Mr. F. O. Osifeso & Ors V. British American Tobacco Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Lead Ruling)

On the 13th of January, 2010, this court granted the Respondent leave to file a Respondent’s Notice and to argue new issues of law raised in the said Respondent’s Notice. That leave was pursuant to the Respondent’s Motion on Notice dated the 28/10/2008 and filed the 29/10/2008. Accordingly, the said Respondent’s Notice dated the 10/1/2010 and filed the 13/01/2010 was deemed filed the 13/1/2010. The said Respondent’s Notice was predicated upon two Grounds.

However, by a Motion on Notice dated and filed the 26/10/2010, the Respondent as Applicant sought the following reliefs:

1. AN ORDER granting leave to the Respondent to raise and argue a fresh issue of law on appeal as contained in ground 3 of the proposed Amended Respondent’s Notice attached to this application as Exhibit JA2.
2. AN ORDER granting leave to the Respondent/Applicant to amend the Respondent’s Notice dated 10th January, 2010 by the addition of another ground numbered “3” as contained in the proposed Amended Respondent’s Notice to affirm attached to this application as Exhibit JA2.
3. AN ORDER deeming the Amended Respondent’s Notice already filed and served along with this application being properly filed and served, the necessary fees having being (sic) paid.
4. AN ORDER granting leave to the Respondent/Applicant to further and consequently amend the Amended Respondent’s Brief of Argument in the manner shown at paragraphs 2.4-2.4.11 appearing at pages 11-15 of the proposed Further Amended Respondent’s Brief of Argument attached to this application as Exhibit JA4, in order to incorporate the argument on the additional ground of the Respondent’s Notice and other relevant amendment to the Amended Respondent’s Notice.
5. AND for such further or other order(s) as this Honourable Court may deem fit to make in the circumstances of this case.

The grounds upon which this application is premised and as follows:-

1. On 13th January, 2010, this Honourable Court granted Respondent/Applicant leave to file a Respondent’s Notice to affirm the judgment of the Federal High Court, Ibadan (“the trial court,) on grounds other than those relied upon by the trial court.
2. Pursuant to the said order, the Respondent’s Notice to affirm and the Amended Respondent’s Brief of Argument incorporating the argument on the Respondent’s Notice were deemed as properly filed and served. The appeal was then adjourned to 22nd March, 2010 for hearing.
3. On 22nd March, 2010, the Court could not proceed with the hearing the appeal on the basis of the application by the Appellants to file their Reply Brief out of time. The application to file the Appellants’ Reply Brief out of time was taken and granted and the appeal was accordingly adjourned to 29th June, 2010 for hearing.
4. After the proceedings of 22nd March, 2010, a further review of the case was done in preparation for the hearing of the appeal and in the course of the review session, certain issues/points which will aid in effectual determination of the issues in this appeal were discovered.
5. The said issues/points so discovered and which have been incorporated in the proposed Amended Respondent’s Notice which relates to the competence of the statement of claim are germane for the effectual determination of Respondent’s Notice to Affirm and the said grounds were not manifest to the Respondent’s Counsel as at the time of preparing the Respondent’s Notice already filed in this case.
6. This application is necessary in order to place all the issues in this appeal before this Honourable Court for determination once and for all.
7. The issue contained in the additional ground sought to be filed by this application goes to the competence/validity of the entire proceedings leading to this appeal and consequently, on the jurisdiction of the trial court to entertain the proceedings leading to this appeal.

The application was supported by an affidavit of 22 paragraphs to which were attached four (4) annexure, marked as Exhibits JA1, JA2, JA3 and JA4 respectively. Exhibit JA1 is the original Respondent’s Notice sought to be amended. Exhibit JA2 is the proposed Amended Respondent’s Notice. Exhibit JA3 is the Further Amended Statement of claim, filed at the court below, while Exhibit JA4 is the proposed Respondent’s Further Amended Brief of Argument. The Appellants/Respondents opposed the application, and therefore filed a Counter Affidavit of 16 paragraphs, to which were annexed one Exhibit marked as Exhibit “A”. It is a copy of a motion filed by the Appellants/Respondents seeking to amend the Record of proceedings. It was dated the 08/6/2010 and filed the same day.

The Respondent/Applicant contends that the motion is brought pursuant to Order 6 Rule 15, Order 9 Rules 3 and 7 of the Court of Appeal Rules, 2007 and the Inherent Jurisdiction of this Court. On the 06/11/2013 when the motion was heard, the Applicant’s learned counsel, Mr. Udiafi, in moving the motion, urged us to grant same. On his part, Mr. Imomoh of learned counsel for the Respondent, opposed the motion and urged us to refuse same.

Now, the Grounds upon which the Respondent/Applicant seeks to amend the Respondent’s Notice are duly stated in the motion paper. However, the Appellant/Respondent opposes the application to amend the said Respondent’s Notice, which was deemed as duly filed on the 13/01/2010. The grounds for the opposition are stated in the Counter Affidavit, and specifically paragraphs 6, 7, 8, 9, 10, 11, 12 and 14 thereof. For ease of reference, I propose to reproduce same below:-

“6. That I know as a fact that the issues 1 and 2 sought to be raised by the Respondent at this stage on appeal was never raised at the lower court, and the lower court did not pronounce on them.

7. That issues 1 and 2 were not a part of the matters, claims, issues or proceedings at the lower court.
8. That I know as a fact that an appellate court can only deal with issues or matters already raised and adjudicated upon by the lower court.
9. That sometimes in June, 2010, at our office, my principal, Oluwole Aina Esq, told me and I verily believe him as follows:

(a) That he has just noticed a mistake by way of an omission at pages 50 and 65 of the record of Proceedings.

(b) That the name of Martin Achugbue Esquire, the counsel in our chambers who signed the Further Amended Statement of Claim was omitted, and the name of our office was written as “Oluwole Aina Chambers” instead of “Wole Aina Chambers”.

(c) That there is need to apply to Court by motion for the correction of these errors.

10. That consequent to the above, we have applied to this Honourable Court by motion dated 8th June, 2010 for the purpose of correcting the mistakes. The said Motion together with its affidavit are Exhibited herewith and marked Exhibit A.
11. That the fresh issue sought to be raised and addressed by the subsequent Motion dated 26th October, 2010 filed by the Respondent/Applicant is already taken care of by the Appellants’ pending Motion before this Honourable Court.
12. That I know as a fact that all the issues sought to be raised by the Respondent at this stage are not substantial issues of law but were procedural issues which were not raised at the lower court.
13. That the Respondent’s motion dated 26th of October, 2010 is meant only to delay the hearing of the appeal and also aimed at complicating the live issues on appeal before this Honourable Court.
14. That it is in the interest of justice to refuse the respondent’s application dated 26th of October, 2010 which seeks leave to raise issues on appeal which were never raised or adjudicated upon by the court below thereby depriving this court of the views of the lower court on those issues”.

It is my understanding of the Respondent’s depositions in the Counter Affidavit that, this motion is opposed on two grounds. Firstly, issues 1 and 2 raised in the Respondent’s Notice, are issues that ought to have been raised and adjudicated at the court below. Secondly, also that, the fresh issue sought to be raised by the motion under consideration has been addressed by a motion filed by the Appellants/Respondents, which is annexed to the Counter Affidavit as Exhibit “A’. That, in any case, just like issues 1 and 2, the fresh issue sought to be raised is merely procedural which ought to have been raised at the court below. It is pertinent to note that, issues 1 and 2 have already been granted by this Court. See Exhibit JA2 annexed to the Motion paper. They cannot therefore be objected to at this stage.

In respect of the fresh issue sought to be raised by the Respondent’s Notice, by the instant application, it should be pointed out that, Order 6 Rule 15 of the Court of Appeal Rules under which the application was brought, permits a respondent who has filed a Respondent’s Notice to amend same. Thus, the said Order 6 Rule 15 of the Court of Appeal Rules, 2007 (which is impari material with Order 6 Rule 15 of the Court of Appeal Rules; 2011) provides that:

“A notice of appeal may be amended by or with the leave of the Court at any time.”