Hon. Minister Of The Federal Capital Territory & Ors v. Kohath Property Development Limited & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JCA (Delivering the lead ruling)

By an application filed on 11th October, 2022, the appellants/ applicants pray the court for the following orders:

1. An order granting leave to the appellants/applicants to raise and argue a fresh issue which was not canvassed at the trial court, to wit;

i. Estoppel per rem judicata with respect to the claims of the respondents in suit No: FCT/HC/BW/ CV/144/2020 already decided in suit No: FCT/HC/ 1952/016 (Hon. Minister, Federal Capital Territory & Ors. v. Kohath Property Dev. Ltd. & Ors.) on 19th May, 2020 coram Kutigi;

ii. Privity of contract.

2. An order granting leave to the appellants/applicants to adduce fresh evidence which was not presented at the trial court to wit;

a. the judgment of the High Court of the Federal Capital Territory in suit No: FCT/HC/1952/016 (Hon. Minister, Federal Capital Territory & Ors. v. Kohath Property Dev. Ltd. & Ors.) on 19th May, 2020 coram Kutigi, J;

b. The statement of defence and counterclaim filed by the defendants (now respondents) in suit No: FCT/ HC/1952/2016 (Hon. Minister, Federal Capital Territory & Ors. v. Kohath Property Development Ltd. & 2 Ors.).

3. An order deeming the judgment of the High Court of the Federal Capital Territory in suit No: FCT/HC/1952/016 (Hon. Minister, Federal Capital Territory & Ors. v. Kohath Property Dev. Ltd. & Ors.) on 19th May, 2020 coram Kutigi, J as well as the statement of defence and counterclaim filed by the defendants (now respondents) in suit No. FCT/HC/1952/2016 (Hon. Minister of the FCT & 4 Ors. v. Kohath Property Development Ltd. & 2 Ors.) as forming part of the evidence of the applicant in the trial court.
4. An order granting leave to the appellants/applicants to amend the notice of appeal dated and filed on 4th August, 2020 by filing and arguing additional grounds of appeal as set out in the proposed amended notice of appeal.

The application is predicated on the following grounds:

1. The respondents had obtained judgment against the appellants/applicants in suit No. FCT/HC/BW/CV/144/ 2020 (Kohath Property Development Ltd. v Hon. Minister of the FCT & 2 Ors.) before the High Court of the Federal Capital Territory, coram Musa, J, on July 15th, 2020, granting reliefs thathad already been dismissed by the same High Court of the Federal Capital Territory in Suit No: FCT/HC/1952/2016 (Hon. Minister of the FCT & 4 Ors. v Kohath Property Development Ltd.& 2 Ors.), coram Kutigi, J.
2. The appellants/applicants had instituted suit No. FCT/HC/ 1952/2016 (Hon. Minister of the FCT & 4 Ors. v. Kohath Property Development Ltd.& 2 Ors.) before the High Court of the Federal Capital Territory sitting in Gwagwalada, coram Kutigi, J, to which the respondents had filed a counterclaim seeking reliefs similar to those that they would later seek before the High Court of the Federal Capital Territory coram Musa, J, in suit No. FCT/ HC/BW/CV/144/2020 (Kohath Property Development Ltd. v. Hon. Minister of the FCT & 2 Ors.) from which this appeal has emanated.
3. Judgment was delivered by the High Court of the Federal Capital Territory per Kutigi, J in suit No. FCT/HC/1952/ 2016 (Hon. Minister of the FCT & 4 Ors. v Kohath Property Development Ltd. & 2 Ors.) on May 19th, 2020 and reliefs (b) i ix of the respondents counterclaim were dismissed by the honourable court.
4. Rather than appeal against the said judgment in suit No. FCT/HC/1952/2016 (Hon. Minister of the FCT & 4 Ors. v. Kohath Property Development Ltd.& 2 Ors.) following the dismissal of their claims, the respondents instituted Suit No. FCT/HC/BW/CV/144/2020 (Kohath Property Development Ltd. v. Hon. Minister of the FCT & 2 Ors.), seeking the same reliefs which had already been dismissed.
5. Throughout the hearing of suit No. FCT/HC/BW/CV/144/ 2020 (Kohath Property Development Ltd. v. Hon. Minister of the FCT & 2 Ors.) which was commenced by originating summons, it was never brought to the attention of the High Court of the Federal Capital Territory sitting in Bwari that the respondents claims as contained in their originating process, had already been dismissed by the same High Court of the Federal Capital Territory sitting in Gwagwalada, coram Kutigi, J, on May 19th, 2020; and
6. The fresh evidence sought to be adduced is a certified copy of a judgment and will not require the calling oral evidence.
7. The additional ground of appeal sought to be filed by the appellants/applicants will enable all issues in the appeal to be resolved once and for all.

The application is supported by an affidavit of thirteen paragraphs with the documents relied upon exhibited thereto. A written address was filed in support of the application as well as a reply on points of law which was filed on 4th November, 2022.

On 17th October, 2022, the respondents filed a five-paragraph counter-affidavit, as well as a written address in opposition to the application. At the hearing of the application, the learned counsel for the parties relied on their respective processes and urged the court to uphold their submissions in the determination of the application. The learned senior counsel for the respondents further referred to the case of Yusuf v. Mobil Oil (Nig.) Plc (2019) 13 NWLR (Pt. 1689) 374 at 393 on the need for a court to refuse an application that is intended to overreach the opponent.

The appellants/applicants formulated two issues for determination in the application, scilicet:

i. Whether in the circumstances of this case, the appellants/ applicants are entitled to adduce fresh evidence which was not adduced at the lower court.

ii. Whether in the circumstances of this case, the appellants/ applicants are entitled to raise new issues which were not canvassed before the trial court.

For the respondents, a sole issue sufficed for the determination of the application, videlicet:

Whether considering the evidence, state of the law and the facts and circumstances of this case, the honourable court ought not to refuse the appellants/applicants reliefs 1, 2, 3 and 4 as prayed?