In Re: Nigeria Customs Service Board& 1 Or V. Innoson Nigeria Limited & 7 Ors (2022)
LAWGLOBAL HUB Lead Judgment Report
TIJJANI ABUBAKAR, J.S.C.
This is a motion on notice filed on the 10th day of November, 2020, brought pursuant to Section 36 (1), 233 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, Order 2 Rules 12, 28 (1) and (2), 31 (1) and Order 6 Rules 1 and 21 Order 10 Rule 1 of Supreme Court Rules, 1999 (as amended), Section 22 of the Supreme Court Act, and the inherent jurisdiction of this Court, the appellant /applicant seeks for the following orders;
- Leave to the applicant to appeal against the judgment of the Court of Appeal, Ibadan Division delivered on 6th February, 2014. Coram; Monica Bolna’an Dongban- Mensem, Chidi Nwaoma Uwa and Obietonbara Daniel Kalio JJ.CA in appeal No. CA/I/258/2011: Guarantee Trust Bank plc V. Innoson Nigeria Limited, as a person having an interest in the matter.
- Extension of time within which to seek leave to appeal against the judgment of the Court of Appeal, Ibadan Division delivered on 6th February, 2014, coram: Monica Bolna’an Dongban-Mensem, Chidi Nwaoma Uwa and Obietonbara Daniel Kalio JJ.CA in appeal No. CA/I/258/2014: Guarantee Trust Bank Plc. V. Innoson Nigeria limited on grounds of facts and/or mixed law and facts as contained in the proposed notice of appeal marked exhibit NCSB-9 particularly grounds 1, 2, 4, 5, 6, 7 and 8 thereof.
- Leave to appeal against the judgment of the Court of Appeal, Ibadan Division delivered on 6th February, 2014, coram Monica Bolna’an Dongban Mensem, Chidi Nwaoma Uwa and Obietonbara Daniel-Kalio JJ.CA in appeal No. CA/I/258/2011: Guarantee Trust Bank Plc. V. Innoson Nigeria Limited on grounds of facts and/or mixed law and facts as contained in the proposed notice of appeal marked exhibit NCSB-9 particularly grounds 1, 2, 4, 5, 6, 7, and 8 thereof.
- Extension of time within which to appeal against the judgment of the Court of Appeal, Ibadan Division delivered on 6th February, 2014, coram; Monica Bolna’an Dongban Mensem, Chidi Nwaoma Uwa and Obietonbara Daniel Kalio JJ.CA in suit No. CA/I/258/2011: Guarantee Trust Bank Plc. V. Innoson Nigeria Limited as contained in the proposed notice of appeal marked exhibit NCSB-9.
- Leave to raise new points in this appeal as contained in Grounds 5, 6 and 7 of the notice of appeal which points were not raised in the Court below.
- Leave to adduce new evidence on appeal to wit: affidavit of Mrs. Shafaatu Ismail Bello sworn on the 9th day of November, 2020 together with the documents marked Custom 1 and 2 therein which are (a) later dated 13th April, 2011 written by Attorney General of the Federation to the President of the Federal Republic of Nigeria and (b) Federal Ministry of Finance Nigeria Customs Service payment instruction dated 28th November, 2011 for the remittance of the sum of N700,220,000.00 to the account of Innoson Nigeria Ltd kept with Mainstreet Bank.
The application is supported by 35-paragraph affidavit deposed to by one Shafaatu Ismail Bello, Assistant Director in the legal Unit of the applicant (Nigerian Customs Service).
The grounds upon which the application is premised are as follows:
- Judgment of Court of Appeal was fraudulently obtained by 2nd Respondent Innoson Nigeria ltd. By the non- disclosure of payment, by the applicant, of the sum of N700,220,000.00 on 28th November 2011.
- The judgment of the Court of Appeal prejudicially affected the interest of the applicant.
- The Court of Appeal lacked jurisdiction to affirm the judgment of the trial Court as done by it.
- The proposed grounds of appeal raise substantial questions of law of high constitutional importance.
- There are exceptional reasons for the delay in appealing
- Interest of justice.
On the 18th day of October, 2021 when the motion was heard, learned Senior counsel for the Applicant Tayo Oyetibo, SAN moved the motion on notice, stating that the application which was filed on the 10th day of November, 2020 contained six prayers. Learned senior counsel also submitted that the application is supported by 35 paragraph affidavit, the application also contained exhibits. Counsel urged this Court to grant the application as prayed.
Professor J.N.M Mbadugha SAN, in opposing the motion on behalf of the Respondent submitted that he filed a counter-affidavit and further counter-affidavit on the 9th day of March, 2021 and 27th November, 2021 respectively. Learned Senior Counsel urged this Court to dismiss the application.
The learned senior counsel for the respondent in his written address, raised preliminaries issues, contending whether this Court has jurisdiction to entertain the applicant’s application.
The learned senior counsel argued the preliminary issues under the following sub-headings,
a) Order striking out being a final decision and a bar to re-litigation.
b) Whether the Honourable Supreme Court will entertain or dismiss the application if it is an abuse of process.
c) If the issue to be decided in the appeal for which leave is sought has become academic, will the application be granted?
d) Whether the applicant is estopped from appealing against the Court of appeal’s decision and/or has waived its right of appeal.
PRELIMINARY ISSUES
In arguing the preliminary issues under the sub headings, the learned Senior counsel submitted that it is the position of the law that a decision striking out or dismissing a case upon its withdrawal when the point of litis contestatio has been reached is a final decision and a decision on the merit as well. Counsel cited the cases of ERONINI V. IHEUKO (1989) 2 NWLR (Pt. 101) SC 46 at 681 AND NWOKEDI V. R.T.A LTD (2002) 6 NWLR (Pt. 762) 181 at 197 to drive home the point canvassed by the applicant. Learned senior counsel submitted that although the applicant’s motion filed on 15th August, 2010 was struck out, it actually means dismissal; and when the motion is dismissed, the applicant has no right to refile it.
On abuse of Court process, learned counsel submitted that the abuse occurs where there is in proper use of judicial process by a party to the detriment of the other. Counsel cited the case of N.I.C V. F.C.I Co. Ltd (2007) 2 NWLR (pt. 1019) 630. Learned counsel cited the case of HARRIMAN V. HARRIMAN (1989) 5 NWLR (pt. 119) 6 at 16 to argue that abuse of Court process also arises where a party involves in pervasion of justice. Counsel further outlined how the applicant’s application became abuse of Court process;
a) Applicant is a party to the suit No. FHC/L/CS/603/2006 and the Appeal No. CA/I/258/2011
b) No appeal against dismissal of Appeal No. CA/I/258/2011 as it relates to the applicant and the trial Court’s decision of 29th July, 2011
c) No appeal against the subsequent trial Court’s decision on post-judgment interest and outstanding judgment debt.
d) No application to adduce fresh evidence at the Court of appeal.
e) Applicant is aware that 1st respondent did not forfeit post-judgment debt interest.
Learned senior Counsel elaborated the points above and submitted that the applicant’s application is nothing but an abuse of Court of process.
On the third issue, learned counsel submitted that Court does not indulge in academic exercise or decide matters which have become academic or hypothetical. Counsel cited the case of A.R.C V. JDP CONSTRUCTION NIG. LTD (2003) 13 NWLR 609 at 636.
Counsel submitted that where there is execution of a judgment that any point or abuse to decide in any appeal against the judgment, after the execution, is purely academic and as such, leave will not be granted to appeal in such circumstance. Counsel relied on OYENEYE V. ODUGBESAN (1972) 4 SC 217 at 218.
Counsel contended that granting leave to a party to appeal as an interested party against a judgment that has already been executed would simply amount to making vain orders and the Court is minded not to make vain orders.
On issue four, learned counsel submitted that the competence of an applicant to apply for leave to appeal as an interested party is dependent on that party not being a party in the suit from which the decision sought to be appealed against. Counsel further submitted that the applicant was a party to the suit at the trial Court and at the Court of appeal, therefore the present application is incompetent. Learned counsel submitted that the applicant admitted being aware of the appeal at the Court of Appeal and the garnishee proceedings at the trial Court in paragraph 14 of the affidavit in support of its application of 15th August 2019- exhibit MM3 but maintained that it choose not to participate because of his knowledge of certain Court of appeal decision.
Finally, learned counsel urged this Court to dismiss the application based on the argument canvassed in the preliminary issues.
I read the preliminary issues raised by the Respondent and having gone through the submissions thereof by the learned senior counsel for the Respondent, I am of the view that the preliminary issues raised and argued are hasty, premature, untimely and a complete waste of precious judicial time. In addition to the preliminary issues carefully carved out by the Respondent, learned senior Counsel for the Respondent then went ahead to respond to all the issues raised in the application, of what use is the preliminary issues? The Court only entertains preliminary issues if it is of the opinion that so doing will have the effect of obviating the necessity to delve into the substantive suit or there are special and compelling circumstances to justify taking the preliminary issues, in the instant case, there is nothing to suggest that so doing will dispose of the application or that there are exceptional circumstances to justify so doing. Again, having joined issues with the applicant on the application, it is unnecessary for the Respondent to raise preliminary issues in the circumstance. There are circumstances when a Court can hear preliminary issue on points of law before hearing an action in full, the instant case does not in my humble view fall within those categories. This Court in THE REGISTERED TRUSTEES OF THE NIGERIA RAILWAY CORPORATION PENSIONS FUND V. AINA (1970) LPELR-3232 (SC) per IAN LEWIS, JSC held as follows and I quote:
“It is only in exceptional cases and when it is absolutely clear that it is likely to dispose of the action that a judge should consent to a hearing of a preliminary issue even on a point of law before the action is heard in full. Such points could always be taken in the course of the hearing of the action if there is any doubt whether hearing a preliminary issue will dispose of the matter. We agree with the words of Lord Evershed M.R. in Windsor Refrigerator Co. Ltd. v. Branch Nominees Ltd. (1961) Ch. 375 when he said at page 396:-“I repeat what I said at the beginning, that the course which this matter has taken emphasises, as clearly as any case in my experience has emphasised, the extreme unwisdom save in very exceptional cases of adopting this procedure of preliminary issues. My experience has taught me (and this case emphasises the teaching) that the shortest cut so attempted inevitably turns out to be the longest way round.”
In the instant case therefore, preliminary issues cannot provide the needed shortcut, more so the Respondent has by reacting strenuously to the application conceded that full hearing is necessary in the circumstance. The preliminary issues are therefore accordingly discountenanced. I will now proceed to deal with the application on the merit.
In applicant’s written address in support of the application, learned Senior Counsel Oyetibo, SAN nominated one issue for determination, the issue reads as follows:
“Whether having regard to the facts of this case, the prayers being sought by the applicant ought not to be granted.”
The learned Counsel for the Respondent on the other hand crafted a corresponding one issue for determination, the issue is reproduced as follows:
“Whether in the circumstance of the case made out by affidavit the Court will grant the applicant the reliefs sought.”
In my view, the issue nominated for determination by the applicant is capable of providing effective resolution to the question sought to be determined, I therefore adopt the issue as the issue to resolve in this application. Applicant’s issue for determination is again reproduced as follows:
“Whether having regard to the facts of this case, the prayers being sought by the applicant ought not to be granted.”
Learned senior Counsel for the applicant argued that the principles which guide the Supreme Court in an application under Section 233 (5) of the Constitution are well settled and restated recently by this Court in BARR. ENYINNA ONUEGBU & ORS V. GOVERNOR OF IMO STATE & 3 ORS. (2019) LPELR-47535 (SC) at 14-24.
Counsel submitted that the Court below in the instant case affirmed the decision of the trial Court on the 6th day of February, 2014 without taking into cognisance the whooping sum of N700,220,000.00 (Seven Hundred Million, Two Hundred and Twenty Thousand Naira) which was paid by the applicant to the 2nd Respondent/judgment creditor as far back as the 28th day of November, 2011. Counsel further submitted that, that act exposed the applicant to the jeopardy of losing that sum because the 2nd Respondent has caused a writ of fifa to be issued for the recovery of the full judgment debt of N2,048,737,443.67 and interest without taking into account the sum of N700,220,000.00 as can be seen from exhibit NCSB7.
Counsel further submitted that the applicant is a person who has been prejudicially affected by the judgment of the lower Court. The prejudice, according to the learned senior Counsel here is the sum of N700,220,000.00 that has not been accounted for in the judgment of the lower Court. Learned senior Counsel then submitted that the failure by the 2nd Respondent to disclose to the lower Court that applicant had paid the sum of N700,220,000.00 on the 28th day of November, 2011 meant in law that the judgment of the lower Court was fraudulently obtained by the 2nd Respondent, and the applicant is genuinely aggrieved by this fraud and desires to raise it on appeal before this Court as set out in ground 6 of the proposed Notice of appeal if leave is eventually granted to the applicant. Learned Counsel further submitted that if the 2nd Respondent had disclosed to the lower Court that it was paid the said sum of N700,220,000.00 on the 28th day of November, 2011, the lower Court would not have exercised jurisdiction to affirm the decision of the trial Court, as so doing would amount to giving to the 2nd Respondent more than what it was legally entitled to under the judgment.
Learned counsel said the law is trite that a party who desires to appeal to the Supreme Court against a final decision of the Court of appeal must file his notice of appeal or application for leave to appeal within a period of three months after the judgment was delivered. Counsel relied on Section 27 (2) of the Supreme Court Act, and ADELEKAN V. ECU-LINE NV (2006) 12 NWLR (Pt. 993) at 33 SC and UKWU & ORS V. BUNGE (1997) LPELR-3352 SC at 22.
Counsel submitted that paragraphs 17, 18, 19, 24, 25 and 26 of the affidavit in support of the application contained the reasons for the delay in seeking leave to appeal. Learned Senior Counsel also submitted that an application seeking for leave to appeal ought to be granted if the grounds of appeal in respect of which leave is being sought raise prima facie arguable points. Counsel further submitted that an applicant seeking leave to appeal needs not show that the appeal will succeed if leave is granted. Counsel cited and relied on HOLMAN V. KIGO (1980) 8-11 SC 62-63.
Counsel submitted that Order 2 Rule 12 of the Supreme Court Rules empowers this Court to allow the reception of new evidence on appeal. In support of this submission, Counsel cited STATOIL NIGERIA LIMITED & ANOR V. INDUCON NIGERIA LIMITED & ANOR. (2018) LPELR 44387-SC ADEGBITE & ANOR V. AMOSU (2016) 15 NWLR (Pt. 1536) 4381 (2016) LPELR-40655 SC, AMAECHI V. INEC (2008) 5 NWLR 9 Pt. 1080) 227, ASABORO V. ARUWAJI (1974) 4 SC 119, OWATA V. ANYIGOR (1993) 2 SCNJ 1 at PP 12-13.
Learned counsel added that the new evidence sought to be adduced is the payment of the sum of N700,220,000.00 to the Respondent through its account domiciled with the Mainstream Bank on the 28th November, 2011 as full and final payment of the judgment debt after the making of the decision of the trial Court in the garnishee proceedings.
On raising new points of law, learned counsel submitted that grounds 5, 6 and 7 of the proposed grounds of appeal were not raised in the Court below and as such the applicant requires leave to raise them. Counsel relied on the decision in SALISU V. MOBOLAJI (2013) LPELR 22019 SC.
Learned counsel submitted that the applicant is seeking to adduce evidence of the fraud perpetrated by the 2nd Respondent in obtaining the judgment of the Court below.
Finally, learned counsel urged this Court to grant this application as prayed.
Learned Counsel for the Respondent on the other hand submitted that granting extension of time to seek leave to appeal is not granted as a matter of course, the applicant for such leave must show good and substantial reasons for failure to file the appeal within time. Counsel relied on ENYI BROS FOODS PROCESSING CO. LTD & ANOR V. N.D.I.C. (2007) 3 SC (Pt. 11) 175 at 190.
Learned counsel submitted that by paragraphs 5- 8, 11-12 of the counter-affidavit, the 2nd Respondent has established that the applicant has not shown good and substantial reasons for failure to file the appeal within time. The applicant does not therefore merit being granted leave. On leave to appeal as an interested party, counsel submitted that the applicant is a party to the suit in FHC/L/CS/603/2006 and appeal No. CA/I/258/2011 and as such cannot appeal as an interested party, having been an integral part of the suits cited.
Learned counsel for the Respondent then submitted that the applicant has no right to appeal against the Court of Appeal decision of 6th February, 2011 because he neither appealed against the trial Court’s decision of 29th July,2011 nor appealed against the Court of appeal decision of 28th October, 2013.
On leave to adduce fresh evidence. Learned counsel submitted that the evidence which the applicant is seeking leave to adduce as fresh evidence was in existence during the pendency and determination of appeal No. CA/I/258/2011 by the Court of Appeal. Learned Senior counsel submitted that the power of the Court to admit additional evidence on appeal is discretionary and must be exercised judiciously and judicially. Counsel further outlined conditions that must be met before the Court can grant such application. The conditions are as follows;
1) “The evidence sought to be adduced must be such that could not have been with reasonable diligence obtained for use at the trial.
2) The evidence should be such that if admitted would have an important not necessarily crucial effect on the whole case, and
3) The evidence must be such that is apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.”
Learned Senior Counsel for the Respondent cited the following decisions to support his argument;UBA PLC. V. BTL IND. LTD. (2005) 10 NWLR (Pt. 933) 356 at 370, COMPORT ASABORO V. M.G.D ARUWAJI (1974) 4 SC 119 AND HON. ROTIMI AMAECHI V. INEC & ORS. 33 NSCQ (Pt. 1) 332 at 554. Learned counsel submitted that the applicant did not satisfy any of the conditions listed herein.
On leave to raise fresh issue on appeal, counsel submitted that it is trite law that a party will not be allowed to raise a fresh issue or grounds of appeal if by that it will introduce a line of defence different from its case at the lower Court and if it fails to satisfy the Court that in spite of due diligence it was impossible to raise that point at the lower Court.
Learned counsel cited the case of UOR V. LOKO (1988) 2 NWLR (pt. 77) S.C 430. at 443 to argue that a party will not be allowed to raise fresh issues or points if all the evidence is not before the appellate Court and/or if the Respondent could have called evidence or amended his process in rebuttal of the issues if it was raised at the lower Court.
Learned counsel finally submitted that it is the position of the law that all the requirements for granting leave to raise fresh issues on appeal must be met collectively and not disjunctively, where any of them is not met, the application will be refused. Counsel further argued that in the instant case, the applicant having failed to meet the requirements is not entitled to be granted, the application therefore deserves to be dismissed, he so urged this Court.
RESOLUTION
The principles governing the grant of leave to an applicant to appeal as an interested party is provided for under Section 233 (5) of the Constitution of the Federal Republic of Nigeria, as amended. An interested party is one whose presence in a suit is needed before the real controversy between the contending parties is settled.
An applicant seeking for leave of Court to appeal as an interested party must make a detailed deposition in his affidavit in support of the application to show;
(a) his interest in the matter.
(b) why he was not a party in the trial Court.
(c) good reasons for the delay in filing the application.
In the instant application, the affidavit evidence filed by the applicant has explained all of the above.
Paragraphs 13 to 24 of the affidavit in support of the application disclosed how the applicant on the basis of negotiations carried out by the office of the Attorney General of the Federation with the 2nd Respondent, the applicant remitted the sum of N700,220,000.00 to the 2nd Respondent, and how the 2nd Respondent refrained from disclosing the payment to the lower Court.
It is the duty of the Court at all times to ensure a fair and just determination of the issues between the contending parties and in that regard, the purpose of granting leave for a party to be joined as an interested party on appeal is to enable justice to be done between the parties.
The bottom line as I see it in this application, having perused the depositions on both sides, meticulously and situating them within the provisions of Section 233 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and what I see as the justice of the matter is that the applicant has sufficient interest in the appeal which cannot be effectively determined without letting them join as a party. The applicant made a damning allegation of fraud and concealment of material facts against the Respondent, particularly the payment of the sum of N700,220,000.00.
The principles governing the grant of extension of time to apply for leave to appeal and extension of time to appeal as stated earlier in this ruling have been settled in several decisions of this Court. The applicant seeking for extension of time to appeal shall comply with the following requirements;
(i) Good and substantial reasons for the failure to appeal within time, and
(ii) grounds of appeal which prima facie show good cause why the appeal should be heard.
This Court in ADELEKAN V. ECU-LINE NV (2006) 12 NWLR (Pt.993) at 39 held as follows;
“the Supreme Court has power to extend time allowed by its Rules for doing anything. But for the Court to exercise its discretion to extend time for an enlargement of time in which to appeal or in which to apply for leave to appeal, the application shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal or apply for leave to appeal within the prescribed period. Also, to the supporting affidavit must be exhibited;
a) A copy of the judgment from which it is intended to appeal.
b) A copy of other proceedings necessary to support complaints against the judgment.
c) Ground of appeal which show good cause why the appeal should be heard”.
I am in agreement with the learned senior Counsel for the applicant that paragraphs 17, 18, 19, 24, 25, and 26 of the supporting affidavit have adequately explained the reasons for the delay in seeking for leave to appeal.
The applicant in the instant application is also seeking for leave to appeal on grounds of facts and/or mixed law and facts. Section 233(2) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) provides that an appeal shall lie from decisions of the Court of Appeal as of right where the ground of appeal involves question of law alone. But, subject to such other cases as provided in Sub-section 2 thereof, an appeal from that Court shall lie to this Court; vide Sub-section 3, with leave of the Court of Appeal or the Supreme Court. This Court in AZEEZ AKEREDOLU & ORS V. LASISI AKINREMI & ORS (1986) LPELR-329 (SC) held as follows:
“where an appellant files a notice of appeal accompanied by grounds of appeal on law and grounds of appeal on facts or mixed law and facts, within time, he may apply for leave to argue grounds of fact or mixed law and fact and the original Notice of Appeal will then be deemed to be a notice filed also for those grounds requiring leave.”
Looking at exhibit NCSB9 which is the notice of appeal, grounds 1, 2, 4, 5, 6, 7 and 8 thereof are all grounds of either facts or mixed law and facts.
On leave to adduce fresh evidence and new points on appeal, Order 2 Rule 12 of the Supreme Court Rules provides that;
“A party who wishes the Court to receive the evidence of witnesses (whether they were or were not called at the trial) or to order the production of any document, exhibit or other thing connected with the proceedings in accordance with the provisions of Section 33 of the ACT, shall apply for leave on notice of motion prior to the date set down for the hearing of the appeal”.
Similarly, this Court in ADEGBITE & ANOR V. AMOSU (2016) LPELR-40655 (SC) held as follows;
“Thus, documents not tendered at the trial Court due to inadvertence of counsel, can be tendered on appeal as fresh evidence in the interest of justice. See: Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264. Further, in Adeleke v. Aserifa (supra). The law was restated by Karibi-Whyte in his contribution in the above case as follows: “Hence where evidence is available and could with reasonable care and diligence be made available to the applicant at the time of the trial, as in the instant case, the Court of Appeal will refuse to exercise its discretion to receive such evidence. However, if applicant referred to the document in his pleadings or evidence but did not tender it, the appellate Court can admit it. See Latinwo v. Ajao (1973) 2 SC 99’.
See also; ELUGBE V. OMOKHAFE (2004) 18 NWLR (Pt.905) 319; OLALOMI LND. LTD. V. NIDB LTD. (2009) 16 NWLR (Pt.1167) 266; TIAMIYU V. OLAOGUN (2008) 17 NWLR (Pt.1115) 86.
From the applicant’s supporting affidavit, the evidence sought to be adduced is the payment of the sum of N700,220,000.00 to the 2nd Respondent as full and final payment of the entire judgment debt after making of the decision of the trial Court in the garnishee proceedings. From the record, the said evidence was not in existence at the time the proceedings in the trial Court took place.
The Court will normally allow fresh issue to be raised and argued on appeal where the said issue is relevant and more importantly, where no further evidence will be necessary. All that an applicant is required to do is to seek and obtain leave of the appellate Court to so raise the said fresh or new issue. Once this is done and the Court is satisfied that in the best interest of justice leave should be granted, it shall be granted, without any further hesitation. In the instant case, the fact that the evidence sought to be adduced is material in that the 2nd Respondent was credited the sum of N700,220,000.00 which was not taken into account by the lower Court in its judgment.
On raising new points on appeal, this Court, in SALISU V. MOBOLAJI (2013) LPELR-22019 (SC) held as follows:
“Generally, this Court will not allow or permit a party to raise afresh issue or question which was not raised in the Court below or grant leave to a party to argue fresh grounds which were not canvassed in the Court below. The exception being a situation where the new or fresh grounds involve substantial points of law, substantive or procedural which need to be allowed in order to prevent an obvious miscarriage of justice and ensure that substantial justice is seen to be manifestly done in the matter. Notwithstanding, the record must show the evidence already adduced by the party who is relying on the new issue being raised. See: Obi Eze Vs. AG Rivers State & 1 Or. (2001) 8 NSCQR 537; (2001) 18 NWLR (Pt.746) 524; Owners M.V Gongola Hope & Anor Smurfit v. SC cases Nigeria Limited & Anor (2007) 15 NWLR (pt 1056) 189; (2007) 12 SCM (Pt 1) 137; (2007) 6 SC (pt 11) 58, However, the Court will normally allow afresh issue to be raised and argued on appeal where the said issue is relevant and more importantly, where no further evidence will be necessary. All that an appellant is required to do is to seek and obtain leave of the appellate Court to so raise the said fresh or new issue. Once this is done and the Court is satisfied that in the best interest of justice leave should be granted, it shall be granted, without any further hesitation.”
From the authority cited herein, this Court is empowered to allow an applicant raise fresh points on appeal where refusal to allow the new points will occasion miscarriage of justice.
It is obvious from the materials before us that the Respondent herein obtained Judgment of the lower Court concealing material facts, and the facts alleged by the applicant are such that may have the effect of swinging the decision of this Court one way or the other, the issues sought to be raised are therefore fundamental, justice of this case therefore demands that the application be granted as prayed.
From the foregoing therefore, the sole issue for determination is hereby resolved in favour of the applicant against the Respondent. The application succeeds and is hereby granted as prayed. Having granted the application therefore, the following orders are hereby made:
I. Leave is hereby granted to the applicant to appeal as an interested party against the judgment of the Court of Appeal, Ibadan Division in appeal Number CA/I/258/2011.
II. Time is extended to the applicant to seek for leave to appeal against the judgment of the Court of Appeal on grounds of mixed law and facts.
III. Leave is hereby granted to the applicant to appeal against the judgment of the Court of appeal, Ibadan division, on grounds of mixed law and facts.
IV. Time is extended to the applicant within which to appeal against the judgement of the Court of appeal, Ibadan Division in suit No. CA/I/258/2011.
V. Leave is hereby granted to the applicant to raise new points in this appeal.
VI. Leave is hereby granted to the applicant to adduce new evidence.
VII. Applicant shall file its Notice of appeal within thirty days from today.
Parties shall bear their respective costs.
SC.816/2020(R)
