Attorney-general Of Oyo State & Anor V. Fairlakes Hotel Limited (1988)

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ABDUL GANIYU OLATUNJI AGBAJE, J.S.C. 

The Ruling in this case relates to a constitutional point of law taken by Counsel for the Respondent Mr. E. A. Molajo S.A.N.

The constitutional point has to do with the application to us by way of motion on notice, pursuant to Order 6 Rule 1 of the Supreme Court Rules 1985, by the appellants in this appeal for an order granting them leave to introduce new points which were not taken in the court below in this appeal and to deem as filed all such arguments contained in the Defendants/Applicants’ Brief and Reply Brief.

Because of the short point of law involved, I do not think it is necessary for me to go in detail into the claim before the trial Court and the decisions of that court and of the Court of Appeal on the claim. It will suffice to say that the plaintiff, Fairlakes Hotels Limited, sued the defendants, the Registrar of Companies and two others in the Federal High Court for certain declaratory reliefs and for damages for breach of contract and won.

The judgment of the Federal High Court is as follows:-

“In conclusion, I find the 2nd and 3rd defendants jointly and severally liable to the plaintiff to the extent of the following damages claimed in the Particulars of Damages:

1. Item 1(a) – N10,800.00
2. Item 2(a) – N3,800.00
3. Item 2(b) – N1,900.00
4. Item 2(c) – N5,550.00
5. Item 3 – N24.391.00
6. General Damages – N65,000.00

As to the relief 1(b) in the claim. I have stated earlier the part the 2nd and 3rd defendants ought to play but failed to do in the Registration of New Oyo Hotels Limited and I cannot put it stronger than that. I found no evidence that the 2nd and 3rd defendants wanted to substitute any other person or Company for the plaintiff as financial partner but even if there is such an evidence. I believe that the plaintiff can he adequately compensated by award of damages. In the whole, I cannot grant the declaration sought in Claim 1(b).”

The defendants appealed against that judgment to the Court of Appeal, Lagos Division. The judgment of the Court of Appeal is as follows:-

“In the result, I dismiss the appeal by the appellants (2nd and 3rd defendants in the court below) against the judgment of Belgore, J. in Suit No. FRC/L/79/79. I hereby vary the award of damages by disallowing the award of N50,000.00 (with interest) as general damages but substituting an award of N1,913,800.00 as loss of profit. The appeal against the rejection of claim for consultancy fees is rejected.”

The defendants have now appealed against that judgment to this court. By Notice of Motion dated 10th February, 1984 Counsel for the 2nd and 3rd defendants i.e. Attorney-General of Oyo State and the Commissioner for Trade, Industries and Co-operative Oyo State sought leave of this court to introduce points which were not taken in the court below in this appeal. It is to this application that Counsel for the Plaintiff took the following objections:-

“NOTICE Pursuant to Order 6 Rules 5(1) and (4)

Supreme Court Rules, 1985.

TAKE NOTICE that this honourable court will be moved at the hearing of this appeal in pursuance of the notice given in paragraph 2 of the Respondent’s Brief OBJECTING to the appellants being given leave to argue any points not raised in the court below.

2. The grounds of this application are the provisions of Section 213(1) of the Constitution of the Federal Republic of Nigeria, 1979, argument in support of which is particularly set out in A Exhibit “A” attached hereto.”

And because there is a long line of the decisions of this court which conclude the points now sought to be taken by counsel for the plaintiff against him, Counsel has also made this further application by way of Motion of Notice to this court pursuant to Order 6 rule 1 Sub-Section 1 and 4 of the Rules of the Supreme Court 1985: