Ambassador Alh. Shehu Othman Malami, Ofr & Anor V. Imonkhuede Ohikhuare & Ors (2017)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The Appellant/Applicant herein brought this application praying for the following reliefs, that is:-
- An order extending time within which the appellants/applicants shall seek for leave of honourable Court to appeal on grounds of mixed law and facts against the judgment of the Court of Appeal sitting in Abuja Division delivered on the 25th may, 2015 allowing Appeal No. CA/A370/2012.
- An order granting leave to the appellants/applicants to appeal on grounds of mixed law and facts against the judgment of the Court Appeal sitting in Abuja Division in Appeal No. CA/A/370/2012 delivered on the 28th May, 2015 as contained in Grounds 3, 4, 5, 7, 9, 10, 11, 12 and 13 of the amended Notice and Grounds of Appeal.
- An order extending time for the Applicants/Applicants to appeal against the said judgment in Appeal No. CA/A/370/2012 as it relates to Grounds 3, 4, 5, 7, 9, 10, 11, 12 and 13 delivered on the 28th May, 2015 on grounds of mixed law and facts.
- An order granting leave to the Appellant/Applicants to amend their Notice and Grounds of Appeal dated 4th June, 2015 and
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filed on 5th June, 2015 by adding additional grounds 9, 10, 11, 12 and 13 as shown by the underling on Exhibit D.
- An order deeming the Amended Notice and Grounds of Appeal dated the 19th January, 2016 and filed 22nd January, 2016 which contains additional grounds 9 to 13 as having been properly filed and served which is annexed as Exhibit D.
- An order granting to the Appellants/Applicants leave to raise fresh issues not canvassed at the lower Court as contained in Grounds 9 to 13 of the Amended Notice and Grounds of Appeal.
- An order extending time within which the Appellants/Applicants will file and serve their Appellants brief of argument. The proposed Applicants brief of argument. The proposed Applicants brief of argument is attached hereto as Exhibit E.
The application is supported by an affidavit. It is brought pursuant to Section 233 (3) of the 1999 Constitution, as altered, Section 27 (4) of the Supreme Court Act and the Orders 2 Rule 31(1), 8 Rules (4) and 12 of the Supreme Court Rules, and also under the inherent powers of this Court. The grounds upon which the application is predicated are stated
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on the motion paper filed on 22nd January, 2016.
The application was heard on 28th, 2017. All the respondents, except the 1st respondent, do not oppose the application. The 1st respondent, through Paul Erokoro, SAN specifically does not oppose reliefs 1, 2, 3 and 7 on the face of the motion paper. Mr. Erokoro, SAN of counsel to the 1st respondent categorically says that the 1st respondent opposes only reliefs 4, 5 and 6 sought by the applicant as the appellant. It is on this basis that Mr. Agi SAN, of counsel for the applicant prays that reliefs 1, 2, 3 and 7, not opposed, should be granted as prayed. Accordingly, the said reliefs 1, 2, 3 and 7, not opposed, are hereby granted as prayed. An order is hereby therefore granted extending the time within which the applicants shall seek leave of this Court to appeal on grounds of mixed law and facts against the judgment of the Court of Appeal sitting in Abuja Division delivered on 25th May, 2015 in the appeal No. CA/A/370/2012.
The appellants are hereby granted leave to appeal on grounds of mixed law and facts against the judgment of the Court of Appeal sitting in the Abuja Division in Appeal No.
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CA/A/370/2012 delivered on 28th May, 2015 as contained in grounds 2, 3, 4, 5, 7, 9, 10, 11, 12 and 13 of the Amended Notice and Grounds of Appeal, exhibited as Exhibit D in this application. An order extending time within the Applicants/Applicants may appeal against the said judgment in the Appeal No. CA/A/370/2012 delivered on 28th May, 2012, as it relates to Grounds 3, 4, 5, 6, 7, 9, 10, 11, 12 and 13 in the aforesaid Amended Notice and Grounds of Appeal on grounds of mixed law and facts is further granted. Even though the respondents do not oppose relief No. 7; that is, an order extending the time within the Appellants/Applicants may file and serve the Appellants Brief of Argument, attached as Exhibit D, I shall pause a while on it and come back to it anon.
The 3 reliefs opposed in the application are Reliefs 4, 5 and 6. They are in effect, to amend the Notice and Grounds of Appeal filed on 5th June, 2015 by the addition thereto of grounds 9, 10, 11, 12 and 13 contained in the Amended Notice and Grounds of Appeal, Exhibit D. Relief 5 specifically prays for an order deeming as properly filed and served the Amended Notice and Grounds of Appeal
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containing the additional grounds 9 to 13 as shown on Exhibit D. Relief 6 on the motion paper is the prayer for leave to the Appellants/Applicants “to raise fresh issues not canvassed at the lower Court as contained in Grounds 9 to 13 of the Amended Notice and Grounds of Appeal”, as shown on Exhibit D.
It is instructive that the 1st Respondent does not oppose Reliefs 1, 2 and 3 on the motion papers; and they have, each been granted as prayed. It means therefore that the Orders, granted as prayed, now enure to the Appellants /Applicants to appeal on grounds 3, 4, 5, 7, 9, 10, 11 and 13 contained in Exhibit D. The right, upon the leave duly granted, now accrues to the Appellants/Applicants to file those additional grounds of appeal being grounds of mixed law and facts.
The heart and soul of Reliefs 4, 5 and 6 sought by the Applicants/Applicants seem only to be for leave to raise and argue fresh issues in their appeal, which fresh issues arise apparently from grounds 9, 10, 11, 12 and 13 on Exhibit D. The fresh issues, Mr. Agi, SAN, for the Appellant submits, touch on the law as it relates to contractual relationship and the effect of an illegal
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contract and also the effect of the search report vis–vis what the law requires from the deeds registry. The learned senior counsel submits that the issues are issues of pure law and that the appellants will not require additional or fresh evidence to argue them as evidence, on which the issues are predicated are already in existence on the printed record of appeal. The learned senior counsel further submits on the authority of HELEN JOHNSON UDO v. THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS AND STARS (2013) LPELR-19910 (SC) that this Court can grant the appellant leave to raise and argue fresh issues when the fresh issue he desires to raise, involves substantial point of law, substantive or procedural, and no further evidence would be required in the determination of the fresh issue.
Mr. Agi, SAN, further submits that the fresh issues are founded on evidence that is purely documentary and it is already in the record, that the piece of evidence was tendered by the 1st respondent who can neither call oral evidence to contradict the contents of the documentary evidence nor can he cross-examine his own witness with the view to
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discrediting him, and further that the said search report is fundamental to the just determination of the case, the 1st respondent having commenced his development of the disputed land before the search report, Exhibit E.
The 1st respondent filed counter-affidavit on 9th November, 2016 in opposition to the application whereby the Appellants seek leave to raise and argue fresh issues from grounds 9, 10, 11, 12 and 13 contained in Exhibit D. It is averred in paragraph 3(b) (e) of the Counter-Affidavit that:
(b) That the fresh issues sought to be argued in the appeal were neither raised at the trial Court nor at the lower Court and that facts related thereon were not pleaded.
c. New evidence, including calling of additional witnesses by the 1st Respondent would be necessary if the Honourable Court allows the Appellants raise fresh issues sought.
d. The issues sought to raised concerning the search report (Exhibit E) will require the 1st respondent to call evidence to show the discrepancy in dates was a mere error that was not material.
e. The contents of the said search report had been available to the Appellants at the trial
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Court and lower Court and were not challenged in those Courts.
Mr. Erokoro, SAN on the facts averred in the counter-affidavit, submits that the fresh issues would necessitate the calling of further evidence by the 1st respondent, particularly of the evidence of the witness through whom Exhibit E was tendered to explain the discrepancies. Senior counsel submits further that the 1st respondent will not have the opportunity to cross-examine the witness in this Court on Exhibit E. On fraud and collusion, being the fulcrum of the fresh issues, Mr. Erokoro, SAN, submits that the facts on these issues were not pleaded.
Mr. Agi, SAN, in response to the contention of Mr. Erokoro, SAN, that the fresh issues the Appellants seek to raise were not pleaded, refers to paragraph 13 of the Statement of Claim at page 7 of the Record and submits that the Appellants pleaded wrongful revocation of the plot and the re-allocation of the same by the Minister of the Federal Capital Territory to a fellow Minister.
I shall do well in this application not to touch on any substantive matter in the main appeal.
The two learned senior counsel are ad idem on the
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templates for granting leave to the appellant to raise fresh issues on the appeal. They are that:-
- The fresh issue involves a substantial point of law, substantive or procedural.
- All the facts in support of such fresh issue or question shall be before it in the record of appeal; and
- If no further evidence is required.
See AYETOBI v. GOVERNOR OYO STATE (1994) 5 NWLR (Pt. 344) 290; KAZA v. THE STATE (2008) 1-2 SC; HELEN JOHNSON OBU v. THE REGISTEED TRUSTEES OF THE BROTHERHOOD OF THE STARS (2013) (supra); CORPORATE IDEALS INS. LTD v. AJAOKUTA STEEL CO. LTD (2014) 165 AT 188.
Let it be added, also, that this Court will grant leave to raise and argue fresh issues where it considers that the refusal of the leave will occasion miscarriage of justice. It will be refused where the fresh issue of point introduces an entirely new case line of defence different from the issues fought by the parties at the trial Court, see DAHIRU v. KUMALE (2001) 11 NWLR (Pt. 728) 244. Accordingly, in an application for leave to raise fresh issue on appeal the overall consideration is the justice of the matter in the appeal.
It appears that the
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strong wicket of Mr. Erokoro, SAN in opposition to this application is that the 1st respondent would suffer prejudice and miscarriage of justice if the application was granted. The grounds for this perception is that if the appellants are allowed to raise fresh issues relying on existing Exhibit E, the search report, then they would not have opportunity to clarify some issues surrounding Exhibit E. Senior Counsel argues that it would require them cross-examining their own witness through whom the search report, Exhibit E, was tendered to do some explanations on the discrepancies.
It sounds rather absurd for the Senior Counsel with all deference, to suggest, firstly, that a party would cross-examine his own witness after the close of the case or after all the parties had all closed their respective cases; and secondly, to suggest that he would call oral evidence to contradict or vary the contents of a document or documentary evidence. I agree with Mr. Agi, SAN, that a party is not allowed, in law, to cross-examine his own witness with the view of impeaching his credit, unless upon leave granted if the Court is satisfied that the witness had become hostile.
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The Court will only treat a witness as a hostile witness if it is satisfied that the witness does not want to tell the truth, or that the witness bears some animosity towards the party that calls him. See SOTARI F. TAMUNOWARI: ANNOTATION OF THE NIGERIAN EVIDENCE ACT 2ND ED. PAGE 516. The witness who tendered Exhibit E had since been discharged having testified and duly cross-examined by the party against whom he testified. A witness will not be cross-examined by the party who called him merely because it appears that his evidence would not be, or was not favourable to the party who called him.
I do not think it is the law that the appellate Court would deny the appellant the request to raise fresh issue on appeal merely because the respondent would create artificial obstacles to frustrate that request. That would not be the interest of justice.
In the principles for granting leave to raise fresh issue on appeal, one major consideration is if further evidence is not required. For the Appellants, Mr. Agi, SAN, gives assurance that no fresh or further evidence would be required and the fresh issue could be erected on the existing evidence in the
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printed record. In my firm view, this factor among others, for consideration in granting leave to raise fresh issue has been satisfied. Since the Appellants, herein, would raise and argue the fresh issue only on the existing and available evidence and no further evidence would be required, it follows in my view that, on the evidential materials in support of the Appellants prayer for leave to raise fresh issues, there is nothing inhibiting that request.
It has also been contended for the 1st respondent that the appellants at the trial Court did not plead fraud and collusion in order to warrant the additional grounds of appeal on which they intend to raise the fresh issue. It seems belated for the 1st respondent to contest the grant of leave to the Appellants to file the additional grounds 9, 10, 11, 12 and 13 in Exhibit D. The 1st respondent did not oppose the grant of prayers 1, 2 and 3 in this application. He cannot be allowed to prevaricate. They are now estopped by virtue of Section 169 of the Evidence Act, 2011, from reneging on that no contest or no opposition to the filing of grounds 9, 10, 11, 12 and 13 in Exhibit D, the Appellants having
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urged that the prayers be granted as prayed and they were granted as prayed.
Mr. Erokoro, SAN for the 1st respondent submits that no facts on fraud and collusion were pleaded to warrant the additional grounds. In response, Mr. Agi, SAN, for the appellants draws attention to paragraph 13 of the Statement of Claim at page 7 of the Record where wrongful revocation of the appellants title and the re-allocation of the same parcel of land by the 2nd Respondent to his fellow Minister were pleaded. This prima facie, raises a substantial point of law as to whether the revocation was for public purpose. This seems to be the point being made by the appellants in particular 11 to Ground 10 of the grounds of appeal, to wit:-
- The trial Court in its judgment made the following Orders:-
“An order of Court setting aside any allocation to the 3rd defendant by the 1st defendant plot No. 865 (Now plot No. 1890) within Cadastral Zone A04, Asokoro, Abuja F.C.T.: An order of Court setting aside the purported sale of plot No. 865 (now plot No. 1809) within Cadastral Zone A04, Asokoro Abuja F.C.T. by the 3rd defendant to the 4th defendant for being null
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and void ab initio “which in effect made the subsequent or collateral contract which is founded on or springs from an illegal transaction illegal and void.”
Exhibit E, which appears to be the epicentre of this application for leave to raise fresh issue in this appeal is also the subject of ground 9 in Exhibit D.
It is hereunder reproduced:
GROUND 9
The learned Justices of the lower Court misdirected themselves in law by relying on the search report. Exhibit E, to hold that the 1st Respondent is a bona fide purchaser for the value without notice of any encumbrances after finding that “the search conducted did not reveal the 1st Respondents previous interest in the land”.
PARTICULARS OF MISDIRECTION
i. The lawyer who conducted the search knows that the law makes it mandatory for previous interest to be documented as provided in the Federal Capital Territory Land use Regulations, 2004 in the 10th Schedule, Paragraphs 5 (iii) and 6 (ii) which is an imparted knowledge.
ii. From the evidence before the Court, the area is built up area where neighbours
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even encroached before the purchase but the Appellant or his agents never made any inquiry from them as to who owns the land in question.
iii. Exhibit E, which is heavily relied upon is itself evidence of fraud in that the offer was made on 25th March, 2005 even before the application for land was made on the 20th September, 2005.
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. ADESANYA (2013) 18 NWLR (Pt. 386) 255.
In addition, there are grounds 11, 12 and 13 in Exhibit D, which in my firm are grounds raising substantial points of law. For case clarity, the grounds are as herein below reproduced. That is;
GROUND 11
The lower Court misdirected themselves in law when they
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found that the 1st Respondent is bona fide purchaser without notice when there was manifest evidence of the 1st Respondent participating in a wrong doing.
PARTICULARS OF MISDIRECTION
i. Had the lower Court adverted its mind to Exhibit B, the deed of assignment between the 1st and 4th Respondents in the recital wherein the 4th Respondent became seised of the land of the 1st appellant on 25th March, 2005 and Exhibit 2, the Notice of Revocation of the 1st Appellants land dated 5th October, 2005 the evidence of collusion was manifest.
ii. The title of the 4th Respondent which the 1st Respondent alleged by purchased bonafide was taken from the 1st Appellant by the 2nd and 4th Respondents seven (7) months before as an afterthought it was revoked by Exhibit 2.
iii. Evidence abound that the 1st Respondent knew the 4th Respondent as serving Minister and colleague of the 2nd Respondent whose occupant was Nasir El-Rufai.
iv. The search report exposed this anomaly to the effect that the 4th Respondent had Ministerial approval and allocation of the land before even applying for the land and purported to side with authorities to
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forcefully take away a citizens property unlawfully.
GROUND 12
The lower Court erred in law when they found and held:-
The trial Court was in error therefore, in the opinion of this Court in dismissing the defence of larches (sic) and acquiescence set up by the Appellants at the trial.
PARTICULARS OF ERROR
i. The 1st Respondent having put up a defence of a bona fide purchaser for value without notice cannot or ought not to rely on defence of larches and acquiescence which is contradictory to the plea of bona fide purchaser without notice.
ii. The 1st Respondent never pleaded mistake as to his legal rights to the land so as to rely on equitable doctrine of larches and acquiescence.
iii. The 1st Respondent in the lower Court insisted on being a bona fide purchaser over the value without notice.
GROUND 13
The lower Court erred in law when they failed to enforce the contract between the 1st and 4th Respondents in the circumstances of this case.
PARTICULARS OF ERROR
i. In the 4th Respondents contract with the 1st Respondent, the 4th Respondent covenanted thus:-
The Assignor
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hereby covenants with the Assignee that the Assignor shall at all times hereafter sufficiently indemnify the Assignee against any subsequent claims in respect of the said transferred property concerning or connecting to the title evidence that both knew of the possibility of challenge to their title.
ii. The 4th Respondent further covenanted that:-
and that he has the right to assign these presents and covenants to indemnify and keep indemnified the Assignee against all losses, costs that the Assignee may incur or suffer a result of defect in the title to the said property or any adverse claim of a third party or further evidencing that both parties knew third interest.
iii. The 1st Respondent who now know that the 4th Respondent had no title ought to have relied on his contract to seek indemnity from the 4th Respondent his vendor instead of fighting the 1st Appellant who has the legal title to the land.
For the purpose of reliefs 4 and 5 in this application, Grounds 9, 10, 11, 12 and 13 in the Amended Notice and Grounds of Appeal. Exhibit D cannot be said to raise merely peripheral points of law. They each raise
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substantial point of law. Reliefs 4 and 5 sought by the Appellants in this application shall be and are accordingly granted as prayed.
For the purpose of relief 6 sought by the Appellants the fresh issue of law wherein a substantial point of law is disclosed is a mandatory condition, in addition to the others which are largely on facts. Taking Exhibit E vis–vis the additional grounds of appeal, particularly Grounds 9 and 10 in Exhibit D. I am of the considered view that the fresh issue disclosed thereby raise substantial point of law. The Appellants application for leave to raise and argue, in this appeal for the first time, fresh issue of law has satisfied all the established principles or templates for the grant of the leave sought.
In view of the foregoing therefore, it is hereby order that leave be and is hereby granted to the Appellants/Applicants to amend their Notice and Grounds of Appeal filed on 5th June, 2015 by the addition thereto of additional grounds of appeal 9, 10, 11, 12 and 13 as shown in Exhibit D. It is further order that the Amended Notice and Grounds of Appeal filed on 22nd January, 2016, containing
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additional grounds 9, 10, 11, 12 and 13 having duly filed served shall be and is hereby deemed filed and served. Leave is hereby also granted to the appellants/applicants to raise issues of law, not canvassed at the lower Court from the additional grounds 9, 10, 11, 12 and 13 in the Amended Notice and Grounds of Appeal.
Relief No. 7 is not opposed by the respondents. Accordingly, it is hereby granted as prayed. Time is hereby extended by 30 days, within which the appellants may file their brief of argument in this appeal.
SC.373/2015(R)
