Abraham Frama V. Miss Itanagbe Hozaife (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Ruling)

In the Notice of Motion filed on 25th September, 2012, the Appellant prays the Court as follows: –

1. AN ORDER granting LEAVE to the Appellant/Applicant to raise and argue a new point of law not raised and argued before the Court, to wit: an issue of jurisdiction to entertain the case.

2. AN ORDER granting LEAVE to the Appellant/Applicant to further amend his Amended Notice and Grounds of Appeal dated the 14th day of August, 2006 but filed on 31st August, 2006 by including the new issue/ground of jurisdiction as an Additional Ground of Appeal.

3. AN ORDER granting LEAVE to the Appellant/Applicant to amend the Appellant’s Brief of Argument to inter alia reflect the argument on the new point of law on jurisdiction vide Ground Eighteen (18) of the Further Amended Notice of Appeal.

4. An Order granting the accelerated hearing of the appeal.

The said issue of jurisdiction is to be found as Ground 18 in Appellants Exhibit 3. It reads:-

“The learned trial Judge lacked the jurisdiction to entertain the suit and enter judgment for the Respondent on the basis of an originating process, to wit: specially endorsed Writ of Summons that was null and void and of no effect having been issued and/or endorsed in the firm name of G. Ofodile Okafor & Company.”

The motion was accompanied by a 15 paragraph Affidavit which the Respondent countered with an 11 point Counter- Affidavit deposed to on 17th October, 2012.

The judgment of the trial Court in this case was delivered on 31st July, 2003 while the Original Notice of Appeal was filed on 7th August, 2003. It has since suffered series of amendments. Briefs have been filed and exchanged and as at 25th September, 2012 when this motion was filed, the appeal was ready for hearing. Prayer 1 seeks to raise and argue a new point of law. While other prayers sought are really consequential to prayer 1.

While this Court has the power to allow an Appellant to raise fresh issues not tried and determined at the lower Court on appeal, it does so only very sparingly. This is because an Appellate Court should not entertain an appeal on issues not joined at the trial Court. It also should have the benefit of the opinion of the trial Court on a point taken before it. See Mogaji V. Cadbury Nig. Ltd (1985) 7 SC 59, United Marketing Co. Ltd. V. Kara (1963) 1 WLR 523.

An Applicant seeking to raise fresh issues must therefore meet at least two stringent conditions:

(a) the fresh issue must involve substantial point of law and

(b) must satisfy the Court that it has placed before the lower Court all facts establishing the issue.