ZUMAX NIGERIA LIMITED v. BLISS INTERNATIONAL LIMITED
(2010)LCN/3767(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 5th day of May, 2010
CA/L/572M/08
RATIO
APPEAL: REQUIREMENT FOR RAISING FRESH ISSUES ON APPEAL
It is settled that when a party seeks to file and argue in the court a fresh Issue not canvassed in the lower court whether the Issue pertains to law or otherwise, he must seek leave to file and argue such an Issue first before it can be raised.
See the cases of Obiakor & Anor v. The State (2002) 6 SC (pt.11) 33, 2002 1O N.W.L.R. (pt.776) 615.
In Oseni v. Bajulu & 2 Others (2009) 12 SC (pt. 11) 81, the Supreme Court set out the circumstance to the exception to the above Rule when they held per Ogbuagu J.S.C.
“However, it is settled that when a party seeks to file and argue in this court a fresh Issue not canvassed in the lower Court – whether the Issue pertains to law or otherwise, leave to file and argue such Issue, must be had and obtained. See the case of Obiakor & Anor. v. The state (2002) 6 S.C. (pt. II) 33; (2002) 10 N.W.L.R. (pt.776) 612 at 525; (2002) 6 SCNLR 193. I wish to add quickly as this is well established, that although the above, is the law, but such a fresh Issue, can be raised and relied on, upon any new line of argument or new decided authorities judicial or Statutory to support his argument in an Issue that is properly before the Court. So said this Court in the case of Chief Ogunbadejo v. Otunba A. L. Owoyemi (1993) I N.W.L.R. (pt.271) 517 at 534; (1993) 1 N.W.L.R. (pt.271) 517 at 534; (1993) 1 SCNJ 148 – per Nnaemeka-Agu, JSC., (as he was then)”. (Underlined mine)
The general rule is that an Appellant will not be allowed to raise on appeal in this court a question which was not raised, tried and considered in the court below unless leave is sought first and the question involves substantial points of law, whether substantive or procedural and it is clear that no further evidence will be adduced which will affect the decision on them.
See Bankole v. Pelu (1991) 8 N.W.L.R. (pt.211) 523 SC; Owie v. Ighiwi (2005) 5 N.W.L.R. (pt.917) 184 SC. The exception to the mandatory requirement to seek leave is limited to where an issue is already before the court and there are judicial authorities or statutes supporting same. PER REGINA OBIAGELI NWODO, J.C.A.
APPEAL: WHAT ISSUES CAN BE RAISED ON APPEAL
It is trite law that an Appellant on Appeal from the court below may not take a point which he has not taken or argued in the court below. This position is in accord with the nature of an appeal and the principle of rehearing a case once on appeal. See Our Line Ltd. v. S.C.C. (Nig.) Ltd. (2009) 17 N.W.L.R. (pt.1170) 382 the Supreme Court per Chukwuma Eneh S.C. had this to say:
“It is settled that an appellant on appeal from the court below may not take a point which he has not taken or argued in the court below – this is in accord with the principle of rehearing of the case in this court. The only qualification is that an appellant is entitled to challenge the judgment of the court below on the ground on which it has been decided and particularly where it has raised a substantial point of law moreso on issue of jurisdiction. See: Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147 at 170 followed by this court in the case of Barclays Bank (Nig.) Ltd. v. C.B.N. (1976) 6 SC 175”. PER REGINA OBIAGELI NWODO, J.C.A.
PROCEDURE: AT WHAT STAGE CAN FRESH ISSUE TOUCHING ON JURISDICTION CAN BE RAISED
It is also settled law that a fresh Issue touching on Jurisdiction can be raised at any stage of the proceedings, even for the first time on appeal with leave sought and obtained. See Ukpong v. Commissioner of Finance (2006) 19 N.W.L.R. (pt.1013) 187 at 221, Olalomi Ind. Ltd. v. N.I.D.B. (2009) 39 N.S.C.Q.R. at 240; Elugbe v. Omokhafe (2004) 18 N.W.L.R. (pt.905) 319. PER REGINA OBIAGELI NWODO, J.C.A.
JUSTICES
HON. JUSTICE CHIKWE RAPHAEL AGBO Justice of The Court of Appeal of Nigeria
HON. JUSTICE ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HON. JUSTICE REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
ZUMAX NIGERIA LIMITED – Appellant(s)
AND
BLISS INTERNATIONAL LIMITED – Respondent(s)
REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment): By Motion on Notice dated 7 December, 2009 flied on 7/12/09, the Appellant/Applicant prays for the following orders:
“1. An Order granting the Appellant/Applicant leave to raise and argue for the first time, before this Honourable Court, a challenge of the JURISDICTION of both the Federal High Court to entertain Suit No. FHC/L/CP/951/05 – Bliss International Limited v. Zumax (Nig.) Limited, on the ground of ABUSE OF JUDICIAL PROCESS; having regard to the pendency of Suit No. FHC/L/CS/1273/2002 – Bliss International Limited v. Zumax (Nig.) Limited and others, and Appeal No. CA/L/361/2004 arising therefrom.
2. An order striking out Suit No. FHC/L/CP/951/05 – Bliss International Limited v. Zumax (Nig.) Limited, for being an Abuse of Judicial Process”.
The Grounds supporting the application reads as follows:
“1. The Respondent (Bliss International Limited) filed Suit No. FHC/L/CS/1273/2002 – against the Appellant (Zumax (Nig.) Limited) and others, at the Federal High Court, Lagos, on 30th December, 2002, seeking to protect the present Appellant from an alleged mismanagement by its Directors and/or to protect the Appellant from going into liquidation based on the alleged mismanagement.
2. The 2nd – 6th Respondents in the above suit raised a Preliminary Objection challenging the competence of the suit and same was upheld and the suit struck out by the learned Trial Judge.
3. Dissatisfied with the Ruling striking out the suit which it sought to protect and/or save the present Appellant from going into liquidation based on mismanagement, the present Respondent filed a Notice of Appeal to the Court of Appeal, Lagos Division, in Appeal No.CA/L/361/2004 praying that the above Ruling be set aside, and its suit aimed at protecting the present Appellant be restored for trial.
4. Briefs of Argument have been duly exchanged and the hearing of the Substantive Appeal fixed for 28th January, 2010.
5. Inspite of the pendency of the above suit and/or appeal, the present Respondent filed a fresh action against the same Appellant by way of a winding Up Petition in Suit No. FHC/L/CS/951/05, seeking to Wind Up the Appellant on grounds of mismanagement and after a Preliminary Objection by the Appellant challenging the competence of the Winding Up Petition was overruled, the Appellant filed the present appeal which is now fixed for hearing on 9th December, 2009.
6. The present Respondent consequently has two actions pending against the present Appellant, to wit; the first action seeking to protect the Appellant from going into Liquidation, and this subsequent action, the subject of the present Appeal, seeking to Liquidate or put an end to the Appellant’s existence by way of a Court Order Winding Up the Appellant”.
In support of the application is an 11 paragraph affidavit deposed to by Uche Anozie with exhibits ‘A to D’.
The learned counsel for the Appellant/Applicant Mr. Chike Onyemenam on 9/2/10 argued the application seeking leave of the court to raise and argue for the first time Issue of Jurisdiction on ground of abuse of process. He submitted that the Issue of Jurisdiction can be raised at any stage. He cited the cases of Owners of MV gongola Hobe v. Niger Brass Shipping Line Ltd. (2007) All F.W.L.R. (pt.388) pg.l005 at 1018 paragraph 9; Ladoja v. I.N.E.C. (2007) All F.W.L.R. (pt.377) pg.934 pg. 991-992 paragraphs A to H.
It is his submission that it is an abuse of process to have two cases pending in the Federal High Court, one to preserve and the other to Wind Up. He referred to S.310 to S.312 of Company and Allied Matters Act and several cases including Brawal Shipping (Nig.) Ltd. v. Aphrodite Ent. Nig. Ltd. (2005) All F.W.L.R. (pt.251) pg.285.
Learned counsel referring to the counter affidavit of the Respondent submitted that the date, time and place of information were not stated in the counter affidavit contravening the provision in S.89 of the Evidence Act.He cited Edu. v. Cawrrd (2001) F.W.L.R. (pt.55) pg.433. He contends that if the court strikes out the paragraphs in the counter affidavit it means that the paragraphs in their own affidavit are deemed admitted. He applied to withdraw Relief 2 on the Motion paper.
The learned senior counsel Mrs. Williams contends that the application is incompetent and an abuse of the process of court. It is her argument that the application is misconceived as the grounds filed in the Notice of Appeal will not support the application sought. She referred and relied on Order 6 Rule 2(3) and 4 of the Court of Appeal Rules in support of his contention that there is no fact before the court to support the prayer sought.
Learned senior counsel contended that there is nothing in the Record of Appeal to support the point being made by the Appellant counsel that there is abuse of process of court. She stated that the parties and issues in the current suit are different from the earlier suit. She cited Saraki v. Kotoye (1992) 9 N.W.L.R. (pt.264) pg.156 at pg.188. The learned senior counsel referred the court to S.84 of the Evidence Act where the court is entitled to use defective affidavit. She referred to Aguda on Evidence Law & Practice Relating to Evidence Act 2nd Edition 2004, and urged: the court to refuse the application.
In reply on point of law Mr. Onyemenam submitted that the Issue of Jurisdiction can be raised at any time founded on record and facts. He referred to Order 6 Rule 5 of the Rules of Court.
I have carefully considered the averments in the affidavit, the counter affidavit and the submissions of the learned counsels. The learned counsel for the Appellant/Applicant contended that paragraph 4(a) to (n) of the counter affidavit contravenes the provision of S.89 of the Evidence Act.
By virtue of S.89 of the Evidence Act, where the facts deposed to in an affidavit by a person is derived from information received from another person, the name of his informant must be stated and reasonable particulars given in respect of his information and the time, place and circumstances of the information. In effect the deponent must disclose the source of his information and knowledge of the averment when he has no personal knowledge of the facts. See Dapianlong v. Dariye (2007) 8 N.W.L.R (pg.1036) 332 SC., Maja v. Samoris (2002) All F.W.L.R. (pt.98) 818 SC. However, under S.84 of the Evidence Act, the court has the discretion to permit an affidavit defective in form to be considered if the court is satisfied that the affidavit was sworn before a person duly authorized. In the instant case, the deponent of the counter affidavit in paragraph 4 stated the name of the informant. The counter affidavit from the endorsement was sworn to at the Court of Appeal Registry on 28 January, 2010 before a Commissioner of Oath, Mrs. R. D. Thompson as signed. The endorsement and signature has not been challenged. Looking at the counter affidavit ex-facie, I am not in doubt, it was deposed to before an authorized Commissioner of Oath. The failure to state the date, place and time of the information under paragraph 4 is not substantial for this court to strike out the paragraphs as urged by the Appellants’ counsel. S.84 of the Evidence Act applies in this circumstance.
The present application seeks leave of court to raise and argue for the first time a challenging of Jurisdiction of the court. Mrs. Williams in objecting to the application contended that the application is incompetent. It is settled that when a party seeks to file and argue in the court a fresh Issue not canvassed in the lower court whether the Issue pertains to law or otherwise, he must seek leave to file and argue such an Issue first before it can be raised.
See the cases of Obiakor & Anor v. The State (2002) 6 SC (pt.11) 33, 2002 1O N.W.L.R. (pt.776) 615.
In Oseni v. Bajulu & 2 Others (2009) 12 SC (pt. 11) 81, the Supreme Court set out the circumstance to the exception to the above Rule when they held per Ogbuagu J.S.C.
“However, it is settled that when a party seeks to file and argue in this court a fresh Issue not canvassed in the lower Court – whether the Issue pertains to law or otherwise, leave to file and argue such Issue, must be had and obtained. See the case of Obiakor & Anor. v. The state (2002) 6 S.C.
(pt. II) 33; (2002) 10 N.W.L.R. (pt.776) 612 at 525; (2002) 6 SCNLR 193. I wish to add quickly as this is well established, that although the above, is the law, but such a fresh Issue, can be raised and relied on, upon any new line of argument or new decided authorities judicial or Statutory to support his argument in an Issue that is properly before the Court. So said this Court in the case of Chief Ogunbadejo v. Otunba A. L. Owoyemi (1993) I N.W.L.R. (pt.271) 517 at 534; (1993) 1 N.W.L.R. (pt.271) 517 at 534; (1993) 1 SCNJ 148 – per Nnaemeka-Agu, JSC., (as he was then)”.
(Underlined mine)
The general rule is that an Appellant will not be allowed to raise on appeal in this court a question which was not raised, tried and considered in the court below unless leave is sought first and the question involves substantial points of law, whether substantive or procedural and it is clear that no further evidence will be adduced which will affect the decision on them.
See Bankole v. Pelu (1991) 8 N.W.L.R. (pt.211) 523 SC; Owie v. Ighiwi (2005) 5 N.W.L.R. (pt.917) 184 SC. The exception to the mandatory requirement to seek leave is limited to where an issue is already before the court and there are judicial authorities or statutes supporting same.
The Applicant in the Affidavit in Support gave reasons for the leave sought from court to raise and argue fresh Issues. For ease of understanding and purpose of emphasis, I will reproduce some of the crucial paragraphs hereunder:
“3. The 2nd – 6th Respondents in the above suit, raised a Preliminary Objection challenging the competence of the suit, for non-compliance with the conditions precedent to bringing such an action by minority shareholders, and same was upheld and the suit struck out by the Learned Trial Judge. A Certified True Copy of the Ruling is exhibited and marked exhibit ‘B’.
4. Dissatisfied with the Ruling striking out the suit which was brought to protect and/or save the present Appellant from going into liquidation based on mismanagement, the present Respondent filed a Notice of Appeal to the Court of Appeal, Lagos Division, in Appeal No. CA/L/361/2004; praying that the above Ruling be set aside, and its suit aimed at protecting the present Appellant be restored for trial. A Certified True Copy of the Notice of Appeal is hereby exhibited and marked exhibit ‘C’.
The present Respondent consequently has two actions pending against the present Appellant, to wit; the first action seeking to protect the Appellant from going into Liquidation; and the subsequent action, the subject of the present Appeal, seeking to Liquidate or put an end to the Appellant’s existence by way of a Court Order Winding Up the Appellant.
8. I verily believe that the above action of the Respondent in filing a Court process to protect and/or preserve the Appellant, and while the action is pending, to go ahead to file a new action to dissolve the same Appellant, amounts to an Abuse or Mis-use of Judicial Process”.
The present appeal arose from the Ruling of the court below delivered on 19th July, 2007 dismissing the preliminary objection of the Respondent to the substantive matter on two grounds inclusive of the ground that the petitioner is not the proper party. The Notice of Appeal on page 127 of the Record was filed on 1/8/07 containing 2 Grounds of Appeal. These 2 grounds reads as follows:
“Ground 1:
The learned Trial judge erred in law and thereby came to a wrong decision when he failed to consider (or properly consider) the implications of the provisions of S. 299 of the Companies and Allied Matters Act, 1990 (‘CAMA’) upon the, Petitioner’s locus standi in respect of the matters submitted to the Court for adjudication in the Petition.
Ground 2:
The learned Trial Judge erred in law and thereby came to a wrong decision when he failed to fully apply the grammatical and ordinary meanings of the wordings of S. 408 of CAMA which would have led to the inevitable conclusion that, for the Company to be wound-up as sought in the Petition, the Court would have to be of the opinion that is just and equitable so to do”.
The learned senior counsel submitted that the relief sought cannot be supported by the Grounds of Appeal in the Notice. The question is whether a party seeking leave to raise and argue for the first time a challenge of Jurisdiction is constrained to the Grounds of Appeal, since an appeal is considered on the basis of the Record of Appeal.
It is trite law that an Appellant on Appeal from the court below may not take a point which he has not taken or argued in the court below. This position is in accord with the nature of an appeal and the principle of rehearing a case once on appeal. See Our Line Ltd. v. S.C.C. (Nig.) Ltd. (2009) 17 N.W.L.R. (pt.1170) 382 the Supreme Court per Chukwuma Eneh S.C. had this to say:
“It is settled that an appellant on appeal from the court below may not take a point which he has not taken or argued in the court below – this is in accord with the principle of rehearing of the case in this court. The only qualification is that an appellant is entitled to challenge the judgment of the court below on the ground on which it has been decided and particularly where it has raised a substantial point of law moreso on issue of jurisdiction. See: Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147 at 170 followed by this court in the case of Barclays Bank (Nig.) Ltd. v. C.B.N. (1976) 6 SC 175”.
It is also settled law that a fresh Issue touching on Jurisdiction can be raised at any stage of the proceedings, even for the first time on appeal with leave sought and obtained. See Ukpong v. Commissioner of Finance (2006) 19 N.W.L.R. (pt.1013) 187 at 221, Olalomi Ind. Ltd. v. N.I.D.B. (2009) 39 N.S.C.Q.R. at 240; Elugbe v. Omokhafe (2004) 18 N.W.L.R. (pt.905) 319.
I agree with the learned counsel for the Appellant that; the Issue of Jurisdiction can be raised at any time. The critical question that arises is, how should the issue be raised when it is not covered in the Notice of Appeal and the Record does not contain facts nor evidence to support the issue for which leave is sought. Mrs. Williams (SAN) submission is that there: is nothing in the Record of Appeal to support what the Applicant is claiming and that there is no fact to support Applicant’s point on abuse of process in the Record.
Order 6 Rule 2(3) of the Court of Appeal Rules 2007 enjoins an Appellant to set forth concisely and under distinct heads the grounds upon which he intends to rely at the hearing of the appeal. Order 6 Rule 4 of the same Rules stipulates as follows:
“The appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.”
Order 6 Rule 5 provides thus:
“Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground”.
Reading Rules 3 and 5 set out above, it is indisputable that the Notice of Appeal is the bedrock of an appeal. A party can raise a ground not already in the Notice of Appeal by leave of court setting forth the complaints. In effect file additional ground and then argue the fresh Issue.
This may necessitate an amendment of the Notice of Appeal. Order 6, Rule 5 does not confine the court to grounds set forth in the Notice whilst deciding the Appeal as long as the Respondent has had sufficient opportunity to contest the case on any other ground not in the Notice. This envisages situation where additional ground with leave of court is filed. To argue a new issue, the issue has to be distilled from a Ground of Appeal. Grounds of Appeal are not argued in Briefs of counsel but issues distilled from those grounds. It is now firmly settled that for an Issue for determination to be competent, it must be based on and correlate with the ground or Grounds of Appeal. See Fed. Ministry of Health & Another v. Comet Shipping Agencies Ltd. (2009) 39 N.S.C.Q.R. pg.69. The consequence of an Issue not distilled from a Ground of Appeal is that it will be struck out. Ikesqwuba v. University of Jos (2005) All F.W.L.R. (pt.280) 1573.
The Appellant/Applicant in his Notice of Appeal did not raise the Issue of Jurisdiction. For the Applicant to seek leave to raise and argue for the first time a point not raised in his Notice of Appeal the presumption is that it is founded on an existing Ground of Appeal with particulars in the Notice of Appeal. The Applicant’s prayer 1 to raise and argue ‘fresh point on Jurisdiction is a Relief that is abstract and premature. This is because leave is granted to argue an Issue if there is also a prayer for leave to file additional ground from which the Issue will be distilled for argument. The purpose of Grounds of Appeal is to give notice to the Respondent of the errors complained of. Thus where an Appellant relies on any ground not in the Notice, this must be properly raised either by way of a Ground of Appeal or Cross Appeal in a case of a Respondent. Bhojsons Plc v. Daniel Kalio (2006) 5 N.W.L.R. (pt.973) 330 S.C.
A court cannot make an order that is in vain or an order that will have no legal effect. Fresh point whether on jurisdiction or not can only be raised by filing a new ground after leave is sought and granted. The Applicant’s main relief is to raise and argue the point on Jurisdiction how he will do that is not part of the prayers in this Application. Every Relief sought before the court must be clear, explicit and devoid of any ambiguity. Like I earlier stated, the application to raise and argue for the first time a challenge of jurisdiction presupposes the existence of facts before the court, facts in the Record of Appeal not necessarily the Notice of Appeal as contended by learned senior counsel Mrs. Williams. The Application to raise and argue Issue of Jurisdiction for the first time is different from an application to file and argue a fresh point of law. The nature of the latter requires a process will be filed on the basis of which the Issue will be distilled for argument whist the former presupposes an application pending for leave to file the ground. Therefore, the nature of the relief sought is one which if granted will amount to nothing. By the Rules of Brief writing the issue of Jurisdiction sought to be argued cannot be argued in the Brief unless it is distilled from the Grounds of Appeal.
Any Issue formulated for determination by the Respondent in an appeal must relate to the Grounds of Appeal filed by the Appellant. Momodu v. Momoh (1991) 1 N.W.L.R. (pt.169) 608; Ossai v. Wakwah (2006) 4 N.W.L.R. (pt.969) 208 S.C. Arguments are canvassed on the basis of Issues formulated from the Ground of Appeal.
I agree with the learned senior counsel that this application is incompetent. However, I have no reason to agree with learned senior that it is an abuse of process. There is no similar application to the present application pending before the present application for the latter to amount to abuse.
Equally, none of the essentials of abuse of process have been raised by Mrs. Williams (SAN) for the court to hold that the present motion is an abuse.
There is nothing that stops an Applicant to apply for a Relief. What is pertinent is that the reliefs sought by its nature has merit. The Issue of Jurisdiction is a fundamental point that cannot be easily waived once it is raised but then it must be introduced properly in line with Practice and Rules of Court. The nature of reliefs sought in the instant case cannot be considered and granted without the Applicant having sought and obtained leave to file and raise a new point, It is premature. Order 6 Rule 3 and 4 of the Rules of this court have so stipulated and Rules of Court should be obeyed.
From the forgoing it is my firm view that Prayer 1 in this application is incompetent. Applicant/ Appellant had applied to withdraw Prayer 2 at the hearing of the application. In the circumstance, Prayer 1 is incompetent and is hereby struck out. Prayer 2 having been withdrawn is struck out.
I order cost in the Sum of N 10,000.00 in favour of the Respondent.
RAPHAEL CHIKWE AGBO, J.C.A. I have read in advance the beautiful and very well articulated Ruling written by Nwodo J.C.A. It brings out in bold relief the steps that need to be taken by an Appellant who is raising in an appeal for the first time the issue of jurisdiction. He must not only seek leave to raise the fresh issue but must also amend his Notice of Appeal to reflect the new issue. This, application having not asked for leave to file additional Ground of Appeal is incompetent. I also strike out the application with N 10,000.00 cash to the Respondent.
ADZIRA GANA MSHELIA, J.C.A. I have the advantage of reading in draft, the ruling of my learned brother Nwodo J.C.A. just delivered. I am in total agreement with the conclusions predicated on the reasons contained in the lead ruling. The application to raise and argue issue of jurisdiction for the first time is different from an application to file and argue fresh point of law. By the rules of brief writing the issue of jurisdiction sought to be argued cannot be argued in the brief unless it is distilled from the grounds of appeal.
In the absence of an additional ground of appeal raising fresh point on jurisdiction, the application in my humble view is premature. I agree with my learned brother that prayer 1 in this application is incompetent.
For this reason and the fuller reasons contained in the lead ruling, I also strike out prayer ‘1’ as being incompetent. Prayer 2 having been withdrawn is also struck out. I abide by the order made as to cost in the lead ruling.
Appearances
Mr. Chike OnyemenamFor Appellant
AND
Chief Mrs. A. Williams (SAN) with L. AlakijaFor Respondent
