Nigerian Telecommunications Plc V. Emos Dynamic Nig. Ltd. (2008)
LawGlobal-Hub Lead Judgment Report
REGINA OBIAGELI NWODO, J.C.A.
In this application by Motion on Notice dated 28 of November 2006 filed on 29 of November 2006, the Appellant/Applicant Nigerian Telecommunications Plc prays for the following orders:
“1. An order granting leave to the Appellant Applicant to amend its notice of Appeal dated 8 March 2004, in the manner now shown in the annexed Proposed Amended Notice of Appeal by adding Grounds of Appeal Number 3 to 8 thereof.
- An order granting leave to the Appellant Applicant to raise and argue before this Honourable Court, fresh issue not raised before the trial court, to wit: the applicability of Section 8(1) (a) Limitation Law, Cap 118 Laws of Lagos State 1994 to arbitral proceedings.
- An for such further or other Orders as this Honourable Court may deem fit to make in the circumstances of this Appeal.
In support of the application is a 4 paragraph affidavit deposed too by Godwin lkpe, a Litigation Executive in the law firm of Paul Usoro & Co. Exhibited in the affidavit are the Notice of Appeal Exhibit PVCI and the proposed Amended Notice of Appeal Exhibit PVC2 and a further affidavit filed on 14th of March 2008 deposed too by Oto Bong Umoh. The Respondent Emos Dynamics Nig. Ltd. in response filed II paragraph counter affidavit deposed to by Mrs.Gloria Adejoke Opeyokun exhibiting Exhibit B1 to 86.
Arguing the application on 13 May 2008, Mr. M. O. Liadi for the Applicant relied on all the paragraphs of the affidavit stating the application is brought pursuant to Order 3 Rule 16 of the Court of Appeal Rules 2002. It is his submission that an Applicant seeking to apply for leave to argue fresh issue not canvassed at the lower court must satisfy the court that he has sought the leave of court to raise the issue which involves substantial question of law and finally that no further evidence will be needed to canvass the issue sought to be raised. He referred to Oyakhire v. State (2006) 15 NWLR (Pt. 1001) Pg. 157 and Araka v. Ejeaju (2000) 15 NWLR (Pt. 690) Pg. 684 at 709.
He argued that the inability to raise the issue of S8(I)A Limitation Law of Lagos State Cap 118 was due to error of judgment on part of learned counsel to the Appellant Applicant. He referred to the rulings of court and the submissions of learned counsel in the court below stating S8 (1) of the Limitation Act was not mentioned. It is his further contention the submission of learned counsel was only on S8 (1) (d) and not on S8 (1) (a) of the Limitation Act. He cited the case of NEPA v. Savage (2001) 9 NWLR (Pt. 717) Pg. 230 at 233 on Negligence of Counsel. He further contends that the issue they wish to argue does not require oral evidence but raises issue of law. He urged court to grant the application so as not to visit mistake of counsel on client.
Learned counsel to the Respondent Mr. B. N. Sweet opposing the application relied on the counter affidavit with four exhibits. It is his submissions that leave to argue a fresh issue will not be granted just because Appellant has engaged a new counsel. He referred to Djukpan v. Mrs. Orobuyoube & Another (1967) 1 ANLR 134. It is his contention referring to paragraphs 3, 4 of the counter affidavit that the issue which they seek to raise as fresh issue has already been raised and canvassed and tested before the lower court. He refer to Exhibit A, B1 and he argued that the contemplation of S8 of statute of Limitation Act includes all the subsections and that the Learned Trial Judge considered the whole of S8 of the Limitation Act. Learned counsel’s further submission is that there is no fresh issue and that since Ruling delivered on the 8 of January 2008 there was no appeal against same. It is his further contention that the Applicant should have brought out in the affidavit the areas they mentioned argued they did not substantiate the available material required. He submits that the court should dismiss the application.
Mr. Liadi on point of law argued that issue of law is not canvassed in an affidavits and the court is to take judicial notice of law. Finally it is his submission that his appeal is against Justice ldowu not Justice Adeyinka.
Mr. Sweet on the date of hearing of the application told the court that the Respondent will oppose the application in respect of relief two and in his argument in opposition he dwelled on Relief 2. Therefore, it appears from his statement that prayer one was unopposed. However, there is a loophole in that the learned counsel Mr. Sweet’s objection to grant relief 2 will affect one of the grounds in the proposed Amended Notice of Appeal If the court grants relief I as unopposed it means leave has been granted to amend the notice by adding the 6 additional grounds of appeal inclusive of the Ground wherein the Applicant seeks leave to raise a fresh issue. Relief 2 should precede relief one. It is the grant of relief 2 that will determine whether the amendment sought will succeed in full.
Consequently, I will consider relief 2 first before relief I.
Under prayer 2 Appellant Applicant seeks leave of court to raise and argue fresh issue not raised before the trial court. The issue is narrowed to the applicability of S8 (1) (a) Limitation Law Cap 118 Laws of Lagos State 1994.
It is settled law that an appellate court will not allow a fresh point to be taken before it if such a point was not pronounced upon by the courts below.
Equally 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 issue and no further evidence would have been adduced which would affected decision on them. The courts will allow the question to be raised and the points taken to prevent an obvious miscarriage of justice. See Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) SC 684, John Bankole & Others v. Mojidi Pelu & Others (1991) 8 NWLR (Pt.211) 523.
The prerequisite to raising a fresh issue not canvassed in the lower court on appeal is to apply and obtain leave of this court first. See Yiola Maskala v. Dmbriwe Stlli (2002) 6 SCNJ 351 at 357, Ali Pinder Kwajaffa v. Bank of the north Ltd. (2004) 5 SCNJ 121 at 133 – 134 or (2004) 13 NWLR (Pt. 889) 146 and Oyakhire v. State Supra.
Leave is therefore necessary to raise on appeal issue not raised at the trial court, the exception is when issue of jurisdiction is raised. The issue of the competence of an action touching on jurisdiction does not require leave of the court for Appellant to raise for the first time and argue notwithstanding it was not raised in the trial court.
In the instance case the fresh case for which leave is sought is on the applicability of S8 (1) (a) Limitation Law Cap 118 Laws of Lagos State 1994. It is the contention of learned counsel to the Respondent, that the issue is not fresh.
From Exhibit PVC1 the proposed Notice of Appeal exhibited in the affidavit in support of the application, the Appellant is in this court because he is dissatisfied with part of the decision of High Court of Lagos State delivered by Idowu J. on 4th March 2004. Therefore, the appeal is against the Ruling of Justice Y. O. Idowu exhibited in counsel affidavit as Exhibit B3.
“This court’s Appellate Jurisdiction has been invoked in respect of the decision of Idowu J. on 4 March 2004 not Adeyinka J. as it appeared to be suggested by Respondents Counsel from the line of argument advanced.
I have carefully scrutinized the contents of the Learned Trial Judges ruling on 4th March 2004. It is indisputable that the Learned Trial Judge only considered S8 (1) (d) of the Limitation Law. There was no construction of the entire body of the Ruling the consideration was centered on S8 (1) (d) of the Limitation Act. The relief sought was for an order to enforce Arbitral Award, the submissions of learned counsel to the Respondent in his submission referred to S8 (1) (d) or the Act. The Learned Trial Judge on page 8 of her Ruling made a finding on the provision or S8 (1) (d) of the said Act. From the content of the Ruling of 4 March 2004, there is nowhere the learned counsels addressed the court on S8 (1) (a) (b) (c) & (e) of the said Act.
The subsections of S8 (1) are classified into different causes or matters.
S8 (1) (a) refers to actions on simple contract, whilst S8 (1) (d) refer to actions on Arbitral Award. Each subsection has its own grouping. An attempt to group the subsection as one under S8 as suggested by Mr. Sweet will be a misconstruction of the provision therein. Therefore the subsection under S8 has different identity and any need to discuss a class there-under must be precise and specify. What was considered in the court below was S8 (I) (d) of the Act. Notwithstanding the cause of actions is on Arbitral award which arose from question of agreement between parties, a specific subsection have been allotted to contract vis-ii-vis S8 (1) (a) and Arbitration award S8 (1) (d) by the draftsmen. There is no record of proceedings of the detailed submissions of learned counsel in the lower court before the Learned Trial Judge Idowu to suggest the full S8 (1) with all the subsections were argued. From the documentary and affidavit evidence before this court, all I can gather is that the court below considered S8 (1) (d) and not S8 (1) (a) of the Limitation Law.
Therefore, the provision under S8 (1) (a) of the Act was not considered nor pronounced upon by the court below. Subject matter there under may be related to S8 (1) (d) but every statutory provision have its own basis of applicability and will be considered on that line. S8 (1) (a) is a statutory provision. It involves a substantial point of law on contract. The deposition in support of this application in paragraph 3(e) read as follows:
“3(e) There are sufficient materials before this Honourable Court upon which the fresh issue can be sustained without any need for oral evidence”.
This averment was not denied or controverted by the Respondent. Their contention is that S8(1) (a) of the Limitation Law had already been argued and determined at the Arbitral Award. The appeal filed before this court is in respect of the decision of the Idowu J. not the Arbitral Award. The Applicant has shown that no further evidence will be adduced. I am of firm view that in order to prevent an obvious miscarriage of justice, Appellant Applicants application will be allowed, he can raise the fresh issue on S8 (1) (a) of the Limitation Act. Order 6 Rule 15 of the rules of the court of Appeal 2007 gives this court the power to order amendment of Notice on Appeal or grant leave to amend as the case may be.
The reason given by the deponent in support of the application that a different firm filled the initial Notice of Appeal before they were briefed is reasonable. This application has merit and ought to be granted.
Consequently, I order granting leave to the Appellant Applicant to raise and argue before this court fresh issue not raised before the trial court: to wit the applicability of S8 (1) (a) Limitation Law Cap 118 Laws of Lagos State 1994 to Arbitral proceeding. I hereby order granting leave to the Appellant Applicant to amend its Notice of Appeal dated 5 March 2004 as shown in the proposed Amended Notice of Appeal annexed as PVC2 by adding Grounds 3 to 8 thereof.
The Appellant Applicant has fourteen days from today to file his Amended Notice of Appeal. I award cost of N20,000.00 in favour of the Respondent.
Other Citations: (2008)LCN/2913(CA)
