British Airways Plc V. Micheal Chukwuemeka Amadi (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGBLI NWODO, J.C.A.(Delivering the Lead Ruling)

The Appellant Applicant by motion on Notice filed on 15/05/09 prayed for the following reliefs:

1. AN ORDER granting leave to the Appellant/Applicant to raise and canvass the issue of jurisdiction for the first time before this Honourable Court.
2. AN ORDER deeming Ground 1 of the Appellant/Applicant’s Notice of Appeal dated July 16, 2007 as having properly raised the issue of jurisdiction before this Honorable Court for the first time.
3. AN ORDER granting leave to the appellant/applicant to amend its Notice of Appeal dated July 16, 2007 by deleting Ground 5 thereof and by amending Grounds I and 6 in the manner contained in the proposed Amended Notice of Appeal annexed to the affidavit in support of this motion on notice as exhibit EU2
4. AN ORDER granting leave to the appellant/applicant to adduce fresh evidence by oral examination or affidavit for the purpose of tendering documentary evidence in respect of its ground of appeal challenging the international territorial jurisdiction of the Federal High Court of Nigeria to have heard the suit that has led to this appeal
5. AN ORDER granting leave to appellant/applicant leave to amend its Statement of Defence by inserting the emboldened and underlined portions contained in the Proposed Amended Statement of Defence annexed to the affidavit in support of this motion and marked exhibit EU3 for the purpose of pleading documentary evidence mention in prayer 4.
6. AN ORDER deeming the Proposed Amended statement of Defence annexed herewith as exhibit EU3 as duly filed and served, filing fees having been paid
7. SUCH FURTHER orders as this Honourable Court may deem fit to grant in the circumstances.

In support of the application is an affidavit of twenty five (25) paragraphs deposed to by Elizabeth Ukoh a legal practitioner. Exhibited to the affidavit are Exhibit EU1, the Notice of Appeal Exhibit EU2, the proposed Amended Notice of Appeal and the proposed amended statement of defence. There is also an affidavit titled further and better affidavit exhibiting Exhibit JOI and the Memorandum and Article of Association. On the directive of this Court on the 23rd of March 2010 to file written arguments in respect of the application, the learned counsel filed and exchanged written addresses. At the hearing of the motion on Notice on 08/02/2011, learned counsel to the appellant/applicant Mr. J.M.M Majiyagbe adopted the applicant’s written address filed on the 31/03/2010 and reply on points of law filed on 06/07/10. The learned counsel to the respondents adopted the respondent’s written address filed on 14/04/2010.

The learned counsel for the appellant/applicant Mr. Majiyagbe in his written address argued that based on the decision in SPDC v. Adamkue (2003) 11 NWLR (pt.832) CA 533 where the Court of Appeal held that leave need not be sought to raise the issue of jurisdiction at the court of appeal for the first time, the applicant can arguably proceed to argue the point of jurisdiction without leave. It is his contention that since there is a decision of the same court of Appeal in International Offshore Construction Limited v. Shoreline Lifeboats Nigeria Limited (2003) 16 NWLR (Pt.845) CA 157 which held an applicant is required to seek leave before raising the issue of jurisdiction they have sought leave for the avoidance of doubt.

It is his submission that the appellant’s prayer ought to be granted because they deal with the fundamental issue of jurisdiction. He cited:

Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) Pg 463 SC. it is his further contention that assuming without conceding that it was wrong for the appellant to raise the issue without seeking leave as it has done, the fundamental nature of the issue provides a strong argument for the deeming prayer to be granted. In respect of prayer 4 which is seeking leave to adduce fresh evidence, learned counsel referred to order 4 rule 2 of the Court of Appeal Rules 2007. He contends that the Supreme Court has held that a party should be allowed to adduce fresh evidence if it will in fact support a jurisdictional challenge. He however did not cite that Supreme Court decision. Learned counsel referred to Gazu v. Nyam (1998) 2 NWLR (Pt.538 CA 477 where the court listed 3 conditions which must be satisfied before the Court of Appeal will allow fresh evidence at the stage of appeal. It is his submission that the applicants’ failure to tender the company document at the court below need not affect the application if two condition sets out in the case of Gazu v. Nyam (Supra) are satisfied. He cited: Nwanizie v. Idris (1993) 3 NWLR (Pt. 279) SC 1. Learned counsel relying on the decisions in Nwanezie v. Idris (Supra) and Gazu v. Nyam (Supra) submitted that seeking to adduce fresh evidence at the Court of Appeal despite the fact that the same evidence is available at trial can be granted in circumstances where jurisdiction is being challenged and the fresh evidence decisive.

It is his contention that the fresh evidence it seeks to adduce will assist the court in its eventual deliberation, in view of the criteria set out under Article 28 of the Warsaw convention on international jurisdiction.

Learned counsel submits that the company document they seek to adduce will prove that it’s headquarter and the place it does real business is in the United Kingdom. He argued that the appellant also wishes to adduce evidence to show that its directors are resident in and conduct their meetings in the United Kingdom not Nigeria. He contends that all the fresh evidence will raise prima facia case on the propriety of the court below assuming jurisdiction over the matter.

It is his further contention that where leave is granted to adduce fresh evidence at the Court of Appeal, such evidence will not be admitted unless the applicant has amended his pleadings in support of the same. He cited: Yusuf v. Union Bank of Nigeria limited (1996) 6 NWLR (Pt.457 SC 632 Adeleke v. Asesifa (1990) 3 NWLR (pt. 136) SC 94.

It is learned counsel’s further submission that if court grants the prayer for fresh evidence to be adduced, the prayer for amendment of statement of Defence ought to be granted. He referred to order 4(1) of the Court of Appeal Rules 2007 . Learned counsel further contended that the appellant seeks to amend the Notice of Appeal not by adducing fresh ground of Appeal but by adding further particulars and certain phrases that will clarify the grounds of Appeal already before the court. He cited: First Bank of Nigeria Plc. v. Medicals Clinics (2001) 9 NWLR (Pt.717) SC 28 at Pg.44.

Learned counsel for the respondent Akin Akintan in his written address opposed prayers 4 to 6 on the motion on Notice. He stated that they elected not to file a counter affidavit. He formulated a sole issue for determination, which is whether the appellant/applicant has furnished adequate extenuating circumstances to warrant a grant of prayers 4 to 6 of the application.

Learned counsel submits that it is firmly settled that a court of law will not ordinarily allow a party on appeal to raise a question which was not raised in the trial court or readily grant leave to a party to argue new grounds not canvassed in the lower court, he cited: Fadiora y. Gbadebo (1978) 3 SC 219. Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at 211; I.M.N v. Peeofor Ind. Ltd (2005) 15 NWLR (Pt. 947) 1 at 19; Babalola v. Sunday (2009) 3NWLR (Pt.1128) 414 at 449.

He referred to the provision under order 4 Rule 2 of the Court of Appeal Rules 2007. He contends that a careful look at the affidavit in support of the application and Exh EU3 reveals that the amendment and further evidence on appeal being sought is to tender evidence to show that the contract was entered outside Nigeria and that appellant does not have its principle place of business in this country. He contends that these are facts which occurred prior to the commencement of the suit and not after the date of trial and the application ought to be dismissed. He cited: Okoro v. Eebuoh (2006) 15 NWLR (Pt.1001) 1 at 22 – 23.

Learned counsel referred to paragraph 18 of the affidavit where Appellant/applicant averred that the reason for bringing the application belatedly is because counsel that handled the case at the trial court did not avert his mind to the issue at the lower court. It is his submission that a decision or omission by counsel not to call a particular piece of evidence is a distinct exercise of legal right and never a mistake. He cited: Mobil Prod (Nig) United v. Monokpo (2003) 18 NWLR (Pt.852) 346 at 406; Akanbi v. Alao (1989) 3 NWLR (Pt.108) 118. Peterside v. I.M.B (Nig) Ltd. (1993) 2 NWLR (pt. 278) 712; The Vessel M. V. Lupex (1993) 2 NWLR (Pt. 284) 670 at 685 and UBA Plc v. B.T.L Ltd. (2005) 10 NWLR (Pt. 933) 356 at 371.