Plateau State Government & Anor V. Chief Harry Akande & Anor(2) (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Lead Ruling)

This is an application brought pursuant to Order 7 Rule 2 of the Rules of this court; it is for an order granting leave to the applicants to file and argue a fresh issue on appeal based on the appeal filed on the 6th of November, 2012, against the judgment of Honourable Justice Abdu A. Kafarati of the Federal High Court Abuja, in Suit Number FHC/L/CS/833/2000, delivered on the 2nd day of November, 2012.

The application is based on the following grounds:

1. That the 1st respondent relied on the judgment of the Lagos State High Court delivered on the 9th of November, 1993 in Suit Number: LD/1278/90 in suit number, FHG/L/CS/833/2000 before the lower Federal High Court Abuja, in contravention of Order IV Rule 8 of the judgment (Enforcement) rules enacted pursuant to the Sheriff and Civil Process Act, Cap 407 Laws of the Federation of Nigeria, 1990.
2. That the fresh issue sought to be filed and argued on appeal before the honourable court which is predicated on ground (a) above touches on the jurisdiction of the Federal High Court, Abuja in Suit Number FHC/LCS/833/2000 to have heard and determined the action.
3. That the fresh issue was not conversed before the lower court.
4. That an appeal against the judgment of lower court delivered on the 2nd of November, 2012 was filed on the 6th of November, 2012.
5. That additional grounds of appeal was filed on the 22nd of January, 2013.
6. That the records of appeal have been transmitted to this honourable court.

The application is supported by a 6 paragraph affidavit deposed to by Nanfa Daniel Delleng; with the notice and grounds of appeal attached as Exhibit A, the additional grounds of appeal as Exhibit B, and Exhibit C the fresh issue sought to be argued on appeal.

The 1st respondent filed a 7 paragraph counter affidavit in opposition to the application, deposed to by one Akonobi Oluchukwu with a copy of the ruling delivered on the 16th of March, 2005 as Exhibit A, and a copy of another ruling delivered on the 18th of March, 2009 as Exhibit B.

Counsel were ordered to file written addresses; learned counsel to the applicant filed his in support of the application dated and filed on the 20th February, 2014; learned counsel to the 1st respondent filed his on the 27th of February, 2014, followed by a reply by learned counsel to applicant filed on the 7th of March, 2014.

Edward G. Pwajok Esq., learned counsel to the applicant formulated a sole issue for determination as:

Whether this honourable court should not use its discretionary power to grant the appellants/applicants’ application for leave to rise and argue a fresh issue on appeal?

Learned counsel to the 1st respondent Rickey Tarfa SAN adopted the issue as formulated, but couched it differently; for the purpose of brevity and clarity the application will be determined on the issue as formulated for the 1st respondent, it is thus:

Whether the appellants/applicants have made out a good case to be granted leave to raise a fresh issue on appeal by the motion and the supporting affidavit?

It is submitted for the applicants that the fresh issue sought to be raised was not raised at the lower court by either the applicants, nor the 1st respondent in their final written addresses, learned counsel referred this court to pages 760-808 and 854-808 of the record; and contended that leave is necessary because the law does not give advantage to one party against the other; he referred this court to DAGACI OF DERE v. DAGAGI OF EBWA (2006) All FWLR (Pt. 306) at 841 and U.T.B. LTD v. DOLMETSCH PHAR. NIG. LTD (2007) All FWLR (Pt. 385) at 446.

That the fresh issue sought to be raised is jurisdictional and so can be raised at any stage of proceedings, especially as it would not require adducing fresh evidence, as the evidence forming the basis of the prayer is in paragraph 4.07 of the submissions for the applicants; he referred this court to F.C.D.A. v. EZINKWO (2007) All FWLR (Pt. 393) at 109.

Learned counsel submitted while referring to A. N. MOHAMMED LTD v. AFRIBANK (NIG) PLC (2007) ALL FWLR (Pt. 344) at 99 that, it will be neater to grant this application and allow parties to be heard on the merit of their arguments before considering the merit of the fresh issue.

On the 1st respondent’s counter affidavit learned counsel submitted that the record of this court shows that the record of appeal was transmitted by the lower court on the 12th of February, 2013; that the respondents will not be prejudiced as they will have the opportunity to respond to the issue sought to be raised; he referred this court to DUKE v. GOVERNOR OF RIVERS STATE (2013) 2 SCNJ 403 at 421 contending that fair hearing dictates so.