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

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.

  1. 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:

“(1) for extension of time within which to give notice that the court will be asked to depart from some of its decisions one of which is Shonekan v. Smith (1964) 1 All N.L.R. 168 as regards introducing new points not taken in the court below, and

(2) that the argument set out in exhibit “A” annexed hereto be deemed to be part of the Respondent’s Brief as required by Order 6 Rule 5(4) of the Supreme Court Rules, 1985, and for such further order or orders as this honourable court may deem fit to make in the circumstances.”

Arguments were taken on the application of counsel for the plaintiff i.e. the respondent in this appeal on 4th October, 1988. The plaintiff filed Briefs of Arguments in support of both applications. The defendants, the appellants in this appeal filed briefs in reply to the plaintiff’s briefs in support of its application. The arguments of counsel for the plaintiff in open court in support of its application are in line with his arguments in the plaintiff’s brief of arguments and they run thus.

Counsel recognised it that there is a long line of authorities of this court before the Constitution of the Federal Republic of Nigeria 1979 came into effect that this court in appropriate cases can allow points of law not taken in the court below to be taken in this court even for the first time. He listed the authorities as follows:-

(1) Mrs. Motunde Shonekan v. Mrs. Gladys Ayodele Smith (1964) 1 All N.L.R 168 at 173;

(2) Samson Ayoola & ors. v. David Ogunjinmi (1964) 1 All N.L.R. 188 at 190;

(3) Akpene v. Barclays Bank of Nigeria Limited & another (1977) 1 S.C. 47;

(4) Samuel Fadiora v. Festus Gbadebo (1978) 3 S.C. 219 at 247;

(5) Agnes Deborah Ejiofodomi v. H. C. Okonkwo (1982) 11 S.C. 74 at 75-76; 94; 116-117;

(6) Buraimoh Oloriode v. Simeon Oyebi (1984) 5 S.C. 1 at 28 & 29;

(7) Mabiaku Onotaire & ors. v. Binitie Onakpasa & ors (1984) 12 S.C. 19 at 28;

(8) I.P.D. Abaye v. Ikem Uche Ofili & anor. (1986)1 S.C. 231 at 234 and 235; and

(9) Amusa Oppoola Adio & anor. v. The State (1986) 4 S.C. 194 at 204-205.”

With particular reference to the case of Shonekan v. Smith (supra) Counsel referred to the judgment of the court by Ademola C.J.N. in the case at p.173:

“This ground of appeal is far reaching; it raises a point which was never brought up or argued in the court below. The respondent’s counsel did not object to its being argued as he did with success to three other grounds. It has been the practice of this court to disallow argument on a fresh issue which was not raised in the court below, except in a few cases. We are, however, of the opinion that in a matter of the interpretation of a document of this nature where no further evidence is required the rule must be relaxed. The question before us is the interpretation of the document- The Deed of Settlement. It is, in our view the duty of this court to give full interpretation to the portion of the document bearing on or relating to the issue before us whether at not the point was raised by counsel in the court below, provided further evidence not required.

And with particular reference to the case of Akpene v. Barclays Bank of Nigeria (supra) Counsel referred to the following passage from the judgment of the court by Obaseki, J.S.C. at page 47:-

“The general rule ADOPTED in this court is that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial court (Shonekan v. Smith (1964) All N.L.R. 168. 173) but where the question involves substantial point of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision of them, the court will allow the question to be raised and the points taken (Shonekan v. Smith (supra); Stool of Abinabina v. Chief Kojo Enyinadu (1953) A.C. 209) at 215) and prevent an obvious miscarriage of justice.”

Counsel also made reference in particular to the following passages from the judgment of this court in Fadiora v. Gbadebo (supra) by Idigbe, J.S.C. First at page 247:-

“However, the law is that where a point of law which has not been taken in the court below is put forward by an appellant for the first time in a Court of Appeal that court ought not to decide in his favour unless it is satisfied beyond doubt:-

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(a) that it has before it all the facts bearing on the new contention as completely as if it has been raised in the lower Court (i.e. court of first instance), and

(b) that no satisfactory explanation could have been given in the court below if it had been so raised (see Tasmania (Shipowners and Freight owners) v. Smith etc City of Corinth (Owners) 1890 App. Cases 223).”

Second at page 248:-

“The other point, however, for our consideration is that this court is a court of last resort and the rule of practice is that when a question of law is raised for the first time in a court of last resort it is generally not only competent but expedient in the interest of justice for the court to entertain the question [see Connecticut Fire Insurance Co. v. Kavanagh (1892) A.C. 473 P.C.]. This rule of practice however is subject to the qualification that the court of last resort may refuse to entertain the question of law sought to be raised for the first time if satisfied that the court below would have been in a more advantageous position to deal with the matter. [See Moola (M.E.) Sons Ltd. (Official Liquidator) v. Burjorjee (1932) 48 T.L.R. 279]”

As regards these decisions given before 30th September, 1979 Counsel submitted in the brief of arguments and in oral arguments as follows:”

The principle and practice contained in the above-mentioned four decisions of the Supreme Court which were, to use the expression of Obaseki, J.S.C.. ADOPTED presumably from English practice, and Commonwealth practice as shown in decisions of the English Court of Appeal, the House of Lords, and the Privy Council are no doubt founded on centuries of experience in judicial administration. There is everything to say for it up to and including the 30th September, 1979. It is submitted respectfully that after that date the principle becomes of doubtful applicability to the Supreme Court of Nigeria, having regard to the existence of the Court of Appeal from 1976.”

Counsel then referred to the decisions of this court as from 1st October, 1979 where the principles laid down in the earlier decisions of this court on the point at issue have been followed. The cases are:-

(1) Ejiofodomi v. Okonkwo (1982) 11 S.C. 74 at pages 96 and 116 where Aniagolu J.S.C. said:-

“I am in no doubt whatever that this court possesses unfettered discretion to allow or refuse to be argued a point of law on appeal, not raised in the court below and that in so far as one can call it a fetter, the only inhibition is that the discretion has to be exercised in accordance with principles and practice laid down by law and/or recognised by judicial precedents.”

………………

………………

Nothing in section 213 of the 1979 Constitution has the effect of affecting or in anyway abridging this discretion.”

At page 116 the learned Justice of the Supreme Court continued:-

“Having regard to all the foregoing, I cannot see that this court should now allow the appellant to jettison before this court the issue on which the parties fought their case all the way to the appeal court – an issue on which she lost all the way. To do so would amount in effect, to our allowing her to commence an entirely new case before this court. There must be in the public interest an end to litigation (interest republicae ut sit finis litium) and it is my own view that to allow this new issue under section 39 of the Land Use Act to be raised at this late stage, is not to further but to hinder that public interest.”

(2) Buraimoh Oloriode v. Samson Oyebi (1984) 5 S.C. 1 at 28, 29;

(3) Mabiaku Onotaire & Ors. v. Binetie Onokpasa (1984) 12 S.C. 19 at 218;

(4) Abaye v. Ofili & Anor (1986) 1 S.C. 231 at 234 and 235;

(5) Ketu v. Onikoro (1980) 10 S.C. 265 at 267; and

(6) Oyida v. Olichan (1985) 11 S.C. at 138.

As I have said it is counsel’s submission that section 213(1) of 1979 Constitution has made the practice in question now inapplicable.

Counsel referred then to:-

(1) Section 213(6) of the 1979 Constitution which says:-

“213(6) Any right of appeal to the Supreme Court from the decisions of the Federal Court of Appeal conferred by this section shall, subject to section 216 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Supreme Court.”;

(2) Section 216 of the 1979 Constitution which says:-

“216. Subject to the provisions of any Act of the National Assembly, the Chief Justice of Nigeria may make rules for regulating the practice and procedure of the Supreme Court.” and

(3) The Supreme Court Rules 1985, Order 6 rule 5(1) of which says:-

“……Equally, if he intends to apply in the course of the hearing for leave to introduce a new point not taken in the court below, this should be indicated in his brief.”

The Supreme Court Rules 1985 were made by the then Chief Justice of Nigeria pursuant to his powers in that behalf in section 216 of the 1979 Constitution.

It is the submission of counsel that the provisions of Order 6 Rule 5(1) of the Supreme Court rules 1985, if it is construed as an authority to permit, within the framework of the earlier decisions on the issue, a new point not taken in the court below to be taken in this court, will conflict with the provisions of S.213 of the 1979 Constitution in that it will thereby permit an appeal direct to the Supreme Court from the High Court or Federal High Court contrary to the provisions of section 213 which says:-

“213(1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Court of Appeal.”

Counsel says he is drawing support for this view of his from the following passage from the judgment of Oputa, J.S.C. in Amusa Upoola Adio & Anor. v. The State (1986) 4 S.C. 194 at 204:-

“This court is a creation of statute and its constitutional powers to hear appeals as conferred by section 213(1) of the 1979 Constitution is limited to hearing and determining appeals from the Federal Court of Appeal now the Court of Appeal. There is no jurisdiction in this court to hear appeal straight from the High Court. The Court below was not mentioned in any ground of appeal at all. In my view, this is a fundamental vice. The judgment appealed……against should be that of the court below. Also the grounds that were urged before us in the 4 additional grounds were grounds that were not urged in the court below.”

The answer of counsel for the appellants Mrs. B. A. Adebayo, Director of Legal Drafting and Ministerial Counsel Ministry of Justice Oyo State to the objection to her application to introduce new points not taken in the lower Court is stated as follows in her brief in reply to the brief in support of the objection:-

“This honourable Court has exercised the powers vested in it by the provisions of sections 213(1), 213(3) and 216 of the said Constitution. The Supreme Court therefore has jurisdiction to do as we are praying.

………………..

………………..

The provisions of the said Constitution and the Rules of Court are intended to serve the ends or interest of justice in cases such as this.”

I can now proceed to the consideration of the contentions of counsel before us. I should start with the point made by Mr. Molajo. S.A.N. that at the decisions of this court before 1st October, 1979 as to the rule of practice that a new point of law not taken in the court below may be raised for the first time in this court in certain well defined circumstances are now no longer valid because of the presence now of an intermediate Court of Appeal as from 1976. I take that to mean, in the case of appeals from High Courts, straight to the Supreme Court the decisions are valid because there was a one tier system of appeal, and that they cannot now be applicable in a situation where there is a two tier system i.e from the High Court to the Court of Appeal and from the latter to this court.

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Before Nigeria became a Republic in 1963 by various legislations in the form of Nigeria Appeals to Privy Council Order-in-Council right of appeal had been provided for from the judgment of the Old West African Court of Appeal and its successor, the Federal Supreme Court to the Privy Council England. So then there was a two tier system of appeal from the judgment of a High Court, the final court being the Privy Council, and the Federal Supreme Court, (the predecessor of this court) being the intermediate court of appeal. And as far back as 1953 the Privy Council had in the case of The Stool of Abinabina v. Chief Kojo Enyimadu 12 W.A.C.A. 171 at 173 said as regards new points sought to be taken for the first time in that court:-

“Mr. Dingle Foot, on their behalf, attacked the judgments of the West African Courts on two grounds:-

(1) That the trial Judge was wrong in holding that sufficient and frequent positive and numerous acts within living memory were necessary to establish title and, inferentially, that such title could not be supported by traditional evidence alone; and

(2) that the trial Judge was not justified in finding that the plaintiff was lying on the ground of discrepancies between his evidence at the trial in September, 1946 and evidence given (a) by him at the abortive trial in May, 1946, and (b) by his predecessor in title in the 1902 action.

Neither of these points was taken in the West African Courts. They could not, of course, have been taken before Jackson, J., since they only emerged from his judgment. They could have been taken before the West African Court of Appeal but their Lordships consider that as they involve substantial points of law, substantive or procedural, and it is plain that no further evidence could have been adduced which would affect the decision of them, the appellants should be allowed to raise them before this Board.”

The House of Lords is the Supreme Court of Appeal in Great Britain and Northern Ireland. And it is the practice there that it is open to a party to an appeal to that court to raise points of law which have not been raised in the courts below, but the House must be satisfied that it has before it all the facts bearing on the new contention as completely as would have been the case if the question had arisen at the trial. See North Staffordshire Nail Co. v. Edge (1920) A.C. 254. H.L. It was said in Sutherland v. Thomson (1906) A.C. 51 H. L. at page 55 per Lord Halsbury L.C. that the House of Lords should make such an order as ought to have been made originally.

It should be noted that as regards appeals from the High Court of Justice, England to the Court of Appeal England there is the practice in the latter court too that a new point not taken at the trial may be allowed to be presented there for the first time.

It is to be observed that the practice of the House of Lords England to allow a party to an appeal to the House of Lords to raise points of law which have not been raised in courts below is said to be derived from the appellate jurisdiction of the House under section 4 of the Appellate Jurisdiction Act 1876 (39) & 40 Viet. C.59 namely “to determine what of right and according to the law and custom of this realm (England) ought to be done in the subject-matter of the appeal.” And the decision in Sutherland v. Thomson (supra) epitomises this.

At this stage I will refer to section 22 of the Supreme Court of Nigeria Act 1960 which says:-

“22. The Supreme Court may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court or, in the case of an appeal from the High Court in its appellate jurisdiction, order the case to be reheard by a court of competent jurisdiction.”

It appears clear to me that the provisions of Section 22 of the Supreme Court of Nigeria Act, 1960 are wide enough to give the Supreme Court power to make such an order as ought to have made been made originally on the subject-matter of the appeal before it.

The conclusion I reach therefore is that the practice to allow points of law not taken in the courts below to be taken for the first time in the final court of appeal does not depend for its validity on whether there is a one tier system of appeal or there is a two tier system of appeal. Its validity will depend on whether or not, there is jurisdiction for the practice.

I have said that in England the House of Lords derives its jurisdiction for the practice from section 4 of the Appellate Jurisdiction Act 1976. I am satisfied that section 22 of the Supreme Court of Nigeria Act 1960 gives this court jurisdiction for this practice.

The question then is this:- Is Mr. Molajo, S.A.N. Counsel for the respondent right in his submission that the practice offends against Section 213 of the Constitution of the Federal Republic of Nigeria 1979 in that, if the practice is followed, this court will then be taking appeals from the judgment of the High Court, which Section 213 of the 1979 Constitution does not permit, and not from the judgment of the Court of Appeal, as envisaged by Section 213 of the 1979 Constitution.

The Supreme Court Rules 1985, Order 6 rule 5(1) of which as I have said earlier on, we are now concerned with, was made by the then Chief Justice of Nigeria in exercise of the powers conferred upon him by Section 216 of 1979 Constitution. I have no doubt that nothing done by the Chief Justice there must conflict with section 213 of the 1979 Constitution. If any provision of the 1985 Rules is in conflict with Section 213 of 1979 Constitution that provision will be null and void.

So, as I have just said, the question is this: Is Order 6 rule 5(1) in conflict with Section 213 of the 1979 Constitution

For ease of reference I produce again Order 6 rule 5(1) of the Rules of the Supreme Court 1985:-

“Equally, if he intends to apply in the course of the hearing for leave to introduce a new point not taken in the court below, this should be indicated in his brief”

Section 213 of the 1979 Constitution says:-

“213(1). The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Court of Appeal.

(2) An appeal shall lie from decision of the Court of Appeal to the Supreme Court as of right in the following cases-

(a) – (f) not necessary to state them.

(3) Subject to the provisions of sub-section (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.”

Section 227(1) of the 1979 Constitution defines the word “decision” as follows:-

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…’decision’ means, in relation to 3 court, any determination of that court and includes judgment. decree, order, conviction, sentence or recommendation.”

And in Ex p. Chinery 12 Q.B.D. 342 it is said that a “judgment” is the sentence of the law pronounced by the court upon the matter contained in the record. On the same point it is said that in a proper use of terms the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the court’s reason for judgment and thus form a precedent.

Having regard to the above authorities the judgment of the Court of Appeal in the case in hand 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 (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 respondents (plaintiffs) shall have the costs of this appeal and the cross-appeal which I assess at N450.00”

delivered by Nnaemeka-Agu, J.C.A. (as he then was) and in which Ademola and Kutigi, JJ.C.A. concurred. I have just stated the judgment of the Court of Appeal in this case. It is the appeal from this judgment no doubt which has to come to this court by virtue of Section 213 of the 1979 Constitution and the Notice of Appeal filed in this appeal in this court makes it abundantly clear that the defendants being dissatisfied with the decision of the Court of Appeal Lagos Division contained in the judgment of that court dated 11th December, 1984 do hereby appeal to the Supreme Court. So by that Notice of Appeal this court is sitting on appeal over the judgment of the Court of Appeal to which I have just referred.

The point now is whether by allowing the defendants to introduce in this court new points not taken in the Court of Appeal this court is thereby sitting on appeal direct from the judgment of the High Court. I have stated the judgment of the Court of Appeal with which this court is concerned. That judgment is not in isolation. The hack-drop of the judgment in order of sequence is as follows:-

the claim of the plaintiffs against the defendants;

the pleadings of both parties;

the evidence led in support of the pleadings;

the submissions of counsel at the trial Court;

the reasons for judgment by the trial Court and the judgment of the trial Court;

the grounds of appeal in the Court of Appeal;

the issues arising for determination from the briefs of arguments filed in the Court of Appeal;

the oral arguments of counsel in the Court of Appeal and the reasons for judgment given by the Court of Appeal.

It is after an examination of all these matters that this court will come to the conclusion whether the judgment of the Court of Appeal is right or otherwise.

The points at issue in this appeal which I have just stated above will inevitably relate to the submissions of Counsel at the trial Court and in the Court of Appeal. Since the new point now sought to be taken in this court was not taken in the Court of Appeal that point could not have received the consideration of the Court of Appeal.

It is, however, clear law that a client should not suffer because of a mistaken submission of a point of law by his counsel. See Doyle v. Olby the Times February 7, 1969. The corollary to this proposition of law is that a client should not suffer because of the failure of counsel to make a submission of a point of law which he ought to have made in the court below.

I have stated earlier on in this judgment the jurisdiction of this court for allowing a new point not taken in the court below to be taken here. If however the point of law was not taken either in the court below or at the trial court unless there is jurisdiction in the lower Court to allow a party to the appeal before it to take a new point not taken at the trial Court otherwise it might be said that this court if it allows the new point to be taken will be considering an appeal direct from the judgment of the trial Court since the new point could not have been taken at the court below.

However, this is not the case in this appeal for Section 16 of the Court of Appeal Act 1976 is identical with Section 22 of the Supreme Court of Nigeria Act 1960 which I have reproduced earlier on in this judgment. So, I am satisfied that there is jurisdiction in the Court of Appeal too to allow new points not taken at the trial Court to be taken in that court.

So in the final analysis this court by allowing new points to be introduced in this court even for the first time is only ensuring that the real question in controversy between the parties to the trial before it is determined on points which should properly have been taken in either of the lower Courts but were not taken there owing to some inadvertence on the part of counsel, and thereby prevent an obvious miscarriage of justice. In short this court is adjudicating on the judgment on appeal before it and is at the same time fully conscious of the claim, the pleadings and the evidence before it.

What is of paramount consideration in the application of the practice that new points not taken in the court below could be taken in this court is that no further evidence could have been adduced which could have affected the decision which this court would have to make on the point. For instance even though there is some evidence upon the matter the rule is that if a point was taken before the tribunal which hears evidence and evidence could have been adduced which by any possibility could prevent the point from succeeding it can not be taken otherwise. Ex. p. Firth, re Cow burn (1882) 19 Ch.D.419, C.A. per Jessel M.R. at p.429.

Even the undisputed rule that a point as to jurisdiction may be taken at any stage is subject to the proviso that the facts upon which the decision on the issue of jurisdiction will be made are before the court. See Norwich Corporation v. Norwich Electric Tramsways Co. Ltd. (1906) 2 K.B. 129; Westminster Bank Ltd. v. Edwards, (1942) A.C. 529.

And in the exercise of its discretion in the application of this rule of practice the appellate court has debarred an appellant from arguing a case totally inconsistent with or contradictory to the case previously argued (esp. Reddish, re Walten (1877) 5 Ch. D. 882) or from raising a different case on appeal Wilson v. United Country’s Bank (1920) A.C. 120.

The conclusion I reach therefore is that I cannot find anything in the rule of practice I have been considering which is in conflict with the provisions of Section 213 of the Constitution of the Federal Republic of Nigeria 1979. I am not at all persuaded that this court by Order 6 rule 5(1) of the Supreme Court Rules 1985 which in essence gives this court discretion to allow new points not taken in the court below to be taken in this court even for the first time is thereby taking an appeal direct from the judgment of the trial Court.

I am satisfied that the rule is designed to aid this court in coming to a conclusion as to whether the decision of the court below is right, or otherwise, having regard to the printed evidence and all other material in the case.

In sum I overrule the objection of Mr. Molajo, S.A.N. Counsel for the Respondent to the application before us for leave to argue points not raised in the court below.


SC.169/1986(R)

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