Adegbaiye v. Loyinmi (1986)

[1986] 5 .
Adegbaiye v. Loyinmi
655

OBA J. ADEGBAIYE & ANOR.

V.

CHRISTOPHER LOYINMI

                           COURT OF APPEAL

                           (BENIN DIVISION)

CA/B/20/84

OMOIGBERAI EBOH, J.C.A. (Presided and Read the Lead Ruling)

ABAI IKWECHEGH, J.C.A.

DAHIRU MUSDAPHER, J.C.A.

WEDNESDAY, 29TH OCTOBER, 1986

APPEAL – Raising fresh point for the first time on appeal- Procedure – Application of Order 3 rule 3(1) of the Court of Appeal Rules 1981.

Issue:

Can a point not raised in the lower court be raised on appeal?

Facts:

This is an oral application by the appellants asking the Court of Appeal to grant them leave to raise some points not raised in the lower court.

The respondent averred that the provisions of Order 3 rule 3(1) of the Court of Appeal Rules, 1981 are mandatory. Order 3 rule 3(1) reads as follows:

"Every application to the Court shall be by notice of motion supported by affidavit. It shall state the rule under which it is brought and the ground for the relief sought."

The respondent further averred that since the provisions of Order 3 rule 3(1) are mandatory, counsel to the appellants was bound to obtain leave by way of motion which will give the respondent notice of the new issues to be raised in the appellate court.

Held (Refusing the application):

1.
The court may allow any issue or point not raised in the lower court to be raised and argued in an appellate court where the issue or point is important and necessary for the determination of the appeal.

656
.
17 November 1986
(Eboh, J.C.A)

A

B

C

D

E

F

G

H

2.
The procedure to be adopted by counsel who is desirous of raising a point for the first time on appeal can be found in Order 3 rule 3(1) of the Court of Appeal Rules, 1981.

3.
To raise new issues which were not raised in the lower court in an appellate court, Order 3 rule 3(1) of the Court of Appeal Rules, 1981 demands that leave of the court be obtained by motion supported by an affidavit and on notice to the other party. The appellate court will however grant an oral application for leave to raise new issues only under a very exceptional condition.

4.
The provisions of Order 3 rule 3(1) of the Court of Appeal Rules, 1981 are mandatory.

Nigerian Statutes Referred to in the Ruling:

Land Use Decree, 1978, Ss. 1, 2, 36 and 40

Public Lands Acquisition Law, Cap. 105 Laws of 1958

Nigerian Rules of Court Referred to in the Ruling:

Court of Appeal Rules, 1981,0.3 r. 3(1)

Application:

This is an oral application by the appellants asking the Court of Appeal to grant them leave to raise some points not raised in the lower court. The application was refused.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Benin

Names of Justices that sat on the appeal: Omoigberai Eboh, J.C.A. (Presided and Read the Lead Ruling); Abai Ikwechegh, J.C.A.; Dahiru Musdapher, J.C.A.

Date of Ruling: Wednesday, 29th October, 1986

Appeal No.: CA/B/20/84

Counsel:

A. A. Oguntuwase (with him, S.A. Agada) – for the Appellants

Law O. Akhidenor (with him, A. O. Edeki) – for the Respondent

EBOH, J.C.A. (Presiding and Delivering the Lead Ruling): Whilst learned counsel to the appellants may be correct that the court may allow any issue or point not raised in the court below to be raised and argued in an appellate court where the issue or point is important and necessary for the determination of the appeal concerned, I think that it is important and desirable to consider the proper mode or procedure to be adopted by counsel in raising such issue or point for consideration by the appellate court.

[1986] 5 .
Adegbaiye v. Loyinmi
(Eboh, J.C.A)
657

A

B

C

D

E

F

G

H

In connection with the above, cognizance must be taken by this court of the provisions of Order 3 rule 3(1) of the Court of Appeal Rules, 1981 which reads is follows:

“O. 3 r. 3(1) Every application to the court shall be by notice of motion supported by affidavit. It shall state the rule under which it is brought and the ground for the relief sought.”

Counsel to the appellants in this appeal himself said that those issues were not raised in the lower court and that as he had stated in his brief that he intended to seek leave to argue those issues, he was in order to make an oral application for such leave and that the court should grant same – as it were, for the mere asking. Counsel to the respondent, in reply, said the provisions of Order 3 rule 3(1) are mandatory and as such, counsel to the appellants was bound to obtain leave by way of motion which will give the respondent notice of the new issues to be raised in the appellate court.

After a careful consideration of the above submissions, I am of the view that the mandatory nature of the provisions, of Order 3 rule 3(1), as reproduced above, demands that leave be obtained by a formal application – to wit, a motion supported by an affidavit and on notice to the other party – to raise new issues in the appellate court which were not raised in the court below.

In my opinion, it is necessary to enforce compliance with the relevant provisions of our rules of court as this will secure giving due notice to the other parties and thus save them from being taken by surprise which may cause embarrassment or injustice to them.

I do not want to be understood as saying that the appellate court cannot, under any circumstance, entertain and/or grant an oral application for leave to raise new issues but I want to emphasise that this court will do so only under a very exceptional condition – which is definitely not present in the case in hand.

In the matter in hand, it appears to me that the said new issues which involve (1) jurisdiction of the lower court (2) admissibility of certain exhibits and (3) applicability of Public Lands Acquisition Law, Cap. 105, of 1958 and of sections 1, 2, 36 and 40 of the Land Use Decree of 1978, were already in existence when the case on appeal was adjudicated upon. So if the issues were not raised during the proceedings in the said case, (as the appellants failed to do), then they require leave now to raise them in this court and since the Court of Appeal Rules prescribed the procedure for raising such issues, then the appellants should be compelled to comply with the above-mentioned provisions.

In view of the above, I hold that this court will not accede to the appellants’ counsel’s request that this court should grant him the leave he now seeks per mere oral application.

The appellants are hereby directed to apply for leave in compliance with order 3 rule 3(1) of the Court of Appeal Rules of 1981.

IKWECHEGH, J.C.A.: I agree.

MUSDAPHER, J.C.A.: I agree.

Application Refused.

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