Nasco Management Services Ltd. V. A.n. Amaku Transport Ltd. (1998)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

This is a motion on notice which stemmed from an appeal against the decision of the Plateau State High Court sitting in Jos in a case where the respondent hereinafter referred to as the plaintiff claimed against the appellant, henceforth to be called the defendant, the sum of N3.240.000 as damages for the detention of the plaintiffs motor vehicle to wit, a tanker trailer registered as BO2913 P from the 16th day of December, 1993 until the 30th day of November, 1994 when it was released.

According to the plaintiff, on 27/11/93, one Ozur Ugoisi contracted with it to carry some white tallow (a petroleum product) the property of the defendant from Lagos to Jos for a consideration of N45,000.00. While the plaintiffs driver called Asiniyu Lasisi was conveying the tallow, the trailer was involved in an accident near Ogbomosho as a result of which some quantity or the tallow was lost by spillage. After police investigation, the plaintiffs driver arrived Jos on 15/12/93 and delivered the remaining tallow to the defendant on that day and was about to return to Lagos the next day being 16/12/93 when the defendant prevented him from driving the trailer back to Jos. Despite the repeated demands by the plaintiffs managing director for the release of the trailer and the assurance that the cost of the spilled tallow would be settled by his insurance company, the defendant continued to detain the trailer until 30/11/94 when it was released upon the orders of the court. In consequence, the plaintiff suffered the loss of N3.240.000 as earnings during the period of the detention of its said trailer.

The defendant denied detaining the plaintiff’s trailer alleging, inter-alia, that the plaintiff’s driver upon being granted permission to park the trailer in the plaintiff premises left the trailer there promising to come with the plaintiffs managing director but failed to do so.

After considering the evidence led by the parties, the court below rejected the Defendant’s defence and entered judgment for the plaintiff in terms of its claim with N50,000 costs, Aggrieved thereby, the defendant by notice of appeal dated 25th day of July 1995 lodged an appeal to this court upon four grounds of appeal.

Thereafter the defendant has brought the present application on notice seeking to amend the notice of appeal by adding thereto grounds 5 and 6 and to raise fresh issues therein, The application is on notice and is dated 3rd October, 1997 and was filed the same day in the registry of this court. The reliefs sought therein are couched in the following terms:

“(a) An order granting leave to the applicant to raise and argue fresh issues in the terms of grounds 5 and 6 of the amended notice and grounds of appeal herein marked as Exhibit ‘A’.

(b) An order amending the applicant’s notice and grounds of appeal by an addition thereto of the grounds of appeal in the terms of grounds 5 and 6 of the amended notice and notice of appeal marked as Exhibit ‘A’ hereof.

(c) An order deeming the amended notice and grounds appeal as duly filed and served.”

In support of the application, one Joseph Onaji, a litigation officer of the defendant’s solicitor, swore to an affidavit of seven paragraphs the more pertinent averments being the following:

“4 I am informed by J. D. Morolayo Esq and I verily believe him to be true as follows:

(a) that pursuant to his instructions, he filed a notice of appeal on the 11th day of August. 1995;

(b) that he was served with the record of proceedings in respect of this appeal in October, 1996;

(c) that upon reading the record of proceedings he noticed that the plaintiff’s claim was formulated in tort and the primary tortfeasor was not joined in the action;

(d) that upon reading the record of proceedings, he also discovered that the court had on the 6/4/95 adjourned to 13/4/95 for defence;

(e) on 25/4/95 the plaintiff called another witness without any formal application for leave to re-open its case;

(f) that upon discussion with the appellant, it becomes necessary to appeal upon these points of law:

(g) that no further evidence will be needed to be able to address the grounds of appeal sought herein to be incorporated into the original notice and grounds of appeal;

(h) that leave of court is needed to raise the issue of the appellant’s vicarious liability in the absence of principal tortfeasor;

(i) ….

(j) …

(k) …

(l) that the amended notice and grounds of appeal incorporating the issues sought to be raised is hereto exhibited and marked as Exhibit ‘A’;

(m) that as at the time he filed the original notice of appeal he had no knowledge of the issues for which leave is being sought and that he only became aware upon receipt and while reading the record or proceedings:

(n) ….

(o) …

(p) …

5. I know that the respondent would not be prejudiced by the granting of this application as she has not filed any brief since May, 1997.”

The amended notice and grounds of appeal referred to in the supporting affidavit as Exh. ‘A1′ read, infer alia, as follows:

“GROUNDS OF APPEAL

1. The whole trial is a nullity because the appellant was not accorded fair hearing as required by law and same has occasioned a miscarriage of justice.

PARTICULARS

(i) There was no cogent proof as required by lay before the court on the 6/4/94 that the defendant/appellant and/or his counsel were aware that the case was adjourned to that date.

(ii) There was no proof on record that the plaintiff’s counsel had on the 26/4/94 complied with the order of court made un 13/4/94. The defendant/appellant was not notified of dates of adjournments.

2. The learned trial Judge erred in law when he suo motu based his judgment in the substantive suit upon the depositions made by the plaintiff in the affidavit in support of the motion on notice dated 15/12/94 to justify the findings that the defendant detained the plaintiff’s vehicle and the approach thereby occasioned a miscarriage of justice.

PARTICULARS

(i) The affidavit relied upon by the trial Judge was filed and used in the interlocutory proceedings for the purpose of determining whether it was appropriate to release the vehicle or not before the determination of the substantive suit.

(ii) The parties were never afforded any opportunity to address the court on the propriety of using the affidavit when it was an issue raised suo motu by the court.

(iii) Having determined the motion on notice to which dated (sic) 15/12/94 to which the affidavit in support was attached, the trial court became functus officio with regard to the interlocutory proceedings and cannot make any reference to the proceedings or the processes in respect of the interlocutory application except where same arose in the cause of the substantive proceedings.

3. The learned trial Judge misdirected himself on the facts when he held that:

“The defendant is hereby ordered to pay the plaintiff the sum of N3.240,000 as damages for the detention of its tractor, BO 2913 P from 16/12/93 unti130/11/94 when it was conditionally released by the court.’

and thereby occasioned a miscarriage of justice.

PARTICULARS

(i) The sum of N3.240,000.00 was not one of the reliefs claimed by the plaintiff/respondent in its statement of claim dated 26/7/94.

(ii) The sum of N3,240,000.00 is in excess of the plaintiff/respondent’s claim.

4. The learned trial Judge erred in law when in determining the substantive suit made copious reference to the statement/suggestions made by counsel to the appellant thereby ignoring the evidence of defendant.

PARTICULARS OF ERROR

(1) Statements or submissions made by the defendant’s counsel did not amount to evidence upon which the trial Judge could have based its judgment.

(ii) The evidence of DW1 was given on oath but same was not considered by the trial Judge.

5. The learned trial Judge erred in law in entering judgment against the defendant for detinue in the absence of the principal tortfeasor.

PARTICULARS OF ERROR

(i) The defendant as sued is a limited liability company, a juristic entity, an artificial person which could only act through human beings.

(ii) The liability of the defendant is vicarious.

(iii) The servant who purportedly detained the plaintiff’s vehicle was not made a party to the proceedings.

6. The learned trial Judge erred in law when having adjourned the proceedings of 6/4/95 to 13/4/95 for continuation of defence allowed the plaintiff to call a fresh witness without any application and this procedure occasioned a miscarriage of justice.

PARTICULARS OF ERROR

(i) At the close of proceedings on 6/4/95, the lower court adjourned for defence.

(ii) On 26/4/95, when the court sat next, after the adjournment of 6/4/95 another witness testified for the plaintiff.

(iii) There was no application made to call or re-call another witness for the plaintiff.

(iv) Having adjourned for de fence the defendant was to call its witnesses to testify.

(v) The defendant was not heard before the order allowing PW2 to testify was made.”

In arguing the motion on 19th October, 1998, J. D. Morolayo Esq, learned counsel for the defendant/applicant, stated that the motion is primarily to amend the notice of appeal by the addition of two more grounds to raise and argue thereby fresh issues not canvassed in the court below. Counsel submitted that the granting of leave to raise a fresh issue on appeal is discretionary with the interest of justice as the paramount consideration.

Referring to several authorities, counsel argued that leave to raise a fresh issue on appeal may be granted to prevent a miscarriage of justice and where the fresh issue involves substantial point of law on substantive or adjectival law and it is plain that no further evidence which could have been called in the court below if it was raised there could have affected the decision one way or the other. He contended that the instant applicant satisfies the above conditions and argued that it be granted.

Responding, G. Ofodile Okafor Esq. S.A.N., the learned leading counsel for the plaintiff/respondent, contended with respect to ground 5 of the amended notice of appeal that from the nature of the plaintiff’s case which can be ascertained from its pleadings it was unnecessary to join the defendant’s servant in the action. On the conditions for granting leave to raise fresh issues on appeal the learned leading counsel referred to the case of A. G. Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt 92) 1 and Ikeanyi v. A.C.B. Ltd. (1997) 2 NWLR (Pt 489) 509 at 521.

With respect to ground 6 of the amended notice, it was pointed out that the allegation therein can be accommodated under ground I of the notice of appeal and therefore that the aforesaid ground 6 is unnecessary.

The bone of contention is whether the defendant should be granted leave to raise a fresh point on an appeal which was not canvassed before the court below.

As a general principle, such an issue which was not raised in the court below will not be entertained on appeal. The rationale of this principle is that it is desirable for the appellate court to have the benefit of the opinion of the lower court on such points. See Skenconsult Nig. Ltd. and Or v. Godwin Ukey (1981) 1 S.C. 6 at page 18. In this connection, the dictum of Lord Hudson in the case of United Marketing Co. v. Kara (1963) I WLR 523 page 524 is particularly apposite. His Lordship said:

“Even if the facts were beyond dispute and no further investigation of fact were required, their Lordships would not readily allow a fresh point of law to be argued without the benefit of the judgments of the judges in the court below.”

See O. K. O Mogaji & Ors v Cadbury Nig. Ltd. and Ors (1985) 7 S. C 59 at 91; (1985) 2 NWLR (Pt. 7) 393. But there are special circumstances or conditions under which points of law not agitated at the trial court may be allowed to be raised on appeal. These special circumstances or conditions have been laid down in a long line of authorities vide: Samuel Fodiora & Anor v. Festus Gbadebo & Anor (1978) 3 S. C 219 at 248, Abinabina v. Enyimadu 12WACA 171; Ejiofodomi v. Okonkwo (1982) 11 S. C. 74 at 93 – 94, Dweye v. Iyomahan (1983) 2 SCNLR 135 at 138, Niger Progress Ltd v. N.EL Corp (1989) 3 NWLR (Pt 107) 68 at 100, Shonekan v Smith (1964) 1 All NLR 168 at 173; K. Akpene v. Barclays Bank of Nig. Ltd & 1 Or (1977) 1 S.C. 47 to mention but a few. The requirements include the following: the point of law raised must be substantial, no further evidence would be adduced which will affect the new point, the refusal of leave to argue the fresh point will occasion a miscarriage of justice or other exceptional circumstance: see Plateau Publishing Co. Ltd. & 2 Ors F. Chief Chuks Adophy (1986) 4 NWLR (Pt. 34) 205 at page 223.

The court will refuse to grant leave to raise a fresh issue where the point sought to be raised for the first time introduces an entirely new case or line of defence different from the issues fought by the parties in the court below: see Ejiofodomi v. Okonkwo (supra) or if the plaintiff had raised the new point the defence would have been able to meet it: see Adigun v. Attorney General Oyo State (No 2) (1987) 2 NWLR (Pt. 56) 197.

Applying the above principles to the case in hand, it is plain to me, with regard to ground 5 of the additional ground of appeal which seeks to raise the question of the non-joinder of the defendant’s servant, that it was not the plaintiff’s case at the trial that the defendant’s servant committed the tortious act for which the defendant was vicariously responsible nor was it the defendant’s line of defence that the plaintiff’s action in detinue was not maintainable in the absence of the defendant’s servant being joined as the principal torfeasor. To that extent therefore the fresh point of law sought to be raised on appeal is a novel one and constitutes an entirely new case or line of defence different from the issues fought by the parties at the trial court.

In the case of Ejiofodomi v. Okonkwo supra, the plaintiff/respondent sued the defendant/appellant in the District Court of Kano State claiming, inter alia, arrears of rent and possession of the premises in dispute. The defence raised the objection that the District Court had no jurisdiction to entertain the case by reason of the premises in dispute being residential regard to section 12 of the Kano State Rent Control Law 1977 but the plaintiff/respondent’s counsel replied that the District Court had jurisdiction by reason or the fact that the premises in question ranked as business premises being used as a hotel for fee paying lodgers. The Senior District Court Judge ruled it had jurisdiction in the matter as the premises was a business premises. The defendant/appellant appealed to the Kano High Court which reversed the decision of the Senior District Court Judge. On a subsequent appeal by the plaintiff/respondent to the Court of Appeal, the appeal was allowed and the decision of the District Court restored. The defendant/appellant then appealed to the Supreme Court contending that by virtue of s. 39 of the Land Use Act jurisdiction in respect or the Case was exclusively vested in the Kano State High Court and that the plaintiff/respondent had not proved his title to the property in question. Objection was taken in limine by the plaintiff/respondent’s counsel to these points being canvassed before the Supreme Court on the ground that they were not raised in the lower court. In upholding the objection, the Supreme Court per Aniagolu J.S.C at pages 96 – 117 of the report stated, inter alia:

“I am in no doubt whatever that this court possesses unfettered discretion to allow or refuse to be argued a point of law, on appeal, not raised in the court below and in so far as one can call it a fetter, the only inhibition is that the discretion has to be exercised in accordance with principles and practice laid down by law and/or recognised by judicial precedents.

This court in Samuel Fadiora and Anor v. Festus Gbadebo andAnor (1978) 3 S.C. 219 at 248, while recognising that a court of last resort, as a matter of practice, is competent to entertain a point of law raised for the first time before it and that when the justice or a case so dictates it is expedient that it should entertain it, also acknowledged in its use of the word ‘may’ that it is discretionary. The fact that the point involves ‘substantial substantive point of law’ and that no further evidence could have been adduced which would affect it, are matters which could be taken into consideration in exercising the discretion. See Abinabina v. Enyimadu (1953) A.C. 207 at 215. It would follow, as counsel for the respondent pointed out in his brief, that where no evidence could have been adduced which would affect the decision of the case, the court, in order to prevent a possible miscarriage of justice, would allow the new point or law to be taken on appeal. (Akpene v. Barclays Bank of Nigeria Ltd. and Anor (1997)1 S.C. 47.)

In the instant appeal, the general issue before the District Court was one of jurisdiction. A challenge to the jurisdiction of a court could be based on varied and diverse point, for example,

(a) that the judge was not properly appointed;

(b) that the matter in issue is outside the limits of the territorial jurisdiction of the court.

(c) that the claim is above the justiciable power or the adjudicating court,

(d) that the period allowed the court to embark upon the hearing of the case has expired etc.

Each issue there, is a matter of jurisdiction but quite different one from another. The specific point in this appeal on which the objection to the jurisdiction of the court was based and challenged by the defence was that the premises was a residential premises, the adjudication in respect of which, by reason or the provisions of the Rent Control Law. 1977 (section 12), came under the exclusive jurisdiction of the Rent Tribunal; to which argument the plaintiff countered with the assertion that the premises was business premises, coming under the jurisdiction of the District Court. Issue was joined on this contention. It remained the issue throughout – before the District Court, the High Court and the Federal Court of Appeal.

It was a specific point within the general issue or jurisdiction.

Parties have fought their case, right lip to this court, on that point.

Having regard to all the foregoing. I cannot see that this court should now allow the appellant to jettison before this court, the issue on which the parties fought their case all the way to the appeal court – on the issue on which she lost all the way. To do so would amount, in effect, to our allowing her to commence an entirely new case before this court. There must, in the public interest, be an end to litigation (interest reipubliceae ut sit finis litium) and it is my view that to allow this new issue under section 39 of the Land Use Act, to he raised at the late stage, is not to further, but to hinder, that public interest.”

As noted earlier, the question or whether the defendant could be held liable in detinue for the detention of the plaintiffs vehicle in the absence of the defendant’s servant as the principal tortfeasor was not an issue upon which the case was fought in the court below. As formulated by the parties and the court below, the issues on which the case was fought were, firstly, whether the defendant detained the plaintiff’s vehicle from 16/12/93 to 30/11/94 and secondly whether the plaintiff was entitled to payment of damages. It is therefore strange that the defendant should now on appeal try to raise the question of its vicarious liability as a limited liability company in the absence of its servant, the principal tortfeasor.

This in my view is now an entirely new line of defence which can not be entertained.

With respect to ground 6 of the amended notice of appeal the complaint therein is that when the learned trial Judge adjourned the proceedings from 6/4/95 to 13/4/95 for continuation of defence, the plaintiff was on the adjourned date allowed to call a fresh witness without any application thereby occasioning a miscarriage of justice. From my perusal of the record of proceedings of the court below for 4/4/95, there is no indication that the plaintiff had closed its case on that date. The statement by the court that ‘the suit is hereby adjourned to 13/4/95 for continuation of defence’ appears to me to be an obvious error as at that date the defence had not opened its case. In any case, even if the plaintiff had closed its case and re-opened it without leave of the court (which is not conceded), that was merely an irregularity of procedure against which the defendant should have promptly raised an objection but no such objection was raised. A party who has consented to a wrong procedure by a judge cannot subsequently challenge that procedure: Olubode v. Salami (1985) 2 NWLR (Pt 7) 282. Where a party has consented to a wrong procedure at the trial court and in fact suffers no injustice, it would be too late to complain on appeal that the wrong procedure was followed: See Adepoju v Ayanwale v. Babalola Atanda & Anor (1988) 1 NWLR (Pt.68) 22; (1988) 1 S.C. 1 at 32, C. A, Akhiwu v The Principal Lotteries Officer Mid Western State and Anor (1972) 1 All NLR (Pt.1) 229 and Colony Development Board v. Kamson & Ors (1955) 21 NLR 75. The alleged irregularity under consideration appears to me to be one of mere technicality. The court is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice per Eso J.S.C. in State v. Gwonto (1983) 1 SCNLR 142 page 160. Since the alleged irregularity complained or was not objected to timeously and being of the view that no miscarriage of justice was occasioned thereby. I find no justification for allowing the defendant to raise it on appeal.

In the light of the foregoing, it is my view that this application lacks merit.

It is accordingly dismissed with the sum of N1,500 as costs to the plaintiff against the defendant.

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Other Citations: (1998)LCN/0371(CA)