Helen Johnson Udo Vs The Registered Trustees Of The Brotherhood Of The Cross & Star (2013)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, JSC
The appellant by her motion dated 12th but filed on 16th day of July 2012 seeks for the following:- ‘a) AN ORDER granting leave to the Appellant/Applicant to file and PAGE| 2 argue 21 additional grounds of appeal i.e. by addition of Grounds 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 as contained in the SCHEDULE OF AMENDMENT attached to the affidavit in support as Exhibit ‘A’ here in. b) AN ORDER granting leave to the Appellant/Applicant to raise for the first time before this Honourable Court the issues raised in additional grounds 6, 11, 13 and 14 of the grounds of appeal c) AN ORDER granting leave to the appellant/applicant to amend the Original Notice of Appeal copied out or contained at pages 322 – 325 of the printed record by incorporating into same, the 21 additional grounds of appeal. d) AN ORDER DEEMING the AMENDED NOTICE OF APPEAL incorporating or encapsulating all the grounds i.e. grounds 1-25 already filed and served as having been duly filed and served. e) AN ORDER extending the time within which to file the Appellants Brief of Argument out of time. f) AN ORDER DEEMNG the Appellants Brief of Argument already filed and served as having been duly filed and served. The grounds upon which the application is predicated are inter alia the realization of the necessity to effect the amendments by learned appellant/applicant counsel on taking over applicants appeal from the counsel initially in the matter; raise jurisdictional issue and make bare facts on the basis of which the controversy between the parties would be justly and finally determined. Appellant/applicant has paid the necessary penalty required of her for all the reliefs being sought. The appellant/applicant particularly relies on paragraphs 5, 6, 7, 8 (a), (d), (e), (f) and PAGE| 3 (g), 9 (c), (d), (e) and (f), and 10 of the twelve paragraph affidavit in support of the her motion. Exhibit ‘A’ annexed to appellants motion is the schedule of amendment the applicant, on her being indulged, seeks to effect to her Notice of Appeal. It is pertinent to note appellant/applicants further desire to rely on the record of appeal and all such other processes so far filed in the appeal. The respondent relies particularly on paragraphs 5 (a), (b), (e) and (g), 6 (a), (b) and (f), 7 (i), (ii) and (iii), 8 (i), (ii), (iii), (vi) and (vii) and 9 of its counter-affidavit in opposition to item (b) in the motion paper. The averments in the respective affidavits of both sides supply the facts which sustain the submissions of their respective counsel for or against the reliefs being sought. The applicant before us seeks leave to file twenty one additional grounds of appeal which, if granted, the amended notice will contain a total of twenty five grounds. Learned respondent counsels opposition to applicants motion is limited to relief (b) therein by which she seeks the courts leave to raise the fresh issues in grounds 6, 11, 13, and 14 of the proposed additional grounds of Appeal. Otherwise, learned counsel concedes that applicant is entitled to and should be granted all the other reliefs on her motion paper. Learned senior applicants counsel Roland Otanu (SAN) is very terse in his submissions. He contends that grounds 6, 11, 13 and 14 of the additional grounds seek to raise issues of jurisdiction not previously raised at the lower court. Respondents action, it is argued, is wrongly commenced by originating summons instead of a writ on the pleadings. Furthermore, the issue of rent in respect of the properties of the respondent, by virtue of S251 of the 1999 Constitution as amended, does not fall within the vires of the Federal High Court. Respondents action, it is also submitted, is caught up by laches and acquiescence. Lastly, the action having been commenced outside five years allowed by the law is caught up by statute of limitation. The issue of jurisdiction, learned appellants counsel argues, is so fundamental and necessarily has to be addressed. Learned counsel urges that all the reliefs in their motion paper be granted. Responding, learned counsel submits that the issue of commencing their action by originating summons is a procedural one which if not being raised within reasonable time is deemed abandoned. Having acquiesced to the wrong procedure, the applicant cannot now complain on the lapse. Learned counsel supports his submission with the decision in PAGE| 4 SkenConsult V Uke (1981 NSCC 1 at 7. In further response, learned respondents counsel submits that this Court has in numerous cases decided that under 251 (1) (e) of the 1999 Constitution the trial Federal High Court has, to the exclusion of all others, the jurisdiction to hear and determine actions pertaining the management and administration of companies. The principal relief the respondent seeks in the action, on which all the ancillary ones squarely rest, is on the issue of the management and administration of the respondent. Again, submits learned counsel, the applicant cannot be heard to say otherwise at this stage. Ground 11 in particular, learned respondents counsel contends, does not raise a fresh issue. The same issue had been raised at the lower court under ground 7 of applicants Notice of Appeal in that court. The flash point under the ground, the certificate of Registration, given the procedure by which the action was commenced, is being excluded from being raised now by virtue of S83 (3) of the Evidence Act. Lastly, whether or not an action is caught up by limitation law depends on when the cause of action arose and when the suit seeking remedy therto commenced. Time begins to run against the plaintiff, submits respondents counsel, from the time the plaintiff becomes aware of the act on the basis of which he sues. Learned counsel refers to page 7 of the record which contains paragraphs 9 of the Respondents originating summons and submits that evidence is lacking on the basis of which this Court can resolve such an issue. It is for that reason that the applicant camiot be allowed to raise the fresh issues she seeks to by virtue of the 13th & 14th additional ground. Learned counsel relies on Garba V Omokhodien (2011) ALL FWLR (part 596) 404 at 424 and urges that the unmeritorious application be dismissed. Replying on points of law, learned applicants counsel while conceding that by S251 (1) of the 1999 Constitution it is the Federal High Court that has jurisdiction in respect of the administration and management of companies, the issue in controversy in the instant case pertains a private property. The matter, for that reason, is outside the jurisdiction of the Federal High Court. He maintains that the application has merit and pleads that it be granted. I agree with learned applicants counsel that by virtue of order 8 rule 4 of the rules of this Court, a notice of appeal may be amended by or with leave of the court in appropriate cases. The issue to determine in this application, therefore, is whether the applicant is entitled PAGE| 5 to the leave she seeks to amend her notice of appeal in the manner contained in Exhibit ‘A’ by particularly filing additional grounds 6, 11, 13 and 14 which raise fresh issues. It remains generally the duty of the trial court to make primary findings of fact. Where the duty7 is discharged and the findings are made by the trial court, the appellate court remains slow in departing from those findings and relies on the trial courts opinion in determining the appeal before it. Fundamentally, the jurisdiction of the appellate court, with this being the final on the ladder, is limited to the correction of the errors of the court from which the appeal it determines emanates. The overriding duty of courts, including this Court, however, is to do substantial justice between parties, a principle which entitles the appellate courts to find exceptions to their primary duty of determining appeals before them solely on the basis of the issues raised and determined at the court below. Leave to litigants to raise fresh points for the first time on appeal, having not raised same at the trial or court below, is one of such exceptions. The leave the applicant herein seeks is granted only if the indulgence will facilitate substantial justice between the parties before the court. The relief cannot, for that noble goal, be available just for the asking. It is never granted as a matter of course. Conditions have been evolved which an appellant/applicant who desires to raise a fresh point on appeal must meet. Before granting the appellant/applicant leave to raise a fresh point on appeal, the court must be satisfied beyond doubt that it has all the facts pertaining the new point to be raised and were the point raised at the court below it would have remained unsatisfactorily determined. Where the fresh issue the appellant seeks to raise involves substantial point of law, substantive or procedural, and no further evidence would be required in the determination of the issue, this court readily allows such an application in order to prevent miscarriage of justice. See: A. G. Oyo State V Fairlakes Hotel Ltd (1988) 5 NWLR (part 92) 1 and Fadiora V Gbadebo (1978) 7 SC 219. Learned appellant/applicant counsel has hammered on the fundamentality of the question of jurisdiction in adjudication. Where an appellant ex facie demonstrates that the lower court had proceeded without jurisdiction, the appellate court will also accommodate his/her plea to ensure that a nullity does not survive. It must be noted though, that notwithstanding the fact that the point sought to be raised ex facie rests on jurisdiction, the applicant will be refused leave if in essence the applicants endeavour is to introduce a new PAGE| 6 lines of defence different from those of the parties at the court below. Applicant must further satisfy the court that inspite of due diligence on his part it was impossible to raise the point and have same conclusively determined by the lower court. See: Ogbodu V State (1987) 2 NWLR (part 54) 20; Ejiofodomi V Okonkwo (1982) 11 SC; Awote V Owodimmi (1986) 5 NWLR (part 46) 941 and Uor V Loko (1988) 2 NWLR (part 77) 430. Applicants proposed additional ground 6 is, without its particulars, hereunder reproduced:- ‘Ground 6 ‘ The Learned Justice of the Court of Appeal erred in Law in affirming the judgment of the trial Federal High Court even when the issues raised in the Originating Summons were very contentions issues which required the filing of pleadings ‘ A cursory examination of the foregoing supports learned respondent counsels contention that this is a complaint on procedural lapses rather than on jurisdiction. Only a jurisdictional issue, on the authorities, form ready basis for the grant of the leave the applicant seeks. Commencing an action by wrong procedure does not constitute a jurisdictional issue since the lapse, except where specifically stated in the rules of court, does not defeat the claimants cause of action. If the subject matter of the plaintiffs action is within the jurisdiction of the court, the cause of action would not be abrogated simply because it has been commenced by the wrong procedure. The lapse in that regard is only an irregularity7 that gives the defendant the right to insist that plaintiff adopts the proper procedure in approaching the court. Even then, I agree with learned respondents counsel, that the objection must be raised within reasonable time. See: Okotie-Eboh V Okotie Eboh (1986) 1 NWLR (part 16) 264; Ijebu-Ode Local Govt. V Adedeji Balogun & Co. Ltd (1991) 1 NWLR (part 166) 136. Order 3 rule 1 sub rules (1) and (2) of the trial courts procedure rules being vindication of respondents position, are hereby reproduced:- ‘1.-(1) Where in beginning or purporting to begin any proceeding or at any stage in the course of or in PAGE| 7 connection with any proceeding, there has by reason of anything done or left undone, been failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein. 2.-(1) Any application to set aside for irregularity any proceeding, any step taken in any proceeding or any document, judgment or order therein, shall not be allowed unless it is made within reasonable time and before the party applying has taken any fresh step in the proceedings.’ (underlining for emphasis). From the clear and unambiguous words of the foregoing rules it is certainly belated and unpardonable to now allow the applicant raise the procedural point encapsulated in the 6 ground of her Exhibit ‘A’ the schedule of amendment she seeks to effect to her Notice of Appeal. Applicants plea in respect of her 6 grounds accordingly fails to find any favour. But what of the other three proposed grounds? Appellant proposed additional ground 11 shorn of its particulars reads:- ‘Ground 11’ The learned justices of Court of Appeal erred in law in affirming the judgment of the Federal High Court Calabar and gave credence to the certificate purportedly issued, by the Corporate Affairs Commission dated 6th day of August 2003 when proceedings in suit No. FCT/HC/CV/508/2002 was pending contrary to the provisions of Section 91 (3) of the evidence Act 2011 now Section 83 (3) of the Evidence Act. ‘ Applicants complaint in the foregoing cannot by any stretch of imagination be said to be a fresh issue. The issue had clearly been raised and determined at the court below. The issue PAGE| 8 can only be pursued here in the very manner parties had done at the court below. In her two other grounds, 13 and 14, the applicant seeks to raise two defences she alleges the lower court erred in not considering. While in ground 13 the complaint is that the lower court has given judgment to the respondent who is guilty of laches and acquiescence, applicants grief in ground 14 pertains the lower courts affirmation of the trial courts judgment in a suit that is statute barred. The two complaints are defences in respect of which the rules of the trial court entitles a defendant to an originating summons in joining issues with the plaintiff to file a counter-affidavit together with all the Exhibits he intends to rely upon and a written address his being served with the originating summons. With due diligence, the defences in grounds 13 and 14 could, inspite of applicants failure to challenge the commencement of respondents action by originating summons, have been raised in applicants counter-affidavit. It appears that applicants desire to obtain leave to raise the points in the two proposed additional grounds is to introduce entirely new dimensions to the case parties herein fought through to this Court. On the authorities, the applicant is disentitled to the leave for the attainment of that particular objective. In Solanke V Somefun (1974) 1 SC 141 at 148, this Court has opined that:- “………….. (A)ny party or counsel seeking the discretionary power of a judge to he exercised in his favour must bring his case within the provisions of the rules on which he purported to make his application. If counsels fail to discharge their duties in that respect, it is but fair and right that a court should refuse to exercise its discretionary power. ‘ Having failed to meet the requirements earlier captured in the principles outlined in this ruling seekers of leave to introduce fresh point on appeal must satisfy, the applicant is unworthy of the indulgence she urges on this Court. Item (b) of her motion paper opposed by the respondent being unmeritorious is hereby dismissed. The dismissal of this item invariably affects those other items on the motion paper the respondent conceded to the applicant. In consequence and for the avoidance of doubt it is hereby accordingly ordered as follows:- PAGE| 9 (1) Leave is granted the appellant/applicant to amend her original Notice of Appeal copied out or contained at pages 322-325 of the printed record by incorporating into same and arguing 17 additional grounds of appeal to wit; 5, 7, 8, 9, 10, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 as contained in Exhibit ‘A: the appellant/applicants schedule of Amendment annexed to the affidavit in support of the instant application. (2) Time is extended by 60 days from today for the appellant/applicant to file her amended Notice of Appeal and Brief of argument. Parties are ordered to bear their respective costs.