LEKAN OLAOYE V THE STATE
April 13, 2025DESTRA INVESTMENTS LTD.Vs FEDERAL REPUBLIC OF NIGERIA & 1 ORS
April 13, 2025Legalpedia Citation: (2018) Legalpedia (CA) 46138
In the Court of Appeal
HOLDEN AT PORT HARCOURT
Sun Jan 14, 2018
Suit Number: CA/PH/15/2014(R)
CORAM
ALI ABUBAKAR BABANDI GUMEL
ALI ABUBAKAR BABANDI GUMEL
ALI ABUBAKAR BABANDI GUMEL
ALI ABUBAKAR BABANDI GUMEL
ALI ABUBAKAR BABANDI GUMEL
ALI ABUBAKAR BABANDI GUMEL
ALI ABUBAKAR BABANDI GUMEL
ALI ABUBAKAR BABANDI GUMEL
ALI ABUBAKAR BABANDI GUMEL
ALI ABUBAKAR BABANDI GUMEL
ALI ABUBAKAR BABANDI GUMEL
PARTIES
GECO-PRAKLA (NIG) LIMITED SEISMOGRAPH SERVICES (NIG) LTD
E. B. UKIRI
AREA(S) OF LAW
SUMMARY OF FACTS
On 17th October 2017 this application came up for hearing. T. F. Oyibo Esq., appeared for the Appellants/Applicants while G. Ikechi-Jeff Esq., announced appearance for the Respondent. Learned counsel to the applicants informed the Court that they have filed a written address as ordered by this Court on 28th September 2016. Learned counsel to the respondent replied that they were served with the said written address but they are yet to file their reply address, that: we applied for a date to do so. This Court was not amused by this submission of learned counsel to the respondent so it ordered learned counsel to the appellants to move their application since learned counsel to respondent did not file a motion for extension of time to file their written address. Learned counsel moved the Court as per their motion paper filed on 24th November 2014. He urged the Court to grant their application. The facts, in brief that gave rise to filing this application is that the Applicants were the Defendants in Suit No. AHC/42/1996 while the Respondent was the Claimant. The Claimant filed a writ of summons on 21/11/1996 against the Applicants before the Rivers State High Court of Justice claiming for the sum of N5, 000,000:00 being and representing commission, solicitors charge, estate valuers fees, professional fees, retainer’s fees and general damages for breach of contract. On 25th November 2013, the learned trial Judge entered judgment in part in favour of the Claimant (now Respondent) in the sum of N4, 215,000:00. The Applicants were dissatisfied with the decision of the trial Court hence; a Notice of Appeal was filed. Having noticed some errors in the notice of appeal, learned counsel to the Appellants/Applicants filed a fresh Notice and Grounds of Appeal wherein he indicated that he will file additional grounds of appeal as soon as he get the Record of Appeal. Pursuant to the compilation and transmission of the record of appeal on 20th January 2014, on 30th June 2014, the Applicants’ Supplementary Record of Appeal was deemed properly compiled and transmitted by this Court. It is in fulfilment of its assertion to file additional grounds of appeal that the Applicants filed this motion. They also seek to regularize their Appellants’ Brief of Argument.
HELD
Application Granted.
ISSUES
Whether in the circumstances of this case and the materials placed before this Honourable Court, the Court should exercise its discretion to grant the Orders sought by the Applicants in this application?
RATIONES DECIDENDI
FRESH ISSUE ON APPEAL – CONDITION TO BE SATISFIED BY AN APPLICANT SEEKING TO RAISE FRESH ISSUES ON APPEAL
“The law is trite that an appellant can, with leave of the Court, at any time before the hearing of the appeal, raise a fresh issue of law which was not considered at the trial. However, there are at least two conditions to be satisfied by an applicant seeking to raise fresh issues on appeal as laid down by this Court in Abraham Frama V. Miss Itanagbe Hozaife (2013) LPELR – 20270 (CA) on page 5 paragraphs B C thus: –
‘An Applicant seeking to raise fresh issues must therefore meet at least two stringent conditions: (a) the fresh issue must involve substantial point of law and (b) must satisfy the Court that it has placed before the lower Court all facts establishing the issue. Per AGBO JCA.
The Supreme Court has adduced another condition to be satisfied by an applicant seeking to raise fresh issues on appeal in Ambassador Alh. Shehu Othman Malami Ofr & Anor V Imonkhuede Ohikhuare & Ors (2017) LPELR 42580 (SC) when it held per EKO JSC on page 15 paragraphs B E thus: –
‘For the Appellant to be granted leave to raise fresh issue on law in an appeal, the issue must be one on a substantial point of law, substantive or procedural. See HELEN Johnson Obu V. The Registered Trustees Of The Brotherhood Of Cross and Star (Supra). A substantial point of law is from the facts of the case which will materially determine the fortunes of the appeal, and not just a point of law which is merely peripheral. See Bamaiyi V. A-G Of The Federation (2001) 12 Nwlr {Pt. 727} 468; Coca Cola Nig. Ltd. V. Akinsanya(2013) 18 NWLR {Pt. 386} 255.”
FRESH ISSUE ON APPEAL – INSTANCE WHEN RAISING FRESH ISSUE ON APPEAL CAN BE RESORTED TO
“The justice of this application demands that exception to the general rule of hearing and determining appeal based only on the basis of issues raised at the trial Court could be resorted to.. In Udo V. Registered Trustees Of The Brotherhood Of The Cross And Star (Supra) at page 501 paragraphs H A the Supreme Court per M. D. MUHAMMAD JSC held thus: –
‘The overriding duty of Courts, including this Court, however, is to do substantial justice between parties, a principle which entitles the appellate Courts to find exceptions to their primary duty of determining appeals before them solely on the basis of the issues raised and determined at the Court below. Leave to litigants to raise fresh points for the first time on appeal, having not raised same at the trial or Court below, is one of such exceptions.”
RIGHT TO FAIR HEARING – DUTY OF COURT TO AFFORD PARTIES AN OPPORTUNITY TO BE HEARD ON THE MERIT
“The law is trite that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regards to such rights or obligations. Therefore in deciding whether or not to grant an application of this nature, the Court must be guided by the noble consideration of doing substantial justice between the parties by according to them the opportunity of hearing their case on the merit, provided no injustice shall be visited upon the other side.”
RIGHT TO FAIR HEARING – RIGHT OF PARTIES TO BE HEARD BEFORE THE COURT TAKES ANY DECISION
“In Thomas Eniyan Olumesan V. Ayodele Ogundepo (1996) LPELR 2625 (SC) the Supreme Court while pronouncing on right to fair hearing held thus: –
‘It is a basic principle of law that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regards to such rights or obligations. Put differently, it is an indispensible requirement of justice that an adjudicating authority, to be fair and just, shall hear both sides, giving them ample opportunity to present their case. See Gukas V. Jos Int. Breweries Ltd (1991) 6 NWLR {Pt.199} 614 at page 623 and Alhaji Mohammed and Anor V. Lasisi Olawunmi (1990) 2 NWLR {Pt. 133} 458 at page 485. per IGUH JSC on page 14 paragraphs E G. See also the holding of the Supreme Court in Owunari Long-John & Ors V. Chief Crawford N. Blakk & Ors (1998) LPELR 1791 (SC) per IGUH JSC on page 15 paragraphs C – D.”
CASES CITED
Not Available
STATUTES REFERRED TO
Court of Appeal Rules 2011|
