Adeboanu Manufacturing Industries (Nigeria) Limited V. E. I. Adedeji & Anor (2000)
LawGlobal-Hub Lead Judgment Report
ADEREMI, J.C.A.
Upon the death of the original plaintiff Alhaja Sidikatu Oshodi, the 2nd respondent (Olufemi Akiyode was substituted for her as the plaintiff. After some amendments of his pleading with the leave of the court, the plaintiff hereinafter referred to as the 2nd respondent claimed four reliefs at the Court below against the defendants (Adeboanu Manufacturing Industries Nigeria Limited and E. I. Adedeji) jointly and severally both of whom are hereinafter referred to the Appellant and the 1st Respondent respectively. The reliefs so claimed against the Appellant and the 1st Respondent jointly and severally in the Court below as per paragraph 20 of the further amended statement of claim are: –
(1) A declaration that the plaintiff is the person entitled to the issuance of a Certificate of Occupancy in respect of a piece or parcel of land lying, being and situate at Agindingbi village, Ikeja Division of Lagos State
(2) An order setting aside the Certificate of Occupancy No.10/10/1982J dated 18th of November, 1982 wrongfully granted to the first defendant by the Governor of Lagos State in respect of the land in dispute.
(3) N500.00 damages for trespass on the said land.
(4) An order for injunction retraining the defendants their servants, agents and/or privies from committing further acts of trespass on the said land.
The 2nd respondent led evidence in proof of the averments in his pleading by giving evidence personally and calling two witnesses. At the conclusion of the evidence of the plaintiff/2nd respondent, the case was adjourned on two occasions to enable the defendants react to the plaintiff’s case. When they failed to appear and neither was their counsel available, the Court took the final legal submissions of the court for the plaintiff/2nd respondent and thereafter adjourned for judgment on 28/2/97 on which day the Appellant brought an application “to arrest the judgment”. The application was filed on the day the judgment was to be delivered. Explaining the reason for the delay in filing the motion, Miss Odogun, learned Counsel for the defendants submitted that it was due to what she called inability to reach the court’s file; she prayed for a date to argue the application. Chief Pekun Martins, learned Counsel for the plaintiff/2nd respondent while alluding to the chequered history of the case, he urged the trial Judge to note that the defendants had voluntarily stayed away from defending the case since 1994. He admitted that counsel for the 1st defendant/appellant served him with summons for further directions on the morning of 28/2/97 – the date for the delivery of the judgment. He urged the trial Judge to ignore the application. In agreeing with the submissions of Chief Pekun Martins, the learned trial Judge (Olorunnimbe J.) observed inter alia:-
“This suit was filed in 1986. The 1st and 2nd defendants retained the firm of Solicitors – Messrs Wale Ajiboye & Co. who entered appearance for them Trial started on 4th October, 1994. The judgment is now about to be read… The motion is not before me now. Indeed, it has just been filed this morning. It is not correct as submitted by Miss. S. R. Odogun that they could not get the case file. On the 23/1/97, a counsel from Messrs Kayode Sofola & Co applied for and collected the certified true copies of the process file herein. I make bold to say that ‘arresting’ a judgment is unknown to our law. I am afraid I cannot accede to the request of Miss. Shakirat R. Odogun learned counsel for the applicants. The judgment shall be read, as it is hereby read”.
Consequently, the learned trial Judge proceeded to read the judgment on that day. The relief by the plaintiff were granted as prayed. Thereafter, the 1st defendant/appellant brought an application to set aside the said judgment and for an order staying the execution of same. After taking arguments of counsel, the Court below in a reserved ruling delivered on 1/8/97 dismissed the application. Being dissatisfied with the judgment delivered on 28/2/97, the 1st defendant/appellant entered a notice of appeal against it on 27/5/97 incorporating three grounds of appeal. Also, being dissatisfied with the ruling delivered on the 1st of August, 1997 the 1st defendant/appellant filed a notice of appeal against it with seven grounds incorporated. The notice of appeal was filed on 15/8/97. By order of this Court made on 10th April, 2000, the two appeals were consolidated distilled from two sets of grounds of appeal in the two notices of appeal are four issues which as contained in the Appellant’s brief of argument are as follows: –
(1) Whether the lower Court was right in proceeding to deliver judgment in the matter when an application that went to the root of the matter, to wit; the request by the defence to be let in defend was still outstanding to his knowledge?.
(2) Whether the lower Court was correct in not setting aside the judgment delivered in the matter in the circumstances of the case?
(3) Whether the parties to the suit were properly constituted bearing in mind the pleadings in the case when the Lagos State Government was not made a party to the suit?.
(4) Whether the lower court was right to have set aside the Certificate of Occupancy NO/51/51/1982J when no evidence had been adduced to impugn the irregularity of its issuance?.
The Respondent for their part raised two issues for determination and they, as contained in the Respondent’s amended brief of argument, are:
(1) Whether the learned trial Judge rightly and satisfactorily disposed of the oral application brought before him on the 28th February, 1997, and whether there was any motion for adjournment pending before him that day?.
(2) Whether the Respondent put enough materials before the learned trial Judge to justify an order setting aside his judgment …
When this appeal came before us on 10th April, 2000 Mr. Kayode Sofola, SAN learned Counsel for the Appellant, adopted the Appellant’s brief of argument filed on 19/1/2000, submitted that it was a grave error for the learned trial Judge to have refused to hear and determine the Appellant’s application before proceeding to deliver the judgment in the suit, he urged that the appeal be allowed. Chief Pekun Martins, learned Counsel for the Respondents argued that no application was pending before the court below prior to the delivery of the judgment now appealed against, and so, according to him, the issue of refusal of the Court below not taking the said application did not arise in this case, he finally urged that the appeal be dismissed.
I shall begin the consideration of this appeal by taking issue 1 on each of the Appellant and the Respondent’s respective briefs together. The grouse of the Appellant was that, by refusing to take its application before delivering judgment on 28/2/97 injustice was foisted on it, or the said application – summons for further directions filed on 28/2/97 – the 1st defendant/appellant prayed for the following:
(1) an order amending the name of the 1st defendant to read EKULO INDUSTRIAL LTD.
(2) an order striking out the name of the 2nd defendant
(3) an order joining the 2nd applicant as defendant herein.
(4) an order that hearing in this suit be commenced de-novo by recalling the plaintiff’s witness who have given evidence in this suit.
(5) an order that the applicants be given the opportunity to cross-examine the plaintiff’s witnesses.
(6) an order that the applicants be given the opportunity to produce their witnesses and given evidence and defend themselves in this matter in the interest of justice so that the real issues in controversy in the said suit between the parties.
The said summons for further directions was brought by (1) Ekulu Industries Limited and (2) E. C. Okonkwo as joint applicants. The application was filed on behalf of the applicants by the firm of Solicitors styled as Kayode Sofola’s Chambers, the present Counsel to the Appellant. Prior to the bringing of the application on behalf of the applicants by Kayode Sofola’s Chambers, the Counsel to the defendants was one Wale Ajiboye Esq. The summons was supported by an affidavit of urgency and the salient paragraphs of which 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 which I set our hereunder: – (3) That the land the subject-matter of this suit belongs to the 1st applicant herein whilst the 2nd applicant is the Chief Executive.
(4) That the 1st applicant was previously called Adeaboanu Manufacturing Industries (Nig) Ltd until the resolution to change its name to Ekulo Industries Limited on 6th October, 1991. Attached herewith and marked Exhibit A is the Certificate of Incorporation reflecting the facts.
(5) That soon thereafter there was a change in the composition of its Board of Directors under which the 2nd applicant herein became a director of the 1st applicant herein. Attached herewith and marked Exhibit B is a Certified True Copy of Form ‘CO7’ of the 1st applicant company.
(6) That the land the subject-matter of his suit belongs to Ekulu Industries (Nig.) Ltd the 1st applicant herein and is comprised in the Certificate of Statutory Right of Occupancy registered as No.1 0 at Page 10 in volume 1982 J dated 13/11/82.
(7) That it is in the interest of justice that the applicants herein be substituted and allowed to be joined as parties in this suit so that the controversy between the parties will be adequately and effectively adjudicated upon by this Honourable court.
(8) That the existence of the matter herein has just come to the knowledge of the applicants herein by virtue of a motion filed in suit No.ID/4014/96: Olufemi Akiyode v. Ekulo Industries Limited & An. Pending before Phillips J. in late November, 1996 which was instituted by the same Counsel acting for the same plaintiff in respect of the same property.
(9) That our firm was instructed to take necessary steps to protect the interest of the applicants herein.
(10) That an application was addressed to the Registrar of this Honourable Court, applying to reach the court’s file having paid the requisite fee which letter is before this Honourable Court.
(11) That I subsequently approached the Registrar of this Honourable court with the application to search but he informed me and I verily believe that the search cannot be conducted since the file is already with the Honourable Judge and a ruling or judgment is being written thereon.
(12) That it is necessary that this application be urgently determined lest 2nd defendant/applicant be confronted with a fait accompli.
(13) That I am informed by the said Kayode Sofola, SAN and I verily believe him, that evidence on behalf of the applicants herein which is necessary has not been placed before the court to enable it finally determine all the real questions in controversy in the suit and substantial justice between the parties.
(14) That I am further informed by the said Kayode Sofola, SAN and I verily believe him that the chances of defence of the applicants succeeding if properly put before the court are quite considerable.
The Appellants contended vigorously in its brief or argument that the application was pending before the Court below on the day the judgment was to be delivered. The trial Judge argued that the counsel to the Appellant, fell into a serious error of law by not allowing the application to be argued before pronouncing on it and that the delivery of the judgment by the Court below on 28/2/97 whilst the said application was pending and not moved by the counsel to the applicant was a travesty of justice he relied on a number of judicial decision the likes of Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909, Owena Bank v. Muhammed (1998) 1 NWLR (Pt. 533) 301, Okoro v. Okoro (1998) 3 NWLR (Pt. 540) 65 and Union Bank v. CFAO (1997) 11 NWLR (Pt. 527) 118. In opposition to the appeal the Respondents, through their brief, submitted that the application to the extent to which it prayed for an arrest of the judgment which was to be delivered on 28/2/97, it was unknown to law. The application they further argued was not before the court on the day the judgment was to be delivered, since as they submitted in their said brief, it is an abuse of court process to file a motion in the court Registry and seize it up, the motion they therefore argued does not exist in law. The reasons adduced by the learned trial Judge for not entertaining the application before delivering the judge postulate a judicious and judicial exercise of the court’s discretion.
In order to appreciate the crucial point argued here I shall preface its consideration with the facts leading to the delivery of the judgment without the applicants contesting the case put up by the plaintiff. Undoubtedly, the records of appeal are replete with series of adjournments of course with the defendants and their counsel being absent from court. On the 9th of January, 1997 when the Court below reconvened it was only the plaintiff and his counsel Chief Pekun Martins that were present in court. The learned Counsel later in the day gave his final address after which the case was adjourned for judgment on 28/2/97. On that day, the plaintiff was present but the defendants were absent from court, but Chief Pekun Martins learned counsel for the plaintiff/2nd respondent and Miss. S. R. Odogun, learned Counsel for the applicants were in court. The proceeding at the court on that day are terse and I shall hereunder reproduce some. Miss Odogun addressing the court said:
“I have an application to arrest the judgment. It was filed this morning 28/2/97 – which was necessitated by our inability to search the court’s file. In view of the application pending I crave your Lordship’s indulgence to allow submission on the merit. This application goes to the root of the matter. I want a date to hear the application” .
Chief Pekun Martins, learned Counsel for the plaintiff/2nd respondent in reply to the submission of Miss. Odogun said in the open court:
“The defendants on record have abandoned this case as far back as 1994. This morning my learned friend gave me these papers. It is headed summons for further directions. The counsel now are different from the counsel in the original action. I ask the court to ignore it. The applicant left the application until today”.
Miss. Odogun, in reply to the submission of Chief Pekun Martins said and I quote:
“Applicants are now owners of the 1st defendant/company”.
In his ruling on the submissions of both counsels the learned trial Judge reasoned and I quote him in extenso:
“This suit was filed in 1986. The 1st and 2nd defendants retained a firm of solicitors – Messrs Wale Ajiboye & Co. who entered appearance for them. Trial started on the 4th October, 1994. The judgment is now about to be read. Indeed, the judgment must be read with (sic) the Constitutional period laid down in section 258(1) of the 1979 Constitution. The “Motion is not before me now. Indeed it has just been filed this morning. It is not correct as submitted by Miss. S. R. Odogun that they could not get the case file. On the 23/1/97, a counsel from Messrs Kayode Sofola & Co. applied for and collected the certified true copies of the process filed herein. I make bold to say that ‘arresting’ judgment is unknown to out law. I am afraid I cannot accede to the request of Miss Shakirat R. Odogun, learned Counsel for the applicants. The judgment shall be read as it is hereby read.”
(Italicising mine)
From the proceedings of 28/2/97 before the learned trial Judge, I am in no doubt that the trial Judge, the Counsel for the plaintiff/1st respondent and of course the Counsel for the applicants were ad idem that as at that day and time (28/1/97), when judgment was to be delivered. Summons for further direction had been filed by the applicants in the court’s registry. Indeed, the counsel to the plaintiff/1st respondent admitted before the open court that a copy of same had been served on him that morning. It is axiomatic to say that the primary and indeed the only function of the court is to see to it that in all matters brought before it justice is not only done but it is seen to be transparently done. And, justice, it must be remembered, is not a one-way traffic. It is not for the plaintiff only nor is it an exclusive preserve of the defendant in the dispute. Again, it follows that justice is not even a two-way traffic. Indeed, it is a three-way traffic. It is justice for the plaintiff/victim (accuser) it is justice for the defendant/accused finally justice for the society at large – a society whose values and social norms have been pummeled by the acts complained of. Neither the word ‘justice’ nor the phrase ‘in the interest of justice’ capable of an objective definition in terms of multiplication of words. Perhaps, concept of justice is better explained in two Latin maxims viz audi alteram partem and nemo debet esse judex in propria causa. The first maxim simply translates into this golden rule that no one shall be condemned, punished or deprived of property in any judicial or quasi-judicial proceedings unless he has been heard or be seen to have been given all available opportunities to be heard. That has long been a received rule or one of the cardinal principles of natural justice. The second, which has not been questioned in the case at hand, directs that no one shall be a judge in his own cause. These are the twin pillars on which the concept of natural justice rests. When it is being questioned whether justice has been done in any particular case, a safe ground, for reason of difficulty of the term is to assert that justice has been according to law, for the law itself must of necessity include the procedure laid down for its attainment. To leave the attainment of justice to a free-for all pursuit and jettison the rule is to pave way for judicial high-handedness and the omnipotence of individual judges. The question that keeps up recurring in this case is whether the Appellant could be said to have been given all available opportunities of being heard before the final pronouncement of judgments? No doubt, as I have said above a number of adjournments, perhaps avoidable, had been granted in the course of the proceedings. However, a new dimension to the case offered itself for due consideration of the trial Court when the matter came up on 28/2/97. There was an application backed up by an affidavit of urgency where it was deposed that the name of the 1st applicant (now the appellant) had changed into another name; that the subject-matters of the suit belongs to the 1st applicant and not the appellant; that this fact came to light through an application filed in a suit between the plaintiff/2nd respondent. I pause here to say that in the absence of a counter-affidavit to debunk the depositions in the affidavit in support; and there is none, the applicants have sufficiently shown that they are necessary parties whose presence is crucial and fundamental to the resolution of the case before the court. See Peenok Inv. Ltd. v. Hotel Presidential Ltd (1983) NCLR 122, (1982) 12 S.C.1. In my view, to deny the applicants the opportunity of participating in the dispute is to deny them justice. An independent and impartial observer sitting in the court room and seised of the facts as set out above will leave the court room satisfied that injustice has been meted to the applicants if they are not allowed to join in the suit. The case would not have been heard and determined on its merits, if judgment were to be delivered in such circumstances as in the instant case. I venture to say that such judgment cannot but she said to have been hastily or hurriedly given and that in itself is denial of justice. See: Unongo v. Aper Aku & Ors (1982) 11 SC 129, (1983) 2 SCNLR 332. The application of the applicants as set out above did call for an adjournment – a great exercise of judicial discretion. Can it be said that faced with the welter of materials before it did the Court below exercise its discretion judiciously and judicially? A discretion that considers only one party’s right to justice is a discretion improperly and injudiciously exercised. A discretion that can be said to be properly exercised is one that takes account of the plaintiff’s claim to justice as well as the defendant’s claim to justice. In Walker v. Walker (1967) 1 AER 412 Sir Joselyn (president) in laying down guiding principles as to the exercise of such discretion said at page 414:
“First, where the refusal for an adjournment would result in a serious injustice to the party requesting the adjournment, the adjournment should be refused only if that is the only way that justice can be done to the other party, and secondly that, although the granting or refusal of an adjournment is a matter of discretion, if an appellate court is satisfied that the discretion has been exercised in such a way as would result in an injustice to one of the parties the appellate Court has both the power and the duty to review the exercise of the discretion”.
The above dictum was given judicial approval in Acka v. Akure (1987) 1 NWLR (Pt. 47) 74. As I have said above, the desire to dispense justice in all matters before it is the pre-occupation of any court of justice. It follows therefore that unless and until the Court has pronounced a judgment on the merits of the case or by the consent of the parties it is to have the power to revoke the expression of its coercive order. See Evans v. Bartlam (1937) 2 AER 646. In the instant case, judgment had not been delivered before the summons for further directions was brought before the Court below. The trial Judge even fell into a serious error by not allowing the application, which I am satisfied from the record of proceedings, he knew to be in existence to be moved and yet went ahead to rule on it. In Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 Belgore J.S.C deprecated such an approach when at pages 726-727 he said:
“It is clearly good sense to hold that failure of the judge to hear an application or motion properly placed before him is tantamount to a deliberate contrivance to frustrate the same. Be it noted that a judge has a duty to pronounce specifically on an application or issue properly sought or raised by the parties at the trial failure to decide one way or the other is a serious error”.
In an attempt to justify the stand, the learned trial Judge took in dealing with the summons the respondents through their brief argued that while application for an adjournment is known to law an arrest of judgment is foreign to law, they further reasoned that the trial Judge refused his judgment to be arrested because he would not want justice to be delayed and denied. I have had a second look at the summons, there is no where a prayer for the arrest of the judgment was made. It is to be noted that not every word used by a counsel in the course of making his submissions to court should be subjected to microscopic examination such that, the oral submissions will be allowed to supplant the prayers properly made on the application. Suffice it to say that, Counsel’s submissions must always be reviewed in the light of the prayers placed before the court. In the light of all I have said, I have to and I so answer issues I on each of the briefs of the appellant and the Respondents in the negative. Issue 1 in the Appellant’s brief is resolved in favour of the Appellant while issue 1 in the Respondents’ brief is resolved against them. Ordinarily, this should be the end of the appeal, but there is a duty under the law to attend to the other issues in the two briefs. On issue 2 raised for determination by the Appellant in its brief, I have said (supra) on the authority of Evans case (supra) that until a judgment is seen to have been pronounced upon on the merits of the case a court of justice as well as a court of equity reserves the right to set aside such judgment. The application to set it aside after its (judgment) delivery should have been granted. That issue is therefore answered in the negative, it is resolved in favour of the appellant. On issue 3 in the appellant’s brief, all I wish to say is that the rationale for making a person to be a party to an action is that he should be bound by the result of the action. From the pleadings particularly the second relief claimed, it is clear that the question to be settled in this action is one of which cannot be effectually and completely settled unless the Governor of Lagos State and/or the Attorney-General for Lagos State is made a party. Not to join either or both of them and to thereafter hand-down a judgment which will be binding on them is to deny them hearing in the case.
They (the Governor of Lagos State) by the judgment delivered on 28/2/97 were SC 301. Issue 4 of the appellant is accordingly answered in the negative and for similar reason. I also answer issue 4 in the appellant’s brief in the negative. Without going into the evidence before the Court below to see whether sufficient materials were placed before it I wish to say that issue 2 raised in the respondent’s brief of argument is answered in the affirmative. The trial Judge should have set aside the judgment.
In the result, the appeal is adjudged to be meritorious and it is accordingly allowed, the judgment of lower Court delivered on 28/2/97 by the court below is hereby set-aside. The case is hereby remitted to the Chief Judge of the Lagos State Judiciary for re-assignment by him to another Judge of the Lagos State High Court who shall hear and determine the suit de novo. The Appellant is entitled to the cost of this appeal which I assess in its favour at N4,000.00 against the Respondents.
Other Citations: (2000)LCN/0815(CA)