The appellant/applicant by a motion on notice dated and filed
on 20th May, 2008 prays this court for the following orders:-
1. AN ORDER granting extension of time
within which the Appellant/Applicant
would comply with the order of this
Honourable Court made on 10/11/2005
to file additional ground of appeal.
2. AN ORDER deeming the additional
ground of appeal filed on 18/11/2005
before obtaining leave of this Honourable
Court as properly filed and served.
3. AN ORDER granting leave to the
appellant to argue on appeal the fresh
issue raised in the additional ground.
4. AN ORDER deeming the fresh issue
arising from the additional ground of
appeal already argued in the appellants
brief as properly argued.
5. AN ORDER deeming the Appellants brief
and the Appellants reply brief already
filed as properly filed and served.
6. AND for such other orders as this
Honourable Court may deem fit to
make in the circumstances.
The application is supported by an 8 paragraphed affidavit deposed
to by Sunday Samuel Dan, a litigation secretary in the law firm of
B.O. Benson SAN, solicitors to the applicant.
The facts upon which this application is anchored are simply
put and briefly stated thus. The applicant herein was on 10th
November, 2005 granted leave by this court to file an additional
ground of appeal within 7 days. The additional ground of appeal
was filed on 18th November, 2005, that is a day after the prescribed
7 days as ordered by the court. The respondents in their brief of
argument filed on 5th May, 2008 raised a preliminary objection as
to the competence of the additional ground as filed, and no leave
was granted to argue same and that it was filed out of the time
ordered by the court. Consequent upon the foregoing, the
applicant filed in this application to regularise its position.
In moving the application, learned counsel for the applicant
stated that the application is supported by an 8 paragraphs affidavit
and was brought pursuant to Order 4 Rule 1, Order 7 Rule 10 of
the Court of Appeal Rules 2007 and Section 16 of the Court of
Appeal Act 2004. Learned counsel submits that the application
prays for the orders contained on the face of the motion and urged
the court to grant same as there was no counter affidavit filed.
Learned counsel for the Respondents objected to the
application, particularly prayers 1 to 4 but conceded to prayer 5.
Learned counsel stated that they filed a respondents brief of
argument with a preliminary objection incorporated therein and
Notice to that effect also given to the applicants. Consequently
learned counsel submits that what the applicants are seeking by the
application, is to overreach the respondents. Learned counsel
further submits that the applicants can only file a reply brief, but
are foreclosed from asking for any relief to regularise an
incompetent ground of appeal. In a short reply on points of law,
learned counsel for the applicant submitted that an application to
regularise can be made at any moment before the hearing of the
substantive appeal, notwithstanding the objection made by
respondents. In support of this submission learned counsel relied
on the cases of AfriBank Nig Plc V Shanu (2000) 13 NWLR
(Pt.684) 392 at 404 and Nalsa & Team Associates V. NNPC
(1991) 8 NWLR (Pt. 212) 652 at 667 668. Learned counsel
therefore urged the court to grant the application as prayed.
The application herein no doubt seeks to regularise the
processes and position of the applicant. The objection of the
respondent is predicated on the fact that having filed a preliminary
objection as to the competence of the additional ground of appeal,
the applicant cannot now regularise same as doing so will amount
to overreaching the respondent. Indeed learned counsel for the
respondent submitted in unequivocal terms, that the applicants are
foreclosed from asking for any relief to regularise their
incompetent ground.
The question now worthy of consideration in resolving this
application is whether the appellant/applicant is foreclosed from
correcting errors in the processes shown by the preliminary
objection. In answering this question, reference will first be made
to the case of Shanu Vs. Afribank (Nig) Plc (supra). An aspect
of the said case is that the respondent objected to an application to
regularise processes filed by the appellant, to the effect that
granting the application will overreach the preliminary objection
raised and argued by the respondent in the reply brief filed in the
appeal. In granting the application, the apex court per AYOOLA,
JSC at page 404, stated thus:-
An applicant is not foreclosed by
preliminary objection from correcting
errors or starting the process afresh on
a more appropriate footing because the
preliminary objection showed the errors
in the process. In the instant case, the
contention that the applicants application
should not be granted because a preliminary
objection has been raised showing the
errors in the process of the applicants
appeal, is without substance.
See also the case of Nalsa & Team Associates Vs. NNPC (1991)
8 NWLR (Pt. 212) 652 at 667 668. The contention of the
respondents to the effect that the application is aimed at
overreaching them is therefore unfounded and untenable. The era
of technicality in the administration of justice is mercifully extinct
and now bowing down to substantial justice. The objection of
courts is to decide the rights of the parties and not to punish them
for mistakes made in the conduct of their cases.
The affidavit in support of the application averred to facts
which have not been controverted by way of counter affidavit
hence deemed admitted as true. See Alagbe V. Abimbola (1978)
2 SC 39, Buhari V. Obasanjo (2003) 17 NWLR (Pt. 850) 587 at
657 and Att. Gen Ondo State V. Att. Gen Ekiti State (2001) 17
NWLR (Pt. 743) 706 at 749. The uncontroverted facts in the
affidavit are strong enough to warrant the exercise of the discretion
in favour of the applicant, by extending time.
As to the prayer for leave to argue fresh issue, ordinarily an
appellate court does not allow fresh point to be taken before it, if
such a point had not been raised, tried and considered by the lower
court. However, where the question involves substantial points of
law, substantive or procedural, and it is plain that no further
evidence need to be led to facilitate the resolution of such fresh
issue, the fresh point will be taken and resolved by the appellate
court in order to prevent obvious miscarriage of justice. In
permitting such a new issue, the appellate court would however
ensure that it draws from the ground of appeal. The latter position
prevents the appellant from springing surprise on the respondent
who now prepares for the appeal on the basis of the grounds of
appeal in the former notice. See Alabi V. Doherty (2005) 8
NWLR (Pt. 957) 411; Uor V. Loko (1988) 2 NWLR (Pt. 77) 436
and Agu V. Ikewibe (1991) 3 NWLR (Pt. 180) 382. In the
instant application, the fresh point is contained in the additional
ground, hence the appellant will not spring any surprise on the
respondent. The prayer therefore has merit.
Consequent upon the foregoing, the objection of the
respondent succeeds in respect of prayers 2 and 4, and the
application therefore partially succeeds and is hereby granted in
part as follows:-
(1). Extension of time is hereby granted
to the appellant/applicant within
which to comply with the order of
court made on 10/11/05 to file
additional ground of appeal.
(2). The appellant/applicant is hereby
granted leave to argue on appeal
the fresh issue raised in the
additional ground of appeal.
(3). The appellant/applicant is to file
the amended notice of appeal
incorporating the additional ground
of appeal within 7 days from today.
Consequent upon the foregoing, prayers 2, 4 and 5 are hereby
refused. Cost assessed at N30,000.00 is awarded in favour of the
respondent, against the applicants.