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Jatau vs. Ahmed

ARCHBISHOP PETER YARIYOK JATAU

[ The Registered Trustee of the Archdiocese of Kaduna of the

Roman Catholic Church]

V

1.      ALHAJI MANSUR AHMED

2.      MRS. DOROTHY AJIJOLA

3.      KADUNA TEXTILES LIMITED

4.      UNITED NIGERIA TEXTILES LIMITED

5.      H. H. HOLDINGS LIMITED

[ The Representatives of the Debenture Holders and

other contributors of Sacred Heart Primary School,

Kaduna]

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided and Read the Lead Judgment )

UTHMAN MOHAMMED, JSC

UMARU ATU KALGO, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

SC. 149/1998

FRIDAY, 31 JANUARY, 2003

APPEAL - Court of Appeal - Exercise of discretion to grant an application for amendment - Whether a ‘decision’ within the meaning of section

277(1)  of the 1979 Constitution

APPEAL - Court of Appeal - Whether can review or set aside its decision

APPEAL - Fresh issue on appeal - Need for leave to file and argue

APPEAL - Issue for determination - Issue not emanating from ground of appeal - Whether respondent can raise in the absence of cross-appeal CONSTITUTIONAL LAW - ‘Decision’ in section 277(1) of the 1979 Constitution - Exercise of discretion to grant an application for amendment by the Court of Appeal - Whether a ‘decision’ within the meaning of section 277(1) Constitution, 1979

COURT - Court of Appeal - Exercise of discretion to grant an application for amendment - Whether a ‘decision’ within the meaning of section 277(1)  of the 1979 Constitution

COURT - Issue raised suo motu by court - Need to give parties opportunity to address court thereon

PLEADINGS - Amendment of made at any stage of proceedings or by the Court of Appeal - Effect of

PRACTICE AND PROCEDURE - Issue raised suo motu by court - Need to give parties opportunity to address court thereon

Issues:

1.            Whether in the circumstances of this appeal the Court of Appeal was right in holding that the amendment it earlier granted to amend the name of the appellant and also the record of proceedings raised a new point or fresh issue which was not raised in the court below.

2.            Whether having granted the appellant leave to amend the name of the appellant the record of proceedings, which amendment had retrospective effect, the Court of Appeal had the jurisdiction and competence to ignore or decline to give due legal effect to the said amendment when it allowed the appeal before it and proceeded to strike out the suit on the selfsame ground that same was not properly constituted.

Facts:

Appellant was the plaintiff in the High Court, Kaduna. He claimed four (4) reliefs against the respondents as defendants. Respondents in their statement of defence raised a counter-claim of twenty-seven (27) reliefs all in the nature of declarations. At the conclusion of trial, the trial court gave judgment for the appellant and granted all the reliefs claimed. The respondents appealed to the Court of Appeal.

While the appeal was pending at the Court of Appeal, the appellant filed an application to amend, both the writ and statement of claim by substituting his name with “The Registered Trustee of the Archdiocese of Kaduna of the Roman Catholic Church.” The application was heard and granted by the Court of Appeal without any objection by the respondents.

In the course of the hearing of the appeal, the Court of Appeal referred to the amendment of the proceedings earlier granted thus:

“Mr. Toro: you told us in your address in this appeal that your amendment this morning has a retrospective effect to the date when the writ was filed. If that is the case will that not amount to raising a new point on appeal which was not canvassed in the court below.”

Both counsel subsequently addressed the court on the issue of amendment. In its judgment, the Court of Appeal allowed the appeal, set aside the decision of the trial court and ordered that the suit be struck out for lack of proper plaintiff. Aggrieved, appellant appealed to the Supreme Court.