Alhaji M. C. Dahiru and Anor V. Alhaji Bubakare Kamale (2000)
LawGlobal-Hub Lead Judgment Report
MANGAJI, J.C.A.
With the leave of this court granted on 16th March, 1997, the applicants herein appealed against the judgment of the Adamawa State High Court in suit No. ADSY/39/94 (Coram: J.D. Gwam J.) in which the respondent as plaintiff got judgment in his favour wherein the applicants felt aggrieved. Having granted the applicants leave aforesaid, they filed a notice and grounds of appeal containing 9 grounds within time. Parties, by their counsel and in compliance with the rules of this court also filed their respective briefs of argument. However, it was not until each sought for and was granted leave to so file the brief out of time. On 11th November, 1999 the applicants filed the application under consideration seeking for the following orders:-
1. “An order granting leave to the appellants/applicants to amend their notice and grounds of appeal.
2. To deem the amended notice and grounds of appeal annexed hereto as duly filed and served.
3. An order granting leave to the appellant to raise and argue a fresh issue to wit.
‘Whether having received a part payment of N600,000.00 the respondent’s remedy was to sue for the balance if any or nullification of the contract of sale.’
4. An order granting leave to the appellants/applicants to amend the appellant’s brief of argument.”
In support of the application is a 22-paragraph affidavit and two exhibits being the original notice and grounds of appeal and the amended notice and grounds of appeal respectively. The respondent also filed a counter-affidavit of seven paragraphs sworn to by one Jimoh A. Mamman in opposition.
It is apt for me at this point to recapitulate the salient facts of the case which culminated in the filing of the motion on notice now under consideration. The respondent as plaintiff at the court below on 31/5/94 took out a writ of summons against the appellants/applicants (as defendants). The writ, which was accompanied by a statement of claim sought for the following orders:-
(a) “A declaration that no valid contract has been reached to sell the plaintiff’s property to the 1st defendant.
(b) A declaration that any transaction purporting to transfer title to the property by the plaintiff or anybody to the defendant is illegal, null and void as the same offends the Land Use Decree, the consent of the Military Governor not having been first had and obtained.
(c) A declaration that the 1st defendant has no title to the said property but only entitled to the refund of the sum of six hundred thousand naira paid the plaintiff.
(d) An order compelling the defendants to immediately surrender all the documents of title of the plaintiff to the plaintiff.
(e) The sum of four hundred thousand naira jointly and severally against the defendants for trespass into the plaintiff’s house at Mallamre Ward in Jimeta- Yola.
(f) An order of perpetual injunction against the defendants from interfering with the plaintiff’s title to the property at Mallamre ward covered by Statutory Certificate of Occupancy No. GS/6706.”
The two defendants filed separate statements of defence each containing a counter-claim. The 1st defendant, in his counter-claim sought for the following orders:.
1. “An order of specific performance compelling the plaintiff to complete his contract of sale of the property in dispute to the 1st defendant who has substantially altered his position pursuant to the contract.
2. A declaration that the plaintiff cannot approbate and reprobate.
3. A declaration that the 1st defendant is the holder of the certificate of occupancy No. GS/6706 in equity and has possession and title to the said property.
4. A declaration that the plaintiff after fully effecting the transfer of title to the 1st defendant is entitled to only N50,000.00 balance of his contract sum.
5. An order of perpetual injunction restraining the plaintiff from interfering with the 1st defendant’s title to the property covered by Certificate of Occupancy No. GS/6706.
6. The sum of One Million Naira (N1,000,000.00), General damages against the plaintiff for breach of contract.”
On his part, the 2nd defendant prayed for the following orders in his counter-claim:-
(1) “An order of specific performance compelling the plaintiff to conclude his transaction with the 1st defendant as agreed by the parties thereto.
(2) A declaration that the 2nd defendant is entitled to 5% of the purchase price of N650,000.00 as his commission expressly agreed upon with the plaintiff which is N32,500.00.
(3) The sum of N300,000.00 general damages against the plaintiff for breach of contract.”
Behind the controversy is a house of five bedrooms and a Boys’ quarters covered by the Certificate of Occupancy No. GS/6706 situate at Mallamre Ward (Masakare layout) Jimeta- Yola in Adamawa State. The plaintiff, through the 2nd defendant sold the said house to the 1st defendant at the cost of N800,000.00 (Eight hundred thousand naira). A part-payment of N600,000.00 was given to the plaintiff who in response released to the 1st defendant all the documents of title to the house. At a later date, the 1st defendant sent a letter to the plaintiff enclosing therein a cheque of the value of N50,000.00 and some conditions to be fulfilled by the plaintiff in order that title to the house would pass to him. He minced no words in pointing out that the agreed consideration for the sale of the house was N650,000.00
In reaction, the plaintiff wrote to point out that he sold his said house for N800,000.00 and not N650,000.00. The controversy raged on involving prominent sons of Yola and the house in issue became a battle ground for control and possession between the plaintiff and the 1st defendant. In the course of the controversy, the plaintiff after lodging a complaint with the police took out a writ of summons. Pleadings were ordered, settled, filed and exchanged and the matter went to trial. At the end of the trial, judgment was delivered and the plaintiff was successful. As a synopsis the learned trial Judge found that there was no valid contract reached between the parties for the sale of the house. He equally declared any purported attempt at transfering title as illegal, null and void since “the consent of the Military Governor” was not “first had and obtained.” He therefore ordered for the refund of the N600,000.00 earlier advanced to the plaintiff as well as the return of the latter’s documents of title. It is against these findings that the defendants felt aggrieved and as a result of which they filed the present appeal. I shall henceforth refer to the defendants as appellants/applicants and the plaintiff as respondent accordingly.
All along and upto the point of lodging the present appeal as well as filing briefs of argument, the appellants/applicants were represented by J.D. Moze Esq. of counsel. But of late they debriefed the said J.D. Moze and engaged the law firm of G. Ofodile Okafor & Company. It is Mr. G. Ofodile Okafor (SAN) the principal partner of the newly engaged law firm that advised the appellants/applicants to amend the notice and grounds of appeal originally filed by J. D. Moze, “to enable the court determine the real question in controversy.” It is this application which I earlier on reproduced that calls for the consideration of this court now. But because the application has become contentious, it is necessary in my view to give the above background prolix though it may appear.
Be that as it may, when the application was called for oral argument on 5th October, 2000, Mr. Ofodile Okafor (SAN) abandoned the second prayer on his notice of motion namely the one which sought “to deem the amended notice and grounds of appeal annexed,” to the application, “as duly filed and served.” Having withdrawn the prayer, it is hereby accordingly struck out. Learned Senior Counsel placed reliance on the 22 paragraph supporting affidavit and the two exhibits thereto. He stressed that his law Firm took over the prosecution of the appeal from J.D. Moze Esq. of counsel and that he found it expedient to amend the notice and grounds of appeal originally filed.
Continuing, learned senior counsel pointed out that should his application succeed, there would be no need for the calling of fresh evidence since the evidence on record is sufficient and covers the fresh issue he desires to argue. He referred to A.G. Oyo State v. Fairlakes Hotel Ltd. (No.1) (1988) 5 NWLR (Pt.92) 1 at page 16 and 17 on the conditions for granting applications such as the one under consideration. Learned counsel reiterated that no new facts are called to aid in his application and that the following authorities are in his favour. These are Ikeanyi v. A.C.B. Ltd. (1997) 2 NWLR (Pt.489) 509 at 523 and Biyo v. Aku (1996) 1 NWLR (Pt.422) 1 at 31 to 32. He urged us to grant the application since as he contended, no injustice would be occasioned by its grant.
Mr. Umoh of counsel for the respondent vehemently opposed the application. He relied on the 7-paragraph counter-affidavit. Learned counsel made reference to paragraph 4 of the proposed amended notice and grounds of appeal and stressed that the relief sought in paragraph (b) thereto is one that was neither sought for nor canvassed at the court below. He further referred to paragraph 15 of the supporting affidavit in proof of his submission that the said relief (b) was never sought at the court below.
Continuing learned counsel submitted that apart from the fact that the relief sought was not one prayed for at the court below, the application under consideration incorporates no prayer seeking to amend the appellants/applicants’ respective counter-claim. He cited and relied on Igbe v. Eleki (2000) 10 NWLR (pt.674) 221 at 228: and submitted that in view of the above apparent defects, the proposed notice and grounds of appeal is rendered incompetent. He therefore urged us to dismiss the first prayer.
On the third prayer contained in the notice of motion, it is the submission of learned counsel that it introduces a new cause of action. He recalled that the appellants/applicants were consistent at the court below that they have paid the purchase price and that it would amount to a summersault for them in this court to pretend to advise the respondent on what his claim ought to have been in the court below. He maintained that the appellants/applicants have exhibited ambivalence by seeking a relief of specific performance when in their paragraph 15 of the supporting affidavit they averred to the inability of their former learned counsel to seek for that specific relief of part-payment. He finally urged that the application be dismissed as lacking in merit.
The contest in this application is whether the applicants should be granted leave to raise and argue a fresh point on appeal when such a point was not canvassed before the court below.
As a general rule an issue which has not been raised in the court below will not be entertained on appeal. The rationale of the principle is easy to discern. It is not the business of an appellate court to decide disputes by trying cases. That is an exclusive preserve of the trial court. The duty of an appellate court is to see whether trial courts have used correct procedure to arrive at the right decisions. Because the 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. See Skencollsult Nig. Ltd. v. Godwin Ukey (1981) 1 SC 6 at 18. As aptly stated by Lord Hudson in United Marketing Co. v. Kara (1963) 1 WLR 523 at 524:-
“Even if the facts were beyond dispute and no further investigation of fact were required, their Lordships would not readily allow a fresh point of law to be argued without the benefit of the judgments of the Judges in the court below.”
See also K.O. Mogaji & ors. v. Cadbury Nig. Ltd. & ors. (1985) 7 SC 59 at 91,(1985) 2 NWLR (Pt.7) 393.
Be that as it may, there are accepted special circumstances or conditions under which points of law not specifically canvassed at the trial court may be allowed to be raised for the first time on appeal. These special circumstances or conditions have been laid down in a plethora of decided cases including: Abinabina v. Enyimadu 12 WACA 171;Shonekan v. Smith (1964) 1 All NLR 168 at 173; Akpene v. Barclays Bank Nig. Ltd. & Anor. (1977) 1 SC 47; Samuel Fadiora & anor. v. Festus Gbadebo & Anor. (1978) 3 SC 219 at 248; Ejiofodomi v. Okonkwo (1982) 11 SC 74 at 93-94; Dweye v. Iyomahan (1983) 2 SCNLR 135 at 138; Niger Progress Ltd. v.NEL Corp. (1989) 3 NWLR (Pt.107) 68 at 100. The conditions that would justify granting leave to raise fresh point of law in the appellate court that was not raised at the trial court are:-
(a) The point of law raised must be substantial;
(b) No further evidence would be adduced which will affect the new point;
(c) The refusal to grant leave to argue the fresh point will occasion miscarriage of justice; or other exceptional circumstance: see Akpene v. Barclays Bank of Nig. (supra); Fadioro v. Gbadebo (supra); Nasco Mgt. Service Ltd. v. Amaku Transport Ltd. (1991) 1 NWLR (Pt.588) 576. It does however appear clear that the court will refuse to grant leave to raise fresh issue where the point sought to be raised for the first time introduces an entirely new case or line of defence different from the issues fought by the parties at the trial court. See Ejiofodomi v. Okonkwo cited supra.
The gravamen of the application at hand hinges on the third prayer. Even at the risk of repetition I shall reproduce it. Viz:-
“3 An order granting leave to the appellant (sic) to raise and argue a fresh issue to wit:-
Whether having received a part-payment of N600,000.00 the respondent’s remedy was to sue for the balance if any or nullification of the contract of sale …”
Learned Senior Advocate argued rather strenuously that the fresh issue he desires to canvass will entail no calling of fresh evidence and that it raises a substantial point of law. Mr. Umoh for the respondent submitted to the contrary. He is of the view that the point the appellants/applicants are seeking leave to argue introduces an entirely new cause of action. The respondent’s case in his statement of claim and the evidence he led before the court below is that there was no valid contract between him and the 1st appellant/applicant regarding the sale of his house because the consensus he reached with the appellants/applicants was that the house was sold for a consideration of N800,000.00 and in response to which he collected N600,OOO.00 from the 1st appellants/applicant. The case for the appellants/applicants was that there was a clear meeting of minds that the respondent had sold his house for the sum of N650,000.00. Parties fought their cases based on their respective stands above. The reliefs sought by the respondent before the court below which have been reproduced earlier on in this ruling contain no prayer for payment of balance of any money to make up for full and agreed consideration after part-payment was collected. Also in both the counter claim raised by the appellants/applicants (reproduced earlier on) the question of part-payment did not present itself and therefore the remedy for payment of balance was neither made an issue nor even prayed for. Thus the parties’ contentions were fought based on their conflicting understanding of what the purchase price was. Indeed as contended by the 1st appellant/applicant in paragraph 3 of his statement of defence and the evidence he led there is no balance remaining to be paid to the respondent by him since he had already paid the outstanding N50,000.00 through the 2nd applicant. Thus neither the reliefs sought by the respondent in his statement of claim nor the reliefs prayed for by the appellants/applicants have anything to do with part-payment or specific performance in the nature of paying balance of the price of the house. Therefore relief(b) contained in paragraph 4 of the proposed amended notice and grounds of appeal is a novel one alien to the issues raised tried and considered at the court below. The said relief(b) is couched thus:-
“(b) An order granting a decree of specific performance on the plaintiff to convey the property covered by C. of O. No. GS/6706 to 1st defendant.
That perhaps explains why the 1st appellant/applicant deposed in his paragraphs 9 and 15 of the supporting affidavit as follows:
“(9) That I am informed by our counsel G. Ofodile Okafor (SAN) whom I verily believe that there is need to raise new issues regarding the part-payment of N600,000.00 I paid to the respondent.”
“(15) That my former counsel settled my counter- claim and it was his duty to make the issue of part-payment a specific relief.”
If, as the 1st appellant/applicant himself said, the issue of part-payment made by him was not sought for as a specific relief before the Court below, it will only remain an old woman’s tale in this court, since this court cannot, indeed will not formulate reliefs for parties. Clearly therefore ground 6 which the appellants/applicants want to introduce finds no support in the reliefs sought before the court below either in the statement of claim or the two sets of statement of defence.
Given the state of things discussed above, it will be expressing the obvious to say that there is going to be a shift in the defence of the appellants/applicants if the new issue is allowed to be introduced in the main appeal. The reliefs sought before the court below either by the respondent or the appellant/applicants will also have to be amended to take care of the fresh issue. The dimension of that in my view obviously calls for fresh evidence since one of the parties must now shift grounds thus calling for further investigation at this stage. To do that will deprive this court of the benefit of the opinion of the court below and making it impossible to arrive at any conceivable relief. The corollary of what I have been saying is that to grant the appellants’/applicants’ leave to argue the fresh point will occasion miscarriage of justice. For the above reasons therefore, I find it impossible to grant prayer III contained in the notice of motion. It is hereby accordingly refused.
The first prayer in the notice of motion seeks:-
“An order granting leave to the appellants/applicants to amend their notice and grounds of appeal.
The fourth prayer on the other hand, seeks for “an order granting leave to the appellants/applicants to amend the appellants’ brief of argument.” These two prayers are predicated on the grant of the third prayer. The only ground of appeal sought to be introduced in the proposed amended notice and grounds of appeal is ground 6 (the fresh issue which has been refused). The dismissal of the relief seeking to introduce a fresh point on appeal has agdecidedly knocked out the bottom upon which prayer 1 and 4 hinged. They are in the circumstance rendered irrelevant. Their grant in my view will be a futile exercise. The 1st appellant/applicant himself deposed in paragraph 18 of the supporting affidavit thus:-
“18 That I am further informed by G. Ofodile Okafor (SAN) whom I verily believe that if the application to amend the notice and Grounds of Appeal is allowed, there is also the need to amend the appellant’s (sic) brief of argument.”
As I have said earlier on, the proposed amended notice and grounds of appeal only sought to introduce in its 6th ground of appeal a new issue. That issue has been refused. Therefore the original notice and grounds of appeal still subsists. Obviously therefore, the need has not arisen for the appellants’ brief of argument to be amended since the proposed amended notice and grounds of appeal to which it has been hinged has not been allowed. Consequently, both prayers must fail. They are accordingly refused.
The application lacks merit and is accordingly dismissed with costs of N2,000.00 in favour of the respondent.
Other Citations: (2000)LCN/0906(CA)