National Judicial Council V. Hon. Justice Ya’u Ibrahim Dakwang & Ors (2019)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
The 1st respondent in this appeal was the Plaintiff in the Federal High Court, Jos Judicial Division in Suit No. FHC/J/CS/7/2007. He was a Judge of the High Court of Plateau State at all material times sitting in High Court No. 6.
Sometimes in 2006, the Governor of Plateau State, Chief Joshua Chibi Dariye was purportedly impeached and removed from office. Following the furore generated by the impeachment saga which also led to the removal of the Chief Judge, Hon. Justice Lazarus Dakyen (of blessed memory) and the appointment of the 1st respondent as Acting Chief Judge by the Governor the appellant (herein) pursuant to the powers vested in it under Paragraph 21 (d) of the Third Schedule of the Constitution of the Federal Republic of Nigeria 1999 (as amended), set up a sub-committee at its meeting of 5 December, 2006 to look into the impeachment saga, and inquire whether the judicial officers involved had misconducted themselves. At the end of the investigation, the National Judicial Council (NJC) found that the 1st respondent was guilty of misconduct.
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It suspended him from office and subsequently recommended that he be compulsorily retired.
The Plaintiff (now 1st respondent) aggrieved by the decision to remove him from office as a Judge filed the suit before the Federal High Court challenging his suspension and removal from office. Pleadings were filed and exchanged.
In paragraph 21 of the Statement of Claim the Plaintiff averred thus:-
“21. At the meeting of the 1st defendant on 20/12/2006 no decision was taken regarding the removal of the plaintiff from office and no recommendation to that effect was made by the 1st defendant to the 2nd defendant” (See page 8 of the record).
In answer to the said averment the 1st defendant pleaded in paragraphs 8 and 9 of the Statement of Defence:-
“8. The 1st Defendant states that at its meeting of 20th December, it considered amongst other things the report of its Committee and after extensive deliberation the 1st Defendant decided that the Plaintiff ought to be retired for unconstitutionally assuming the post of Acting Chief Judge of Plateau State, which action in the opinion of the 1st Defendant amounts to misconduct. The 1st Defendant shall
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rely on the extract of the minutes of its meeting of December, 2006.
- The 1st Defendant states that in consequence, it ordered the suspension of the Plaintiff and recommended to the 2nd Defendant the retirement of the Plaintiff from his office as a High Court Judge”. (See page 68 of the record).
The Plaintiff in reaction to the averments of the 1st Defendant filed a reply and stated in paragraph 2 thereof-
“2. As to paragraphs 8, 9 and 11 of the 1st Defendant’s Statement of Defence, the Plaintiff avers that the 1st Defendant did not recommend to the 2nd Defendant his retirement from office as a High Court Judge”.
The matter proceeded to trial and at the conclusion of the evidence, the parties addressed the Court. The trial Judge delivered his judgement on 22 October, 2007 whereby he dismissed the Plaintiff’s suit.
Being aggrieved by the decision of the trial Court, the Plaintiff filed an appeal via his notice of appeal dated 22 November, 2007. At the Court of Appeal, the appellant filed an application praying the Court amongst other things, for leave to raise and argue on appeal fresh issues which were not
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raised in his pleadings before the lower Court and to amend the Statement of Claim to reflect the fresh issues raised and to file and argue additional grounds of appeal (See pages 237-322 of the record). The two sets of respondents filed their counter-affidavits in opposition to the application. The application was argued.
On 13 July, 2011, the Court below delivered its ruling wherein it granted the applicant’s requests to raise and argue fresh issue on appeal and also amend the statement of claim. The panel that took the application consisted of coram: M. Dongban-Mensem, Ndukwe-Anyanwu and A. Yahaya JJCA but Philomina Ekpe JCA who did not participate in the hearing of the application joined M. Dongban-Mensem and Ndukwe-Anyanwu JJCA to grant the prayers sought in the application.
The 1st defendant/respondent being dissatisfied with the ruling obtained leave of the Supreme Court on 12 December, 2012 to appeal against the said ruling. Three grounds of appeal accompanied the Notice of Appeal from which the appellant formulated two issues for determination as follows:-
(i) Whether the ruling of the Court below dated 21st day of June, 2011 was not a nullity having been
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delivered by a panel other than the panel of Justices that heard the application. Ground 1.
(ii) Whether having regard to the facts, the Court below exercised its discretion judiciously and judicially when it granted the applicant’s application to raise and argue a fresh issue not raised in the trial Court and granted the order amending the Plaintiff’s statement of claim on appeal. Grounds 2 and 3.
The 1st respondent in his brief filed on 18 August, 2014 raised preliminary objection to the competency of the appeal. The preliminary objection was argued from pages 5-22 of the brief in which learned counsel urged this Court to terminate the appeal in limine stating that the entire appeal is incompetent and should be struck out. Apart from the objection, the 1st respondent also donated two issues for determination
The issues he framed are as follows:-
- Having regard to the provision of Section 294(2) of the 1999 Constitution (as amended) whether the decision of the lower Court dated 13/7/2011 is not valid and competent having regard to the peculiar facts and circumstances (Ground 1 of the Notice of Appeal).
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Having regard to the totality of the materials placed before the lower Court, whether that Court did not exercise its discretion judiciously and judicially in granting the reliefs sought in the motion on notice dated 15/4/2010 and filed on 16/4/2010, the subject matter of this appeal. (Grounds Two and Three of the Notice of Appeal).The appellant sought for extension of time to file a Reply Brief. The motion was granted on 26 November, 2018 and the Reply Brief was deemed filed on the said 26 November, 2018. As I stated earlier, on 12 December, 2012 this Court granted the appellant extension of time within which to seek leave to appeal, leave and extension of time to file and serve the notice and grounds of appeal. 60 days were given to the appellant to file the Notice of Appeal but the Notice was not filed within the stipulated period of 60 days. The said Notice of Appeal was filed on 20/7/2017 and was deemed filed on 10 April, 2018.THE PRELIMINARY OBJECTION
Learned counsel for the 1st respondent argued that the appeal is incompetent because it is predicated on an incompetent notice of appeal. He gave particulars concerning the incompetent notice as follows:-
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(i) The notice of appeal filed in this Court was filed by a dissatisfied defendant against the ruling in favour of a plaintiff.
(ii) This Court lacks jurisdiction to entertain an appeal from a trial Court, where the parties are designated as plaintiff and defendant.
(iii) The grounds of appeal under reference are predicated on an application by a plaintiff.
He said that all the grounds of appeal are incompetent and should be struck out. He pointed out that the errors of law in grounds 1 and 3 have not been reproduced to bring out the alleged errors for which the appellant has suffered a miscarriage of justice. He contended that all the grounds are not supported by valid and competent particulars. He submitted that where a ground of appeal alleges error in law or misdirection, the portion of the judgement containing such error or misdirection must not only be quoted, but full particulars of the error or misdirection must also be set out. Reliance was placed on the following cases:-
Anadi v. Okoli (1977) 7 SC 57 at 64-65; Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267 at 279; Okwuagbala v. Ikwueme (2010) 19 NWLR (Pt. 1226) 54.
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Learned counsel maintained that grounds 2 and 3 are grounds of facts and at best of mixed law and facts which require the leave either of the lower Court or this Court before they can be raised and since they were filed without leave they are incompetent. Section 233 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) was cited in support along with the following cases:-
Alhaji Tahir Maigoro v. Alhaji Jibrin Garba (1999) 10 NWLR (Pt. 624) 555 at 568; Nwadike v. lbekwe (1987) 12 SC (Reprint) 12; Metal Construction (W.A) Ltd v. Migliore (1990) 1 NWLR (Pt. 126) 299; Tilbury Construction v. Ogunniyi (1988) 2 NWLR (Pt. 74) 64.
Learned counsel alleged that ground 2 is vague, nebulous and incomprehensible and should be struck out. He supported the argument with the following cases:-
Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83; Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297.
Finally learned counsel challenged the validity and competence of issue 1 which was distilled from grounds 2 and 3. He argued that an issue cannot be formulated
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from a ground of law and a ground of fact. He said there is nothing that links the two grounds together; consequently an issue formulated from two grounds one alleging error in law and the other alleging a misdirection would be an invalid issue.
It is not correct, as learned counsel for the respondent has argued, that an issue for determination cannot be formulated from two grounds of appeal, one alleging error of law and the other alleging misdirection in facts. What the Courts have always maintained is that one ground of appeal cannot allege both error in law and misdirection of facts. The decision in Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139 where it was held that “a ground of appeal which is a misdirection is different from, and in fact, mutually exclusive of, one which is an error in law” cannot extend to formulation of issues except where the issue formulated is not related or does not flow from the ground of appeal. See: Modupe v. State (1988) 4 NWLR (Pt. 87) 130; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566. The issues that should be formulated by either party to an appeal should reflect and substantiate the grounds of appeal.
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See: Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101; Niger Progress Ltd v. N.E.L. Corporation (1989) 3 NWLR (Pt. 107) 68.
Argument in an appeal are based on the issues framed and the grounds of appeal give way once issues relating to them have been framed. See: A-G, Bendel State v. Aideyan (1989) 4 NWLR (Pt 118) 646.
Learned counsel for the respondent also quarreled with the designation of “plaintiff” and “defendant” in his preliminary objection. In the reply brief, learned counsel for the appellant asked this pertinent question which I fully endorse viz “was this appeal indeed filed against the decision of the High Court” The obvious answer is no.
The appeal is against the ruling of the lower Court delivered on 13 July, 2011 on the motion filed by Hon. Justice Ya’u Ibrahim Dakwang, the appellant/applicant in appeal No. CA/J/224/2008 on 16 April, 2010 seeking the following reliefs amongst others:-
- An order granting the applicant leave to raise and argue on appeal fresh issues which were not raised in the applicant’s pleadings before the lower Court to wit:-
(i) That the presence and participation of members of
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the Investigating Panel i.e. Hon. Justice Umaru Abdullahi, CON, Hon. Justice C. O. Jacobs, Hon. Grand Khadi Muhammad S. Abubakar and Mrs. Rakiya Sarki Ibrahim at the meeting of the 1st Defendant/Respondent of 20th of December, 2006 constituted a violation of the applicant/appellant’s right of fair hearing.
(ii) That the participation of the following legal practitioners:-
a. Chief Bandele Aiku, SAN
b. Chief Anthony O. Mogboh, SAN; and
c. Prince Lanke Odogiyon;
inter alia, at the meeting of the 1st defendant/respondent of 20/12/2006 is unconstitutional and therefore, the meeting and the decision taken therein are null and void.
(iii) The Plaintiff was denied the opportunity to make representations on the report of the Investigative Committee of the 1st defendant/respondent before same was accepted and acted upon by it.
- An Order granting the applicant leave to amend his statement of claim in terms of paragraphs 26(a), (b) and (c) of Exhibit “A” to bring it in line with the evidence led at the trial and also to reflect and plead the said fresh issues.
In considering the application before granting same, the Court below stated per Dongban-Mensem
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JCA in the leading ruling at pages 338-340 of the record thus:-
“The appeal is against the judgement of the Federal High Court. Only the Court of Appeal has exclusive jurisdiction to entertain an appeal against the judgement of the Federal High Court under Section 240 and 241 of the Constitution of the Federal Republic of Nigeria 1999 as amended. For this reason it has become fashionable to apply to the Court of Appeal to grant leave to amend pleadings if the purpose is to bring same in line with the evidence already pleaded and admitted in the trial Court.
The real issues in controversy are contained in Exhibit “K” tendered at the Court of trial. The applicant challenged the constitutionality of his suspension and subsequent compulsory retirement. All these facts are on record… Moreover, the issue of Exhibit “K” was canvassed at the trial. ENGLAND v. PALMER is authority that leave can be granted an appellant to amend the statement of claim by an Appeal Court so as to incorporate the evidence on record”.
It is this ruling and not the judgment of the Federal High Court which the applicant was seeking extension of time
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within which to seek leave to appeal against when it filed its motion on 16 April, 2012. The use of the word “plaintiff” instead of “appellant” is therefore a mere misnomer which cannot render the Notice and Grounds of Appeal incompetent. The applicant was fully aware of the necessity to seek leave before appealing on grounds of mixed law and fact and was also conscious of the fact that leave was needed to appeal against the exercise of discretion by the lower Court and since it did not file the application within the stipulated period, the applicant had to ask for the three reliefs as prerequisites to appeal namely:-
(a) Extension of time within which to seek leave to appeal.
(b) Leave to appeal and;
(c) Enlargement of time to file the Notice of appeal.
Thus Section 233 of the Constitution was fully complied with before the motion which was heard in Chambers was granted on 12 December, 2012. I therefore find no merit in the preliminary objection filed by the 1st respondent and it is accordingly overruled.
ISSUES IN THE APPEAL.
Learned counsel for the appellant, Rotimi Oguneso, SAN referred to the panel who heard the application
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on 21 June, 2011 but when it came to the delivery of the ruling, two of the Justices who heard the application sat with Hon. Justice Philomina Ekpe JCA who delivered her own opinion agreeing with the other two. Learned counsel submitted that the ruling of the Court below is not in conformity with Section 294 of the Constitution and is therefore a nullity. He based his submission on Ubwa v. Tiv Area Traditional Council (2004) 11 NWLR (Pt. 884) 427 and Sokoto State Government & Ors v. Kamdex Nig. Ltd (2007) 3 SC 9Pt. 1) 94; (2007) 7 NWLR (Pt. 1034) 466.
In response to issue 1, Bitrus Fwanshak Esq. who settled the brief for the 1st respondent submitted that the decision of the lower Court dated 13/7/2011 is valid. He argued that although Justice A. D. Yahaya JCA who participated in hearing arguments in the motion was not on the panel that delivered the judgement, the contribution of Philomina Ekpe JCA is the pronouncement of A. D. Yahaya JCA which is allowed by Section 294 (2) of the Constitution.
Section 294(2) of the 1999 Constitution provides that:-
“294 Each Justice of the Supreme Court or of the Court
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of Appeal shall express and deliver his opinion in writing or he may state in writing that he adopts the opinion of any other Justice, who delivers a written opinion:-
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgement is to be delivered and the opinion of a justice may be pronounced or read by any other justice whether or not he was present at the hearing”.
The proviso to Section 294 (2) allowed Hon. Justice Philomina Ekpe JCA or any other Justice of the Court of Appeal who did not participate in the hearing of the motion, to pronounce the opinion of Hon. Justice A. D. Yahaya JCA who was absent when the ruling was delivered on 13/7/2011. But the contribution which Hon. Justice Philomina Ekpe JCA read did not show she was doing so with the mandate of Hon. Justice A. D. Yahaya JCA but as her own contribution. She stated thus:-
“I had a preview of the lead judgement delivered by my learned brother Monica Dongban-Mensem JCA. I agree with her reasoning and conclusions and also abide by her orders herein”.
Certainly this contribution cannot by any stretch of imagination be attributable to Hon. Justice A. D.
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Yahaya JCA but rather that of Hon. Justice Philomina Ekpe JCA who would be presumed to have taken part in the hearing of the application.
Section 294(3) appears to have provided a leeway for sustaining a decision that has been given in circumstances such as this because it provides as follows:-
“294(3) A decision of a Court consisting of more than one judge shall be determined by the opinion of the majority of its members”.
Opinions are however divided as to whether the judgement of the majority will be tainted by the decision of a Judge who though not on the panel when the matter was heard rendered his opinion as if he participated in hearing the matter. The cases such as Ubwa Tiv Area Traditional Council and Sokoto State Government v. Kamdex Nig. Ltd supra cited by learned counsel for the appellant would suggest the view that such a judgment should be declared null and void.
In his leading judgment in Ubwa v. Tiv Area Traditional Council supra, Kutigi JSC (as he then was) held at page 437-
“The entire proceedings before the Court of Appeal were a nullity because all the members who heard the
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appeal and those who wrote the judgments were not the same. In other words all the members who wrote the judgments were not all present throughout the hearing of the appeal which includes delivery of judgment. The judgement of the Court of Appeal delivered on 14 February, 2000 is therefore a nullity”.
There is a school of thought that thinks that even if the panel that gave judgement was differently constituted from the one that heard the appeal, this ipso facto, will not result in rendering the judgement a nullity but irregular and Hon, Justice Ogundare JSC (of blessed memory) belongs to this school of thought. He expressed this view in his concurring judgement in Shuaibu v. Nigeria Arab Bank Ltd (1998) 5 NWLR (Pt. 551) 582 where Y. O. Adio JCA who was not in the panel that took the appeal wrote a contributory judgement agreeing with the leading judgement and Hon. Justice Okezie who took part in the appeal had also concurred with the leading judgement.
On appeal to this Court, Wali JSC who delivered the leading judgement dismissed the appeal by holding that Section 258 (3) of the 1979 Constitution which is in pari materia with S. 294 (3) of the 1999 Constitution clearly provides
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a solution to a situation like the one at hand. In his contribution, Ogundare JSC said at page 603:-
“To my mind, it would appear that the Hon. Justice Adio JCA who was present at the oral hearing of the appeal participated in judgement. The questions then arise: Would his participation amount to the proceedings in the Court of Appeal being null and void as contended by the appellant in the appeal before us Or would the proceedings just be merely irregular, as contended by the respondent”
His answer was that the complaint at best was an irregularity and the explanation to this stemmed from the fact that no evidence was taken in the matter and this was based on the observation by Ademola CJN in Adeigbe & Anor v. Kusimo & Ors (1965) 4 NSCC 188 where he said at page 191
..where a Court is differently constituted during the hearing of a case, or on various occasions when it met or where one member did not hear the whole evidence, the effect on the proceedings is to render them null and void”.
The test has always been whether the complaint is extrinsic or intrinsic in the adjudication process.
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Where it is extrinsic, the proceedings including judgment are irregular but where it is intrinsic the judgment would be declared null and void. The interference by another Judge who did not participate in the hearing of the appeal will not adversely affect the view of the majority whether he concurs with the leading judgment or not. I share in this exposition of the law since the opinions of the majority is the judgement of the Court. Essentially, an Appeal Court deals only with the records and does not form opinion on the credibility of any witness. See: Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374. Consequently the ruling delivered on 13/7/2011 is not a nullity notwithstanding the fact that Hon. Justice Philomina Ekpe JCA did not participate in the hearing of the application before concurring in the grant of the application by Justices Monica Dongban-Mensem and U.I. Ndukwe-Anyanwu JJCA.
The second issue has to do with whether the Court below exercised its discretion judiciously and judicially when it granted the application to raise and argue a fresh issue not raised in the trial Court and granting the order amending the plaintiff’s statement of claim on appeal.
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Learned Senior counsel for the appellant in arguing this issue referred to the pleadings of the parties, namely paragraph 21 of the statement of claim, paragraphs 8 and 9 of the statement of defence and paragraph 2 of the reply and submitted that the parties joined issues on whether in fact the 1st defendant (now appellant) actually recommended the removal of the plaintiff at its meeting of 20th December, 2006. That was the reason why the 1st defendant produced and tendered exhibit “K”. He said that no issue was joined on the competence of people or members present at the meeting. He argued that a careful perusal of prayers 2-5 of the motion reveals that the applicant is now contending (contrary to his earlier position taken in his pleadings) that some of the people who participated in taking that decision ought not to have been at the meeting. This according to learned counsel is a complete somersault at the appeal stage.
Learned counsel for the respondent submitted that the grant or refusal of an application is at the discretion of the Court and in exercising this discretion the Court is guided by the
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totality of the materials placed before it. He contended that in the application under reference, the 1st respondent placed two exhibits before the Court (the statement of claim before the trial Court exhibit YD1 and the proposed additional ground of appeal, exhibit YD2 while the appellant on its part placed exhibit NJ1 which is the written address before the trial Court). He said the lower Court predicated the exercise of its discretion upon these materials which were duly placed before it. He submitted that the burden cast on the appellant to dislodge the case of the 1st respondent was not discharged by it and that a party who willfully fails to place all relevant materials before the Court cannot turn round to argue when it is too late that the Court erred in granting the application. It is learned counsel’s contention that in matters of exercise of discretion, this Court should not set aside the grant merely because the Court or a different Court would have arrived at a different conclusion. He cited the case of S & D Construction Co. Ltd v. Ayoku (2011) 13 NWLR (Pt. 1265) 487 at 515 to support his contention.
Learned counsel for the 1st respondent stated the principle
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on the exercise of discretion correctly, which is that this Court should not interfere with the discretion exercised by the lower Court merely because it would have arrived at a different conclusion. The exercise of discretion should rather be judicially and judiciously. The application to amend the statement of claim was granted on the basis that it will bring same in line with the evidence already pleaded and admitted in the trial Court. However the real intention for the application to amend the pleadings was to enable the applicant challenge the constitutionality of his suspension and subsequent compulsory retirement.
In the course of addressing the Court after the parties had closed their respective case, learned counsel for the plaintiff framed his issues for determination. In his issue 2, he alleged that the 1st defendant violated the plaintiff’s right of fair hearing in that the report of the committee was not given to the plaintiff; that the plaintiff was not given the opportunity to be heard on the report and that members of the committee who had made the recommendation were also present and participated in the deliberation of the 1st defendant on 20/12/2006.
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In the 1st defendant’s written address under issue 2, learned counsel contended that the complaint of the plaintiff as could be gathered from his statement of claim and reply filed is that the 1st and 2nd defendants did not accord him fair hearing in that no petition was written against him and that he was not accorded a hearing or charged with any allegation of his inability to discharge the functions of his office. He referred to paragraphs 21, 22, 23, 25 and 26 of the statement of claim and argued that from the pleadings and evidence led, the issue of participation of the members of the Investigation Committee did not arise at all as no issue was joined at all on this point. He then submitted that parties are bound by their pleadings and any submission made which is not founded on the pleadings ought to be discountenanced.
Both the parties and the Court are bound by the pleading of the parties to a suit; and the Court cannot base its judgment on a matter or fact not pleaded. Amendment of pleadings for the purpose of determining the real issues in controversy between the parties ought to be allowed at any stage of the
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proceedings, including on appeal unless such amendment will result in injustice or surprise, or embarrassment to the other party; or the applicant is acting mala fide or by his blunder the applicant has done some injury to the respondent which cannot be compensated by way of costs or otherwise. See: Adetutu v. Aderohunmu (1984) SCNLR 515; Laguro v. Toku (1992) 2 NWLR (Pt. 223) 278; Metal Const. (W. A) Ltd v. Migliore (1990) 1 NWLR (Pt. 126) 299; Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 478. It is also the rule that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial Court However, where the question involves substantial point of law, substantive or procedural, and it is plain that no further evidence would be adduced to thrash the issue, the Court will allow the question to be raised so as to prevent an obvious miscarriage of justice.
See:International Bank Plc v. Olam (Nig.) Ltd (2013) 6 NWLR (Pt. 1351) 468; Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489) 490.
The fresh issues which the applicant sought leave of the lower Court to raise namely the violation of the appellant’s
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right of fair hearing, the denial of the plaintiff’s opportunity to make representations on the report of the Investigative Committee of the 1st defendant are substantial issues of law that have been raised. The only reason advanced by learned counsel for the appellant is that evidence would be required to determine the participation of legal practitioners at the meeting of 20/12/2006. This is not enough reason why I should interfere with the discretion granted to the applicant to raise the fresh issues on appeal. The Court below properly exercised its discretion in granting leave to the applicant to amend the pleadings and raise fresh issues of law which were not argued before the Federal High Court. The appeal lacks merit and it is accordingly dismissed. I make no order as to costs.
SC.140/2012