Lagos State Development Property Corporation V. Chief J. O. Adeyemi-bero & Anor. (2004)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

In the High Court of Lagos State, in the Lagos Judicial Division, sitting at Lagos, the plaintiff by an action commenced by originating summons which was subsequently amended sought the following reliefs:

“1. A declaration that under and by virtue of Decree No. 21 of 1996 the judgment delivered by His Lordship, Honourable Juctice S.O. Ilori in suit No. M/415/95 between Chief J.O. Adeyemi-Bero and the Military Administrator & 2 Ors. in which judgment the court transferred interest in the properties to Chief J. O. Bero, is null and void and of no effect whatsoever.

2. A declaration that under and by virtue of Decree No. 21 of 1996, the provisions of Decree No. 54 of 1994 are longer applicable to the properties known as:

(a) Plot 177 Victoria Island, Lagos (also known as Block B Eko Court Complex).

(b) No. 25 Cooper Road, Ikoyi (both hereinafter referred to as “the properties” and that the ownership status of the properties remains as it was prior to the promulgation of Decree 54 of 1994 by the Federal Military Government.

3. A declaration that the provisions of the determination contain interests in Land Edict No.3 of 1976 which vested the properties in the plaintiff and Lagos State Notices No.9 and 23 of 1976 are still valid and subsisting.
4. A declaration that the effect of Decree No.21 of 1996 on Decree No. 54 of 1993 is that the properties still remain vested in the plaintiff under the Lagos State Notices No.9 and 23 of 1976 respectively.
5. An order of perpetual injunction restraining the first defendant, his servants, agents, privies etc., whosoever or whatsoever from dealing with the property in any manner or form or dealing with any of the tenants residents in any of the properties.
6. An order of perpetual injunction restraining the first defendant through his agents, privies or anyone deriving title under him from exercising or purporting to exercise any right or shape in respect of the properties aforesaid.
7. An order of perpetual injunction restraining the Registrar of Titles either by his agents, servants, privies or anybody whatever and whosoever claiming interest with them from effecting any change in the ownership of the property as vested in 1976.
8. Further and other reliefs.
9. That provisions be made for costs of this application.”

The originating summons is supported by an affidavit and a further and better affidavit. Two documents, the judgment of Ilori, J., and a copy of Decree No.21 of 1996, were exhibited to the affidavit in support of the originating summons. It is exhibited to the further and better-affidavit a certified true copy of a certificate of occupancy. On the other hand, the first defendant deposed to a counter as well as further counter-affidavit. The learned trial Judge, after reviewing the evidence as well as the submissions of learned counsel for the parties, particularly the defence, concluded as follows –

“It is my judgment that the judgment in suit No. M/415/95 operates as an estoppel per rem judicata to prevent the plaintiff in this case from making the downs as contained in legs 2, 3, and 4 of the amended originating summons dated 2nd July, 1998.

The plaintiff is estopped from making those claims.

Claims 5, 6 and 7 in the amended originating summons are ancillary claims which arise from the substantive claims.

A court cannot adjudicate over ancillary claims if it has no jurisdiction to entertain the main claim and if the ancillary claim inevitably involves a discussion of the main claim. By the same token, an accessory claim can only be determined by the court with jurisdiction to decide the principal claim. See the case of Tukur v. Govt. of Gongola State (1989) 1 NWLR (Pt. 117) page 517. Therefore the 5th, 6th and 7th legs of claim have no merit whatsoever.

In the result, the originating summons lacks merit. It is accordingly dismissed.

Costs assessed at N2,000.00 is awarded in favour of first defendant against the plaintiff only.”

The plaintiff was unhappy with the decision and being dissatisfied and aggrieved has appealed to this court on a notice of appeal carrying only one ground of appeal. Subsequently an amended notice of appeal containing 3 grounds of appeal was filed. Pursuant to the provisions of Court of Appeal Rules, briefs of argument were consequently settled. In accordance with the provisions of Order 6 rules 2, 3 and 4 of the Court of Appeal Rules they exchanged briefs, which were settled as appellant’s, respondent’s and appellant’s reply briefs of argument. Issues were framed in both briefs of argument. The issues identified as calling for determination in the appellant’s brief are three and are as follows:

“2.1 Whether the learned trial Judge was right to hold that the lower court did not possess the jurisdiction, inherent or otherwise to grant the plaintiff/appellant’s declaratory relief that the judgment of S.O. Ilori, J., in suit No.M/415/95 is null and void, on the sole ground that to exercise such jurisdiction would be tantamount to sitting on appeal over the judgment of a court of co-ordinate jurisdiction, since it would necessarily involve making a pronouncement on the said judgment?.

2.2. Whether the learned trial Judge was right in his conclusion that the issue raised in suit No. M/415/95 and those raised in the present suit are one and the same; and was therefore accordingly right in upholding the 1st respondent’s plea that reliefs 2,3 and 4 claimed by appellant were res judicata?.

2.3 Whether the learned trial Judge was right to hold that the present suit was res judicata when the judgment in suit No. M/415/95, the foundation of this res judicata was null and void by, virtue of Decree No.21 of 1996?.”

On the other hand, three issues were also formulated in the respondent’s brief as ca11ingfor resolution in this appeal. They read as follows:

“(1) Whether or not the learned trial Judge was wrong to have refused to review a judgment of a court of coordinate jurisdiction which is final, valid and subsisting?; and

(2) Whether or not the learned trial Judge was wrong in holding that the parties, issues and subject matter in suit No. M/415/95 and this case on appeal are the same thereby bringing into operation the doctrine of res judicata?.

(3) Whether or not Hon. Juctice Ilori’s decision in suit No. M/415/95 which was final as between the parties could not operate as res judicata because of Decree No.21 of 1996?.”

I hereby carefully examined the two formulations and am firmly of the view that, apart from the phrasing, they are very much similar. I think, however, that the only issue calling for determination in the con of the first issues in the two formulations is that whether the trial court could correct its earlier decision in the light of the new enactment.

Before I proceed further with the consideration of the issues as framed by me I propose to state the facts of the case albeit succinctly. The first respondent was a former Permanent Secretary who had owned three landed properties at Plot 177, Victoria Island, 25, Cooper Road, Ikoyi and 1, Obanikoro Road, Ikoyi, Lagos. The first respondent was indicted and investigated by an investigating panel. Consequent upon his being found liable the property were forfeited to the Lagos State by dint of The Determination of Interests in State Lands (No.1) Order LSLN 9 of 1976 made pursuance of section 1 of The Determination of Certain Interest in Land Edict No.3 of 1976. Thereafter Lagos State Government vested the forfeited property in its Lagos State Development and Property Corporation.

The Federal Government promulgated the Forfeiture of Assets (Release of Certain Properties) Decree No.54 of 1993 with a commencement date of 23rd August, 1993. Several property, forfeited to the Federal as well as State Governments, by section 1 thereof as identified in the second column of the Schedule were released to the person set out in the first column of the same schedule. The first respondent was second on the schedule with the corresponding property of Plot 177, Victoria Island, 25, Cooper Road, Ikoyi and 1, Obanikoro Road, Ikoyi, Lagos.

On promulgation of the Decree the first respondent naturally demanded for the return of those properties from Lagos State Government in an application to the Military Administrator of the State. Upon this written request Lagos State Government released the property at No.1 Obanikoro Road, Ikoyi but refused to surrender the other two property. Whereupon the first respondent instituted an action, suit No. M/415/95 against the Military Administrator of Lagos State, Attorney-General of Lagos State and the Registrar of Titles by way of originating summons filed on 7th July, 1995 claiming for a declaration whether under or by virtue of the Decree No.54 of 1993, the two property, had not reverted to and are vested in him as owner.

Ron. Juctice Ilori delivered judgment in the suit on 11th day of June, 1996 and answered the question positively, thereby granting a declaration to the effect that the property reverted to the first respondent by virtue of Decree No.54 of 1993. Subsequent to the delivery of the judgment precisely on the 3rd day of July, 1996, the Federal Military Government promulgated the Forfeiture of Assets (Release of Certain Forfeited Properties, etc) (Amendment) Decree No.21 of 1996. Decree No.21 of 1996 was a piece of a retroactive legislation with a commencement date of 6th June, 1995 which was barely a month before the institution of the action in suit No. M/415/95. This enactment, Decree No. 21 of 1996, deleted Item 2 of the Decree No. 54 of 1994. Item 2 contain the name and corresponding property of the first respondent herein.

It is common ground that a court cannot sit on appeal over its own judgment nor review the judgment of a court of co-ordinate jurisdiction which proposition are supported by a long line of authorities: Chief Waghoreghor & Others v. Aghenghen (1974) 1 SC 1, 5 – 6; Akporue & Anor. v. Okei & Ors. (1973) 12 SC 137, 1973 NSCC (VoI.8) 649, 654; Koden v. Shidon (1998) 10 NWLR (Pt. 571) 662, 675; National Insurance Corporation of Nigeria v. Power & Industrial Engineering Company Ltd. (1990) 1 NWLR (Pt. 129) 697, 707 where Court of Appeal stated thus:

“A person interested in a judgment by a court cannot apply by originating summons or by any other application to another court of co-ordinate jurisdiction to resolve any question of construction or interpretation arising in the judgment as that will amount to that court being invited to sit in judgment over the decision or order made by a brother Judge. Such a course of action or step is without competence.”

It seems to me also that both parties agreed that there is exception, like any other general principle of law, this principle equally, permit court to exercise certain restricted jurisdiction to set aside its own judgment or the judgment of a court of a co-ordinate jurisdiction. The court below, under its Rules, is empowered to set aside a judgment entered in default of the defendant’s appearance or in default of pleadings – Order 10 r. 11 and Order 25 r. 15 of the High Court of Lagos State (Civil Procedure) Rules, 1994. There are similar provisions in Order 15 r. 6 and Order 28 r. 9 of the Federal High Court (Civil Procedure) Rules. Vide Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145;-1onason Triangle Ltd. v, C.M. & Partners Ltd. (1999) 1 NWLR (Pt. 588) 555 and Credit Alliance Financial Services Ltd. v. Mallah (1998) 10 NWLR (Pt. 569) 341.

There is, however, inherent jurisdiction for the court to set aside its own decision obtained by fraud. See UBA Plc. v. Ajileye (1999) 13 NWLR (Pt. 633) 116.

I am unable to agree with the submission of the learned senior counsel for respondent, in the respondent’s brief, that the judgment of Ilori even if it were null and void, without so conceding, by virtue of Decree 21 of 1996 the learned trial Judge would not have been in a position to set the same aside. Learned senior counsel read from the case of Obioha v. Ibero (1994) 1 NWLR (Pt. 322) 503 at 523 – 524 per Supreme Court, sitting as a full court, to the effect that a court cannot vary, or amend its own judgment in the following situation.

“The general principle of the law is that after a judgment has been passed and entered even if it is a consent judgment entered under a mistake, that court cannot set it aside except in the following situations:

(a) where there has been a clerical mistake or an error arising from an accidental slip or omission

in the judgment under the slip rule?;

(b) where the judgment as drawn up does not correctly represent what the court actually decided or intended to decide?;

(c) where the order is a nullity owing to failure to comply with an essential provision such as service of process which can be set aside by the court which made the order?; and

(d) where a judgment or order is made against a party in default.”

The learned senior counsel read further from pages 532 to 534 of Obioha v. Ibero (supra) that –

“It is an elementary principle of law that where a court has decided an issue and the decision is correctly embodied in its judgment, such a court cannot re-open the matter in order to substitute a different decision in place of the one which had been recorded as it must have become functus officio. To hold otherwise would in effect give jurisdiction to a court to sit on appeal over, or review of, its judgment or order. Any party who seeks to alter or amend it must invoke such appellate jurisdiction as may be available. This is because the law does not permit a court any double say in the same matter … It is the law that a court cannot vary its judgment or order which correctly represents it’s decision, nor may it vary the operative and substantive part of its judgment so as to substitute a different form. The error or omission which the court can correct must be an error in expressing the manifest intention of the court.”

Learned senior counsel also read from the case of Okoye v. Nigeria Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 537-538 wherein the Supreme Court had earlier pronounced on the principle as follows –

“It is the law that if an order of court is a nullity it can be set aside without much ado. Such judgments are rendered null and void by a fundamental defect and can be set aside … Generally speaking, no court of concurrent jurisdiction has the power or jurisdiction (save when expressly conferred by the rules in cases such as where an order has been made in the absence of one of the parties) to review an order made by another court or Judge of concurrent jurisdiction. That is an order more appropriately exercisable by an appellate court.” (Italics for emphasis).

See also the case of Attorney-General, Anambra State v. Okafor (1992) 2 NWLR (Pt. 224) 396, where the Supreme Court opined as follows:

“A judgment which is given without compliance with the rules of court and which non-compliance has breached a fundamental human right such as the right of fair hearing, is a nullity and is capable of being set aside either by the court that gave it or by an appellate court. ”

I am, however, unable to agree with the submission of the learned senior counsel for respondent, with the greatest respect, that the power of a court to set aside its own previous null and void decision is limited only to procedural matters and not matters of substantive law touching upon interpretation of statute. The case of Attorney-General, Anambra State v. Okafor (supra) clearly permits court to set aside its null and void decision that breached the fundamental right of a party, such as right to property of the appellant. It is equally, my respectful opinion that the trial court can set aside its own decision where it will work in Juctice on one of the parties. I am respectfully of the opinion that to insist that the appellant could have appealed against the earlier decision of Ilori, J., would be not only unjust but also inequitable. The Forfeiture of Assets (Release of Certain Forfeited Properties, etc) (Amendment) Decree No.21 of 1996 was made on 3rd day of July, 1996 when, appellant’s right of appeal might have expired by effusion of time.

There is, however, substance in the submission of the learned counsel for appellant that the case of Obioha v. Ibero (supra) is not applicable to the circumstance of the present case. The issue in Ibero’s case was correction or amendment or review of the decision in that case whereas the issue being contested in the instant appeal is setting aside of the judgment. All the cases cited in this case dealing with setting aside of a previous null, and void decision do not completely rule out nor exclude the possibility of the trial court setting aside its own decision rather it is preferred that the same power be exercised by a court exercising appellate jurisdiction, vide Attorney-General, Anambra State v. Okafor (supra); Okoye v. Nigeria Construction & Furniture Co. Ltd. (supra). I am encouraged in this view by the case of Odofin v. Olabanji (1996) 3 NWLR (Pt. 435) 126 which draws a distinction between seeking a review of a judgment and seeking for an order to set aside a judgment on account of nullity. At page 133 of the report, the Supreme Court enunciated on the point while dealing with the submission of the learned counsel for the respondent in that case the court could not sit on appeal over its own decision thus –

“But this application does not seek review of the judgment of the court but seeks to have the judgment set aside on the ground that it is a nullity. It is settled law that a court (and that includes this court) has an inherent jurisdiction to set aside its judgment or decision that is a nullity … I therefore reject plaintiff’s contention that this court has no jurisdiction to entertain the application now before us.”

The appellant’s case both in its originating summons and address of counsel in the court below was premised on the contention that the judgment in the earlier suit No. M/415/95 was rendered null and void by the statutory provisions of Decree No.21 of 1996. It was merely seeking in the latter suit the setting aside of a null and void judgment given in an earlier case. I agree with the learned counsel for appellant that a court has inherent jurisdiction to set aside its own null and void decision or order and also the null and void judgment of a court of co-ordinate jurisdiction. See Skenconsult Ltd. v. Ukey (1981) 1 SC 6 afortiori a person whose interest is affected by such decision can come to court without any further assurance or ado to have it set aside ex debito justiciae by the same court. See Egbuziem v. N.R.C. (1994) 3 NWLR (Pt.330) 23, 33 referred to in the appellant’s brief. See also Koden v. Shidon (supra); Obayiuwana v. Ede (1998) 1 NWLR (Pt. 535) 670, 679-680; Maiwada v. Pate (1995) 8 NWLR (Pt.412) 191; Adegoke Motors v. Dr. Adesanya & Anor. (1989) 3 NWLR (Pt. 109) 250 and Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314 wherein Achike, JSC underlined this point in the following terms –

“I must not be misunderstood to be saying that application to the court that made the ineffectual order is the only mode open for setting aside the void act or judgment. For avoidance of doubt, it may be stated that it is a matter of choice to proceed to set aside a judgment that amounts to a nullity either by a simple application to the court that made it or to appeal against it.” (Italics for emphasis)

It therefore, seems to me, on the authorities, that a decision or order or judgments of a court which is a nullity can be set aside by the Judge who made the order or a Judge of the same court. Any act, including a decision or judgment, which is classified as a nullity, is deemed to be not in existence, vide Baker v. Raine Engineering Co. Ltd. (1971) NLR Commercial 264, 271-2.

In setting aside a void order or judgment it is irrelevant which Judge, be it the Judge that issued the alleged void order or another Judge of the court of concurrent jurisdiction that sets aside the order. The order being null and void can be set aside by the Judge who made it or another Judge of the same court through a judicial pronouncement without the necessity of an appeal. The statement of Denning, M.R., in the case Mcfoy v. U.A. C. Ltd. (1961) 3 All ER 1169, is still valid today as it was when it was first made; at page 1172 the erudite law Lord said that –

“If an act is void then it is in law void. It is not only bad but incurably bad. There is no need to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay. It will collapse.” (Italics mine).

The Supreme Court examined this dictum in Rossek v. A.C.B. (1993) 8 NWLR (Pt. 312) 382, 489 and agree with the master of the rolls to the effect that an act which is void is a nullity and is incurably bad. The learned Juctices of the Supreme Court unanimously agreed that a null and void act must be declared a nullity by a court of competent jurisdiction and should not be disobeyed before such judicial declaration is handed down apparently to avoid chaos. In the words of Karibi- Whyte, JSC:

“I venture to postulate that since the non-compliance results in a purported judicial act and, is the consequence of a judicial proceeding, it is only proper to declare its invalidity through a judicial act. I do not think the procedure for declaring the act a nullity has the effect of conferring any validity on the act. The statement that the act is valid until it is set aside, though well settled, is and clearly represent the accepted legal position. It is however, correct to say also that it is a purported validity, deemed to be so, until the invalidity is established by judicial declaration.”

I do not respectfully think that the phrase “judicial declaration” used in the above-quoted dictum relates to exclusively bringing or filing a fresh action. It is convenient to move the Judge who made the alleged null and void order to set it aside.

The issue whether a court of co-ordinate jurisdiction can declare a void judgment delivered by a Judge other than the one being asked to set the decision aside was in contention before the Supreme Court in Skenconcult v. Ukey (supra) 33. The court, after considering both our local and foreign authorities on the matter, made a distinction between a fundamental defect which goes to the root of the courts jurisdiction or competence and a competent court which after hearing evidence pursuance of exercising it’s judicial function came to a wrong decision or exercised its discretion wrongly. In the former case, the proceedings and the order made are held to be nullities but, in the latter case, the order is held to be erroneous and only appealable.

The distinction is clearly underscored by the judgment of the Supreme Court in the case of Attorney-General, Anambra State v. Okafor (1992) 2 NWLR (Pt.224) 396, 429 per Nnameka-Agu, JSC thus – .

“There is a distinction in principle between an order or judgment which a court is not competent to make and an order judgment or which even it erroneous in point or in fact is within the court’s jurisdiction and competence. Where there is no jurisdiction the decision is void. But where the decision is merely erroneous, the point is a matter for appeal. Where a proceeding is incompetent or without jurisdiction or a judgment or order is void for want of jurisdiction no right can be hoisted on it.”

The Supreme Court in its earlier decision in the Skenconsult Ltd. v. Ukey (supra) considered the distinction drawn by, Lord Greene, M.R. in Craig v. Kanssen (1943) K.B. 256 “between proceedings or orders which are nullities and those in respect of which there has been nothing worse than any irregularities. It then came to the conclusion that –

“It is, therefore, my view that it is the High Court from which the order complained of emanated that must set it aside not necessarily the Judge of the High Court who originally made the order. In the circumstances of this case, I hold that the High Court of Bendel State presided over by Maidoh, J. ought to have set aside the offending orders.” (Italics mine).

The High Court of Lagos State presided over by Ade Alabi, J. (as he then was) has competence to set aside the judgment of Ilori, J. (as he then was) if it was given without jurisdiction or competence.

The question is whether, in the circumstance of the case, the court below could have set aside the judgment in suit No. M/415/95. In his judgment, Ilori, J., reasoned inter alia as follows –

“Even if I am wrong in this conclusion, the question must still be asked whether the Decree should be interpreted without regard to its obvious purpose. It is trite law that when interpreting a statute, the court must find the object of the law maker and endeavour to object. The court must make allowance for obvious drafting errors and make good omissions necessary to attain the object of the statute. This duty was postulated in those immortal words by Mackinnon, L.J. in 3 Sutherland Publishing Co. Ltd. v. Caxton Publishing Co. Ltd. (1938) Ch. 174 at 201:

‘When the purpose of an enactment is clear, it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used, and of which the plain meaning would defeat the obvious intention of the legislature. It may even be necessary, and therefore legitimate, to substitute for an inept word or words that which such intention requires.’

The clear intention of Decree No.54 of 1993 is to release to vest in the people mentioned in column 1 of the Schedule, the property listed in the 2nd Schedule thereto. If the instrument of forfeiture of those property are either improperly described or totally omitted, it will be legitimate for the court to correct, supply or substitute the proper details of such instruments.”

Respectfully, I think Ilori, J., hurriedly jumped boat by his conclusion which is pegged clearly on Decree No.54 of 1993. The intention of the legislature in making Forfeiture of Assets (Release of Certain Forfeited Properties, etc) Decree, 1993 can easily, be deduced from section 1 of the Decree. It reads thus –

“As from the commencement of this Decree all the properties specified in the second column to the Schedule to this Decree, properties being properties forfeited to the Federal Government and some State Governments under the Public Officers (Forfeiture of Assets) Order 1977 and the Public Officers (Forfeiture of Assets) Order, 1978 are hereby released to the persons named in the first column to the Schedule to this Decree.”

It is clear from the above that the property intended to be released to the people whose assets were forfeited to either Federal or State Governments were virtue of Public Officers (Forfeiture of Assets) Order L.N. 13 of 1977 as well as Public Officers (Forfeiture of Assets) Order L.N. 33 of 1978. Mr. J.O. Adeyemi-Bero is number 2 on the Schedule and his assets are set out in the second column of the Schedule. Mr. Adeyemi-Bero’s three property were forfeited to the Lagos State Government by virtue of The Determination of Interests in State Lands (No. 1) Order LSLN 9 of 1976 made pursuant to section 1 of The Determination of Certain Interests in Land Edict (No.3) of 1976., There is no where in the Forfeiture of Assets (Release of Certain Forfeited Properties, etc) Decree No.54 of 1993 which commenced on 23rd August, 1993 authorizing the release of the property forfeited by dint of The Determination of Interests in State Lands (No.1) Order LSLN 9 of 1976. It is, my respectful opinion, that a person including Federal Military Government cannot give what it does not have. This is encapsulated in the latin words nemo dat quod non habet.

To my mind, Ilori, J., respectfully abandoned this toga of interpretation and put on that of a law giver. The function of the judiciary is that of interpretation while it is the duty of the legislature to make law and where there is a gap it is for the law giver to correct it by inserting the necessary amendment as an enactment may not be abrogated under the pre of interpretation. In Magor & St. Mellons v. Newport Corporation (1951) 2 All ER 839, 841 Vicount Simmonds said:-

“The duty of the court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery is strictly limited.”

For the court to interprete or write what the legislature has not written would amount to the court enacting laws and Lord Simmonds described such action in Magor & St. Mellons case (supra) as –

” … a naked usurpation of the legislative function under the thin disguise of interpretation, and it is the less justifiable when it is guess work, with what material the legislature would, if it had discovered the gap, have filled it.”

Also in Samuel Ekoecha v. The Civil Service Commission Imo State (1981) 1 NCLR 154, 161, Oputa, J. (as he then was) citing Bowen L.J. in Re Cumo (1889) 43 Ch.D. 12, 19 said-

“In the construction of statutes you must not construe the words so as to take away rights which already existed before the statute passed unless you have plain words which indicate that such was the intention of the legislature.”

The learned Judge had no business straining the words of the statute. The words of Decree No. 54 of 1993 had no intention to strip Lagos State Development and Property Corporation of its interest in the forfeited property. The ambiguity in the statute, in the interest of Juctice ought to have been resolved in favour of the corporation and against Adeyemi-Bero who has the onus of producing an amended Decree No.54 of 1993 or otherwise.

Be that as it may, Forfeiture of Assets (Release of Certain Forfeiture Properties etc) (Amendment) Decree No.21 of 1996 seems to embrace the principle of nemo dat quod non habet which was appreciated by the court below. It is apt at this stage to recite the preamble of that Decree along with its section 1. It reads thus –

“Whereas the Federal Military Government promulgated the Forfeiture of Assets (Release of Certain Forfeited Properties etc) Decree 1993;

And Whereas by the Forfeiture of Assets (Release of Certain Forfeited Properties, etc) Decree 1993, Item 2 of the Schedule released certain properties to Mr. J.O. Adeyemi-Bero;

And Whereas the Lagos State Government has petitioned the Federal Military Government on the matter of the aforementioned release of properties to the said Mr. J.O. Adeyemi-Bero on the ground that the said properties were never forfeited to the Federal Government under Legal Notices Nos. 13 and 33 of 1977 and 1978 respectively.

And Whereas consequent upon a further consideration of the matter and in the interest of Juctice and fair play, the Federal Military Government finds it expedient to resolve the irregularity created hitherto.

Now therefore the Federal Military Government hereby Decree as follows –

1(1) The preamble to this Decree is hereby affirmed and declared as forming part of this Decree. (2) Accordingly, the Forfeiture of Assets (Release of Certain Properties etc) Decree 1993 is amended in the Schedule thereto by deleting item 2.” (Italics mine).

Decree 21 of 1996 had a retroactive commencement date of 6th June, 1995 about a month before first respondent instituted his action by originating summons against the Military Administrator of Lagos State, Attorney-General, Lagos State and Registrar of Titles in suit No. M/415/95 on 7th July, 1995. It implied that on the day the action was instituted item 2 of vesting the first respondent with property set out in the second column of Schedule had been deleted. Consequently I1ori, J., predicated his decision on a non-existent enactment.

Assuming without so deciding I1ori, J., (as he was then) had excuse for so deciding since he had no means of knowing that a retrospective legislation was in the offing it is, however doubtful if the same excuse could be extended to Ade Alabi, J. (as he then was). He had opportunity of seeing and reading Decree No.21 of 1996 particularly section 2 thereof which had the effect of declaring the proceedings before Ilori, J., in suit No. M/415/95 null and void ab initio. Section 2 of Forfeiture of Assets (Release of Certain Properties etc) (Amendment) Decree No.21 of 1996 provides thus-

2(1) No civil proceedings shall lie or be instituted in any court or tribunal on account of or in respect of anything done by the Federal Military Government by or under this Decree or in respect of any act, matter or thing done or purported to be done by the Federal Military Government with regard to the subject matter of this Decree or any act, matter or thing whatsoever, done or purported to be done under or pursuant to this Decree by the Federal Military Government and if any such proceedings are instituted before, on or after the commencement of this Decree, the proceedings shall abate, be discharged and made void and of no effect, and any right, interest or privilege accruing, obtained or granted or purported to have accrued, been obtained or granted thereby is hereby extinguished.

(2) Accordingly, any judgment or order of any court or tribunal delivered on or before the commencement of this Decree shall, by virtue of this Decree be made null and void and of no effect whatsoever.” (Italics mine).

In view of this express provisions of section 2 of this Decree the proceedings conducted before as well as the judgment of Ilori, J., are declared null or void and are of no effect. Consequently the issue is one of fundamental defect which went into the court’s jurisdiction and could, therefore, be set aside by the Judge who made the order or a Judge of co-ordinate jurisdiction of the High Court of Lagos State. This is not a matter in which the court was competent but decided the matter wrongly or erroneously.

It is trite that repeal of the law does not affect any act done or powers exercised under it before the repeal. See Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668, 690; Umeji v. Attorney-General Imo State (1995) 4 NWLR (Pt. 391) 552, 587; Sossa v. Fokpo (2001) 1 NWLR (Pt. 693) 16, 30 and Njokamna v. Mowete (2001) 6 NWLR (Pt. 709) 351, 367 where the Court of Appeal, while relying on the decision in Sossa v. Fokpo (supra) which in turn was based on Lipede v. Sonekan (supra) and Umeji v. Attorney-General, 1mo State (supra) held that-

“The legal position is that the law applicable to a cause or matter and therefore the jurisdiction and competence of the court determined by the existing law or the law prevailing at the time the suit was filed and not by the change of the existing law. It is immaterial that during the trial the law has been repealed.

In the instant case, for Decree No. 12 of 1994 to oust the jurisdiction of the High Court in the suit which was filed in 1985 which was 9 years before the promulgation of the Decree. The provision of the Decree must specifically, state that it is meant to abort the proceedings in the particular case in question. A strict interpretation of the Decree must be given since the Decree is meant to oust the jurisdiction of the court in completing the case which was filed long before the Decree came into existence.”

The circumstance of this case takes it outside the decided cases cited by the learned senior counsel in first respondent’s brief. It is clear as was subsequently admitted in Decree No.21 of 1996 the property, of the first respondent was erroneously included in the Schedule to Decree No.54 of 1993. Apart from this, the intention of the new legislation to affect the vested right of the first respondent was manifested in no uncertain terms in Decree No.21 of 1996 particularly section 2 thereof which has been recited elsewhere in this judgment. I shall read again for easy reference and emphasis section 2(1) and (2) which provide inter alia as follows –

“….and if any such proceedings are instituted before, on or after the commencement of this Decree the proceedings shall abate, be discharged and made void and of no effect, and any right, interest or privilege accruing, obtained or granted or purported to have accrued, been obtained or granted thereby is hereby extinguished.

2. Accordingly, any judgment or order of any court or tribunal delivered on or before the commencement of this Decree shall, by virtue of this Decree, be made null and void and of no effect whatsoever.”

Respectfully no one including Biblical Thomas is left in doubt on these clear unequivocal and unambiguous words about the intention of the Federal Military Government about the purported accrued or vested interest of first respondent. The first respondent’s purported accrued interests were expressly extinguished. Both the proceedings and the judgment he obtained were pronounced for void.

Before closing this issue may I take advantage of this medium to remind ourselves of section 1(2) (b)(i) of the Federal Government (Supremacy and Enforcement of Powers) Decree 13 of 1984. It reads as follows –

“(2) It is hereby declared also that

(a) …

(b) with a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace, order and good government of the Federal Republic of Nigeria.

(i) no civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict and if any such proceedings are instituted before, on or after the commencement of this Decree the proceedings shall abate, be discharged and made void.” (Italics mine).

The words of section 1(2) (b)(i) of Decree No. 13 of 1984 are clear, unambiguous and unequivocal. It is settled that where the words of an enactment are clear and unequivocal it should be given its literal and grammatical meaning. The Forfeiture of Assets (Release of Certain Forfeited Properties etc) Decree No. 54 of 1993 is clearly within the contemplation of Decree No. 13 of 1984. This Decree ousts the jurisdiction of a court in respect of any act, matter or thing done or alleged to have been done pursuance of any Decree or Edict. The Forfeiture of Assets (Release of Certain Forfeited Properties etc) Decree No. 54 of 1993 is clearly a Decree within the contemplation of Decree No. 13 of 1984. It was in force at the time material to the filing of suit No.M/415/95 by Mr. J.O. Adeyemi-Bero. The High Court of Lagos State had no jurisdiction to inquire or entertain same. IIori, J., ought not have taken cognizance of the suit ab initio on the strength of this Decree. Before the Federal Government (Supremacy and Enforcement of Powers) No. 13 of 1984, there was the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970. The latter Decree viz Decree No. 28 of 1970 had the effect of rendering null and void the Supreme Court decision in Lakanmi and Kikelomo Ola v. Attorney-General Western State & Ors.

On the issue of application of the doctrine of estoppel per rem judicatam to the present suit does not arise. It is clearly manifested that the High Court of Lagos State had no jurisdiction to entertain the suit No.M/415/95. It is equally a common ground that the principle of estoppel per rem judicatam can only be found on a valid judgment. In this connection the learned trial Judge in the instant appeal found as follows –

“Thirdly, the judgment which is to operate as an estoppel must be a final, valid and subsisting one. No judgment which has been set aside and in respect of which a retrial has been ordered can operate as an estoppel.”

It is my considered view, with the greatest respect, that since the judgment upon which the doctrine of estoppel per rem judicatam was based is a void one, the doctrine cannot operate or be applied to this suit.

Having resolved all the issues in this appeal in favour of appellant, the appeal succeeds and it is allowed.

The decision of Alabi, J., (as he then was) refusing to set aside the decision of High Court of Lagos State in suit M/415/95 is hereby set aside. This court under section 16 of the Court of Appeal is endowed with sufficient power to exercise the powers and functions of the lower court. Pursuant to that power I accede to the request of the appellants praying that the decision of High Court of Lagos State in suit No. M/415/95 be set aside and the property vested in Mr. J.O. Adeyemi-Bero by virtue of the judgment of Ilori, J., (as he then was) be reversed and the same be re-vested on appellant. For avoidance of doubt and without further assurance, it is hereby ordered as follows –

“(i) A declaration that, under and by virtue of Decree No. 21 of 1996, the judgment delivered by His Lordship, Honourable Juctice S. O. Ilori in suit No. M/415/95 between Chief J.O. Adeyemi-Bero and the Military Administrator of Lagos State & 2 Ors. in which judgment the court transferred interest in the property to Chief J.O. Adeyemi-Bero, is null and void and of no effect whatsoever.

(ii) A declaration that under and by dint of Decree No.21 of 1996, the property located at, lying, being and situate at –

(a) Plot 177, Victoria Island, Lagos; and

(b) No.25, Cooper Road, Ikoyi remain the property of the Lagos State Development and Properly Corporation and are accordingly vested in the appellant.

(iii) An order of perpetual injunction restraining the first defendant, his servants, agents, privies etc whosoever or whatsoever from dealing with the property in any manner or form or dealing with any of the tenants resident in any of the property.

(iv) An order of perpetual injunction restraining the first defendant through his agents, privies or anyone deriving title under him from exercising or purporting to exercise any right of ownership in whatsoever form -or shape in respect of the property aforesaid.

(v) An order of perpetual injunction restraining the Registrar of Titles either by himself, his agents, servants, privies or anybody whatever or whosoever claiming interest with them from effecting any change in the property as vested in 1976.

Although costs follow the event, it is in accord with interest of Juctice that each party, in the circumstance of this case, bears its or his own costs. I therefore make no order as to costs.

---

Other Citations: (2004)LCN/1668(CA)

Josadeg Nigeria Limited & Anor. V. Nigeria Deposit Insurance Corporation (2004)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A.

In the High Court of Oyo State, the plaintiff, who is now the respondent filed an action against the appellants who therein were the defendants, claiming jointly and severally as follows:

“(a) The sum of N315,560.42 being balance due and payable by the defendants to the plaintiff on account of loan and overdraft facilities granted by the plaintiff to the defendants jointly and severally at their request as well as interests, commission and or other charges on the said facilities as at 31st August, 1992.

(b) Interest on the above stated sum at the rate ruling in the financial market from the 1stday of September, 1992 until judgment is delivered thereof and, thereafter, interest at the rate of 10% until the whole debt is liquidated.”

Pleadings were ordered and were duly settled, filed and exchanged.

The case then proceeded to trial and the parties called one witness each. At the close of the case, the counsel to the parties addressed the court. In a considered judgment, delivered on 10th October, 1994, the learned trial Judge entered judgment against the defendants jointly and severally in the sum of N315,060.47 (Three hundred and fifteen thousand, sixty naira, forty seven kobo) being the balance due and payable to the plaintiff on account of loan and overdraft facilities granted by the plaintiff to the defendants at their requests as well as interests, commissions and or other charges on the said facilities as at 31st August, 1992. The trial court also awarded in favour of the plaintiff against the defendants interest on the said sum of N315,060.47 at the rate of 21% per annum until the 1st day of September, 1992, and thereafter, interest at the rate of 5% per annum until the whole debt is liquidated.

Dissatisfied with the judgment of the court below the defendants have now appealed to this court on a number of grounds. The defendants shall hereinafter be referred to as the appellants, and the plaintiff the respondent.

As borne by the records, the appellants were granted loans and overdraft facilities by the bank at various times at different rates of interest ruling at the time of each grant or approval of the facility. The first facility of N50,000.00 granted in 1985 was at an agreed rate of 9% per annum. This agreement as to interest rate was reached between the appellants and the bank – the respondent.

In 1986, another facility of N80,000.00 was granted by the bank to the appellants at an agreed rate of 13% which was the ruling interest rate at the time. A third facility of N90,000.00 was later granted to the appellants by the bank. The terms of the two subsequent facilities were agreed upon by the parties as in the first grant of N50,000.00.

The parties executed a deed of legal mortgage, exhibit ‘A’, which stipulated among others, that the bank may vary the interest rate without any prior communication or notice to the appellants. In line with the provisions of clause 2 of exhibit ‘A’, the bank, at various times, applied the rates of interest which were given in evidence by its witness in court.

The appellants contended at the lower court that the facilities were Agricultural facilities granted under the Agricultural Credit Guarantee Scheme Fund Act, Cap. 13, Laws of the Federation of Nigeria, 1990, which they claimed provided for a specially fixed rate of interest. The bank denied this averment both in its pleadings and evidence. It turned out that there was a cover for the first facility of N50,000.00 by the Central Bank of Nigeria pursuant to the ACGSF, aforesaid.

The appellants presented a counter-claim which contained declaratory reliefs. In the course of his judgment, the learned trial Judge made specific findings of fact which appeared to have answered the declaratory reliefs contained in the counter-claim being sought by the appellants.

As already indicated above, the appellants were dissatisfied with the judgment of the lower court and have appealed to this court. From the grounds of appeal, the appellants raised three issues for determination. They are:

“1. Whether the rate of interest applicable to all the loans/overdraft facilities the subject-matter of this suit should be a fixed rate as stipulated under Decree No.2 of 1977 or a rate subject to variation according to the dictate of money market as contained in the deed of legal mortgage executed by the appellants in favour of the respondent?.

2. Whether on the totality of evidence and pleading in this suit the learned trial Judge was right in his finding that the statement of account of the appellants in respect of the loans/overdraft facilities leading to this suit was in debit to the tune of N315,060.47 awarded to the respondent as the judgment sum?.
3. Was the learned trial Judge right in failing to make any pronouncement on the counter-claim of the appellant?”

The respondent identified three issues for determination in this appeal.

They are: –

“1. Whether the appellants established before the lower court that the loans granted to them attracted a fixed rate of interest?.

2. Whether the learned trial Judge was wrong in entering judgment in favour of the respondent in the sum of N315,060.47 as at 31st August, 1992 when there was no proof by the appellants to discredit or counter the statement of account tendered by the respondent?.
3. Whether the alleged failure of the learned trial Judge to pronounce on the success or otherwise of the counterclaim occasioned a miscarriage of justice to the appellants?.”

I have taken a critical look at the pleadings and the evidence contained in the records of this suit. I am of the firm view that the bone of contention between the parties relates to the interest chargeable on the loans and not that the appellants are not owing the respondent at all. I have also taken a hard look at the issues formulated by the parties in their briefs and I am convinced that the issues formulated by the respondent have more direct bearing to the grounds of appeal. I shall therefore treat this appeal in accordance with the issues formulated by the respondent.

On issue No.1, it must be noted that the respondent’s case before the lower court was that it granted facilities to the appellants amounting to N220,000.00 at various times between 1985 and 1988. The respondent contended that the facilities so granted and the terms thereof were regulated by exhibit ‘A’, the deed of legal mortgage, executed by the parties. The appellants on the other hand averred and contended that the loans were Agricultural Loans granted under the ACGSF established under Decree No. 20 of 1977 (now known as Agricultural Credit Guarantee Scheme Fund Act) Laws of the Federation of Nigeria, 1990. The appellants’ further contention was that the loans, being granted under the ACGSF aforesaid, “carried a specific rate of interest variable only under the directive of the Commissioner for Finance (now Minister of Finance)”.

The finding of the learned trial Judge on these disagreements is at page 64 line 33, page 65 lines 1-35 of the records to the effect that the respondent obtained a guarantee of the Central Bank of Nigeria for the first loan of N50;000.00 under the Agricultural Credit Guarantee Scheme Fund. The learned trial Judge further held that there was no evidence that the other two facilities had any guarantee of the CBN and ACGSF. This is what the learned trial Judge said at page 65 lines 3-15 of the records:

“On the evidence available, I have no doubt in holding that the loan of N50,000.00 was guaranteed under the Fund while there is no evidence that the overdraft of N80,000.00 and the additional loan of N90,000.00 mentioned in exhibit ‘E’ were Agricultural loan facility under the Scheme. In exhibit ‘E’ the rates of interest applicable to the loans and overdraft facilities were 9% and 13% respectively. Where loans are approved under the Agric. Credit Guarantee Scheme, the rates of interest are as directed by the Minister responsible for finance. No evidence has been led by the defendants to show what rates of interest were fixed by the Commissioner for Finance in accordance with section 9 of the Decree.”

The above finding of the learned trial Judge cannot be faulted as it is supported by the pleadings and evidence of the case. It is now settled that he who asserts must prove. See Mark Ugbo & 4 Ors. v. Aburime (1994) 8 NWLR (Pt.360) 1, (1994) Vol. 25 ALRCN page 174 at 193; Okubule v. Ayagbola (1990) 4 NWLR (Pt.l47) 723; Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539; Union Bank oj Nigeria Ltd. v. Professor Albert Ozigi (1994) 2 NWLR (Pt.333) 385.

It is manifest from the records that the appellants’ case was that, being facilities granted under the ACGSF, the interest rate chargeable for the facility would be regulated by section 9 of the Agricultural Credit Guarantee Scheme Fund Act, Cap. 13, Laws of the Federation of Nigeria, 1990. Now, what does section 9 of the ACGSF say? It simply says:

“The rate of interest payable on a loan granted under this Act shall be as may be directed by the Minister.”

It should be noted that section 19 of the Act, which is the interpretation section, defines the “Minister” as the “Federal Minister” charged with the responsibility for finance. The evidence of the appellants on which they heavily relied is at page 47 lines 7-10 as follows: –

“The agreed rate of interest under the scheme which the loan was granted was 9% … I applied for an overdraft facility of N80,000.00 at the rate of 13% interest. ”

It is instructive to note that the appellants’ evidence did not mention the Minister as fixing any rate of interest nor did they lead any evidence to establish any direction by the Minister as to the interest rate applicable. The learned trial Judge therefore made a correct finding when he held that:

“no evidence has been led by the defendants, to show what rate of interest were fixed by the Commissioner for Finance in accordance with section 9.”

I am also of the view that without appealing against this specific finding of the learned trial Judge, the appellants cannot impeach the judgment of the trial court as to the rate of interest applicable to the facilities. See Zaccheus Abiodun Koya v. United Bank For Africa Ltd. (1997) 1 NWLR (Pt.481) 251, (1997) Vol. 46 LRCN page 1 at page 14. It must be said also that in the absence of any evidence by the appellants as to the rate of interest directed by the Minister, the learned trial Judge was profoundly in order to recourse to exhibit ‘A’ – the deed of mortgage in determining the rate of interest applicable to the facilities including the first loan of N50,000.00. The appellants canvassed at paragraphs 5.8 page 4 of their brief of argument that the appellants’ case was that all the three loans were granted pursuant to Decree No. 20 of 1977. With due respect to the learned counsel for the appellants, it seems to me that the appellants cannot raise any issue out of it because they did not appeal against the specific finding of the lower court at page 65 lines 3-8 of the records that:

“On the evidence available, I have no doubt in holding that the loan of N50,000.00 was guaranteed under the fund while there is no evidence that the overdraft of N80,000.00 and the additional loan of N90,000.00 mentioned in exhibit ‘E’ were agricultural loan/facility under the Scheme.”

See Zaccheus Abiodun Koya v. United Bank for Africa Ltd. (supra).

It is trite law that where any finding of fact is not challenged by an appellant in any ground of appeal such finding remains rightly or wrongly, the settlement of that issue as between the parties to the appeal. See Zaccheus Abiodun Koya v. United Bank for Africa Ltd.182 Nigerian Weekly Law Reports 13 June 2005 (Rowland, J.C.A.) (supra). I need say no more about this as it has settled issue No. (1) in favour of the respondent bank.

The next issue canvassed by both parties in their briefs is whether or not the learned trial Judge was wrong in entering judgment in favour of the respondent in the sum of N315,060.47 as at 31st August, 1992 when there was no proof by the appellants to discredit or counter the statement of account tendered by the respondent.

It was submitted for the appellants that on the totality of evidence and pleadings in this suit, the learned trial Judge was not right in his finding that the statement of account of the appellants in respect of the loans/overdraft facilities leading to this suit was in debit to the tune of N315,060.47. The respondent contended that the learned trial Judge was right in his finding. That as at 31st of August, 1992 the appellants were indebted to the respondent in the sum of N315,060.47. The finding of the court below is at page 66 lines 20-28 of the records. The learned trial Judge put it thus:

“1 have examined exhibit ‘D’ and found that the balance on the loan and overdraft facilities as at 31st August, 1992 are:

(i) N28,562.86 as shown on page 3;

(ii) N107,101.05 as shown on page 24 of exhibit ‘D”.

The total amount due as per exhibit ‘D’ is N31,062.42 as at 31st August 1992. I am inclined to accept this figure as against the sum of N269,396.55 which the defendants have admitted by exhibit M especially since the accuracy of the said exhibit ‘D’ has not been challenged by the defendant.”

I would like to say again for the purpose of emphasis that having failed to challenge the finding of the learned trial Judge that:

“No evidence has been led by the defendant to show what rate of interest were fixed by the Commissioner of Finance in accordance with section 9 of the above Decree.”

It seems to me therefore that the points canvassed by the appellants in paragraphs 6.2, 6.3 and 6.4 of page 5 and also 6.5, 6.6, and 6.7 at page 6 are misconceived. This is so considering the fact that the learned trial Judge rejected their evidence, if any, by the above finding. I am of the firm view that the only way the appellants can reopen the issue is by way of formulation of a ground or grounds of appeal touching these points. Having failed to do so, the appellants are estopped from lazily raising any issue on them. See Zaccheus Abiodun Koya v. United Bank for Africa Ltd. (supra). I should like to point out that the submission of the appellants at page 6, paragraphs 6.6 and 6.7 of their brief misses the point made by the learned trial Judge, that the appellants provided no evidence showing at what rate of interest the Minister of Finance directed. In the absence of such evidence, it seems to me that the question of excision of the first facility of N50,000.00 from the second facilities of N80,000.00 and N90,000.00 in order to calculate the interest rates applicable to them does not arise. The question, once again, is, did the appellants prove the interest rate applicable under the direction of the Minister of Finance in accordance with section 9 of the ACGSF? The answer, as found by the learned trial Judge is in the negative. I think the learned trial Judge is right.

It is pertinent to reproduce the following paragraph of the pleadings: –

Paragraph 3 of the respondent’s amended statement of claim at page 26 of the records states thus:

“The plaintiff avers that the defendants at various times severally applied for and were granted loan and overdraft facilities totalling N230,000.00.The plaintiff shall tender all the documents relevant to this at the trial hereof.”

By paragraph 3 of its consequential amended statement of defence and counter-claim at page 32 of the records, the appellants averred thus:

” … that the total sum of facilities obtained from the plaintiff was N220,000.00 made up of the following: two separate loans of N50,000.00 and N90,000.00 obtained by Josades Enterprises and overdraft facility of N80,000.00 granted to Josadeg Nigeria Limited.”

By paragraph 1of the reply to consequential amended statement of defence and defence to counter-claim at page 38 of the records, the respondent pleaded thus:

” … that the sums of N50,000.00 and N90,000.00 were obtained by Josadeg Enterprises while the sum of N80,000.00 was utilized by Josadeg Nigeria Limited, the 1st defendant. As at the time the first two loans of N50,000.00 and N90,000.00 were granted and utilized the 2nd defendant was carrying on business as Josadeg Enterprises.”

It can be readily seen from the pleadings of the parties above that there was no disagreement as to the amount of money granted as loan facilities to the appellants. Parties agreed that the amount was N220,000.000 and not N230,000.00. With this state of pleading, it is difficult to see how the appellants came about the notion that exhibit ‘D’ was calculated on the basis of N230,000.00. I hasten to say that this appeal has brought into focus again the importance of pleadings in civil matters. The law is that parties are bound by their pleadings and will not be allowed to set up in court a case which was at variance with the pleadings. See Ehimare v. Emhonyon (1985) 1 NWLR (Pt. 2) 177; George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117, (1963) 1 All NLR 71; Metalimpex v. A.G. Leventis (Nig.) Ltd. (1976) 2 SC 91; Ochonma v. Unosi (1965) NMLR 321.

In the instant case, exhibit ‘D’ was tendered by the respondent without even a feeble challenge by the appellants. The appellants did not point out to the learned trial Judge where or how exhibit ‘D’ was calculated on the basis of N230,000.00, they did nothing at all to discredit exhibit ‘D’ by way of evidence. They put no alternative figure before the learned trial Judge. It must be pointed out that the appellants cannot provide in the Court of Appeal the evidence which they failed to adduce in the lower court in the Course of the trial of this suit. It should be pointed out also that the contention of the appellants that only N210,000.00 was utilized by them is not borne out by admissible evidence before the trial court. For the second appellant’s evidence that the sum of N90,000.00 was approved and that only N80,000.00 was utilized is not covered by any paragraph of their pleading and, therefore goes to no issue. See paragraph 3 of their consequential amended statement of defence and counter-claim and lines 10-14 of the second appellant’s evidence at page 47 of the records. See also the case of Emegokwue v. Okadigbo (1973) 4 SC 113.

Under cross-examination, the 2nd appellant admitted at page 49 lines 29-34 thus:

“I am aware that the Central Bank is only liable if the bank had made efforts to recover the debt and did not succeed. In that case the bank involved should have previously informed the Central Bank about the default and steps taken to recover. I am aware of the Guidelines for the Agricultural Guarantee Scheme.”

As to whether the sum of N50,000.00 found to have been guaranteed carried a fixed rate of interest, it has been shown, supra, that the idea of “a fixed rate of interest” was neither in the ACGSF nor proved by the appellants. It seems to me therefore that their contention of “a fixed rate of interest” has no basis on which it can stand. It is difficult to see the point the appellants are trying to make by paragraph 6.9.1 of their brief. However, the law is that an amendment does not speak from the date of the amendment but from the date of the original document, which was amended. See the case of Oseyomon v. Ojo (1997) 52 LRCN 2068 at 2094. In this regard, it is pertinent to point out that the respondent’s reply dated the 17th January, 1994 was an amendment to the earlier one dated 18th of June, 1993 and filed on the 22nd day of June, is a follow up to the statement of claim dated the 16th day of October, 1992 and filed on the 3rd of November, 1992. It should be noted therefore that as far back as 16th October, 1992, the respondent had stated that the appellants owed it the sum of N315,560.42 as at 31st August, 1992. The learned trial Judge found that the actual amount as per exhibit ‘D’ was N315,060.47. Now the question is, what did the appellants do to puncture this figure which the respondent made known to them as their debt profile since October, 1992? It is manifest from the records that up to 30th April, 1994, when the 2nd appellant gave evidence, they did nothing to disprove or discredit this figure.

There is no doubt that there was no dispute as to how much was granted to the appellants by the respondent. At the close of the pleadings there emerged an agreement that it was N220,000.00. The idea of N230,000.00 to my mind existed (and still exists) in the imagination of the appellants. What is their proof that exhibit ‘D’ was calculated on the basis ofN230,000.00 and not on N220,000.00. It appears to me that there is nothing, but the averment which was corrected by the respondent’s subsequent pleading. That being, so, I have no hesitation in resolving issue No.2 against the appellants.

The last issue for determination in this appeal is issue No.3. Under issue No.3 the appellants submitted in paragraph 7.6 of their brief that “the learned trial Judge occasioned a miscarriage of justice by his failure to make any pronouncement on the appellants’ counter-claim”. The respondent has a different view.

Without much ado, I would like to say that a counter-claim is in itself an action distinct and separate from the main claim of the plaintiff. It is by its nature a cross-action by the defendant and the defendant is with respect to its claim in the counter-claim a plaintiff and the main plaintiff a defendant to the action in the counter-claim. See Potter Dabup v. Haruna Bako Kolo (1993) 9 NWLR (Pt. 317) 254 at 270; Oragbade v. Onitiju (1962) 1 SCNLR 70, (1962) NSCC 16.

It is true that the learned trial Judge did not devote any portion of his judgment to pronounce specifically on the failure of the counter-claim, but this has not been shown to have occasioned a miscarriage of justice to the appellants. In the case of Fadlallah v. Arewa iles Ltd. (1997) 8 NWLR (Pt.518) 546, the Supreme Court said as follows:

“It is not every slip committed by a court that will result in an appeal against a judgment being allowed. An error or slip that may have the result of the appeal being allowed must be fatal in the sense that it must have occasioned a substantial miscarriage of justice.”

Also in Amadi v. NNPC (2000) 10 NWLR (Pt.674) 76, (2000) 49 LRCN page 1951 at page 1993, the Supreme Court said per Karibi-Whyte, SC (as he then was):

“Not all errors result in miscarriage of justice. There is miscarriage of justice only where there are substantial errors in adjudication with the resultant effect that the party relying on such errors may likely have a judgment in his favour.” See also M.D.P.D.T. v. Okonkwo (2001) 11 NWLR (Pt.711) 206, (2001) 10 W.R.N. page 1 at pp. 50-51.

It should be noted that the counter-claim of the appellants are rooted in declarations. See page 16 of the records. On the whole, the appellants prayed for six declarations and one order of court. It seems to me that where the facts are interwoven and intertwined with regard to claims and counterclaim such that the success of the main action or claims automatically pronounces on the failure or dismissal of the counter-claim, a trial court to my mind cannot be justifiably or validly charged with failure in its duty. It seems to me that this is the case in this appeal. It must be pointed out that the findings of fact by the learned trial Judge in favour of the respondent and also in favour of the appellants took care of the contentions and claims of both the respondent as plaintiff and the appellants as defendants/counter -claimants.

As manifested by the records, at the close of evidence by both the respondent and the appellants, the issues submitted by the learned counsel for the appellant in his address at page 51 lines 4-9 of the records as arising for determination in the suit were as follows:

“(i) Whether the facility as granted to the defendants (appellants herein) was an agricultural loan carrying fixed rate of interest under the Agricultural Credit Guarantee Scheme?, and

(ii) Whether if so, the plaintiff has consent to charge variable rates of interest on the said facilities?.”

The counsel for the respondent (then plaintiff) in his own address at page 53 lines 10-11 of the records said:

“I wish to adopt the issues which my learned friend has formulated. ”

It seems to me that the issues submitted above as arising for determination in the lower court took care of the contentions of the appellants in their specific counter-claims contained in paragraph 28(i)-(vii) of their consequential amended statement of defence and counter-claim at pages 35-36. This goes to show that the facts and even the claims and counter-claims of the parties are intertwined and interwoven. It would appear that what the learned trial Judge did was to pronounce on the issues which both counsel agreed and submitted as arising for determination having regard to the pleadings and evidence. It seems to me therefore that any pronouncement by the learned trial Judge will dispose of the issues raised both in the claim and in the counter-claim.

From the nature of the claim, the counter-claim and the pleadings, I have no doubt in my mind that the alleged failure of the learned trial Judge to make specific pronouncement on the counter-claim is a mere slip which is not enough to move this court to allow this appeal. For, in the case of Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) page 130, the Supreme Court per Nnaemeka Agu, JSC (as he then was) said that: –

“It is now too late in the day to dispute the fact that it is not every ground of appeal that has been successfully argued that will necessarily result in the appeal being allowed. Even under the old practice, where a number of grounds were argued and some were successfully attacked, but some were not, it did not necessarily follow that because of those successful grounds the appeal must be allowed.”

With the above authorities on issue No.3 in the briefs of the parties, I have no doubt in my mind that what the learned trial Judge did in respect of the counter-claim does not occasion a miscarriage of justice and therefore, the contentions of the appellants are of no avail. In the final analysis, I hold that this appeal is devoid of merit and it is therefore dismissed in its entirety. I award N10,000.00 costs in favour of the respondent against the appellants.

---

Other Citations: (2004)LCN/1667(CA)

Emmanuel Abarshi V. Commissioner of Police (2004)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The appellant, as accused was first arraigned before the Chief Magistrate Court, Wuse on 15th February, 1996 on a First Information Report (FIR) of an alleged theft, contrary to section 289 of the Penal Code.

The appellant, an assistant inspector of prisons, being entrusted with the house of one Emmanuel Mato, an Assistant Controller General of Prisons who traveled to Lagos on an official assignment, was said to have stolen a video, a television with their remote controls, a food blender and a flask from the house. The appellant as accused, before the Chief Magistrate Court, denied the information in the F.I.R. The prosecution thereafter called 5 witnesses and tendered exhibits, in a ruling delivered on the 28/8/96 the trial chief magistrate found that a prima facie case has been made out against the appellant and framed a charge, against him, of criminal breach of trust contrary to section 312 of the Penal Code of the items listed above.

The appellant pleaded not guilty to the charge, recalled the PW1, PW2 and PW3 for further cross examination in his defence. In a considered judgment delivered on 9/9/97 the trial Chief Magistrate found the appellant guilty as charged and convicted him and sentenced him to a term of 12 months imprisonment with an option of fine of N1000 and payment of N2000 compensation to PW1 within one month or serving an alternative term of imprisonment for 3 months.

The appellant being dissatisfied, appealed to the High Court of the FCT in its appellate jurisdiction on ten grounds of appeal, three of the grounds complaining that the FIR, the charge and the amended charge were all read to the appellant by the trial Chief Magistrate in chambers in contravention of the provisions of section 33(3) of the 1979 Constitution. On hearing the appeal, the lower court found no substance in it and dismissed same affirming the conviction and sentence of the appellant by the trial Chief Magistrate.

The appellant dissatisfied now appealed to this court on these grounds of appeal.

Ground 1

The learned justices of the appellate division of the High Court of Justice, Abuja erred in law by holding that it is not unconstitutional to sit in chambers and not making a finding that the whole trial was a nullity since the constitutionality of hearing criminal proceedings in public was not adhered to and same is a fundamental breach which vitiates the entire proceedings.

Ground 2

The decision cannot be supported having regard to the evidence. From these two grounds the appellant formulated a sole issue for the determination of the appeal in an amended brief deemed filed on 16/10/01 to wit;

Whether the trial and conviction and the subsequent judgment of the High Court is not invalid, null and void and of no effect.

The respondent in his brief which by the leave of this court was deemed filed and served on 3/6/02 formulated two issues which are produced hereunder:

(1) Whether then High Court of Justice Abuja was right in holding that the sitting in chambers by the magistrate court is constitutional?.

(2) Whether having regard to the totality of evidence adduced, the appellant ought to have been convicted?.

The issue as formulated by the appellant to my understanding is based on ground one of the grounds of appeal. No issue is formulated on ground two. It is trite that for a ground of appeal to be relevant for consideration in an appeal an issue must be formulated from it. Where no issue is formulated from a ground of appeal, as in the instant case, it is deemed as abandoned and therefore liable to be struck out – See Madagwa v. State (1988) 5 NWLR (Pt. 92) 60; African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt. 210) 391; Okoye v. Nigerian Construction & Furniture Ltd. (1991) 6 NWLR (Pt.199)

.In this appeal, the appellant has formulated no issue from ground is therefore deemed abandoned and is hereby struck out.

Similarly, issue 2 formulated by the respondent based on ground 2 which has been struck out is also struck out with all arguments based on it.

This appeal will subsequently be determined on the issue formulated by the appellant.

In his brief of argument deemed filed by the leave of this court on 16/10/2001 the appellant submits after reference to the provisions of s.33(3) of the 1979 Constitution Which stipulates that any person charged with a criminal offence is entitled to a fair hearing i.e. the right to be heard in public, pointing out that this right to fair hearing as enshrined in the constitution was infringed at the trial of the appellant as he was arraigned before the trial magistrate in chambers on the 15th February, 1996, so were most part of the proceedings conducted in chambers.

It is the contention of the appellant that where a trial is conducted in chambers, as in the instant case, not in an open court as provided for by the Constitution the whole proceedings of the trial court becomes a nullity. Relying on these cases: Oviasu v. Oviasu (1973) 1 All NLR (Pt 2) 75; Ogele v. Nuhu (1997) 10 NWLR (pt. 523) 109; N.A.B. Ltd. v. Barri Engineering (Nig.) Ltd. (1995) 8 NWLR (Pt. 413) 257; Salawu v. Adza (1997) 11 NWLR (Pt. 527) 14; N.A.B. Ltd. v. Comex (1999) 6 NWLR (Pt. 608) 648; Mika’llu v. State, 2000 5 WRN 74

He further submits that the trial magistrate having breached constitutional provisions the whole trial has been rendered null and void and the appellate division of the High Court FCT should have held so and eleclared the trial a nullity instead of holding that the trial magistrate was right in conducting part of the criminal proceeding and delivering the rulings in chambers. He urged us to allow the appeal and discharge and acquit the appellant. The respondent in his brief deemed filed on 3/6/2002 with the leave of this concontended that the appellant was given a fair hearing before to Magistrate Court and the said hearing was done in public.

Pointing out that when the ruling and the amended ruling were and to the appellant in chambers, the appellants counsel, prosecution carven and court clerks were present. That their presence satisfies requirement of the provisions of section 225 of the Criminal Procedure Code and section 33(3) of the 1979 Constitution.

It is the respondents submission that it is not unconstitutional for a court to sit and deliver a ruling in the presence of counsels, court clerks and the appellant’s counsel in chambers putting reliance on Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356; and Chime v. Ude (1996) 7 NWLR (Pt. 461) 379402 contending that the learned Justices of the appellate High Court were right to have upheld same.

That the cases of Oviasu v. Oviasu and Nigeria Arab Bank Ltd. v. Barri Engineering Ltd. (supra) cited by the appellant are in respect of a judgment read in chambers and thus distinguishable from the facts of the present appeal and urged its to dismiss the appeal.

It is the contention of the appellant both at the lower court and this court that the arraignment of the appellant, the reading of the charge and the reading of the amended charge before the trial magistrate were done in chambers. This has not been denied by the respondent but rather an admission that it was so, what the respondent was contending was that though the arraignment and the charges were read in chambers it was not done secretly but in the present of counsels, appellants counsel and court clerks.

The lower court in its judgment at page 74 of the records upheld the submission of the respondent and found as follows:

“Both section 33(3) of the 1979 Constitution and section 225 CPC enjoin courts while trying those accused of committing any criminal offence to allow such trials to be held in public. In the instant appeal, there is no evidence to suggest that the trial was held secretly. When a court sits in chambers, all that it means is that the Judges of the court are transacting the business of the court in chambers instead of open court. It does not mean that the court is not sitting in public. A court can sit in open court and yet exclude members of the public other than the parties or their legal representatives from leaving in exercise of its statutory powers. Equally, a Judge may sit in chambers without excluding members of the public. It is therefore not unconstitutional to sit in chambers. Per Ogundare, JSC in Godwin Chime & Ors. v. Nelson Ude & 2 Ors. (1996) 7 NWLR (Pt. 461) 379 at 471. The learned counsel referred us, deal with secret trials i.e. not in the public. They are therefore distinguishable from the one in hand. Here the issue in contest is the sitting in chambers without more. Without any evidence to suggest that the members of the public were excluded or that the trial was held in secret.”

In as much as the Supreme Court had held in Oyeyipo v. Oyinloye (supra) the case relied on by the respondent, that sitting in chambers may amount to sitting in public as envisaged by the provisions of S.33(3) of the 1979 Constitution, the court had in Nigerian Arab Bank Ltd. v. Barri Engineering Nigeria Ltd. (supra) reconstrued the said provisions. In that case the respondent had sued the appellant before the Lagos High Court claiming damages for the negligent processing of the respondents letters of credit. After the filing of pleadings the trial was conducted in an open court, the judgment however was delivered in chambers in favour of the respondent.

The appellant appealed to the Court of Appeal, one of the grounds being the delivery of judgment in chambers. The Court of Appeal relying on Oyeyipo’s case upheld the judgment of the trial High Court.

On further appeal to the Supreme Court, the court held per Belgore, JSC at page 274:

“The aforementioned constitutional provisions and rules of court made thereunder are peculiar to the Supreme Court, they do not extend to other superior courts of record. Therefore, the provisions of section 33(3) of the Constitution are fundamental and must be adhered to strictly by all courts of record subject to the exception explained above in respect of certain applications before the Supreme Court. The Supreme Court itself is confined to such applications as enumerated in Order 6 rule 2(1), (2), (3) and (4) and also Order 6 rule 3(1), (2) and (3) to decide on documents filed and in other cases apart from such applications, it must hear matters and give judgments and rulings upon them in the open court or in public. I regret that this issue has vitiated the trial through the error of the trial Judge and misapplication of the error by the court of Appeal. On this issue alone of giving judgment not in public as demanded in section 33(3) under fundamental rights in chapter IV of 1979 Constitution, but in chambers, the judgment is a nullity and vitiates the entire proceedings”

See also (supra) pages 275-276 per Kutigi, JSC:

“I think the court of Appeal was unnecessarily trammened by the case of Oyeyipo v. Oyinloye (supra). That case was concerned with an application asking this court to set aside its own decision dismissing applicants appeal in chambers for want of prosecution under appropriate rules of court validly made by the Chief Justice of Nigeria vide section 216 of the Constitution of 1979. So the decision in Oyeyipo v. Oyinloye (supra) must be confined and limited to the appropriate provisions of the Supreme Court’s Rules relating to matters specified in those rules which can be dealt with in chambers…

From the foregoing it would by now be clear that Oviasu v. Oviasu (supra) is still the law it has not been overruled by the decision in Oyeyipo v. Oyinloye (supra). The Court of Appeal was clearly in error for holding otherwise. So as it was in Oviasu v. Oviasu (supra), it will also be in this appeal. The irregularity occasioned by the delivering of judgment in chambers contrary to clear and unambiguous provision of section 33(3) of the 1979 Constitution above is very fundamental and vitiates the whole trial.”

From the above it is clear that the decision in Oviasu v. Oviasu is still the law. The lower court and the respondents from the record before us are under the impression that the above findings only relate to when a judgment is read in chambers. This is not however the case for this court had in Salawu v. Adza (1997) 11 NWLR (Pt.527) 14 nullified a trial where the ruling was delivered in chambers.

On the whole the lower appellant High Court was wrong to have upheld the decision of the trial magistrate court as part of the said court proceedings where conducted in chambers a clear infringement of the appellant’s right to fair hearing as provided for in section 33(3) of the 1979 Constitution and section 225 of the Criminal Procedure Code. In the circumstances this appeal has merit and I allow it.

The judgment as delivered by the trial magistrate court on 9/9/97 is a nullity and the entire proceeding is vitiated. I hereby set it aside and order a retrial before another magistrate of the Federal Capital Territory.

---

Other Citations: (2004)LCN/1666(CA)

Ngozi Anyafulu V. Vincent Agazie (2004)

LawGlobal-Hub Lead Judgment Report

UMOREN, J.C.A. 

This is an appeal from the decision of the High Court of Justice, Enugu by Agbatah, J. in suit E/100/95 dated 17th April, 2000.

The facts that gave rise to this appeal are as culled from the only brief filed and on which the appeal was heard.

On 24th February, 1995 the plaintiff, a tenant, instituted suit No. E/100/95 against the defendant her landlord claiming N100,000.00 special and general damages for obstructing her use and enjoyment of a room in the landlord’s premises situate at 30, Nike Road, Abakpa Nike, let to the plaintiff where she ran the business of a hair salon, and injunction against further interference.

The background to this suit is that the said landlord sued the tenant for possession of the said room in the Magistrate’s Court which suit is now before this court as appeal No.CA/E/170/2001 and being impatient with the pace of court proceeding decided to annoy her out of the room by digging two holes in the room and depositing bamboo poles and cement blocks at the entrance to the said room while the suit for possession was pending.

More than seven months after instituting this action the plaintiff applied to the High Court for an order for substituted service of the writ of summons and subsequent processes on the defendant by delivering the documents to Ifeanyi Uko, Esquire, who was the landlord’s counsel prosecuting the suit for possession in the Magistrate Court. The affidavit in support of the motion showed the futile efforts made at personal service of the writ of summons on the landlord who lived outside Enugu State. The High Court granted the application on 17th October, 1995 and further ordered that such service be deemed good and proper service on the landlord (defendant). The service was effected by the court bailiff in compliance with the court’s order on 25th October, 1995. Indeed the landlord’s solicitor confirmed in an affidavit made in the proceedings that the service was so effected. The plaintiff’s statement of claim was served on Ifeanyi Uko, Esquire, on 7th February, 1996.

Order 7 rules 14(1) and 2(b) under which the High Court made the order read:-

“14(1) Where it appears to the court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the court may order that service be effected in any manner by which it appears to the court that the document is likely to come to the know ledge of the person to be served”

(2) Without prejudice to the generality of the provision of sub-rule (1) of this rule, the court may order the service to be effected either by…

(b) delivery thereof to some person being an agent of the person to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or that other person, come to the knowledge of the person to be served.”

(Italics for emphasis)

On the application of the plaintiff under Order 23 rules 3 and 4 of the High Court Rules, the Registrar of the court issued a notice to the defendant, served on the same Ifeanyi Uko, Esquire, fixing the case for call-over on the 13th of May, 1996.

On the said 13th May, 1996, C. J. Anyamene, Esquire, of counsel appeared for the plaintiff while the said Ifeanyi Uko, of counsel appeared for the defendant in court 5 to which the case was transferred from court 4. By agreement of both counsel, the clerk of court 5 included the suit in the list of cases for call-over on 10th June, 1996. But the court did not sit on the 10th of June, 1996 and on the further adjourned date of 24th June, 1996, on which date the clerk of court adjourned the suit to the 24th of September, 1996.

Neither the defendant nor his counsel attended court on 24th September, 1996 on which date the court ordered hearing notices to be served on the defendant personally and on Ifeanyi Uko, Esquire, of counsel, and adjourned the suit to 12th November, 1996, then to 4th December, 1996, then to 10th February, 1997 then to 13th March, 1997 on which date the court was informed by plaintiff’s counsel that the hearing notice ordered by the court was served on the defendant personally at his residence in Onitsha on 18th February, 1997. The court ordered that the bailiff who effected service should appear in court to testify at the next adjournment which it fixed for 19th May, 1997. It should here be noted that the service of the hearing notice on the defendant on 18th February, 1997 gave him notice of the pendency of this suit against him.

On 19th May, 1997 the said bailiff named H. E. Ngwu serving in the Onitsha Judicial Division testified as P.W.1 that he served the hearing notice on the defendant on 18th February, 1997 and tendered the affidavit of service which he made after the service which was admitted in evidence and marked exhibit A. The court then directed that the plaintiff was at liberty to file her motion for judgment and serve same on the defendant when he attended the Magistrates Court for his possession case against the plaintiff on 3rd June, 1997, and adjourned the instant suit to 11th June, 1997.

On 11th June, 1997 the defendant was as usual absent but A. I. Ekeji, Esquire, of counsel appeared for him holding the brief of Ifeanyi Uko, Esquire. A. I. Ekeji, Esquire, stated in court for the first time that they (the chambers of Ifeanyi Uko, Esquire) returned to the registrar the writ of summons and statement of claim delivered to them for the defendant by order of the court because they were at the time of service not briefed by the defendant. The court ordered them to retrieve the writ of summons and statement of claim since they had now appeared for the defendant, and adjourned the suit to 26th September, 1997 for hearing.

On 26th September, 1997 both the defendant and his counsel were absent, and this date marked the beginning of the comedy that traversed the proceedings in this suit. The court suo motu referred to the proceeding of 11th June, 1997 and stated that the instant suit would not go forward until judgment was delivered in the Magistrate’s Court suit between the parties for possession of the said room let to the plaintiff and a copy of the judgment filed in this court, and adjourned to 25th November, 1997 for further mention.

On 25th November, 1997 neither the defendant nor his counsel was in court, and the court stated that it would regard the case as being undefended and asked plaintiff’s counsel what he proposed to do, whereupon the plaintiff’s counsel informed the court that he had a motion in the court for proving the plaintiff’s case but the court blurted that the court would no longer entertain this suit until it sees the decision of the Magistrate’s Court in the suit for possession, and further adjourned the proceedings to 13th February, 1998 for possible hearing subject to the judgment of the Magistrate’s Court being served on the court and the plaintiff filing a statement of claim. Be it noted that the plaintiff filed her statement of claim on 7th February, 1996 and was issued with receipt No.0775218 for payment of the court fees and Ifeanyi Uko, Esquire, of counsel acknowledged being served on 7th February, 1996 with a copy thereof.

On 13th February, 1998 the court was informed by the plaintiff’s counsel that the judgment of the Magistrate’s Court was against the plaintiff herein. As usual the defendant and his counsel were absent and the court adjourned to 3rd April, 1998 for hearing.

On 3rd April, 1998, Ifeanyi Uko, Esquire, appeared for the defendant who was also in court, and stated that the writ of summons had not been served on the defendant and asked that the said process be served on the defendant present in court and referred to his letters dated 2nd April, 1997 and 25th November, 1997 respectively which were not brought to the notice of the plaintiff or her counsel nor to the notice of the court when they were written for any directive.

The plaintiff’s counsel then asked for an adjournment to enable him “readjust himself’. The court instantly struck out the suit without first considering the application for adjournment and deciding whether to grant it or not as directed by the Supreme Court in Albert Ilona and Anor. v. Dei (1971) 1 NMLR 5; (1971) 1 All NLR 8, saying, very surprisingly, that the writ of summons had not been served on the defendant.

On 21st September, 1998 the plaintiff filed a motion in the High Court to re-list the suit struck out as provided in Order 24 rule 16 of the High Court Rules which reads:-

“Any cause or matter struck out may, by leave of the court, be re-listed on such terms as to the court may seem fit.”

The defendant filed a counter-affidavit on 4th November, 1998 in paragraphs 2 and 3 of which he deposed that he never knew of the pendency of the action nor did he instruct any solicitor or counsel to act for him or take any steps in his defence “until on or about 3rd day of June, 1996″when he instructed the firm of Ifeanyichukwu Uko and Associates to receive process on his behalf.

The plaintiff notes that the writ of summons was dated 24th February, 1995 and by the 3rd of June, 1996, the writ was not yet void altogether or stale as used by the defendant’s counsel and the court, as two years had not elapsed since its issue on 24th February, 1995. The same defendant in paragraph 5 of his said affidavit deposed that on 22/5/95, 31/5/95, 13/12/95, 27/2/96, 10/4/96, 15/5/ 96, 25/7/96, 20/8/96 “and other dates thereafter he attended the Magistrates Court, Enugu” – yet his solicitor swore in paragraph 4 of his affidavit dated 13th May, 1996 that the chambers could not locate the defendant and in his submission in court on the 4th of February, 2000 that as they were not agents of the defendant in the suit “they did not bother to serve him.”

After hearing arguments from counsel, the High Court rejected the application to re-list and awarded costs of N500.00 to the defendant, hence the appeal to this court on four grounds. Appellant’s counsel filed his brief on 26th April, 2002 and on the 29th April, 2003, on application by counsel for the appellant, this court granted appellant leave to be heard on appellant’s brief only, the respondent having failed to file his brief within the period prescribed by the rules of this court. In the appellant’s brief two issues were distilled for determination as follows:-

“(1) Was the court below right in holding that it had no jurisdiction to re-list the case it struck out. (2) Were there sufficient facts before the court below upon which it would rightly have exercised its discretion to re-list if it had held it had jurisdiction.”

In his argument, the appellant’s counsel relates his first issue to grounds 1, 2 and 3 of the grounds of appeal. The view of the court below was that the order striking out the suit was a final order and can only be set aside on appeal. He relies on Order 24, rule 16 of the High Court of Enugu State Rules which is reproduced above. The learned senior counsel for the appellant went to town and brought in other issues that to my mind are extraneous to the issue before the court. The simple question, which to my mind, calls for a simple answer is, had the court below the jurisdiction to re-list a matter it struck out?

It is clear that at the lower court, the plaintiff asked for an adjournment to enable him re-adjust himself. What was handed down by the court below was “the suit is struck out, application for adjournment is refused. The court cannot be taken to unnecessary length in this suit”. This suit was struck out and nothing more. The question is, can the lower court refuse to re-list a suit it struck out without a hearing and therefore not on the merit? The answer is found in the words of Order 24 rule 16 of that State High Court Rules which reads “any cause or matter struck out may, by leave of court, be re-listed”. The definition section of the said High Court Rules (Order 2) defines cause to mean “A civil action in the original proceeding” arid, matter to mean “an action other than a cause”.

Before the Judicature Acts of 1873-75, “Cause” was the generic term for ordinary civil proceedings whether at law or in equity, and therefore included actions and suits, but not statutory proceedings in equity commenced by petition, motion, summons etc. which were and are known as matters. Since the Acts came into operation (which was a law of general application), the word cause has practically been superseded by “actions”. After 1990 the words “cause” and “matter” have been defined in our own laws and rules of courts such as the definition above in our Order 24, rule 16 of the Enugu State High Court Rules. The wording of the rule is clear and unambiguous. Effect should therefore be given to it.

In the exercise of a court’s discretion in granting an application for adjournment, it is pertinent to quote a passage in the judgment of Lord Wright, L. J. in Evans v. Bartlam (1937) A. C. 473. In his judgment Lord Wright said at page 487:

“A Judge’s order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the Court of Appeal only in exceptional cases, yet it may be reviewed by the Court of Appeal. Thus in Maxwell v. Keun (1928) 1 K.B. L 645, the Court of Appeal reversed the trial Judge’s order refusing to grant the plaintiff an adjournment. That was a pure matter of discretion on the facts. Atkin, L. J. said at page 653:

‘I quite agree that the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned Judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court of Appeal has power to review such an order, and it is to my mind, its duty to do so.’”

I must say clearly and firmly that we do not consider that a Judge is obliged to grant an adjournment solely on the ground that counsel on each side ask for it. That is a factor certainly to be taken into consideration but a Judge must also bear in mind the necessity for ensuring speedy justice to the contesting litigants and he must also bear in mind that by adjourning a case to a day fixed for hearing it means further delay to other litigants who might otherwise have had their cases heard then. I would, moreover, add that it is sometimes, in our view, a little less than scandalous that delays to a case are caused by the great number of adjournments, that on record to us have occurred in simple and straight forward cases.

I think that I must stress here that in civil cases, it is the duty of the parties to tidy up their cases and produce their witnesses, and as far as possible, either party should be alert throughout the trial. I think that there are occasions when it will not be in the interest of justice to grant an adjournment. It should always be borne in mind that the interest of justice does not mean just the interest of the applicant, it also includes the interest of the respondent and the court.

In other words, the adjournment being sought should, in a strict sense, be in the interest of all concerned.

Therefore the question whether or not to grant an adjournment is a matter solely in the discretion of the court. But that discretion must at all times be exercised not only judicially but also judiciously.

In the appeal before us, the plaintiff/appellant asked for an adjournment simply to enable him “readjust himself’. The court simply struck out the suit and no reasons were given. In the circumstances, the striking out was not judiciously and judicially and a motion to re-list ought to have been granted. I have essayed to look at the appeal from both the appellant’s and respondent’s perspective. In no way can the refusal be justified. So this first issue is resolved in favour of the appellant.

Issue No.2 was related to grounds 1 and 4 of the grounds of appeal. The learned Senior Advocate for the appellant contended in this issue that the learned trial Judge failed to exercise his discretion in favour of re-listing the suit. He argued that the learned trial Judge failed to exercise his jurisdiction in case he would be wrong in holding that he had no jurisdiction. He referred to arguments above which I have taken care of in the first issue. He urged this court to set aside the ruling of the court below that it had no jurisdiction to re-list the suit and order that the case be re-listed. because there were sufficient materials that were staring the court below in the face when it heard the application. From the record, it appears that:

“(a) The court made an order for service of the writ of summons on the defendant by delivery thereof to Ifeanyi Uko, Esquire of counsel, not as agent of the defendant as wrongly argued by the said counsel but in the words of Order 7 rule 14(2)(b) as a person through whom there is reasonable probability that the document would in the ordinary course come to the knowledge of the defendant. The court which made the order pronounced that such delivery was good service on the defendant.

(b) Ifeanyi Uko, Esquire was the solicitor of the defendant prosecuting his case in the Magistrate’s Court for possession of the room he let to the plaintiff in the instant suit. He admitted the writ of summons was received by him.

(c) The defendant recounted at least eight separate days he appeared in the Magistrate’s Court with the said Ifeanyi Uko, Esquire, after delivery of the writ of summons to Ifeanyi Uko, and it is very reasonable to expect that Ifeanyi Uko, Esquire, would inform the defendant of the writ of summons against him, on at least on these occasions.

(d) The letter by Ifeanyi Uko, Esquire, allegedly returning to the registrar of the court the writ of summons and statement of claim delivered to him by order of the court was dated 30th May, 1996 when the defendant swore to an affidavit that he gave instructions to Ifeanyi Uko of counsel “to act for me … in my defence … on or about 3rd June, 1996″.

(e) On or about the said 3rdJune, 1996 the writ of summons had not run out its life of two years from the date of issue on 24th February, 1995.

(f) The letter returning the writ of summons and statement of claim to the registrar of the court was not copied to the plaintiff’s counsel for him to do the needful in the interest of the plaintiff, nor brought to the notice of the court at the time it was written for the court’s directive as was done in Odutola v. Kayode (1994) 2 SCNJ 21; (1994) 2 NWLR (Pt. 324) 1 cited by the said Ifeanyi Uko, Esquire, of counsel. On the contrary, when the defendant’s solicitor informed the court of the return of the documents the court ordered him to retrieve them which the said counsel never did.

(g) No copy of the statement of claim or a spare copy of the writ of summons meant for service was seen in the court’s file. Did counsel in fact return the writ of summons and the statement of claim to the registrar?

(h) It was with great respect a howler for the court to somersault by saying that service effected in accordance with its order was not good service in law.”

It is not clear how the learned trial Judge came to the conclusion that he lacked jurisdiction to re-list the suit when, apart from the facts enumerated above, consideration should have been given to what the trial Judge himself observed in his ruling. The learned trial Judge had recalled that in the submission of the defendant’s counsel, they did not bother to serve the respondent i.e. the defendant, because they were not his agents; that they did inform the Assistant Chief Registrar of the court below that they could not locate the learned counsel of the applicant; that that court ordered that the same Ifeanyi Uko who said he had returned the processes should go to trace them

and get them served on the applicant’s counsel; and this court order was not carried out.

It is unfortunate that these contradictions and inconsistencies did not appear to make any impression in the mind of the trial Judge. Again the learned trial Judge failed to avert his mind to Order 5, rule 20(1) of the High Court of Enugu State (Civil Procedure) Rules which stipulates that a process not served after two years of its issue … shall become void altogether and the suit shall be struck out. The learned trial Judge also did not avert his mind to the fact that the suit before him, issued on the 24th February, 1995 was not yet two years old on the 18th February, 1997 when the hearing notice for the suit was served on the defendant personally. I refer to page 38, lines 35- 49 etc. of the record.

An appellate court will be reluctant to interfere with the decision of a trial court on issues of assessment or weight of evidence except such decision is perverse and not the result of proper exercise of judicial discretion. In this appeal, as the trial Judge failed to consider issues some of which are listed above, the decision of the lower court was bound to be perverse and not the result of a proper exercise of judicial discretion. See Lord Jankerton in WATT Thomas v. Thomas (1947) A.C. 484. This decision was approved in Okpiri v. Jonah & Ors. (1961) 1 SCNLR 174; (1961) 1 All NLR 102 at 104.

In the result, I find merit in this appeal and hereby allow it. I hereby set aside the decision of the court below and substitute for it an order re-listing the said suit No. E/100/95 pending in the High Court of Enugu State, Enugu for trial thereat and determination. I make no orders as to costs.

---

Other Citations: (2004)LCN/1665(CA)

Chief Oyoyo Ubene V. Commissioner of Police (2004)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A.

This appeal is against the ruling of the Akpabuyo High Court of Cross River State (Coram: Ikpeme, J.) which struck out the appellant’s application for leave of the Honourable Court to appeal Bout of time against the appellant’s conviction in the charge No. MCA/IC/78 at the Ikot Nakanda – Akpabuyo Chief Magistrate Court.

The facts of the case are not at all in controversy. In 1978, that is, nearly 26 years ago the appellant with another, was charged with the offence of assault under section 351 of the Criminal Code Law of Cross River State, 1978 leading to the conviction and sentence of the appellant with an option of fine in the sum of N80.00. The appellant paid the fine in lieu of 3 months imprisonment; and allowed the matter to rest there.

Apparently aggrieved by the said decision, the appellant has now filed a notice of appeal containing 2 (two) grounds of appeal and without their particulars. They are as follows:

“(i) The learned appellate High Court Judge erred in law in failing to consider the circumstances of the case appealed against before refusing to grant the application sought.

The learned appellate High Court Judge erred in law in refusing leave merely because the reason for delay was not satisfactory to the court.”

The parties to the appeal have filed and exchanged their briefs of argument. In furtherance of the appeal, the appellant has distilled three issues for determination and they are as follows:

(i) Given the entire circumstances of this case, is it not rather harsh for the lower court to have refused the appellant leave to appeal out of time against his conviction?

(ii) Whether the lower court was right in refusing the leave sought by the appellant without considering the orientation of the appellant as an illiterate villager.

(iii) In considering the reason for delay in bringing up an appeal, should the court be guided by standards set in civil actions whether or not the appeal is civil or criminal?”

The respondent in its brief of argument has also raised three issues for determination in the appeal, namely:

(i) Was the lower court wrong to have refused the appellant leave to appeal out of time for more than 24 years?

(ii) Is the lower court bound to consider the orientation of an appellant/applicant before it before making or exercising its discretion?

(iii) In considering the reason for delay in bringing up an appeal should the court be guided by standards set in civil actions whether or not the appeal is civil or criminal?

The appellant has raised three issues for determination from the two grounds of appeal, one issue being in excess; meaning that one of the issues for determination is clearly not covered by any of the two grounds of appeal and so, should be struck out as baseless. See Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 at 270. At the oral hearing of the appeal the appellant applied to have issue two for determination and para. 4.3 of the appellant’s brief of argument dealing with the same to be struck out. The said issue two together with paragraph 4.3 of the aforesaid brief had to be struck out as incompetent on the appellant’s application. In arguing the remaining two issues the appellant firstly, has recognized that the appellant has delayed in bringing the appeal but has submitted that he should not be deprived of the right to appeal merely because of that if only to enable him remove the stigma of criminality from his record. It has been pointed out that the court’s power to interfere in matters of exercise of discretion by lower courts as here though very much there has to be exercised cautiously. See: Saffieddine v. C.O.P (1965) 1 ANLR 54. Again, it is contended that the lower court failed to consider the relevant materials placed before it such as the judgment of the trial Magistrate particularly against the background of the complaints as per the grounds of appeal. He has canvassed at some length on the appellant’s relative evidentiary burden to discharge in this case as against that of the prosecution with a higher onus to discharge, that is to say, in respect of applications of this nature. Even so, that the trial court was in grave error to have used the standard required in civil cases such as showing good and substantial reasons as well as good grounds of appeal in applications for extension of time to appeal out of time in determining the requirement in a criminal case as the instant one. The court is therefore urged to reverse the order of the lower court and grant the leave sought in order to avert the injustice from refusing the application.

On the part of the respondent, three issues for determination have also been formulated. Having abandoned issue two of the three issues for determination, it consequently abandoned paragraph 4.2 of its brief founded on it. Accordingly, they have been struck out leaving for discussion two issues for determination. It is the respondent’s case that no materials to be taken into consideration in determining the merit of the application have been laid before the court below, including, most importantly, good and substantial reasons for failing to appeal within the prescribed period of 3 months and good and arguable grounds of appeal. See FMBN v. Savannah Securities Ltd. (2000) 15 NWLR (Pt. 689) 152 and 153 and Moses and Anor. v. Ogunlade (1975) NSCC 199 where the delay of 18 months was considered by the Supreme Court as too long that could not justify any such leave by the court. On issue 3, the respondent has argued that the case of Saffieddine v. C.O.P. (supra) cited and relied upon by the appellant is no authority showing that applications of this nature as regards criminal appeals must be granted i.e. treated differently as a matter of course as there are no different guiding principles in regard to applications seeking leave in civil and criminal cases. He made the point that the appellant has in regard to that question failed to cite pertinent authorities. The court is urged to dismiss the appeal and affirm the decision of the lower court.

Taking at once all the issues for determination as raised by the parties in this case the question that has crystallized for the court is the question of the exercise of its extraordinary jurisdiction that is, in this case whether the appellant is entitled to the relief of extension of time within which to appeal against the conviction passed on 14th November, 1978, upon the materials placed before trial court, (i.e. the material to be identified in course of the judgment).

Firstly, I have to note that the appellant has defaulted in not setting out nay even mention specifically in his brief of argument the applicable law and rules of court such as section 25(2)(a) and (4) of the Court of Appeal Act, Cap. 75, Laws of the Federation, 1990 and rule 4(2) of Order 3 of the Court of Appeal Rules under which application for extension of time within which to appeal or seek leave to appeal out of time are otherwise predicated, and even so the basis of the instant application. I think I have to begin discussing this case by firstly, setting them out as follows. Section 25(2) provides thus:

“The period for giving notice of appeal or notice of application for leave to appeal are:

(a) in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision. The Court of Appeal may extend the periods prescribed in sub-sections (2) and (3) of this section.”

Order 3 rule 4(1) and (2) of the Court of Appeal Rules is as follows:

“(1) The court may enlarge the time provided by these rules for the doing of anything to which these rules apply.

(2) Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

I have to observe before coming to examining the foregoing provisions that the appellant having, as it were, allowed the 3 months allowed him as prescribed by section 25(2)(a) (supra) to appeal as of right against the final judgment and his conviction by the trial court in this case, to fritter away, has to show exceptional or special circumstances as contemplated in the foregoing provisions of rule 2 of Order 3 (supra) for the court to exercise its extraordinary jurisdiction to grant the relief sought in this application to extend time to appeal out of time against his conviction of 1978. Both under section 25(4) (supra) and rule 4(2) of Order 3 (supra) this court is given the power to extend time for failure to appeal within the prescribed period. It is entirely at the discretion of the court to grant or refuse an application as the instant one and this is subject to the surrounding circumstances as a whole. Coming to rule 4(2) (supra) itself, I have to say that its provisions have been examined in a number of decisions of the higher courts from which have been derived two clear guiding principles by way of conditions which an applicant as the appellant here has to satisfy to be entitled to such relief as is sought by the appellant herein. And, as pronounced in those decisions, an application for enlargement of time to appeal or to seek for leave to appeal has to be supported by affidavit showing the following factors which must co-exist for such application to succeed. See Ukwu v. Bunge (1997) 8NWLR (Pt. 518) 527 and they are namely:

(1) Good and substantial reasons for failure to appeal or to seek for leave to appeal within the prescribed period; and

(2) Grounds of appeal which prima facie show good cause why the appeal should be heard. See Osinupebi v. Saibu (1982) 7 SC 104.

Again, based on well grounded judicial pronouncements, and so it is now a matter of sine qua non, to the effect that an affidavit in support of such application as here has to be exhibited to it a certified copy of the judgment or ruling appealed against or seeking leave to appeal; so also in cases in which the appeal is based on interpretation of documents, evaluation of evidence wherefore a certified copy of proceeding of the court could be inestimably crucial. See General Oil Ltd. v. Oduntan (1990) 7 NWLR (Pt. 163) 423 at 440. These and the like materials are examples of materials to be placed before a court for consideration in an application of this nature.

Having set forth the applicable law and the principles, I now discuss them in the con of the appellant’s case as has been presented in his brief of argument. In regard to providing good and substantial reasons for defaulting to appeal or seek leave to appeal within the due period, it is my view that the appellant with respect, has failed to make out a solid case. Coming to the first condition stipulated above, an applicant is required to give a convincing reason for failing to act within the prescribed period, in this instance to file his appeal within 3 months of the final judgment and conviction. It is settled that once an applicant is able to satisfy this condition the apparent length of delay, again, in this instance about 24 years becomes immaterial as a factor for court’s consideration. See: Kalu v. Igwe (1991) 3 NWLR (Pt. 178) 168 per Oguntade, JCA, (as he then was), Alagbe v. Abimbola & Ors. (1978) 2 SC 39. Going by well established precedents, courts have of late in a number of cases upheld want of means and fault or inadvertence of counsel as satisfying the aforesaid condition. See: Doherty v. Doherty (1964) 1 ANLR 299, Lamai v. Orbih (1980) 5 – 7 SC 28 and Kalu v. Igwe (supra). Thus implying that what is good and substantial reason has to depend on the facts and circumstances of each case and it is not closed. In this case, the high point of the appellant’s case as regards good and substantial reason for defaulting to appeal within the prescribed period has centred round the contention that the appellant a villager could not understand the criminal stigma such conviction had put on him, that is, in the words of the appellant that the court below did not take the appellant’s orientation into consideration. From whatever perspective one may view the foregoing reason, it certainly, with respect, will not pass as a good and substantial reason particularly against the backdrop of some further facts to the effect that the appellant was about 40 years at arraignment for the said offence of simple assault; and secondly that in his plea in allocutus he said, “I am not guilty” – yet he did nothing ever since to challenge the conviction until now.

The hopelessness of the appellant’s case in this respect is made more profound by the absence of any good and substantial reasons in the supporting affidavit explaining why he has defaulted to appeal within the prescribed period. To substantiate it, I have to refer to paragraphs 2,3,4,5,6,7,8,9,10 and 11 of the supporting affidavit and I quote them as follows:

“2. That the judgment of the court below appealed against was delivered on the 14th of December, 1978;

3. That I was convicted in the said judgment and sentenced to 3 months imprisonment or N80.00 fine;
4. That in exercise of the option opened to me I paid the N80.00 fine without bothering to appeal against the conviction as I inadvertently did not understand what a stigma a conviction constitutes on the status of a party to a criminal action;
5. That some members of my community have lately referred to the said conviction and cited same as a stiga militating against my elevation to the status of a clan headship;
6. That it is in order to remove the stigma constituted by the said conviction that I am appealing against the same;
7. That the offence leading to the conviction itself was a mere misdemeanour which ought not to have attracted a conviction and for which the presiding Magistrate apologized to me saying the conviction and sentence was more politically than legally motivated;
8. That I have been informed by my solicitor, Chief Orok Oyo of counsel and I verily believe him that the documents hereto attached are all the records of what transpired in that trial;
9. That in view of the anxiety of the members of my community to get the stigma of an ex-convict off my head it is necessary to expedite the hearing of the appeal;
10. That to expedite the aforesaid hearing of the appeal my counsel has assembled the record himself as hereto annexed and marked exhibit “A”;
11. That to further expedite the hearing of this appeal, the appellant’s grounds of appeal have been prepared, the required copies filed and deposited, and the requisite filing fees paid in the registry of this Honourable Court, annexed and marked exhibit “B” is a copy of the said appellants grounds of appeal.”

The foregoing depositions which form the core of the appellant’s case in this case, with respect, are devoid of any good and substantial reasons. Throughout the foregoing depositions, the appellant has not specifically given good reasons why he failed to appeal within the prescribed period of 3 months of his conviction save in paragraph 5 above, where he has shown that it is his elevation “lately to a clan head” vis-a-vis the aspersion cast on his character arising from the stigma of his conviction that is at the root of this application otherwise he was prepared to let sleeping dogs lie. I cannot but agree more with the court below and even so, the respondent that the materials to enable the court below to consider the first condition for the instant application as postulated above are not there. All the authorities as cited herein leave no doubt as to the crucial nature of this legal requirement. Without it the instant application is as good as a non-starter. I must add, that his counsel’s submissions however brilliant or ingenuous are no substitute for hard evidence in proof of the point to sustain the application i.e. good and substantial reasons for appealing out of time, i.e. until recently when members of his community have started to taunt him with the stigma of his conviction clearly outside the 3 months prescribed for appealing. Certainly this has not explained his failure to act within the prescribed period.

In regard to the second condition, that is to say, whether the grounds of appeal are substantial and arguable and which prima facie show good cause why the appeal should be heard. In other words, they should raise serious questions of law and fact. See: Balogun v. Balogun (1969) 1 ANLR at p. 349. I should subjoin here that there is a strong judicial opinion that the court may be favourably inclined in regard to the reason for defaulting to appeal within the prescribed period where the applicant as the appellant here has an arguable appeal and in the circumstances should not be shut out of the appeal: See In re Adewunmi (1988) 3 NWLR (Pt. 83) 483, Co-operative & Commerce Bank (Nig.) Ltd. v. Emeka Ogwuru (1993) 3 NWLR (Pt. 284) 630 also see Ukwu v. Bunge (supra) where the proposed ground had complained of lack of jurisdiction.

The appellant as per the notice of appeal exhibited to the supporting affidavit (and marked exhibit “B”) to the substantive application has premised his complaints against the said conviction on three “proposed” grounds of appeal and they are as follows:

“(a) That the judgment is against the weight of evidence;

(b) That the decision of the Magistrate Court is contrary to the rules of natural justice, equity and fair play;

(c) That the judgment is unreasonably unwarranted having regard to the evidence.”

On a dispassionate view of these grounds of appeal, one of the questions that has risen comprises namely, firstly, do these grounds raise serious questions of law and/or mixed law and fact so as to show prima facie that the court below committed any error in law or fact or has wrongly exercised its discretion. See: NDLEA v. Okorodudu (1997) 3 NWLR (Pt. 492) 221.

On the other hand, grounds “a” and “c” of the proposed grounds of appeal represent the omnibus grounds of appeal in civil and criminal appeals respectively. This being a criminal matter ground “a” contrary to all appearances is not only redundant in criminal appeals, it is clearly inapplicable in the circumstances being in the format of general ground of appeal in civil cases; and surely it cannot be a ground that in the con of this case has raised serious questions of fact. Ground “C” as per omnibus ground in criminal appeals is on the whole an attack on the findings of fact of the trial court and in so far as it is dealing with findings of primary facts, an appellate court as this one would hesitate to interfere with such findings as more often than not it involves considering the demeanour of witnesses as against inferences drawn from accepted facts. The trial court is eminently more qualified to deal with such matter. Ground (b) no doubt suffers from obvious vagueness as it is set forth in general terms. It cannot be said to have raised a serious question of much law and fact for the court to determine. I must not be mistaken here of doing the appeal. It is my view that in an application of this nature the court should not shrink from examining the “proposed” grounds of appeal. I am satisfied that the two grounds of appeal (i.e. (b) and (c) have not raised good arguable grounds. Neither has remotely touched on any arguable points of law and fact. Again, the applicant has therefore failed on the second condition in regard to the instant application for leave of appeal out of time.

The end result of the foregoing reasoning on the two conditions which must co-exist in an application of this nature to succeed is that such leave is not granted automatically. Assuming but without conceding that the said reason is good reason, there is obvious want of good arguable grounds co-existing with it to make for a successful application to appeal or seek leave to appeal out of time.

In regard to the appellant’s issue 3, I say, with respect, that it is misconceived. The authorities do not support the appellant’s contention that leave to appeal out of time is hardly ever refused in criminal cases as opposed to civil cases except where such applications are from the prosecution. This sweeping statement of the law with respect, is not borne out by the case – Saffieddine v. C.O.P (supra) heavily relied upon by the appellant. Authorities are consistent in holding that applications be it in extension of time to appeal or seeking leave to appeal out of time in civil or criminal cases have to meet strictly the two conditions stipulated above. And so, the courts have not made any distinction between the evidentiary burden in regard to granting extension of time for leave to appeal or seek leave to appeal as between criminal and civil cases. In sum, therefore, I resolve the two issues against the appellant.

Not having seen any merit whatsoever in the appeal, it is hereby dismissed in its entirety. The ruling of the court below which has painstakingly analysed the facts and the law in this matter very satisfactorily is hereby affirmed.

---

Other Citations: (2004)LCN/1664(CA)

Def-lam & Company Limited V. Osun State Government & Anorin the Court of Appeal of Nigeria (2004)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A.

This appeal stems from the decision of Yusuff J., of the Oshogbo High Court delivered on Wednesday the 30th day of May, 2001 in suit No. HOS/M.80/2000 in which the learned trial Judge struck out the application of the appellant who was the plaintiff at the court below. The application was struck out on the basis that the contract was statute barred. The ruling of the lower court is at pages 17 to 20 of the records.

The facts of this case are simple and straightforward. The appellant was employed by the respondents to carry out repairs of damaged School buildings at Ife North Local Government Area of Osun State. The contract for the repair of the School buildings was signed by the parties on 14th day of October, 1992 for a total sum of N1,984,558.00. See page 7 of the records. It would appear that the job was satisfactorily executed and the respondents thereafter made a part-payment of N945,375.00 in two installments, that is, N500,000 in 1992 and N445,375.00 on the 27th February, 1997. See paragraph 4 of the affidavit on page 11 of the records.

The 2nd respondent acknowledged the debt vide a letter dated 29th September, 2000. The appellant having tried unsuccessfully to recover the debt of N1,039,183.00 declared a dispute with the respondents. Counsel to the appellant notified the respondents (defendants at the court below) and requested them to appoint their own arbitrator, but the respondents refused to respond to the appellant. See paragraphs 6 and 7 of the affidavit in support of the appellant’s motion on page 11 of the records. The appellant then filed an application before the lower court as required by the Arbitration Laws of Osun State to compel the respondents to appoint their Arbitrator. See page 10 of the records.

The lower court heard counsel to the appellant on the application and the counsel to the respondents on the preliminary objection on 12th April, 2001. See pages 13 and 14 of the records.

Counsel to the appellant replied to the submission of the respondel1ts’ counsel on 24th April, 2002. See pages 14 and 15 of the records. Thereafter the learned trial Judge fixed ruling for 29th May, 2001. As borne by the records, the lower court on 30th May, 2001 overruled the preliminary objection and suo motu struck out the appellant’s motion on the ground that the action being one founded on simple contract is statute barred. See page 16 of the records.

Dissatisfied with the ruling of the lower court the appellant has now appealed to this court.

The notice of appeal contains two grounds. The grounds and their particulars read as follows:

“1. The learned trial Judge erred in law by striking out the action for being statute barred.

Particlliars of Errors of Law:

i. The contract, the subject-matter of the action was contracted on 14/10/92 for a slim of N1, 984, 558. 00.

ii. A part-payment of N945,375.00 was made by the defendants/respondents on two instalments to wit:

(a) N500,000.00 paid in 1992

(b) N445,375.00 paid on 27/2/97.

iii. The defendants/respondents also acknowledged the debt by a letter dated 29th September, 2000, Ref. Number OS/PRS/PN/153/Vol.III/164.

iv. The learned trial Judge raised the issue of limitation of action Suo motu and decided and or resolved it without calling on either the parties or their counsel to address him on same in breach of the appellant’s fundamental right to fair hearing.

v. The part-payment of 27/2/97 is an admission of the balance of the said debt therefore reactivating the cause of action in 1997, thereby recommencing the limitation period.

vi. The letter dated 29th September, 2000 ref. number OS/PRS/PN/153/VoI.lll/164 also renews the commencement date of the limitation period.

2. The decision of the learned trial Judge is against the weight of evidence.”

Pursuant to the rules of this court, the parties filed and exchanged their respective briefs of argument. In the appellant’s brief the following issues are set down as calling for determination in this appeal, to wit:

“(i) Considering the totality of the evidence, whether lower court rightly struck out the suit without allowing counsel to address him on the issue of statutory limitation of action.

(ii) Whether or not the debt is statute barred.”

with issue No. (1) In the respondents’ brief. On issue No. (1), the appellant’s counsel submitted that it is trite law that when a Judge raises an issue on a point of law Suo motu in a case, he ought to call on counsel to both parties to address him on such issue before ruling on it.

For the respondents, it was argued that issue one bothers on the jurisdiction and competence of the lower court to adjudicate on the application before it. It was contended that the lower court has no jurisdiction to try a case that is statute barred.

I consider issue number one in both briefs to be very fundamental and germane to this case. Its resolution should determine this case one way or the other.

At page 20 lines 5 to 11 of the records, the learned trial Judge had this to say:

“From the exhibits and affidavit filed before the court, there is a grey area which both learned counsels (sic) did not address their minds to namely by exhibit ‘B’ the agreement dated 14/9/92. Notice of arbitration is 18/10/2000 almost 8 years after the accrual of right of action therefore outside the period of limitation, Cap. 64, Laws of Oyo State as applicable in Osun State.”

It is manifest from the above statement of the learned trial Judge that he raised the limitation law vis-a-vis the case before him Suo motu without giving the counsel to both parties the oppurunity to address him on it. This to my mind is wrong in law and it is in breach of the principle of fair hearing.

In the case of Hon. Emmanuel Oseloka Araka v. Ambrose Nwankwo Ejeagwu (2000) 12 SC (Pt. 1) page 99 at page 107; (2000) 15 NWLR (Pt. 692) at 700, Katsina-Alu, JSC said:-

“The court below raised the issue of abandonment of ground 2 suo motu without giving counsel for the parties an opportunity to be heard on the point. When an issue is not placed before an appellate court, it has no business whatsoever to deal with it. Also, on no account should a court of law raise a point suo motu no matter how clear it may appear to be and proceed to resolve it one way or the other without hearing the parties, Particularly, the party that may be adversely affected as a result of the point so raised. If it does so, it will be in breach of the parties’ right of fair hearing. In the instant case, the abandonment of ground 2 was not an issue before the court below. Infact the said ground 2 was the main thrust of the appeal. The Court of Appeal was therefore in grave error in striking out ground 2.”

The above statement of Katsina-Alu of the Supreme Court holds good for the case in hand. It is not in doubt that the question of whether or not the claim of the appellant was statute barred was not placed before the lower court. Since the lower court raised it suo motu, it is only fair that the – court should hear counsel to the parties on the matter. See also Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167; Oro v. Falade (1995) 5 NWLR CPt. 396) 385; Oje v. Babalola (1991) 4 NWLR CPt. 185) 267. It seems to me therefore that this appeal succeeds on issue number one alone. A consideration of issue number two in both briefs will amount to a barren exercise as it cannot change the conclusion I have reached above. The appeal is therefore allowed as it is meritorious. However, that is not all. The matter before the lower court was not completed because of the grave procedural error committed by it. The justice of this matter demands that the case should be remitted to the lower court for retrial before another Judge at the Oshogbo High Court.

---

Other Citations: (2004)LCN/1663(CA)

God’s Little Tannery V. Christopher Nwaigbo (2004)

LawGlobal-Hub Lead Judgment Report

KEKERE-EKUN, J.C.A.

This is an appeal against the decision of the Kano State High Court, sitting at Kano, in suit No. K/238/96 delivered on 27/6/97. The plaintiff, who is the present respondent claimed against the defendant who is the present appellant under the undefended list as follows:

“The plaintiff’s claim against the defendant is for the sum of N882,569.00 (Eight hundred and eighty-two thousand, five hundred and sixty-nine Naira) being the outstanding balance of the sum of N1,432,569.00 (One million, four hundred and thirty-two thousand, five hundred and sixty-nine Naira) being the value of the various electrical equipments and spare parts supplied to the defendant on credit at its request between 14th June, 1995, and the 10th October, 1995, by the plaintiff. The plaintiff also claims interest on the said sum of N882,569.00 at the rate of 21% per annum from 10th October, 1995, till judgment and 10% till judgment debt is liquidated wholly.”

In support of the writ of summons, the plaintiff filed a 13-paragraph affidavit with 56 annexures marked CN1-CN56. The annexures consist of credit sales invoices and delivery notes in respect of sundry electrical items supplied to the defendant by the plaintiff.

Upon being served with the writ of summons and accompanying affidavit the defendant filed a notice of intention to defend supported by a 5-paragraph affidavit. He subsequently filed a 5-paragraph further and better affidavit in support of the notice of intention to defend with one annexure marked A. In response to the further and better affidavit, the plaintiff filed a 9-paragraph further and better affidavit in support of the writ of summons.

The suit was initially fixed for hearing on 23/5/96. However, after several adjournments it was eventually heard on 27/6/96. On that day, learned Counsel to the plaintiff addressed the court on why the suit should be heard on the undefended list, while learned Counsel to the defendant submitted that based on the affidavits before the court, the suit ought to be transferred to the general cause list for hearing. In the course of his submissions, learned Counsel to the defendant sought an adjournment in order to prepare a “proper affidavit” in respect of discrepancies, which he alleged he had just noticed in the accounts. The application was refused.

Thereafter, learned Counsel to the defendant concluded his submissions. The learned trial Judge at page 77 of the record entered judgment in favour of the plaintiff as follows:

“The court therefore gives judgment in favour of the plaintiff for the sum of N882,569.00 against the defendant.

The defendant will also pay 10% interest on the amount per annum as from today until the whole judgment debt is liquidated.

The defendant will also pay N3,000.00 as costs for filing fees, out of pocket appearance and expenses.”

The defendant/appellant being dissatisfied with the judgment appealed to this court by his notice of appeal dated 3/7/96, containing three grounds of appeal. By a motion on notice dated 27/4/98, the appellant sought leave to file and argue two additional grounds of appeal and an order deeming as properly filed and served the additional grounds of appeal attached to the affidavit in support of the motion. The application was granted as prayed on 24/9/98.

In accordance with the rules of this court the appellant filed a brief of argument on 21/1/99 and identified 5 issues for determination as follows:

“1. Whether the appellant (sic) notice of intention to defend and supporting affidavit of the 23rd day of May, 1996, and the further and better affidavit of the 30th May, 1996, disclosed a defence on the merit to justify a transfer of the suit to the general cause list.

2. Whether the trial Judge scrutinised or considered the affidavit evidence adduced by both parties, before arriving at its judgment on the 27th day of June, 1996.
3. Whether the learned trial Judge exercised its discretion judiciously and judicially in refusing the oral application of the plaintiff counsel for an adjournment on the 27th day of June, 1997, to enable him file a further and better affidavit.
4. Whilst from the additional ground of appeal filed with the leave of this Honourable Court on 24th day of September, 1998, a further issue could be crystallised. Whether there was a conflict in the affidavit evidence of the parties and if there is an answer in the affirmative, could the Honourable trial Judge still proceed to enter judgment on the undefended list?
5. Whether the Honourable Court had the requisite jurisdiction to entertain this suit, when the respondent has filed (sic) to pay the appropriate filing fees, which is condition precedent to the vesting of jurisdiction on the Honourable Court.”

The respondent also filed a brief of argument on 2/7/01 and adopted the 5 issues formulated by the appellant. He also gave notice of preliminary objection to the grounds of appeal. He argued the preliminary objection in his brief of argument and in his oral argument before the court. The grounds of the objection as stated at pages 2-3 of the respondents brief are as follows:

“i. The two additional grounds of appeal are fresh points on appeal and of which the leave of this Honourable Court, must first be sought and obtained before it can be canvassed, this court has no jurisdiction to entertain it.

ii. The mere fact that leave to file and argue additional grounds of appeal was sought and obtained does not obviate the necessity to obtain leave to argue the additional grounds of appeal as they are fresh points.

iii. That where an appellant decides to appeal against an interlocutory decision of a lower court together with a final decision, the appellant is duty-bound to seek leave to appeal against the same when the time as provided under the Court of Appeal Act has lapsed.”

The appellant filed a reply brief, deemed filed on 21/9/04 wherein he responded to the preliminary objection.

The appeal was heard on 7/10/04. Learned counsel for the respondent relied on the preliminary objection contained in his brief of argument and urged the court to strike out all the grounds of appeal and the issues formulated thereon. Learned counsel to the appellant adopted and relied on his brief and his reply brief and urged us to allow the appeal. Learned counsel to the respondent adopted his brief of argument and urged us to dismiss the appeal.

In support of the preliminary objection, learned counsel to the respondent submitted that an issue not raised before nor pronounced upon by the lower court cannot be taken before the appellate court without leave of that court being sought and obtained. He relied on Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523; Akpabio v. State (1994) 7 NWLR (Pt.359) 635. He submitted that in the instant case, the appellant did not obtain the leave of this court to raise ground 6 as an additional ground of appeal and canvassed as issue no. 5 in the appellant’s brief of argument. He urged the court to deem issue No. 5 as raised in the appellant’s brief as incompetent and to discountenance all the arguments offered in respect thereof. He relied on the following cases: Egbunike v. A.C.B. Ltd. (1995) 2 NWLR (Pt.375) 34; U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) 558; Abaye v. Ofili (1986) 1 NWLR (PU5) 134.

He further contended that grounds 1-6 are incompetent for non-compliance with the provisions of Order 3 rule 2(4) of the Court of Appeal Rules, because the allegations contained therein are vague and general. He urged the court to strike them out. He submitted that the grounds of appeal allege errors in law that are not supported by the passages of the judgment where the errors are contained. He submitted that this violates the provisions of Order 3 rule 2(2) of the Court of Appeal Rules and urged the court to strike them out. He cited the case of: Amojaine v. Eguegu (1996) 1 NWLR (Pt.424) 341 at 348-349 H-A in support of this submission. He also argued that the particulars in support of the grounds are mere narratives.

The third ground of the objection is that ground 1 of the notice of appeal, which is in respect of an interlocutory decision, is incompetent because the appellant failed to seek leave to appeal against that decision, the time within which to do so pursuant to section 25 of the Court of Appeal Act having lapsed. Learned Counsel to the respondent therefore urged the court to strike out ground 1 of the notice of appeal and issue No.3 formulated in relation thereto. In response, learned Counsel to the appellant urged the court to discountenance the preliminary objection on the ground that the respondent failed to comply with the provisions of Order 3 rule 15 of the Court of Appeal Rules, which requires that a motion on notice should be filed after the objection has been included in the brief and oral argument entertained in respect thereof. In support of this contention he relied on: Odjegba v. Odjegba (2004) 2 NWLR (Pt. 858) 566, (2003) FWLR (Pt.187) 802 at 815-816 E-E; Okolo v. Union Bank of Nigeria Ltd. (1998) 2 NWLR (Pt.539) 618; Arewa ile Plc. v. Abdullahi & Bros. Ltd. (1998) 6 NWLR (Pt.554) 508.

Alternatively, he submitted that the appellant duly sought and obtained leave to file and argue the additional grounds of appeal on 24/9/98, which application was not opposed by the respondent. He submitted that in any event the additional grounds of appeal raised the issue of jurisdiction, for which leave is not required. He relied on: Michael v. Yousuo (2004) 15 NWLR (Pt. 895) 90, (2004) FWLR (Pt.209) 1015 at 1023 B-C.

With regard to the respondent’s submission that the grounds of appeal do not comply with Order 3 rule 2 of the Court of Appeal Rules, he submitted that technicalities should not be allowed to defeat substantial justice. He argued that the respondent is under no misapprehension as to the purport of the issues distilled from the grounds of appeal. Learned Counsel to the appellant submitted that to strike out the grounds of appeal on this ground would occasion a serious miscarriage of justice to the appellant and would negate the decision of the Supreme Court in: Humbe v. Hueze (2001) 4 NWLR (Pt. 703) 372, (2001) FWLR (Pt.42) 1 at 11-12 H-C. He also cited the case of: Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253, (2000) 2 SCNJ 180. He urged the court to discountenance the preliminary objection.

I have considered the submission of learned Counsel to the appellant, challenging the competence of the preliminary objection. A similar objection was raised in the case of: Okolo v. Union Bank of Nigeria Plc. (2004) 3 NWLR (Pt. 859) 87, (2004) 1 SC (Pt.1) 1. His Lordship Uthman Mohammed, JSC had this to say at page 24 lines 10-16:

“With respect to the learned Justice, the respondent had raised the preliminary objection in the respondent’s brief and the learned counsel for the appellants had treated the issue in the plaintiffs/appellants’ reply brief. The Court of Appeal is therefore wrong to say that the respondent did not comply with the provisions of Order 3 rule 15(1) of the Court of Appeal Rules.”

In the present case, the preliminary objection was raised in the respondent’s brief. The appellant reacted to it in its reply brief. Learned Counsel to the respondent also addressed the court on the objection at the hearing of the appeal. In the circumstances and guided by the above authority, I hold that the preliminary objection is competent.

Although learned Counsel to the respondent objected to the two additional grounds of appeal filed, his argument at page 3 paragraph 5(A) of his brief relates only to the second ground, which reads as follows:

“That the Honourable trial Judge lacked jurisdiction, to adjudicate over the dispute and grant the respondent the relief claim (sic).

Particulars

(a) The respondent in order to obtain the relief claimed before the court must comply with Order 54 rule 1(1) of the High Court of Kano State (Civil Procedure) Rules, 1988, as amended by Civil Procedure Rules (Amendment) Edict No.2, 1991 as regards appropriate filing fees.

(b) That the payment of the sum of N2,660.00 by the respondent, without leave of the trial court for a claim of N822,569.00 is inadequate and a gross non-compliance with the legislation above listed.

(c) That the non-payment of the proper filing fees by virtue of the Supreme (sic) decision of Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252, (1996) SCNLR 1 has the effect of divesting the court with (sic) the necessary jurisdiction to entertain the claim of the respondent.”

With regard to this additional ground of appeal (referred to in the respondent’s brief as ground 6), the issue to be determined is whether it was an issue raised or argued before the lower court and if not whether leave was sought to raise it as a fresh issue before this court.

The reason for this can be found in the following cases: Obioha v. Duru (1994) 8 NWLR (Pt. 365) 631, (1994) 10 SCNJ 48 at 64; Adio v. State (1986) 2 NWLR (Pt.24) 581-588, where it was held that an appellant will not be allowed to raise, on appeal, a question which was not raised or argued in the court below without first applying for and obtaining the leave of this court. It is also well settled that a point not taken in the trial court cannot, without leave of the Court of Appeal be taken for the first time in the Court of Appeal. See Alade v. Alemuloke (1988) 1 NWLR (Pt.69) 207 at 218 and Ajuwon v. Adeoti (1990) 2 NWLR (Pt.132) 271. It is equally settled that the application for leave to argue fresh issues should be made by way of motion and must be duly granted before the date of arguing the appeal. See Lebile v. Regd. Trustees of E & S & Ors. (1996) 2 NWLR (Pt.431) 494. See the decision of this court per Ba’aba, JCA in K.B. Dallaz Motors Ltd. v. S.A. Borokini & 2 Ors. suit No. CA/K/346/2001 delivered on 13/5/04.

I have carefully examined the record of proceedings, particularly the affidavits of the defendant/appellant at pages 68-72 and pages 75-76 thereof wherein learned counsel to the defendant/appellant addressed the court.

The issue of the payment of the appropriate filing fees was neither raised nor argued before the court below. It is therefore, a fresh issue being raised for the first time before this court. It is contended on behalf of the appellant that the payment of prescribed filing fees is a condition precedent, which affects the jurisdiction of the court to entertain the claim and that being an issue of jurisdiction no leave is required even where it is being raised for the first time on appeal. It was held in the case of Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252 at 292 per Iguh, JSC inter alia that:

“It is the responsibility of the plaintiff inter alia to pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the court’s judicial functions to commence. A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the court or such fees are payable by any Government Ministry or non-Ministerial Government Department or Local Government pursuant to the provisions of the said High Court Rules of Anambra State.”

The Supreme Court in the recent case of: Okolo v. Union Bank of (Nig.) Plc. (2004) 3 NWLR (Pt. 859) 87, (2004) 1 SC (Pt.1) 1 at 9, cited the above decision with approval. If issue No.5, which is predicated on the second additional ground of appeal, alleges non-payment of prescribed filing fees, I would agree with learned counsel to the respondent that it raises the issue of jurisdiction. On the authority of Obiakor v. The State (2002) 10 NWLR (Pt. 776) 612, (2002) 6 SC (Pt.11) 33 at 37 lines 38-42 the appellant would be entitled to raise it for the first time on appeal without the leave of this court.

However, from page 3 of the record and pages 18-23 of the appellant’s brief, it is clear that this is not a case of non-payment of filing fees in respect of a claim. The fees as assessed, paid and receipted are endorsed on the writ of summons. It is the appellant’s contention that the filing fees paid are inadequate. Inadequacy of fees paid and the failure or refusal to pay any fees at all are no doubt two entirely different considerations. In the case of: A.C.B. Ltd. v. Henshaw (1990) 1 NWLR (Pt.129) 646 at 651 A-B His Lordship, Uwaifo, JCA (as he then was) said:-

“I do not agree with counsel for the appellant that this is a question of jurisdiction … Failure to fulfil any of the alternatives is, in my view, a mere irregularity which when not taken up timeously or then acquiesced it becomes incapable of affecting the proceedings in any way: See Sonuga & Ors. v. Anadein & Ors. (1967) 1 All NLR 91; (1967) NMLR 77; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195 at 202-203, (1985) 2 SC 260; Noibi v. Fikoiati (1987) 1 NWLR (Pt. 52) 619 at 632; Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 405-406.”

On the same page of the report, Oguntade, JCA at paragraph G said:

“But as my learned brother has pointed out in the lead judgment, even if the defendant/respondent had not paid the requisite court fees, this was a matter to be settled before the lower court. The usual remedy being an order by the lower court that the appropriate fees or any shortfall be paid. It certainly has nothing to do with the jurisdiction of the lower court to entertain the counter-claim”

See also: Oguamanam Eke v. Nzekwe Eluwa & Another (2000) 14 NWLR (Pt.688) 560 per Akpiroroh, JCA.

In light of the foregoing authorities, I hold that the alleged inadequacy of filing fees paid by the respondent does not raise an issue of jurisdiction. It is a matter that ought to have been taken up at the court below. It is being raised for the first time in this court and no leave was sought or obtained to raise it as a fresh issue before this court. I therefore hold that, ground 2 of the additional grounds of appeal and issue No.5 formulated thereon are incompetent and are hereby struck out.

Learned Counsel to the respondent also raised the issue of non-compliance with Order 3 rule 2(2) and (4) of the Court of Appeal Rules, which provide:

“(2) If the grounds of appeal allege misdirection or error in law, the particulars and nature of the misdirection or error shall be clearly stated.

(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted.”

I have considered the grounds of appeal filed and agree that some of them are general in terms such as ground 3 and additional ground 1. However, despite this shortcoming it is possible to determine the main complaint of the appellant. I am of the view that the inelegance in drafting is the mistake of counsel, which should be overlooked in the interest of substantial justice. See: A. -G., Federation v. A.N.P.P. (2003) 15 NWLR (Pt. 844) 600 at 645 paras G-H, (2003) FWLR (Pt.l67) 839 at 876-877 H-A. The objection is therefore overruled in this regard.

The third and final issue raised in the preliminary objection is the failure of the appellant to seek leave to appeal against the interlocutory decision of the trial Judge, refusing an application for adjournment, the time for doing so having elapsed by virtue of section 25 of the Court of Appeal Act. Issue No.3 in the appellant’s brief is predicated on ground 1 of the notice of appeal. By virtue of section 242(1) of the 1999 Constitution, the lower court’s ruling on the application for an adjournment in the course of proceedings is an interlocutory decision. The appellant therefore requires leave to appeal against it. Pursuant to section 25(2)(a) of the Court of Appeal Act, the time within which to apply for leave is 14 days. There is nothing in the record of proceedings from the lower court or in the record of this court to show that leave to appeal against the interlocutory decision of the lower court was sought or obtained.

Ground 1 of the notice of appeal is therefore incompetent and issue No.3 formulated thereon cannot stand. Ground 1 of the notice of appeal and issue No.3 formulated thereon are accordingly struck out.

From the issues for determination formulated by the appellant in his brief, with the exception of issue Nos. 3 and 5, which have been struck out, I am of the view that issues for determination in this appeal are:

1. Whether the notice of intention to defend and supporting affidavit of 23/5/96 and the further and better affidavit of 30/5/96 disclosed a defence on the merit to justify a transfer of the suit to the general cause list.
2. Whether the trial Judge scrutinised or considered the affidavit evidence adduced by both parties before arriving at its judgment on the 27th day of June, 1996.
3. Whether there was a conflict in the affidavit evidence of the parties and if so could the Honourable trial Judge still proceed to enter the judgment on the undefended list?

I shall now consider the remaining issues for determination seriatim.

Issue No.1

In order to properly appreciate the submissions made in respect of this issue it is necessary to reproduce the relevant paragraphs of the various affidavits filed at the court below in support of the writ of summons and in support of the notice of intention to defend. In paragraphs 4-13 of the affidavit in support of the writ of summons deposed to on 22/4/96 it is averred as follows:

“4. That between 14th June, 1995 and 10th October, 1995, the plaintiff supplied the defendant on credit at its request various electrical equipment and spare parts amounting to N1,432,569.00 (One million, four hundred and thirty-two thousand, five hundred and sixty-nine Naira only) which is made up as follows: – the details of credit invoices and delivery notes are set out in sub-paragraphs (a) to (b) and annexed thereto as exhibits CN1-CN56 respectively.)

5. That all the above exhibits CN1-CN56 were issued to the defendants evidencing the supply and delivery of all the items contained therein on credit at the request of the defendant.
6. That the total value of the electrical items supplied to the defendants at its request amounts to N1,432,569.00 (One million, four hundred and thirty-two thousand, five hundred and sixty-nine Naira only).
7. That I am informed by Barrister I. N. Ambule and I verily believe him that the defendant has no defence to this suit.
8. That on 25/10/95 after much pressure was mounted on the defendant for payment it paid the sum of N300,000.00 leaving the balance of N1,132,569,00 outstanding.
9. That on 16/12/95 another sum of N150,000.00 was paid to the plaintiff leaving the sum of N982,569.00 outstanding as the balance due to the plaintiff.
10. That on 25/3/96, another sum of N100,000.00 was paid after several repeated oral and written demands by the plaintiff leaving the balance of N882,569.00 outstanding.
11. That in spite of further demand for payment of the outstanding sum of N882,569.00, the defendant has bluntly refused to yield further payment to the plaintiff.
12. That as a result, I briefed my solicitors Messrs. J. B. Majiyagbe & Co. who then wrote a letter of demand to the defendant, but refused to burge (sic). The said letter which was copied to me is herewith attached and marked as exh. CN56.
13. That I swear to this affidavit in good faith, believing all the above stated facts to be true and correct in accordance with the Oaths Act, 1963, as amended.”

In paragraph 3 of the affidavit in support of the notice of intention to defend, deposed to on 23/5/96 it was averred as follows:

“That I am informed by Mr. Kofi Ndubuisi Ndegha, Managing Director to the defendant on the 21st day of May, 1996, at No. 6 Ibrahim Taiwo Road, Kano, around 7.30 p.m. during the course of interview and I verily believe him to be true as follows:

(a) That [on] or about the 12th of June, 1995, he on behalf of the defendants entered into a civil agreement wherein the plaintiff agreed to supply him goods.

(b) That it was a term of the agreement that upon supply of the said goods, same would be inspected, and approved by both parties before payment would issue from the defendant.

(c) That upon the supply of the goods and inspection, it was discovered that the goods supplied were not in the nature and fit for the purpose for which they were supplied.

(d) That it was a condition precedent that the goods be produced from China, but most of the goods supplied were of Taiwanese origin and thus a breach of the fundamental terms of the agreement.

(e) That upon supply of the goods he did consult an expert who informed him that most of the goods were goods which had been recalled by their manufacturer as they in their usage had proved [to] be very combustible and are not merchantable and had been replaced by the manufacturer with new ones.

(f) That when he observed this, he made payments for the ones on which both parties approved and have called on the plaintiff to come and pack the remainder unused.

(g) That the defendants have had to buy alternative to those goods from other supplier and would be placed in jeopardy, if he had to pay for these goods.

(h) That the defendant would counter-claim for general damages for breach of contract.

(i) That the defendant have a defence to this suit.”

The defendant further averred in paragraph 4(a), (b), (c), (d), (e) and (g) as follows:

(a) That when I discovered that the goods supplied were not in the nature and fit for the purpose for which they were supplied, Mr. Chuks Uduagha, the Purchasing Manager caused a letter to be written to the plaintiff complaining of same and advised that they come and carry the rejected goods and replace them with the proper ones. The letter dated 5/8/95 is hereby attached and marked Annexure A.

(b) That the plaintiff came and, apologised and carried some of the goods and promised that he will replace the remaining ones as soon as possible.

(c) That when the ones he replaced were inspected by technicians, they discovered that some of the replaced ones were used products that were painted by the plaintiff. The old but painted items are still in the factory as they are not used.

(d) That the remaining ones he promised to replace as soon as possible is yet to be replaced and the defendant has bought them from some other places at far more cheaper prices.

(e) That the plaintiff in spite of his old age has been out rightly fraudulent and mischievous.

(f) …

(g) That the defendant is not indebted to the plaintiff in the sum claimed or any sum at all.”

The plaintiff/respondent in a further and better affidavit in support of the writ of summons denied the averments in the defendants’ various affidavits and denied that the defendant at any time invited him through Annexure A or through any other means to come and take away any of the items supplied to it.

It is contended on behalf of the appellant that the notice of intention to defend and the supporting affidavits raised various defences in law and questions of fact, which ought to be adjudicated upon at a full trial under the general cause list and which ought not to have been resolved on the conflicting affidavits of the parties. In support of this contention learned Counsel relied on: U.N.N. v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt.119) 19 at 29 D-E; 322 Nigerian Weekly Law Reports 9 May 2005 (Kekere-Ekun, J.C.A.) A.C.B. Ltd. v. Gwagwada (1994) 5 NWLR (Pt.342) 25 at 36 C-D.

He referred to the following issues:

(a) The merchantability and suitability of the goods for the purpose for which they were purchased under the Sale of Goods Act.

(b) Whether the goods met the specification requested by the appellant.

(c) That the appellant informed the respondent of the rejected goods through a document pursuant to which the respondent apologised and came and carried away some of the goods and promised to replace the remaining.

(d) Fraud that the replaced goods were inspected by a technician and discovered to be used goods which were painted to deceive and defraud the appellant.

He submitted that these issues could not be adjudicated upon on affidavit evidence and ought to have been transferred to the general cause list. He also relied on: Agwuneme v. Eze (1990) 3 NWLR (Pt.137) 242 at 254 and 256 F-G. He urged the court to resolve this issue in favour of the appellant.

In response, learned Counsel to the respondent submitted that the undefended list procedure is a special procedure designed to aid the courts in the speedy disposal of cases in a claim for a debt or liquidated demand. He referred to: Franchal (Nig.) Ltd. v. N.A.B. Ltd. (1995) 8 NWLR (Pt.412) 176 at 188 and Peter Tiwell (Nig.) Ltd. v. Inland Bank (1997) 3 NWLR (Pt.494) 408 at 419. He submitted that the transfer of a claim from the undefended to the general cause list is not automatic and that the defendant is required to tackle the plaintiff’s claim in every material particular and demonstrate to the court that he has a defence on the merit.

Learned Counsel noted that the plaintiff/respondent annexed 56 exhibits to his affidavit in support of the writ of summons in respect of numerous goods supplied to the defendant between June, 1995 and October, 1995. He submitted that in the face of these specific documents the defendant’s depositions in paragraph 3(c), (d), (e) and (f) of the affidavit in support of its notice of intention to defend are feeble and do not meet the standard of a defence on the merit. He argued that the averments in those paragraphs lack particulars, such as the specific goods among those contained in exhibits CN1-CN56 that were not fit for the purpose for which they were supplied or that were of Taiwanese origin; that the name and qualification of the engineer who allegedly inspected the goods was not stated. Learned Counsel was of the view that the engineer ought to have deposed to an affidavit. He argued that the three instalments paid by the appellant as averred in paragraphs 8, 9 and 10 of the respondent’s affidavit in support of the writ were well rounded lump sums that do not reflect any discrimination on the part of the appellant between payment for goods that were accepted and those that were rejected. He submitted further that the letter Annexure A annexed to the appellant’s further and better affidavit at page 72 of the record, allegedly sent to the respondent complaining about the quality of the items supplied is dated 5/8/95 whereas the evidence on record showed that the appellant continued to receive and accept supplies from the respondent up till 10/10/95. He also noted, as found by the learned trial Judge at page 76 of the record, that there was no evidence before the court that the letter was in fact received by the appellant.

Learned Counsel to the respondent urged this court to resolve this issue in favour of the respondent and to hold that the appellant’s affidavit in support of its notice of intention to defend failed to disclose a defence on the merit to warrant the transfer of the suit to the general cause list.

In order to resolve this issue it is necessary to consider the requirements of the undefended list procedure.

Order 23 rules 1, 2, 3 and 4 of the Kano State High Court (Civil Procedure) Rules, 1988, provide:

“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “undefended list”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.

2. There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.

3(1) If the party served with the writ of summons and affidavit delivers to the Registrar, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.

(2) Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary cause list; and the court may order pleadings or proceed to hearing without further pleadings.

4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”

The position of the law with regard to the undefended list procedure was succinctly stated by His Lordship, Uwaifo, JCA (as he then was) in the case of: U.N.N. v. Orazulike Trading Co. (1989) 5 NWLR (Pt.l19) 19 at 29 D-E as cited by learned Counsel to the appellant at pages 4-5 of the appellant’s brief. It is however equally well settled that:

“Under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiff’s claim and affidavit and state clearly and concisely what the defence is and the facts relied on to support it. It should also state whether the defence goes to the whole or part of ‘the claim, and in the latter case it should specify the part.

A mere general denial that the defendant is not indebted will not suffice unless the grounds on which the defendant relies as showing that he is not indebted are stated.” See: Peter Tiwell (Nig.) Ltd. v. Inland Bank (Nig.) Ltd. (1997) 3 NWLR (Pt.494) 408 at 419.

It was held in: Nya v. Edem (2000) 8 NWLR (Pt.669) 349 at 357-358 G-A, that the requirement of Order 23 rule 3 of the Cross River High Court (Civil Procedure) Rules, 1987, which are in pari materia with Order 23 rule 3 of the Kano State High Court (Civil Procedure) Rules, 1988, is not satisfied by a general statement that the defendant has a good defence to the action if such general averment is unsupported by particulars which, if proved would constitute such a defence. It was held in: Franchal (Nig.) Ltd. v. N.A.B. Ltd. (1995) 8 NWLR (Pt.412) 176 at 188 B, that the defendant must raise in his affidavit bona fide issues for trial between the parties.

It is against the backdrop of these authorities that the affidavits filed in support of the notice of intention to defend must be considered.

The appellant contends that the issue of merchantability and suitability of the goods for the purpose for which they were purchased were raised in its affidavits and constitute sufficient grounds to warrant the transfer of the suit to the general cause list. The factor to be considered in this regard is whether in raising the issue the appellant “condescended upon particulars” or whether it merely made general statements. There is no doubt that in an affidavit disclosing a defence on the merit a defendant does not need to show a cast iron defence to the plaintiff’s claim. He must however, show prima facie that he has a defence to the plaintiff’s action. See: Nya v. Edem (supra); Jipreze v. Okonkwo (1987) 3 NWLR (Pt.62) 737.

In paragraph 3(c) of the affidavit in support of the notice of intention to defend it is averred that it was discovered that the goods supplied were not fit for the purpose for which they were purchased. The defendant did not refer to any of the items contained in exhibits CN1- CN56 as falling within this category. This is a serious omission having regard to the averment in paragraph 3(d) and (e) of the same affidavit that most of the goods were of Taiwanese origin and had been recalled by the manufacturer. Those goods found to be of Taiwanese origin or recalled by the manufacturer were not specified from among the numerous goods supplied and evidenced by exhibits CN1 – CN56. It was averred in paragraph 3(f) of the same affidavit that the defendant only paid for those items approved by both parties. The items so paid for are not stated. In paragraph 3(g) of the aforesaid affidavit, it is averred that the defendant had to buy alternative goods from another supplier. No receipt was annexed to this affidavit to show that indeed alternative goods were purchased. I am of the view that the above averments are mere general statements. They have not dealt specifically with the plaintiff’s claim.

As observed by learned Counsel to the respondent, the defendant did not link the payments he made amounting to N550,000.00 as averred in paragraphs 8, 9 and 10 of the plaintiff’s affidavit in support of the writ to specific invoices or delivery notes as contained in exhibits CN1 – CN56, nor did he indicate which of the items supplied he accepted as meeting his requirements and which ones he rejected.

It is also contended on behalf of the appellant that the rejected goods were communicated to the respondent vide a letter dated 5/8/95, which can be found at page 72 of the record; that he apologized and carried away some of the goods and promised to replace the remaining. (See paragraph 4(a) and (b) of the defendant’s further and better affidavit). The letter, Annexure A is couched in very general terms. Paragraphs 2 and 3 thereof read as follows:-

“Our technician who came to inspect and install them discovered to our shock and dismay that most of the goods were cheap and inferior materials made in Taiwan instead of the Chinese products that were agreed upon by you and our Managing Director.

We were also informed by the technicians that most of the goods were goods which had been racked (sic) by the manufacturers as they in their usage had proved to be very combustible and are not marketable and had been replaced by the manufacturers.”

In his judgment at page 77 of the record lines 15-21 the learned trial Judge held thus:

“In fact, even if the letter has been shown to be delivered to the plaintiff it would not amount to a complete defence.

The defendants have alleged that their engineer have reflected (sic) these goods but they have not mentioned the goods or the engineers. Their defence must therefore fall.”

Indeed, the letter under reference is as general in its contents as the averments in the defendant’s affidavits. The specific goods allegedly inspected and found wanting were not stated, the identity of the engineer or technician who carried out the inspection is not disclosed. I cannot therefore fault the finding of the learned trial Judge that even if the letter was shown to have been delivered to the plaintiff it would still not have amounted to a defence on the merit. This is particularly so having regard to the fact that notwithstanding Annexure A dated 5/8/95, the defendant continued to accept deliveries from the plaintiff up till October, 1995, as evidenced by exhibits CN39-CN55.

It has also been argued on behalf of the appellant that the fact that the issue of fraud was allegedly raised in the affidavits in support of the notice of intention to defend is sufficient to warrant the transfer of the suit to the general cause list. In paragraph 4(c) of the further and better affidavit, found at page 71 of the record, it is averred that the goods allegedly replaced by the defendant were found to be used products that were painted over by the plaintiff. Again the actual goods that fall within this category were not specified. There is no document exhibited by the defendant to show that this issue was taken up with the plaintiff at any time. Surely where an allegation of fraud is being made the accuser must “condescend upon particulars” being an allegation of the commission of a criminal offence. The defendant failed to do so in the instant case.

In conclusion on this issue, I hold that the appellant’s affidavits in support of his notice of intention to defend did not disclose a defence on the merit to warrant the transfer of the suit to the general cause list. I therefore resolve this issue against the appellant in favour of the respondent.

Issue No.2

Whether the trial Judge scrutinized or considered the affidavit evidence adduced by both parties before arriving at its judgment on the 27th day of June, 1996.

On the duty of the court to scrutinize the affidavit evidence before it before coming to a decision one way or the other as to whether to transfer a suit to the general cause list, learned Counsel to the appellant relied on the decision of this court in: Azumi v. Pan African Bank Ltd. (1996) 8 NWLR (Pt.467) 462 at 472 B-F. He submitted that a proper scrutiny of the affidavits of the plaintiff would have revealed a discrepancy between the indebtedness of the defendant per the attached annexures and the total amount claimed as deposed to in paragraph 6 of the affidavit in support of the writ of summons. He quoted part of the judgment of the lower court at page 77 of the record thus:

“This is also a case on the undefended list, which is to be heard on affidavit and documentary evidence. The court must hold that the defendants have been served with the writ and affidavits since 23/5/96 and they have been served with the counter-affidavit since 4/6/96, but they have failed to reply; so the court cannot grant them any indulgence. In fact even if the letter has been shown to be delivered to the plaintiff it would not amount to a complete defence.”

Learned Counsel submitted that the last sentence is an indication that the learned trial Judge went into the merits of the case and reached a conclusion that the defence was not complete. He argued that this is contrary to the decision of this court in: U.N.N. v. Orazulike (supra) at 31 A-B. He submitted that the learned trial Judge failed to consider seriously the appellant’s counter affidavit and the defences raised therein. He contended that the learned trial Judge had found that a triable issue had been raised although incomplete. He therefore urged the court to uphold his submission in this regard and to allow the appeal and direct the case to be remitted back to the lower court for trial before another Judge.

In his response, learned Counsel to the respondent urged the court to discountenance the issue of alleged discrepancy between the defendant’s actual indebtedness to the plaintiff as revealed by exhibits CN1 – CN56 and the total amount claimed by the plaintiff in the writ of summons on the ground that the issue was never raised in any of the defendant’s affidavits before the lower court. He referred to the judgment at pages 76-77 of the record wherein the learned trial Judge observed, “The learned Counsel for the defendant also wanted to raise the issue of discrepancy in the list of items and the total amount … All these were not contained in any affidavit” and submitted that the appellant did not challenge this finding in its notice of appeal and is therefore bound by it.

He submitted that under the undefended list procedure, once the court finds that the defendant’s affidavit in support of his notice of intention to defend does not disclose a defence on the merit, the case would be heard under the undefended list and the court would proceed to enter judgment in favour of the plaintiff. He submitted that at this stage the court has no business evaluating the evidence of the parties. He relied on: Nigerian Victory Assurance Co. Ltd. v. Grain Processing Co. Ltd. (1995) 3 NWLR (Pt.386) 671 at 681 and 684 B-C. He submitted that the dictum of Mohammed, JCA in the case of: Azumi v. Pan African Bank Ltd. (supra) cited by learned Counsel to the appellant in support of his contention that the court is obliged to scrutinise the affidavits of the parties, could not be interpreted to mean that the Judge is required to evaluate the affidavit evidence.

With regard to the submission of learned Counsel to the appellant that there were discrepancies between the amount of the defendant’s indebtedness to the plaintiff as shown in exhibits CN1 – CN56 and the total amount claimed in the writ of summons, I have examined the two affidavits filed by the defendant as contained at pages 68-72 of the record. The issue was not raised therein. It was in the course of his oral submissions before the court at page 76 of the record that learned Counsel attempted to raise the issue from the Bar. The learned trial Judge correctly stated in his judgment that the issue was not contained in any affidavit before the court. There was therefore no reason to consider it when entering judgment in favour of the plaintiff.

The other contention of the appellant is that the learned trial Judge did not consider the appellant’s counter-affidavit and the defences raised therein. This view is based on the part of the judgment at page 77 of the record, reproduced earlier in this judgment to the effect that the defendant was served with the plaintiff’s counter-affidavit since 4/6/96 and failed to reply and that even if the letter Annexure A was shown to have been delivered to the plaintiff it would not amount to a complete defence. The letter Annexure was annexed to the further and better affidavit sworn to on 30/5/96 (at page 70 of the record). The plaintiff filed a further and better affidavit in response thereto on 4/6/96 (at page 64 of the record). It was this affidavit wherein the plaintiff averred that Annexure A is an afterthought and that he was never invited to come and take away any of the supplied goods that the trial Judge referred to as not having been replied. His reference to Annexure A which was filed before the further and better affidavit of 4/6/96 shows that the learned trial Judge did in fact consider all the affidavits before him. I agree with learned Counsel to the respondent that having determined that the defendant’s affidavit did not disclose a defence on the merit the next step was for the court to enter judgment in favour of the plaintiff. An evaluation of the affidavit evidence could not arise where no defence on the merit or triable issue was disclosed. I am of the view that this submission is misconceived and has no place in the undefended list procedure. I therefore resolve this issue against the appellant and in favour of the respondent.

Issue No.3

The final issue for determination in this appeal is whether there was conflict in the affidavit evidence of the parties, and if so whether the learned trial Judge could still have entered judgment on the undefended list.

In support of this issue learned counsel to the appellant at pages 15-16 of the appellant’s brief submitted that certain controversial questions of fact arise from the affidavits of the parties, which could only be resolved by oral evidence through a full trial. He referred to the following issues:

1. The terms of the agreement between the parties in the absence of any written contract.
2. The merchantability of the goods supplied.
3. Whether the defendant had ever requested the plaintiff either orally or in writing to come and collect rejected goods and whether any goods were replaced.
4. Whether the transaction was tainted with fraud.
5. Whether the plaintiff ever gave an oral guarantee regarding the quality of the goods.

On the need to resolve conflicts in affidavit evidence by oral evidence learned Counsel referred to: Mbadugha v. Nwosu (1993) 9 NWLR (Pt.315) 110 at 117-118; Ajewole v. Adetimo (1996) 2 NWLR (Pt.431) 391 at 398 BC. He submitted that what the court ought to consider at this stage is whether what was stated in the affidavit if proved by evidence after leave of court would be a good defence. He referred to PAC Enterprises Ltd. v. Carl Ploeter (Nig.) Ltd. suit No. FCA/K/40/83 delivered on 15/3/83 per D.C. Coker, JCA.

In response learned Counsel to the respondent submitted that the issue of the resolution of conflict in affidavit evidence does not arise under the undefended list procedure, because the only issue to be determined is whether the plaintiff has satisfied the court that the defendant has no defence to the action and whether the defendant has shown that he has a defence on the merit.

He submitted that where fraud is alleged it must be distinctly and expressly alleged and proved. He submitted that general allegations of fraud do not meet this requirement. He relied on: Obora v. R.S.H. & P.D.A. (1997) 9 NWLR (Pt.521) 425. He submitted that the learned trial Judge was correct to have disregarded and discountenanced the averments in paragraph 3(c) – (e) of the further and better affidavit because they are general allegations without particulars. He submitted that the alleged defences relating to the merchantability of the goods were not substantiated and were properly discountenanced by the trial Judge.

He submitted further that having regard to the averment in paragraph 3(a) of the affidavit in support of the notice of intention to defend, which refers to an agreement between the parties, no extrinsic evidence would be admissible to add to, vary or subtract from or to contradict the terms of the written agreement. He relied on: U.B.N. v. Ozigi (1994) 3 NWLR (Pt.333) 385. He also relied on section 133(1) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. He submitted that the onus was on the defendant to produce the agreement and that for his failure to produce it the provisions of section 149 (d) of the Evidence Act should be invoked against him.

The state of the affidavits before the court wherein the appellant alleges conflict is that whereas the affidavit in support of the writ of summons filed by the respondent contained averments as to specific facts relating to the transaction between the parties and supported with documentary evidence, the affidavits of the appellant consist of general statements and allegations not supported by any particulars or documentary evidence whatsoever. I have already dealt with this issue in the course of this judgment and do not propose to repeat the exercise. Having regard to the fact that the appellant’s affidavits failed to condescend upon particulars in response to the respondent’s averments, I hold that there was no conflict in the affidavit evidence before the lower court such as to warrant the transfer of the suit to the general cause list. I hold that the learned trial Judge was correct to have entered judgment in favour of the plaintiff on the undefended list. I therefore, resolve this issue against the appellant in favour of the respondent.

In conclusion, I find no merit in this appeal. It is hereby dismissed. There shall be N5,000.00 costs to the respondent against the appellant.

---

Other Citations: (2004)LCN/1661(CA)

Senator I.G. Abana V. Chief Ben Obi & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

By an amended motion on notice filed on the 27th of September, 2004 the appellant, Senator I.G. Abana prayed this Honourable Court for an order setting aside its judgment delivered on the 4th of May, 2004 Coram: Isa Ayo Salami, Saka Adeyemi Ibiyeye, Victor A.O. Omage, M. Datijjo Muhammed and Aminu Sanusi, J.J.C.A. for being a nullity. This application was brought pursuant to Order 1 Rule 19 Court of Appeal Rules 2002, sections 11 and 13 Court of Appeal Act, and sections 6(6)(a) and (b) and 36 ofthe 1999 Constitution of the Federal Republic of Nigeria and the inherent jurisdiction of this court. The grounds for the application as set out in the motion are as follows:

(1) The judgment sought to be set aside is a nullity.

(2) The procedure and proceedings adopted by the Honourable Court on the 6th day of April, 2004 when the court purported to hear the appeal clearly denied the judgment of the 4th of May, 2004 based thereon the character of a legitimate adjudication.

(3) The proceedings of the 6th day of April, 2004 and the judgment of 4th May, 2004 based thereon grossly violate section 36 of the Constitution of the Federal Republic of Nigeria 1999.

(4) The appeal for which judgment was purportedly delivered on the 4th day of May, 2004 had been fully heard by another panel of Justices Coram – O. Opene, B. Akaahs and D. Adeniji, J.J.C.A. and had been reserved for judgment.

(5) The panel of Justices who purportedly delivered the judgment of the 4th of May, 2004 did not hear the matter.

(6) The judgment invariably violates natural justice.

At the hearing of the application, the applicant relied on a 31 paragraph affidavit in support dated 27th of September, 2004 to which are attached the proceedings of the 17th of February, 2004 as exhibit A1 and the proceedings of the 26th of February, 2004 as exhibit A2 a further-affidavit dated 4th October, 2004, annexing the judgment sought to be set aside as exhibit A3, and finally the appellant/applicant’s written address filed on 4/10/2004 in support of this amended motion on notice to set aside judgment in CA/E/EPT/22/2003 delivered on 4/5/2004.

During the hearing of the application, the applicant compressed the six grounds relied upon to set aside into two issues for determination in his written brief as follows:

(1) Whether the judgment sought to be set aside is a nullity considering the procedures and proceedings adopted by the Honourable Court on the 6th day of April, 2004 when the Honourable Court purported to hear the appeal in breach of natural justice thereby denying the judgment of 4th May, 2004 based thereon the character of a legitimate adjudication and contrary to section 36 of the Constitution of the Federal Republic of Nigeria 1999?

(2) Whether the appeal for which judgment was purportedly delivered on the 4th day of May, 2004 having been fully heard by another panel of Justices Coram – O. Opene, B. Akaahs and D. Adeniji, J.J.C.A. and reserved for judgment, renders the judgment purportedly delivered on 4th May, 2004 by a panel which did not hear the matter a nullity?

The appellant’s counsel, Mr. Wole Adebayo in his argument and submission gave five appropriate instances which are well settled in law under which a court can set aside its judgment relying on the case of Igwe v. Kalu (2002) 14 NWLR (Pt. 787) 435 at 453-454 paragraphs F-B, 454, para. C,455, para. B,464, paras. C-E as follows:

(a) When the judgment is obtained by fraud or deceit either in the court or of one or more of the parties, such a judgment can be impeached or set aside by means of an action which may be brought without leave.

(b) When the judgment is a nullity. A person affected by the order of court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside or

(c) When it is obvious that the court was misled into giving the judgment under a mistaken belief that the parties consented to it or

(d) Where the judgment was given in the absence of jurisdiction or

(e) Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.

The learned counsel cited the case of Vulcan Gases Ltd. v. Gessellscihaft Fur Ind. (2001) 9 NWLR (Pt. 719) 610 in support of the contention that a court has inherent power to set aside its own judgment when –

(1) It was obtained by fraud.

(2) If for any other reason it is a complete nullity.

The learned counsel gave the definition of nullity following the case of Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221 particularly at pages 256-257 paragraphs G-B. He also attributed nullity to breach of fair hearing in that any judgment given in breach of the doctrine of fair hearing is a nullity and is capable of being set aside either by the court that gave it or by an appellate court. He emphasized that the twin pillars of fair hearing audi alteram partem and nemo judex in causa sua must be observed if adjudication must be legitimate; justice must not only be done, it must be seen to have been done. The learned counsel argued that the applicant and the Justices were adversaries in view of the suit before the Federal High Court, they persisted in the circumstances in rehearing the appeal in spite of the applicant’s objections on the ground of natural justice. It follows that an element of bias cannot be ruled out in the circumstance of this case. Whereas, a Judge as an arbiter must rule out everything which might engender suspicion or distrust of his impartiality so as to promote the feeling of confidence in which the administration of justice is rooted. It is obvious that audi alteram partem was breached in this case. During the proceedings, emotions became high between the Honourable Justices and the applicant, the court and the counsel as a result of which the two counsel engaged by the applicant had to withdraw their appearance – Babalakin, SAN on the 4th of March, 2004, and Nobis Elendu, Esq. on the 6th of April, 2004. The applicant’s application for adjournment was refused, while C.O. Akpamgbo, SAN had to double as appellant’s counsel by sorting out for court which of the different appellant’s brief of argument to adopt. Consequently, fair hearing failed to occur. The learned counsel conceded the fact that where a brief of argument had been filed and the party is absent, the court may deem the brief adopted, as held in the case of Franchal (Nig.) Ltd. v. N.A.B. Ltd. (2000) 9 NWLR (Pt. 671) 1. The learned counsel concluded that the observance of the twin pillars of natural justice, audi alteram partem and nemo judex in causa sua gives a judgment, the character of legitimate adjudication, which is lacking in this instance. The procedure adopted on the 6th of April, 2004 by the court amidst objections raised by the applicant has raised real likelihood of bias thereby denying the judgment of the 4th of May, 2004 based thereon, the character of a legitimate adjudication. The applicant made reference to the cases of Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419; Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt. 53) 678 and Muabike v. Nwigwe (2000) 1 NWLR (Pt. 642) 620 at 639 para. H in support of fair hearing.

The second issue for determination is whether the appeal for which judgment was purportedly delivered on the 4/512004 having been fully heard by another panel of Justices – Coram: O. Opene, B. Akaahs and D. Adeniji, J.J.C.A., and reserved for judgment renders the judgment purportedly delivered on 4/5/2004 by a panel which did not hear the matter a nullity. In the 1st respondent’s written address in respect of amended motion for setting aside of judgment, the learned counsel for the respondent observed that the earlier motion for setting aside of the judgment filed on the 5/5/2004 is still pending before this Honourable Court and has not been withdrawn by the applicant. The second motion titled amended motion on notice is curious as motion pending in court can only be amended by leave of the Honourable Court. It is presumptuous of the applicant to assume that a yet to-be made application for amendment has been granted or must be granted. Nowhere in the written address did the applicant make any application to withdraw the earlier motion.

In the appellant/applicant’s written reply on points of law, the applicant replied that a motion on notice was filed on the 5/5/2004 while an amended motion on notice was filed on the 27/9/2004. He applied in open court to file an amended motion which the court insisted that the appellant/applicant must file and serve on the 1st respondent that same day. Having filed the amended motion as ordered by court, it takes care of the earlier motion filed such that withdrawal of the original motion does not arise as held by the Supreme Court in the case of Agbabiaka v. Saibu (1998) 10 NWLR (Pt. 571) 534 that once an amendment of court process has been ordered, the effect is that what stood before the amendment is no longer material before the court and no longer defines the issues. Where leave to amend is sought and such is granted by court, the effect is that all previous processes of court are subsumed in the amended process. The amended process takes effect from the time the original processes for amendment were filed even without recourse to withdrawal of the original documents or processes. Maska v. Ibrahim (1999) 4 NWLR (Pt. 599) 415.

In the written reply on points of law, the applicant’s counsel is of the opinion that the 1st respondent wrongly relied on all the cases cited on fair hearing and Order 6 Rules 9(5) of the Court of Appeal Rules, 2002. The applicant expressed his wish to engage another counsel to court and consequently asked for an adjournment of the matter. He expressed his wish not to waive his constitutional right to address the court. Both applicant and counsel were in court and thereby contrary to the situation envisaged by Order 6 rule 9(5). The judgment delivered on the 4/5/2004 is a hasty judgment and a denial of fair hearing.

The 1st respondent has in opposition to the said amended motion of the applicant filed a counter-affidavit of 26 paragraphs to which is annexed exhibit A being a letter written by the Deputy Chief Registrar of the Court of Appeal and a written address. The learned counsel for the 1st respondent, Chief Chris Uche, SAN emphasized that the matter had initially come before a panel of the Court of Appeal – Coram: Justices O. Opene, B. Akaahs, and D. Adeniji, but was not concluded before another panel made up of five Justices of the Court of Appeal took over the hearing of all pending election appeals in the Enugu Division of the Court of Appeal. On the 4/5/ 2002 the Court of Appeal delivered its judgment on the merits in the matter after full consideration of the briefs of all the parties in the matter.

The 1st respondent’s counsel distilled only one issue for consideration in the application as follows:

“Whether the judgment delivered by the five man panel of the Court of Appeal, sitting as a final court in an appeal arising from an election petition in this case is a nullity which can be set aside by this court?”

The learned counsel submitted that the judgment delivered on the 4/5/2004 is not a nullity which can be set aside by this court for the under mentioned reasons:

(1) The judgment of the 4/5/2004 is not a default judgment, but a judgment on the merits. The applicant was heard before the judgment was delivered.

All parties in the matter filed their briefs. Order 6 rule 9(5) of the Court of Appeal Rules was invoked to treat the brief of the applicant as being duly heard as neither him nor his counsel was around when the appeal was heard. The applicant had due notice of the hearing of the party, while the court refused to be held to ransom by the antics of an unwilling party.

The opportunity granted to the applicant to be represented by counsel on two occasions failed. Both counsel walked out on the applicant in court. The matter under consideration was an election matter of which time was of the essence. The appeal was heard on its merit and in accordance with the law and procedure. The Court of Appeal was right to have adopted the procedure of invoking Order 6 rule 9(5) of the Court of Appeal Rules, 2002 to treat the brief of the applicant as having being duly argued. The 1st respondent cited the cases of Cappa & Alberto Ltd. v. Akintilo (2003) 9 NWLR (Pt. 824) 49 at 64; Ogbodu v. Quality Finance Ltd. (2003) 6 NWLR (Pt. 815) 147 at 158; Agu v. Anyalogu (2002) 14 NWLR (Pt. 787) 294 at 304; Okunrinmeta v. Agitan (2002) 2 NWLR (Pt. 752) 565 at 576; Igbinovia v. Okomu Oil Palm Co. Ltd. (2002) 17 NWLR (Pt. 796) 386 at 398; Hassan v. Atanyi (2002) 8 NWLR (Pt. 770) 581 at 595; John Andy Sons & Co. Ltd. v. NCRI (1997) 3 NWLR (Pt.491) 1;Abubakar v. Federal Mortgage Bank Ltd. & Ors. (2002) 4 NWLR (Pt. 756) at 29.

(2) The applicant cannot complain of lack of fair hearing as he was given enough opportunity to be heard, and he was heard as required by law. The 1st respondent relied on the cases of Otu v. Udonwa (2000) 13 NWLR (Pt. 683) 157 at 173; Kaduna iles v. Umar (1994) 1 NWLR (Pt. 319) 143; Adeboanu Manufacturing Ind. v. Akiyode (2000) 13 NWLR (Pt. 685) 576; Muhammed v. Kpelai (2001) 6 NWLR (Pt. 710) 700; S & Construction Co. v. Chief Bayo Ayoku & Anor. (2003) 5 NWLR (Pt. 813) 278 at 300; Military Governor of Lagos State v. Adeyiga (2003) 1 NWLR (Pt. 802) 589 at 611; Reynolds Construction Co. Ltd. v. Okpegboro (2000) 2 NWLR (Pt. 645) 367; Chidoka v. First City Finance (2001) 2 NWLR (Pt. 697) 216 at 227; Dickson v. Okoi (2003) 16 NWLR (Pt. 846) 397; Obasanjo v. Buhari (2003) 17 NWLR (Pt. 850) 510 at 586; Ajidahun v. Ajidahun (2000) 4 NWLR (Pt. 654) at 605; Okotcha v. Herwa Ltd. (2000) 15 NWLR (Pt. 690) 249 at 257; Military Governor of Lagos State v. Adeyiga (2003) 1 NWLR (Pt. 802) 589 at 623.

(3) The respondent submitted that once a court of law delivers final judgment in a case on the merits, it becomes functus officio in relation to the judgment once pronounced and enrolled. It is not open for the same court to sit on appeal on its judgment as the court which decided the matter to finality becomes functus officio. Section 6(6) (a) of the 1999 Constitution does not empower a court to review its own decision, neither can a court sit on appeal over its own decision.

The 1st respondent supported this contention with the cases of Oboroh v. Oghuvwu (2000) 3 NWLR (Pt. 647) 120; Kaduna iles Ltd. v. Obi (1999) 10 NWLR (Pt. 621) 138; Lamurde v. Adamawa 1 S.C. (1999) 12 NWLR (Pt. 629) 86; Omotunde v. Omotunde (2001) 9 NWLR 252 (Pt.718).

(4) The 1st respondent viewed the application as a gross abuse of court process by a self-seeking litigant. By virtue of section 246(3) of the Constitution of the Federal Republic of Nigeria 1999 –

“The decision of the Court of Appeal in respect of appeals arising from election petitions shall be final”.

This application is a subtle and convert attempt by the applicant to subvert the finality of the decision of the Court of Appeal on 4/5/2004 in this matter.

The 1st respondent’s learned counsel cited the cases of Chief Sergent Awuse v. Dr. Peter Odili & Ors. (2003) 18 NWLR (Pt. 851) 116 at 157; Orubu v. NEC (1988) 5 NWLR (Pt. 94) 323; Onyeabuchi v. INEC (2002) 8 NWLR (Pt. 769 at 417.

Finally that the application is incompetent and misconceived, this court is urged to dismiss it.

I have carefully considered the argument and copious submission of the counsel to the parties. I agree, and it is settled law that there are grounds on which a court can set aside its judgment. These grounds have repeatedly been mentioned in numerous decisions recorded in our Law Reports. Generally speaking when a court completes hearing of a case and delivers its judgment, thereon it ceases to exercise further power in dealing with the case except with respect to such ancillary matters as stay of execution, instalmental payment etc. In legal parlance the court is said to be functus officio in the case. Thereafter steps to reverse the judgment does not fall within the jurisdiction of the relevant court. Onyemobi v. President Onitsha Customary Court (1995) 3 NWLR (Pt. 381) 50; Ekerete v. Eke (1925) 6 NWLR 118; Edem v. Akamkpa Local Government (2000) 4 NWLR (Pt. 651) 70.

The foregoing does not tamper with the inherent powers of a Judge to set aside its own judgment or order including judgments and orders made by his colleagues of the same jurisdiction which for any reason whatsoever is a nullity. Ogueze v. Ojiako (1962) 1 SCNLR 112; Ekerete v. Eke (1925) 6 NLR 118; Siliyun v. Mashi (1975) 1 NMLR 55. Various High Court (Civil Procedure) Rules allow the courts under certain conditions to set aside its judgment obtained in the absence of one of the parties or in default of pleadings.

Under its inherent jurisdiction or power, a court can set aside its judgment obtained in the under mentioned circumstances:

(a) When judgment is obtained by fraud or deceit either in the court or of one or more of the parties. Such judgment can be impeached or set aside by means of an action which may be brought without leave.

(b) When the judgment is a nullity and the person affected by the order is entitled ex debito justitiae to have it set aside.

(c) When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it.

(d) Where the judgment was given in the absence of jurisdiction.

(e) Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.

Ojiako v. Ogueze (1962) 1 SCNLR 112; (1962) 1 All NLR 58; Craig v. Kanseen (1943) KB 256; Agunbiade v. Okunoga (1961) All NLR 110; Edem v. Akampka Local Government (2000) 4 NWLR (Pt. 651) 70; Igwe v. Kalu (2002) 14 NWLR (Pt. 787-435.

I intend to consider each and everyone of the foregoing instances, and relate them to the judgment delivered on 4/5/2004 now being sought to be set aside by the applicant. The applicant complained about the competence of the court that delivered the judgment Coram: Justices Isa Ayo Salami, Saka Adeyemi Ibiyeye, Victor A.O. Omage, M. Datijjo Mohammed and Aminu Sanusi, J.J.C.A., to re-list and re-hear the appeal CA/E/EPT/22/2003. Once a defect in competence is established, it is fatal and the proceedings however well conducted is a nullity. Ajao v. Alao (1986) 5 NWLR (Pt. 45) 802; Asore v. Lemomu (1994) 7 NWLR (Pt. 356) 284; Udene v. Ugwu (1997) 3 NWLR (Pt. 491) 57. The applicant equally complained that the Justices violated the principles of fair hearing in the determination of this case as the applicant was denied the opportunity of being heard. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call evidence. Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) 675. The standard of fair hearing requires the observance of the twin pillars of the rules of natural justice namely:

(a) Audi alteram partem that is hear the other side and

(b) Nemo judex in causa sua that is no one should be a judge in his own cause. This is the rule against bias.

In addition to the foregoing, another attribute of fair hearing is that having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done – Saleh v. Munguno (2003) 1 NWLR (Pt. 80l) 221; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290; Udu-Akugba v. Paico Ltd. (1993) 4 NWLR (Pt. 288) 434; Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419; Adigun v. A-G., Oyo State (1987) 1 NWLR (Pt. 53) 678; Deduwa v. Okorodudu (1976) 9-10 SC 329.

It goes without saying that the fairness in proceedings requires that a person who is tainted by likelihood of or actual bias should not take part in the decision making process where the adjudicator is under a duty to act fairly and the person whose conduct is the subject of inquiry should have an opportunity of being heard. Bamgboye v. University of Ilorin (supra); Agbogu v. Adiche (2003) 2 NWLR (Pt. 805) 509; Adigun v. A-G., Oyo State (supra).

“The right to fair hearing is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria 1999, and a breach of it particularly in trials, vitiates such proceedings rendering same null and void. Any judgment which is given without compliance and which has breached a fundamental right such as the right to fair hearing is a nullity and is capable of being set aside either by the court that gave it or by an appellate court.”

Okafor v. A-G., Anambra State (1991) 6 NWLR (Pt. 200) 659 at 678-679. Nullity was defined by the court in the case of Saleh v. Munguno cited (supra) as:

“A nullity is in law a void act, an act which has no legal consequence, a proceeding which has been declared a nullity is void and without any legal effect or consequence whatsoever. Just as it does not confer any legal title whatsoever, it does not also inure obligation or liability on anyone or make any party liable to suffer any penalty or disadvantage.”

The grouse of the applicant is that the panel which delivered the judgment of the 4/5/2004 now sought to be set aside, breached the principles of fair hearing which rendered the entire procedure and judgment a nullity, reasons are as follows:

(1) The appeal for which judgment was purportedly delivered on the 4/5/2004 had been fully heard by another panel of Justices Coram: O. Opene, B. Akaahs and D. Adeniji and had been reserved for judgment.

(2) All the Justices are parties in a suit instituted by the applicant against the rehearing of the appeal. The applicant was their opponent yet persisted in rehearing his appeal which act is tainted with bias.

(3) That the court adopted the briefs including the applicant’s brief under Order 6 rule 9(5) of the Court of Appeal Rules, 2002. Whereas such procedure is meant to be applied where a brief of argument has been filed and the party is absent, the court may deem the brief adopted.

But in the instant case, the party was present and specifically requested in open court to engage another counsel to represent him when his counsel abruptly withdrew in open court. The court refused to grant the applicant the opportunity to be represented by another counsel. In the process, the court invoked Order 6 rule 9(5) of the Court of Appeal Rules to adopt his brief along with the brief of others whose counsel were not present in that appeal. The argument of the applicant obviously raises the inevitable question, what is the meaning and purport of fair hearing? I find the adequate answer to this question in the case of Saleh v. Munguno (2003) 1 NWLR (Pt. 801) 221 at 247 that:

“The term fair hearing involves a situation where having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all parties to the proceedings. It also means a trial conducted according to all legal rules formulated to ensure that justice is done to all parties to a cause or matter.”

Okafor v. A.-G., Anambra State (1991) 3 NWLR (Pt.200) 659; Ogba v. State (1992) 2 NWLR (Pt. 222) 164; Mohammed v. Kano Native Authority (1968) 1 All NLR 424.

So as to determine whether the judgment delivered on the 4/5/2004 is a nullity for failure to comply with the doctrine of fair hearing. I have to scrutinize the scenario pervading in court prior to the determination of the appeal. I have relied on the affidavit, counter-affidavit and further affidavit of the parties, the documents attached as exhibit AI – the court proceedings on the 17/2/2004, exhibit A2 court proceedings on the 26/2/2004, exhibit A3 the controversial judgment of court delivered on the 4/5/2004 and the written addresses of the parties. From the above mentioned documents the following facts emerge:

(1) That the appeal was a judgment from an election petition.

(2) That both parties have filed their respective briefs of argument.

(3) The appeal was duly fixed for hearing.

(4) The appeal came up for hearing on the 18th of March, 2004 but rather than argue his appeal, the applicant’s counsel walked out on the court refusing to argue the appeal.

(5) The applicant applied for an adjournment to brief another counsel to represent him.

(6) The Court of Appeal obliged him and adjourned the hearing of the appeal to the 6th of April, 2004.

(7) On the 6th of April, 2004 when the appeal came up for hearing – the applicant was represented by another counsel, who rather than argue the appeal also withdrew from hearing the appeal like the applicant’s first counsel.

(8) The applicant, repeated what he did before requesting that he be granted time to look for another counsel – the indulgence he had once been granted.

(9) Rather than bringing a new counsel into the case the applicant brought another counsel from the chambers of the 1st counsel who walked out on him in court.

(10) The party and the court observed that there were no interlocutory applications pending before the court that might have required oral argument.

(11) At the time the court invited parties to argue their appeal – the applicant was not in court though he was present at the commencement of hearing.

(12) Briefs of argument having being filed and exchanged the court in compliance with Order 6 rule 9(5) of its Rules treated the appeal as having being duly argued by considering all the briefs of argument filed and exchanged in the appeal.

(13) It is the contention of the applicant from the foregoing that the judgment is a nullity.

(14) The appeal for which the judgment was purportedly delivered on the 4th of May, 2004 had been fully heard by another panel of Justices – Coram – O. Opene, B. Akaahs and D. Adeniji, J.J.C.A. and has been reserved for judgment.

(15) The panel of Justices who purportedly delivered the judgment of the 4th of May, 2004 – did not hear the matter.

It is a fundamental and basic rule of evidence that he who asserts must prove. Section 137 of the Evidence Act, Cap. 112 Laws of the Federation 1990. The applicant woefully failed to attach the judgment of the panel of the three Justices mentioned as part of the facts to be considered in his application to set aside the judgment delivered on the 4th of May, 2004. Where a matter has not been heard on merit or prosecuted to conclusion and judgment delivered-the case can be re-opened and heard de novo before another court. On the 26/2/2004 – there was an adjournment in the matter for the purpose of hearing the sister case CA/E/EPT/23/2003, so that judgment may be delivered in the two appeals on the same day. Exhibit A – a letter on the Deputy Chief Registrar to the Chief Justice of Nigeria – at page 6 para. 4 of the letter reads:

“Since I am not a judicial officer within the meaning of the Constitution, I can only use the language of the Registry to describe the Appeal No. CA/E/EPT/22/2003 by then Senator (Sir) I.G. Abana as simply ‘Inconclusive’.”

The foregoing is part of the facts before me in this application, and I can consider same. The new panel of Justices invoked Order 6 rule 9(5) of the Court of Appeal Rules, 2002 at the hearing of this appeal. It is my conclusion that the appeal was heard on its merit and in accordance with the law and procedure. Order 6 rule 9(5) of the Court of Appeal Rules 2002 reads:-

“When appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having being duly argued.”

The court had in compliance with Order 6 rule 9(5) of the Court of Appeal Rules, 2002 treated the brief of the applicant as duly argued, as he was aware that the appeal was to be heard that day, but his counsel adopted a strategy that could delay the trial by walking out on his client in the court room. Hearing notice had previously been served on the applicant and his counsel. All attempts to stall the hearing of the appeal were equally aborted. The procedure under Order 6 rule 9(5) is constantly adopted by the Court of Appeal going by the numerous numbers of cases reported on this. In the case of Hassan v. Atanyi (2002) 8 NWLR (Pt. 770) 581 at 595 – it was held that:-

“By virtue of Order 6 rule 9(5) of the Court of Appeal Rules 2002 where a party to an appeal has filed its brief of argument but was absent during the hearing of the appeal as the appellants were in the said case, the Court of Appeal would hear the appeal after being satisfied that the counsel to the party has been duly served with a hearing notice.”

John Andy Sons & Co. v. NCRI (1997) 3 NWLR (Pt. 491) 1; Ogbodu v. Quality Finance Ltd. (2003) 6 NWLR (Pt. 815) 147 at 158-159; Agu v. Anyalogu (2002) 14 NWLR (Pt. 787) 294 at 304.

The applicant complained of lack of fair hearing while in my impression and going by the circumstance of the case, he was given an ample opportunity to be heard and he was duly as required heard by the rules of court directing hearing of appeal. It is however trite that if a litigant who has all the opportunity to present his case before the court but fails to do so cannot be heard when he turns around to complain of the breach of his right to fair hearing. The applicant was granted all the opportunity to present his case and be heard – but rather, he continued to be blindfolded and haunted by a non-existing judgment. It was held in the case of S & D Construction Company v. Chief Bayo Ayoku & Anor. (2003) 5 NWLR (Pt. 813) 278 at 300. that:-

“Where in the cause of hearing a party had the opportunity to present his case but failed to utilize the opportunity afforded him to ventilate his case, he cannot thereafter blame his adversary or the court for his failure as he had been afforded a fair hearing.”

In this case, the applicant had filed his brief all the court did not allow him was to address on the brief. I cannot see any factor in the brief of the applicant that would amount to denial of fair hearing simply because when his brief was adopted he was not around to address the court – neither can such vitiate the valid and subsisting judgment of court delivered on the 4th of May, 2004. Muhammed v. Ekpelai (2001) 6 NWLR (Pt. 710) 700 at 712; Chidoka v. First City Finance (2001) 2 NWLR (Pt. 697) 216 at 227. I agree with the learned counsel for the 1st respondent that the judgment in the appeal CA/E/EPT/22/2003 delivered on 4/5/2004 is a final judgment delivered after the appeal was heard on the merit. According to the rules of this court Order 5 rule 3 of the Court of Appeal Rules 2002:

“The court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and substantive part of it be varied and a different form substituted.”

This judgment in this appeal is further a final judgment, which this Honourable court has no jurisdiction to set aside. As I mentioned at the onset of this judgment, that this court becomes functus officio once a judgment is pronounced and enrolled. Oboroh v. Oghuvwu (2003) 3 NWLR (Pt. 647) 120; Lamurde v. Adamawa J.S.C. (1999) 12 NWLR (Pt. 629) 86. It is the theory of justice under our system of administration of justice that no court of concurrent jurisdiction has the power or the jurisdiction to review or set aside an order made by another court or Judge of concurrent jurisdiction. Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 Anigboro v. Sea Trucks (Nig.) Ltd. (1995) 6 NWLR (Pt. 399) 35. In the final analysis and going by the overwhelming facts on records in this application, I hold that the application is misconceived and unmeritorious, since this court lacks the jurisdiction to set aside the judgment delivered on the 4/5/2003, the application is dismissed with N10,000.00 costs in favour of the 1st respondent.

---

Other Citations: (2004)LCN/1660(CA)

Ambassador Akpang Ade Obi Odu V. Donald Etim Duke and Ors (2004)

LawGlobal-Hub Lead Judgment Report

DONGBAN-MENSEM, J.C.A.

The contentious issue before us is the propriety of the ratio decidendi of the trial tribunal (hereinafter referred to as the Tribunal) in setting aside the subpoena duces tecum it had issued to the 1st respondent to produce some documents to wit:-

“The originals of all your academic qualifications, particularly:

1. Your qualifying certificate from Corona School, Apapa, Lagos.

2. Your qualifying certificate from St. Mary’s Private School, Lagos.

3. Your qualifying certificate from Federal Government College, Sokoto.

4. Your qualifying certificate from Federal Government College, Ilorin.

5. Your qualifying certificate from the Federal School of Arts & Science, Lagos.

6. Your Bachelor of Laws (LL.B) degree certificate from Ahmadu Bello University (ABU), Zaria.

7. Your Barrister-at-Law (B.L.) certificate from the Nigerian Law School, Lagos.

8. Your Call to Bar Certificate also from the Nigerian Law School, Lagos.

9. Your Master of Laws (L.L.M) degree certificate from the University of Pennsylvania, U.S.A.”

It is conceded by the appellant that the tribunal had the requisite jurisdiction to set aside the said subpoena duces tecum it had earlier issued, that is the correct position of the law and we need not expend energy on that. (Refer Civil Procedure in Nigeria, 2nd Edition (2000) by Fedelis Nwadialo, SAN pp. 652-655. D.S.P Alameiyeseigha v. Chief Saturday Yeiwa & 3 Ors. (2002) 7 NWLR (Pt. 767) 581 at 600-601 and R v. Lewes, Justices ex parte secretary of State for Home Dept. (1972) 1 QB 232 and Raymond v. Tapson (1883) 22 Ch. Div. 430 at 435 CA.)

What is a subpoena?

The Black’s Law Dictionary, 6th Edition, pg. 1426 provides some useful definitions and explanation of the nature of a subpoena. It defines subpoena as “a command to appear at a certain time and place to give testimony upon a certain matter”.

F. Nwadialo, SAN, learned author (supra p. 652) describes a subpoena as an order or a writ of the court, which may be for the person to attend the court and testify only, called subpoena ad testificandum or for him to produce document in his possession or control referred to as subpoena duces tecum, as was issued in the instant case. The subpoena simplicita could also require the person to do both, i.e., to produce document and also testify; the difference lies in the choice of the form used.

A subpoena duces tecum is thus a court process, initiated by a party in litigation compelling the production of certain specific documents and other items, material and relevant (emphasis mine) to facts in issue in a pending judicial proceeding which documents and items are in custody and control of the person or body served with the process. (Black’s Law Dictionary).

By these definitions, what we need to determine in this appeal is whether the tribunal was right in holding that the documents the subpoena sought were ‘no longer relevant’ on the grounds that issues were not joined on the said documents, (listed supra); the 1st respondent, held the learned members of the tribunal, having admitted the existence of the said documents.

On the 7th day of November, 2004 when the appeal came up for hearing before us, some preliminary issues were raised and addressed.

The learned Senior Advocate to the respondent, Wole Olanipekun, SAN had incorporated a preliminary objection in the 1st respondent’s brief of argument, which was deemed filed and served on the 08/11/04.

The appellant’s brief of argument filed on the 13th April, 2004 and the reply brief were adopted by Mba E. Ukweni, Esq., the learned counsel to the appellant. Counsel further addressed us briefly on the issues raised in the briefs, which he adopted. Counsel urged us to discountenance the preliminary objection and the submission of the 1st respondent against the appeal.

The learned senior counsel to the respondent also adopted the respondent’s brief and emphasized a few issues in a brief oral submission.

The other petitioners/and respondents filed no briefs of argument.

By the notice of preliminary objection, the Senior Advocate of Nigeria urged us to strike out the entire notice and grounds of appeal dated the 25th March, 2004 and filed on the 26th March, 2004.

The grounds for the preliminary objection are:-

i. Ground (ii) and particulars (a) & (b) thereunder do not arise from the decision appealed against.

ii. Particulars (a) and (b) under ground (iii) are argumentative.

The grounds of appeal and their particulars are hereby reproduced for the ease of reference:-

Ground one: Error in law:

The learned trial Judges of the Election Tribunal erred in law when they set aside the subpoena duces tecum issued by the Tribunal and commanding the 1st respondent to produce his certificates and academic qualifications duly pleaded by the petitioner/appellant in paragraph 8 of his petition and admitted by the 1st respondent in his reply to the petition on the ground that the documents having been admitted required no further proof and their production becomes irrelevant to the proceedings when infact the contentious issue of the irregularity of genuineness of the NYSC certificate of exemption is founded on the 1st respondent being a qualified graduate of a university or any tertiary institution which makes the production of those certificates necessary/relevant.

Particulars of error

a) The subpoena was based on facts upon which the parties have joined issues in their pleadings.

b) The issue of validity or otherwise of the NYSC certificate of exemption or qualification for national service under the Nation Youth Service Corps Scheme is founded on the 1st respondent being qualified as a graduate of a university or Tertiary institution which were facts which the subpoena required the 1st respondent to show to the Tribunal.

c) Though pleaded in the positive as found by the Tribunal that does not render the documents irrelevant to the proceedings.

d) The schools attended by the 1st respondent and the qualifying certificates obtained therefrom are all sequence of events culminating in the issuance of the NYSC certificate of exemption, which is in contention.

Ground two: Error in law:-

The learned Judges of the election tribunal erred in law when they prevented the petitioner/appellant from calling a witness of his choice, and determining at the stage of the proceedings what evidence was relevant to the proceedings which determination precluded him from putting in evidence relevant documents in proof of his case thereby interfering with his right to a fair trial.

Particulars or error:-

a) A party has the right to conduct his case and call witnesses of his choice whom he feels is necessary to prove his case.

b) It is the right of counsel to the adverse party to object to the admissibility of the document at the time of tendering it and not at the time of calling the witness.

c) The setting aside of the subpoena has the effect of preventing the petitioner/appellant from calling a witness of his choice to produce documents/evidence necessary to prove his case and assist the tribunal in a fair determination of the petition.

Ground three: Error in law:

The learned Judges of the Election Tribunal erred in law, when they misconstrued and misapplied the decision in Rex v. Agwuna (1949) 12 WACA 456 and A.-G., Western Nigeria v. African Press Ltd. (1965) 1 All NLR 6 with regard to the powers of a court to set aside subpoena issued by it.

Particulars of error:-

a) The authorities relied upon by the tribunal dealt with seditious publication and/or utterances, which were entirely different circumstances from the petition before them.

b) The subpoenas in those cases were set aside because they were vague and applied for on frivolous grounds. They were not required for the purpose of obtaining any evidence that were relevant.

c) In the present case, the subpoena was not vague. What it required 1st respondent to produce was clear and relevant to the petition. It was not to embarrass or ridicule him.

It is the submission of the learned senior counsel that ground 11 of the appeal does not arise from the decision of the tribunal and is therefore not a challenge to the validity of the decision, which an appeal should be. The senior counsel asserts that the said ground is at large and that particulars (a) & (b) of the said grounds are not grounded by the records of proceedings for the appeal. Cites pages 21-30 and 31-32 of the records Pages 21-30 of the small records of proceedings bear the ruling of the tribunal being appealed against.

Senior counsel relies on following cases in support of this point:-

Sarah v. Kotoye (1997) 3 NSCC 331 at 355; (1992) 9 NWLR (Pt. 264) 156, Oba v. Egberongbe (1999) 8 NWLR (Pt. 615) 485 at 489; Igwegbe v. Ezuma (1999) 6 NWLR (Pt. 606) 228, Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175 at 206-207.

On ground iii, the Senior Advocate avers that particulars (a) & (b) subscribed thereunder are argumentative and therefore incompetent, relies on: Jamiyu Aliyu v. Aturu (1999) 7 NWLR (Pt.612) 536; Guda v. Kitta (1999) 12 NWLR (Pt.629) 21 at 39.

The learned senior counsel urged us to strike out the entire notice of appeal and the brief of argument in support thereof as it would be difficult to start the expunction or excising of arguments in support of the remaining grounds of appeal since the sole issue formulated cuts across both the competent and incompetent grounds.

Senior counsel submits upon the following authorities:- Ayalogu v. Agu (1998) 1 NWLR (Pt.532) 129 at 143; Egnr. Nura Khalil v. Yar’adua (2003) 16 NWLR (Pt. 847) 446; Manir Yakubu v. Ibrahim Tsauri; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; that it is not the business of the court to perform surgical operation on the appellant’s brief in order to separate the chaff from the grain. To do this, contends learned SAN, would becloud the judgment of the court as it would have descended to the arena- see per Salami, J.C.A. in Ayalogu v. Agu (supra). Senior counsel urged us to strike out the entire appeal, there being no issue to sustain the grounds of appeal.

The appellant’s reply brief addressed the issues raised in the preliminary objection. It is the contention of the learned counsel for the appellant that all the issues raised in the grounds and particulars of the appeal were effectively raised before the learned members of the Election Tribunal who erred in setting aside the subpoena duces tecum at that stage. (Refers to pages 7, 11, & 14 lines 24, 12, 6 respectively of the records Counsel also cited pages 24 and 25 lines 14, 9-26 respectively of the ruling of the tribunal as showing the consideration of the said issues by the tribunal and its decisions thereon.

Counsel cites the decision of this court in the case of Justice Party v. INEC (2004) 12 NWLR (Pt.886) p. 140 where a similar objection was over-ruled. In the Justice Party case (supra) this court held, per Muhammed, J.C.A. at pp. 154-155, that where there has been substantial compliance with the relevant rule of court, the grounds as filed by the appellants should be sustained as competent.

We have perused the proceedings and find at pages 12 & 14 particularly that the issues raised in ground 11 and its particulars (a) & (b) were actually canvassed before the Tribunal.

The tribunal did not however make any pronouncement on this issue, it made no decision.

This court is not one of trial. Until a trial court has adjudicated on the merit of an action or an application filed before it, we cannot determine the matter, not being a court of first instance. (Ref per Oduyemi, J.C.A. in Chief Lambert Necha v. INEC and 1 Ors. (2001) 3 NWLR (Pt.699) p. 74 at 89) We accordingly hold that ground ii and its particulars (a) & (b) is incompetent and is hereby struck out.

On the competence of particulars (a) and (b) of ground iii, the learned counsel for the appellant relied on the decision of the Supreme Court in the case of Alhaji Salami O. Aderounmu v. Emmanuel Olajide Olowu (2000) 4 NWLR (Pt. 652) p. 253 at 265-266; Military Administrator, Benue State v. Ulegede (2001) 51 WRN at 15-16 also reported in (2001) FWLR (Pt.78) p. 1268 at 1283-1284; (2001) 17 NWLR (Pt. 741) 194.

The learned counsel quotes extensively, the decision of the Supreme Court per Ayoola, J.S.C. (Rtd.) (supra) and urges us to be guided by the principles and the current trend in adjudication as amply elucidated in the said decisions. The said decisions, submits counsel, show that the courts now aim at applying substantial justice as against undue reliance on the rules of technicality, which shuts out litigants from the court.

We agree with the submission of the learned counsel for the appellant and are properly guided by the pronouncement of the Supreme Court in the two cases cited (supra).

It is difficult, one must say, to discern how particulars (a) and (b) of ground iii of the appeal as formulated have occasioned a miscarriage of justice to the 1st respondent. (Refers Okonji v. Njokanma (1999) 14 NWLR (Pt.638) p. 250 at 268). The said particulars though inelegantly drafted, adequately convey the contentions of the appellant and sufficiently put the 1st respondent on notice of the issues to be determined on the appeal.

The cardinal consideration is that where the parties to an appeal and the court are not misled by the contents of a ground of appeal, complain about its form becomes a technicality which does not occasion a miscarriage of justice. Courts now pursue the cause of substantial justice as against reliance on rules of technicality. (Refer generally to City Engr. (Nig.) Ltd. v. NAA (1999) 11 NWLR (Pt.625) p. 76 at 89; Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) p. 355 at 386-387.

We find no justification in striking out the said particulars, which are accordingly hereby sustained.

The unique facts of this appeal are as follows:-

The constituted National Assembly/Governorship and Legislative Election Tribunal sitting at Calabar (Coram – Hon. Justice O. A. Boade, (Chairman) Hon. Justice 1. Hwande, Hon. Justice M.

L. Abimbola, Hon. Justice J. J. Jella) had, at the instance of the petitioner issued a subpoena duces tecum to the 1st respondent commanding him to produce his academic certificates as listed supra in this judgment. Hearing commenced and some witnesses who had also been subpoenaed at the instance of the petitioner testified. On the 16/03/04, the 1st respondent had filed on his behalf a motion to set aside the subpoena issued on him.

The motion was contested particularly by the petitioner who had a counter affidavit filed.

The grounds for the application as stated on page 3 of the small records are:-

“(i) The subpoenas have been applied for in utmost bad faith.

(ii) The subpoenas have been applied for and issued to embarrass or ridicule the 1st respondent.

(iii) This Tribunal on 25th February, 2004 dismissed an application brought by the petitioner to amend his petition to challenge or attack the educational qualifications of the 1st respondent and petitioner has appealed to the Court of Appeal against the said ruling.

(iv) The subpoenas have no relevance to the pleading and grounds of the petition adumbrated in the petitioner’s pleading.

(v) The subpoenas are vague.

(vi) The subpoenas constitute abuse of the processes of this Honourable Tribunal.

(vii) The Tribunal has no jurisdiction to entertain any issue relating to the contents and demands of the subpoenas.”

In a reserved ruling pronounced on the 19th March, 2004, the Tribunal preferred the submission of the learned SAN and accordingly set aside the subpoena earlier issued on the 1st respondent.

Aggrieved by the decision of the tribunal, the petitioner, hereinafter, referred to as the appellant, filed this appeal seeking a reversal of the decision of the Tribunal and a restoration of the subpoena issued on the 1st respondent.

A sole issue for determination in this appeal is formulated by the appellant upon the three grounds of appeal filed along with the particulars.

The 1st respondent also formulated a sole issue. We shall adopt the appellant’s issue in this judgment.

This issue is:-

“Whether, taking into consideration the state of the pleadings, the totality of the evidence led and the circumstances of the petition, the Election Tribunal was right in setting aside the subpoena duces tecum issued by it on the 1st respondent to produce his academic qualification/certifications?”

We have found supra that although the grounds of appeal and the issue are inelegantly drafted, they do raise substantial legal issues touching on the decision of the Tribunal and are therefore viable and sustainable. This court has the power and we hereby take the leverage of such to recast the issue for determination as follows:-

Whether taking into consideration the state and stage of the proceedings, the Election Tribunal was right in following the decision in R. v. Agwuna to declare as irrelevant and thereby setting aside the subpoena duces tecum issued on the 1st respondent to produce his academic qualification/certifications.

I must say that both parties have made a great issue of this appeal, which in our humble view is a very narrow issue of law, therefore the volumes of verbiage loaded into the submissions of particularly the learned counsel to the appellant are not necessary. We have therefore looked at the real issue and ferreted out all other irrelevances. The main stake is the order setting aside the subpoena. The appellant contends that the tribunal acted in bad faith and misdirected itself in law, when it relied on the decisions in R v. Agwuna 12 WACA 456 at 457; A.-G., Western Nigeria v. African Press Ltd. (1965) 1 All NLR 6 in setting aside the subpoena.

It is the contention of the appellant’s learned counsel that the reasoning of the tribunal that because issues were not joined on the said documents, they are not relevant is a misdirection in law. The learned counsel cites sections 3, 6, 7, 8, 9, (1),10 and 12 of the Evidence Act in support of his submission that the said documents are relevant. It was also the contention of counsel that since non of the pieces of evidence sought by the subpoena has been expressly declared or rendered inadmissible by either the Evidence Act or any other statute, the Tribunal was equally wrong from the stand point of section 5(a) of the Evidence Act, Cap. 112 of the LFN, 1990 to exclude them by declaring them irrelevant.

Citing the authority of Olukade v. Alade (1976) 1 All NLR 67; (1976) 2 SC. 183; Hassan v. Maiduguri Management Committee (1991) 8 NWLR (Pt.212) p. 738 at 750. Counsel argues that the Tribunal had rejected the admissibility of these documents even before they were produced. Also upon the authority of Oyediran v. Alebiosu 11 (1992) 6 NWLR (Pt. 249) p. 550; Monoprix (Nig.) Ltd. v. Okenwa (1995) 3 NWLR (Pt.383) p. 325 at 340 counsel submits that the Tribunal failed to take into consideration the age old principle of law that in civil proceedings for a document to be admissible, it must not only be pleaded, it must be as well relevant to the just determination of the suit.

It is further the assertion of the counsel that the tribunal was wrong in applying the ratio in Adeye v. Chief Adesanya (2001) 2 SCNJ 79; (2001) FWLR (Pt.415) 1847; (2001) 6 NNWLR (Pt. 708) 1, which in fact supports the position of the appellant. (Refers per Ognegbu, J.S.C. at 1856 paras. E – F).

While conceding the general principle of procedure that facts pleaded by one party and admitted by the other will generally need no further proof, counsel cites the case of Yashe v. Umar (2003) 45 E WRN 115 at 128-129; (2003) 13 NWLR (Pt. 838) 465 which says that there exist circumstances in which documents pleaded and admitted will need to be tendered in evidence in order for the court to be aware of their contents and to give them proper interpretation.

This, contends counsel, is to satisfy the court’s conscience as to the existence, condition and content of the said documents. The appellant seeks to do just that in his petition, declares the learned counsel (refers to per Ba’ aba, J.C.A. in Yashe case (supra).

It was finally the submission of the learned counsel that setting aside the subpoena was to gag the appellant and control what evidence he gives. The petitioner is however entitled to the opportunity to avail himself of all available evidence and witnesses to prove his case. (Refers to Savannah Bank v. Motor Parts Installation Enterprises Ltd. (1997) 3 NWLR (Pt.492) 209 at 218.

The learned senior counsel for the 1st respondent submitted that the subpoena was not sought bona fide and declared that the subpoena ‘at best was asking the 1st respondent to produce non-existing documents’ a mere ‘fishing expedition,’ (refers to the case of Rex v. Agwuna, African Press Ltd. (supra); Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at pp. 188’97189), the learned SAN concluded.

We find this submission curious for the simple reason that if the 1st respondent admitted the qualifications credited to him, there must be evidence to support such. With due respect to the learned senior counsel, the said documents cannot be said to be ‘non’-existent’ unless of course the admission and declaration of the qualifications of the 1st respondent is a farce.

It was further the submission of the senior counsel that by the nature and contents of the document, the tribunal lacks the jurisdiction to look into the documents covered by the subpoena (cites Jang v. Dariye (2003) 15 NWLR (Pt.843) p. 436 at 459. Again, we are unable to comprehend the basis of this argument.

It appears the court must look at the contents of a document vis-a-vis the facts pleaded to determine its relevance. This seems to be the theme of the Supreme Court decision in Agwuna (supra) that:-

“the relevance of evidence is for the court not the Minister to decide …”

The declaration of the learned senior counsel that the subpoena was sought in “Utmost bad faith”

is not supported by any reason in either the brief nor the oral submission of the learned SAN in court. We hold with due respect to the learned senior counsel that the said submission goes to no Issue.

No “bad faith” has been made out in support of the contention of the 1st respondent for setting aside the subpoena. In R v. Agwuna (supra), a criminal matter, it was held that the subpoena was not necessary to obtain any evidence relevant to the trial. It was therefore set aside. In the A.-G., Western Nigeria v. African Press Ltd. (supra) the subpoena was a wild one, it was therefore declared vague and applied for on frivolous grounds.

In the English case of Morgan v. Morgan (1877) 2 All ERS 515, the witness was not bound or concerned in the proceedings. He was subpoenaed for the purposes of obtaining evidence from him about his asset and testamentary intentions. The subpoena was set aside for the reason that such evidence sought to be obtained will amount to invasion of the witness’s personal right and private affairs.

None of these situations is similar to the facts of the instant case. The person subpoenaed here is a principal party. The documents sought are very clearly and distinctly identified. These are all documents, which are personal to the 1st respondent and are therefore under his personal control and custody.

By the provisions of section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, a party is entitled to prepare for his case.

At the stage of preparation as in this case, investigation and discoveries are vital in building up the case of the litigant. Should the litigant desire such documents of his opponent, he must be allowed the benefit of such enquiry. Good circumspection dictates some allowance to the litigant at this preliminary stage. The reason is that the other party has a chance at the trial, to respond and query the relevance of such materials demanded and produced.

The crux of the decision of the trial Tribunal is borne out on page 28 of the records being part of the ruling of the Tribunal recorded in pages 21-30 of records of this particular appeal (referred to as the small record). The Tribunal wondered if there were any:

“real need for the petitioner to subpoena the 1st respondent to produce the documents”

To answer the question, the learned members of the Tribunal turned to paragraph 8(a)-(d) of the amended petition in which the various institutions the 1st respondent attended are listed with dates from the primary school to the Nigerian Law School up to his enrolment as a banister and solicitor of the Supreme Court of Nigeria in 1983. The Tribunal observed that the 1st respondent admitted those averments in their replies. The Tribunal concluded that it is trite law that admission in pleadings binds the party who made it and no further proof of the truth of the fact so admitted is required.

It cited the case of Adeye & Ors. v. Chief Adesanya & Ors. (2001) 2 SCNJ 79; (2001) 6 NWLR (Pt. 708) 1, above, in a nutshell is the basis of the decision of the Tribunal that the documents were not necessary and it therefore set aside the subpoena.

The 1st flaw apparent in the decision of the Tribunal is the fact that admissions are not conclusive proof of the matters admitted but they may operate as estoppel (refer Ojiegbe v. Okwaranyia (1962) 1 All NLR 605 at 607; (1962) 2 SCNLR 358.) By the provisions of section 132 of the Evidence Act (supra) documentary evidence prevails over any other matter as only the document itself will be admissible evidence.

Further, section 75 of the Evidence Act (supra) that the Tribunal seems to rely upon, though not cited, refers to the parties agreeing to admit, was there any such agreement in this matter? The petitioner made some depositions/declaration about the 1st respondent, which the 1st respondent admitted. There was no agreement per se. It is correct that by the rule of pleadings, facts admitted need not be proved. The court however reserves the discretion to allow or require proof other than by the prior admission/agreement of the parties. The discretion of the court is a power to be exercised judicially and judiciously. This then requires that the court in so exercising its discretion must be guided by the basic tenets of justice to prevail over the rules of technicalities (Refer Egolum v. Obasanjo supra).

This, in my humble opinion, is the basis of the discretion reposed in the court by section 75 of the Evidence Act; to require further proof. Indeed, the said section does not empower the court to dispense with further proof of the admitted facts, this is instructive.

Had the learned members of the Tribunal averted their minds to these areas of the law, they would have arrived at a different decision than the one they did.

The reason the tribunal struck down, by setting aside, the subpoena is the relevance of tendering the documents, which had already been admitted.

With due respect to the learned members of the tribunal, relevance in the circumstance is a matter of details which should arise only at the adduction of evidence. At that stage, the 1st respondent has the opportunity to prevent whatever mischief or injury he perceives the tendering of such documents would wrought to his case. Not before then.

The appellant/petitioner must not be shut out/short charged at the stage of collating materials for the prosecution of his petition, unless of course, he short charges himself.

Accordingly, the Tribunal was not, at that preliminary stage, seized of the relevant facts to decide at the time it did, that the documents sought were not relevant.

The current trend in judicial circle is the doing of substantial justice. Efforts must be geared towards upholding the rights of individuals without sacrificing the general interest. When there exists ample opportunity for the other party to raise further objections during the course of a proceeding, the courts must not rush into shutting out a party who seeks to haul in some materials he considers vital to his case at the very preliminary stage. The exception to this rule will be where the case is incurably defective and no judicial surgery can resuscitate it.(Refer Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 at 26, Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) p.179, Obimonure v. Erinosho (1966) 1 All NLR 250).

As the proceedings progress, objections can be raised through which the grains can be separated and the chaffs jettisoned for good and substantial judicious reasons.

Assuming the admission of the existence of these documents preclude their production, the petitioner should not be denied the right to a visual perception of the said documents.

In my humble opinion, the deposition/statements in paragraph 8(A-D) of the amended petition are no more than a repetition of the expected basic qualifications of the 1st respondent, which by law, qualifies him to stand election for the office of the Governor. A few additional qualifications, which are not required by the provision of section 117 of the Constitution merely go to enhance the credentials of the 1st respondent as presented by him to INEC.

The mere fact of the reproduction of the same by the petitioner in this petition should not preclude/estop the petitioner from desiring to have a visual perception of the certificates evidencing those declared qualifications (refer Barrister Boloukuromo Ugo v. Bolobowei lndiamaowei & 6 Ors. (1999) 13 NWLR (Pt.633) P. 152 at 160).

This procedure allows for comparison, which enables the inference to be drawn from the inspection and comparison of that which is declared, and what actually is. In the determination of the issues placed before it, the court has the inherent powers to draw legitimate inference arising from facts presented before it (refer Sodipo v. Leminkainen OY (1986) 1 NWLR (Pt.15) p. 220 at 224-5 per Karibi-Whyte, J.S.C. (Rtd).

In the special circumstance of an election matter being sui generis, it appears reasonable to hold that a party is not shut out at the inception of his case. He should be allowed to garner whatever materials he perceives requisite for the prosecution of his case. The Tribunal must not give the impression of siding with any party by appearing to shield such a party. The said documents could be used to impugn the evidence adduced and thereby radically affect the evidential weight/probative value ascribable to the case of the 1st respondent. This, the appellant is allowed to do. It is a contest.

It is our humble and considered view that the tribunal threw caution to the winds in deciding on the relevance of the documents at that preliminary stage of the proceedings.

I fail to see what injustice was occasioned by the issuance of the subpoena. The injustice to be suffered by the appellant by the setting aside of the subpoena is however visible and apparent; the party is being denied an opportunity to prosecute his case with the materials he deems relevant. While the setting aside of the subpoena was an act to protect the one party from “whatever”, its withdrawal constitutes a denial of an element of fair hearing, a constitutional and natural right which is more fundamental than merely shielding a party from a ‘perceived embarrassment’. It needs to be accentuated that the right to fair hearing is more than a personal right of the individual, it is a matter of public policy. The individual’s right to a fair hearing is non-negotiable, sacrosanct.

Why would a party feel harassed or embarrassed by the production of his certificates? I think the Tribunal acted in haste and thereby occasioned a miscarriage of justice to the appellant.

The learned members of the election Tribunal erred in setting aside the subpoena duces tecum at that stage.

The Justice of the case demands a reversal of the decision of the Tribunal and it is hereby so ordered.

The subpoena is restored and the respondent shall comply with same as ordered initially. Appeal is allowed. A cost of N5,000.00 is awarded to the appellant against the 1st respondent.

---

Other Citations: (2004)LCN/1659(CA)

Idris Rabiu V. The State (2004)

LawGlobal-Hub Lead Judgment Report

T. MUHAMMAD, J.C.A.

The appellant and one Awalu Garba were charged and convicted of the offences of conspiracy and rape contrary to sections 97 and 283 of the Penal Code.

Brief facts of the case are that on the 1st day of September 1996, at Bida, one Idris Rabiu (the appellant) conspired with one Awalu Garba to have and indeed had carnal knowledge of Mama Abdul-Rahman an eleven-year-old girl, forcefully. It was on this basis that the prosecutrix father reported to ‘A’ Division Police Station, Bida.

The prosecutrix was taken to the General Hospital, Bida because she was bleeding and medical report to that effect was obtained indicating that she bled as a result of the vaginal rupture she suffered due to forceful penetration.

Upon receipt of the case diary, the appellant and one other were prosecuted under sections 97 and 283 of the Penal Code, and convicted and sentenced to term of imprisonment.

Being dissatisfied with the decision of High Court of justice, Minna delivered by Honourable justice, Jibrin N. Ndajiwo the Chief Judge of Niger State, the appellant has appealed to this Honourable Court upon grounds set out in his notice of appeal filed on the 20th day of January, 2004.

The appellant by his notice of appeal has filed 5 grounds of appeal before this Honourable Court, challenging the decision of the trial court.

Parties in this court complied with our rules by filing and exchanging briefs of arguments.

In the appellant’s brief, learned counsel for the appellant Mr. Machukwu-Ume, formulated the following issues for determination, thus –

1. Whether there was evidence before the court to support the conviction and sentencing of the appellant for an offence of rape?
2. Whether the trial court was right to have convicted the appellant solely on his plea of guilty to an offence of rape without calling on prosecution to prove its case?
3. Whether it could be said that the appellant had a fair hearing considering the manner of his conviction?
4. Whether the transfer of the appellant’s trial from Bida where the offence was committed and where he resides to Minna did not occasion a miscarriage of justice?
5. Whether in the circumstances of this case, the sentence of the appellant was not manifestly excessive?”

Learned counsel for the respondent, Mr. Majidadi, adopted the issues for determination formulated by the appellant.

In his submissions, learned counsel for the appellant, argued in respect of issue No.1 that the prosecution did not lead any evidence to prove its case and it was wrong for the trial court to have convicted the appellant. The prosecution was required by law to prove such a serious offence beyond reasonable doubt. Reliance was made to section 138 of the Evidence Act. All the ingredients of the offence must have been proved to secure a conviction. Ogunbayo v. The State (2002) 15 NWLR (Pt.789) 76 at 79 referred. Learned counsel submitted that under no circumstances is the prosecution relieved of the statutory burden of proving every ingredient in the offence of rape. State v. Anolue (1983) 1 NCR 71, Jegede v. State (2001) 14 NWLR (Pt. 733) 264 at 267 were cited in support.

On issue No.2, learned counsel for the appellant submitted that a plea of guilt cannot be conclusive evidence of guilt in law and the court cannot convict solely on that without meeting certain statutory and judicially stipulated conditions. Before an accused can be convicted on a plea of guilty, it must be established that he has admitted all the facts on which his charge is founded as well as guilt in respect of them. The cases of Onuoha v. Police (1956) NRNLR 96; Ojetola v. C.O.P (1972) CCHCJ 29; Osie Tutu v. The State (1965) GLR 593; Akanbi v. C.O.P (1993) 1 NCR 266 at 269. Failure by the trial court to comply therewith will render the conviction a nullity. The plea of guilty, it is argued, was not genuine as the appellant did not understand his situation, his rights and the consequences of the plea and was coerced to making the plea.

It was submitted for the appellant under issue No.3 that the non-representation of the appellant by a legal counsel in such offence is a denial of fair hearing. Ajile v. State (1999) 9 NWLR (Pt.619) 503 at 505 cited in support. Further, serious offences such as rape should not be tried summarily. R. v. Cox (1968) 1 WLR (1950) 53 CAR 66 and R. v. Pitson (1972) 56 CAR 391. Doing so, argued further by learned counsel, would deprive the applicant his constitutional guaranteed right to be legally represented. The learned trial Judge adopted a summary trial procedure in a capital offence such as rape when there is no such provision under the law. The case of Tsaku v. State (1986) 1 NWLR (Pt.17) 516 at 519 referred to.

Issue No.4 raises the issue of transfer of appellant’s trial from untold hardship on the appellant. It forestalled every arrangement made by the appellant to be legally represented and it affected the right of the appellant to a fair hearing.

Learned counsel for the appellant argued on issue No.5 that there was nothing to justify the trial court’s harshness and caprice with which the sentence on the appellant was handed down and a reformative attitude should have been adopted considering the circumstances and age of the appellant. It was wrong for the trial court to have stated that the appellant deserved a heavy sentence on the misconception that he showed no remorse. Learned counsel urged this court to quash the conviction and sentence of the appellant.

Learned counsel for the respondent submitted under issues 1 and 2 that there was evidence before the court to support the conviction and sentencing of the appellant for the offence of rape. Learned counsel stated that the lower court complied with the provisions of sections 160 and 187(1) and (2) of the Criminal Procedure Code while exercising its discretion. He stated further that the appellant’s plea is enough evidence for the court to convict and sentence him and that he was rightly convicted and sentenced by the lower court.

On issue No.3, learned counsel for the respondent argued that the appellant was accorded fair hearing in line with section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as the accused was informed promptly in the language that he understood and in details of the offences which he appeared to have understood the charge preferred against him. Several adjournments were given to the appellant in order to enable him secure the services of a legal practitioner but to no avail. Rape did not fall within the contemplation of capital offences so the court could not scout for legal representation for the appellant. Fair hearing does not permit a litigant to hold a court to ransom or permit for a delay of justice. Learned counsel cited the cases of Ojukwu v. Nnoruka (2000) 1 NWLR (Pt.641) 348 at 350; Yanor v. State (1965) 1 All NLR 193.

On the 4th issue, learned counsel for the respondent submitted that the transfer of the case from Bida Judicial Division to High Court No.1, Minna, was proper and in line with section 72(1), (2) & (3) of the High Court (Rules) of Niger State, Cap. 52. The transfer was for administrative convenience as the appellant, even before the transfer, was at Minna prison.

It was submitted by learned counsel on issue No.5 that there was no dispute in the plea of the appellant at the trial court that he pleaded guilty to the charge. The court, under section 283 of the Penal Code has power to impose sentence of life imprisonment or any lesser term. The jurisdiction of the learned trial Judge was therefore unlimited, provided it did not exceed the maximum prescribed for the offence. The appellant, he argued further, was rightly convicted and sentenced. Learned counsel urged us to dismiss the appeal and affirm the lower court’s decision. Rape is the unlawful carnal knowledge of a woman by a man forcibly and against her will. Or, put more tersely, it is the act of sexual intercourse committed by a man with a woman not his wife and without her consent, committed when the woman’s resistance is overcome by force or fear, or under other prohibitive conditions. It is a serious offence and attracts severe penalties under the various criminal codes operating in Nigeria.

Section 282(1) of the Penal Code, Cap. 89, Laws of Northern Nigeria, 1963, provides that a man is said to commit rape, who, save where he had sexual intercourse with his wife, has sexual intercourse with a woman in any of the following circumstances.

(a) against her will;

(b) without her consent;;

(c) with her consent when her consent has been obtained by putting her in fear of death or of hurt;

(d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

(e) with or without her consent, when she is under fourteen years of age or of unsound mind

The appellant, along with one other person, stood answerable to two counts charge preferred against each of them before the lower court. The charges read as follows:

“That you, Idrisu Rabiu and Awalu Garba, on or about the 2nd day of September, 1996, at Bida, within the Bida Judicial Division agreed to do an illegal act, to wit you had carnal knowledge of Mama Abdul-Rahman, an eleven year-old girl (and the act was done in pursuance of the agreement), and you thereby committed an offence punishable under S. 97(1) of the Penal Code.

No. II

That you, Idrisu Rabiu and Awalu Garba on or about the 2nd day of September, 1996, at Bida, within the Bida Judicial Division did commit the offence of rape, by doing an act, to wit: You had carnal knowledge of Mama Abdul-Rahman, an eleven year-old girl, and you thereby committed an offence punishable under S. 283 of the Penal Code.”

After taking the pleas of each of the accused persons wherein each admitted having committed the offences, the learned trial Judge proceeded to convict and sentence them to various terms of imprisonment with hard labour. In other words, the appellant was found guilty of the offences charged and was sentenced to terms of imprisonment on the strength of his “confession” of committing the offences charged. In essence, no witness was called to testify in favour of the prosecution and against the appellant. In his reasoning process while sentencing the two accused persons, the learned trial Chief Judge, stated among other things-

“I have carefully considered the plea of the accused persons for leniency in respect of the two charges against them. Equally also, I have considered the submissions of the learned counsel for the state to the effect that two accused persons are first offenders. However, I deem it necessary to point out that for these two convicts to have carnal knowledge of an eleven year old girl without her consent is callous. This inhuman and callous act is certainly not only against the laws of this country but also against the laws of Almighty Allah. Offences of rape and the likes are certainly very prevalent in the jurisdiction under which the two offences were committed. Small innocent children of under age and indeed all females of whatever age needs (sic) to be protected against the likes of the accused persons. A stop must be put to these types of ungodly and illegal acts. This therefore calls for severe punishments for the convicts. I wish however to add that I have carefully also considered the demeanor of the two accused persons. The 2nd accused has all along appear (sic) very sober, reflective and repentant. I am of the firm accused (sic) (first) on the other hand appears arrogant and unrepentant. He has been displacing an attitude of I don’t care. This too calls for lighter punishment for the 2nd accused in the circumstances of this case and a stiffer (heavier) one of (sic) the 1st accused. Consequently, the convicts are hereby sentenced as follows.”

The main grouse of the appellant as contained in ground one of the notice of appeal and argued in issue No.1 formulated by the appellant is that there was no evidence upon which the lower court relied to convict him. Now, what appeared in the record of appeal, especially the proceedings of the lower court of 19/5/98, is as follows:

“Babadoko: The accused persons are not represented by counsel. We now want the court to proceed with the hearing of the matter…

Court: This court has been adjourn (sic) this matter since 22/4/97 to enable the accused persons to engage the services of a lawyer. All along, it has been one excuse or the other. This court will no longer wait for the 1st accused persons (sic) and indeed the 2nd accused persons (sic). To do so will be an endless exercise. justice of this case now clearly demands that the State should proceed with its case and the accused persons to defend themselves as provided under our laws.

State: We have 2 witnesses in court and we are ready to call them. I apply to the court that the plea of the accused persons be taken.”

It was after this that the pleas of the appellant were taken. On the 1st charge, the appellant stated as follows –

“1st accused: I agree I committed this offence. I admit the charge. It is true.”

One the 2nd charge, the appellant stated as follows –

“1st accused: I understand the 2nd charge as read and explained to me by the court, I agree with the charge. I admit the offence. I committed this offence.”

Thereafter, learned counsel for the State urged the lower court in the following words –

“State: In view of the plea of guilty by the accused persons, I pray this Hon. Court to convict the accused persons of the the 2 offences charged accordingly.”

The lower court found the appellant guilty of the two offences charged and convicted him accordingly.

But for a conviction to stand where the accused person is alleged to have committed an offence of rape, the law places the burden of proof on the prosecution and it never shifts. See: Section 138 of the Evidence Act, Cap. 112, Laws of the Federation, 1990; Obiakor v. State (2002) 10 NWLR (Pt.776) 612. The ingredients of this offence which the prosecution is under duty to prove as per the provision of section 282(1) of the Penal Code, Cap. 89, Laws of Northern Nigeria, 1963, are as follows:-

(a) That a man, the accused, had sexual intercourse with a woman, the victim.

(b) That the act of intercourse was unlawful not being between husband and wife.

(c) That in giving the evidence of intercourse, complete penetration is proved.

(d) The accused must also be proved to have had the requisite mens rea, that is, intention to have intercourse with a woman without her consent or that the accused acted recklessly not caring whether the woman consented or not.

(e) Also the prosecution must adduce evidence to corroborate the complaint made by the victim, and although this is not required as a matter of law, it is required in practice.

It is clear from the printed record of appeal before this court that no evidence was led by the prosecution to establish any of the ingredients of the offence of rape as listed above.

Authorities are agreed on the general principle of the law of rape that there must be proof of penetration, no matter how slight before the offence of rape can be said to be proved. In the recent case of Iko v. State (2001) 14 NWLR (Pt.732) 221 at 245 the Supreme Court, per Kalgo, J.S.C., stated, inter alia:

“The essential and most important ingredient of the offence of rape is penetration and unless penetration is proved, the prosecution must fail (See R. v. Hill 1 East P.C. 439). But penetration however slight is sufficient and it is not necessary to prove any injury or the rupture of the hymen to constitute the crime of rape. (See R. v. Allen 9C & p. 31).”

See also: Okoyomon v. The State (1972) 1 NMLR 292; (1972) 1 SC 21 at P. 33; Jos N.A. Police v. Allah NA Gani (1986) NMLR 8; Igbine v. The State (1997) 9 NWLR (Pt.519) 101. Even where the prosecutrix testified that the accused inserted his penis into her vagina, the law requires such evidence to be corroborated by an independent witness. See: Okoyomo v. State (supra); Iko v. State (supra). This issue is resolved in favour of the appellant.

On the conviction of the appellant by the lower court on the appellant’s plea only, the lower court seemed to base its conviction under section 187(2) of the Criminal Procedure Code (CPC) in the Northern States of Nigeria which provides as follows –

“187 (2) If the accused pleads guilty, the plea shall be recorded and he may in the discretion of the court be convicted thereon unless the offence charged is punishable with death when the presiding judge shall enter a plea of not guilty on behalf of the accused.”

Section 283 of the Penal Code prescribes the punishment for committing the offence of rape for life imprisonment or for any less term and shall also be liable to fine. The offence of rape therefore is not one punishable with death. The learned trial Chief Judge was correct in recording the pleas made by the appellant. The question posed by the appellant is whether the trial court was right in convicting the appellant solely on his plea of guilty to an offence of rape without calling on the prosecution to prove its case. It has been observed earlier in this judgment that the appellant “agreed” that he committed the offence; the charge was true and he admitted it. Now, in the normal course of things, if one says he ‘agrees’, that connotes the idea that one shares same opinion expressed by another. See: Hornby’s Oxford Advanced Learner’s Dictionary, 6th ed., page 23. To admit the commission of an offence ordinarily, connotes to agree, often unwillingly that something is true. Ss: Hornby, Op Cit page 15. If the expressions credited to the appellant happened to be the exact words used by him, then the next hurdle is: can such expressions amount to confession as contemplated by section 27 of the Evidence Act. A confession according to that section is an admission made at any time by a person charged with crime, stating or suggesting that he committed that crime. If voluntary, such a confession is deemed to be relevant facts as against the person who makes it only. Although, there are earlier authorities which subscribed to the view that, if during trial in court, an accused person confesses to the offence charged, and such a confession is in the nature of a plea of guilty, that alone does not make him to admit the truth of the facts contained in the charge as by that he merely admits that he is guilty of the offence as charged and nothing else, as held in R. v. Riley (1896) 1 Q.B. 309, our Supreme Court has held however, on such confessional statements, in the case of Edhigere v. State (1996) 8 NWLR (Pt.464) 1 at page 10 B-C, as follows:

“As has been decided in a long line of cases by this court, it is trite law that a free and voluntary confession of guilt made by a prisoner whether under examination before a Magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant conviction without any corroborative evidence as long as the court is satisfied of the truth of the confession. See Jimoh Yusufu v. The State (1976) 6 SC 167 and Edet Obosi v. The State (1965) NMLR 119.

It has also been laid down that it is desirable however to have outside a defence’s confession to the police some evidence be it slight of the circumstances which make it probable that the confession is true vide Paul Onochie & 7 Ors. v. The Republic (1966) NMLR 307; R. v. Kanu (1952) 14 WACA 30 and Onuoha v. The State (1987) 4 NWLR (Pt.65) 331.”

A voluntary confession of guilt, if it is fully consistent and probable, is usually regarded as evidence of the highest and most satisfactory nature if there is an independent proof that a criminal act has in fact been committed by someone. See: Philip Kanu & Anor. v. R. (1952) 14 WACA 30 at 32; that the accused person had the opportunity of committing the offence; and that the confession was consistent with the other facts which had been ascertained and proved. See: R. v. Chukwuji Obiasa (1962) WNLR 354; R. v. Sykes (1913) 8 CAR 233.

In this appeal, as there was no evidence placed before the learned trial Chief Judge apart from the “plea” of guilty by the appellant, I do not think it was safe for the learned trial Chief Judge to convict the accused solely on his plea. After all, the prosecution showed its readiness to call its witnesses but had a sudden change of mind asking the court to convict on the strength of the appellant’s plea. But I think the court below had a duty to warn itself of the danger of convicting the appellant solely on his plea of guilty. A plea of guilty is not and cannot be conclusive proof of guilt in law. In the case of Nwaebonyi v. The State (1994) 5 NWLR (Pt. 343) 138, the Supreme

Court laid some conditions which should guide a trial court in evaluating such admissions/confessions in a criminal trial. These include the following –

(i) Is there anything outside the confession which shows that it may be true?

(ii) Is it corroborated in any way?

(iii) Are the relevant statements of fact made in it most likely true as far as they can be tested?

(iv) Did the accused have the opportunity of committing the offence?

(v) Is the confession possible?

(vi) Is the alleged confession consistent with other facts which have been ascertained and established?

Thus, before an accused can be convicted on a plea of guilty, it is my view that the trial court is under a duty to ensure that the accused has admitted all the facts upon which his charge was based as well as guilt in respect of same and unless the accused distinctly admits each and every fact necessary to constitute an offence, he cannot be convicted merely on his plea. It has been laid in the case of Onuoha v. Police (1956) NRNLR 96 that-

“Where an accused person pleads guilty the court should ask questions to ensure that the accused is admitting the charge and intends to plead guilty.”

In the instant appeal, the learned trial Chief Judge, apart from asking the appellant whether he understood the charge read and explained to him, no further relevant questions were put to the appellant to ensure that he understood the nature and implication of the charge and the consequences that were to follow. I think the court ought to have asked the accused such relevant questions and what he had to say on those facts and after that to decide whether the facts together with the answer given by the accused would warrant a finding of guilt. It was held in Akanbi v. C.O.P. (1993) 1 NCR 266 at 269, that before conviction, the court must look for all the essentials of the offence, and if they are lacking in any way, there is cause to the contrary and an order of acquittal must be entered. I entirely agree with the learned counsel for the appellant in his submission that had the learned trial Chief Judge adverted his mind to the requirement of the law that he must be satisfied that the appellant understood the charge against him that he must hear all the facts alleged by the prosecution as constituting the offence charged; that he must ask the appellant if he admits all the facts alleged by the prosecution, that he must be satisfied that the appellant intended to admit the commission of the offence charged, the facts stated by the prosecution and admitted by the appellant must sustain the charge against the appellant, the learned trial Chief Judge would not have convicted the appellant. I hereby resolve this issue in favour of the appellant. Issue No.3 is on the lack of fair hearing accorded the appellant.

The learned counsel for the appellant submitted that the non-representation of the appellant by a legal counsel is a denial of fair hearing and that the trial court declined to adjourn to enable the appellant secure a counsel and that the court ought to have assigned a counsel to the appellant, knowing the gravity of the offence and its punishment. Yes, it is true as observed by learned counsel for the appellant that the right to fair hearing is an extreme fundamental right in the Constitution and a breach thereof has its implication on the proceedings. It is very clear from our Constitution, section 33(6)(b) and (c) thereof, that every person charged with a criminal offence is entitled to be given adequate time and facilities for the preparation of his defence. Thus, the right to be heard is fundamental and indispensable requirement of any judicial decision. To this effect, the Supreme Court observed in the case of State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33, among other things that fair hearing is in the procedure followed in the determination of the case, not in the correctness of the decision. See also the case of Kim v. The State (1992) 4 NWLR (Pt.233) 17. In the court below, the appellant expressed his desire to engage the services of a counsel to represent him. Several attempts were made to get a counsel but to no avail. There was even an occasion when the appellant drew the lower court’s attention that he had been in detention since 1996 and that he gave money to his father to secure the services of a counsel for him but could not secure one. However, in fairness to the lower court some opportunities were given to the appellant to engage the services of a counsel. There was even an occasion when the lower court asked appellant to leave the name and address of his counsel. The lower court finally observed as follows:-

“Court: This court has adjourn (sic) this matter since 22/4/97 to enable the accused persons to engage services of a lawyer. All along, it has been one excuse or the other. This court will no longer wait for the 1st accused per sons (sic) and indeed the 2nd accused persons (sic). To do so will be an endless exercise. justice of this case now clearly demand (sic) that the State should proceed with its case and the accused persons to defend themselves as provided under our laws.” It is true that justice delayed is justice denied. It is equally true that justice rushed is justice denied. In Ceekay Traders v. General Motors (1992) 2 NWLR (Pt. 222) 132, (1992) 23 NSCC 188, the Supreme Court stated:

“Delay of justice is bad but denial of justice is worse and outrageous. The denial inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice.”

Again, in Unongo v. Aper Aku (1983) 11 SC 129 at p. 153, the apex court observed:

“The old adage that delay of justice is denial of justice has the same force as the maxim that hasty or hurried justice is also a denial of justice.”

Although the provision of the Constitution referred to above, and no other provision thereof for that matter, defines “adequate time and facilities” which must be accorded a person charged with criminal offence for his own defence, common sense and prudence should dictate that a person who is in custody and who has no opportunity to walk around and engage the services of a legal practitioner of his choice, is certainly put at a disadvantage and should be trusted for what he said that he could not up to that point in time secure a counsel. In this appeal, the appellant stated that he even went to the extent of giving money to his father to engage a counsel for him but to no avail. The trial court itself, although not under obligation to assign a counsel for him as the offence is not a capital one, did not help matters by raising the hope of the appellant in collecting from him the name and address of his counsel when the court knew that it was not going to make the necessary contacts on his behalf. The offence of rape is such a complicated issue that requires the attention of an expert for handling. One basic point we must always bear in mind is that fair hearing incorporates a trial done in accordance with the rules of natural justice. Natural justice in the broad sense is justice done in circumstances which are just, equitable and impartial. I resolve this issue as well in favour of the appellant.

The 4th issue is on the transfer of the case from Bida division to Minna. It was argued that it caused untold hardship, depravity, inconvenience and a miscarriage of justice to the appellant. But let it be understood from the outset that the allocation of cases, transfer from one Judge to the other is the exclusive right of the Chief Judge or head of court of a given jurisdiction or administrative judge of the judicial division under reference. In the present appeal, the Chief Judge of Niger State has been empowered by section 72 of the Niger State High Court Law to effect transfers of any cause or matter from one Judge to another. The section provides –

“72(1) The Chief Judge may at any time or any stage of the proceedings before judgment and either with or without application from any of the parties thereto, transfer any cause or matter before a Judge to any other Judge.

(2) The power to transfer shall be exercised by means of an order under the hand of the Chief justice and the seal of the court and may apply:-

(a) to any particular cause or matter in independence either –

(i) in its entirety, or

(ii) in respect of any part thereof, or

(iii) in respect of any procedure to be taken thereon, or

(b) generally to all such causes or matters as may be described in such order whether future or independence at the date of the order.

(3) The power conferred upon the Chief Judge by this section shall be in addition to and not in derogation from any other power or duty to transfer conferred or imposed upon a Judge by this law or by any other written law.”

I think there is no way one can fault the exercise of transfer of the case embarked by the learned trial Chief Judge of the lower court. He did it within the powers conferred upon him by the law. I resolve this issue against the appellant.

Issue No.5 is on the excessiveness of the sentence given to the appellant. From the record, the appellant was sentenced on the first charge to ten years imprisonment with hard labour. On the second charge, the appellant was sentenced to 10 years with hard labour.

Sentences to run concurrently. The punishment for rape is provided by section 283 of the Penal Code. It reads as follows:

“283. Whoever commits rape, shall be punished with imprisonment for life or for any less term and shall also be liable to fine.”

It is clear that the learned trial Chief Judge has been given the discretion to impose the maximum sentence of life imprisonment or for a lesser term. The learned trial Chief Judge decided to impose a lesser term. This is discretionary. It is settled law that discretion exercised judiciously and judicially is not to be subjected to any question by a higher authority. Although there is marked disparity between the terms of sentences imposed on the two accused persons (although second accused decided not to appeal as at the time of this appeal), it can be said the learned trial Chief Judge exercised his discretion. I have no business to tamper with such exercise of discretion where it was based on well-known legal principles. See: General Oil Ltd. v. Oduntan (1990) 7 NWLR (Pt.l63) 423 at 441; Saraki v. Kotoye (1990) 4 NWLR (Pt.143) 144 at 151; Solanke v. Ajibola (1968) 1 All NLR 46 at 51; Royal Exchange Assurance (Nig.) Ltd. v. Aswani iles Ltd. (1992) 3 NWLR (Pt.227) 1 at p. 5.

On the whole, I find that this appeal has some merit. I allow the appeal in part. The conviction of the appellant is hereby quashed. I set aside the sentence imposed on the appellant. The appellant is accordingly discharged.

---

Other Citations: (2004)LCN/1658(CA)