Elf Oil Nigeria Limited V. Nigeria Oil Mills Limited (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A (Delivering the Leading Judgment)

The appellant/applicant has by motion on notice filed on 13th December, 2007 sought for an order granting it leave to raise and argue fresh issues, which were not raised at the court below, and to deem such fresh issues raised and argued in the appellant’s brief and reply brief as properly raised and argued.

The application is based on the following grounds:

I.”The evidence led in the proceedings before the arbitrator and the court below support the fresh issues and/or points that the appellant seeks to raise and argue, and the appellant will, therefore, not adduced fresh evidence;

II. The appellant only intends to expand or extend the issues and/or points it raised or argued at the arbitral proceedings and court below;

III. The appellant does not intend to raise or argue any case inconsistent with and/or contradictory to the case it argued or canvassed in the arbitral proceedings and court below; and has not done so in its appellant”s brief and reply brief already filed and served.”

The learned counsel for the appellant/applicant raised the following two issues for determination:

1) “Whether in the circumstances that the appellant seeks to expand or extend its arguments by raising fresh issues and/or points of law only, without raising any fresh issues and points of facts at all that necessitates adducing further and/or additional evidence, the appellant should be granted leave to raise the fresh issues and/or points of law?

2) Whether this Court of Appeal should deem as proper the already raised argued and canvassed fresh issues and/or points of law in the brief of argument of the parties?”

The two issues have been narrowed down to one singular issue by the respondent as follows:

“Whether new issues can be raised or grounds of appeal amended by the applicant without leave of court.”

In other words, the issue raised by both the appellant/applicant and respondent is whether the appellant/applicant has made out a good case to be entitled to raise the fresh issues as shown in the motion paper, for the first time on appeal and to deem the said issues already raised and argued in the appellant”s brief. The applicant relied on the three grounds as set out in the motion paper and the depositions in the supporting affidavit.

The learned counsel for the applicant argued that raising of fresh issues which are germane without leading further evidence shows that the applicant does not intend to raise any fresh issue or point of fact. He relied on OGBA VS ONWUZO (2005) 14 NWLR (pt. 945) 331 at 344 C-G; ATTORNEY GENERAL OYO STATE VS FAIRLAKES HOTEL LTD (1988) 5 NWLR (pt.92) 1; NEPA VS ADESAAJI (2002) 17 NWLR (pt. 797) 578 at 612 C-D.

The new issues to be raised, it was further argued, are premised on relevant case law and statutes like section 73 (1) (a), (b) and (c) of the Evidence Act. The applicant’s counsel said that the deposition in paragraph 4 of the supporting affidavit shows that the raising of fresh issues or points of law is necessitated by change of counsel. See BOWAJE VS ADEDIWURA (1976) 6 SC 143 at 147; IDRIS VS AUDU (2005) 1 NWLR (pt. 908) 612 at 632-633 paras H’97B. The applicant’s counsel submitted that the following two fold requirement for granting the application has been satisfied: