Chief Anthony Awote & Anor. V. Chief Olatunji Odunsi & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

ALFRED PEARSON EYEWUMI AWALA, J.C.A.

The applicants here filed this motion praying this court for:

(A) Leave to raise and argue a new point of law in this court which point of law was not previously raised in the lower court viz: “The Ijebu Ode Council of Olorituns, by name and style under which the action was filed is not a juristic person cannot therefore sue or be sued and so there is no proper plaintiff in law.”

(B) Leave to amend the original Omnibus ground earlier filed in this case and dated 18/10/02 by adding further grounds thereto as follows:

1. The Ijebu Ode council of Olorituns the name and style under which the action was filed is not a juristic body and so cannot sue or be sued and consequently there is no proper plaintiff in law.
2. The learned trial Judge erred in law by holding that the plaintiffs had a right to prosecute the action despite the fact that they had opted out of Ijebu-Ode Council of Olorituns and had formed a parallel body – the Ijebu-Ode Progressive Olorituns Consultative Council and thereby came to a wrong decision which had occasioned a miscarriage of justice.
3. The learned trial judge misdirected himself in law when he held on page 130 lines 18-22 that:

“My answer to the first question for determination is in the affirmative. The ljebu-Ode Council of Olorituns has the power to discipline its members including the 1st and 2nd plaintiffs by way of suspension but later concluded on page 150 items 4 and 5 that “The suspension of the 1st and 2nd plaintiffs…. .is unfair, null, void and of no effect.

He said later … is hereby quashed” and thereby occasioned miscarriage of justice.

4. The learned trial judge erred in law when he held that the defendants proved their case that whoever is Oliwo Agbadagbodo of Ijasi is the permanent chairman when the issue as it were had been settled on the pleadings and evidence and thereby arrived at a wrong conclusion.

Particulars

(a) Plaintiffs, by paragraph 26 of their statement of claim averred that the next chairman, should by logic of rotation thus came from Isale Iwade which evidence was completely contrary to the evidence of the Oloritun of Isale Iwade D.W.7 who said 636 Nigerian Weekly Law Reports 21 May 2007 (Awala, J.C.A.)

(i) The chairmanship was not by rotation and

(ii) in any case it was not the turn of Isale Iwade to be chairman

5. The learned trial judge erred in law by nullifying the chairmanship of the Olorituns when such situation enjoyed the SUPP0I1of the vast majority of the Ijebu-Ode Council of Olorituns and thereby occasioned a miscarriage of justice.
6. The learned trial judge erred in law by declaring the suspension of the 1st and 2nd plaintiffs (respondents) illegal and void when such decision was carried out by a vast majority of the members of the council of Olorituns and thereby came to a wrong conclusion which had occasioned a gross miscarriage of justice.
7. The judgment of the lower court is against the weight of evidence adduced.
8. Granting the appellants extension of time within which to file the appellants’ brief in this case.

At the hearing of the application dated 27/1/2006 filed 7/2/2006 on Wednesday 27/9/06 Chief (Dr) O. A. Mamora moved same submitting the motion is brought pursuant Order 3 rule 2 (4) (5), rule 16 and under the inherent powers of the court. The motion is supported by an eleven paragraphed affidavit sworn to by the first applicant. Chief Anthony O. Awote. I am reproducing all the paragraphs therein because it is short and all germane thus:

1. That I am one of the appellants in this case, and I swear to this affidavit for myself and on behalf of the other appellant.
2. That on going through the records in this case, my solicitor Chief Toba Mamora told me in his office and I verily believed that it is necessary to seek leave of this honourable court to raise and argue a new point of law as to the non juristic nature of the plaintiffs in the lower court.
3. That this issue of law was not raised and argued in the lower court.
4. That Chief Mamora further told me and I verily believed that it is necessary to seek court’s leave to amend the original grounds of appeal earlier filed by adding further grounds thereto.
5. That the proposed amended notice and grounds of appeal are hereby attached and marked exhibit A.
6. That the time allowed to file our appellants brief had expired.
7. That when the records were received it was discovered that so many pages containing evidence of witnesses were missing.
8. That my solicitor Chief Mamora then wrote to the registrar of Ijebu Ode High Court to point out the missing parts.
9. That the missing pieces of evidence have now been incorporated to the records and numbered 56A-56J, 91A-91192A.
10. That consequently our time expired in the process.
11. That an order for extention of time to file the appellants brief will meet the justice of the case.

Chief Afolabi Fashanu SAN for the respondents in opposition filed a counter-affidavit of 9 paragraphs sworn to by Olusoji Oduntan a legal practitioner in the Chambers of Toye Coker & Co. I reproduce pertinent paragraphs only herewith as follows:

3. That at the trial court, the respondents after suing individually in their personal capacity sought and obtained leave to sue and sued on behalf of Council of Olorituns excluding the appellants’ Splinter’s group.
4. That the appellants who were equally sued in their individual capacity similarly sought and obtained leave of the trial court to defend the action for themselves and on behalf of Council of Olorituns.
5. The action as constituted was to challenge the appellant (sic) first appellant who claimed to be the Permanent Chairman of Council of Olorituns among others issues.
6. That the case was also fought and defended on the same basis.
7. That after the judgment and before this honourable court, the appellants have consistently been affirming the existence of Council of Olorituns.
8. That I reasonably believe that the issue of juristic nature of Council of Olorituns is not a new issue that has just been revealed to appellants’ counsel.

Prayers B and C, that is to say (1) leave to amend the original omnibus ground earlier filed in this case and dated 18/10/02 and (2) extension of time within which to file appellants brief in this case respectively were not contentious. They were not argued. The controversial issue is “A,” namely for leave to raise and argue a new point of law in this court which point of law was not previously raised in the lower court, viz.:

“The Ijebu Ode counsel of Olorituns by name and style under which the action was filed is not a juristic person, cannot therefore sue or be sued and so there is no proper plaintiff in law”.

Arguing this point Chief Mamora referred us to the affidavit in support reproduced above in particular to paragraphs 2 and 3 thus:

“2. That on going through the records in this case, my solicitor Chief Toba Mamora told me in his office and I verily believed that it is necessary to seek leave of this honourable court to raise and argue a new point of law as to the non juristic nature of the plaintiffs in the lower court”.

That this issue was not raised and argued in the lower court.”

Chief Mamora then concluded his argument by submitting that the new issue as to the non juristic nature of the plaintiffs is being raised for the first time in this court and that the rules of this court allow it.

In opposition Chief Afolabi Fashanu SAN relying on his counter affidavit dated 15/5/06 filed the same date and as reproduced above but especially paragraph 7 and 8 to wit.

“7. That after the judgment and before this honourable court, the appellants have consistently been affirming the existence of the council of Olorituns”.

“8. That I reasonably believe that the issue of juristic nature of council of Olorituns is not a new issue that has just been revealed to the appellant counsel”.

He submitted that the purported fresh issue is not new. In other words that the parties fought this case at the lower court for themselves and on behalf of the council of Olorituns of Ijebu-Ode minus plaintiffs and minus Chief Awotes splinter group respectively.

So the issue is not new and therefore the application should be refused and he cited the following cases in support of his argument:

1. Ogbeide v. Osula (2004) 12 NWLR (Pt.886) 86.

To support the points that if an appellant raises a fresh issue it must be substantial for the appellate court to grant it.

That the point raised here is not substantial and it is not new.

2. Dahiru v. Kamale (2001) FWLR (Pt.62) p.1855 pp.1863, (2001) 11 NWLR (Pt.723/724)

To support the point that the appellate court will refuse to grant the raising of fresh issue where the outcome will be entirely different from the result the court below would have reached.

3. N.B.A. v. Gani Fawehinmi No.2 (1989) 2 NWLR (Pt.105) 558.

To support the point that a non-juristic entity can sue and be sued via person(s) with legal capacity. N.B.A. is not a juristic person it sued and defended the action against Chief Gani Fawehinmi by person(s) with legal capacity or who are juristic. He urged this court to refuse this application.

No Reply Affidavit Filed by Chief Mamora There was no reply by Chief Mamora. He cited the following cases in support of his silence.

(a) Jibrin v. Eze (1992) 7 NWLR (Pt.255) 631,

To support the view that since the legal issue raised bothers on jurisdiction it can be raised even at the Court of Appeal.

(b) i. Eze v. A.G., Rivers State (2001) 18 NWLR (Pt.746) 524, (2001) 8 NSCQR 537,539. And

ii. Dahuwa v. Adeniran (1993) 2 NWLR (Pt.277) 580, 583.

To support the proposition that the court does not make it a practice to visit the sin of counsel on litigant. Failure to raise the fresh point of law at the lower court was entirely the fault of counsel not that of applicants.

He finally submitted that the counter affidavit particularly paragraphs 8 and 9 missed the point. The issue is not the existence or otherwise of the Council of Olorituns at Ijebu-Ode or that the action was fought at the lower court with that name and this appeal lodged also with that name. The issue is the non juristic nature of the council simpliciter. The issue of non juristic nature is being raised for the first time at the Court of Appeal. It was not raised at the lower court. The counter-affidavit therefore goes to no issues. The affidavit in support therefore goes unchallenged should be taken as true. He cited Bedding Holdings Ltd. v. NEC (1992) 8 NWLR (Pt.260) 428,430. I agree with Chief Mamora completely here. I resolve this issue in favour of the applicants. I want to comment on the rules under which this motion is brought.

Do the rules of this court and the authorities permit this type of application to be raised for the first time in this court? The answer to my mind is in the affirmative. See the rules under which the application is brought to wit:

Order 3 rule 2(4)(5)

Order 3 rule 16

Order 3 rule 4(1) and (2) of the Court of Appeal Rules 2002

And under the inherent powers of this court (which is nebulous and will not be discussed).

Order 3 rule 2(4) “No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on an application by the respondent.”

Order 3 rule 2(5) “The appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the court may deem just”.

Order 3 rule 16″A notice of appeal or respondent’s notice may be amended by or with the leave of the court at any time”

Order 3 rule 4(1) “The court may enlarge the time provided by the rules for the doing of anything to which this rules apply.

Order 3 rule 4(2) Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by ground of appeal not prima facie show good cause why the appeal should be heard. When time is enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal”.

Now the rules reproduced above in my view make it manifestly clear that the applicants are perfectly competent to come to this court with their motion on notice.

By way of further elucidation, I will comment on the following Supreme Court cases on the issue to raise fresh point of law at the appellate court for the first time not raised at the lower court. In Chief Okenwa v. Military Governor Imo State and Others (1996) 6 NWLR (Pt.455) 394 per Iguh JSC at pages 407-409 stated the guiding principles as follows:

(1) “An appellate court must not allow an appellant to jettison before it, the question on which the parties joined issues and fought their case before the trial court as to do otherwise would amount, in effect, to permitting the appellant to commence an entirely new case before the appellate court. In the same vein, an appellate court before which a new point is sought to be canvassed will, on the authorities, refuse to grant leave to do so where the fresh point raised introduces a new line of defence completely different from the issues fought by the parties in the trial court.

(2) An appellant will not be allowed to raise on appeal, a fresh point or question which was not raised or considered by the trial court, pal1icularly where to raise such a point or question will require fresh or additional evidence to be adduced. Where, however, such afresh point or question involves a substantial point of law, substantive or procedural, and it is plain that no further evidence needs be adduced which would affect the decision on the matter, the appellate court will allow the question to be raised and the point taken to prevent a miscarriage of justice. (italics mine)

(3) In the exercise of its discretion to grant leave to a party to raise for the first time a point of law not raised or canvassed in the court below, the appellate court is always guided by the certain principles and leave will be granted on the following cases:

(a) When the point of law raised discloses prima facie case that the court has no jurisdiction (italic mine) If there is no plaintiff, as alleged here, the court lacks jurisdiction.

(b) Where the point of law raised arose out of the decision of the court of first instance and could not have been raised earlier in that court.

(c) Where the point of law raised involves the interpretation of documents relevant to the determination of the case before the court.

(d) Where all the materials necessary for the determination of the point of law raised are present in the records of the court.

(e) Where the court is satisfied that the evidence is such that establishes beyond doubt, the facts, if fully investigated would have supported the new plea.

4. In considering whether to grant leave to raise a point not raised in the court below, an appellate court should not be concerned with the validity or otherwise of the fresh issue sought to be raised by the appellant. What the court needs only consider at the stage of the application for leave is whether or not the fresh point is a substantial question of law. This question must be distinguished from whether or not there is any merit on the point itself; the decision of which can only be taken after full arguments from the parties have been taken in accordance with the rules of court and all the relevant laws and enactments in connection therewith are examined and considered.” (Italics mine) See also Fadiora v. Gbadebo (1978) 3 SC 219; A.G., Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt.92) 1; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523.

By the above italics by me and the rules of court under which or pursuant to which this application is brought and in the interest of justice it is my view this application to raise the issue of the non-juristic nature of the plaintiff raised for the first time here should be allowed. It is hereby ordered as prayed.

I will not stop this ruling without commenting also on issues ‘B’ and ‘C’ not opposed namely:

B On leave to amend original omnibus ground

(1) Leave to amend original omnibus ground earlier filed in this case and dated 18/10/02 by adding further grounds thereto (supra) which proposed amendment is attached to this motion as exhibit “A” referred to in paragraph 5 of the affidavit in support.

On granting the applicants extension of time

(2) Granting the appellants an extension of time within which to file the appellants’ brief in this case.

In respect of (B) above what was the omnibus ground of appeal in the record filed the applicants want amended? It is (2) below.

(1) That the judgment of the trial lower court is against the weight of evidence

(2) “That further grounds will be filed on the receipt of the record of proceedings.” (italics mine)

The above grounds 2 no doubt is general and or vague ground and are caught by Order 3 rule 2(4) and (5) (intra). For the avoidance of doubt I reproduce them here again to wit: Order 3 rule 3 (4) and (5) (a) Order 3 rule 2 (4) “No ground which is vague or general in term or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on an application by the respondent” .

(b) Order 3 rule 2(5) ‘The appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the court may deem just”.

As to the delay in bringing the application to amend the grounds of appeal by adding exhibit ‘A’ attached and filing appellants’ brief see Ukwu v. Bunge (1997) 8 NWLR (518) 527, (1997) 51 LRCN 10 766 at 10786 (Pt. 284) 630 where the Supreme Court held that the delay in bringing the application must be supported by compelling reasons before the application can be granted, under Order 3 rule 4(1)(2) of Court of Appeal Rules 2002 to wit:

Order 3 rule 4(1) “The court may enlarge the time provided by these rules for the doing of anything to which these rules apply.”

Order 3 rule 4(2) Every application for enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.

The appellants explained the reason for the delay in filing the appellants’ brief in paragraphs 7, 8, 9 and 10 of the affidavit in support as follows:

7. That when the records were received it was discovered that so many pages containing evidence of witnesses were missing.
8. That my solicitor Chief Mamora then wrote to registrar of Ijebu-Ode High Court to point out the missing parts.
9. That the missing pieces of evidence have now been incorporated to the records and numbered 56A – 56J, 91A – 91192A
10. That consequently our time expired in the process, It is now trite that the above provisions in Order 3 rule 4(1) and 4(2) must be read and interpreted conjunctively and not disjunctively; if the reasons therefore for failure to appeal within the prescribed period are good and substantial, the appellate court will grant the application see Odofin v. Agu (1992) 3 NWLR (Pt.229) 350; CCB (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt. 284) 630; Ukwu v. Bunge (1997) 8 NWLR (Pt.518) 527, (1997) 51 LRCN 10766 at 10786 (Pt.284) 630.

Where the Supreme Court held that the delay in bringing the application must be supported by compelling reasons before the application can be granted under Order 3 rule 4(2) of the Court of Appeal Rules 2002.

In my view the above reasons are good and substantial.

In Dahuwa v. Adeniran (1993) 2 NWLR (Pt.277) 580, 586 Tobi, JCA (as he then was) held,

(1) The rules of court provide for specific period of time within which an aggrieved party can set the appeal processes in motion. There are two main reasons for this namely;

(a) To ensure that the appeal is heard speedily; and

(b) To enable the successful party to reap the fruit of his judgment without delay.

On the grant of the extension of time within which to appeal, he stated that the appellate court will not grant an application for extension of time within which to appeal just for the asking. The applicant must show valid reasons.

Moreover, the learned Justice Tobi held since the application for extension of time within which to appeal or to amend grounds of appeal is praying the court to exercise its discretion, he is under a legal duty to show or establish the exceptional circumstances that exist to warrant the grant of the application, and special circumstances must be shown by sufficient materials and each case will be considered on its peculiar circumstances. (In my view, paragraphs 7, 8, 9 and 10 of the supporting affidavit reproduced above are special circumstances to grant the extension to amend and to file appellant’s brief out of time. See Ogbu v. Urum (1981) 4 SC 1: Williams v. Hope Rising Voluntary Funds Society (1982) 1 SC 145; Osinupebi v. Saibu (1982) 7 SC 104; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143; Arojoye v. U.S.A. (1986) 2 NWLR (Pt.20) 101.

In conclusion having regard to the facts placed before us by the applicant and none by the respondents, with due respect, and considering the same within the con of the hearing of this motion and the analytical reasoning’s and authorities under reference, it is obvious to us that this application succeeds. We hereby order as prayed as followed;

(i) Leave is hereby granted to the appellant to raise and argue the new point of law not raised and argued in the lower court viz;

“The Ijebu-Ode Council of Olorituns, by name and style under which the action was filed is not a juristic person can not therefore sue or be sued and so there is no proper plaintiff in law”.

(2) Leave is hereby also granted to the appellant to amend the original omnibus ground earlier filed in this case on 18/10/02 by adding further grounds as contained in exhibit ‘A’ attached to the affidavit in support of the motion dated 27/1/06 filed 7/2/06.

(3) Leave is hereby finally, granted to the appellant extending the time within which they can file the appellant brief in this case.

(4) N2,000.00 cost against the applicants and in favour of the respondents.

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Other Citations: (2006)LCN/2083(CA)