Umaru Tanko Al-makura V. Alhaji (Dr) Aliyu Doma & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA J.C.A. (Delivering the Leading Ruling)

This is an application dated 27/08/2011 and filed on 29/08/2011 brought under Order 7 of the Court of Appeal Rules 2011 and the inherent jurisdiction of this court. The applicant prayed for 5 reliefs in the application namely:

1. Leave to raise and argue fresh issues in the appeal as contained in grounds 1 – 5 of the notice of appeal.
2. Leave to raise and argue issues of mixed law and facts in the appeal as contained in grounds 1 8, 12, 13, 15 and 16 of the notice of appeal.
3. An Order deeming as properly filed and served, the notice of appeal containing the fresh issues, mixed law and facts attached to this motion, the requisite filing fees having been paid.
4. An Order granting leave to the Appellant/Applicant to rely on the Appellants brief of argument attached to this motion, neater copies filed and served simultaneously which said Appellant brief contains argument on the fresh issues, mixed law and facts the requisite fees having been paid for the purpose of time saving as this is an election petition which is time sensitive.
5. An order deeming as properly filed and served the appellant’s brief of argument attached to this motion the appropriate fees having been paid and neater copies filed simultaneously with this motion.

The application is based on six grounds. It is accompanied by a 17 paragraphs affidavit in support and two annexures marked Exhibit “A” and “B”. Also accompanying the motion is a 6 paragraphs affidavit and one annexure marked Exhibit “FA” as well as the further and better affidavit of 7 paragraphs and one annexture “F8″.

In his oral submission, Learned Senior counsel for the applicant submitted that he relied on all the paragraphs contained in the motion paper. He urged this court to accept his written address in this motion even though filed without leave of this court. He finally urged this court to grant the application.

Learned senior counsel for the Respondents, chief Akin-Olujimi (SAN) even though he did not file any counter affidavit in opposition vehemently opposed the application on points of law. He contended that the first relief contained in the motion paper was misconceived because leave to raise a new/fresh issue may be granted if such issue has never been raised, But in this case the issue was raised in the proceedings of the tribunal. He referred to page 16 of the ruling lines 3 – 7 where it was raised. He also refers to the case of Comptoir Commercial Ltd Vs Ogun State Corporation (2002) 9 NWLR (Pg 773) 629 @ 653 paragraph a – c.

The Learned Senior Counsel further submitted that grounds 3, 4 and 5 of the grounds of appeal are supposed to be” additional grounds of appeal” because they are an attack on the decision of the tribunal. Ground 2 is not substantial issue of law but characterisation of ex-parte motions. He urged this court to refuse relief No 1″

On relief no 2 on the body of the motion the applicant is misconceived in the sense that what he needs to do is the application for leave to appeal on issues of mixed law and facts but not “leave to raise issue of mixed law and facts” in making such application for leave to appeal, the applicant must comply with Order 7 Rule 7 of this court’s rules 2011. The case of Audu Vs. INEC (No.1) (2010) 13 NWLR (Pt.12 12) 431 @ 454 paragraphs E – H. And 455 paragraph A – C. was referred to buttress his submission. He urges the court to refuse this relief No:2.

On reliefs 3 – 5 on the motion papers, the learned Senior Counsel contended that if this court agrees with his objection they cannot be granted, He finally urged this court to refuse the application and dismissed it.

On his part, learned Counsel for 3rd – 5th respondents is not opposing the application.

In reply on point of law, learned Senior Counsel for the applicant, Dr Izinyon (SAN) submitted that where neither party raised an issue but the court or tribunal suo-motu, it becomes a fresh issue. He refers to the case of Ogba Vs Owunzo (2005) ALL FWR (pt 275) @ 581 particularly 589 -590 paragraph (g).

In resolving the issues under consideration it is my view that we have to consider the effect of filing the reliefs sought by the applicant. It is clear from the submission of both learned Senior Counsel that the issue involved is the issue of reviving a nearly dead appeal filed on 11/08/2011. From the earlier grounds of appeal filed he can successfully and conveniently ventilate his grievences against the judgment appealed against.

I have studied the prayers and the prayers the applicant is in seeking for are at the discretion of this court. And as such such discretion ought to be exercised based on the facts before the court and not any extraneous matter or issue.

From the record of appeal we observed that grounds 2, 3, 4 and 5 are not new issues at all. They were argued and resolved at the tribunal, see p.16 L 3 -10 of the Ruling. It is only in a situation where a ground of appeal not argued in the court below where that court itself heard the case in hand, that one can talk of a ground of appeal not having been argued before it. But an issue raised by the court even suo- motu and resolved in its judgment which judgment bases on that issue should not be a new/fresh issue for the purpose of appeal. In a case, a party aggrieved by an alleged error in the judgment arising from the said issue has a constitutional right of appeal from the decision of the court for which he needs no leave, See Ogunsola Vs Nicon (1996) 1 SCNJ 67 @ 76.

It has been well established by a line of authorities that no substantial point which had not been taken in court below, whether a ground of appeal or as point in the argument of parties will be raised for the first time on appeal except on special circumstances. See: Ejiofor Vs Okonkoro (1982) S.C. 74 @ 93 -98.