In The Supreme Court of Nigeria
On Friday, the 23rd day of June, 2017
Before Their Lordships
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria
1. AMBASSADOR ALH. SHEHU OTHMAN MALAMI, OFR
2. SIR EMEKA C. OFOR –Appellants
1. IMONKHUEDE OHIKHUARE
2. THE HON. MINISTER FEDERAL CAPITAL TERRITORY
3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
4. MOHAMMED HABIBU ALIYU- Respondents
EJEMBI EKO, J.S.C. (Delivering the Lead Ruling): The Appellant/Applicant herein brought this application praying for the following reliefs, that is:-1. An order extending time within which the appellants/applicants shall seek for leave of honourable Court to appeal on grounds of mixed law and facts against the judgment of the Court of Appeal sitting in Abuja Division delivered on the 25th may, 2015 allowing Appeal No. CA/A370/2012.
2. An order granting leave to the appellants/applicants to appeal on grounds of mixed law and facts against the judgment of the Court Appeal sitting in Abuja Division in Appeal No. CA/A/370/2012 delivered on the 28th May, 2015 as contained in Grounds 3, 4, 5, 7, 9, 10, 11, 12 and 13 of the amended Notice and Grounds of Appeal.
3. An order extending time for the Applicants/Applicants to appeal against the said judgment in Appeal No. CA/A/370/2012 as it relates to Grounds 3, 4, 5, 7, 9, 10, 11, 12 and 13 delivered on the 28th May, 2015 on grounds of mixed law and facts.
4. An order granting leave to the Appellant/Applicants to amend their Notice and Grounds of Appeal dated 4th June, 2015 and filed on 5th June, 2015 by adding additional grounds 9, 10, 11, 12 and 13 as shown by the underling on Exhibit D.
5. An order deeming the Amended Notice and Grounds of Appeal dated the 19th January, 2016 and filed 22nd January, 2016 which contains additional grounds 9 to 13 as having been properly filed and served which is annexed as Exhibit D.
6. An order granting to the Appellants/Applicants leave to raise fresh issues not canvassed at the lower Court as contained in Grounds 9 to 13 of the Amended Notice and Grounds of Appeal.
7. An order extending time within which the Appellants/Applicants will file and serve their Appellants brief of argument. The proposed Applicants brief of argument. The proposed Applicants brief of argument is attached hereto as Exhibit E.
The application is supported by an affidavit. It is brought pursuant to Section 233 (3) of the 1999 Constitution, as altered, Section 27 (4) of the Supreme Court Act and the Orders 2 Rule 31(1), 8 Rules (4) and 12 of the Supreme Court Rules, and also under the inherent powers of this Court. The grounds upon which the application is predicated are stated on the motion paper filed on 22nd January, 2016.
The application was heard on 28th, 2017. All the respondents, except the 1st respondent, do not oppose the application. The 1st respondent, through Paul Erokoro, SAN specifically does not oppose reliefs 1, 2, 3 and 7 on the face of the motion paper. Mr. Erokoro, SAN of counsel to the 1st respondent categorically says that the 1st respondent opposes only reliefs 4, 5 and 6 sought by the applicant as the appellant. It is on this basis that Mr. Agi SAN, of counsel for the applicant prays that reliefs 1, 2, 3 and 7, not opposed, should be granted as prayed. Accordingly, the said reliefs 1, 2, 3 and 7, not opposed, are hereby granted as prayed. An order is hereby therefore granted extending the time within which the applicants shall seek leave of this Court to appeal on grounds of mixed law and facts against the judgment of the Court of Appeal sitting in Abuja Division delivered on 25th May, 2015 in the appeal No. CA/A/370/2012.
The appellants are hereby granted leave to appeal on grounds of mixed law and facts against the judgment of the Court of Appeal sitting in the Abuja Division in Appeal No. CA/A/370/2012 delivered on 28th May, 2015 as contained in grounds 2, 3, 4, 5, 7, 9, 10, 11, 12 and 13 of the Amended Notice and Grounds of Appeal, exhibited as Exhibit D in this application. An order extending time within the Applicants/Applicants may appeal against the said judgment in the Appeal No. CA/A/370/2012 delivered on 28th May, 2012, as it relates to Grounds 3, 4, 5, 6, 7, 9, 10, 11, 12 and 13 in the aforesaid Amended Notice and Grounds of Appeal on grounds of mixed law and facts is further granted. Even though the respondents do not oppose relief No. 7; that is, an order extending the time within the Appellants/Applicants may file and serve the Appellants Brief of Argument, attached as Exhibit D, I shall pause a while on it and come back to it anon.
The 3 reliefs opposed in the application are Reliefs 4, 5 and 6. They are in effect, to amend the Notice and Grounds of Appeal filed on 5th June, 2015 by the addition thereto of grounds 9, 10, 11, 12 and 13 contained in the Amended Notice and Grounds of Appeal, Exhibit D. Relief 5 specifically prays for an order deeming as properly filed and served the Amended Notice and Grounds of Appeal containing the additional grounds 9 to 13 as shown on Exhibit D. Relief 6 on the motion paper is the prayer for leave to the Appellants/Applicants “to raise fresh issues not canvassed at the lower Court as contained in Grounds 9 to 13 of the Amended Notice and Grounds of Appeal”, as shown on Exhibit D.
It is instructive that the 1st Respondent does not oppose Reliefs 1, 2 and 3 on the motion papers; and they have, each been granted as prayed. It means therefore that the Orders, granted as prayed, now enure to the Appellants /Applicants to appeal
on grounds 3, 4, 5, 7, 9, 10, 11 and 13 contained in Exhibit D. The right, upon the leave duly granted, now accrues to the Appellants/Applicants to file those additional grounds of appeal being grounds of mixed law and facts.
The heart and soul of Reliefs 4, 5 and 6 sought by the Applicants/Applicants seem only to be for leave to raise and argue fresh issues in their appeal, which fresh issues arise apparently from grounds 9, 10, 11, 12 and 13 on Exhibit D. The fresh issues, Mr. Agi, SAN, for the Appellant submits, touch on the law as it relates to contractual relationship and the effect of an illegal contract and also the effect of the search report vis–vis what the law requires from the deeds registry. The learned senior counsel submits that the issues are issues of pure law and that the appellants will not require additional or fresh evidence to argue them as evidence, on which the issues are predicated are already in existence on the printed record of appeal. The learned senior counsel further submits on the authority of HELEN JOHNSON UDO v. THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS AND STARS (2013) LPELR-19910 (SC) that this Court can grant the appellant leave to raise and argue fresh issues when the fresh issue he desires to raise, involves substantial point of law, substantive or procedural, and no further evidence would be required in the determination of the fresh issue.
Mr. Agi, SAN, further submits that the fresh issues are founded on evidence that is purely documentary and it is already in the record, that the piece of evidence was tendered by the 1st respondent who can neither call oral evidence to contradict the contents of the documentary evidence nor can he cross-examine his own witness with the view to discrediting him, and further that the said search report is fundamental to the just determination of the case, the 1st respondent having commenced his development of the disputed land before the search report, Exhibit E.
The 1st respondent filed counter-affidavit on 9th November, 2016 in opposition to the application whereby the Appellants seek leave to raise and argue fresh issues from grounds 9, 10, 11, 12 and 13 contained in Exhibit D. It is averred in paragraph 3(b) (e) of the Counter-Affidavit that:
(b) That the fresh issues sought to be argued in the appeal were neither raised at the trial Court nor at the lower Court and that facts related thereon were not pleaded.
c. New evidence, including calling of additional witnesses by the 1st Respondent would be necessary if the Honourable Court allows the Appellants raise fresh issues sought.
d. The issues sought to raised concerning the search report (Exhibit E) will require the 1st respondent to call evidence to show the discrepancy in dates was a mere error that was not material.
e. The contents of the said search report had been available to the Appellants at the trial Court and lower Court and were not challenged in those Courts.
Mr. Erokoro, SAN on the facts averred in the counter-affidavit, submits that the fresh issues would necessitate the calling of further evidence by the 1st respondent, particularly of the evidence of the witness through whom Exhibit E was tendered to explain the discrepancies. Senior counsel submits further that the 1st respondent will not have the opportunity to cross-examine the witness in this Court on Exhibit E. On fraud and collusion, being the fulcrum of the fresh issues, Mr. Erokoro, SAN, submits that the facts on these issues were not pleaded.
Mr. Agi, SAN, in response to the contention of Mr. Erokoro, SAN, that the fresh issues the Appellants seek to raise were not pleaded, refers to paragraph 13 of the Statement of Claim at page 7 of the Record and submits that the Appellants pleaded wrongful revocation of the plot and the re-allocation of the same by the Minister of the Federal Capital Territory to a fellow Minister.
I shall do well in this application not to touch on any substantive matter in the main appeal.
The two learned senior counsel are ad idem on the templates for granting leave to the appellant to raise fresh issues on the appeal. They are that:-
1. The fresh issue involves a substantial point of law, substantive or procedural.
2. All the facts in support of such fresh issue or question shall be before it in the record of appeal; and
3. If no further evidence is required.
See AYETOBI v. GOVERNOR OYO STATE (1994) 5 NWLR (Pt. 344) 290; KAZA v. THE STATE (2008) 1-2 SC; HELEN JOHNSON OBU v. THE REGISTEED TRUSTEES OF THE BROTHERHOOD OF THE STARS (2013) (supra); CORPORATE IDEALS INS. LTD v. AJAOKUTASTEEL CO. LTD (2014) 165 AT 188.
Let it be added, also, that this Court will grant leave to raise and argue fresh issues where it considers that the refusal of the leave will occasion miscarriage of justice. It will be refused where the fresh issue of point introduces an entirely new case line of defence different from the issues fought by the parties at the trial Court, see DAHIRU v. KUMALE (2001) 11 NWLR (Pt. 728) 244. Accordingly, in an application for leave to raise fresh issue on appeal the overall consideration is the justice of the matter in the appeal.
It appears that the strong wicket of Mr. Erokoro, SAN in opposition to this application is that the 1st respondent would suffer prejudice and miscarriage of justice if the application was granted. The grounds for this perception is that if the appellants are allowed to raise fresh issues relying on existing Exhibit E, the search report, then they would not have opportunity to clarify some issues surrounding Exhibit E. Senior Counsel argues that it would require them cross-examining their own witness through whom the search report, Exhibit E, was tendered to do some explanations on the discrepancies.
It sounds rather absurd for the Senior Counsel with all deference, to suggest, firstly, that a party would cross-examine his own witness after the close of the case or after all the parties had all closed their respective cases; and secondly, to suggest that he would call oral evidence to contradict or vary the contents of a document or documentary evidence. I agree with Mr. Agi, SAN, that a party is not allowed, in law, to cross-examine his own witness with the view of impeaching his credit, unless upon leave granted if the Court is satisfied that the witness had become hostile.
The Court will only treat a witness as a hostile witness if it is satisfied that the witness does not want to tell the truth, or that the witness bears some animosity towards the party that calls him. See SOTARI F. TAMUNOWARI: ANNOTATION OF THE NIGERIAN EVIDENCE ACT 2ND ED. PAGE 516. The witness who tendered Exhibit E had since been discharged having testified and duly cross-examined by the party against whom he testified. A witness will not be cross-examined by the party who called him merely because it appears that his evidence would not be, or was not favourable to the party who called him.
I do not think it is the law that the appellate Court would deny the appellant the request to raise fresh issue on appeal merely because the respondent would create artificial obstacles to frustrate that request. That would not be the interest of justice.
In the principles for granting leave to raise fresh issue on appeal, one major consideration is if further evidence is not required. For the Appellants, Mr. Agi, SAN, gives assurance that no fresh or further evidence would be required and the fresh issue could be erected on the existing evidence in the printed record. In my firm view, this factor among others, for consideration in granting leave to raise fresh issue has been satisfied. Since the Appellants, herein, would raise and argue the fresh issue only on the existing and available evidence and no further evidence would be required, it follows in my view that, on the evidential materials in support of the Appellants prayer for leave to raise fresh issues, there is nothing inhibiting that request.
It has also been contended for the 1st respondent that the appellants at the trial Court did not plead fraud and collusion in order to warrant the additional grounds of appeal on which they intend to raise the fresh issue. It seems belated for the 1st respondent to contest the grant of leave to the Appellants to file the additional grounds 9, 10, 11, 12 and 13 in Exhibit D. The 1st respondent did not oppose the grant of prayers 1, 2 and 3 in this application. He cannot be allowed to prevaricate. They are now estopped by virtue of Section 169 of the Evidence Act, 2011, from reneging on that no contest or no opposition to the filing of grounds 9, 10, 11, 12 and 13 in Exhibit D, the Appellants having urged that the prayers be granted as prayed and they were granted as prayed.
Mr. Erokoro, SAN for the 1st respondent submits that no facts on fraud and collusion were pleaded to warrant the additional grounds. In response, Mr. Agi, SAN, for the appellants draws attention to paragraph 13 of the Statement of Claim at page 7 of the Record where wrongful revocation of the appellants title and the re-allocation of the same parcel of land by the 2nd Respondent to his fellow Minister were pleaded. This prima facie, raises a substantial point of law as to whether the revocation was for public purpose. This seems to be the point being made by the appellants in particular 11 to Ground 10 of the grounds of appeal, to wit:-
11. The trial Court in its judgment made the following Orders:-
“An order of Court setting aside any allocation to the 3rd defendant by the 1st defendant plot No. 865 (Now plot No. 1890)
within Cadastral Zone A04, Asokoro, Abuja F.C.T.: An order of Court setting aside the purported sale of plot No. 865 (now plot No. 1809) within Cadastral Zone A04, Asokoro Abuja F.C.T. by the 3rd defendant to the 4th defendant for being null and void ab initio “which in effect made the subsequent or collateral contract which is founded on or springs from an illegal transaction illegal and void.”
Exhibit E, which appears to be the epicentre of this application for leave to raise fresh issue in this appeal is also the subject of ground 9 in Exhibit D.
It is hereunder reproduced:
The learned Justices of the lower Court misdirected themselves in law by relying on the search report. Exhibit E, to hold that the 1st Respondent is a bona fide purchaser for the value without notice of any encumbrances after finding that “the search conducted did not reveal the 1st Respondents previous interest in the land”.
PARTICULARS OF MISDIRECTION
i. The lawyer who conducted the search knows that the law makes it mandatory for previous interest to be documented as provided in the Federal Capital Territory Land use Regulations, 2004 in the 10th Schedule,Paragraphs 5 (iii) and 6 (ii) which is an imparted knowledge.
ii. From the evidence before the Court, the area is built up area where neighbours even encroached before the purchase but the Appellant or his agents never made any inquiry from them as to who owns the land in question.
iii. Exhibit E, which is heavily relied upon is itself evidence of fraud in that the offer was made on 25th March, 2005 even before the application for land was made on the 20th September, 2005.
For the Appellant to be granted leave to raise fresh issue on law in an appeal, the issue must be one on a substantial point of law, substantive or procedural. See HELEN JOHNSON OBU v. THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF CROSS AND STAR (supra). A substantial point of law is from the facts of the case which will materially determine the fortunes of the appeal, and not just a point of law which is merely peripheral. SeeBAMAIYI v. A-G OF THE FEDERATION (2001) 12 NWLR (Pt. 727) 468; COCA-COLA NIG. LTD. v. ADESANYA (2013) 18 NWLR (Pt. 386) 255.
In addition, there are grounds 11, 12 and 13 in Exhibit D, which in my firm are grounds raising substantial points of law. For case clarity, the grounds are as herein below reproduced. That is;
The lower Court misdirected themselves in law when they found that the 1st Respondent is bona fide purchaser without notice when there was manifest evidence of the 1st Respondent participating in a wrong doing.
PARTICULARS OF MISDIRECTION
i. Had the lower Court adverted its mind to Exhibit B, the deed of assignment between the 1st and 4th Respondents in the recital wherein the 4th Respondent became seised of the land of the 1st appellant on 25th March, 2005 and Exhibit 2, the Notice of Revocation of the 1st Appellants land dated 5th October, 2005 the evidence of collusion was manifest.
ii. The title of the 4th Respondent which the 1st Respondent alleged by purchased bonafide was taken from the 1st Appellant by the 2nd and 4th Respondents seven (7) months before as an afterthought it was revoked by Exhibit 2.
iii. Evidence abound that the 1st Respondent knew the 4th Respondent as serving Minister and colleague of the 2nd Respondent whose occupant was Nasir El-Rufai.
iv. The search report exposed this anomaly to the effect that the 4th Respondent had Ministerial approval and allocation of the land before even applying for the land and purported to side with authorities to forcefully take away a citizens property unlawfully.
The lower Court erred in law when they found and held:-
The trial Court was in error therefore, in the opinion of this Court in dismissing the defence of larches (sic) and acquiescence set up by the Appellants at the trial.
PARTICULARS OF ERROR
i. The 1st Respondent having put up a defence of a bona fide purchaser for value without notice cannot or ought not to rely on defence of larches and acquiescence which is contradictory to the plea of bona fide purchaser without notice.
ii. The 1st Respondent never pleaded mistake as to his legal rights to the land so as to rely on equitable doctrine of larches and acquiescence.
iii. The 1st Respondent in the lower Court insisted on being a bona fide purchaser over the value without notice.
The lower Court erred in law when they failed to enforce the contract between the 1st and 4th Respondents in the circumstances of this case.
PARTICULARS OF ERROR
i. In the 4th Respondents contract with the 1st Respondent, the 4th Respondent covenanted thus:-
The Assignor hereby covenants with the Assignee that the Assignor shall at all times hereafter sufficiently indemnify the Assignee against any subsequent claims in respect of the said transferred property concerning or connecting to the title evidence that both knew of the possibility of challenge to their title.
ii. The 4th Respondent further covenanted that:-
and that he has the right to assign these presents and covenants to indemnify and keep indemnified the Assignee against all losses, costs that the Assignee may incur or suffer a result of defect in the title to the said property or any adverse claim of a third party or further evidencing that both parties knew third interest.
iii. The 1st Respondent who now know that the 4th Respondent had no title ought to have relied on his contract to seek indemnity from the 4th Respondent his vendor instead of fighting the 1st Appellant who has the legal title to the land.
For the purpose of reliefs 4 and 5 in this application, Grounds 9, 10, 11, 12 and 13 in the Amended Notice and Grounds of Appeal. Exhibit D cannot be said to raise merely peripheral points of law. They each raise substantial point of law. Reliefs 4 and 5 sought by the Appellants in this application shall be and are accordingly granted as prayed.
For the purpose of relief 6 sought by the Appellants the fresh issue of law wherein a substantial point of law is disclosed is a mandatory condition, in addition to the others which are largely on facts. Taking Exhibit E vis–visthe additional grounds of appeal, particularly Grounds 9 and 10 in Exhibit D. I am of the considered view that the fresh issue disclosed thereby raise substantial point of law. The Appellants application for leave to raise and argue, in this appeal for the first time, fresh issue of law has satisfied all the established principles or templates for the grant of the leave sought.
In view of the foregoing therefore, it is hereby order that leave be and is hereby granted to the Appellants/Applicants to amend their Notice and Grounds of Appeal filed on 5th June, 2015 by the addition thereto of additional grounds of appeal 9, 10, 11, 12 and 13 as shown in Exhibit D. It is further order that the Amended Notice and Grounds of Appeal filed on 22nd January, 2016, containing additional grounds 9, 10, 11, 12 and 13 having duly filed served shall be and is hereby deemed filed and served. Leave is hereby also granted to the appellants/applicants to raise issues of law, not canvassed at the lower Court from the additional grounds 9, 10, 11, 12 and 13 in the Amended Notice and Grounds of Appeal.
Relief No. 7 is not opposed by the respondents. Accordingly, it is hereby granted as prayed. Time is hereby extended by 30 days, within which the appellants may file their brief of argument in this appeal.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading Ruling of my learned brother Eko, JSC. I agree with his lordship that all the reliefs the applicants seeks should be granted. I would, though add a few words of my own on Relief 6. It reads:
“6. An order granting to the appellants/applicants leave to raise fresh issues not canvassed at the lower Court as contained in ground 9 to 13 of the Amended Notice and Grounds of Appeal.”
Fresh issues on appeal would be heard by the Court if the following conditions are fulfilled:
1. The issue must have been pleaded as it cannot be at large.
2. The issue must involve substantial points of law.
3. Further evidence would not be required. See Awote v. Owodunni (1986) 12 SC p.203; Uor v. Loko (1988) 5 SC p.22
A plot of land, the applicants claim to be theirs was revoked by the 2nd respondent and allocated to the 4th respondent. The search report, Exhibit E which will show the correct status of the plot and what the law requires of the lands Registry, becomes relevant where more than one person claims the same plot of land. Exhibit E is the fresh issue the applicant seeks to raise on appeal. This without doubt is a substantial point of law which to my mind would be decisive in resolving this appeal. Further evidence would not be required. The averment in the applicants pleading alluding to wrongful revocation is adequate pleading on the issue. A refusal to grant this application would amount to miscarriage of justice.
For this, and the comprehensive reasoning and conclusions in the leading ruling, I, too grant all the reliefs.
KUMAI BAYANG AKAAHS, J.S.C.: I had a preview of the leading ruling prepared by my learned brother Ejembi Eko, JSC and I am in complete agreement with him that the discretion of this Court should be exercised in favour of granting the application to enable the appellants raise issues of law not canvassed at the Court below and to amend the Notice of Appeal. Consequently leave is granted the appellants to amend their notice and grounds of appeal filed on 5 June, 2015 by additional grounds 9, 10 11, 12 and 13 as shown in Exhibit D. The amended Notice and Grounds of Appeal filed on 22 January, 2016 containing additional grounds 9, 10, 11, 12 and 13 are deemed filed and served, same having been previously filed and served. Leave is also granted to the appellants to raise issues of law from the additional grounds 9, 10, 11, 12 and 13 which were not raised in the Court below. Time extended by 30 days from today within which the appellants may file their brief of arguments.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Eko, JSC, obliged me with the draft of the leading Ruling just delivered now. I agree with the conclusion that the application shall be, and is hereby granted in terms of the reliefs, as prayed. I abide by the terms of the consequential orders in the said Leading Ruling.
PAUL ADAMU GALINJE, J.S.C.: I have had before now a preview of the draft copy of the ruling just delivered by my learned brother, Eko JSC, and I agree with the reasoning contained therein and the conclusion arrived thereat.
The prayers on the motion paper, subject matter of this ruling are elaborately set out in the lead ruling. I do not need to reproduce them here. At the hearing of this application, Learned Counsel for the 2nd and 3rd Respondents as well as the Learned Counsel for the 4th Respondent informed the Court that they were not opposing the application. Mr. Paul Erokoro, Learned Senior Advocate of Nigeria who led a host of Counsel for 1st Respondent vehemently opposed reliefs 4, 5 and 6, but conceded to the remaining reliefs. It follows therefore that there was no objection to reliefs 1, 2, 3 and 7.
The Law is settled that an application of this nature is not granted as a matter of course. A grant or refusal of an application is purely at the discretion of the Court which discretion must be exercised, judiciously, and judicially upon sufficient materials. See Udensi v. Odusote (2003) 6 NWLR (Pt. 817)545 at 558 Para B, Ogbuchi v .Governor of Imo State (1995) 9 NWLR (Pt. 417) 53, University of Lagos v. M. I. Aigoro (1985) 1 NWLR (Pt. 1) 143 at 148. The 1st and 2nd grounds upon which this application is predicated are very clear. They read as follows:
“1. That the Appellants filed their Notice of Appeal within time on the 5th June, 2015 and the appeal has been duly entered in this Honourable Court and given No. SC.373/15.
2. That at the time the grounds were filed, Joe Agi, SAN had just been briefed to take over the matter at the Supreme Court and upon perusal of the record and grounds subsequently and in the light of the fact that the distinction between grounds of pure law, mixed Law and facts are not easily dissemble he was unsure of their status and decided to seek leave on grounds 3, 4, 5, 7, 9, 10, 11, 12 and 13 at which time the 3 months period to seek the leave had expired.”
At paragraph 6 of the supporting affidavit, the Applicants deposed as follows:
“6. That the Appellants not satisfied with the Judgment of the Court of Appeal, Abuja Division filed a Notice
of Appeal on the 5th June, 2015. Annexed here to as Exhibit C is a copy of the Notice of Appeal.”
The 1st and 2nd grounds upon which this application is predicated and paragraph 6 of the supporting affidavit have clearly shown that the Appellants filed their appeal within the prescribed period and the present application is aimed at regularizing the grounds of appeal. It is also the Applicants’ reason that the learned Senior Counsel appearing for them has just been briefed. It follows that the Applicants changed their former Counsel with the learned silk. Change of Counsel and the fact that a Counsel finds it difficult to discern whether a ground of appeal is of Law or mixed Law and fact have been held to be good and substantial reasons for failure to appeal within the prescribed period. See A.C.B. v. Elosiuba (1991) 3 NWLR (Pt. 178) 133, Adapele v. Akintola (1986) 5 NWLR (Pt. 42) 448.
Apart from the fact that none of the Respondents raised any objection to the grant of the application for extension of time, the applicant in my view has proferred good and substantial reasons for his failure to appeal within the prescribed period as provided for under Order 2 Rule 31(2) of the Rules of this Court. I therefore have no reason to refuse the application for extension of time to appeal.
The applicants prayer for leave to raise fresh issue as contained in reliefs 4, 5 and 6 are stoutly opposed by Learned Senior Counsel for the first Respondent, on the ground that a grant of this application will entail calling of additional evidence, which this Court is not usually disposed to.
In general, this Court does not allow a fresh issue to be raised on appeal. However, where the issue involves substantial point of Law substantive or procedural, and it is plain that no further evidence may be called, the Court may allow the issue to be raised subject to leave having been first sought and obtained. In the instant application the applicant is seeking for leave to raise the fresh issue as found by my learned brother in his lead judgment. Learned Senior Counsel for the 1st Respondent has submitted that he does not oppose reliefs 2 and 3. These two reliefs are seeking for leave to appeal on grounds of mixed Law and facts as contained in grounds 3, 4, 5, 7, 9, 10, 11, 12 and 13 and extension of time to appeal against the judgment of the lower Court as it relates to ground 3, 4, 5, 7, 9, 10, 11, 12 and 13. The fresh issue that the applicants seek to raise are contained in grounds 9-13. Learned Senior Counsel for the 1st Respondent having conceded to the application to appeal on these grounds that contained the fresh issues cannot be heard to raise objection to the prayer that seeks to raise the fresh issue. Certainly Learned silk cannot approbate and reprobate at the same time.
For these few reasons and the more elaborate reasons in the lead ruling, this application shall be and it is granted in terms of all the players. I endorse all the consequential orders made in the said ruling including order as to costs.
Joe Agi, SAN. with him, J. C. Njikonye, Esq., Kingsley Akonjom, Esq., Isaac Ita, Esq. I. A. Nnamdi, Esq. and O. F. Ekengba. For Appellant
Paul Erokoro, SAN. with him; Peter Oche Ofikwu, Esq., Ama Kalu Kalu, Esq., O. Anozie, Esq., A. Imuokemhe, Esq., A. U. Ogboi, Esq., R. U. Ediba (Mrs.) M. Ajara, Esq. C. Oli (Mrs.), K Odeyi, Esq. P. Abang, Esq., R. O. Adakole, Esq., R. O. Mohammed, Esq., J. Abuh, Esq., K. Momoh (Miss), C. Chinaka, Esq. C. I. Oyidih (Miss), M. A. Bawa, Esq., I. O. G. Etu (Miss), J. O. Atodoga, Esq., P. Ogbonna (Miss), N. Eborty, Esq. and I. M. Igomu, Esq. -for 1st Respondent
Godwin S. Ogboji, Esq. with Ezechi A. Asawala, Esq., A. S. Akpenpuun, Esq. Patrick Oghagbon, Esq. and I. T. Opeke (Miss) -for 2nd and 3rd Respondents
Vallari Aaron (Miss)- for 4th Respondent.