Alhaji Lasisi Salisu & Anor V. Alhaji Abbas Mobolaji & Anor (2013)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This application was brought by the appellants on September, 2013 pursuant to Section 22 of the Supreme Court Act, S15 LFN 2004, Order 2 Rule 28 and Order 8 Rules 2(5), 4, 11, 12 and 31(1) of the Supreme Court Rules and the inherent jurisdiction of the Court for the following reliefs:

1. An Order granting leave to the defendants/appellants to raise for the first time at the Supreme Court and be heard in this appeal, the point of law stated in grounds 15, 16, 17, 18 and 19 of the proposed Amended Notice of Appeal attached to the affidavit hereto marked Exhibit “I” as to lack of jurisdiction of the lower court to entertain the plaintiffs/respondents’ case or incompetence of their pleadings;
2. An order allowing the defendants/appellants to further amend the Amended Notice of Appeal herein in terms of the document attached to the affidavit hereto marked Exhibit “I”;
3. An order deeming the Further Amended Notice of Appeal filed herewith as having been properly filed;
4. An order granting leave to the appellants to amend their Appellants’ brief of Argument herein in terms of Exhibit “J” attached to the affidavit hereto;
5. An order deeming the amended Appellants, Brief of Argument filed herewith as having been property filed;
6. An order extending the time within which the defendants/appellants may file their Appellants, Reply Brief herein;
7. An order deeming the appellants’ Reply Brief filed herewith as having been properly filed.

And for such further or other orders as the court may deem fit in the circumstance.

The grounds upon which this application is premised, in addition to the grounds contained in the supporting affidavit to this application are as follows:

GROUNDS

(a) The fatality of the deficiency of the plaintiffs/respondents statement of claim has just come to appellants’ counsel’s notice upon reading the recent judgment of the Supreme Court in Stowe & Anor Vs. Benstowe & Anor reported in (2012) 9 NWLR (pt 1306) 450 at 474.

(b) The said decision (Stowe vs. Benstowe, (supra) was not available to the appellants in the two Lower Courts.

(c) The point of law may be decisive of the appeal.

(d) The point of law touches on the lower court’s jurisdiction to entertain the plaintiffs/respondents’ case as framed.

(e) The appellants do not require any fresh evidence to argue the point of law and will rely on the Record of appeal already before the court.

(f) The amendments sought will enable all matters in dispute between the parties to be determined in this case and avoid multiplicity of proceedings;

(g) The delay in raising the point of law and in filing the Appellants’ reply brief was due to negligence or inadvertence of counsel.

In support of the application was an affidavit of six (6) main paragraphs deposed to by one Olanrewaju Lawal, a Litigation Assistant in the chambers of the appellants’ counsel – Mr. B.A.M. Fashanu, SAN. Attached to the said affidavit are thirteen (13) various documents marked Exhibits A, B, C, D, E, E1, F, F1, G, H, I, J and K.

The Respondents in opposing the application filed a counter affidavit of seven (7) paragraphs to which Chief Saturday Balogun Ilosu deposed. He is said to be a principal member of the Eleso Chieftaincy family of Ijanikin. Attached to the said counter affidavit are three (3) documents marked as Exhibits A, B and C respectively.

In moving the application, learned senior counsel to the applicants referred to the processes filed by them, in particular, the prayers sought, the grounds for seeking the reliefs and the affidavit in support. Learned senior counsel laid emphasis on grounds (a) and (b) of the grounds of the application which are on lack of jurisdiction of the lower court in allowing the plaintiffs/respondents to amend their statement of claim. He referred to paragraph 4 of the affidavit in support, in particular, sub paragraphs 4(iv) to 4(ix). He submitted that the point being raised does not require any further evidence. He concluded that everything is based on the processes already filed by both parties in court, and finally urged the court to grant the application.

In opposing the application, Mr. Wodu, of counsel for the respondents referred to their counter affidavit of seven (7) paragraphs. He relied on all the paragraphs and the annexed Exhibits. He submitted that the issue being raised by the applicants does not raise substantial issue of law. He relied on the following cases – Alao vs. UniIlorin (2008) 1 NWLR (pt 1069) 421 at 450; Osakwe Vs. Federal College of Education Asaba (2010) 10 NWLR (pt 1201) 1 at 29 and 34. Learned counsel submitted that there is no basis for the procedure being adopted by the appellants.

In the consideration of this application, learned counsel contended that the applicants’ conduct is very important. He contended further that, the appellants/applicants, after they filed their Notice of Appeal went to sleep and abandoned the appeal for over three years. But they only woke up when the respondents filed their application for an order striking out the appeal for want of diligent prosecution.

Further still, the learned counsel referred to the proceedings of the 27th April, 2010 on the matter, when this court awarded costs of N30,000 in favour of the respondents against the appellants but the said cost has not been paid up till the time the application was argued. He submitted that the applicants’ conduct is not favourable to the exercise of the court’s discretion in their favour. Learned counsel submitted further that the grant of this application will make it the 3rd brief of argument being filed by the appellants. He contended that the hearing of the appeal had been stalled by the application. He submitted that the respondent will be overreached by the grant of the application. He urged the court to refuse the application.

There is no doubt as clearly stated in the first prayer of this application, that the issue being sought to be raised before this court for the first time is a point of law. This is said to be contained in grounds 15, 16, 17,18 and 19 of the proposed further amended Notice of Appeal attached to the supporting affidavit and marked as Exhibit I. The point is said to concern lack of jurisdiction of the lower court to entertain the plaintiffs/respondents’ case or incompetence of their pleadings.

The said grounds read thus:

“15. The court of Appeal had no jurisdiction to consider and or grant the reliefs claimed by the plaintiffs/respondents in their Writ of summons or Amended Writ of Summons.

PARTICULARS

(a) The plaintiffs/respondents did not plead any relief or remedy in their Statement of Claim as amended but claimed”…….as per the Writ of Summons”.

(b) Being fundamentally against the applicable mandatory Rules of Procedure requiring that the reliefs be specifically stated in the Statement of Claim, the plaintiffs/respondents had abandoned the reliefs in their Writ of summons.

(c) The Amended Statement of Claim superseded the Writ of summons and is naked of reliefs.

(d) There is no claim upon which the Lower Court could adjudicate or grant the reliefs in the Judgment given in the plaintiffs/respondents’ favour.

16. The Court of Appeal erred in law in allowing the appeal of the plaintiffs/respondents and granting the claims endorsed in the Amended Writ of summons.

PARTICULARS

a) The claims endorsed in the Amended Writ of Summons are rendered invalid by the Amended Statement of Claim.

b) The relief claimed at the foot of the Statement of Claim and the Amended Statement of Claim is “…WHEREOF the Plaintiffs claim against the Defendants as per the Writ of summons.”

c) It is mandatory under the applicable High Court of Lagos State (Civil Procedure) Rules to state specifically the reliefs claimed in the Statement of Claim.

d) The Statement of Claim not having complied with the said mandatory Rules of procedure, being a process that supersedes the Writ of Summons, the plaintiffs/respondents had abandoned their reliefs claimed in the Writ of summons or Amended Writ of Summons.

17. The Judgment is wrong in law in that the Writ of Summons and Statement of Claim being fundamentally defective, ought to be struck out along with all evidence proffered upon it by the plaintiffs/respondents.

PARTICULARS

(a) The amended Statement of Claim contrary to the mandatory provisions of the applicable High Court of Lagos State (Civil procedure) Rules, does not include the reliefs claimed by the plaintiffs/respondents but only concludes with “….the Plaintiffs claim against the Defendants as per the Writ of Summons.”

(b) This amounts to an abandonment of the reliefs in the Writ of summons or Amended Writ of Summons.

(c) The Amended Statement of Claim, being defective, cannot sustain the plaintiffs/respondents’ suit and ought to be struck out.

(d) Concomitantly, all evidence adduced for the plaintiffs/respondents is incompetent and ought to be struck out.

18. The Court of Appeal erred in law when it held:-

“In the final result of my above consideration of the main appeal and my resolution of the 1st and 2nd issues thereof in favour of the appellants, their appeal has succeeded and should be allowed. It is accordingly hereby allowed. The judgment of the trial court dated the 21st June, 2004 is hereby set aside. In its place, I hereby enter judgment in favour of the said appellants as per their claims in the endorsed amended writ of summons as follows:-

(i) That claim for declaration that the 1st appellant being the family head and other principal members of Eleso Chieftaincy family of Ijanikin, Lagos State are entitled to manage, superintend or otherwise, deal with the landed property of Eleso family including the disputed land for themselves and the principal members of Eleso family in trust for the entire members of Eleso Chieftaincy family of Ijanikin succeeds and is hereby granted.

(ii) Their claim for an order of perpetual injunction restraining the respondents, their agents, servants, workmen and privies from disturbing the family Head and principal members of Eleso family of Ijanikin from the management and control of the family land including the disputed land also succeeds and is hereby granted.

(iii) Their claim for perpetual injunction restraining the respondents, their servants, workmen and privies from committing further acts of trespass including the excavation of sand and interference with the rights and interests of the appellants purchasers and the Ilosu branch of the family to whom grants are made also succeeds and is hereby granted.

(iv) Their claim for damages for the various acts of trespass committed by the respondents on the disputed land also succeed and they are hereby awarded the sum of N50,000.00 (fifty thousand Naira only) as general damages against the respondents for the later (sic) acts of trespass committed on the appellants land.

The respondents cross appeal is without merit and is accordingly hereby dismissed. So also is their counter claim at the lower court. I assess the costs of this appeal at N10,000.00 (Ten thousand Naira only) which, I hereby award in favour of the appellants and against the respondents.”

PARTICULARS

(a) The plaintiffs/respondents, having abandoned the reliefs in the Amended Writ of summons in their Amended Statement of Claim, the Amended Statement of Claim was irreparably defective.

(b) There being no reliefs to base the plaintiffs/respondents suit on, the Amended Writ of summons, Amended Statement of Claim and the plaintiffs/respondents’ suit are naked and ought to be struck out.

(c) The Lower Court had no jurisdiction to base its judgment on the Amended Writ of Summons of the plaintiffs/respondents which had been abandoned.

(d) The evidence given for the plaintiffs/respondents and the findings of the lower court being based on the naked Amended Statement of Claim ought to be struck out.

19. The Lower Court erred in law in not affirming the judgment of the High Court granting the defendants’ Counter claim for damages for trespass and injunction when.

(a) the plaintiffs/respondents have no defence to the defendants’ Counter claim upon the pleadings.

(b) The plaintiffs/respondents in the main, adopted their Statement of Claim in defence to the Counterclaim.

(c) the Statement of Claim, being defective and naked, ought to be struck out or ignored.

(d) evidence given in aid of the Statement of Claim is non asequitur and ought to be struck out.

(e) thereupon, the Judgment of the lower court setting aside the judgment of the trial court ought to be vacated.”

In the supporting affidavit of Olarenwaju Lawal, the applicants relied on all paragraphs, in particular, sub-paragraphs 4(iv) to 4(ix) that read thus:

“4. I am informed by Mr. B.A.M. Fashanu, SAN of counsel to the appellants herein in Chambers on 31/7/2013 at 3.00p.m. and I verily believe that:

(iv) On 30/8/2013, he got the supply of all back-copies of the Nigerian Weekly Law Reports from July, 2012 till date and, while reading part 1306 thereof, he came across the decision of this Court in Stowe & Anor. V. Benstowe & Anor. Delivered in 2012 and reported at pages 450 to 474 thereof in which this Court determined that a plaintiff who does not conclude his Statement of Claim by stating specifically the reliefs claimed by him has abandoned the reliefs claimed in the Writ of Summons;

(v) not being the counsel who appeared for the defendants/appellants herein at the High Court and Court of Appeal, he immediately checked the Record of Appeal in this appeal and discovered that both the original Statement of Claim (at pages 31 – 32 of the Record) and the amended Statement of Claim (at pages 59 – 61 of the Record) of the plaintiffs/respondents did not state the reliefs the plaintiffs/respondents claimed; true copes of the plaintiffs/respondents, original Writ of Summons and Statement of Claim are herewith attached marked Exhibits “E” and “E1” respectively, while true copies of the Amended Writ of Summons and Amended Statement of Claim are herewith attached and marked Exhibits “F” and “F1” respectively;

(vi) the defendants/appellants filed a Counter-Claim along with their Statement of Defence (at pages 62 – 82 of the Record) a true copy of the Amended Statement of Defence And Counter-Claim is herewith attached marked Exhibit “G”;

(vii) the plaintiffs/respondents, in their Reply and Defence to the Counter-claim (at pages 51 – 56 of the Record) adopted, in the main, the Statement of Claim as defence to the Counterclaim; a true copy of the Reply and Defence to Counter-claim is herewith attached and marked Exhibit “H’;

(vii) he, immediately, formulated 5 additional grounds of appeal, with respect to the plaintiffs/respondents’ abandonment of the reliefs in the Writ of Summons which are listed as Ground Nos. 14 to 19 duly underlined in the proposed Further Amended Notice of Appeal attached herewith and marked Exhibit “I” which he has taken the liberty to separately file herewith as the “Further amended Notice of Appeal”;

(ix) when the Judgment of the High Court and the Court of Appeal were delivered in this case in 2004 and 2007, respectively, the said Judgment of this Court in Stowe Vs. Benstowe had not been delivered and, at that time, there were conflicting Judgments of the Supreme Court on the point;”

As I stated earlier, the Respondents were opposed to this application and they filed counter affidavit so to do. But their objection was mainly based on the fact that the appellants had not been diligent enough in the prosecution of their appeal. And that they had had more than one application to amend their brief of argument. Therefore, they contended that the grant of this application will truncate the hearing of the appeal which had been fixed for hearing. They further contended that they are to be overreached if the application is granted.

Generally, this Court will not allow or permit a party to raise a fresh issue or question which was not raised in the Court below or grant leave to a party to argue fresh grounds which were not canvassed in the Court below. The exception being a situation where the new or fresh grounds involve substantial points of law, substantive or procedural which need to be allowed in order to prevent an obvious miscarriage of justice and ensure that substantial justice is seen to be manifestly done in the matter. Notwithstanding, the record must show the evidence already adduced by the party who is relying on the new issue being raised. See; Obi Eze Vs. A.G. Rivers State & 1 Or. (2001) 8 NSCQR 537; (2001) 18 NWLR (Pt.746) 524; Owners, M. V. Gongola Hope & Anor Smurfit Vs. SC cases Nigeria Limited & Anor. (2007) 15 NWLR (pt 1056) 189; (2007) 12 SCM (Pt 1) 137; (2007) 6 SC (pt 11) 58. However, the court will normally allow a fresh issue to be raised and argued on appeal where the said issue is relevant and more importantly, where no further evidence will be necessary. All that an appellant is required to do is to seek and obtain leave of the appellate court to so raise the said fresh or new issue. Once this is done and the court is satisfied that in the best interest of justice leave should be granted, it shall be granted, without any further hesitation.

It is interesting to note that the respondents herein had in arguing against the appellants’ application contended that the appellants had earlier amended their brief and that the grant of this application will enable them file the third (3rd) amended brief of argument. This argument sounds funny indeed as there is no rule of this court, that I am aware of, that limits the number of times a party can bring an application to regularize the processes in court in particular, application to amend processes already filed, even when the matter is fixed for hearing. As long as the purpose of or reason for such an amendment is to ensure that the complaints of the appellants against the proceedings in question are laid and ventilated before the court. Indeed, the fact that brief of arguments have been filed and exchanged and the appeal is virtually ready or has been fixed for hearing will not prevent the court from exercising its undoubted discretion to allow an amendment both to the notice and grounds of appeal and the brief of argument. The important consideration must be that the amendment would serve the ends of justice and fairness, and the other party can be compensated by costs. see; First Bank of Nig. Plc. vs. May Medical clinics & Disagnostic centre Ltd (2001) 6 SCM 63; (2001) 9 NWLR (Pt.717) 28; Pharmatek Industrial Projects Ltd. vs Bayo Ojo (1996) 1 NWLR (pt.359) 337 at 338.

In otherwords, as long as an amendment being sought is not fraudulent, vexatious, or meant to overreach or merely annoy or embarrass the other Party, the court will always be inclined, in the best interest of justice and fairness to exercise its discretion in favour of the application to amend process already filed. In this case, the objection of the respondents is, to say the least unfounded and groundless. There is merit in the application which renders it grantable.

In the circumstance, the application succeeds and is hereby granted in the following terms:

(1) Leave is granted to the appellants to raise for the first time at the Supreme Court and be heard in this appeal, the points of law stated in grounds 15, 16, 17, 18 and 19 of the proposed further amended Notice of Appeal attached to this application marked Exhibit I as to lack of jurisdiction of the lower court to entertain the plaintiffs/respondents case or incompetence of their pleadings;

(2) The appellants are granted leave to further amend their Amended Notice of Appeal herein in terms of the document attached to the affidavit and marked as Exhibit I.

(3) Accordingly, the further Amended Notice of Appeal already filed is hereby deemed as properly filed and served today 20/12/2013.

(4) The appellants are granted leave to amend their brief of argument in terms of Exhibit J attached to the application.

(5) The said amended appellants’ Brief of argument already filed is hereby deemed as properly filed and served today 20/12/2013.

Since time within which the respondents have to file a consequential respondents amended brief of argument, if they so desire, starts to run today 20/12/2013, reliefs 6 and 7 of the application for an order extending time within which the appellants have to file their reply brief of argument and a deeming order are unnecessary. The Rule of Court on this point is very clear. It requires the appellant to file in the court and serve on the respondent a reply brief within four weeks after service of the brief of the respondent on him and that, except for good and sufficient cause shown by the appellant, his reply brief shall be filed and served at least three days before the date set down for the hearing of the appeal. See Order 6 Rule 3 of the Supreme Court Rules (as amended).

In effect, the two reliefs are liable to be struck out and are hereby struck out.

In the final analysis, as costs follow events, the respondents are entitled to costs of this application. Accordingly, there shall be costs of N30,000.00 against the appellants but in favour of the respondents.

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SC.272/2008