A-G., OYO STATE & ORS V. FAIRLAKES HOTEL LTD & ANOR.

• Pages: 101-146

A-G., OYO STATE & ORS V. FAIRLAKES HOTEL LTD & AMOR.

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101

5

A-G., OYO STATE & ORS V. FAIRLAKES HOTEL LTD

& ANOR.

1.

ATTORNEY-GENERAL, OYO STATE

2.

THE COMMISSIONER FOR TRADE,



APPELLANTS/

INDUSTRIES & CO-OPERATIVE,



APPLICANTS

OYO STATE

V

FAIRLAKES HOTEL LIMITED & ANOR



RESPONDENTS

SUIT NO. SC 169/1986

SUPREME COURT OF NIGERIA

OBASEKI,



J.S.C.

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NNAMANI,



J.S.C.

KARIBI-WHYTE,



J.S.C.

KAWU,



J.S.C.

OPUTA,



J.S.C.

AGBAJE,



J.S.C.

25 2nd December, 1988

Civil Procedure - Appeals - Application for leave to raise new points not raised below -

.Motion on Notice pursuant to Order 6 r.5(1), Supreme Court Rules, 1985 - Objection

in limine by opposing party - Powers of Supreme Court to entertain new points not raised

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below - Section 22, Supreme Court Act, 1960.

Constitutional Law - Judicial powers, section 6(6)(a), 1979 Constitution - The judicature -

Supreme Court of Nigeria - Appellate jurisdiction, section 213(1), (2)(a), (b) - Practice

and procedure, Practice Rules - Power of Chief Justice to make rules for the Practice

35

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and Procedure of the Supreme Court - Section 216, Constitution, 1979- Constitutionality

of Order 6 rule 5(1), Supreme Court Rules, 1985 - Rules by Chief Justice enabling

application for leave to argue new points - Constitutionality.

ISSUES:

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1. Whether it is proper at law that a client should be made to bear the brunt of

counsel's mistake or inadvertence in the submission made by the latter in Court.

2. Whether the mere taking of a new point (not taken in an intermediate court below)

in the Court of last resort necessarily constitutes an appeal direct from the Court

of trial.

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3. Where the notice and grounds of appeal are explicit on the question as to the

judgment of which court is appealed against, can an application for leave to argue

new points have the effect of making the judgment in question that of another

court entirely different from the one contemplated on the notice.

4. Whether the practice by the Supreme Court, of allowing points not taken in the

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court below to be argued, in the periods before the creation of the Court of Appeal,

can

only

be justified on the historical reality that appeals lay (as at then) to the

Supreme Court directly, from the decisions of the High Court.

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NIGERIAN SUPREME COURT CASES

[1988] 3 N.S.C.C.

5.

Whether on the authorities, the practice by the Supreme Court, of allowing to be

taken, points not taken in the court below is traceable to purely statutory origins

such as would place bounds to the said practice by reference to such statutes.

6.

What is the true effect of section 22 of the Supreme Court Act as regards the

power of the Supreme Court to allow to be taken, in an appeal before it, points

not taken in the court below.

7.

What is the extent of the powers of an appellate Court with regards to the

determination of an appeal before it.

8.

What factors will justify the exercise of discretion by an appellate court, of allowing

to be argued, points not raised in the Court below but raised for the first time in

the appeal before it.

9.

Whether section 213(1) of the 1979 Constitution, has the effect of depriving the

Supreme Court of its inherent powers to hear and determine, in all its amplitudes,

an appeal before it, having regard to the discretionary powers of that Court to

allow arguments on points not taken in the Court below.

10.

Whether Order 6 rule 5(1), Rules of the Supreme Court, 1985, is in conflict with

section 213 of the 1979 Constitution, in that the former provides that an appellant

who wishes to seek leave to argue new points during the hearing of the appeal,

should indicate such a wish in his briefs of arguments.

11.

Whether a statutory right of appeal is distinct from the manner of exercise of such

a right so as to be governed by different rules and/or considerations.

12.

Whether the jurisdiction confered on the Supreme Court by Section 213 of the

1979 Constitution can be read as implying a power to allow to be taken in an

appeal before it, points not taken in the Court below.

13.Whether the Supreme Court has unfettered jurisdiction, regardless of the

provisions of section 213(1) of the 1979 Constitution, to allow or refuse new points

to be argued, which were not taken in the court below.

OBITER:

14. What is a judgment?

FACTS:

The respondents sued the appellants in the Federal High Court for various dec-

laratory reliefs and in damages for breach of contract, and got judgment in all but

one. The defendant/appellants appealed against that judgment to the Court of Ap-

peal, Lagos Division, and lost. Dismissing the appeal, the Court of Appeal varied the

judgment of the Court below by substituting the award of general damages (with in-

terest) with an award for loss of profit. The appellants appealed to the Supreme

Court. By way of motion on notice, under Order 6 rule 5(1), Rules of the Supreme

Court, appellants sought leave of Court to raise and argue some new points neither

raised nor argued in the Court of Appeal.

Consequently, respondents took out a motion of objection under Order 6 rr.5 (1)

and (4), Supreme Court Rules, 1985. The grounds of the objection were said to be

the provisions section 213(1), 1979 Constitution. Subsequently, respondent took

out another motion under Order 6 rr. 1(1) and (4) of the Supreme Court Rules, for

an extension of time within which to give notice that the Supreme Court will be moved

to depart from some of its past decisions, one of which was

Shonekan v. Smith

(1964)

All N.L.R. 168, as regards introducing new points not taken in the court below.

Appellants' counsel argued that the practice of allowing to be taken on appeal to

the Supreme Court, points not taken in the court below were adopted from English

and Commonwealth practice. The practice was valid up to, and including the 30th

of September, 1979. The practice became of doubtful application to the Supreme

Court of Nigeria after that date, having regard to the existence of the Court of Ap-

peal, counsel thought that the practice was proper before the establishment of the

Court of Appeal and that after that, allowing new points to be taken on an appeal in

the Supreme Court was tantamount to hearing an appeal directly from the High

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3(

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A-G., OYO STATE & ORS V. FAIRLAKES HOTEL LTD & ANOR.

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103

Court. This was contrary to the provisions of section 213(1) of the 1979 Constitu-

tion by virtue of which the Supreme Court has exclusive jurisdiction to hear appeals

from the Court of Appeal, and further, that the practice was justified when appeals

lay to the Supreme Court from the decisions of the High Court. Counsel then con-

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cluded that he derived support from

Adio v. The State

(1986) 4 S.C. 194 at 204, where

it was held that the Supreme Court, being a creature of statute, derived its powers

to hear appeals from section 213(1) of the Constitution; such powers being limited

to hearing and determining appeals from the Court of Appeals directly from the High

Courts. Counsel then urged the Court to overrule its earlier decisions on the point

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and to refuse to be argued, the new points sought to be argued by the appellants.

Counsel further urged the Court to declare unconstitutional, Order 6 rule 5(1) of the

Supreme Court Rules 1985, by which an appellant could indicate in his briefs of ar-

gument, whether he wishes to seek leave to argue new points not taken in the Court

below. Respondents replied that the Supreme Court had jurisdiction since the new

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points sought to be argued were necessarily tied to the grounds of appeal filed, ad-

ding that the provisions of the Constitution and the Rules of Court were intended to

serve the ends or interests of justice.

HELD:

1.

That since the new point sought to be taken in the Supreme Court was not taken

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in the Court of Appeal, it could not have received the consideration of the Court

of Appeal. However, it is clear law that a client should not suffer because of a

mistaken submission of a point of law by his counsel. The corollary is that a

client should not suffer because of the failure of counsel to make a submission

of a point of law which he ought to have made in the court below.

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2. That it is not the case that whenever a point not taken in the court below is to be

taken in the Supreme Court, it necessarily involves an appeal from the High

Court. If a matter has been pleaded and evidence is led on it and is on the

records, an application for leave to take it in the Supreme Court may not

necessarily involve an appeal from the High Court. The High Court may not have

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taken it. A court of last resort ought to take it in the interest of justice.

3.

That it is not correct to refer to the appeal in the present case as an appeal from

the High Court. From the notice of appeal given by the appellants, it was quite

clear that the appeal was an appeal to the Supreme Court from the judgment of

the Court of Appeal, in accordance with section 213(1) of the 1979 Constitution.

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It is definitely not an appeal from the High Court Lagos. When the Supreme

Court granted the appellants leave to appeal, it limited them to ground 5 of their

grounds of appeal which complained that the Court of Appeal erred in law by

shifting the onus of proof of loss of profit to the defendants. That ground made

no reference to the High Court. Ii: did not complain against what that court did.

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There is nothing from either the notice of appeal or the ground of appeal to

connect the present appeal to the Supreme Court with the High Court.

4.

That the High Court, under the 1963 Constitution, as under the 1979 Constitution

had, and exercised appellate jurisdiction. Thus points not taken in the High

Court when exercising its appellate jurisdiction could be taken with leave of the

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Supreme Court. When the Privy Council was the final Court of Appeal for Nigeria

and other British West African territories, it did however, exercise the power to

allow new points not taken in the court below, i.e., the West African Court of

Appeal and the Supreme Court. The contention that there is no jurisdiction in

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the Supreme Court to entertain appeals direct from the courts of law subordinate

to, and below the Court of Appeal, and that as such, Order 6 r. 5(1) of the

Supreme Court Rules, 1985, is null and void for inconsistency with section 213(1)

of the 1979 Constitution, is erroneous. It fails and is dismissed.