondly, this Court is not concerned with the validity or otherwise of the fresh issue sought to be raised. As the Supreme Court clearly said in Okenwa’s case (supra) – that is a matter to be pronounced upon after leave is granted to the appellant to raise the said fresh issue on appeal.
The only point we need to consider in this application is whether or not the fresh issue sought to be raised is a substantial question of law, which is different from a question of whether or not there is any merit on the point itself, the decision of which can only be taken after arguments from the parties have been taken at the trial, as the Supreme Court said.
?Finally, and more importantly, the fresh issue sought to be raised touches on jurisdiction, and it is settled that leave may not be necessary because the issue of jurisdiction cannot be toyed with lightly, and the law grants it the indulgence to be raised anytime, anywhere and at any stage – see Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175 at 207-208, where the
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Supreme Court per Adekeye, JSC, emphatically stated that:
“- – An appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner. The issue of jurisdiction or competence when raised must be one which must be capable of being disposed of without the need to call additional evidence. – – Where the question involves a substantial point of law, substantive or procedural and it is apparent that it will not be necessary to open up further evidence, which would affect the decision, the court has a duty to allow the question to be raised and points taken so as to prevent an obvious miscarriage of justice”.
In this case, the fresh issue sought to be raised touches on jurisdiction, and I am satisfied that it will not be necessary to lead further evidence that would affect the said decision of the lower court, one way or the other.
So, the application is granted as prayed. The appellant is granted leave to raise and argue the said fresh issue on appeal, and to amend its notice of appeal accordingly. It is also granted an extension of 14 days from today to file its brief of argument in the appeal.
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No order on costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the opportunity of reading before now the ruling just delivered by my learned brother AMINA A. AUGIE, JCA.
It is trite law that an appellant will not be allowed to raise a question not raised in the trial court or grant leave to a party to argue new grounds not canvassed in the trial court except where the grounds involve substantial points of law, substantive or procedural which need to be allowed to prevent an obvious miscarriage of justice. Before a point not raised in the lower court would be entertained in the appellate court it must be satisfied that it is a substantial point of law and that no evidence could be given which if it were raised in the lower court would have affected the decision. See KOSILE v. FOLARIN (1989) 4 SC (PT 1) 150; ARAKA v. EJEAGWU (2000) 12 SC (pt. 1) 99; IKEANYI v. ACB LTD (1997) 2 SCJN 93; A.G OYO STATE v. FAIRLAKES HOTEL LTD (1988) 5 NWLR (PT 92) Page 1; BANKOLE v. PELU (1991) 8 NWLR (PT 211) 523.
In OLALOMI INDUSTRIES LTD v. N.I.D.B LTD (2009) 7 SC 94, it was also held that a question of law, Constitution or jurisdiction can be raised at any time with leave
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appropriately sought and obtained. This is the position of the Supreme Court which also emphasized in OKENWA v. MILITARY GOVERNOR OF IMO STATE (1996) 6 SCNJ 221, that what is needful to be considered at this stage is whether or not the fresh point sought to be raised is a substantial question of law and this 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 heard. This application deserves such consideration.
For this and the fuller reasons given in the lead ruling I also agree that this application should be and it is hereby granted.
I abide by the consequential orders made in the lead ruling.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the opportunity of reading in draft the judgment delivered by my learned brother, AMINA ADAMU AUGIE, JCA. I agree with the reasoning and conclusion arrived in the judgment.
?Let me just restate that this court has the discretion to grant leave for parties to raise and argue fresh issues in its appeal in the interest of justice. Besides, the issue of jurisdiction raises a substantial question of law which ought to be
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determined by this Court. Whether such an issue raised is meritorious or not is quite a different matter which ought to be determined in the appeal. See generally, CORPORATE IDEAL INSURANCE LTD v. AJAOKUTA STEEL COMPANY LTD. & ORS (2014) LPELR-22255 (SC), OKENWA v. MIL GOV, IMO STATE & ORS (1996) 2 NWLR (pt. 6) 455. It is for these and the fuller reasons supplied in the lead judgment that I too see merit in the application. I also grant this application and abide by the consequential orders made therein.
APPEARANCES
F. I. Okike Esq. with
Lawrence Ohineme Esq. – For Appellant
Ayodele Akintunde Esq.,
with A. Akinjo Esq.,
T. Omogege Esq.
and Alebiosu Esq. – For Respondent
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Appearances
F. I. Okike, Esq., with Lawrence Ohineme, Esq.For Appellant
AND
Ayodele Akintunde, Esq., with A. Akinjo, Esq.
T. Omogege, Esq., and A. Alebiosu, Esq.For Respondent
