Fescum & Co. Ltd. V. Federal Airports Authority (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The appellant/applicant has applied by motion on notice dated 19th December, 2007 and filed on the 4th January, 2008, pursuant to Order 6 rules 4 and 15 and order 7 rule I of the Court of Appeal Rules 2007 (the rules), for the following reliefs:

1. “AN ORDER permitting the appellant/applicant to amend its original notice and grounds of appeal dated December, 22, 2004 which is attached to the affidavit in support as Exhibit FESCUM I as indicated in the proposed amended notice and grounds of appeal attached to the affidavit in support as exhibit FESCUM 2.
2. AN ORDER seeking leave of the Court of Appeal to raise and argue additional grounds of appeal.
3. AN ORDER seeking leave of the Court of Appeal to raise and canvass fresh issues that were not canvassed before the High Court to wit: that the relationship between the appellant/applicant and the respondent was contractual being that of Landlord and Tenant.
4. AN ORDER permitting the appellant/applicant to amend its original brief of argument dated 16th May, 2006.
5. SUCH FURTHER ORDER or orders as the Court of Appeal may deem fit to make in the circumstances of this case.”

At the hearing of the motion, the learned counsel for the respondent, who filed a notice of preliminary to the application, withdrew the said preliminary objection, which was thereupon struck out.

The application is necessitated by the appellant/applicant’s former counsel illness in the person of Mr. Akorede Lawal who has been replaced by Mr. Sikiru Akinrele, who after studying the processes filed by the former counsel discovered that:

a) “There is need to raise fresh issues on substantial point of law which was not canvassed before the Federal High Court in the course of the case to wit: that the relationship between the appellant/applicant and the respondent was contractual being that of landlord and tenant.

b) There is also need to amend the grounds of appeal already placed before the court and raise additional grounds of appeal in order to bring out all the salient issues that will aid justice in this matter.

c) There is need to seek the leave of the Court of Appeal to be able to do (a) and (b) above.

d) The effect of (a) and (b) above will necessitate the amendment of the original appellant’s brief of argument dated 16th May, 2006.

e) The grant of this application will not prejudice the respondent other than to enable the Court of Appeal arrive at a just and equitable decision.

f) The respondent reply to the earlier appellant’s brief is not yet before the court.”

The learned counsel for the appellant/applicant raised one single issue for determination as follows:

“Whether having regard to the facts and circumstances of this case, the appellant’s application ought to be granted.”

The appellant/applicant’s counsel however, argued each prayer separately as if it were an issue raised for determination. The learned counsel for the respondent raised a preliminary objection to the application, which was withdrawn at the hearing of the application and was accordingly struck out.

The respondent’s counsel, however, has not raised any issue for determination but apparently adopted the issue raised by the appellant/applicant.