In The Supreme Court of Nigeria
On Friday, the 1st day of February, 2013
Before Their Lordships
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
HELEN JOHNSON UDO
(aka Queen Ibum Olumba Obu) –Appellant
THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS & STAR –Respondent
…………………….A…………………….MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Lead Ruling): The appellant by her motion dated 12th but filed on 16th day of July 2012 seeks for the following:-
“a) AN ORDER granting leave to the Appellant/Applicant to file and argue 21 additional grounds of appeal i.e. by addition of Grounds 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 as contained in the SCHEDULE OF AMENDMENT attached to the affidavit in support as Exhibit ‘A’ herein.
b) AN ORDER granting leave to the Appellant/Applicant to raise for the first time before this Honourable Court the issues raised in additional grounds 6, 11, 13 and 14 of the grounds of appeal.
c) AN ORDER granting leave to the appellant/applicant to amend the Original Notice of Appeal copied out or contained at pages 322 – 325 of the printed record by incorporating into same, the 21 additional grounds of appeal.
d) AN ORDER DEEMING the AMENDED NOTICE OF APPEAL incorporating or encapsulating all the grounds i.e. grounds 1 – 25 already filed and served as having been duly filed and served.
e) AN ORDER extending the time within which to file the Appellant’s Brief of Argument out of time.
f) AN ORDER DEEMING the Appellant’s Brief of Argument already filed and served as having been duly filed and served.”
The grounds upon which the application is predicated are inter alia the realization of the necessity to effect the amendments by learned appellant/applicant counsel on taking over applicant’s appeal from the counsel initially in the matter; raise jurisdictional issue and make bare facts on the basis of which the controversy between the parties would be justly and finally determined. Appellant/applicant has paid the necessary penalty required of her for all the reliefs being sought.
The appellant/applicant particularly relies on paragraphs 5, 6, 7, 8, (a), (d), (e), (f) and (g), 9 (c), (d), (e) and (f), and 10 of the twelve paragraph affidavit in support of her motion.
Exhibit “A” annexed to appellant’s motion is the schedule of amendment the applicant, on her being indulged, seeks to effect to her Notice of Appeal. It is pertinent to note appellant/applicant’s further desire to rely on the record of appeal and all such other processes so far filed in the Appeal.
The respondent relies particularly on paragraphs 5 (a), (b), (e) and (g), 6(a), (b) and (f), 7(i), (ii), and (iii), 8(i), (ii),(iii), (vi) and (vii) and 9 of its counter-affidavit in opposition to item (b) in the motion paper.
The averments in the respective affidavits of both sides supply the facts which sustain the submissions of their respective counsel for or against the reliefs being sought’
The applicant before us seeks leave to file twenty one additional grounds of appeal which, if granted, the amended notice will contain a total of twenty five grounds. Learned respondent counsel’s opposition to applicant’s motion is limited to relief (b) therein by which she seeks the court’s leave to raise the fresh issues in grounds 6, 11, 13, and 14 of the proposed additional grounds of Appeal. Otherwise, learned counsel concedes that applicant is entitled to and should be granted all the other reliefs on her motion Paper.
Learned senior applicant’s counsel Roland Otanu (SAN) is very terse in his submissions. He contends that grounds 6, 11, 13 and 14 of the additional grounds seek to raise issues of jurisdiction not previously raised at the lower court. Respondent’s action, it is argued, is wrongly commenced by originating summons instead of a writ on the pleadings. Furthermore, the issue of rent in respect of the properties of the respondent, by virtue of S. 251 of the 1999 Constitution as amended, does not fall within the vires of the Federal High court. Respondent’s action, it is also submitted, is caught up by laches and acquiescence. Lastly, the action having been commenced outside five years allowed by the law is caught up by statute of limitation. The issue of jurisdiction, learned appellant’s counsel argues, is so fundamental and necessarily has to be addressed. Learned counsel urges that all the reliefs in their motion paper be granted.
Responding, learned counsel submits that the issue of commencing their action by originating summons is a procedural one which if not being raised within reasonable time is deemed abandoned. Having acquiesced to the wrong procedure, the applicant cannot now complain on the lapse. Learned counsel supports his submission with the decision in SkenConsult v. Uke (1981) NSCC 1 at 7.
In further response, learned respondent’s counsel submits that this Court has in numerous cases decided that under S. 251 (1) (e) of the 1999 constitution the trial Federal High court has, to the exclusion of all others, the jurisdiction to hear and determine actions pertaining to the management and administration of companies. The principal relief the respondent seeks in the action, on which all the ancillary ones squarely rest, is on the issue of the management and administration of the respondent. Again, submits learned counsel, the applicant cannot be heard to say otherwise at this stage.
Ground 11 in particular, learned respondent’s counsel contends, does not raise a fresh issue. The same issue had been raised at the lower court under ground 7 of applicant’s Notice of Appeal in that court. The flash point under the ground, the certificate of Registration, given the procedure by which the action was commenced, is being excluded from being raised now by virtue of S. 83 (3) of the Evidence Act.
Lastly, whether or not an action is caught up by limitation law depends on when the cause of action arose and when the suit seeking remedy thereto commenced. Time begins to run against the plaintiff, submits respondent’s counsel, from the time the plaintiff becomes aware of the act on the basis of which he sues. Learned counsel refers to page 7 of the record which contains paragraphs 9 of the Respondent’s originating summons and submits that evidence is lacking on the basis of which this court can resolve such an issue. It is for that reason that the applicant cannot be allowed to raise the fresh issues she seeks to by virtue of the 13th & 14th additional ground. Learned counsel relies on Garba v. Omokhodien (2011) ALL FWLR (part 596) 404 at 424 and urges that the unmeritorious application be dismissed.
Replying on points of law, learned applicant’s counsel while conceding that by S. 251 (1) of the 1999 constitution it is the Federal High Court that has jurisdiction in respect of the administration and management of companies, the issue in controversy in the instant case pertains to a private property. The matter, for that reason, is outside the jurisdiction of the Federal High Court. He maintains that the application has merit and pleads that it be granted
I agree with learned applicant’s counsel that by virtue of order 8 rule 4 of the rules of this court, a notice of appeal may be amended by or with leave of the court in appropriate cases.
The issue to determine in this application, therefore, is whether the applicant is entitled to the leave she seeks to amend her notice of appeal in the manner contained in Exhibit “A” by particularly filing additional grounds 6, 11, 13 and 14 which raise fresh issues.
It remains generally the duty of the trial court to make primary findings of fact. Where the duty is discharged and the findings are made by the trial court, the appellate court remains slow in departing from those findings and relies on the trial court’s opinion in determining the appeal before it. Fundamentally, the jurisdiction of the appellate court, with this being the final on the ladder, is limited to the correction of the errors of the court from which the appeal it determines emanates.The overriding duty of courts, including this court, however, is to do substantial justice between parties, a principle which entitles the appellate courts to find exceptions to their primary duty of determining appeals before them solely on the basis of the issues raised and determined at the court below. Leave to litigants to raise fresh points for the first time on appeal, having not raised same at the trial or court below, is one of such exceptions.
The leave the applicant herein seeks is granted only if the indulgence will facilitate substantial justice between the parties before the court. The relief cannot, for that noble goal, be available just for the asking. It is never granted as a matter of course.
Conditions have been evolved which an appellant/applicant who desires to raise a fresh point on appeal must meet.
Before granting the appellant/applicant leave to raise a fresh point on appeal, the court must be satisfied beyond doubt that it has all the facts pertaining to the new point to be raised and were the point raised at the court below it would have remained unsatisfactorily determined. Where the fresh issue the appellant seeks to raise involves substantial point of law, substantive or procedural, and no further evidence would be required in the determination of the issue, this court readily allows such an application in order to prevent miscarriage of justice. See: A. G. Oyo State v Fairlakes Hotel Ltd (1988) 5 NWLR (part 92) 1 and Fadiora v. Gbadebo (1973) 7 SC 219.
Learned appellant/applicant counsel has hammered on the fundamentality of the question of jurisdiction in adjudication. Where an appellant ex facie demonstrates that the lower court had proceeded without jurisdiction, the appellate court will also accommodate his/her plea to ensure that a nullity does not survive. It must be noted though, that notwithstanding the fact that the point sought to be raised ex facie rests on jurisdiction, the applicant will be refused leave if in essence the applicants endeavour is to introduce a new line of defence different from those of the parties at the court below. Applicant must further satisfy the court that in spite of due diligence on his part it was impossible to raise the point and have same conclusively determined by the lower court. See: Ogbodu v. State (1937) 2 NWLR (part 54) 20; Ejiofodomi v. Okonkwo (1982) 11 SC; Awote v Owodunmi (1986) 5 NWLR (part 46) 941 and Uor v Loko (1988) 2 NWLR (part 77) 430.
Applicants proposed additional ground 6 is, without its particulars, hereunder reproduced: –
The Learned Justice of the Court of Appeal erred in Law in affirming the judgment of the trial Federal High court even when the issues raised in the Originating Summons were very contentions issues which required the filing of pleadings”
A cursory examination of the foregoing supports learned respondent counsel’s contention that this is a complaint on procedural lapses rather than on jurisdiction. Only a jurisdictional issue, on the authorities, form ready basis for the grant of the leave the applicant seeks.
Commencing an action by wrong procedure does not constitute a jurisdictional issue since the lapse, except where specifically stated in the rules of court, does not defeat the claimant’s cause of action. If the subject matter of the plaintiff’s action is within the jurisdiction of the court, the cause of action would not be abrogated simply because it has been commenced by the wrong procedure. The lapse in that regard is only an irregularity that gives the defendant the right to insist that plaintiff adopts the proper procedure in approaching the court. Even then, I agree with learned respondent’s counsel, that the objection must be raised within reasonable time. See: Okotie-Eboh v. Okotie Eboh (1986) 1 NWLR (part 16) 264; Ijebu-ode Local Govt. v Adedeji Balogun & co. Ltd (1991) 1 NWLR (part 166) 136.
Order 3 rule 1 sub rules (1) and (2) of the trial court’s procedure rules being a vindication of respondent’s position, are hereby reproduced:-
“1.-(1) Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone, been failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
2.-(1) Any application to set aside for irregularity any proceeding, any step taken in any proceeding or any document, judgment or order therein, shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings.”
(underlining for emphasis)’
From the clear and unambiguous words of the foregoing rules it is certainly belated and unpardonable to now allow the applicant raise the procedural point encapsulated in the 6th ground of her Exhibit “A” the schedule of amendment she seeks to effect to her Notice of Appeal. Applicant’s plea in respect of her 6th grounds accordingly fails to find any favour. But what of the other three proposed grounds?
Appellant proposed additional ground 11 shorn of its particulars reads:-
The learned justices of the Court of Appeal erred in law in affirming the judgment of the Federal High Court Calabar and gave credence to the certificate purportedly issued by the Corporate Affairs commission dated 6th day of August 2003 when proceedings in suit No.FCT/HC/CV/508/2002 was pending contrary to the provisions of Section 91 (3) of the evidence Act 2011 now Section 83 (3) of the Evidence Act. ”
Applicant’s complaint in the foregoing cannot by any stretch of imagination be said to be a fresh issue. The issue had clearly been raised and determined at the court below. The issue can only be pursued here in the very manner parties had done at the court below.
In her two other grounds, 13 and 14, the applicant seeks to raise two defences she alleges the lower court erred in not considering. While in ground 13 the complaint is that the lower court has given judgment to the respondent who is guilty of laches and acquiescence, applicant’s grief in ground 14 pertains to the lower court’s affirmation of the trial court’s judgment in a suit that is statute barred.
The two complaints are defences in respect of which the rules of the trial court entitles a defendant to an originating summons in joining issues with the plaintiff to file a counter-affidavit together with all the Exhibits he intends to rely upon and a written address on his being served with the originating summons.
With due diligence, the defences in grounds 13 and 14 could, in spite of applicant’s failure to challenge the commencement of respondent’s action by originating summons, have been raised in applicant’s counter-affidavit. It appears that applicant’s desire to obtain leave to raise the points in the two proposed additional grounds is to introduce entirely new dimensions to the case parties herein fought through to this Court. On the authorities, the applicant is disentitled to the leave for the attainment of that particular objective.
In Solanke v. Somefun (1974) 1 SC 1 at 141 at 148, this Court has opined that:-
“…(A)ny party or counsel seeking the discretionary power of a judge to be exercised in his favour must bring his case within the provisions of the rules on which he purported to make his application. If counsels fail to discharge their duties in that respect, it is but fair and right that a court should refuse to exercise its discretionary power.”
Having failed to meet the requirements earlier captured in the principles outlined in this ruling which seekers of leave to introduce fresh point on appeal must satisfy, the applicant is unworthy of the indulgence she urges on this court. Item (b) of her motion paper opposed by the respondent being unmeritorious is hereby dismissed. The dismissal of this item invariably affects those other items on the motion paper the respondent conceded to the applicant. In consequence and for the avoidance of doubt it is hereby accordingly ordered as follows:-
(1) Leave is granted the appellant/applicant to amend her original Notice of Appeal copied out or contained at pages 322-325 of the printed record by incorporating into same and arguing 17 additional grounds of appeal to wit; 5,7 ,8, 9, 10, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 as contained in Exhibit “A: the appellant/applicant’s schedule of Amendment annexed to the affidavit in support of the instant application.
(2) Time is extended by 60 days from today for the appellant/applicant to file her amended Notice of Appeal and Brief of argument.
Parties are ordered to bear their respective costs.
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading in draft the lead ruling of my learned brother, MUHAMMAD, JSC just delivered.
I agree with his reasoning and conclusion that the prayer (b) on the motion papers be refused while prayer (a) be granted subject to the exclusion of additional grounds 6, 11, 13 and 14 of the proposed additional grounds of appeal and that leave to amend the original grounds of appeal by incorporating the surviving additional grounds of appeal be granted and that appellant be at liberty to file appellant brief within sixty (60) days of this order.
I abide by the consequential orders made in the said lead ruling including the order as to costs.
Application ordered as above.
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.S.C.: I have read in advance the lead Ruling in this appeal prepared and delivered by Muhammad JSC and I agree with him that the instant application to raise fresh issues upon the additional grounds of appeal Nos. 6, 11, 13 and 14 not having properly grounded have no merits. The applicants have failed to meet the pre-conditions as outlined in such cases as Ogunbadejo v. Adebowale (2008) AFWR (Pt.405) 1707 at 1716 and Obasi v. Onwuka (1987) 3 NWLR (Pt.61) 364 at 370, which cases require that the applicant for such an application shall establish special or exceptional circumstances to justify the grant of the application that the lower court has previously decided the matter on its merits and so to revisit the decision has to be premised.
However I agree with the orders made in consequence of the other reliefs sought and granted in the application.
SULEIMAN GALADIMA, J.S.C.: I have had the opportunity of reading through the draft of this Ruling of my Learned Brother Muhammad JSC. I agree with his reasoning and conclusion.
The Appellant in her Motion on Notice filed on 16/07/2012, seeks for the following reliefs:
“(a) AN ORDER granting leave to the Appellant/Applicant to file and argue 21 additional grounds of appeal i.e. by addition of Grounds 5, (6) 7, 8, 9, 10, (11), 12, (13), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25, as contained in the SCHEDULE OF AMENDMENT attached to the affidavit in support as Exhibit ‘A’ herein.
(b) AN ORDER granting leave to the Appellant/Applicant to raise for the first time before this Honourable Court the issue raised in additional grounds 6, 11, 13 and 14 of the grounds of appeal.
(c) AN ORDER granting leave to the Appellant/Applicant to amend the Original Notice of Appeal copied out or contained at pages 322 – 325 of the printed record by incorporating into same, the 21 additional grounds of appeal.
(d) AN ORDER DEEMING the AMENDED NOTICE OF APPEAL incorporating or encapsulating all the grounds i.e. grounds 1 – 25 already filed and served as having been duly filed and served.
(e) AN ORDER extending the time within which to file the Appellant’s Brief of Argument out of time.
(f) AN ORDER DEEMING the Appellant’s Brief of Argument already filed and served as having been duly filed and served.”
The learned Senior Counsel of the Applicant, on taking over the appeal from the first counsel realized the need to effect some amendments, particularly regarding jurisdictional issue, consideration of which would enable this Court to determine the controversy between the parties fairly. The Applicant in her 12 paragraph affidavit in support of her application relies particularly on paragraphs 5 – 7, 8 (a), (d) (e), (f) and (g) 9 (c), (d) (e) and (f) and 10. Annexed as Exhibit ‘A’ to the Applicant’s application is the schedule of Amendment.
The Respondent in their 9-paragraph counter-affidavit in opposition to relief (b) of the Applicant relies particularly on paragraphs 5 (a) (b) (e) and (g), 6 (a) (b) and (f); 7 (i), (ii) and (iii); 8 (i), (ii), (iii), (iv) and (vii) and 9.
It must be noted that the Respondent’s opposition to the applicant’s application is limited to relief (b) herein, by which she seeks the leave of this Court to raise fresh issues in grounds 6, 11, 13, and 14 of the-Proposed Additional Grounds of Appeal short of this the Respondent concedes to the fact that the applicant is entitled to be granted all other reliefs being sought.
In the course of this Ruling my learned brother has carefully set out the submissions of respective counsel for the parties for or against the grant of the reliefs being sought. He has admirably considered the relevant case law on the points raised by the learned counsel, particularly on the plethora of decisions of this Court on the jurisdiction of the Federal High Court under S.251 (1) (e) of the 1999 Constitution and on the limitation law regarding when the cause of action is said to have arisen and when the suit seeking remedy thereto is said to have commenced.
The issue is not that the Applicant cannot be allowed by this Court to amend his Notice of Appeal at this stage. By virtue of Order 8 Rule 4 of the Rules of this Court, a Notice of Appeal may be amended with leave of the court in appropriated cases.
In this case the issue is whether the applicant is entitled to be granted this application to amend her Notice of Appeal as contained in Exhibit “A”, by filing additional grounds 6, 11, 13 and 14 all of which raise fresh issues. Leave to raise and argue additional grounds of appeal is not just granted as a matter of course. There are conditions an applicant must meet. These are that the court must be satisfied that it has all the facts pertaining to the new point to be raised. Where the fresh issue the appellant seeks to raise involves substantial points of law, and no further evidence would be required in the determination of the issue this Court will readily allow such an application so as to prevent miscarriage of justice. see: FADIORA v. GBADEBO (1978) 7 SC 219.
Heavy whether has been made by the learned senior counsel on the essence of this application which is grounded on question of jurisdiction in the adjudication of the matter. However, I shared the view of my learned brother that notwithstanding the fact that the point sought to be raised ex facie on issue of jurisdiction, the applicant will not be granted leave to raise the issue if in essence, the applicant’s endeavour is to introduce a new line of defence different from that of the parties at the court below. The Applicant has not satisfied this Court that in spite of due diligence on his part it was impossible to raise the point and have it determined conclusively by the lower court. See: EJIOFODOMI V. OKONKWO (1982) 11 SC 13.
Taking a hard look on all the proposed additional grounds of appeal with their particulars, the conclusion that can be drawn therefrom is that that complaint on the Appellant on ground 6 is on procedural lapses rather than jurisdictional one. If the Respondent had commenced its action by wrong procedure, this does not constitute a jurisdictional issue that defeats the claimant’s cause of action. I agree with the learned counsel for Respondent that the lapse in this regard is only an irregularity that gives the defendant the right to insist that the plaintiff adopts the proper procedure in approaching the court. In that case the objection so raised must be timeous. See Order 51 (1) and (2) of the Rules of the Federal High Court, the trial court and the cases of OKOTIE-EBOH V. OKOTIE EBOH (1986) 1 NWLR (Pt.16) 264: and IJEBU-ODE LOCAL GOVERNMENT V. ADEDEJI BALOGUN & CO. (1991) 1 NWLR (Pt.166) 136.
The complaint on the proposed additional ground 11 is that the court below erred in law in affirming the Judgment of the trial Federal High Court and gave credence to the certificate “purportedly issued by Corporate Affairs Commission dated 6th August, 2003; when the procedure in Suit No. FCT/HC/CV/508/2002 was pending contrary to the provisions of S.83 (3) of the Evidence Act”
I cannot see how the above complaint of the Appellant is regarded as fresh issue. The issue had been raised and determined by the court below.
The complaints by the Appellant in the two other proposed grounds (13 and 14) are as follows. In ground 13 the complaint is that the lower court has given Judgment to the Respondent who is guilty of laches and acquiescence whereas ground 14 pertains to the lower court’s affirmation of the trial court’s Judgment in a suit that is statute barred. These two complaints are defences provided for under Order 13 rule 35 (15) of the Rules of the Federal High Court thus:
“(15) A defendant to an originating summons shall file a counter-affidavit together with all the Exhibits he intends to rely upon and a written address within 14 days after service of the originating summons.”
I am in total agreement that the defences in spite of the applicant’s failure to challenge the commencement of Respondent’s action by originating summons, could have been raised in her counter-affidavit. On the authorities of the case reinstated in the foregoing, the applicant cannot raise these two issues now; to do this is to allow the applicant to introduce new dimensions to the case parties fought at the two lower courts and to some extent, now on appeal before this Court.
The Applicant has not met the requirements of the various principles set out above. This Court cannot exercise discretionary power in her favour. Consequently item (b) of the Motion paper is dismissed. However leave is granted to the appellant to argue the seventeen additional grounds of appeal numbering 5, 7, 8, 9, 10, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 contained in Exhibit “A” (the Schedule of Amendment annexed to the affidavit in support of the application.
I abide by other consequential orders made by my learned brother including costs.
CLARA BATA OGUNBIYI, J.S.C.: I have read in draft the lead ruling just delivered by my brother M. D. Muhammad, JSC and I agree that relief (b) which seeks an order granting leave to raise for the 1st time fresh issues is refused and dismissed. In respect of the other prayers however and in particular relief (a) which seeks leave to file and argue additional grounds of appeal per the motion paper is hereby granted in terms of the lead ruling.
Briefly and just for emphasis, I wish to state that leave to argue fresh issue on appeal should only be granted in situations where the fresh issue was either not considered by the lower court or at all envisaged. Where however it is otherwise as the case in this application it cannot be held as a fresh issue.
The applicant in this case is seeking to smuggle in, a ground of appeal which he ought to hove raised on the onset but had failed to do. He cannot now be allowed to remedy his lapses at this stage as it is too late in the day.
As a consequence, I therefore make the same orders in terms of the lead ruling of my learned brother M. D. Muhammad JSC, inclusive of that made as to costs.
Roland Otaru SAN, with Chris Oshomegie, Chigozie Onah Esq. C. W. Udeh Esq. and Frank Collins Ugwu Esq. For Appellant
Dafe Diegbe Esq. with Kusayo Shimbura (Miss). For Respondent.