Adejumo & Anor V. Governor Of Lagos State (1970)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N. 

On an application for an order of certiorari to issue, made by counsel in the High Court of Lagos, an affidavit was filed in support of the motion showing evidence upon which the applicant relied. Grounds relied upon were also set out.

It would appear that certain Orders made by the Military Governor of Lagos, who is the present respondent, were required to be removed into court for the purpose of being quashed. The two Orders involved were made on the 23rd July, 1969, and published in the Gazette as Lagos State Legal Notice No. 13 and Lagos State Legal Notice No. 14 and entitled:
(i) The Public Officers and Other Persons (Forfeiture of Assets) Order 1969,and
(ii) The Public Officers and Other Persons (Making of Reparation) Order, 1969, respectively.

The first appellant at the material time was a public officer in the service of the Lagos State, and the 2nd appellant is his father. It would appear that the two Orders complained of were made after the assets of the 1st appellant had been probed by a Tribunal appointed by the Governor.

We are, for the purpose of this ruling, not concerned with the grounds upon which the relief for certiorari was based. It is with two paragraphs of the affidavit of the 1st appellant filled in support of the motion for an order that we are concerned. They are paragraphs 2 and 6, and they read::-

“2. That in pursuance or purported pursuance of the provisions of section 4 of the Investigations of Assets (Public Officers and Other Persons) Decree 1967, the respondent appointed a tribunal of inquiry by instrument a true copy of which is contained in the published Official Report of the Proceedings of the said tribunal on 6th January, 1969, being the 1st day and which Report is now shown to me and marked exhibit A.”

“6. That the document now shown to me and marked exhibit E is a true copy of the proceedings of the said tribunal on its 45th day of sitting and it contains a true copy of the proceedings before the tribunal on the 10th April. 1969.”

Now, when the motion praying for the order came up for hearing, the Principal State Counsel raised a preliminary objection. They were as follows:-
(i) In respect of paragraph 2 of the applicant’s affidavit the decree referred to as Decree 1967 is wrong as there was no such Decree in 1967,
and
(ii) Exhibit E referred to in paragraph 6 in the documents supporting the application cannot be exhibited, since it is not admissible as evidence.

He referred to section 4 (3) of Decree 1968, and also section 8 of Decree No. 41 of 1966, and asked that both paragraphs be struck out.
The arguments on both sides, as well as the judge’s ruling, were brief. The latter is as follows:-
“My view is that the exhibit E recited in paragraph 6 of the affidavit of 1st applicant is not properly exhibited; such exhibition offends against the provision of section 8 of No. 41 Decree 1966. Exhibit E as it stands at the moment is struck out.”

(2) There is nothing like Decree 1967 as recited in paragraph 2 of the affidavit of 1st applicant; the correct Decree is Decree 1968. Paragraph 2 should and is accordingly struck out. Leave to applicant to file proper document.”

We would like in the first place to call attention to the impromptu manner counsel have on many occasions raised objection of importance before the courts.

The golden rule of practice is not to spring surprises on your adversary. Applications to set aside for irregularity in the High Court should be made by way of motion See Order 2, rule 2 English Rules in the White Book 1967.
Taylor, C.J. in the High Court of Lagos in a ruling delivered on 25th August, 1969, in Suit No. LD/295/69 in Cole v. Agu called attention to the practice whereby surprises are “sprung” on counsel by their opponents. It is hoped that counsel will observe the rule in future, that applications should be made by way of motion.

In regard to the ruling about Decree 1967, with the utmost respect, the learned judge appears to us to have so much time at his disposal to deal with such inconsequential matters. Instead of inviting an argument after he had been told that it was a typographical error (since the mistake was not made in other paragraphs of the affidavit) his duty was to have the year 1967 corrected to read 1968 and get on with his business. The duty of counsel and the judge is to put right non-consequential matters in order to bring a case up to the state of hearing and to proceed with the hearing of the case.

If the ruling of the learned judge were limited to the question of the typographical error of “1967” it would have been easier for counsel for the appellant to conform and get on with the substantive case before the court. But this was not so. There was the other point relating to exhibit E which counsel maintained was not evidence given before the tribunal. The State Counsel relied on section 8 of Decree No. 41 of 1966 for its inclusion in the present proceedings as made use of in paragraph 6 of the 1st applicant’s affidavit. We observe that the learned judge did not strike out paragraph 6 of the affidavit as he was requested to do, but struck out the exhibit E.
Now, section 8 of Decree No. 41 of 1966, Tribunals of Inquiry Decree,
reads:-