ADETOUN V. WEST AFRICAN PORTLAND CEMENT PLC & ORS (2017)

In The Court of Appeal of Nigeria

On Thursday, the 2nd day of March, 2017

CA/I/225/2011(R)

Before Their Lordships

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria


Between

MRS. COMFORT ADETOUN –Appellant

AND

1. WEST AFRICAN PORTLAND CEMENT PLC
2. MR. SUNDAY OPEIFA
3. LAFARGE AFRICA PLC
(NAME BEING SOUGHT TO BE SUBSTITUTED FOR THE 1ST RESPONDENT’S (FORMER) NAME) –Respondents

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MODUPE FASANMI, J.C.A. (Delivering the Lead Ruling): This is a motion on notice dated and filed on the 1st of June 2016 brought under Order 7 Rules 1 and 10 (1), Order 20 Rules 2 and 3 of the Court of Appeal Rules 2011and the inherent jurisdiction of the Court praying the Court for the following orders:
“1. ORDER granting leave to the Appellant to raise and argue fresh point(s) and issue(s) for the first time in the Court of Appeal, which are not specifically or directly canvassed and argued in the Court below, to wit:-
The relevance and/or effect of the presumption of equal proportionate faults of the Respondents, and 3rd party strangers to this suit, for the finding of the negligence of the Respondents in the road accident, the subject matter of this suit.
2. ORDER deeming as regular and proper the principle of the presumption of equal proportionate fault particularized in Grounds 3 and 7 of the Notice of Appeal dated and filed 19th May, 2011 and argued and canvassed in the Appellant’s Brief dated and filed 5th May, 2015;
3. ORDER granting leave to the Appellant to amend her Notice of Appeal and Appellant’s Brief, by substituting the publicized new name of the 1st Respondent, which is Lafarge Africa Plc., for its erstwhile name of West Africa Portland Cement plc. with which this suit was filed.
4. ORDER giving this appeal accelerated hearing.”

The grounds for bringing the application are stated as follows:
1. The fresh point or issue of law was not canvassed and/or argued by either of the parties in the Court below, but arose a prior the judgment of that Court;
2. The fresh point or issue which is being pivoted by operation of law is not inconsistent with or contradictory to the case canvassed by the Appellant in the Court below;
3. The regularization of the fresh point or issue which is already raised, canvassed and/or argued in the already filed Notice of Appeal and Appellant’s Brief;
4. The fresh point or issue regarding which leave is being sought is a recondite and substantial point of law;
5. The fresh point or issue does not require or need further or fresh evidence, for the Court of Appeal to reach a decision on it;
6. The 1st Respondent’s advertised change of name in the news media in recent time.
Appellant’s/Applicant’s written address to the application was filed on 15/7/16 and Appellants/Applicant’s reply on point of law written address was filed on 18/10/16. Respondent filed two written addresses. They were filed on 7/10/16 and 20/1/17 respectively. At the hearing of the application, Respondent’s counsel withdrew the written address filed on 7/10/16 while he relied on the written address filed on 20/1/17.
The application is supported by a seven paragraph affidavit deposed to by Oladeji Alamu, a legal practitioner in the chambers of Dr. Olayemi Olowolafe, the Appellant’s/Applicant’s Counsel. Attached to the application is Exhibit A  Notice of Change of Name. Learned Counsel for the Appellant/Applicant relied on all the paragraphs of the affidavit particularly paragraphs 2-6.
Learned Counsel for the Appellant/Applicant distilled a sole issue for determination thus:
Whether the application satisfies the requirements of the law, the grant of the orders sought.
It is contended by the learned counsel for the Appellant/Applicant that no point which had not been argued or taken in the Court below will be allowed to be raised for the first time in an appeal except under special circumstances. Reliance was placed on the case of IBWA Ltd v. Imano (Nig.) Ltd. (1988) 3 NWLR (part 85) page 633 at 651. He submitted that Appellant/Applicant has satisfied at least two of these exceptions. They are:
(i) The new or fresh point or issue regarding the principle of equal proportionate fault for which she is seeking the leave of this Court to canvass is a substantial point of law for which no further evidence to the ones already adduced in the Court below is required.
(ii) That the new or fresh issue of the principle of equal proportionate fault is not inconsistent to the case which was canvassed in the Court below especially that it is being brought in as a corollary to the conclusion in the judgment of the Court below.
He contended further that the grant of the application will not be prejudicial to the rights of any of the Respondents.
On relief three, he submitted that he is seeking for the amendment of the Court processes as a result of the change in the name of the 1st

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Respondent which necessitates a substitution of its present name for the former one. He referred to Order 15 Rules 1 and 2 of the Court of Appeal Rules 2011.
On relief four, learned counsel submitted that Appellant/Applicant has a constitutional right to have her appeal considered and decided within reasonable time. Submitted that this Court within the purview of the judicial powers conferred on and exercisable by it, has the right to grant the application so as to do substantial justice to the parties. He referred to Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended. He urged the Court to grant the application as prayed.
Learned counsel for the Respondent submitted that an appellate Court will not allow a fresh point or issue to be taken before it if such point was not pronounced upon by the trial Court. He argued that since an appellate Court does not inquire into disputes; it is desirable for the Court to have the benefit of the opinion of the trial Court on every point taken on appeal. However where the question or new point or issue involves substantial points of law, substantive or procedural and no further evidence would be adduced which would affect the decision on them, the Court will allow the question to be raised and the points taken to prevent an obvious miscarriage of justice. He referred to the cases of Bankole v. Pelu (1991) 8 NWLR (part 211) page 523, Araka v. Ejeagwu (2000) 15 NWLR (part 692) page 684 and Maskala v. Silli (2002) 13 NWLR (part 784) page 376.
Learned Counsel for the Respondent submitted that Appellant/Applicant has not shown how the point sought to be raised by her i.e the principle of equal proportionate fault is relevant and substantial to merit the grant of her application. He contended that the principle is a recondite point for which there is no binding judicial procedure in Nigeria jurisprudence even though it is not unknown in common law jurisdictions. He referred to the case of Olawoyin & Ors v. Police (No. 2) (1961) 2 SCNLR page 278 which is to the effect that an issue of law is substantial where it is such that there may be some doubt or difference of opinion as to what the law is as established by a final Court of Appeal.
Learned Counsel for the Respondent contended that Appellant’s claim at the lower Court was that the Respondent was liable for the accident that claimed the life of the deceased. The lower Court held that no proof was adduced to justify such an allegation and therefore dismissed the claims. He submitted that the principle is at best a creation of statutes applicable to torts in different jurisdictions such as the United States. This principle is therefore a creation of statute in the jurisdictions where they are applied. In most of these jurisdictions, it was created to replace the principle of contributory negligence. Learned Counsel for the Respondent urged the Court to refuse and dismiss the application.
Learned Counsel for the Appellant/Applicant in his reply on point of law submitted that the Respondent’s brief of argument is incompetent because it does not anywhere identify the Court process in regard to which their written submission relates to. It does not raise any issue for the determination of the Court of Appeal. Submitted that the Respondent’s written submission must therefore be discountenanced. He referred to the cases of Ugo v. Obiekwe (1989) 1 NWLR (pt. 99) pg. 566 and Animashaun v. University College Hospital (1996) 10 NWLR (pt. 476) pg. 65 at 70. He contended further that the Respondent’s written submission shows that there are two names of counsel listed as representing the Respondents without any indication of the particular counsel who signed it especially that it is only one who has his or her affixed stamp and seal on the Court process. The signatory on the Respondent’s written submission is confusing. Submitted that the Respondent’s written submission is so defective and should be struck out. He referred to the case ofNwokoro v. Onuma (1990) 3 NWLR (pt. 136) pg. 22 at 32.
On points arising from the Respondents written submission, learned counsel for the Appellant/Applicant submitted that all the legal principles for the granting of this application have been satisfied. He urged the Court to grant the application.
A Respondent’s written submission is an art by itself in which every individual has his own peculiar style and method. Once a Respondent’s written submission answers the issues raised in the Applicant’s written address, an appellate Court cannot interfere with such written submission

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merely because the writer could have adopted a different style. The Respondent’s written submission replied or answered the salient points raised in the Appellant’s/Applicant’s written submission. It is clear from the Respondents written submission that Respondent was replying to the Appellant’s/Applicant’s written submission on his application. It is also of no moment that Respondent did not distill any issue for determination in his written submission. He is presumed to have adopted the issue formulated by the Appellant/Applicant in his written submission. It is also on record that Respondents’ counsel withdrew his written submission filed on 7/10/16 which contained two names of counsel as pointed out by the Appellant’s/Applicant’s counsel. Appellant’s counsel was in Court and he did not oppose the withdrawal of the written submission. Respondent counsel relied on the written submission filed on 20/1/17 which has the name of one counsel and the process was duly signed by the counsel. Appellant’s objection to the earlier Respondent’s written submission filed on 7/10/16 has been over taken by events. The Respondent’s written submission filed on 20/1/17 is regular. The objection to the Respondent’s written submission is hereby dismissed as lacking in substance.
Going to the merit and otherwise of the application, it is settled law that generally where an issue is not raised in the Court below or the trial Court by the parties before it, such an issue should not be raised in the Appeal Court. But if the issue raised by such point is fundamental in nature, the Appeal Court will be disposed to granting leave for it to be raised and will hear it for that reason. Therefore, an issue not canvassed in the Court below can only be taken on appeal with leave and in special circumstances. See the cases of Ezekude v. Odugwu (2002) NWLR (pt. 784) pg. 366 at 373, Ogba v. Onwuzo (2005) 6 SCNJ (pt. 83)at pg. 92 -93 per Akintan JSC, Kwajaffa v. B.O.N Ltd (2004) 13 NWLR (pt. 889) pg. 146 at 167 paras D -G NWLR (pt. 92) pg. 1 and Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) pg. 684 at 709 paras F -H.
Where the question or issue involves substantial points of law, substantive procedural and it is plain that no further evidence could have been adduced which would affect the decision, the Court will allow the question to be raised and the points taken to prevent an obvious miscarriage of justice. See the cases of Bankole v. Pelu (1991) 8 NWLR (pt. 211) pg. 523 and Araka v. Ejeagwu supra pg. 709 paragraphs G – H Per Iguh J.S.C. and Agbaye v. Adigun (1993) 1 NWLR (pt. 269) pg. 161.
The special circumstances or conditions under which an Applicant may be allowed to raise a point of law not specifically canvassed at the trial Court on appeal for the first time are where the applicant has:
(1) Obtain leave of the Appellate Court
(2) Ensure that the new points sought to be raised involve substantial issues of substantive or procedural law which need to be allowed to prevent an obvious miscarriage of justice.
(3) Show that no further evidence is required to resolve the issue for determination.
See Kwajaffa v. B.O.N Ltd. supra at pg. 167-168 paras G-B. In the case of Kaja v. U.B.A. Ltd (1997) 1 NWLR (pt. 481) pg. 251 at 255, the Supreme Court opined that a point will be deemed as substantial if it is a point on an issue of law which is not settled in order to state the law once and for all.
In the instant application, Appellant/Applicant’s counsel therefore has the duty to show that the principle of the presumption of equal proportionate faults of the Respondents and 3rd party strangers to the suit is a point on an issue of law that is unsettled. The principle as argued by the Appellant/Applicant’s counsel is that it is applicable in other common law jurisdictions as a common law principle. Then such a principle is settled and cannot be said to be unsettled. In that case, Appellant/Applicant ought to have raised the principle at the lower Court for a determination notwithstanding that it had never been raised and applied by our Courts which would have enabled the trial Court to proffer an opinion for the point to be taken on appeal. A point of law that helps a Court in determining the apportionment of liability in a tortious accident case will require parties adducing evidence either for or against that principle. Failure to provide that opportunity to the Respondent is prejudicial and occasions a miscarriage of justice.
The understanding of the applicant’s application by this Court is

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that Applicant should be granted leave to argue the principle of equal proportionate fault in the apportionment of liability which will amount to apportioning of liability in equal proportion to the parties on the basis of an equal fault finding. No such principle applies under our jurisprudence. The only principle similar to this is the principle of contributory negligence which reduces damages payable to the damaged party and besides such a claim ought to have been canvassed at the lower Court with evidence of claim provided for a rebuttal. Since such principle does not exist under our jurisprudence and the parties will require adducing evidence on either side, this Court cannot exercise its discretion to grant prayers 1 and 2 of the application. Prayers 1 and 2 are devoid of merit and are hereby refused.
On prayer 3, Appellant/Applicant is seeking leave to amend her notice of appeal and Appellant’s Brief by substituting the publicized new name of the 1st Respondent which is Lafarge Africa Plc for its erstwhile name of West African Portland Cement Plc. Applicant attached the publication of the change in the name of the 1st Respondent since it has ceased to bear its former name with which the suit was instituted. The publication is in the Guardian Newspaper of September 2014 at page 59 and marked Exhibit A attached to the application.
Respondents did not controvert this assertion in its written submission. It is deemed admitted. Facts admitted need no further proof. See the case of Amala v. State (2004) 12 NWLR (part 888) page 520 and Section 123 of the Evidence Act 2011. Appellant/Applicant is hereby granted leave to amend her notice of appeal and Appellant’s brief by substituting the publicized new name of the 1st Respondent which is Lafarge Africa Plc for its erstwhile name of West African Portland Cement Plc with which this suit was filed. Parties should reflect the substitution of the 1st Respondent’s new name in their processes.
Prayer 4 seeking accelerated hearing cannot be granted since parties are still going to re-file their processes to reflect the substitution of the 1st Respondent’s name. Prayer 4 is hereby refused.
Finally the application succeeds in terms of prayer 3 only. Appellant/Applicant is hereby granted leave to amend her notice of appeal and Appellant’s brief by substituting the publicized new name of the 1st Respondent which is Lafarge Africa Plc for its erstwhile name of West African Portland Cement Plc with which this suit was filed. The amended notice of appeal and Appellant’s brief are to be filed within 14 days of this order while prayers 1, 2 and 4 are hereby refused. Parties should reflect the substitution of the 1st Respondent’s new name in their processes. No order as to costs.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Ruling prepared by my learned brother Modupe Fasanmi JCA. I have nothing useful to add.
NONYEREM OKORONKWO, J.C.A.: I have read the ruling in this application in draft as written by my lord Modupe Fasanmi J.C.A. I agree entirely with the ruling.
Concerning the issue of Principle of Proportionate fault in the appointment of liability in tort there is nothing new about it as the common law has the principle of contributory negligence by which liability is apportioned according to fault.
In a trial, evidence is led and the trial Court evaluates the evidence and applies the requisite legal principles that the facts can justify. If there was evidence of contributory fault or negligence supported by evidence, the trial judge would have considered same with the Law presumed to be in the bosom of the Court.
As the lead judgment indicates there is nothing recondite or yet unexplored in the so called Principle of equal proportionate fault in apportionment of liability.
I agree that prayers 1&2 are devoid of merit and are dismissed.
I agree with the other orders as made in the lead ruling.
Appearances

DR. OLAYEMI OLOWOLAFE –For Appellants

AND

J.I. OGUNU – For the Respondent

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