May 25, 2025
Legalpedia Citation: (2010) Legalpedia (CA) 11123 In the Court of Appeal HOLDEN AT LAGOS Tue Feb 23, 2010 Suit Number: CA/L/355/05 CORAM PARTIES FESCUM & CO. LTD […]
CORAM
PARTIES
FESCUM & CO. LTD
FEDERAL AIRPORTS AUTHORITY
AREA(S) OF LAW
SUMMARY OF FACTS
The Applicant by motion on notice brought an application pursuant to Order 6 rules 4 and 15 and order 7 rule I of the Court of Appeal Rules 2007 (the rules), praying for an Order: permitting the Applicant to amend its original notice and grounds of appeal; seeking leave of the Court of Appeal to raise and argue additional grounds of appeal; leave to raise and canvass fresh issues that were not canvassed before the High Court to wit: that the relationship between the Applicant and the Respondent was contractual being that of Landlord and Tenant; amongst other reliefs.
HELD
Application Succeeds
ISSUES
Whether having regard to the facts and circumstances of this case, the appellant’s application ought to be granted.
RATIONES DECIDENDI
FRESH ISSUE(S) ON APPEAL – BASIS ON WHICH FRESH ISSUES CAN BE RAISED ON APPEAL
“An applicant wishing to raise any fresh issue or issues for the first time on appeal must seek for and obtain leave to do so otherwise such new issue or issues will be incompetent and liable to be struck out. Whether the court will grant or refuse leave depends on the nature of the new issue or issues sought to be raised and to prevent an obvious miscarriage of justice which will otherwise be occasioned. Where, as in the instant case, the appellant/applicant’s former counsel merely omits to raise a legal preposition supportable by evidence already on record without the need to call additional evidence, the court will in the interest of justice and finality exercise its discretion favourably to allow such new issue to be raised. The question whether the issue has any effect on the application of the public Officers Protection Act or not is only determinable in the main appeal and only if such issue is allowed to be raised. This is one of the real reasons for seeking leave so that the court before granting such leave will ensure that the new grounds of appeal sought to be added regarding the fresh issue raised, relate to the decision appealed against. The reason clearly being that an issue that has not been canvassed by the parties and decided upon by the court below may only be allowed by way of granting leave if the court is satisfied that the new issue or issues raised:
a) involves substantial point of law whether substantive or procedural; and
b) is needed to prevent an obvious miscarriage of justice
c) is premised on evidence already before the court which is needed to support I the new contention or new issues.-
FRESH ISSUE(S) ON APPEAL – GROUNDS ON WHICH AN APPELLATE COURT WOULD GRANT AN APPLICATION FOR LEAVE TO RAISE FRESH ISSUES ON APPEAL
“Failure to allow the new issue of law sought to be raised may lead to miscarriage of justice on mere technical ground. Moreover, there is no contention that the new issues sought to be raised is likely to over reach the respondent, in anyway. In the case of G.T.B. v Fadeo Ind. Ltd (SUPRA) Ba’aba, JCA observed at page 326 paras A-D thus:
“Where there is merely omissions to raise a legal proposition which can be supported by the facts found by court without the assistance of additional evidence, the appellate court will in the exercise of its discretion and in the interest of justice and finality not ignore the argument to raise the point. In the instant case, as ground 5 of the grounds of appeal was a ground of law raising the issue of denial of fair hearing which is a constitutional issue for which no additional evidence was required, it could be raised and argued by the appellants in the interest of justice.”
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FRESH ISSUE(S) ON APPEAL – INSTANCES WHEN AN APPLICANT MAY BE GRANTED LEAVE TO RAISE FRESH ISSUE(S) ON APPEAL
“The general rule adopted in this Court is that an Appellant will not be allowed to raise on appeal a question which was not raised, tried or considered by the trial Court. But where the question involves substantial points of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision of them, the Court will allow the question to be raised and the points taken and prevent an obvious miscarriage of justice. See K. Apene v. Barclays Bank of Nigeria &Anr, (1977) 11 NSCC 29 at 31; Shonekan v. Smith (1964) All NLR 168 at 173; Stool of Abinabina v. Chief Kojo Eyinadu (1953) A.C. 209 at 215. –
CASES CITED
Not Available
STATUTES REFERRED TO
Court of Appeal Rules, 2007|Public Officers Protection Act|